Booze v. State

964 So. 2d 1218, 2007 WL 2703158
CourtCourt of Appeals of Mississippi
DecidedSeptember 18, 2007
Docket2006-KA-01004-COA
StatusPublished
Cited by6 cases

This text of 964 So. 2d 1218 (Booze 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
Booze v. State, 964 So. 2d 1218, 2007 WL 2703158 (Mich. Ct. App. 2007).

Opinion

964 So.2d 1218 (2007)

John W. BOOZE a/k/a John Booze, Appellant
v.
STATE of Mississippi, Appellee.

No. 2006-KA-01004-COA.

Court of Appeals of Mississippi.

September 18, 2007.

*1219 Imhotep Alkebu-Lan, attorney for appellant.

Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.

EN BANC.

ROBERTS, J., for the Court.

SUMMARY OF THE CASE

¶ 1. A jury sitting before the Madison County Circuit Court found John Booze guilty of aggravated assault. The circuit court sentenced Booze to twenty years with fifteen years to serve and five years of post-release supervision. Aggrieved, Booze appeals and claims: (1) the circuit court erred when it amended the indictment after the jury was empaneled, (2) the trial court erred when it denied a lesser-included instruction on simple assault, (3) the evidence was insufficient as a matter of law to convict on aggravated assault, and (4) the conviction was against the weight of evidence. We find that the circuit court erred when it declined to instruct the jury on the lesser-included offense of simple assault. As such, we reverse and remand this matter for a new trial.

FACTS

¶ 2. On July 15, 2005, John Booze and his girlfriend, Santanya Riley, walked to the Community Store in Canton, Mississippi. By chance, they encountered Joe Luckett. Riley and Luckett were once involved in a relationship. As will be shown, recollections varied at trial, but there is no doubt that Booze and Luckett got into a fight. At some point, Riley injected herself into the fray and struck Luckett in the head with several beer bottles.

¶ 3. The Madison County Grand Jury returned an indictment against Booze and charged him with aggravated assault in violation of Mississippi Code Annotated Section 97-3-7(2). Booze pled not guilty and proceeded to trial on March 30, 2006.

¶ 4. The prosecution called four people who testified as to their recollection of the altercation. According to Luckett, Booze walked up to him and, without provocation, spontaneously punched him in the face. Luckett testified that, shortly after the fight ensued, Riley hit him in the head with a beer bottle. When Reverend William Thornton tried to break up the fight, Riley hit Luckett with a second bottle. Luckett testified that Booze slammed him to the ground, held him in place, and instructed Riley to kill Luckett while she continuously hit him with beer bottles. Lastly, Luckett stated that Booze held him down, grabbed a broken bottle, and tried to stab him in the face.

*1220 ¶ 5. Reverend Thornton, the owner of the store, testified that Luckett purchased beer and left. A few minutes later, he heard some commotion and argument outside the store. When he went outside, he saw Booze and Luckett arguing and "bulldogging." He tried to break up the fight, but Booze and Luckett pushed him aside. When Booze and Luckett appeared to be cooling down, Riley came from behind him and struck Luckett with a beer bottle. However, on cross-examination, Reverend Thornton testified that, at one point, Luckett had Booze in a headlock and, at that moment, Riley hit Luckett with the bottle.

¶ 6. After Riley struck Luckett with a bottle, Reverend Thornton went back inside his store and called the police. As for whether Booze told Riley to hit Luckett with a bottle, Reverend Thornton testified that he never heard Booze call for help or otherwise instruct Riley to hit Luckett. In Reverend Thornton's words, "[Booze] had too much heat on him. He couldn't say nothing."

¶ 7. Dante Luckett, the owner of a restaurant located next to Thornton's store, testified that he was less than fifteen feet from the altercation. According to Dante, he saw Luckett and Booze fighting and "a girl came up and just hit this one fellow with a bottle twice." He stated that he saw most of the fight but did not see anyone fall to the ground. Additionally, he said he did not see Booze hold Luckett down. Likewise, he did not hear Booze say anything to Riley or otherwise ask her for help.

¶ 8. Cohisa Myers testified that she was inside Reverend Thornton's store when she heard a bottle break. She went outside to see what was happening. According to Myers, she saw Luckett and Booze fighting. At some point Luckett was on the ground "for a minute." By her recollection, Riley "came out of nowhere, and she was picking up bottles and hitting [Luckett] upside the head with it." However, she testified that she never heard Booze instruct Riley to hit Luckett. Additionally, she stated that Luckett and Booze continued fighting after Riley hit Luckett.

¶ 9. Booze took the stand and testified in his own defense. According to Booze, he and Riley were walking to the store when he stopped to talk to a relative. Riley continued on to the store. When he arrived at the store, he saw Luckett with his left hand around Riley's neck. Booze testified that Luckett choked Riley as he held a beer bottle in his right hand. Booze told Luckett to let Riley go. When Luckett refused to let go, Booze stated that he punched Luckett. In response, Luckett hit Booze with the bottle in his right hand. At that point, they grappled with one another and fell to the ground.

¶ 10. By Booze's description, he and Luckett traded punches and, out of nowhere, Riley intervened on her own and hit Luckett with a bottle. However, even after Riley intervened, he and Luckett continued to fight and throw punches. According to Booze, he never used a weapon and he did not know Riley was going to attack Luckett with a beer bottle. Booze further testified that he did not encourage Riley to hit Luckett with a beer bottle. Specifically, during direct examination, Booze testified as follows:

Q: What if any instruction did you give Santanya Riley before she struck Joe Luckett with the beer bottle?
A. None at all, sir. I had no idea she was fixing to do what she did. I didn't give her none. I was too busy tying [sic] to defend myself.
Q. What if anything did you see her do before she struck Joe Luckett with the beer bottle?
A. Nothing.
*1221 Q. Did you see her?
A. I really didn't see her, period, because I was too busy. His cousin was there. I thought both of them was really going to jump on me. So I was too busy trying to watch both of them. I had really practically have forgotten that she was even there.
. . . .
Q. What if anything did you do during this time period to restrain or hold Joe Luckett so that Santanya Riley could strike him with the beer bottles?
A. Really, I couldn't hold him, `cause he was getting out on me, you know. He was whipping me, to tell the truth.

¶ 11. As mentioned, the jury found Booze guilty of aggravated assault. Following unsuccessful post-trial motions for JNOV or, alternatively, for a new trial, Booze appeals.

ANALYSIS

I. WHETHER THE CIRCUIT COURT ERRED WHEN IT DECLINED TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSE OF SIMPLE ASSAULT.

¶ 12. Booze submitted a simple assault instruction and claimed he was entitled to the lesser-included offense instruction. The circuit court declined to instruct the jury that it could convict Booze for simple assault. Booze argues that by not including the lesser charge of simple assault in the jury instructions, the trial court committed reversible error.

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Cite This Page — Counsel Stack

Bluebook (online)
964 So. 2d 1218, 2007 WL 2703158, Counsel Stack Legal Research, https://law.counselstack.com/opinion/booze-v-state-missctapp-2007.