Milano v. State

• Decision Date: 26 April 2001
• Docket Number: No. 1999-KA-00097-SCT.,1999-KA-00097-SCT.
• Citation: 790 So.2d 179
• Parties: Timothy John MILANO v. STATE of Mississippi.
• Court: Mississippi Supreme Court

790 So.2d 179

Timothy John MILANO v. STATE of Mississippi.

No. 1999-KA-00097-SCT.

Supreme Court of Mississippi.

April 26, 2001.

Rehearing Denied July 26, 2001.

Ross Parker Simons, Robert James Knochel, Pascagoula, for Appellant.

Office of the Attorney General by Charles W. Maris, Jr., for Appellee.

EN BANC.

SMITH, Justice, for the Court:

¶ 1. Timothy John Milano ("Milano") was convicted in the Circuit Court of Jackson County of the crimes of capital murder and kidnaping. Milano was sentenced to serve life in prison without the possibility of parole for capital murder and thirty years for kidnaping, with both sentences to run consecutively. Milano appeals, alleging several assignments of error. We find there were no errors at the trial court. Therefore, the judgment of the Jackson County Circuit Court is affirmed. However, because of continuing confusion with improper instructions concerning aiding and abetting, this Court adopts the Fifth Circuit Court of Appeals Pattern Jury Instruction on Aiding and Abetting.

FACTS

¶ 2. The Jackson County Grand Jury indicted Milano and Gary Simmons in a three-count indictment for capital murder, kidnaping, and rape. Simmons was tried, convicted of all three counts, and sentenced to the death penalty. Simmons's appeal is still pending before this Court. The prosecution announced its intent to dismiss the rape charge against Milano the morning of his trial on July 27, 1998, at which time he was tried on the remaining two counts. Milano was subsequently convicted of capital murder and kidnaping and sentenced to life in prison without the possibility of parole and 30 years, respectively, with the sentences to be served consecutively.

¶ 3. The victims in this case are Jeffrey Wolfe, marijuana dealer from Houston, Texas, and Charlene Leaser, a female friend of Wolfe's from Texas with whom he had become close friends "a couple of weeks" prior to coming to Mississippi. In the past, Wolfe or someone acting on his behalf, would bring marijuana to Simmons's house, and Simmons would sell it for him. Simmons would accept the marijuana on consignment, and then his brother-in-law, Milano, would sell the marijuana for Simmons. Milano would then pay Simmons, who would in turn pay Wolfe. Wolfe would periodically return to Mississippi to collect his money.

¶ 4. On August 13, 1996, Wolfe and Leaser arrived in Jackson County, Mississippi, to collect money owed to Wolfe from Simmons in return for drugs left in Simmons's possession. According to Milano, Simmons did not have all of the money owed to Wolfe. That night, Wolfe and Leaser had dinner with Milano's brother, Sonny Milano, and another female.¹ After dinner, Wolfe and Leaser twice drove by Simmons's house, found no one home on either occasion, and returned to their hotel room to wait for Simmons to return.

¶ 5. In the meantime, Simmons telephoned Milano, who then arrived at Simmons's residence. Sonny Milano arrived shortly thereafter, and the Milano brothers left. Milano did not return until after Wolfe and Leaser arrived at Simmons's house.

¶ 6. After a phone call, Wolfe and Leaser left the hotel and drove to Simmons's house. Leaser and Simmons smoked marijuana that Leaser had brought with her from Texas. While the three were outside on the porch, Milano arrived and went inside after being introduced to Leaser. Wolfe, Leaser and Simmons then went inside so that Simmons could get a beer for everyone, and Leaser wanted to roll another marijuana cigarette. The testimony indicates that, at the time they entered the house, there were no signs of a confrontation, and the mood was amicable. ¶ 7. Here the facts are in dispute. Leaser testified that she was seated at the kitchen table rolling the cigarette when she heard gunshots. According to Leaser, Milano was in the living room, Wolfe was standing in the doorway between the kitchen and the living room, and Simmons was near her, in front of the refrigerator. Without warning, Milano shot Wolfe while his back was turned, and Simmons grabbed her and took her to the back of the house.

¶ 8. Leaser ducked and looked up to see Wolfe fall and Milano holding a gun. Simmons then carried her into a back room, where he laid her on the floor, got on top of her and began asking her why she was there and if she or Wolfe were police officers. Simmons then bound Leaser with rope and locked her in a metal box. While tied up in the metal box, Leaser managed to untie herself and began kicking the walls of the box. Simmons then opened the box, retied her, and returned her to the box. Leaser untied herself again, and Simmons removed her from the box and raped her. He then tied her up again and returned her to the box.

