Windham v. State, No. 07-KA-59619

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtPRATHER; ROY NOBLE LEE; HAWKINS, P.J., and ROBERTSON; BANKS; HAWKINS; ROBERTSON; BANKS
Citation602 So.2d 798
PartiesOtis Lee WINDHAM v. STATE of Mississippi.
Docket NumberNo. 07-KA-59619
Decision Date20 May 1992

Page 798

602 So.2d 798
Otis Lee WINDHAM
v.
STATE of Mississippi.
No. 07-KA-59619.
Supreme Court of Mississippi.
May 20, 1992.

Rogers J. Druhet, Meridian, for appellant.

Michael C. Moore, Atty. Gen., Deirdre McCrory, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before HAWKINS, P.J., and PRATHER and ROBERTSON, JJ.

PRATHER, Justice, for the Court:

I. INTRODUCTION

A. Procedural History

In November 1985, the Kemper County Grand Jury indicted 21-year-old Otis Lee Windham under Miss.Code Ann. Secs. 97-3-19 & 97-3-21 (1972) for the June 1985 murder of 79-year-old Albert Thurston Calvert.

At the Kemper County Circuit Court, a jury found Windham guilty, and the trial judge sentenced him to life imprisonment. On appeal, this Court reversed and remanded for a new trial. See Windham v. State, 520 So.2d 123 (Miss.1988).

On remand, another jury found Windham guilty of murder, and Judge Robert W. Bailey sentenced him to life imprisonment. Windham appealed. This Court affirms.

Page 799

B. Facts

The facts or evidence adduced in the second trial is essentially the same as that adduced in the first trial. See Windham v. State, 520 So.2d 123, 124 (Miss.1988). The following is a summary of this evidence viewed in a light most favorable to the State.

Albert Calvert and his wife, Betty, owned and operated a small grocery store in the Zion Community of Kemper County. Albert was seventy-nine years old and had no right arm; it had been cut off at the shoulder. Betty was seventy-eight years old. On June 26, 1985, around 6:00 to 6:30 p.m., twenty-one-year-old Otis Lee Windham pulled into Calvert's Grocery to buy gas.

No one disputes that, as Otis pumped gas, he and Albert argued over a debt Otis owed Calvert's Grocery. Betty walked to the scene and noticed Otis gripping her husband's arm. She immediately attempted to pry Otis' grip loose, but she did not succeed. Wanda Hampton, while fishing in the Calverts' nearby pond, overheard Betty say: "If you don't leave him alone, I'll call the sheriff." When Windham refused to release Albert, Betty struck Otis in the face with her hand. Otis then reached through his car window, retrieved a carpenter's hammer, and hit her head hard enough to render her unconscious. According to Otis, Albert "never hit me but he started back in the store and that's when I grabbed him and throwed him." Meanwhile, Betty regained consciousness and witnessed her husband's body fall "limber as a dishrag" in front of her. The State contended--and the jury obviously believed--that Otis had assaulted Albert with the hammer, 1 which resulted in his death a short time later.

II. ANALYSIS

Otis presented three issues for this Court's disposition.

A. Whether the verdict was contrary to the overwhelming weight of the evidence?

In this appeal, Otis contends the verdict was against the overwhelming weight of the evidence. More specifically, he contends that the trial judge should have granted him a directed verdict, j.n.o.v., or new trial on the basis of the so-called "Weathersby Rule." 2

Otis raised this issue in his first appeal, and this Court deemed it to be devoid of merit. See Windham, 520 So.2d at 127 ("We have considered the other assignments of error addressed to the sufficiency of the evidence and the Weathersby Rule, and find them without merit."). In considering Otis' renewed contention, this Court refers to Johnson v. State:

At the outset, several general observations need to be made. The evidence offered in the second trial was almost identical to that offered in the first. Furthermore, Johnson's assignments of error almost duplicate those in the first appeal.

....

Turning to the case before this Court, it is noted that the only change in the evidence of any significance in the second trial is Johnson's personally testifying and denying any part in the crime and asserting an alibi. Fifteen of his eighteen assignments of error were decided adversely to Johnson on the first appeal. Johnson has admitted this fact, merely stating that he "resubmits those ... assignments of error, originally submitted, for further review." This Court

Page 800

holds the same to be res judicata and therefore does not address them again.

