lesser included offense instruction in Mississippi

2022However, the Mississippi Supreme Court has held that where the defendant has requested a lesser-included-offense instruction,9 the issue relates to a central feature of the case, and an instruction is tendered in improper form or content, then the trial court has “the obligation to advise counsel . . . of the nature of the deficiencies of the proferred instruction and afford counsel a reasonable opportunity to present a new instruction.” Mease v. State, 539 So. 2d 1324, 1335 (Miss. 1989) (quoting Harper v. State, 478 So. 2d 1017, 1022 (Miss. 1985)). ¶33.

2022His defense counsel proposed a lesser-included-offense instruction supposedly for trespass but based it on the wrong statute—“trespass upon enclosed lands.” Id. at 1022 .

2019When a defendant “claim[s] that he was entitled to a lesser-included offense instruction, we conduct de novo review, as this is a question of law.” Downs v. State, 962 So. 2d 1255, 1258 (¶10) (Miss. 2007). “[A] defendant has an absolute right to have the jury instructed on . . . lesser-included offenses if the evidence supports such an instruction, and there is ‘reversible error in not giving the lesser-included offense instruction.’” Id. at 1260 (¶22) (quoting Fairchild v. State, 459 So. 2d 793, 801 (Miss. 1984)). “[A] lesser-included offense is one in which all the essential ingredients are

2015Furthermore, symmetry in a criminal case never before has concerned this Court, as can be observed in the context of a lesser-included offense instruction: “in a murder case our law allows the prosecution to obtain a manslaughter instruction, almost willynilly, but [ ... ] the defendant is not always so entitled.” Jackson v. State, 551 So.2d 132, 146 (Miss.1989) (citing Reed v. State, 526 So.2d 538, 540 (Miss.1988); Fairchild v. State, 459 So.2d 793, 800-02 (Miss.1984)).

2011“To warrant the lesser-included offense instruction, a defendant must point to some evidence in the record from which a jury could reasonably find him not guilty of the crime with which he was charged and at the same time find him guilty of a lesser-included offense.” Goodnite v. State, 799 So.2d 64, 69 (¶ 24) (Miss.2001) (citing Toliver v. State, 600 So.2d 186, 192 (Miss.1992)).

2008"To be entitled to a lesser-included offense instruction, [the defendant] must point to evidence in the record from which a jury could reasonably find him not guilty of the crime with which he was charged and at the same time find him guilty of the lesser included offense." Ladner v. State, 878 So.2d 926, 932 (Miss.2004) (citing Toliver v. State, 600 So.2d 186, 192 (Miss.1992)), See also Gangl, 539 So.2d at 136 ("lesser offense instructions should not be granted indiscriminately, and only where there is an evidentiary basis in the record.").

2014Lee v. State, 469 So.2d 1225, 1231 (Miss.1985) (The jury’s findings may be altered without a lesser-included-offense instruction where the only other option would be to find the defendant not guilty). ¶ 18.

2012Lee v. State, 469 So. 2d 1225, 1231 (Miss. 1985) (The jury’s findings may be altered without a lesser-included-offense instruction where the only other option would be to find the defendant not guilty). 7 ¶18.

2025To receive a lesser-included offense instruction, “a defendant must point to some evidence in the record from which a jury reasonably could find him not guilty of the crime with which he was charged and at the same time find him guilty of a lesser-included offense.” Anderson v. State, 361 So. 3d 609 , 614 (¶13) (Miss. 2023) (quoting Gilmore, 119 So. 3d at 286 (¶13)). ¶36.

2025“To warrant the lesser-included offense instruction, a defendant must point to some evidence in the record from which a jury could reasonably find him not guilty of the crime with which he was charged and at the same time find him guilty of a lesser-included offense.” Id. (quoting Goodnite v. State, 799 So. 2d 64, 69 (¶24) (Miss. 2001)).

