Brown v. State


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Docket Number: 2008-CT-00484-SCT
Linked Case(s): 2008-KA-00484-COA ; 2008-KA-00484-COA ; 2008-CT-00484-SCT
Supreme Court: Opinion Link
Opinion Date: 07-22-2010
Opinion Author: Carlson, P.J.
Holding: Reversed and remanded.
Additional Case Information: Topic: Murder - Defense theory jury instruction - Section 97-3-17(b)
Judge(s) Concurring: Waller, C.J., Graves, P.J., Dickinson, Randolph, Lamar, Kitchens, Chandler and Pierce, JJ.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY
Writ of Certiorari: yes
Appealed from Court of Appeals
Trial Court: Date of Trial Judgment: 07-24-2006
Appealed from: Hinds County Circuit Court
Judge: Winston Kidd
Disposition: Johnny Brown was convicted of murder and sentenced as a habitual offender to life imprisonment in the custody of the Mississippi Department of Corrections. From the Hinds County Circuit Court judgment of conviction and sentence, Brown appealed, and the Court of Appeals affirmed the trial court judgment.
District Attorney: Eleanor Faye Peterson
Case Number: 05-0-235
Note: This judgment reverses and remands a previous judgment by the Court of Appeals. See the original COA opinion at: http://www.mssc.state.ms.us/Images/Opinions/CO57067.pdf
  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Johnny Brown a/k/a Johnny Ray Brown a/k/a Johnny R. Brown




 PRO SE, DAVID NEIL McCARTY



  
  • Supplemental Brief
    		•
    Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL: JOHN R. HENRY, JR.  
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    Topic: Murder - Defense theory jury instruction - Section 97-3-17(b)
    Summary of the Facts: Johnny Brown was convicted of murder and sentenced as a habitual offender to life imprisonment. He appealed, and the Court of Appeals affirmed. The Supreme Court granted certiorari.
    Summary of Opinion Analysis: Brown argues that the trial court erred in refusing his requested jury instruction concerning the theory of accidental shooting. The evidence against Brown was legally sufficient to sustain the jury’s verdict finding Brown guilty of the murder. The evidence in favor of the State indicated the victim’s hands were under a blanket at the time the fatal shot was fired while she was lying in bed. A forensic scientist testified that his tests of the gunshot-residue kit generated by the autopsy of the victim revealed no gunshot residue on her hands, which would thus contradict Brown’s theory of an accidental shooting while Brown and the victim were struggling over the gun. Although the weapon involved in the victim’s killing was never recovered, there appears to be no question that the weapon was a .38 caliber pistol. The forensic scientist identified the projectile recovered from the scene as bearing a .38 caliber class, meaning that the projectile was fired from either a .38 caliber revolver or a .38 caliber semi-automatic weapon. Dr. Hayne testified that the cause of the victim’s death was “a contact penetrating gunshot wound to the right side of the head,” and that the manner of death was homicide. While the testimony of these witnesses would not support Brown’s theories of self-defense or accidental shooting in the killing of the victim, this fact is of no moment when considering the instructions of law to be given to the jury by the trial judge. Brown’s theory of accidental shooting is grounded in section 97-3-17(b), based on his testimony. Brown testified that, immediately prior to the shooting in the motel room, he was lying in the bed with his back to the victim when he suddenly felt the barrel of a pistol pressing on the back of his head. In the heat of the moment, he acted in self-defense by attempting to wrestle the pistol from her, but it accidently discharged. Through his requested jury instruction, Brown was trying to have the jury instructed, consistent with section 97-3-17(b), that if the jury found, among other things, that while he was in possession of the gun, he, in the heat of passion during the altercation, and without any deliberate design to cause the victim’s death, accidently fired the fatal shot through misfortune, upon sudden and sufficient provocation (the unexpected tussle with the victim over the gun), then the jury was to find him not guilty. Brown’s testimony on this point, if believed by the jury, met all the statutory elements of an accidental shooting. Whether or not a killing was the result of accident or misfortune is a question for the jury to decide after proper instruction. The trial judge’s reasoning in denying Brown’s jury instruction was that he already had given a self-defense instruction which had been submitted by the State. However, a criminal defendant has a right to assert alternative theories of defense, even inconsistent alternative theories. Thus, the trial court erred in refusing to instruct the jury on Brown’s theory that he accidentally had shot the victim.


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