THE COURT SITTING EN BANC
DAN LEE, PRESIDING JUSTICE, FOR THE COURT:
Richard Lutes appeals his conviction of capital murder rendered by a jury in Lauderdale County Circuit Court for the shooting death of Meridian businessman, Larry Boggs Tiffee. After a bifurcated sentencing trial, the jury declined to invoke the death penalty and returned a verdict of life in prison. He appeals assigning three errors in the trial below:
1. The Court erred in overruling Defendant's motion for a change of venue and in not allowing individual Voir Dire and in not allowing a jury questionnaire to be submitted by defendant.
2. The trial court erred in denying Appellant's Motion to Suppress Appellant's statement, and Supplemental Motion to Suppress, incorporating all tangible and intangible evidence seized from the Appellant's home in Gross Tete, Louisiana, and his wife, Irmgard Lutes, or from the Appellant, Richard Lutes, including any statement, statements, or confessions of the Appellant.
3. The verdict of the jury was against the overwhelming weight of the credible evidence, and there was insufficient evidence for the jury to place a finding of guilt or to determine the Defendant was guilty beyond a reasonable doubt.
Larry Boggs Tiffee was found shot to death in his Meridian, Mississippi home on the afternoon of March 26, 1983. There were seven external wounds, but death was caused by bullets which entered Tiffee's head and chest.
Robbery appeared to be the motive. Tiffee's wallet was missing and several guns had been taken from his gun cabinet. His body was bare of jewelry which an employee said he wore. However, as the investigation continued, law enforcement authorities came to believe that more than simple robbery was involved. A paper trail of credit purchases in Louisiana and Texas made by someone using credit cards owned by Tiffee and Tiffee's company, Southwest Development Company, led authorities to Richard Lutes.
Mississippi and Lauderdale County law enforcement officials learned of the credit card purchases through Tiffee's bookkeeper, and they asked Texas and Louisiana authorities for assistance.
Louisiana authorities identified Lutes with the help of a composite drawing and a Louisiana tag number registered to Lutes which was given during a credit card purchase.
Two Mississippi investigators accompanied Louisiana State Police when on July 12, 1983, a Slidell, Louisiana merchant and one of her part-time employees viewed the lineup and identified Lutes as the man who made several credit purchases posing as Tiffee on the day after Tiffee was killed.
On July 12, 1983, Louisiana authorities obtained an arrest warrant in Slidell, La., for Lutes on charges of forgery and unauthorized use of a credit card, a crime under Louisiana law. On July 13, 1983 Louisiana authorities also obtained a search warrant, seeking the cards and listed items believed to have been obtained through the use of the credit cards.
Lutes was apprehended at his home near Gross Tete, Louisiana sometime early on the morning of July 14, 1983. Louisiana State Police, aided by Mississippi authorities investigating Tiffee's murder, had executed the search warrant earlier in the evening while Lutes' son and wife, Irmgard, were home, but while Lutes was away on business. The search turned up numerous items purchased with the stolen credit cards and also items taken from the Tiffee home. Included among the items seized at Lutes' residence was a briefcase Lutes said belonged to Tiffee. Among several things found in the briefcase was a .380-caliber semi-automatic pistol later identified as the murder weapon.
Lutes gave two tape-recorded statements to officers. In the statements Lutes implicated himself, Robert "Peanut" Griffin of Meridian and a mysterious man Lutes knew as "Al" as principals in some type of scheme. A woman was also involved according to Griffin, Lutes said, but Griffin never mentioned a name.
Lutes stated that he had met with Griffin in Meridian on two separate occasions. They had talked about "doing something to somebody, whatever was necessary, [but] didn't get no names or anything until he'd discussed thirty thousand dollars." The first meeting was several weeks before Tiffee's death. Lutes spent the day in Meridian. However, nothing happened and Griffin ended up telling Lutes to go home because the deal was off.
Griffin called Lutes back several weeks later and asked him to return to Meridian with a gun. This Lutes
did on March 25, 1983. Lutes stated that Griffin introduced him to the man known as Al. He and Al road together that Afteroon in Lutes' Datsun 280-Z. He drove them by Tiffee's neighborhood to case the place. They returned that night and parked on a dirt road down a hill and behind the Tiffee residence. Lutes stated they both approached the house but only Al entered.
Al emerged from the house with a couple of shotguns, a briefcase containing some of Tiffee's personal papers and a jar of change. Al drove Tiffee's car to the highway, where he met up with Lutes and unloaded the items into Lutes' automobile.
The pair then drove on to Slidell where they began using the credit cards. From Slidell, the pair proceeded to New Orleans, then into Texas and on to Dallas for a couple of days before Lutes dropped Al at the airport in Lafayette, Louisiana.
