BEFORE HAWKINS, P.J., PRATHER AND BLASS, JJ.
PRATHER, JUSTICE, FOR THE COURT:
Billy Dean Garrett was indicted for murder, but convicted of manslaughter in the Circuit Court of Lee County, Mississippi. He was sentenced to a term of twenty years in the custody of the Mississippi Department of Corrections. From that conviction and sentence Garrett appeals, assigning as error the following:
(1) The lower court erred in failing to grant appellant's motion for a new trial, upon discovery that the jury had
inadvertently received information concerning appellant's having taken a polygraph examination.
(2) The verdict of the jury was contrary to the overwhelming weight of the evidence.
The defendant, Billy Dean Garrett, (Garrett) age thirty years at the time of trial, was a maintenance man and carpenter, with no prior criminal record. He had completed studies for the General Equivalency Degree and at the times in question here was living with Glenda Thomas, age thirty-three, and three of her four children, i.e., Charmin Thomas, (ten years old at the time of her mother's death) and Calvin Thomas, (twelve years old at his mother's death). Garrett was employed as a" bouncer "at the Showboat Lounge and Glenda, on the night in question, was working as a waitress. The account of the events that transpired after their return home in the early morning hours of August 11, 1983, was contradictory.
Glenda Thomas was found by her twelve year old son Calvin in the bedroom of a pistol wound to her chest; Calvin, went next door at approximately 8:20 a.m. and reported to a neighbor his mother shot herself. When the neighbor, James Laney, came into Thomas' house, he saw Billy Dean Garrett, the decedent's housemate, sitting on a couch in the den. Laney found Thomas in the bedroom with a .25 caliber handgun lying on the floor between her knees and feet.
Later, before the police arrived, Laney noticed that the pistol was missing from the bedroom. He asked Calvin what had become of it. Calvin told him that he had removed the gun from the bedroom and put it in Garrett's truck. Calvin later retrieved the gun and gave it to the police.
Bobby Stubbs, a patrolman with the Tupelo Police Department, received a call to investigate this shooting and was the first police officer to arrive. He obtained a .25 caliber pistol from Calvin, unloaded it and gave it to Chief of Police Crider.
Stubbs talked to Garrett, who told him that (1) he and Thomas got into an argument at approximately 1:00 a.m.; (2) he left the house and spent the night in the truck outside; (3) he returned to the house between 6:30 and 7:00 a.m.; and, (4) he did not go into the bedroom between the time he left the house for the truck and the time he returned to the house.
Detective Harold Chaffin of the Tupelo Police Department also received a call to investigate Thomas' death. He found the body of Thomas lying on the floor at the end of the bed. After viewing the body, Chaffin went into the living room and spoke to Garrett, whom he had known for over twenty years.
Garrett told Chaffin that he had been living at Thomas' residence and that he and Thomas worked for the same business, the Showboat Lounge. On the night before, the couple had gotten off work at approximately 12:00 a.m. and had come home. They had been in an on-going argument about an affair Garrett had had at one time with another woman. The argument continued when they arrived at Thomas' house. The result of the argument was that Garrett spent the night in his truck. Thomas went to her bedroom, and Garrett told Chaffin that was the last he saw of her that night. At about 7:00 a.m. Garrett returned to the house, ate breakfast and then watched television with Thomas' youngest daughter Charmin, age ten, until about 11:00 a.m. At that time, Calvin went to wake his mother and found her dead in the bedroom. Garrett was not in custody or under arrest during this conversation with Chaffin.
The following day, August 12, 1983, the officers received a call from Dr. Walker, a pathologist at the medical center. He requested someone from the police department attend the autopsy on Thomas. During the autopsy, Dr. Walker showed the officers bruises on the arms, elbows and forearms on Thomas. He further showed them a number of contusions appearing on the inside of the scalp. Chief Crider then ordered an investigation into Thomas' death. The police returned to Thomas' house and found a shell casing in the far corner of the bedroom, not far from where Thomas' body had been located. No testing for gun powder was made of Thomas' nor the defendant's hands.
