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McGowen v. State9/11/2003
oubt as to whether or not the killing was done in necessary self defense." Id. at 194. This Court pointed out in Taylor that the granting of the State's proffered jury instruction on self defense was error because "Taylor made no claim of self-defense. No one offered evidence of self-defense. Taylor's theory of defense throughout was one of accident or excusable homicide." Id. We also held that this instruction deflected the attention of the jury from Taylor's theory of accident toward the theory of self-defense which was never mentioned during the trial. Id. at 194. "One cannot read the instruction without forming the opinion that the principal defense to be considered is self-defense." Id. The Court went on to explain its reasoning. "Where, as here, the evidence is somewhat circumstantial and inconclusive, and where the Court has substantially instructed the jury that it consider a matter extraneous to the process, the risk of a misdirected verdict becomes intolerably high." Id. at 195.
. In a subsequent case, the Court of Appeals distinguished Taylor as being primarily concerned with whether a given jury instruction would confuse the jury. Hester v. State, 841 So.2d 158, 161 (Miss. Ct. App. 2002). Hester was on trial for murder and asserted that he acted in self-defense when he shot the victim four times during an altercation. The State sought and received from the trial court a jury instruction which offered the jury the option of finding Hester guilty of the lesser offense of manslaughter as opposed to murder. After being convicted of murder, Hester alleged on appeal that the trial court had erred in granting the State's request for a manslaughter instruction because that instruction negated his self-defense theory. Id. at 160. The Court of Appeals did not find a risk of confusion sufficient to warrant reversal. Id. at 161. "Whether Hester was completely exonerated because of a legitimate threat to him, or whether his reaction to events was still criminal but lessened by the heat-of-passion, are not self-canceling in the manner of the precedents [including Taylor]." Id.
. This Court similarly views the inclusion of an intoxication instruction as not self-canceling McGowen's proposed defense of total innocence. Before convicting McGowen, the jury had to ascertain for themselves beyond a reasonable doubt that he committed the act of killing Shelby. This determination had little to do with whether Hugh McGowen was intoxicated on the night of February 26, 2000. The jury's consideration of McGowen's inebriation would only come into play once the jury decided he in fact killed the victim. McGowen meanwhile maintained no partial defense, but rather total innocence, claiming his brother Charles committed the crime. The intoxication instruction did not present a high risk of confusing the jury or diverting the jury's attention from McGowen's proposed defense of complete innocence. Additionally, the jury instruction did not lessen the jury's responsibility in determining McGowen's guilt or innocence from the evidence and the law, but instead appropriately informed the jury that McGowen's criminal culpability was not otherwise lessened because of his voluntary intoxication.
. McGowen's second contention in his sixth assignment of error is that prosecution's proffer of the intoxication instruction constituted a breach of duty to ensure the protection of a defendant's constitutional and statutory rights. Because we have determined none of McGowen's constitutional or statutory rights were abrogated, there could not have been a breach of duty by the prosecutor to ensure such rights.
. In conclusion, we find the trial court did not abuse its discretion in allowing the intoxicati
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