Before Sullivan, P.j., Roberts And Waller, JJ.
The opinion of the court was delivered by: Sullivan, Presiding Justice, For The Court:
DATE OF JUDGMENT: 10/01/96
TRIAL JUDGE: HON. GEORGE C. CARLSON JR.
COURT FROM WHICH APPEALED: PANOLA COUNTY CIRCUIT COURT
DISTRICT ATTORNEY: ROBERT L. WILLIAMS
NATURE OF THE CASE: CRIMINAL - FELONY
¶1. Claude Gleeton, III, and Anthony Cathey were indicted by the Panola County Grand Jury during the February 1996, Session for conspiracy to commit capital murder and capital murder in the killing of Charles Gray on or about December 8, 1995. Upon Gleeton's motion, Circuit Court judge George C. Carlson, Jr., ordered that the cases against Gleeton and Cathey be severed. Cathey pled guilty to the charges in exchange for the State's agreement not to seek the death penalty and was sentenced to life imprisonment without possibility of parole. The court called Cathey as a witness at Gleeton's trial held on September 23, 1996, through October 1, 1996. The jury convicted Gleeton of capital murder and conspiracy to commit capital murder and sentenced him to serve a life sentence without possibility of parole for the capital murder conviction. On November 25, 1996, Judge Carlson denied Gleeton's motion for a new trial or for J.N.O.V. The court sentenced Gleeton to serve twenty years in the custody of the Mississippi Department of Corrections on the conspiracy conviction, to run concurrently with the life sentence, in an order dated November 29, 1996. Gleeton appeals to this Court and assigns as error the court's calling Cathey as a witness and the admission of Cathey's prior testimony, and denial of his motions for a polygraph exam, for a directed verdict, and for a new trial or J.N.O.V. We find no merit in any of Gleeton's claims and therefore affirm his conviction and sentence.
¶2. On December 7, 1995, Anthony Cathey and Claude Gleeton, III decided to drive Gleeton's father's truck to a club in Charleston. They spent the night at the Curtis home in Charleston. Mike Curtis testified that Cathey had a gun, which Cathey said belonged to Gleeton, and the men were all passing it around looking at the gun that night at his mother's house. The gun was identified as a .40 caliber Glock, later recovered from Gleeton's father by Investigator Walter Davis with the Mississippi Highway Patrol and delivered to the Mississippi Crime Lab. The next morning Cathey, Gleeton, and Mike Curtis left to go riding in Gleeton's truck. They drove to Oakland and spent the day drinking at Reese Taylor's house and driving around in the truck. The men stopped at Terry McBrayer's store a couple of times, making McBrayer nervous. They left the store after Gleeton asked McBrayer why his two children were at the store instead of in school that day. At that point, McBrayer phoned the sheriff's office to report his suspicion that the men had intended to rob his store. Gleeton and Cathey drove Curtis back to Charleston and dropped him off at his mother's house.
¶3. At trial, Cathey testified that he told Gleeton to drive back towards Batesville, going through the Red Hill community. They ended up by Chuck Gray's store, driving past it two times before finally pulling into the parking lot. Cathey stated that he took the gun from underneath the seat of Gleeton's truck, and while Gleeton pumped gas, Cathey went into the store to ask Gray if he had a bathroom. Gray told him he didn't, so Cathey left, but returned a second time intending to rob the store. Cathey shot Gray in his right eye as he sat in a chair behind the counter, then shot Gray two more times in the back of the head while he lay on the floor. Cathey unplugged the cash register, took the money, and took Gray's gun from behind the counter. Cathey returned to the truck, where he put the gun back under the dashboard, and Gleeton drove Cathey home.
¶4. According to Cathey's testimony at trial, Gleeton had nothing to do with Chuck Gray's murder and had no knowledge that Cathey went into the store with the gun. Cathey also claimed that he and Curtis had discussed robbing someone that day, and in fact decided against robbing McBrayer since his children were in the store, but that Gleeton was not involved in the conversation. However, Curtis testified that Cathey brought up the idea of robbing someone, saying that he wanted to "pop" or "get somebody." He also testified that he understood Gleeton to be in agreement with Cathey about robbing someone, because Gleeton was talking about needing money in response to Cathey's suggestion. Curtis had previously informed investigators that both Cathey and Gleeton were talking about robbing someone that day.
¶5. Cathey kept Gray's gun and sold it to James Fox for $75 the day after Gray's murder. Panola County Sheriff David Bryan received a tip from a confidential source that James Fox had Gray's gun. Fox turned the gun over to Deputy Sheriff James Rudd, informing him that Cathey had sold him the gun, so Rudd picked Cathey up at his mother's house on December 14, 1995. Cathey gave a taped statement to Rudd, Sheriff Bryan, and Investigator Walter Davis that day. In his statement at the sheriff's office, Cathey said that it was Gleeton's idea to go to Chuck Gray's store, and that they both went in and Gleeton shot Gray. Cathey stated that he started to open the cash register, but changed his mind, so Gleeton took the money. According to this first statement, Gleeton was also the one who took Gray's gun, but Cathey said that he did pick it up at first. The two split up the money in Gleeton's truck on the way back to Cathey's mother's house.
¶6. Gleeton's father, having been approached by investigators looking for Gleeton, brought Gleeton to the sheriff's office on December 14. Gleeton told the officers that he was in Holly Springs all day on December 8 and denied any involvement in Gray's murder. Cathey was brought into the room with Gleeton and confronted Gleeton, accusing him of shooting Gray, but Gleeton still denied it.
¶7. At his plea hearing on May 31, 1996, Cathey gave essentially the same testimony as his statement at the sheriff's office, identifying Gleeton as the trigger man. At his sentencing hearing, Cathey similarly testified that Gleeton was the shooter, and that he and Gleeton had discussed robbing a drug dealer in Charleston. He also admitted that he, Gleeton, and Curtis decided not to rob McBrayer's store, because McBrayer's two children were there. However, Cathey denied having specifically discussed robbing Gray's store with Gleeton, claiming that he didn't know that Gleeton planned to rob Gray.
¶8. At trial, Cathey attributed the inconsistencies in his prior statements and his testimony at trial to his desire to keep from getting caught and to avoid the death penalty. He also claimed that when he gave his statement to the sheriff, he'd been drinking and smoking marijuana. However, Sheriff Bryan and Deputy Sheriffs James Rudd and Craig Sheley testified that Cathey did not appear to be under the influence of drugs or alcohol when he gave his statement. Dr. Steven Hayne, the pathologist who performed the autopsy on Gray, testified that the cause of death was three gunshot wounds to the head, and the manner of death was homicide.
¶9. Investigators recovered two projectiles from the floor under Gray's body and one from a security box on the wall behind the chair where Gray would have been sitting when he was shot. They also recovered three casings from the crime scene. The projectiles and casings were submitted to the Mississippi Crime Lab for analysis. Steve Byrd, a forensic scientist specializing in firearm evidence examinations at the Mississippi Crime Lab, testified that his tests revealed that the casings recovered from the crime scene were fired from the Glock .40 recovered from Gleeton's father by Investigator Davis. Byrd also found that the projectiles bore characteristics common to the gun, making it a possible source of the projectiles, but he could not say that they were fired from that particular gun to the exclusion of all others.
¶10.Based upon the above testimony, the jury found Gleeton guilty of both capital murder and conspiracy to commit capital murder. Gleeton was sentenced to serve a life sentence without possibility of parole for the capital murder conviction, and twenty years for ...