                         IN THE SUPREME COURT OF MISSISSIPPI

                                      NO. 2001-KA-01712-SCT

TONY DAREL HAWTHORNE

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                                    05/21/1999
TRIAL JUDGE:                                         HON. ROBERT H. WALKER
COURT FROM WHICH APPEALED:                           HARRISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                              ROBERT H. KOON
ATTORNEYS FOR APPELLEE:                              OFFICE OF THE ATTORNEY GENERAL
                                                     BY:     JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY:                                   CONO A. CARANNA, II
NATURE OF THE CASE:                                  CRIMINAL - FELONY
DISPOSITION:                                         AFFIRMED - 01/16/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

        BEFORE SMITH, P.J., EASLEY AND GRAVES, JJ.

        EASLEY, JUSTICE, FOR THE COURT:

                                      PROCEDURAL HISTORY

¶1.     Tony Darel Hawthorne (Hawthorne) was indicted in the Circuit Court of Harrison County,

Mississippi, for the murder of Aaron J. Seldon (Seldon). After a jury trial the jury returned a guilty verdict,

and the trial court sentenced Hawthorne to life imprisonment in the custody of the Mississippi Department

of Corrections. Hawthorne's motion for judgment notwithstanding the verdict or alternatively motion for

new trial (J.N.O.V.) was denied by the trial court. Hawthorne was appointed new counsel to handle his

appeal to this Court.
                                                FACTS

¶2.     The brother of Yolanda Mullin (Mullin) hosted a barbecue at their mother’s home the evening of

September 7, 1998, that lasted until the early hours of September 8, 1998. Among the people at the

barbecue were Kelvin Barrett (Barrett), Seldon and Hawthorne. Seldon and Hawthorne were cousins.

¶3.     During the early morning hours of September 8, 1998, Savona Autman (Autman) first saw

Hawthorne standing on the porch of Rhonda Williams’s (Williams) apartment with Johnny and Lashail

Stewart (Stewart). According to Autman, Hawthorne agreed to take her to get a sack of “powder”, i.e.

cocaine. Autman, Stewart and Hawthorne left in Williams’s car with Hawthorne driving.

¶4.     Stewart recalled that Hawthorne told them that his cousin had taken something out of his pocket.

Hawthorne did not say he was going to kill Seldon, but he was mad that his cousin had taken his money.

Hawthorne claimed that Seldon had taken $30-$50 out of his pocket a few days before earlier while they

both were at Williams’s apartment. Hawthorne, Williams and Seldon had been drinking and having “fun”

when Hawthorne had gotten tired and fallen asleep. Williams told Hawthorne that Seldon took the money

while he was asleep.

¶5.     Some time before 2:00 a.m., Mullins and Chuck Potts (Potts) left the barbecue and went to Potts’s

house. Barrett and Seldon had already left the barbecue and gone to Taco Bell. Barrett was driving

Seldon's truck. Barrett and Seldon parked in front of Potts’s house to eat. Mullins and Potts saw Barrett

and Seldon drive up in front of Potts’s house. Barrett was driving.

¶6.     As Autman, Stewart and Hawthorne were riding down Meadowlark Drive, Autman spotted

Seldon. She informed Hawthorne that she saw Seldon. Hawthorne turned the car around, and he parked

the car right next to Seldon’s truck. Stewart saw that Hawthorne had a gun when he got out of the car.

Stewart and Autman tried to get Hawthorne to get back in the car.


                                                   2
¶7.     Barrett testified that Seldon rolled his window down. Hawthorne jumped out of the car yelling at

Seldon. Mullins and Potts testified that when Barrett started the truck, Hawthorne pointed his gun at

Barrett. According to Barrett, Hawthorne told him to turn off the truck or he would blow his brains out.

Barrett complied.

¶8.     Barrett stated that the argument between Seldon and Hawthorne was basically over money.

Seldon did not seem to take Hawthorne very seriously. When Hawthorne pointed the gun at Seldon,

Seldon started pulling money out of his pocket. According to Barrett, Hawthorne said, “You don’t believe

I’ll shoot you.” Seldon replied, “No, if you love me so much, no, you won’t shoot me.” Hawthorne was

within three or four inches of Seldon when he fired the gun.

