Opinion
No. 2001-KA-00656-SCT Consolidated With Nos. 2001-KA-00507-SCT, 2001-KA-00665-SCT.
February 20, 2003. Rehearing Filed March 21, 2003.
COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT, TRIAL JUDGE: HON. JOHN T. KITCHENS, DATE OF JUDGMENT: 2/23/2001
DISPOSITION: REVERSED AND REMANDED
COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT JUDGE: HON. JOHN T. KITCHENS, DATE OF JUDGMENT: 2/23/2001
DISPOSITION: REVERSED AND REMANDED
COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT, TRIAL JUDGE: HON. JOHN T. KITCHENS, DATE OF JUDGMENT: 2/23/2001
DISPOSITION: REVERSED AND REMANDED — 02/20/2003
ATTORNEY FOR APPELLANT: DAN W. DUGGAN, JR.
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART
DISTRICT ATTORNEY: RICHARD D. MITCHELL
ATTORNEY FOR APPELLANT: MICHAEL V. WARD
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART
DISTRICT ATTORNEY: RICHARD D. MITCHELL
ATTORNEY FOR APPELLANT: CYNTHIA HEWES SPEETJENS
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART
DISTRICT ATTORNEY: RICHARD D. MITCHELL
EN BANC.
¶ 1. Brothers Billy Ray (Bill), Jason, and Charlie Harris were indicted separately and tried together for the murder of Ronnie Travis. A jury seated in the Circuit Court of Madison County returned a guilty verdict against each for depraved-heart murder, as codified in Miss. Code Ann. § 97-3-19(1)(b) (2000). They were each sentenced to life imprisonment without parole. From these judgments, they take this consolidated appeal.
FACTS
¶ 2. According to all the witnesses, the Windy City Club in Madison County was packed the night of November 7, 1999. That night at the club, Enell Weatherspoon catered a birthday party for her friend, Joan Booze. Booze's cousin and her cousin's boyfriend, Ronnie Travis, were in attendance. Also present at the club were the Harris brothers: Charlie, Jason, and Bill. While testimony differed as to which person was the initial aggressor, a fistfight started inside the club between Ronnie Travis and Bill Harris. The fight spilled out the front door onto the street outside the club where Jason and Charlie Harris joined it. Several spectators watched the fight until gunshots were heard, and most took cover. At the conclusion of the fight, Ronnie Travis lay in the ditch across the street from the club. A passing motorist took Travis to the hospital. The Harrises fled the scene in a gold Cadillac. Travis died almost a day later due to cerebral trauma secondary to blunt force trauma; his head had been struck with sufficient force to cause the brain to swell to the extent that his body stopped performing basic functions.
¶ 3. An investigator from the Madison County Sheriff's Office arrived at the hospital after Travis had been taken there. He was told en route that Travis had been shot and acquired the names and telephone numbers of several people at the hospital who mistakenly believed Travis had been shot by Charlie Harris. Next, he went to the scene of the fight and took pictures. He observed a trail of blood drops leading from the Windy City Club across the street to the ditch where a large pool of blood had collected. He found a bloody white shirt in the street which belonged either to Travis or a bystander who had used it to wrap Travis's bleeding head before he was taken to the hospital. He also saw numerous spent bullet casings scattered about the Windy City parking lot, but none in the ditch. The investigator concluded from what he had been told at the hospital and the evidence at the scene that the Harris brothers were the perpetrators of what, at the time, was an aggravated assault. He verified that Charlie owned a gold Cadillac and worked at an automobile dealership in Jackson. He arrested Charlie Harris the following day at work.
No tests were conducted on any blood on the ground or shirt, nor were tests conducted on Charlie Harris's gun or any bullet casings found at the scene.
¶ 4. On the way back to Madison County, Charlie Harris was informed of his Miranda rights and agreed to speak with the investigator about the events of the prior evening. During this conversation, Charlie denied shooting Ronnie Travis, but admitted that he had fought with him. The next day, Jason and Bill voluntarily surrendered to the Madison County Sheriff. They were also informed of their Miranda rights and agreed to speak with the investigator about the incident with Travis. Bill told the investigator, "I got to fighting with some boys in the club. One of them hit me with a gin bottle. The fight moved outside. I was on top of the boy in the ditch. Some other boys went to get their guns out of the trunk. I ran to the car and they were shooting at us." Bill did not see Travis with a gun. Jason told the investigator, "Me . . . Bill and Charlie were sitting at the table. Ronnie came over to the table and asked Bill something. Ronnie hit Bill with a bottle. I went outside fighting. I was kicking him." When Ronnie Travis died of his injuries, the three brothers were indicted for depraved-heart murder.
¶ 5. At trial, the State called four witnesses: the state pathologist, the investigating officer, Weatherspoon, and Booze. The pathologist testified as to the cause of Ronnie Travis's death. Specifically, he stated that the bruises and injuries to Travis's body were inconsistent with being struck by solid objects such as a piece of wood, but favored a conclusion that Travis was struck by an elbow, fist or possibly a shod foot. He stated that it was unlikely Travis would be conscious after sustaining the injuries which killed him. The medical examiner stated conclusively that Travis had not been shot. During his cross-examination, the State objected on relevance grounds to a question concerning non-surgical scars found on Travis's body. The trial court sustained the objection, and the issue was not pursued further.
¶ 6. The investigator with the Madison County Sheriff's Office testified about the information he gathered in the course of his investigation, as summarized above. He also testified concerning the brothers' statements made after arrest.
¶ 7. Enell Weatherspoon testified that Ronnie Travis was sitting with her cousin at her table in the club when Bill Harris walked up and jabbed Travis in the face with his fingers. Bill then grabbed a full bottle of gin off her table and attempted to hit Travis with it. She stated Travis took the bottle from Bill but lost control of it, and it burst when it struck the ground. The fistfight erupted, and Travis had the upper hand when the fight and the crowd of observers moved outside. There, Bill Harris was assisted by his brothers. They grabbed Travis by his arms and took him across the street into the ditch where they repeatedly kicked him. When some observers tried to help Travis, Bill Harris pulled a gun from his boot and "started shooting into the crowd." Weatherspoon took cover beside her car, which was parked in front of Windy City, and saw others flee inside the club. The brothers returned to kicking Travis, who was "balling up like this in the ditch, trying to keep them from kicking him in his face." When the passing motorist stopped and helped Travis, Bill Harris fired his gun down the highway at the car as it drove away. No one else was involved in the fight; all three brothers were larger physically than Travis; and Weatherspoon did not see the Harrises drive away nor anyone shoot at them in the gold Cadillac. Weatherspoon soon followed the motorist to the hospital and told the investigator about the event. She was not interviewed nor was her statement taken until December of the following year.
