Kenyoung Fair v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-KA-00767-COA
KENYOUNG FAIR
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
02/21/2008
HON. C.E. MORGAN III
CHOCTAW COUNTY CIRCUIT COURT
GEORGE T. HOLMES
OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
DOUG EVANS
CRIMINAL - FELONY
CONVICTED OF MURDER AND
SENTENCED TO LIFE IN THE CUSTODY
OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS
AFFIRMED: 06/02/2009
BEFORE MYERS, P.J., IRVING AND ROBERTS, JJ.
MYERS, P.J., FOR THE COURT:
¶1.
Kenyoung Fair was convicted of murder in the Choctaw County Circuit Court. He
was sentenced to serve a term of life in the custody of the Mississippi Department of
Corrections (MDOC). Aggrieved by his conviction and sentence, Fair appeals citing three
issues: (1) whether his murder conviction was supported by the evidence; (2) whether the
trial court erred in refusing to grant a jury instruction; and (3) whether the trial court erred
in preemptively denying a heat-of-passion manslaughter jury instruction. Finding no error,
we affirm.
FACTS AND PROCEDURAL HISTORY
¶2.
On July 28, 2007, Fair, Samuel Dotson, and Darnell Moore went to Ackerman,
Mississippi. All three were from Weir, Mississippi. Fair and Moore had been involved in
a fight in Ackerman several weeks prior to that day. On July 28, 2007, word got back to
several teenagers in Ackerman that some boys from Weir were coming to Ackerman to fight
them.
Several teenagers from Ackerman joined together and began walking around
Ackerman. They stopped in front of the Friendship M.B. Church, as they routinely did.
Several other groups of teenagers from Ackerman joined them there.
¶3.
Shortly thereafter, Fair, Dotson, and Moore pulled up to the crowd in a car. Several
of the Ackerman teenagers testified that a verbal exchange occurred between the occupants
of the car from Weir and some of the Ackerman teenagers. One of the Ackerman teenagers
testified that the exchange was initiated by one of the occupants of the car saying, “We heard
y’all was [sic] looking for us.” One of the Ackerman teenagers responded, “no, I heard y’all
was [sic] looking for us.” The Weir teenagers responded, “Well, what’s up?” The Ackerman
crew responded for them to “get out of the car.” Suddenly, Fair, sitting in the passenger seat,
grabbed a shotgun that was lying on the front seat of the car. One of the Ackerman teenagers
saw this and yelled, “dude got a burner.” The Ackerman teenagers testified that all of them
either started to back away from the car or turned and started to run in the other direction.
Fair fired three or four shots out of the driver’s side window. One of these shots struck
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Gerrodd Edwards in the back. Edwards was initially taken to the hospital in Ackerman and
later transported to a hospital in Memphis, Tennessee where he died on August 6, 2007.
¶4.
Fair was arrested and charged with the murder of Edwards. A jury convicted Fair of
murder after a two-day jury trial. He was sentenced to life imprisonment in the custody of
the MDOC. Fair filed a post-trial motion for a new trial, which was denied by the trial court.
Aggrieved, Fair appeals his conviction and sentence.
DISCUSSION
I.
¶5.
WHETHER THE
EVIDENCE.
VERDICT IS SUPPORTED
BY
THE
When presented with a claim that the evidence is insufficient to sustain a conviction,
we review the record in “a light most favorable to the State.” Robinson v. State, 940 So. 2d
235, 239-40 (¶13) (Miss. 2006) (citing McClain v. State, 625 So. 2d 774, 778 (Miss. 1993)).
This Court “must accept as true all evidence consistent with [the defendant's] guilt, together
with all favorable inferences that may be reasonably drawn from the evidence, and disregard
the evidence favorable to the defendant.” Id. at 240 (¶13). If the evidence is “of such quality
and weight that, ‘having in mind the beyond a reasonable doubt burden of proof standard,
reasonable fair-minded [persons] in the exercise of impartial judgment might reach different
conclusions on every element of the offense,’ the evidence will be deemed to have been
sufficient.” Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005) (quoting Edwards v. State,
469 So. 2d 68, 70 (Miss. 1985)).
¶6.
Fair argues that he should have been convicted of manslaughter under an “imperfect
self-defense” theory. Fair contends that he was in fear of death or great bodily harm because
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of the past altercation between the two groups, the number of teenagers with the Ackerman
group, and some alleged gestures the Ackerman teenagers made during the verbal exchange.
Fair, sitting in the passenger seat, claims that he fired the shotgun three or four times out of
the driver’s window “to get them to get back.”
¶7.
As the State correctly points out, Fair did not raise this defense in the trial court.
Fair’s defense was ordinary self-defense, not imperfect self-defense. All testimony, the jury
instructions, and the opening and closing statements are void of any mention of imperfect
self-defense. Additionally, Fair did not include imperfect self-defense as a basis in his
motion for a new trial. “It is well established that ‘questions will not be decided upon appeal
which were not presented to the trial court and that court given an opportunity to rule on
them.’” Neese v. State, 993 So. 2d 837, 843 (¶12) (Miss. Ct. App. 2008) (citations omitted).