¶9.     Hawthorne began shaking Seldon saying, “Cuz, cuz, wake up. Wake up.” Barrett did not see

Seldon try to grab Hawthorne’s gun. Stewart did not look up until she heard the gun go off, and she saw

Hawthorne shaking Seldon saying, “Cuz, wake up.” Autman did not see Seldon grab Hawthorne’s gun.

¶10.    When Autman heard the shot, she ran to the house across the street and told them to call the police.

Stewart jumped out of the car. She saw Hawthorne get into the truck with Seldon. Mullins and Potts went

inside to call the police. Barrett exited the truck and ran. Barrett heard Hawthorne start the truck and

leave with Seldon. Stewart and Autman returned to Williams’s car. They attempted to follow Seldon’s

truck, but they lost sight of the truck.

¶11.    Hawthorne testified in his own defense. Hawthorne claimed that Seldon told him, "If [y]ou want

your money? Take it. Take it.” Hawthorne thought “take it” meant he would have to physically take the

money from Seldon. Hawthorne claimed he did not intend to shoot Seldon. Hawthorne alleged that he

had armed himself merely for his protection. Hawthorne claimed that the gun fired because Seldon tried

to grab it.


                                                    3
¶12.     When the Gulfport police arrived on the scene at 0209 hours, they found Seldon's truck in a ditch

with the engine compartment on fire. The police discovered Seldon covered with blood. The police put

out the flames, and they pulled him from the vehicle. He was not responsive.

¶13.     Hawthorne claimed he was attempting to take Seldon to the hospital when he drove away with

Seldon in the truck. At Edgewood Manor, Hawthorne hit the curb causing the truck to wreck. Hawthorne

contends that he ran to Edgewood Manor to get someone to call an ambulance, but no one would open

their door. Hawthorne asserted that he never saw flames or smoke coming from the truck.

¶14.     Hawthorne went to the house of his cousin, Deborah Robinson (Robinson), where he changed his

clothes. When Hawthorne saw on television that Seldon had died, he left Robinson's house and went to

the police station to talk with the police.

¶15.     Pathologist Dr. Paul McGarry (Dr. McGarry) testified that Seldon suffered a gunshot wound that

entered the right jaw area along the jaw line. The bullet went through the back and center of Seldon's

spine, damaging his spinal cord, opening a jugular vein and totally opening a major artery to the brain before

exiting through the upper back causing major blood loss. Dr. McGarry determined the gunshot to be

Seldon’s cause of death.

¶16.     Following the testimony offered by the State, Hawthorne moved for a directed verdict arguing that

the State had failed to make a prima facie case of the elements of deliberate design murder. The trial court

denied Hawthorne’s motion for J.N.O.V. or a new trial. Hawthorne now appeals his conviction to this

Court.

¶17.     Hawthorne raises the following issues on appeal:

         I.      Whether the trial court erred in granting jury instruction S-3-A.




                                                      4
        II.      Whether offering jury instruction D-12-A constituted ineffective
                 assistance of counsel.

        III.     Whether the evidence offered as to deliberate design was legally
                 sufficient to support the jury’s verdict.

                                               DISCUSSION

                                        I. Jury Instruction S-3-A

¶18.    On appeal, Hawthorne argues that jury instruction S-3-A as given by the trial court amounted to

reversible error. Jury instruction S-3-A reads as follows:

        Deliberate design means intent to kill, without authority of law and not being legally
        justifiable, legally excusable or under circumstances that would reduce the act to a lesser
        crime.

