SELECTED TOPICS FOR THE CRIMINAL DEFENSE LAWYER
FIRST EDITION.
NOVEMBER 18, 1998
MERRIDA COXWELL
Coxwell & Associates, PLLC
DANKS, COXWELL, SIMON & TEEUWISSEN
213 SOUTH LAMAR STREET
JACKSON, MISSISSIPPI 39201
TELEPHONE: (601) 948-1600
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1921 - 22ND AVENUE, GULFPORT, MISSISSIPPI 39501
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ABANDONMENT: Examples of abandonment instructions: Hester v. State, 602 So.2d 869 (Miss. 1992); Miller v. State, 503 So.2d 929 (Fla. 1987)
ACCESSORY BEFORE THE FACT:One who is not present at the scene during the commission of the offense but who aids or gives counsel toward the commission of the offense. In order to convict one of accessory before the fact the prosecution must prove that the crime was actually committed and the accused aided or abetted its commission. Smith v. State, 115 So.2d 318 (Miss. 1959)
Before the accused can be guilty of accessory before the fact and liable as a principal, he must possess the required mental state or community of interest. Welch v. State, 566 So.2d 680 (Miss. 1990); Malone v. State, 486 So.2d 360 (Miss. 1986). Watch for prosecution instructions that omit the mental state.
The instruction must require the jury to find that the crime had in fact occurred before a verdict of guilty can be returned. Wilson v. State, 592 So.2d 993, 997 (Miss. 1991)
For an example of an improper prosecution instruction attempting to take away the defense of duress and not requiring the jury to find that the Defendant had requisite mental intent, see Welch, supra.
ACCESSORY AFTER THE FACT: Accessory after the fact is not a lesser included offense crime, however the Mississippi Supreme Court has sanctioned the granting of an accessory after the fact instruction if justified by facts. Gangl v. State, 539 So.2d 132 (Miss. 1989)
ACCOMPLICE: Instruction advising the jury to look with distrust on the testimony of an alleged accomplice. Wheeler v. State, 560 So.2d 171 (Miss. 1991)
The granting of an cautionary instruction rests in the sound discretion of the trial judge and there is a two-part test on whether the trial judge abused his discretion: (1) was the witness an accomplice; (2) was the testimony without corroboration. Holmes v. State, 481 So.2d 319, 322 (Miss. 1985); Derden v. State, 522 So.2d 752 (Miss. 1988)
If the prosecution bases its case solely on the testimony of an accomplice, then the cautionary instruction is mandatory. Edwards v. State, 630 So.2d 343 (Miss. 1994) See also: Young v. State, 425 So.2d 1022 (Miss. 1983).
Not error to refuse this instruction because another instruction was granted. See the form from Wheeler, supra, however, the instruction from Young may be more effective in some cases.
AGGRAVATED: Aggravated assault may be lesser offense to forcible rape.
SIMPLE ASSAULT: Boyd v. State, 557 So.2d 1178 (Miss. 1989). Consider the collateral consequences of a rape charge when considering whether to submit this lesser included. Simple assault can be a lesser included instruction in a rape case. Boyd, supra. Admonishment to trial Courts for not granting lesser included offense instruction. Also, Griffin v. State, 533 So.2d 444 (Miss. 1988)
In Hutchinson v. State, 594 So.2d 17 (Miss. 1992) and Hunt v. State, 569 So.2d 1200 (Miss. 1990) the Mississippi Supreme Court stated that the Defendant was not entitled to a simple assault instruction where a deadly weapon was wielded with the intent to injure the victim, even though the injury was slight.
Do not let these cases deter you from offering simple assault instruction in aggravated assault cases!
AIDER & ABETTER: One who is present at the commission of a crime and aids, counsels or encourages another in the commission of that offense. Sayles v. State, 552 So.2d 1383 (Miss. 1989) See also: Kidd v. State, 258 So.2d 423 (Miss. 1977); Hornsburger v. State, 650 So.2d 510, 514 (Miss. 1995).
ALIBI: Harper vs. State, 463 So.2d 1036 (Miss. 1985), provides an approved alibi instruction.
