Phillips v. State

179 So. 3d 1218, 2015 Miss. App. LEXIS 556, 2015 WL 6690050
CourtCourt of Appeals of Mississippi
DecidedNovember 3, 2015
DocketNo. 2014-KA-00018-COA
StatusPublished
Cited by2 cases

This text of 179 So. 3d 1218 (Phillips 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
Phillips v. State, 179 So. 3d 1218, 2015 Miss. App. LEXIS 556, 2015 WL 6690050 (Mich. Ct. App. 2015).

Opinion

IRVING, P.J.,

for the Court:

¶ 1. This appeal ensued after ¿Washington County jury convicted Tony Phillips of simple assault on a correctional officer. Phillips challenges the sufficiency Of the circuit court’s instructions to the jury and the completeness of its Batson1 analysis.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Phillips, an inmate at the Washington County Regional Correctional Facility (WCRCF), was indicted for simple assault on a correctional officer after he attacked Officer Mose Harmon at the WCRCF.

¶ 4. During the jury-selection phase of Phillips’s trial, the State challenged four African American veniremembers, including a Ms. Hodo.2 After that, Phillips raised á Batson objection, which the circuit court overruled after the State provided race-neutral explanations for its challenges.

¶ 5. Phillips testified in his own behalf and sought to establish that the assault on Harmon had been an act of self-defense. He later submitted Instruction D-8, a self-defense instruction, which the circuit court gave. Without an objection from Phillips, the circuit court also gave Instruction S-l, an elements instruction.

¶ 6. After the conclusion of the evidence, the- jury convicted Phillips. He timely filed a post-trial motion, which the circuit court denied. This appeal ensued.

DISCUSSION

' I. Jury instructions

¶ 7. The standard of review for a trial court’s ruling with respect to jury instructions is well established:

Jury instructions are generally within the discretion of the trial courtE,] and the settled, standard of review is abuse of discretion. The instructions are to be read together as a whole, with no on© instruction to be read alone or taken out of context. When read together, if the jury instructions fairly state the law of the-case and create no injustice, then no reversible error-will be found, i-.. [A] defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the [trial] court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.

Bailey v. State, 78 So.3d 308, 315-16 (¶ 20) (Miss.2012) (internal citations and quotation marks omitted).

¶8. Phillips argues that Instructions S-l and D-8 failed to properly instruct the jury that the State bore the burden of proving that he did not act in self-defense. He also argues that in failing to so instruct the jury, the circuit court allowed the jury to believe that he bore the burden of proof. In response, the State argues that this issue is- procedurally barred. In the alternative, the State argues that (1) the jury was properly instructed on the elements of simple assault on a correctional officer, and (2) proof that the defendant was not acting in self-defense at the time of the offense, is not one of the elements. The State also argues that the jury was properly instructed as to the State’s burden of proof.

¶ 9. We agree with the State that this issue is procedurally barred because, during trial, Phillips failed to'object to Instructions S-l and D-8, and he failed to [1221]*1221raise this issue in his post-trial motion. See King v. State, 857 Sq.2d 702, 720-27 (¶ 84) (Miss.2003). Acknowledging this failure, Phillips, citing Berry v. State, 728 So.2d 568 (Miss.1999), asks this Court to “address the issue as plain error because [a] procedural bar does not apply where ... the trial court adopt[ed] an instruction that did not fully instruct the jury on-the elements of the crime [charged].” However, as discussed below, Berry is inapplicable to the facts of this case.

¶ 10. In Berry, the defendant,- along with another individual, was indicted for the transfer of cocaine. Id. at 569 (¶ 1). During trial, without an objection from the defendant, the-trial court gave Instruction S-3, which purported to define accessory. The instruction provided:

[E]ach person present at the time, and consenting to and encouraging the'commission of á crime, and knowingly, will* fully[,3 and feloniously doing any act which is an element of the crime, or immediately connected with' it, or leading to its commission, is á principal. One who aids, assists[,] and encourages a transfer of cocaine is a principal and not an accessory, and his guilt in nowise depends upon the guilt or innocence, the conviction[,] or . acquittal of any other alleged participant in the crime. There.fore if you believe from the evidence, beyond a reasonable doubt, that [the defendant] did willfully, unlawfully[,] and feloniously do any .act which is an element of the crime of transfer of cocaine, as defined by the [c]ourt’s instructions, or immediately connected with it,, or leading to its commission, then and in that event, you should find [the-defendant] guilty of transfer of cocaine as charged in the indictment. :

Id. at 570 (¶ 4) (emphasis added); After a jury convicted her, the defendant appealed, arguing, among other things, that Instruction S-3 did “not require the jury to find that the crime was actually completed” and, therefore, “unconstitutionally relieve[d] the State of its burden to prove every element of the ‘crime beyond a reasonable doubt.” Id. at 571 (¶ 5). On appeal, the Mississippi Supreme Court noted that, “[o]rdinarily,‘[the] failure to object to a given instruction at trial results in a procedural bar on appeal, unless its granting amounts to -plain error.” Id. at (¶ 6). There, bur supreme court found that “the granting of Instruction S-3 amount[ed] to plain errorf] because the jury, was not fully .instructed on-the elements of the crime” of accessory and that-the failure of a trial court “to submit to the jury the -essential elements of the crime is fundamental error.” Id. The Berry court was clear that, although other instructions informed the jury of the elements of the crime and of the State’s burden of proof, the problem with Instruction 'S-3 was that it was “confusing and’ misleading” in that “it appeared] to give the jury an additional option of finding the defendant guilty if she committed' only one element of the crime without even finding that the crime was ever completed.” Id. at (¶ 9).

¶ 11. .Here, to convict Phillips of simple assault on a correctional officer, the State had to prove beyond a reasonable doubt that while Officer Háímon was acting within the scope of his duty as a law enforcement officer, Phillips

[ (1) ] attempted] to cause or purposely, knowingly[,] or recklessly eause[d] bodily injury to [Officer Harmon];
[ (2) ] negligently cause[d] bodily injury to [Officer Harmon] with a deadly weapon or other means -likely to- produce death or serious bodily harm; or
[(3)’] attempted] by physical menace . to put [Officer Harmon] in fear of imminent serious bodily harm.

[1222]*1222Miss.Code. Ann. § 97-3-7(1)(a), (14) (Rev.2014).

¶ 12. Instruction S-l stated:

The [c]ourt instructs the jury that the defendant, _ Tony Phillips,, has been charged with the offense of simple assault upon a law enforcement officer.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Vernell Daven Miskell v. State of Mississippi
230 So. 3d 345 (Court of Appeals of Mississippi, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
179 So. 3d 1218, 2015 Miss. App. LEXIS 556, 2015 WL 6690050, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phillips-v-state-missctapp-2015.