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Gray v. State

August 06, 1998

GRAY V. STATE OF MISSISSIPPI


The opinion of the court was delivered by: Roberts, Justice

96-DP-00241-SCT, __ So. 2d __

RODNEY GRAY v. STATE OF MISSISSIPPI

DATE OF JUDGMENT: 01/25/96

TRIAL JUDGE: HON. MARCUS D. GORDON

COURT FROM WHICH APPEALED: NEWTON COUNTY CIRCUIT COURT

NATURE OF THE CASE: CRIMINAL - DEATH PENALTY - (DIRECT APPEAL)

DISPOSITION AFFIRMED - 8/6/98

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

STATEMENT OF THE CASE

¶1. This appeal comes before this Court from the Circuit Court of Newton County, Mississippi. Rodney Gray was indicted during the July-August 1995 term of the Circuit Court of Newton County, for the capital murder of Grace Blackwell on August 15, 1994, while engaged in the commission of the crime of kidnapping and/or rape in violation of Miss. Code Ann. § 97-3-19 (2)(e). On January 22, 1996, a jury was impaneled and found Gray guilty on January 24, 1996. Afterward, the jury heard evidence in support of aggravating and mitigating circumstances to determine the sentence to be imposed. The jury sentenced Gray to death on January 25, 1996.

¶2. The sentence of death was in the following form pursuant to Miss. Code Ann. § 99-19-101 (5) and (7) (1994): (1) We, the Jury, unanimously find from the evidence beyond a reasonable doubt that the following facts existed at the time of the commission of the capital murder:

That the Defendant actually killed Grace Blackwell.

That the Defendant attempted to kill Grace Blackwell.

That the Defendant intended that the killing of Grace Blackwell take place.

That the Defendant contemplated that lethal force would be employed.

We, the Jury, unanimously find that the aggravating circumstances of; 1. The capital offense was committed while the Defendant was engaged in the commission of kidnapping.

2. The Capital offense was committed while the Defendant was engaged in the commission of or an attempt to commit the crime of rape; are sufficient to impose the death penalty and that there are insufficient mitigating circumstances to outweigh the aggravating circumstances, and we further find unanimously that the Defendant should suffer death.

Allen B. Perry

Foreman of the Jury

¶3. Gray was sentenced to death by lethal injection by the lower court at a date to be fixed by appropriate order of an appropriate court. Gray's Motion for New Trial was overruled on February 20, 1996. Gray awaits the outcome of this appeal while incarcerated in the Maximum Security Unit of the State Penitentiary at Parchman, Mississippi. Gray has raised the following issues:

I. WHETHER THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE 3, SECTION 26 OF THE MISSISSIPPI CONSTITUTION OF 1890.

II. WHETHER THE COURT ERRED BY ADMITTING HEARSAY EVIDENCE.

III. WHETHER THE COURT ERRED IN RULING ON THE DEFENDANT'S MOTION TO PROHIBIT PROSECUTORIAL MISCONDUCT PRIOR TO TRIAL.

IV. WHETHER COMMENTS MADE BY PROSECUTOR DURING CLOSING ARGUMENTS VIOLATED THE DEFENDANT'S RIGHTS TO A FAIR AND IMPARTIAL TRIAL.

V. WHETHER THE COURT ERRED BY ALLOWING THE STATE'S DNA EXPERT TO TESTIFY ABOUT TEST RESULTS SHE DID NOT PERSONALLY CONDUCT.

VI. WHETHER THE COURT ERRED BY ALLOWING THE STATE TO INTRODUCE INTO EVIDENCE THE GRUESOME PHOTOGRAPHS AND VIDEO TAPE OF THE BODY OF THE VICTIM.

VII. WHETHER THE COURT ERRED BY ADMITTING A PHOTOGRAPH OF THE VICTIM INTO EVIDENCE BY A WITNESS WHO WAS NOT AT THE CRIME SCENE.

VIII. WHETHER THE COURT ERRED BY ALLOWING AN INSTRUCTION TO THE JURY AS TO RAPE, WHEN THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT SUCH AN INSTRUCTION.

IX. WHETHER THE JURY VERDICT EVIDENCED BIAS AND PASSION BECAUSE OF THE TIME OF DELIBERATIONS.

X. WHETHER THE COURT ERRED BY FAILING TO GRANT DEFENDANT'S MOTION FOR CHANGE OF VENUE.

XI. WHETHER THE COURT ERRED BY ALLOWING AN IN-COURT IDENTIFICATION OF THE DEFENDANT BY A WITNESS.

XII. WHETHER THE COURT ERRED BY FAILING TO DISMISS THE INDICTMENT BECAUSE THE UNDERLYING FELONIES WERE LISTED IN THE DISJUNCTIVE.

XIII. WHETHER THE COURT ERRED BY ALLOWING THE JAIL-HOUSE CONFESSIONS OF THE DEFENDANT TO HIS FORMER CELL-MATES INTO EVIDENCE.

XIV. WHETHER THE DEFENDANT WAS DENIED HIS RIGHT TO COUNSEL.

XV. WHETHER THE EVIDENCE IS SUFFICIENT TO SUPPORT THE SENTENCE.

XVI. WHETHER THE COURT ERRED BY GRANTING S-3 OF THE GUILT PHASE OF THE TRIAL.

XVII. WHETHER THE COURT ERRED BY GRANTING S-4 ON CIRCUMSTANTIAL EVIDENCE AT THE GUILT PHASE OF THE TRIAL.

XVIII. WHETHER THE EVIDENCE SUPPORTED A KIDNAPPING INSTRUCTION AT GUILT PHASE OF THE TRIAL.

XIX. WHETHER THE VERDICT IS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶4. After reviewing the record, briefs, and prior holdings of this Court, we hold that there is no reversible error in this case. Therefore, Rodney Gray's conviction for capital murder and the imposition of the death sentence is affirmed.

