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MARION ALBERT PRUETT v. STATE OF MISSISSIPPI

FEBRUARY 23, 1983

MARION ALBERT PRUETT
v.
STATE OF MISSISSIPPI



EN BANC

BOWLING, JUSTICE, FOR THE COURT:

Appellant Marion Albert Pruett was indicted in the Circuit Court of the First Judicial District of Hinds County for the crime of capital murder. Venue was moved to Lowndes County and in a bifurcated trial, as required by statute and prior decisions of this Court, he was found guilty of the

crime at the conclusion of the guilt phase. After presentation of the penalty phase to the jury, it found that appellant should be put to death as the penalty for his crime. On appeal to this Court, appellant assigns four alleged reversible errors as follows:

 I. THE LOWER COURT ERRED IN ASSUMING JURISDICTION AND VENUE OVER APPELLANT ON THE CHARGE OF CAPITAL MURDER; IN OVERRULING APPELLANT'S MOTION TO QUASH THE INDICTMENT, DIRECTED VERDICT AND PEREMPTORY INSTRUCTION; AND IN GRANTING THE STATE'S INSTRUCTION S-1.

 II. THE LOWER COURT ERRED IN OVERRULING APPELLANT'S MOTION TO SUPPRESS EVIDENCE AND ADMITTING CONFESSIONS INTO EVIDENCE WHICH WERE ELICITED FROM APPELLANT BY PROMISES OF DRUGS FROM AUTHORITIES.

 III. THE LOWER COURT ERRED IN SEATING MR. SIDNEY GRAHAM (JUROR # 8) ON THE JURY AND APPELLANT WAS DENIED THE OPPORTUNITY TO EXERCISE PEREMPTORY CHALLENGES IN AN INTELLIGENT AND KNOWLEDGEABLE MANNER BECAUSE OF SAID JUROR'S MISSTATEMENTS DURING VOIR DIRE.

 IV. THE LOWER COURT ERRED IN ADMITTING AN EDITED TELEVISION INTERVIEW INTO EVIDENCE AT THE SENTENCING PHASE OF THE TRIAL.

 Appellant was indicted under Mississippi Code Annotated, Section 97-3-19(2)(e) (Supp. 1082), which provides as follows:

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

 * * *

 (e) When done with or without any design to effect death, by any person engaged in the commission of the crime of rape, burglary, kidnapping, arson or robbery, or in any attempt to commit such felonies;

 The punishment phase of the bifurcated trial was conducted pursuant to the provisions of MCA 99-19-101 (Supp. 1982). It should first be noted that no error is assigned because of any alleged failure to follow the provisions of the statute.

 The facts of the crime are practically admitted in their entirety, except for one instance; that is, the events immediately prior to appellant shooting the deceased, Peggy Lowe. All underlying occurrences were testified to by appellant as his only witness during the guilt phase of the trial. There is no contention or indication that Pruett was mentally incompetent. In fact, the entire record and history of this particular case, as well as Pruett's prior activities, clearly reveal that he is a very intelligent and crafty person. The circumstances leading to the death of Peggy Lowe were clearly revealed by appellant's sworn testimony at the trial. Early on the morning of September 17, 1981, appellant appeared at the branch office of Unifirst Savings & Loan Association located in the Metrocenter shopping area where Peggy Lowe worked with three other female employees. According to appellant, he picked out this business because no male employees were present, stating that men would be more likely to give him trouble than women. Appellant had stayed the prior night at a motel not very far from the area. The purpose of appellant entering the savings and loan association branch office admittedly was to commit an armed robbery and to take a hostage for the purpose of making his escape. During the progress of the armed robbery, Mrs. Lowe received a call from her son and made an engagement to meet him for lunch. Appellant decided that it would suit his purposes better to take Mrs. Lowe as hostage rather than the other person originally selected.

 The armed appellant then took the money and Peggy Lowe to her car and drove to another part of the shopping center. He then placed her in his car, drove around several streets in the area, and then drove to Interstate #20 and approximately 100 miles, without stopping, to Sumter County, Alabama. This county is adjacent to the Mississippi-Alabama state lines. During this entire ride appellant forced Mrs. Lowe to stay on her knees on the floorboard of the passenger front of the car, with her shoulders, arms and head downward on the seat. Whenever passing another vehicle or being passed, appellant would place his coat over Mrs. Lowe so she would not be seen. At one point during the ride, at the request of Mrs. Lowe, appellant permitted her to say a prayer.

