McKennsey Austin v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2001-KA-00920-COA
MCKENNSEY AUSTIN A/K/A LUCKY
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEE
5/29/2001
HON. ALBERT B. SMITH, III
COAHOMA COUNTY CIRCUIT COURT
ALLAN D. SHACKELFORD
JOHNNIE E. WALLS
OFFICE OF THE ATTORNEY GENERAL
BY: JEAN SMITH VAUGHAN
LAURENCE Y. MELLEN
CRIMINAL - FELONY
COUNT I - MURDER-LIFE IMPRISONMENT
AFFIRMED - 09/30/2003
BEFORE KING, P.J., BRIDGES AND LEE, JJ.
BRIDGES, J., FOR THE COURT:
¶1.
The grand jury of Coahoma County, Mississippi indicted McKennsey Austin on Count I, murder,
Count II, drive-by shooting. On May 22, 2001, Austin was tried by a jury and was found guilty as to
Count I, murder of Jones, and was found not guilty as to Count II, drive-by shooting. Austin was then
sentenced to a term of life imprisonment within the custody of the Mississippi Department of Corrections.
Feeling aggrieved by the conviction, Austin filed a motion for a JNOV, or in the alternative, a new trial,
which was denied by the trial court on June 1, 2001. A notice of appeal was timely filed on June 4, 2001.
Appointed counsel for Austin, Allan Shackelford, filed a brief on behalf of Austin which contained a
representation, pursuant to Turner v. State, 818 So. 2d 1186, 1189 (¶11) (Miss. 2001), that the appeal
was without merit. Austin has now filed his appeal through his attorney, Johnnie Walls.
STATEMENT OF THE ISSUES
I. WHETHER AUSTIN WAS DENIED A FAIR TRIAL BY THE TRIAL JUDGE'S DENIAL OF
JURY INSTRUCTION D-4, A SELF DEFENSE INSTRUCTION.
II. WHETHER AUSTIN WAS DENIED A FAIR TRIAL BY THE TRIAL JUDGE'S DENIAL OF
JURY INSTRUCTION D-5, AN ALTERNATE THEORY OF ACCIDENT AND MISFORTUNE.
FACTS
¶2.
On the night of August 25, 2000, there was a party or social gathering held at the community center
on Yates Street in Friars Point, Mississippi. There were a number of people at the party including,
Corinthian Jones, a/k/a. "Cat Man" (the name of the victim appears in the indictment as "Crenthians" but
also appears in numerous places as "Corinthian"), Nathan Goodlow, Calvin "Bone" Williams, Bervin
Hopson, and McKennsey Austin, a/k/, "Lucky."
¶3.
Later that evening, shortly after midnight, Corinthian Jones was shot and killed near the community
center. There were numerous eyewitnesses to the crime who also testified at the trial.
¶4.
Nathan Goodlow, a friend of Jones and who was present at the scene, testified that earlier in the
evening Jones grabbed Austin and choked him. After the altercation, Austin and Hopson left the party
together. About an hour later they came back to the party. They started circling around Goodlow,
Williams and Jones while circling the block several times. As they rode around, Jones shouted curse words
at the vehicle in which Austin was riding. Jones started to approach the car with Williams while Goodlow
followed behind them. It was then that Goodlow heard a shot, which he thought came from the window
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of the driver's side of the vehicle, but Goodlow could not see who fired the shot. Austin then got out of the
car from the driver's side and Goodlow heard three or four more shots.
¶5.
Calvin Williams, a close friend of Jones and an eyewitness, testified that he was with Jones from
about 8:00 p. m. on the night of the shooting. He was also present when the fight broke out between Austin
and Jones. He further testified that when Austin's car came back, he and Jones were walking on a sidewalk
when someone hollered, "Cat Man go to the car." Williams did not go to the car; however, Jones did with
his hands in his pockets. Austin then jumped out of the car and shot Jones. Williams thinks five or six shots
were fired which came from the direction of Austin's car. When he heard the shots Williams hit the ground
and did not get up until the police arrived at the scene.
¶6.
