IN THE SUPREME COURT OF MISSISSIPPI
NO. 2004-KA-01141-SCT
KENNETH J. WILSON, JR.
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 05/18/2004 TRIAL JUDGE: HON. BILLY JOE LANDRUM COURT FROM WHICH APPEALED: JONES COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: LESLIE D. ROUSSELL ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: W. DANIEL HINCHCLIFF DISTRICT ATTORNEY: ANTHONY J. BUCKLEY NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 08/17/2006 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE COBB, P.J., EASLEY AND DICKINSON, JJ.
COBB, PRESIDING JUSTICE, FOR THE COURT:
¶1. Kenneth J. Wilson, Jr., was convicted in the Jones County Circuit Court, Second
Judicial District, of murder and aggravated assault and sentenced to life plus twenty years under
the supervision of the Mississippi Department of Corrections. On appeal, Wilson assigns five
errors: denial of his six motions to suppress confessions; failure to give the jury an instruction
defining deliberate design; failure to grant his request for JNOV and/or a new trial; failure to
give a two-theory instruction to the jury; and cumulative error. Finding no reversible error, we
affirm Wilson’s conviction and sentence. FACTS
¶2. The events giving rise to this appeal began on the evening of July 2, 2003. Officer
Tyrone Keller was called to a domestic disturbance at the home of Rika Carmichael, which she
shared with Wilson, his live-in girlfriend Lisa Williams and her two children – Michael
D’Anthony Williams and a younger son. Wilson and Lisa had an argument which resulted in
Wilson pushing Lisa into a television, and Keller asked Wilson to leave the house. Wilson then
went to Lisa’s mother’s home nearby, in an attempt to work out the problems he was having
with Lisa. Another argument broke out, and Keller was again called to the scene. After this
second incident, Keller did not arrest Wilson, but took him in his patrol car to the Laurel
Police Department where Wilson’s parents picked him up around 10:00 P.M.
¶3. Wilson arrived back at Lisa’s home around 11:00 P.M. and knocked on the door, but she
would not unlock it to let him in. Wilson became angry, broke the glass of the door with his
fist, unlocked it, entered the home and started punching Lisa in the face. A fierce fight erupted
when household members, including Lisa’s son Michael, came to her defense. Wilson tossed
Lisa to the floor and continued to beat her in the face with his fists, while Rika ran to call the
police from a neighbor’s home. While Lisa was on the floor, Wilson grabbed a knife from the
nearby counter, stabbed her fourteen times, and inflicted eleven slash wounds and one chop
wound. Three of those wounds were fatal and Lisa bled to death within minutes. While
attempting to defend his mother, Michael was stabbed once in the forehead and once in the leg
by Wilson.
2 ¶4. The police arrived shortly after the fight ended and found Wilson on the front porch with
the knife still in his hand and blood covering his clothing. A standoff between the police and
Wilson ensued, during which Wilson stabbed himself several times before the police disarmed
him. He was taken into custody and transported to a nearby hospital for treatment of wounds
suffered to his arms and hands. During this time Wilson made incriminating statements to the
police.
DISCUSSION
I. WILSON’S CONFESSIONS
¶5. Wilson asserts that his confessions to the police were involuntary and the product of
custodial interrogations conducted without proper Miranda warnings. He filed six motions
in limine requesting that statements either given directly to the police or in police presence
be suppressed. Further, Wilson argues that the trial court erred by not conducting an Agee1
hearing to determine the voluntariness of his confession.
¶6. The relevant facts begin when the police arrived following the final altercation between
Wilson and Lisa. As the police were leading Wilson from the house, but prior to placing
handcuffs on him, he began making statements regarding his guilt. He continued to make
1 When objection is made to the introduction of the confession, the accused is entitled to a preliminary hearing on the question of the admissibility of the confession. This hearing is conducted in the absence of the jury. When, after the State has made out a prima facie case as to the voluntariness of the confession, the accused offers testimony that violence, threats of violence, or offers of reward induced the confession, then the State must offer all the officers who were present when the accused was questioned and when the confession was signed, or give an adequate reason for the absence of any such witness. Agee v. State, 185 So. 2d 671, 673 (Miss. 1966).
3 statements to the police as they were placing handcuffs on him and even as he was being read
his Miranda rights. One of the arresting officers interrupted Wilson, loudly saying “Miranda
Miranda” at him in an attempt to silence him. Wilson’s statements were captured on a video
camera mounted on Officer Keller’s patrol car, as follows:
Officer Tyrone Stewart: Listen before we ask you any questions you must understand your rights. You have the right to remain silent.
Wilson: I know that.
Stewart: Anything you say can be used against you in court.
Wilson: I know that. I did it.
