IN THE SUPREME COURT OF MISSISSIPPI

E-Filed Document Nov 25 2014 17:09:23 2014-KA-00252-SCT Pages: 13 IN THE SUPREME COURT OF MISSISSIPPI FRANKLIN FITZPATRICK APPELLANT VS. NO. 2014-KA-00252-SCT STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: LA DONNA C. HOLLAND SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO. 101888 OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE: (601) 359-3680

TABLE OF CONTENTS TABLE OF AUTHORITIES... ii STATEMENT OF ISSUES...1 STATEMENT OF FACTS...1 SUMMARY OF ARGUMENT...4 ARGUMENT...4 I. THE JURY WAS PROPERLY INSTRUCTED ON THE ELEMENTS OF CAPITAL MURDER....4 II. THE TRIAL COURT PROPERLY DENIED FITZPATRICK S MOTION FOR NEW TRIAL AS THE JURY S VERDICT IS IN ACCORD WITH THE OVERWHELMING WEIGHT OF THE EVIDENCE....7 CONCLUSION...9 CERTIFICATE OF SERVICE...10 i

TABLE OF AUTHORITIES STATE CASES Bush v. State, 895 So.2d 836, 844 (Miss. 2005)...7 Catchings v. State, 684 So. 2d 591 (Miss. 1996)...6 Davis v. State, 914 So. 2d 200 (Miss. Ct. App 2005)...6 Hansen v. State, 592 So.2d 114, 146 (Miss. 1991)...8 Mallett v. State, 606 So. 2d 1092 (Miss. 1992)...6 Mease v. State, 539 So. 2d 1324 (Miss. 1989)...5 Rubenstein v. State, 941 So. 2d 735, 771 (Miss. 2006)...5 Stevenson v. State, 733 So. 2d 177 (Miss. 1998)...6, 8 Wash v. State, 931 So.2d 672 (Miss. Ct. App. 2006)...7 STATE STATUTES Miss. Code Ann. 97-3-19(1)(a)...5 Miss. Code Ann. 97-3-19(2)(a)...5 Miss. Code Ann. 97-3-19(2)(b)...8 ii

IN THE SUPREME COURT OF MISSISSIPPI FRANKLIN FITZPATRICK APPELLANT VS. NO. 2014-KA-00252-SCT STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE STATEMENT OF ISSUES I. THE JURY WAS PROPERLY INSTRUCTED ON THE ELEMENTS OF CAPITAL MURDER. II. THE TRIAL COURT PROPERLY DENIED FITZPATRICK S MOTION FOR NEW TRIAL AS THE JURY S VERDICT IS IN ACCORD WITH THE OVERWHELMING WEIGHT OF THE EVIDENCE. STATEMENT OF FACTS On the night of December 2, 2010, Franklin Fitzpatrick and Joani Clifton consumed a 1 designer drug commonly referred to as bath salts. T. 320-321, 482, 600. While there may be different ways to consume bath salts, the testimony shows that Fitzpatrick dissolved and then intravenously injected the drug. T. 601. Some time later, around midnight, Fitzpatrick and Clifton went to Matthew Thrasher s house where they all consumed marijuana and crystal meth. T. 244, 537-538. Fitzpatrick also consumed more bath salts there. T. 482-483. At around 4 a.m., it became apparent that Fitzpatrick had consumed too much and he started tripping out. T. 252, 253, 255. Fitzpatrick began sweating and speaking irrationally and stated that he felt like he was going to die. 1 The actual name of the drug Fitzpatrick consumed is 3,4-methylenedioxypyrovalerone, or MDPV for short. T. 567. 1

