HAWKINS, JUSTICE, FOR THE COURT:
On December 31, 1981, around two o'clock in the afternoon Mississippi Highway Safety Patrolman Billy M. Langham, while acting in line of duty, was murdered on U.S. Highway 49 in Covington County, at the city limits of Collins. He was stabbed with a butcher knife in the back between his shoulder blades, and shot at close range with his own revolver.
Samuel Bice Johnson, one of three men indicted for his murder, following a change of venue, was tried
in the Circuit Court of Pike County for capital murder, sentenced to death, and has appealed. Two other men charged in the murder, Otis Lee Fairley and Charles Montgomery, Jr., following separate trials, have been convicted of capital murder, and each sentenced to life imprisonment.
There is no dispute but that Langham was murdered, but it was Johnson's contention at trial and on this appeal that the murderer was Anthony Fields, who constituted the fourth culprit there at the scene of trouble with Patrolman Langham. Johnson has raised numerous issues on his appeal, which we will address. First, the facts.
Anthony Fields and Otis Lee Fairley are first cousins. On December 31, 1981, they were staying together in New Orleans. Around 10:00 that morning the two of them were picked up by Samuel Bice Johnson and Charles Montgomery, Jr., in a 1971 Ford LTD with a yellow body and brown top, Johnson driving.
Fields had seen, but never met Johnson or Montgomery prior to that morning. Montgomery rode on the front seat with Johnson with Fields on the left and Fairley on the right side of the back seat. Their destination was Collins. Fairley was born in Collins and lived there until 1968. Fields was born in Gulfport, where he lived for 15 years and then moved to New Orleans. The precise purpose of their trip to Collins is not shown in the record. Fields's mother lived in Collins, having moved there three years previously; Fairley had two sisters living there; and they both had numerous kinsmen there. Fields never lived in Collins.
En route they stopped in either Lumberton or Purvis where Fairley had a sister.
They were traveling North on Highway 49, presently four lanes with a strip between the North and South bound lanes. There are several low hills as the highway approaches Collins from the South.
At approximately 1:30 that afternoon, as they were approaching Collins, they passed Highway Patrolman Billy M. Langham, parked in a Dodge patrol car, with a blue light on top and Highway Safety Patrol decals on its
sides. Langham was in uniform, wearing his badge, and armed with a .357 caliber magnum Smith and Wesson revolver.
As they passed the patrol car, Langham started after the Ford with his blue lights blinking. Johnson pulled his car over on the right shoulder and Langham parked the patrol car just a few feet to the rear. Langham walked to the driver's side of Johnson's car and asked to see Johnson's license. Johnson replied he had no license and Langham told him to get out of the car.
The state's version of what then transpired came primarily from Fields, who testified that after Johnson got out of the car Langham noticed a butcher knife on the front seat. Langham picked the knife up, put it on top of the patrol car next to the blue light, and told Johnson to go to the back of his car.
Langham then came back to the Ford car and told the other three he was going to have to search them. They also got out of the car, Langham patted all of them lightly and told them to stand by his car. Fields noticed Johnson whispering to Fairley.
Langham then went to the Ford and searched the front seat. The officer then started the search of the back seat. As he was in the process of searching the back seat, Fairley got the knife off the top of the patrol car and gave it to Johnson. Then, as the officer straightened up from searching the back seat, Johnson stabbed him in the back.
When Fields was asked on direct examination why Johnson would stab the officer, he replied it was to escape.
Fields further testified that when Johnson stabbed Langham, the officer reached for his revolver. He said Johnson then changed hands and went for the revolver, also, and the two started tussling, and Johnson kept on stabbing the officer. Johnson yelled to Fairley to" come knock him out, "and after several calls Fairley suddenly ran over and started hitting Langham in the face. Johnson then yelled for Montgomery to get the officer's gun. Montgomery, who was then standing close by the scuffle, hesitated, and then suddenly reached and grabbed the gun. Montgomery then said," I got it. "The scuffle began by the Ford and moved back towards
the patrol car. The officer looked to Fields and said," Help. "Fields did nothing.
When Montgomery got the pistol, Johnson and Fairley both ran for the car. Montgomery remained standing there with the gun on the officer. Langham asked Montgomery," Please don't shoot me. "He asked this more than once.
