                                  IN THE COURT OF APPEALS
                                            OF THE
                                     STATE OF MISSISSIPPI
                                      NO. 95-KA-01005 COA
DALANDA C. PETERS                                                                      APPELLANT
v.
STATE OF MISSISSIPPI                                                                     APPELLEE
  THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED,
                          PURSUANT TO M.R.A.P. 35-B
DATE OF JUDGMENT:                                   08/29/95
TRIAL JUDGE:                                        HON. MICHAEL RAY EUBANKS
COURT FROM WHICH APPEALED:                          PEARL RIVER COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                             CHARLES E. MILLER
ATTORNEY FOR APPELLEE:                              OFFICE OF THE ATTORNEY GENERAL
                                                    BY: JOLENE M. LOWRY
DISTRICT ATTORNEY:                                  BUDDY MCDONALD
NATURE OF THE CASE:                                 CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                            MURDER:SENTENCED TO SERVE A TERM
                                                    OF LIFE IMPRISONMENT
DISPOSITION:                                        AFFIRMED - 9/23/97
MOTION FOR REHEARING FILED:                         10/6/97
CERTIORARI FILED:                                   12/3/97
MANDATE ISSUED:                                     3/18/98




BEFORE BRIDGES, C.J., HINKEBEIN, AND KING, JJ.

BRIDGES, C.J., FOR THE COURT:


Dalanda Peters was convicted in the Circuit Court of Pearl River County on August 29, 1995, of the
murder of Michael Stockstill. Peters was subsequently sentenced to a term of life in prison.
Aggrieved, Peters argues on appeal that 1) the court erred in refusing certain of his requested jury
instructions and granting those of the State, 2) that the court erred in denying his motion for directed
verdict, and 3) that the facts support a finding of manslaughter instead of murder. Finding no merit in
the issues raised by Peters, we affirm the jury's verdict.
                                                FACTS

On July 4, 1994, Peters, who was seventeen, and Abasi Bolden, who was sixteen, were standing on a
street corner in Picayune, Mississippi, when they were approached by twenty-six year old Michael
Stockstill. Stockstill and Bolden began speaking to each other in a loud, argumentative manner.
Bolden would later testify that, unbeknownst to Peters, he and Stockstill were kidding with each
other. At this point, Peters stepped in and confronted Stockstill in defense of Bolden. In response to
this intrusion, Stockstill diverted his attention to Peters.

A heated argument erupted between Stockstill and Peters. Words and shoves were also involved.
Peters left the scene and retrieved a small handgun. Upon his return to the scene, Peters inserted
multiple rounds into the gun's clip, inserted the clip into the gun, and chambered one round. More
words were exchanged between Peters and Stockstill with neither party backing down from the
confrontation. Peters clearly exhibited the weapon and warned Stockstill not initiate any further
confrontation. At this point, Stockstill, unarmed and with his hands outstretched, approached Peters
while uttering "I'll die for mine." Peters fired numerous shots into Stockstill at close range. As
Stockstill turned to stagger away, Peters fired numerous more shots into Stockstill's back. Stockstill
died from his wounds.


                            ARGUMENT AND DISCUSSION OF LAW

I. WHETHER THE TRIAL COURT ERRED IN GRANTING THE STATE'S INSTRUCTION ON
SELF-DEFENSE OR IN DENYING PETERS' INSTRUCTION ON SELF-DEFENSE.


Peters argues that the trial court erred in granting the State's instruction S-4 and in denying his
proposed instructions D-29, D-30, D-33, and D-35. In support of his contention, Peters argues that
instruction S-4 was misleading, and thus, prevented the jury's consideration of his self-defense theory.
We find Peters' objection on appeal to instruction S-4 to be procedurally barred. The following
exchange between the trial judge and the defense counsel occurred after the denial of the defendant's
motion for a directed verdict:

BY THE COURT: All right, Mr. Miller, do you have any objections to any of the instructions granted
or refused, and if you do, you may state that into the record.


BY MR. MILLER: Yes, sir. Jury Instruction--State Instruction 5, I object to the introduction of that
into the record, and the instructions that the Court refused, I object to that.


BY THE COURT: Of yours?


BY MR. MILLER: Yes, sir.


BY THE COURT: The ones I refused of yours?
BY MR. MILLER: Yes, sir.


BY THE COURT: Well, let's state that into the record, then, at this time. Let me go through the ones
that were refused so we can....(judge goes through all twenty-two refused defense instructions).. I
believe that concludes all of the instructions that the defense had. Now, some of these that were
refused was because they were repetitious or did not properly instruct the jury on the issues.


BY MR. MILLER: And I have a general objection to the motions--to the--I'm sorry, the instructions
that were refused.