T. 253-255. After retrieving a wet washcloth for Fitzpatrick, Thrasher was attacked by Fitzpatrick who began slinging [him] around like a rag doll. T. 254. Thrasher finally broke loose and ordered Fitzpatrick and Clifton to leave. T. 254-255. Only a couple of minutes after driving off with Fitzpatrick, Clifton texted Thrasher, He s going to hurt me. T. 256. Clifton then turned around and drove back to Thrasher s house, as she was afraid that she could not handle Fitzpatrick by herself. T. 257, 325. Thrasher called 911to report the disturbance and ask for assistance. T. 259, 301. When Clifton pulled up on Thrasher s property, Fitzpatrick got out of the vehicle and Clifton locked herself in for safety. T. 325-326. Tippah County Sheriff s Deputy Rodney Callahan then arrived on the scene. T. 259, 325-326. Callahan approached and observed that Fitzpatrick was sweating, pacing, and appeared distraught. T. 350-351. Callahan asked Fitzpatrick what was going on, and Fitzpatrick kept 2 repeating that the devil was coming to get him. T. 350-351. Unsure whether Fitzpatrick was on drugs or suffering from some medical condition, Callahan called an ambulance. T. 352. Fitzpatrick then approached Callahan, touching the sleeve of his uniform as he asked Callahan to pray with him. T. 352. Callahan advised Fitzpatrick that he could not come at him like that again or he would have to tase him. T. 352. Fitzpatrick acknowledged Callahan s authority and backed off. T. 353. Callahan spent the next several minutes trying to get Fitzpatrick to calm down. T. 264-265, 328, 352-354. However, Fitzpatrick kept verbalizing his fear that Callahan may shoot him, although Callahan never drew his weapon and repeatedly told Fitzpatrick that he only wanted to talk to him. 2 Fitzpatrick did not hallucinate seeing a little girl staring at him. Rather, Deputy Callahan testified that a few months prior he encountered another subject who was sweating and acting similar to Fitzpatrick. T. 361. That subject, who hallucinated seeing a little girl staring at him, was suffering from low blood sugar. T. 361-362. The relevance of this testimony was simply to show that it was not immediately apparent to Callahan what he was dealing with. 2

T. 265, 296. Several minutes later, Deputy Dewayne Crenshaw arrived on the scene. T. 264, 310, 357. Callahan advised Crenshaw that Fitzpatrick was acting unnatural. T. 358. Both deputies tried to convince Fitzpatrick to calm down, advising that an ambulance was on the way. T. 360-361. Fitzpatrick continued his paranoid rambling, and the deputies reassured him that they had no intention of harming him. T. 361. The deputies did, however, decide that it would be best to handcuff Fitzpatrick for their safety and his while they waited on the ambulance to arrive. T. 361. As Callahan approached Fitzpatrick to handcuff him, Fitzpatrick rushed toward Callahan and grabbed him around his torso. T. 362-363. Callahan attempted to stun Fitzpatrick with his flashlight, but dropped it in the scuffle. T. 362-363. Callahan punched Fitzpatrick in the face to get him off of him. T. 364-365. Fitzpatrick released Callahan, but Callahan then heard two shots fired. T. 365. Callahan initially thought that Crenshaw fired at Fitzpatrick, but when he stepped back and reached for his weapon, it was not in his holster. T. 365. Callahan then ran for cover. T. 365. Deputy Crenshaw had been fatally shot by Fitzpatrick with Callahan s service weapon. T. 433, 575. Callahan next encountered Fitzpatrick, who no longer had possession of Callahan s service weapon, near Callahan s patrol unit. T. 382. Callahan attempted to take him off his feet, but after much fighting and struggling, they were at a stalemate. T. 382. Paramedics and other law enforcement arrived shortly thereafter. It took four or five people approximately twenty-five minutes to subdue Fitzpatrick. T. 269, 330, 383, 434-435, 555-557, 577. In the process, Fitzpatrick broke free from the straps on the stretcher they placed him on and was ultimately secured with duct tape. T. 269, 387, 436. Fitzpatrick was taken to the emergency room. Afterward, he was transported to the Union County Sheriff s Department, where he gave a statement to agents with the Mississippi Bureau of 3

Investigation. In that statement, Fitzpatrick described his drug use that night, his subsequent paranoid thoughts, and his altercation with Thrasher. T. 482-483. He recounted leaving and coming back with Clifton, and police pulling up behind them and walking up to Clifton s vehicle. T. 482-483. From there, Fitzpatrick s version of events diverged from what actually happened. He claimed remembering being handcuffed and placed in the back of a vehicle where he passed out. T. 482-483. Fitzpatrick was ultimately tried and convicted of capital murder. He was sentenced as a habitual offender to life without the possibility of parole. SUMMARY OF ARGUMENT The capital murder elements instruction did not erroneously state that Fitzpatrick could be guilty of the capital murder of a law enforcement officer if the killing was committed while in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life. This Court has previously held that there is no requirement that the capital murder of a law enforcement officer be committed with deliberate design. The State proved each element of crime of capital murder of a law enforcement officer beyond a reasonable doubt, and did so with competent, credible evidence. The evidence showed that Fitzpatrick shot and killed Deputy Crenshaw and that he knew or should have known that Crenshaw was a law enforcement officer. ARGUMENT I. THE JURY WAS PROPERLY INSTRUCTED ON THE ELEMENTS OF CAPITAL MURDER. Fitzpatrick was charged with and convicted of capital murder pursuant to Mississippi Code Section 97-3-19(2)(a), which states: The killing of a human being without the authority of law by any means or in any 4