Montgomery was holding the gun with both hands. He took one hand off to open the car door, and Johnson, who was under the steering wheel, told Montgomery," No, shoot the m----- f-----. "Montgomery hesitated, and Johnson repeated the statement.
Montgomery then put both hands on the pistol and started walking towards the officer. Fields, by this time in the back seat of the LTD, dropped his head so as not to see, and heard a shot. He then heard Montgomery say," I got him, "and Montgomery got into the car. As Johnson drove off Montgomery threw the gun out the window. The record does not reveal from Fields testimony when he got back into the car.
Johnson cursed Montgomery for throwing the gun away, slowed the car down, but because there were witnesses approaching from behind, he did not stop.
As they were driving Johnson repeatedly said he had to find another car. He parked the Ford, and they all got out and ran for a railroad track. When they got on the track, they started walking towards town. Johnson removed the sweater he was wearing and threw it beside the track, which Fields described as brown. Johnson had no clothing under the sweater. Fairley removed his sweat suit to give Johnson his t-shirt, which Johnson put on.
They spotted a yellow Mercury Comet beside the track next to a building. Johnson inspected the car, found the keys were in it, and the four of them got into the car, Johnson driving.
Fairley got on the front seat with Johnson, and Montgomery and Fields got in the back. Johnson told Montgomery and Fields to lie down, which they did.
As they were traveling in the Comet, Johnson asked the others if they thought he did the wrong thing. Montgomery and Fairley said he did the right thing, and Johnson said he'd rather be dead than go back to
The Comet ran a road block at the intersections of Highways 35 and 84 in Jeff Davis County. The officers on the scene shot the tires, and the Comet stopped. Fairley and Johnson ran from the car.
Fields got out with his hands up, and was arrested. Montgomery remained in the car and was arrested.
The officers pursued Johnson and Fairley on foot, and in a short distance caught and arrested them both.
Fields pleaded guilty to the crime of accessory after the fact and was sentenced to five years. He also received three 10-year sentences for guilty pleas to other crimes, two to run concurrent, one consecutively: a total of 25 years to serve. He testified as a witness for the State. He had no prior felony convictions. He had previously been charged with possession of a deadly weapon, assault, and possession of stolen property, and convicted of a misdemeanor, for which he served some time in jail.
On cross-examination Fields admitted to drinking on the way to Collins. The others smoked some marijuana. He said he stood by the front left tire of the patrol car while the scuffling was going on, and never touched Langham. He also testified that when he was questioned by an officer if Johnson did not pull the knife from his pocket he had answered" yes. "He admitted he had forgotten to tell the officers about Johnson removing the sweater until some time later, and when he did recall the incident he told his lawyer.
He said the first time he saw the butcher knife was when the officer put it on top of the patrol car. Until then he was unaware Johnson had a knife. He also admitted telling the officers Johnson had a coat on, but said Johnson had the coat on after Montgomery gave it to him.
For purposes of clarity in this opinion, we have given the testimony of Fields first, although he was the last person who testified in the case in chief for the State. We relate the remainder of the facts as told by the State's witnesses.
Andy Wade, a 12- or 13-year-old boy, was riding North on the highway and noticed passing a patrol car
parked behind a yellow car, and a patrolman apparently searching the back seat area of the yellow car.
Andy Cochran and his niece, Mrs. Brenda Townsend Watson, wife of a highway patrolman, were two of the occupants of a car traveling South on the highway. They noticed the blue lights on the patrol car, slowed down, and observed the yellow Ford parked in front of the patrol car. They also observed three black men tussling with the patrolman. They saw the officer break away, and being grabbed by the three men. They observed the officer's arm being held behind his back, and blood between his shoulders running down his shirt. Three men were involved in the tussling. Mrs. Watson saw the officer being pushed down the embankment. They proceeded South to a place where they could cross over into the North-bound lane of the highway, observing the affray as best they could. By the time they had turned around and got back to the scene, the yellow Ford had driven off. Cochran identified the yellow car as a Ford LTD. Cochran briefly examined the slain officer, and took off after the yellow Ford. They saw a deputy sheriff and reported what had transpired. Neither Cochran nor Mrs. Watson was able to identify any of the individuals involved in the trouble. Mrs. Watson testified she did not see any person making an attempt to help the officer, or any person merely standing around, doing nothing.
