Wade v. State, 97-KA-00504 COA

• Decision Date: 18 December 1998
• Docket Number: No. 97-KA-00504 COA,97-KA-00504 COA
• Citation: 724 So.2d 1007
• Parties: Deanna WADE, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

724 So.2d 1007

Deanna WADE, Appellant, v. STATE of Mississippi, Appellee.

No. 97-KA-00504 COA

Court of Appeals of Mississippi.

December 18, 1998.

Travis Buckley, Ellisville, Robert B. McDuff, Jackson, Attorneys for Appellant.

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

BEFORE BRIDGES, C.J., HINKEBEIN AND KING, JJ.

HINKEBEIN, J., for the Court:

¶ 1. Deanna Wade (Wade) was convicted February 4, 1997 in the Circuit Court of Claiborne County of the murder of her boyfriend/business partner Ralph Simpson (Simpson). Wade was sentenced to serve a term of life imprisonment in the custody of the Mississippi Department of Corrections. Since Mississippi has abolished parole for crimes occurring after June, 30, 1995, pursuant to Miss.Code Ann. § 47-7-3(1)(g) (Rev. 1993 & Supp.1998), Wade's sentence precluded any possibility for parole. Aggrieved by her conviction, she appeals to this Court on the following grounds:

I. THE EVIDENCE IS INSUFFICIENT TO DEMONSTRATE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT DID NOT ACT IN SELF-DEFENSE, AND SHE THEREFORE IS GUILTY OF NEITHER MURDER NOR MANSLAUGHTER.

II. THE EVIDENCE IS INSUFFICIENT TO SUPPORT A CONVICTION FOR MURDER BEYOND A REASONABLE DOUBT AND AT THE MOST, THE DEFENDANT IS GUILTY ONLY OF MANSLAUGHTER.

III. EVEN IF THIS COURT DOES NOT REVERSE IN WHOLE OR IN PART BECAUSE OF THE INSUFFICIENCY OF THE EVIDENCE, IT SHOULD AT LEAST GRANT A NEW TRIAL.

IV. THE TRIAL COURT ERRED BY PRECLUDING THE DEFENSE FROM PRESENTING CERTAIN EVIDENCE REGARDING THE VICTIM'S REPUTATION FOR VIOLENCE.

V. THE TRIAL COURT ERRED BY PRECLUDING THE DEFENSE FROM PRESENTING CERTAIN EVIDENCE REGARDING SPECIFIC ACTS OF THE VICTIM SHOWING HIS PROPENSITY TO VIOLENCE TOWARD THE DEFENDANT.

VI. BECAUSE THE JURY INSTRUCTION DID NOT REQUIRE THE JURY TO FIND ALL OF THE ELEMENTS OF MURDER, THE CONVICTION MUST BE REVERSED.

VII. THE TRIAL JUDGE ERRED IN RESTRICTING THE DEFENSE CROSS-EXAMINATION OF A PROSECUTION WITNESS.

VIII. THE PROSECUTOR ENGAGED IN MISCONDUCT BY ERRONEOUSLY DEFINING THE CONCEPT OF REASONABLE DOUBT TO THE VENIRE, THUS PREJUDICING THE DEFENDANT'S RIGHT TO A FAIR TRIAL.

We hold Wade's second assignment of error to have merit. While the evidence presented does not support a conviction of murder, we find it does support the lesser charge of manslaughter. Accordingly we reverse and remand for re-sentencing for the crime of manslaughter.

FACTS

¶ 2. The four year relationship between the 32 year old Wade and the 51 year old Simpson was one marked by brutality. The record and the State do not dispute the fact that Simpson was a cruel and vicious man, characteristics that were exacerbated when he was drunk, which seems to have been the case most of the time. There was testimony that he had beaten Wade on prior occasions, including once with the butt of a shotgun which resulted in a trip to the hospital. Wade and Simpson were co-owners of a nightclub in Claiborne County, although the record reveals that it was purchased solely with Wade's savings and credit, since Simpson had filed bankruptcy some years earlier. Wade and Simpson were not married, and Wade had a five year old son from a previous marriage.

¶ 3. In the early morning hours of October 6, 1996, Wade was standing outside the front door of the nightclub talking with two of her waitresses prior to closing time. Inside, Simpson was behind the bar serving several male patrons. The record shows he had been drinking straight whiskey all night. After the autopsy, his blood-alcohol level was found to be 0.27. One of the male patrons testified that Simpson asked where the women were and then commented that he would get them back in the nightclub. Simpson then pulled a .45 automatic out of his back pocket and fired a shot into the opposite wall. Simpson apparently always carried the weapon.