manner shall be capital murder in the following cases: Murder which is perpetrated by killing a peace officer... while such officer... is acting in his official capacity or by reason of an act performed in his official capacity, and with knowledge that the victim was a peace officer.... Miss. Code Ann. 97-3-19(2)(a). The elements instruction informed the jury that it could convict Fitzpatrick of capital murder if it found that he killed Deputy Crenshaw with either deliberate design or while in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life if he knew or should have known that Deputy Crenshaw was a law enforcement officer in the line of duty. C.P. 185. Fitzpatrick argues for the first time on appeal that the capital murder elements instruction included an erroneous statement of law by inclusion of depraved heart murder. Because Fitzpatrick did not raise this objection at trial, he is procedurally barred from attacking the elements instruction 3 for the first time on appeal. Rubenstein v. State, 941 So. 2d 735, 771 ( 154) (Miss. 2006). In addition to being procedurally barred, Fitzpatrick s claim is also without merit. Relying on a footnote in Mease v. State, 539 So. 2d 1324 (Miss. 1989), Fitzpatrick claims that the term murder in Mississippi Code Section 97-3-19(2)(a) means deliberate design murder. Therefore, he claims, it was error to instruct the jury that it could find him guilty of capital murder if it found that he killed Crenshaw while in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life. Footnote 1 in Mease says what Fitzpatrick says it says. The word murder within [Section 97-3-19(2)(a)] takes its meaning from Miss. Code Ann. 97-3-19(1)(a), the deliberate design murder statute. Mease, 539 So. 2d at 325 fn1. However, this footnote is mere dicta and in conflict 3 During the jury instruction conference, defense counsel did object to instruction S-2, but not on the grounds raised for the first time on appeal. T. 618-627. Objection on one ground waives all other grounds on appeal. Rubenstein, 941 So. 2d at 773 ( 163). 5

with controlling case law. Fitzpatrick acknowledges this Court s holding in Stevenson v. State, 733 So. 2d 177 (Miss. 1998). In Stevenson, the appellant argued that he could not be guilty of the capital murder of a law enforcement officer because the State presented no evidence of malice aforethought. Id. at 186 ( 31). The Court explicitly rejected the argument, holding that malice aforethought is not an element of capital murder of a peace officer. Id. at ( 33). Additionally, in Davis v. State, 914 So. 2d 200 (Miss. Ct. App 2005) (cert. denied), then Chief Judge King writing for the court provided further analysis for why deliberate design or malice aforethought was not required for the capital murder of a law enforcement officer. There, the court rejected Davis s claim that the elements instruction amended the indictment by instructing the jury that it could find him guilty of capital murder if it found that he killed the officer while engaged in an act eminently dangerous to others and evincing a depraved heart regardless of human life. Id. at 203-204 ( 14-16). The court, citing Catchings v. State, 684 So. 2d 591 (Miss. 1996), reiterated that this Court has consistently held that depraved heart murder subsumes deliberate design/premeditated murder. Id. See also Mallett v. State, 606 So. 2d 1092 (Miss. 1992) ( There is no question that the structure of the statute suggests two different kinds of murder: deliberate design/premeditated murder and depraved heart murder. The structure of the statute suggests these are mutually exclusive categories of murder. Experience belies the point. As a matter of common sense, every murder done with deliberate design to effect the death of another human being is by definition done in the commission of an act imminently dangerous to others and evincing a depraved heart, regardless of human life. Our cases have for all practical purposes coalesced the two so that 6

Section 97-3-19(1)(b) subsumes (1)(a). ). 4 Accordingly, under the authority of Stevenson and Davis, the capital murder elements instruction given in the present case included no incorrect statement of law. II. THE TRIAL COURT PROPERLY DENIED FITZPATRICK S MOTION FOR NEW TRIAL AS THE JURY S VERDICT IS IN ACCORD WITH THE OVERWHELMING WEIGHT OF THE EVIDENCE. Fitzpatrick frames his second assignment of error as a challenge to the weight of the evidence. However, much of his argument touches on legal sufficiency. To be sure, the State proved beyond a reasonable doubt that Fitzpatrick committed each element of the crime of capital murder of a law enforcement officer, and did so with competent, credible evidence. In determining whether the State proved each element of the offense beyond a reasonable doubt, all evidence supporting the guilty verdict must be accepted as true. Wash v. State, 931 So.2d 672, 673 ( 5) (Miss. Ct. App. 2006). Additionally, the State is given the benefit of all inferences which may reasonably be drawn from the evidence. Id. When reviewing a claim that a conviction is against the weight of the evidence, a reviewing court will not disturb the verdict unless allowing it to stand would sanction an unconscionable injustice. Bush v. State, 895 So.2d 836, 844 ( 18) (Miss. 2005). Much of Fitzpatrick s argument in his second assignment of error is simply a repetition of his first argument, that the State was required to prove that he killed Deputy Crenshaw with deliberate design. Again, under the authority of Stevenson and Davis, the State was not required to show that Fitzpatrick killed Deputy Crenshaw with deliberate design. Fitzpatrick goes on to argue 4 Catchings and Mallett have been cited by our reviewing courts no less than thirty-one times for this point of law. 7

