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APRIL 23, 1986




Eli Trunell appeals from his conviction in the circuit court of Jefferson County of murder.

Because the circuit judge refused to permit Trunell to make an opening statement pro se without being sworn as a witness, we reverse.


 The grand jury of Jefferson County on October 4, 1983, indicted Trunell for the murder of George Inman while in commission of a robbery on June 27, 1983, in violation of Miss. Code Ann. 97-3-19 (2)(e) (1972), the capital murder statute.

 Inman was a 77-year-old man who lived alone in his house trailer. During the lunch hour on June 29, 1983, Inman purchased groceries at New Deal Supermarket in Fayette.

 Nathan Wilson, Jr., a friend of Inman's, made it customary practice to go by every afternoon and check on him. On this day Wilson and David Trunell, a brother to the defendant, arrived at the trailer around 4:00 p.m. They detected smoke coming from the trailer; Wilson knocked on the door with no response. The usual big padlock for the door was missing; Wilson pulled the door open and saw Inman lying on the floor. The two then went to Ray Brown, a neighbor's, and related what they had found at Inman's trailer. They then returned to the trailer.

 Mrs. Marie Brown telephoned the sheriff's office at 4:26 p.m., and Sheriff J. P. Wallace dispatched Deputy Don Ward to the scene. The sheriff reported the fire to the fire department, and then drove to the scene himself.

 Ward arrived ten minutes after the sheriff's office received the report. He noticed the fire was out, but the trailer continued to smoke. When Ward arrived, there were several other people already there, milling around. Inman was lifeless on the floor. Ward also saw the fire truck pass the driveway to the Inman trailer, and radioed Sheriff Wallace, who instructed Ward to go and retrieve the fire truck and lead it back to the fire.

 Meanwhile, at approximately 4:45 p.m., a report came over the police radio that there had been an armed robbery

 around Cleveland Shorter's, a cafe owner. About the time Ward caught up with the fire truck and was in the process of turning it around, he was flagged down by Benny Nichols and Trunell, who was riding in Nichols' car. Trunell got out of the car and flagged Ward down, and when he stopped Trunell related the robbery incident to him. Ward then asked Nichols if he would lead the fire truck on down to the fire, and he asked Trunell to get in the car with him to go and show where the robbery had taken place.

 Trunell later gave the following written statement as to the" robbery ":

 As I was walking south and about 100 yards from the creek bridge, near Shorter's Cafe on Highway 552, a white male came off the hill from out of the woods and he said," Hey. "I looked around at him. He asked me if I had any money. I told him that I had $35. He said," If you are lying, I'm going to kill you. "The man was white and was carrying a high-powered rifle.

 The man made me lay down in the middle of the road, took my billfold and took my clothes off. I had $900 in a secret compartment in the billfold and $35 in the regular place where you keep the money ordinarily. The man disappeared after he took my money and clothes.

 After I could tell the man was gone, I got up and ran to my mother's house. I put on some shorts and went to the nearest telephone and called the Sheriff's Department. I reported the robbery to Willie Stewart, a deputy sheriff for the Jefferson County Sheriff's Department.

 The" robbery "site was approximately 1.8 miles from the Inman trailer. Ward testified that Trunell also told him the man who robbed him was wearing old raggedy cut-off blue jeans with no shirt on, had blood all over his chest and on his right hip, and had a brown beard and mustache. He said he also came off a dirt bank. There was testimony this bank was between 10 and 20 feet high. Ward searched the robbery area but was unable to find any evidence of the robbery. At the time Ward picked him up Trunell had a cut on his forehead which was bleeding. Trunell explained that he got the cut when the robber made him lie down on the blacktop. Ward took Trunell for further questioning on the robbery as well as any possible relation of this crime to the death of Inman. Trunell was wearing only a pair of blue shorts, and

 Ward took Trunell by his mother's house and allowed him to change.

 An autopsy of Inman's body revealed he had bled to death as a result of a single gunshot wound through the buttocks or lower back, and that he was probably dead before the fire started. The time of death could not be fixed with any reasonable degree of certainty. The groceries which Inman had purchased earlier in the day were found laying under the body and strewn about the floor. None of the gathered crowd of on-lookers were interviewed. No fingerprints were taken. Although there was fresh blood on the trailer floor and dirt inside the trailer, no footprints made from blood or from dirt were attempted to be indentified. No murder weapon or spent cartridge was ever recovered. There were two footprints found around the trailer area; one made with what the authorities believed to be a socked foot and the other showed only an indention of toes. A plaster cast was made of the socked footprint, but no other cast was made. The authorities did find other footprints going out the path toward the woods, but again no photographs or casts were made of these footprints. No one took a foot impression of Inman's foot. There was an ink print made of Trunell's foot, but the law enforcement officers were unable to obtain an expert who could give an opinion as to whether the footprints found were Trunell's.

 There was never an attempt to obtain a search warrant to search Trunell's mother's house where Trunell went after being robbed, nor was there any attempt to check Trunell's residence.

 On the afternoon of the following day, the sheriff did find another footprint in the creek approximately 200 to 250 yards from where Trunell said he was robbed, but there was no picture or cast taken of this footprint.

 About a month or two later, squirrel hunters found a pair of black half-boots and a green vest around the general area where Trunell claimed he was robbed, but no one ever found his pants or shirt. The officers found marijuana plants in a cabinet outside Inman's trailer.

 Bloodhounds were called in to pick up the trail of the murderer. The dogs lost the trail several times, but eventually came out about 1/10 mile from where Trunell claimed he was robbed. All the officers testified that the dogs did not bark while sniffing out the trail. No attempt was made to trace a trail backwards to the trailer.

 At trial an expert called by the defense testified that the fact the dogs did not bark indicated they were unable to pick up a trail.

 Around 7:00 or 8:00 o'clock at night Nelson Jensen, an investigator with the Mississippi Highway Safety Patrol, was questioning Trunell and told him that he did not believe his story, and doubted anyone else would. Trunell replied," Well, I'll tell you how it happened, what happened. But first, I want to go to the bathroom. "Trunell then went into the bathroom, and when he came out of the bathroom he broke and ran out the door.

 Jensen testified that he did not consider Trunell under arrest when he was questioning him.

 Trunell was arrested in the Trailways bus station in Jackson on Saturday, August 20, 1983, after he had been charged with murder. He was taken to the Hinds County Jail, and Sheriff Wallace and his ...

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