¶ 8. Joan Booze observed Bill Harris and Ronnie Travis fighting inside the club. Once the fight moved outdoors, she saw Ronnie Travis take off his shirt. She also saw the three Harris brothers kicking and beating Travis in the ditch across the street. She heard a gunshot come from the area of the ditch, but she backtracked from a statement she made to the investigator earlier that one of the Harris boys had a gun. She did not see them with a gun that night nor did she see one of them shoot back at the crowd.
¶ 9. The defendants called four witnesses to testify at trial: a radiologist, Arthur Black, Margie Brooks, and Charlie Harris. The sum of the radiologist's testimony was that Ronnie Travis could have sustained the injuries which killed him prior to the fight that night at Windy City. He testified his conclusion was reached after examining the records of the autopsy performed on Travis's body, the hospital records, and one x-ray radiograph taken of Travis's head before he died. He compared Travis's case to one where a boxer dies days after a fight due to injuries sustained in the fight.
¶ 10. Arthur Black testified that he was related to both Ronnie Travis and the Harris brothers and had spoken to Travis right before the fight began. Before he testified about what he heard Travis say moments before the fight began, the State objected, and the jury was excused to resolve an issue of hearsay. Black had previously given a written statement to defense counsel alleging Ronnie Travis said, among other things, "F— it, man, let's get it on" just before the fistfight began. The trial judge excluded any testimony Black might offer with regard to what Travis specifically said that night. When the jury returned, Black testified that when he spoke to Travis, he was standing between Travis and the table where the Harrises were seated. Travis had nothing in his hands at the time. Travis made a sudden motion in front of Black and then reached for something behind him. When Travis made a motion above his head, Black threw his hands up and their hands hit. Black heard a bottle break on the floor behind him. He concluded Travis had picked up a bottle from the table behind him. He then heard the Harris brothers rise from their table and a general commotion happening around him. He covered himself and saw nothing more inside or outside the club. He further testified that he heard both shotgun and pistol reports outside. Black testified that he did not see Travis with a gun that night and that Travis was smaller in stature than the Harrises. He was unaware of any prior encounter between Ronnie Travis and Bill Harris.
¶ 11. Margie Brooks testified that, over a year before the fight at Windy City, Ronnie Travis had gone to her house, broken all the windows of her son's car and threatened to kill her entire family. Travis was armed with a pistol and shotgun and had used a baseball bat he found in the son's car to break the windows. He returned later, using profanity and again threatening to kill her family. During closing argument, the State asserted that Travis was angry because Brooks's son had stolen his car.
¶ 12. Charlie Harris testified on his own behalf that he was not sitting at the table when Ronnie Travis approached it. He saw Travis kick Bill's chair and swing the gin bottle at Bill over Arthur Black, who had stepped between them. It broke when it hit Bill's raised hands, showering him with glass. He was unaware of any previous encounter between Bill and Travis; Charlie testified that when Bill grabbed Travis, four or five more people jumped into the fight against Bill. When they forced Bill to the floor and outside the club, Charlie testified he and Jason stepped in to help him. He then heard someone other than Ronnie Travis say, "Go to the car and get your s—." Charlie ran to his car and got his gun. The fight now had ten to twelve participants and had moved into the ditch across the street. Charlie testified that while he was returning from his car with his pistol, he heard gunshots from the ditch and told his brothers to get in the car because someone was shooting at them. They got into the gold Cadillac and raced away. Charlie testified someone shot the back of his car with a shotgun as they were driving off. Several pictures of the gold Cadillac showing pellet-sized holes in the rear were admitted into evidence.
¶ 13. At the conclusion of trial, the court instructed the jury on the applicable law, including murder, manslaughter, and self-defense. It refused several more instructions. During its deliberations, the jury drafted two questions and presented them simultaneously to the judge. One question reads, "Can a person act in the heat of passion and at the same time events [sic] a depraved heart regardless of human life?" The other asks, "What is the definition of heat of passion?" The trial court answered the jury that it had given them all the instruction it could and ordered them to return to their deliberations. The jury then returned a guilty verdict against all three brothers.
DISCUSSION
I. WHETHER APPELLANTS' MURDER CONVICTIONS MUST BE REVERSED BECAUSE INSTRUCTION S-1 PRECLUDED THE JURY FROM CONSIDERING EITHER SELF-DEFENSE OR THE DEFENSE OF OTHERS.
II. WHETHER THE APPELLANTS' CONVICTIONS MUST BE REVERSED BECAUSE THE MURDER INSTRUCTION (S-1) ALSO FAILED TO TELL THE JURORS THAT IF IT [sic] THEY HAD A REASONABLE DOUBT ABOUT WHETHER THE DEFENDANTS ACTED IN SELF-DEFENSE, THEY HAD A DUTY TO ACQUIT.
¶ 14. The Harrises argue that the State's depraved-heart murder instruction for each defendant-numbers 8, 9, and 10 — two important phrases which warrant reversal: (1) "without authority of law" and (2) "not in necessary self-defense." The Harrises also argue that the failure to instruct the jury that it had a duty to acquit them if the element "not in necessary self-defense" was not proven beyond a reasonable doubt also warrants reversal. These two issues are treated jointly because they are intertwined concerning the self-defense element. The State responds to the first issue by pointing out that instructions 8, 9, and 10 use the word "unlawfully," and other instructions place the burden of proof for conviction upon the State. With regard to the second issue, the State directs this Court to other jury instructions given which instruct the jury on self-defense and a statement made during closing arguments by the prosecution that the State must prove the murder was not committed in self-defense. The State also argues that even if the Harrises were entitled to further instruction on self-defense, the trial court's failure to do so was harmless error. In reply, the Harrises go to great lengths to distinguish a "concrete" instruction from an "abstract" instruction and argue that an "abstract" instruction cannot make up for the errors in a "concrete" instruction. Therefore, they argue that the instructions as a whole do not adequately instruct the jury.
Charlie Harris, Jason Harris, and Billy Ray Harris, respectively.
