Towner v. StateTowner v. State
Office of the Attorney General by W. Glenn Watts, Attorney for Appellee.
BEFORE THOMAS, P.J., COLEMAN AND HINKEBEIN, JJ.
HINKEBEIN, J., for the Court:
¶ 1. Phil Glen Towner, though fifteen years old at the time of his offense, was tried as an adult and convicted in the Harrison County Circuit Court of manslaughter. Towner was sentenced to twenty years with five yеars suspended in the custody of the Mississippi Department of Corrections. Aggrieved by his conviction, Towner appeals to this Court on the following grounds:
I. THE COURT ERRED IN FAILING TO SUSTAIN THE MOTION FOR DIRECTED VERDICT AT THE CLOSE OF THE STATE‘S CASE IN CHIEF AND AT THE CONCLUSION OF THE TRIAL.
II. THE COURT ERRED IN REFUSING DEFENSE INSTRUCTION D-7, IN FAILING TO DEFINE CULPABLE NEGLIGENCE FOR THE JURY, AND IN GIVING INSTRUCTIONS S-3 AND S-8 AS SUBMITTED BY THE STATE. Holding these assignments of error to be without merit, we affirm the judgment of the circuit court.
FACTS
¶ 2. The pertinent facts in this case are, to a great degree, undisputed. On the morning of Saturday, November 9, 1996, fourteen-year-old Latisha Crawford was standing in front of her grandfather‘s home on the corner of Illinois and Jefferson Streets in Gulfport, Mississippi when Towner passed by on foot. The boy, with whom Latisha was acquainted through their attendance at the same schoоl, paused for a few moments and struck up a friendly exchange. Shortly after Towner‘s approach, Latisha‘s cousin Monica also arrived with her mother for a brief visit. Though her mother exited the car and proceeded into the home, Monica remained outside with Latisha and Towner, who were still engaged in continuing conversation. While this trio stood on the street corner, Latisha‘s twelve-year-old sister, Tenisha, having apparently spotted the group from inside the house, appeared in the doorway. According to all who were present, Towner twice insulted the younger child by calling attention to her excessive weight. On both occasions Monica reprimanded him, supplementing her scoldings with “playful licks.” Though Towner warned her, “All right, girl ... [y]ou have one more time to hit me and I‘m going to have to shoot you,” Monica did not take him seriously and responded, “With what, a rubber band?” With this retort, all, inсluding Towner, burst into laughter. Unfortunately, Tenisha chose to join the older children in an attempt to discern the source of their amusement.
¶ 3. Though Monica‘s mother simultaneously re-emerged from the house and called her daughter to the car, as she left Monica quickly advised Tenisha, “You should beat Phil uр because he‘s been talking about you.” Moments later, with only Latisha left as a witness, her sister approached Towner and asked him to “stop playing.” It is at this point that Towner‘s and Latisha‘s accounts diverge.
¶ 4. According to Latisha, who watched from only three feet away, he then walked
ANALYSIS
I. THE COURT ERRED IN FAILING TO SUSTAIN THE MOTION FOR DIRECTED VERDICT AT THE CLOSE OF THE STATE‘S CASE IN CHIEF AND AT THE CONCLUSION OF THE TRIAL.
¶ 5. In his first assignment of error, Towner allеges that the trial court erred in refusing to grant a directed verdict on the murder charge, claiming that the prosecution offered no evidence indicative of deliberate design. Although the State does not respond directly, we nevertheless find no merit in Towner‘s assertion since the jury ultimately aсquitted on this most serious accusation. Towner fails to recognize that where an accused, indicted for murder, is at trial entitled as of law to a directed verdict of acquittal on the murder charge, a subsequent jury verdict of guilty of the lesser offense of manslaughter cures the trial court‘s error in submitting thе murder charge to the jury. See, e.g., Kinkead v. State, 190 So.2d 838, 839 (Miss. 1966); Crockerham v. State, 202 Miss. 25, 31-32, 30 So.2d 417, 419 (1947)).
