Harper v. State

For the Court:

I.

This appeal presents important questions respecting the nature and extent of the trial judge’s responsibility with regard to instructing juries in the law in criminal cases. We answer these questions by declaring that, where under the evidence a party is entitled to have the jury instructed regarding a particular issue and where that party requests an instruction which for whatever reason is inadequate in form or content, the trial judge has the responsibility either to reform and correct the proffered instruction himself or to advise counsel on the record of the perceived deficiencies therein and to afford counsel a reasonable opportunity to prepare a new, corrected instruction. Where the trial judge fails in this duty and where the proffered instruction relates to a central issue in the case which is not covered by any other instruction given to the jury, we will reverse.

All of this arises in the context of a burglary prosecution in Hinds County Circuit Court wherein the accused emboldened by intoxication came right through a plate glass window on the front of the victim’s occupied dwelling. The accused’s breaking and entering were far more picturesque and dramatic than in the normal mundane burglary case, and the evidence was legally adequate to establish such. Because, however, under the evidence the accused was entitled to have the jury consider whether he was guilty only of the lesser included offense of trespassing and because en route to refusing him that right the trial judge fell short of performance of his duty as described above, we reverse and remand for a new trial.

II.

This case has its genesis in an unhappy domestic situation. John L. Harper, Defendant below and Appellant here, and his wife, Cathy, were divorced on October 10, 1981. Custody of their young daughter, Candice, was given to Harper’s ex-wife. On November 5, 1982, Harper’s ex-wife married a man named Jeff Foster. Harper was upset by this but became particularly agitated when his ex-wife told him that she and her new husband were thinking of moving to Texas and taking the little girl with them.

On the night of November 11, 1982, Harper got drunk and at around 2:30 a.m. drove out to the home of his ex-wife and her new husband. Harper kicked on the door and woke everyone up and demanded that he be allowed to see his daughter before they moved to Texas. Not surprisingly, Harper was refused entrance. He was told he could exercise visitation on the weekends as prescribed by the divorce decree. Harper left, got in his vehicle and drove off, and the Fosters started back to their bedroom. Before getting there, they heard a crash in the living room area. Still highly intoxicated, Harper had returned, kicked out a four foot by eight foot picture window and burst through into the living room. Foster testified that Harper said he (Harper) was going to kill him (Foster). In any event, harsh words were exchanged as Harper, unarmed, came down the hall, at which point Foster fired two shots hitting Harper in the stomach and shoulder. According to Foster, Harper kept saying he was going to fight him (Foster). Foster was able to hold Harper on the floor, the police were called and Harper was taken into custody.

The evidence regarding the events of the night of November 11, 1982, was the subject of some dispute at trial. Primarily, Harper consistently denied any intent to harm anyone or commit any crime once inside the Foster home. He repeatedly said that his only purpose in going into the home was to see his child before she was taken to Texas. He insisted that Foster had provoked the physical altercation by drawing and firing a firearm.

For his efforts of the evening, Harper was indicted by the Grand Jury of the First Judicial District of Hinds County, Mississippi, for burglary of an inhabited dwelling. Miss.Code Ann. § 97-17-21 (1972). Necessarily — and this is important to one of the issues to be discussed below — Harper was charged with unlawfully breaking and entering the Foster home “with intent to commit some crime therein”. At trial the State sought to prove that Harper broke and entered with intent to commit an assault upon Jeff Foster, his ex-wife’s new husband. In due course Harper was found guilty of burglary of an inhabited dwelling and on January 24, 1984, sentenced to ten years imprisonment, five years of which were suspended. Harper now appeals his conviction and sentence.

III.

Harper first assigns as error the trial judge’s refusal to grant his motion for judgment of acquittal notwithstanding the verdict. That motion, of course, functionally operated as a renewal of Harper’s request for a peremptory instruction made at the conclusion of all of the evidence and after both sides had rested. The legal basis of the motion was Harper’s suggestion that the evidence was insufficient as a matter of law to establish an essential element of the offense, to-wit: That when he literally broke and entered the Foster home he did so with intent to commit some crime therein. Harper says that he only wanted to see his daughter before his ex-wife took her to Texas.

