BEFORE ROY NOBLE LEE, DAN LEE AND PRATHER
DAN LEE, JUSTICE, FOR THE COURT:
This is an appeal from the Circuit Court of Covington County wherein the appellant, Otis Lee Fairley, was indicted and tried for the capital murder of Mississippi Highway Patrolman Billy Langham. A jury found Fairley guilty of murder and the trial court sentenced him to life imprisonment in the custody of the Mississippi Department of Corrections. From his conviction and sentence Fairley brings this appeal and assigns as error the following:
I. THE COURT ERRED IN FAILING TO GRANT THE APPELLANT'S MOTION TO DISCHARGE HIS COURT-APPOINTED ATTORNEY AND ALSO IN FAILING TO GRANT THE COURT-APPOINTED ATTORNEY'S MOTION TO BE DISCHARGED FROM REPRESENTING THE APPELLANT WHEN BOTH THE APPELLANT AND THE APPELLANT'S ATTORNEY DESIRED SAID MOTION, AND HENCE, DENIED APPELLANT A FAIR TRIAL IN VIOLATION OF THE SIXTH AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
II. THE COURT ERRED IN FAILING TO GRANT APPELLANT A MISTRIAL WHEN IN BOTH ITS OPENING STATEMENT AND ITS CLOSING STATEMENT, THE DISTRICT ATTORNEY STATED TO THE JURY THAT THE DISTRICT ATTORNEY WAS A CLOSE FRIEND TO THE VICTIM, THUS, DENYING THE DEFENDANT HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL.
III. THE COURT ERRED IN ALLOWING THE JURY TO CONTINUE TO DELIBERATE WHEN ONE OF THE JURORS HAD SENT OUT A NOTE INDICATING THAT HE WANTED TO VOTE FOR CAPITAL MURDER AND REQUESTING THAT HE BE RELIEVED OF HIS DUTY TO CONTINUE SERVICE AS A JUROR, AND THE COURT FURTHER ERRED BY REPLYING INDIVIDUALLY TO THAT JUROR THAT THE COURT COULD NOT EXCUSE ANY JUROR FOR THAT REASON.
IV. THE COURT ERRED IN ALLOWING STATE'S INSTRUCTION NUMBER TWO (2) AS TO THE ELEMENTS OF THE CRIME OF CAPITAL MURDER WHEN SUCH INSTRUCTION ALLOWED THE JURY TO CONSIDER THE FACT THAT A KNIFE WAS THE INSTRUMENT OF DEATH WHEN THE EVIDENCE DID NOT SHOW THAT THE DECEASED WAS KILLED WITH A KNIFE.
V. THE COURT ERRED IN ALLOWING STATE'S INSTRUCTION NUMBER TWO (2) AS TO THE ELEMENTS OF THE CRIME OF CAPITAL MURDER WHEN SAID
INSTRUCTION MADE REFERENCES TO THE CO-DEFENDANTS BEING INVOLVED IN THE CRIME, AND HENCE, ALLOWING DEFENDANT TO BE TRIED FOR THE ACTS OF THE CO-DEFENDANTS.
VI. THE COURT ERRED IN ALLOWING THE STATE TO INTRODUCE INTO EVIDENCE PROJECTILE FRAGMENTS FROM THE ALLEGED MURDER WEAPON WHEN THIS BALLISTICS EXPERT TESTIFIED THAT HE COULD NOT IDENTIFY THE PROJECTILES AS BEING FIRED FROM THE ALLEGED MURDER WEAPON.
VII. THE COURT ERRED IN FAILING TO GRANT DEFENDANT'S JURY INSTRUCTION NUMBER TWENTY-THREE (23) REGARDING THE TESTIMONY OF ACCOMPLICES.
Fairley has also filed a supplemental pro se brief in which he argues the insufficiency of the evidence.
On December 31, 1981, Mississippi Highway Patrolman Billy Langham was shot to death on the side of Highway 49 near Collins, Mississippi. Although a number of witnesses testified to seeing Patrolman Langham struggling with two or three black male assailants, the evidence most damaging to Fairley came in the form of the testimony of his first cousin, Anthony Fields. Fields testified that on the morning of the shooting he was staying in a hotel in New Orleans with Otis Lee Fairley. That day they met Samuel Johnson and Charles Montgomery. All four of them decided to come to Collins, Mississippi in Johnson's black over yellow LTD with the intent to pass bad checks.