STATEMENT OF THE FACTS

¶5. Early in the afternoon on August 15, 1994, at approximately 1:40 p.m., the body of seventy-nine year old Mrs. Grace Blackwell was found at the end of a bridge in Newton County. Investigators found broken glass, several blood stains, and tissue on the bridge. Mrs. Blackwell's billfold, checkbook, and contents of her purse were found near the bridge. Investigators also found a plastic wadding from a shotgun shell.

¶6. Mrs. Blackwell's car was found later behind a service station in Decatur. Large amounts of blood were found all over the passenger side of the car, both inside and outside. A pair of gloves was located in a dumpster near the car. The car had been damaged on the front of the passenger side. There was blood and tissue on the front, across the hood, windshield, and down the passenger side of the vehicle. The interior of the car contained a great deal of blood and glass particles on the door paneling and seat.

¶7. Mrs. Blackwell's body received several extensive injuries. She had lacerations on her leg and facial area, severe wounds to her mouth and back side of her head, along with a gash to the back of her head. The lethal injury was a contact shotgun wound to the mouth. She also sustained a second gunshot wound to the left side of her face, as well as her chest and left arm. There were multiple small entrance wounds indicating secondary missile pattern injury, as if the shotgun had been fired through an intermediate target. This was a non-lethal wound. Mrs. Blackwell also received multiple injuries on her right side, where there were large scrapes of skin as if she slid on a hard object. She had bruises over her chest wall and right lower leg. There was also an abrasion or scrape of one inch to the labia majora or vaginal vault, which indicated forceful sexual penetration. The large cuts on Mrs. Blackwell had little blood, indicating they occurred after the shotgun wound to the face. Such injuries were consistent with being struck by a car or having fallen or been pushed from a car. Mrs. Blackwell's death was caused from extensive bleeding from the gunshot wound to the mouth. It would have taken a period of time to die, as the bleeding was from secondary vessels, and not every individual is immediately incapacitated from such a wound, as per the medical examiner's testimony. A rape kit was taken from Mrs. Blackwell, and the kit, as well as her clothes, were sent to the crime lab.

¶8. On the morning of August 15, 1994, Mrs. Blackwell went to her local bank in Louin, Jasper County, to use the drive-through window. Arlene McCree, the bank teller who usually waited on Mrs. Blackwell, testified that Mrs. Blackwell was acting strangely. Mrs. Blackwell presented a blank check for the teller to fill out in the amount of $1200. McCree stated that she could not see into the backseat of Mrs. Blackwell's car because there were clothes hanging on hangers blocking her view. After McCree filled out the check, Mrs. Blackwell snatched it back, signed it, and threw it back to the teller. When the teller gave her the money, Mrs. Blackwell grabbed it and drove away. As she drove off, McCree heard Mrs. Blackwell say over the speaker, "I'm hurrying, I'm hurrying." McCree then contacted the Jasper County Sheriff's office and asked them to check on Mrs. Blackwell as she thought she had been taken hostage.

¶9. Investigators in the Jasper County Sheriff's office went to Mrs. Blackwell's house and discovered the front door was open and the telephone had been disconnected. Shoe prints were found in the front yard, and a plaster cast was made and sent to the crime lab. The investigators began to look for Rodney Gray for questioning in Mrs. Blackwell's murder. Gray turned himself into authorities. When Gray was arrested on August 15, 1994, his clothes were taken and sent to the crime lab, and he was given a jail uniform to wear. Blood and hair samples were also taken from Gray and sent to the crime lab.

¶10. Mildred Curry, who was Gray's girlfriend at the time of the murder, gave investigators information that caused them to search her house trailer. Gray called Mildred from jail and told her that he had put some money away in a bathroom vent. She thought Gray was lying. However, during the investigators' search of Curry's trailer, $1,123 was found hidden in an air conditioner duct in a bathroom. Mildred Curry later identified the shirt and work boots Gray was wearing on the day of the murder. The shirt and work boots were found in a five gallon bucket in a wooded area by a dog pen behind the trailer. Both items were sent to the crime lab.

¶11. Mildred's brother, Randy, lived in the trailer with her. He testified that Gray came home on the afternoon of August 15 th wearing the striped shirt. When Randy told him that the police wanted to talk to him, Gray went to a bedroom, changed shirts, and then called the police.

¶12. Harry Jones testified that he was driving around noon on August 15 th , when he saw a brown Chrysler stopped in the road with a guy wrestling with a lady in the car. He identified the car that he saw as the one belonging to Mrs. Blackwell. Jones could not tell if the woman was black or white, but clearly saw the young, black male driving. The State asked Jones if he could identify the driver of the car. Gray's attorneys objected stating the identification was a product of an impermissible lineup. The lower court overruled the objection and allowed the identification in the courtroom to proceed. Jones identified Rodney Gray as the driver of the car.

¶13. Richard Weir testified that during his lunch break on August 15, 1994, he saw a maroon colored Chrysler pass by his truck. He stated what caught his eye was that it was a black male and a white female in the car. Weir also testified that it looked like the male was trying to grab the female. Although Weir identified the car as Mrs. Blackwell's, he could not identify the occupants.

¶14. Derrick Beasley stated that Gray approached him on the afternoon of August 15 th near the courthouse in Decatur. Beasley testified that Gray had a wad of money in his pocket that he pulled out and showed to Beasley. It was in denominations of one hundred dollar bills. Beasley also stated that Gray was wearing the striped shirt that the investigators later recovered from behind Curry's trailer.

¶15. Russell Saunders was incarcerated with Gray in the Jasper County jail in August and September of 1994. Saunders testified that after returning from giving the police blood samples Gray asked "if they could tell if you had sex with a woman." Saunders stated that Gray had told him that he had sex with the lady that he was supposed to have killed. Gray told Saunders that he had accidentally shot her and then ran over her. Gray stated to Saunders that he was not worried about the police finding the gun because he had smashed the gun and thrown it into the woods. Saunders had also heard Gray talking about the money that was supposed to be in a vent. In October or November of 1995, Gray was in the Newton County jail and told Cleveland McCall that he took Mrs. Blackwell to the bank to get some money. McCall testified that Gray told him that he brought her back from the bank, raped her and shot her with a.410 shotgun.

