Brown v. State

768 So. 2d 312, 1999 WL 1103504
Court of Appeals of Mississippi·Decided December 7, 1999·No. 1999-KA-00058-COA·Published·Cited by 10 cases

Opinion

768 So.2d 312 (1999)

Cheryl BROWN a/k/a Cheryl Denise Brown, Appellant,
v.
STATE of Mississippi, Appellee.

No. 1999-KA-00058-COA.

Court of Appeals of Mississippi.

December 7, 1999.
Rehearing Denied March 28, 2000.

*314 Leslie C. Gates, Attorney for Appellant.

Office of the Attorney General by Jean Smith Vaughan, Attorneys for Appellee.

BEFORE SOUTHWICK, P.J., LEE, AND PAYNE, JJ.

SOUTHWICK, P.J., for the Court:

¶ 1. Cheryl Brown was convicted of murdering her husband by a Lauderdale County Circuit Court jury. She appeals alleging that the trial court erred in refusing to instruct the jury on the definition of deliberate design. We find that her argument is without merit and affirm the conviction.

FACTS

¶ 2. On August 16, 1997, Larry Brown and his wife, the appellant Cheryl Brown, attended a party. This would also be the day of Larry Brown's death. At the party the Browns began arguing; at some point Cheryl grabbed a knife and threatened Larry. Other party-goers intervened, and the knife was taken away. Immediately following the argument, Cheryl left the party and walked home. Not long after Larry followed in his car.

¶ 3. After arriving home, Cheryl apparently took a loaded 12-gauge shotgun and hid it in the bathroom. Larry's son, Marcus, was already home and placed a call to his aunt, Oren Chaney, at Cheryl's request. Cheryl spoke to Chaney and told her that "she better come get him or I am going to kill him." Chaney testified that she believed this to be an idle threat.

¶ 4. At this point, Larry returned home and the argument that had begun at the party resumed. Marcus was in his bedroom ironing clothes when he overheard Larry telling Cheryl to quit hitting him because he was lying down. Marcus also testified that he heard a bump against the wall that he thought was Larry pushing Cheryl. He also testified that he heard a "choking" sound that he assumed was Cheryl being choked by Larry. After the choking sound stopped, Marcus heard Cheryl say, "Let me go to the bathroom and get my stuff and I will leave." Larry responded, "Okay," and apparently let Cheryl up and went to the bedroom.

¶ 5. Marcus testified that he heard Cheryl go into the bathroom and close the door. He then heard what he thought was a giggle. Soon after Cheryl exited the bathroom, Marcus heard a shot. He went into the living room and found his father on the floor and saw Cheryl walking out the door. She apparently walked to a neighbor's house and from there telephoned the police. An officer examined Cheryl for physical trauma and was unable to find any marks that might have resulted from a struggle.

¶ 6. Marcus also testified that the argument between the Browns continued for at least two hours after Larry returned home from the party. At some point during this argument Larry got a knife which he used to cut the cord to one of the telephones in the house. Larry evidently often used a knife to cut the phone lines in the house. However, there was no indication that Larry used the knife to threaten Cheryl on this occasion. Also, Larry had in the past turned off the power to the house to keep Cheryl from playing music too loudly.

*315 ¶ 7. Defense counsel at trial appeared to be pursuing in his questions and statements a theory of self-defense. Cheryl Brown's testimony presented little factual basis for self-defense, but seemed an effort at demonstrating that the shooting was accidental. Other testimony may have adequately presented facts about the deceased's threats towards his wife, and a self-defense instruction was given. The jury was instructed on the crimes of murder and manslaughter. The jury reached a verdict of guilt for murder. Mrs. Brown appeals.

DISCUSSION

¶ 8. Cheryl Brown raises only the issue of whether the trial court erred in not instructing the jury as to the meaning of deliberate design. She alleges that this omission resulted in improper instructions on the difference between murder and manslaughter.

¶ 9. When examining jury instructions refused by the trial court, we look at the evidence from the view of the party requesting the instruction. Splain v. Hines, 609 So.2d 1234, 1239 (Miss.1992). A party has the right to have his theory of the case presented to the jury by instructions, provided that there is credible evidence that supports that theory. Alley v. Praschak Machine Co., 366 So.2d 661, 665 (Miss.1979). The lower court enjoys considerable discretion regarding the form and substance of jury instructions. The principal concern is that the jury was fairly instructed and that it understood each party's theory of the case. Rester v. Lott, 566 So.2d 1266, 1269 (Miss.1990). That means that no error exists in denying an individual instruction if the jury has been properly and fully instructed by the other instructions. Catchings v. State, 684 So.2d 591, 599 (Miss.1996).

¶ 10. Here Mrs. Brown offered this instruction:

The Court instructs the jury that the term "deliberate design" as used in these instructions, means an intent to kill without authority of law, not in necessary self-defense, and not formed in the heat of passion.

Part of the manslaughter instruction that was given said this:

The Defendant, Cheryl Brown, did unlawfully, but without any deliberate design to effect his death, did cause the death of Larry Brown by shooting him in the heat of passion, during an argument or within such time after an argument that passion had not time to cool....

The alleged problem of giving this manslaughter instruction but not the definition of "deliberate design" was that even if the jurors believed that she acted while in the heat of passion, they would have been required to convict so long as they also found that she acted with a deliberate design. In Brown's view of the law, an intentional killing can occur during heat of passion, and the jury needs to know that such an act is manslaughter, not murder. The evidentiary basis for the argument is that there was considerable evidence that earlier in the evening Mrs. Brown was saying that she was going to kill her husband, but that they also had a long-running and serious argument after that time. In Brown's view this intent could be overwhelmed by her anger to make the crime manslaughter.

¶ 11. The general issue of the interplay of manslaughter and deliberate design instructions has caused significant discussion and at times reversal in supreme court precedents. The earliest explanations for manslaughter are early indeed. The Mississippi High Court of Errors and Appeals explained that a homicide is not punishable as murder if the act was the result of heat of passion arising from anger that was so great as to overawe the will. Preston v. State, 25 Miss. 383, 387 (1853) (quoted in Windham v. State, 520 So.2d 123, 127 (Miss.1987)). That anger must have been induced by some "insult, provocation, or injury" that would produce in an ordinary *316 person the "highest degree of exasperation." Id. That anger may in the mind of jurors equate to malice towards the victim. When another instruction explains that murder is a homicide committed with malice or deliberation, there is a fine line that must be clearly drawn.

¶ 12. The indictment against Cheryl Brown charged that she "wilfully, unlawfully, and feloniously and with deli

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Brown v. State, 768 So. 2d 312, 1999 WL 1103504 (Mich. Ct. App. 1999).

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