Harris v. State

878 So. 2d 90, 2003 Miss. App. LEXIS 844, 2003 WL 22129466
CourtCourt of Appeals of Mississippi
DecidedSeptember 16, 2003
DocketNo. 2002-KA-00044-COA
StatusPublished
Cited by3 cases

This text of 878 So. 2d 90 (Harris 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
Harris v. State, 878 So. 2d 90, 2003 Miss. App. LEXIS 844, 2003 WL 22129466 (Mich. Ct. App. 2003).

Opinions

BRIDGES, J.,

for the Court.

¶ 1. Tracy Harris was indicted on March 30, 1999, by the grand jury of the Circuit Court of the Second Judicial District of Bolivar County, Mississippi. The indictment charged him with the murder of Frederick Haywood in violation of Mississippi Code Annotated section 97-3-17 (Rev.2000). On April 6, 1999, Harris was arraigned and entered a plea of not guilty.

¶ 2. On June 10-11, 1999, Harris was tried before a jury and was found guilty of murder and received a life sentence in the custody of the Mississippi Department of Corrections. It is from this conviction and sentence that Harris now appeals to this Court.

STATEMENT OF THE ISSUES

I. DID THE TRIAL COURT ERR IN REFUSING TO GRANT INSTRUCTION D-2 AS REQUESTED BY HARRIS?

II. DID THE TRIAL COURT ERR IN ALLOWING THE PROSECUTION TO USE THREE OF ITS PEREMPTORY CHALLENGES IN A RACIALLY DISCRIMINATORY MANNER?

III. DID THE TRIAL COURT’S FAILURE TO GIVE A SUA SPONTE CAUTIONARY INSTRUCTION CONSTITUTE REVERSIBLE ERROR?

FACTS

¶ 3. On the night of March 27, 1998, Frederick Haywood, Anthony O’Bryant, and Algesa Haywood arrived at the American Legion Hut (“the Hut”) in Mound Bayou, Mississippi. Already at the Hut were Joe Smith, Nakil O’Bryant, Willie Morgan, and the Appellant, Tracy Harris.

¶ 4. Larry Haywood, also known as “Slug”, walked into the Hut. Moments later when he exited, he was immediately hit in the head with a gun by Joe Smith. Frederick Haywood walked to a Ford Explorer to get a bat. It was then that Nakil O’Bryant and Willie Morgan began shooting at the Ford Explorer. According to testimony, Harris reached over the shoulder of Nakil to retrieve the gun while [92]*92stating, “You ain’t shooting this M.F. right” and began shooting until Frederick Haywood fell to the ground. Harris then ran across the street and jumped in a ditch.

¶ 5. Several of the witnesses from the night in question agreed to testify at trial. Anthony O’Bryant testified that he was at the American Legion Hut on the night of the shooting and that he remembered hearing Harris say to Morgan that he was not firing the handgun properly. Anthony O’Bryant also testified to seeing Harris take the gun from Morgan, who was shooting into the air at the time, level it and begin shooting at Frederick Haywood.

¶ 6. Algesa Haywood also testified at trial and identified Harris as the person who shot Frederick Haywood. Algesa also stated that Harris took the gun from Morgan, and then “aimed at him and Fred fell.” Algesa also corroborated the testimony of Anthony O’Bryant in hearing Harris say to Morgan, “You ain’t shooting it right.”

¶ 7. Ronald Robinson, chief of police in Mound Bayou, testified to finding Frederick Haywood with a bullet wound in his chest. Robinson also found a handgun in a ditch nearby and four cartridge shells were found at the scene of the shooting. At the autopsy, a bullet was recovered from the body of Frederick Haywood, which was labeled, packaged and sent to the crime laboratory for testing. Dr. Steven Hayne, who performed the autopsy on Frederick Haywood, testified that Haywood died from a gunshot wound to his upper chest and a .45 caliber bullet was removed from his body.

¶ 8. Steve Byrd from the Mississippi State Crime Laboratory testified that the bullet was fired from the .45 caliber semiautomatic handgun that was found near the scene of the shooting. Nakil O’Bryant later testified and identified the handgun as belonging to him and that the same gun was the one taken out of his truck by Morgan while at the American Legion Hut.

¶ 9. Harris decided to testify in his own behalf and began by saying that he did take the handgun but he denied having argued with the victim or having shot at him or anyone else. He also denied having told anyone that he shot Haywood. (He originally told investigators that he took the handgun from Morgan.)

¶ 10. After he was found guilty, Harris filed a motion for a JNOV. Harris’s motion was denied by the trial court.

ANALYSIS

I. DID THE TRIAL COURT ERR IN REFUSING TO GRANT INSTRUCTION D-2 AS REQUESTED BY HARRIS?

¶ 11. During jury instruction selection, the defense requested jury instruction D-2, which was later rejected by the trial court. Harris felt he was entitled to an instruction that included the phrase, “in the heat of passion.” Consequently, the trial court found that there was a lack of evidence that Harris had acted in the heat of passion without malice aforethought. The trial court, however, did grant an alternative instruction which covered manslaughter. In this lesser-included-offense instruction for manslaughter, the phrase used was “the killing of a human being without malice, by use of a dangerous weapon, without authority of law is manslaughter.”

¶ 12. “In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” John[93]*93son v. State, 823 So.2d 582, 584(¶ 4) (Miss. Ct.App.2002).

¶ 13. In Murphy v. State, 566 So.2d 1201, 1206 (Miss.1990), the court held that a defendant was not entitled to an instruction which incorrectly stated the law, was without foundation in the evidence or was stated elsewhere in another instruction.

A defendant is entitled to have an instruction on his theory of the case. There is a limitation, however, because a trial judge may refuse an instruction which incorrectly states the law, is without foundation in the evidence, or is stated elsewhere in the instruction.

Id. (citations omitted).

¶ 14. The trial court did not err in denying jury instruction D-2 since instruction C-30 sufficiently covered a lesser-in-eluded-offense instruction for manslaughter. The evidence from the record shows that there was no claim of acting in the heat of passion by Harris or his own witnesses. Harris’s own testimony was that he had no confrontation with the victim, and he did not shoot at anyone. Harris had possession of the handgun used in the shooting only after someone else had allegedly fired it at the victim. However, the record reflects an abundance of corroborated eyewitness testimony that Harris deliberately and intentionally used a dangerous weapon, a handgun, to shoot and kill the victim. When reading the instructions actually given as a whole, this Court finds that the “instructions fairly announce the law of the case and create no injustice.” Therefore, the Court finds this issue is without merit.

II. DID THE TRIAL COURT ERR IN ALLOWING THE PROSECUTION TO USE THREE OF ITS PEREMPTORY CHALLENGES IN A RACIALLY DISCRIMINATORY MANNER?

¶ 15. “On review, the trial court’s determinations under Batson are afforded great deference because they are, in large part, based on credibility.” McGilberry v. State, 741 So.2d 894, 923 (¶ 118) (Miss.1999) (citing Coleman v. State, 697 So.2d 777, 785 (Miss.1997)). “This Court will not reverse any factual findings relating to a Batson challenge unless they are clearly erroneous.” Id.

¶ 16. The State exercised peremptory challenges against four black veniremen. Harris alleges that the State made its strikes on the basis of race.

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Bluebook (online)
878 So. 2d 90, 2003 Miss. App. LEXIS 844, 2003 WL 22129466, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harris-v-state-missctapp-2003.