BEFORE ROY NOBLE LEE, C.J., ROBERTSON and BLASS, JJ.
BLASS, JUSTICE, FOR THE COURT
About one o'clock, on the morning of September 5, 1985, Cathy Thaggard was asleep in her bedroom in her parents house. Eighteen shots from a high powered rifle were fired into her room, wounding her seven times and so severely that the amputation of her left hand and forearm and left leg, above the knee, was required.
The appellant, Philip Shook, Jr., who is deaf, was indicted in the Circuit Court of Tate County, on three counts of aggravated assault (97-3-7, M.C.A. 1972), and one count of firing into a dwelling (97-37-29, M.C.A. 1972). Pretrial motions were filed for change of venue from Tate County to Panola County, for an oral interpreter, for a delay of the trial until Shook had been taught sign language so that he could more effectively communicate with his counsel and understand the nature of the proceedings, and to suppress certain evidence seized in the course of a search made pursuant to a consent form signed by the appellant. The motion for a change of venue was not opposed by the State and was granted. An oral interpreter was appointed for the defendant. The defendant lip reads but does not know sign language. The court overruled the defendant's motion to delay trial in order to learn sign language. The court also ordered a mental and physical examination of the defendant.
Shook was convicted in the Circuit Court of the Second Judicial District of Panola County, on one count of aggravated
assault and of shooting into an occupied dwelling. He was sentenced to serve consecutive terms of twenty and ten years, respectively, in the custody of the Mississippi Department of Corrections, and to pay restitution.
Appellant's motion for a new trial on the issues raised in this appeal was overruled and he has appealed.
Cathy Thaggard met Philip Shook in the fall of 1984, when both were attending Northwest Mississippi Junior College. By Christmas they were engaged. In January of 1985, Philip transferred to Ole Miss. He and Cathy continued to see each other on the weekend, but she decided to break off the relationship. On June 20, she told Philip their engagement was off, and she returned the ring he had given her. He did not accept her rejection well.
On September 4, 1985, the Thaggard family retired for the evening after an ordinary day of work and school. At approximately 1:00 a.m., the family awoke to the sound of gun fire coming through Cathy's bedroom window. Cathy screamed for her daddy. Mrs. Thaggard testified her first thought was someone had lit a string of firecrackers. The Thaggards found Cathy partially in the hallway covered with blood, but conscious. Part of Cathy's left leg and arm had been virtually shot off.
Mrs. Thaggard tried to call for help but found that the telephone was dead. The wires had been cut. They managed to place Cathy on a board and put her in their van. The tires to Cathy's car had been shot and were flat. The Thaggards drove Cathy fourteen miles to the hospital in Senatobia. The Sheriff of Tate County was called from the hospital. He immediately began in investigation and Cathy was taken to the Baptist Hospital in Memphis.
Cathy had been shot in her left arm, her left leg, her right elbow, her right shoulder and her right upper inner thigh in her groin area. Her left hand and forearm could not be saved and were amputated. Her left leg was amputated above the knee. Most of Cathy's right elbow was blown away.
Investigators found eighteen .223 caliber cartridge casings around Cathy's bedroom window. They found that the telephone wires to the house had been cut. The officers also found tennis shoe prints around the house and leading to a pasture not far away. In the pasture the officers found tire tracks. The Thaggards suspected Shook, based upon several prior incidents with Shook at the Thaggard home, and told the Tate County police
officers that the appellant was probably responsible.
On the morning of September 6, 1985, Sheriff East, of Lafayette County, brought Philip to the office at Lafayette County jail, where they met with the Tate County and Highway Patrol officers. The officers informed Philip that Cathy Thaggard had been shot and that she was alive. Orally and in writing the officers asked Philip for permission to search his pick-up truck and dormitory room at Ole Miss. Philip agreed orally and then signed a consent to search form.
In the open bed of Philip's truck, parked in the public dormitory parking lot, officers found two persimmon branches. There were numerous persimmon trees in the pasture next to the Thaggard's residence. A faint shoe print was found on the bed of the appellant's truck. The pattern of the print was similar to that found near the Thaggard residence leading to the pasture where the officers earlier noted tire tracks in the mud.
In Philip's dormitory room the officers found a pair of wet, muddy blue jeans. Later that day, Philip and his father, with his son a co-owner of the truck, signed a second consent to search form permitting the officers to remove two tires from the truck and soil samples from the wheel covers. Expert testimony revealed the mud and soil samples from the blue jeans and truck were similar in texture and type to that found near the crime scene where the tracks had been found. Additionally, the tire tracks from Philip's truck were found to have a pattern similar to the tracks found in the pasture near the Thaggard's residence.
On September 9, 1985, four days after Cathy's shooting, Philip returned a" Mini 14 "semi-automatic rifle to the Grenada Gunstore where he had purchased it several weeks earlier. Expert examination of the rifle and the spent cartridge shells found at the crime scene revealed that the cartridges had been fired in that gun.
It is clear from the evidence that Philip Shook, Jr. bought the gun which was used to virtually shoot off an arm and a leg of Cathy Thaggard; that he took it back after the shooting, that twenty-five shots were fired from it at the scene; that Cathy was hit seven times in the burst of gunfire into her home. Philip had threatened her after she broke off the engagement with him and returned her ring to him some months before the shooting. His truck was not in its usual parking place in the dormitory parking lot for a number of hours on the night of the shooting. When it was inspected after it came in, later, it was found to have twigs and fruit from persimmon trees in it, the same kind of trees found growing near the Thaggard home, where tire tracks were found which were made by tires with a tread
very similar, at the very least, to the tires found on Philip's truck.
