                         IN THE SUPREME COURT OF MISSISSIPPI

                                     NO. 2004-KA-01141-SCT

KENNETH J. WILSON, JR.

v.


STATE OF MISSISSIPPI


DATE OF JUDGMENT:                            05/18/2004
TRIAL JUDGE:                                 HON. BILLY JOE LANDRUM
COURT FROM WHICH APPEALED:                   JONES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                      LESLIE D. ROUSSELL
ATTORNEY FOR APPELLEE:                       OFFICE OF THE ATTORNEY GENERAL
                                             BY: W. DANIEL HINCHCLIFF
DISTRICT ATTORNEY:                           ANTHONY J. BUCKLEY
NATURE OF THE CASE:                          CRIMINAL - FELONY
DISPOSITION:                                 AFFIRMED - 08/17/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




        BEFORE COBB, P.J., EASLEY AND DICKINSON, JJ.

        COBB, PRESIDING JUSTICE, FOR THE COURT:

¶1.    Kenneth J. Wilson, Jr., was convicted in the Jones County Circuit Court, Second

Judicial District, of murder and aggravated assault and sentenced to life plus twenty years under

the supervision of the Mississippi Department of Corrections.      On appeal, Wilson assigns five

errors: denial of his six motions to suppress confessions; failure to give the jury an instruction

defining deliberate design; failure to grant his request for JNOV and/or a new trial; failure to

give a two-theory instruction to the jury; and cumulative error.   Finding no reversible error, we

affirm Wilson’s conviction and sentence.
                                             FACTS

¶2.      The events giving rise to this appeal began on the evening of July 2, 2003. Officer

Tyrone Keller was called to a domestic disturbance at the home of Rika Carmichael, which she

shared with Wilson, his live-in girlfriend Lisa Williams and her two children – Michael

D’Anthony Williams and a younger son. Wilson and Lisa had an argument which resulted in

Wilson pushing Lisa into a television, and Keller asked Wilson to leave the house. Wilson then

went to Lisa’s mother’s home nearby, in an attempt to work out the problems he was having

with Lisa.    Another argument broke out, and Keller was again called to the scene.     After this

second incident, Keller did not arrest Wilson, but took him in his patrol car to the Laurel

Police Department where Wilson’s parents picked him up around 10:00 P.M.

¶3.      Wilson arrived back at Lisa’s home around 11:00 P.M. and knocked on the door, but she

would not unlock it to let him in.   Wilson became angry, broke the glass of the door with his

fist, unlocked it, entered the home and started punching Lisa in the face. A fierce fight erupted

when household members, including Lisa’s son Michael, came to her defense.         Wilson tossed

Lisa to the floor and continued to beat her in the face with his fists, while Rika ran to call the

police from a neighbor’s home. While Lisa was on the floor, Wilson grabbed a knife from the

nearby counter, stabbed her fourteen times, and inflicted eleven slash wounds and one chop

wound.       Three of those wounds were fatal and Lisa bled to death within minutes.        While

attempting to defend his mother, Michael was stabbed once in the forehead and once in the leg

by Wilson.




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¶4.        The police arrived shortly after the fight ended and found Wilson on the front porch with

the knife still in his hand and blood covering his clothing.    A standoff between the police and

Wilson ensued, during which Wilson stabbed himself several times before the police disarmed

him.      He was taken into custody and transported to a nearby hospital for treatment of wounds

suffered to his arms and hands.        During this time Wilson made incriminating statements to the

police.

                                             DISCUSSION

           I.     WILSON’S CONFESSIONS

¶5.        Wilson asserts that his confessions to the police were involuntary and the product of

custodial interrogations conducted without proper Miranda warnings.           He filed six motions

in limine requesting that statements either given directly to the police or in police presence

be suppressed.        Further, Wilson argues that the trial court erred by not conducting an Agee1

hearing to determine the voluntariness of his confession.

