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BOBBY JOE PINKNEY v. STATE OF MISSISSIPPI

DECEMBER 14, 1988

BOBBY JOE PINKNEY
v.
STATE OF MISSISSIPPI



EN BANC:

SULLIVAN, JUSTICE, FOR THE COURT:

Bobby Joe Pinkney was tried and convicted by the Circuit Court of Hinds County, Mississippi, for the capital murder of Tracey Thompkins Hickman. He was sentenced to death. From this conviction and sentence he appeals to this Court assigning multitudinous errors. We find no merit to any of his assignments and the conviction and sentence of death are affirmed.

On October 25, 1984, Betty Thompkins went to the home of her daughter, Tracey Thompkins Hickman. Her two grandchildren, Michael and Daniel, who were three and two respectively, let her into the house. Betty Thompkins was directed to the kitchen where she found her daughter, Tracey, lying in a pool of blood - obviously dead.

 On December 7, 1984, an indictment was filed in the Circuit Court of Hinds County, Mississippi, charging Bobby Joe Pinkney with the capital murder of Tracey Hickman. The indictment charged that the murder was committed during the course of a burglary of her dwelling.

 Numerous pre-trial motions were filed. Among them were a Motion for Continuance, a Motion to Suppress Statement, a Motion for Funds to Hire an Investigator, and a Motion for Private Psychiatric Examination and Testing. On July 11, 1985, a hearing was held on the suppression motion and Officers J. W. Stevens and William Turcotte testified for the State, while Pinkney himself testified for the defense. William Turcotte, James Davis, and William Leach testified in rebuttal for the prosecution. The trial judge denied the Motion to Suppress. He also denied the Motion for Continuance and Motion for Funds to Hire an Investigator and the Motion for Private Psychiatric Examination and Testing.

 On June 20 and 26, 1985, a special venire was drawn. From the lengthy voir dire of this special venire and the qualification and selection of the jury numerous assignments of error have arisen.

 At trial, Betty Thompkins, mother of Tracey T.

 Hickman, testified that on October 25, 1984, she went to her daughter's home. As Thompkins turned off of Highway 27 onto Burkes Road, she saw her daughter's car parked on the side of the road. She parked behind her daughter's vehicle and walked to Tracey's house. Her grandchildren let her into the house and directed her to the kitchen where she saw Tracey lying dead on the kitchen floor. Thompkins testified about the damage to the house and several photographs of the house and the scene were admitted into evidence.

 During cross-examination, Thompkins testified that Tracey and her husband, Gary Hickman, had been separated for approximately three months at the time of Tracey's death. Thompkins also testified that an artificial plant, which had been on top of the wood burning heater, was missing from her daughter's home on October 25, 1984.

 Hinds County Deputy Steve Bailey testified that he arrived at the Hickman home at about 1:55 p.m. on October 25, 1984, and took photographs of the house and the broken window in the dining room. Bailey stated there was dirt, which appeared to have come from a flower pot, in the den. A photograph of the kitchen and Tracey Hickman's body was admitted into evidence as were some photographs showing the bloodstains on the kitchen walls and floor.

 Bailey testified that he had photographed some footprints outside the home and made a plaster of paris cast of one of these prints. Bailey also testified that he had taken photographs at the autopsy of Tracey T. Hickman and these photographs were admitted for identification. Through Bailey's testimony Tracey Hickman's clothing, and a nine pound wood splitting maul were also admitted for identification.

 After the testimony of Bailey, in chambers Pinkney expressed his dissatisfaction with the all white jury which had been empaneled.

 The prosecution next called Hinds County Deputy Gavin Davis who testified that he had interviewed Gary Hickman and Milton Blair. Davis discovered that a wood splitting maul, which belonged to Blair was missing from Hickman's shed. According to Davis, this maul was easily identified because it had a homemade hickory handle. Davis found the maul in Five Mile Creek and took possession of it.

 Milton Blair testified for the prosecution that he

 often let Gary Hickman borrow tools and other items of personal property. According to Blair he had stored some of his tools in Hickman's shed and his wood splitting maul (which had been stored there) was missing. Blair identified the maul which had been found in Five Mile Creek as his.

 Ozell Carson testified that at about 9:00 p.m. on October 24, 1984, Tracey Hickman's automobile broke down in front of his home. Carson was unable to siphon any gas out of his truck for Hickman. Carson, his wife, and his stepson pushed Hickman's car out of the road so that it would not cause an accident. Carson then got two gallons of gasoline for Hickman from his brother.