¶ 9. According to Milano, upon entering the house the entire group went into the kitchen, where they remained until the shooting. He testified that he and Wolfe were talking about Houston and that he had made plans with Wolfe to return to Houston with him the next day. Wolfe then began asking Milano about the money he was owed. According to Milano, Wolfe was "kind of mad" because Simmons did not have all of his money, and said as much to Simmons, who went to a back room, ostensibly to get the money. "The next thing I know all I heard was gunshots, and I saw Jeff (Wolfe) fall to the floor. I was dumbfounded...." Simmons then grabbed Leaser and took her to a back room.

¶ 10. Simmons returned from the back room and dragged Wolfe's body into a bathroom. Simmons, a butcher by trade, began dismembering the body and ordered Milano to wait in the living room. During the dismemberment of the corpse, Simmons took a break to go to the back room, where he raped Leaser. Simmons invited Milano to rape her as well, which he did not. Milano testified that he did not enter the back room after Simmons had taken Leaser into the room.

¶ 11. The two then carried Wolfe's dismembered body in buckets to a bayou behind Simmons's house and dumped the remains. Milano testified that Simmons forced him to carry the buckets, clean up the boat after they had disposed of the remains, and clean up the floors and the bathroom inside the house.

¶ 12. At some point during the night or early morning hours, Simmons and Milano retrieved Wolfe's and Leaser's possessions from the hotel room where they had been staying, and Simmons took Milano home. While still in the metal box, Leaser heard the telephone ringing but noticed it was not answered. She assumed the house was empty. She began kicking the walls of the box and eventually broke free. Once free, Leaser dressed, grabbed a butcher knife, and ran to a neighbor's house. The neighbor refused to let her inside the house but did call the police for her. While waiting for the police in front of the neighbor's house, Leaser saw Simmons return home, enter the house, and quickly leave.

¶ 13. When the police arrived, Leaser told them that Milano and Simmons killed Wolfe. She then took them inside Simmons's house. The officers searched the house and yard and later found Wolfe's remains in the bayou.

DISCUSSION OF LAW

STANDARD OF REVIEW

¶ 14. "When considering a challenge to a jury instruction on appeal, we do not review jury instructions in isolation; rather, we read them as a whole to determine if the jury was properly instructed." Burton ex rel. Bradford v. Barnett, 615 So.2d 580, 583 (Miss.1993). Similarly, this Court has stated that "[i]n determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found." Coleman v. State, 697 So.2d 777, 782 (Miss.1997) (quoting Collins v. State, 691 So.2d 918 (Miss.1997)). In other words, if all instructions taken as a whole fairly, but not necessarily perfectly, announce the applicable rules of law, no error results.

I.

¶ 15. The first issue presented to this Court is whether jury instructions S-13 and S-14, read together with the other instructions, fairly announced the law. We find that they did.

¶ 16. Over the objection of defense counsel, the trial court allowed instructions S-13 and S-14 on aiding and abetting. These instructions are identical, except that S-13 applies to capital murder and S-14 applies to kidnaping, the relevant text of which is set out below:

If you believe from the evidence beyond a reasonable doubt that the Defendant, Timothy John Milano, did willfully, unlawfully and feloniously do any act which is an element of (capital murder/kidnaping) with which he is charged, or, immediately connected with it, or, leading to its commission, then and in that event, you should find the Defendant guilty of (capital murder/kidnaping).

(emphasis added). The problem with these instructions is that they allow for a guilty verdict if the defendant did "any act which is an element" of the crime.

¶ 17. Contrary to these instructions, there were three instructions preceding these two that specifically addressed the burden of the State. For example, S-4, S-6-A, and S-7 each provide that "[i]f the State has failed to prove any one or more of the above elements beyond a reasonable doubt, then you shall find the Defendant not guilty of [the crime]." Each jury instruction that specifically addressed the crimes charged also specifically stated that the State must prove every element of the crime beyond a reasonable doubt or the defendant is to be found not guilty.

¶ 18. In Hornburger v. State, 650 So.2d 510, 515 (Miss.1995), this Court held that the jury was improperly instructed by a similar aiding and abetting instruction. However, when the instruction was read together with other instructions presented to the jury, the instructions adequately informed the jury of the law which made the improper instruction harmless error. Id. See also Gray v. State, 487 So.2d 1304, 1308 (Miss.1986) (when instructions are read together, no...