2022However, the Mississippi Supreme Court has held that where the defendant has requested a lesser-included-offense instruction,9 the issue relates to a central feature of the case, and an instruction is tendered in improper form or content, then the trial court has “the obligation to advise counsel . . . of the nature of the deficiencies of the proferred instruction and afford counsel a reasonable opportunity to present a new instruction.” Mease v. State, 539 So. 2d 1324, 1335 (Miss. 1989) (quoting Harper v. State, 478 So. 2d 1017, 1022 (Miss. 1985)). ¶33.

2012The Mississippi Supreme Court stated in Mease v. State, 539 So.2d 1324, 1330 (Miss.1989) (quoting Harper v. State, 478 So.2d 1017, 1021 (Miss.1985)): 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

2005In Ruffin v. State, 444 So.2d 839, 840 (Miss.1984), this Court expressly declared that, only where the evidence could only justify a conviction of the principal charge should a lesser-included offense instruction be refused.

2003In Ruffin v. State, 444 So. 2d 839, 840 (Miss. 1984), this Court expressly declared that, only where the evidence could only justify a conviction of the principal charge should a lesser-included offense instruction be refused.

2024When a defendant argues “that he was entitled to a lesser-included offense instruction, we conduct de novo review, as this is a question of law.” Downs, 962 So. 2d at 1258 (¶10). “[A] defendant has an absolute right to have the jury instructed on . . . lesser-included offenses if the evidence supports such an instruction, and there is reversible error in not giving the lesser-included offense instruction.” Id. at 1260 (¶22) (quotation marks omitted).

2024Nevertheless, a finding of sufficient evidence to sustain a guilty verdict “does not preclude a finding that the trial court’s failure to give a lesser-included-offense instruction constituted reversible error.” Downs v. State, 962 So. 2d 1255, 1260 (Miss. 2007) (citing Mackbee v. State, 575 So. 2d 16, 18 (Miss. 1990)). ¶13.

2008Id. (citing McGowan v. State, 541 So.2d 1027, 1028 (Miss.1989)).

2007The Sanders court cautioned that "a lesser-included offense instruction should not be indiscriminately granted, but rather should be submitted *938 to the jury only where there is an evidentiary basis in the record." Id. (citing Lee v. State, 469 So.2d 1225, 1230 (Miss.1985)). ¶ 20.

2024Nevertheless, a finding of sufficient evidence to sustain a guilty verdict “does not preclude a finding that the trial court’s failure to give a lesser-included-offense instruction constituted reversible error.” Downs v. State, 962 So. 2d 1255, 1260 (Miss. 2007) (citing Mackbee v. State, 575 So. 2d 16, 18 (Miss. 1990)). ¶13.

2007It is well settled that a lesser-included offense instruction is required only "where a reasonable juror could not on the evidence exclude the lesser-included offense beyond a reasonable doubt." Mackbee v. State, 575 So.2d 16, 23 (Miss.1990).

2020Indeed, the statute specifically states that a manslaughter instruction should be given only if it is “justified by the proof.” And our Supreme Court has held that a lesser-included-offense instruction is appropriate only “if a ‘rational’ or ‘reasonable’ jury could find the defendant not guilty of the principal offense charged in the indictment, yet guilty of the lesser-included offense.” Downs v. State, 962 So.2d 1255, 1261 (¶28) (Miss. 2007) (quoting Monroe v. State, 515 So. 2d 860, 863 (Miss. 1987)); accord Jones v. State, 281 So. 3d 137 , 145 (¶20) (Miss.

2007Green v. State, 631 So.2d 167, 173 (Miss.1994) ("A lesser-included offense instruction is warranted where the jury could find, from the evidence presented, the defendant not guilty of the crime with which he was charged, yet guilty of the lesser-included offense."); see also Monroe v. State, 515 So.2d 860, 863 (Miss.1987). ¶ 28.