that in a capital murder of a peace officer case, the defendant is entitled to a manslaughter instruction where the evidence so warrants. Fitzpatrick received a culpable negligence manslaughter instruction in this case. C.P. 187. Fitzpatrick also questions the State s evidence regarding whether Fitzpatrick was aware that Deputy Crenshaw was a law enforcement officer. Mississippi Code Annotated 97-3-19(2)(b) requires that the defendant kill with knowledge that the victim was a peace officer in order to be guilty of capital murder. Whether the defendant knew that the victim was a peace officer can of course only be determined from an objective standpoint, unless the defendant admits that he knew the victim was an officer. In discussing this particular variety of capital murder, this Court has stated the following. This statute reflects the [S]tate s special interest in protecting law enforcement officers. To bring a case within the statute, the evidence must reflect that the victim was a peace officer acting in the course of his official duties and that, at the time of the killing, the defendant knew or should have known of this fact. Stevenson v. State, 733 So.2d 177, 186 ( 32) (Miss. 1998) (quoting Hansen v. State, 592 So.2d 114, 146 (Miss. 1991) (emphasis added)). The evidence presented at trial shows that the defendant in fact knew that Deputy Crenshaw was a law enforcement officer. At the very least, the evidence showed that he should have known that Deputy Crenshaw was a law enforcement officer. Thrasher and Clifton, who consumed the very same drugs Fitzpatrick had, were fully aware that Callahan and Crenshaw were law enforcement officers. T. 262, 326. The deputies arrived in marked cars, were in uniform, and had badges and gun belts. T. 262, 326, 350, 357. Further, when Fitzpatrick and Callahan were face to face and Fitzpatrick placed his hand on the deputy, Callahan advised him, Don t come on me like that again or I ll have to tase you. T. 352. Deputy Callahan testified that Fitzpatrick recognized his authority 8

as a law enforcement officer and backed off. T. 353. Callahan then reholstered his Taser. T. 353. Shortly thereafter, Deputy Crenshaw, in uniform, arrived in another marked vehicle and within close proximity to the defendant attempted to calm him down. Additionally, shortly after the murder, Fitzpatrick gave a statement indicating his awareness that Callahan and Crenshaw were law enforcement officers. T. 482-483. All of the evidence presented to the jury showed that the State proved beyond a reasonable doubt that Fitzpatrick knew or should have known that Crenshaw was a law enforcement officer. The jury was properly instructed on capital murder, depraved heart murder, and culpable negligence manslaughter. The State sufficiently proved by competent evidence that Fitzpatrick was guilty of capital murder of a law enforcement officer. The jury s verdict is in accord with the overwhelming weight of the evidence and sanctions no unconscionable injustice. CONCLUSION For the foregoing reasons, the State asks this honorable Court to affirm Fitzpatrick s conviction and sentence. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE: (601) 359-3680 BY: /s/ La Donna Holland LA DONNA HOLLAND SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO. 101888 9

CERTIFICATE OF SERVICE I, LA DONNA C. HOLLAND, hereby certify that on this day I electronically filed the foregoing pleading or other paper with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Further, I hereby certify that I have mailed by United States Postal Service the document to the following non-mec participants: Honorable Andrew K. Howorth Circuit Court Judge 1 Courthouse Square Suite 201 Oxford, MS 38655 Honorable Ben Creekmore District Attorney 1301 Monroe Avenue Oxford, MS 38655 Justin T. Cook, Esq. Indigent Appeals Division Office of State Public Defender P. O. Box 3510 Jackson, MS 39207-3510 This the 25th day of November, 2014. OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE NO. 602-359-3680 FAX NO. 601-576-2420 Email: /s/ La Donna C. Holland LA DONNA C. HOLLAND SPECIAL ASSISTANT ATTORNEY GENERAL 10