¶ 15. This Court employs the following standard of review when objections to given or refused jury instructions are raised:
The standard of review for challenges to jury instructions is as follows:
Jury instructions are to be read together and taken as a whole with no one instruction taken out of context. A defendant is entitled to have jury instructions given which present his theory of the case, however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence. Humphrey v. State , 759 So.2d 368, 380 (Miss. 2000) (citing Heidel v. State , 587 So.2d 835, 842 (Miss. 1991)).
Austin v. State , 784 So.2d 186, 192 (Miss. 2001). In order to preserve a jury instruction issue on appeal, the defendant must make a specific objection to the proposed instruction to allow the trial court to consider the issue. Crawford v. State , 787 So.2d 1236, 1244-45 (Miss. 2001).
¶ 16. The full text of the single depraved-heart murder instruction given to the jury, duplicated for each defendant save for the substitution of the name of the correct defendant, is as follows:
The Defendant, (name), has been charged in the indictment in this case with the crime of murder. If you find from the evidence in this case, beyond a reasonable doubt that the Defendant, (name), did on or about the 7th day of November, 1999, feloniously, willfully and unlawfully in Madison County, Mississippi,
1. Engage in an act eminently dangerous to others, or aid and assist in an act eminently dangerous to others; and that,
2. such act evinced a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual, and that
3. such act inflicted injuries to Ronnie Travis which caused his death, then you shall find the Defendant, (name), guilty of Murder as charged in the indictment.
If the State has failed to prove any one or more of the above listed elements, beyond a reasonable doubt, then you shall find the Defendant not guilty of Murder.
The question whether this instruction errs because it fails to include the language "without authority of law" can be summarily resolved. As can be seen in the first paragraph of its text, this instruction directs the jury that it must find beyond a reasonable doubt that the defendant acted "unlawfully." This Court has held the term "unlawfully" to be synonymous with, and an acceptable substitute for the phrase "without authority of law;" specifically in the context of a depraved-heart jury instruction. Turner v. State 796 So.2d 998, 1003-04 (Miss. 2001). The Harrises list the numbers underneath the first paragraph in support of their argument, but the term "unlawfully" is used immediately above this enumeration. We therefore conclude that there is no merit to their argument that the trial court failed to instruct the jury on the element "without authority of law," even though its acceptable synonym does not appear in a separate enumerated paragraph.
¶ 17. This Court must next consider whether the failure to instruct the jury to acquit if it finds the Harrises were acting in self-defense and the failure of the depraved-heart murder instruction to include the words "not in necessary self-defense" constitute reversible error. In Reddix v. State , 731 So.2d 591 (Miss. 1999), this Court was confronted with a situation almost identical to the one in the instant case. The jury was given instruction S-2 which was a verbatim recitation of the self-defense instruction first announced in Robinson v. State , 434 So.2d 206, 207 (Miss. 1983), overruled on other grounds , Flowers v. State , 473 So.2d 164, 165 (Miss. 1985). Reddix , 731 So.2d at 594. The trial court also refused to give an instruction tendered by the defense that would have made the jury aware of its duty to acquit if it determined the defendant was acting in self-defense. Id. On appeal, the defendant argued that S-2 did not completely instruct the jury on its duty to acquit if it found he acted in self-defense, and it was error to refuse his tendered self-defense instruction where no other instruction addressed the subject. Id. This Court agreed with both propositions and concluded the error warranted reversal. Id. at 595. Standing alone, the Robinson instruction does not sufficiently instruct the jury on self-defense because it fails to inform them that they are bound to acquit if they find the defendant to be acted in self-defense. Id. Subsequent opinions have considered this omission to be plain error. Cf. Williams v. State , 803 So.2d 1159 (Miss. 2001) (assuming for argument's sake that such is plain error); Sheppard v. State , 777 So.2d 659, 663 (Miss. 2000) (argument that jury was inadequately instructed was not raised by defendant on appeal but "appears to be plain error" warranting reversal of conviction). See also Montana v. State , 822 So.2d 954 (Miss. 2002). However, there is no error where the jury is instructed that the State must prove beyond a reasonable doubt that the defendant committed the murder "not in necessary self-defense," and instructed to acquit where the State has failed to prove this element beyond a reasonable doubt. Montana , 822 So.2d at 959-60; Williams , 803 So.2d at 1162.
¶ 18. The State directs this Court to instructions 3, 5, 6, 11, and 16A, which it asserts fairly instructed the jury on self-defense when considered together. Instruction 3 is a standard instruction given by the trial court which explained to the jury that the presumption of innocence follows the defendant through trial and prevails unless overcome by evidence which proves the defendant "guilty of every material element of the crime with which he is charged" beyond a reasonable doubt. Instruction 5, an instruction granted to the defense, informs the jury that a defendant does not have to testify and no inference of guilt should be made from the defendant's silence. Instruction 6, another defense instruction, reads:
The Court instructs the Jury that every killing of a human being is not murder, and that it is never incumbent upon the accused to prove conclusively that the act was committed in self-defense. All that is necessary to establish self defense is that the defendants prove that there was a danger to the life of a defendant or good reason to believe that his life was in danger because of the actions of Ronnie Travis.
Instruction 11, also an instruction granted to the defense, concerns the right of a person acting in self-defense to "stand his ground and use whatever force is reasonably necessary, uncer [sic] the circumstances, even to the extent of taking the life of the attacker." Finally, instruction 16A, granted to the State, reads:
The Court instructs the jury that to make an assault justifiable on the grounds of self-defense, the danger to the defendants must be either actual, present and urgent, or the defendants must have had reasonable grounds to apprehend a design on the part of Ronnie Travis to do them some great bodily harm, and in addition to this, they must have had reasonable grounds to apprehend that there was imminent danger of such design being accomplished. It is for the jury [sic] to determine the reasonableness of the ground upon which they acted.
¶ 19. None of these instructions includes the language "not in necessary self-defense." Nor does the given depraved-heart murder instruction inform the jury that they should acquit the Harrises if the State has failed to prove beyond a reasonable doubt that the killing was not done "in necessary self defense." The only place this phrase is found in the given instructions is in the two manslaughter instructions: 12, 13, 13A, and 13B. The Harrises also cite the trial judge's refusal of D-10 as reversible error as well but do not brief the issue any further.
