FRANKLIN FITZPATRICK a/k/a FRANKLIN L. FITZPATRICK
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 05/10/2013
TIPPAH COUNTY CIRCUIT COURT HON. ANDREW K. HOWORTH
ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN T. COOK GEORGE T. HOLMES
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LADONNA C. HOLLAND
DISTRICT ATTORNEY: BEN CREEKMORE
WALLER, CHIEF JUSTICE,
¶1. Franklin Fitzpatrick murdered Sheriff's Deputy Dewayne Crenshaw. He was convicted and sentenced to life in prison without the possibility of parole. Three issues are raised on appeal: (1) whether the jury instruction allowed for conviction without a proper showing of the requisite mental state, (2) whether the trial court erred when it overruled Fitzpatrick's motion for new trial based on the weight of the evidence, and (3) whether Fitzpatrick is procedurally barred from challenging the elements jury instruction on appeal because he did not object to it at trial. Because the jury instruction was a correct statement of the law, and Fitpatrick's arguments are otherwise without merit, we affirm Fitzpatrick's conviction and sentence.
FACTS AND PROCEDURAL HISTORY
¶2. On December 2, 2010, Franklin Fitzpatrick and Joani Clifton purchased a synthetic stimulant commonly referred to as "bath salts" from a convenience store in Mantachie, Mississippi. These synthetic drugs can cause individuals to become aggressive and hallucinate, experiencing what is referred to as amphetamine psychosis. At the time Fitzpatrick purchased and consumed the drug, bath salts were not illegal under Mississippi law.
¶3. After obtaining the bath salts, Fitzpatrick and Clifton drove to Pontotoc, where they both consumed some of the drug. Afterward, the two went to the home of Matt Thrasher, a friend of Clifton, in Tippah County. There, Fitzpatrick ingested more bath salts and consumed marijuana and crystal methamphetamine.
¶4. In the early morning hours of December 3, it became apparent that Fitzpatrick had "taken too much" bath salts, and he began to act erratic. At one point, Fitzpatrick took out his cell phone and called Clifton, who was seated right next to him. He began sweating, hallucinating, "talking out of his head, " and claiming to see the devil.
¶5. Thrasher brought Fitzpatrick a wet rag to cool him off, but Fitzpatrick became aggressive and the two started to fight. Thrasher stated Fitzpatrick was "slinging [him] around like a rag doll, " but he somehow broke loose. Thrasher then ran to his parents' house, which was nearby, and called 911. Clifton and Fitzpatrick left in Clifton's vehicle, but shortly after pulling away, Clifton decided she was too intoxicated to handle a hallucinating and aggressive Fitzpatrick while driving. She also was scared that Fitzpatrick would "hurt [her], " so she drove back to Thrasher's house. Deputies from the Tippah County Sheriff's Department soon arrived.
¶6. Deputy Rodney Callahan was the first officer on the scene. When he got to Thrasher's house, Fitzpatrick was pacing in the driveway wearing just a t-shirt and sweating profusely, despite it being a chilly December night. Deputy Callahan recalled that Fitzpatrick was "really wet" when he arrived and that the whites of Fitzpatrick's eyes were "really large." Officer Callahan testified that Fitzpatrick kept pacing back and forth, licking his lips. Fitzpatrick repeatedly requested that Deputy Callahan pray with him, and he kept saying that he thought the devil was "coming to get" him. Deputy Callahan described Fitzpatrick as irrational and hallucinating.
¶7. Deputy Callahan asked Fitzpatrick what was going on, but Fitzpatrick just kept repeating that the devil was coming for him. Unable to discern whether Fitzpatrick was on drugs or suffering from some medical condition, Deputy Callahan called an ambulance. Fitzpatrick then approached Deputy Callahan, touching the sleeve of his uniform as he asked Deputy Callahan to pray with him. Deputy Callahan advised Fitzpatrick not to approach him like that again or he would tase him. Fitzpatrick backed off, and Deputy Callahan spent the next several minutes trying to get Fitzpatrick to calm down. Fitzpatrick, however, began expressing his fear that Deputy Callahan might shoot him, although the Deputy never drew his weapon and repeatedly told Fitzpatrick that he only wanted to talk.
¶8. Within minutes of Deputy Callahan's arrival, Deputy Dewayne Crenshaw also arrived. The deputies continued to try to calm Fitzpatrick down but concluded it was best for his and their own safety if they restrained Fitzpatrick. When the deputies attempted to handcuff him, Fitzpatrick resisted, and a scuffle ensued. During this encounter, Fitzpatrick gained control of Deputy Callahan's service weapon and used it to kill Deputy Crenshaw. When he first heard the shots, Deputy Callahan thought Deputy Crenshaw had shot Fitzpatrick, but when he reached for his weapon and it was not there, he realized what had happened. Fitzpatrick had yanked Deputy Callahan's weapon from his holster during the struggle and had used it to shoot Deputy Crenshaw.
¶9. Deputy Callahan immediately took cover behind Clifton's SUV, which was parked in front of his patrol car. From there, he noticed Fitzpatrick no longer had the pistol, so he decided to try to subdue him. An intense struggle ensued, but Deputy Callahan could not gain the upper hand. Fortunately, at this point, the ambulance that Deputy Callahan had requested when he first got to Thrasher's house arrived.
¶10. Deputy Callahan, despite being in a fierce struggle with Fitzpatrick, told the paramedics to first check on Deputy Crenshaw, but it was too late. Deputy Crenshaw was dead. After tending to Deputy Crenshaw, the paramedics joined the struggle to subdue Fitzpatrick. In the end, it took four or five people to bring Fitzpatrick under control. ¶11. Several witnesses testified that Fitzpatrick was incoherent and acting bizarrely during this whole ordeal. In fact, one paramedic stated that Fitzpatrick "probably didn't know he was doing like he was. When he was wrestling with us, I don't even know if he knew he was wrestling with us."
¶12. Once in custody, Fitzpatrick was taken to the emergency room of a nearby hospital. A search warrant was obtained for his blood, which tested positive for marijuana and methylenedioxypyrovalerone (MDPV), the chemical component in bath salts. A subsequent urine analysis also showed Fitzpatrick had methamphetamine in his system at the time. ¶13. Later, Fitzpatrick, after waiving his Miranda rights, gave a statement to the police. He claimed he had no recollection of the events that night after he and Clifton returned to Thrasher's house after attempting to leave.
¶14. On January 18, 2011, a Tippah County grand jury returned an indictment against Fitzpatrick, charging him with capital murder of a peace officer. After a change of venue, Fitzpatrick was tried in Lafayette County with jurors from Attala County. On May 9, 2013, the jury returned a verdict of guilty of capital murder. Fitzpatrick waived his right to a sentencing hearing, and the State recommended he be sentenced to life without parole for the murder of a police officer and as a habitual offender under Mississippi Code Section 99-19-81. Subsequently, Fitzpatrick filed a timely motion for a judgment notwithstanding the verdict (JNOV) or alternatively a new trial, which the trial judge denied. Fitzpatrick now appeals, raising two issues:
1. Whether the State's elements instruction contained an improper statement of the law.
2.Whether the trial court erred when it overruled Fitzpatrick's motion for a new trial because the overwhelming weight of the evidence does not support a conviction for capital murder of a peace officer.
The State raises a third issue:
3. Whether Fitzpatrick is procedurally barred from challenging the elements jury instruction on appeal because he did not object to it at trial.
1. Whether the State's elements instruction contained an improper ...