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ELSTER JOSEPH PONTHIEUX v. STATE OF MISSISSIPPI

SEPTEMBER 28, 1988

ELSTER JOSEPH PONTHIEUX
v.
STATE OF MISSISSIPPI



BEFORE DAN M. LEE, P.J.; PRATHER AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

This case of a killing for hire presents thorny questions of the admissibility of many statements all seemingly hearsay. One series of such statements, however, has been declared non-hearsay by our co-conspirator rule. Another is similarly non-hearsay as it was consistent with the declarant's testimony given earlier as a part of the prosecution's case-in-chief and was offered to rebut an implied charge of improper influence or motive. Although the third falls within no exception to or exclusion from the hearsay rule, we find no significant effect upon the defendant's substantial right to a fair trial and affirm.

 II.

 A.

 Virginia and Elster Joseph Ponthieux made their home in Utica, Mississippi. In June, 1983, they separated and never again lived together as husband and wife. Their divorce became final on March 25 or 26, 1984. Three months later, on June 22, 1984, Virginia married Thomas Charles Tucker and moved to Rankin County, Mississippi. On January 22, 1985, John B. Nixon, Sr., Henry Leon Nixon and Gilbert Jimenez made their way into the home of Thomas and Virginia Tucker, and Nixon, Sr., shot Virginia at point blank range. Virginia never regained consciousness and died sometime later in the hospital.

 On January 23, 1986, Elster Joseph Ponthieux was formally charged with the capital murder of Virginia Ponthieux Tucker in an indictment returned by the Rankin County Grand Jury. See Miss. Code Ann. 97-3-19 (2)(d) (Supp. 1987). Also charged in the same indictment were John B. Nixon, Sr., Henry Leon Nixon and John B. Nixon, Jr. Charges against all defendants were severed for trial.

 On May 19, 1986, the case against Ponthieux was called for trial in Circuit Court sitting in Brandon, Mississippi, and four days later the jury returned a verdict that Ponthieux was guilty of capital murder. Ponthieux was tried as a principal, on the theory that he was an accessory before the fact, in that he had hired Nixon, Sr., to murder his ex-wife. See Miss. Code Ann. 97-3-19 (2)(d) (1972 and Supp. 1987); and Miss. Code Ann. 97-1-3 (1972). *fn1 The following day the case entered the penalty phase whereupon the jury returned a verdict that Ponthieux should be sentenced to life imprisonment. The Circuit Court pronounced sentence in accordance with the verdict.

 B.

 John B. Nixon, Sr., and his son, John, Jr., had moved to Utica in February of 1984 and opened a garage. Ponthieux, who lived down the road from the Nixon's shop, met the Nixons sometime between March and May 1984. The Nixons worked on his vehicles and equipment. Another Nixon son, Henry Leon Nixon, and an associate of his, Gilbert Jimenez, came from Texas to visit Nixon, Sr., sometime around the middle of January, 1985.

 On the morning of January 22, 1985, at his home in Brandon, Thomas Tucker heard his wife say "Joe" or "John" or something beginning with a "J" as she opened the garage door, admitting Nixon, Sr., Henry Leon and Jimenez. Nixon, Sr., told Virginia, "I brought you something." Tucker told Nixon, Sr., that he knew Ponthieux had hired him to kill them and that they had money if that was what he wanted. Tucker claims that Nixon, Sr., replied "The deal's already been made." (During the commission of the crime, no one other than Tucker mentioned Ponthieux's name.) Henry Leon testified to virtually identical facts. Jimenez stated that Virginia did not call out any name, but that Nixon, Sr., did say "The deal done went down."

 Nixon, Sr., shot at Tucker, but the gun misfired. Tucker ran. Nixon, Sr., shot Tucker once as he reached the front door, and when Tucker got up, Nixon shot him again. As Tucker was crossing the yard, Nixon, Sr., shot again and missed. Henry Leon testified to the same facts, but Jimenez stated that it was Henry Leon who fired the last shot at Tucker as he was crossing the yard.

 Henry Leon, John, Jr., and Jimenez each testified that, prior to January 22, 1985, Nixon, Sr., had told him that he had been hired by Ponthieux to kill Virginia Tucker. Henry Leon also stated that Nixon, Sr., told him that he had already received some money from Ponthieux and had spent it and that the murder had to be done or they would be in danger of losing their lives.

 One or two days before the killing, Nixon, Sr., told John, Jr., to go to Ponthieux' house to collect some money. John, Jr., did so, and in fact received $2300.00 from Ponthieux, who told him that he had already paid Nixon, Sr., a lot of money and that Nixon, Sr., was not to receive this money until after the job was done. Ponthieux also told John, Jr., that he would kill them all if anything happened to his son, Eddie. (Ponthieux denied that John, Jr., came to his house or that he gave him any money.) John, Jr., showed the money to his father, gave it to a friend to hold, and returned it to his father on January 22, 1985, after the murder was

 committed. Nixon, Sr., gave Jimenez $800.00 and Henry Leon $1,000.00 for their participation in the crime.

 After the killing, John Jr., saw Ponthieux at a gas station in Utica and Ponthieux told him that his brother's talking was "going to get us all locked up." Henry Leon also testified that his father had told him that Ponthieux had said he would buy any of Virginia's jewelry that they were able to obtain when they killed her.

 Jimenez' testimony implicating Ponthieux was a bit shaky. He testified that he first saw Ponthieux at the Nixon garage sometime around the middle of January, 1985, and that Ponthieux returned to the shop four or five times prior to the murder. John, Jr., stated that he never saw Ponthieux at the garage during January, 1985. On the witness stand, Jimenez said that Ponthieux did not have a mustache and was driving a Continental. In an earlier statement to police, Jimenez had described Ponthieux as: six feet two inches tall; heavy in weight, approximately 220 pounds; with a mustache; cowboy hat; and, driving a light pink Lincoln Towncar. Everyone else testified that Ponthieux did not have a mustache in January, 1985, or anytime thereafter, and did not drive a light pink Lincoln Towncar. Dick Liggett, a friend of Ponthieux's, also stated that the heaviest Ponthieux had ever been was 185 or 190 pounds and that he was shorter than five feet eight and a half inches. Ponthieux testified that he drove a beige 1977 Mercury and that he did not visit the Nixon shop at any time during January, 1985.

 Henry Leon and Jimenez further testified that on the night of January 21, 1985, which was the night before the murder, they and Nixon, Sr., stopped by Ponthieux' house to pick up $700.00. They were driving Nixon, Sr.'s Toyota and Nixon, Sr., needed the money to buy a gun in Jackson. Jimenez stated that he and Henry Leon did not see the money change hands, but that when Nixon, Sr., got back in the car he said "I got the money. Let's get out of here. The man don't want to see you on this yard." Ponthieux denied that Nixon, Sr., Henry Leon and Jimenez came to his house that night.

 Other facts will be related as are reasonably necessary to consideration of the issues on this appeal.

 III.

 A.

 Ponthieux assigns as error the Circuit Court's overruling of his objection to Henry Leon Nixon's testimony concerning

 statements made by John B. Nixon, Sr., and by Ponthieux through Nixon, Sr. The said-to-be offensive testimony offered by Henry Leon Nixon may be summarized as follows:

 (1) His father told him that he, Nixon, Sr., had been paid to kill Virginia Tucker and that their lives would be in danger if they did not.

 (2) Henry Leon Nixon saw Ponthieux when they stopped by Ponthieux's house on the night before the murder to pick up $700.00 for a gun and expenses and that when his father ...


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