#D-10 reads:
The Court instructs you must find the Defendants "not guilty" of depraved heart murder even if they committed the acts which caused the death of Ronnie Travis or even if they aided or abetted in others in committing acts which caused Mr. Travis' [sic] death and even if they had ill will or malice toward the deceased if you have a reasonable doubt about whether these acts, if any, were either:
1. the result of an accident or misfortune with the Defendants were doing a lawful act by lawful means, with usual and ordinary caution, and without unlawful intent, or
2. the result of an accident and misfortune, in the heat of passion, upon sudden and sufficient provocation, or
3. the result of sudden combat, without undue advantage being taken of the deceased and without using a dangerous weapon to kill Mr. Travis and not in a cruel and unusual manner, or
4. the result of acts committed in the lawful defense of any of the Harris' own person or the person of another, because they had reasonable grounds to fear a design by the deceased to commit a felony and there was imminent danger of such design being accomplished, or
5. the result of acts committed in the lawful defense of any of the Harris' or the person of another, where they had reasonable grounds to apprehend a design by the deceased to do some great persona injury to any Defendant or another, and there was imminent danger of such design being accomplished.
Since the burden is not on the Defendant to prove the existence of these conditions, you must find the Defendant "not guilty" if the evidence raises a reasonable doubt that death may have occurred under any one of the foregoing circumstances.
¶ 20. We find the depraved-heart murder instruction given to the jury did not fully instruct them on their duty to acquit the Harrises if they determined the brothers were acting in self-defense. Instruction 16A in the instant case differs from the Robinson instruction given in Reddix only in that it: (1) substitutes the words "an assault" for the words "a killing;" (2) pluralizes "he" to "they," "him" to "them," and "defendant" to "defendants;" (3) removes "to kill him or" before the words "do them some great bodily harm," and (4) substitutes "Ronnie Travis" for "the victim." The State's attempt to distinguish 16A from the Robinson instruction has no merit. The State's reliance upon the fact that the prosecutor told the jury that the State must prove that the Harrises did not act in necessary self-defense is of no weight. This statement immediately followed the trial court instructing the jury that closing arguments are meant to help them reach a verdict, but that the court was the only source of the rules of law it should apply in reaching its verdict.
¶ 21. There is some merit to the State's argument that the Harrises were not acting in self-defense and therefore any failure to further instruct the jury on self-defense was harmless. Charlie Harris testified that when he left his brothers to get his gun, they were fighting 10 to 12 people. However, it is conceivable he did not observe his brothers while he was getting his gun, leaving them opportunity to kick a prostrate Ronnie Travis. Furthermore, the State had two eyewitnesses to the fight outside who stated Travis was repeatedly kicked on the ground by all three brothers. The State also had confessions from each brother that they were fighting Ronnie Travis, and Bill even testified that he got on top of Travis to beat him. Taking the facts and inferences in the light most favorable to the verdict, this Court concludes that the jury rejected this defense. See Heidel v. State , 587 So.2d 835, 838 (Miss. 1991). However, this does not answer the question whether the defendants were entitled to the instruction in the first place.
¶ 22. Giving the Harrises the benefit of all favorable inferences from the evidence presented to the jury, the jury could arguably have found that Charlie, Jason, and Bill were acting to defend Bill from an initial assault by Ronnie Travis and others. The trial judge thought the facts sufficient to necessitate instructing the jury regarding self-defense. Furthermore, controlling precedent requires the jury to be instructed on every essential element of the crime. See Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The element "not in necessary self-defense" is an essential element to be proven in this case. Therefore, the Harrises were entitled to have the jury adequately instructed concerning the issue. The State's harmless error argument fails on its merits.
¶ 23. Finally, we conclude that the absence of "not in necessary self-defense" from instructions 8, 9, and 10, coupled with the failure to instruct the jury they were bound to acquit where they determined the State did not prove beyond a reasonable doubt the Harrises were not acting in self-defense when they killed Ronnie Travis, is reversible error. The instruction D-10, while long and somewhat confusing, could have cured this error had it been given to the jury in its tendered form or in a form revised by the trial court to accurately state the law. We further conclude that it was also error to refuse D-10 for this reason. This error warrants reversal of this case so only the evidentiary issues need to be addressed beyond this point.
III. WHETHER APPELLANTS' CONVICTIONS MUST BE REVERSED BECAUSE THE TRIAL COURT REFUSED THEIR REQUESTED INSTRUCTIONS ON THE DEFENSE OF ANOTHER.
IV. WHETHER APPELLANTS' CONVICTIONS MUST BE REVERSED BECAUSE THE TRIAL COURT'S INSTRUCTIONS PRECLUDED THE JURY FROM CONSIDERING THE CRIME OF MANSLAUGHTER.
VII. WHETHER THE APPELLANTS' CONVICTIONS MUST BE REVERSED BECAUSE THE TRIAL COURT DENIED THEIR REQUEST FOR AN INSTRUCTION WHICH WOULD HAVE TOLD THE JURY THAT A WITNESS COULD BE IMPEACHED BY EVIDENCE OF PRIOR INCONSISTENT STATEMENTS.
¶ 24. The necessity of a particular jury instruction is based in part upon the facts adduced at trial. Therefore, since we reverse and remand for a new trial on other grounds, we decline to examine the merits of these issues.
V. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN SUSTAINING THE PROSECUTION'S OBJECTION TO EVIDENCE OF RONNIE TRAVIS'S STATEMENT SHOWING THAT HE WAS THE AGGRESSOR.
¶ 25. In this issue, the Harrises argue that the trial court committed reversible error when it prohibited Arthur Black from testifying that Ronnie Travis said, "F— it, man, lets get it on" and that Travis was cursing just before the fight with Bill Harris began. They allege the statement demonstrates Travis's state of mind and is relevant as evidence establishing Travis as the initial aggressor in the fight. The State replies that the statement does not prove Travis to be the initial aggressor, but does support a finding that Travis did voluntarily go outside to continue the fight with one or more of the Harrises. The State claims that the statement refutes the claim of self-defense and establishes a claim for mutual combat. After noting that the prosecution merely objected as to what was said, but not how Travis was behaving, the State concludes that exclusion of the statement did not prejudice the Harrises and at most was harmless error. The brothers attempt to counter this argument by reasserting that prior threats by a decedent are admissible.
¶ 26. The admissibility of testimonial evidence is left to the sound discretion of the trial court within the boundaries of the Mississippi Rules of Evidence, and the trial court will not be found in error unless it is has abused its discretion. Such error will warrant reversal only when the abuse of discretion has resulted in prejudice to the accused. Parker v. State , 606 So.2d 1132, 1137-38 (Miss. 1992).
