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NOVEMBER 25, 1987




John B. Nixon, Sr. was convicted in the Circuit Court of Rankin County of capital murder of Mrs. Virginia Tucker as the trigger man in a murder-for-hire scheme. Miss. Code Ann. 97-3-19 (2)(d) (1987) provides the definition of such a crime as:

(2) The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases:

 (d) Murder which is perpetrated by any person who has been offered or has received anything of value for committing the murder, and all parties to such a murder, are guilty as principals;

 From that conviction and a sentence of death, Nixon perfects this appeal, assigning 18 errors, which will be discussed in the order they arose at trial.


 Shortly before 8:00 a.m. on January 22, 1985, Thomas Tucker was walking through the den of his home in Rankin County, Mississippi, when his wife, Virginia Tucker, answered a knock at the back door. Mrs. Tucker ran backwards from the door through which entered an" old man, "later identified as John Nixon, Sr., and two younger men, identified as Henry Leon Nixon and Gilbert Jimenez. Henry Leon Nixon is John Nixon, Sr.'s son.

 After telling the Tuckers" I brought y'all something, "John Nixon, Sr. pulled a .22 caliber pistol from his coat.

 Mr. Tucker immediately responded," I know Joe Ponthieux hired you to kill us, but we got some money if that's what you (sic) after. "*fn1 John Nixon, Sr. responded," That's not what I'm after. The deal has already been made. "

 John Nixon, Sr. then pointed the pistol at Mr. Tucker and pulled the trigger, but the pistol misfired. Mr. Tucker seized the opportunity to dart toward the front door and pull it open, but he was hit in the left side and knocked to the ground by a second shot. Mr. Tucker managed to pull himself up and to continue his escape. John Nixon, Sr. passed the pistol to Henry Leon Nixon who chased Mr. Tucker into the yard and fired a third shot that grazed Mr. Tucker's head.

 Mr. Tucker eventually made his way over 100 yards to the road and was picked up by a small truck and carried to his work site, the Mississippi Power & Light office in Brandon, Mississippi.

 Meanwhile, inside the Tucker house, Gilbert Jimenez wrestled Mrs. Tucker to the floor where he kept her pinned during the shooting. When Henry Leon Nixon returned the pistol to John Nixon, Sr., Mr. Nixon, Sr. held the pistol one inch from Mrs. Tucker's head, behind an ear, and fired a shot into Mrs. Tucker's brain. The three intruders then drove away in a Ford van.

 When Mr. Tucker arrived at the Mississippi Power & Light office, he was taken inside where he asked Mr. Carl Corley to go to the aid of Mrs. Tucker. Mr. Corley immediately drove to the Tucker home where he found Virginia Tucker lying on the floor, gasping for breath, with blood running from her mouth and nose. According to Mr. Corley, he arrived at the Tucker home within fifteen minutes of the time Mr. Tucker arrived at the M P & L office. Virginia Tucker was taken to a hospital where she died the next day.

 The search for Virginia Tucker's killers was on-going for most of 1985. On November 4, 1985, John Nixon, Sr. was arrested after being identified in a personal lineup by Thomas Tucker. Shortly afterward, John Nixon, Jr. was arrested in Louisiana and Henry Leon Nixon was arrested in Los Angeles, California.

 Also, the Ford van in which the killers made their getaway was eventually discovered in Houston, Texas. That discovery led to the arrest of Gilbert Jimenez on January 7, 1986 in Houston.

 While in the custody of the Houston, Texas police,

 Jimenez executed a written statement implicating the three Nixons in the murder-for hire scheme. Subsequently, Joe Ponthieux, former husband of Virginia Tucker, was arrested and indicted along with the three Nixons for capital murder in violation of Miss. Code Ann 97-3-19 (2)(d), as amended.

 John Nixon, Sr.'s case was severed and was tried in a three day trial beginning March 24, 1986. Gilbert Jimenez, who plea-bargained to the charge of conspiracy to commit capital murder, testified at John Nixon, Sr.'s trial, describing the details of the pre murder preparations and the payments to John Nixon, Sr. and John Nixon, Jr. by Joe Ponthieux.

 The jury deliberated only thirty-one minutes before returning a verdict of guilty of capital murder. The penalty phase of the trial was then conducted after which the jury deliberated sixty-seven minutes before returning their decision in an improper form.

