Kenneth Readus v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2005-KA-01618-COA
KENNETH READUS
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
4/8/2004
HON. WILLIAM E. CHAPMAN, III
MADISON COUNTY CIRCUIT COURT
JULIE ANN EPPS
OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
DAVID BYRD CLARK
CRIMINAL - FELONY
CONVICTION OF MURDER AND
AGGRAVATED ASSAULT AND SENTENCE
OF LIFE IMPRISONMENT PLUS TWENTY
YEARS TO RUN CONCURRENTLY ALL IN
THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS
AFFIRMED - 04/22/2008
BEFORE MYERS, P.J., IRVING AND ISHEE, JJ.
ISHEE, J., FOR THE COURT:
¶1.
Kenneth Readus was convicted on one count of murder and one count of aggravated assault
and sentenced to life imprisonment plus twenty years to run concurrently all in the custody of the
Mississippi Department of Corrections (MDOC). Aggrieved, he appeals asserting:
I.
The trial court erred in granting the State’s jury instruction S-7 which combined the
definitions of both deliberate design murder and depraved heart murder.
II.
The verdict of murder and/or aggravated assault was unsupported by sufficient
evidence or, alternatively, against the overwhelming weight of the evidence.
Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2.
Readus was indicted for the murder of his wife, Sherry, and the aggravated assault of his
stepson, Marlow Jackson. Readus and his wife lived in an apartment in Canton, Mississippi with
their two children and two of Sherry’s children from a previous marriage.
¶3.
On the night of March 29, 2002, Readus returned from work between 11:00 p.m. - 12:00 a.m.
to find that Sherry was not home. Sherry had not returned from completing her shift at St. Dominic
Hospital in Jackson. When Readus asked Sherry’s daughter, Yuvonda, where her mother was, she
replied that she thought her mother was still at work. Sherry did not return home until early the next
morning. According to Yuvonda, Readus confronted Sherry and asked her where she had been.
Sherry responded by telling him that it was none of his business. Subsequently, an argument ensued,
and Sherry called for help from her son, Marlow.
¶4.
According to Marlow, upon entering the room, he saw Readus standing over his mother with
his fists balled up. Marlow stated that his mother was on the ground holding her face. Marlow
admitted that he picked up a broom to defend his mother, but it is disputed as to whether he actually
struck Readus with the broom. It is undisputed, however, that Marlow demanded that Readus leave
the apartment. Readus gestured toward the door, but he did not leave. Instead, he stated, “I’m tired
of this,” and subsequently drew a gun out of his pocket and pointed it at Marlow. Marlow testified
that Readus shot three times: (1) once at him, (2) once at his mother, and (3) once into the kitchen.
Readus claimed that he only intended to fire the gun in the air. He alleged that the gun discharged
accidentally when Marlow tried to grab the gun out of his hand. Readus claimed that the shots were
fired as he and Marlow struggled to gain control of the gun. According to Yuvonda, when Marlow
reached for the gun, Readus shot him. The extent of an alleged struggle between Readus and
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Marlow is disputed in the record. After witnessing Readus shoot her brother, Yuvonda stated that
she fled for safety. While running out of the room, she heard the second shot. This second shot was
later determined to be the fatal round which ended Sherry’s life.
¶5.
The next door neighbor, Doris Lewis, heard the shots coming from the Readuses’ home.
Shortly thereafter, Lewis witnessed Readus leave the apartment. When Lewis went over to
investigate, she found Sherry lying on the floor unconscious with a gunshot wound to her stomach
and blood coming from the back of her head. She also saw Marlow sitting up in a corner of the
room with a gunshot wound to his upper chest. Lewis called the police for assistance and stayed
until an ambulance arrived. Both Marlow and Sherry were transported to the hospital. Marlow was
treated for his injuries. Sherry was pronounced dead on arrival.
¶6.
Readus turned himself into police later that evening. After signing a Miranda waiver, he
voluntarily gave a statement to the police. In his statement, Readus admitted to pulling out a loaded
.25 caliber pistol and shooting his wife and his stepson. Readus claimed that his decision to shoot
came after his wife hit him with a broom, and they started “tussling.” After the shooting, Readus
stated that he left the apartment, got into his car, and drove to his mother’s house. He admitted that
he hid the pistol in his mother’s storage room. Shortly thereafter, he decided to turn himself in.
¶7.
Readus was indicted on June 10, 2002, for one count of murder and one count of aggravated
assault. He was tried on April 7, 2004. At the conclusion of the case, the jury was given
instructions for murder which included the definitions of both murder by deliberate design and
depraved heart murder.