Accordingly, this issue is procedurally barred from our consideration.
¶8.
Procedural bar notwithstanding, we find the sufficiency of the evidence does not
warrant a manslaughter conviction under an imperfect self-defense theory. The supreme
court has described imperfect self-defense as a killing “done without malice but under a bona
fide (but unfounded) belief that it was necessary to prevent death or great bodily harm.”
Wade v. State, 748 So. 2d 771, 775 (¶12) (Miss. 1999). If this bona fide belief is found, the
intentional killing may be considered manslaughter. Id.
¶9.
In facts similar to the present case, the supreme court in Smiley v. State, 815 So. 2d
1140, 1146 (¶¶22-23) (Miss. 2002) considered whether the defendant should be found guilty
of manslaughter instead of murder under the imperfect self-defense theory. The supreme
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court found the facts did not warrant a reduction to manslaughter: the victim was shot in the
back as he walked away from Smiley; witnesses heard Smiley say, “I got that bitch” and “I
done told that mother f_____ about fooling with me,” just after the victim was shot; and
although Smiley and the victim had disagreed on a prior occasion, there was no testimony
presented regarding violence or threats of violence between the two men before the shooting
occurred. Id. at (¶23). Upon viewing the evidence which supported the jury's verdict, the
supreme court found in Smiley to be without merit. Id.
¶10.
In the case at bar, the pathologist testified that Edwards was shot in his back, right
arm, and buttock. He noted thirty-six pellet holes in these areas. The witnesses testified that
when it was discovered that Fair had pulled a gun, everyone one in the Ackerman group
either started backing away or turned and ran. The findings of the pathologist and the
testimony of the witnesses confirm that Edwards had turned away from the car and was likely
running in the other direction when he was shot. One of the persons who was in the car with
Fair testified that Fair said, “I am tired of this,” right before he started shooting. He then told
Dotson, the driver of the car, to pull his seat back; he then fired three to four shots out of the
window. Additionally, Moore, who was in the car with Fair, testified that none of the
Ackerman teenager made an aggressive move toward the car and that there were only words
being exchanged. This was corroborated by several of the Ackerman teenagers. At most,
there was a heated verbal exchange that does not support a manslaughter conviction under
the imperfect self-defense theory. See Phillips v. State, 794 So. 2d 1034, 1038-39 (¶19)
(Miss. 2001). Finally, there was no evidence presented that any of the Ackerman teenagers
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were armed during this episode.
¶11.
Viewing the evidence in the light most favorable to the State, we find more than
sufficient evidence to support a murder conviction. Fair’s argument that he was under a
genuine (but unfounded) belief that his actions were necessary to prevent death or great
bodily harm, necessitating a manslaughter conviction under an imperfect self-defense theory,
is negated by the facts of the case and the witnesses’ testimonies. Accordingly, this issue is
without merit.
II.
¶12.
WHETHER THE TRIAL COURT ERRED IN REFUSING TO
GRANT FAIR’S JURY INSTRUCTION.
In reviewing the grant or denial of jury instructions, this Court considers the
instructions as a whole and with no one instruction taken out of context. Strickland v. State,
980 So. 2d 908, 922 (¶24) (Miss. 2008) (quoting Chandler v. State, 946 So. 2d 355, 360
(¶21) (Miss. 2006)). While “[a] defendant is entitled to have jury instructions given which
present his theory of the case, . . . the court may refuse an instruction which incorrectly
states the law, is covered fairly elsewhere in the instructions, or is without foundation in the
evidence.” Id.
¶13.
Fair argues the trial court erred in refusing to grant his requested instruction D-5,
which stated:
The court instructs the jury that while malice aforethought is a necessary
element of the crime of murder, it does not follow therefrom that the existence
of actual malice at the time of the slaying would necessarily have the effect of
rending a particular homicide case a murder. A person may be guilty only of
[sic] manslaughter or justifiable homicide when slaying another even though
the accused is mad [or] bearing ill will toward his adversary at the time of the
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killing, if the act is done while resisting an attempt of the latter to do any
unlawful act, or after such attempt shall have failed, if such anger or ill will
engendered by the particular circumstances of the unlawful act then being
attempted, or the commission of which is thwarted, and is non-existent prior
thereto. To constitute murder, the malice must precede the unlawful act which
is being attempted or committed by the person killed, where the killing is done
in resisting his attempt to do an unlawful act.
The trial court refused to grant this instruction because it was covered in other instructions
and, thus, cumulative. Fair argues that by refusing this instruction, the jury was not properly
informed about the difference between deliberate-design murder and culpable-negligence
manslaughter.
¶14.