2009This Court has also held that “[a] lesser-included offense instruction must be granted where a reasonable juror could not on the evidence exclude the lesser-included offense beyond a reasonable doubt.” Jones, 798 So.2d at 1253 (citation omitted) (second emphasis added); see also Welch, 566 So.2d at 684 (citation omitted).

2009This Court has also held that "[a] lesser-included offense instruction must be granted where a reasonable juror could not on the evidence exclude the lesser-included offense beyond a reasonable doubt. " Jones, 798 So.2d at 1253 (citation omitted) (second emphasis added); see also Welch, 566 So.2d at 684 (citation omitted).

2018Id. at 136 .7 By contrast, in the present case, Thompson never requested a lesser-included-offense instruction or a lesser-nonincluded-offense instruction during his subsequent trial. ¶57.

2018Id. at 136 . 7 By contrast, in the present case, Thompson never requested a lesser-included-offense instruction or a lesser-nonincluded-offense instruction during his subsequent trial. ¶ 57.

2025“To warrant the lesser-included offense instruction, a defendant must point to some evidence in the record from which a jury could reasonably find him not guilty of the crime with which he was charged and at the same time find him guilty of a lesser-included offense.” Id. (quoting Goodnite v. State, 799 So. 2d 64, 69 (¶24) (Miss. 2001)).

2023“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 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 the principal charge).” Brown, 222 So. 3d at 308 (¶24) (citing Goodnite v. State, 799 So. 2d 64, 68 (¶20) (Miss. 2001)).

2017Ct. App. 2006) (affirming trial court's refusal to grant a lesser-included-offense instruction for simple assault, as no evidence " showed [the victim's] injuries to be less than serious"); see also Fleming , 604 So.2d at 291-92 (finding victim's injuries were "serious," based on definition of "serious bodily injury" from the Model Penal Code, and upholding court's refusal of the defendant's instruction that "serious bodily injury means injuries involving great risk of death"); Harbin v. State , 478 So.2d 796 , 799-800 (Miss. 1985) (determining defendant was not entitled to a lesser-included-o

2001A lesser-included offense instruction need not be given where, as here, the "uncontradicted physical facts so overwhelmingly support a finding of [the greater charge] and render so unreasonable the suggestion that the defendant may have been guilty only of [the lesser charge]." Harbin v. State, 478 So.2d 796, 799 (Miss. 1985).

2001We have stated: It is well-settled that 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.) Agnew v. State, 783 So.2d at 701 (Miss. 2001) (citing Graham v. State, 582 So.2d at 1017 (Miss

1998We have stated: It is well-settled that 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.) Agnew v. State, 783 So.2d at 701 (Miss. 2001) (citing Graham v. State, 582 So. 2d at 1017 (Mis

2017“Where there exists a claim that a defendant was entitled to a lesser-included offense instruction, [appellate courts] conduct de novo review, as this is a question of law.” Anderson v. State, 79 So. 3d 501, 505 (¶16) (Miss. 2012).

2017“Where there exists a claim that a defendant was entitled to a lesser-included offense instruction, [appellate courts] conduct de novo review, as this is a question of law.” Anderson v. State, 79 So. 3d 501, 505 (¶16) (Miss. 2012).

1998"In sum, a lesser included offense instruction must be granted where a reasonable juror could not on the evidence exclude the lesser-included offense beyond a reasonable doubt." Holland v. State, 587 So.2d 848, 870 (Miss.1991) (citing Boyd v. State, 557 So.2d 1178, 1182 (Miss.1989)); see also Fairchild v. State, 459 So.2d 793, 800 (Miss.1984) ("only where the evidence could only justify a conviction of the principal charge should a lesser included offense instruction be refused") (citation omitted).

1996In summary, "a lesser included offense instruction must be granted where a reasonable juror could not on the evidence exclude the lesser-included offense beyond a reasonable doubt." Boyd v. State, 557 So.2d 1178, 1182 (Miss. 1989) (emphasis added).

