IN THE SUPREME COURT OF MISSISSIPPI NO. 2014-KA-00252-SCT FRANKLIN FITZPATRICK a/k/a FRANKLIN L. FITZPATRICK

v. STATE OF MISSISSIPPI

DATE OF JUDGMENT: 05/10/2013 TRIAL JUDGE: HON. ANDREW K. HOW ORTH TRIAL COURT ATTORNEYS: JOSHUA A. TURNER COURT FROM W HICH APPEALED: TIPPAH COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN T. COOK GEORGE T. HOLMES ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LADONNA C. HOLLAND DISTRICT ATTORNEY: BEN CREEKMORE NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 07/23/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. WALLER, CHIEF JUSTICE, FOR THE COURT: ¶1. F r a n k l i n F i t z p a t r i c k mu r d e r e d S h e r i f f ’s Deputy Deway

ne Crenshaw. He w a s convicted and sentenced to lif e i n prison without the possibility of parole. Three issues are rai s e d o n appeal: (1) whether the jury instruction allowed f or conviction w ithout a proper showing of th e r e q u i s i t e m ental state, (2) whether t he trial court erred when it overruled Fitzpatrick ’ s mo tion f

or new trial based o n the weight of t he evidence, and (3) whether Fitzpatrick is procedurally barred f rom challenging the elem ents jury instruction on appealbecause he did not object to it at trial. Because t he jury instruction was a correct statem ent

of the law, a nd Fitpatrick’s argum ents are otherwise without m erit, we af f i rm Fitzpatrick’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY ¶2. On Decem

ber 2, 2010, Franklin Fitzpatrick and Joani Clif ton purchased a sy

nthetic stim ulant com m only ref

erred to a s “ b a t h salts” f r om a convenience store in Mantachie, Mississippi. 1 T hese sy

n thetic d r ugs can c ause i nd i viduals to becom e aggressive and hallucinate, experienc i n g what is ref erred to as am

p hetam ine p sy chosis. A t the t im e Fitzpatrick purchased and consum ed the drug, bath salts were not illegal under Mississippi law. ¶3. Af ter obtaining the bath salts, Fitzpatrick and Clif ton d rove to Pontotoc, where they both consum ed som e of the d rug. Af terward, t he two went to the hom e of Matt Thrasher, a f rien d o f C l i f

ton, in Tippah C ounty

. There, Fitzpatrick ingested m ore b ath salts and

consum ed m arijuana and cry s tal m etham phetam ine. ¶4. In t he early m o rning hour s o f D e c e m ber 3, it becam e a

pparent that Fitzpatrick had “taken too m

u ch” bath salts, a nd he began to act erratic. At one point, Fitzpatrick took out his c e l l p h one a nd called Clif ton, who was seated right next to him

. He began s weating, hallucinating, “talking out of his head,” and claim ing to see the devil.

1 The term

“bath salts” is a euphem ism u sed by m anuf acturers o f

sy n thetic designer d r ugs. The actual chem ical Fitzpatrick ingested w as 3, 4-m ethy lenedioxy p y rovalero n e , o r MDPV. 2¶5. Thrasher brought Fitzpatrick a wet rag to cool him of f , b u t F i t z p a t r i c k b e c am e aggressive a nd the two started to f ight. Thrasher s t ated Fitzpa t rick w as “slinging [ him ] around l ike a rag doll,” but he som ehow broke loose. Thrasher then ran t o his p arents’ house, which was nearby , and called 911. Clif t on and Fitzpatrick l ef

t in C lif ton’s vehicle, but shortly af ter pulling away , Clif

ton decided she was too intoxicated to handle a hallucinating and aggressive Fitzpatrick while driving. She also was scared that Fitzpatrick would “hurt [ her],”

so she drove back to T hrasher’s house. D e p u t i e s f r om the T ippah County Sherif f ’s Departm ent soon arrived. ¶6. Deputy Rodney Callahan was the f irst of f icer on the scene. W hen he g ot to Thrasher’s house, Fitzpatrick was pacing in the driveway w earing just a t-shirt and sweating prof usely , despite i t being a chilly Decem ber n i g ht. Deputy Callahan recalled that Fitzpatrick was “really w et” when he arr i v e d a nd that the whites of Fitzpatrick’s ey e s were “really large.” Of f icer Callah a n t estif

ied that Fitzpatrick k ept pacing back and f o rth, licking his lips. Fitzpatrick repeatedly requested that Deputy Callahan pray w ith him , and he kept say ing that he thought the devil was “com i ng to get” him

