                         IN THE SUPREME COURT OF MISSISSIPPI
                                  NO. 94-CT-01135-SCT
MOSES DABNEY, III AND JASON PHALO
v.
STATE OF MISSISSIPPI
                         ON PETITION FOR WRIT OF CERTIORARI
DATE OF JUDGMENT:                             DABNEY - 10/06/94 AND PHALO - 09/30/94
TRIAL JUDGE:                                  HON. WILLIAM F. COLEMAN
COURT FROM WHICH APPEALED:                    HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                     GEORGE T. HOLMES
                                              THOMAS FORTNER
ATTORNEY FOR APPELLEE:                        OFFICE OF THE ATTORNEY GENERAL
                                              BY: PAT FLYNN
DISTRICT ATTORNEY:                            ED PETERS
NATURE OF THE CASE:                           CRIMINAL - FELONY
DISPOSITION:                                  REVERSED AND REMANDED - 7/23/98
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                               8/27/98




     EN BANC.


     SULLIVAN, PRESIDING JUSTICE, FOR THE COURT:


¶1. Moses Dabney, III and Jason Phalo were indicted by the Hinds County Grand Jury in April 1994
for the murder of Eddie Wilson, Jr. Dabney and Phalo were tried together in September 1994, and
each was convicted of murder and sentenced to life imprisonment. Dabney's and Phalo's appeals were
assigned to the Court of Appeals, which affirmed in both cases. Dabney and Phalo separately
petitioned this Court for certiorari, which were granted. After consideration we find that both
convictions must be reversed and remanded for further proceedings.

                                                 I.

¶2. On December 31, 1993, Jason Phalo, Moses Dabney, III and two other individuals were riding
around Jackson. Late that afternoon they were headed south on I-55 west frontage road when they
pulled into the parking lot of Cowboy Maloney's Electric City. Phalo spotted a white Chevrolet
Blazer in the parking lot, which he proceeded to break into with a screwdriver and steal. Phalo drove
off in the Blazer followed by the car occupied by Dabney and the other two individuals. The Blazer
belonged to Eddie Wilson, Jr., an employee of Electric City. Wilson saw his Blazer being driven away
and asked a co-worker, Tye Carney, to get his car so that they could follow the Blazer.

¶3. Wilson and Carney followed the Blazer as it headed south on the frontage road, then turned right
onto Northside Drive and headed west toward North State Street. The Blazer then stopped at the
intersection of Northside and North State. At this time Moses Dabney got out of the trailing car and
got into the Blazer on the passenger side. Carney pulled his vehicle in front of the Blazer to block it
from going any further. Wilson got out of Carney's car, ran to the driver's door of the Blazer and
attempted to open it. Wilson then attempted to run back to Carney's car as shots were fired from the
Blazer. Witnesses differed as to which of the occupants of the Blazer was shooting. Moses Dabney
was in possession of one pistol, a .380 semiautomatic, at the time of the theft of the Blazer, and
Wilson's pistol, a .38, was also in the stolen Blazer. Jason Phalo and Moses Dabney departed the
Blazer and ran from the scene. Wilson was hit in the back and died a short time later. Phalo and
Dabney were tried together. Both were convicted of murder and received life sentences. Both of their
appeals will be discussed in this opinion.

                                         II. Moses Dabney, III

                                                    A.

¶4. One of the witnesses to the shooting stated that one of the persons in the Blazer wore a plaid
shirt. Counsel for Jason Phalo introduced a plaid shirt into evidence at trial. Phalo's counsel elicited
testimony from Jackson Police Officer Clidell Conston that Conston had obtained the shirt from
Jason Phalo's mother, that Dabney had changed clothes at Phalo's house on the day of the shooting,
that Conston then discussed the shirt with Moses Dabney on January 9, 1994, and that Dabney stated
that he was wearing the plaid shirt on the day of the shooting. Dabney moved to suppress the
statement prior to trial, alleging that he was mildly retarded and a special education student, and he
could not have understood his rights sufficiently to voluntarily waive them. The circuit court heard
testimony concerning Dabney's mental status from two of his teachers and a psychologist. The police
officers that read Dabney his rights and took his statement also testified. The circuit court found that
the State had met its burden of proof as to the voluntariness of the statements.