¶16. Several expert witnesses testified at the trial. Lora Aria, an expert in serology, stated that she identified four stains that could have been blood on the shirt Gray was wearing the day of the murder. She tested the stains and determined that two were human blood. Glass fragments recovered from the shirt found by the dog pen were optically indistinguishable from the glass from Mrs. Blackwell's car. There were blood stains found on the gloves recovered from the dumpster. The gloves also contained glass fragments which were optically indistinguishable from the glass from Mrs. Blackwell's car. The shirt worn by Gray at the time of his arrest also contained glass fragments that were optically indistinguishable from the glass from Mrs. Blackwell's car.

¶17. David Wilson was a Special Agent to the Federal Bureau of Investigation assigned to the Hairs and Fibers unit. He testified that he examined hair found in Mrs. Blackwell's panties with hair samples of Gray. His opinion was that the pubic hair found in the panties had the same microscopic characteristics as Gray's pubic hairs.

¶18. Gary Kanaskie was employed by the FBI to conduct shoe print and tire tread examinations. He compared the boots of Gray to the boot prints found at the home of Mrs. Blackwell. Kanaskie testified that the prints made at Mrs. Blackwell's home were made by the boots worn by Gray. Because there were three distinctive markings on the boots, Kanaskie testified that no other boot could have made the prints found at Mrs. Blackwell's home.

¶19. Finally, Melissa Smrz was assigned to the DNA analysis unit of the FBI. She conducted DNA tests on semen stains found on Mrs. Blackwell's panties. She testified that DNA was extracted from the semen and compared with blood samples from Gray. As a result of these tests, Smrz concluded that the probability that someone other than Gray left DNA in Mrs. Blackwell's panties was less than 1 in 446,000,000 in Black, Caucasian, and Hispanic populations.

¶20. After closing arguments, the jury retired at 3:11 p.m. to determine the verdict of guilt or innocence of Rodney Gray. The jury returned at 3:21 p.m. ready to report its verdict. The jury unanimously found Rodney guilty of the capital murder of Mrs. Grace Blackwell.

¶21. The jury then heard evidence as to mitigating and aggravating circumstances to consider when determining which sentence should be imposed on Gray. After hearing testimony from several witnesses from the State and the defense, the jury received its instructions from the court. Both sides then gave closing arguments. The jury began deliberations at 12:07 p.m. to determine the appropriate sentence. At 1:09 p.m. the jury returned to the courtroom ready to announce its decision. The jury reached an unanimous verdict finding that Rodney Gray should suffer death for the capital murder of Mrs. Grace Blackwell.

¶22. The normal post-trial motions were filed, heard on argument, and subsequently overruled by the lower court. Following this ruling by the lower court, Gray perfected his appeal to this Court.

DISCUSSION OF THE ISSUES

I. WHETHER THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE 3, SECTION 26 OF THE MISSISSIPPI CONSTITUTION OF 1890.

¶23. Gray alleges a constitutional violation of his right to a speedy trial. On October 10, 1995, Gray filed a motion to quash the indictment claiming he had been denied a speedy trial. A hearing was had on this motion on October 30, 1995. After hearing argument from both sides, the lower court overruled Gray's motion to quash the indictment. BY THE COURT: The Defendant has filed his motion to dismiss the indictment, the Defendant having been indicted for the crime of murder while engaged in the commission of the crime of kidnapping and/or rape. This indictment was returned on the 2 nd day of August of 1995.

In doing so, he has brought into play Barker v. Wingo , which requires the Court to look at the evidence and make a finding regarding the delay, and to apply the analysis of the four prong test.

The Defense argues that the Defendant is prejudiced because of a length of delay occurring since the arrest on August the 15 th of 1994, and says that by reason of the delay, he was prejudiced, in that since then he has been convicted of another crime, thereby restricting his right to give testimony in his own defense, and also because a possible witness has died in the intervening time.

The Court, in reviewing the evidence, finds that there was a delay of 257 days, being that time from the date of the charge on March 15 th , 1995, until the date of the trial, which is now set for trial November the 27 th , 1995, being a period shortly in excess of eight months, requiring the Court then, after determining there was a length of delay, to apply the test and determine the reason for that delay.

It appearing from the evidence that during this period of time, the serology materials were turned over to the Federal Bureau of Investigation for analysis, and that immediately upon receipt of a partial report, the Sheriff of this county filed charges.

The delay of discovery being negligent does not appear to be prejudicial and does not weigh heavily against the State, although the Court must find that it does weigh against the State.

The second test of whether or not the Defendant asserted his right to trial weighs against the Defendant, for the record appears that he did not assert that he was entitled to the right to be tried on the crime for which he was charged.

Before I get away from it, I want to say the DNA analysis being conducted by the Bureau could have been exculpatory and beneficial to the Defendant. Therefore, that weighs against the Defendant and whether or not he was prejudiced by the delay.

Contrary to the argument of the Defendant, the crimes for which this Defendant was convicted in the intervening time were crimes that he had committed prior to the burglary, kidnapping, and/or rape and murder of the lady on August 15 th , 1994, so I fail to see how he can contend that the delay in his trial caused him to be convicted of a crime for which he had committed prior to the date alleged in this particular instance.

It is not clear, and it was not made clear, and the question was asked of the witness, what was the testimony of the person deceased, and there was no response to that question. Therefore, it has not been made clear to the Court what that witness would have testified to. Therefore, the Court would not be in a position of ruling whether or not the delay was prejudicial to the Defendant.

Considering, therefore, the prejudice by delay weighs against the Defendant, and application of the test of the Barker v. Wingo , I find that it weighs against the Defendant.

Therefore, the motion is overruled.