Investigator Johnny Ash and Lieutenant Mickey Loden of the Tupelo Police Department interviewed Garrett from about 2:00 p.m. until about 6:30 p.m. on August 12, 1983, at the Police Department. Garrett was informed of his Miranda rights, which he waived. During the course of the interview, Garrett consented to a polygraph examination which was administered by Detective Crocker.
Garrett gave a statement which was taken down and then typed for his signature. After reading the statement Garrett signed it. The gist of the statement was that Garrett had entered Thomas' bedroom and had seen her with a gun, that he struggled to wrestle the gun away from her, and that it accidentally fired.
The signed statement was one of three versions of the incident related by Garrett. In the first version, Garrett
stated that during the fight he went out to the yard of the house. He saw Thomas come out to the truck, but did not see Thomas shot because he spent the night in the truck. The other version was the same except that he spent the night under a pine tree.
Garrett contends that he at first insisted on telling the true facts during the course of the interview, but that the police continued to insist that his story was not acceptable. He stated that he finally gave a statement along the lines suggested by the police after he realized that the police were not going to leave him alone until he changed his story. Garrett's theory of the events of this shooting was that Thomas had been depressed and suicidal and had shot herself.
Dr. Walker, the pathologist who performed the autopsy on Thomas, testified as to the condition of Thomas' body and cause of death. During the course of his examination he found a tampon in Thomas' vagina and stated that statistically suicide among women is more prevalent during menstruation and that nothing in his examination ruled out the possibility that the victim committed suicide.
John Allen, a forensic scientist with a specialty in firearm examination with the Mississippi Crime Lab, identified the cartridge and projectile as having been fired from the handgun found in Thomas' house.
He also testified to the residue found on Thomas' blouse. From test firing the weapon, he determined the pattern of residue found on the blouse would be produced when the weapon was fired at, or near, contact range. In addition, the loud report a pistol makes when fired could be muffled if fired at contact range. Dr. Walker, the pathologist, testified that the bullet entry was on the victim's left anterior chest over the fourth rib. The path of the bullet took a downward course at the level of the seventh rib and was removed from the soft tissue in the left chest wall at what is called the posterior axillary line. Glenda Thomas was righthanded.
Charmin Michelle Thomas, the decedent's ten year old daughter, testified that in the early morning of August 11, she awakened to the sound of an argument between Garrett and her mother and saw Garrett push her mother down and hit her. Charmin went to awaken her brothers, Calvin, age 12, and Danny, age 8, and when she returned, she saw her mother with a knife and Garrett putting brass knuckles on his hands.
Charmin could not tell whether Garrett hit her mother with the brass knuckles or just shoved her in the head with them.
When Garrett saw Charmin, he put the knuckles down and walked out of the house to the truck. Thomas followed him. Garrett came back into the house with Thomas and the fighting began again. Garrett left to spend the night in the truck. Thomas went out to the truck and asked him if he wanted to sleep inside. Thomas came back into the house, sat on her bed and wept. She told Charmin to go to bed.
Charmin said Garrett came into the house at about 5:00 a.m. and shut her door. He then used the bathroom and went back to the truck. Charmin did not see Thomas with a gun; she did not see Garrett go into Thomas' room; and she did not hear a gunshot during the night.
James Earl Thomas, the decedent's seventeen year old son who lived with his father, stated that around June 15, 1983, Garrett and Thomas had a late night argument about a woman. James heard the sound of a slap, and then another. He heard Garrett tell Thomas that if she hit him again he would shoot her where she stood.
Denise Garrett, the accused's sister-in-law, testified that Thomas confided that her menstrual cycle was in disorder and that she was worried she was going to have to have a hysterectomy performed. This problem engendered talk of suicide by Thomas. In February, 1983, Thomas supposedly told Denise that she was attempting to commit suicide but that the attempt failed due to Garrett's (the accused) intervention. Thomas told Denise that she was afraid Garrett would look to other women as a result of her incapacity.
On cross-examination, Denise admitted she saw bruises on Thomas when she visited. In addition, Thomas told Denise on the Sunday prior to her death ...