 Carson said that Bobby Joe Pinkney stopped at the scene and began talking to Tracey Hickman. After the conversation Pinkney left and later returned with David Richards, who worked on Hickman's car. The car cranked, died again, and was pushed down the highway to J. C. Carson's driveway. At this point Ozell Carson returned to his house.

 Hinds County Investigator William Turcotte testified that on the afternoon of October 25, 1984, he went to the Hickman house on Cook Road and secured the scene and collected items of potential evidentiary value. According to Turcotte, Gavin Davis was looking for a wood splitting maul which was known to be missing from the Hickman residence.

 On October 26, 1984, Turcotte attempted to find Pinkney. That afternoon Pinkney was picked up at his house by Officers Leach and Stevens. According to Turcotte, Leach and Stevens met Turcotte and Davis at the intersection of Old Highway #3 and Highway #27. Pinkney was with Leach and Stevens. Turcotte said that he carefully explained to Pinkney his Miranda rights and Pinkney admitted helping Tracey Hickman with her car at about 10:30 on the night of her death. Turcotte said that the officers then returned to Pinkney's house where Pinkney gave his written consent to a search of his car. Pinkney voluntarily produced a pair of work boots, the tread of which resembled the impression found at the Hickman house. The boots appeared to be splattered with blood. The boots were then identified and admitted into evidence.

 According to Turcotte the floor mat of Pinkney's car contained what appeared to be a bloodstain and bone

 fragments. A piece of the floor mat was identified and admitted into evidence.

 After the search of Pinkney's automobile, Pinkney was arrested. Turcotte again advised Pinkney of his Miranda rights and Pinkney confessed on the way to the sheriff's office. It is sufficient to note that through Turcotte's testimony a tape recorded confession was admitted into evidence. The transcript of this recording was admitted for identification and the tape was played for the jury. A signed confession was also admitted into evidence and read to the jury.

 Joe Andrews, a forensic scientist with the Mississippi Crime Laboratory, testified that he compared hair samples found on the wood splitting maul with known samples from Tracey Hickman. Andrews testified that those samples could have had a common origin. Andrews explained that hair samples, unlike fingerprints, are not susceptible to precise identification and analysis.

 Larry Turner, a forensic serologist with the Mississippi Crime Laboratory, testified that he analyzed stains from Pinkney's floor mat and the wood splitting maul and determined that the stains were human blood.

 Dr. Rodrigo Galvez, a pathologist and psychiatrist, testified that on October 25, 1984, he performed the autopsy on the body of Tracey Hickman. Through Galvez' testimony the autopsy pictures were admitted into evidence.

 Galvez said the body was badly bruised and the skull was like a "crushed eggshell." He further testified that in addition to the large cuts in Tracey Hickman's head, there were numerous smaller lacerations. The wound in the right side of the head was, according to Galvez, almost perfectly square. Three drawings which are Dr. Galvez' depictions of possible weapons were admitted into evidence.

 According to Galvez, any of the three blows to the head could have caused death. Dr. Galvez testified that the bruises on the body were caused before death as a corpse will not bruise. Dr. Galvez said that since the blood had pooled under decedent's back and buttocks, she was lying on her back when she was killed. Dr. Galvez estimated the time of death to be approximately 9:30 p.m., October 24, but allowed himself five hours leeway.

 The State rested and defense counsel made an opening statement in which it was contended that Pinkney's confessions were involuntary and not to be believed.

 David Richards testified for Pinkney that on October 24, 1984, he was at Lena Mae Hartfield's Cafe drinking beer when Bobby Joe Pinkney came in. Pinkney took Richards to fix the Hickman car. Richards testified that he could not keep the car cranked and that Bobby Joe Pinkney and Tracey Hickman drove off in Pinkney's car. Pinkney and Hickman returned approximately twenty minutes later and Richards and Pinkney got Hickman's car started and she drove away. Richards said that Pinkney took him home at about 12:00 o'clock midnight. Richards equivocated and finally admitted that it could have been as early as 11:30 p.m. when Pinkney dropped him off at home.

 Deloris Craig, Pinkney's common law wife, testified that on October 24, 1984, Pinkney dropped her off at their house at about 10:00 o'clock p.m. and left. Pinkney returned between 12:30 and 1:00 o'clock a.m., ate supper and went to bed. Craig then produced some articles of clothing which she claimed had been worn by Pinkney on the night of October 24, 1984.