Bervin Hopson, Austin's cousin, testified to the same thing the others had testified to except that
Hopson said that Austin did nothing in response to Jones's cursing and that Austin just made another loop
through the party area. Hopson further recalled that after they made the loop, everything became strange.
Hopson remembered Jones's cursing at the car, and that Austin jumped out of the car. He did hear shots
but did not see who fired them because he was trying to stop the car which was still in motion.
¶7.
Dr. Steven Hayne, the state pathologist who performed the autopsy on Jones, found that Jones died
of a gunshot wound to the back of the neck and that the trajectory was consistent with turning and running
away from the shooter. He also testified that there was another gunshot wound that entered the back of
the right arm.
ANALYSIS
I. WHETHER AUSTIN WAS DENIED A FAIR TRIAL BY THE TRIAL JUDGE'S DENIAL OF
JURY INSTRUCTION D-4, A SELF DEFENSE INSTRUCTION.
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¶8.
Austin asserts that the trial judge erred in refusing a self-defense instruction and that he is
consequently due a new trial.
¶9.
This Court has held that in reviewing the denial of a jury instruction we must "consider not only the
denial instruction but all of the instructions which were given to ascertain if error lies in the refusal to give
the requested instruction. A defendant is entitled to have instructions given which present his theory of the
case, however, this entitlement is limited in that the court may refuse an instruction which incorrectly states
the law, is covered fairly elsewhere in another instruction, or is without foundation in the evidence. "
Guillen v. State, 825 So. 2d 697, 698 (¶5) (Miss. Ct. App. 2002).
¶10.
The trial judge refused instruction D-4 on the ground that it was not supported by the evidence.
However, the judge modified an instruction which gave Austin a lesser-included-manslaughter-not-innecessary-self-defense instruction. Also, the judge did not find that a self-defense instruction should be
given in light of the testimony that Austin got out of the car, which was still in motion, and purposefully shot
Jones, who sustained a shot to the back of his right arm and another shot to the back of the neck. There
was also evidence that the victim, Jones, was running away from the shooter.
¶11.
Also noteworthy is the fact that Austin's appointed counsel, Allan Shackelford, filed a brief, in
accordance with Turner, 818 So. 2d at 1189 (¶11), and stated that after scouring the record thoroughly
for reversible error, he found none that would not be frivolous.
¶12.
We find that based on the evidence presented in the record, the trial judge properly denied jury
instruction D-4 for lack of an evidentiary foundation. Therefore, this issue is without merit.
II. WHETHER AUSTIN WAS DENIED A FAIR TRIAL BY THE TRIAL JUDGE'S DENIAL OF
JURY INSTRUCTION D-5, AN ALTERNATE THEORY OF ACCIDENT AND MISFORTUNE.
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¶13.
Austin also claims that the trial judge was in error in his denial of a jury instruction based on
accident or misfortune.
¶14.
The record clearly shows the purposefulness of Austin's acts and paints a picture of malice and a
determination to kill. Austin's excuses that Jones was yelling at him and walked up to the car with his hands
in his pockets, do not excuse his actions. As stated in Hart v. State, "one does not have the right to kill
another merely because he is afraid of him; nor may one kill another because he is afraid he will receive
some bodily harm." Hart v. State, 637 So. 2d 1329, 1341 (Miss. 1994) (quoting Shinall v. State, 199
So. 2d 251, 259 (Miss. 1967)).
¶15.
Using the above standard of law, we find that the trial judge properly denied jury instruction D-5
for lack of an evidentiary foundation. Therefore, this issue is meritless.
¶16. THE JUDGMENT OF THE COAHOMA COUNTY CIRCUIT COURT OF
CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. SENTENCE SHALL
RUN CONSECUTIVELY TO ANY AND ALL SENTENCES PREVIOUSLY IMPOSED.
COSTS OF THIS APPEAL ARE ASSESSED TO COAHOMA COUNTY
KING AND SOUTHWICK, P.JJ., THOMAS, LEE, MYERS, CHANDLER AND
GRIFFIS, JJ., CONCUR. MCMILLIN, C.J., AND IRVING, J. CONCUR IN RESULT ONLY.
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