Our review of the jury instructions as a whole leads us to conclude that the jury was
sufficiently informed about the differences between deliberate-design murder and culpablenegligence manslaughter. The trial court granted jury instruction S-2, which reads as
follows:
The Court instructs the jury that deliberate design as mentioned in these
instructions does not have to exist in the mind of the slayer for any given
length of time; and if only moments before the act of violence, if any, the
defendant, Kenyoung Fair, acted with deliberate design to take the life of
Gerrodd Edwards, then it was truly malice and the act was truly murder as if
the deliberate design had existed in the mind of the defendant for minutes,
hours, days, weeks, or even years.
The court also granted instruction S-1, a murder instruction, which states in part:
The Court instructs the jury that murder is the killing of a human being, not in
necessary self-defense, and without authority of law, by any means or any
manner, when done with the deliberate design to effect the death of the person
killed OR when done in the commission of an act eminently dangerous to
other[s] and evincing a depraved heart, regardless of human life, although
without any premeditated design to effect the death of any particular individual
....
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The court went on to grant two culpable-negligence instructions, D-6 and D-7.1 These
instructions were given in addition to a self-defense instruction.
Upon reading the
instructions as a whole, we find that the jury was adequately informed with regard to
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D-6 states:
The Court instructs the jury the killing of [a] human being by the
culpable negligence of another, without authority of law, is manslaughter, and
the Court further instructs the jury that culpable negligence is defined as
negligence of a degree so gross as to be tantamount to a wanton disregard or,
or utter indifference to, the safety of human life.
If you believe from the evidence beyond a reasonable doubt that the
death of Gerrod Edwards was caused by the culpable negligence of Kenyoung
Fair, then you shall find Kenyoung Fair guilty of the crime of manslaughter.
D-7 states:
If you find the evidence in this case that the defendant, Kenyoung Fair,
is not guilty of murder, then you should continue with your deliberation to
consider the elements of the lesser crime of culpable[-]negligence
manslaughter.
The Court instructs the jury the killing of [a] human being by the
culpable negligence of another, without authority of law, is manslaughter, and
the Court further instructs the jury that culpable negligence is defined as
negligence of a degree so gross as to be tantamount to a wanton disregard or,
or [sic] utter indifference to, the safety of human life.
If you find from the evidence in this case, beyond a reasonable doubt, that Kenyoung
Fair, on July 28, 2007, in Choctaw County, Mississippi, that Gerrod Edwards was a human
being, and that, Kenyoung Fair, without authority of law did kill Gerrod Edwards, with
culpable negligence, by discharge of a fireman, and not in necessary self-defense, then you
shall find Kenyoung Fair guilty of manslaughter.
If the prosecution has failed to prove any one or more of the above-listed elements
beyond a reasonable doubt, then you shall find Kenyoung Fair not guilty of manslaughter.
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deliberate-design murder and culpable-negligence manslaughter. Therefore, this issue is
without merit.
III.
¶15.
WHETHER THE TRIAL COURT ERRED IN PREEMPTIVELY
DENYING FAIR A HEAT-OF-PASSION MANSLAUGHTER
INSTRUCTION.
In Mullins v. State, 493 So. 2d 971, 974 (Miss. 1986), the supreme court stated that:
[Heat of passion] is a state of violent and uncontrollable rage engendered by
a blow or certain other provocation given, which will reduce a homicide from
the grade of murder to that of manslaughter. Passion or anger suddenly
aroused at the time by some immediate and reasonable provocation, by words
or acts of one at the time. The term includes an emotional state of mind
characterized by anger, rage, hatred, furious resentment or terror.
“When a deadly weapon is used, . . . malice is implied.” Turner v. State, 773 So. 2d 952,
954 (¶7) (Miss. Ct. App. 2000). “[I]n order to overcome that [malice implication], there must
be some evidence in the record from which the jury could determine that [the act] was not
[the] result of malice, but a result of the heat of passion.” Wilson v. State, 574 So. 2d 1324,
1336 (Miss. 1990).
¶16.
Fair does not provide any specific facts to support his assertion. He simply states that
the facts and evidence entitled him to a heat-of-passion manslaughter instruction. The record
indicates that, at most, Fair and the Ackerman teenagers were engaged in a verbal argument.
However, the law is well settled that words alone are not enough to require a heat-of-passion
manslaughter instruction. Myers v. State, 832 So. 2d 540, 542 (¶10) (Miss. Ct. App. 2002).
¶17.
Furthermore, the record is silent on any evidence that Fair was in a state of violent or
uncontrollable rage at the time of the shooting. It shows the antithesis, a deliberate shooting.
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Fair and his friends armed themselves with two weapons, drove directly to the area where
the previous fight had occurred, found the people with whom they had previously fought, and
fired three to four shots into the crowd – one of which was a fatal shot to the back of
Edwards. We find that these actions were calculated and show a deliberate-design murder.
¶18.
We find that the evidence does not support a jury instruction for heat-of-passion
manslaughter. Therefore, the trial court did not err by refusing to grant the instruction; thus,
this issue is without merit.
¶19. THE JUDGMENT OF THE CHOCTAW COUNTY CIRCUIT COURT OF
CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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