Harper’s state of intoxication on the occasion in question, indisputably extensive, does not operate to negative criminal intent in cases such as this. Cummings v. State, 465 So.2d 993, 995-96 (Miss.1985); McDaniel v. State, 356 So.2d 1151, 1161 (Miss.1978). Harper does not seriously argue to the contrary.

The fatal flaw in Harper’s assignment is that it ignores firmly established and lawfully imposed limitations upon our scope of review of jury verdicts in criminal cases. Where a defendant in a criminal prosecution has requested a peremptory instruction in a criminal case or after conviction renewed that request via a motion for judgment of acquittal notwithstanding the verdict, the trial judge must consider all of the evidence — not just the evidence which supports the State’s case — in the light most favorable to the State. Williams v. State, 463 So.2d 1064, 1067 (Miss.1985); May v. State, 460 So.2d 778, 781 (Miss.1984); Sadler v. State, 407 So.2d 95, 97 (Miss.1981). The credible evidence which is consistent with the verdict must be accepted as true. Warn v. State, 349 So.2d 1055, 1056 (Miss.1977); Spikes v. State, 302 So.2d 250, 251 (Miss.1974); Cochran v. State, 278 So.2d 451, 453 (Miss.1973). The State must be given the beneift of all favorable inferences that may reasonably be drawn from the credible evidence. Glass v. State, 278 So.2d 384, 386 (Miss.1973). If the facts and inferences so considered point in favor of the defendant with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty, granting the peremptory instruction or j.n.o.v. is required. Williams v. State, 463 So.2d at 1067. On the other hand, if there is substantial evidence opposed to the motion, that is, evidence of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, fair-minded men in the exercise of impartial judgment might reach different conclusions — the request or motion should be denied and the jury’s verdict allowed to stand. Williams v. State, 463 So.2d at 1068; May v. State, 460 So.2d at 781.

The core of Harper’s point here is his contention that the State’s proof fails on one of the essential elements of the crime of burglary, i.e., a previously formed intent to commit some crime within the dwelling after entry. No other part of the State’s factual scenario of what Harper did at the Foster home on the night in question is seriously contested. More to the point, no other element of the offense charged is said to have been proved so inadequately that Harper of right was entitled to the granting of his request for a peremptory instruction or his motion for j.n.o.v.

Viewing the evidence in accordance with the standards outlined above, we have the testimony of Jeff Foster that immediately upon entry Harper expressed an intent to kill him. Moreover, the circumstances suggest that Harper, drunk though he was, had become enraged by Foster’s refusal to allow him admittance and had returned to the house and burst through the window with intent to do Foster harm. Reasonable jurors could believe from this and other evidence in the record that Harper formed the intent to assault Foster before he (Harper) broke into the house. Without further ado, we hold that the evidence was sufficient so that, with respect to the “intent to commit some crime therein” issue, Harper’s request for a peremptory instruction and his subsequent motion for judgment of acquittal notwithstanding the verdict were correctly denied.

IV.

A.

Harper next assigns as error the trial judge’s refusal to submit to the jury the question of whether he may have been guilty of the lesser included offense of trespass. Specifically, Harper requested that the jury be given his proposed Instruction D-5 which reads as follows:

The Court instructs the jury that if any person shall go upon the enclosed land of another without his consent, after being notified by such person, personally, or shall remain on such land after a request by such person to depart, he shall be guilty of trespassing.

If you believe from the evidence in this case that the offense, if any, committed by the defendant was a trespass, the form of your verdict may be:

“We, the Jury, find the defendant guilty of trespass”.

The instruction purports to have been predicated upon Miss. Code Ann. § 97-17-85 (1972).

We have held above that there was evidence in the record sufficient to render unassailable a jury finding of “intent to commit some crime therein”. This fact, however, in no way suggests that the evidence was so clear that the jury had no rational alternative but to so find.

