Barry Joe Roberts v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-KA-00599-COA
BARRY JOE ROBERTS
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEE
3/11/2004
HON. ANN H. LAMAR
PANOLA COUNTY CIRCUIT COURT
DAVID L. WALKER
OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
ROBERT J. KELLY
CRIMINAL - FELONY
DEFENDANT CONVICTED OF AGGRAVATED
ASSAULT WITH A DEADLY WEAPON AND
SENTENCED TO FIFTEEN YEARS IN THE
CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS WITH FIVE
YEARS POST-RELEASE SUPERVISION.
DEFENDANT ALSO ORDERED TO PAY $100
TO CRIME VICTIMS COMPENSATION FUND
WITHIN SIX MONTHS OF RELEASE FROM
MDOC.
AFFIRMED: 05/17/2005
BEFORE BRIDGES, P.J., IRVING AND MYERS, JJ.
IRVING, J., FOR THE COURT:
¶1.
Barry Joe Roberts was convicted by a Panola County jury of aggravated assault. He was
sentenced to serve fifteen years in the custody of the Mississippi Department of Corrections, with five years
post-release supervision. Aggrieved, Robert now argues on appeal that the trial judge erred in granting the
State’s self-defense jury instruction and in denying his proposed instruction.
¶2.
Finding no reversible error, we affirm Robert’s conviction and sentence.
FACTS
¶3.
On the night of March 2, 2003, Terry Shields encountered Barry Joe Roberts and Roberts’s son,
Chase, while at a local nightclub.1 What transpired next is the subject of dispute.
¶4.
At trial, Shields testified that while at the club Roberts walked by him and stated that he was going
to “f--- him up.” Shields stated that shortly thereafter Chase struck him in the back of the head with a beer
bottle. In response, Shields hit Chase and knocked him down to the dance floor. Shields further testified
that he then turned around and observed Roberts approaching him with a pocketknife. Shields stated that
he attempted to swing at Roberts to stop him, but Roberts stabbed him four times in the abdomen, causing
him to sustain critical injuries.2
¶5.
Roberts, however, gave a different version of events. Roberts testified that when he saw Shields
and Chase fighting, he attempted to break the two up. He stated that Shields then hit him in the head and
knocked him to the floor. Roberts testified that because he was afraid that Shields would harm him and
Chase, he panicked and stabbed Shields with the knife. Roberts was subsequently indicted and convicted
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Shields testified that he was acquainted with Roberts and Chase because they all lived in the
same neighborhood. Shields also testified that he had previously bought marijuana from Chase while
working as an informant with the sheriff’s office, which resulted in Chase serving time in prison.
2
Shields’s small intestine and a blood vessel in his stomach were cut in half, and he received a
laceration to his pancreas.
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of aggravated assault. Additional facts will be related during our discussion of the issue.
ANALYSIS AND DISCUSSION OF THE ISSUE
¶6.
In his sole assignment of error, Roberts argues that the trial judge erred in granting instruction S-2
and in denying instruction D-7, which was offered as an alternative to instruction S-2. Instruction S-2, the
State’s self-defense instruction which referred to Shields as a “victim,” instructed the jury as follows:
The Court instructs the Jury that to make an Aggravated Assault justifiable on the grounds
of self-defense, the danger to the Defendant or another must be either actual, present and
urgent, or the Defendant must have reasonable grounds to apprehend a design on the part
of the victim to kill him or another or to do him or another some great bodily harm; and,
in addition to this, he must have reasonable grounds to apprehend that there is imminent
danger of such design being accomplished. It is for the jury to determine the
reasonableness of the ground upon which the Defendant acts.
If you, the jury, unanimously find that the Defendant, Barry Joe Roberts, acted in selfdefense, or in the defense of another then it is your sworn duty to return a verdict of not
guilty.
¶7.
