The opinion of the court was delivered by: Waller, Justice
DATE OF JUDGMENT: 11/20/95
TRIAL JUDGE: HON. ELZY JONATHAN SMITH, JR.
COURT FROM WHICH APPEALED: COAHOMA COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
¶1. On June 13, 1995, a Coahoma County grand jury indicted Frank Young, A/K/A "Bo," for murder in the death of Carolyn Phillips. Young pled not guilty to the charge of murder and trial was held on October 30, 1995 through November 1, 1995. A jury in Coahoma County Circuit Court convicted Young of murder on November 1, 1995.
¶2. Young filed timely motions for JNOV and in the alternative for a new trial. The trial Judge denied Young's motions on December 12, 1995. Young was sentenced to serve a term of life imprisonment in an institution under the supervision and control of the Mississippi Department of Corrections.
¶3. Young filed a motion to reconsider the trial Judge's order denying his motions for JNOV or in the alternative a new trial. Young's attorney claimed he inadvertently included incorrect materials with his original motion. The trial Judge granted Young's request to reconsider and then again denied Young's motions. Young filed a notice of appeal to this Court and was determined to be entitled to an appeal in forma pauperis.
¶4. Young's fifteen assignments of error can be broken down into six points of error.
I. THE TRIAL JUDGE'S EXCLUSION OF A PRIOR CONVICTION OF WILLIAM ROSS, THE STATE'S KEY WITNESS, UNDER MISSISSIPPI RULE OF EVIDENCE 609 WAS ERROR.
II. THE TRIAL JUDGE ERRONEOUSLY EXCLUDED EVIDENCE POINTING TO WILLIAM ROSS AS THE TRUE KILLER OF CAROLYN PHILLIPS.
III. THE VERDICT WAS AGAINST THE OVERWHELMING SUFFICIENCY AND WEIGHT OF THE EVIDENCE.
IV. THE TRIAL JUDGE IMPROPERLY INSTRUCTED THE JURY AND DID NOT PROPERLY CONSIDER THE COMPETENCY OF THE INDIVIDUAL JURORS WHEN THE JURY WAS IMJUDGESED.
V. THE INCLUSION OF A BLACK POLICE DETECTIVE AS THE FOREMAN OF PREDOMINANTLY BLACK JURY PREJUDICED YOUNG AND IMPROPERLY INFLUENCED THE OTHER JURORS.
VI. ADMISSION OF COMMENTS OR THREATS BY YOUNG TOWARDS CAROLYN PHILLIPS SEVERAL DAYS BEFORE THE MURDER WAS IMPROPER.
¶5. Carolyn Phillips' six year old son, Terrance Phillips, testified he found his mother dead in her bed on the morning of the shooting. He further testified "Earnestine, Barry, Larry, and 'Bo' (the defendant)" were at the house when he went to sleep before the shooting.
¶6. Harvey Granger testified Terrance Phillips ran out of the house crying the morning of May 10, 1995 and told him his mother was dead. Granger took Terrance back into the house and discovered Carolyn's body. Granger called 911 and waited until the police and ambulance personnel arrived.
¶7. Ambulance worker, Billy Pinion, Jr., testified he and his partner arrived at the scene and found a young boy crying (Terrance) standing next to an older man (Granger). The older man directed Pinion to the house where he found Carolyn Phillips dead inside.
¶8. Captain Tim Fortenberry testified initially defendant Young, William Ross and Barry Johnson were suspects in Carolyn's murder. Ross was dropped as a suspect after another interview. Fortenberry testified blood samples taken from Johnson and Young showed both were ABO type O, the same blood type found at the scene. On the direction of the District Attorney's office, no DNA tests were requested of the blood samples taken at the scene or from Johnson ...