Windham v. State

For the Court:

I. INTRODUCTION

A. Procedural History

In November 1985, the Kemper County Grand Jury indicted 21-year-old Otis Lee Windham under Miss.Code Ann. §§ 97-3-19 & 97-3-21 (1972) for the June 1985 murder of 79-year-old Albert Thurston Calvert.

At the Kemper County Circuit Court, a jury found Windham guilty, and the trial judge sentenced him to life imprisonment. On appeal, this Court reversed and remanded for a new trial. See Windham v. State, 520 So.2d 123 (Miss.1988).

On remand, another jury found Windham guilty of murder, and Judge Robert W. Bailey sentenced him to life imprisonment. Windham appealed. This Court affirms.

B. Facts

The facts or evidence adduced in the second trial is essentially the same as that adduced in the first trial. See Windham v. State, 520 So.2d 123, 124 (Miss.1988). The following is a summary of this evidence viewed in a light most favorable to the State.

Albert Calvert and his wife, Betty, owned and operated a small grocery store in the Zion Community of Kemper County. Albert was seventy-nine years old and had no right arm; it had been cut off at the shoulder. Betty was seventy-eight years old. On June 26, 1985, around 6:00 to 6:30 p.m., twenty-one-year-old Otis Lee Wind-ham pulled into Calvert’s Grocery to buy gas.

No one disputes that, as Otis pumped gas, he and Albert argued over a debt Otis owed Calvert’s Grocery. Betty walked to the scene and noticed Otis gripping her husband’s arm. She immediately attempted to pry Otis’ grip loose, but she did not succeed. Wanda Hampton, while fishing in the Calverts’ nearby pond, overheard Betty say: “If you don’t leave him alone, I’ll call the sheriff.” When Windham refused to release Albert, Betty struck Otis in the face with her hand. Otis then reached through his car window, retrieved a carpenter’s hammer, and hit her head hard enough to render her unconscious. According to Otis, Albert “never hit me but he started back in the store and that’s when I grabbed him and throwed him.” Meanwhile, Betty regained consciousness and witnessed her husband’s body fall “limber as a dishrag” in front of her. The State contended — and the jury obviously believed — that Otis had assaulted Albert with the hammer, which resulted in his death a short time later.

II. ANALYSIS

Otis presented three issues for this Court’s disposition.

A. Whether the verdict was contrary to the overwhelming weight of the evidence?

In this appeal, Otis contends the verdict was against the overwhelming weight of the evidence. More specifically, he contends that the trial judge should have granted him a directed verdict, j.n.o.v., or new trial on the basis of the so-called “Weathersby Rule.”

Otis raised this issue in his first appeal, and this Court deemed it to be devoid of merit. See Windham, 520 So.2d at 127 (“We have considered the other assignments of error addressed to the sufficiency of the evidence and the Weathersby Rule, and find them without merit.”). In considering Otis’ renewed contention, this Court refers to Johnson v. State:

At the outset, several general observations need to be made. The evidence offered in the second trial was almost identical to that offered in the first. Furthermore, Johnson’s assignments of error almost duplicate those in the first appeal.

Turning to the case before this Court, it is noted that the only change in the evidence of any significance in the second trial is Johnson’s personally testifying and denying any part in the crime and asserting an alibi. Fifteen of his eighteen assignments of error were decided adversely to Johnson on the first appeal. Johnson has admitted this fact, merely stating that he “resubmits those ... assignments of error, originally submitted, for further review.” This Court holds the same to be res judicata and therefore does not address them again.

529 So.2d 577, 579-80 (Miss.1988) (citing West v. State, 519 So.2d 418, 424-25 (Miss.1988)).

In sum, Johnson v. State is dispositive of this issue. Accordingly, this Court reaffirms on this issue under the doctrine of res judicata.

B. Whether a circumstantial-evidence instruction should have been granted?

Otis next contends that the judge should have granted a circumstantial-evidence instruction (Instruction D-12).

