Bland v. State

771 So. 2d 961, 2000 WL 980200
CourtCourt of Appeals of Mississippi
DecidedJuly 18, 2000
Docket1998-KA-01366-COA
StatusPublished
Cited by3 cases

This text of 771 So. 2d 961 (Bland v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bland v. State, 771 So. 2d 961, 2000 WL 980200 (Mich. Ct. App. 2000).

Opinion

771 So.2d 961 (2000)

John BLAND, Jr., Appellant,
v.
STATE of Mississippi, Appellee.

No. 1998-KA-01366-COA.

Court of Appeals of Mississippi.

July 18, 2000.
Rehearing Denied July 18, 2000.
Certiorari Denied November 22, 2000.

*963 D. Kirk Tharp, Batesville, Attorney for Appellants.

Office of the Attorney General by Dewitt T. Allred III, Attorney for Appellee.

EN BANC.

ON REHEARING

McMILLIN, C.J., for the Court:

¶ 1. The motion for rehearing is denied. The motion for correction of opinion filed by the State is granted, and the original opinion issued by the Court is amended and reissued in the form that follows:

¶ 2. John Henry Bland, Jr. has appealed his conviction for murder in the shooting death of Mark Martin. He raises the following issues on appeal: (a) the trial court gave an incorrect instruction on aiding and abetting, the effect of which was to improperly lessen the State's burden of proof, (b) the trial court erred in giving an instruction that the jury could consider Bland's flight in the aftermath of the shooting as evidence of guilty knowledge, and (c) the State's evidence was insufficient as a matter of law to support a verdict of guilty. We find these issues to be without merit and affirm Bland's conviction.

I.

Facts

¶ 3. Evidence presented by the State indicated that the following events occurred in Yalobusha County that ultimately led to the shooting death of the victim, Mark Martin. Bland and a number of his friends were involved in a running dispute with Martin, the origins of which are not entirely clear. Witnesses for the State testified that animosity for Martin held by Bland and his associates had escalated to the extent that Bland and an associate had been heard to dispute over which one of them would be permitted to kill Martin.

¶ 4. On August 31, 1997 Bland and Martin became involved in a face-to-face difficulty at a night club. The dispute between Bland and Martin was temporarily abandoned and Martin proceeded to travel on foot to another night spot in the area. After he arrived outside the club, a vehicle containing several individuals approached Martin and Martin was gunned down by gunfire seen to come from the vehicle. Eyewitnesses were able to positively identify Bland as one of the vehicle's occupants at the time Martin was shot. The car then departed the scene and was not discovered by law enforcement officers until early the next day, when it was found outside a motel in Batesville. Officers observing the car saw Bland, his companions, and several females depart the motel and enter the vehicle. When officers attempted to stop the vehicle, the car fled the scene at a high rate of speed and the occupants were captured only after an extended chase. There was no contention, however, that Bland was the driver of the vehicle during this episode. After the chase, a motorist alerted officers that a handgun was in the roadway near where the car came to rest. Subsequent ballistics testing established that one of the bullets that inflicted Martin's fatal wounds had been fired from that same handgun.

¶ 5. On this evidence, the jury returned a verdict of guilty of murder against Bland and it is from that verdict and the resulting judgment of sentence that Bland has appealed to this Court.

II.

The First Issue: Aiding and Abetting Instruction

¶ 6. Because the State was unable to prove with any certainty exactly which occupant (or occupants) of the vehicle actually *964 fired the shots that proved fatal to Martin, the prosecution proceeded on the theory that Bland, whether he was the actual shooter or not, was guilty as a principal because all those in the vehicle were acting in concert to purposely accomplish the shooting, thereby making Bland guilty as having aided and abetted in the homicide. See, e.g., Vaughn v. State, 712 So.2d 721, 724 (Miss.1998); Harris v. State, 527 So.2d 647, 649 (Miss.1988); Stevenson v. State, 738 So.2d 1248 (¶ 13) (Miss.Ct.App. 1999). In order to convey that concept of the law to the jury, the State requested and the trial court granted an instruction on aiding and abetting. Bland argues before this Court that the instruction as given by the State impermissibly lowered the State's burden of proof to that of only showing that Bland committed one of the essential elements of the crime. Bland based his argument on the similarity of the State's aiding and abetting instruction given in his case with that given, and subsequently strongly criticized by the Mississippi Supreme Court, in the case of Hornburger v. State, 650 So.2d 510 (Miss.1995). The text of the instruction given in this case was as follows:

The Court instructs the jury that each person present at the time, and consenting to and encouraging the commission of a crime, and knowingly, wilfully and feloniously doing any act which is an element of the crime, or immediately connected with it or leading to its commission, is as much a principal as if he had, with his own hand, committed the whole offense.
Therefore, if you believe from the evidence, beyond a reasonable doubt, that John Henry Bland, Jr. was present at the time of the murder of Mark Martin, and consented to and encouraged the commission of that crime, and did knowingly, wilfully, unlawfully, and feloniously do any act which is an element of that crime, or immediately connected with that crime, or leading to its commission, then you shall find John Henry Bland, Jr. guilty of the crime of Murder.

¶ 7. For purposes of comparison, the text of the criticized instruction in Hornburger is quoted below:

The Court instructs the Jury that each person present at the time, and consenting to and encouraging the commission of a crime, and knowingly, willfully and feloniously doing any act which is an element of the crime or immediately connected with it, or leading to its commission, is as much a principal as if he had with his own hand committed the whole offense; and if you find from the evidence beyond a reasonable doubt that the defendant, Gregory Hornburger, a/k/a Greg Hornburger, did willfully, knowingly, unlawfully and feloniously do any act which is an element of the crime of burglary of a building, or leading to its commission, then and in that event, you should find the defendant guilty as charged.

Hornburger, 650 So.2d at 514 (emphasis supplied).

¶ 8. The State correctly points out that Bland did not raise this specific objection to the instruction when jury instructions were being considered at trial and urges that the issue be barred procedurally under the rule announced in such cases as Chase v. State, 645 So.2d 829, 852 (Miss. 1994) and Goldman v. State, 741 So.2d 949, 955 (Miss.Ct.App.1999). Despite this potentially applicable procedural bar to the issue, we find it appropriate to reach the issue on the merits in this case because, arguably at least, an instruction so fundamentally flawed as to permit conviction without a finding that the crime had even been consummated would so offend notions of due process and fundamental fairness in the criminal process as to warrant notice as plain error. See e.g. Berry v. State, 728 So.2d 568 (¶ 6) (Miss.1999).

¶ 9. The supreme court found fault with the instruction in Hornburger based on the highlighted language of the instruction to the effect that if the jury concluded that Hornburger committed only one element *965

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Related

Brassfield v. State
905 So. 2d 754 (Court of Appeals of Mississippi, 2004)
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802 So. 2d 113 (Court of Appeals of Mississippi, 2001)
Stevens v. State
784 So. 2d 979 (Court of Appeals of Mississippi, 2001)

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Bluebook (online)
771 So. 2d 961, 2000 WL 980200, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bland-v-state-missctapp-2000.