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SEPTEMBER 25, 1985



Leon Johnson was indicted in the Circuit Court of Lauderdale County for capital murder. In a bifurcated trial, Johnson was found guilty of capital murder in the guilt phase

and the case proceeded into the sentencing phase before the same jury, with Honorable Henry Palmer presiding. At the conclusion of the sentencing phase, the jury retired to the jury room, deliberated and returned into court a verdict imposing the death penalty on Johnson. He has appealed to this Court and assigns twenty-two (22) errors in the trial below.

The judgment of the lower court will be reversed by a majority of this Court, and the cause remanded for a new trial because of failure to sustain a motion for change of venue. Part I will address twenty-one (21) assigned errors, one of which pertains to the sentencing phase, since they may arise in the new trial. Part II will address the motion for change of venue.




 On December 4, 1982, around 8:30 in the morning, the Super Stop convenience store located at the corner of Eighth Street and 29th Avenue in the City of Meridian, was robbed and Mrs. Eileen Grogan, the attendant, was brutally murdered. Her body was discovered in the back room of the Super Stop, nude from the waist down with her bra and shirt pulled up under her chin. The victim's underclothes were never located. According to the pathologist, who examined the body, Mrs. Grogan had been struck on the head with a blunt object causing a depression fracture to the skull. She had experienced sexual intercourse at some undetermined period of time prior to her death. The cause of death was established as strangulation.

 The Meridian Police Department received a call from a customer of the Super Stop, who had become suspicious, around 8:30 on the morning of the homicide, indicating to the police that a black male had waited on him; that the person didn't know how to use the cash register; and that he didn't know the prices of some of the merchandise. The first officer to arrive at the scene was Carl Molony. When he entered the store, the black male took the officer's gun and shot Molony twice with it, seriously injuring him. Molony managed to radio to the police department for more assistance, which was immediately forthcoming. The store was surrounded, tear gas was thrown into it, the fire department was called, and a hole was cut through a wall into the back room where Mrs. Grogan's body was found. Officer Molony survived the gunshot wounds inflicted on him, but was unable to remember what occurred.












 The five assignments of error stated above apply to the questions of whether or not a directed verdict should have been granted in those areas of the trial and whether or not the evidence was insufficient to establish guilt. They will be consolidated and addressed together.

 Naomi Shadow testified that she bought a coke in the Super Stop between 8:00 and 8:30 on the morning of December 4, 1982. Ms. Grogan was there at the time, and Ms. Shadow did not see anyone else in the store. Kevin Bartley testified he went into the store at about the same time and Mrs. Grogan waited on him. He did not see appellant in the store.

 Herbert Smith entered the Super Stop prior to 8:30 that morning to buy beer for an elderly friend, who lived across the street. He identified appellant as the person who waited on him. Smith noticed that appellant had an orange Super Stop jacket draped over his right shoulder. There was

 blood on the jacket. When Smith paid for the beer, appellant stepped over to the cash register as if to open it, but didn't. He then stepped back and made the change out of a roll of money in his shirt pocket.

 After leaving, Smith watched the Super Stop from a window at his friend's house across the street. He saw Officer Molony go in and look around, but could not see appellant. Molony then opened the door and stepped into a back room. A few seconds later, he came" flying out backwards "from that room, appellant came out behind him, Smith heard two shots fired, and appellant left.

 Tommy Hill and his brother, Jack Amison, stopped at the Super Stop and Hill went in. There was no one in the store at the time. A policeman came in looking around. Hill lost sight of him when he went behind the counter. He then heard a shot and saw a tall black man leaning against the wall. While Hill was running out, he heard another shot. The gunman followed him out and said," You haven't seen me, man. "Hill described that person as wearing a gray pullover sweater and gray pants. He then identified appellant as the man with the gun. Hill is a local bootlegger with numerous convictions for liquor violations. He did not come forward with his information until the end of January, 1983. The murder occurred on December 4, 1982. There was a large reward being offered by that time. Jack Amison did not go in the Super Stop, but heard gunshots and saw his brother, Tommy Hill, run out followed by appellant. He also identified appellant.

 Ricky Walters drove by the Super Stop that morning and saw an empty police car and a white truck. (Hill and Amison were driving a white truck), but no people. He kept driving down the street and a" kind of faded brown like "Torino pulled out in front of him. About that time, the rest of the police arrived on the scene.

 Mitsi Harris worked in a sporting goods store down the street from the Super Stop at the time of the murder on December 4, 1982. She was looking out the window and saw a yellow car pull in the parking lot. A black male about 6' tall and wearing dark pants and a dark shirt got out and walked toward the Super Stop. She identified him as Johnson. Ms. Harris looked into the parking lot and saw that the car was a yellow Torino with Alabama plates. About 10 minutes later, several black males came running back by the window, but she was not sure if the first man was with them.

 Danny Brown, deputy sheriff, Choctaw County, Alabama, testified that on the morning of December 4, 1985,

 the sheriff's office received a call from the Meridian Police Department to be on the lookout for a yellow and black Torino with Alabama plates. He observed such a vehicle about 9:30, after stationing himself on the highway coming from Mississippi. He did not stop the car, however, because he recognized it as belonging to Fred Johnson (father of appellant), whom he knew well.

 Officers searched the Johnson home on December 21, 1982. Appellant, his father, Fred Johnson, grandfather, Amos Johnson, and his grandmother, all lived together. Taken in the search were a pair of gray wool pants, a grayish black knit pullover velour-type shirt, a pair of jeans, and two belts. These clothes were on a hanger inside a cleaning bag.

