DATE OF JUDGMENT: 11/24/92 TRIAL JUDGE: HON. KATHY KING JACKSON COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT
Before Prather, C.j., Pittman, P.j., And Smith, J.
The opinion of the court was delivered by: Pittman, Presiding Justice, For The Court:
DISTRICT ATTORNEY: DALE HARKEY
NATURE OF THE CASE: CRIMINAL - FELONY
MOTION FOR REHEARING FILED:
¶1. Justin Shaffer was indicted in July of 1991 for the March 14, 1991, capital murder (killing in the course of sexual battery) of Rachel Marshall. On November 24, 1992, a Jackson County jury found him not guilty of capital murder, but found him guilty of simple murder and sexual battery. The trial court sentenced him to life on the murder charge and thirty years on the sexual battery conviction to run consecutively. It is from this conviction and sentence that Mr. Shaffer files this appeal asserting the following as error:
I. WHETHER A REASONABLE JURY COULD HAVE CONCLUDED, BEYOND A REASONABLE DOUBT, THAT A CRIMINAL AGENCY WAS INVOLVED IN THE DEATH IN THIS CASE, AND THAT THE DEFENDANT WAS GUILTY OF CAUSING THE DEATH.
II. WHETHER A REASONABLE JURY COULD HAVE CONCLUDED, BEYOND A REASONABLE DOUBT, THAT A SEXUAL BATTERY OCCURRED, AND THAT THE DEFENDANT WAS INVOLVED IN IT.
III. WHETHER IT WAS ERROR FOR THE STATE TO AFFIRMATIVELY MISLEAD THE DEFENSE ABOUT THE RESULTS OF EXTREMELY IMPORTANT TESTING OF BLOOD AND BILE FROM THE DECEDENT'S BODY WHEN IN FACT NO TESTING HAD BEEN DONE AT ALL.
IV. WHETHER IT WAS ERROR FOR THE TRIAL COURT TO PROHIBIT THE DEFENSE FROM INTRODUCING IMPORTANT EVIDENCE ABOUT THE DECEDENT'S CONSUMPTION OF ALCOHOL AND DRUGS AND TO PREVENT THE DEFENSE FROM CROSS-EXAMINING THE STATE'S EXPERT ABOUT INFORMATION HE HAD RECEIVED IN THAT CONNECTION AND UPON WHICH HE HAD RELIED.
V. WHETHER IT WAS ERROR FOR THE TRIAL COURT TO INSTRUCT THE JURY ON DEPRAVED HEART MURDER WITHOUT REQUIRING THE JURY TO FIND THE STATUTORY ELEMENT OF A DEPRAVED HEART, ACTING REGARDLESS OF HUMAN LIFE.
VI. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTION TO PRESENT EVIDENCE OF PCR DNA TESTING WHEN IT HAS NOT REACHED GENERAL ACCEPTANCE IN THE SCIENTIFIC COMMUNITY.
VII. WHETHER IT WAS ERROR TO PERMIT THE PROSECUTION TO INTRODUCE TESTIMONY OF A DNA MATCH WHEN THERE WAS NO EVIDENCE TO EXPLAIN THE SIGNIFICANCE OF THE MATCH.
VIII.WHETHER IT WAS ERROR TO SUBMIT TO THE JURY THE COMBINATION CRIME OF "MURDER AND SEXUAL BATTERY" AS A SINGLE VERDICT OPTION, WITHOUT SUBMITTING THEM AS SEPARATE VERDICT OPTIONS, WHEN MISSISSIPPI LAW DOES NOT PROVIDE FOR SUCH A COMBINATION CRIME.
¶2. The controlling issues in this case are (1) the failure to instruct the jury on the elements of the underlying crime of murder and (2)the failure to allow the defense to introduce evidence regarding decedent's consumption of alcohol and drugs and preventing the defense from cross-examining the state's expert about information he had received in that connection and upon which he had relied; these issues require reversal. However, the other issues raised by Shaffer are not without merit. The Court is troubled by issue III where the state misled the defense about the results of testing of blood and bile taken from decedent's body when in fact no testing had been done; and issue VIII where the trial court submitted to the jury the combination crime of "murder and sexual battery" as a single verdict option, without submitting them as separate verdict options. Although singly the foregoing issues considered by themselves might not be considered reversible error, taken together and in consideration with the entire record, this Court cannot find them to constitute harmless error. Further, this Court's findings on these issues should be followed on remand.