BY THE COURT: That were refused, okay. If you have any specific ones, you can state that into the
record at this point.


BY MR. MILLER: No, sir.


The law is well settled in this state that the failure to object to jury instructions at trial precludes the
consideration of the issue on appeal. See Lester v. State, 692 So. 2d 755, 799 (Miss. 1997); Jackson
v. State, 684 So. 2d 1213, 1229 (Miss. 1996); Walker v. State, 671 So. 2d 581, 618 (Miss. 1995);
Carr v. State, 655 So. 2d 824, 856 (Miss. 1995); Chase v. State, 645 So. 2d 829, 852 (Miss. 1994).
Our review of the record does not reveal an objection at trial to instruction S-4. As shown from the
above excerpt, Peters' only objected at trial to State's Instruction number 5. On appeal, Peters argues
that the granting of S-4, not S-5, was error. "The assertion on appeal of grounds for an objection
which was not the assertion at trial is not an issue properly preserved on appeal." Ballenger v. State,
667 So. 2d 1242, 1264 (Miss. 1995). Furthermore, Peters' objection to S-5 is non-specific, and he
provides no support for his objection. "No assignment of error based on the granting of an instruction
will be considered on appeal by this Court unless specific objection was made to the instruction in the
trial court stating the particular ground or grounds for such objection." Davis v. Singing River Elec.
Power Ass'n, 501 So. 2d 1128, 1131 (Miss. 1987).

Even if Peters' argument were not barred, we find it to be without merit. State's Instruction S-4 reads
as follows:

The court instructs the jury that a person may not use more force than reasonably appears necessary to
save his life or protect himself from great bodily harm. Where a person repels an assault with a deadly
weapon, he acts at his own peril and the question of whether he was justified in using the weapon is
for determination by a jury. Also the court instructs the jury that to make a killing justifiable on the
grounds of self-defense, the danger to the defendant must be either actual, present and urgent or the
defendant must have reasonable grounds to apprehend a design on the part of the victim to kill them
or do them some great bodily harm, and in addition to this he must have reasonable grounds to
apprehend that there is imminent danger of such design being accomplished. It is for the jury to
determine the reasonableness of the ground upon which the defendant acted.


Defense Instruction D-29 reads as follows:


The Court instructs the jury that one who kills another, reasonably believing that he is in real or
apparent danger of his life or great bodily harm is not guilty of murder.


Defense Instruction D-30 reads as follows:


A person claiming the right of self-defense is not required to retreat or to consider whether he could
safely retreat. If he is honestly and reasonably in fear of death or serious bodily harm he may stand his
ground and use whatever force is reasonably necessary under the circumstances, even to the extent of
taking the life of the attacker.


Defense Instruction D-33 reads as follows:


The Court instructs the jury that even though you believe from the evidence that the defendant killed
the deceased but that the deceased was then seeking to do him some great bodily harm, then the
defendant had a right to defend himself, even to the infliction of death, and the Jury must then return a
verdict of not guilty. This is true even though the Jury should further believe from the evidence that
the defendant was not actually in danger of being done some great bodily harm by the deceased,
provided he reasonably believed himself to be in danger of bodily harm at the hands of the deceased.


Defense Instruction D-34 reads as follows:


The Court instructs the jury that if the jury believe from the evidence that the Defendant had
reasonable grounds to believe and did believe, that the deceased was about to inflict serious bodily
harm upon the defendant, then the defendant had the right to resist the deceased with such violence
and weapons as were necessary to protect himself against such assault, even if resort was had to a
deadly weapon, and Defendant under the law was not bound to flee or retreat, but might stand and
resist so long as apparently necessary to prevent serious bodily harm to himself.


Defense Instruction D-35 reads as follows:


The Court instructs the jury for the defendant that the right of self-defense is one of our inalienable
rights. Any person assaulted by another has the right to repel such assault by such means and force as
may to him be apparently and reasonably necessary. He should be judged in the light of the
circumstances then apparent to him, rather than in the light of after developed facts. If you believe from
the evidence in this case that the defendant, Dalanda C. Peters, was not the aggressor, and that he was
assaulted by threats and physical force by the deceased, Michael Stockstill, then the law of self-defense
is that the defendant then and there had the right to repel such threats and assaults by using such force
as to him was then reasonable and apparently necessary to repel such assault on him and defend
himself. If no greater force was under such circumstances then used by the defendant, it is your duty to
find the defendant not guilty. And in this respect you are further instructed that if the defendant under
such circumstances, did use greater force than was to him apparently reasonable and necessary to
defend himself, and did so in the heat of passion and without malice and not in necessary self-defense
then he would be guilty of no greater crime than manslaughter, and in such event your verdict should
be "We the Jury, find the defendant guilty of manslaughter."


