IN THE COURT OF APPEALS

9/9/97

OF THE

STATE OF MISSISSIPPI

NO. 95-KA-00404 COA

DOUGLAS D. WILLIAMS A/K/A DOUGLAS

DWAYNE WILLIAMS APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND

MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. WILLIAM F. COLEMAN

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: CHARLES E. GRIFFIN

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY: EDWARD J. PETERS

NATURE OF THE CASE: CRIMINAL-FELONY

TRIAL COURT DISPOSITION: CT I MURDER: CT II MURDER: CT III MURDER: CT I

SENTENCED TO LIFE: CT II SENTENCED TO LIFE; SENTENCE TO RUN CONSECUTIVE

TO CT I; CT III SENTENCED TO LIFE; SENTENCE TO RUN CONSECUTIVELY TO CT I

AND CT II

MOTION FOR REHEARING FILED: October 14, 1997

PETITION FOR CERTIORARI FILED: December 29, 1997

MANDATE ISSUED: 4/10/98

BEFORE THOMAS, P.J., HERRING, AND SOUTHWICK, JJ.

SOUTHWICK, J., FOR THE COURT:

Douglas Williams was convicted of three counts of murder in the Circuit Court of Hinds County and

sentenced to serve three consecutive life terms. He appeals, arguing that the trial court should have

granted him bail pending his appeal, that the trial court erred in denying his motion for a new trial

where the jury founded its verdict on an erroneous jury instruction, and the court erred in allowing

Williams to be convicted of a crime not charged in the indictment. Finding no error, we affirm.

FACTS

On November 14, 1993, around 2:30 a.m., Roger Harris was standing in the center line on Mill

Street in Jackson, waiting for traffic to pass so that he could cross. A black Jeep Cherokee driven by

Harold Williamson passed him going north on Mill Street. Harris, thinking the Jeep was trying to hit

him, fired a handgun at the Jeep.

The shot hit Harold Williamson's sister in law, Doris, who was riding in the back of the Jeep with

Harold's brother, Hosea. Harold's wife, Sarah, was riding in the passenger seat next to Harold.

Harold stopped the Jeep. Hosea got out and confronted Harris as to why he was shooting at them,

and Harris shot him in the legs. Harold got out of the Jeep and fired his weapon towards Harris. Then

he got back into the Jeep and attempted to drive it to pick up Hosea. While Harold was trying to get

Hosea into the Jeep, two of Harris's friends came out of the nightclub and started shooting at the

Jeep. One of Harris's friends was the defendant, Douglas Williams, and he was shooting a nine

millimeter pistol. The other friend was shooting an assault rifle.

After Harold was shot, he wrecked the Jeep by hitting a light pole. Harold, Hosea, and Doris died.

Sarah, Harold's wife, survived and testified at trial.
DISCUSSION

I. Appeal bond

Williams argues that the lower court should have granted his request to be released on bail pending

his appeal. The trial court had discretion to deny bail. "Where the defendant has been convicted of

treason, murder, rape, arson, burglary or robbery, the granting of bail is within the discretion of the

trial judge..." UCRCCP. Rule 6.02. The Mississippi Code also allows a judge discretion in deciding

whether to grant bail when an appeal is pending. See Miss. Code Ann. §99-35-115 (Rev. 1994). The

defendant in this case was convicted of three counts of murder. The judge did not abuse his

discretion in denying bail.

II. Jury instruction on aiding and abetting

Williams argues that his conviction should be discharged because the jury based its finding of guilt on

an erroneous jury instruction and expressly stated that it would not have found the defendant guilty

on the remaining instructions.

The jury instruction at issue reads:

The Court instructs the Jury that if you believe from the evidence in this case beyond a reasonable

doubt that the defendant, Douglas D. Williams, on or about November 14, 1993, was present and

knowingly, intentionally and wilfully joined and participated with another or others who killed any of

the deceased persons with the premeditated and deliberate design to effect the death of them, or

either of them, with malice aforethought, you should find the defendant "guilty as charged" as to the

deceased persons who were so killed by such other or others with whom he so joined and

participated.

You should also find the defendant, Douglas D. Williams, "guilty as charged" if you find from the

evidence beyond a reasonable doubt that either or all of the deceased persons were killed as the result

of conduct eminently dangerous to human life and evincing a depraved heart, although without any

premeditated design to effect the death of either or all of the deceased persons, and not in necessary

self-defense, if you find that Douglas D. Williams was present and knowingly, intentionally and

wilfully joined and participated in said conduct.