¶24. "This Court has held that post-delay determinations of cause are permissible and, when supported by substantial credible evidence, shall not be overturned." Hull v. State , 687 So. 2d 708, 729 (Miss. 1996) (citing McNeal v. State , 617 So. 2d 999, 1007 (Miss. 1993)). Likewise, we hold that the lower court was correct in overruling Gray's motion to quash the indictment.

¶25. The murder of Mrs. Blackwell took place on August 15, 1994. Rodney Gray was arrested that same day and charged with burglary of Mrs. Blackwell's residence based on statements he made to the police. He was incarcerated in Jasper County. Bond was set for that charge, but Gray never made bond. Gray was transported to Newton County and charged with the capital murder on March 15, 1995. Gray was arrested in Newton County for capital murder 212 days after his arrest for burglary in Jasper County. All the while, he remained in custody.

¶26. Counsel was appointed on March 22, 1995. Gray's preliminary hearing was had on June 5, 1995. He was indicted by the Grand Jury of Newton County on August 2, 1995. The lower court set the trial date for November 27, 1995. This date would have been 469 days subsequent to his initial arrest for burglary in Jasper County and 257 days from his arrest for capital murder in Newton County.

¶27. On November 17, 1995, the attorneys for Gray filed a motion for continuance. The lower court granted the motion and scheduled the trial to take place on January 22, 1996. At the time Gray filed his motion for continuance 459 days had passed since his initial arrest for burglary and 247 had passed since his arrest for capital murder. When his trial began on January 22, 1996, it had been 525 days since he was arrested for burglary and 313 days since his arrest for the capital murder of Mrs. Blackwell.

¶28. The State argues that at the time of Gray's initial arrest it could not be determined if Mrs. Blackwell had been raped. At the time of his arrest, Gary was also facing prior burglary charges in Jasper County. On September 6, 1995, Gray pled guilty to two burglaries and one attempted burglary. These crimes occurred prior to Mrs. Blackwell's murder. The State contends that until the FBI reports were received it was not clear whether Gray could be charged with capital murder with the underlying felony of rape.

¶29. Gray argues on appeal that his constitutional right to speedy trial attached August 15, 1994, the day he was arrested for burglary. The State claims Gray's constitutional right to a speedy trial attached on March 15, 1995, the day he was formally charged with capital murder.

¶30. The constitutional right to speedy trial attaches at the time when the defendant is first effectively accused of the offense. Perry v. State , 419 So. 2d 194, 198 (Miss. 1982). This Court has held this to begin at "'time of a formal indictment or information or else the actual restraints imposed by arrest and holding to a criminal charge.'" Perry v. State , 637 So. 2d 871, 874 (Miss. 1994) (quoting Lightsey v. State , 493 So. 2d 375, 378 (Miss. 1986)). The Court finds that Gray was effectively accused of the crime on March 15, 1995, when he was formally arrested and charged with the capital murder of Mrs. Blackwell. However, measuring the shortest possible time frame, 247 days (period of time Gray arrested for capital murder until Gray filed his motion for continuance) are attributable to the State. This is presumptively prejudicial because it is over eight months, and the State must show Gray has not been denied his right to a speedy trial. Smith v. State , 550 So. 2d 406, 408 (Miss. 1989); Rhymes v. State , 638 So. 2d 1270, 1272 (Miss. 1994); Hull v. State , 687 So. 2d 708, 730 (Miss. 1996).

¶31. Inquiry must be made into the other Barker v. Wingo , 407 U.S. 514 (1972) , factors: (2) Reason for delay;

(3) Assertion of speedy trial; and

(4) Prejudice.

None of the factors are dispositive, but are to be considered together. Wiley v. State , 582 So. 2d 1008, 1011 (Miss. 1991); Barker , 407 U.S. at 530-33. (2) Reason for delay --

¶32. The State asserts that the record does not indicate the delay preceding Gray's trial was a part of "[a] deliberate attempt to delay the trial in order to hamper the defense..." Barker , 407 U.S. at 531. Any delay is excusable if it is attributable to the defense. Smith v. State , 489 So. 2d 1389, 1391 (Miss. 1986). The record clearly shows that any delay after November 17, 1995, is attributable to the defense.

¶33. Gray claims the only reason for delay given by the State was the fact that it was waiting on DNA test from the FBI laboratory. The FBI received the evidence on September 9, 1994, and the results of the testing were faxed to the Newton County Sheriff's Office on March 14, 1995. Gray was charged with capital murder after the Newton County Sheriff received the faxed information from the FBI.

¶34. The State claims it would have been forced to seek a continuance until the lab results were available if Gray had been charged with capital murder without the DNA evidence. The lower court found that "the DNA analysis conducted by the Bureau could have been exculpatory and beneficial to the Defendant." This Court has previously held the delay in time attributed to the FBI laboratory in preparing potentially exculpatory DNA evidence weighs very slightly, if at all, in favor of the defendant. Hull , 687 So. 2d at 730. Because these test results could have exculpated Gray and benefitted him, this factor is not weighed heavily against the State, if at all. (3) Assertion of the Right --

¶35. Gray never requested a speedy trial. He moved to dismiss his indictment because of the lack of a speedy trial. Gray asked for the dismissal on October 13, 1995, after a trial date had been set for November 27, 1995. At this motion hearing, Mr. Lee, one of Gray's attorneys, stated, "The Defendant is not jeopardized in any way at this point. In fact, it would be to his benefit for Mr. Thames and I to be adequately prepared to go to trial, which at this time we aren't."