¶3. On the evening of March 13, 1991, Shaffer met an acquaintance, Thomas Hackman at O'Charley's, a Biloxi restaurant and bar. As Hackman testified at trial, he told Shaffer about a bar called the Julep Room in Ocean Springs, which was having Ladies' Night that night. The two then drove to the Julep Room in Shaffer's car, a white Buick Century. Shortly after they arrived at approximately ten o'clock that evening, Shaffer and Hackman were approached by Marshall who came up and introduced herself. Not long after she introduced herself to the men, Marshall told them she wanted to leave and go to her home. Marshall then visited people between tables for a little while and again came back to Shaffer and Hackman and stated that she wanted to leave and go home. Hackman testified that Marshall was "pretty intoxicated" and he offered to drive her car home. Shaffer followed in his car to Marshall's home in Ocean Springs.
¶4. Hackman testified that upon arriving at Marshall's home, he, Marshall, and Shaffer entered through the back door and went into the living room. As they were sitting down, Marshall asked if they "wanted to go have some breakfast." She also stated that "she wanted to get comfortable," took off her panty hose, and "said she was going to freshen up." At some point, Shaffer and Marshall "went in the kitchen" and "fixed a couple of drinks." Marshall put some music on the stereo, and both Shaffer and Hackman "slow danced with her a little bit." Hackman further testified that Marshall and Shaffer eventually danced into the stereo room adjoining the living room where they fell to the floor, kissed, and engaged in romantic activity for ten or fifteen minutes. Specifically, Hackman stated that Shaffer "was laying across Rachel. She was on her back on the floor. was laying across her chest and they were kissing." On cross-examination, Hackman maintained that each time he looked in on them, "they were in the same position which put him across Mrs. Rachel, not on top of her." During the time that Shaffer and Marshall were in the stereo room, Hackman looked in on them "maybe five or six times or more." Thus, they were never out of his sight for more than two or three minutes. Hackman never saw either of them on top of the other; nor did he see either of them in a further state of an undress; nor did he see Shaffer's pants pulled down. Shaffer testified that he and Marshall had intercourse during this period of time and then came back into the living room.
¶5. Upon returning to the living room, Shaffer told Hackman that he "wanted to do the girl." Hackman replied that he thought "it was a good time to leave." Shaffer then asked whether Hackman would take his (Shaffer's) car back to Biloxi. Hackman said no and sat down on the couch. Marshall came in and sat down on the love seat and looked as though she were about to pass out. Shaffer picked her up and carried her into a bedroom and laid her down in the bed. Hackman testified that Shaffer had no sexual contact with Marshall at this time. Again, Hackman said that he and Shaffer should leave. As they prepared to do so, Hackman asked Marshall to follow them to the door so that she could lock it after they left. Shaffer and Hackman exited the back door, and Marshall "shut the door behind" them.
¶6. As Shaffer backed out of Marshall's driveway and entered the street in front of her house, he told Hackman that he wanted to go back to Marshall's house to retrieve his cigarettes. Hackman replied that cigarettes could be bought anywhere, and that they should simply go home. Shaffer then drove Hackman to the O'Charley's parking lot, where Hackman got out of Shaffer's car and into his own. At this time, approximately one o'clock in the morning, Hackman went home. He did not see Shaffer for the rest of the night.
¶7. On March 14, 1991, the Ocean Springs Police Department received a call that a woman had been found dead in her bathtub at 1101 West Cherokee in Ocean Springs. The deceased was Marshall. The caller was a neighbor who had entered Marshall's house after noticing water flowing beneath the house. The neighbor found Marshall lying face up in the bathtub with the hand-held shower nozzle laying across her stomach. She was naked. Her head was at the end of the tub away from the faucet and her legs lay across the ...