During deliberations, the jury sent a note to the court which read:

The jury would like to know if the second paragraph of jury instruction number 9 is an accurate

statement of the law.

The court answered the jury's question with a simple, "yes."

There is no question that the jury relied on the instruction, because when it returned its verdict of

guilty on all three murder charges, it included a note which read:
If appropriate, the jury would like for the court to know that the verdict is based on jury instruction

number 9, paragraph 2.

Upon request from defense counsel and over the objection of the State, the judge asked the jury,

"Am I to assume from that [the note] that you would not have found the defendant guilty but for

Instruction Number 9, Paragraph 2?" The foreman answered, "That's correct," and the rest of the jury

agreed.

If a defendant is proven to have aided and abetted a crime, he can be indicted as a principal and

convicted as such. State v. Labella, 232 So. 2d 354, 355 (Miss. 1970). As long as the State proved

that the crime charged was actually committed and that the appellant had aided and abetted in its

commission, then he could be convicted as a principal. See Smith v. State, 115 So.2d 318, 323 (Miss.

1959).

Williams's first argument is that he was on notice from the indictment that he was being charged with

being the principal, but on the eve of trial learned he was to be tried as an aider and abettor. He

argues that this change in theory was prejudicial. Without knowing the preparations made by defense

counsel, it is sufficient to say that counsel must prepare for what the indictment charges. As set out

above, an indictment as a principal permits trying and finding guilt of an aider and abettor.

The next argument is that the instruction inaccurately stated the law and was confusing. The alleged

defect arises from the fact that the principal need not have had a design to cause death, but only have

committed an act eminently dangerous to human life. Williams as an aider and abettor must then have

"knowingly, intentionally and willfully joined" in the conduct. As Williams states, "one cannot share a

knowing, intentional and willful state of mind with someone to kill a human being when the person

with whom they are supposed to share this knowing, intentional and willful state of mind is found not

to have said state of mind."

Williams is mixing sections of the instruction. The murder statute permits someone to be convicted

even if that person had no design to cause death, if the person committed a sufficiently dangerous act

that caused the death. An aider and abettor must "knowingly, intentionally and willfully" join in the

commission of the inherently dangerous act, but neither principal nor abettor need have intended the

death of the victim.

The instruction was an accurate statement of the law, and permits the verdict reached.

III. Motion for new trial

Williams argues that because the jury instruction was erroneous, his motion for a new trial should

have been granted. Because we find the instruction was proper, it is not necessary to address this

issue.

IV. Variance between indictment, evidence, and instructions

Williams argues that he was convicted of a crime that was not charged in the indictment. He argues
that the State was allowed to present several different theories of murder when he was only charged

in the indictment with deliberate design murder and not depraved heart murder. He argues it was

error for him to be forced to defend under these different theories.

The defendant was indicted under section 97-3-19 Miss. Code Ann. (Rev. 1994), which reads, in

pertinent part,

§97-3-19. Homicide; murder defined; capital murder.

(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;

(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 . . . .

Williams argues that because the indictment only has the language in §97-3-19(1)(a), and the jury

came back with a verdict based on § 97-3-19(1)(b), that the court should reverse his conviction as

being convicted of a crime outside of the indictment. He argues that the instruction constituted an

amendment to the indictment and cites the long standing rule that "the state can prosecute only on the

indictment returned by the grand jury and . . . the court has no authority to modify or amend the

indictment in any material respect." Quick v. State, 569 So. 2d 1197, 1199 (Miss. 1990).

Quick dealt with the aggravated assault statute. Our supreme court has distinguished Quick in murder

cases, and held that where the defendant is indicted under §97-3-19(1)(a) the defendant can be

convicted under §97-3-19(1)(b) because the two sections have "coalesced."

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

Section 97-3-19(1)(b) subsumes (1)(a). Mallett v. State, 606 So.2d 1092, 1095 (Miss. 1992).

Catchings v. State, 684 So. 2d 591, 598 (Miss. 1996).

Williams was not convicted of a crime outside the indictment. He was charged under Section 97-3-19

and convicted under the same statute.

THE JUDGMENTS OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF

THREE COUNTS OF MURDER AND THREE SENTENCES OF LIFE IN THE CUSTODY

OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, TO RUN CONSECUTIVELY,

ARE AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO APPELLANT.
BRIDGES, C.J., THOMAS, P.J., COLEMAN, DIAZ, HERRING, HINKEBEIN, KING, AND

PAYNE, JJ., CONCUR.

MCMILLIN, P.J., NOT PARTICIPATING.