¶5. At trial only Dabney's statement as to the plaid shirt was introduced, and this was done by Phalo.
Dabney sought to introduce at trial much of the evidence that he had introduced at the pre-trial
hearing on his mental capabilities. The circuit court granted the State's motion to exclude the
evidence, but stated that Dabney could call his teachers as character witnesses. Dabney was able at
trial to cross-examine Officer Conston as to the circumstances surrounding the statement, including
Dabney's age, whether his parents or attorney had been called before he made the statement, and
whether Conston had determined that Dabney was a special education student. Dabney called at trial
as character witnesses the same two teachers who had testified earlier in the pre-trial hearing on
admissibility. These witnesses identified themselves during their testimony as special education
teachers or teachers of exceptional students.

¶6. Dabney cites Cole v. State, 525 So.2d 365, 368 (Miss. 1987), which states that once

     the trial court has admitted a confession into evidence, it is still within the province of the jury
     to determine whether the statement is true and voluntary, and what weight and credibility
     should be accorded to it. Wilson v. State, 451 So.2d 724 (Miss. 1984); Rhone v. State, 254
     So.2d 750 (Miss. 1971). Thus, once a confession has been admitted, "either party has a right to
     introduce before the jury the same evidence which was submitted [at the suppression hearing]
     as well as any other evidence relative to the weight and credibility of the confession." Rhone,
     254 So.2d at 754.

This Court found in Cole that defense counsel was able to substantially make his argument
concerning the confession before the jury and there was no reversible error.

¶7. The State argued before the Court of Appeals that the statement in question was never taken up
in the pre-trial suppression hearing and that evidence of Dabney's mental state was irrelevant. A
review of the record contradicts this. We find that Dabney was improperly restricted in his attempt to
demonstrate that the jury should accord little weight or credibility to his statement because of his mild
retardation. This is not to say that all the evidence which Dabney introduced at his pre-trial
suppression hearing is automatically admissible at trial. We recognize that as to the admission of
evidence, a pre-trial hearing will often be a more relaxed setting than a trial. While the rule in Cole is
controlling here, the restrictions found in the Rules of Evidence also apply to any evidence which
Dabney may attempt to introduce at trial, including the evidence in question here.

                                                     B.

¶8. Dabney requested instruction DD-6, which was refused based on the objection of Phalo, Dabney's
co-defendant:

     The Court instructs the Jury that the law does not compel the defendant in a criminal case to
     take the witness stand and testify, and no presumption of guilt may be drawn from the failure of
     the defendant to testify.

Dabney cites Funches v. State, 125 Miss. 140, 87 So. 487 (1921), in support of his argument that
refusal of DD-6 was reversible error. This Court stated in Funches that refusal of such an instruction
was not always reversible error, and could be harmless. An additional reason for reversal in Funches
was that the State commented on Funches's failure to testify. There is no allegation of that in this
case.

¶9. In this case the trial court's instruction, C-4, was granted. It stated:

     The law presumes every person charged with the commission of a crime to be innocent. This
     presumption places upon the State the burden of proving a Defendant guilty of every material
     element of the crime with which he is charged. Before you can return a verdict of guilty, the
     State must prove to your satisfaction beyond a reasonable doubt that a Defendant is guilty. The
     presumption of innocence attends the Defendant throughout the trial and prevails at its close
     unless overcome by evidence which satisfies the Jury of his guilt beyond a reasonable doubt.
     The Defendant is not required to prove his innocence.

¶10. The Court of Appeals relied on Watson v. State, 521 So.2d 1290 (Miss. 1988), where this Court
dealt with the refusal of a similar instruction. This Court found in Watson that the trial court's
instruction "substantially cover[ed] the absence" of the defendant's proposed instruction. Watson, 521
So.2d at 1295. The Court of Appeals found that Instruction C-4 performed the same function in this
case. C-4 is substantially similar to the instruction in question in Watson; the primary difference is
that, in Watson, in addition to the language stating that the defendant is not required to prove his
innocence, the Watson instruction added "or to put [on] any evidence at all upon the subject."
Watson, 521 So.2d at 1295. We find that the omission of this language from instruction DD-6 did not
amount to reversible error.

                                           III. Jason Phalo

                                                  A.

