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LORETTA K. PIERRE v. STATE OF MISSISSIPPI

JULY 29, 1992

LORETTA K. PIERRE
v.
STATE OF MISSISSIPPI



Earl B. Stegall and Ellen Campbell Bonner, for appellant.

Michael C. Moore and Mary Margaret Bowers, for appellee.

BEFORE HAWKINS, P.J., PRATHER, AND McRAE, JJ.

PRATHER, JUSTICE, FOR THE COURT:

 I. INTRODUCTION

 This murder case arose on the appeal of Loretta Kaye Pierre from a February 3, 1989 conviction and life sentence imposed by the Circuit Court of Harrison County. The appellant timely filed a notice of appeal and raises the following issues:

 A. Whether the prosecution overzealously prosecuted Pierre.

 B. Whether the trial court erred when it discharged a juror for cause over the defendant's objection.

 C. Whether the trial court erred when it denied the appellant's motion for mistrial when the state introduced testimony that the appellant signed an acknowledgement of her constitutional rights.

 D. Whether the trial court erred when it admitted confessions.

 1. Whether the trial court erred when it allowed into evidence the recorded confession made at the police department.

 2. Whether the trial court erred when it allowed into evidence without a hearing the confession Pierre made while on the telephone with her brother and which a police officer

 overheard.

 3. Whether the trial court erred when it failed to grant the appellant an evidentiary hearing on a confession Pierre made to Loren Dingli, a cab driver.

 E. Whether the trial court erred when it admitted a prior recorded statement of Sherman Carter.

 F. Whether the trial court erred when it refused to allow evidence of the victim's drug usage.

 G. Whether the trial court erred when it failed to grant a directed verdict or motion for new trial.

 This Court finds no reversible error. Therefore, the conviction is affirmed.

 Facts

 In August, 1985, the defendant, Loretta Pierre, and Sherman Carter became estranged after a relationship of several years. Pierre moved from Carter's house, and Kathy Schweinsberg, the victim, eventually moved into Carter's home.

 On the evening of December 20, 1985, Pierre made two visits to Carter's house. During the first visit, Schweinsberg pinned Pierre to the floor during a fight. Very early the next morning, cab driver Peggy Zielinski, who knew Pierre, drove Pierre to Carter's cottage. Carter and Schweinsberg were present, and Pierre talked with them.

 There are two versions of the events of Schweinsberg's death. According to Pierre's confessions and Carter's statement, around 6:30 a.m., Pierre picked up a shotgun she knew Carter kept, chambered a shell, and shot Schweinsberg in the back, the pellets penetrating Schweinsberg's vital organs. Schweinberg fell onto Carter, who lay on the couch. He awoke and saw Pierre standing near the bedroom doorway, pointing the shotgun toward the couch. Carter rose, laid Schweinberg on the couch, and took the gun from Pierre.

 Since Carter had no phone, Pierre went next door to ask a neighbor to summon help for someone who had been shot. Officer Gerald Nelson arrived on the scene. Carter, agitated and red-eyed, answered the door. Carter had no blood on his clothes.

 Schweinsberg lay face down on the couch, head pointing north, a bloodied white towel on her back. Pierre sat smoking a cigarette nearby on an ottoman. Carter showed Nelson the gun.

 Rescue workers who entered behind Nelson and Carter attended Schweinsberg. The rescue workers found little external bleeding but no palpable blood pressure, indicating internal bleeding. The workers discovered a one-and-a-half inch hole in her lower back. The medical workers placed the victim on a backboard on the floor. Medical examiner Dr. Bennett testified that, had Schweinsberg been lying on her back, she would had bled externally a great deal. In addition to internal damage, an autopsy revealed bruises several hours to three days old on the victim's face and mouth.

 Pierre remained calm, on the ottoman. Carter continually inquired after Schweinsberg, and had to be urged to stay out of the way by Officer Nelson.

