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OTHIE LEE WEST v. STATE OF MISSISSIPPI

DECEMBER 04, 1985

OTHIE LEE WEST
v.
STATE OF MISSISSIPPI



EN BANC.

HAWKINS, JUSTICE, FOR THE COURT:

Othie Lee West was convicted in the Circuit Court of the First Judicial District of Hinds County of capital murder and sentenced to death. A number of errors are assigned on appeal, which we will discuss.

Because of the prejudicial argument made by the prosecuting attorney in the guilt phase, we reverse.

 FACTS

 This homicide occurred on late Sunday afternoon, June 5, 1983, in Unit 11 of the Lincoln Garden Apartments in northwest Jackson. On that date Mary Ann Brim, age 54, had lived in Apartment 1103 on the first floor with her common law husband or companion, Theodore (Night Hawk) Lee, for over fifteen years.

 Othie Lee West lived with his mother and nine-year-old brother, in Apartment 1106 on the second floor. West was born September 2, 1964, was illegitimate, and for most of his life his mother was on welfare. For a year or two prior to June 5, 1983, she held menial employment. West had graduated from the public schools.

 On that afternoon Patrol Officer Charles Hedgepeth with the Jackson Police Department received a radio dispatch to investigate firing of shots in the Lincoln Garden Apartments. He arrived at approximately 7:30, two to three minutes after the call. When he got there he observed both an ambulance and the fire department were also on the scene.

 Having determined from some source that the shots had come from Apartment 1103, Hedgepeth approached the apartment and just as he did, Lee walked to the door and was reaching to unlock the door with his keys when Hedgepeth asked him if he lived there. Lee opened the door and as Hedgepeth was entering he saw a naked woman lying on the floor. He shoved Lee back out of the apartment and went on inside. The woman was Mary Ann Brim, and all she had on was a bloody shirt rolled up about her breast, and her breast was also bloody.

 Just after he had shoved Lee back and went on into the apartment, Hedgepeth heard a loud noise from the back of the apartment. He shouted, "Police, freeze," and heard a cracking noise like glass breaking. He rushed into the back bedroom, saw no one, and also saw the window had been broken out. He went out the window, still seeing no one, ran around to the back of another building, and as he did so, some women and children yelled, "There he goes. There he goes."

 Hedgepeth gave chase. The man he was following had on a light blue pullover shirt with a dark band around the sleeve, some grayish colored trousers, and a baseball-type cap. He lost sight of him momentarily, but a few seconds

 later caught sight of him.

 The man Hedgepeth was chasing ran into a local bar called the "C.B. 40 Club." Hedgepeth went around the back to see if he could have gone on through the bar and out the back. In the back was a ten-foot-high chainlink fence with three strands of barbed wire on top. Hedgepeth returned to the front of the building, and his backup officer, Sgt. Freddie Weeks, who was the third man in the foot race, informed him that no one had come out the front.

 The officers went inside the building which was darkened. Hedgepeth told the bartender to turn the lights on and turn off the juke box, which he did. A woman coming out of the kitchen indicated to Hedgepeth no one had gone through.

 Hedgepeth saw West sitting at a table, breathing hard. He had a full beer and Hedgepeth said he was breathing too hard to drink. He arrested West.

 Nearby the apartments some children were playing and congregated around a picnic table.

 Gary Michael, fifteen years of age, had seen West about four o'clock in the afternoon by a pool. He saw West shove his way into Brim's apartment. About ten seconds after West went inside, Michael heard a shot, and then heard a woman scream. He testified he saw a gun in West's hands when he went into the apartment. Michael said West had the nickname of "Sexy Frog."

 Levin Jones, age thirteen, first noticed West when Caprice Mangum told the children to look around, thereby directing their attention to the Brim apartment. He observed West and Brim arguing, and saw West leave and go upstairs to his apartment. Brim shut her door. West returned from his apartment, and walked around the building. When he came back around the building, Brim opened her door and looked out. It appeared to Jones she tried to shut the door in West's face. West shoved her inside, and after he did so, Jones said he heard a shot, then a scream, and then another shot. According to Jones the first shot was fired about three seconds after West went into the apartment.