. Deputy Callahan described F i t z p a t r ick as irrational and hallucinating. ¶7. Deputy Callahan a s k e d F i t z p a t r i c k w h a t was going on, but Fitzpatrick just kept repeating that the devil was com ing f or him . Unable to discern whether Fitzpatrick was on drugs or suf

f ering f rom som e m e d i c a l condition, Deputy Callahan called an am bulance. Fitzpatrick then approached Deputy C allahan, touching t he s leeve of his unif orm as he asked Deputy Callahan t o pray with h im

. Deputy Callahan advised Fitzpatrick not t o approach h im

3like that again or he would tase him

. Fitzpatrick backed o f f , and D eputy Callahan spent the

next several m inutes try ing to get Fitzpatrick to calm down. Fi t z p a t r i ck, however, began expressing his f

ear that Deputy Callahan m ight shoot him , although the Deputy never drew his weapon and repeatedly told Fitzpatrick that he only wanted to talk. ¶8. W i thin m inutes of Deputy Callah a n ’ s a r r i v a l , D e p u t

y D e w a y n e C r e n s h a

w a l s o arrived. The deputies continued to try to calm Fitzpatrick down but concluded it was best f or his and their own saf

ety if they restrained Fitzpatrick. W hen the deputies attem pted to handcuf

f him , Fitzpatrick resisted, and a s cuf f l e ensued. During t his encounter, Fitzpatrick gained control of Deputy Callahan’s service weapon and used it to kill Deputy Crenshaw. W hen he f irst heard the shots, Deputy Callahan thought Deputy Crenshaw had shot Fitzpatrick, but when he reached f

or his weapon and i t was n ot there, he realized what had happened. Fitzpatrick had y anked Deputy Callahan’s w eapon f r om his h olster during the struggle and had used it to shoot Deputy

Crenshaw. ¶9. Deputy Call a h a n i m m ediately took cover behind Clif ton’s SUV, which was parked
in f ront of his patrol car. From there, he noticed Fitzpatrick no longer had the pistol, so he decided to try to subdue h im

. An intense struggle ensued, but Deputy Callahan c ould not gain the upper hand. Fortunately , at this point, t he am bulance that Deputy Callahan had requested when he f irst got to Thrasher’s house arrived. ¶10. D e p u t y C a l l a h a n , d e s pite being in a f ierce struggle with F itz p a t r i c k , t o l d t h e
param edics to f

irst check on Deputy Crenshaw, but it was too l a t e . D e p uty Crenshaw was

4dead. Af

ter tending to D eputy Crenshaw, the p aram edics joined the s truggle to subdue Fitzpatrick. In the end, it took f o ur or f ive people to bring Fitzpatrick under control. ¶11. Several witnesses testif ied that Fitzpatrick w as incoherent and acting bizarrely during

t h i s w h o l e ordeal. I n f

act, one param e dic stated that Fitzpatrick “probably didn’t know he

was d oing like he was. W hen h e was wrestling with us, I don’t even know if h e knew he was wrestling with us.” ¶12. Once in custody , Fitzpatrick was t aken to the em ergency room of a nearby hospital.
A search warrant was obtained f or his blood, w h ich tested p ositive f or m a r i j uana and

m ethy lenedioxy

py rovalerone (MDPV), the chem ical com ponent in bath s alts. A subsequent urine analy sis also showed Fitzpatrick had m etham phetam ine in his sy stem

at the tim e. ¶13. Later, Fitzpatrick, af ter waiving his Miranda 2 rights, gave a statem ent t o t he police.
He claim ed he had no r ec o llection of the events t hat night af ter he and C lif

ton returned to Thrasher’s house af

ter attem pting to leave. ¶14. On January 18, 2011, a Tippah C o u n t y g r a n d j u r y returned a n indictm ent against Fitzpatrick, charging him w i th capital m urder of a p eace of

f icer. Af ter a change of venue, Fitzpatrick was tried in Laf ay ette County with jurors f rom A ttala County

. On May 9, 2013,

t h e jury returned a verdict of guilty of capital m urder. Fitzpatrick waived his right to a sentencing hearing, and the State r ecom m ended he be sentenced to lif e without parole f

or the

m urder of a police o f

f icer a nd as a habitual of

f ender under Mississippi C ode Section 99-19-
81. S ubsequently , Fitzpatrick f iled a tim ely m otion f

or a jud g me n t notwithstanding the

2 M ira n d a v. A r izo n a , 3 8 4 U .S

. 4 3 6 , 8 6 S . C t. 1 6 0 2 , 1 6 L . E d . 2 d 6 9 4 (1 9 6 6 ). 5verdict (JNOV) or alternative l y a n e w t r i al, w hich the trial judge denied. F itzpatrick now

appeals, raising two issues: 3
1. Whether t he State’s elem ents instruction contained a n im pro per statem ent of the law . 2. Whether the trial court erred w hen it overruled F itzpatrick’s m otion for a new t rial because the overw helm i ng w eight of the e vidence does not support a conviction for capital m urder of a peace officer. The State raises a third issue:
3. Whether Fitzpatrick is procedurally barred from challengin g t he elem ents jury instruction on appeal because he d id not object to it at trial.
DISCUSSION
1. Whether t he State’s ele m ents instruction contained an im proper statem ent of the law . Standard of Review ¶15. Fitzpatrick’s f

i rst issue asserts the trial c ourt m ade a n error o f law regarding the mens

rea r e q u irem e nt under Mississippi Code Section 97-3-19(2)(a). Because the interpretation of a statute is a question of l aw, we r e view d e novo . Gilm er v

