McClendon v. State

748 So. 2d 814, 1999 WL 432571
CourtCourt of Appeals of Mississippi
DecidedJune 29, 1999
Docket97-KA-01057-COA
StatusPublished
Cited by9 cases

This text of 748 So. 2d 814 (McClendon v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McClendon v. State, 748 So. 2d 814, 1999 WL 432571 (Mich. Ct. App. 1999).

Opinion

748 So.2d 814 (1999)

Anthony Terrell McCLENDON, Appellant,
v.
STATE of Mississippi, Appellee.

No. 97-KA-01057-COA.

Court of Appeals of Mississippi.

June 29, 1999.
Rehearing Denied September 28, 1999.
Certiorari Denied December 9, 1999.

*815 Thomas M. Fortner, Robert M. Ryan, Andre' De Gruy, Jackson, Attorneys for Appellant.

Office of the Attorney General by W. Glenn Watts, Attorney for Appellees.

BEFORE SOUTHWICK, P.J., COLEMAN, AND THOMAS, JJ.

SOUTHWICK, P.J., for the Court:

¶ 1. Anthony Terrell McClendon was convicted by a Hinds County Circuit Court jury of deliberate design murder and sentenced to life in prison. On appeal he argues that the aiding and abetting instruction was erroneous, a manslaughter instruction was needed, and the prosecution should not have withheld results of a polygraph examination. No reversible error is shown and we affirm.

FACTS

¶ 2. The following is a review of the evidence, some of it contested, that is consistent with the verdict. Anthony Terrell "Rell" McClendon and Michael Towers worked together on a roofing job. After work on December 13, 1995, McClendon took Towers, McClendon's cousin Elbert Silas, and fifteen-year old Antonio Lewis for a ride in an automobile that he had borrowed. McClendon wanted to collect $800 that he believed Leon Hughes owed him as the result of a drug transaction. McClendon drove to the home of Henry Sims, who was called "Bonshay," looking for Hughes.

¶ 3. McClendon found him there and had him get in the backseat of the car between Silas and Lewis. McClendon then began asking Hughes for the money. Hughes stated that he had some money at his sister's apartment in Clinton, and the group next traveled there. McClendon and Hughes got out of the vehicle and knocked on the apartment door, but no one answered. McClendon became angry and slapped and punched Hughes. The two got back into the vehicle. On the drive towards Bolton, where McClendon's aunt and cousin lived, McClendon told Hughes to "say hello to his sister when he got *816 there." One witness said that McClendon's sister was dead.

¶ 4. When they arrived at the home of McClendon's aunt, the group parked behind a hedge so that the vehicle was not visible from inside the residence. McClendon then got out and entered the trailer, talked briefly to his cousin, then went back outside. Shortly thereafter McClendon went back inside, talked to his cousin again, then again went outside. He pulled out a pistol and told Hughes to get out of the car. Hughes refused and was forcefully removed from the vehicle. McClendon then shot Hughes once in the buttocks and once in the calf.

¶ 5. The gunshot wounds left Hughes unable to walk. McClendon, Towers, Silas and Lewis dragged his body down a gravel road which led to a nearby pasture. Hughes was crying and begging for his life. Towers struck him on the head with a brick. Hughes was in and out of consciousness, and was carried over a barbed wire fence and into the pasture. McClendon told Silas to give his gun to Lewis so that he could kill Hughes. Silas refused and walked toward the fence with Towers. McClendon then gave his weapon to Lewis, who was described at trial as mentally "slow." McClendon, Silas, and Towers walked away while Lewis shot Hughes once through the temple. All four returned to the trailer, had glasses of water, then returned to Jackson.

¶ 6. McClendon, Silas, Towers, and Lewis were indicted for the deliberate design murder of Leon Hughes. McClendon was tried separately in Hinds County Circuit Court August 4-5, 1997. The jury found him guilty and sentenced him to a term of life.

DISCUSSION

I. Aiding and abetting instruction

¶ 7. McClendon argues that the trial court improperly granted the State's aiding and abetting instruction, in violation of Hornburger v. State, 650 So.2d 510 (Miss. 1995). According to McClendon, the instruction allowed the jury to convict him of murder in the absence of proof of every element of the crime beyond a reasonable doubt. We first look at instruction S-2:

The Court instructs the Jury that [1] each person present at the time, and consenting to and encouraging the commission of a crime, and knowingly, wilfully and feloniously doing any act which is an element of the crime or immediately connected with it, or leading to its commission, is as much a principal as if he had with his own hand committed the whole offense; [2] and if you believe from the evidence, beyond a reasonable doubt, that the Defendant, Anthony Terrell McClendon, on or about December 13, 1995, was present at the time of the incident which resulted in the death of Leon Hughes, and that he consented to, encouraged or participated in the conduct causing his death, and did then and there wilfully, unlawfully, knowingly, and feloniously do any act which is an element of the crime of murder as defined elsewhere in these instructions or immediately connected with it, or leading to its commission, not in necessary self-defense, then and in that event, you should find the Defendant, Anthony Terrell McClendon, guilty as charged of murder.
[bracketed numbers and italics added.]

¶ 8. A comparison of this instruction with the one in Hornburger reveals that they are almost identical except for the extra language in McClendon's that we have italicized. In other words, the section that follows the "[1]" appears in the Hornburger instruction. However, the second part of the instruction in Hornburger failed to inform the jury that in order to convict, it must first find that he was "present at the time, consenting to, and encouraging the commission of the crime." It merely stated that if the defendant did "any act which is an element of the crime of burglary of a building, or leading to its commission, then and in that event, you *817 should find the defendant guilty as charged."Id.

¶ 9. The court found the instruction to be improper but ultimately held that it was harmless error. Justice Banks agreed that it was error but not that it was harmless. He explained that the principle of law stated in the first part of the instruction—the definition of an aider and abettor—was absent in the second part of the instruction which purported to apply the law to the facts of the case. Hornburger, 650 So.2d at 516 (Banks, J., dissenting). The absence of the language that the defendant be "present and consenting to and encouraging the crime" allowed the jury to find the defendant guilty for "[doing] any act which is an element of the crime ... or leading to its commission...." Id.

¶ 10. The problem in Hornburger was corrected in McClendon's case. We find no error.

¶ 11. There was also an evidentiary basis for the instruction. Sufficient evidence was presented from which the jury could find that McClendon aided, counseled or encouraged others in the commission of the murder of Leon Hughes and did an act which is an element of the crime of murder or immediately connected with it, or leading to its commission. "[A]iding and abetting may be manifested by acts, words, signs, motions, or any conduct which unmistakably evinces a design to encourage, incite or approve of the crime, or even by being present, with the intention of giving assistance, if necessary, though such assistance may not be called into requisition." Swinford v. State, 653 So.2d 912, 915 (Miss.1995). Towers testified that McClendon indicated his desire to have Hughes killed and gave his gun to Lewis.

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Cite This Page — Counsel Stack

Bluebook (online)
748 So. 2d 814, 1999 WL 432571, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcclendon-v-state-missctapp-1999.