Gause v. State


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Docket Number: 2010-KA-00127-SCT
Linked Case(s): 2010-KA-00127-SCT

Supreme Court: Opinion Link
Opinion Date: 06-23-2011
Opinion Author: Chandler, J.
Holding: Affirmed in part, reversed and rendered in part.

Additional Case Information: Topic: Manslaughter & Burglary - Lesser-included offense instruction - Lesser offense instruction - Voir dire of expert - Jury selection - Section 13-5-25
Judge(s) Concurring: Waller, C.J., Carlson and Dickinson, P.JJ., Randolph, Lamar, Pierce and King, JJ.
Judge(s) Concurring Separately: Kitchens, J., Specially Concurs With Separate Written Opinion Joined by Waller, C.J., Carlson and Dickinson, P.JJ., Randolph, Lamar and Pierce, JJ.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 12-11-2009
Appealed from: Pontotoc County Circuit Court
Judge: Thomas J. Gardner
Disposition: Appellant was found guilty of manslaughter and burglary, and sentenced to twenty years for manslaughter, and to twenty-five years for burglary, with fifteen years suspended and five years on post-release supervision, to run consecutively.
District Attorney: John Richard Young
Case Number: 2009-164

  Party Name: Attorney Name:  
Appellant: Curtis Wayne Gause




OFFICE OF INDIGENT APPEALS: JUSTIN TAYLOR COOK



 

Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL: JEFFREY A. KLINGFUSS  

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Topic: Manslaughter & Burglary - Lesser-included offense instruction - Lesser offense instruction - Voir dire of expert - Jury selection - Section 13-5-25

Summary of the Facts: Curtis Gause was convicted of manslaughter and burglary. He was sentenced to twenty years for manslaughter, and to twenty-five years for burglary, with fifteen years suspended and five years on post-release supervision. He appeals.

Summary of Opinion Analysis: Issue 1: Lesser-included offense instruction Gause was indicted in a two-count indictment for the crimes of capital murder with the underlying felony of burglary and aggravated assault. The trial court granted the State’s jury instruction that if the jury did not find Gause guilty of capital murder, they were to consider the charge of murder; if they did not find murder, they were to consider manslaughter; and if they found him guilty of manslaughter, then they were to consider whether he was also guilty of burglary with the intent to commit an assault. Gause objected to this instruction at the jury-instruction conference, arguing that burglary is not a lesser included offense of capital murder. The State argued that burglary is a lesser-included offense of capital murder with the underlying felony of burglary. The court granted the instruction, and Gause argues this was error. An accused could not be guilty of the offense for which he is indicted without at the same time being guilty of the lesser included offense. The lesser included crime is encompassed within the crime for which the accused is indicted. To constitute a lesser-included offense, every one of the essential ingredients must also constitute essential ingredients of the more serious crime of which the accused is indicted. There is a crucial difference between a jury instruction on a lesser-included offense, which either the State or the accused may request, and an instruction on a lesser offense, which only the accused may request. It is undisputed that Gause was entitled to a heat-of-passion manslaughter instruction, based on the evidence. By statute, manslaughter is a lesser-included offense of capital murder, and the jury may be instructed on manslaughter upon request of any party or upon the court’s own motion, where the instruction is supported by the evidence, consistent with the wording of the applicable manslaughter statute. Gause argues that the jury should not have been given a pure burglary instruction, because he was not indicted for burglary, and burglary is not a lesser-included offense of the indicted crime of capital murder with the underlying felony of burglary. In his argument, Gause posits that manslaughter in the course of a burglary would be capital murder because capital murder does not require intent to kill, but only that a killing have occurred during the commission of an enumerated felony. Therefore, he argues, the instruction that permitted the jury to find both manslaughter and burglary was erroneous. The State argues that, because there was an evidentiary basis for a pure burglary instruction, the instruction was proper. This argument implicates the standard for granting a lesser-offense instruction, as opposed to a lesser-included-offense instruction. Because an indictment provides notice to the defendant of any lesser-included offenses, the State is entitled to a jury instruction on any lesser-included offenses for which there is an evidentiary basis. In contrast, a lesser offense, also called a lesser-nonincluded offense or a lesser-related offense, arises from the same nucleus of operative fact as the charged offense, but its elements are not necessarily contained in the charged offense. The defendant may request an instruction regarding any offense carrying a lesser punishment if the lesser offense arises out of a nucleus of operative fact common with the factual scenario giving rise to the charge laid in the indictment. An accused is entitled to a lesser-offense instruction only where there is an evidentiary basis in the record. Because the defendant’s request of a lesser-offense instruction operates as a waiver of the notice requirement, only the accused, and not the State, may obtain a lesser-offense instruction. Gause’s indictment did not charge him with the elements of burglary. And, burglary is not a lesser-included offense of capital murder. The State was not entitled to a lesser-offense instruction, because only the accused may request that the jury be instructed on a lesser offense, which operates as a waiver of notice in the indictment. Thus, the court erred in granting the instruction, and Gause’s conviction of burglary is reversed and rendered. Issue 2: Voir dire of expert Gause argues that the trial court abused its discretion by prohibiting his voir dire of Dr. Steven Hayne, the forensic pathologist who performed the autopsy of the victim. Gause’s initial voir dire request was coupled with a challenge to Dr. Hayne’s ability to testify. The trial court’s ruling shows the court rejected Gause’s challenge to Dr. Hayne’s ability to testify. After the State elicited testimony from Dr. Hayne that established his education and work history, the trial court expressly afforded Gause an opportunity to voir dire Dr. Hayne as to his qualifications. However, Gause refused on the ground that his understanding of the court’s earlier ruling was that voir dire would not be permitted. Instead, Gause either could have taken advantage of the trial court’s offer of voir dire, or asked the trial court to clarify its earlier ruling. Therefore, this assignment of error is without merit. Issue 3: Jury selection Gause argues that the trial court committed reversible error by excusing two potential jurors because they had served on a jury in the past two years, rather than permitting those jurors the discretion to decide whether or not to serve. He argues that the trial court erred by excusing the potential jurors, because section 13-5-25 provides a personal privilege for persons who have served within the past two years that must be claimed by the potential juror. In order for a potential juror to be excused under section 13-5-25, the individual juror must assert the privilege and ask to be excused. Thus, it is improper for a trial court automatically to exclude potential jurors on the basis of their prior jury service within the past two years. However, this issue is procedurally barred because Gause did not contemporaneously object to the composition of the jury, and he raises this issue for the first time on appeal. Also, Gause makes no claim of constitutional error, nor does he explain how he was prejudiced by the dismissal of the two potential jurors.


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