¶11. Moses Dabney made two statements to members of the Jackson Police Department, on January
5 and 10, 1994. In the January 5 statement Dabney stated that he fired his pistol during the
confrontation with Wilson, but that Phalo had hollered at him at the time, "Shoot that n-, shoot that
n-." Dabney said that he fired perhaps twice, then paused, and then started shooting again. In the
January 10 statement Dabney stated that both he and Jason Phalo fired the .380 pistol and that
Dabney also fired Wilson's .38 pistol in the air while he was getting out of the Blazer and running.
Counsel for Phalo attempted to introduce only that part of the January 5 statement, through the
police officer who had taken the statement, that Dabney had been the shooter. The circuit court ruled
the evidence inadmissible. Phalo argues here that the evidence was admissible under the hearsay
exception of M.R.E. 804(b)(3), a statement against interest. Rule 804(b)(3) states:

     (b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is
     unavailable as a witness:

     ....

     (3) Statement Against Interest. A statement which was at the time of its making so far contrary
     to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or
     criminal liability, or to render invalid a claim by him against another, that a reasonable man in
     his position would not have made the statement unless he believed it to be true. A statement
     tending to expose the declarant to criminal liability and offered to exculpate the accused is not
     admissible unless corroborating circumstances clearly indicate the trustworthiness of the
     statement.

The Court of Appeals found that Dabney was unavailable, as he did not testify. It next found that the
statement also qualified as one a reasonable man would not have made unless he believed it to be
true. Last, it cited pre-Rules of Evidence cases in affirming.

¶12. Jason Phalo relies on Lacy v. State, 700 So.2d 602 (Miss. 1997), decided two days after the
Court of Appeals affirmed Phalo's conviction. Phalo particularly quotes from Lacy, 700 So.2d at 607,
concerning whether a "reasonable person [would] believe that the statement might have been made in
good faith." Also to be considered are the circumstances surrounding the making of the statement
and the notion that no reasonable person would make such a statement if it were not true.

¶13. In Williams v. State, 667 So.2d 15 (Miss. 1996), this Court considered whether the circuit court
had erred in admitting the statement of Chelsea Williams, the wife of the appellant. Chelsea's
statement was that the appellant, who had just shot one Mr. Richardson, placed Richardson in the
trunk of his car while Richardson was still alive. The appellant subsequently dumped Richardson's
body at a garbage dump. Chelsea's statement further alleged that the appellant considered returning
to the dump and shooting Richardson again to make sure he was dead. The circuit court found that
the requirements of M.R.E. 804(b)(3) were met and admitted the statement. This Court found that
after consideration of the "statement for its content and in the context in which it was given, it is clear
that this statement was not such that she believed it would have subjected her to criminal liability."
Williams, 667 So.2d at 20. This Court found particularly relevant certain factors: declarations against
penal interest which inculpate others are generally considered unreliable and untrustworthy; and a
close examination of all the circumstances surrounding the making of the statement is required, such
as a custodial confession given under potentially coercive circumstances. In this case Phalo attempted
to introduce part of Dabney's statement, which would incriminate Dabney, who made the statement
as a result of custodial interrogation. The evidence appears uncontradicted that Dabney is mildly
retarded and is a special education student. We also consider Dabney's second statement, which is
potentially incriminating to Phalo as well as Dabney, but is inconsistent with the first statement.

¶14. This Court also noted in Williams that even if a statement appears admissible under 804(b)(3), it
must also pass muster under the Confrontation Clause. However, in Lacy, 700 So.2d at 607-08, this
Court found that the Confrontation Clause was not implicated where the defendant offered the
statement of the declarant which incriminated the declarant and not the defendant.

¶15. We find that the circuit court did not err in excluding that portion of the January 5 statement
offered by Jason Phalo. If the January 5 statement, or the portion of the statement in question, were
admitted, then the rest of this statement, and the January 10 statement, would also be admissible. If
there was error in excluding the evidence, it was harmless.

                                                    B.

¶16. Phalo argues that the circuit court erred in refusing instruction D-3:

     If you find from the evidence beyond a reasonable doubt that: 1) Jason Phalo did, on December
     31, 1993 in Hinds County, Mississippi; 2) By act, procurement of [sic] culpable negligence; 3)
     Kill Eddie Wilson, Jr.; 4) While Jason Phalo was committing the crime of Grand Larceny or
     Auto Theft, then you may find Jason Phalo guilty of the crime of manslaughter.

