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MICHAEL ANTHONY BLANKS v. STATE OF MISSISSIPPI

JUNE 21, 1989

MICHAEL ANTHONY BLANKS
v.
STATE OF MISSISSIPPI



BEFORE HAWKINS, P.J., PRATHER AND ANDERSON, JJ.

HAWKINS, PRESIDING JUSTICE, FOR THE COURT:

Michael Anthony Blanks appeals from his conviction of manslaughter in the circuit court of Lauderdale County and sentence to twenty years imprisonment. Because of the erroneous admission of prejudicial evidence, we reverse.

FACTS

 Michael Anthony Blanks was born April 4, 1968, out of wedlock. He was reared by his mother, who later married Willie Burns and had three more children, several years younger than Michael. On Saturday, October 25, 1986, they lived in St. Andrew Apartment No. 35 at 2801 St. Andrew Street in Meridian. Michael was in the eleventh grade. He was blind in the left eye as a result of a B-B gun shot wound when he was six years of age.

 On that day James Earl Patton, Jr., nicknamed "Pap," lived

 with his parents Lillie Mae and James Earl Patton, Sr., and a younger brother and sister at Apartment 17, 2812 St. Andrew Street. Pap was born March 15, 1969, and was also in the eleventh grade. Michael and Pap had been schoolmates and friends since the third grade. James Lemon, who was in the tenth grade and lived at 2017 St. Andrew, was also a friend of both these boys.

 Caroline Blanks left around 1:30 that afternoon to visit an invalid aunt in Columbus, taking the three younger children with her. She returned just after dark the next day. Michael was left at the apartment alone. Mrs. Blanks owned a .25 caliber automatic pistol, which she usually carried with her back and forth to work, but left her purse in the apartment that day. She ordinarily tried to keep it hidden in the closet at home, and when she carried it in her car, she put it in a door pocket. Around 6:30 that evening Michael asked Pap's parents if he could come over. This was the last time Mr. and Mrs. Patton saw their son alive. That evening Michael came by the Patton house around 8:30-9:00 o'clock and asked Mr. Patton had he seen Pap, and Mr. Patton told him that Pap was supposed to be at his house. Mr. and Mrs. Patton worried that night over Pap's not returning home, and the next morning Mrs. Patton went to Michael's house and asked him if he had seen Pap, and he told her that he had not. That afternoon Michael also told Mr. Patton that he knew nothing about Pap's whereabouts. On Monday, October 27, Michael came by the Patton's home, again inquiring about Pap. On two or three subsequent occasions Michael telephoned the Patton residence inquiring about Pap.

 On Sunday, November 2, the body of Pap was found near Sowashee Creek, a hollow approximately 450 feet from Michael's apartment. This area was deserted and covered with weeds and bushes.

 Both Lemon and Michael were questioned by the Meridian police on November 2, but not particularly as suspects. Michael, however, was given the Miranda warning, and gave a detailed written statement of Saturday, October 25, but denied knowing anything about Pap's death.

 Although the corpse was decomposing and maggot-ridden, Dr. James Neill, a pathologist, determined that Pap had been killed by one shot in the head, the bullet entering the area of the left eye.

 R. D. Harris was principal of the high school attended by Pap and Michael. On November 5 there was a short memorial to Pap over the public address system, and a request for silent prayer. A few minutes later a student from Michael's class reported to

 Mr. Harris that Michael was "very upset" and that he needed to talk to him. Mr. Harris sent Grace Otis, Michael's counselor, to get him and talk to him. A few moments later Mr. Harris passed her office, and asked Michael if he wanted to say anything, but he did not reply. Mr. Harris then took Michael to his office, and told him if he wanted to cry, it was all right to do so. Mr. Harris then put his hand on Michael's shoulder. He testified in court as follows:

 Q. What happened next?

 A. I put my hand on his shoulder and he started to talk and he said, "Well, it was an accident." I said, "What was an accident? Is there something you need to tell me?" You know. And, he said that they had - they had the gun that night - that Michael had seen the gun and that he picked it up and was curious about it and he asked him how the gun worked.

 Q. Did he say where he saw the gun?

 A. On a bookstand I think he said, in the front room where they were. That it was over behind the book and he took it out and they looked at it and James asked him how did the gun work and he proceeded to show him and that's when the gun went off.

 Q. Did he state how the gun went off?

 A. No. I think as I remember he said he pulled the trigger.

 Q. Now, when you say he -

 A. Michael.

 Q. Did you ask Michael how he got the body out of the house?

 A. I did. I asked him and he said he got a Winn-Dixie grocery cart.

 Q. Did you ask him about what time this was?

 A. No, sir. At that point I asked him if he had told his mother and he said no. And, so I proceeded to call his mother and told her we had a little emergency or crisis and she asked what it was and I told her, "I prefer you to come out and let's

 talk."

 Q. Did you call the police?

 A. After his mother got there and we talked to her and I told her we had to call the police. At that time I called Chief Marlow and asked specifically to speak to him. He was out and Assistant Chief Miller then put me in touch with the detective that was assigned to the case.