¶ 27. At trial, the State objected to this expected testimony because it is hearsay. The trial court could find no exception to the hearsay rule which would accommodate this testimony so he excluded it. However, we find that this testimony qualifies as an exception to the hearsay rule as a statement of a then-existing mental condition, or state of mind. M.R.E. 803(3). M.R.E. 803(3) encompasses relevant statements made by murder victims before their death. Parker , 606 So.2d at 1139. In the instant case, the statement Arthur Black overheard Ronnie Travis make to the Harrises just before the fight began is relevant to show that Ronnie Travis intended to fight and might have been the initial aggressor. It was therefore error to exclude the testimony.
VI. WHETHER APPELLANT CHARLIE HARRIS'S CONVICTION MUST BE REVERSED BECAUSE THE TRIAL COURT REFUSED TO INSTRUCT THE JURY THAT THE DEFENDANT CHARLIE HARRIS WAS NOT ON TRIAL FOR OTHER BAD ACTS.
¶ 28. The Harrises also allege it was error for the trial court to refuse a cautionary instruction to the jury, specifically tendered instruction D-22, that Charlie Harris was not on trial for his previous D.U.I. conviction. They allege that the failure to so instruct the jury resulted in the evidence of the conviction being considered for impermissible purposes by the jury. The State responds by pointing out that it was Charlie Harris who introduced the evidence of the prior D.U.I. conviction on direct examination, and none of the defendants asked for a limiting instruction at that time.
¶ 29. The State is correct that Charlie Harris introduced his prior D.U.I. conviction through his testimony on direct examination. At that time, neither Charlie's counsel nor any other counsel for the defendants asked for a limiting instruction from the trial court. When the State cross-examined him, he admitted that he was drinking that night and drove the getaway car. This sparked the question from the prosecutor, "You're used to that, right, D.U.I.'s?" Defense counsel objected, but was overruled because, stated the judge, "It's in evidence he had a prior D.U.I." The trial court did not weigh the testimony's probative value against the danger of unfair prejudice on the record after this objection. During closing argument, the prosecutor refreshed the jury's memory that Charlie was drinking and driving that night. No objection to this closing argument was made. The Harrises did object to the trial court's refusal to give instruction D-22 even though the record is unclear whether the trial court was specifically addressing it at the time.
¶ 30. The burden to give a cautionary instruction to the jury when character evidence is introduced to show conformity with prior bad behavior is placed squarely upon the trial judge. When the defendant objects to admission of character evidence, the trial court must balance its probative value against the danger of unfair prejudice. M.R.E. 105, 403 609(a); Smith v. State , 656 So.2d 95, 100 (Miss. 1995). We find that this rule envisions an objection contemporaneous with the admission of the testimony. As the prior bad acts evidence was introduced by the defendant himself, any objection Charlie Harris may have had concerning its admission into evidence has certainly been waived. The defendant did not object to the admissibility of this conviction until the State cross-examined Charlie Harris. He did not request a cautionary instruction until arguing which instructions should be read to the jury. As for the State's use of the information, there is nothing unduly prejudicial with the way the prosecutor cross-examined Charlie Harris with the D.U.I. conviction or with its use during the prosecution's closing argument. Furthermore, the Harrises did not object to the closing argument so any error there was not preserved for appeal. Therefore, this issue is without merit.
VIII. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ADMITTING THE ALLEGED CONFESSIONS OF THE DEFENDANTS.
¶ 31. The Harrises argue that it was reversible error to admit the confessions of the three brothers at trial because it violated their right to confront their accusers. The State counters that no error can be found in admitting Charlie's statement because he took the witness stand. The statements given by Bill and Jason do not implicate one another nor Charlie, so there was no violation of the right to confrontation. The State also argues that the defendants had plenty of time to move for a severance, but failed to do so, and trying the brothers together did no prejudice to them.
¶ 32. As authority for finding reversible error based upon the right to confront the witnesses against them, the Harrises cite Bruton v. United States , 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and Gray v. Maryland , 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998). A reading of these cases reveals the rule that where a codefendant's statement is introduced at a joint trial which powerfully implicates the defendant in a crime, a jury instruction or redactions which naturally suggest the defendant's name has been removed is not sufficient protection of the defendant's right to confront his accuser where the codefendant does not take the stand and subject himself to cross-examination by the defendant. Gray , 523 U.S. at 197, 118 S.Ct. at 1157; Bruton , 391 U.S. at 137, 88 S.Ct. at 1628. However, where the codefendant's statements do not facially implicate the defendant in the crime, there is no Bruton error. Richardson v. Marsh , 481 U.S. 200, 208-09, 107 S.Ct. 1702, 1708, 95 L.Ed.2d 176 (1987).
¶ 33. Specifically, the Harrises object to the testimony of the investigator concerning what the defendants told him:
1) Bill told him, "They dropped me off at the projects at my girlfriend's house." (thus "implicating" Jason and Charlie)
2) Jason told him, "Me . . . Bill and Charlie were sitting at the table. Ronnie came over to the table and asked Bill something. Ronnie hit Bill with a bottle. I went outside fighting. I was kicking him." (thus "implicating" Bill and Charlie)
3) During his testimony, the investigator said concerning Jason's statements, "I've got to leave out some of this, so it sounds choppy. I'm not allowed to say all of it. . . . It's hard for me to explain who he's talking about." (thus "implicating" Bill and Charlie)
¶ 34. The first statement does not implicate Charlie and Jason in any criminal activity. Read in context, the Harrises contend that this meant Charlie and Bill were in the car, ergo they were present at the club, the scene of the crime. It is not against the law to drop someone off at his girlfriend's residence or to be present at a club during a killing. The Harrises did not even attempt to make complete absence from the scene of the crime any part of their defense. All three told the investigator they were there that night, and each eyewitness to the fight testified that they were there. Furthermore, both Charlie and Jason admitted to fighting with Ronnie Travis. Their collective defense was self-defense. It is difficult for us to see how Bill's statement implicated the other brothers in anything beyond what they had already individually told the investigator. Therefore, we conclude that the admission of the first statement did not violate Bruton , and it was not error for the investigator to testify concerning it.
¶ 35. The second statement passes the Bruton challenge for the same reason. All eyewitnesses testified that the Harris brothers were present at the club that night, and all three brothers admitted to the investigator that they were involved in the fight. The defense offered at trial was self-defense, not absence. Therefore, the statement by Jason that the three brothers were present that night does not implicate any of them in the subsequent murder. Again, it is not against the law to be present at the scene of a crime when it occurs. This statement does not violate the defendants' rights to confrontation.