 The jury was sent back to the jury room with a correcting instruction. Twenty-five minutes later, the jury returned a death penalty verdict, having found: (1) the capital offense was committed for pecuniary gain; (2) the capital offense was especially heinous, atrocious, and cruel; and (3) the defendant had previously been convicted of a felony involving the use and threat of violence to a person.

 After John Nixon, Sr.'s motion for new trial was overruled, he perfected this appeal.


 Was the impartiality of the venire questioned because of the number of venire members with ties to law enforcement?

 Our criminal justice system is geared toward providing a defendant a fair trial. Among the constitutional guarantees aimed at securing a fair trial is the requirement of Article 3, Section 26, Mississippi Constitution, that a defendant is entitled to a" trial by an impartial jury. "Thus the challenge of this assignment of error is whether an impartial jury was provided whose attitudes were uninfluenced with a number of law enforcement connections of the venire members.

 When questioned whether they had ties to law enforcement, sixteen members of the remaining sixty member venire responded affirmatively. Of those sixteen, four were struck for cause. Of the remaining twelve, three found their way onto the jury and one became an alternate juror.

 The ties the jurors had with law enforcement varied. Juror Hemphill was part owner of an air-conditioner company that worked on highway patrol cars. Juror Jones had a nephew who was a law enforcement officer in Franklin County. Juror Hester was friends with a constable. The alternate, Juror Eaton, had a deceased cousin who was once sheriff of Chickasaw County.

 Based on those ties, Nixon contends the jury that tried him" was so improbably replete with associates of law enforcement as to `adulterate its neutral and impartial decision.\rquote "

 As authority, Nixon cites Mhoon v. State, 464 So.2d 77 (Miss. 1985), which is factually distinguishable from the instant case. In Mhoon, twelve of thirty-nine potential jurors were either police officers or related by blood or marriage to current or former police officers. Id. at 80. Six of the twelve jurors were chosen for the jury with a uniformed police officer acting as foreman. After exhausting all his peremptory challenges, Mhoon requested the trial judge excuse the law enforcement-related jurors for cause, but that request was rejected. Id.

 Referring to the makeup of the Mhoon venire as a" statistical aberration, "this Court reversed and remanded for d new sentencing hearing. Id. at 85. Commenting on its line of reasoning, the Court held," [T]he sheer number of law enforcement-connected persons in the jury pool, as well as persons selected as jurors, has worked a great hardship on Mhoon. "Id. at 81.

 In the instant case, there is simply no showing of hardship suffered by Nixon. There are only bare assertions. None of the three law enforcement-related jurors had d particularly close tie to law enforcement and none of the three served as jury foreman. In addition, Nixon used only ten of his twelve peremptory challenges and was informed by the trial judge that more peremptory challenges would be considered if needed.

 For those reasons, this Court holds this assignment of error is without merit.


 Did the trial court err in excusing for cause venireperson Dorothy Jenkins?

 After informing the prospective jurors that the chosen

 jury would have to be sequestered, the trial judge asked the venire whether sequestration would present a hardship and a burden to each venireperson. Of the jurors who responded affirmatively, Mrs. Dorothy Jenkins stated she had four children at home and her husband was out of town. Mrs. Jenkins' children were ages 13, 15, 17, and 19.

 The trial judge excused Mrs. Jenkins because" she had children at home with no one to care for them and could not suffer sequestration without an undue hardship. "When asked whether they objected to the excusal of several potential jurors, including Mrs. Jenkins, one of the defense attorneys responded," We would so state into the record that we feel the court justifiably for cause allowed to be peremptorily excused for cause all the jurors that were excused . . . . "

 On appeal, Nixon argues the trial court erred in excusing Mrs. Jenkins. As a general rule" the court, in the exercise of sound discretion, may excuse a juror before he is sworn for any reason personal to such person which would make his service as a juror oppressive, or in fact for any reason which to the judge seems sufficient. "47 Am. Jur. Jury 121 (1969). See also, Brown v. State, 38 So. 316 (Miss. 1905) (Venireperson excused because he desired to be at home when his son left for the Philippine Islands.)

 The trial judge was well within his discretion to excuse Mrs. Jenkins. This assignment of error has no merit.

 Also, Nixon contends the prosecutor made an improper comment on voir dire concerning Nixon's failure to testify in his own behalf.