 Pinkney himself testified that on October 24, 1984, he stopped at Ozell Carson's to help Tracy Hickman with her car. He then went to Lena Mae's Cafe and got David Richards to come work on Hickman's car. According to Pinkney, Hickman wanted him to take her to Utica. Pinkney said that they went to Caesar's Cafe where he bought some beer and cigarettes which Hickman had requested. On their way back, according to Pinkney, Hickman produced a marijuana cigarette which they smoked.

 Pinkney claims that after David Richards attempted to get $50.00 for his efforts to fix the car, Hickman drove away with her children. Pinkney testified that he never saw Hickman again.

 Pinkney claims he confessed because he was threatened at gunpoint and abused after the police picked him up at his house. Pinkney also claims that the Miranda rights were not given to him until after he had given his confession. On cross-examination Pinkney was unable to explain why his witnesses testified that he left David Richards' house at 12:00 o'clock midnight and did not get home until 12:30 or 1:00 o'clock a.m. Pinkney concedes that it would only take about five minutes to make the

 trip.

 At the conclusion of the guilt phase the jury found Pinkney guilty of capital murder. At this point the defense made a proffer of a deposition of District Attorney Peters taken in a federal proceeding. This deposition deals with Peters' use of peremptory challenges to remove prospective black jurors in criminal cases. Also introduced was a newspaper article which quoted Peters as saying that the ideal juror is "a 45 year old white male with a crewcut and white socks who welds for a living." About black jurors in capital cases Peters is quoted as saying "Get rid of as many as you can." Peters did not deny the quotations.

 After opening statements were made all the evidence from the guilt phase was adopted by the parties at the sentencing phase.

 Turcotte again testified that he found the body of Tracy Hickman surrounded by a blood soaked circle in the carpet. Turcotte testified that the children had tracked blood on the kitchen floor and into Tracey Hickman's bed. Turcotte recounted his unsuccessful attempts to talk to the children and described their frightened condition. Turcotte testified that the crime scene was the bloodiest and goriest that he could ever remember.

 Dr. Rodrigo Galvez testified again about Hickman's crushed skull and numerous lacerations. Dr. Galvez testified about the severe pain which would have been inflicted by the bruising blows found on Hickman's head and body. Over objection, Dr. Galvez was permitted to testify about the effect of the murder on the children who witnessed it - or at least its aftermath. A photograph which shows a large hole in Tracy Hickman's head and a number of bruises was also admitted over objection. Galvez characterized the wounds on Tracy Hickman's body as the worst he had ever seen. The State rested.

 Pinkney was informed of his right to address the jury and instructed not to argue the issue of guilt.

 J. L. Brown, a Baptist Minister, was called by the defense and testified that he had known Pinkney since he taught him in junior high school. Brown said he had never had any trouble out of Pinkney and that he knew him personally to be a hard working, peaceful, and capable of being rehabilitated.

 Lula M. Burks, Pinkney's first grade teacher, testified that, as a first grader, Pinkney was not a trouble maker and that while she did not know Pinkney well, she had never known him to be violent.

 Walter Jackson, Pinkney's stepfather, testified that Pinkney "was a good boy coming up." According to Jackson, after quitting school Pinkney took a job and contributed to the support of the family. However, Jackson admitted having called Officer Leach to the house to tell Pinkney to move out but Jackson stills insisted that Pinkney was not a violent person. Bonnie Jackson, Pinkney's mother, testified that Pinkney was obedient and non-violent.

 Joyce Reid, a co-worker of Pinkney's, testified that during the four years that she worked with him she found him to be courteous. She had never heard Pinkney curse and had never seen him act violently.

 Henry King, another co-worker, testified that Pinkney was a good worker who never cursed.

 After conferring for less than one hour the jury unanimously agreed that Bobby Joe Pinkney should suffer death. The trial judge sentenced Pinkney to death.

 I.

 THE TRIAL COURT ERRONEOUSLY PERMITTED THE STATE TO PRESENT TO THE JURY THE BACKGROUND OF THE DECEASED, AND THE EFFECT OF THE CRIME ON THE FAMILY OF THE DECEASED, BOTH THROUGH THE INTRODUCTION OF EVIDENCE AND IN OPENING AND CLOSING, IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 28 OF THE MISSISSIPPI CONSTITUTION.

 Pinkney contends that the district attorney used a "victim advocacy strategy" which this Court prohibited in Fuselier v. State, 468 So.2d 45, 52-53 (Miss. 1985). Pinkney also challenges this strategy on the basis of Booth v. Maryland, 482 U.S. ___, 96 L.Ed.2d 440, 107 S. Ct. 2529 (1987), which held that a Maryland statute requiring a victim impact statement violated the Eighth and Fourteenth Amendments when such a statement was introduced into evidence during the sentencing phase of a capital murder trial. Specifically, Pinkney challenges

 the prosecutor's opening statement, the victim's mother's testimony during the guilt phase, Dr. Galvez' testimony during the sentencing phase, and the prosecutor's closing arguments.

