Dilworth v. State
| Decision Date | 16 June 2005 |
| Docket Number | No. 2004-KA-00730-SCT.,2004-KA-00730-SCT. |
| Citation | 909 So.2d 731 |
| Parties | Warren Jerome DILWORTH v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Phillip W. Broadhead, Oxford, Arthur D. Carlisle, Ocean Springs, Austin R. Nimocks, Biloxi, attorneys for appellant.
Office of the Attorney General by W. Glenn Watts, attorney for appellee.
Before WALLER, P.J., DICKINSON and RANDOLPH, JJ.
¶ 1. A Harrison County Circuit Court jury convicted Warren Jerome Dilworth of the murder of William Dennis Watford. Warren Dilworth was sentenced to life in prison. He now appeals the conviction and sentence, which we affirm.
¶ 2. William Dennis Watford came home around 5:30 a.m. on the morning of May 2, 2002. He asked his live-in girlfriend of eleven years, Gina Bosford, for $50 so he could retrieve his bicycle, his primary mode of transportation. Bosford felt frustrated and refused to give him the money, believing his request was a sure sign Watford had experienced a relapse into drug use after successfully completing rehabilitation and staying clean for about two years. Watford then left their home.
¶ 3. Frank Owens testified that on the morning of May 2, he was sitting outside the five-room apartment building where he lived (which he and others described as a crack house). Watford walked up and asked if he could buy $50-worth of crack cocaine. Warren Dilworth's father and Owens' neighbor, Terry Dilworth, then came to the door and asked Owens to come inside, because Warren Dilworth wanted to see him. Warren Dilworth gave Owens $50-worth of cocaine, and Owens took it out to Watford.1 Owens said when he took the cocaine outside, Watford asked if he could see it, and then grabbed it and ran away without paying.
¶ 4. Owens went inside and told Warren Dilworth that Watford had taken the drugs, to which Warren Dilworth responded, "I'm going to whip that mother f* * *er's ass." Warren Dilworth and Owens then left in a Ford Taurus with Warren Dilworth in the driver's seat. The two men drove into a parking lot where the Vietnamese Catholic Church was under construction and saw Watford scaling a fence. According to Owens, Warren Dilworth drove up, stopped the car, pulled an automatic pistol out from under the passenger's seat, and shot Watford while he was climbing down the other side of the fence.2
¶ 5. Keith David Roy, a carpenter working on the construction of the Vietnamese Catholic Church, gave testimony which was different from Owens' testimony with respect to one major detail. He said he saw a white male jump over the fence, a car speed into the parking lot, and an arm extend from the passenger's side window at the same moment he heard the gunshot. He did not see a gun in the hand which extended from the window, but he was absolutely positive an arm did not extend from the driver's side. When the car backed out of the parking lot, he saw two men in the car and identified Warren Dilworth as the driver.
¶ 6. After being shot, Watford tried to continue his flight, but stumbled a few more steps, finally collapsing in the grass behind the house. Soon afterward, Watford died as a result of major internal bleeding from the bullet which entered his left shoulder and ripped through the blood vessels in his trachea, windpipe, and esophagus, causing his stomach and lungs to fill with blood.
¶ 7. Nineteen-year-old Mandy Wallis was at the apartment that morning, along with about ten other people. She testified that after Warren Dilworth returned from attempting to retrieve the contraband, he reported he had gotten neither the crack nor his money, but had "shot the mother f* * *er." Wallis says he then took the gun out of his back pocket and handed it to his father, Terry Dilworth, at his father's request. She testified Terry Dilworth then smelled the gun and said, "You sure did." However, Denise Dilworth, the appellant's sister, testified Warren Dilworth never said anything about shooting anyone, but simply kept repeating he thought someone was dead. She said she never saw him with a gun.