The Court of Appeals found that the evidence did not support the giving of this instruction. Under
Fairchild v. State, 459 So.2d 793 (Miss. 1984), if there was evidence to warrant the giving of the
lesser included offense instruction, then it should have been given, even if the greater weight of the
evidence supported the greater offense.

¶17. A review of the record shows that Jason Phalo is 6'3"; Moses Dabney is 5'6". Jason Phalo was
the driver of the stolen Blazer; Moses Dabney got into the Blazer as passenger when it stopped at the
intersection of Northside and North State.

¶18. In this case Jewel Davis, one of the witnesses at the intersection that day, heard gunfire and saw
a young man standing by the passenger side of the door of the Blazer aiming a pistol across its hood.
Davis said that the person aiming was a young black male, shorter and with a lighter complexion than
the other male in the Blazer. She saw this person aiming but did not see him firing shots. After the
shooting she saw this person running away with the gun down by his side. She thought she saw the
second, taller person with a gun in his hand as he was running away but she wasn't sure.

¶19. Clara Davis, daughter-in-law of Jewel Davis and a witness at the intersection, saw a person from
the passenger's side of the car standing up with a gun in his hand shooting between the opening of the
car door. She then saw this person running away with a gun in his hand. She though he was wearing
a plaid shirt or jacket. She identified the passenger as the taller of the two. She could not give any
description of the second person she saw running away with the person with the gun. Davis later
reviewed a statement she had given police and stated that she felt that one of the suspects was taller
than the other, but she could not say whether either of these persons had been the passenger/shooter.
She then said that she believed the taller of the two still carried a gun as they ran away.

¶20. Arthur Davis, son of Jewel and husband of Clara, was also at the intersection at the time of the
shooting but was in a different vehicle than that of his wife and mother. Davis saw a shooter from the
passenger side of the Blazer who appeared to be black. He also saw the driver of the Blazer, who
was a black male. Davis heard two quick bursts of gunfire, then a pause, then three to four shots.
Davis saw one person running from the Blazer but didn't know whether it was the passenger or the
driver. Davis never saw any shots come from anywhere but the passenger side of the Blazer.

¶21. Mamie Hardges was in the car directly behind the stolen Blazer when the shooting began at the
intersection. Immediately before the shooting she saw a short, light-complected black male get out of
another car and get in the passenger side of the Blazer. Once the shooting started she saw a black
male get out of the driver's door of the Blazer. She stated that he was shooting at Eddie Wilson as he
was getting out of the door. She said that the driver of the Blazer was the taller of the two. She then
saw the driver of the Blazer, still with the gun in his hand, run away. She thought that the tall male
was wearing a plaid shirt, but she wasn't sure. Later she stated that she probably didn't see the driver
firing at Wilson.

¶22. Jackson Police Officer Todd King arrived at the intersection shortly after the shooting. He then
searched the area for the suspects, and eventually saw two black males running from the scene, but
they were too far away for him to catch. King stated that one suspect was noticeably taller than the
other, and was wearing black pants and a black shirt. The shorter suspect was wearing a brown plaid
shirt and light-colored jeans.

¶23. Curtis Rhone accompanied Jason Phalo and Moses Dabney as they rode around Jackson the day
of the shooting. Rhone was in the car behind the Blazer at the intersection of Northside and North
State when Eddie Wilson tried to block the Blazer. Rhone stated that Wilson came to the driver's side
door of the Blazer, trying to open the door; that Jason Phalo started to kick the door from the inside;
that a shot was fired, and Wilson tried to run away; that Jason Phalo got out of the truck and began
to run; and that Moses Dabney began to shoot from the passenger side. After that both Dabney and
Phalo ran away.

¶24. Phalo argues that he was entitled to Instruction D-3 under the definition of manslaughter
provided in Miss. Code Ann. § 97-3-27 (1994):
     The killing of a human being without malice, by the act, procurement, or culpable negligence of
     another, while such other is engaged in the perpetration of any felony, except rape, burglary,
     arson, or robbery, or while such other is attempting to commit any felony besides such as are
     above enumerated and excepted, shall be manslaughter.