¶36. This Court has dealt with similar situations previously. "In Adams we observed that a demand for dismissal for violation of the right to speedy trial is not the equivalent of a demand for speedy trial. Such a motion seeks discharge not trial. There we held that a demand for dismissal coupled with a demand for an instant trial was insufficient to weigh this factor in favor of the defendant, where the motion came after the bulk of the entire period of delay had elapsed." Perry , 637 So. 2d at 875 (citing Adams v. State , 583 So. 2d 165, 169-70 (Miss. 1991)). In the case sub judice, Gray filed his motion to quash the indictment for lack of a speedy trial a little over a month prior to his original trial date. In that motion Gray did not request a speedy trial, but moved the lower court to dismiss the charges against him due to a denial of his right to a speedy trial. This factor weighs against Gray. Hull , 687 So. 2d at 730; Perry , 637 So. 2d at 875. (4) Prejudice to the Defendant --

¶37. The Supreme Court noted that prejudice to the defendant should be examined according to the interests of the defendant which the right to speedy trial is intended to safeguard. Barker , 407 U.S. at 532. Those interests are: "(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired." Id. However, in United States v. MacDonald the Court expounded on the interests protected by the right to a speedy trial. The Sixth Amendment right to a speedy trial is thus not primarily intended to prevent prejudice to the defense caused by passage of time; that interest is protected primarily by the Due Process Clause and by statutes of limitations. The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges.

United States v. MacDonald , 456 U.S. 1, 8 (1982).

¶38. Gray was incarcerated in Jasper County from August 15, 1994, until March 15, 1995, on a charge of burglary. His mother, Annie Tatum, testified she visited her son every Sunday in the Jasper County Jail. She stated that he appeared to be nervous, wanted her to get him a lawyer, and "wanted him to find out what was going on" by talking to the Sheriff. He attempted to take his life on two separate occasions, once by hanging and another by overdosing on pills. Mrs. Tatum testified that she could not afford to retain a lawyer for her son at that time.

¶39. The record clearly shows that Gray had an attorney appointed by the court to represent him on the burglary charge for which he was being held in Jasper County. Gray had an initial appearance on that charge and a bond was set. Gray did not make the bond and remained in jail. Sheriff Cross testified that if Gray had made his bond he would have been transported back to Newton County to face a separate felony drug charge.

¶40. The Court holds that the period of incarceration Gray endured in Jasper County prior to being charged with capital murder on March 15, 1995, in Newton County was attributable to the burglary charge. He would have been released upon making bail, only to be incarcerated in Newton County on a felony drug charge. Gray would have remained in jail between August of 1994 and March of 1995 even if he had not been charged with capital murder.

¶41. Gray was arrested in March of 1995 for capital murder of Grace Blackwell. He was indicted in August of 1995. His trial date was originally set for November 27, 1995. After he was granted a continuance, Gray's trial began on January 22, 1996. There was no oppressive pretrial incarceration, and no prejudice was suffered by Gray as a result of this incarceration.

¶42. The testimony by Annie Tatum suggested that Gray suffered anxiety and nervousness during his incarceration in Jasper County. Any suffering endured by Gray was during the time he was charged for the burglary. Although Gray may have been a suspect for the murder of Mrs. Blackwell, he suffered no anxiety because of the capital murder charge against him. Gray was not charged with capital murder until March of 1995 when he was transported to Newton County. The record does not indicate any anxiety or nervousness suffered by Gray while he was held in Newton County.

¶43. The last interest enumerated in Barker is the possibility of impairment to the defense. Barker , 407 U.S. at 532. Gray raised several facts that he claims impaired his defense. The first is that he had no attorney during his time of incarceration in Jasper County. The record clearly refutes this claim. Sheriff Cross testified that Gray had an attorney appointed for him to defend him on the burglary charge for which he had been arrested. No capital murder charge had been brought against Gray until March 15, 1995. No attorney would have been appointed for Gray to defend him on that charge until after it had been brought.

¶44. Secondly, Gray claims that a witness named Latrelle Page could have testified for him, but had been killed in a car accident in May of 1995. "If witnesses die or disappear during a delay, the prejudice is obvious." Id. Mrs. Tatum testified that Gray had told her Page could testify to help him or possibly clear him of this crime. When cross-examined by the State, Mrs. Tatum stated that she did not know what Page knew or would say. She stated Gray told her before May of 1995 that Page knew what happened.

¶45. The allegations concerning a witness who would testify to exonerate the defendant are unfounded. The trial Judge noted that the question was put forth as to what the person would have testified to and no response was given. This was merely supposition. There can be no prejudice to the defendant when the possibility is insubstantial, speculative and premature.

¶46. The attorneys defending Gray against the capital murder charges were appointed on March 22, 1995. The record before this Court is void of any attempt by Gray or his attorneys to secure the testimony of Latrelle Page prior to his death in May of 1995. Mrs. Tatum testified that Gray told her about Page before May of 1995. This factor weighs against Gray. This Court has held that the failure to attempt to secure a witness is fatal to the claim of actual prejudice. Rhymes , 638 So. 2d at 1274.

¶47. Thirdly, Gray claims that the testimony of witness inmates, Russell Saunders and Cleveland McCall, who heard incriminating statements by Gray may have never taken place if he had an attorney. This assertion is without merit. Statements made to Russell Saunders were made in either August or September of 1994. While Gray did not have an attorney appointed to defend the capital murder charges until March of 1995, he did have an attorney appointed to represent him as to the burglary charges. McCall testified that the statements made by Gray to him were in October or November of 1995 *fn1 while Gray was incarcerated in Newton County. The attorneys appointed to defend him on the capital murder charge were appointed on March 22, 1995.

¶48. Gray's argument to this Court that if he had an attorney he might not have made the statements to Saunders and McCall is without merit. The record clearly shows that he had representation during the time these statements were made. In fact, at the time he made the statements to McCall in October or November of 1995, Gray was represented by his court-appointed attorneys who defended him against the capital murder charges.

¶49. Lastly, Gray claims he pled guilty to three unrelated felonies in September of 1995 in Jasper County, which made him a convicted felon for cross-examination purposes. He alleges this deterred him from testifying in his own defense. The footnote on page 23 of Gray's appeal brief states his pleading guilty was done without the consent or knowledge of his attorneys. Because the attorneys were appointed in March of 1995, they should have known of this action by Gray in September of 1995. This factor weighs against Gray in his claim of prejudice.