. State , 9 5 5 S o . 2d 829, 833 (Miss. 2007). Analysis

3 T h e d isse n t raises a f

o u rth issu e reg ard in g F itzp a trick ’s in d ictm en t

. B ecau se th is issu e is n o t p ro p erly b ef

o re th e C o u rt, w e d o n o t ad d ress it. S ee S m ith v. S ta te , 9 8 6 S o . 2 d 2 9 0 , 2 9 5 (M iss. 2 0 0 8 ) (“T h is C o u rt can n o t f in d th a t a trial j u d g e co m m itted rev ersib le erro r o n a m a t ter n o t b ro u g h t b ef o re h im o r h er to co n sid er.”); M o n tg o m ery v. S

ta te , 8 9 1 S o . 2 d 1 7 9 , 1 8 7 (M iss. 2 0 0 4 ).

6¶16. Fitzpatrick contends the trial court erred i n not requiring a f inding o f deliberate design

or m alice af

orethought under Section 97-3-19(2)(a). The jury instruction provided allowed the jury to f

ind Fitzpatrick guilty of capital m urder if he acted with either deliberate design

or a depraved heart. Because this jury instruction is c onsistent with the laws of M ississippi, we f ind the trial court applied the correct legal standard. ¶17. F i t z p a t r i c k w as c onvicted of c apital m urder f or killing an on-duty peace o f f i c e r . Fitzpatrick argues the statute requires the State to prove m alice a f orethought, b u t t h e j u ry instruction allowed conviction without such a showing. This Court agrees that the elem ents instruction allowed Fitzpatrick t o be convicted of capital m urder of a police of

f icer without

a showing of m alice a f

orethought; however, no such showing is required under the statute. See Miss. Code Ann. § 97-3-19(2)(a) (Rev. 2014). ¶18. The statute, in pertinent part, states: (2) The killing of a hum an b eing without the authority of law by any m eans or in any m anner shall be capital m urder in the f

ollowing cases: ( a ) Murder w hich is perpetrated b y killing a peace of f icer or f irem an w hile such of

f icer or f i rem a n is acting i n his of f i cial capacity or by reason of an a c t perf o rm ed in his of

f i cial capacity , and with knowledge that t he v ictim was a peace of f i cer or f irem an . . . . Miss. Code Ann. § 97-3-19(2)(a) (Rev. 2014). ¶19. This Court has interpreted this statute as requiring no showing of m alice af orethought

or deliberate design. Stevenson v. State , 733 So. 2d 17 7 , 1 8 6 ( M i ss. 1 998), overruled on other g rounds by Bonds v. State , 138 So. 3 d 914 (Miss. 2014). In Stevenson , the Court provided that, because the “statute ref le cts the [ S]tate’s special interest in protecting law

7enf

orcem ent of

f icers

. . . m a l i c e a f

o r e t h ought is not an elem e nt of the capital m urder of a peace of f i cer.” Stevenson , 733 So. 2d at 186. ¶20. W h ile this holding is clear, Fitzpatrick argues that it is in conf lict with Mease v. State , 539 So. 2d 1324 ( Miss. 1989). In that case, the def endant did not deny that he shot a police of f icer but instead argued that the evidence showed “the gun f ired as a result of a ref

lexive action not giving rise to the required elem ents of S ection 97-3-19(2)(a)

. . . .” 4 Mease , 539
So. 2d a t 1328. Prior to analy zing the m erits of Mease’s claim , the Court n oted in a f ootnote that “m urder” under the statute m ea n t t h a t a k i l ling had b een done with deliberate design.
Id. at 1325 n.1. ¶21. The Court reached this conclusion by f inding that Se c t i o n 9 7

- 3

- 1 9 ( 1 ) ( a ) d ef ined
“m urder” in Section 97-3-19(2)(a) as requiring d eliberate design. At that tim e, Section 97-3- 19(1)(a) provided: (1) The killing of

a hum an being without the authority of law by any m e ans or in any m anner shall be m

urder in the f

ollowing cases: (a) W hen done with deliberate design to ef f e ct the d eath of the person killed, or of

any hum an being. Miss. Code Ann. § 97-3-19(1)(a) (1972). 5 The statute went on, however, to provide:

4 M ease an d th e s h erif

f w ere in a stru g g le, d u rin g w h ich M ease p u t a g u n t o th e sh erif f ’s h ead

. U n aw are M ease w as p o in tin g a g u n at th e sh e r if f , a d ep u ty stru ck M e ase tw ice in th e h ead w ith h is p isto l. T h e co n stab le’s p isto l f ired u p o n im

p act b o th tim e s. M ease claim ed th ese b lo w s to th e h e ad cau sed h i m to r ef lex iv ely an d u n in ten tio n ally s h o o t th e sh erif f

. M ease , 539 So. 2d at 1327-28.