 During her opening statement the prosecutor made the following comments:

 And at this point, ladies and gentlemen, comes the good part of my job - if you call it a good part - because this is when I begin to scratch the surface of asking you people for some justice for Betty Thompkins. I will ask you to return a verdict of guilty for the people of the State of Mississippi, but I am asking you to return a verdict of capital murder. Capital murder being murder in the commission of another felony, in this case, burglary. I'm not concerned with your ability to do that. I am not concerned one small bit. As I said, that will be when I scratch the surface of asking you to give that family some justice, because at that point we will bring you further evidence, evidence that no one should ever have to see. And I do not envy your responsibility. It is not a pretty sight. And at that point, after you have seen the heinousness, the atrociousness, and the cruelty of what happened that night and you compare it with what you have heard from this defendant's mouth, then I will ask you to scratch a little further in the surface of bringing justice to this family. No one can every bring them complete justice. No one can every bring them Tracey back. No one can give those children their mother. No one can give Betty Thompkins her baby. But I will ask you to do your best to give her the justice that's available, not just because it's the oath that you took when you said you believed in the death penalty if we proved that it fit the crime; and it does. I will ask you to do so because it's the least we can do. Thank you.

 No contemporaneous objection was made to the statement of the prosecutor and the prosecution therefore contends that this assignment is procedurally barred. See Cole v. State, 525 So.2d 365 (Miss. 1987).

 The issue of procedural bar appears frequently in this record. In Williams v. State, 445 So.2d 798 (Miss.

 1984), we said, "We have in death penalty cases the prerogative of relaxing out contemporaneous objection and plain error rules when the interest of justice so requires." Williams, 445 So.2d at 810. Citing Culberson v. State, 379 So.2d 499, 506 (Miss. 1980); Bell v. State, 360 So.2d 1206, 1215 (Miss. 1978). Because the death penalty is a different sort of punishment with more severe consequences than other sentences, this Court's scrutiny of such cases is correspondingly heightened. Williams, 445 So.2d at 810; see also, Laney v. State, 421 So.2d 1216, 1217 (Miss. 1982); Irving v. State, 361 So.2d 1360, 1363 (Miss. 1978). However, there are many instances in which this Court has invoked procedural bars against capital defendants. See Jones v. State, 517 So.2d 1295, 1310 (Miss. 1987); Booker v. State, 511 So.2d 1329 (Miss. 1987); Hill v. State, 432 So.2d 427 (Miss. 1983). Additionally, this Court has a statutory obligation to review death penalty cases to determine whether the sentence was imposed under the influence of arbitrary or extraneous influences. Section 99-19-105 (3) (a), Mississippi Code Annotated (Supp. 1987). In capital cases, the procedural bar is sometimes relaxed because of the nature of the right asserted. See West v. State, 485 So.2d 681, 687-88 (Miss. 1985). Also, this Court has relaxed its procedural bar to consider serious, cumulative errors. See Williams v. State, 445 So.2d 798 (Miss. 1984). Even in capital cases procedural bars appear to be applied, based on a number of factors, on a case by case basis.

 We find that this assignment of error is procedurally barred. Reviewing the assignment on its merits, however, we find that it is without merit. The conduct of the prosecutor in this case no way resembles Fuselier, in which the daughter of the victim was permitted to sit within the rail of the courtroom and confer with the district attorney throughout the trial. Nor does the statement by the prosecutor remotely resemble the introduction of statements to the jury as was done in Booth v. Maryland, supra. The prosecutor's comments do not require reversal of this conviction or sentence.

 Under the same heading Pinkney next argues that Betty Thompkins, the mother of the deceased, impermissibly testified as to the background of her daughter and her reaction at finding her daughter's body the morning after the murder. No objection was made to this testimony and the prosecution again contends that the assignment is procedurally barred under the authority of Cole v. State, supra. The prosecution further argues that Thompkins'

 testimony was relevant and necessary as she was the witness who first saw the body. While this assignment is procedurally barred if we look beyond the bar to the merits of the assignment we find that no error was committed as Thompkins' testimony was necessary to establish the identity of the deceased, the ownership of the house, and the facts and circumstances surrounding her discovery of Tracey Hickman's body. This testimony was properly admitted.