¶50. The State also asserts that the United States Supreme Court has held that the right to a speedy trial does not require the government to formally accuse a person of a crime within any particular period of time. In United States v. Marion , 404 U.S. 307, 313 (1971) , we held that the Speedy Trial Clause of the Sixth Amendment does not apply to the period before a defendant is indicted, arrested, or otherwise officially accused:

"On its face, the protection of the Amendment is activated only when a criminal prosecution has begun and extends only to those persons who have been 'accused' in the course of that prosecution. These provisions would seem to afford no protection to those not yet accused, nor would they seem to require the Government to discover, investigate, and accuse any person within any particular period of time. The Amendment would appear to guarantee to a criminal defendant that the Government will move with the dispatch that is appropriate to assure him an early and proper Disposition of the charges against him."

MacDonald , 456 U.S. at 6-7.

¶51. The Court further stated, "[a]lthough delay prior to arrest or indictment may give rise to a due process claim under the Fifth Amendment,..., or to a claim under any applicable statutes of limitations, no Sixth Amendment right to a speedy trial arises until charges are pending." Id. at 7.

¶52. Gray was not formally accused of capital murder until he was arrested on March 15, 1995, and transported to the Newton County jail. The record indicates that Gray was not indicted for the burglary of Mrs. Blackwell's home. However, the record does reveal that counsel was appointed to represent Gray on that burglary charge. Any speedy trial claim or violation of due process allegation would be associated with the burglary charge for which he was arrested on August 15, 1994.

¶53. After deducting the time attributable to Gray's motion for continuance, the length of delay is 247 days. This is very close to the "eight month measuring stick" used by this Court. The overall delay was not excessive for a capital murder case. As noted by the lower court, Gray was in a position to benefit from the DNA evidence if it exculpated him from being prosecuted for the murder of Mrs. Blackwell.

¶54. Gray has failed to show that the State intentionally held back its prosecution in order to gain some impermissible advantage at trial. Where the delay is not intentional and there is no showing of actual prejudice, the balance should be struck in favor of rejecting Gray's speedy trial claim. Rhymes , 687 So. 2d at 1275.

¶55. The Court holds that Gray was not denied his right to a speedy trial. His argument is without merit.

II. WHETHER THE COURT ERRED BY ADMITTING HEARSAY EVIDENCE.

¶56. Gray's second argument on appeal contends the testimony of Arlene McCree constituted impermissible hearsay. McCree was the bank teller who waited on Mrs. Blackwell at the Peoples Bank of Louin drive-through window on the morning of August 15, 1994. She testified that when she asked Mrs. Blackwell if there was anything wrong or if she had someone with her, she received no response from Mrs. Blackwell. McCree stated that she heard Mrs. Blackwell over the bank's drive-through speaker saying "I'm hurrying, I'm hurrying" as she drove off. A:...and I asked her one last time was someone in the car with her, and couldn't get anything out of her, and I finally, you know, pushed the button to let the tray out, and when I did that, she reaches in and grabs it, and then I'm tying to let the tray back, and she takes off, and she was always a careful driver, and the car just jerks it down and pulls out, and I could hear a voice on the speaker saying--

BY MR. LEE: Wait just a minute now. I am going to object to what she heard over the speaker, Your Honor.

BY THE COURT: Did you recognize the voice of Mrs. Blackwell?

A: Yes, sir. It was Mrs. Blackwell saying, "I'm hurrying, I'm hurrying."

BY THE COURT: Objection overruled.

Q: (Turner) What was Mrs. Blackwell saying as she was pulling away?

A: "I'm hurrying, I'm hurrying."

Q: Was she speaking to you?

A: I have no idea. She was looking out. I didn't think she was speaking to me, and that's when I thought I was right.

¶57. Prior to this colloquy, McCree testified that she had known Mrs. Blackwell since 1980, when McCree began working at the bank. McCree considered Mrs. Blackwell a friend and tried to wait on her when she came into the bank. McCree stated that on the morning of August 15, 1994, Mrs. Blackwell would not engage in conversation with her and would not even look at her, which was highly unusual. She further testified that Mrs. Blackwell requested $1200 dollars and presented a blank check. McCree stated that Mrs. Blackwell always filled out her checks, which were normally for not more than $100. McCree filled out the check for her and returned it for her to sign. McCree described Mrs. Blackwell as acting out of the ordinary because "she was not conducting normal business."

¶58. Gray argues that hearsay evidence is incompetent. Murphy v. State , 453 So. 2d 1290, 1294 (Miss. 1984). Without any further citation, he claims that McCree's repeating Mrs. Blackwell saying "I'm hurrying, I'm hurrying" could not be admitted as an exception to hearsay under Miss. R. Evid. 803 as a present sense impression or excited utterance because this was a response to an apparent order or directive.

¶59. The State submits the statement was not hearsay. We agree. A statement is hearsay if it is an assertion. Miss. R. Evid. 801(a). The statement was not offered to prove the truth of the matter asserted. Miss. R. Evid. 801(c). The statement was not offered to prove that Mrs. Blackwell was hurrying. The statement was directed at someone else and likely was not intended to be heard by McCree. This Court has held that a statement offered for the fact that it was said does not fit the definition of hearsay. See Knight v. State , 601 So. 2d 403, 406 (Miss. 1992). The Court holds that the statements were not hearsay, and the issue is without merit.

III. WHETHER THE COURT ERRED IN RULING ON THE DEFENDANT'S MOTION TO PROHIBIT PROSECUTORIAL MISCONDUCT PRIOR TO TRIAL.

¶60. Gray filed a motion prior to trial to prohibit prosecutorial misconduct. The lower court stated that the motion would be ruled upon during the trial upon timely objection. Gray speculatively argues that had the lower court sustained the motion prior to trial, the allegedly impermissible arguments to the jury by the prosecution might not have been made.

