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DOROTHY ELIZABETH MAY v. STATE OF MISSISSIPPI

APRIL 20, 1988

DOROTHY ELIZABETH MAY
v.
STATE OF MISSISSIPPI



BEFORE DAN LEE, ANDERSON AND SULLIVAN

DAN LEE, PRESIDING JUSTICE, FOR THE COURT:

Dorothy Elizabeth May was indicted, tried and convicted of murdering her husband, James L. May. She appeals the conviction and sentence to life in the custody of the Mississippi Department of Corrections. She assigns these errors:

I. THE TRIAL COURT ERRED BY ADMITTING INTO EVIDENCE OVER APPELLANT'S OBJECTION THE OPINION OF THE PATHOLOGIST WHO PERFORMED THE AUTOPSY ON THE BODY OF JAMES L. MAY, DECEASED, DR. RODRIGO GALVEZ, THAT JAMES L. MAY'S WOUND WAS NOT A CONTACT WOUND.

 II. THE TRIAL COURT ERRED WHEN IT ADMITTED INTO EVIDENCE THE OPINION OF THE SAME DR. RODRIGO GALVEZ, M. D., THAT MOST SUICIDES SHOT

 THEMSELVES IN AREAS OF THEIR BODY OTHER THAN WHERE JAMES L. MAY'S WOUND WAS LOCATED.

 III. THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT'S NOTION TO STRIKE THE TESTIMONY OF MRS. PHRONIE BELL HUNT ON THE GROUNDS THAT APPELLANT'S ATTEMPT TO POISON HER HUSBAND, JAMES L. MAY, WAS TOO REMOTE IN TIME TO BE RELEVANT.

 IV. THE TRIAL COURT ERRED WHEN IT ADMITTED INTO EVIDENCE THE TAPE RECORDING OF MRS. INNIE PEARL CARTER ROBINSON'S INTERROGATION OF APPELLANT, MRS. DOROTHY ELIZABETH MAY.

 V. THE TRIAL COURT ERRED WHEN IT PERMITTED CHOCTAW COUNTY SHERIFF BOYCE BRUCE AND MISSISSIPPI INVESTIGATORS BILLY GORE AND JERRY BUTLER TO TESTIFY ABOUT WHAT THEY HEARD OF MRS. ROBINSON'S INTERROGATION OF APPELLANT, MRS. DOROTHY ELIZABETH MAY.

 VI. THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT'S NOTION FOR A DIRECTED VERDICT OF NOT GUILTY WHICH SHE MADE AT THE CONCLUSION OF THE PRESENTATION OF THE STATE'S CASE AGAINST HER.

 VII. THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT'S MOTION FOR A PEREMPTORY INSTRUCTION WHICH SHE MADE BY AND THROUGH HER ATTORNEY OF RECORD AT THE CONCLUSION OF THE PRESENTATION OF ALL EVIDENCE DURING THE TRIAL OF THIS CASE.

 VIII. THE TRIAL COURT ERRED WHEN IT OVERRULED DEFENDANT'S MOTION FOR NEW TRIAL.

 Finding no reversible error, we affirm.

 I.

 FACTS

 James L. May was found shot to death in his bedroom sometime between 6:30 and 6:45 on the morning of October 30, 1984. Mrs. Dorothy Elizabeth May, the deceased's wife, told police that May asked her to go check on the dogs the couple kept in the backyard. She had not gone far when she heard a shot and returned to the house whereupon she looked inside and

 saw May lying on his side on the bed. She thought he was dead, and ran the short distance to May's mother's house, and the two returned to the bedroom at which time May's mother turned May on his back to check for signs of life. Next to him lay a double-barrel shotgun. Mrs. May told police that she loaded the shotgun for her husband the night before because he could not do it for himself and he planned on going squirrel hunting the next morning. He died of a wound to the neck near the jaw, below the right ear.

 By some reports, May had been sickly and depressed; however, police quickly came to suspect May's death was not a suicide.

 The investigation turned up evidence pointing to homicide, and on November 16, 1984, Choctaw County Sheriff Boyce Bruce and investigators of the Mississippi Highway Patrol arrested Dorothy Elizabeth May. She was indicted in the February 1985 term of the Choctaw County grand jury. After a continuance at defendant's request, trial commenced February 26, 1986.

 The evidence showed that in May 1984 Mr. May had been hospitalized in Eupora, then moved to a hospital in Tupelo. Later he was a patient at the Methodist Rehabilitation Center in Jackson, Mississippi. However, there was no testimony as to what, if any, diagnosis was made. May's son, Charles Edward May, said he never spoke with his father's doctors or with his mother about the cause of Mr. May's illness. None of May's doctors testified, nor did Mrs. May take the stand in her defense.