¶ 36. The third statement is more troubling. The investigator's testimony on the stand naturally drew attention to the fact that some information from the defendants' statements was being withheld from the jury. This redaction was done on the judge's instruction, but the defendants promptly moved for a mistrial when the investigator made the omissions known to the jury. The trial court overruled the motion, but it is fair to say that the jury knew that they were not told everything. Unlike Gray , however, this is not a case where a proper name was deleted which would obviously lead the jury to conclude that the defendant's name was the missing one. This is merely a statement made to the jury that portions of Jason's statement had to be removed. When the jury returned from the recess to discuss the mistrial, the trial court told the jury:
Ladies and gentlemen, let me explain something to you. In civil trials and criminal trials, as I've told you earlier, my job is to make sure only admissible evidence comes before you. There's been some testimony here today by this particular witness concerning the different statements that he took from the defendants. We have had pretrial hearings on this case outside the presence of any jury, and I have ruled on certain portions of these statements that I won't let in. Okay? This happens in every case. It's nothing unusual about that.
This defendant made a comment about it being — I think he said choppy or something. I can't recall. I want to ask you to just disregard that statement made by this particular witness. It has no basis in law, and it doesn't run afoul of my prior rulings on the evidence in this case.
There are some things that I have redacted from these statements that simply are not admissible evidence, such as hearsay statements and things such as that. I don't want you to find it prejudicial against either of the defendants that this witness has made the statement. He simply made the statement in a way of trying to explain to you that it could sound choppy when he's relating you the testimony.
Its my fault because I have ruled on certain pieces of evidence that are in these statements. So can each one of you tell me that you can accept this explanation from me and disregard the statement of this witness? Can each of you tell me that you'll do that and not hold it against these defendants? Okay. All right. You may proceed.
As can be seen from the investigator's statement, no criminal activity was alleged, and no defendant was implicated in any portion of the act which occurred that night. It is safe to assume the jury was probably full of natural curiosity. However, we find that the trial judge's instruction was sufficient to satisfy the jury's curiosity without drawing attention to the fact that the investigator might have been leaving out Charlie's and Bill's names from Jason's statement. It is true that the trial judge gave the defendants ample opportunity to sever the trials; the last offer coming as late as the Friday before the joint trial began on Monday. The trial courts and prosecution should be mindful that statements made by codefendants in joint trials face a higher level of scrutiny for violations of the right to confrontation. Where it appears that the evidence, even if revealed inadvertently to the jury, would naturally indicate to a jury that a statement by a codefendant implicates another defendant, it is best to sever the trials. See generally Harrington v. State , 793 So.2d 626 (Miss. 2001). Having acknowledged this danger, we conclude that no Bruton violation attended the investigator's statements that he could not reveal portions of Jason Harris's statement. None of the allegations in this issue have merit.
IX. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN UNDULY RESTRICTING APPELLANTS IN PRESENTING THE DEFENSE THAT MR. TRAVIS MIGHT HAVE SUSTAINED THE FATAL INJURIES AT SOME TIME PRIOR TO THEIR ALTERCATION WITH HIM.
¶ 37. The Harrises contend that the trial court committed reversible error by sustaining the State's objection to the question on cross-examination of the state pathologist about non-surgical scars found on Ronnie Travis's body. They also contend the refusal of tendered instruction D-14 was reversible error. The instruction would have told the jury that the State must prove the acts of the defendants were such that death was the natural and probable result. These contentions are meant to be read together as the Harrises' theory concerning the non-surgical scars on Travis's body, they indicated Travis was injured prior to the fight that night at the club, and his death was not caused by the defendants. The State counters that the Harris brothers failed to show how the scars might have been caused by an earlier fight by testimony or offer of proof. It concludes that the other instructions given to the jury concerning proximate cause covered the requisite level of proof the State must offer for conviction.
¶ 38. As stated above, a trial court will not be found in error concerning the admissibility of testimonial evidence unless it has abused its discretion. Parker , 606 So.2d at 1137-38. The error is reversible only upon a showing that the error prejudiced the accused. Id. It appears from the record that the defendants were on a fishing expedition with the pathologist, attempting to catch evidence which would indicate that the non-surgical scars on Ronnie Travis's body caused his demise. Without an offer of proof or a good-faith basis for asking about the scars, we cannot say that the trial court abused its discretion in sustaining the State's objection and refusing to give the requested instruction. The defendants did not call a witness to testify that Travis was in a fight earlier that day or week. The defendants did not offer their own medical testimony that Travis's injuries, which the non-surgical scars indicate occurred prior to the night of the fight, would cause this type of death. Finally, the defendants did not pursue the matter with the trial court. The question about the non-surgical scars was the last one asked by the defendants on cross-examination of the pathologist, and when the prosecution's objection was sustained, the defense tendered the witness back to the prosecution for rebuttal. (Without deciding the merits of the arguments for the jury instruction, we conclude that this issue is also without merit.)
CONCLUSION
¶ 39. We conclude that the failure to instruct the jury of its duty to acquit the defendants if it found them to be acting in self-defense was plain error as examined in Reddix v. State , 731 So.2d 591 (Miss. 1999). Therefore, we reverse the judgments of the Circuit Court of Madison County and remand these cases for new trials consistent with this opinion.
¶ 40. REVERSED AND REMANDED. McRAE, P.J., WALLER, DIAZ AND GRAVES, JJ., CONCUR. SMITH, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY EASLEY AND CARLSON, JJ. COBB, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY EASLEY, J. EASLEY, J., DISSENTS WITH SEPARATE WRITTEN OPINION.
¶ 41. "We do not look at jury instructions in a vacuum." Williams v. State , 803 So.2d 1159, 1161 (Miss. 2001). The Harris brothers' reliance on Reddix v. State , 731 So.2d 591 (Miss. 1999), is misplaced. As in Williams and Montana, the problem found in Reddix is cured by the instructions in the case sub judice. Montana v. State , 822 So.2d 954, 957 (Miss. 2002); Williams v. State , 803 So.2d 1159, 1161 (Miss. 2001). The ultimate question here is whether the jury knew from the collective instructions given to them that the Harris brothers could be acquitted if they were acting in necessary self defense. In reviewing a challenge to jury instructions, the instructions actually given must be read as a whole. Montana , 822 So.2d at 957; Williams v. State , 803 So.2d at 1161 (citing Hickombottom v. State, 409 So.2d 1337, 1339 (Miss. 1982)). When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found. Id. Jury instructions are to be read together, and, if the jury is fully and fairly instructed by other instructions, the refusal of an similar instruction does not constitute reversible error. Caston v. State , 823 So.2d 473, 507 (Miss. 2002). Harris' argument fails because the instructions, when read in their entirety, charged the jury on the issues of law claimed to be omitted.