529 So.2d 577, 579-80 (Miss.1988) (citing West v. State, 519 So.2d 418, 424-25 (Miss.1988)).

In sum, Johnson v. State is dispositive of this issue. Accordingly, this Court reaffirms on this issue under the doctrine of res judicata. 3

B. Whether a circumstantial-evidence instruction should have been granted?

Otis next contends that the judge should have granted a circumstantial-evidence instruction (Instruction D-12).

This Court has held that, "where there is direct evidence of a crime, the circumstantial-evidence instruction need not be given." King v. State, 580 So.2d 1182, 1191 (Miss.1991) (quoting Gray v. State, 549 So.2d 1316, 1324 (Miss.1989)). In the case sub judice, the evidence adduced is not wholly circumstantial. Thus, the judge did not err by refusing the instruction.

In sum, this Court affirms on this issue.

C. Whether the trial judge "erred in granting Instruction S-3 which allowed the jury to consider 'depraved heart' type murder 4 when the appellant was originally indicted for deliberate design murder, deprived the defender of a fair manslaughter consideration, and denied him equal protection of law?"

Through this unartfully-framed issue, Otis presents two contentions. He contends that Instruction S-3, a "depraved heart" murder instruction, should not have been granted: (1) because it (Instruction S-3) "amounted to a denial, or substantial diminishing of a manslaughter consideration"; and (2) because it was "not supported by the facts." 5

1.

Specifically, Instruction S-3 provides:

The Court instructs the Jury that, if you believe from the evidence in this case, beyond a reasonable doubt, that on the 26th day of June, 1985, in Kemper County, Mississippi, the deceased, Albert Thurston Calvert, was a living person, and the Defendant, Otis Lee Windham, did wilfully, unlawfully and feloniously act in a manner eminently dangerous to Albert Thurston Calvert and others, evincing a depraved heart, regardless of human life, by beating Albert Thurston Calvert with a Hammer which resulted in the death of Albert Thurston Calvert, then you shall find the Defendant guilty of murder.

Vol. I, at 61. Otis contends that this instruction should not have been granted because it "amounted to a denial, or substantial diminishing of a manslaughter consideration." At the trial level, Otis phrased his objection accordingly: "I object to S-3 ... [because it] is designed to deprive the defendant of manslaughter--or any manslaughter

Page 801

or any excusable homicide instruction." In essence, Otis' contention is that the crime of depraved-heart murder as defined by Section 97-3-19(1)(b) is indistinguishable from culpable-negligence manslaughter as defined in Miss.Code Ann. Section 97-3-47.

Instruction S-3 derives its authority specifically from statutory law, which provides in 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:

(b) When done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual....

MISS.CODE ANN. Sec. 97-3-19(1)(b) (1991 Supp.) (emphasis added).

The familiar manslaughter statute, which Otis contends is diminished by Instruction S-3, provides:

Every other killing of a human being, by the act, procurement, or culpable negligence of another, and without authority of law, not provided for in this title, shall be manslaughter.

MISS.CODE ANN. Sec. 97-3-47 (1972). Countering Otis' contention, the State asserts that Sec. 97-3-47 "specifically excludes homicides falling under Sec. 97-3-19(1)(b)." "Therefore," the State concludes, "depraved-heart murder and culpable-negligence manslaughter are mutually exclusive; by the express terms of the Mississippi Code, they do not overlap."

Otis' contention is unpersuasive. Depraved-heart murder and culpable-negligence manslaughter are distinguishable simply by degree of mental state of culpability. In short, depraved-heart murder involves a higher degree of recklessness from which malice or deliberate design may be implied. See, e.g., W. LAFAVE & A. SCOTT, CRIMINAL LAW Secs. 30 & 70 (1972); United States v. Browner, 889 F.2d 549, 552 (5th Cir.1989).

In sum, Instruction S-3 did not "amount[ ] to a denial, or substantial diminishing, of a manslaughter consideration" by the jury. This conclusion is consistent with this Court's decision in at least one other case in which a depraved-heart murder instruction and a culpable-negligence manslaughter instruction were properly granted. See Johnson v. State, 475 So.2d 1136, 1139-40 & 1148 (Miss.1985); accord State v. Smith, 415 A.2d 562 (Me.1980) (depraved-heart and culpable-negligence instructions given in this case involving death from "brutal and senseless beating"); State v. Goodall, 407 A.2d 268 (Me.1979) (same). Thus, Otis' contention is deemed devoid of merit.

