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[T] Mabry v. State6/16/1998
strike Body. Mabry testified that Body swung first and that he only struck back in self-defense. Mabry unequivocally stated that he did not have a gun and used only his fists and feet when striking Body. Since the defense's theory was that Mabry had used only his fists and feet in the altercation an instruction which would allow the jury to find for simple assault based on the use of a gun would have been improper. The proper simple assault instruction for the scenario the defense advanced was the simple assault instruction that was in fact given, Instruction No. 7.
Second, Instruction D-4 was cumulative to Instruction No. 4, the state's deadly weapon instruction already given. "A trial court is not required to instruct a jury over and over on a point of law even though some variations are used in different instructions." Calhoun v. State , 526 So. 2d 531, 533 (Miss. 1988) (citing Laney v. State , 486 So.2d 1242, 1246 (Miss. 1986)). Finally, Instruction D-4 was actually peremptory in nature. It would have instructed the jury to find Mabry guilty of simple assault if the jury found that the gun used was not used as a deadly weapon. It was therefore incumbent upon the trial Judge to refuse this instruction.
Finally, we will address the granting of the two flight instructions. Our supreme court has cautioned against the granting of flight instructions, and in a case where the defendant is arguing self-defense, as Mabry argued in this case, "a flight instruction should be automatically ruled out and found to be of no probative value." Banks v. State , 631 So. 2d 748, 751 (Miss. 1994). However, Mabry never properly preserved his objection to the flight instructions at trial. Although Mabry did object, his objection to the first flight instruction was that it was cumulative to the second, and his only objection to the second flight instruction was as to language, and that objection was remedied when the trial Judge permitted an amendment to the last sentence to read "whether the defendant is guilty or not guilty." Our supreme court has held that a defendant is procedurally barred from arguing a different ground on appeal than that argued at trial. Conner v. State , 632 So.2d 1239, 1255 (Miss.1993). Mabry is now arguing it was improper to grant these instructions because he was exerting a self-defense claim. He cannot now raise that issue since that was not his objection at trial. These assignments of error are without merit.
THE JUDGMENT OF THE HUMPHREYS COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS AS AN HABITUAL OFFENDER TO RUN CONCURRENT WITH APPELLANT'S PAROLE REVOCATION IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO, APPELLANT.
BRIDGES, C.J., McMILLIN, P.J., COLEMAN, DIAZ, HERRING, HINKEBEIN, KING, PAYNE, AND SOUTHWICK, JJ., CONCUR.
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