 The difficult issue under Booth arises out of the testimony of Dr. Galvez during the sentencing phase. The record reads, in pertinent part, as follows:

 Q. Dr. Galvez, what effect would this have on a young child who saw this type of crime?

 A. I could quote you books after books and author after author who wrote extensively about this type of situation. A child about three or four years of age watching either mother or father being killed, especially in their very -

 MR. STRIBLING:

 Just a minute, now. I want to make an objection here. Unless he testified that he actually talked to and examined this child, we will object to any guesswork, or any opinion, medical opinion as to what this child may have thought.

 THE COURT:

 Well, he been qualified as an expert and I will allow him to testify within that framework. The objection will be overruled.

 MR. PETERS:

 Thank you.

 Q. Go ahead, Dr. Galvez.

 * * * *

 She was gone, but the children will be alive and will remember the rest of their lives what they saw there for at least twelve hours they were with their mother.

 Are you asking me what the consequence will be for the children?

 Q. Yes.

 A. I can guarantee you they will have emotional scars the rest of their lives.

 The prosecution contends that this issue is procedurally barred as the proper objection was not made and that the testimony was permissible because it was "directly related to the circumstances surrounding the crime." Booth, 96 L.Ed.2d at 457 (footnote 10).

 In Booth v. Maryland, the U. S. Supreme Court addressed a Maryland statute which required that a formal Victim Impact Statement (VIS) be compiled and considered as evidence at a sentencing proceeding. Booth, 96 L.Ed.2d at 446 (footnote 2). The VIS was compiled by the State Division of Parole and Probation from interviews from the victim's families. The VIS (which is appended to the majority opinion) contained comments about the void which resulted from the murders. Also, ". . . the VIS described the emotional and personal problems the family members have faced as a result of the crimes." Booth, 96 L.Ed.2d at 446. The VIS was introduced into evidence over objection and on appeal it was held that the admission of this report was not error.

 The U.S. Supreme Court granted certiorari to consider the Eighth Amendment issues raised by the VIS. In a five - four decision that Court held that the introduction of the VIS during a capital sentencing trial violated the Eighth Amendment. Writing for the majority,

 Justice Powell stated:

 It is well-settled that a jury's discretion to impose the death sentence must be "suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." Gregg v. Georgia, 428 U.S. 153, 189 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.); California v. Ramos, 463 U.S. 992, 999 (1983). Although this Court normally will defer to a state legislature's determination of what factors are relevant to the sentencing decision, the Constitution places some limits on this discretion. See, e.g., id.,

 at 1000-1001. Specifically, we have said that a jury must make an "individualized determination" of whether the defendant in question should be executed, based on "the character of the individual and the circumstances of the crime." Zant v. Stephens, 462 U.S. 862, 879 (1983) (emphasis in original). See also Eddings v. Oklahoma, 455 U.S. 104, 112 (1982). And while this Court has never said that the defendant's record, characteristics, and the circumstances of the crime are the only permissible sentencing considerations, a state statute that requires consideration of other factors must be scrutinized to ensure that the evidence has some bearing on the defendant's "personal responsibility and moral guilt." Enmund v. Florida, 458 U.S. 782, 801 (1982). To do otherwise would create the risk that a death sentence will be based on considerations that are "constitutionally impermissible or totally irrelevant to the sentencing process." See Zant v. Stephens, supra, at 885.

 Booth, 96 L.Ed.2d at 448.

 Further the court addressed the relationship between the "moral blameworthiness" of the defendant and the VIS:

 The focus of a VIS, however, is not on the defendant, but on the character and reputation of the victim and the effect on his family. These factors may be wholly unrelated to the blameworthiness of a particular defendant. As our cases have shown, the defendant often will not know the victim, and therefore will have no knowledge about the existence or characteristics of the victim's family. . . .

 It is true that in certain cases some of the information contained in a VIS will have been known to the defendant before he committed the offense. As we have recognized, a defendant's degree of knowledge of the probable consequences of his actions may increase his moral culpability in a constitutionally significant manner. See Tison v. Arizona, 481 U.S., (1987). We nevertheless find that because of the nature of the information contained in a VIS, it creates an impermissible risk that the capital sentencing decision will

 be made in an arbitrary manner.

 Booth, 96 L.Ed.2d at 449-450.