The jury was also given an instruction for the lesser offense of
manslaughter, as well as a separate instruction for the aggravated assault charge. Readus was found
guilty of both murder and aggravated assault and given a life sentence and a twenty-year concurrent
sentence in the custody of the MDOC. From that conviction, he now appeals.
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ANALYSIS
I.
¶8.
Whether the trial court erred in granting the State’s jury instruction S-7.
Readus contends that the trial court erred by granting jury instruction S-7 which defined the
elements of murder. It instructed the jury that:
Murder is the killing of a human being, with malice aforethought, not in necessary
self defense, and without the authority of law, by any means or by any manner, when
done with premeditated and deliberate design to effect the death of the person killed
or when done in the commission of an act eminently dangerous to others and
evincing a depraved heart, regardless of human life, although without premeditated
design to effect the death of any particular individual.
Readus contends that this instruction was improper because it failed to instruct the jury that it was
required to unanimously agree on either deliberate design murder or depraved heart murder. Readus
argues that, without such an instruction, there was no way to ensure that the jurors were unanimous
as to the elements supporting their verdict of murder. He, therefore, contends that his Sixth
Amendment right to a unanimous verdict was violated. The State contends that an evidentiary basis
existed for the jury instruction and that precedent exists for allowing the jury instruction.
¶9.
As previously stated, the jury instruction S-7 allowed the jury to convict Readus of murder
if the killing was of deliberate design, Mississippi Code Annotated section 97-3-19(1)(a) (Rev.
2006), or if the killing evinced a depraved heart, Mississippi Code Annotated section 97-3-19(1)(b)
(Rev. 2006). This Court has previously recognized that the State may submit jury instructions that
enable the jury to convict either for deliberate design murder or for depraved heart murder. Lett v.
State, 902 So. 2d 630, 636 (¶19) (Miss. Ct. App. 2005). Further, the Mississippi Supreme Court has
held that it is not error to grant a jury instruction which combines the elements of deliberate design
murder with the elements of depraved heart murder as stated in Mississippi Code Annotated sections
97-3-19(1)(a) and (1)(b). See Schuck v. State, 865 So. 2d 1111, 1119-20 (¶¶19-20) (Miss. 2003);
Catchings v. State, 684 So. 2d 591, 599 (Miss. 1996). The Court has rejected the argument that the
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two instructions are mutually exclusive, explaining that the depraved heart murder section has been
coalesced with the deliberate design murder section. Catchings, 684 So. 2d at 599. "[E]very 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." Id. (quoting Mallett v. State, 606 So. 2d 1092, 1095 (Miss. 1992)). Therefore, the trial
court did not err by granting an instruction that combined deliberate design murder with depraved
heart murder.
¶10.
A trial court may refuse a proffered jury instruction when there is no foundation in the
evidence to support the instruction. Coleman v. State, 804 So. 2d 1032, 1037 (¶24) (Miss. 2002)
(citing Heidel v. State, 587 So. 2d 835, 842 (Miss. 1991)). Readus argues that there was no evidence
to support a jury instruction for murder as the State offered no evidence that he acted with deliberate
design or depraved heart.
¶11.
We are unable to accept Readus’s argument that the State failed to produce evidence
showing that he was guilty of either deliberate design murder or depraved heart murder. The State
produced evidence showing Readus was the person who shot Marlow and shot and killed Sherry.
In fact, Readus himself admitted that he perpetrated the shooting. At the very least, the State
produced evidence of depraved heart murder by establishing that while Readus was engaged in an
argument with his wife, he fired shots inside an apartment that contained unarmed individuals and
several children. The classic example of depraved heart murder is shooting into a crowd of people.
Lett, 902 So. 2d at 637 (¶21). It is within the province of the jury to draw reasonable inferences
from the evidence based on their experience and common sense. Lewis v. State, 573 So. 2d 719, 723
n.2 (Miss. 1990).
We find that Readus's argument is without merit.
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II.
¶12.
Whether the verdict of murder and/or aggravated assault was
unsupported by sufficient evidence or, alternatively, against the
overwhelming weight of the evidence.
Readus argues that the evidence presented by the State was insufficient as a matter of law
to support a conviction of both murder and aggravated assault. He contends that the only possible
inference that can be drawn from the evidence is that the shooting took place accidentally during a
struggle between Readus and the victims. He alternatively contends that it was the product of selfdefense. Given this evidence, Readus argues that no fair-minded juror could find him guilty of
murder or aggravated assault. Readus also contends that the verdict was against the overwhelming
weight of the evidence. Because these claims have a different standard of review, they will be
analyzed separately.
