The opinion of the court was delivered by: Pittman, Presiding Justice
DATE OF JUDGMENT: 02/04/92
TRIAL JUDGE: HON. JOHN LESLIE HATCHER
COURT FROM WHICH APPEALED: COAHOMA COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION AFFIRMED - 7/2/98
MOTION FOR REHEARING FILED: 4/4/96
¶1. The present case was considered by this Court in Charles C. Hooker v. State, No. 92-KA-00242-SCT (decided March 21, 1996). After full consideration, we grant the State's Motion for Rehearing. The original opinions are withdrawn and these opinions are substituted therefor.
¶2. This appeal arises from Charles C. Hooker's (hereinafter "Hooker") conviction in the Coahoma County Circuit Court for the March 14, 1991, murder of Walter Johnson (hereinafter "Johnson"). Hooker was indicted on June 12, 1991, pursuant to Miss. Code Ann. § 97-3-19 (1972). Hooker was tried before a Coahoma County jury that found him guilty. After the jury returned its verdict, the Judge imposed a sentence of life imprisonment. Subsequently, Hooker filed his post-trial motions seeking either a j.n.o.v. or a new trial. These motions were denied and Hooker timely filed his Notice of Appeal with this Court and assigns the following as error:
I. THE COURT ERRED IN GIVING STATE'S INSTRUCTION S-1
A. THE COURT ABUSED ITS DISCRETION IN GIVING INSTRUCTION S-1 WHICH HAD NOT BEEN PREFILED AS REQUIRED BY RULE 5.03 OF THE MISSISSIPPI UNIFORM RULES OF CRIMINAL PROCEDURE, WHICH ABUSE WAS SO PREJUDICIAL TO THE DEFENDANT AS TO AMOUNT TO A DENIAL OF DUE PROCESS.
B. THE COURT ERRED IN GIVING INSTRUCTION S-1 TO THE JURY BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO FIND BEYOND A REASONABLE DOUBT THAT CHARLES HOOKER ACTED "IN CONCERT WITH" OR "AIDED AND ABETTED" SOME UNKNOWN AND UNIDENTIFIED THEIR (sic) PARTIES IN THE COMMISSION OF THE CRIME.
II. THE COURT ERRED IN REVERSING ITS RULING ON DEFENDANT'S MOTION IN LIMINE AND ALLOWING THE TESTIMONY OF JIMMY WILLIAMS, TOMMY LOCKETT, AND CLAYTEE JOHNSON.
III. THE COURT ERRED IN ALLOWING THE FINGERPRINT IDENTIFICATION TESTIMONY OF CLYDELL MORGAN.
A. ALL FINGERPRINT EVIDENCE SHOULD HAVE BEEN SUPPRESSED BECAUSE THE SECOND SET OF PRINTS WAS TAINTED BY THE USE OF THE FIRST SET OF PRINTS, WHICH WAS ILLEGALLY OBTAINED AND SUBSEQUENTLY SUPPRESSED.
B. THE TESTIMONY OF THE FINGERPRINT EXAMINER WAS TAINTED BY HER USE OF THE FIRST SET OF FINGERPRINTS, WHICH WAS PROPERLY SUPPRESSED, IN THE FORMULATION OF HER OPINIONS.
IV. THE COURT ERRED IN FORCING CONTINUED JURY DELIBERATIONS LATE INTO THE NIGHT AND IN OVERRULING THE DEFENDANT'S MOTION FOR A MISTRIAL.
V. THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO REQUIRE THE STATE'S EXPERTS TO DIVULGE THE BASES OF THEIR OPINIONS AND IN DENYING TO (sic) REQUESTED JURY QUESTIONNAIRE.
VI. CHARLES HOOKER WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO A FUNDAMENTALLY FAIR AND IMPARTIAL TRIAL.
¶3. This case is based entirely on circumstantial evidence and the events surrounding Johnson's murder are reconstructed from testimony given at Hooker's trial. Around 5:30 a.m. on the morning of March 14, 1991, a newspaper delivery man reported to the Coahoma County Sheriff's Office that he had observed a car off of old Highway 61, between Lyon and Clarksdale, in a local resident's driveway and it appeared that the driver of the car was "drunk and had passed out." The sheriff's office responded to the call and upon arriving at the rural crime scene, a Coahoma County Sheriff's deputy discovered Johnson's dead body behind the steering wheel of his blue and tan Mercury Marquis. Investigators from the sheriff's office discovered that Johnson had been shot twice in his right flank and once in his right forearm. Thereafter, investigators searched Johnson's car and found the following: 1) three .25 caliber shell casings; 2) a bag containing several unopened cans of Coors Light beer; 3) one opened, partially full can of Coors Light beer sitting on Johnson's dashboard; 4) two light colored "fibers" found stuck to Johnson's lip; 5) a .22 caliber pistol found between Johnson's legs; and 6) assorted liquor bottles, cups and papers.