ATTEMPT: In Armstead v. State, 716 So.2d 576 (Miss. 1998) the Mississippi Supreme Court reversed and remanded an attempted rape conviction due to a faulty instruction. Pursuant to Henderson v. State, 660 SO.2d 220 (Miss. 1995) the jury must be specifically instructed that the accused had a specific intent to commit a crime and failed to complete it or was prevented from doing so. You should read this case to understand attempt instructions and objections.
CHARACTER EVIDENCE: The jury may be instructed to consider character evidence. Lewis v. State, 47 So. 2d 467 (Miss. 1908); Harris v. State, 166 So.2d 392 (Miss. 1936).
CHILD WITNESS: An instruction dealing with the age of a child witness may be appropriate but refusal to grant such an instruction has not been held to be reversible error. Robinson v. State, 662 So.2d 1100 (Miss. 1995); Bandy v. State, 495 So.2d 486, 493 (Miss. 1986); Jones v. State, 606 So.2d 1051, 1060 (Miss. 1992).
CIRCUMSTANTIAL EVIDENCE: A circumstantial evidence instruction is proper when the prosecution can produce neither eye witnesses nor a confession to the crime. See Stringfellow v. State, 595 So.2d 1320 (Miss. 1992); Wilcher v. State, 455 So.2d 727, 735 (Miss. 1984); Kniep v. State, 525 So.2d 385 (Miss. 1988); Barnes v. State, 532 So.2d 1231 (Miss. 1988); Simpson v. State, 553 SO.2d 37 (Miss. 1989); Sudduth v. State, 562 So.2d 67 (Miss. 1990).
This instruction may be required even if not requested. Barnett v. State, 253 So.2d 806 (Miss. 1971)
Windham v. State, 45 So.2d 861 (Miss. 1980) contains a fact specific instruction.
In a circumstantial case the two instructions from Henderson should be requested and a refusal will probably be reversible error. Examples of good instructions: Henderson v. State, 453 So.2d 708 (Miss. 1984); See Parker v. State, 606 So.2d 1132 (Miss. 1992); Also: Hendrick v. State, 637 So.2d 834 (Miss. 1994).
CONFESSIONS: The accused is entitled to an instruction permitting the jury to determine the ultimate reliability of a confession. See Thomas v. State, 426 So.2d 795 (Miss. 1983).
CONSPIRACY: Gray v. State, 487 So.2d 1304 (Miss. 1986) contains an example of conspiracy instruction. The prosecution instruction should require (1) acts on the part of the accused in furtherance of the conspiracy and (2) a finding that the accused knowingly became part of the conspiracy to commit the crime.
See: Gray v. State, 487 So.2d 1304 (Miss. 1986) for defendant's instruction. Also, James v. State, 481 So.2d 805 (Miss. 1985). In James the Mississippi Supreme Court reversed for failure to give the accused's instructions. The prosecution's instructions allowed the jury to find the accused guilty if a conspiracy existed between the defendants or "any one of them". This language is error.
CREDIBILITY OF WITNESS: Error to give instruction that authorized the jury to consider the motives and interests of witnesses. This amounts to a comment on the weight of evidence and would have a "chilling" effect on a defendant's right to testify. Sumrall v. State, 343 So.2d 481 (Miss. 1977); Bryson v. State, 291 So.2d 693 (Miss. 1974).
MURDER/MANSLAUGHTER:The law regarding murder/manslaughter instructions is voluminous. Examples of instructions for the defense or objections to prosecution instructions are listed herein:
DEFENSE - STATE'S INSTRUCTION/ SELF-DEFENSE, GENERALLY:Ward v. State, 479 So.2d 713, 716 (Miss. 1985). Instructions on self-defense offered by prosecution and approved by the Mississippi Supreme Court may be used as defense instructions.
DEFENSE - SELF-DEFENSE/ STATE MUST DISPROVE:Sloan v. State, 368 So.2d 228, 229 (Miss. 1979). This case contains a proper self-defense instruction even though it was refused by trial Court due to cumulative nature.
DEFENSE - SELF-DEFENSE/ Turnage v. State, 518 So.2d 1217, 1218 (Miss. GENERALLY: 1988). Defense instruction on self-defense - defendant need not prove he acted in self-defense.
DEFENSE - SELF-DEFENSE/ GENERALLY: Williams v. State, 590 So.2d 1374 (Miss. 1991). Defendant's instruction on self-defense. Not granted by trial Court because it was cumulative but it is correct.