¶13.
In reviewing whether the evidence supporting a jury verdict is legally sufficient, this Court
does not determine whether from the evidence we would have voted to convict or acquit. Bush v.
State, 895 So. 2d 836, 843 (¶16) (Miss. 2005). Rather, we view the evidence in the light most
favorable to the prosecution and determine whether a rational juror could have concluded beyond
a reasonable doubt that all elements of the crime were satisfied. Id. The proper remedy for
insufficient evidence is for the Court to reverse and render. Id.
¶14.
After a thorough review of the record, construing the evidence in favor of the prosecution,
we find that a rational juror could conclude beyond a reasonable doubt that Readus was guilty of
both murder and aggravated assault. The jury was instructed on murder, being defined as either
deliberate design murder or depraved heart murder, manslaughter, and aggravated assault. At the
very least, the evidence in this case tends to show that Readus acted recklessly in the commission
of an imminently dangerous act and with extreme indifference to human life, thereby supporting the
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verdicts of both depraved heart murder and aggravated assault. As previously stated, Mississippi
Code Annotated section 97-3-19(1)(b) (Rev. 2006) defines depraved heart murder as follows:
The killing of a human being without the authority of law by any means or in any
manner shall be murder . . . [w]hen done in the commission of an act eminently [sic]
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[.]
Mississippi Code Annotated section 97-3-7(2) (Rev. 2006) states that a person is guilty of
aggravated assault if he:
(a) attempts to cause serious bodily injury to another, or causes such injury
purposely, knowingly, or recklessly under circumstances manifesting extreme
indifference to the value of human life; or (b) attempts to cause or purposely or
knowingly causes bodily injury to another with a deadly weapon or other means
likely to produce death or serious bodily harm[.]
¶15.
Here, the State produced evidence showing that Readus fired a gun inside of an apartment
that contained two unarmed individuals, as well as several children. The State also established that
Readus’s firing of the gun resulted in the death of Sherry and serious bodily injury to Marlow. This
was confirmed by the two eyewitnesses, Marlow and Yuvonda. Further, Readus himself admitted
pulling out the gun and firing it inside the apartment. We fail to see how this is any different from
the classic example of depraved heart murder of shooting into a crowd. Though Readus claims that
the gunshots were accidental, his statement to police contradicts that assertion. On the day that he
was questioned by police Readus stated, “we were still tussling and I pulled the pistol and shot
Marlow Jackson and Sherry Readus.” He never expressed to police that he did not mean to shoot
the two victims. Further, Readus testified at trial that he pulled out the gun with the intention of
shooting it. In either event, whether the shooting was accidental was a question for the jury. In light
of the evidence presented, we find that a rational juror could conclude that Readus committed both
depraved heart murder and aggravated assault.
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¶16.
In reviewing a weight of the evidence issue, we will not reverse unless the verdict is "so
contrary to the overwhelming weight of evidence that to allow it to stand would sanction an
unconscionable injustice." Bush, 895 So. 2d at 844 (¶18). The reviewing court weighs the evidence
in the light most favorable to the verdict. Id. If the verdict is contrary to the overwhelming weight
of the evidence, the proper remedy is a new trial, but this remedy is reserved for "exceptional cases
in which the evidence preponderates heavily against the verdict." Id. (citation omitted). Unlike
reversal for insufficiency of the evidence, reversal based on the weight of the evidence does not
mean that acquittal was the only appropriate remedy, but the Court, sitting as a hypothetical
"thirteenth juror," disagrees with the jury's assessment of conflicting testimony and believes that a
new trial is necessary. Id.
¶17.
In the present case, we find nothing that would lead this Court to disagree with the jury’s
assessment of the conflicting testimony with which it was presented. Two eyewitnesses testified
that Readus fired a gun inside an occupied apartment. Readus did not deny this fact, and he did not
deny that he pulled out the gun with the intention of shooting it. He only contends that his
testimony, as well as that of Yuvonda, showed that Sherry and Marlow were accidentally shot. It
was the jury’s job to weigh this testimony, as well as the credibility of the witnesses, in reaching
their verdict. Viewing the record as a whole and in the light most favorable to the verdict, we cannot
say that allowing the verdict to stand would sanction an unconscionable injustice. We find no merit
to this issue.
CONCLUSION
¶18.
For the foregoing reasons, the judgment of the trial court is affirmed.
¶19. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY OF
CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT AND
CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS TO
RUN CONCURRENTLY ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT
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OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO
THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES,
ROBERTS AND CARLTON, JJ., CONCUR.
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