Reynolds v. State

776 So. 2d 698, 2000 WL 761001
CourtCourt of Appeals of Mississippi
DecidedJune 13, 2000
Docket1998-KA-01343-COA
StatusPublished
Cited by3 cases

This text of 776 So. 2d 698 (Reynolds 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
Reynolds v. State, 776 So. 2d 698, 2000 WL 761001 (Mich. Ct. App. 2000).

Opinion

776 So.2d 698 (2000)

Vickie McKay REYNOLDS a/k/a Vickie Darlene McKay, Appellant
v.
STATE of Mississippi, Appellee.

No. 1998-KA-01343-COA.

Court of Appeals of Mississippi.

June 13, 2000.
Rehearing Denied November 14, 2000.
Certiorari Denied January 25, 2001.

*699 Mose Lee Sudduth, Jr., Columbus, for Appellant.

Office of the Attorney General by Charles W. Maris, Jr., for Appellee.

EN BANC.

KING, P.J., for the Court:

¶ 1. A Lowndes County Circuit Court jury convicted Vickie McKay Reynolds of manslaughter. Having been adjudicated an habitual offender Reynolds was sentenced to serve twenty years without the possibility of parol or probation. She appeals arguing: 1) the lower court committed reversible error for failing to give or put in proper form appellant's theory of defense; 2) the lower court erred in allowing appellant's prior conviction for grand larceny to be used by the State for impeachment purposes and allowing improper impeachment by the State; 3) the lower court erred in allowing the State to strike black jurors off the venire panel without valid race-neutral reasons; and 4) the lower court erred by refusing appellant's requested instruction D-7. Finding prejudicial error occurred when the trial court failed to grant Reynolds's instruction D-7, a "no retreat" instruction, we reverse and remand.

FACTS

¶ 2. On July 22, 1997, Reynolds lived with her children and mother at the mother's home in Columbus. Also living in the house were Reynolds's sister, Teresa Bryant, Bryant's children, and Bryant's boyfriend, Charles White, the victim in this case. On that evening, White, who was intoxicated, was being abusive towards Bryant. As Reynolds and Bryant walked through the house, White "swung past" Reynolds and struck Bryant. White then reached towards a table, which held a telephone and a steak knife. Unsure of which one White was attempting to pickup, Reynolds, grabbed the knife. White then grabbed the telephone, and lunged towards Reynolds. In the ensuing confusion, White suffered a fatal chest wound, approximately three and one-half inches deep. Reynolds testified that she did not remember stabbing White.

ANALYSIS

The trial court committed error in refusing to grant Reynold's "no retreat" self-defense instruction.

¶ 3. Reynolds argues that the trial court erred in failing to grant her proposed jury instruction D-7, a "no retreat" instruction. The State contends that having failed to object to the refusal of the instruction, Reynolds is now procedurally barred from raising this issue. This contention is an incorrect statement of the law. Litigants are not required to object to the denial of instructions which they have offered. The issue of improper denial is preserved by tendering the instructions and asking that they be given. Duplantis v. State, 708 So.2d 1327, 1339-40 (Miss.1998). Neither is it necessary to renew the objection in a motion for new trial. Jackson v. State, 423 So.2d 129, 131-32 (Miss.1982). Accordingly, there is no procedural bar to this issue.

¶ 4. Reynolds asked for a "no retreat" or "flight" self-defense instruction *700 which was denied by the trial court. Reynolds's proposed instruction was as follows:

The court instructs the jury that while the danger which will justify the taking of another's life must be imminent, pending, and present, such danger need not be unavoidable except by killing in self-defense. The Defendant, Vickie McKay, need not have avoided the danger to her person presented by the deceased, Charles White, by flight. So long as the defendant was in a place where she had the right to be and was not the immediate provoker and aggressor, she may stand her ground without losing the right of self-defense.

¶ 5. "It has always been the law in this state that a defendant is not deprived of the right to claim self-defense in a slaying even if he could have avoided the threat to his safety by fleeing." Haynes v. State, 451 So.2d 227, 229 (Miss.1984).

Flight is a mode of escaping danger to which a party is not bound to resort, so long as he is in a place where he has a right to be, and is neither engaged in an unlawful, nor the provoker of, nor the aggressor in, the combat. In such case he may stand his ground and resist force by force, taking care that his resistance be not disproportioned to the attack.

Cook v. State, 467 So.2d 203, 210-11 (Miss. 1985) (quoting Long v. State, 52 Miss. 23, 34 (1876)).

¶ 6. Reynolds was in her residence, where she had a right to be, and was neither the provoker or aggressor. She was accordingly entitled to remain there, and defend herself from attack, provided the defense was not disproportionate to the attack. Whether a steak knife was disproportionate to assault by telephone is a question of fact for the jury.

¶ 7. Central to determining this issue of proportionality is whether a telephone is a deadly weapon. The determination of what is a deadly weapon is frequently a matter of fact, rather than law. The Mississippi Supreme Court has held that items not ordinarily considered deadly weapons, can constitute deadly weapons if used with means or force likely to produce death. Pulliam v. State, 298 So.2d 711, 713 (Miss. 1974) (citing Johnson v. State, 230 So.2d 810 (Miss.1970)). Whether White's intended use of a telephone could constitute a deadly weapon if used with means or force likely to produce death involves a question of fact to be decided by the jury in light of the evidence. "The responsibility for determining the likelihood remains with the jury which is left free to give due weight to the characteristics of the parties, the place, the manner in which the item is used, and the degree of force employed." Jackson v. State, 594 So.2d 20, 24 (Miss.1992). See also Wade v. State, 724 So.2d 1007 (Miss. Ct.App.1998).

¶ 8. Recognizing these as matters of fact to be determined by the jury, Reynolds requested that the trial court instruct the jury of her right to engage in self-defense proportionate to the then existing danger and attack. This request was refused. We hold this refusal to have been error.

¶ 9. "In homicide cases, the trial court should instruct the jury about a defendant's theories of defense, justification, or excuse that are supported by the evidence, no matter how meager or unlikely, and the trial court's failure to do so is error requiring reversal of a judgment of conviction." Manuel v. State, 667 So.2d 590, 593 (Miss.1995) (citing Hester v. State, 602 So.2d 869, 872 (Miss.1992)). "The issue of justifiable self-defense presents a question of the weight and credibility of the evidence rather than sufficiency and is to be decided by the jury." Meshell v. State, 506 So.2d 989, 991-92 (Miss.1987).

¶ 10. In response to this issue the State contends that the "no retreat" instruction was not warranted by the facts of the case because Reynolds never testified that she stabbed White in self-defense, but testified, she could not remember intentionally stabbing him. It is the State's *701 position that since Reynolds did not remember intentionally stabbing White, she cannot argue the right to stand and defend herself or others, because "not knowing" and self-defense are two different defenses.

¶ 11. Whether White was killed as a result of an intentional stab wound, or from falling on the knife, is of no import.

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776 So. 2d 698, 2000 WL 761001, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reynolds-v-state-missctapp-2000.