¶4. The events leading to Johnson's death are sketchy. However, the evidence adduced at trial demonstrated that on the evening prior to his death, Johnson had visited the Veterans of Foreign War Post in Clarksdale and later stopped in at the Past Time Lounge in Clarksdale. Several witnesses testified that Hooker was at the Past Time Lounge during the time Johnson was present. Trial testimony indicated that while at the Past Time Lounge, Hooker and Johnson spoke to each other outside of the restroom. Testimony revealed that the conversation between the two men was short and , likewise, it did not appear to observers that there were any problems between them. From the testimony of the witnesses, it appears Johnson left the bar around 12:00 midnight. However, there are conflicting stories as to when Hooker left the lounge. O.C. Glasper testified that Hooker left the lounge around 12:45 or 12:50 in the morning, while Hooker's wife and son testified that he arrived home between 11:00 and 11:30 p.m. Nevertheless, the testimony clearly indicated that the two men left the Past Time Lounge at different times.
¶5. After leaving the Past Time Lounge, testimony revealed that Johnson entered a local Texaco convenience store at approximately 12:35 in the early morning of March 14, 1991, and purchased a six-pack of Coors Light beer from the store attendant. This was the last time anyone testified that they saw Johnson alive.
¶6. Several witnesses testified that they saw Johnson's car where it was ultimately discovered between 2:00 and 3:00 a.m. on the morning of March 14, 1991. However, none of those witnesses stopped to investigate, nor did they notice anyone in the vehicle. They did report seeing a "medium-sized or small, light-colored" car across the road from Johnson's car. No one else reported observing Johnson's car until the newspaper delivery man reported the car's whereabouts at approximately 5:30 a.m. on the morning of the 14th of March.
¶7. After questioning various people, investigators from the Sheriff's office were led to Hooker. Hooker talked to the investigators and it was learned that Hooker was a teacher at the middle school where Johnson had been principal. During the investigatory process, Hooker supplied the sheriff with several fingerprint cards. These prints were sent to the crime lab in Jackson, and ultimately the crime lab matched a latent print found on the half-full Coors Light beer can to Hooker. It was also determined that a .25 caliber pistol belonging to Hooker was used to fire the slugs found in Johnson's body.
¶8. Hooker complains that the "bungled" murder investigation hampered his defense and, thus, deprived him of his right to a fair trial. Specifically, Hooker draws this Court's attention to the following: 1) law enforcement officers failed to preserve the integrity of the crime scene, i.e., Johnson's body was moved, car doors opened, etc.; 2) light-colored fibers stuck to Johnson's lip were lost during transit to the State crime lab; 3) the half-full beer can found on the dash was emptied of its contents with no attempt made to preserve the beer so that it could be tested for body fluids on which DNA tests could be performed; 4) a .22 caliber pistol found between Johnson's legs was not tested for fingerprints; 5) Johnson's car was moved from the homicide site before the State Crime Specialist arrived to investigate the scene; 6) liquor bottles, cups and papers were found in the floorboard of Johnson's car and were not fingerprinted; 7) multiple vials of Johnson's blood were allowed to spoil at the crime lab; 8) Hooker's gun was never tested for fingerprints; 9) a holster found in Hooker's van was not tested for fingerprints; 10) there was an unexplained three-day break in the chain of custody of Hooker's gun.
¶9. On appeal Hooker contends that his conviction should be reversed for the reasons enumerated, supra. We find all of Hooker's assignments of error meritless and therefore, his conviction is affirmed.
I. THE COURT ERRED IN GIVING STATE'S INSTRUCTION S-1.
A. The Court abused its discretion in giving instruction S-1 which had not been prefiled as required by Rule 5.03 of the Mississippi Uniform Rules of Criminal Procedure, which abuse was so prejudicial to the defendant as to amount to a denial of due process.
¶10. Hooker argues that the trial Judge abused his discretion when he allowed the prosecution to submit Jury Instruction S-1 on January 22, 1992. The trial commenced on January 20, 1992, and Hooker argues that pursuant to Miss. Unif. Crim. R. Cir. Ct. Prac. 5.03, S-1 should have been submitted before the start of the trial. Hooker contends that the trial Judge's decision to allow the State to submit S-1 prejudiced the defense of his case and therefore, his conviction should be reversed.
¶11. Miss. Unif. Crim. R. Cir. Ct. Prac. 5.03 provides in part: At least twenty-four hours prior to the time that a case is set for trial each of the attorneys shall number and file his jury instructions with the clerk and submit to opposing counsel a numbered copy of the instructions so filed in the case...Except for good cause shown, the court will not entertain a request for additional instruction or instructions which have not been prefiled in accordance with the above.
¶12. Unif. Crim. Ct. R. Cir. Ct. Prac. 5.03 does require that both parties submit their prospective jury instructions 24 hours prior to the start of trial. However, the rule also provides: "[e]xcept for good cause shown, the court will not entertain a request for additional instruction or instructions which have not been prefiled in accordance with the above." Apparently, if a party can show good cause for not complying with the 24 hour prefiling requirement, the trial court may permit the party to submit jury instructions at trial.
¶13. In Shaw v. State, 540 So. 2d 26, 29-30 (Miss. 1989), this Court stated: "...failure to follow the dictates of Rule 5.03, Crim.R.Cir.Ct.Prac., will not lead to reversal absent actual prejudice to the defendant." See also Carter v. State, 493 So. 2d 327, 331 (Miss. 1986). In the case sub judice, Hooker argues that he was prejudiced because he had no idea that the prosecution was going to inject "in concert with" ...