5 T h is sectio n w as am en d ed in 2 0 1 3 an d n o w p ro v id es: (a) W hen done with deliberate design to ef f e ct the d eath of the person killed, o r of any hum an being, shall be f i r s t

- d e g ree 8(b) W hen done in the com m ission of an a ct em inently d angerous to others and evincing a depraved h eart, regardless of hum an lif e, a l t h o u gh without a ny prem editated design to ef f ect the death of any

particular individual. Id. ¶22. In the y ears f

o llowing M

ease , this Court has held that subsection (1)(b) subsum es subsection (1)(a), and that the two have “coalesced.” Catchings v. State , 684 So. 2d 591, 599 (Miss. 1996). Recently , this Court clarif ied: [ Section] 97-3-19(a) and (b), which def i ne prem editated m

urder a n d depraved heart m urder respectively have been “coalesced” b y long s tanding and widely accepted case law because, as a m atter of com m on sense, every m urder done with deliberate d esign to ef f ect the death of another hum an being is by def inition done in the com m ission of an act i m m inently dang e r o u s t o others and e vi n c i n g a d epraved heart, regardless o f hum an lif e. Catchings v. State , 684 So. 2 d 5 9 1 , 599 (Miss. 1 996). Thus, while depraved heart m urder “subsum es” deliberate design m urder, Catchings , 684 S o. 2d at 599 (quoting Mallett v. State , 606 So. 2d 1092, 1095 (Miss.1992)), the inverse is not true. In other words, all m

urders com m i t t e d with d eliberate d esign to ef f e c t the death of the person killed necessarily require a depraved heart, but depraved heart m urder does not require prem editated design. Miss. Code Ann. § 97-3- 19(a), (b) (Rev. 2006).

m u rder; (b) W hen done in the com m ission of an a ct em inently d angerous to others and evincing a depraved h eart, regardless of hum an lif e, although w i t h o ut a ny prem editated design to ef f ect the death of any particular individual, s hall be second-degree m u rder; Miss. Code Ann. § 97-3-19(1) (Rev. 2014). 9Hawkins v. State , 101 So. 3d 638, 642 (Miss. 2012) (internal quotations om itted).

Accordingly , w h e r e d e praved heart is suf f icient f or a conviction as a m atter of law, a showing of deliberate design is not required. See id. ¶23. W h ile this Court has not addressed the issue s ince Stevenson , the Court of Appeals has done s o on three occasions. Husband v . State , 23 So. 3d 550, 5 57-58 (Miss. Ct. App. 2009); White v. State , 964 S o. 2d 1 181, 1187 (Miss. Ct. App. 2 007); Davis v. S tate , 914 So. 2d 200, 206 (Miss. Ct. App. 2005). Of these three opinions, White is the m ost applicable to Fitzpatrick’s c a s e . In White , the Court of Appeals held that allowing a conviction under Section 97-3-19(2)(a) based on depraved heart was not error because deliberate design and depraved heart have “coalesced.” White , 964 S o. 2d at 1187; see also Stevenson , 733 So. 2d

at 186 (holding that m alice af o r ethought is not required under Section 97-3-19( 2 ) (a));
Husband , 23 So. 3d at 557-58; Davis , 914 So. 2d at 206. ¶24. In H

usband , two police of

f icers responded t o a dom estic-abuse call. Husband , 23 So. 3d a t 557. The police tried to t ake Husband in, b ut he resisted. I d. at 557-58. A struggle ensued, Husband gai n e d control of one of the o f f icer’s weapons and used it to kill both policem en. Id. The jury instruction provided required a showing of deliber a t e d esign, but Husband c laim ed that, b ecause such a showing was not required by the statute, its inclusion conf used the jury

. Id. The Court of A ppeals acknowledged that the statute did n ot require

a f inding of d eliberate design but held that the inclusion of that l ang u a ge was m erely surplusage. I

d . a t 558. That is, because the statute requires som ething less than deliberate design, i.e. , depraved heart, inclusion of the higher standard was harm less error. S ee id.

