Before Sullivan, P.j., Banks And Roberts, JJ.
The opinion of the court was delivered by: Roberts, Justice,
DATE OF JUDGMENT: 07/08/97
TRIAL JUDGE: HON. MARCUS D. GORDON
COURT FROM WHICH APPEALED: NESHOBA COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 01/14/99
¶1. On November 8, 1996, the Grand Jury of Neshoba County, Mississippi, indicted Bobby Tyrse Clemons (hereinafter "Bobby") for three (3) crimes of murder pursuant to Miss. Code Ann. § 97-3-19(1)(a). After presentation of preliminary discovery and preliminary motions from the defense and prosecution, the Clemons trial commenced with a jury on July 7, 1997, with the Honorable Marcus Gordon presiding. The trial concluded the following day with three (3) guilty verdicts of murder returned. The lower court sentenced Bobby to serve consecutive sentences of life on Counts I and II, and to serve a sentence of life on Count III, to run concurrent with the sentences of Counts I and II. Bobby timely filed his Motion for a New Trial which was denied by the trial court. It is from the foregoing events that Bobby brings this timely appeal asserting the following issues:
I. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN OVERRULING DEFENSE COUNSEL'S HEARSAY OBJECTION TO THE TESTIMONY OF SHERIFF McKEE THAT HE HEARD CLEMONS OR HIS BROTHER, KENNY, HAD A FIREARM SIMILAR TO THE MURDER WEAPON?
II. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN OVERRULING DEFENSE COUNSEL'S OBJECTIONS TO THE DISTRICT ATTORNEY LEADING WITNESS SUDBERRY BY READING PORTIONS OF SUDBERRY'S STATEMENT AND ASKING IF THEY WERE TRUE?
III. WHETHER THE TRIAL COURT ERRED IN ALLOWING TESTIMONY THAT SUDBERRY HAD AGREED TO PLEAD GUILTY TO ACCESSORY AFTER THE FACT TO THE CRIME FOR WHICH CLEMONS WAS CHARGED?
¶2. At trial, Danny Junior Davis testified that on July 15, 1996, Kenny Clemons came to see him at his home in Preston, Mississippi. Kenny was the younger brother of Bobby Clemons. While he was at the home of Davis, Kenny proceeded to borrow a nine-millimeter pistol from Davis. After the alleged incident, Sheriff Mike McKee of the Kemper County Sheriff's Department went to visit Davis to question him about the gun. It was at this time that Davis told the Sheriff that Kenny had borrowed the gun the day before. Sheriff McKee's testimony at trial corroborated this fact.
¶3. Timothy Sudberry testified next for the State. (Sudberry is the nephew of Davis). He stated that Bobby and Kenny were at the Preston Store on the day of the incident. Sudberry explained that Bobby told him that Cecil and Frankie Amos had some money and for that reason Bobby was trying to sell some speakers to them. He further testified that later on that day at the Preston Store, Kenny showed him the nine-millimeter borrowed from Davis. Sudberry stated that he had a twenty-five caliber (.25) pistol in his possession. All three boys went behind the Preston Store, where Bobby and Sudberry fired their pistols.
¶4. Sudberry stated that Bobby asked Kenny and Sudberry if their consciences would bother them if they were to shoot someone. Kenny responded that it would not bother him to shoot someone. Sudberry told Kenny he did not know how it would feel because he had not shot anyone before. Bobby then told Kenny that he wanted him to kill the Choctaws, meaning Cecil and Frankie. Sudberry told Kenny that he would not participate and placed his gun in the middle of the front seat of the car. The three boys then drove to Cheatham's Store.
¶5. Sudberry claimed that it was at this time that they saw Cecil Amos, Frankie Amos and Shirley Davis at the Cheatham Store. He stated that when the car with Cecil, Frankie and Shirley drove off, they followed the car. They soon pulled up beside the car and asked what they were going to do. Cecil, Frankie and Shirley responded that they were going to the Mound to drink beer. Bobby responded that they would meet them there.
¶6. Sudberry testified that he, Bobby and Kenny drove to the Nanihwaiya Cave. Sudberry also stated that Bobby told Kenny he wanted to use the big gun and took the nine-millimeter. Kenny took the twenty-five. Soon afterwards, the Amoses and Shirley arrived. They gave Bobby some beer and played some music tapes. Kenny asked Cecil to bring a tape to his car. Sudberry noted that Bobby told Kenny that after Cecil brought the tape and returned to his car, to follow him back to the car and shoot him.
¶7. Sudberry then testified that Bobby and Kenny walked up to the car in which Cecil, Frankie and Shirley were sitting and raised their pistols. It was at this time, Sudberry stated, that he lay down in the seat of the car. He heard six or seven shots being fired. Sudberry claimed that he heard Kenny say that one of them was still moving and then heard another shot. The three young men left the caves immediately after the shooting.
¶8. Sudberry further testifed that after the incident, Kenny gave the .25 caliber pistol back to Sudberry. Sudberry hid the pistol in a hole on the side of the road on the day Kenny was arrested.
¶9. Serena Chapman testified that she found Cecil, Frankie and Shirley in Cecil and Frankie's mother's car at 7:00 a.m. the following morning in the Nanihwaiya Cave area. She stated that she saw blood and immediately went to Cheatham's Store to call an ambulance.
¶10. Tommy Thornton, a criminal investigator with the Neshoba County Sheriff's Department, was called to testify about the investigation of the murders of Cecil, Frankie and Shirley. He stated that of the shell casings found at the scene of the crime, two were fired from a .25 caliber pistol and the rest from a nine-millimeter.
¶11. Dr. Steven Timothy Hayne, a forensic pathologist, was also called as an expert witness by the State. His testimony specifically concerned the gunshot wounds suffered by the three victims, both lethal and non-lethal.
¶12. The State also called Steve Byrd as a witness. Mr. Byrd noted that he was employed as a forensic scientist, specializing in firearms evidence examinations, by the Mississippi Crime Laboratory in Jackson. He examined the firearms involved in the incident and determined that there was a positive relationship between the two firearms and the projectiles and cartridge cases that were found at the scene of the crime. He further stated that it was evident that projectiles found were fired in the particular firearms used to commit the murders. After Byrd's testimony, the State rested its case.
¶13. The defense first called John Gale to testify that he was using the outside phone, on and off, at the Preston Store on the day of the incident. He stated that he saw Kenneth and Sudberry shooting guns behind the store during the afternoon of the incident. He further noted that he saw Bobby, Kenny and Sudberry head in the direction of the Nanihwaiya Caves around 8:30 p.m. that evening. He also confirmed that he spoke with Daniel Junior Davis at the Preston Store around 9:00 p.m. Daniel and his girlfriend, Crystal, were apparently looking for the three young men to retrieve his gun. He later saw Davis pass back by the Preston Store around 9:30 p.m. and Bobby, Kenny and Sudberry passed by the Preston Store around 9:40 p.m. They returned to the ...