                       IN THE SUPREME COURT OF MISSISSIPPI

                                   NO. 2004-KA-00775-SCT

REGINA DARLENE GARRETT

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT:                            02/12/2004
TRIAL JUDGE:                                 HON. ROBERT B. HELFRICH
COURT FROM WHICH APPEALED:                   PERRY COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                      THOMAS RICHARD MAYFIELD
ATTORNEY FOR APPELLEE:                       OFFICE OF THE ATTORNEY GENERAL
                                             BY: JOHN R. HENRY
DISTRICT ATTORNEY                            JOHN MARK WEATHERS
NATURE OF THE CASE:                          CRIMINAL - FELONY
DISPOSITION:                                 AFFIRMED - 01/05/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE SMITH, C.J., GRAVES AND DICKINSON, JJ.

       DICKINSON, JUSTICE, FOR THE COURT:

¶1.    Regina Darlene Garrett (Regina) appeals from her conviction and life imprisonment

sentence for the murder of her husband, Charles Joseph Garrett, Sr. She claims the trial court

erred in denying her motion for directed verdict of “not guilty” and in refusing two of her

requested jury instructions on circumstantial evidence.     Finding no reversible error in the

record, we affirm.

                           FACTS AND PROCEDURAL HISTORY

¶2.    On January 28, 2002, Perry County Deputy Sheriff Edward Bolton responded to a 911

call reporting a shooting at 188 Holliman Road.     At the scene, Deputy Bolton observed Joey

Garrett, the son of Regina and Charles Garrett, “running around hollering and beating.”   Deputy
Bolton further observed Charles lying in the doorway between the carport and the residence.

Regina told Deputy Bolton that while target shooting Charles sent her inside the house to get

a shotgun and bring it to him. She explained that as she was bringing the shotgun to him, she

tripped over the couch and fell, causing the gun to discharge and strike Charles.

¶3.     Deputy Mitch Nobles who also responded to the location, took Joey Garrett aside and

attempted to calm him. Joey told Deputy Nobles that while riding a four-wheeler with his little

sister, he saw his father fall and his mother standing in the doorway with a shotgun.

¶4.     When Chief Deputy Jimmy Dale Smith arrived at the scene, he found in the kitchen a

shotgun containing one spent round. Chief Deputy Smith interviewed Regina and, after

administering the Miranda warnings, obtained from her a 2 ½ page handwritten statement

describing the events surrounding the death of her husband.          In her statement, Regina claimed

that her husband sent her for the gun, and as she was taking it to him, she tripped and fell,

causing the gun to accidently discharge, killing her husband.          Chief Deputy Smith testified he

sent the shotgun he recovered from the kitchen to the state crime lab for a fingerprint

examination and a drop test.        Starks Hathcock, a forensic scientist specializing in firearms

identification for the Mississippi Crime Lab, performed the drop test on the shotgun.         Because

the shotgun failed to fire after numerous drops, Hathcock concluded that the shotgun could not

have discharged without the trigger being pulled.

¶5.     The Perry County Sheriff’s Department requested Mississippi Crime Lab senior crime

scene analyst Grant Graham to inspect the scene of the shooting. During his investigation,

Graham noticed and recorded ricochet marks but was unable to project the trajectory of the

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objects which caused them.        Additionally,     forensic pathologist Dr. Steven Hayne performed

an autopsy on Charles’s body and concluded that the cause of death was massive blood loss

from major vessels secondary to a shotgun wound to the face. Dr. Hayne also concluded that

the muzzle of the weapon was 8 to 10 feet from the decedent’s face when it was fired, but

could not determine from his examination the respective position or body angles of the

shooter and deceased at the time the shot was fired.           He did state, however, that there was

enough evidence for him to exclude accident in this case.

¶6.       At trial, several witnesses testified concerning their relationship with Regina Garrett

as well as specific conversations in which she related her desire to kill her husband. Rita Smith

testified that during December 2000 through the spring of 2001, she and Regina had at least

two dozen conversations about having Regina’s husband killed.             The conversations included

details of his possible death such as his having an “accident” doing target practice.              ¶7.

