Ray Thomas Gore v. State of Mississippi
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Serial: 164984
IN THE SUPREME COURT OF MISSISSIPPI
No. 2008-CT-01977-SCT
RAY THOMAS GORE
v.
STATE OF MISSISSIPPI
ORDER
This matter is before the Court sitting en banc on the Petition for Writ of Certiorari
filed by counsel for Ray Thomas Gore. The petition was granted by order of the Court
entered on July 22, 2010. After due consideration, the Court finds that the petition was
improvidently granted and should be dismissed.
IT IS THEREFORE ORDERED that the Petition for Writ of Certiorari filed by Ray
Thomas Gore, is hereby dismissed as improvidently granted.
SO ORDERED, this the 14th day of October, 2010.
/s/ George C. Carlson, Jr.
GEORGE C. CARLSON, JR.,
PRESIDING JUSTICE
TO DISMISS: WALLER, C.J., DICKINSON, RANDOLPH, LAMAR, CHANDLER AND
PIERCE, JJ.
NOT TO DISMISS: GRAVES, P.J.
KITCHENS, J., OBJECTS TO THE ORDER WITH SEPARATE WRITTEN
STATEMENT.
IN THE SUPREME COURT OF MISSISSIPPI
No. 2008-CT-01977-SCT
RAY THOMAS GORE
v.
STATE OF MISSISSIPPI
KITCHENS, J., OBJECTS TO THE DISMISSAL OF PETITION FOR WRIT
OF CERTIORARI WITH SEPARATE WRITTEN STATEMENT:
¶1.
With respect, I disagree that our having granted certiorari in this case was
improvident, mainly because my review of the record leads me to conclude that Gore’s
theory of the case was not among the options presented to the jury for decision. While we
may see this case again, in the event that Gore should seek deliverance by means of a petition
for post-conviction collateral relief, I believe that this issue could and should have been
resolved by this Court at this time, i.e., sooner, rather than later.
¶2.
With the possible exception of the decedent’s 5-year-old child, who did not testify at
trial, Gore himself is the only surviving witness to the fatal shooting. In his signed statement
to police officers, which was read to the jury, Gore maintained that the shooting was
accidental. He said that he, the decedent’s small child, and a man named Freddie were at
Gore’s apartment on the night the female victim, Jackie Ford, was shot and killed.
According to Gore’s statement,
Around 12:30 or 1:00 Jackie and Freddie left and went back to the store. They
stayed gone for a while. I waited until about 20 minutes to 4 and I went to
[Jackie’s] apartment to tell her to come get her son. When I got there I
knocked on the door and she answered it. When she opened the door, she told
me “we ain’t doing nothing.” I told her to just come and get her child. I went
back to my apartment. She came to get her child and she started arguing with
me. She walked to the kitchen to get a knife. I then went to the closet and got
this old gun out of it. I pointed it at her and hit the safety and the gun went off.
When the gun went off I saw her fall and I threw the gun back in the closet and
went for help. I went to [a neighbor’s] house and told her to call 911. On my
way back to the apartment [the apartment manager] and Sonny came up and
she asked me where did I shoot her. I told her “in the head.” We then went
to the apartment and went inside, and I told [the neighbor] not to touch her
then she left. I was walking back out of the apartment when the police showed
up and put handcuffs on me.
¶3.
The neighbor and the apartment manager testified at trial; and, with regard to the times
that each was present, they corroborated Gore’s version of events. According to the
neighbor, Gore came to her apartment and asked her to “call 911 because I done shot Jackie.”
The apartment manager testified that Gore had said to him that Jackie was “dead” and “I
killed her. I shot her.”
¶4.
The prosecution submitted a heat-of-passion manslaughter instruction, numbered S-4.1
During the instruction conference, the following exchange occurred among the trial court and
counsel for the prosecution and the defense:
Trial judge:
S-4?
Defense counsel:
No objection.
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The proposed instruction read:
The Court instructs the Jury that if you fail to find the defendant guilty of
the felony crime of murder, then you should continue your deliberations to
consider the elements of the felony crime of manslaughter.
If you find from the evidence in this case beyond a reasonable doubt that
the Defendant, Ray Thomas Gore, did kill Jacqueline Ford, a human being,
without malice, in the heat of passion, but in a cruel or unusual manner, or
by the use of a dangerous weapon not in necessary self-defense and without
authority of law, then you shall find the Defendant guilty of manslaughter.
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Trial judge:
Are you offering S-4?
Prosecutor:
Yes, Your Honor.
Trial judge:
I’m not going to grant it. There’s absolutely no evidence
of manslaughter in this case. The only evidence in this
case is deliberate design or acts of misfortune. There’s
no — no evidence of manslaughter. I’m going to refuse
it.
(Emphasis added.)
¶5.