 The opinion in Booth may contain the seeds of its own destruction. The State relies primarily on a footnote which provides in part:

 Our disapproval of victim impact statements at the sentencing phase of a capital case does not mean, however, that this type of information will never be relevant in any context. Similar types of information may well be admissible because they relate directly to the circumstances of the crime. Facts about the victim and family also may be relevant in a noncapital criminal trial. Moreover, there may be times that the victim's personal characteristics are relevant to rebut an argument offered by the defendant. See, e.g., Fed. Rule Evid. 404 (a) (2)

 96 L.Ed.2d at 451 (Footnote 10).

 The testimony of Dr. Galvez is not as egregious or voluminous as that contained in the VIS in Booth. Also the children's condition is much more closely related to the actual murder (they were there) than were the comments put forward in Booth. It should be noted that Booth had not been decided at the time Pinkney was tried and we cannot say that Pinkney's counsel should have been able to anticipate the Booth holding. However, Fuselier had been decided by this Court and more to the point, there existed at common law the basic rule of evidence on relevance. The relevance objection in this instance was obvious and was not made by defense counsel. It therefore was not error to allow this testimony at the sentencing phase by Dr. Galvez.

 Addressing the closing arguments of the prosecution, Pinkney also argues that they violate Booth. Once again the prosecution relies upon procedural bar and further argues that the proper analysis is "whether the prosecutor's remarks denied the defendant a fundamentally fair trial." Lockett v. State (I), 517 So.2d 1317, 1333 (Miss. 1987).

 In Lockett, this Court invoked a procedural bar on a similar assignment of error stating:

 This Court on numerous occasions has refused to consider the issue of prosecutorial misconduct where the defendant did not raise it at trial and we so refuse to do so today. See, e.q., Dufour v. State, 483 So.2d 307, 311 (Miss. 1985); Billiot v. State, 478 So.2d 1043, 1045 (Miss. 1985); In re Hill, 460 So.2d 792, 799 (Miss. 1984); Smith v. State, 434 So.2d 212, 216 (Miss. 1983); Read v. State, 430 So.2d 832, 836 (Miss. 1983). Alternatively reaching the merits, however, Lockett's claim fails. The question for this Court is whether the prosecutor's remarks denied the defendant a fundamentally fair trial. Stringer v. State, 500 So.2d 928, 939 (Miss. 1986); see also, United States v. Younq, 470 U.S. 1, 16, 105 S. Ct. 1038, 1045, 84 L.Ed.2d 1, 13 (1985); Donnelly v. DeChristoforo, 416 U.S. 637, 645, 94 S. Ct. 1868, 1872, 40 L.Ed.2d 431, 438 (1974).

 Lockett (I), 517 So.2d at 1333.

 We are of the opinion that all of the assignments taken together do not merit reversal of the guilt phase or the sentencing phase. Under our holding in McFee v. State, 511 So.2d 130, 135 (Miss. 1987), these instances did not substantially impair the right of the defendant to a fair trial. II.

  THE LOWER COURT ERRED IN ADMITTING THE APPELLANT'S CONFESSIONS INTO EVIDENCE IN THAT SAME WERE OBTAINED IN VIOLATION OF APPELLANT'S RIGHTS UNDER THE SIXTH AND FIFTH AMENDMENTS TO THE FEDERAL CONSTITUTION AND SECTIONS 26 AND 14 OF THE MISSISSIPPI CONSTITUTION.

  A.

  THE CONFESSIONS WERE OBTAINED IN VIOLATION OF THE APPELLANT'S RIGHT TO COUNSEL UNDER THE SIXTH AMENDMENT OF THE FEDERAL CONSTITUTION AND SECTION 26 OF THE MISSISSIPPI CONSTITUTION.

  In this assignment Pinkney challenges the admissibility of his confession on Fifth and Sixth Amendment grounds. Pinkney's first contact with authorities occurred at about 3:30 p.m. on October 26, 1984. Pinkney was given Miranda warnings by Officer Leach

  and indicated that he understood them. Pinkney agreed to accompany the officers to David Richards' house. However, instead of going to David Richards' house, the officers stopped and waited for two investigators to catch up with them. These investigators were Officers Turcotte and Davis.

  When Turcotte and Davis arrived, Turcotte again advised Pinkney of his Miranda rights and then took Pinkney to his own home where Pinkney signed a consent form to search his house and vehicle. Pinkney went into his house and returned with a pair of boots, which appeared to the officers to have blood on them. Turcotte and Davis also found what appeared to them to be blood and possibly bone or flesh fragments on the floor mat of Pinkney's car. Pinkney was then handcuffed and again advised of his rights. Davis and Turcotte told Pinkney on the way to Jackson that he would be charged with the murder of Hickman. Upon arriving at the detention center, Pinkney was given supper and allowed to eat by himself, go to the bathroom and wash his face. He was then once again advised of his rights in detail and signed a consent to speak form. Pinkney then gave a detailed confession, which was tape recorded. Only Turcotte, Davis, and Pinkney were present at the confession. The taped confession was taken on Friday night.