¶ 4. Wade and the waitresses ran into the nightclub in response to the gun blast. Wade and Simpson began arguing. Some of the witnesses testified that Wade threw a bar stool at Simpson, which did not hit him. Others stated they never saw her do such a thing. Simpson then attacked Wade and began pounding her head on a table with such force that a bar sign fell off the wall. He let her go and the two argued further. At this point Simpson grabbed her by the hair and began slamming her head against the edge of a pool table. Witnesses described the beating as severe and noted that some of Wade's hair was pulled out by the roots. During the second beating, Simpson reached for the .45 automatic in his back pocket, but he was restrained by some of the men, who took the pistol away. Apparently, Wade was unaware that Simpson had been disarmed and according to her testimony, believed he still had the gun. At this point Wade was able to leave the nightclub and run to the small house next door which she shared with Simpson. She tried to call her mother to come pick her up but because the phone in the nightclub had been knocked off the hook during the fight, she was unable to make the call. In addition, Simpson reportedly had the keys to her car. One of the waitresses later testified that she would have driven Wade where she wanted to go, but that Wade had never made such a request.

¶ 5. Wade apparently retrieved a .38 caliber revolver from the house and returned to the nightclub. She testified that her memory was unclear as to what exactly happened because of the repeated blows to her head. As she entered the nightclub with the gun held at waist level, Simpson was back behind the bar. Witnesses say she stated something to the effect that "[y]ou ain't gonna hit on me no more." Simpson then came from behind the bar and began moving toward her with a smile on his face. Wade shot him once, and he died a short time later. The autopsy revealed that Simpson was shot from a distance of over two feet, and witnesses say he was five feet from Wade when she pulled the trigger. Witnesses say she then went to Simpson's side, crying and hugging him. At trial, the State brought out testimony that Wade had said in the past that she would kill Simpson if he ever beat her again. The State also brought out testimony that Wade was tired of Simpson because his heavy drinking was a drain on the nightclub's profits and it rendered him unable to perform sexually.

ANALYSIS

¶ 6. While Wade's second assignment of error is outcome determinative, our analysis will also include discussion of her first assignment of error concerning self-defense.

I. THE EVIDENCE IS INSUFFICIENT TO DEMONSTRATE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT DID NOT ACT IN SELF-DEFENSE, AND SHE THEREFORE IS GUILTY OF NEITHER MURDER NOR MANSLAUGHTER.

¶ 7. Wade argues that given the uncontradicted evidence of Simpson's beatings of Wade and the fact that he was advancing upon her when shot, the State failed to meet its burden of proving she did not act in self-defense. The State counters that the jury was correct in finding insufficient evidence of self-defense. We agree with the State.

¶ 8. Where the issue deals with the sufficiency of the evidence, the standard of review is that the "court must consider all of the evidence which supports the State's case in a light most favorable to the [S]tate." Butler v. State, 544 So.2d 816, 819 (Miss.1989). In addition, "[t]he State must be given the benefit of all favorable inferences that may be reasonably drawn from the evidence." Id. Matters of weight and credibility of the evidence are to be left up to the jury. Pinkney v. State, 538 So.2d 329, 353 (Miss.1988). The Mississippi Supreme Court has held that a reviewing court "may reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair minded jurors could only find the accused not guilty." Franklin v. State, 676 So.2d 287, 288 (Miss.1996). Only in cases "when the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice" will a reviewing court disturb it on appeal. Herring v. State, 691 So.2d 948, 957 (Miss.1997).

¶ 9. The question of whether a homicide will be deemed justifiable is controlled by Miss.Code Ann. § 97-3-15, which states in part:

(1) The killing of a human being by the act, procurement, or omission of another shall be justifiable in the following cases:

(f) When committed in the lawful defense of one's own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished;

Miss.Code Ann. § 97-3-15(1)(f) (Rev.1994). Wade insists that in her last encounter with Simpson, after she returned to the nightclub with the revolver, she had reasonable grounds to expect a third severe beating. Wade also refers to Mississippi's "stand his ground" principle where "a defendant is not deprived of the right to claim self-defense in a slaying even if he could have avoided the threat to his safety by fleeing." Haynes v. State, 451 So.2d 227, 229 (Miss.1984). Under this well entrenched doctrine, there is no duty to flee on the part of a person faced with life threatening danger, so long as:

he is in a place where he has a right to be, and is neither engaged in an unlawful, nor the provoker of, nor the aggressor in, the combat. In such case, he may stand his ground and resist force by force, taking care that his resistance be not disproportioned to the attack.

Cook v. State, 467 So.2d 203, 210-11 (Miss. 1985) (quoting Long v. State, 52 Miss. 23, 34 (1876)). In the case sub judice, Wade was a co-owner of the nightclub and as such clearly had a right to be there. However, the question of whether Wade was the provoker or aggressor when she returned with gun in hand is determinative of whether self-defense would justify the killing. The Mississippi Supreme Court has held that "one who...