Charles Dodds was driving North on the highway. As he approached the scene, he noticed at least three men pushing and shoving the patrolman between the cars and the right-hand ditch. At very first glance they appeared playful. He noticed one man with his arms around the patrolman. Dodds parked his car 60-75 yards from the scene. He noticed the patrolman either being pushed, or breaking away towards the ditch. He could not tell whether the scuffle was beside or in front of the patrol car. He noticed the patrolman taking about two steps towards the ditch as though trying to regain his balance. Either his back or side was to the men, and just as he finished his second step, another man, standing to the left of the man holding the officer, shot him.
Dodds reached and got his own gun and loaded it. By the time he raised up all but one of the men had got into the yellow car. He saw the last man getting in on the right hand side.
On cross-examination Dodds testified that at one time it appeared the men were almost in a straight row. He noticed one of the men was huskier than the others, and he observed this man holding the officer. Johnson was not husky. Dodds did not observe any of the blacks standing around doing nothing.
Charles Hollingsworth, a first lieutenant in the Army, a graduate in criminal justice from Mississippi Southern University, and a former police officer in Hattiesburg, was traveling North on the highway when he first observed at least two people at the right rear of the Ford fighting with the patrolman. It seemed to him one person was holding the patrolman and two more were hitting him.
He stopped his car some thirty to thirty-five feet from the Ford and continued to watch. He was about to get out of his car when he heard a shot. There was no fighting going on when he heard the shot. He saw no weapon. Just before the shot was fired, it appeared the patrolman had been pushed back five or ten feet from the others. When Hollingsworth heard the shot, he dropped to his car floorboard.
When he raised up he observed men getting into the Ford. He could only identify Anthony Fields. His testimony as to what he observed Fields doing is ambiguous. On cross-examination he testified as follows:
Q. Coming down 49 you saw what appeared to you to be a scuffle, is that right?
A. There was a fight going on, yes, sir, it was.
Q. And you have said previously that there were at least two people involved, is that right? A. That is correct.
Q. You also said that there could have been more people involved, is that right? A. That is correct. Q. Did you see those people? A. I saw at least two people.
Q. Did you see more than two people?
A. There could have been more than two people. Q. Did you see any more people?
A. I at least saw two in the view that I had from my car.
Q. Didn't see anyone else other than those two, is that right?
A. They were the two I saw initially, that's correct.
Q. Did you tell Wade Parham in a telephone conversation that there could have been someone in the car?
A. I could have possibly said that. I don't remember saying it.
Q. But you're not denying it, is that correct?
A. I'd have to look at my testimony on my original statement.
Q. I hand you a copy of your transcript of the telephone conversation. I'd like to call your attention to - Mr. Parham asked you the question:" Did you see more than two blacks, Mr. Hollingsworth? And you said, "There were probably more than two but, you know, I only noticed two. There could have been more out of the car and there could have been one guy that was still driving? Did you say that?
A. It's in the statement. I guess I did say it.
Q. Thank you, sir. When you first saw those people if there was a scuffle, the scuffle had already - if there was a stabbing that stabbing would have already taken place,
is that right? A. I cannot answer that.
Q. Did you see anyone stab the Highway Patrolman? A. No, I did not.
Q. Did you notice whether the Highway Patrolman was hurt?
A. At what point in time?
Q. When you first saw him?
A. When I originally saw him I could not tell.
Q. Did you see anyone stab the Highway Patrolman? A. No, I did not.
Q. Did you see anyone shoot the Highway Patrolman? A. No, I did not. Q. But you heard the shot, didn't you?
Q. Okay. Backing up just a short piece in time, when you stopped after you saw the scuffle you saw only two people, correct?
A. That's what I had in my statement, yes.
Q. Had there been more people out there they could have already gotten back in the car, is that correct? A. That is a possibility.
Q. Okay. And you were able to identify one of those two people, weren't you? A. Yes, I did.
Q. Tell the people of the Jury who that man was? A. I do not recall what his name was.
Q. Was it Anthony Fields?
A. I know I identified him; I don't remember what his name was.
Q. Would you like me to help you with your statement? It was Anthony Fields, wasn't it, and you identified him? A. Yes, it was.