¶ 42. In Reddix v. State , 731 So.2d 591, 595 (Miss. 1999), this Court held that the instruction the Supreme Court had previously recommended in Robinson v. State , 434 So.2d 206, 207 (Miss. 1983), was not sufficient as a neutral self-defense instruction. The Court said, "It is couched in prosecutorial terms and it fails to state that self defense is, in fact a defense. Id. "Assuming as we do that juries follow the instructions given to them by the trial court, Collins v. State , 594 So.2d 29, 35 (Miss. 1992), this means that the jury could not have acquitted Reddix based upon self defense because it was not informed of any law permitting them to do so." Id. Reddix is distinguished in Montana and Williams . Montana , 822 So.2d at 961; Williams, 803 So.2d at 1161. This Court held in Williams that if another instruction supplied the missing requirement, the problem was cured. Id. The facts here, as in Williams , are distinguished from Reddix in that these instructions refer to self defense as a defense. The instructions also discuss what has to be proven to find an "assault justifiable on the grounds of self defense." As in Montana , the jury was given a manslaughter instruction which included the allegedly omitted words, "in necessary self-defense." See Montana , 822 So.2d at 961. Further, the instructions did not mislead the jury.
¶ 43. The Harrises' argument ignores the jury instructions that were given. The first containing the allegedly omitted language was Jury Instruction Number 6. Jury instruction number 6 read as follows:
The court instructs the Jury that every killing of a human being is not murder, and that it is never incumbent upon the accused to prove conclusively that the act was committed in self defense. All that is necessary to establish self defense is that the defendants prove that there was a danger to the life of a defendant or good reason to believe his life was in danger because of Ronnie Travis.
¶ 44. Jury Instruction No. 11 instructed the jury that a person claiming the right to self defense has no duty to retreat or consider whether it is safe to retreat. That instruction further states that if he is "honestly and reasonably in fear of death or serious bodily injury, he may stand his ground and use whatever force is reasonably necessary, under the circumstances, even to the extent of taking the life of the attacker."
¶ 45. The court also charged the jury in Jury Instruction No. 16A as follows:
The Court instructs the jury that to make an assault justifiable on the grounds of self defense, the danger to the defendants must be either actual, present or urgent, or the defendants must have had reasonable grounds to apprehend a design on the part of Ronnie Travis to do them some great bodily harm, and in addition to this, they must have had reasonable grounds to apprehend that there was imminent danger of such design being accomplished. It is for the jury to determine the reasonableness of the ground upon which they acted.
¶ 46. Jury Instructions Numbers 6 and 16A, when read together, told the jury that all killings are not murder, charged the jury on the elements of self defense, and instructed the jury that it is not incumbent on the defendant to conclusively prove self defense.
¶ 47. The court also instructed the jury that "the court instructs the jury that to make an assault justifiable on the grounds of self defense, the danger to the defendants must be. . . ." The court then listed the elements of self defense. The court charged in this separate instruction that "it is for the jury to determine the reasonableness of the ground upon which they acted."
¶ 48. It was not error to give an instruction that does not include the words "not in necessary self defense" when charging depraved heart murder when the Court also instructs the jury in a separate instruction that the killing would be justified if committed by the defendant in the lawful defense of his own person.
¶ 49. This Court has held that the clause "and not justified by law" embodies the connotation of "not in necessary self defense." Boyles v. State , 223 So.2d 651, 656 (Miss. 1969); McGehee v. State , 138 Miss. 822, 104 So. 150 (1925). There were two manslaughter instructions given. Instruction Number 12 instructed the jury that "manslaughter is the killing of a human being in the heat of passion, without malice, in a cruel or unusual manner, without authority of law, and not in necessary self defense." (emphasis added). Instructions Numbered 13, 13A, and 13B also instructed the jury on the lesser included offense of manslaughter. Each of these named the charged defendant and charged the jury that it should find the defendant guilty of manslaughter if it was found, beyond a reasonable doubt that the defendant did:
1. Kill Ronnie Travis, a human being,
2. By beating and kicking him,
3. In the heat of passion,
4. Without malice,
5. In a cruel and unusual manner,
6. Without authority of law,
7. And not in necessary self defense.
(emphasis added).
¶ 50. Additionally, the State told the jury in closing arguments that "I have to prove to you that this killing was not done in necessary defense, and we have done that folks."
¶ 51. The court did not cut off self defense in the instructions. The court, in fact told the jury how to decide if the assault was justifiable on the ground of self defense. It was not error to give an instruction that does not include the words "not in necessary self defense" when charging depraved heart murder when the court also instructs the jury in a separate instruction that the killing would be justified if committed by the defendant in the lawful defense of his person.
¶ 52. The instructions, when read in their entirety, properly instructed the jury that a killing may not be murder, that the killing could be justified in self defense, the factors that must be considered when deciding if the killing was in self defense, and that the burden of proof is always on the State. Considering the instructions as a whole, I find that the jury was properly instructed.
¶ 53. For these reasons, I respectfully dissent.
EASLEY AND CARLSON, JJ., JOIN THIS OPINION.
¶ 54. I respectfully dissent from the majority's decision to reverse and remand in this trio of cases. No self-defense instruction was supported by the evidence. Thus, the failure to properly instruct the jury on self-defense was not reversible error.
Presiding Justice Smith's dissenting opinion states that the instructions granted were adequate if, in fact, a self-defense instruction was warranted. His opinion shows that the jury was told what was necessary to prove self-defense. But the jury was never told that the State had an affirmative burden to prove the absence of self-defense with regard to depraved-heart murder. The fact that this burden was included under the manslaughter elements, but was not included in the depraved-heart murder elements, was, at best, confusing. The fact that the State admitted in its closing argument that the burden lay with it, while showing the error of the instructions, does not cure their deficiency.