 Q. Did you have any more conversation with Michael Blanks pertaining to what happened that night?

 A. No, sir.

 (Vol. I, pp.109-110)

 When Michael's mother arrived at the school, they embraced, and Michael started crying. He told her that it was an accident. Mrs. Burns (Blanks) then telephoned an attorney.

 When Michael was arrested, he refused to give any statement to the police, no doubt on the advice of his lawyer, and telling them that he was "taking the Fifth."

 On November 20, 1986, Michael was indicted by the Lauderdale County grand jury for the murder of James Patton, Jr., "done in acts eminently dangerous to James Patton, Jr., and others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of James Patton, Jr.," in violation of Miss. Code Ann. 97-3-19 (1) (b).

 This statute reads:

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

 (1) The killing a human being without the authority of law by any means or in any manner shall be murder in the following cases:

 * * * * *

 (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;

 Michael testified at trial that when Pap was in his

 apartment the night of October 25, that he saw the pistol and asked to be shown how it worked. He testified:

 A. . . . and I started to show him how it works and I got the gun out and took it off safety and then I got the cartridge and put it in the gun and pulled the lever back on it and then I took the cartridge back out and I was putting the gun back on safety and it went off.

 Q. Michael, have you ever shot that gun before?

 A. No, sir.

 Q. What instructions, if any, did your mother give you about the gun?

 A. She didn't tell me anything as to how it worked or nothing.

 Q. Were you supposed to have the gun?

 A. No, sir.

 (Vol. II, p. 137)

 He testified he tried to revive Pap without success, even giving him mouth-to-mouth resuscitation. In a short while he went to Lemon's house, and went with Lemon to a store. Michael returned to his apartment. He then went and got a shopping cart, returned to the apartment, and loaded the body onto the cart. He then took the body in the cart between the apartments over near the creek, where he dumped it, and also left the cart. This was around 10:30 p.m. on Saturday, October 25. He testified the reason he lied about the killing was that he was scared and confused.

 The jury was instructed on murder under Miss. Code Ann. 97-3-19 (1) (b), as well as manslaughter by culpable negligence.

 The jury returned a verdict of guilty of manslaughter, and Michael was sentenced to twenty years.

 On appeal he assigns numerous errors.

 LAW

 We first address the sufficiency of the evidence under assignment number five. In doing so, we start with the well-settled proposition that the unexplained killing of one

 person by another is presumed to be malicious, and therefore murder. See, Nicolaou v. State, 534 So.2d 168 (Miss. 1988); Whittington v. State, 523 So.2d 966 (Miss. 1988); Fairchild v. State, 459 So.2d 793 (Miss. 1984); Hendrieth v. State, 230 So.2d 217 (Miss. 1970); Shields v. State, 244 Miss. 543, 144 So.2d 786 (1962); Hughes v. State, 207 Miss. 594, 42 So.2d 805 (1949); Wright v. State, 162 Miss. 494, 139 So. 869 (1932); Hawthorne v. State, 58 Miss. 778 (1881).

 This presumption has no application where there are eyewitnesses to the slaying other than the accused, who relate the facts and circumstances surrounding the killing. See, Tigner v. State, 478 So.2d 293 (Miss. 1985); Reed v. State, 229 Miss. 440, 91 So.2d 269 (1957).

 Where the only eyewitness to the slaying is the accused, another rule of law becomes applicable, the familiar Weathersby Rule, Weathersby v. State, 165 Miss. 207, 147 So. 481 (1933). If the defendant's version of the killing is reasonable, it must, as a matter of law, be accepted as true, unless "substantially contradicted in material particulars by a credible witness, . . . or by the physical facts or by facts of common knowledge." Also, Harveston v. State, 493 So.2d 365 (Miss. 1986). A defendant who met the Weathersby Rule would be entitled to a directed verdict of acquittal.

 As stated in Weathersby, and many of our subsequent decisions, this rule has no application where the defendant's version is patently unreasonable, or contradicted by physical facts. Where the defendant is the only eyewitness to a slaying, his version must be reasonable and credible before he is entitled to an acquittal under the rule.

 And, there is still another circumstance which still precludes the application of the Weathersby rule, and that is where the accused, following the slaying, gives conflicting versions of how the killing took place, or initially denies the act. See, Smith v. State, 530 So.2d 166 (Miss. 1988); Burge v. State, 472 So.2d 392 (Miss. 1985); May v. State 460 So.2d 778 (Miss. 1984).

 As we explained in Harveston v. State, supra, the Weathersby rule is simply a statement of a well-recognized principle of law that where the defendant's, and sole eyewitness's, version of a slaying is uncontradicted, reasonable and credible, it must be believed. And, if such version creates an absolute legal defense, he is entitled to a directed verdict of acquittal.

 In those cases in which the defendant is the only eyewitness to the slaying, and in which the ...


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