Q. He's the man that turned State's evidence, is that correct? A. I believe so.
Q. You said he was a big one, he was husky, correct? A. I believe I said that, yes.
Q. And you saw two people and then you heard the shot, is that right?
Q. Was Mr. Fields trying to help that police officer?
Q. He was fighting with that police officer, wasn't he?
A. He was one of the men I identified. I could not tell.
Q. You told the District Attorney's office that they were fighting with that police officer, didn't you?
Q. You did? So he was fighting with him, wasn't he?
A. I don't know if Mr. Fields was fighting with him, but I know - Q. [INTERRUPTING] What about the two men you saw, were they fighting or just - BY MR. EVANS:
If the Court please, I request that he be allowed to finish his answer before he asks another question. BY THE COURT:
Yes. Let him finish his answer and then you may ask another question.
I beg the Court's indulgence.
A. Would you repeat the question, please?
Q. In your previous statement you said that you saw two black men, is that right? A. That's correct.
Q. And you told in your statement that those two men were fighting with the Highway Patrolman? Is that correct? A. That's correct.
Q. And you identified one of those two men as Anthony Fields, didn't you?
A. I identified one of the men that I could recognize as Anthony Fields, that's correct.
Q. He was one of the men fighting with the Highway Patrolman, wasn't he?
A. He could have been, yes.
Q. Okay. The man sitting right over there in the green suit, is he the other man?
Q. Take a good look at him.
A. I said I don't know. This all happened in a matter of some ten or fifteen seconds.
A. Okay. To be certain that there's no confusion, this is not the man you identified, is it?
Q. The man you identified was heavy-set and known to be Anthony Fields, correct?
[Vol. VIII, pp.1319-1324]
Bennie Sasser was the final disinterested eyewitness for the State. He was a resident of Covington County, and traveling North on the highway. As he approached the parked vehicles, he noticed something unusual. He observed the patrolman jerk his arm up suddenly and that he was being hit in the back. He then testified
There were three, possibly four black men standing out there, and one black man was shorter and heavier-set that was doing the hitting in the back of the Patrolman. Then I observed the Patrolman got away from them, was pushed or something and he ran down the embankment, and about this time I was having to dodge a pickup that was in front of me, and I looked back and he was running back toward them. And as I swerved back around then I noticed that they were getting in their car, the car doors were open, and that's the last time I saw them. . . .
On cross-examination he testified that the husky man he observed hitting the officer in the back was
not Johnson. He said it was possible that the man hitting the officer in the back could have been stabbing him.
The postmortem by Thomas Glen Puckett, Hattiesburg pathologist, revealed three wounds: a cut to the bone over the left eye and cheekbone; a 2-2 1/2 inch long, 7-8 inch deep stab wound in the back below the shoulder blades extending into the lung cavity; and a stellate entrance gunshot wound about the level of the left eyebrow. This type of wound was indicative of a weapon being fired at such close range that the gases from the discharging weapon also entered the victim. Langham's right eye was bulged out markedly as a result of gas from the weapon. The bullet traveled through the brain and lodged between the right rear exterior of the brain and skull.
The doctor testified that Langham was killed by the gunshot wound. He futher testified that the stab wound, while serious, might not have been fatal, particularly if Langham could have received reasonably prompt medical attention; but on the other hand could have resulted in death within ten minutes.
Ballistics tests revealed the bullet removed from Langham's skull was fired by his own .357 caliber magnum revolver. This revolver and the butcher knife were found at the scene of the slaying. No fingerprints were recovered from either weapon. Also, tests for powder residue from a discharged firearm were negative as to all four: Johnson, Montgomery, Fairley and Fields.
Following their arrest Johnson was observed as having a bad cut on his right palm, for which he received medical treatment.
Tests showed the bloodstains on the knife were Langham's. Also, bloodstains on various parts of the exterior of the yellow Ford were determined to be Langham's. Other stains were found to be blood, but the expert was unable to identify the precise type.
The sweater, which Fields called brown, and identified by all witnesses at trial as being white, was found by Lawrence Anderson, assistant chief of police of Collins, just off the railroad tracks in the area where Fields testified it had been thrown. Tests showed the bloodstains on the body of the ...