2005"A lesser-included offense instruction is appropriate only in those cases where a jury could find the defendant not guilty of the principal charge but guilty of a lesser offense." Brown, 749 So.2d at 89 (citing Evans v. State, 725 So.2d 613, 664 (Miss. 1997); Davis v. State, 684 So.2d 643, 656-57 (Miss.1996)). ¶ 33.

1998Turning now to the argument that the jury could have disbelieved that a robbery was taking place and thus found only manslaughter or simple murder, this Court has recently stated the rule regarding the submission of lesser included offense instructions: "Where the jury could, based on the evidence presented find [the defendant] not guilty of the crime charged, but guilty of the lesser included offense, a lesser included offense instruction is warranted." Evans v. State, No. 93-DP-01173-SCT, 94-CA00176-SCT, 1997 WL 562044 , at [*]45 (Miss.

1997A lesser-included offense instruction is warranted "`if a `rational' or a `reasonable' jury could find the defendant not guilty of the principal offense charged in the indictment yet guilty of the lesser included offense.'" Ballenger v. State, 667 So.2d 1242, 1254 (Miss. 1995)(quoting Mease v. State, 539 So.2d 1324, 1329-1330 (Miss. 1989)).

1995A lesser-included offense instruction is warranted "'if a 'rational' or a 'reasonable' jury could find the defendant not guilty of the principal offense charged in the indictment yet guilty of the lesser included offense.'" Ballenger v. State, 667 So. 2d 1242, 1254 (Miss. 1995)(quoting Mease v. State, 539 So. 2d 1324, 1329-30 (Miss. 1989)).

2023In Graham v. State, 582 So. 2d 1014, 1017-18 (Miss. 1991), a case similar to the present case, the court described the process of determining whether giving a lesser-included heat-of-passion manslaughter instruction is proper: In order to determine whether a lesser-included offense instruction should be submitted to the jury, this Court has developed a test.

2001We have stated: It is well-settled that 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.) Agnew v. State, 783 So.2d at 701 (Miss. 2001) (citing Graham v. State, 582 So.2d at 1017 (Miss

2008When reviewing the denial of a lesser-included offense instruction, this Court "[takes] the evidence in the light most favorable to the accused and consider[s] all reasonable favorable inferences which may be drawn in favor of the accused from the evidence." Ormond v. State, 599 So.2d 951, 961 (Miss.1992) (quoting Mease v. State, 539 So.2d 1324, 1330 (Miss.1989)).

2007When reviewing the denial of a lesser-included offense instruction, this Court "[takes] the evidence in the light most favorable to the accused and consider[s] all reasonable favorable inferences which may be drawn in favor of the accused from the evidence." Ormond v. State, 599 So.2d 951, 961 (Miss.1992) (quoting Mease v. State, 539 So.2d 1324, 1330 (Miss.1989)).

2026However, “the jury should not be presented with a lesser-included-offense instruction unless the record provides an evidentiary basis for the instruction.” Franklin v. State, 136 So. 3d 1021, 1026 (¶11) (Miss. 2014) (quotation marks omitted).

2025But “lesser-included-offense instructions should not be indiscriminately granted; instead, the jury should not be presented with a lesser-included-offense instruction unless the record provides an evidentiary basis for the instruction.” Franklin v. State, 136 So. 3d 1021, 1026 (¶11) (Miss. 2014) (quotation marks omitted).

2008"To be entitled to a lesser-included offense instruction, [the defendant] must point to evidence in the record from which a jury could reasonably find him not guilty of the crime with which he was charged and at the same time find him guilty of the lesser included offense." Ladnier v. State, 878 So.2d 926, 932 (¶ 21) (Miss.2004) (citation omitted).

2008"To be entitled to a lesser-included offense instruction, [the defendant] must point to evidence in the record from which a jury could reasonably find him not guilty of the crime with which he was charged and at the same time find him guilty of the lesser included offense." Ladner v. State, 878 So.2d 926, 932 (Miss.2004) (citing Toliver v. State, 600 So.2d 186, 192 (Miss.1992)), See also Gangl, 539 So.2d at 136 ("lesser offense instructions should not be granted indiscriminately, and only where there is an evidentiary basis in the record.").