DEFENSE - SELF-DEFENSE/ GENERALLY:Ladner v. State, 450 So.2d 69, 82 (Miss. 1984). Self-defense instruction, generally granted.
DEFENSE - SELF-DEFENSE/ DEFENDANT ARMING HIMSELF: Wood v. State, 144 So.2d 545, 547 (Miss. 1937). Defendant's instruction explaining self-defense even though the State may prove Defendant armed himself with a gun.
DEFENSE - SELF-DEFENSE/ SELF OR OTHERS: Calhoun v. State, 526 So.2d 531, 533 (Miss. 1988). Defendant's instruction on his right to defend self or third parties.
DEFENSE/ AFTER DEVELOPED FACTS: Sloan v. State, 368 So.2d 228 (Miss. 1979). Defendant's self-defense instruction - after developed facts. (The case does not contain a copy of this instruction.)
DEFENSE - SELF-DEFENSE/ NO DUTY TO FLEE: Turnage v. State, 518 So.2d 1217 (Miss. 1988). Defendant's instruction that he has no duty to flee.
DEFENSE - SELF-DEFENSE/ NO DUTY TO FLEE: May v. State, 460 So.2d 778, 784 (Miss. 1985). Defendant's approved instruction - no duty to flee.
DEFENSE - SELF-DEFENSE/ ACTING ON APPEARANCE OF DECEASED: Scott v. State, 42 So.2d 184 (Miss. 1906). Defendant's instruction on his right to base self-defense on the deceased's appearance.
DEFENSE - SELF-DEFENSE/ ACTING ON APPEARANCE OF DECEASED: Turnage v. State, 518 So.2d 1217, 1218 (Miss. 1980). Defendant's self-defense, right to act on deceased's appearance.
DEFENSE - SELF-DEFENSE/ DECEASED'S ACTIONS: Sloan v. State, 368 So.2d 228 (Miss. 1979). Defendant's right to act on deceased's appearance.
DEFENSE - SELF-DEFENSE/ DEFENDANT'S RIGHT TO CARRY WEAPON: Duvall v. State, 634 So.2d 524 (Miss. 1994); Roy v. State, 381 So.2d 1032. Defendant may have the jury instructed that he has a right to carry a concealed weapon under certain circumstances. See also Wood v. State, 144 So.2d 545, 547 (Miss. 1932); Austin v. State, 324 So.2d 245, 250 (Miss. 1975).
DEFENSE - SELF-DEFENSE/ DEFENSE OF OTHERS: Calhoun v. State, 526 So.2d 531, 533 (Miss. 1988); Folks v. State, 92 So.2d 461 (Miss. 1957). Conviction reversed because trial court did not inform jury of defendant's right to defend self or other.
DEFENSE - SELF-DEFENSE/ ANTICIPATE ACT OF DECEDENT: Turnage v. State, 518 So.2d 1217, 1218 (Miss. 1988). Defendant's right to anticipate acts of decedent. No error in trial court's denial of instructions because other instructions covered this issue.
DEFENSE/ DEFENSE OF HABITATION: Hull v. State, 350 So.2d 60, 62 (Miss. 1977). Instruction cited with approval.
DEFENSE - SELF-DEFENSE/ AGAINST LARGER UNARMED ADVERSARY: Hull v. State, 350 So.2d 60, 63 (Miss. 1977).
DEFENSE - SELF-DEFENSE/ GENERALLY: Deadeaux v. State, 630 So.2d 36 (Miss. 1994). State's burden to prove defendant did not act in self-defense.
DEFENSE INSTRUCTION - SELF-DEFENSE/GENERAL: Approves a defense form. Buchanan v. State, 567 So.2d 194, 199 (Miss. 1990) and prosecution got instruction from Robinson v. State, 434 So.2d 206, 207 (Miss. 1983). Note: Robinson contains recommended instructions by Mississippi Supreme Court. See: Ellis v. State, 708 So.2d 884 (Miss. 1998)
DEFENSE/ ACCIDENTAL SHOOTING: Wadford v. State, 385 So.2d 951, 957 (Miss. 1980). Accidental shooting resulting from someone hitting defendant's arm.
DEFENSE/ MANSLAUGHTER/ HEAT OF PASSION: "I did not mean to do it" enough for manslaughter instruction. Roberts v. State, 458 So.2d 719 (Miss. 1984).