2.

Next, Otis contends that Instruction S-3 should not have been granted because it was "not supported by the facts." Otis' contention is devoid of merit. The evidence clearly establishes the existence of actual or implied malice or deliberate design. More specifically, the evidence establishes the possibility that Otis could have killed Calvert "while acting in a manner eminently dangerous to others [i.e., the Calverts] and evincing a depraved heart, regardless of human life." Compare with Johnson v. State, 475 So.2d 1136, 1139-40 (Miss.1985).

In Johnson v. State, an unknown individual summoned police officers to Christine Johnson's apartment. There, they found the bruised and cut body of Christine's 3 1/2-year-old son. Christine claimed that her son died from an accidental fall. An...

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59 practice notes
  • Hunt v. State, No. 92-KA-00475-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • August 8, 1996
    ...has held that a circumstantial evidence instruction is necessary only where the evidence is "wholly circumstantial." Windham v. State, 602 So.2d 798, 800 (Miss.1992). See cf., Jones v. State, 635 So.2d 884, 886-87 (Miss.1994). Where a confession exists, a circumstantial evidence instruction......
  • Smith v. State, No. 93-DP-00821-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • December 10, 1998
    ...case law of this state that malice aforethought, premeditated design, and deliberate design all mean the same thing." Windham v. State, 602 So.2d 798, 801 (Miss.1992) (quoting Johnson v. State, 475 So.2d 1136, 1139 s 150. Finally, Jerome was indicted for capital murder pursuant to Miss.Code......
  • Smith v. State, No. 93-DP-01470-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • December 10, 1998
    ...case law of this state that malice aforethought, premeditated design, and deliberate design all mean the same thing." Windham v. State, 602 So.2d 798, 801 (Miss.1992) (quoting Johnson v. State, 475 So.2d 1136, 1139 s 94. Finally, Clyde was indicted for capital murder pursuant to Miss.Code A......
  • Tran v. State, No. 92-KA-01058-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • August 22, 1996
    ...case law of this state that malice aforethought, premeditated design, and deliberate design all mean the same thing." Windham v. State, 602 So.2d 798, 801 (Miss.1992) (quoting Johnson v. State, 475 So.2d 1136, 1139 (Miss.1985)) (citing Dye v. State, 127 Miss. 492, 90 So. 180 (1921); Hawthor......
  • Request a trial to view additional results
59 cases
  • Hunt v. State, No. 92-KA-00475-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • August 8, 1996
    ...has held that a circumstantial evidence instruction is necessary only where the evidence is "wholly circumstantial." Windham v. State, 602 So.2d 798, 800 (Miss.1992). See cf., Jones v. State, 635 So.2d 884, 886-87 (Miss.1994). Where a confession exists, a circumstantial evidence instruction......
  • Smith v. State, No. 93-DP-00821-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • December 10, 1998
    ...case law of this state that malice aforethought, premeditated design, and deliberate design all mean the same thing." Windham v. State, 602 So.2d 798, 801 (Miss.1992) (quoting Johnson v. State, 475 So.2d 1136, 1139 s 150. Finally, Jerome was indicted for capital murder pursuant to Miss.Code......
  • Smith v. State, No. 93-DP-01470-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • December 10, 1998
    ...case law of this state that malice aforethought, premeditated design, and deliberate design all mean the same thing." Windham v. State, 602 So.2d 798, 801 (Miss.1992) (quoting Johnson v. State, 475 So.2d 1136, 1139 s 94. Finally, Clyde was indicted for capital murder pursuant to Miss.Code A......
  • Tran v. State, No. 92-KA-01058-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • August 22, 1996
    ...case law of this state that malice aforethought, premeditated design, and deliberate design all mean the same thing." Windham v. State, 602 So.2d 798, 801 (Miss.1992) (quoting Johnson v. State, 475 So.2d 1136, 1139 (Miss.1985)) (citing Dye v. State, 127 Miss. 492, 90 So. 180 (1921); Hawthor......
  • Request a trial to view additional results

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