The appeal in this case seems to have nothing to do with the question of who shot Cathy. The jury answered that question, finding on ample evidence that it was Philip who did that. The questions raised all have to do with the trial, and some of the prior procedures, growing out of the fact that Philip is classified by audiologists as profoundly deaf. The question presented is not whether he is guilty, but how he should have been tried. This kind of question has long plagued American courts and has often made our judicial system appear to be simply incapable of dealing effectively with criminal cases.
We hold here that the jury was amply justified in finding the defendant guilty, and we affirm the finding as to the charge of aggravated assault and the charge of firing into a dwelling house. No matter how evident the guilt of the defendant may be in any case, however, such guilt must be established by acceptable means in a fair trial. We doubt that there has ever been a perfect trial but it is our duty to require, in every case, one which affords the defendant due process of law.
The first assignment argues that the court should have delayed the trial until the defendant could be taught" to sign. "We find this assignment to be without merit. The court had no way of ascertaining whether the defendant would learn that language nor the degree to which it could improve his real ability to understand and communicate. Philip could read, and the record shows that the interpreter kept him well informed as the trial progressed. We can appreciate that it was not easy for counsel to discuss the defense with him, but, clearly it could be done. A trial should not be postponed indefinitely if any reasonable alternative exists. Additional time before the trial and breaks during the trial should be allowed, if good cause is shown, to permit counsel and the defendant to effectively communicate. No complaint on that score was made here. This record shows, beyond doubt, that the trial judge reasonably concluded that Philip could communicate with those around him sufficiently to permit him to function in a reasonably normal fashion. He was not illiterate nor blind. He is a high school graduate and was a college student. During the trial he was kept advised of what was being argued and what the testimony was. The authorities cited by counsel either arise from different factual backgrounds or support the conclusion we have set out above. People ex rel. Meyers v. Briggs, 46 Ill. 2d 270, 263 N.Ed.2d at 113 (1970).
The second assignment of error states that the court erred when it forced the defendant to trial when he was physically incompetent and" may have been mentally incompetent "to stand trial. This assignment of error is without merit because it is totally refuted by the facts. In a case of this character, one where the defendant is suffering from the serious handicap of deafness, the court should exercise great care to see to it that the defendant is accorded his constitutional rights. The trial judge, on the scene and observing the defendant and the witnesses, must be allowed considerable discretion, and where it is apparent that the judge has demonstrated an awareness of the issues involved and concern for the protection of the rights of the defendant, as here, his judgment must be accorded great weight and respect by this Court. Greenlee v. State, 437 So. 2d 1010 (Miss. 1983); Glenn v. State, 439 So. 2d 678, 680 (Miss. 1983); Gammage v. State, 510 So. 2d 802, 804 (Miss. 1987). At the close of the State's case in chief, when counsel for Philip renewed a pretrial motion based upon Philip's alleged incapacity, the trial judge said:
I did appoint an interpreter, a qualified oral interpreter, Ms. Marie Griffin, from the University of Tennessee at Knoxville. She is a very eminently qualified oral interpreter accepted by both sides as to her qualifications. She's been present since her appointment at all pretrial proceedings except when defense counsel specifically waived her presence. She has been present since the very beginning of this trial on Monday of this week. She's been at counsel table. She has through various means of communication been communicating the proceedings to the defendant including writing notes which she is doing at this very moment.
The defendant through previous testimony and through previous evidence offered at pretrial hearings is a well educated young man, having received a diploma from Strider Academy in Tallahatchie County, having gone to Northwest Mississippi Junior College, and having attended the University of Mississippi.
Lay witnesses in pretrial hearings and lay witnesses during this trial have stated clearly and unequivocally that they could communicate with this defendant; that they could communicate to the defendant what they were trying to communicate and that he in turn could communicate to them what he was trying to communicate.
The witnesses have testified at pretrial hearings, and they've testified at the trial of this case this week that in essence he could understand when he wanted to and he could make it difficult when he did not want to understand, words to that effect. That came out through the testimony of various lay witnesses, including, as I recall, Joy Wolfe; the victim herself, Cathy Thaggard; the highway patrolman, Roy, I believe, and perhaps other witnesses.
I'm satisfied, again, that this court is making every effort and is, indeed affording to this defendant every constitutional right available to him; that he is receiving a constitutionally fair trial.
The court has permitted throughout the course of these proceedings, including pretrial proceedings, to allow members of the defendant's family to be with counsel and with the defendant at counsel table to assist in communication. The court has since Monday of this week when this trial started allowed Mrs. Betty Shook, the sister of the defendant, Mr. Philip Shook, Sr., the father of the defendant, to be at counsel table with the defendant. They were not removed from the courtroom under the rule even though they might be witnesses in this case. They were allowed to remain in the courtroom to be at counsel table, meaning that at counsel table in addition to Mr. Tollison there were present the defendant; Ms. Marie Griffin, the oral interpreter; Ms. Betty Shook, the defendant's sister; and Mr. Philip Shook, Sr., the defendant's father.
This court is doing everything that it can conceivably think of to make sure that this defendant is receiving a fair trial and is understanding the proceedings going on. I'm satisfied all of this is being done. I'm satisfied he can certainly understand and appreciate the nature of the proceedings.
As I stated earlier in the week, I'm satisfied that if he will cooperate with his family and will cooperate with his oral interpreter and will cooperate with his attorney that the communication channels are open and that this defendant is being afforded all his constitutional rights.
We have considered with great care the arguments presented by counsel for the defendant, and the authorities set out in the briefs. We do not feel disposed to burden the literature with a line by line ...