1 0¶25. This line of cases, h owever, does not stand f or the proposition that the State does not have to m eet the elem ents of m urder. Section 9 7-3-19(2)(a) provides t hat the “ m urder” o f a
peace of f icer or f iref i ghter i s c apital m

urder. T h e s tatute, however, f ails t o indicate which def inition of “m

urder” f rom Section 97-3-19(1) applies. See Miss. Code Ann. § 9 7 -3- 19(2)(a); see also Stevenson , 733 So. 2d at 186; M ease , 539 So. 2d at 1328. Section 97-3- 19(1) lists f

our possible def

initions of the term “m

urder.” Miss. Code Ann. § 97-3-19(1)(a)- (d). This Court and the Mississippi Court of Appeals have interpreted the statute to m ean that
“m urder” in the context of Section 97-3-19(2)(a) m eans either d epraved-heart m urder o r deliberate-design m

urder. See S

tevenson , 733 So. 2d at 186; Husband , 23 So. 3d a t 557-58;
White , 964 So. 2d at1187; Davis , 914 So. 2d at 206. Consequently , the State m ust show the killing of the p olice of

f icer (or f iref ighter) u nder Section 97-3-19(2)(a) was depraved-heart

m urder. See Catchings , 684 So. 2d at 599; Stevenson , 733 So. 2d at 186 ( noting deliberate design is not required and the s tate’s special interest in protecting law enf orcem ent of

f icers);
White , 964 So. 2d at 1187; Husband , 23 So. 3d at 557-58. ¶26. Notwithstanding this line o f cases and this Court’s h olding in Stevenson , the dissent
argues that, because the jury returned a general verdict and it was im possible to determ ine whether the jury unanim ously f ound Fitzpatrick acted with a depraved heart or with deliberate design, Fitzpatrick is e ntitled t o a n ew trial. This issue, however, w as raised neither

at trial nor on appeal. Fitzpatrick’s objection at trial and his a ssignm ent of erro r o n a p p eal is t hat the contested jury instruction is an incorrect statem ent of t he law under Section 97-3-
19. At no point h as he argued that the jury instruction was inconsistent with his indictm ent,

1 1or t hat the instruction constructively am ended the indictm ent. Accordingly , this issue is not

properly bef

ore the Court. See S

m ith v. S ta te , 9 8 6 S o . 2 d 2 9 0 , 2 9 5 (M i ss. 2 0 0 8 ) (“T h is
C o u rt can n o t f

in d th at a trial j u d g e co m m itted rev ersib le erro r o n a m atter n o t b ro u g h t b ef o re h im o r h er to c o n sid er.”); M o n tg o m ery v. S

ta te , 8 9 1 S o . 2 d 1 7 9 , 1 8 7 (M iss. 2 0 0 4 ).
M o reo v er, th is issu e d o es n o t rise to th e lev el o f p lain erro r . ¶27. The dissent relies on P hillips v. State , 493 So. 2d 350 (Miss. 1986); however, Phillips is distinguishable f

rom the current case. The Court in Phillips provided, “If a jury has been instructed that it m ay rely o n any o ne of two or m ore i ndependent grounds, and one of those grounds i s insufficient , a subsequent general verdict of guilty m ust be set aside because the verdict m ay have rested exclusively on the i nsuf f icient ground.” Phillips , 4 93 So. 2d at 355 (em phasis added). H ere, there were two independent grounds; h owever, as discussed above, either ground would h a ve bee n s u f f icient to convict Fitzpatrick, i .e. the State could have indicted him f

or and c onvicted him o f either d e l i berate design or depraved heart. See
Stevenson , 7 33 So. 2d a t 186; Catchings , 684 S o. 2d at 599 (providing deliberate design and depraved heart have coalesced); W hite , 964 So. 2d a t 1187. Consequently , Phillips is not controlling i n the instant m a tter. And im portantly , b ecause the State coul d h a ve indicted Fit z p a t r i c k f

o r a nd convicted him of either deliberate design or d epraved heart, there has been no m anif

est m iscarriage o f justice. See Flowers v. State , 158 S o. 3d 1009, 1043 (Miss. 2014) (“To reverse under the p lain error doctrine, an error m ust h ave o ccurred a nd that error

m ust have resulted in a m a nif est m iscarriage of justice or seriously af f ected the f

airness, integrity , or public reputation of judicial proceedings.”).