¶25. Phalo argues that most if not all the evidence points to Moses Dabney as the shooter. We find
that under these circumstances Phalo was entitled to a manslaughter instruction. The instruction as
proposed by Phalo did not contain the element "without malice." This is a critical element of the law
as provided in § 97-3-27. This Court stated in Manuel v. State, 667 So.2d 590, 593 (Miss. 1995):

     In homicide cases, the trial court should instruct the jury about a defendant's theories of
     defense, justification, or excuse that are supported by the evidence, no matter how meager or
     unlikely, and the trial court's failure to do so is error requiring reversal of a judgment of
     conviction. Hester, 602 So.2d at 872. Where the instructions are in improper form and are the
     only ones embodying a legally correct theory of the defendant's defense, it is the duty of the trial
     court to see that the instructions are placed in proper form for submission to the jury. Id. at
     873.

The failure to submit Instruction D-3, in corrected form, amounts to reversible error.

¶26. Phalo makes the same argument concerning the denial of Instruction D-4, concerning the
offense of accessory after the fact, which states:

     If you are convinced from the evidence beyond a reasonable doubt that: 1) Jason Phalo did, on
     December 31, 1993 and/or thereafter, in Hinds County, Mississippi; 2) Conceal, receive,
     relieve, aid or assist Moses Dabney in escaping or avoiding arrest, trial, conviction or
     punishment; 3) At a time when Jason Phalo knew that Moses Dabney had committed a felony;
     then you may find Jason Phalo guilty of Accessory After the Fact of a Felony.

¶27. Phalo cites Gangl v. State, 539 So.2d 132 (Miss. 1989), where this Court found that the circuit
court had erred in not granting an accessory after the fact instruction where the principal charge was
robbery. Gangl did not participate in the robbery itself but drove the alleged getaway car. The
question was whether Gangl was an accessory before or after the fact. This Court in Gangl stated
that the standard for granting a lesser offense instruction was the same as that of granting a lesser
included offense instruction.

¶28. In this case the evidence shows that Phalo and Dabney both ran back to Phalo's house after the
shooting. During this time Dabney threw one of the guns away. Dabney changed clothes at Phalo's
house. Phalo drove Dabney home. On January 5 Phalo gave police a statement and led them to one
of the pistols, the .380. Marcus Nelson, a friend of Dabney's, stated that he, at Dabney's request,
moved the .38 from one hidden location to another. Nelson eventually gave the gun to a friend, but
also called police, and it was recovered. We find that the evidence is insufficient to support
Instruction D-4.

                                           CONCLUSION

¶29. The circuit court erred when it excluded at trial evidence of Moses Dabney's mental condition as
it possibly pertained to the credibility of his statements to the police. Further, the circuit court erred
when it refused to grant a manslaughter instruction for Jason Phalo. Dabney's and Phalo's convictions
and sentences are reversed and remanded to the circuit court.

¶30. REVERSED AND REMANDED.

PRATHER, C.J., PITTMAN, P.J., BANKS, McRAE AND MILLS, JJ., CONCUR. SMITH, J.,
DISSENTS WITH SEPARATE WRITTEN OPINION JOINED IN PART BY ROBERTS, J.
WALLER, J., NOT PARTICIPATING.


     SMITH, JUSTICE, DISSENTING:


¶31. This case concerns the unfortunate, unnecessary and cold blooded shooting death of Eddie
Wilson, Jr., the son of a City of Jackson police officer. The killing was committed by Jason Phalo and
Moses Dabney, III, during the course of their theft of Wilson's Chevrolet Blazer from his place of
employment at Electric City. The majority concludes that the lower court erred in excluding trial
evidence concerning Moses Dabney's mental status as it pertained to the credibility of his statements
to the police. The majority has further held that the circuit judge erred in refusing to grant a
manslaughter instruction for Jason Phalo.

¶32. In my view, the Court of Appeals' decision in upholding the trial court was correct. I respectfully
dissent.

¶33. Consider first the question of Dabney's statement. Prior to trial, at a suppression hearing,
Dabney, citing borderline mental retardation, challenged the voluntariness of two statements given to
police. The trial judge held both statements were voluntary and admissible, but neither statement was
introduced at trial by the State. While in custody at the jail, Dabney acknowledged that a shirt given
to Officer Clidell Colston by Phalo's mother, was in fact his (Dabney's) shirt and that he had been
wearing the shirt at the time of the shooting. The State did not introduce this third statement either,
but rather, it was introduced by Phalo over Dabney's objection.