¶6.        The relevant facts begin when the police arrived following the final altercation between

Wilson and Lisa.        As the police were leading Wilson from the house, but prior to placing

handcuffs on him, he began making statements regarding his guilt.           He continued to make


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         When objection is made to the introduction of the confession, the accused is entitled
to a preliminary hearing on the question of the admissibility of the confession. This hearing
is conducted in the absence of the jury. When, after the State has made out a prima facie case
as to the voluntariness of the confession, the accused offers testimony that violence, threats
of violence, or offers of reward induced the confession, then the State must offer all the
officers who were present when the accused was questioned and when the confession was
signed, or give an adequate reason for the absence of any such witness. Agee v. State, 185 So.
2d 671, 673 (Miss. 1966).

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statements to the police as they were placing handcuffs on him and even as he was being read

his Miranda rights.     One of the arresting officers interrupted Wilson, loudly saying “Miranda

Miranda” at him in an attempt to silence him. Wilson’s statements were captured on a video

camera mounted on Officer Keller’s patrol car, as follows:

       Officer Tyrone Stewart: Listen before we ask you any questions you must
       understand your rights. You have the right to remain silent.

       Wilson: I know that.

       Stewart: Anything you say can be used against you in court.

       Wilson: I know that. I did it.

       Stewart: You have the right –

       Wilson: Guilty

       Stewart: – to talk to a lawyer for advice –

       Wilson: Guilty

       Stewart: – and to have one with you during questioning –

       Wilson: Tyrone, Guilty, Guilty. I don’t need one

       Stewart: huh?

       Wilson: Guilty

       Stewart: Okay. One will be appointed for you by the Court before questioning if you
       wish, if you wish to answer questions without a lawyer, you can stop answering
       questions at any time. You also have the right to stop at anytime until you talk to a
       lawyer, Okay?

Prior to reading Wilson his Miranda rights, the officers did not ask him any questions.




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¶7.    While en route to the hospital, Wilson continued to make statements regarding his guilt.

When he arrived at the hospital, he made further statements in the presence of Officer John

Cox, who was sent to provide security for Wilson, because the police feared he might become

a victim of retribution from Lisa’s family.     The next day, when police investigator Earl Reed

went to the hospital to photograph wounds to Wilson’s arms and hands, Wilson again made

statements to him without being questioned.           Later, Reed and another officer interviewed

Wilson on videotape, after again reading him his rights and obtaining his signed waiver. In that

video, Wilson described the evening’s events in detail and confessed to stabbing Lisa and

Michael.   Following a hearing where no witnesses were called, the trial judge denied Wilson’s

six motions to suppress the above statements.

¶8.    In order for a confession to be admissible at trial it must have been intelligently,

knowingly and voluntarily given, and not a product of police threats, promises or inducements.

Manix v. State, 895 So. 2d 167, 180 (Miss. 2005).              In determining whether a defendant’s

confession was intelligently, knowingly and voluntarily given the trial court sits as a finder of

fact. Glasper v. State, 914 So. 2d 708, 716 (Miss. 2005). Therefore, this Court will reverse

the trial court’s determination only when it was manifestly incorrect.      Id.   A confession is

voluntary when, taking into consideration the totality of the circumstances, the statement is the

product of the accused’s free and rational choice.       Jacobs v. State, 870 So. 2d 1202, 1207

(Miss. 2004). The prosecution bears the burden of showing beyond a reasonable doubt that the

confession was voluntary. Glasper, 914 So. 2d at 717; Manix, 895 So. 2d at 180.



                                                  5
¶9.     When a defendant claims that the police have induced a confession through coercion

the trial court is required to hold a hearing to determine the voluntariness of that confession.

Thorson v. State, 653 So. 2d 876, 888 (Miss. 1994) (citing Abram v. State, 606 So. 2d 1015,

1030 (Miss. 1992)).      At the hearing, held out of the presence of the jury, the State has the

burden of proving the voluntariness of the confession via testimony of an officer, or other

person having knowledge of the facts, that the confession was voluntarily made without any

threats, coercion or offer of reward. Thorson, 653 So. 2d at 888.