¶19.    Hawthorne contends that “by omitting any language regarding the time for forming deliberate

design... was confusing and misleading to the jury.” The record does not reflect that Hawthorne ever raised

this objection to the deliberate design instruction at trial. However, the following exchange regarding the

jury instruction is reflected in the record:

        The Court:                     S3, where do you get that?
        Mr. Simpson [State]: Judge, out of a case that – we’ve submitted this almost in every
                              murder case, maybe in every murder case. I will need to try to
                              find the case that it’s out of. It’s a quote out of a case.
        The Court:                     Well, I think both sentences leave a big confusion as to
                                       what makes a homicide a murder. Simple design to kill,
                                       as it’s addressed in the first sentence, doesn’t necessarily
                                       work because it could exist in self-defense or
                                       manslaughter. The second sentence –
        Mr. Simpson:          Those are affirmative defenses, Judge.
        The Court:                     The second sentence, “deliberate design,” is really what
                                       makes murder. I think that we ought to delete the first
                                       sentence and just do “deliberate design means,” et cetera.
        Mr. Simpson:          That’s fine, Your Honor. We’ll amend it and submit it.
        The Court:                     Mr. Crosby?
        Mr. Crosby [Defense]:          If we were trying this as a – say that he had lawful
                                       authority to shoot, or if we were saying it was legally


                                                    5
                                         justifiable to shoot, of if it was legally excusable for a
                                         lesser crime, then that would be appropriate. But we
                                         have not articulated that and submitted that defense.
                                         Now, this might be appropriate if my client decides he
                                         wants manslaughter culpable negligence instruction
                                         because then that would be a distinguishing –
        The Court:                       Well, I think under – and I don’t know what the State’s
                                         position is on manslaughter, although they’ve submitted
                                         one, but I think that, based upon the case law, either side
                                         can request it. I don’t think it’s at the opinion of the
                                         defendant. It’s ultimately up to the [c]ourt.
        Mr. Crosby:                      Oh, yeah. But what I was saying is I don’t think that
                                         would be appropriate unless we were asking for one.
                                         And actually, even in a manslaughter case, you can have
                                         the deliberate design to shoot and it still can be
                                         manslaughter, so even if we do request, either side
                                         requests a manslaughter instruction, this S3 is still not
                                         appropriate because it does not fit this case. If they
                                         believe he intended to shoot, then –
        The Court:                       Well, but S1A is going to be with the deliberate design to
                                         kill, not shoot to kill. So that will take care of that.
                                         Prepare an S3A, Mr. Simpson.
        Mr. Simpson:             Yes, sir.
        The Court:                       And just put that second sentence in there.
        Mr. Simpson:             Yes, sir.
        The Court:                       Are you withdrawing it or do you want me to refuse it?
                                         Either one.
        Mr. Simpson:             Excuse me?
        The Court:                       Are you withdrawing S3 or do you want me to refuse it?
        Mr. Simpson:             I withdraw it and submit an S3A.
        Mr. Crosby:                      Although, Judge, unless we ask for a lesser crime, then
                                         this instruction is confusing and misleading.
        The Court:                       I don’t think so. I think this is assisting the jury on what
                                         deliberate design means, and that’s an element of the
                                         crime of murder with the deliberate design to kill.
        Mr. Crosby:                      All right.
        The Court:                       So I don’t think that hurts, unless you know of a case that
                                         says otherwise.

¶20.    In Jones v. State, 776 So.2d 643, 653 (Miss. 2000), Jones asserted that the trial court

committed reversible error in granting the State’s jury instruction. Id. However, Jones had failed to object



                                                     6
to the jury instruction offered by the State at trial. Id. This Court determined that Jones had waived any

objection by not objecting to the jury instruction at trial. This Court stated:

        This Court has held on numerous occasions that an offered party’s failure to object to jury
        instructions at trial procedurally bars the issue on appeal. Walker v. State, 729 So.2d
        197, 202 (Miss. 1998); See also Green v. State, 631 So.2d 167, 173 (Miss. 1994)
        (“Green failed to object to the manslaughter instruction given at trial; therefore, it is not
        necessary for us to review this assignment.”).

776 So.2d at 653. Accordingly, since Hawthorne did not make this objection at trial, this issue is now

procedurally barred. Even if this issue is not procedurally barred, this Court has previously addressed the

exact language given in jury instruction S-3-A. This Court in Tran v. State, 681 So.2d 514, 516 (Miss.

1996), considered the language of a similar deliberate design instruction. In Tran, the first paragraph of

jury instruction S-1 provided that:

        Deliberate design means intent to kill without authority of law and not being legally
        justifiable, legally excusable or under circumstances that would reduce the act to a lesser
        crime.

