Decisions – Nov. 10, 2016

Charles Keubler  v. State – defendant’s theory of the defense/flight instruction –   Keubler was convicted of murdering a friend.  Keubler insisted it was an accident.  The friend was trying to commit suicide and the gun when off when he tried to wrestle the gun away from her. On appeal, he argues that the court erred in refusing to admit evidence that the victim was doing drugs that day which would influence her to be suicidal, that the trial court erred in allowing evidence of flight when there was an explanation for it and then refused to allow him to explain it to the jury, that the court should have granted a continuance when the state surprised the defense with a new gunshot reside test on the third day of trial. The COA affirms.  The Miss. S.Ct. gtanted cert and reverses based on the refusal of the trial court to allow Keubler to present his theory of  the case that the shooting was an accident  and that it  was error to give the jury a flight instruction.

In light of the evidence presented, Kuebler had an absolute right to have the jury consider his defense, and the trial court committed reversible error in denying the accident instruction.

* * * *

Because the defendant’s right to have his theory of the case presented to a jury is so fundamental, even minimal evidence warrants granting the defendant’s proposed jury 9 instruction. Taking into consideration all of the testimony and evidence presented, we find that enough evidence was presented to warrant an accidental jury instruction and that the trial court committed reversible error in denying instruction D-10.

 

Travaris Richard Christian  v. State of Mississippi –  confrontation – Christian was convicted of capital murder in the deaths of a Terry couple, Robert Carter and Renita Marks. On appeal he argues that it violated his right to confront the witnesses against him to have a pathologist testify who did not do the autopsy.  The Court finds no error.  “Dr. Barnhart did state that she had reviewed the notes, she indicated that her expert opinions were her own and would have been the same had she relied solely on the autopsy photographs. Thus, we do not find that Dr. Barnhart served as a mere conduit for the content of Dr. Shaker’s notes.” Christian also argues that it was error to give an instruction on accomplice liability because Christian only accompanied Deon Carter (Robert Carter’s cousin) to get back a tv and not to rob and kill anyone.   The Court finds there was sufficient evidence to warrant an accomplice liability instruction.

The facts of this case show that Christian and Deon went to Carter’s home with the felonious intent to break, enter, and steal. Carter and Marks were home at the time. An argument ensued between Carter and Deon about money. Deon shot through the glass door after Carter attempted to close it, and Deon entered the home. Carter and Marks were shot and killed, and property belonging to both victims was taken from their home. Christian shared in the spoils from the taking. And Marks’s cell phone was discovered on Christian’s person by authorities after he was taken into custody two days after the shootings. ¶36. These facts belie any contention that this was not a planned burglary, that escalated into robbery, that escalated into murder against two victims by Deon.

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