Stewart: You have the right –
Wilson: Guilty
Stewart: – to talk to a lawyer for advice –
Stewart: – and to have one with you during questioning –
Wilson: Tyrone, Guilty, Guilty. I don’t need one
Stewart: huh?
Stewart: Okay. One will be appointed for you by the Court before questioning if you wish, if you wish to answer questions without a lawyer, you can stop answering questions at any time. You also have the right to stop at anytime until you talk to a lawyer, Okay?
Prior to reading Wilson his Miranda rights, the officers did not ask him any questions.
4 ¶7. While en route to the hospital, Wilson continued to make statements regarding his guilt.
When he arrived at the hospital, he made further statements in the presence of Officer John
Cox, who was sent to provide security for Wilson, because the police feared he might become
a victim of retribution from Lisa’s family. The next day, when police investigator Earl Reed
went to the hospital to photograph wounds to Wilson’s arms and hands, Wilson again made
statements to him without being questioned. Later, Reed and another officer interviewed
Wilson on videotape, after again reading him his rights and obtaining his signed waiver. In that
video, Wilson described the evening’s events in detail and confessed to stabbing Lisa and
Michael. Following a hearing where no witnesses were called, the trial judge denied Wilson’s
six motions to suppress the above statements.
¶8. In order for a confession to be admissible at trial it must have been intelligently,
knowingly and voluntarily given, and not a product of police threats, promises or inducements.
Manix v. State, 895 So. 2d 167, 180 (Miss. 2005). In determining whether a defendant’s
confession was intelligently, knowingly and voluntarily given the trial court sits as a finder of
fact. Glasper v. State, 914 So. 2d 708, 716 (Miss. 2005). Therefore, this Court will reverse
the trial court’s determination only when it was manifestly incorrect. Id. A confession is
voluntary when, taking into consideration the totality of the circumstances, the statement is the
product of the accused’s free and rational choice. Jacobs v. State, 870 So. 2d 1202, 1207
(Miss. 2004). The prosecution bears the burden of showing beyond a reasonable doubt that the
confession was voluntary. Glasper, 914 So. 2d at 717; Manix, 895 So. 2d at 180.
5 ¶9. When a defendant claims that the police have induced a confession through coercion
the trial court is required to hold a hearing to determine the voluntariness of that confession.
Thorson v. State, 653 So. 2d 876, 888 (Miss. 1994) (citing Abram v. State, 606 So. 2d 1015,
1030 (Miss. 1992)). At the hearing, held out of the presence of the jury, the State has the
burden of proving the voluntariness of the confession via testimony of an officer, or other
person having knowledge of the facts, that the confession was voluntarily made without any
threats, coercion or offer of reward. Thorson, 653 So. 2d at 888.
¶10. Wilson asserts that the trial court erred in failing to grant him an Agee hearing because
his confession was the product of emotional duress caused by the situation and his need for
medical treatment. The video of Wilson’s confessions clearly indicate they were made of his
own free will and without inducement by the police. Wilson failed to provide any evidence of
coercion, threats or promises made by specific police officers to secure his confessions. Only
those officers claimed to have induced a confession by some means of coercion are required
to testify at the hearing. Abram v. State, 606 So. 2d 1015, 1030 (Miss. 1992). Since Wilson
failed to name specific officers who coerced him or to cite specific examples of coercion, the
hearings conducted by the trial court, were sufficient. This argument is without merit.
¶11. Wilson’s argument that he was subjected to custodial interrogation without proper
Miranda warnings is also without merit. To be subject to custodial interrogation, one must
be both in custody and undergoing interrogation. A subject is in custody when their right to
freely leave has been restricted. Roberts v. State, 301 So. 2d 859, 861 (Miss. 1974). The
6 accused is subject to interrogation when he is questioned by the police or the functional
equivalent. Pierre v. State, 607 So.2d 43, 52 (Miss. 1992). The functional equivalent is any
sort of activity which the police reasonably believe would produce an incriminating response.
Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980).
¶12. It is clear that Wilson was in custody when he confessed; however, his confessions were
not the product of interrogation. The police did not question Wilson until after he was given
his Miranda warnings. The statements he made while being arrested, transported to the
hospital, and receiving medical treatment were not prompted by police activities; rather, were
the product of his own free will. The police did everything in their power to appraise Wilson
of his rights. They even went so far as to shout at him, interrupting one of his confessions, to
inform him of his rights. We conclude the use of these statements did not violate Wilson’s
rights.
II. DELIBERATE DESIGN INSTRUCTION
¶13. Wilson argues that the trial court committed reversible error in failing to instruct the
jury as to the meaning of deliberate design. Wilson admits that neither party requested that
instruction; however, he asserts that under Williams v. State, 729 So. 2d 1181, 1184 (Miss.