 George Reese, a local schoolteacher, testified that he met appellant on the street the night of December 3, 1982, and they slept in Reese's car that night. Appellant gave him his address and Reese gave appellant a false address. The address note was introduced in evidence. He also gave appellant $5.00. They woke up around daylight. Reese said that appellant was wearing a steel grayish-blue velour pullover sweater shirt and gray pants. He did not know appellant prior to that night. Although he claimed to have given appellant the money out of sympathy, it was indicated, during cross-examination, that the money was for sexual favors.

 Larry Turner, a forensic serologist with the Mississippi Crime Lab, determined from the semen recovered from the vaginal tract of Mrs. Grogan that it came from a person with Type B blood, secreter status. Appellant was found to be a Type AB, secreter status. *fn1

 Thirteen (13) latent fingerprints were lifted from the Super Stop and sent to the Mississippi Crime Lab. Only eight (8) of them were identified. One was identified by Ron Smith of the Mississippi Crime Lab to be appellant's fingerprint. It was found on a door facing inside the Super Stop. Smith testified that a red substance found on the print was blood, but he was unable to determine the type. Due to the manner the blood was on the ridges of the fingerprints, he was able to determine that the blood had been on appellant's hand when he touched the door facing, rather than the blood having been on the door facing when appellant put his hand on it. However, Smith was not able to determine when the print was made.

 Appellant's defense was an alibi. He did not refute that he was in Meridian on the night of December 3, 1982, but

 introduced evidence that he was at home in bed on the morning of December 4. He did not testify in his own behalf.

 Appellant's father, Fred Johnson, and grandparents testified that appellant was asleep at home early on the morning of December 4. Fred Johnson testified that he went to the town of Butler, Alabama, in the Torino car that morning. He left home between 8:30 a.m. and 9:00 a.m. Beatrice Phillips testified she rode with him and they left her house between 8:00 and 9:30.

 In addition to other shopping, Fred Johnson purchased some vodka for another person. His receipt from the liquor store indicated that he bought it at 10:15 on the morning of December 4. Johnny Crump, the liquor store clerk, testified that Fred Johnson was in his Torino car at the time. On cross-examination, Crump said that he noticed the car parked in the lot when he came to work about 8:30.

 Tommy Portis testified for the defense that he and appellant had gone to Meridian on the Tuesday (November 30, 1982) before December 4 (Saturday), and had stopped at the Super Stop to get some gas. He said appellant went inside and Portis stayed with the car. On cross-examination, it was revealed that Portis had talked to the police on December 23, 1982. Officers S. A. Thomas and Lou Robbins both testified that Portis told them he went in the store and appellant stayed in the car. Portis denied having said this.

 Christopher Chapman testified for the defense that he was a customer in the Super Stop on the morning of December 4; that a black male with a mole over his left eye and a gold earring waited on him; and that appellant was not that man. On cross-examination, he also said that the person was wearing gray pants and a short-sleeve gray pullover shirt.

 Paul Kidd, who originally alerted the police, testified for the defense. It was through Kidd's description that the officers were able to prepare a composite of the accused, which bore a striking resemblance of him, and from which at least one individual recognized appellant. Kidd said that the person who waited on him had a finger on his left hand which was tapered like it had been stuck in a pencil sharpener. Kidd testified that appellant was not the person who waited on him.

 Herbert Smith viewed a lineup in Butler, Alabama, on December 21, 1982, in which appellant participated. He positively identified appellant as the individual he saw in the Super Stop on December 4, 1982. Mitsi Harris identified

 appellant on December 22, 1982, from a photo lineup as the person she saw on December 4, 1982, who parked the Torino where she worked. These individuals made an in-court identification of appellant.

 As stated before, the general issue here raised the questions of (1) insufficiency of the evidence; (2) whether the lower court should have granted a directed verdict as to robbery; (3) whether or not the lower court should have granted Instructions C-1 and C-2, peremptory instructions on the issue of capital murder; and (4) the lower court should have granted Instruction C-38 submitting the question of robbery to the jury. In reviewing the questions and issue presented here, this Court has held many times, and it is elemental, that the Court looks to all evidence supporting or tending to support the verdict, together with all inferences that may be reasonably drawn from such evidence. Also, it is an elemental principle of criminal law that a conviction may be had on circumstantial evidence alone. *fn2 Tolbert v. State, 407 So.2d 815, 820 (Miss. 1981); Aldridge v. State, 398 So.2d 1308 (Miss. 1981).

 In Hammond v. State, 465 So.2d 1031 (Miss. 1985), this Court again stated the rule pertaining to peremptory instructions and directed verdicts in criminal cases as follows:

 The rule for considering motions for directed verdicts and requests for peremptory instructions in criminal cases is stated in Warn v. State, 349 So.2d 1055 (Miss. 1977):

 Peremptory instructions should be refused if there is enough evidence to support a verdict. . . .

 The law regarding peremptory instructions in Mississippi is stated in Cochran v. State, 278 So.2d 451, 453 (Miss. 1973):

 The rule in regard to a peremptory instruction is the same in criminal and civil cases, the rule being that when all the evidence on behalf of the state is taken as true, together with all sound or reasonable inferences that may be drawn therefrom if there is enough to support a verdict of conviction, the peremptory instruction must be denied.

 See also Jackson v. State, 440 So. 2d 307 (Miss. 1983); Gray v. State, 387 So.2d 101 (Miss. 1980); Rich v. State, 322 So.2d 468 (Miss. 1975); McGee v. Coccaro, 261 So.2d 465 (Miss. 1972); and Carroll v. State, 196 So.2d 878 (Miss. 1967).

 465 So.2d at 1035.

 As to the question of proof on robbery, it indicates that the appellant was identified as being present on the occasion of the homicide, he was behind the counter" waiting "on customers, he had a large amount of cash on him, and over ...

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