At trial Harper never denied that he went to the Foster home on the night of November 11, 1982, and never denied that he went upon the premises and in fact entered the house without permission. In effect, he confessed to guilt of trespass (and, no doubt, his conduct constituted other crimes), but denied any intent to commit any crime once inside the Foster home. The defense is summed up in this question and answer while Harper was on the witness stand.

Q. What was your purpose in going through that window?

A. For my child. That’s the only thing I had on my mind. I had no intention of hurting Cathy or Jeff. I just wanted to see my child before they left.

Q. There had been no threats at all prior to that time, had it?

A. No, sir, I never threatened him except whenever I was inside and he shot me.

This was testimony by Harper which the jury was entitled to weigh and consider and, if it felt it should do so, credit. Moreover, if this testimony were believed, it would establish that Harper was not guilty of burglary but only of the lesser included offense of trespass. In this context, Harper was entitled to an instruction submitting to the jury the issue of whether he was guilty of the lesser included offense of trespass.

The question is not whether the evidence was sufficient so that a rational jury could have found beyond a reasonable doubt that Harper broke into the Foster home with intent to assault but whether the evidence is so clear that no reasonable juror could have accepted Harper’s theory that his intent to assault was formed after he was in the house.

Trespass, of course, is a lesser included offense to every burglary. Gillum v. State, 468 So.2d 856, 861 (Miss.1985); Wells v. State, 305 So.2d 333, 338 (Miss.1975); Anderson v. State, 290 So.2d 628, 629 (Miss.1974). Ruffin v. State, 444 So.2d 839, 840 (Miss.1984) holds that lesser included offense instructions may be denied only where the evidence would justify a conviction on the principal charge only. The evidence in this case is not such that under Ruffin it would justify a conviction on the principal charge of burglary only.

The rule on whether a lesser included offense instruction should be given is functionally comparable to that applied when the trial judge considers whether a peremptory instruction or judgment notwithstanding the verdict should be granted, a discussion of which in the context of this Court’s scope of review is found in Section III above. The only fact issues which should be taken from the jury are those with respect to which the evidence is so clear that rational jurors could not disagree. On all other material issues of fact, the jury must be instructed in the law so that they may then perform their constitutional responsibility.

The rule here, however, is the opposite of that which prevails when the defendant requests a peremptory instruction at the conclusion of the state’s case. There we say that the evidence must be viewed in the light most favorable to the state and that we must accept as true all evidence supporting conviction even though that evidence may be contradicted by evidence offered by the defendant. We also give the state the benefit of all reasonable favorable inferences which may be drawn from the evidence. Conversely, in the present context, a lesser included offense instruction should be granted unless the trial judge— and ultimately this Court — can say, taking the evidence in the light most favorable to the accused, and considering all reasonable favorable inferences which may be drawn in favor of the accused from the evidence, that no reasonable jury could find the defendant guilty of the lesser included offense (and conversely not guilty of at least one essential element of the principal charge).

We have followed this view of when a lesser included offense instruction should be given in Lee v. State, 469 So.2d 1225, 1230-31 (Miss.1985); and Fairchild v. State, 459 So.2d 793, 801 (Miss.1984). Today we reaffirm the approach taken in those cases.

Gillum v. State, 468 So.2d 856, 861-62 (Miss.1985) is readily distinguishable. The court there noted that

there was no evidence to indicate that Gillum was a casual visitor or that he entered for any purpose other than to make himself at home, to plunder and steal.

468 So.2d at 861.

Under those circumstances, applying the test stated above, the lesser included offense instruction was corrected denied. The case at bar is altogether different, however. Harper offered testimony presenting a viable alternative explanation of his presence in the Foster home. Under these circumstances, the lesser included offense instruction should have been given.

B.