1998), if it was error for the trial court to refuse an instruction defining deliberate design, then
it must be error to not give it.
¶14. This issue is procedurally barred because Wilson failed to present the instruction to the
trial court. Conner v. State, 632 So. 2d 1239, 1254 (Miss. 1993). Wilson’s argument is also
7 without merit. A trial court is not required to sua sponte instruct the jury or suggest jury
instructions in addition to what the parties tender. Id. In Williams, this Court held that it was
error for the trial court to refuse to grant this instruction when tendered by the defendant.
Williams, 729 So. 2d at 1184. However, it is not error when a trial court does not instruct the
jury as to deliberate design, when the instruction was not presented by either party. Harris v.
State, 861 So. 2d 1003, 1017 (Miss. 2003); Blocker v. State, 809 So. 2d 640, 646 (Miss.
2002).
III. WEIGHT AND SUFFICIENCY OF THE EVIDENCE
¶15. Wilson asserts that the failure to grant his request for J.N.O.V. or alternatively, a new
trial. He argues that the sufficiency and weight of all the evidence presented at trial cannot
sustain a conviction for killing Lisa with deliberate design or intending to cause or caused
serious bodily injury to Michael. Wilson also argues that there was no evidence presented to
justify a finding that he was fully aware of his actions and carefully considered their
consequences in killing Lisa. Further, he argues that Michael’s injuries did not satisfy the
serious bodily injury requirement of Miss. Code Ann. § 97-3-7(2) and that they were not
intentionally caused, rather were the result of negligence in Wilson’s attempt to stab Lisa.
Therefore, Wilson argues that he could only be guilty of simple assault and not aggravated
assault.
¶16. A motion for new trial challenges the weight of the evidence, while a motion for
J.N.O.V. challenges the sufficiency. There are two separate standards to be applied in
8 reviewing the weight of evidence and sufficiency of evidence. Hawthorne v. State, 835 So.
2d 14, 21 (Miss. 2003). With regard to sufficiency of the evidence, reversal can only occur
when evidence of one or more of the elements of the charged offense is such that reasonable
and fair-minded jurors could only find the accused not guilty. Id. However, with regard to
weight of the evidence, we will overturn a jury verdict only when it is so contrary to the
evidence presented that to let it stand would sanction an unconscionable injustice. Bush v.
State, 895 So. 2d 836, 845 (Miss. 2005). The power to grant a new trial, on the basis of the
weight of the evidence, should be invoked only in exceptional circumstances, when the
evidence weighs heavily against the jury’s verdict. Id. In both situations this Court looks at the
evidence in the light most favorable to the State and consistent with the verdict. Hawthorne,
835 So. 2d at 22. The State is given the benefit of all favorable inferences that may reasonably
be drawn from the evidence. Id.
Deliberate Design
¶17. Wilson was convicted for Lisa’s murder under Miss Code Ann. § 97-3-19(1)(a) which
provides in pertinent 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:
(a) When done with deliberate design to effect the death of the person killed, or of any human being.
9 This Court has held that malice aforethought, premeditated design and deliberate design all
mean the same thing. Hawthorne, 835 So. 2d at 19. By definition, malice aforethought and
deliberate design are synonymous. Id. This Court has also acknowledged that deliberate design
connotes an intent to kill. Id. That being said, deliberate indicates a full awareness of what one
is doing and generally implies careful and unhurried consideration of the consequences. Jones
v. State, 710 So. 2d 870, 877 (Miss. 1998). Design means to calculate, plan or contemplate.
Id. However, deliberate design to kill a person may be formed quickly and perhaps only
moments before the act. Id. Deliberate design, as a matter of law, may be inferred through the
intentional use of any instrument which based on its manner of use, is calculated to produce
death or serious bodily injury. Id. at 878; Fairchild v. State, 459 So. 2d 793, 802 (Miss.
1984).
¶18. In the present case, Wilson fought with Lisa all day. The police were called to interrupt
two domestic disputes previous to the final attack. Wilson broke the door with his bare fists
and proceeded to beat Lisa in the face until she was knocked to the floor. Only then did Wilson
grab a knife and repeatedly stab and slash Lisa. He delivered three fatal blows while fighting
off her son and other household members. This evidence points directly to a considered plan,
deliberately executed, with the purpose of killing Lisa. Given these facts and the applicable
standard of review, we cannot agree there was insufficient evidence to support the jury verdict,
or to let it stand would sanction an unconscionable injustice. Therefore, this argument is
without merit.
