The opinion of the court was delivered by: Banks, Justice
ON PETITION FOR WRIT OF CERTIORARI
DATE OF JUDGMENT: 09/06/95
TRIAL JUDGE: HON. L. BRELAND HILBURN, JR.
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: REVERSED AND REMANDED - 12/10/98
¶1. Williams was convicted of murder in the beating death of Jessie Cutley which occurred in a public street while Cutley was walking home. Williams was indicted along with several other co-defendants. The Court of Appeals affirmed the conviction. We granted certiorari to consider whether the jury was adequately instructed. We conclude that it was not. His Petition for Writ of Certiorari challenges the Court of Appeals' findings on all nine assignments of error. Jury instructions allowing the jury to consider deliberate design murder and manslaughter were granted. The evidence of "deliberate design" (malice aforethought) is weak, and there was no instruction adequately explaining the required elements of deliberation or premeditation, to guide the jury in differentiating between murder and manslaughter. This error combined with trial court's failure to give a cautionary instruction regarding accomplice testimony requires reversal. Accordingly we reverse the judgment and remand this matter to the trial court.
¶2. During the early morning of May 27, 1994, Jessie Cutley began to walk from his cousin's house to his house located on Cherry Street in Jackson, Mississippi. As Mr. Cutley walked home, he eventually came into contact with Arnotia Baker, Kevin Smith, and Kevin's sister, Catrina Smith. Arnotia, Kevin's girlfriend, testified that as they walked from a store in the same area, she saw her father drive past on Terry Road. As she turned to the others and stated that her father had passed by, Mr. Cutley stopped in the street and smiled. Arnotia testified that Mr. Cutley must have thought she was speaking to him. At this point, Kevin went over to him and punched him in the head which made him fall down in the street. Don Williams, several other boys, and Kevin's other sister, Carla Smith, then walked up the street to where Mr. Cutley lay. They hit, kicked, and stomped him in the head, side and thighs as he bled in the street. *fn1 Two of the boys (not Williams) also threw a water gun and a beer bottle at Mr. Cutley's body. Jackson police later found these items at the scene.
¶3. Mr. Cutley died of multiple blunt head trauma. Nine persons were originally arrested for the killing, however only seven indictments were returned including Don Williams, the petitioner, who was tried and found guilty of murder. Carla Smith, Kevin Smith, Jeffrey Myers, and John Earl "June" Thomas pled guilty to manslaughter. Robert Hicks and Terry Edwards' trials were apparently pending at the time of Williams' trial. Catrina Smith, who was 12 years of age at the time of the incident, was prosecuted as a juvenile in youth court. Arnotia Baker, who was present that night, was never indicted.
¶4. Different versions of how the beating began were given by Katrina, Arnotia, and Jeffery Myers, accomplices in the beating. Katrina stated that Mr. Cutley called Arnotia a bitch. Arnotia initially stated in her police report that Mr. Cutley called her this name. However, she later denied that he made this statement, stating further that Kevin lied about the fact that Mr. Cutley called her a bitch. Arnotia testified that Mr. Cutley never called her any names, but merely acted friendly. It was her impression that Kevin merely wanted to start a fight with someone that morning. Jeffery testified that Mr. Cutley was minding his own business. He did not do or say anything to any member of their group to provoke them into a fight. It was uncontradicted that Kevin Smith struck the first blow with his fist knocking Cutley to the ground and was later joined by the others, including Williams, as the kicking began.
¶5. Katrina, Arnotia, and Jeffery also testified specifically that Williams was involved in the beating. Arnotia testified that she saw Williams kick and hit Mr. Cutley in the side during the same time the others were kicking and hitting. According to Jeffery, Williams kicked Mr. Cutley in the area of his legs. Only Katrina, age 12 at the time of the incident, testified that she saw Williams kick Mr. Cutley in the side and head.
¶6. Williams, along with Katrina, Carla, Kevin, Jeffrey and several other young men were arrested for murder. Williams' motion to sever his case from the other defendants was granted. A trial was held and Williams was convicted of murder and sentenced to life imprisonment. The Petition for Writ of Certiorari asserts that Williams is the only one of the group who stands convicted of murder.
¶7. On appeal, Williams assigned nine errors. These are set out as follows:
(1) The trial court improperly limited the cross-examination of pathologist Dr. Rodrigo Galvez and the introduction of possible mitigating and exculpating evidence.
(2) The trial court improperly limited the cross-examination of Jeffrey Myers.
(3) The jury was inadequately instructed on manslaughter and murder.
(4) The trial court erred in refusing to instruct the jury about malice aforethought and deliberate design.
(5) The trial court erred in refusing to give a cautionary instruction about accomplice testimony.
(6) The evidence did not adequately support a murder conviction.
(7) The sentence of the appellant was unconstitutionally disproportionate to the co- defendants' sentences.
(8) The jury was improperly instructed on reasonable doubt.
(9) The trial court erred in not giving a simple assault instruction.
We find merit in only two.
¶8. Williams contends that the Court of Appeals erred in ruling the trial court adequately instructed the jury about malice aforethought and deliberate design and that this conflicts with this Court's ruling in Peterson v. State, 242 So.2d 420 (Miss. 1970). In particular, in his direct appeal on this issue he complained of the trial court's denial of his requested instruction D-10 which read as follows:
The Court instructs the jury that to prove that the defendant acted with malice aforethought, the prosecution must prove beyond a reasonable doubt that the defendant acted with premeditation and deliberation.
Deliberation requires that an individual under the same circumstances as Don Williams, as shown by the evidence in this case, give consideration to the intent to kill. There is no prescribed length of time for deliberation.
A killing, even though intentional, committed on impulse in the heat of passion is without deliberation and without malice aforethought. *fn2
The Court of Appeals found that:
Although the term "malice aforethought" was not used in any accepted jury instruction, the term "deliberate design" was used in Instruction S-1. Deliberate design is synonymous to malice aforethought and synonymous phrases or interchangeable words may be used in a jury instruction and the jury still be properly instructed. Lancaster v. State, 472 So.2d 363, 367 (Miss. 1985). Though the precise definition of deliberate design was not given, this Court will not reverse for denial of an individual instruction when the jury has been instructed properly and fully by the granting of all the instructions. Catchings v. State, 684 So.2d 591, 599 (Miss. 1996). The elements of murder were sufficiently addressed by the granting of other instructions. This assignment of error is without merit.
¶9. While Peterson does approve the granting of instructions explaining the absence or presence of malice, the Court of Appeals applied this Court's holding in Catchings, which held that the granting of such an instruction was unnecessary where other instructions properly instruct the jury. *fn3 ¶10. However, in Catchings, the Court went on to hold that
Where deliberate design and manslaughter instructions are given, and "where under the evidence the jury might reasonably have concluded that the defendant acted in the heat of passion, we will ... ordinarily reverse." Blanks v. State, 542 So.2d 222, 227 (Miss. 1989)
However, in Nicolaou v. State, 534 So.2d 168 (Miss. 1988), this Court held that giving the "deliberate design" instruction and a manslaughter instruction was harmless error where the manslaughter instruction was not warranted under the evidence of the case. Id. at 173. Thus, whether the giving of the deliberate design instruction constitutes reversible error depends on whether the giving of the manslaughter ...