Id.

¶21.    Tran’s objection to this definition of deliberate design was determined by the Court to be without

merit. Id. at 517. This Court determined:

        ‘[I]t has long been the 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); Hawthorne v. State, 58 Miss. 778
        (1881); McDaniel v. State, 16 Miss. (8 S. & M.) 401 (Miss. 1847)). ‘Definitionally
        [sic], we regard ‘malice aforethought’ and ‘deliberate design’ as synonymous.’ Blanks
        v. State, 542 So.2d 222, 227 (Miss. 1989) (citing Fairman v. State, 513 So.2d 910,
        913 (Miss. 1987)); Johnson v. State, 475 So.2d 1136, 1139 (Miss. 1985); Lancaster
        v. State, 472 So.2d 363, 367 (Miss. 1985)). Thus, Tran’s arguments against the first
        paragraph of Instruction S-1 are meritless.




                                                      7
¶22.     This holding in Tran was subsequently relied upon by the Court in Jones v. State, 710 So.2d

870 (Miss. 1998). The Court in Jones stated:

         In Tran v. State, this Court found appropriate an instruction that read, ‘Deliberate design
         means intent to kill, without authority of law and not being legally justifiable, legally
         excusable or under circumstances that would reduce the act to a lesser crime.’ Tran, 681
         So.2d at 516. The Court stated that ‘[t]here is no flaw in the instruction given as it does
         not state that deliberate design can be formed at the very moment of the fatal act, ...’ Id.
         This Court has also acknowledged that ‘deliberate design’ to take the life of another
         connotes intent to kill. Peterson v. State, 242 So.2d 420, 427 (Miss. 1970).

Jones, 710 So.2d at 877-78.

¶23.     We find that this issue is both procedurally barred from being raised on appeal, as well as, without

merit.

                               II. Ineffective Assistance of Counsel

¶24.     The defense submitted jury instruction D-12-A which was given without objection. D-12-A

instructed the jury that if they found Hawthorne guilty of the elements of manslaughter they were to convict

him as charged. D-12-A provides as follows:

         Manslaughter is a lesser included charge to [m]urder.

         If you find from the evidence in this case beyond a reasonable doubt that:

         1.      Tony Darel Hawthorne, on or about September 8, 1998, in Harrison County First
                 Judicial District
         2.      Killed Aaron J. Seldon
         3.      By discharging a pistol, and
         4.      Tony Darel Hawthorne was negligent and the negligence was so gross as to be
                 tantamount to a wanton disregard of, or utter indifference to, the safety of human
                 life, and
         5.      Such negligence, if any, directly caused the death of Aaron J. Seldon, and further
                 discharge was not accidental,

         Then you shall find the defendant guilty as charged.



                                                      8
                If the [p]rosecution has failed to prove any one or more of the above listed
         elements beyond a reasonable doubt, then you shall find Tony Darel Hawthorne not guilty.

¶25.     Hawthorne's new counsel argues that submission of this jury instruction constitutes ineffective

assistance of counsel. Hawthorne contends that since he was charged with murder, the stated language

in jury instruction D-12-A, “[t]hen you shall find the defendant guilty as charged,” effectively prevented the

jury from considering the lesser included offense of manslaughter. We find that this issue is wholly without

merit.

¶26.     Hawthorne argues that this Court should reverse this case based on one sentence contained in the

manslaughter instruction. However, that is not the standard of review that is followed by this Court. In

Woodham v. State, 800 So.2d 1148, 1156 (Miss. 2001), this Court stated the correct standard of

review as follows:

         This Court has repeatedly stated that “when considering a challenge to a jury instruction
         on appeal, we do not review jury instructions in isolation; rather, we read them as a whole
         to determine if the jury was properly instructed.” Burton ex rel. Bradford v. Barnett,
         615 So.2d 580, 583 (Miss. 1993). “[I]n determining whether error lies in the granting or
         refusal of various instructions, the instructions actually given must be read as a whole.
         When so read, if the instructions fairly announce the law of the case and create no injustice,
         no reversible error will be found.” Coleman v. State, 697 So.2d 777, 782 (Miss. 1997)
         (quoting Collins v. State, 691 So.2d 918 (Miss. 1997)). In other words, if all
         instructions taken as a whole fairly, but not necessarily perfectly, announce the applicable
         rules of law, no error results.