1 2¶28. Theref ore, we f i nd the trial court com m itted no error in providing the jury instruction at issue.
2. Whether the trial court erred w hen it overruled F itzpatrick’s m otion for a new t rial because the overw helm ing w eight of the evidence does not support a conviction for capital m urder of a peace officer. Standard of Review ¶29. “W hen reviewing a denial of a m otion f or a new trial based on an obj e c t i o n t o t he weight of the evidence, w e will only disturb a verdict when it i s s o c ontrary to the overwhelm i n g w e ight of the evidence t hat to allow it to stand would sanction an unconscionable injustice.” Bush v. State , 895 So. 2d 836, 844 ( Miss. 2005). W hile the court sits as a thirteenth j uror when considering a m otion f or a new t rial, t his discretion should be exercised with the utm ost “caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Id. Analysis ¶30. It is Fitzpatrick’s contention that, because of his e xtrem e intoxication, he was unable

to f orm the m ental state required f or a deliberate-design m

urder, and at m ost was guilty of depraved-heart m

urder. A s discussed above, deliberate-design m urd e r a nd depraved-heart

m urder have coalesced, and theref ore, Fitzpatrick’s argum ent is w i t h o u t m erit. See
Stevenson , 733 So. 2d at 186; Husband , 23 So. 3d at 557-58; Davis , 914 So. 2d at 206. In f act, in Fitzpatirck’s brief

, he a dm its “the overwhelm i ng weight of the evidence shows that [ he] should be convicted of depraved heart m urder.”

1 33. Whether Fitzpatrick is procedurally barred from challenging the

elem ents jury instruction on appeal because he did not object to it at trial. ¶31. A d ef

endant’s f ailure to object to a jury i nstruction at trial creates a p rocedural bar that prohibits a

ppellate review of the issue, unless there i s plain e rror. Berry v. State , 728 So. 2d 568, 571 (Miss. 1999). Under such circum stances, this C ourt will f ind plain error o nly where

a f undam e ntal right of the def e ndant has been violated. Id . ; Heidelberg v. State , 976 So. 2d 948, 949 (Miss. Ct. A pp. 2007). This would include where a j ury instruction f ailed t o contain

an essential elem ent o f the of f ense. Berry , 728 S o. 2d at 571; see also Hawkins , 101 So. 3d

at 643 ( n o t i n g t h a t it is error, im pacting a f

undam ental right of the accused, if a jury instruction om its an essential elem ent of the crim e). ¶32. Here, Fitzpatrick claim s the jury instruction given f ailed to require the State to prove he m urdered Deputy Crenshaw with delibe r a t e design. But, a s discussed above, the jury instruction g iven w as proper; and theref o re, there was no error. Accordingly , Fitzpatrick’s challenge to the jury i nstruction is not only without m erit, it also is also procedurally barred.
CONCLUSION ¶33. Because deliberate-design and d epraved-heart m u rder have c oalesced, and t his Court has interpreted Section 97-3-19(2)(a) to require only a depra v e d h e a r t, the jury i nstruction provided was a proper s tatem e nt of the law, and Fitzpatrick’s argum ent that the State f ailed

to show the killing was d one with deliberate design i s without m erit. Theref ore, we af f irm Fitzpatrick’s conviction and sentence. ¶34. C O N V I C T I O N O F C A P I T A L M U R D E R A N D S E N T E N C E O F L I F E IMPR I S O N M ENT, AS A HABITUAL OFFENDER, IN THE CUSTODY OF THE

1 4MIS S I S S I P P I D E P A R T M E N T O F C O R R E C T I O N S , A F F IRMED. SAID SENTENCE

SHALL NOT BE REDUCED OR SUSPE NDED, N OR SHALL T HE APPELLANT BE ELIGIBLE FOR PAROLE OR PROBATION

. RANDOLPH, P.J., LAMAR, CH A N D L ER AND PIERCE, JJ., CONCUR. KITCHENS, J., DISSENTS WI T H S EPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., KING AND COLEMAN, JJ. KITCHENS, JUSTICE, DISSENTING: ¶35. I r e s pectf

u lly dissent b e cause the jury verdict of “guilty of capital mu r d e r ” w a s

com prom ised. T he capital m u rder jury instruction included both t he crim e of deliberate design m u rder, def

ined i n Mississippi Code Section 97-3-19(1)(a) (Rev. 2006), and t he crim e of depraved heart m urder, def ined in M ississippi Code Section 9 7-3-19(1)(b) (Rev. 2006). T his jury instruction d i d not f oreclose som e jurors’ f

inding that Franklin Fitzpatrick

com m itted deliberate design capital m u rder, while, concom itantly , allowing other jurors to f ind him guilty of depraved heart capital m urder. The prosecution w a s , t h e r e f ore, relieved of i t s b u r d e n o f p r o ving its theory of the case bey o nd a reasonable doubt, and it cannot be said t ha t the verdict was u nanim ous, whereby all twelve jurors agreed to convict the def endant of the sam e crim e. ¶36. T h e i n dictm ent charged that Fitzpatrick “did u nlawf u lly , willf ully and f eloni o u s l y , without authority of law and w ith the deliberate design to effect death , kill and m urder Deway ne Crenshaw, a D eputy Sherif f , while D e w ay

n e Crenshaw was acting in his of f icial capacity as a Deputy S herif f

. . . in violation of the provisions of [ Mississippi Code] Section

1 597-3-19(2)(a)