DEFENSE/ MANSLAUGHTER/ HEAT OF PASSION: Ruffin v. State, 444 So.2d 839 (Miss. 1984). Reversible error not to grant heat of passion instruction where the testimony shows a fight between two persons in a "heated atmosphere". See Roberts v. State, 458 So.2d 719 (Miss. 1984); Martin v. State, 112 Miss. 365, 73 So. 64 (1916).
EYEWITNESS IDENTIFICATION: In Davis v. State, 568 So.2d 277 (Miss. 1990), the Mississippi Supreme Court did not find error when the trial Court refused an eye witness identification instruction. The Court did hold that the instruction could be given. Later in Hansen v. State, 592 So.2d 114, 141 (Miss. 1991) the Court again refused to find error in the trial Court's refusal to grant another form of an eye witness instruction, citing Holmes v. State, 483 So.2d 684, 687 (Miss. 1987). The Mississippi Supreme Court in Warren v. State, 709 So.2d 415 (Miss. 1998) held that an eye witness instruction should be given in the proper case. The lesson from this is that you should never give up on the issue of instructions.
FLIGHT INSTRUCTION: An objection should always be raised to the prosecution's flight instruction. A flight instruction is only proper where flight is unexplained and where the evidence has probative value. Evans v. State, 579 So.2d 1246 (Miss. 1991); Brock v. State, 530 So.2d 146, 153 (Miss. 1988); Pannell v. State, 455 So.2d 785 (Miss. 1984); Quarles v. State, 199 So.2d 58 (Miss. 1967); Lightsey v. State, 493 So.2d 375 (Miss. 1986); Fuselier v. State, 702 SO.2d 388 (Miss. 1997).
A flight instruction should automatically be ruled-out and found to have no probative value if the accused raises self-defense. Banks v. State, 631 So.2d 748, 751 (Miss. 1997). If evidence of flight is probative of things other than guilt or guilty knowledge, such evidence and instructions should not be given. Mack v. State, 650 So.2d 1289 (Miss. 1994). Counsel should always look for facts explaining the flight other than guilty knowledge in order to preserve this issue on appeal.
GRAND LARCENY: Interesting instructions stating that property allegedly stolen that is taken openly in the presence of the owner or third parties carries a presumption it is evidence of trespass. Lawson v. State, 138 So.2d 361 (Miss. 1931); Oakman v. State, 39 So.2d 777 (Miss. 1949).
IMPEACHMENT/ PRIOR CONVICTION: The accused has the right to a cautionary instruction whenever the trial court admits a prior conviction for impeachment. Smith, supra. Pugh v. State, 584 So.2d 781 (Miss. 1991); Peterson v. State, 578 So.2d 632 (Miss. 1987). Right is sue sponte, Pugh.
IMPEACHMENT/ PRIOR INCONSISTENT: Error to refuse to give impeachment instruction. Ferrill v. State, 643 So.2d 501 (Miss. 1994); McGee v. State, 608 So.2d 1129 (Miss. 1992).
INFORMERS: In United States v. Carroll, 93-5030 (6/22/94; 6th Cir.), the defendant's conviction was reversed due to the prosecutor's closing argument which gave the jury the impression that the government was carefully monitoring the cooperating witness to insure the truthfulness of his testimony. The Court of Appeals suggests an instruction which is provided below:
The Court instructs the jury that the promise in the cooperation agreement by the cooperating witness to tell the truth adds little to the truth-seeking obligation imposed by the oath. The prosecution often has no way of knowing whether the witness is telling the truth or not. [It is your sole function to determine the believability of the witness.]
LESSER-INCLUDED OFFENSE INSTRUCTIONS: A lesser included offense instruction should be granted if it can be said to arise out of a nucleus of operative fact common with the factual scenario giving rise to the charge laid in the indictment. Berry v. State, 575 So.2d 1, 10 (Miss. 1990); Jefferson v. State, 556 So.2d 1016, 1020 (Miss. 1989); Wilson v. State, 639 So.2d 1326 (Miss. 1994). A lesser offense instruction may be proper even though the offense is not a lesser included. Gangl v. State, 539 So.2d 132, 136 (Miss. 1990).