This Court has held that, “where there is direct evidence of a crime, the circumstantial-evidence instruction need not be given.” King v. State, 580 So.2d 1182, 1191 (Miss.1991) (quoting Gray v. State, 549 So.2d 1316, 1324 (Miss.1989)). In the case sub judice, the evidence adduced is not wholly circumstantial. Thus, the judge did not err by refusing the instruction.

In sum, this Court affirms on this issue.

C. Whether the trial judge “erred in granting Instruction S-3 which allowed the jury to consider ‘depraved heart’ type murder when the appellant was originally indicted for deliberate design murder, deprived the defender of a fair manslaughter consideration, and denied him equal protection of law?”

Through this unartfully-framed issue, Otis presents two contentions. He contends that Instruction S-3, a “depraved heart” murder instruction, should not have been granted: (1) because it (Instruction S-3) “amounted to a denial, or substantial diminishing of a manslaughter consideration”; and (2) because it was “not supported by the facts.”

1.

Specifically, Instruction S-3 provides:

The Court instructs the Jury that, if you believe from the evidence in this case, beyond a reasonable doubt, that on the 26th day of June, 1985, in Kemper County, Mississippi, the deceased, Albert Thurston Calvert, was a living person, and the Defendant, Otis Lee Windham, did wilfully, unlawfully and feloniously act in a manner eminently dangerous to Albert Thurston Calvert and others, evincing a depraved heart, regardless of human life, by beating Albert Thurston Calvert with a Hammer which resulted in the death of Albert Thurston Calvert, then you shall find the Defendant guilty of murder.

Vol. I, at 61. Otis contends that this instruction should not have been granted because it “amounted to a denial, or substantial diminishing of a manslaughter consideration.” At the trial level, Otis phrased his objection accordingly: “I object to S-3 ... [because it] is designed to deprive the defendant of manslaughter — or any manslaughter or any excusable homicide instruction.” In essence, Otis’ contention is that the crime of depraved-heart murder as defined by Section 97-3-19(l)(b) is indistinguishable from culpable-negligence manslaughter as defined in Miss.Code Ann. Section 97-3-47.

Instruction S-3 derives its authority specifically from statutory law, which provides in part:

(1) The killing of a human being without the authority of law by any means or in any manner shall be murder in the following cases:

(b) When done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual....

MISS.CODE ANN. § 97-3-19(l)(b) (1991 Supp.) (emphasis added).

The familiar manslaughter statute, which Otis contends is diminished by Instruction S-3, provides:

Every other killing of a human being, by the act, procurement, or culpable negligence of another, and without authority of law, not provided for in this title, shall be manslaughter.

MISS.CODE ANN. § 97-3-47 (1972). Countering Otis’ contention, the State asserts that § 97-3-47 “specifically excludes homicides falling under § 97-3-19(l)(b).” “Therefore,” the State concludes, “depraved-heart murder and culpable-negligence manslaughter are mutually exclusive; by the express terms of the Mississippi Code, they do not overlap.”

Otis’ contention is unpersuasive. Depraved-heart murder and culpable-negligence manslaughter are distinguishable simply by degree of mental state of culpability. In short, depraved-heart murder involves a higher degree of recklessness from which malice or deliberate design may be implied. See, e.g., W. LAFAVE & A. SCOTT, CRIMINAL LAW §§ 30 & 70 (1972); United States v. Browner, 889 F.2d 549, 552 (5th Cir.1989).

In sum, Instruction S-3 did not “amount[ ] to a denial, or substantial diminishing, of a manslaughter consideration” by the jury. This conclusion is consistent with this Court’s decision in at least one other case in which a depraved-heart murder instruction and a culpable-negligence manslaughter instruction were properly granted. See Johnson v. State, 475 So.2d 1136, 1139-40 & 1148 (Miss.1985); accord State v. Smith, 415 A.2d 562 (Me.1980) (depraved-heart and culpable-negligence instructions given in this case involving death from “brutal and senseless beating”); State v. Goodall, 407 A.2d 268 (Me.1979) (same). Thus, Otis’ contention is deemed devoid of merit.