¶10.    Wilson asserts that the trial court erred in failing to grant him an Agee hearing because

his confession was the product of emotional duress caused by the situation and his need for

medical treatment.    The video of Wilson’s confessions clearly indicate they were made of his

own free will and without inducement by the police.          Wilson failed to provide any evidence of

coercion, threats or promises made by specific police officers to secure his confessions.       Only

those officers claimed to have induced a confession by some means of coercion are required

to testify at the hearing. Abram v. State, 606 So. 2d 1015, 1030 (Miss. 1992). Since Wilson

failed to name specific officers who coerced him or to cite specific examples of coercion, the

hearings conducted by the trial court, were sufficient. This argument is without merit.

¶11.    Wilson’s argument that he was subjected to custodial interrogation without proper

Miranda warnings is also without merit.         To be subject to custodial interrogation, one must

be both in custody and undergoing interrogation.         A subject is in custody when their right to

freely leave has been restricted.    Roberts v. State, 301 So. 2d 859, 861 (Miss. 1974).         The



                                                     6
accused is subject to interrogation when he is questioned by the police or the functional

equivalent. Pierre v. State, 607 So.2d 43, 52 (Miss. 1992).           The functional equivalent is any

sort of activity which the police reasonably believe would produce an incriminating response.

Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980).


¶12.      It is clear that Wilson was in custody when he confessed; however, his confessions were

not the product of interrogation. The police did not question Wilson until after he was given

his Miranda warnings.          The statements he made while being arrested, transported to the

hospital, and receiving medical treatment were not prompted by police activities; rather, were

the product of his own free will.         The police did everything in their power to appraise Wilson

of his rights. They even went so far as to shout at him, interrupting one of his confessions, to

inform him of his rights.          We conclude the use of these statements did not violate Wilson’s

rights.

          II.    DELIBERATE DESIGN INSTRUCTION

¶13.      Wilson argues that the trial court committed reversible error in failing to instruct the

jury as to the meaning of deliberate design.          Wilson admits that neither party requested that

instruction; however, he asserts that under Williams v. State, 729 So. 2d 1181, 1184 (Miss.

1998), if it was error for the trial court to refuse an instruction defining deliberate design, then

it must be error to not give it.

¶14.      This issue is procedurally barred because Wilson failed to present the instruction to the

trial court. Conner v. State, 632 So. 2d 1239, 1254 (Miss. 1993). Wilson’s argument is also


                                                     7
without merit.      A trial court is not required to sua sponte instruct the jury or suggest jury

instructions in addition to what the parties tender. Id. In Williams, this Court held that it was

error for the trial court to refuse to grant this instruction when tendered by the defendant.

Williams, 729 So. 2d at 1184. However, it is not error when a trial court does not instruct the

jury as to deliberate design, when the instruction was not presented by either party.    Harris v.

State, 861 So. 2d 1003, 1017 (Miss. 2003); Blocker v. State, 809 So. 2d 640, 646 (Miss.

2002).

           III.   WEIGHT AND SUFFICIENCY OF THE EVIDENCE

¶15.       Wilson asserts that the failure to grant his request for J.N.O.V. or alternatively, a new

trial.   He argues that the sufficiency and weight of all the evidence presented at trial cannot

sustain a conviction for killing Lisa with deliberate design or intending to cause or caused

serious bodily injury to Michael.      Wilson also argues that there was no evidence presented to

justify a finding that he was fully aware of his actions and carefully considered their

consequences in killing Lisa.        Further, he argues that Michael’s injuries did not satisfy the

serious bodily injury requirement of Miss. Code Ann. § 97-3-7(2) and that they were not

intentionally caused, rather were the result of negligence in Wilson’s attempt to stab Lisa.

Therefore, Wilson argues that he could only be guilty of simple assault and not aggravated

assault.

¶16.       A motion for new trial challenges the weight of the evidence, while a motion for

J.N.O.V. challenges the sufficiency.        There are two separate standards to be applied in


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reviewing the weight of evidence and sufficiency of evidence.     Hawthorne v. State, 835 So.

2d 14, 21 (Miss. 2003). With regard to sufficiency of the evidence, reversal can only occur

when evidence of one or more of the elements of the charged offense is such that reasonable

and fair-minded jurors could only find the accused not guilty.    Id.   However, with regard to

weight of the evidence, we will overturn a jury verdict only when it is so contrary to the

evidence presented that to let it stand would sanction an unconscionable injustice.      Bush v.