 At one point, Pierre exclaimed within the paramedics' hearing, "I shot her and I will do it again." Pierre corroborated the paramedic's testimony and admitted having said this. On cross-examination, Pierre denied having said, as she testified in an earlier mistrial, "I shot her and if she was still alive, I'd do it again." Officer Nelson arrested Pierre for aggravated assault and "Mirandized" her. *fn1

 According to Pierre's current version of events, when she returned to the cottage, Carter asked to speak to her alone. She claimed she found Carter and Schweinsberg tense and arguing. Pierre went to the bathroom, heard a shotgun blast, came out, and saw Carter holding the shotgun. Pierre emotionally described how Schweinsberg lay on the hardwood floor, on her back, head pointing south, in front of the couch. Pierre admitted that, in prior testimony, she had located the victim on the rug. When she returned from summoning help, Pierre said she saw the victim on the sofa, Carter wiping the gun with a towel and then wiping up blood on the floor. She stated that Carter placed the towel on the victim's back and then begged Pierre to take the blame because she was pregnant and would not get in trouble.

 As Pierre sat in a holding cell at the police station, an Officer Gillen asked Pierre if he could help her. She declined. After a second inquiry, Pierre responded, "No, the police officer brought me in and told me to wait here." Gillen asked, "Well, what did you do." Pierre replied, "I shot a bitch's ass off." Gillen sought out Officer' Byrd, who had transported Pierre, to ask if she had been "Mirandized." Byrd responded that she had, and Gillen had no further contact with her.

 Detective Disalvo and Officer Boyd escorted Pierre and Carter to separate interview rooms in the detective division. As they encountered Officer Nelson carrying the shotgun, Pierre

 stated, "There is my shotgun." A fingerprint check of the gun, however, revealed only one latent print, which did not match Pierre's fingerprints.

 Disalvo and Boyd interviewed Pierre. Disalvo read Pierre the Advice of Rights and Waiver of Rights form, which she signed. The officers engaged in no threatening or coercive behavior. Pierre cooperated and did not request an attorney. The officers conducted an oral interview to familiarize Pierre with the procedure, and then conducted a taped interview. Pierre remained calm and even jovial. The officers re-read Pierre her rights during the taped interview. Pierre described how she shot Schweinsberg in the back as the victim bent over Carter, asleep on the sofa.

 After the interview, the officers and Pierre went into the detective division office, where Pierre sat at a desk and made a call to her brother, John Pierre. Disalvo sat at his desk, five feet away, with Boyd standing nearby. Boyd heard Pierre say on the phone, "I shot Kathy." According to Pierre and her brother, to whom she was speaking, she spoke words to the effect that she had been arrested or jailed for having shot Kathy. Pierre admitted on cross-examination, however, that in prior sworn testimony, she testified that she had told her brother that she had shot Kathy. During Pierre's phone conversation, Disalvo received a call informing him the victim had died. Disalvo told Pierre that she was under arrest for murder.

 The next night, the defendant's brother, John, went to a lounge with Carter and some others. Carter seemed very depressed, and asked John to be sure Carter woke up the next morning. The next morning, John Pierre found Carter dead of a self-inflicted gunshot wound. Carter's bloodstream bore evidence of numerous drugs. Carter left a note which stated: "In Loving Memory of Kathy Schweinsberg. A person I will always love and cherish. May we meet each other in another time, another place. Rest in Peace. Love Always, Sherman." Beneath his signature, he recorded Schweinsberg's birth and death dates.

 In early January of 1986, Pierre was released on bond. At that point she knew Sherman Carter had died. Pierre spoke with her good friend and Carter's first cousin, Theresa Carter. Pierre told Theresa Carter how Pierre had shot Schweinsberg as the victim leaned over Carter on the couch.

 That month, Pierre and Theresa attended a gathering at Gregory Phillips' house. Pierre told Phillips that if he ever became involved in a shooting to call an ambulance, so he "could get out on bail that way." Phillips saw Pierre biting her ...


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