Although the transcript reads “acts of misfortune,” this very likely is a scrivener’s
error, as the seasoned judge who presided over Gore’s trial, Honorable Marcus D. Gordon,
is undoubtedly aware that this is not a term that appears in Mississippi’s legal vocabulary.
However, the words accident and misfortune comprise a well-worn phrase that is quite
familiar to our state’s jurists and criminal law practitioners. It has, from time immemorial,
been a defense to homicide, and is codified as Mississippi Code Section 97-3-17 (Rev. 2006):
The killing of any human being by the act, procurement, or omission of
another shall be excusable:
(a) When committed by accident and misfortune in doing any lawful act by
lawful means, with usual and ordinary caution, and without any unlawful
intent;
(b) When committed by accident and misfortune, in the heat of passion, upon
any sudden and sufficient provocation[.]
(Emphasis added.)
¶6.
This terminology also is prominent in numerous decisions by this Court. We recently
reiterated that, “[w]hether or not a killing was the result of an accident [or] misfortune is a
question for the jury to decide after proper instruction.” Brown v. State, 39 So. 3d 890, 899
(Miss. 2010) (quoting Miller v. State, 677 So. 2d 726, 730 (Miss. 1996)). See also Day v.
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State, 589 So. 2d 637, 643 (Miss. 1991) (“it is for the jury to decide what constitutes
‘accident’ or ‘misfortune’”). In the instant case, the trial court did not task the jury with that
function; no accidental-shooting instruction was requested by Gore’s counsel, and none was
given the jury by the trial court.
¶7.
At no time did defense counsel request an accident instruction, not even after the trial
judge had rightly observed, and clearly recognized, that the defendant’s theory of the case,
indeed, his defense, was that the shooting was an accidental, unintentional discharge of the
rifle. This early representation by Gore, coupled with the extremely dilapidated appearance
of the gun in question (Trial Exhibit S-9), should have impelled Gore’s counsel to tender an
accidental-shooting jury instruction to the trial court. Failing in that, in these circumstances
the court ought to have directed counsel to prepare such an instruction, or prepared one itself,
to assure that the jury was thoroughly and correctly instructed as to the applicable law and
Gore’s defense.
¶8.
This Court repeatedly has recognized that it is the trial court’s responsibility to
instruct the jury. See e.g., Brown, 39 So. 3d at 900 (“The ultimate responsibility of assuring
that the jury is properly instructed on all relevant issues of law in a case falls upon the trial
judge.”) We also have said, “[t]here is no doubt that the trial court is ultimately responsible
for rendering proper guidance to the jury via appropriately given jury instructions, even sua
sponte.” Kolberg v. State, 829 So. 2d 29, 45 (Miss. 2002).
¶9.
It is neither for us nor for the trial court to speculate whether Gore’s claim of an
accidental discharge was truthful, or even whether it was reasonable. It is, however, as a
matter of due process of law, incumbent on the judiciary to ensure that each and every party’s
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theory of a case is properly laid before the jury for its decision. U.S. Const. amend XIV;
Miss. Const. art. 3, § 14. “It is, of course, an absolute right of an accused to have every
lawful defense he asserts, even though based upon meager evidence and highly unlikely, to
be submitted as a factual issue to be determined by the jury under proper instruction of the
court. This Court will never permit an accused to be denied this fundamental right.” Chinn
v. State, 958 So. 2d 1223, 1225 (Miss. 2007) (quoting O'Bryant v. State, 530 So. 2d 129, 133
(Miss.1988)).
¶10.
Here, despite Judge Gordon’s astute recognition that this shooting either was
deliberate or it was accidental, the jury was not given the option of finding that it was an
accident. Gore has never retracted or retreated from that claim. Even though it was
presented to the jury, almost in passing, by means of the defendant’s statement to the
investigating officers, it was not mentioned in the court’s jury instructions and it was not
argued by Gore’s counsel.
¶11.
Moreover, it does not appear that any effort was made to investigate or develop an
accidental-discharge defense, even though it is arguable that the instrument of death appears
to an untrained eye to be more capable of an accidental discharge than of an intentional one.
There is no indication that defense counsel ever submitted the rifle to a firearms expert for
a determination of its functionality, or the lack thereof, notwithstanding Gore’s statement to
the police that it was an “old gun,” and that he had “hit the safety and the gun went off.”
During his closing argument, the defense attorney remarked to the jury, “for $50.00 they
could have sent the gun to the crime lab and had it – had it looked at and to see if it really
was damaged, but they chose not to do that.” Similarly, the defendant would have been
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entitled to such testing, had his attorney made a proper and timely request. Johnson v. State,
529 So. 2d 577, 589 (Miss. 1988).
¶12.
In the absence of an accident instruction, Gore’s defense was not effectively presented
to the jury, and he was denied a fundamentally fair trial. For this reason, I respectfully object
to the dismissal of his petition for writ of certiorari.
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