State, 895 So. 2d 836, 845 (Miss. 2005). The power to grant a new trial, on the basis of the

weight of the evidence, should be invoked only in exceptional circumstances, when the

evidence weighs heavily against the jury’s verdict. Id. In both situations this Court looks at the

evidence in the light most favorable to the State and consistent with the verdict.   Hawthorne,

835 So. 2d at 22. The State is given the benefit of all favorable inferences that may reasonably

be drawn from the evidence. Id.


Deliberate Design

¶17.    Wilson was convicted for Lisa’s murder under Miss Code Ann. § 97-3-19(1)(a) which

provides in pertinent 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:


        (a) When done with deliberate design to effect the death of the person killed, or
        of any human being.




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This Court has held that malice aforethought, premeditated design and deliberate design all

mean the same thing.     Hawthorne, 835 So. 2d at 19. By definition, malice aforethought and

deliberate design are synonymous. Id. This Court has also acknowledged that deliberate design

connotes an intent to kill. Id. That being said, deliberate indicates a full awareness of what one

is doing and generally implies careful and unhurried consideration of the consequences.      Jones

v. State, 710 So. 2d 870, 877 (Miss. 1998).       Design means to calculate, plan or contemplate.

Id.    However, deliberate design to kill a person may be formed quickly and perhaps only

moments before the act. Id. Deliberate design, as a matter of law, may be inferred through the

intentional use of any instrument which based on its manner of use, is calculated to produce

death or serious bodily injury.   Id. at 878; Fairchild v. State, 459 So. 2d 793, 802 (Miss.

1984).

¶18.     In the present case, Wilson fought with Lisa all day. The police were called to interrupt

two domestic disputes previous to the final attack.    Wilson broke the door with his bare fists

and proceeded to beat Lisa in the face until she was knocked to the floor. Only then did Wilson

grab a knife and repeatedly stab and slash Lisa.      He delivered three fatal blows while fighting

off her son and other household members. This evidence points directly to a considered plan,

deliberately executed, with the purpose of killing Lisa.     Given these facts and the applicable

standard of review, we cannot agree     there was insufficient evidence to support the jury verdict,

or to let it stand would sanction an unconscionable injustice.        Therefore, this argument is

without merit.



                                                10
Substantial Bodily Injury

¶19.   Wilson was also convicted of aggravated assault on Michael under Miss. Code Ann. §

97-3-7(2) which states:

       (2) A person is guilty of aggravated assault if he (a) attempts to cause serious
       bodily injury to another, or causes such injury purposely, knowingly or
       recklessly under circumstances manifesting extreme indifference to the value
       of human life; or (b) attempts to cause or purposely or knowingly causes bodily
       injury to another with a deadly weapon or other means likely to produce death
       or serious bodily harm

Wilson argues that given the result of the crime and the fact that Michael was not the initial

intended target of his attack, at most he was guilty of simple assault under Miss. Code Ann. §

97-3-7(1).2 This Court has made it clear from the language of these statutes, aggravated assault

and simple assault are carbon copies of each other, with the exception that aggravated assault

requires the use of a deadly weapon. Hutchinson v. State, 594 So. 2d 17, 19 (Miss. 1992).

This suggests that conduct which is simple assault under Section 97-3-7(1) becomes

aggravated assault under Section 97-3-7(2) when done with a deadly weapon. Id. This is


 completed when we realize that a subsequent subsection of simple assault includes negligent

injury to another with a deadly weapon. Id.


¶20.   It is indisputable that the large kitchen knife Wilson used to stab Lisa and Michael was

a deadly weapon.     See Id. at 20.     Also there was no evidence presented that Wilson was


        2
           Miss. Code Ann. § 97-3-7(1) states in part: “(1) A person is guilty of simple assault
if he (a) attempts to cause or purposely, knowingly or recklessly causes bodily injury to
another; or (b) negligently causes bodily injury to another with a deadly weapon or other means
likely to produce death or serious bodily harm.”