 Jones ran and hid until the police came. He then ran where he could see the back of Brim's apartment. While there he saw Sexy Frog come out the back window

 and run towards the school. He saw the two officers chasing him, and Jones followed them to the bar. He then saw the officers bringing West out handcuffed.

 Jones called West "Sexy Frog." He said the officers arrived about three minutes after the shooting.

 Caprice Mangum also saw West shove Brim into the apartment and heard a shot and then a scream. During her testimony, Mangum was not making a satisfactory witness, and the District Attorney asked her if she was afraid, and out of the presence of the jury asked her if West had threatened her. Mangum replied, "Yes."

 When the jury returned, the district attorney asked her if she were still scared, and she replied, "No."

 Steve Bulley, sixteen-years-old, saw Sexy Frog walking down the sidewalk "like he was coming from home." He saw Brim (whom he did not know) standing in her doorway with her screen door open, and West outside on the concrete. He saw West push her and the door closed. About three seconds later he heard a shot, and then a scream. He ran and did not hear a second shot.

 The crime scene was investigated by Officers Hedgepeth, Weeks and Louie Brooks, who was a crime scene investigator with the police department.

 Brim had been shot once. The bullet entered just to the left of her right nipple, and was found in her body on autopsy. She had no sign of life when the officers arrived. The fire department team made no attempt at artificial resuscitation.

 The apartment only had one door. Another shot was fired near the right side of Brim's head, making a hole in the floor, the spent bullet was recovered from the left side of Brim's body.

 A revolver was on a nearby table in the same room.

 The record does not disclose whether effort was ever made to take fingerprints from the revolver or from any place in the apartment, and there was no testimony linking West by fingerprint evidence.

 Hedgepeth said the glass from the broken window was inside the room. Officer Weeks testified he saw somebody going through the window. There was no sign

 of blood around the broken window.

 Officer Brooks got the bullet from the floor and the gun. He found a wet liquid beneath the pelvic area of Brim's body, which he soaked in paper swabs and delivered to the City Crime Laboratory. There was a broken pot by the window in the bedroom, which Lee said had been in the living room.

 Brim's clothes were collected for examination. West's were also taken from him, and later, pursuant to a court order, blood, saliva, head and pubic hair samples were taken from him.

 West showed no signs of having been cut in going through the window.

 Deborah McNeely, a forensic serologist with the Jackson crime laboratory, found some signs of blood on West's right shoe and shirt, but was unable to identify the type. She testified the "rape pack," apparently the swabbed liquid taken by Officer Brooks, evidenced Brim "having recent sexual intercourse." The visual inspection for sperm was positive. Her examination of all samples taken from Brim and West was inconclusive in connecting West, however. She said West was a "nonsecretor" . She could not detect any of his secretions from his saliva, blood or semen. She could neither positively include nor exclude West from the tests.

 The pathologist, Dr. Rodrigo Galvez, said the bullet went from the right side of Brim's chest through her heart, her left lung, and lodged in the left side of her back, at the tenth intercostal space. The bullet was recovered from just beneath the skin.

 Over defense objection, he testified Brim also had "defense wounds," describing them:

 What happened [sic] when we are being assaulted or attacked by somebody else, we try to protect ourselves with our hands and she had two cuts; one in the right thumb and then one in the right middle finger.

 He said the genitalia revealed a sticky, gluey liquid "like semen." He found no bruises in or around her genitalia.

 He was of the opinion Brim lived five minutes after

 being shot, although he conceded studies have shown a person with this wound would die instantly. He did testify that immediately upon being shot she lost consciousness.

 John Michael Allen, firearms specialist with the Mississippi Crime Laboratory, testified that while the two spent bullets bore the same characteristics as produced by the .38 revolver found there in the apartment, due to lack of reproducible individual characteristics, he could not be positive this weapon fired the bullets.

 Following deliberations the jury convicted West of capital murder. The trial then proceeded to the sentencing phase and the jury sentenced West to death. The relevant portions of the record dealing with instructions and argument to the jury will be set out when the points of law are discussed below.

 LAW

 SUFFICIENCY OF THE ...


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