During the jury instruction conference, Roberts made the following objection to instruction S-2:
The only objection I would have, Your Honor, pursuant to Uniform Circuit and County
Court Rule 3.07 is in the fourth line the word “victim,” the name “Terry Shields, Sr.” should
be substituted for that. And the argument to support that would be that Mr. Kelly has
basically made Mr. Roberts out to be the aggressor in this case. I have done the best I can
to make Mr. Shields out to be the aggressor in this case, that Mr. Roberts acted in selfdefense of himself or another, and, therefore, the name “Terry Shields, Sr.” should be
substituted in lieu of the word “victim. . . .”
¶8.
Thereafter, Roberts proposed the following instruction (D-7) as an alternative to instruction S-2:
The court instructs the jury that to make an aggravated assault justifiable on the grounds
of self-defense, the danger to the defendant must be either actual, present and urgent, or
the defendant must have reasonable grounds to believe that Terry Shields, Sr. intended
to kill the defendant or another or do him some great bodily harm, and in addition to this,
he must have reasonable grounds to believe that there is imminent danger of such act being
accomplished. It is for the jury to determine the reasonableness of the grounds upon which
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the defendant acts. If you, the jury, unanimously find that the defendant acted in selfdefense, then it is your sworn duty to return a verdict in favor of the defendant.
¶9.
As is readily apparent, instructionD-7 contains language identical to the language in instruction S-2,
except it replaces the word “victim” with the name “Terry Shields, Sr.” and changes the phrase, “a verdict
of not guilty,” to the following phrase: “a verdict in favor of the defendant.” Roberts contends that the use
of the word “victim” implied that he was guilty and impaired the jury’s ability to impartially consider the
evidence.
¶10.
The law is clear that “‘[w]hen considering a challenge to a jury instruction on appeal, we do not
review the jury instructions in isolation; rather, we read them as a whole to determine if the jury was
properly instructed.’” Milano v. State, 790 So. 2d 179, 184 (¶14) (Miss. 2001) (quoting Burton ex rel.
Bradford v. Barnett, 615 So. 2d 580, 583 (Miss. 1993)). “[I]f all instructions taken as a whole fairly, but
not necessarily perfectly, announce the applicable rules of law, no error results.” Milano, 790 So. 2d at
184 (¶14). Here, a review of the jury instructions given by the trial court reveals that when read together,
the instructions set forth an adequate statement of the law on self-defense. Further, the jury was properly
instructed as to the theory of Roberts’s case, that is, if it found that he was acting in self-defense or in the
defense of others, it was to find him not guilty.
¶11.
We find that the trial judge did not err in granting instruction S-2, nor did he err in refusing
instruction D-7. We are not persuaded that the use of the term “victim” prejudiced the jury against Roberts
in its determination of whether Roberts acted in defense of himself or in defense of his son, Chase. The jury
was well aware that Shields had been stabbed by Roberts, making Shields a victim, for a victim is one who
has been harmed or injured by another. THE AMERICAN HERITAGE COLLEGE DICTIONARY 1404 (3rd ed.
1997). The question was not whether Shields was a victim, but whether he became a victim as a result of
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his own aggression or as a result of Roberts’s unjustified aggression against him. On this issue, the jury was
properly instructed. Therefore, this issue lacks merit.
¶12. THE JUDGMENT OF THE CIRCUIT COURT OF PANOLA COUNTY OF
CONVICTION OF AGGRAVATED ASSAULT WITH A DEADLY WEAPON AND
SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT
OF CORRECTIONS WITH FIVE YEARS POST-RELEASE SUPERVISION IS AFFIRMED.
DEFENDANT IS FURTHER ORDERED TO PAY $100 TO THE CRIME VICTIMS
COMPENSATION FUND WITHIN SIX MONTHS OF RELEASE FROM MDOC. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., BRIDGES AND LEE, P.JJ., MYERS, CHANDLER, GRIFFIS, BARNES
AND ISHEE, JJ., CONCUR.
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