 During voir dire, the defense attorney, not the prosecutor, engaged the venire in a series of questions regarding Nixon's right to remain silent. During this exchange, the district attorney asked to approach the bench, after which the defense attorney was asked to rephrase one of his questions. Thereafter, the following occurred:

 BY DEFENSE COUNSEL: Do you all understand that the fact that John B. Nixon does not testify is not an indication of his guilt if he does not testify? Do you all understand this?

 BY THE COURT: The proper question, Mr. Townsend, is not evidence of his guilt.

 BY DEFENSE COUNSEL: It is not evidence of his guilt. Do you all understand this?

 This Court, gleaning no improper conduct by the prosecutor or the trial judge, holds this contention is without merit.


 Did the trial judge's statements trivialize the role of the jury in a manner incompatible with the seriousness of a capital trial?

 Once the jury was chosen, but before they were sworn, the trial judge reiterated the importance of the jury's sequestration. During this soliloquy by the trial judge, he shared a humorous anecdote which had arisen in another trial. On appeal, Nixon's cites the trial judge's action as error.

 While there is no doubt that there can be no graver proceeding than when a human being is put on trial for his life, see Fuselier v. State, 468 So.2d 45, 53 (Miss. 1985), the judge's minor attempt at levity in the preliminary stages of the trial seems much more geared toward easing the jurors' tensions over sequestration than detracting from the solemnity of the occasion. There is no merit to this assignment of error. See Buckelew v. United States, 575 F. 2d 515, 519 (5th. Cir. 1978) (Telling of jokes by trial judge did not render trial fundamentally unfair where introduction of evidence was not thwarted.)


 Is Nixon entitled to relief under Batson v. Kentucky?

 Although Nixon made no objection to the racial makeup of the jury, on appeal he contends he was denied the right to equal protection of the law because" the prosecutor set out to achieve an all-white jury through abuse of his [peremptory] challenges. "(Emphasis added) It should be noted at the outset that Nixon is a white male, 59 years old, and that the jury was composed of twelve whites, and the victim was a white female.

 The State initially argues Nixon's Batson argument is procedurally barred because there was no objection at trial. See Williams v. State, 507 So.2d 50 (Miss. 1987); Jones v. State, No. DP-60 (Miss. Sept. 30, 1987) (on petition for rehearing); Irving v. State, 498 So.2d 305, 318 (Miss. 1986).

 The State's next argument is that Nixon's claim fails on the merits. This Court agrees.

 Nixon relies on the now-familiar decision in Batson v.

 Kentucky, 476 U.S. ____, 106 S. Ct. 1712, 90 L.Ed.2d 69 (1986). In Batson, the United States Supreme Court held that" the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant. "476 U.S. at ____, 106 S. Ct. at 1719, 90 L.Ed.2d at 83.

 To establish a prima facie case under Batson, a petitioner must establish:

 (1) that he is a member of a" cognizable racial group, "

 (2) that the prosecutor has exercised peremptory challenges toward the elimination of veniremen of the defendant's race and

 (3) that attendant facts and circumstances infer that these challenges were made for the purpose of striking minorities from the jury.

 476 U.S. at ____, 106 S. Ct. at 1723, 90 L.Ed.2d at 87.

 Given the fact that Nixon is white and the jury was made up of three white men and nine white women, this Court holds that Nixon has not and could not present a prima facie case for relief under Batson. Therefore, this assignment of error is without merit.


 Should the in-court identification of Nixon by Thomas Tucker have been suppressed?

 Before being arrested and indicted for the January 22, 1985 murder, Nixon was positively identified as one of the assailants by Thomas Tucker at an October, 1985 lineup conducted in Jackson, Mississippi. Thomas Tucker had previously identified in a March, 1985 lineup a Henry Cooper who Tucker said" looked very much like "John Nixon.

 Prior to trial, Nixon filed a" Motion to Suppress Pre-Trial Lineup Identification, "alleging that the pre-trial lineup was unduly suggestive and was conducted while Nixon was unrepresented by counsel. Thereafter, prior to voir dire, defense counsel moved to withdraw the said motion. At trial, during the direct examination of Thomas Tucker, Tucker identified John Nixon, Sr. as the man who entered his

 house and shot him. There were no objections made during the identification testimony.

 On appeal, Nixon contends the in-court identification should have been suppressed because the out-of-court identification was unduly suggestive and was made while Nixon was deprived of his right to counsel.