¶ 6. As for the manslaughter conviction, both motions for directed verdict and motions for JNOV challenge the legal sufficiency of the evidence. Noe v. State, 616 So.2d 298, 302 (Miss.1993) (stating that motion for directed verdict tests legal sufficiency of evidence); McClain v. State, 625 So.2d 774, 778 (Miss.1993) (stating that motion for judgment of acquittal notwithstanding the verdict also tests legal sufficiency of the evidence). See also Strong v. State, 600 So.2d 199, 201 (Miss.1992) (stating that trial judge is bound by same law whether addressing motion for directed verdict or addressing request for peremptory instruction). Since both require consideration of the evidence before the court when made, this Court properly reviews thе ruling only on the last occasion that the challenge was made in the trial court. McClain, 625 So.2d at 778. In this instance, that challenge was quelled when the circuit court denied Towner‘s motion for JNOV/new trial. See, e.g., Wetz v. State, 503 So.2d 803, 807-08 (Miss.1987).
¶ 7. Where a defendant moves for JNOV, the trial court considers all of the credible evidence consistent with the defеndant‘s guilt, giving the prosecution the benefit of all favorable inferences that may be reasonably drawn from this evidence. McClain, 625 So.2d at 778. This Court is authorized to reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that rеasonable and fair-minded jurors could not find the accused guilty. Wetz, 503 So.2d at 808 n. 3.
¶ 8. In this instance, jurors convicted Towner under
II. THE COURT ERRED IN REFUSING DEFENSE INSTRUCTION D-7, IN FAILING TO DEFINE CULPABLE NEGLIGENCE FOR THE JURY, AND IN GIVING INSTRUCTIONS S-3 AND S-8 AS SUBMITTED BY THE STATE.
Instruction D-4: Culpable Negligence Defined
¶ 9. Next, Towner argues that the trial judge erred in failing to define for jurors the term culpable negligence as used in
Instruction S-3: Deliberate Design
¶ 10. Additionally, Towner contends that the trial court erred in giving instruction S-3 which reads as follows:
The Court instructs the Jury that design to kill is all that is required by Mississippi law to make a homicide a murder. Deliberate design means intent to kill, without authority of law and not being lеgally justifiable, legally excusable or under circumstances that would reduce the act to a lesser crime.
¶ 11. Aside from a passing notation that S-3 was not served upon defense counsel in a timely fashion, presumably as required by Rule 3.07 of the Uniform Rules of Circuit and County Court, Towner argues only that the instruction “is an indication of the erroneous statements of law submitted to the jury which lead to an erroneously based verdict,” providing no further explanation or citation to relevant authority. We reciprocate with equal brevity.
¶ 12. In addressing this assignment of error we need only note once more that Towner was convicted of manslaughter, not murder. This was tantamount to a verdict by the jury of not guilty of the crime of murder and, as such, precludes any claim of prejudice originating from the targeted murder instruction. Carter v. State, 402 So.2d 817, 819 (Miss.1981). Consequently, he may not now levy complaints regarding S-3. See, e.g., Minor v. State, 302 So.2d 248, 249 (Miss. 1974); Hailes v. State, 315 So.2d 917, 918 (Miss.1975) (finding no error where, after trial under indictmеnt for murder, defendant was convicted of manslaughter, because he was not prejudiced by trial‘s giving erroneous murder instruction concerning definition of “malice aforethought“). Whether or not the instruction was erroneous, in this instance its use was not fatal.
¶ 13. Towner also urges this Court to find error in the trial cоurt‘s refusal to give instruction D-7, which reads as follows:
The Court instructs the jury that if you believe from the evidence in this case, or have a reasonable doubt therefrom, that: Tenisha Crawford died as the result of the discharge of a hand gun which was, at the time of the fatal shot, in the possession of Phil Glen Towner but, that the fatal shot was fired through accident and misfortune, at a time when Phil Glen Towner had no unlawful intent toward Tenisha Crawford then the death of Tenisha Crawford is deemed by the law to have been an excusable homicide and you must find the defendant “not guilty.”
He contends that the lower court‘s action devаstated his defense as the instruction represented his only avenue to putting his theory of the case, that his gun went off accidentally, before jurors. However, we agree with the trial judge that D-7, an excusable homicide instruction, is without evidentiary foundation in this instance since its genesis,
¶ 14.
(a) When committed by accident and misfortune in doing any lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent;
(b) When committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation;
(c) When committed upon any sudden combat, without undue advantage being taken, and without any dangerous weapon being used, and not done in a cruel or unusual manner.