2016For a jury to find Anderson guilty for simple possession, it would have to disregard Anderson’s initial testimony that he was unaware of any drugs in the house as well as his admission that he was “just a middleman.”' Anderson cites Perry v. State, 637 So.2d 871, 877 (Miss.1994), to support his argument that he was entitled to the lesser-included-offense instruction for simple possession.

2012“Thus, if any evidence is found in the record that could support the finding of the lesser offense, the trial judge should give the lesser-included offense instruction, but if the instruction is not supported by the evidence, the instruction should be excluded.” Id. (citing Perry v. State, 637 So.2d 871, 877 (Miss.1994)) (emphasis added). ¶21.

2025“A party is entitled to a lesser- included-offense instruction only if there is ‘an evidentiary basis in the record’ to support it.” Chisholm, 365 So. 3d at 241 (quoting Batiste v. State, 121 So. 3d 808, 844 (Miss. 2013)).

2023Simply put, “[t]here must be an evidentiary basis in the record to support a lesser-included-offense instruction.” Id. at 308 (¶25) (citing Batiste, 121 So. 3d at 844 (¶69)). ¶23.

2024The court reasoned that because a deadly weapon was used, “Fluker’s only real avenue to receiving the lesser-included offense instruction was showing negligence on his part.” Id. at *8; see Jackson v. State, 684 So. 2d 1213, 1230 (Miss. 1996) (“Once a deadly weapon is introduced, the distinction between simple and aggravated assault . . . hinges upon whether the injuries were inflicted negligently or intentionally.” (citing Hutchinson v. State, 594 So. 2d 17 , 20 (Miss. 1992))).

2007In Hutchinson , the court found that when an accused wields a deadly weapon and intentionally strikes his victim, he is not entitled to a lesser-included offense instruction for simple assault. 594 So.2d at 20 .

2005A lesser-included offense instruction should be granted "[i]f a `rational' or a reasonable jury could find [Walker] not guilty of the principal offense charged in the indictment yet guilty of the lesser-included offense." Davis, 684 So.2d at 656 -57 (quoting Monroe v. State, 515 So.2d 860, 863 (Miss.1987)) (emphasis added). ś 141.

2005"A lesser-included offense instruction is appropriate only in those cases where a jury could find the defendant not guilty of the principal charge but guilty of a lesser offense." Brown, 749 So.2d at 89 (citing Evans v. State, 725 So.2d 613, 664 (Miss. 1997); Davis v. State, 684 So.2d 643, 656-57 (Miss.1996)). ¶ 33.

2000Further, "where ... the evidence warrants it, the accused is entitled as a matter of right, upon proper request, to a lesser offense instruction the same as he would be entitled to a lesser included offense instruction." Brady v. State, 722 So.2d 151 (¶ 38) (Miss.Ct.App.1998) (citing Griffin v. State, 533 So.2d 444, 447-48 (Miss.1988)) (emphasis added). ¶ 11.

1994In Griffin v. State, 533 So. 2d 444, 447 (Miss. 1988) (citations omitted), our supreme court stated: A lesser-included offense instruction should only be granted if there is an evidentiary basis therefor in the record.

2025Our Supreme Court articulated a standard in determining whether to give a lesser-included-offense instruction in Harveston v. State, 493 So. 2d 365 (Miss. 1986): Our law . . . allows the prosecution to request and obtain lesser-included offense instructions, as it does the defense.

2019See Harveson v. State, 493 So. 2d 365, 375 (Miss. 1986) (holding that a lesser-included-offense instruction that is “warranted by the evidence” should be given at the request of either the State or the defense). 4 We must address Jones’s challenge to the sufficiency of the evidence even though we reverse and remand the case for a new trial on other grounds.