. . . .” 6 (Em p h a s i s added.) Mississippi Code Section 97-3-19(1) def ines
“m urder:” (1) The killing of a hum an being without the authority of law b y any m eans or in any m anner shall be m

urder in the f

ollowing cases: (a) W hen done with d e l i b e r a t e d

e s i g n to effect the death of the person killed, or of

any hum an being; (b) W hen done in the com m ission of an act em inently dangerous to others and evincing a depraved heart, regardless of hum an l if e, although without any p rem editated design to ef f ect the death of any particular individual; Miss. Code Ann. § 97-3-19(1)(a), (b) (Rev. 2006) (em phasis added). ¶37. In spite of

the statutory

language set f

orth above and notwithstanding the attem pted specif icity with which Fitzpatrick was indicted, the jury was instructed as f

ollows:
THE COURT instructs y ou the jury that in order t o f ind Mr. Fitzpatrick guilty of capital m

urder of Deway

ne C renshaw, y ou m

ust f ind that each of the f ollowing elem e nts of

capital m urder have been m et: 1.) The deceased, Deway ne Crenshaw, was a living person; and 2.) On or about Decem ber 3, 2010, in Tippah County , M ississippi, the def e n dant, Franklin Fitzpatrick, did willf ully and f eloniously , without the authority of law w ith deliberate design , kill and m

urder Deway

ne Crenshaw o r that the def endant, Franklin Fitzpatrick, did kill Deway ne C renshaw whi l e i n the commission of an act eminently dang e rous to others a nd evincing a depraved heart, regardless of human life, although

6 I n o te th at, alth o u g h th is issu e w as n o t raised b y F itzp atrick o n ap p eal, th e in d ictm en t u n d er w h ich F itzp atrick w as ch a rg ed d o es n o t, ap art f ro m m en tio n i n g S ectio n 9 7 -3 -1 9 (2 )(a) (R ev . 2 0 0 6 ), co rrectly state th e crim e o f w h ich F itzp atrick w a s accu sed

. T h ere is n o m en tio n o f “p eace o f

f icer” o r “state

. . . law en f

o rcem en t o f

f icer,” as S ectio n 9 7 -3

- 1 9 ( 2 )(a) s p ecif ies. N o r d o e s t h e in d ictm en t alleg e th at F itzp atrick p o ssessed “k n o w led g e th at th e v ictim w as a p eace o f

f icer . . .” in acco rd an ce w ith S ectio n 9 7 -3 -1 9 (2 ) (a). 1 6without a n y premeditated design to effect the death of an particular individual and ; 3.) That, Deway

ne Crenshaw, at the t im e of his m urder, was a law enf o rcem ent of

f icer in the l ine of duty f

or t he Tippah County Sherif f ’s Departm ent, and the def endant, Franklin F it zpatrick, knew or s h o uld have known Deway ne Crenshaw was a law enf o rcem ent of

f icer 7 in the line of

duty , then y o u shall f

ind the Def

endant, F ranklin Fitzpatrick, “guilty ” as charged of

capital m urder. (Em phasis added.) ¶38. It is true, as the m ajority relates, t hat t he c rim e of deliberate design m urder has “been coalesced” with the crim e of depraved h eart m u rder, since, “ a s a m atter of com m on sense,
every m urder done with deliberate design to ef f ect the death of another hum an being is by def inition done in the com m i ssion of an act im m inently dangerous to others and e vincing a depraved heart, regardless of h um an lif e.” H awkins v. State , 101 So. 3d 638, 642 (Miss. 2012) (interna l c i t a t i ons om itted); accord C atchings v. S

tate , 684 S o. 2d 591, 599 (Miss. 1996)). In t h e case o f H awkins v. S

tate , t he def

endant had argued to this Court that
prem editation w as required f or him to rece i v e a c o n v iction f or capital m

urder, and we rejected h i s argum ent. Hawkins , 1 01 So. 3d a t 643. B ut none o f the cases in which we have held that depraved heart m u rder is subsum ed into deliberate design m urder contem

plated the context of

Mississippi Code Section 97-3-19(2)(a), which provides: (2) The killing of a hum an being without the authority of law b y any m eans or in any m anner shall be capital m u rder in the f

o llowing cases:

7 A s stated in F o o tn o te 1 ab o v e, th e in d ic t me n t i s d e v o i d o f an y alleg atio n th at F itzp atrick m

u rd e red “a law en f

o rcem en t o f

f icer,” as req u ired b y

S ectio n 9 9 -3 -1 9 (2 )(a). 1 7(a) Murder w hich is perpetrated by killing a peace of f i c e r or f irem an w hile such of

f icer or f i rem a n is acting i n his of f i cial capacity o r by reason of an act perf o rm ed in his of

f i cial capacity , and with knowledge that t he v ictim was a peace of f i cer or f irem an. Miss. Code Ann. § 97-3-19(2)(a) (Rev. 2006). ¶39. W h ile the m ajority is correct that the statute does not require deliberate design, this
Court has not considered the troublesom e nature of i nstructing t he j ury on capital m urder of

a p e a c e o f

f i cer, with murder having been def ined as either deliberate design m urder or depraved heart m

u r der. Fit z p a t r i c k c ontends i n his brief to this Court that the “jury in this case was allowed to convict Fitzpatrick of capital m u rder of a peace of

f icer if it f ound that
h e e ither com m i tted deliberate design m urder or depraved heart [ m urder].” (Em

phas i s i n original.) ¶40. This Court has held that, “[ i]f a jury has been instructed that it m ay rely o n any one of two or m ore independent grounds, and one of those grounds is insuf f icient, a subsequent general verdict of

guilty m ust be set aside because the verdict m ay h ave rested exclusively

on t he insuf

f icient ground.” P

hillips v. State , 4 9 3 So. 2 d 350, 3 55 (Miss. 1986) (citing
Strom berg v. Califo r n i a , 2 8 3 U .S. 359, 369-70, 51 S. Ct. 532, 535-36, 75 L. Ed. 1117 (1931)) (em

phasis in original). Stated dif f erently , a “general verdict m ust be ‘set aside in

cases where the verdict is supportable on one ground, but not on another, and it is i mpossible

to tell w hich ground the j ury selected .” Phillips , 493 So. 2 d at 355 (quoting Y ates v. United
States , 354 U.S. 298, 77 S. Ct. 1064, 1 L. Ed. 2d 1356 (1957), overruled o n other grounds

1 8b

y B u r k s v . United States , 437 U.S. 1, 98 S

. Ct. 2141, 57 L. Ed. 2 d 1 ( 1978)) (em phas i s added). ¶41. This Court recognized in Hawkins that “while all depraved heart m urder ‘subsum e s’ deliberate design m

urder, Catchings , 684 So. 2d at 599 ( quoting Mallett v . State , 606 So. 2d 1092, 1095 (M i s s . 1 9 9 2 ) ) , t he i nverse is not t rue.” Hawkins , 101 So. 3d at 642. “In other words, all m

urders c om m itted with ‘deliberate d esign t o ef f e c t the death of the person killed’ necessarily require a ‘depraved heart,’ but deprave d h e a rt m urder does not require
prem editated design.” Id. (quoting Miss. Code Ann. § 97-3-19(1)(a), (b) (Rev. 2014)). ¶42. The jury ’ s v e rdict in the present case was a s f ollows: “W e the jury , f

ind the def

endant, Franklin Fitzpatrick, guilty of capital m urder.” C onsequently , “it is im possible to tell which ground the jury selected,” whether it w as deliberate design m urder (f or w hich Fitzpatrick had been i ndicted) or depraved h eart m urder. See Phillips , 493 So. 2 d a t 3 55. I n other words, if the jury (or som e of its m em bers) f ound that Fitzpatric k w a s g u i l t y of capital m urder of a
peace o f f icer and those j urors f

ound that depraved heart m urder was the applicable d ef inition of “m urder,” then Fitzpatrick could not have been f ound concurrently guilty of de liberate design capital m

urder. See Hawkins , 101 So. 3d at 642 ( internal citations o m itted). A f inding by the jury that Fitzpatrick w a s guilty of depraved heart capital m urder of a peace of

f icer would have rendered the deliberate design the o r y o f c a p ital m urder of a peace of

f icer unsupportable. B e c a u s e the record is devoid of s uch inf orm ation, 8 t he general verdict of “guilty of capital m u r der” cannot stand. See Phillips , 493 So. 2d at 355.

8 T h e j u ry w a s p o l led , b u t th e resp o n ses p r o v i d ed b y t h e in d iv id u al j u ro rs sh ed n o lig h t o n w h ich th eo ry

o r th eo ries th e j u ry

selected

. 1 9¶43. I would reverse and r e m a nd f or a new trial, in w hich the jury instruction def ining the crim e of capital m

u rder of a p e ace of

f icer under Mississippi C ode Section 97-3-1 9 ( 2 )(a) (Rev. 2 00 6 ) conf

orm s to the indictm ent, which alleged t hat Fitzpatrick m urdered Deputy Crenshaw by deliberate design under Mississippi C ode Section 9 7-3-19(1)(a) (Rev. 2006). DICKINSON, P.J., KING AND COLEMAN, JJ., JOIN THIS OPINION.

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