 After driving into Alabama, appellant left the interstate highway, traveled on a gravel road for a distance and then turned onto a small country road where he stopped. Mrs. Lowe was taken from the car and carried into the woods. According to appellant, he then forced her to disrobe, except for her underclothes. The purpose of this was to keep her under his control so that she would not leave the area.

 Appellant testified he then went to his car, took a shot of cocaine and went back to check on his prisoner. He found that she had moved from the area. He then, by his own sworn testimony, instructed her to get on her knees, put her face down and repeat her husband's telephone number so that he could be called. Mrs. Lowe was in the process of doing this when appellant, according to his sworn testimony, shot her in the back of the head at close range. Appellant then drove away in his car and visited other parts of the country prior to being apprehended.

 POINT I. THE LOWER COURT ERRED IN ASSUMING JURISDICTION AND VENUE OVER APPELLANT ON THE CHARGE OF CAPITAL MURDER; IN OVERRULING APPELLANT'S MOTION TO QUASH THE INDICTMENT, DIRECTED VERDICT AND PEREMPTORY INSTRUCTION, AND IN GRANTING THE STATE'S INSTRUCTION S-1.

 The underlying contentions of appellant under the issues raised regarding this point are that appellant could not be indicted, tried and convicted for the crime of capital murder because the killing of Mrs. Lowe occurred in the State of Alabama.

 Appellant filed a motion attacking the jurisdiction of the Hinds County, Mississippi, court and a hearing was had under stipulation by the state and appellant. This stipulation was as follows:

 That Opal H. Lowe, a/k/a Peggy Lowe, died on or about September 17, 1981. That Opal H. Lowe, a/k/a Peggy Lowe, died in Sumter County, Alabama. That said death was caused by a gunshot wound to the back of the head as more fully shown by the autopsy report; that the instrumentality causing the gunshot wound to Opal H. Lowe, a/k/a Peggy Lowe was inflicted in Sumter County, Alabama, on or about September 17, 1981. That said gunshot was fired in the State of Alabama, and the fatal injury as aforesaid, was sustained in the State of Alabama; that Opal H. (Peggy) Lowe had been taken by force, held hostage, and kidnapped in Jackson, Hinds County, Mississippi, on the 17th day of September, 1981, and transported against her will across the Mississippi-Alabama state line into Sumter County, Alabama, where the said Opal H. Lowe, a/k/a Peggy Lowe, sustained the aforesaid gunshot wound. That the body of Opal H. (Peggy) Lowe was found

 in Sumter County, Alabama, on the 27th day of October, 1981.

 Appellant contends that the killing of Mrs. Lowe was" murder "that occurred in the State of Alabama for which only Alabama had jurisdiction. He contends that the indictment and trial of appellant for" capital murder "did not change the act of killing from one single crime consummated in Alabama. Appellant cites several cases regarding venue and jurisdiction from courts of several states. We have examined those cases and find they have no application here. Unquestionably, the State of Alabama could have indicted and tried appellant for murder in that state. It did not do so. The first indictment returned against appellant was in Hinds County, Mississippi, from which county Mrs. Lowe admittedly was kidnapped.

 As hereinbefore stated, appellant was indicted under the provisions of MCA 97-3-19. Under that section the crime of" murder "is defined as the killing of a human being without authority of law by any means or in any manner in the following cases:

 (a) When done with deliberate design to effect the death of the person killed, or of any human being.

 (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.

 (c) When done without any design to effect death by any person engaged in the commission of any felony other than rape, kidnapping, burglary, arson or robbery, or in any attempt to commit such felonies.

 The specific indictment returned against appellant was that of" capital murder "under the provisions of MCA 97-3-19 (2)(e) which as hereinbefore set out required conviction for the killing of a human being without the authority of law by any means or in any manner, when done with or without any design to effect death by any person engaged in the commission of the ...


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