aiding and abetting instruction in Mississippi

2007In Hornburger v. State, 650 So.2d 510, 515 (Miss.1995), this Court held that the jury was improperly instructed by a similar aiding and abetting instruction.

2005In Hornburger v. State, 650 So. 2d 510, 515 (Miss. 1995), this Court held that the jury was improperly instructed by a similar aiding and abetting instruction.

2005In Hollins v. State, 799 So.2d 118, 123 (Miss.Ct.App.2001), we held that an aiding and abetting instruction was proper where the evidence showed the defendant was present and assisted others in the commission of the drug sale.

2004In Hollins v. State, 799 So.2d 118, 123 (¶ 14) (Miss.Ct.App.2001), this Court held that an aiding and abetting instruction was proper where the evidence showed the defendant, Hollins, was present and assisted others in the commission of the drug sale.

2015See Milano v. State, 790 So.2d 179, 185 (Miss.2001); Jones v. State, 95 So.3d 641, 648-49 (Miss.2012) (find an aiding-and-abetting instruction substantially similar to S-6A correctly informed the jury on aiding and abetting). 4 Likewise, Baxter does not challenge S-5 as an incorrect statement of law; though he did object to S-5 as commutative of S-6A.

2015See Milano, 790 So.2d at 185 (adopting the Fifth Circuit’s Pattern Jury Instruction on Aiding and Abetting, which is same instruction as S-6 given in this case). 5 However, the State did not offer S-7 as an aiding-and-abetting instruction.

2016In another, later case styled Liggins v. State, 726 So. 2d 180 (Miss. 1998), the Court reversed a conviction because it agreed that the aiding-and-abetting instruction impermissibly lessened the burden on the State.

2016In another, later case styled Liggins v. State, 726 So.2d 180 (Miss. 1998), the Court reversed a conviction because it agreed that the aiding-and-abetting instruction impermissibly lessened the burden on the State.

2000Hooker v. State, 716 So.2d 1104, 1110 (Miss.1998).

1998Hooker v. State, 716 So.2d 1104, 1110 (Miss. 1998).

2000Jackson complains that "the jury was entitled to a jury instruction of this law and they did not receive it." This is a novel argument considering that: (1) the trial court gave S-7 which was patterned after the aiding and abetting instruction approved by the Mississippi Supreme Court in Carr v. State, 655 So.2d 824, 833 (Miss.1995); and (2) the only reason Jackson requested an aiding and abetting instruction is because "[t]hey're [the State] the ones who brought up aiding and abetting." In fact, Jackson offered to withdraw D-2 if the State would withdraw its aiding and abetting instruction. ¶

1998An aiding and abetting instruction, in the form complained of here, was most recently approved in Carr v. State, 655 So.2d 824, 833 (Miss.1995), cert. denied, 516 U.S. *848 1076, 116 S.Ct. 782 , 133 L.Ed.2d 733 (1996).

2019But the hinge of propriety for an aiding and abetting instruction is whether it gives “the jury the option of convicting the defendant without first finding that the crime was completed.” Brassfield v. State, 905 So. 2d 754, 757 (¶9) (Miss.

2012In Brassfield v. State, 905 So.2d 754, 758 (¶ 11) (Miss.Ct.App.2004), this Court held an aiding and abetting instruction was proper even though Brassfield was not indicted for aiding and abetting.

2009In Berry , an aiding and abetting instruction was found improper because it “appears to give the jury an additional option of finding the defendant guilty if she committed only one element of the crime without even finding that the crime was ever completed.” Id. at 571 (¶ 9).

2004In Berry v. State, 728 So.2d 568 (Miss.1999), the Mississippi Supreme Court held that the aiding and abetting instruction in question rose to the level of reversible error.

2001The author of the majority opinion recognized the need for a uniform rule in his dissent in Simmons v. State, 746 So.2d 302, 309 (Miss.1999): "[G]uidance on this issue is a necessity because the issue is bound to reoccur and prosecutors and circuit judges need guidance on what this court will recognize as a proper aiding and abetting instruction." He now writes that "we find there were no errors at the trial court," while simultaneously adopting the pattern jury instruction from the Fifth Circuit.