2.

Next, Otis contends that Instruction S-3 should not have been granted because it was “not supported by the facts.” Otis’ contention is devoid of merit. The evidence clearly establishes the existence of actual or implied malice or deliberate design. More specifically, the evidence establishes the possibility that Otis could have killed Calvert “while acting in a manner eminently dangerous to others [i.e., the Calverts] and evincing a depraved heart, regardless of human life.” Compare with Johnson v. State, 475 So.2d 1136, 1139-40 (Miss.1985).

In Johnson v. State, an unknown individual summoned police officers to Christine Johnson’s apartment. There, they found the bruised and cut body of Christine’s 3¾⅛-year-old son. Christine claimed that her son died from an accidental fall. An autopsy, however, revealed that her son died from extensive blows to the head. At the Coahoma County Circuit Court, a jury convicted Christine of murdering her son under the depraved-heart statute. Affirming the conviction, this Court stated:

It has long been the case law of this state that malice aforethought, premeditated design, and deliberate design all mean the same thing. See Dye v. State, 127 Miss. 492, 90 So. 180 (1921); Hawthorne v. State, 58 Miss. 778 (1881); McDaniel v. State, 8 Smed. and M. 401 (Miss.1847). Furthermore, in Talbert v. State, 172 Miss. 243, 159 So. 549, 551 (1935), the Court had under consideration two jury instructions, one of them being in the precise language of the “depraved heart” murder statute. The Court, referring to the forerunner of § 97-3-19(l)(a) (sec. 985 subds. (a) and (b) of the Code of 1930), said the following:

“This statute but epitomizes the common law found_ Murder is the voluntary killing of any person of malice prepense or aforethought, either express or implied by law; the sense of which word malice is not only confined to a particular ill-will to the deceased [such as anger, hatred, and revenge], but is intended to denote ... an action flowing from a wicked and corrupt motive, a thing done malo animo, where the fact has been attended with such circumstances as carry in them the plain indications of a heart regardless of social duty and fatally bent upon mischief. [And therefore malice is implied from any deliberate, cruel act against another, however sudden ].”

475 So.2d at 1139 (quoting Talbert v. State, 172 Miss. 243, 250, 159 So. 549, 551 (1935), and Commonwealth v. Webster, 59 Mass. (5 Cush.) 295, 304 (1850)). See also Fairman v. State, 513 So.2d 910, 913 (Miss.1987) (holding that the evidence established that defendant acted in a manner eminently dangerous to another or others and evincing a depraved heart).

The facts of Johnson are analogous to those of the case sub judice. In the case sub judice, Otis assaulted the Calverts with a hammer during a dispute over a debt he owed them but, according to Otis, he “never intended to hurt no one.” Lack of intent notwithstanding, his use of a hammer to assault a 79-year-old, one-armed man (who was running away) and his 78-year-old wife may, at the very least, be described as grave recklessness manifesting utter disregard or indifference to the resultant creation of eminent danger to the life of both Albert and Betty. This description alone fits within the modern view of the scope of depraved-heart murder.

Under the traditional view, death which resulted from a reckless act directed toward a particular individual would not be deemed to be within the scope of depraved-heart murder statutes. To constitute depraved-heart murder, the act must have manifested a reckless indifference to human life in general. See P. WHARTON, THE LAW OF HOMICIDE § 129 (3rd ed. 1907). For example, an unjustified shooting at a passing train or into a house, which generally poses a risk to a group of individuals and which results in death, is a familiar example of traditional depraved-heart murder. See People v. Jernatowski, 238 N.Y. 188, 144 N.E. 497 (1924) (shooting into a room); Banks v. State, 85 Tex.Crim. 165, 211 S.W. 217 (1919) (shooting into caboose of passing train).

