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JAMES LEE TOLBERT v. STATE OF MISSISSIPPI

AUGUST 12, 1987

JAMES LEE TOLBERT
v.
STATE OF MISSISSIPPI



BEFORE HAWKINS, P.J.; ROBERTSON AND ANDERSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

Today's is a case of murder. The appeal does not claim

 innocence but denial of a fair trial. If perfection be the standard, the charge must prevail, for several things happened below that could and perhaps should have been avoided. All in all, the Defendant received a fair trial, albeit not one perfect. In the end, Defendant has presented nothing that undermines our confidence in the integrity of the jury's verdict.

 We affirm.

 II.

 Love's recurring triangle, the source of such emotions and passions through the centuries, never claims but one victim. Annie Katherine Boyd Cox (Kat) is dead. James Lee Tolbert has been convicted of murder. Others have been scarred.

 The contours of today's triangle were the source of great controversy at not one but two trials. *fn1 Was it Tolbert's jealousy of his fiancee's rekindling her romance with her former husband, Ernest Cox (Cox); or was it the unnatural desires for Kat arising out of a lesbian relationship with Annie Dilworth which caused the gun to fire the one single bullet which took the life of Kat, an attractive thirty-two-year-old female?

 Some parts of the story are clear. In 1978, Kat and Cox were divorced. Subsequently, Kat met Tolbert, and they began dating. Their relationship progressed and they became engaged to be married. By this time, Kat and Tolbert were living together in Tolbert's apartment in Tupelo and Kat's home in Corinth. Apparently, however, Kat maintained contact with Cox while dating Tolbert.

 For Kat, Sunday, March 22, 1981, began in deception and ended in death. She spent the day and the better part of the evening with her former husband, Cox. Knowing Tolbert would be suspicious, Kat and Annie Dilworth and Carolyn Pollard Brand fabricated a story that they had been playing cards in Jackson, Tennessee, all day. That evening, when she arrived at her home, Kat was shot and killed. Eyewitnesses claimed that Tolbert had a gun, started beating Kat and eventually shot her after she arrived at her home. Tolbert claims that the shooting was an accident, resulting from a scuffle that ensued with Kat and her girlfriends.

 Witnesses for the prosecution indicated that Tolbert was the aggressor and that he alone shot Kat. Ernest Cox, Kat's former husband, testified that he and Kat spent most of that

 particular Sunday together, with Kat leaving his home later that evening between 10:30 and 11:00 p.m. Kat left Cox's home with her friend, Annie Dilworth (hereafter" Dilworth "), and Dilworth's friend, Carolyn Brand (hereafter" Brand "). Kat persuaded Dilworth and Brand to fabricate the story about playing cards in Jackson, Tennessee, so that if they encountered Tolbert, Kat would have a legitimate excuse for being away from home the entire day.

 After changing clothes at a friend's home, Kat, Dilworth and Brand drove to Kat's home. Upon their arrival, Tolbert came out of Kat's home, and according to Dilworth and Brand, he had a gun in his hand. Dilworth and Brand testified that Tolbert started beating Kat, and kept clicking the gun at her. Dilworth and Brand both testified that Tolbert then shot Kat.

 The prosecution called other eyewitnesses to corroborate Dilworth and Brand's story. Charles R. Barnett, Jr. a/k/a" Junebug ", Kat's nephew, testified that on the night of March 22, 1981, his sister, Bernita Barnett, woke him to watch the commotion in Kat's driveway. Junebug testified that he saw Tolbert and Kat fighting, with Kat trying to defend herself. He testified that Tolbert was hitting Kat, and had a gun in his hand. Junebug then saw Tolbert shoot Kat.

 Junebug's sister, Bernita, who was Kat's niece, testified that around 10:15 that evening, Tolbert came to their home and asked Bernita where Kat was. Bernita believed that Tolbert had been drinking. She testified that Tolbert seemed very upset because Kat was not at home and that he was going to wait on her and beat her when she came home. Bernita then saw Kat drive up with Dilworth and Brand, and Tolbert ran out the door asking Kat where she had been. She testified that Tolbert immediately began hitting Kat, and that Kat was trying to defend herself. Bernita testified that they kept fighting, and that as they moved around to the driver's side of the car in which Kat drove up, a gun went off and Kat fell to the ground. Bernita saw a gun in Tolbert's hand.