¶61. First, Gray does not cite any authority to support his claim that the lower court should have made such a ruling prior to trial. "This Court has repeatedly held that failure to cite authority may be treated as a procedural bar, and it is under no obligation to consider the assignment." Weaver v. State , No. 95-KA-01034-SCT, 1997 WL 703057, at *4 (Miss. Nov. 13, 1997) (citing McClain v. State , 625 So. 2d 774, 781 (Miss. 1993)). "If a party does not provide this support this Court is under no duty to consider assignments of error when no authority is cited." Hoops v. State , 681 So. 2d 521, 526 (Miss. 1996). This assignment of error is procedurally barred.

¶62. Alternatively, it is without merit. The trial court did not abuse its discretion by holding it would rule on the motion upon timely objection. Prosecutors are presumed to act in accordance with the Constitutions of both the United States and Mississippi, along with binding case law, rules of court, and rules of professional conduct. It would have been next to impossible for the trial Judge to have covered with an admonition every potential act, if committed by the prosecution, that would have constituted misconduct. Attorneys are expected to act according to the parameters set forth above. Any deviation from such binding authority could have been dealt with by the lower court upon the defense entering a timely objection. Gray's assertion that had the lower court sustained the motion and instructed the prosecution to refrain from such conduct his argument would probably be moot is purely supposition.

IV. WHETHER COMMENTS MADE BY PROSECUTOR DURING CLOSING ARGUMENTS VIOLATED THE DEFENDANT'S RIGHTS TO A FAIR AND IMPARTIAL TRIAL.

GUILT PHASE --

¶63. In the closing argument of the guilt phase portion of the trial, the State made the following argument: BY MR. TURNER: We presented so much evidence against this Defendant that the only reasonable verdict in this case is guilty of capital murder, and I know that, and you know that, Mr. Duncan knows that, the Defense lawyers know that, the Judge knows that, and everybody sitting in this room for the last three days knows that.

BY MR. LEE: Your Honor, wait just a minute. I am going to object to that. That was improper argument, pointing out who should know that, the Court should know it. That is very improper, Your Honor, and I am going to object to that.

BY THE COURT: A lawyer is given great latitude in making his closing arguments. That is the attorneys for the State and the Defendant. He is entitled to argue the facts of a case and the inferences flowing from those facts, and his Conclusions known to himself and to others. He is entitled to make an expression as to what the evidence indicates.

Your objection is overruled.

¶64. Gray contends that allowing the State to inject that the Judge and the defense attorneys know the only reasonable verdict was guilty of capital murder shocks the conscience. Gray also argues that by overruling the objection the Judge gave credence to the statements made by the State that the only reasonable verdict was guilty of capital murder. Gray correctly asserts that this Court has warned prosecutors to "'refrain from interjecting personal beliefs into presentation of their cases.'" Hunter v. State , 684 So. 2d 625, 637 (Miss. 1996) (quoting Chase v. State , 645 So. 2d 829, 854-55 (Miss. 1994).

¶65. Attorneys "in a criminal prosecution are given broad latitude during closing arguments." Ballenger v. State , 667 So. 2d 1242, 1269 (Miss. 1995) (quoting Ahmad v. State , 603 So. 2d 843, 846 (Miss. 1992)). The State "'may comment upon any facts introduced in evidence' and 'may draw whatever deductions seem to [it] proper from these facts.'" Hunter , 684 So. 2d at 637 (citation omitted).

¶66. Gray contends that the great latitude given to prosecutors does not allow them to argue to the jury what the Judge or the defense attorneys know. Further, he states that such comments by prosecutors cannot be considered expressions as to what the evidence indicates.

¶67. The comments of the State in closing argument must be considered in the context they were made. Wilcher v. State , 697 So. 2d 1087, 1112 (Miss. 1997). The State contends that it was emphasizing the weight of the evidence. The State claims it was arguing to the jury that anyone who had watched the trial and heard the evidence would agree that the only reasonable verdict was guilty of capital murder.

¶68. The Court has previously ruled on personal opinion comments in Blue v. State , 674 So. 2d 1184 (Miss. 1996). There the Court held We find that the prosecutor's comments regarding Blue's guilt and the punishment due him were not personal opinion comments. The prosecutor never said that she believed Blue was guilty or that she believed that Blue deserved the death penalty. Reviewing the statements in context, the prosecutor simply argued that the evidence adduced at trial proved guilt beyond a reasonable doubt and supported a penalty of death.

Id. at 1208.

¶69. The statements in the case presently before the Court are somewhat different. The prosecutor stated, "We presented so much evidence against this Defendant that the only reasonable verdict in this case is guilty of capital murder, and I know that, and you know that, Mr. Duncan knows that, the Defense lawyers know that, the Judge knows that, and everybody sitting in this room for the last three days knows that." However, like the prosecutor in Blue , the prosecutor in the case presently before the Court did not say he believed the defendant was guilty. Rather, he stated that based on the evidence that had been presented everyone knew the only reasonable verdict was guilty of capital murder. The prosecutor argued the evidence proved guilt beyond a reasonable doubt. Blue , 674 So. 2d at 1208.

¶70. These statements come perilously close to the type of statements this Court has warned prosecutors to avoid using in the presentation of their cases. Hunter , 684 So. 2d at 637. The Court is mindful that our decisions in Hunter and Blue were handed down after this case was tried. Blue was decided by this Court on February 15, 1996, and the motion for rehearing was denied on June 6, 1996. Hunter was decided on June 27, 1996, and modified on denial of rehearing on December 5, 1996. The prosecution in this case did not have the benefit of these two cases when it tried this case on January 22, 1996.

¶71. Because of our holdings in Blue and Hunter , we cannot say these statements were not error. However, in light of the overwhelming evidence in this case against Gray, we also cannot say the jury verdict was influenced by the prosecutor's argument so as to prejudice Gray. "Where a prosecutor has made an improper argument, the question on appeal is 'whether the natural and probable effect of the improper argument of the prosecuting attorney is to create an unjust prejudice against the accused as to result in a decision influenced by the prejudice so created.'" Wells v. State , 698 So. 2d 497, 507 (Miss. 1997) (quoting Davis v. State , 530 So. 2d 694, 701 (Miss. 1988)).