                                                11
negligent in the act of stabbing Michael twice, once in the leg and once in the forehead. Both

of these injuries required medical attention.    Just because the injuries failed to leave permanent

and lasting effects on the victim does not mean that the case is automatically one of simple

assault.    Id.   By stabbing Michael with a knife, Wilson’s attack caused a great risk of death.

This Court does not require that an aggressor beat his victim “to within an inch of his life in

order to be found guilty of aggravated assault.” Fleming v. State, 604 So. 2d 280, 292 (Miss.

1992).      Given these facts and the applicable standard of review, we cannot agree there was

insufficient evidence to support the jury verdict or that to let it stand would sanction an

unconscionable injustice. This argument is without merit.

           IV.    JURY INSTRUCTIONS

¶21.       Wilson asserts that the trial court erred in refusing to give his two-theory jury

instruction.      However, in claiming error, Wilson only cites generally to a series of cases,

without explaining their relevancy.    This Court has held that it is the duty of the appellant to

point to relevant case law in support of his argument and that failure to do so relieves us of the

obligation of addressing the issue.        Jones v. State, 841 So. 2d 115, 138 (Miss. 2003);

Williams v. State, 708 So. 1358, 1360-61 (Miss. 1998); Pate v. State, 419 So. 2d 1324,

1325-26 (Miss. 1982).

¶22.       Notwithstanding the procedural bar, we address this issue.     The trial court refused to

give the following jury instruction:




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         The Court instructs the jury that if the evidence in this case presents two
         reasonable theories, one tending to indicate that the Defendant is guilty and the
         other tending to indicate that he is innocent, it is the jury’s duty to accept the
         theory favorable to the Defendant and to find Kenneth Wilson, Jr., not guilty of
         the crime of murder.


Wilson asserts this jury instruction is appropriate in all cases and therefore should have been

given in this case. He further argues that, because his theory of the case included an assertion

of self - defense, the evidence presented against him was circumstantial therefore requiring

this instruction.

¶23.     This Court has stated that two - theory instructions should only be given in cases based

entirely on circumstantial evidence. State v. Rogers, 847 So. 2d 858, 863 (Miss. 2003). We

have defined circumstantial evidence as that which, without going directly to prove the

existence of a fact, gives rise to a logical inference that such a fact exists. Id. A circumstantial

evidence case is one in which there is neither eyewitness testimony nor a confession to the

crime.    Id.       As is clear in this case there were several eyewitnesses and Wilson repeatedly

confessed to the crime. Therefore, the trial court did not err in refusing this instruction.

         V.         CUMULATIVE ERROR

¶24.     Wilson asserts that the cumulative impact of the trial court’s errors denied him due

process and therefore requires reversal.        A criminal defendant is entitled to a fair trial and not

a perfect trial. Sand v. State, 467 So. 2d 907, 911 (Miss. 1985). However, even though not

reversible in themselves, the cumulative impact of non-reversible errors may, in our discretion,

require reversal.      Byrom v. State, 863 So. 2d 836, 847 (Miss. 2003).                 In the present case


                                                      13
Wilson has been unable to show to this Court any error, either reversible or harmless. The lack

of demonstrable error indicates that there is no need to consider its cumulative impact.

Therefore, Wilson’s argument is without merit.

                                           CONCLUSION

¶25.   We find no merit to Wilson’s assignments of error and affirm the trial court’s judgment.

¶26. COUNT 1: CONVICTION OF MURDER AND SENTENCE OF LIFE
IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AFFIRMED.      COUNT II: CONVICTION OF AGGRAVATED
ASSAULT AND SENTENCE OF TWENTY (20) YEARS WITH FIVE (5) YEARS TO
SERVE AND FIFTEEN (15) YEARS SUSPENDED UPON SUCCESSFUL COMPLETION
OF FIVE (5) YEARS POST RELEASE SUPERVISION IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.      SENTENCE IN
COUNT II SHALL RUN CONSECUTIVELY WITH THE SENTENCE IMPOSED IN
COUNT I.
     SM ITH, C.J., WALLER, P.J., DIAZ, EASLEY, CARLSON, GRAVES, DICKINSON
AND RANDOLPH, JJ., CONCUR.




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