 There was no objection made at trial to any identification testimony. In fact, the defendant's motion to suppress had been withdrawn.

 Generally, where there was no motion or contemporaneous objection at trial, this Court will not consider an error raised for the first time on appeal. Miss. R. Evid. 103 (a)(1); Copeland v. State, 423 So.2d 1333, 1335 (Miss. 1982). However, this Court has recognized exceptions to the general rule when errors affect fundamental rights. Gallion v. State, 469 So.2d 1247, 1249 (Miss. 1985) (denial of due process). In addition, this Court may notice" plain error "affecting substantial rights. Miss. Sup. Ct. R. 6 (b); Miss. R. Evid. 103 (d).


 Unduly Suggestive Lineup?

 An impermissibly suggestive pretrial identification does not preclude an in-court identification by an eyewitness who viewed the suspect unless from the totality of the circumstances the identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. York v. State, 413 So.2d 1372, 1383 (Miss. 1982); Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L.Ed.2d 1199 (1967); Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L.Ed.2d 1247 (1968).

 The current guidelines for judging the admissibility of identification testimony are found in Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L.Ed.2d 140 (1977). In Manson, the United States Supreme Court concluded:

 [R]eliability is the linchpin in determining the admissibility of identification testimony for [alleged improperly suggestive] confrontations. The factors to be considered . . . include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty

 demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.

 Manson, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L.Ed.2d at 154. See also Jones v. State, 504 So.2d 1196 (Miss. 1987); Ray v. State, 503 So.2d 222 (Miss. 1986); Thompson v. State, 483 So.2d 690 (Miss. 1986).

 In Manson, the United States Supreme Court reaffirmed the pattern of analysis emanating from Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L.Ed.2d 401 (1972).

 Under the totality of the circumstances of this record as contemplated by Manson and Neil, the trial judge committed no error in allowing Thomas Tucker's in-court identification.


 Right to Counsel?

 The right to counsel under the United States Constitution attaches at the commencement of formal criminal proceedings of an adversarial nature. Kirby v. Illinois, 406 U.S. 682, 688, 92 S. Ct. 1877, 1881, 32 L.Ed.2d 411, 417 (1972). The United States Supreme Court emphasized in Kirby that the key dividing line is the initiation of adversary criminal proceedings" whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. "406 U.S. at 689, 92 S. Ct. at 1882, 32 L.Ed.2d at 417. See also Cannaday v. State, 455 So.2d 713, 722 (Miss. 1984). Formal charge and preliminary hearing are ordinarily pre-indictment proceedings under Mississippi practice.

 Applying Kirby v. Illinois, this Court has held that the right to counsel does not extend to pre-indictment lineups. See e.g., Lannon v. State, 464 So.2d 492, 495 (Miss. 1985); Wilson v. State, 451 So.2d 718, 722 (Miss. 1984); Bankston v. State, 391 So.2d 1005, 1007 (Miss. 1980) and cases cited there.

 However, in Page v. State, 495 So.2d 436 (Miss. 1986) this Court, applying Miss. Const. Art. 3, 26, held the accusatory stage began at the issuance of a warrant or" by binding over or recognizing the offender to compel his appearance to answer the offense. "Id. at 439. See Miss. Code Ann. 99-1-7 (1972); Cannaday v. State, 455 So.2d at 722. Stated practically, the adversarial process begins when the law enforcement arm of the state takes the defendant into custody, and charges him with a crime. Tolbert v. State, 511

 So.2d 1368, 1375 n. 5 (Miss. 1987). See also Miss. Unif. Crim. R. Cir. Ct. Prac. 1.02 and 1.04.

 In the instant case, the record merely reflects Nixon was arrested as a result of being identified in the lineup. It does not reflect that Nixon was or reasonably ought to have been charged with a crime prior to that time, nor does the record reflect that Nixon was without counsel at that time. For those reasons, this Court holds that Nixon's right to counsel had not attached at the time of the lineup.


 Did the State commit a reversible Rule 4.06 discovery violation?

 Nixon contends that certain oral statements allegedly made by him to Thomas Tucker, husband of the victim, and to Gilbert Jimenez, co-defendant, were discoverable and that his conviction should be reversed because the State failed to provide the statements during discovery. Tucker's oral statement was that" the deal has already been made. "The statement elevates Nixon's crime to capital murder, rather than murder, as it provides some proof that the defendant" has been offered or has received something of value for committing the murder "of Virginia Tucker. Therefore, this assignment of error is significant.