¶34. Dabney claims that because of his low mental ability and the fact that he was a special education
student, his statement should be rendered involuntary and inadmissable. The majority, citing Cole v.
State, 525 So. 2d 365, 368 (Miss. 1987), writes that Dabney was restricted by the trial judge from
introducing at trial the evidence that he had introduced at the pre-trial hearing regarding his mental
capabilities. Cole adheres to the premise that "Once a confession has been admitted, 'either party has
a right to introduce before the jury the same evidence which was submitted [at the suppression
hearing] as well as any other evidence relative to the weight and credibility of the confession." Id.
(quoting Rhone v. State, 254 So. 2d 750, 754 (Miss. 1971)). This Court, in Cole, found this
argument to be without merit because the issue of voluntariness was presented to the jury during
questioning by the defense attorney. Cole, 525 So. 2d at 368.

¶35. In my view, Cole is similar to the case at bar. Questions regarding Dabney's age, whether his
parents were present, whether his lawyer was present and whether the officer knew that Dabney was
a special education student were all asked of Officer Colston during cross-examination by defense
counsel. While the quote from Cole is indeed a correct statement of the law, it is not on point in the
case at bar. Dabney's confession was not introduced. Only the plaid shirt was introduced. Neither of
Dabney's other two statements were admitted at trial either. Admission of the shirt into evidence does
not amount to a confession by Dabney. Only the first two Dabney statements were the subject matter
of the pre-trial suppression hearing. Defense counsel never presented the third statement at the
suppression hearing pre-trial. Defense counsel waited until cross-examination to raise this issue for
the first time. Thus, the shirt's introduction could not open the door to allow all of the supposed
evidence Dabney wanted to introduce regarding his mental status.

¶36. Actually, the issue of evidence of Dabney's retardation was irrelevant. Even if Dabney's
statement could be construed as a confession, Dabney clearly knowingly and intelligently waived his
rights before making the statement to the police. Dabney claims the jury was prevented from hearing
evidence of his low intelligence and that he would just agree to anything that he was told to do.

¶37. However, examination of the record on this very issue shows otherwise. When this issue first
arose, defense counsel announced an agreed stipulation concerning the shirt. However, after
consultation with Dabney, defense counsel promptly withdrew the stipulation. Defense counsel
announced to the trial judge, "He [Dabney] won't agree to this." All this occurred in the presence of
the trial judge who readily observed the situation in its entirety. This incident and others observed by
the trial judge during trial is supportive of the trial judge's finding that Dabney understood what he
was doing, that his low intelligence level was not of such magnitude that he was severely
handicapped, and that he voluntarily waived his rights regarding any statements.

¶38. Regardless, Dabney was allowed to have his two teachers testify. They both advised the jury
that they were special education teachers who had taught Dabney. Considering the entirety of the
record on this issue, the jury heard ample testimony and could have reasonably concluded that
Dabney had a learning disability. The complete issue of Dabney's mild retardation and low
intelligence was presented to the jury regarding the voluntariness of the statement about the shirt.
The jury obviously rejected Dabney's claims.

¶39. More importantly, considering that it was the shirt that Dabney was trying to suppress at trial
during cross-examination of a State's witness, evidence that the shirt belonged to Dabney could not
have played such a substantial role that it's introduction affected the outcome of the case. See Stokes
v. State, 548 So. 2d 118 (Miss. 1989); Holland v. State, 587 So. 2d 848 (Miss. 1991); McFee v.
State, 511 So. 2d 130 (Miss. 1987). Here, Dabney was positively identified by Curtis Rhone as the
person who shot Wilson when he attempted to regain possession of his stolen vehicle. His presence at
the scene of the murder is thus uncontested. The identification of the shirt in view of this eye witness
identification is of little value by comparison purposes and of no practical or legal consequence. Even
if the introduction could be considered error, which it is not, error, if any, is harmless beyond a
reasonable doubt.