  The following day (Saturday), Pinkney was again advised of his rights and signed another consent form. As the tape recorder would not work handwritten notes were taken. Afterward Pinkney signed the handwritten statement. On Monday, Pinkney was given a transcript of the tape recorded confession. He refused to sign this transcript and indicated that he wanted to talk to a lawyer. No further interrogations took place after Pinkney invoked his right to counsel.

  At the suppression hearing, Pinkney made allegations of coercion, and claimed that he was forced to sign a blank consent to search form. He also contended that he was physically intimidated, instructed on the content of his confession, and threatened with the gas chamber. Turcotte, Leach and Davis all testified and denied all of Pinkney's allegations.

  Pinkney contends that his Sixth Amendment right to counsel was violated on the authority of Page v. State, 495 So.2d 436, 440 (Miss. 1986); and Cannady v. State, 455 So.2d 713 (Miss. 1984). The damaging confessions were made on the night of the arrest and the next day.

  The interplay between the Fifth and Sixth Amendment rights to counsel (and their state equivalents) was gone into in great detail in Cannady and Page. Pinkney's argument fails because the facts of this case clearly show that Pinkney waived both his Fifth and Sixth Amendment rights. Pinkney testified at length on this issue and his testimony is unconvincing.

  The trial judge committed no error in declining to suppress the statements. The evidence simply does not support Pinkney's claim that these rights were not knowingly, intelligently, and voluntarily waived. The State complied with Agee v. State, 185 So.2d 671 (Miss. 1966), and met its burden under Cannady and Page.

  B.

  THE CONFESSIONS WERE OBTAINED IN VIOLATION OF PINKNEY'S RIGHT NOT TO GIVE EVIDENCE AGAINST HIMSELF SECURED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE FEDERAL CONSTITUTION AND SECTIONS 26 AND 14 OF THE MISSISSIPPI CONSTITUTION.

  Pinkney also challenges the voluntariness of his confession.

  In Cabello v. State, 490 So.2d 852 (Miss. 1986), we addressed the admission of a confession and stated:

  In order for a confession to be admitted into evidence, it must have been given freely and voluntarily, and without the influence of promises or threats. Frost v. State, 483 So.2d 1345 (Miss. 1986). A confession which in truth is not voluntary, which comes about as a result of threat, physical mistreatment, or the promise of reward, cannot be used either for the State's case in chief or for impeachment purposes. Powell v. State, 483 So.2d 363 (Miss. 1986).

  "[W]here a criminal defendant challenges the voluntariness of a confession, he has a due process right to a reliable determination that the confession was in fact voluntarily given." Gavin v. State, 473 So.2d 952, 954 (Miss. 1985). See also, Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L.Ed.2d 908 (1964).

  In a hearing to determine the admissibility of a confession, the trial judge is the trier of fact and is charged with determining whether there has been, under the totality of the circumstances, a knowing and voluntary waiver of the accused's privilege against self-incrimination. Gavin v. State, 473 So.2d at 954. See also, Jones v. State, 461 So.2d 686, 696 (Miss. 1984); Depreo v. State, 407 So.2d 102, 106 (Miss. 1981). "[T]he State has the burden of proving all facts prerequisite to admissibility beyond a reasonable doubt." Gavin, 473 So.2d at 954.

  "Age and intelligence level factors to be considered in determining whether a waiver and a confession are free and voluntary, but are not controlling." Coleman v. State, 378 So.2d 640, 644 (Miss. 1979). See also, Saucier v. State, 328 So.2d 355 (Miss. 1976); Stewart v. State, 273 So.2d 167 (Miss. 1973).

  Once the trial judge determines that a confession is admissible, his finding becomes a finding of fact which will not be reversed on appeal unless it is manifestly in error or contrary to the overwhelming weight of the evidence. Frost v. State, 483 So.2d 1345 (Miss. 1986); Gavin v. State, 473 So.2d 952 (Miss. 1985).

  Cabello v. State, 490 So.2d at 856. See also, White v. State, 495 So.2d 1346, 1347 (Miss. 1986).

  Neither the trial judge nor the jury believed Pinkney's allegations of threats, trickery, violence, and false promises. There is substantial and credible evidence to support the trial judge's ruling on this issue. Since that ruling was not erroneous, it will not be reversed. See Lockett v. State (I), 517 So.2d 1317 (Miss. 1987).

  III.

  THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT'S MOTION FOR FUNDS TO OBTAIN EXPERT ASSISTANCE IN THIS CASE, THUS VIOLATING APPELLANT'S RIGHTS UNDER THE FOURTEENTH AND EIGHTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 14 AND 28 OF THE

  MISSISSIPPI CONSTITUTION.

  Pinkney specifically requested of the trial court an independent psychiatric evaluation, a private investigator, and a forensic expert.

  Relying on Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L.Ed.2d 53 (1985), Pinkney argues that he should have provided with the funds to obtain independent evaluation by psychiatrists. No ruling was made on this motion and under such circumstances, the assignment of error would normally be procedurally barred. Billiot v. State, 454 So.2d 445 (Miss. 1984).

  Addressing the merits of this assignment of error requires an analysis of Ake wherein the Supreme Court of the United States held in part that:

  We therefore hold that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. This is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own. Our concern is that the indigent defendant have access to a competent psychiatrist for the purpose we have discussed, and as in the case of the provision of counsel we leave to the States the decision on how to implement this right.

  470 U.S. at 83, 84 L.Ed.2d at 66.

  Pinkney was examined by forensic psychiatrists and a forensic psychologist. They concluded that Pinkney was "probably responsible enough and competent enough to stand trial." Pinkney was sent to the Mississippi State Hospital at Whitfield for observation and examination on March 4, 1985, and was interviewed, tested and seen by a psychiatrist. A report was issued on March 26, 1985, which concluded that Pinkney was competent to stand trial. No mental disorder was detected and the report stated that Pinkney would be able to assist his attorney. Unlike Ake, Pinkney's sanity was not a "significant factor" at trial. In spite of this, Pinkney received all of the protection

  that Ake mandates. Pinkney was tested and examined by at least two psychiatrists as well as other specialists. There is no merit to this assignment of error.

  Pinkney also argues that the denial of his motion for funds to hire a private investigator constitutes error. The argument seems to be that a private investigator would have been helpful. During the motion hearing defense counsel's testimony to that effect was unconvincing. Addressing a similar issue in Billiot v. State, 454 So.2d 445 (Miss. 1984), this Court stated:

  In Bright v. State, 293 So.2d 818 (Miss. 1974), this Court held that the state was not required to furnish an indigent defendant expenses for an independent chemist and noted that the right to expert witnesses for defendant at the expense of the state has generally been denied. Id. at 822. In Davis v. State, 374 So.2d 1293 (Miss. 1979), we concluded that the denial of an indigent defendant's request for expenses to hire a handwriting expert violated neither the United States nor the Mississippi Constitution, and we further said that the determination of whether to provide an expert shall be made on a case by case basis:

  We do not enter this field of inquiry to make the determination that the state owes to the indigent the duty of providing an expert as a part of due process to which the defendant is entitled, for, as stated in the Watson case, supra, the decision should be on a case by case basis, and, unlike the Bradford case, supra, the guilt or innocence of the defendant was scarcely, if at all, dependent on the state's expert witness, and also for reasons next to be noticed.

  Id. at 1297. And finally, in Bullock v. State, 391 So.2d 601 (Miss. 1980), this Court denied funds to employ a criminal investigator where,

  The appellant did not outline any specific costs for such an investigator, and did not indicate to the court in any specific terms as to the purposes and value of such an

  individual to the defense.

  Id. at 607. The purpose of the request for expenses to hire an investigator was to show the disposition of the community which ultimately was shown by other means. However, at no time did appellant outline any specific costs for the investigation. When we apply the case-by-case approach employed by Davis v. State, supra, to the facts on this record, we find that the denial by the trial court of reasonable expenses to conduct the investigation violated neither Billiot's constitutional nor statutory rights.

  Billiot, 454 So.2d at 453-454.

  See also, Johnson v. State, 476 So.2d 1195 (Miss. 1985);

  Cabello v. State, 471 So.2d 332 (Miss. 1985).

  Pinkney also mentions his motion to test evidence. A brown bag containing clothes and a towel was turned over to the Mississippi Crime Laboratory but was not tested. The motion alleged that the autopsy showed that the victim had engaged in sexual intercourse shortly before her death and an exculpatory matter might be gained from such testing. The trial judge granted this motion and entered an order directing the Mississippi Crime Laboratory to conduct hair, fiber, blood, fluid, and other tests on the items. This is the last mention of this evidence on the record.

  The trial judge entered a discovery order and offered to review the prosecution's file in camera. The district attorney agreed to provide his entire file to defense counsel. It is puzzling that the alleged sexual intercourse was never mentioned in testimony, but there is no indication that any Rule 4.06 or ...


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