¶27.     Reviewing D-12-A in conjunction with the other instructions given by the trial court, we find that

granting D-12-A did not constitute reversible error. Furthermore, the defense’s decision to submit

instruction D-12-A does not constitute ineffective assistance of counsel.

¶28.     This Court has repeatedly examined ineffective trial counsel claims pursuant to Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 675 (1984). In Ferguson v. State, 507

So.2d 94 (Miss. 1987), this Court stated:

                                                       9
        Claims of ineffective assistance of counsel are governed by guidelines of Strickland v
        Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 675 (1984). “First,” said the
        Supreme Court, “the defendant must show that counsel’s performance was deficient.
        ...Second, the defendant must show that the deficient performance prejudiced the
        defense.” Although it need not be outcome determinative in the strict sense, 466 U.S. at
        687, 104 S.Ct. at 2068, 80 L.Ed.2d at 697-98, it must be grave enough to “undermine
        confidence” in the reliability of the whole proceeding. 466 U.S. at 694, 104 S.Ct. at 2068,
        80 L.Ed.2d at 698. In practice this second element of the Strickland test has proved
        an insuperable obstacle to many criminal appellants. Even a demonstrably deficient
        performance by a lawyer can be held insufficiently prejudicial where the evidence of the
        defendant’s guilt is strong.

507 So.2d at 95.

¶29.    It is the duty of the Court to determine, based on the totality of the circumstances, whether the

counsel’s efforts were both deficient and prejudicial, thereby necessitating a reversal. See Henley v.

State, 729 So.2d 232, 241 (Miss. 1998); Waldrop v. State, 506 So.2d 273, 275 (Miss. 1987). We

find that Hawthorne has not demonstrated that the representation he was provided fell below an objective

standard of reasonableness. Hawthorne has not demonstrated how the instruction operated to result in

actual prejudice to his defense. As given, D-12-A clearly instructs the jury that the manslaughter

instruction is given as a lesser included charge to murder. This issue is without merit.

            III. Legal Sufficiency and Overwhelming Weight of the Evidence

¶30.    Hawthorne asserts that the jury verdict is not legally sufficient nor supported by the weight of the

evidence to sustain his murder conviction due to inconsistencies in witnesses' testimony offered at trial.

¶31.    On the issue of legal sufficiency, 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.” Wetz v. State, 503 So.2d 803, 808 (Miss. 1987). The standard of review for a denial of a

directed verdict, peremptory instruction and a J.N.O.V. are identical. Coleman v. State, 697 So.2d 777,

787 (Miss. 1997). In McClain v. State, 625 So.2d 774, 778 (Miss. 1993), this Court held that a motion

                                                    10
for J.N.O.V., motion for directed verdict and a request for peremptory instruction challenge the legal

sufficiency of the evidence. "Since each requires consideration of the evidence before the court when

made, this Court properly reviews the ruling on the last occasion the challenge was made in the trial court.

This occurred when the circuit court overruled [the] motion for JNOV.” Id. at 778 (citing Wetz v. State,

503 So.2d 803, 807-08 (Miss. 1987)).

¶32.    In regard to the weight of the evidence, it is well established that matters regarding the weight of

the evidence are to be resolved by the jury. Neal v. State, 451 So.2d 743, 758 (Miss. 1984). “The

court is bound by the jury findings upon an issue presented by the instruction requested by the [defendant].”