          Another friend of Regina’s, Penny Strickland, testified that Regina stated several times

that if Charles Garrett hit her again she would shoot him.         Charles Graves testified that while

the two worked together, he and Regina had a sexual relationship which lasted about five

months.      After discovering the affair, Charles Garrett called Graves on several occasions

prompting Graves to contact the police.           Graves further testified that Regina never discussed

with him a plan to kill her husband.

¶8.       Louis Young testified that he became acquainted with Regina when they worked

together at the Care Center in Laurel, Mississippi.         He testified that Regina contacted him to

solicit his assistance in getting someone killed and offered to pay him $15,000 from insurance

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proceeds for his help in bringing about her husband’s death. Young arranged a meeting in a

Wal-Mart parking lot in Magee, Mississippi, between Regina and a friend of his, Lindsay

James, for the two to discuss the possibility of having Regina’s husband killed. Young further

testified that he never intended to locate someone to kill the deceased and really did not

believe Regina was serious about killing her husband.       During the meeting, according to James,

however, Regina provided a small photo of her husband and told James she wanted her husband

killed and offered to pay money from the insurance proceeds in exchange for his death. James

testified that he did not receive any money from Regina and denied ever entering into any type

of negotiation for the killing of her husband.

¶9.     A Perry County Grand Jury indicted Regina Garrett for the deliberate design murder of

her husband Charles Garrett, Sr.          At the close of the State’s case, the trial court denied

Regina’s motion for directed verdict challenging the sufficiency of the evidence.           Regina

rested without putting on any proof, and Regina was convicted and sentenced to a term of life

imprisonment.    The trial court judge denied Regina’s Motion for New Trial and for Judgment

Notwithstanding the Verdict.

                                                 ANALYSIS

¶10.    Regina Garrett presents two issues for this Court to review:

        1.       Since the defendant was the only eye witness to the homicide and her
                 version was reasonable and uncontradicted in any material particular by
                 credible witnesses, physical facts or facts of common knowledge, her
                 version should have been accepted as true and her motion for directed
                 verdict of “not guilty” should have been granted.




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        2.      The trial court erred in refusing defendant’s requested Instruction D-5 as
                submitted and in refusing defendant’s requested Instruction D-6.

        Motion for Directed Verdict

¶11.    Regina Garrett asserts that because she was the only eyewitness to the homicide of

Charles Garrett, Sr., and because her version of the event was reasonable and uncontradicted,

the trial judge should have granted her motion for directed verdict of “not guilty.”         Some

seventy-two years ago, this Court in Weathersby v. State, 165 Miss. 207, 147 So. 481, 482

(1933), held that where a defendant or defendant’s witnesses were the only eyewitnesses to

a homicide, their version, if reasonable, must be accepted as true, unless substantially

contradicted in material particulars by a credible witness or witnesses for the State, or by

physical facts or by the facts of common knowledge.           Therefore, we must determine whether

Regina presented her version of events and, if so, whether her version of the homicide is

reasonable and whether the physical facts and testimony of the State’s credible witnesses

reveal any inconsistences which substantially contradict her version of the homicide.

¶12.    Regina presented no evidence and called no witnesses following her motion for directed

verdict, that is to say, she rested without putting on any proof. Having put on no proof, she

therefore presented no version of the homicide. Her “version” of the homicide in her January

28, 2002, handwritten statement, and the tape-recorded statement of February 7, 2002, were

unsworn statements which were introduced into evidence by the State in its case-in-chief and

may not be considered Regina’s version of the homicide for purposes of obtaining a

Weathersby instruction.


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¶13.    In Carter v. State, 221 Miss. 111, 72 So.2d 231, 232 (1954), this Court held that even

though the State introduced statements made by Carter in its case, the Weathersby rule had no

application because Carter neither testified nor offered any witnesses at trial.                   Similarly,

Regina may not invoke the Weathersby rule because she did not establish her version of the

homicide through testimony at trial.