The traditional view has since evolved. An act which poses a risk to only one individual and which results in that individual’s death may also be deemed depraved-heart murder. For example, death which resulted from a beating has been deemed to be within the scope of depraved-heart murder statutes. See, e.g., People v. La Mountain, 155 A.D.2d 717, 547 N.Y.S.2d 430 (1989) (death resulted from repeated punching, kicking, and stomping); State v. Smith, 415 A.2d 562 (Me.1980) (death resulted from beating and stabbing); DuBose v. Lefevre, 619 F.2d 973 (2d Cir.1980) (death resulted from beating); State v. Goodall, 407 A.2d 268 (Me.1979) (death resulted from “brutal and senseless beating”); State v. Wardle, 564 P.2d 764 (Utah 1977) (death resulted from “multiple blunt blows”); see also Regina v. Ward, 1 Q.B. 351 (1956) (oft-cited case in which mother shook baby to death); Solomon v. Commissioner of Correctional Servs., 786 F.Supp. 218, 222 (E.D.N.Y.1992) (death from choke hold). More pertinent to the facts of the case sub judice, death which resulted from injuries inflicted through use of an object — including use of a hammer — has been deemed to be within the scope of depraved-heart murder statutes. See State v. McGranahan, 415 A.2d 1298 (R.I.1980) (death from injuries inflicted through use of a bottle); State v. Woodbury, 403 A.2d 1166 (Me.1979) (death from injuries to head inflicted through use of two-by-four piece of wood); People v. Rivera, 59 A.D.2d 675, 398 N.Y.S.2d 538 (1977) (use of belt buckle); State v. Day, 572 P.2d 703 (Utah 1977) (use of “heavy wooden stick”); see also People v. Boston, 153 A.D.2d 534, 545 N.Y.S.2d 146 (1989) (defendant convicted of attempted depraved-heart murder for nonfatal beating using a hammer), rev’d on other grounds, 555 N.Y.S.2d 27 (1990); Finnegan v. State, 33 Md.App. 251, 364 A.2d 124 (1976) (in affirming conviction for “assault with intent to murder,” court opined that defendant could have been convicted under various theories of murder — including depraved-heart murder — if victim had died from hammer blows); cf. Grassia v. Scully, 707 F.Supp. 1410 (S.D.N.Y.1989) (use of gasoline which ignited).

In Johnson v. State, 475 So.2d 1136 (Miss.1985), this Court left no question regarding the view to which Mississippi adheres. That is, this Court construed Miss. Code Ann. § 97-3-19(1)(b) (Supp.1984) — the depraved-heart murder statute — in a manner which encompasses a reckless and eminently dangerous act directed toward a single individual. Indeed, this Court can perceive no rationale for characterizing a horrendously-violent act, like the one committed by Otis, as manslaughter rather than depraved-heart murder, simply because, under the traditional view, the act must have been directed toward “human life in general" as opposed to one individual in particular. A distinction between the risk of death to one particular individual and the risk of death to more than one individual is a senseless and outmoded one which this Court properly discarded six years ago in Johnson v. State. See R. PERKINS, CRIMINAL LAW 32 (1957) (Under the depraved-heart theory, “a wanton and reckless disregard of an obvious human risk is with malice aforethought even if there was no actual intent to kill or injure.”); cf. O.W. HOLMES, THE COMMON LAW 53 (1881) (“[Kjnowledge that the act will probably cause death ... is enough in murder as in tort.”); Commonwealth v. Chance, 174 Mass. 245, 252, 54 N.E. 551, 554 (1899) (As Justice Holmes further explained: “[I]t is possible to commit murder without any actual intent to kill or to do grievous bodily harm, and that, reduced to its lowest terms, ‘malice,’ in murder, means knowledge of such circumstances that according to common experience there is a plain and strong likelihood that death will follow the contemplated act, coupled perhaps with an implied negation of any excuse or justification. ‘The criterion in such cases is to examine whether common social duty would, under the circumstances, have suggested a more circumspect conduct.’ ”) (quoting case law).

3.