 The state sought to show that Mr. May's illness was caused by Mrs. May, but that when it appeared he would recover, she killed him. The state produced witnesses who testified they heard Mrs. May say that she wanted to kill her husband so she could collect on his insurance policies.

 Mrs. May formerly drove a school bus for the Choctaw County School District. Tina Beecher, who rode on the bus driven by Mrs. May, testified Mrs. May asked her on several occasions how could she get rid of her husband without losing everything.

 Rudolph Carter, son of one of Mrs. May's friends and with whom Mrs. May had a "close relationship," testified that 30 or 40 times between January 1984 and May 1984 Mrs. May told him she wanted to get rid of her husband. At first she wanted someone to kill him and then she asked Rudolph to kill him for her. It had to look like an accident, she said, so she could collect the insurance and live her life without her husband's interference, Carter testified. Then she said if she could not find someone

 else to do it, she would do it herself. Mrs. May suggested to Rudolph that they could run away to Texas together and spend the insurance money without anyone knowing.

 Carter further testified that Mrs. May told him she tried to poison Mr. May by putting rat poison in his food, but this did not kill him. She also told him she tried to give him sleeping pills in his food, but he did not eat enough of the food to affect him.

 Ray Lampard, a substitute school bus driver who worked with Mrs. May during the spring of 1984, testified that one day in the parking lot Mrs. May brought up the subject of her husband. She asked Lampard what kind of poison she could use to kill her husband. Lampard said he asked why and she responded that she wanted to kill him so she could get insurance money and go to Texas with Rudolph Carter.

 Dwight Robinson, a 17-year-old who on rode Mrs. May's bus, testified that she asked him how long it took before a dead body got stiff. She told him she was going to put rat poison in her husband's food and was going to collect the insurance money and withdraw other money out of the bank.

 Larry David Carter, another son of Innie Pearl Carter Robinson, Mrs. May's close friend, testified that he met Mrs. May at a florist's shop where she offered him $5,000 to kill her husband, which he declined. She told Carter that Mr. May had wanted to go to the bank in Eupora to withdraw his money after he became sick, but Mrs. May had already spent it.

 Mrs. Innie Pearl Carter Robinson and Phronie Bell Hunt both testified that Mrs. May told each of them she had given rat poison to Mr. May. They reported this to a Dr. Pennington, but Dr. Pennington did not testify at the trial.

 Frances Blake, a worker at the Four-Way Superette, testified that Mrs. May often bought gasoline at the store and they would talk about her husband's health. Ms. Blake said one day she inquired of Mrs. May how her husband was doing and Mrs. May replied, "Well, Frances, in spite of all my attempts to kill him, it looks like he's going to live." Mrs. May did not smile when she said this.

 Post mortem tests on hair and fingernail samples taken from May's body showed he had increased levels of arsenic, a common ingredient in rat poison. J. C. Smiley, forensic toxicology expert, testified that there was approximately 10 times more arsenic in the fingernail samples than would be considered normal. The arsenic level in the hair samples was almost twice

 what is considered normal. Smiley said he found no traces of arsenic in the liver, a main repository for poison in the body. This could have meant there was no recent ingestation of arsenic, or that ingestation was at a much earlier date. Smiley testified there could have been industrial-related reasons for the presence of arsenic, and he did not know Mr. May's work background.

 The state introduced physical evidence and expert testimony to negate the possibility of suicide.

 Dr. Rodrigo Galvez, a pathologist who qualified as an expert witness, testified that May died of a gunshot that entered the right side of the neck at the mandibular angle, just below the jaw near the ear. The wound itself covered 2-1/2 to 3-1/2 centimeters. Galvez found shotgun shot and wadding in the wound. Death was caused by shot travelling up through the brain.

 One of the main factual questions for the jury to resolve was whether the shot was fired at a range close enough to suggest self-infliction.

 The left barrel of the double-barreled shotgun found by May's body contained an expended hull; the right barrel contained an unfired shell. Since May was supposedly found on his left side, Investigator Jerry Butler of the Mississippi Highway Patrol measured May's reach on his right arm. From the wound to the furthest tip of May's longest finger on his right hand was a distance of 32-1/2 to 33 inches. The distance from the tip of the shotgun barrel to the trigger for the left barrel (which was slightly behind the right barrel trigger) was 29 inches. Thus, for May to have fired the fatal shot, the barrel would have had to have been within roughly four inches of May's throat.

 Steve Byrd, Mississippi Crime Laboratory forensic scientist, testified as a firearms examination expert. Byrd testified he test-fired the shotgun found by May's body, and the size of the wound most closely corresponded to the dimensions of a shot fired from a distance of 42-54 inches; however, Byrd said a "sooty area" or ring of ...


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