 Roger Voyles, who at the time of this trial was a deputy sheriff in Alcorn County, lived with his grandmother next door to Kat. Voyles testified that, on the night of March 22, 1981, he heard a car drive up at Kat's, and a woman scream. Voyles then walked onto his front porch, and he saw Tolbert hitting and cussing Kat. Voyles then saw Tolbert reach into his coat, take out a pistol and start to hit Kat. Voyles testified that Tolbert then shot Kat.

 Delois Boyd Pratt, Kat's sister, testified that Tolbert called and visited her the night of March 22, 1981, mad and

 cussing and asking about Kat. Raynelle Barnett, Kat's sister and Junebug and Bernita's mother, testified that Tolbert called her that night, looking for Kat and sounding upset. Also, Raynelle testified that Tolbert came up to her fence late that night and told her that he had shot Kat.

 The prosecution also called law enforcement officials that were involved with the incident that evening. Officers Whitehead and Brinkley, with the Corinth Police Department, testified that, when they arrived on the scene, they were asking people what happened, and someone shouted" He did it ". Brinkley turned to Tolbert and asked Tolbert if he knew anything about what happened, and Tolbert said" I shot her. "Officer Brinkley then placed Tolbert under arrest.

 Tolbert called no eyewitnesses but testified on his own behalf. Somewhere between 5:00 and 6:30 p.m. on March 22, 1981, Tolbert went to Kat's home. He stayed in Kat's home for awhile, then he went to Kat's father's home looking for her. Afterwards, he talked with Kat's brother and they went looking for her. During their search, they stopped at Sonny Barnett's home across the street.

 After searching to no avail, Tolbert returned to Kat's home where he was going to leave money that she had requested and pick up a pistol that he had left there. Tolbert placed the money Kat had requested on the kitchen counter and got his pistol out of a bedroom drawer. He started out of the house to tell Sonny Barnett that he was going to leave and go back to Tupelo. As he came out of the house, he placed the gun on top of an old car parked outside. When Tolbert went over to the Barnett home, Bernita answered the door. Tolbert testified that he simply told Bernita that he had left Kat's money, and he was about to go back to Tupelo.

 Tolbert testified, contrary to Bernita's testimony, that he never went into the house to talk with her, and that he had not been drinking. Tolbert then testified that he went back to Kat's home, and ran into the home to answer the ringing telephone. Tolbert then called Ernest Cox, and asked about Kat. As he was talking to Cox, a car drove up into the driveway. Kat, Dilworth and Brand were in the car.

 Tolbert testified that he came out of the front door and called for Kat, but no one answered. Instead, Dilworth shouted, telling him that they were going to teach him to stay away from Kat. Tolbert said the women started advancing toward him. Tolbert tried to get the pistol that he had placed on the car. He grabbed the gun, and the other three women started struggling with him over the gun. During the

 scuffle, the gun went off. Immediately after the gun went off, Dilworth left the scene. However, she came back later and he unlocked the kitchen door for her.

 Tolbert testified that he took the pistol off the ground and took it into the bedroom and opened the chamber, shaking the bullets out of it. He then grabbed some towels and went outside, giving them to Brand. He then tried to call an ambulance, but could not get a dial tone on the phone that he had been using. Subsequently the police arrived and arrested Tolbert.

 Tolbert also called John Kilty, who was a special agent with the FBI. Under Kilty's direction and supervision, neutron activation analyses were conducted on materials obtained from the hands of Kat and Tolbert. Based on these analyses, Kilty was unable to determine whether Kat or Tolbert fired the gun.

 Tolbert also called Karen Thorpe, the director of medical records at Magnolia Hospital, in order to introduce medical records indicating that Tolbert was upset when he visited the emergency room. Tolbert also called Laura Pritchett, an employee of Magnolia Hospital at the time of the incident, to describe his condition that night. Additionally, Tolbert called Dr. Charles B. Ferguson, the doctor who treated him in the emergency room on the night of the incident.

 The jury returned a verdict against Tolbert for murder. On December 1, 1984, the Circuit Court sentenced Tolbert to life imprisonment. He then filed a motion for a new trial, which was denied on May 9, 1985. Accordingly, Tolbert brings this appeal.

 III.

 Tolbert first argues that the prosecution intentionally destroyed a piece of exculpatory evidence and, as a consequence, that the charges against him should have been dismissed. Tolbert refers to a piece of skin, cut from his right forefinger shortly after the fatal shooting. This piece of skin, he argues, would, upon proper analysis, have proved that he could not have fired the fatal shot.