¶ 8. After parting ways with Warren Dilworth, Owens went to several casinos, spent the night on a bench in front of one of the casinos, and was found by police the next day while playing nickel slots. The officer who detained him testified Owens immediately told the officers he was glad to see them, because he had something he wanted to get off his chest. After being detained by police for questioning, Owens implicated Warren Dilworth in the murder. Police arrested Warren Dilworth the next day when he turned himself in at the Biloxi Police Department.
¶ 9. Warren Dilworth raises two issues for appeal: (1) Whether the trial court erred in granting a confusing accessory-before-the-fact instruction; and (2) Whether the verdict was against the sufficiency and weight of the evidence.
¶ 10. Warren Dilworth argues that in granting Instruction S-3, the trial court allowed an instruction which misled the jury to believe it could make a finding of guilt as an accessory before the fact on lesser proof than required by our precedent. When determining whether the trial court erred in granting or refusing various instructions, we consider as a whole all the instructions given. Simmons v. State, 805 So.2d 452, 475-76 (Miss.2001). All instructions must be supported by the evidence in the record. Brazile v. State, 514 So.2d 325, 326 (Miss.1987).
¶ 11. Instruction S-3 stated:
The [c]ourt instructs the jury that one who wilfully, unlawfully, and feloniously aids, abets, assists, or otherwise encourages the commission of a crime is just as guilty under the law as if he had committed the whole crime with his hand.
¶ 12. Jury Instruction S-3 gave the jury the option of convicting Warren Dilworth on the alternative theory that he aided and abetted Owens in the murder of Watford. Warren Dilworth's argument that the instruction relieved the State of its burden of proof regarding conviction as an accessory-before-the-fact is inherently flawed by the fact that S-3 was not an accessory-before-the-fact instruction. Aiding and abetting and acting as an accessory-before-the-fact are two wholly distinct crimes. As we noted in Hooker v. State, 716 So.2d 1104, 1110 (Miss.1998), the "primary difference is that if a person is actually or constructively present at the offense, due to his participation, he is an aider and abettor; if not present, he is an accessory-before-the-fact."
¶ 13. It is uncontested that Warren Dilworth was present and willingly participated in the commission of the murder. Therefore, the pertinent question is whether S-3 accurately instructed the jury as to the crime of aiding and abetting. In Swinford v. State, 653 So.2d 912, 915 (Miss.1995), we held "[a]ny person who is present at the commission of a criminal offense and aids, counsels, or encourages another in the commission of that offense is an `aider and abettor' and is equally guilty with the principal offender." (alterations omitted). The language of Instruction S-3 precisely reiterates Mississippi law as articulated in Swinford.
¶ 14. Warren Dilworth attempts to draw a comparison between Instruction S-3 and the erroneous instruction given in Berry v. State, 728 So.2d 568, 570 (Miss.1999). In that case, the trial court gave an instruction which stated the defendant could be convicted as an aider and abettor to the crime if the jury found she did "any act which is an element of the crime [.]" (emphasis added). The instructions given in this case are not analogous to those of Berry, but instead are substantively identical to the aiding and abetting instructions which we approved in Simmons v. State, 805 So.2d at 475.3 We hold, as we held in Simmons, that Instruction S-3 is distinguishable from that in Berry, since S-3 "simply does not contain the operative language that could be construed as reading that a defendant found guilty of aiding and abetting with respect to one element of the crime is guilty as a principal." Id.
¶ 15. Instruction S-3 follows the language of our holding in Swinford and is substantively identical to the language of the instruction of which we approved in Simmons; therefore, we find this argument to be without merit.
¶ 16. Warren Dilworth combines his arguments regarding the sufficiency of the evidence and the weight of the evidence. However, because the two concepts are quite different, we address them separately.4
¶ 17. The standard of review for a post-trial motion is abuse of discretion. Howell v. State, 860 So.2d 704, 764 (Miss. 2003). In the recent case of Bush v. State, 895 So.2d 836, 843 (Miss.2005), we discussed the standard which applies in a challenge to a verdict based on the sufficiency of the evidence:
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