Preview:

IN THE COURT OF APPEALS 12/03/96 OF THE STATE OF MISSISSIPPI
NO. 93-KP-01427 COA

TIMOTHY EDWARDS A/K/A TIMMY EDWARDS AND TOMMY EDWARDS A/K/A TOMMY L. EDWARDS A/K/A TOMMY LEE EDWARDS APPELLANTS v. STATE OF MISSISSIPPI APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-

TRIAL JUDGE: HON. HONORABLE ROBERT WALTER BAILEY COURT FROM WHICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANTS: PRO SE ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: CHARLES W. MARIS, JR. NATURE OF THE CASE: CRIMINAL - MANSLAUGHTER AND AGGRAVATED ASSAULT TRIAL COURT DISPOSITION: TIMOTHY EDWARDS FOUND GUILTY OF AGGRAVATED ASSAULT & SENTENCED TO 15 YEARS; TOMMY EDWARDS FOUND GUILTY OF MANSLAUGHTER & SENTENCED TO 20 YEARS. MANDATE ISSUED: 6/19/97

BEFORE THOMAS, P.J., DIAZ, AND SOUTHWICK, JJ. SOUTHWICK, J., FOR THE COURT:

Timothy Edwards and his brother, Tommy Edwards were indicted for aggravated assault and murder, respectively. Timothy was found guilty of aggravated assault and Tommy was found guilty of manslaughter. The Edwards brothers were tried together. They appeal their convictions arguing twelve points of error. Finding all of their issues without merit, we affirm. FACTS On May 13, 1993, two brothers, Timothy and Tommy Edwards, were at a barber shop in Meridian. Reginald and Eric Naylor, also brothers, stopped for a haircut. Reginald leaned in through the door of the shop, but did not enter, apparently because it was too crowded to wait. Timothy Edwards was in the barber's chair, while Tommy waited. Eric called Tommy out of the shop and began to question him about whether he was the person who had shot into Eric's house and car. After Tommy declared that he knew nothing about the shootings, Eric took a swing at Tommy. Thereafter, Tommy shot Eric twice, killing him. After Reginald Naylor saw that his brother had been shot, he fled the scene. Tommy and Timothy followed him, shooting at him as he ran down the street. Eric and Reginald had no weapons on them. DISCUSSION The appellants allege twelve points of error. In summary form, these arguments deal with jury instructions; the denial of motions for directed verdict, a new trial, and for a mistrial; alleged prosecutorial misconduct in closing arguments; exclusion of evidence of the deceased's prior violent behavior; sequestration of the jury; alleged deprivation of fundamental rights to a fair trial; and ineffective assistance of counsel. We will group the arguments for discussion purposes. 1. Were jury instructions D-2, D-3, and D-7 properly denied? Jury instructions are to be granted only where evidence has been presented which support the instruction. Lenard v. State, 552 So. 2d 93, 96 (Miss. 1989). There is objection to the denial of three different instructions. a. Instruction D-2 Tommy Edwards argues that instruction D-2 should have been granted and that the trial court's explanation for the refusal of instruction D-2 "constituted plain error." Instruction D-2 states: Evidence has been presented that the defendants acted in ignorance or on mistake of fact. "Ignorance" or "Mistake of Fact" is a defense to the commission of a crime provided that:

1. The mistaken belief is honestly held; and 2. the belief is of such a nature that the conduct would have been lawful and proper, had the facts been as they were believed to be; and 3. the mistaken belief is not the result of the negligence or fault of the defendants.

If the State has failed to prove from the evidence in this case beyond a reasonable doubt that the defendants acted with the knowledge of the true facts, then you shall find the defendants not guilty. The State objected to the instruction, stating that it was not supported by the evidence and that the final paragraph of the instruction did not designate what counts were involved. The court refused the instruction because it did not accurately state the law. Tommy Edwards argues that this instruction should have been given in light of the fact that the State charged that he did "wilfully, unlawfully, feloniously and of malice aforesaid kill and murder James Naylor." Tommy argues that he mistakenly believed that the deceased was carrying a weapon. The court allowed instruction S-2 which states: The Court instructs the Jury that to make a killing or an assault with a deadly weapon justifiable on the grounds of self defense, the danger to the Defendant must be either actual, present and urgent, or the Defendant must have reasonable grounds to apprehend the design on the part of the Victim to kill him or to do him some great bodily harm, and in addition to this he must have reasonable grounds to apprehend that there is imminent danger of such design being accomplished. It is for the jury to determine the reasonableness of the ground upon which the Defendant acts.

The supreme court has stated that "[w]here one jury instruction adequately covers the defendant's theory of self-defense, the trial court may properly refuse to grant a second instruction on the grounds that it is redundant or cumulative." Gossett v. State, 660 So. 2d 1285, 1295 (Miss. 1995); see also Cook v. State, 467 So. 2d 203, 210 (Miss.1985); Evans v. State, 457 So. 2d 957, 959 (Miss.1984). Jury instruction S-2 adequately instructed the jury that if it found Edwards was reasonable in fearing imminent danger, then killing with a deadly weapon was justifiable. The instruction given in the present case "did make self-defense applicable in the situation where [defendant] possessed a reasonable apprehension of imminent danger and the victim had the apparent ability to inflict harm." Gossett, 660 So. 2d at 1295. We find that the granted instruction adequately informed the jury of the consequences if Tommy had reasonably apprehended imminent danger, and that D-2 was unnecessary. b. Instruction D-3 Tommy argues that instruction D-3 should have been granted as a proper excusable homicide instruction. Instruction D-3 states:

The court instructs the jury that the killing of any human being by the act of another shall be excusable when committed by accident and misfortune or in the heat of passion or upon any sudden and sufficient provocation.

In this case if you shall find from the evidence, or have a reasonable doubt therefrom, that Tommy Lee Edwards in the heat of passion, brought on by sudden and sufficient provocation by James Eric Naylor, then it is your sworn duty to acquit Tommy Lee Edwards.

The acts that allegedly require the giving of such an instruction must fall within the requirements of Section 97-3-17, which defines three ways a homicide can be excusable: The killing of any human being by the act, procurement, or omission of another shall be excusable:

(a) When committed by accident and misfortune in doing any lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent; (b) When committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation; (c) When committed upon any sudden combat, without undue advantage being taken, and without any dangerous weapon being used, and not done in a cruel or unusual manner. Miss. Code Ann.

Download Timothy Edwards v. State of Mississippi.pdf

Mississippi Law