¶40. Next, we consider the majority's claim of error by the trial court in failing to grant a
manslaughter instruction to Jason Phalo. The Court of Appeals found that the trial court was correct,
that there was no evidence to warrant the giving of a manslaughter instruction. What are the facts in
this record to warrant the reversal of this case for failure to give a manslaughter instruction? Plain
and simple, there are no facts that support the giving of a manslaughter instruction. Here, the facts
overwhelmingly support only that a cold blooded murder was committed by Phalo and Dabney.
Eddie Wilson, unarmed at the time, was simply attempting to get back his stolen Blazer from Phalo
and Dabney.

¶41. Curtis Rhone, who had been riding around with the group, was in a vehicle immediately behind
the Blazer. He testified that there was a.38 caliber gun, the same as the murder weapon, at Phalo's
house immediately after the killing. Rhone also was asked, "Curtis, does Jason Phalo have a gun?" to
which Rhone responded, "Yes." Rhone was then asked, "Is it a revolver or a semi-automatic?" Rhone
responded, "Semi-automatic." Rhone also stated that he saw Wilson run up to the Blazer and try to
get Phalo out. Phalo kicked out at the door. He heard one gunshot, and Wilson ducked and ran.
Rhone saw Dabney fire several shots at Wilson. There was evidence presented that two guns were in
the vehicle and one of them belonged to Wilson.

¶42. Mamie Hardges, an eyewitness who was in the car immediately behind the stolen Blazer and
only five feet away from Phalo, testified that Phalo got out of the drivers' side of the stolen Blazer
with a gun in his hand. She stated that he fired a shot before he got out and that he ran from the scene
with a gun in his hand. Hardges also managed to positively identify Phalo from a photo lineup. There
was also testimony presented to the jury that Phalo, not Dabney, led police to one of the weapons
which was recovered.

¶43. Jewel Davis, Clara Davis and Arthur Davis, all eyewitnesses to the killing, said they saw Dabney
firing at Wilson. They all said the taller of the two men, which was Phalo, had a gun in his hand when
he was running from the scene. Clara Davis said that the person she saw running away was wearing a
plaid shirt. Dabney was wearing the plaid shirt on the day of the killing, the same shirt that was
turned over to Jackson police by Phalo's mother. The evidence before the jury was thus
overwhelming that both Phalo and Dabney had guns at the scene and that both fired at Wilson.

¶44. Here, there is simply no evidentiary basis for the granting of a manslaughter instruction.
Ormond v. State, 599 So. 2d 951, 960 (Miss. 1992); Mease v. State, 539 So. 2d 1324, 1330 (Miss.
1989); Harbin v. State, 478 So. 2d 796 (Miss. 1985). "[A] lesser included offense instruction is
required 'where a reasonable juror could not on the evidence exclude the lesser-included offense
beyond a reasonable doubt." Thorson v. State, 653 So. 2d 876, 893 (Miss. 1994) (quoting Mackbee
v. State, 575 So. 2d 16, 23 (Miss. 1990)). This Court has also held that where a defendant has
requested a lesser charge, this Court will look at the evidence in the light most favorable to the
defendant in determining whether such an instruction is warranted. Davis v. State, 684 So. 2d 643,
656 (Miss. 1996). Phalo's defense was that he simply was not the one who shot at Wilson. Nor was
there any evidence that Phalo only aided or assisted Dabney in escaping from the scene of the killing,
as suggested by Phalo in another alleged error raised on appeal. He offered no suggestion of
accidental shooting. Here, considering the evidence in a light most favorable to Phalo, there is a total
absence within this record of an evidentiary basis for giving a manslaughter instruction. Id. at 657. To
the contrary, all the evidence suggests that the only possible instruction that the learned trial judge
could have given was for murder.

¶45. My conclusion is that although this was not a perfect trial, Phalo and Dabney in fact did receive
a fair trial. The glaring aspect of this case that stands out above all else is the senseless shooting of a
young man, killed in the prime of his life during the all too common theft of a vehicle on the streets of
Jackson. These two defendants could have fled themselves. Instead, Phalo and Dabney, when cut off,
deliberately made the free will choice to kill in cold blood Wilson, who was unarmed and at the time
had turned to flee for his life. The trial judge did not err and the Court of Appeals should be affirmed.

¶46. I respectfully dissent.

ROBERTS, J., JOINS THIS OPINION IN PART.