¶72. Because of the overwhelming evidence of guilt, we hold that any error does not rise to the level of reversal. We take this opportunity to once again emphasize our criticisms and concerns from our holdings in Blue and Hunter with regard to personal belief comments interjected into arguments by the prosecution. Simply put, it should not be done.

SENTENCING PHASE --

¶73. Gray claims that during the sentencing phase the prosecutor made an improper argument. The prosecutor stated the following: BY MR. DUNCAN: In prison, if that's what you decide to give Rodney Gray, he is still going to have a certain quality of life. Granted it won't be the best in the world, but he will still have it. He will still be able to look out and see the sunshine. He will still have a relationship with his family, if they choose to have one with him. He will be able to talk to them, visit with them, communicate with them, and enjoy certain things, but Grace Blackwell's family, their only relationship with her will be their memories of her, their prayers, and visiting her in the graveyard. Grace Blackwell had a great-grandchild that she will never know. She has got a daughter, grandchildren, great-grandchildren, that have been cheated out of years--

BY MR. LEE: Your Honor, I--

BY MR. DUNCAN: --of relationship--

BY MR. LEE: Wait just a minute, Mr. District Attorney. I am going to have to interpose an objection to this. This is not proper as to this crime that was committed, Your Honor. I am going to object to it.

BY THE COURT: I am going to sustain the objection.

BY MR. LEE: I would ask that the jury disregard it.

BY THE COURT: Motion overruled.

¶74. Gray complains that the lower court compounded the problem by refusing to instruct the jury to disregard the remarks made by the prosecutor after ruling them to be improper. "Where counsel lacks the self-discipline necessary to avoid arguments such as these, that discipline should be imposed by the trial Judge from the bench." Bridgeforth v. State , 498 So. 2d 796, 801 (Miss. 1986). "The purpose of closing argument is to enlighten the jury, not to enrage it." Id.

¶75. The State responds that Gray's reliance on this Court's holding in Bridgeforth is misplaced. In the case at bar, the State did not vilify Gray. The prosecuting attorneys commented on the evidence that had been presented to the jury. The prosecution was attempting to enlighten the jury by giving a summation on the victim impact evidence that had just been presented. The State contends that it was not necessary for the Judge to admonish the jury since victim impact evidence is proper for the jury to consider. "This Court found in Hansen v. State , 592 So. 2d 114 (Miss. 1991), and in numerous cases since, that such argument is not prohibited pursuant to the U.S. Supreme Court's holding in Payne v. Tennessee , 501 U.S. 808, 1115 S.Ct. 2597, 115 L.Ed.2d 720 (1991)." Chase v. State , 699 So. 2d 521, 537 (Miss. 1997). Further, the State submits the impact of the murder on the victim's family is part of the crime committed by the defendant. The United States Supreme Court has held that juries "should consider the circumstances of the crime in deciding whether to impose the death penalty." Tuilaepa v. California , 512 U.S. 967, 976 (1994).

¶76. When looking at the entire closing arguments of the State during both the guilt phase and the sentencing phase of the trial any misconduct does not rise to the level of reversible error. "To constitute a due process violation, the prosecutorial misconduct must be ('of sufficient significance to result in the denial of the defendant's right to a fair trial')." Greer v. Miller , 483 U.S. 756, 765 (1987) (citation ommitted).

¶77. These isolated statements by the prosecution did not deprive Rodney Gray of a fair trial. These comments standing alone were not sufficient to cause the jury to convict Gray of capital murder and sentence him to death. The evidence was overwhelmingly in favor of those verdicts. The guilty verdict was returned in ten minutes, and the sentence of death was returned in an hour.

¶78. Based on the overwhelming weight of the evidence, it cannot be said that but-for the prosecutors' statements Rodney Gray would have not been convicted or received a lighter sentence. This issue does not require reversal.

V. WHETHER THE COURT ERRED BY ALLOWING THE STATE'S DNA EXPERT TO TESTIFY ABOUT TEST RESULTS SHE DID NOT PERSONALLY CONDUCT.

¶79. The State's DNA expert, Melissa N. Smrz, testified as to her conclusions that the semen stains collected from the panties of Mrs. Blackwell and the blood samples taken from Gray contained the same DNA. Gray argues that the lower court erred by not excluding her testimony because she did not personally conduct the DNA testing, her testimony was hearsay and a denial of his constitutional right to confrontation and cross-examination.

¶80. Ms. Smrz testified that everything up to the point of evaluating the autoradiographs and doing the sizing and writing the report is done by someone else. She stated that a technician under her supervision ran the tests and created the autoradiographs. But, she actually evaluated the autoradiographs and did the sizing procedure.

¶81. On cross-examination Ms. Smrz testified as follows: Q. Okay. I don't want to repeat myself, but you are in actuality testifying before this jury what somebody under you actually did, and you are verifying the results?

A. That is correct. My role is somewhat like a doctor in a hospital who has a lot of individuals who work on patient information or patient data, like a laboratory technician, or a nurse, or X-ray technician, and then that doctor is responsible for putting all that information together and evaluating and making diagnosis. It is a similar role.

¶82. On redirect, she testified a mistake in the testing would not cause a false identification. Q. And, when you review the results and supervise these tests, if there were a mistake to be made, would that in any way be able to somehow make a match where there was no match, or would it just result in no result at all?

A. If the DNA test isn't done correctly, in that some chemical or correct chemical is not used, or the electrophoresis procedure is run too long, something that is not followed as part of the protocol, or if you will, recipe for that particular test, the test will not work, and we can tell that by the control that we use.

The only type of error, what you are talking about, having a sample match when it really didn't, would be a sample mixup, and that is a human error. Again, with the chemicals and everything that we use, we know from the results of our control work that we did the test correctly, and in our laboratory we take great pains and a lot of quality control to make sure there are no sample mixups.

I showed you on the diagram that we have our known samples separated from our questioned samples, so that you don't accidentally get a ...


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