Kinney v. State, 336 So.2d 493, 496 (Miss. 1976). A motion for new trial challenges the weight of the

evidence. Sheffield v. State, 749 So.2d 123, 127 (Miss. 1999). A reversal is warranted only if the trial

court abused its discretion in denying a motion for new trial. Id. (citing Gleeton v. State, 716 So.2d 1083

(Miss. 1998)). This Court held in McFee v. State, 511 So.2d 130, 133 (Miss. 1987), that it has limited

authority to interfere with a jury verdict. The Court looks at all the evidence in the light most consistent with

the jury verdict. Id. The prosecution is given “the benefit of all favorable inferences that may reasonably

be drawn from the evidence.” Id. The Court in McFee stated that:

        [I]f there is in the record substantial evidence of such quality and weight that, having in
        mind the beyond a reasonable doubt burden of proof standard, reasonable and fair-minded
        jurors in the exercise of impartial judgement might have reached different conclusions, the
        verdict of guilty is thus placed beyond our authority to disturb.

Id. at 133-34. See also May v. State, 460 So.2d 778, 781 (Miss.1984).

¶33.    A new trial will not be granted unless the verdict is so contrary to the overwhelming weight of the

evidence that an unconscionable injustice would occur by allowing the verdict to stand. Groseclose v.

State, 440 So.2d 297, 300 (Miss. 1983). See also Danner v. State, 748 So.2d 844, 846 (Miss. Ct.


                                                      11
App. 1999). However, if a jury verdict convicting a defendant is against the overwhelming weight of the

evidence, then the remedy is to grant a new trial. Collier v. State, 711 So.2d 458, 461 (Miss. 1998).

¶34.    As to the credibility of witnesses, this Court in Gathright v. State, 380 So.2d 1276 (Miss.

1980), has held that “in a criminal prosecution the jury may accept the testimony of some witnesses and

reject that of others, and that they may accept in part and reject in part the evidence on behalf of the state

or on behalf of the accused. In other words, the credibility of witnesses is not for the reviewing court.”

Gathright, 380 So.2d at 1278 (citing Davis v. State, 320 So.2d 789 (Miss.1975)).

¶35.    In the case sub judice, the evidence met the legal sufficiency test and the weight of the evidence test

for a denial of the motion for J.N.O.V. and motion for new trial. Sufficient testimony was offered to

support the murder conviction. The testimony established that Hawthorne went looking for Seldon.

Hawthorne was upset that Seldon had stolen money from him.

¶36.    Hawthorne borrowed Williams's car and then left with Autman and Stewart. When Autman spotted

Seldon, Hawthorne turned the car around to pull in beside Seldon's truck. Seldon was sitting in the

passenger seat of his truck. Hawthorne got out the car and stood beside Seldon's truck. Seldon remained

seated in the truck.

¶37.    Barrett was in the driver's seat of Seldon's truck. Hawthorne ordered Barrett to turn off the truck.

An argument ensued between Hawthorne and Seldon. Hawthorne pulled his gun on Seldon. Hawthorne

shot Seldon while he was still sitting in the truck.

¶38.    Hawthorne claimed he never intended to shoot Seldon, and he brought the gun only for his own

protection. Hawthorne alleged that Seldon tried to grab his gun which caused it to fire. No other witness

confirmed Hawthorne's account of how the gun fired. However, there is no contradiction that Hawthorne

did bring and fire the gun.

                                                       12
¶39.    Dr. McGarry testified that Seldon's cause of death was the gunshot wound to his jaw which caused

damage to his spinal cord and totally opened a major artery to his brain.

¶40.    This Court has held that "deliberate design may be inferred from the use of a deadly weapon."

Carter v. State, 722 So.2d 1258, 1263 (Miss. 1998). See also Mitchell v. State, 803 So.2d 479,

484 (Miss. Ct. App. 2001).

¶41.    We find that there is sufficient evidence in the record to support the jury's verdict finding Hawthorne

guilty of murder. Furthermore, it is clear that a reasonable, fairminded juror could find beyond a reasonable

doubt that Hawthorne was guilty of Seldon's murder. Therefore, we find that there was ample evidence

presented for the jury to find deliberate design. This issue is without merit.

                                             CONCLUSION

¶42.    For the foregoing reasons, the judgment of the Harrison County Circuit Court is affirmed.

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

     PITTMAN, C.J., McRAE AND SMITH, P.JJ., WALLER, COBB, DIAZ, CARLSON
AND GRAVES, JJ., CONCUR.




                                                     13