Trial courts have regularly granted the lesser included manslaughter instructions in murder cases. Butler v. State, 608 So.2d 314, 320 (Miss. 1992). One factor to be considered in granting a lesser included offense is the disparity in the maximum punishment for the greater and lesser included offenses. Taylor v. State, 577 SO.2d 381, 383 (Miss. 1991).
The Mississippi Supreme Court set forth a test for measuring when a lesser-included offense should be granted. See Mease v. State, 539 So.2d 1324, 1330 (Miss. 1989), quoting Harper v. State, 478 So.2d 1017, 1021 (Miss. 1985).
Another method of measuring when a lesser-included offense should be granted was stated in Fairchild v. State, 459 So.2d 793, 801 (Miss. 1984).
A third method was employed in Monroe v. State, 515 So.2d 860, 863 (Miss. 1987), even though the Court noted that all methods were different ways of saying the same thing. Choose the language most favorable to your case!
In order to be entitled to a lesser included offense instruction there must be some evidence to justify the instruction. The evidence need not be substantial. In Welch v. State, 566 SO.2d 680, 684 (Miss. 1990) the Court held that accused citizens are entitled to have the jury instruction on their theory of the case even though the evidence is "weak, of doubtful credibility and even though the defendant's testimony is the only support for the defense/instruction." See: United States v. Young, 464 F.2d 160, appeal after remand, 481 F.2d 993 (5th Cir. 1973).
"The accused has an absolute right to have every lawful defense he asserts, even based on meager evidence, to be submitted as a factual issue under proper instructions." O'Bryant v. State, 530 So.2d 129, 133 (Miss. 1988). See Robinson v. State, 571 So.2d 275 (Miss. 1990). "As long as the testimony muddies the water enough, the defendant is entitled to the lesser-included offense instruction." Boyd v. State, 557 So.2d 1178 (Miss. 1989); Harbin v. State, 478 So.2d 796, 799-800 (Miss. 1985). A lesser included offense instruction should be given if there is some degree of support for it in the record. Payton v. State, 642 So.2d 1328 (Miss. 1994).
"I did not mean to do it" was enough for a lesser included! Roberts v. State, 458 So.2d 719 (Miss. 1984).
LESSER-INCLUDED OFFENSES/DUTY OF COURT TO GRANT: The Mississippi Supreme Court has been inconsistent in this area of the law. In Harper v. State, 478 So.2d 1017 (Miss. 1985) the Court held it was error to refuse an inartful instruction and error not to advise counsel on how to cure the deficiency. See also: Thomas v. State, 278 So.2d 469 (Miss. 1973); Griffin v. State, 533 So.2d 444 (Miss. 1989). In Hester v. State, 602 So.2d 869 (Miss. 1992), the Court reversed and remanded because the trial court did not insure that the only instruction embodying the theory of defense was put in proper form. In Ballenger v. State, 667 So.2d 1242 (Miss. 1995), the Court held that the trial court is not required to instruct sua sponte but trial courts have the authority to initiate appropriate written instructions to meet the ends of justice. Newell v. State, 308 So.2d 71, 78 (Miss. 1975).
LIMITING INSTRUCTION/ NECESSITY: In Smith v. State, 656 So.2d 95 (Miss. 1995, the Court held that a cautionary/limiting instruction 404(b) EVIDENCE: should be given whenever 404(b) evidence is admitted. See also Watts v. State, 635 So.2d 1364, 1369 (Miss. 1994); United States v. Davis, 15 F.3d 526 (6th Cir. 1994); United States v. Diaz, 585 F.2d 116 (5th Cir. 1978). Also Brock v. State, 530 So.2d 146, 153 (Miss. 1988).
In Smith, the Court held that when 404(b) evidence is admitted over objection, it is deemed to be an invocation of the right to the MRE 403 balancing analysis and a limiting instruction.
Knight v. State, 601 So.2d 403 (Miss. 1992); McMillan v. City of Jackson, 701 So.2d 1105 (Miss.1997).
NUMBER OF INSTRUCTIONS: Court can limit number. Blue v. State, 716 So.2d 567 (Miss. 1998)
PLAIN ERROR: In Dedeaux v. State, 630 So.2d 31 (Miss. 1995), the Court reversed and remanded the Defendant's conviction for murder and ordered him sentenced for manslaughter even though his trial counsel argued against a manslaughter instruction, even though the Court has said that failure to request a lesser included will constitute a waiver. Reddix v. State, 381 So.2d 999 (Miss. 1980).