Because he employed a dangerous weapon withоut provocation, Towner is left to rely upon section (a), which our supreme court has consistently refused, as noted below, to extend to those homicides “committed in the course of an unlawful act.” Hailes v. State, 315 So.2d 917, 918 (Miss.1975) (citing Powell v. State, 279 So.2d 161 (Miss.1973)). See also Nicholson ex rel. Gollott v. State, 672 So.2d 744, 753 (Miss.1996) (holding excusable homicide instruction inapplicable to fatal shooting which allegedly occurred during unlawful attempt to commit suicide); Thibodeaux v. State, 652 So.2d 153, 167 (Miss.1995) (affirming trial court‘s refusal of excusable homicide instruction where defendant claimed that his gun accidentally discharged while he was unlawfully “headlighting” deer).
¶ 15. Applying this precedent to the instant facts, Towner has himself admitted to carrying a conсealed weapon during these events. By all accounts this action, a misdemeanor under
¶ 16. A defendant such as Towner is indeed entitled to have an instruction on his theory of the case. Murphy v. State, 566 So.2d 1201, 1206 (Miss.1990). However, this right is tempered by a trial court‘s authority to refuse any instruction which (1) incorrectly states the law, (2) is without evidentiary foundation, or (3) is covеred elsewhere. Murphy, 566 So.2d at 1206. Because the case sub judice falls within this discretionary realm, we hold that the trial court has under no obligation to grant Towner‘s instruction D-7. This issue is consequently without merit.
Instruction S-8: Presumed Intent
¶ 17. Finally, Towner assigns error to the trial court‘s giving of instruction S-8 which reads as follows: “The Court instructs the Jury that a person intends the оrdinary consequences of his voluntary acts.” Claiming
¶ 18. Though he cites none, Towner‘s assertion is based upon well rooted case law. For instance, our supreme court held in Funches v. State, 246 Miss. 214, 148 So.2d 710 (1963), where the determinative issue was whether a fatal shooting was deliberate or accidental, that an instruction on the presumption of malice aforethought was improper. Funches, 246 Miss. at 217, 148 So.2d at 711. Therein the court reversed the appellant‘s murder conviction while writing that the language used “may well have been understood by the jury as intimating that defendant intentionally used the deadly weapon... [w]ith such understanding, the jury would necessarily conclude that malice aforethought could be presumed.” Id. Later, in Hydrick v. State, the court expressly held that where specific intent is the gist of the offense charged and therefore the prosecution‘s responsibility to prove beyond a reasonable doubt, the trial judge should refrain from instructing jurors on related presumptions of evidence. Hydrick v. State, 246 Miss. 448, 452, 150 So.2d 423, 425 (1963). In reviewing a conviction for assault and battery with intent to kill based upon the use of an instruction similar to that questioned here, the Hydrick court wrote that “[w]here a crime consists of an act, combined with a specific intent, the intent is just as much an element of the crime as the act. In such cases, mere general malice or criminal intent is insufficient, and the requisite, specific intent must be shown as a matter of fact, either by direct or circumstantial evidence.” Id. (citing 22 C.J.S. Criminal Law § 32, p. 11). With this, the court reversed and remanded for a new trial equating the instruction with an attempt to bolster the evidence introducеd and/or supply facts required to be proven by the State, Id., but not before noting the applicability of the stated concept and instructions thereupon elsewhere in the criminal arena. Id.
¶ 19. Funches and Hydrick make clear that the giving of instruction S-8 was inappropriate as to the murder charge. However, we must again recognize that Towner was convicted not of murder, but of manslaughter, which merely requires that the prosecution prove culpable negligence via the “conscious and wanton or reckless disregard of the probabilities of fatal consequences to others аs the result of the willful creation of an unreasonable risk.” Campbell v. State, 285 So.2d 891, 893 (Miss.1973).
¶ 20. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FIVE YEARS SUSPENDED IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO HARRISON COUNTY.
BRIDGES, C.J., McMILLIN AND THOMAS, P.JJ., COLEMAN, DIAZ, HERRING, KING, PAYNE AND SOUTHWICK, JJ., CONCUR.