In sum, the judge granted instructions on various theories of culpability — including simple murder, depraved-heart murder, inexcusable manslaughter, and excusable manslaughter. The jury found Otis guilty of “murder” — which means the jury accepted a simple-murder theory or a depraved-heart murder theory. In either event, the evidence or facts justified an instruction on, and a finding of, depraved-heart murder. This conclusion is consistent with case law in this State as well as the modern view espoused in other jurisdictions. See generally Annotation, Validity and Construction of Statute Defining Homicide By Conduct Manifesting “Depraved Indifference,” 435 A.L.R.4th 311 (1983 & 1990 Supp.); see W. LAFAVE & A. SCOTT, CRIMINAL LAW § 70 (1972); R. PERKINS, CRIMINAL LAW 32 (1957). This Court therefore affirms on this issue.

III. CONCLUSION

Otis Lee Windham has been afforded two trials by jury. In each case, the jury concluded: (1) that the evidence proves beyond a reasonable doubt the existence of the element of malice — actual or implied; and (2) that no justifiable or mitigating circumstance existed to support a finding of manslaughter.

This Court is convinced beyond a reasonable doubt that the evidence supports the jury verdict. A third trial is not warranted. The murder conviction is therefore affirmed.

AFFIRMED.

ROY NOBLE LEE, C.J., and ROBERTSON, SULLIVAN, PITTMAN and McRAE, JJ., concur.

HAWKINS, P.J., and ROBERTSON, J., concur by separate written opinions.

BANKS, J., dissents by separate written opinion, joined by DAN M. LEE, P.J.

. Albert contended that he merely "grabbed [him] and pushed him and got into [his] car and left.” Vol. II, at 119-20. An autopsy, however, revealed that Albert’s injuries were inconsistent with a mere fall to the ground. Albert sustained scalp lacerations, skull fractures, and extensive brain injury — all of which the pathologist opined were caused by a "blow” from a blunt object such as a hammer. As metaphorically described by the pathologist, the blows reflected "home run hits." Id. at 58.

. Pursuant to the Weathersby Rule, "[w]here the defendant or the defendant’s witnesses are the only eyewitness to the homicide, their version, if reasonable, must be accepted as true, unless credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge." Weathersby v. State, 165 Miss. 207, 209, 147 So. 481, 482 (1933).

. Windham also raised a related sub-issue: Whether the trial judge properly refused Instruction D-ll? Appellant's Brief at 9. This instruction is based on the Weathersby Rule. See Weathersby v. State, 165 Miss. 207, 147 So. 481 (1933).

Griffin v. State is dispositive of this sub-issue. 495 So.2d 1352 (Miss.1986). In Griffin, this Court held that "the Weathersby Rule is not the proper subject of an instruction to the jury.” Id. at 1355 (citing cases).

Pursuant to Griffin, this Court concludes that this sub-issue is devoid of merit and that the trial judge properly denied Instruction D-ll.

. This type of murder is found in other jurisdictions under various rubrics — such as "depraved indifference," "indifferent murder," “reckless murder,” and "depraved heart.” See, e.g., State v. Goodall, 407 A.2d 268 (Me.1979).

.Otis also seems to be contending that the instruction should not have been granted because he was indicted for "deliberate design” murder — not for “depraved heart” murder. This contention is devoid of merit. Statutory law provides that "[i]n an indictment for homicide, it shall not be necessary to set forth the manner in which or the means by which the death of the deceased was caused, but it shall be sufficient to charge in an indictment for murder, that the defendant did feloniously, wilfully, and of his malice aforethought, kill and murder the deceased." MISS.CODE ANN. § 99-7-37 (1972). Accordingly, the judge properly granted an instruction on "depraved heart” murder under the Kemper County Grand Jury indictment — which was clearly legally sufficient.

. According to Professor Rollin M. Perkins of the Hastings College of Law:

In the early authorities, an intent to kill was said to be "implied" from [certain] act[s] ... despite [an] obvious effort to avoid killing if possible. Now, ... this fiction is abandoned and it is frankly stated that ... a reckless and wanton disregard of an obvious human risk is with malice aforethought even if there is no actual intent to kill or injure.

R. PERKINS, CRIMINAL LAW 32 (1957)