¶ 55. A self-defense instruction should usually be granted upon request of the defendant, but not in those cases where the instruction is evidently unwarranted by the undisputed facts:
Under these facts, a reasonable jury would not disagree that Lancaster had no reason to believe himself to be in any imminent danger of bodily harm or death.
Accordingly, we agree with the trial judge that there was no evidence of self-defense on which to base such an instruction. To grant an instruction that is not supported by the evidence would be error. . . .
We are aware of our previous holdings that it is improper to refuse a self-defense instruction, save in a few, very rare, cases, but as in Parker [ v. State , 401 So.2d 1282, 1286 (Miss. 1981)], supra, this is one of those occasions.
Lancaster v. State , 472 So.2d 363, 365-66 (Miss. 1985) (emphasis added).
¶ 56. The present case is also "one of those occasions." The undisputed fact is that the victim, Ronnie Travis, lay in a ditch with two or three men kicking and beating him. None of the defense's four witnesses cast any doubt on this. Charlie Harris, even if believed by the jury, was by his own testimony not in a position to deny that his brothers were attacking Travis or that Travis lay helpless, since Charlie allegedly was busy getting his gun from his car.
¶ 57. Instruction 16A stated:
The Court instructs the jury that to make an assault justifiable on the grounds of self defense, the danger to the defendants must be either actual, present or urgent, or the defendants must have had reasonable grounds to apprehend a design on the part of Ronnie Travis to do them some great bodily harm, and in addition to this, they must have had reasonable grounds to apprehend that there was imminent danger of such design being accomplished. It is for the jury to determine the reasonableness of the ground upon which they acted.
(emphasis added).
¶ 58. Bearing this instruction in mind, could a reasonable jury have found either of the following?
(1) The Harris brothers were in actual, present, or urgent danger as they kicked and beat Ronnie Travis to death in a ditch?
(2) The Harris brothers were in imminent danger of Ronnie Travis's (alleged) design to do them great bodily harm, as they kicked and beat him to death in a ditch?
Reviewing the record, I cannot find that either of the above conclusions could have been reached by a reasonable jury.
¶ 59. Whomever the jury chose to believe, it could not have reasonably found that the unarmed, smaller Travis, who was physically dragged across the street by two of the Harris brothers, posed an "imminent danger" or deadly threat to two larger men. To allow any self-defense instruction whatsoever, as the trial court did, was itself error.
Weatherspoon's testimony: "[T]he little boy they were beating was way smaller than all three of them. He was real skinny and like a slender little boy." Dr. Hayne's testimony: Travis "was five-foot-six, approximately 140 pounds."
¶ 60. Refusing an instruction on depraved-heart murder that included a self-defense component was thus not reversible error. No reasonable juror could dignify this atrocious murder with the label of "self-defense" by finding that the Harris brothers were obliged to kick Travis to death for their own safety. See Ellis v. State , 708 So.2d 884, 888 (Miss. 1998) ("no reasonable probability" that jury would have found self-defense).
¶ 61. Nor do I agree that Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), applies to this issue. The specific holding of Apprendi , which relates to sentence enhancements, is of course not on point, but the Court did reiterate that a defendant is entitled to "a jury determination that [he] is guilty of every element of the crime with which he is charged." Id. at 477. In the present case, the majority writes that "`not in necessary self-defense' is an essential element to be proven in this case." Maj. op. at 16. But the absence of self defense is not an element of depraved heart murder as defined by the statute. Miss. Code Ann. § 97-3-19(1)(b) (2000). Self-defense would only rise to the level of an "element" where the prosecution was required to prove it. See Heidel v. State , 587 So.2d 835, 842 (Miss. 1991). Where no self-defense instruction is merited upon the undisputed evidence at trial, the State need not prove the absence of self-defense, and no instruction need be granted that the prosecution has the burden of proof.
¶ 62. I would therefore affirm the convictions and sentences below.
EASLEY, J., JOINS THIS OPINION.
¶ 63. I respectfully dissent from the majority's decision to reverse and remand in this matter. The evidence of the Harrises' was overwhelming. In my opinion, the majority is attempting to take a liberal perspective in reading the jury instructions. One reading the majority's opinion might deduce that the majority believes that the Harrises were entitled to a "perfect" trial. That is not the case. The Harrises were provided with a fair trial, and they were determined to be guilty by a fair and impartial jury comprised of the good people of Madison County. I find no legitimate reason to reverse the verdict.
¶ 64. The Harrises argue that the trial court erred by failing to instruct the jury to acquit if it found that the Harrises had acted in self-defense and by failing to require that the depraved-heart jury instructions contain the words "not in necessary self-defense." The Harrises' reliance upon Reddix v. State , 731 So.2d 591, 595 (Miss. 1999), is misplaced. In Reddix , this Court determined that the jury instruction failed to state that self-defense was in fact a defense. Id. In the case sub judice, the trial court did not prohibit the Harrises' self-defense instructions. The Harrises' argument fails to acknowledge the language of the instructions given by the trial court. The language contained in the jury instructions properly instructed the jury as to self-defense and provided the elements of self-defense.
¶ 65. Jury instructions numbers 6 and 16A referenced in the majority opinion, when read together, instructed the jury that not all killings are murder, instructed as to the elements of self-defense and instructed that it is not incumbent on the defendant to conclusively prove self-defense. Furthermore, jury instruction number 11 instructed the jury that one does not have a duty to retreat or consider whether it is safe to retreat when claiming self-defense.
¶ 66. This Court recently, stated that standard of review for a challenge to a jury instruction in Agnew v. State , 783 So.2d 699, 701 (Miss. 2001) as follows:
Jury instructions are to be read together and taken as a whole with no one instruction taken out of context. A defendant is entitled to have jury instructions given which present his theory of the case, however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.
(citations omitted). See also Woodham v. State , 779 So.2d 158 (Miss. 2001); Cohen v. State , 732 So.2d 867 (Miss. 1998); Heidel v. State , 587 So.2d 835 (Miss. 1991). "In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found." Coleman v. State , 697 So.2d 777, 782 (Miss. 1997) (quoting Collins v. State , 691 So.2d 918 (Miss. 1997)). If another instruction supplies the missing requirement, the problem in the instruction is cured. See Williams v. State , 803 So.2d 1159, 1161 (Miss. 2001).
¶ 67. Therefore, since the jury instructions given by the trial court, when read as a whole, properly instructed the jury as to self-defense, I find no error that merits reversal of the murder convictions. I would affirm the convictions of depraved heart murder and the sentences of life imprisonment without parole.