 Statement by Nixon to Tucker

 Two months prior to trial, the trial judge issued an order granting discovery pursuant to Rule 4.06 of the Mississippi Criminal Rules of Circuit Court Practice. Thereafter, the prosecutor turned over two transcribed statements of Thomas Tucker and made available the original tape recordings of Tucker's statements. Both statements were made while Tucker was a patient at Rankin County General Hospital. The prosecutor also responded that Nixon had made no statements the State knew of or intended to use at trial.

 At trial, Thomas Tucker was asked on direct examination to describe the events leading to his wife's shooting. Referring to John Nixon, Sr., Mr. Tucker testified:

 A. He reached in his coat and pulled out a pistol; and when he did, I told him," I know Joe Ponthieux hired you to kill us, but we got some money if that's what you (sic) after. "He said,

  " That's not what I'm after. The deal has already been made. "

  (Emphasis added). No objection was made to this testimony.

  On cross-examination, Tucker was repeatedly asked if and when he had told investigators of Nixon's statement" The deal has already been made. "Tucker testified he had revealed Nixon's statement, but he could not remember when and to whom.

  Later in the trial, Investigator John Edwards of the Mississippi Highway Patrol testified on cross-examination that during his numerous interviews of Tucker, Mr. Tucker had never told him of Nixon's statement that" The deal has already been made. "Investigator Edwards was aware, however, that Tucker had told other people of Nixon's remarks.

  Also during the cross-examination of Edwards, District Attorney Orbie Craft informed the court that Mr. Tucker had told him of Nixon's statement. District Attorney Craft explained, however, that it was his understanding that his" obligation was to give them any memorandum of witnesses' statements, whether it be a written statement or an oral statement that was reduced to memorandum and not just our pre-trial interviews with witnesses . . . "and that he thought the verbal statement was not discoverable under the court's order.

  After several other witnesses testified, Nixon moved for a continuance based on the prosecutor's failure to reveal the alleged statement made by Nixon to Tucker. Nixon contended that had he known of the alleged statement prior to trial, he would have been better prepared to cross-examine Thomas Tucker concerning the alleged statement. Nixon requested the continuance so he could interview all the investigators who had interviewed Tucker.

  The Court granted Nixon's continuance and recessed early *fn2 with instructions to the district attorney to help locate all the investigators who had interviewed Tucker.

  The court was to reconvene the next day at 9:00 a.m., but Nixon was told that if he could not be ready, the court would stand by until he was ready. Nixon was also informed he would be allowed to recall any of the witnesses for further cross-examination.

  The next morning the defense attorney informed the court that he had interviewed all the relevant investigators but that he did not wish to recall Thomas Tucker for further

  cross-examination. Instead, Nixon moved for a mistrial stating that it would be more damaging to recall Tucker than not to recall him.

  The trial judge failed to see what damage Nixon would suffer by recalling Tucker that Nixon would not have suffered on the initial cross-examination had he known of the statement beforehand. The trial judge even offered to limit the scope of examination on Tucker's recall so the prosecutor could not introduce new matters. Still, Nixon elected not to recall Tucker. The trial judge then overruled Nixon's motion for mistrial.

  The analysis of this assignment of error must begin by determining whether the oral statement made by Nixon to Tucker, and later relayed by Tucker to Craft, was discoverable under Rule 4.06, Uniform Rules of Criminal Court Practice. Rule 4.06 states in pertinent part:

  The prosecution shall disclose to each defendant or to his attorney, and permit him to inspect, copy, test, and photograph upon request and without further order the following:

  (1) Names and addresses of all witnesses in chief proposed to be offered by the prosecution at trial;

  (2) Copy of any recorded statement of the defendants to any law enforcement officer;

  Upon a showing of materiality to the preparation of the defense, the court may require such other discovery to defense counsel as justice may require.

  . . .

  If, subsequent to compliance with these rules or orders pursuant thereto, a party discovers additional material or information which is subject to disclosure, he shall promptly notify the other party or his counsel of the existence of such additional material, and if the additional material or information is discovered during trial, the court shall also be notified.

  . . .

  If at any time during the course of the

  proceedings it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such party to permit the discovery of material and information not previously disclosed, grant a ...

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