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JUNE 01, 1983




George David Tokman appeals a conviction of capital murder and sentence of death by a jury in the Circuit Court of the First Judicial District of Hinds County. It is a companion case to Leatherwood v. State, No. 53, 914 (Miss., decided May 25, 1983, not yet reported).

Shortly after midnight on August 24, 1980, Sergeant Addison of the Jackson Police Department observed a Veterans Cab parked behind Meadowbrook Cinema. Lying beside the cab was the body of a black male, later identified as that of Albert Taylor, 65 years of age. An autopsy revealed his death resulted from blows to the head by a dull blunt instrument. Other investigation disclosed a latent fingerprint taken from the right rear window of the cab matched that of Tokman.

 Diane Pettway, a nurse at Regional Medical Center in Vicksburg, testified that on August 24, 1980, at approximately 1:30 a.m., three white males came into the emergency room of the center and one, who identified himself as George David Tokman, age 17, had blood on his clothes and a cut on his hand. She testified Tokman was treated by placing five stitches in his right hand between the knuckle and the wrist.

 Jeffery Booth testified that on August 29, 1980, while in the Army and stationed at Fort Polk, Louisiana, he was associated with George David Tokman, Michael Leatherwood and Jerry Fuson. He stated that Tokman told him that he, Leatherwood and Fuson had killed a cab driver in Jackson, Mississippi. According to him, Tokman displayed a newspaper account of the murder and bragged of the incident.

 More detailed facts of the crime were established by the testimony of Jerry Booth, James Kellison, also stationed at Fort Polk, and Jerry Fuson.

 On or about August 22, 1980, Tokman, Fuson and Leatherwood, all in the military and stationed at Fort Polk, Louisiana, were in Jackson, Mississippi, to obtain Fuson's car which had been previously left in the city. After remaining in Jackson for about a day and a half the three decided they would rob a cab driver since they were without funds. According to Fuson's testimony Leatherwood and Tokman decided they would kill the victim. The first cab called was driven by a young, large driver who they thought would be difficult to manhandle so a second cab was called which was driven by Albert Taylor, an elderly man.

 The three entered Taylor's cab, with Fuson occupying the passenger's side of the front seat, Leatherwood occupying the left side of the rear seat and Tokman occupying the right side of the

 rear seat. They directed the driver to an address on Beaverbrook and upon arriving there requested him to dim his lights whereupon Leatherwood placed a rope around the driver's neck and pulled him into the back seat. Meanwhile Fuson stopped the cab and Tokman came to the driver's seat and drive the cab to the rear of Meadowbrook Cinema. Fuson then left the cab to obtain his car and upon returning for Leatherwood and Tokman observed that Tokman's hand was cut. After departing the scene Leatherwood made the statement that Tokman stabbed him, not denied by Tokman, and later Tokman stated that he had cut his hand while stabbing the cab driver. Further evidence revealed that Taylor was robbed of approximately $11.50, a pistol, his wallet, two money bags and a set of keys.

 Tokman first contends the trial court erred in granting the state's challenge to venireman Dewitt Jordan for cause. He argues this was error under Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L.Ed.2d 776 (1968). Jordan expressed conscientious scruples against the death penalty during voir dire of the jury by the prosecution. Later the court, after explaining that the first part of the trial dealt only with the guilt or innocence of the defendant and not with the imposition of the death penalty, asked the following question:" That is, during the first phase, could you still vote guilty even though that could result in the death penalty after the jury considers it in the second phase? "Jordan replied," I don't think I could. "When asked by the prosecution whether it was correct that he was saying that he could not vote guilty knowing it could result in the death penalty Jordan replied," Yes, sir. "In Evans v. State, 422 So. 2d 737 (Miss. 1982), we reiterated the procedures we had approved in Irving v. State, 361 So. 2d 1360 (Miss. 1978). We there stated:

 Following Witherspoon, this Court considered the procedure to be employed by trial judges in Myers v. State, 254 So. 2d 891 (Miss. 1971). That procedure follows:

 " `The proper method of bringing the death penalty to the attention of the special veniremen is for the trial judge to inform them that they have been summoned as veniremen in a capital case and that a verdict of guilty could result in the infliction of the death penalty. The judge should then ask them if any member of the panel has any conscientious scruples against the infliction of the death penalty, when the law authorizes it, in proper cases, and where the testimony warrants it. If there are those who say that they are opposed to the death penalty, the trial judge should then go further and ask those veniremen, who have answered in the affirmative, whether or not they could, nevertheless, follow the testimony

 and the instructions of the court and return a verdict of guilty although that verdict could result in the death penalty, if they, being the judges of the weight and worth of the evidence, were convinced of the guilt of the defendant and the circumstances warranted such a verdict. Those who say that they could follow the evidence and the instructions of the court should be retained, and those who cannot follow the instructions of the court should be released. The mere fact that a venireman is opposed to the death penalty does not disqualify him as a juryman, if he can do his duty as a citizen and juror and follow the instructions of the court, and where he is convinced of the defendant's guilt he can convict him although the verdict of the jury may result in the death penalty's being inflicted upon the defendant.' (Emphasis added). Armstrong v. State, Miss., 214 So. 2d 589, at 593. "254 So. 2d at 893-94. [361 So. 2d at 1360]. 422 So. 2d at 740-41.

 The trial court meticulously followed the procedure outlined in Evans although the prospective juror was somewhat rehabilitated by questions of defense counsel, one of which was,

 " BY MR. MOORE: So there is the possibility that you could vote for the death penalty in a case if the facts warranted in your mind the crime was heinous enough or bad enough.

 BY MR. JORDAN: Yes, sir. "

 Nevertheless, a review of Jordan's overall responses to questions by the state and defense counsel portrays the prevailing tenet that he was opposed to the death penalty and could not be a fair and impartial juror for the state. We therefore are of the opinion the trial court did not err in dismissing venireman Jordan for cause.

 The appellant next contends there was error in granting State's instruction No. S-3 in that the Mississippi statutes on capital murder are unconstitutional. Under the decisions in Bullock v. State, 391 So. 2d 601 (Miss. 1981) and Coleman v. State, 378 So. 2d 640 (Miss. 1979), this assignment of error is without merit.

 In Tokman's third assignment for reversal he argues the trial court erred in restricting the cross-examination of State's witness Kellison concerning prior convictions and false statements made upon entering the United States Army. The witness was asked by defense counsel whether at the time of his enlistment he informed the Army of his convictions before he was 17 years of age to which Kellison replied that he told the recruiter but the convictions were not listed. Kellison was then asked whether he had to sign something attesting to the truthfulness of the information he

 gave the Army and an objection based upon the inadmissibility of convictions under the Youth Act was sustained. From this exchange Tokman now contends the information was admissible as a material factor reflecting upon Kellison's truthfulness in his answers. The trial court questioned the materiality of such testimony and ruled that it was improper.

 In Shanklin v. State, 290 So. 2d 625, 627 (Miss. 1974), we stated:" A defendant can, of course, question a witness to determine his credibility as a witness; but as to how far afield the testimony may be extended is largely within the sound discretion of the trial judge. "We are presently of the opinion the trial court did not abuse its discretion in sustaining the objections to this testimony since, at best, it appears remote to the witnesses present credibility.

 It is next contended there was error in admitting as an aggravating circumstance during the sentencing phase of the trial a record of Tokman's armed robbery conviction on February 20, 1981, the robbery having been committed one day after the murder of Taylor. He argues the aggravating circumstance was improper under Miss. Code Ann. 99-19-101 (5)(b) (Supp. 1982), because the statute reads" The defendant was previously convicted of another capital offense or of a felony involving the use or threat of violence to the person, "(Emphasis added). He ...

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