Lutes' second statement was basically consistent with the first but with added detail. In his second statement Lutes mentioned that someone arrived in the car which Al drove away from Tiffee's residence after he and Al approached the house.
Lutes also clarified in his second statement that Griffin had told him he would be paid after the woman received several hundred thousand dollars in insurance money, but he never received more than a couple of hundred dollars expense money from Griffin.
At no point during either statement did Lutes confess to the actual slaying. Lutes did state that because of flashbacks he suffered as a result of an injury suffered while in service in Vietnam that he could not be certain it was not he who actually pulled the trigger.
Griffin and later Gloria Tiffee, the victim's estranged wife, were arrested and also charged in connection with the slaying.
Griffin had been incarcerated for some time when on September 19, 1983, he gave a 13-page statement to police explaining how he offered Lutes $30,000 for a killing on credit, to be paid from an insurance policy taken out on Larry Tiffee which listed Gloria Tiffee as the beneficiary. Griffin implicated Gloria Tiffee as the procuring party in the murder-for-hire scheme.
Griffin said that Lutes originally wanted $10,500 to kill Tiffee, with one-half of it to be paid up front, but he talked Lutes into accepting $30,000 for waiting until later to get paid from an insurance policy.
At Griffin's request, when he came to Meridian on March 25, 1983, Lutes brought someone with him who he introduced as his nephew, Griffin said. Griffin did not know the man's name. Griffin's statement included his recollection of conversations with Lutes after Tiffee's death wherein Lutes admitted he killed Tiffee using a Mack-10.
Lutes called him the morning after the murder about 9:30 a.m., Griffin said, and said "Tell that lady her rooster died last night." Lutes denied this at trial.
According to Griffin's statement, Lutes expressed confidence during these conversations that he would not be caught.
He said, "Do you realize what it takes to prove murder, you've almose [sic] got to have the murder weapon to prove it." He said that he had two barrels to the gun and had changed them on the way home.
Both Griffin and Lutes testified at trial. Both testified in a manner basically consistent with their previous statements. By his own testimony, Lutes placed himself and Al at the Tiffee house on March 25, 1983, the night before Tiffee's body was found.
The only factual question presented to the jury was whether Lutes had gone to the Tiffee home and fired the fatal shots as part of a murder scheme, or whether Lutes had become an unwitting scapegoat who never intended to be a party to murder.
Mike Allen, Mississippi Crime Lab forensic scientist and ballistics expert for the state, identified a .380-caliber semi-automatic pistol found in Tiffee's briefcase as the murder weapon. Also found in the Lutes home was a barrel extension for the weapon. Allen testified that the lab test-fired the weapon with and without the extension and they discovered it had no effect on the characteristics of the bullet fragments.
Allen testified that the model name of the murder weapon was RPB SMll-Al made by RPB Industries. This type
of weapon was also previously manufactured by Machine Armaments Corporation (MAC) and later by a company called Cobra.
However, Lutes testified at trial that the murder weapon was not his gun, though he had a similar model, .380-caliber weapon which he called both his Cobra and his Mack-10. He testified that he did not take his Mack-10 semi-automatic pistol with him to Meridian March 25, and he normally did not carry it because it was too bulky. However, he testified that he returned home between going to New Orleans and going to Texas. At this time he put his Mack-10 into Tiffee's briefcase, which he and Al continued to carry around. He and Al went to Dallas, where Lutes left Al in a hotel room with the briefcase until he went to visit the wife of a friend. Lutes said Griffin knew Lutes had the Mack-10 because he had brought it with him on his earlier trip to Meridian and Griffin had looked at it and fired it.
Lutes at trial maintained that he was certain he was not the person who entered the residence and killed Tiffee. He testified at trial that the scheme referred to in his statements was a fake burglary and insurance fraud scheme designed to allow "the guy" to recover for items he was going to claim were stolen. Lutes was to get part of the insurance proceeds.
Lutes also said at trial the $30,000 had been discussed as his fee for doing some collecting work for a Dr. Al Veach or a man by the name of Tank Gilbert. He had met Gilbert the afternoon of March 25, 1983 before the murder.
Lutes testified at trial that he did not kill Tiffee and though he and Griffin discussed the $30,000 figure, Griffin never discussed what they would do.
Griffin testified that when Lutes arrived at his house on March 25, 1983, he spelled out the deal for the murder on credit, but he also discussed some collection work for a Dr. Al Veach so the trip would nmot be wanted if Lutes didn't want to do the killing on credit.
Griffin was the state's star witness against Lutes, and in return for his assistance he pled guilty to two counts of conspiracy and was sentenced to two 20-year sentences, the sentences to run concurrently.
The case received a great deal of pretrial publicity in the local media and Lutes moved for a change of venue.
This motion was denied following a pretrial hearing.
DID THE TRIAL COURT ERR IN DENYING LUTES' MOTION FOR A ...