Of the above instructions, only S-4 and D-34 were given. Peters contends that the first part of State's
Instruction S-4 is an "arming instruction" and is, therefore, prohibited as interfering with his right to
claim self-defense. Keys v. State, 635 So. 2d 845, 848 (Miss. 1994). While Keys does prohibit arming
instructions, S-4 is not an example of an arming instruction. The first part of S-4 was held to be a
correct statement of the law in Stennis v. State, 234 So. 2d 611, 614 (Miss. 1970). We further find
that the Supreme Court recommended the exact language of the second part of S-4 as a substitute for
an otherwise confusing and redundant instruction Robinson v. State, 434 So. 2d 206, 207 (Miss.
1983) (overruled on other grounds).

With regard to the four defense instructions which were refused by the trial court, it is the opinion of
this Court that they were properly refused. The state and Peters proposed self-defense instructions S-
4 and D-34 that were given by the court. "All instructions are to be read together and if the jury is
fully and fairly instructed by other instructions the refusal of any similar instruction does not
constitute revers[ible] error." Taylor v. State, 597 So. 2d 192, 195 (Miss. 1992). We feel that the jury
was fully and fairly instructed by the state and defense's granted instructions on self-defense.
Accordingly, we find no merit to this issue.

II. WHETHER THE COURT ERRED IN DENYING PETERS' MOTION FOR A DIRECTED
VERDICT AND WHETHER DELIBERATE DESIGN IN MURDER HAD BEEN PROVEN.


III. IN THE ALTERNATIVE WHETHER THE FACTS WOULD SUPPORT A FINDING OF
MANSLAUGHTER.


Since Peters' issues II and III deal with the sufficiency of the evidence, we shall discuss them
together. In questioning the court's denial of his motion for a directed verdict, Peters argues that the
state failed to prove deliberate design as required by Section 97-3-19(1)(a) of the Mississippi Code of
1972, and that the facts support a finding of manslaughter. We disagree.

This Court's standard of review of denials of directed verdicts is as follows:

In passing upon a motion for a directed verdict, all evidence introduced by the state is accepted as
true, together with any reasonable inferences that may be drawn from that evidence, and, if there is
sufficient evidence to support a verdict of guilty, the motion for directed verdict must be overruled.
Gray v. State, 549 So. 2d 1316, 1318 (Miss. 1989) (citing Guilbeau v. State, 502 So. 2d 639, 641
(Miss. 1987)).

Appeals from an overruled JNOV motion are viewed by this Court in a light most favorable to the
State. McClain v. State, 625 So. 2d 774, 778 (Miss. 1993). Any credible evidence consistent with
guilt must be accepted as true. McClain, 625 So. 2d at 778. A challenge to the sufficiency of the
evidence can result in a reversal only where the evidence, with respect to one or more of the elements
of the offense charged, is such that reasonable and fair-minded jurors could only find the accused not
guilty. Id. at 778. Our review of the record reveals that viewing the evidence in a light most favorable
to the state, reasonable and fair-minded jurors could have found Peters guilty.

It is also the opinion of this Court that deliberate design was proven by the State in this case.
Deliberate design has been defined as the intent to kill, without authority of law and not being legally
justified or legally excusable. Carr v. State, 655 So. 2d 824, 847 (Miss. 1995). The Mississippi
Supreme Court further explained this element as follows:

A deliberate design cannot be formed at the very moment of the fatal act, however, the deliberate
design need not exist in the mind of the defendant for any definite time, not for hours, days, or even
minutes, but if there is deliberate design, and it exists in the mind of the defendant but for an instant
before the fatal act, this is sufficient deliberate design to constitute the offense of capitol murder or
murder.


Carr, 655 So. 2d at 847. Our review of the record reveals deliberate design by Peters. Peters left the
scene of the confrontation and returned with a gun. He proceeded to load a clip with bullets, insert
the clip into the gun, and chamber a bullet. Peters then fired numerous shots into the torso and back
of an unarmed and retreating Stockstill. It is the opinion of this Court that Peters had formed a
deliberate design to kill Stockstill. Accordingly, we find that the evidence in this case is sufficient to
support the verdict of guilty and that this Issues II and III are without merit.

THE JUDGMENT OF THE PEARL RIVER COUNTY CIRCUIT COURT OF
CONVICTION OF MURDER AND SENTENCE TO LIFE IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS IS HEREBY AFFIRMED. ALL COSTS
OF THIS APPEAL ARE TAXED TO APPELLANT.

McMILLIN AND THOMAS, P.JJ., COLEMAN, DIAZ, HERRING, HINKEBEIN, KING,
PAYNE, AND SOUTHWICK, JJ., CONCUR.