1998The author of the majority opinion recognized the need for a uniform rule in his dissent in Simmons v. State, 746 So.2d 302, 309 (Miss. 1999): "[G]uidance on this issue is a necessity because the issue is bound to reoccur and prosecutors and circuit judges need guidance on what this court will recognize as a proper aiding and abetting instruction." He now writes that "we find there were no errors at the trial court," while simultaneously adopting the pattern jury instruction from the Fifth Circuit.

2001See also Barnes v. State, 763 So.2d 216, 220 (Miss.Ct.App.2000) (holding that any error in granting jury instruction for aiding and abetting was cured by other jury instructions). ¶ 20.

2000See also Barnes v. State, 763 So. 2d 216, 220 (Miss.

2000King v. State, 857 So.2d at 727-28 .

2000See King v. State, 857 So.2d at 727-28 .

1995This Court noted that the instruction complained of by Simmons was "similar to the aiding and abetting instruction" it approved in Kelly v. State, 493 So.2d 356, 359 (Miss. 1986).

1990S-2S(a), however, is similar to the aiding and abetting instruction approved by this Court in Kelly v. State, 493 So.2d 356 , 359 (Miss. 1986).

2015See Milano v. State, 790 So. 2d 179, 185 (Miss. 2001); Jones v. State, 95 So. 3d 641, 648-49 (Miss. 2012) (find an aiding-and-abetting instruction substantially similar to S- 6A correctly informed the jury on aiding and abetting).4 Likewise, Baxter does not challenge S-5 as an incorrect statement of law; though he did object to S-5 as commutative of S-6A. 4 Under Mississippi law, “[a]iding and abetting is ‘the offense committed by those persons who, although not the direct perpetrators of a crime, are yet present at its commission, doing some act to render aid to the actual perpetrator.’” Grah

2015See Milano v. State, 790 So. 2d 179, 185 (Miss. 2001); Jones v. State, 95 So. 3d 641, 648-49 (Miss. 2012) (find an aiding-and-abetting instruction substantially similar to S- 6A correctly informed the jury on aiding and abetting).4 Likewise, Baxter does not challenge S-5 as an incorrect statement of law; though he did object to S-5 as commutative of S-6A. 4 Under Mississippi law, “[a]iding and abetting is ‘the offense committed by those persons who, although not the direct perpetrators of a crime, are yet present at its commission, doing some act to render aid to the actual perpetrator.’” Grah

2015See Hoops v. State, 681 So.2d 521, 533 (Miss.1996) (“Any person who is present at the commission of a criminal offense and aids, counsels, or encourages another in the commission of that offense is an aider and abettor and is equally guilty with the principal offender.”). ¶ 18.

2015See Milano v. State, 790 So. 2d 179, 185 (Miss. 2001); Jones v. State, 95 So. 3d 641, 648-49 (Miss. 2012) (find an aiding-and-abetting instruction substantially similar to S- 6A correctly informed the jury on aiding and abetting).4 Likewise, Baxter does not challenge S-5 as an incorrect statement of law; though he did object to S-5 as commutative of S-6A. 4 Under Mississippi law, “[a]iding and abetting is ‘the offense committed by those persons who, although not the direct perpetrators of a crime, are yet present at its commission, doing some act to render aid to the actual perpetrator.’” Grah

2015See Milano v. State, 790 So.2d 179, 185 (Miss.2001); Jones v. State, 95 So.3d 641, 648-49 (Miss.2012) (find an aiding-and-abetting instruction substantially similar to S-6A correctly informed the jury on aiding and abetting). 4 Likewise, Baxter does not challenge S-5 as an incorrect statement of law; though he did object to S-5 as commutative of S-6A.

2015See Milano v. State, 790 So. 2d 179, 185 (Miss. 2001); Jones v. State, 95 So. 3d 641, 648-49 (Miss. 2012) (find an aiding-and-abetting instruction substantially similar to S- 6A correctly informed the jury on aiding and abetting).4 Likewise, Baxter does not challenge S-5 as an incorrect statement of law; though he did object to S-5 as commutative of S-6A. 4 Under Mississippi law, “[a]iding and abetting is ‘the offense committed by those persons who, although not the direct perpetrators of a crime, are yet present at its commission, doing some act to render aid to the actual perpetrator.’” Grah

2014Mississippi Code Annotated section 97-1-3 (Rev.2006) states: “Every person who shall be an accessory to any felony, before the fact, shall be deemed and considered a principal, and shall be indicted and punished as such; and this whether the principal have been previously convicted or not.” An “aider and abettor” is one “who is present during the commission of a crime and aids, counsels, or encourages another in the execution of that offense.... ” Walton v. State, 752 So.2d 452, 457 (¶ 16) (Miss.Ct.

