Will Bardwell's got an interesting post up on his blog about the Mississippi Supreme Court granting cert on Ronregus Flowers v. State. What interests me the most isn't Will's post per se, as I believe he's correct on the law. What really grabbed my attention was a comment by "gogsalks." This "gogsalks" person may or may not practice criminal law in some form in Mississippi, but he/she puts forth a line of reasoning I've seen pushed by prosecutors before, and it's time to put it to rest.
Essentially, the prosecution argument goes like this: "Judge, deny this jury instruction on a lesser included offense/defense, as there's no credible testimony/not enough testimony in the record to support it." And that's the argument the commenter seems to be making on Will's post when he/she says "his story makes no sense."
Here's where, in my opinion, that's wrong. Settled law in Mississippi says that, if there is any evidence in the record to support the giving of an instruction on a lesser included offense (or defense), then that instruction must be given. McGowan v. State, 541 So. 2d 1027, 1028-29 (Miss. 1989). Furthermore, the evidence in the record concerning the lesser included offense must be viewed in the light most favorable to the defendant. Mease v. State, 539 So.2d 1324, 1330 (Miss. 1989) (quoting Harper v. State, 478 So. 2d 1017, 1021 (Miss. 1985)). It's certainly not the trial judge's job to pass judgment on the believability of that evidence. Rather, the trial judge's job is to determine whether or not that evidence, if believed, could provide the basis for a vote of not guilty amongst fair-minded jurors. Graham v. State, 582 So. 2d 1014, 1018 (Miss. 1991).
Put more simply, a trial judge can't say "I don't believe you, Mr. Defendant, so I'm denying your instruction." The trial judge CAN, however, say "your testimony, if believed, does not meet the elements of the defense you seek to offer through your instruction."
Hopefully the MSSC will shed a little more light on this issue, and help clear up any confusion down here at the trial level.
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3 comments:
This isn't just a matter of "settled Mississippi law"-- it proceeds from a lot of constitutional notions about due process.
I mean, since when does the prosecution get directed verdicts in criminal cases? And isn't denying a lesser included offense instruction where there is ANY evidence to support it tantamount to a directed verdict?
NMC - To answer you last question first: Yes.
As to your first question: You're being facetious, right?
Judges well above justice-court level are not free of the bias illustrated in this doggerel:
I'm impawtant in th' county,
I'm a justice of th' peace,
An' I disbelieve defendants
When they contradict th' p'leece.
The ability to segregate, in one's mind, (A) the conviction that a defendant's theory is hogwash, from (B) the objective possibility that a reasonable jury might buy the theory, is one of the essential qualifications for judicial fitness.
Regardless of whether we can measure this ability, however, it's clearly not a requirement for judicial office in Mississippi.
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