¶14.    Regina argues that her version of the facts came into evidence through the statements

she made to police. However, this Court has never held that an unsworn statement to police

may be used for purposes of a Weathersby analysis.               Thus, Regina’s first assignment of error

is without merit, and the trial court properly denied her motion for directed verdict.

        Regina’s requested Jury Instructions D-5 and D-6

¶15.    Regina’s second assignment of error is that the trial court erred in refusing her

requested Jury Instructions D-5 and D-6, as submitted. Both of these jury instructions, which

relate to circumstantial evidence, instruct the jury that the prosecution must prove its case

beyond a reasonable doubt and to the exclusion of any reasonable hypothesis of innocence in

order to convict. Instruction D-5 as submitted by the Defendant required the jury to find the

defendant guilty to “the exclusion of every other reasonable hypothesis.”                The State objected

to this language, contending that this was not a purely circumstantial evidence case. The trial

court agreed, and we find no error.

¶16.    Instruction D-6,     as   submitted,     instructed   the   jury   regarding       the   “two theory”

circumstantial evidence case. The court refused this instruction, again noting that this was not



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a circumstantial evidence case.     This Court has stated that “the so-called ‘two theory

instruction’ . . . should be granted only in a case based entirely upon circumstantial evidence.

State v. Rogers, 847 So. 2d 858, 863 (Miss. 2003), citing Kitchens v. State, 300 So. 2d 922,

926 (Miss. 1974) citing Coward v. State, 223 Miss. 538, 78 So. 2d 605 (1955).

¶17.   A circumstantial evidence case is one where the State is “without a confession and

wholly without eyewitnesses to the gravamen of the offense charged,” Kniep v. State, 525

So.2d 385, 392 (Miss. 1988). But where the accused has made an admission on an element

of the offense, it is no longer a circumstantial evidence case. Lynch v. State, 877 So.2d 1254,

1256 (Miss. 2004); Conner v. State, 632 So.2d 1239, 1256 (Miss. 1993); Mack v. State, 481

So.2d 793, 795 (Miss. 1985).       The defendant is not entitled to a circumstantial evidence

instruction where both circumstantial and direct evidence are admitted at trial.   Gilleylen v.

State, 255 So.2d 661, 663-64 (Miss. 1971).

¶18.   In addition to direct scientific evidence such as fingerprints and DNA, direct evidence

has been held to include evidence such as eyewitness testimony, the defendant’s confession

to the offense charged, or the defendant’s admission to an important element thereof. Lynch,

877 So.2d at 1265-66; Conner, 632 So.2d at 1256; Mack, 481 So.2d at 795.

¶19.   Regina admitted three times to having shot her husband, causing his death. This qualifies

her as an eyewitness to the homicide.        Also, several witnesses testified that, on numerous

occasions, Regina discussed her desire to kill her husband and the possibility of         hiring

someone to kill him for money.



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¶20.    Regina’s statements to the four people about her desire to kill her husband and her

requests for others to kill him constitute an admission of deliberate design which is an element

of the crime. This Court has held that a defendant’s statement to the police that he thought his

partner was going to carjack somebody was an admission against interest, and thus, the capital

murder case was not purely circumstantial even though the statement did not constitute a

confession.   See Lynch, 877 So.2d at 1254.            See also Swinney v. State, 829 So.2d 1225

(Miss. 2002) (confession to a shooting could be direct evidence to an underlying felony for

capital murder purposes where defendant admitted to pointing the gun at the victim and stated

the gun accidently fired).        Our precedent consistently adheres to the rule that any direct

evidence presented at trial is sufficient to preclude a circumstantial evidence instruction.

¶21.      Accordingly, the trial court judge was correct in striking the circumstantial evidence

language in Jury Instruction D-5 and in refusing to submit the circumstantial evidence

instruction D-6. Regina’s second assignment of error is also without merit.




                                             CONCLUSION

¶22.    For these reasons, we affirm the trial court’s judgment.

¶23. CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN
THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS,
AFFIRMED.

      SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY AND CARLSON, JJ.,
CONCUR. GRAVES AND RANDOLPH, JJ., CONCUR IN PART AND IN THE RESULT.
DIAZ, J. NOT PARTICIPATING.




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