2012Harrell argues that the “record is devoid of any evidence showing [he] deliberately sought participation with another in the killing of Frank Damico with the intent to bring about that result.” However, Harrell did not make any objection on this basis at trial; rather, defense counsel only contended that an aiding and abetting instruction could not be given in a case where there is only one defendant. “[A]n objection on one or more specific grounds constitutes a waiver of all other grounds.” Broim v. State, 682 So.2d 340, 350 (Miss.1996).

2011See, e.g., Sims v. State, 908 So.2d 186, 188 (7-8) (Miss.Ct.App.2005) (finding that an aiding- and-abetting instruction was proper where defendant called and made plans to meet coindictee, then requested, and used coin-dictee’s gun to commit aggravated assault). ¶29.

2007However, "[j]ury instructions are to be read together and taken as a whole with no one instruction taken out of context." Austin v. State, 784 So.2d 186, 192 (¶ 18) (Miss. 2001) (citations omitted). [7] The jury instruction at issue is identical to the standard aiding and abetting instruction adopted by the Mississippi Supreme Court in Milano v. State, 790 So.2d 179 (Miss. 2001).

2004Simmons v. State, 805 So.2d 452, 475 (¶ 36) (Miss.2000); Mangum v. State, 762 So.2d 337, 344 (¶ 20) (Miss.2000); Edwards v. State, 737 So.2d 275, 305 (¶ 86) (Miss.1999); Armstrong v. State, 771 So.2d 988, 1001 (¶ 52) (Miss.Ct.App.2000); Bland v. State, 771 So.2d 961, 965 (¶ 10) (Miss.

2004Simmons v. State, 805 So.2d 452, 475 (¶ 36) (Miss.2000); Mangum v. State, 762 So.2d 337, 344 (¶ 20) (Miss.2000); Edwards v. State, 737 So.2d 275, 305 (¶ 86) (Miss.1999); Armstrong v. State, 771 So.2d 988, 1001 (¶ 52) (Miss.Ct.App.2000); Bland v. State, 771 So.2d 961, 965 (¶ 10) (Miss.

2004Simmons v. State, 805 So.2d 452, 475 (¶ 36) (Miss.2000); Mangum v. State, 762 So.2d 337, 344 (¶ 20) (Miss.2000); Edwards v. State, 737 So.2d 275, 305 (¶ 86) (Miss.1999); Armstrong v. State, 771 So.2d 988, 1001 (¶ 52) (Miss.Ct.App.2000); Bland v. State, 771 So.2d 961, 965 (¶ 10) (Miss.

2004The Mississippi Supreme Court followed the logic it enunciated in Berry when it reversed an aiding and abetting jury instruction in Lester v. State, 744 So.2d 757, 760 (¶ 9) (Miss.1999). "[I]t [the aiding and abetting instruction] gives the jury an option to convict Lester based solely upon his doing any act which is an element of the crime without relating that act to liability for the commission of the crime itself by requiring the jury find him to have been present and consenting to and encouraging that crime." ¶ 9.

2004Simmons v. State, 805 So.2d 452, 475 (¶ 36) (Miss.2000); Mangum v. State, 762 So.2d 337, 344 (¶ 20) (Miss.2000); Edwards v. State, 737 So.2d 275, 305 (¶ 86) (Miss.1999); Armstrong v. State, 771 So.2d 988, 1001 (¶ 52) (Miss.Ct.App.2000); Bland v. State, 771 So.2d 961, 965 (¶ 10) (Miss.

2004Simmons v. State, 805 So.2d 452, 475 (¶ 36) (Miss.2000); Mangum v. State, 762 So.2d 337, 344 (¶ 20) (Miss.2000); Edwards v. State, 737 So.2d 275, 305 (¶ 86) (Miss.1999); Armstrong v. State, 771 So.2d 988, 1001 (¶ 52) (Miss.Ct.App.2000); Bland v. State, 771 So.2d 961, 965 (¶ 10) (Miss.

2000"The trial court enjoys considerable discretion regarding the form and substance of jury instructions." Higgins v. State, 725 So.2d 220 (¶ 15) (Miss.1998) (citing Splain v. Hines, 609 So.2d 1234, 1239 (Miss.1992)).