Fields testified that when they drove past a Mississippi Highway Patrol car parked in the median of Highway 49 the patrolman pursued them and pulled them over for speeding. That patrolman was Officer Langham. Langham asked Johnson for his drivers license but Johnson didn't have one. Langham then asked Johnson to get out of the car. After Johnson was out of the car, Langham saw a knife under the front seat. Langham reached under the seat, seized the knife, and put it on top of his patrol car parked behind Johnson's LTD. Langham then ordered the other occupants of the LTD to get out. According to Fields, Langham then searched them all.
Langham ordered all four of the car's occupants to stand on the righthand side of his patrol car. He then proceeded to search Johnson's car. Fields testified that he saw Johnson whisper something to Fairley. Fairley then took the knife that Langham had put on top of the patrol
car and gave it to Johnson. When Patrolman Langham began searching the back seat of Johnson's car, Johnson approached him and stabbed him in the back. Both Langham and Johnson reached for Langham's gun. Johnson then hollered for Fairley to knock Langham out. Fairley came over and started hitting Langham in the face. On Johnson's order, Montgomery grabbed Langham's gun and the fracus ceased momentarily. According to Fields, he, Montgomery, Johnson and Fairley then went back to Johnson's car. Patrolman Langham pleaded for his life but, on Johnson's order, Montgomery shot him in the head. Montgomery then threw the officer's revolver out the car window and the four men left the scene.
According to Fields, they drove to a nearby railroad track and got out of the car. Johnson then discovered a yellow Mercury Comet parked near the railroad tracks with the keys in it. The four of them took that car. They drove on until they were stopped at a roadblock by law enforcement officers who shot the tires out from under their car. As previously noted, the state produced numerous other witnesses who saw the assault on Patrolman Langham but were unable to identify the assailants. Additionally, the state produced Dr. Thomas Glen Puckett, a pathologist, who testified that he performed an autopsy on Patrolman Langham. According to Dr. Puckett, Langham suffered three major wounds: a cut to his left eye approximately one inch long down to the cheek bone; a two inch wound in the back four inches deep which extended into Langham's left lung; the third and most serious wound was a stellate shaped gunshot wound to Langham's forehead. Dr. Puckett testified that the appearance of the third wound indicated that the weapon which caused it was fired at a close range. In Dr. Puckett's opinion, the cause of Patrolman Langham's death was extensive brain damage which resulted from the gunshot. Dr. Puckett was further of the opinion that the knife wound in Langham's back was very serious but with treatment his survival would have been likely.
The state produced other witnesses and, to the extent necessary for the resolution of this appeal, their testimony will be detailed below.
After the state concluded its proof, the defense made a motion for a directed verdict. When that motion was overruled the defense also rested. The jury then returned a verdict finding Otis Lee Fairley guilty of murder.
SHOULD FAIRLEY HAVE BEEN APPOINTED NEW COUNSEL?
Fairley's first argument on this appeal is that he was denied the right to counsel because the trial court failed to order that his counsel be discharged and to provide him with new counsel. In order to understand the position of the parties it is necessary to present a chronological explanation of Fairley's attempts to find an attorney with whom he was satisfied.
January 18, 1982 - Fairley is represented by Hon. Talmage Allred.
January 20, 1982 - Talmage Allred files a motion for a continuance which states as grounds for the continuance the fact that he and Dewitt Allred, III were appointed to defend Fairley on January 1, 1982.
January 22, 1982 - An order is filed in the Circuit Court of Covington County appointing Dewitt Allred, III as co-counsel for Fairley.
May 10, 1982 - Fairley and his attorneys, Talmage Allred and Dewitt Allred, file a motion for termination of appointment of counsel and for appointment of new counsel. As grounds to support this motion are the fact that Fairley was dissatisfied with his counsel, the attorneys felt that other counsel could more effectively represent Fairley, and the allegation of the attorneys that" They cannot in good conscience continue to represent the defendant in these causes ...