POSSESSION/DRUGS: Broadus v. State, 392 So.2d 203 (Miss. 1980). Conviction reversed because trial court failed to grant instruction advising jury that they could not convict unless defendant knew drugs were in package.
POSSESSION/PHYSICAL PROXIMITY TO DRUGS: Defendant is entitled to instructions informing jury that mere physical proximity, in itself, does not show constructive possession. Ferrell v. State, 649 So.2d 831 (Miss. 1995); Cunningham v. State, 583 So.2d 960 (Miss. 1991); Fultz v. State, 573 So.2d 689 (Miss. 1990).
POSSESSION/RECENTLY STOLEN PROPERTY: Robinson v. State, 418 So.2d 749, 756 (Miss. 1982). Court cites the only approved instruction to be given with possession of recently stolen property.
PRESUMPTION OF INNOCENCE: Gentry v. State, 66 So. 982, 983 (1915).
RAPE: Boyd v. State, 557 So.2d 1198 (Miss. 1984). Aggravated assault - Lesser included. Also: Griffin v. State, 533 SO.2d 444 (Miss. 1988). Simple assault can be lesser included.
REASONABLE DOUBT: See Evans v. State, 579 SO.2d 1246, 1249 (Miss. 1991).
REASONABLE DOUBT: Sloan v. State, 368 So.2d 228 (Miss. 1977). Indictment not evidence.
REASONABLE DOUBT: See Wilcher v. State, 455 So.2d 727 (Miss. 1984) for some very favorable wording in defense instructions. Also: Simpson v. State, 497 So.2d 424, 429 (Miss. 1986).
REASONABLE DOUBT/ ARISE FROM LACK OF EVIDENCE: Hunter v. State, 489 SO.2d 1086, 1089 (Miss. 1986). Law does not shield the guilty from punishment. Gilleylen v. State, 255 So.2d 661, 664 (Miss. 1971).
RIGHT OF DEFENDANT NOT TO TESTIFY: Wood v. State, 221 Miss. 901, 907 (Miss. 1954).
RIGHT TO RESIST UNLAWFUL ARREST: Boyd v. State, 406 So.2d 824, 826 (Miss. 1981).
ROBBERY, ARMED/ LACK OF INTENT TO STEAL: Williamson v. State, 590 So.2d 1374, 1380 (Miss. 1991). Approved instruction.
ROBBERY, ARMED/ WEAPON: Davis v. State, 530 So.2d 694, 699 (Miss. 1988). Instructions denied as repetitious but correct in form.
ROBBERY/LESSER INCLUDED ARMED ROBBERY: Davis, supra.
SHARPLIN CHARGE/ (ALLEN CHARGE): Permit no oral instructions on jury deliberations. Brantley v. State, 610 So.2d 1139 (Miss. 1992). Herrington v. State, 690 SO.2d 1132 (Miss. 1997) provides an example of an approved and unapproved Sharplin charge.
SPECIAL NOTE: If there is serious doubt as to whether an instruction should be given, doubt should be resolved in form of the accused. Lenard v. State, 552 So.2d 93 (Miss. 1989); Graham v. State, 582 So.2d 1014 (Miss. 1991). Prohibition against slanting instructions. Doby v. State, 557 So.2d 533 (Miss. 1990).
SPECIFIC INTENT: Should be clear in instructions. McGowan v. State, 541 So.2d 1027, 1030 (Miss. 1989).
STATE INSTRUCTION - MANSLAUGHTER/ CULPABLE NEGLIGENCE: Moffett v. State, 540 So.2d 1313, 1318 (Miss. 1989). Error to grant State instruction where no evidentiary basis existed. Read this case because the Court questions the propriety of listing specific instances of culpable negligence.
STATE INSTRUCTION - MURDER/MALICE AFORETHOUGHT: Patterson v. State, 289 So.2d 685 (Miss. 1974). Reversible error to give instruction. See also: Cooley v. State, 346 So.2d 912 (Miss. 1977). Condemns State instruction that malice Aforethought and deliberate design need not exist for definite time.