10 Substantial Bodily Injury
¶19. Wilson was also convicted of aggravated assault on Michael under Miss. Code Ann. §
97-3-7(2) which states:
(2) A person is guilty of aggravated assault if he (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm
Wilson argues that given the result of the crime and the fact that Michael was not the initial
intended target of his attack, at most he was guilty of simple assault under Miss. Code Ann. §
97-3-7(1).2 This Court has made it clear from the language of these statutes, aggravated assault
and simple assault are carbon copies of each other, with the exception that aggravated assault
requires the use of a deadly weapon. Hutchinson v. State, 594 So. 2d 17, 19 (Miss. 1992).
This suggests that conduct which is simple assault under Section 97-3-7(1) becomes
aggravated assault under Section 97-3-7(2) when done with a deadly weapon. Id. This is
completed when we realize that a subsequent subsection of simple assault includes negligent
injury to another with a deadly weapon. Id.
¶20. It is indisputable that the large kitchen knife Wilson used to stab Lisa and Michael was
a deadly weapon. See Id. at 20. Also there was no evidence presented that Wilson was
2 Miss. Code Ann. § 97-3-7(1) states in part: “(1) A person is guilty of simple assault if he (a) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or (b) negligently causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm.”
11 negligent in the act of stabbing Michael twice, once in the leg and once in the forehead. Both
of these injuries required medical attention. Just because the injuries failed to leave permanent
and lasting effects on the victim does not mean that the case is automatically one of simple
assault. Id. By stabbing Michael with a knife, Wilson’s attack caused a great risk of death.
This Court does not require that an aggressor beat his victim “to within an inch of his life in
order to be found guilty of aggravated assault.” Fleming v. State, 604 So. 2d 280, 292 (Miss.
1992). Given these facts and the applicable standard of review, we cannot agree there was
insufficient evidence to support the jury verdict or that to let it stand would sanction an
unconscionable injustice. This argument is without merit.
IV. JURY INSTRUCTIONS
¶21. Wilson asserts that the trial court erred in refusing to give his two-theory jury
instruction. However, in claiming error, Wilson only cites generally to a series of cases,
without explaining their relevancy. This Court has held that it is the duty of the appellant to
point to relevant case law in support of his argument and that failure to do so relieves us of the
obligation of addressing the issue. Jones v. State, 841 So. 2d 115, 138 (Miss. 2003);
Williams v. State, 708 So. 1358, 1360-61 (Miss. 1998); Pate v. State, 419 So. 2d 1324,
1325-26 (Miss. 1982).
¶22. Notwithstanding the procedural bar, we address this issue. The trial court refused to
give the following jury instruction:
12 The Court instructs the jury that if the evidence in this case presents two reasonable theories, one tending to indicate that the Defendant is guilty and the other tending to indicate that he is innocent, it is the jury’s duty to accept the theory favorable to the Defendant and to find Kenneth Wilson, Jr., not guilty of the crime of murder.
Wilson asserts this jury instruction is appropriate in all cases and therefore should have been
given in this case. He further argues that, because his theory of the case included an assertion
of self - defense, the evidence presented against him was circumstantial therefore requiring
this instruction.
¶23. This Court has stated that two - theory instructions should only be given in cases based
entirely on circumstantial evidence. State v. Rogers, 847 So. 2d 858, 863 (Miss. 2003). We
have defined circumstantial evidence as that which, without going directly to prove the
existence of a fact, gives rise to a logical inference that such a fact exists. Id. A circumstantial
evidence case is one in which there is neither eyewitness testimony nor a confession to the
crime. Id. As is clear in this case there were several eyewitnesses and Wilson repeatedly
confessed to the crime. Therefore, the trial court did not err in refusing this instruction.
V. CUMULATIVE ERROR
¶24. Wilson asserts that the cumulative impact of the trial court’s errors denied him due
process and therefore requires reversal. A criminal defendant is entitled to a fair trial and not
a perfect trial. Sand v. State, 467 So. 2d 907, 911 (Miss. 1985). However, even though not
reversible in themselves, the cumulative impact of non-reversible errors may, in our discretion,
require reversal. Byrom v. State, 863 So. 2d 836, 847 (Miss. 2003). In the present case
13 Wilson has been unable to show to this Court any error, either reversible or harmless. The lack
of demonstrable error indicates that there is no need to consider its cumulative impact.
Therefore, Wilson’s argument is without merit.
CONCLUSION
¶25. We find no merit to Wilson’s assignments of error and affirm the trial court’s judgment.
¶26. COUNT 1: CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY (20) YEARS WITH FIVE (5) YEARS TO SERVE AND FIFTEEN (15) YEARS SUSPENDED UPON SUCCESSFUL COMPLETION OF FIVE (5) YEARS POST RELEASE SUPERVISION IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE IN COUNT II SHALL RUN CONSECUTIVELY WITH THE SENTENCE IMPOSED IN COUNT I. SM ITH, C.J., WALLER, P.J., DIAZ, EASLEY, CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR.