RANDOLPH, Presiding Justice.
¶1. Victoria P. Swanagan was convicted by a jury of the depraved-heart murder of Vincent Hill and was sentenced to twenty-five years in the custody of the Mississippi Department of Corrections (MDOC), with ten years suspended, fifteen years to serve, and five years of supervised probation.
STATEMENT OF THE FACTS AND PROCEEDINGS BELOW
¶2. At trial, Derrick Sims testified that he and Vincent P. Hill worked together. When Sims arrived at Swanagan's home to pick up Hill for work, he heard Swanagan and Hill arguing in her house. Swanagan exited her house and went next door to her mother's house. During that time, Hill stayed inside Swanagan's house. When Swanagan returned, Sims heard a "ruckus." After a while, Hill came rushing out of the house without a shirt. "About the time he made it halfway down the stairs she hit him in the back of the — Victoria hit him in the back of the head."
Swanagan opened the passenger door and got in the truck. Hill told Sims to drive to work. Sims also testified that no one forced Swanagan to get in his truck.
¶3. Swanagan and Hill continued arguing in the truck. The arguing escalated, and Swanagan hit Hill. Sims testified that Hill could not strike Swanagan, "[b]ecause he was so tall in the truck it's like how she was over him he couldn't move." Then Swanagan bit Hill. Hill started yelling and screaming, causing Sims to stop the truck. Sims got out of the truck and opened the passenger door. Swanagan and Hill fell out at the same time. As they were falling to the ground, Hill hit Swanagan on top of her head. Sims testified that Hill hit Swanagan only that one time, before he jumped up and ran to the truck, yelling at Sims to "come on."
¶4. Sims was behind the truck, headed toward the driver's side door, when he heard the first gun shot and saw Swanagan with a gun, shooting at the truck. Swanagan was on the ground and had her hand securely on a pistol, pointing up at the truck. As Hill started to drive off, Sims heard two more shots. After Swanagan had put the gun down, she told Sims she would buy him a new window.
¶5. Sims heard his truck stop running, and he ran off toward it. Sims found the truck in some woods nearby. Sims found Hill "in the center of the dashboard dead." Sims then jumped in the truck and drove to Swanagan's residence. "I jumped out of the truck immediately, and I couldn't say nothing but you killed him. . . . I just got in the truck and left the scene." Sims then drove to a service station because he wanted to be safe.
¶6. Sims testified that he neither owned a gun nor had a gun in his possession the day Hill was killed. He said Hill knew that Sims no longer owned a gun. Even when Sims did own a gun, he carried it in his truck only when he went fishing, but never to work. Sims testified that Swanagan had been fishing with Sims and Hill, but she also knew he had gotten rid of his gun.
¶7. Felicia Robinson, a forensic scientist with the Mississippi Forensic Laboratory, was accepted as an expert in the field of forensic analysis of firearms and tool marks. Robinson testified that the projectile submitted to the crime lab from Hill was fired from the firearm retrieved from Swanagan's property.
¶8. Lisa Funte, a state forensic pathologist, was accepted as an expert in the field of forensic pathology. Funte testified that she performed the autopsy on Hill. During the autopsy, Funte noted abrasions and contusions on his face, neck, hands, and legs. Funte also found
¶9. After the State rested and motions were denied, Swanagan offered her defense.
Barbara Swanagan, mother of Victoria Swanagan, testified that on the morning Hill was killed, her daughter came over to her home twice. She heard noise in her daughter's home each time Swanagan returned home. Barbara went outside and called for her daughter. Both Swanagan and Hill exited the house. Barbara tried to defuse the situation by talking calmly to both Hill and Swanagan, but Hill cursed at Barbara.
¶10. After thinking she had calmed everyone down, Barbara turned to go back in her house. As she turned, she heard the truck start. She saw the truck start and stop several times and was worried that something was not right. She asked her daughter-in-law to call 911, and while Barbara was talking to the 911 operator, she heard gunshots. Barbara saw her daughter walking toward them with a gun in her hand. Barbara was neither in her daughter's house when Swanagan and Hill were fighting, nor did she see her daughter shoot Hill.
¶11. Swanagan testified that, on the morning Hill was shot, she asked him about text messages she had received from his family, and he "blew up" at her. Hill accused her of cheating on him and then made sexual advances towards her. When she refused, he began to shove, hit, and call her names. She said this continued for more than ten minutes.
¶12. When Hill refused to leave, Swanagan walked to her mother's house to get ready for work but then returned after she heard noises coming from her house. She returned and found that Hill had turned over stands, knocked things off of furniture, and punched holes in her walls. Swanagan tried to gather her things for work. Hill refused to leave and continued to knock things over. He then ripped off his shirt.
¶13. Swanagan grabbed her purse and went back to her mother's house. She heard noises again, went home, and found that Hill was still tearing her house apart. They began to argue again, and at some point, her tooth was knocked out.
¶14. Swanagan then heard her mother calling for her. She and Hill went outside. Hill got in Sims's truck, while pulling her into the truck. As she was trying to figure out how to get out of the truck since the passenger-side door had no handle, Hill hit her from behind. Hill told Sims to "crank the truck. Let's go. We're gonna drop this bitch off on the side of the interstate." Hill began twisting Swanagan's arms, pinning her, and then tried to bite her, but she was able to bite him first. When she bit him, he yelled, and Sims stopped the truck. Sims then opened the passenger-side door from outside the truck. Hill shoved Swanagan out of the truck. While she was on the ground, Hill continuously kicked her. Swanagan tried to protect herself from his blows. While Hill was kicking her, his gun fell out. Swanagan rolled on top of the gun when Hill tried to retrieve it.
¶15. After he was unable to get the gun, Hill began to back up, nearing the truck. As Hill got close to the truck, he reached behind him, trying to get something out of the truck. Swanagan feared that Hill was trying to find Sims's gun that he kept in his truck. Swanagan was "scared for her life" and told Hill to leave. He did not leave, but instead continued "fidgeting" in the truck. Swanagan then fired the gun, hoping Hill would leave. Hill then called Swanagan a "dumb bitch." She recalled screaming for Hill to leave and the gun going off two or three more times. At some point Hill got back in the truck and drove away, but Swanagan could not recall when she fired the other shots. When she saw that Hill was leaving, she began walking back to her house.
¶16. The jury found Swanagan guilty of depraved-heart murder. Swanagan was sentenced to a term of twenty-five years in the custody of the MDOC, with ten years suspended and five years to be served on supervised probation. Subsequently, Swanagan filed a motion for judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, arguing that "the State failed to prove [Swanagan] was not acting in self-defense at the time [Hill] was shot." Swanagan also argued that, if she was not acting in self-defense, at most the evidence presented at trial established that she was acting in the heat of passion, which "would mitigate the murder to manslaughter." The trial court denied her motions after determining the jury was properly instructed and had heard the facts, before finding Swanagan guilty of depraved-heart murder.
STATEMENT OF THE ISSUES
¶17. Swanagan raises the following four issues on appeal:
I. Whether the evidence was insufficient to support the verdict.
¶18. When considering a sufficiency-of-the-evidence argument, this Court has said that:
¶19. Swanagan argues that the evidence failed to establish beyond a reasonable doubt that she (1) did not act in necessary self-defense and (2) acted with malice and not in the heat of passion.
¶20. Swanagan argues that because she raised self-defense, the State had the burden of proving beyond a reasonable doubt that she did not kill Hill in self-defense. Swanagan claims that the State failed to meet its burden of proving beyond a reasonable doubt that she did not act in self-defense when she killed Hill. The State responds that it submitted sufficient evidence such that a reasonable jury could have found beyond a reasonable doubt that Swanagan killed Hill with a depraved heart and not in necessary self-defense.
¶21. Mississippi's justifiable homicide statute states that:
Miss. Code Ann. § 97-3-15(1)(f) (Rev. 2014). Evidence was presented that Hill was unarmed at the time Swanagan shot and killed him. When police arrived at Swanagan's residence, they were instructed that a gun had been placed in a bucket by Barbara, after she had retrieved the gun where Swanagan had laid it on a car. That was the only weapon recovered — the gun Swanagan used to shoot Hill. Sims testified that Swanagan shot at Hill at least three times. Sims also testified that Hill was trying to get in the truck and drive away when Swanagan shot him. Furthermore, Swanagan admitted that she had shot at Hill at least three times. She could not recall if Hill was still in front of her or if he had gotten in the truck and was driving away when she fired the last two shots. The autopsy showed that Hill died from a bullet wound to his chest. Experts determined that the fatal shot came from the gun recovered at Swanagan's home.
¶22. "The issue of justifiable self-defense presents a question of the weight and credibility of the evidence rather than sufficiency and is to be decided by the jury."
¶23. Swanagan alternatively argues that the State failed to prove beyond a reasonable doubt that she acted with the malice required for a depraved-heart murder conviction. She insists the proof demonstrates that she acted in the heat of passion, and the murder conviction should be reduced to a manslaughter conviction. The State counters that Swanagan's actions were performed with malice and that her actions exceeded the level of mental culpability required for heat-of-passion murder. Both arguments are misguided as to a requirement of malice for a conviction for depraved-heart murder. While Swanagan is correct that the State failed to prove she acted with malice, the jury did not convict her of a crime which required malice. The word malice is not found in Section 97-3-19(1)(b) of the Mississippi Code, which specifically reads that depraved-heart murder is "without any premeditated design...." Miss. Code Ann. § 97-3-19 (1)(b) (Rev. 2014). Only subsection (1)(a) in Section 97-3-19, i.e., murder, requires a finding of malice.
¶24. Swanagan was found guilty of depraved-heart murder, now "second-degree murder," which is a killing "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. . . ." Miss. Code Ann. § 97-3-19(1)(b) (Rev. 2014) (emphasis added). Depraved-heart murder encompasses "a reckless and eminently dangerous act directed toward a single individual."
¶25. Evidence was presented that Swanagan fired at least three shots directly at Hill, and that she did not stop firing until he fled. The first shot shattered the passenger window, followed by two more shots. Given the evidence presented and comparing her actions with the statutorily required elements for depraved-heart murder, the jury had more than sufficient evidence to find that Swanagan was guilty of depraved-heart murder, not manslaughter. This issue is devoid of merit.
II. Whether the verdict was against the overwhelming weight of the evidence.
¶27. Swanagan argues that this Court should nullify the jury's verdict because the overwhelming weight of evidence in this case "creates serious doubt as to her guilt for murder and asks this Court to remand her case for a new trial to permit another jury to consider whether she is guilty of murder or only manslaughter. We decline her invitation.
¶28. "Conflicting testimony does not evince overwhelming evidence; where the verdict turns on the credibility of conflicting testimony and the credibility of the witnesses, it is the jury's duty to resolve the conflict."
III. Whether the trial court erred in its supplemental instruction in response to the jury's question as to the definition of depraved heart.
¶29. This Court has held that:
¶30. During the deliberations, the jury sent out a note asking for a definition of depraved heart.
Jury Instruction S-2 reads as follows:
Then you shall find Victoria P. Swanagan guilty of Depraved Heart Murder. If the prosecution has failed to prove any one or more of the above listed elements of Depraved Heart Murder, then you shall proceed in your deliberations to consider the lesser offense of Manslaughter.
¶31. Swanagan argues that the trial court erroneously responded to the jury's question by singling out Instruction S-2, giving it undue prominence in the jury's eyes. Swanagan contends that the trial court's response unduly prejudiced her trial because Instruction S-2 did not include a reference to self-defense. Swanagan alleges this may have misled the jury to believe that self-defense, or its absence, was not an applicable element to the crime of depraved-heart murder. Swanagan further argues that the trial court should have instructed the jury to reread all of the jury instructions and "perhaps given another depraved heart murder instruction that covered the omission in instruction S-2 by including not in necessary self-defense."
¶32. Both of these arguments are procedurally barred because Swanagan did not object to the trial court's response, nor did she object to Instruction S-2. As the State argues, "when a party fails to make a contemporaneous objection, the appellate court is under no obligation to review the assignment of error."
¶33. Notwithstanding the procedural bar, these arguments are without merit. First, the trial court did not abuse its discretion in responding to the jury's inquiry. The instructions provided by the court demonstrated the proper rules of law and were not erroneous. Additionally, the court's Instruction S-2 was not in error. "The instructions, together, fully and accurately informed the jury of state law, and the trial court did not err in directing the jury to review [S-2]."
¶34. Second, Instruction S-2 was a proper statement of the law and does not require amendment, as argued by Swanagan. In
¶35. The jury received not one, but three separate instructions on self-defense. Instruction D-1 defined self-defense; D-2 instructed that the burden of proof was on the State to prove Swanagan did not act in self-defense; and D-3 informed the jury that Swanagan had a right to defend herself from any unjustified attack on her person and to use such force necessary to repel her attacker.
¶36. We find that the jury was instructed properly on self-defense and rejected her claim of self-defense. This issue is devoid of merit.
IV. Whether Swanagan received ineffective assistance of counsel.
¶37. If an ineffectiveness claim on direct appeal is based on facts fully apparent in the record before us, the Court will address the ineffective-assistance-of-counsel claim. M.R.A.P. 22(b). See
¶38. The substantive standard of review for an ineffective-assistance claim is twofold: "In order to prevail on a claim of ineffective assistance of counsel, a defendant must prove that his attorney's performance was deficient, and that the deficiency was so substantial as to deprive the defendant of a fair trial."
¶39. Swanagan's appellate counsel
¶40. "When claiming ineffective assistance of trial counsel because of jury instructions, `[i]t is the duty of the appellant to demonstrate both error in failing to receive the instruction and the prejudice to the defense.'"
¶41. Culpable-negligence instructions are most commonly found in DUI and other automobile cases, which address negligent or grossly negligent conduct. The State never claimed any gross or willful acts of negligence, and Swanagan never defended under a theory of negligence. In non-auto cases, we have held that comparable evidence found in today's case does not support an instruction for culpable negligence:
¶42. As held supra, evidence was presented, and Swanagan admitted, that she fired at least three shots directly at Hill. We find no error by Swanagan's trial counsel in failing to request an instruction on culpable negligence or on accident or misfortune, for the facts presented in the record before us do not support any of these instructions. This claim is devoid of merit.
¶43. For the reasons stated above, we affirm Swanagan's conviction and sentence.