STATE INSTRUCTION - EXISTENCE OF MALICE AFORETHOUGHT: Stevens v. State, 458 So.2d 726, 730 (Miss. 1994) approves prosecution instruction that malice need not exist for any specific length of time. See: Pittman v. State, 297 So.2d 888 n.1 (Miss. 1974). But, see Duvall v. State, 634 So.2d 524, 526 (Miss. 1994) where the Court said "deliberate design" instruction and manslaughter were in hopeless conflict. Windham v. State, 520 So.2d 123, 126 (Miss. 1987). Nicolaou v. State, 534 So.2d 168 (Miss. 1988), stating prosecution should not define reasonable doubt or malice aforethought.
STATE INSTRUCTION - EXISTENCE OF MALICE: Peterson v. State, 242 So.2d 420, 427 (Miss. 1970); Pittman v. State, 297 So.2d 888, n.1 (Miss. 1974). State instructions that are error. See: Toney v. State, 298 So.2d 716, 720 (Miss. 1974).
STATE INSTRUCTION - MALICE/DEPRAVED HEART: Both malice and depraved heart is same instruction. Mallett v. State, 606 So.2d 1092 (Miss. 1992).
STATE INSTRUCTION - RESTRICTING DEFENDANT'S MENS REA: Welch v. State, 566 So.2d 680, 684 (Miss. 1990). Court found prosecution instruction improper because it diminishes the mens rea that defendant must possess.
STATE INSTRUCTION - SELF-DEFENSE/ A) DEFENDANT ACTS AT HIS OWN PERIL. B) JURY, THE FINAL JUDGE OF JUDGE OF DEFENDANT'S ACTIONS. STATE INSTRUCTION - ATTEMPT TO PREEMPT SELF-DEFENSE: Some of these instructions are condemned, Haynes v. State, 451 So.2d 227, 229 (Miss. 1984). Approved form, Robinson v. State, 434 So.2d 206, 207 (Miss. 1983); See also: Lenoir v. State, 445 So.2d 1371, 1372 (Miss. 1984); Scott v. State, 446 So.2d 580 (Miss. 1984). Thompson v. State, 602 So.2d 1185, 1189 (Miss. 1992). Court condemned instructions that attempt to pre-empt or limit self-defense.
STATE INSTRUCTION - YOU DON'T HAVE TO KNOW DEFENDANT GUILTY. THEORY OF DEFENSE: This instruction is condemned but not necessarily subject to plain error. Whittington v. State, 523 So.2d 966, 977 (Miss. 1988); Howell v. State, 53 So. 954, 955 (Miss. 1911). Murphy v. State, 246 So.2d 920 (Miss. 1971). Yet see, Whittington v. State, 523 So.2d 966 Defendants are entitled to have the jury instructed on any lesser included offenses and their theory of defense. Failure to do so is reversible error. Murphy v. State, 566 So.2d 1201 (Miss. 1990); Hester v. State, 602 So.2d 869 (Miss. 1992); Fultz v. State, 573 So.2d 689 (Miss. 1990).
"Absolute right to have every lawful defense presented to jury even if based on meager or highly unlikely evidence." This is a fundamental right. O'Bryant v. State, 530 So.2d 129, 133 (Miss. 1988).
VERDICT FORM: Should be on separate sheet of paper. Doby v. State, 557 So.2d 533, 540 (Miss. 1990).
WEATHERSBY RULE: In Wilcher v. State, 455 SO.2d 727, 735 (Miss. 1984), the Court granted an instruction that correctly states the Weathersby Rule, but this is not the proper subject of an instruction. See also: Griffin v. State, 495 So.2d 1352, 1355 (Miss. 1986); Blanks v. State, 547 So.2d 29, 34 (Miss. 1989). If you do not know the Weathersby Rule see Green v. State, 631 So.2d 206 (Miss. 1983).
WITNESSES: Comment on weight of evidence disproved. Bell v. State, 411 SO.2d 763 (Miss. 1982). Defendant a competent witness improper. McClain v. State, 625 So.2d 774 (Miss. 1993).
WITNESS INTERESTS / STATE INSTRUCTION: Bryson v. State, 291 So.2d 693 (Miss. 1974). Cannot instruct the jury to consider the interest which any witness may feel in the result of this case, except accomplices.
WITNESSES: POLICE OFFICERS: Improper to instruct jury that they should not give police officer's testimony any greater weight than another person. Stewart v. State, 355 So.2d 94, 95 (Miss. 1978); Hansen v. State, 592 So.2d 114, 140 (Miss. 1991).