 Following his arrest, Tolbert was taken to the emergency room of the Magnolia Hospital in Corinth. There, at the request of Sheriff Edwin Coleman, Dr. Charles Ferguson clipped a small particle of skin from an abrasion on Tolbert's right index finger. This particle of skin, however, was not sent to the Mississippi Crime Laboratory and has apparently been lost.

 Tolbert moved the Circuit Court to dismiss the indictment on the grounds that this particle of skin was material, exculpatory evidence that had been intentionally destroyed or lost by the State. The Court denied this motion, both at the close of the State's evidence and at the close of all of the evidence. The point was renewed in Tolbert's motion for new trial, and was again denied.

 Tolbert's thesis is this: that it would have been impossible for him to have pulled the trigger on the gun and shot off part of his right index finger at the same time. Tolbert argues that proper analysis of this skin particle would have proved that his hand was on the barrel of the gun, and not near the trigger when the gun went off, thus exonerating him.

 The watershed case is California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2533, 81 L.Ed.2d 413 (1984). Trombetta held that due process does not require law enforcement officers to preserve breath samples in order to introduce breath analysis tests at trial. 467 U.S. at 491, 104 S. Ct. at 2535, 81 L.Ed.2d at 423. En route Trombetta held that the State's duty to preserve evidence is" limited to evidence that might be expected to play a significant role in the suspect's defense. "467 U.S. at 488, 104 S. Ct. at 2534, 81 L.Ed.2d at 422.

 To play a significant role in the defendant's case, the exculpatory nature and value of the evidence must have been (1) apparent before the evidence was destroyed and (2) of such a nature that the defendant could not obtain comparable evidence by other reasonable means. 467 U.S. at 489, 104 S. Ct. at 2534, 81 L.Ed.2d at 422; United States v. Binker, 795 F.2d 1218, 1230 (5th Cir. 1986). And," the mere possibility the evidence might aid the defense does not satisfy the constitutional materiality standard. "Binker, 795 F.2d at 1230; United States v. Webster, 750 F.2d 307, 333 (5th Cir. 1984). In deciding whether the destruction of evidence constituted a due process denial, the Trombetta Court also considered whether the government agents had acted in good faith and in accord with their normal practice or had made a conscious effort to suppress exculpatory evidence. 467 U.S. at 488, 104 S. Ct. at 2533, 81 L.Ed.2d at 422. In other words, the prosecution's destruction of evidence must not have been in bad faith. See Webster, 750 F.2d at 333; United States v. Herndon, 536 F.2d 1027, 1029 (5th Cir. 1976).

 Washington v. State, 478 So.2d 1028, 1032-33 (Miss. 1985) is this Court's most deliberate pronouncement on the subject.

 It is a general rule that the

 intentional spoliation or destruction of evidence relevant to a case raises a presumption, or, more properly, an inference, that this evidence would have been unfavorable to the case of the spoliator. Such a presumption or inference arises, however, only where the spoliation or destruction was intentional and indicates fraud and a desire to suppress the truth, and it does not arise where the destruction was a matter of routine with no fraudulent intent. (citation omitted)

 478 So.2d at 1032-33. See also Coyne v. State, 484 So.2d 1018 (Miss. 1986).

 Washington accords with Trombetta although inexplicably Washington does not cite Trombetta. In analyzing whether the absence of the skin particle denied Tolbert's constitutional right to a fair trial, the Court must determine if the skin particle would have played a significant role in Tolbert's case. To play a significant role in Tolbert's case, the exculpatory nature and value of the skin particle must have been apparent before it was lost, and been of such a nature that Tolbert could not obtain comparable evidence by other reasonable means.

 Regarding the prosecution's good faith vel non, Sheriff Coleman explained at trial why he did not send the skin particle to the crime lab for analysis:

 Well, the original purpose that we had it clipped was that I was going to send if off to the lab to determine if there was any lead in the finger. You know, he said it was a gunshot wound and after observing and looking at the finger, after we did the neutron test *fn2 on the finger, before we took him to the hospital, we did the test. We had the skin clipped at the hospital and was going to send that off to the lab and determine if, in fact, he had been shot but after we clipped the finger and talked about what happened, we just didn't send the skin off, we didn't ...


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