One final question is nevertheless presented inasmuch as the instruction tendered by defense counsel, Instruction No. D-5 which has been quoted above, was far from perfect. Counsel for Harper tells us that the instruction was taken verbatim from the statute regarding trespass. Miss. Code Ann. § 97-17-85 (1972). The statute refers to trespass upon enclosed lands. The trespass at bar, however, was made of a dwelling and the instruction should have been tailored accordingly. The instruction also suffers from the vice of abstractness. A sentence explaining the difference between trespass and burglary would have been appropriate. The very best that may be said for the instruction at issue is that it was inartfully drawn; at worst, it was an unacceptably inadequate presentation of the lesser included offense of trespass to the jury. All of this raises the question of just what is the trial judge’s duty when a defendant in a criminal case is entitled to an instruction on a particular issue and where he tenders an instruction regarding that issue which for one reason or another is unacceptable in form or content.

Newell v. State, 308 So.2d 71, 78 (Miss.1975) is venerable authority for the proposition that the trial judge has the authority to modify instructions submitted by the parties “if, in his discretion, he concludes such to be necessary”. 308 So.2d at 78. This statement appears in the context of Newell’s strong policy pronouncement that in every criminal prosecution the jury should “be fully instructed as to the law in each case ... [as] the ends of justice ... require”. 308 So.2d at 78. Newell and other cases, however, have sometimes been read to hold that the trial judge is not required to modify imperfect instructions. See, e.g., Ivory v. State, 336 So.2d 732, 734 (Miss.1976).

■ Today we build upon the policy pronouncements of Newell augmented by suggestions originally made in Thomas v. State, 278 So.2d 469, 472-73 (Miss.1973) and cases cited therein. Where the disputed instruction relates to a central feature of the case and where there is no other instruction before the court which treats the matter, Thomas holds it error to refuse an instruction on grounds that “it has been inartfully drawn”. 278 So.2d at 472. This approach has been followed in Lee v. State, 469 So.2d at 1232 with respect to a lesser included offense instruction (which like the instruction here had been taken verbatim from the statute defining the lesser included offense) and also in Rainer v. State, 473 So.2d 172, 174 (Miss.1985).

In the case at bar, the trespass instruction relates to a central feature of the case; indeed, the entire defense offered by Harper was that he was only guilty of trespass. No other instruction was presented to the trial judge by either the State or by Harper which treated the trespass issue. Under those circumstances assuming that the Instruction D-5 as tendered was in improper form, the trial judge at the very least, and in addition to his Newell-based authority to modify, had the obligation to advise counsel for Harper of the nature of the deficiencies of the proffered instruction and afford counsel a reasonable opportunity to present a new instruction.

The record in this case reflects that after Harper requested Instruction D-5, the State objected on several bases. The trial judge sustained the objection, but nothing in the record advises us of the basis for his ruling. More to the point, the trial judge never advised counsel for Harper of the deficiencies perceived by him to lie in the instruction nor (insofar as the record reflects) was Harper given the opportunity to present a revised instruction. In these failures the trial judge fell short of the performance of his duty in such circumstances.

In summary, we hold that Harper was entitled to have the lesser included offense of trespass submitted to the jury via a properly worded instruction. The trial judge’s refusal of tendered Instruction D-5, coupled with his failure to reform that instruction or advise Harper’s counsel of the perceived deficiencies therein and to afford Harper counsel a reasonable opportunity to prepare another instruction, constitutes error which requires reversal. Lee v. State, 469 So.2d at 1232. Intimations, if any, to the contrary found in cases such as Gray v. State, 472 So.2d 409, 416 (Miss. 1985); Oates v. State, 421 So.2d 1025, 1030 (Miss.1982); Bell v. State, 411 So.2d 763, 765 (Miss.1982); and Boring v. State, 253 So.2d 251, 253 (Miss.1971) shall stand modified.

REVERSED AND REMANDED FOR A NEW TRIAL

PATTERSON, C.J., and DAN M. LEE, PRATHER, SULLIVAN and ANDERSON, JJ., concur.

ROY NOBLE LEE, P.J., and HAWKINS, J., and WALKER, P.J., dissent.

. We emphasize that nothing said in this opinion waters down the authority of the trial judge, recognized in Newell, to

initiate and give appropriate written instructions in addition to the approved instructions submitted by the litigants if, in his discretion, he deems the ends of justice so require.

308 So.2d at 78

Indeed we encourage that our trial judges will exercise that authority in appropriate cases.