193 So. 3d 688
Miss. Ct. App.2016Background
- Towles shot William Wells with a .22 rifle during a June 2012 domestic altercation; Wells survived serious injuries. Towles claimed she picked up the rifle fearing Wells’ violent conduct and that the gun discharged accidentally; the State prosecuted for aggravated assault.
- Towles gave an oral statement to law enforcement and later declined to sign a transcribed statement, telling investigators she needed to consult counsel. She never signed the written statement.
- Photographs and testimony showed broken dishes and broken glass in the apartment; Wells had drugs and alcohol in his system. Towles admitted prior instances of pulling a gun during fights to control Wells.
- A jury convicted Towles of aggravated assault; she was sentenced to twenty years (five to serve, fifteen suspended) and given post-release supervision. The trial court denied post-trial motions.
- On appeal, Towles argued (inter alia) the State’s aggravated-assault instruction improperly added “recklessly,” the court erred by refusing her self-defense (castle) instruction, an accident instruction was incomplete, cross-examination about her unsigned statement violated Doyle, and the prosecutor made improper “send a message” remarks. The Court of Appeals reversed and remanded for a new trial.
Issues
| Issue | Towles' Argument | State's Argument | Held |
|---|---|---|---|
| Constructive amendment: addition of “recklessly” in S-1 | Reckless element in instruction constructively amended/blended indictment and prejudiced her | Indictment charged §97-3-7 generally (both subsections); subsections not mutually exclusive and no prejudice shown | No prejudice; no reversible error in giving S-1 with "recklessly" |
| Refusal to give self-defense (castle) instruction | Evidence supported self-defense: she was scared, Wells acted violently and came at her; entitled to instruction | Towles previously told investigators shooting was accidental; no evidence of an imminent threat justifying deadly force | Reversal: trial court erred in refusing the self-defense instruction; remand for new trial |
| Accident/misfortune instruction omitted subsections (heat of passion, sudden combat) | Instruction limited to subsection (a); defendant entitled to jury consideration of subsections (b)/(c) if evidence supports them | No objection at trial; omission does not rise to plain error because court has no duty to craft instructions sua sponte | No plain error; omission of other subsections not reversible here (issue rendered moot by reversal on self-defense) |
| Cross-examination about unsigned statement (Doyle) | Prosecutor’s questions implied invocation of counsel/silence and were unfair impeachment under Doyle | Towles voluntarily made oral statement after Miranda; questions pointed out prior inconsistent statements, not Doyle-type use of silence | No Doyle violation; prosecutor’s questions aimed at inconsistency and were harmless; not prejudicial |
| Prosecutor’s “send a message” closing argument | Arguments were improper and inflammatory; waiver notwithstanding, reversible error given impact | State conceded impropriety but argued harmlessness | Statements were improper; combined with the self-defense-instruction error (cumulative error) supported reversal and remand |
Key Cases Cited
- Bell v. State, 725 So. 2d 836 (Miss. 1998) (defines constructive amendment and prejudice standard)
- Quick v. State, 569 So. 2d 1197 (Miss. 1990) (amendment of indictment/instruction adding new element is reversible when jury relied on it)
- Stevens v. State, 808 So. 2d 908 (Miss. 2002) (indictment under section 97-3-7 may charge both subsections; defendant put on notice)
- McLarty v. State, 842 So. 2d 590 (Miss. Ct. App. 2003) (blending subsections can render indictment confusing; substance v. form analysis)
- Clayton v. State, 106 So. 3d 802 (Miss. 2012) (heat-of-passion/"sudden and sufficient provocation" instruction required when supported by evidence)
- McTiller v. State, 113 So. 3d 1284 (Miss. Ct. App. 2013) (defendant may assert inconsistent defenses; refusal of self-defense instruction was reversible where evidence supported it)
- Doyle v. Ohio, 426 U.S. 610 (U.S. 1976) (post-Miranda silence cannot be used to impeach defendant)
- Payton v. State, 785 So. 2d 267 (Miss. 1999) (prosecutorial "send a message" arguments are condemned and improper)