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Clemons v. State

February 11, 1999

KENNETH CLEMONS, JR. A/K/A KENNETH C. CLEMONS, JR.
v.
STATE OF MISSISSIPPI



The opinion of the court was delivered by: Prather, Chief Justice

DATE OF JUDGMENT: March 12, 1997

TRIAL JUDGE: HON. MARCUS D. GORDON

COURT FROM WHICH APPEALED: NESHOBA COUNTY CIRCUIT COURT

NATURE OF THE CASE: CRIMINAL - FELONY

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC

STATEMENT OF THE CASE

¶1. This case arises from Kenneth Clemons' conviction for the July 15, 1996, murders of Cecil Amos, Frankie Amos, and Shirley Ann Davis. Clemons was sentenced by the Neshoba County Circuit Court to serve two consecutive life sentences in prison, to run concurrently with a third life sentence. Clemons' subsequent motion for a new trial was denied. On appeal, Clemons raises the following issues for consideration by this Court:

"A. WHETHER THE APPELLANT'S CONFESSION WAS INVOLUNTARY AND WITHOUT AN INTELLIGENT WAIVER OF HIS RIGHTS? "B. WHETHER THE CIRCUIT COURT ERRED IN SUSTAINING THE STATE'S OBJECTION TO ADMISSIBILITY OF MEDICAL OPINIONS CONTAINED WITHIN THE COURT FILE OF THIS CASE AND OF COMPANION CASE AGAINST CO-INDICTEE BOBBY CLEMONS? "C. WHETHER THE CIRCUIT COURT ERRED IN ALLOWING THE INTRODUCTION OF EVIDENCE THAT CO-INDICTEE TIMOTHY SUDBERRY HAD AGREED TO PLEAD GUILTY TO A CHARGE RESULTING FROM THE SAME CRIME AS APPELLANT WAS CHARGED DENIED APPELLANT A FAIR TRIAL?"

¶2. This Court finds that the issues raised by Clemons are without merit. Accordingly, the judgment of the trial court is affirmed.

STATEMENT OF THE FACTS

¶3. On July 16, 1996, the bodies of Cecil Amos, Frankie Amos, and Shirley Ann Davis, were found in Cecil Amos' car, which was parked at the Nanihwaiya Caves in Neshoba County. The three members of the Choctaw tribe had been shot to death.

¶4. Three days later, the police arrested Timothy Sudberry, and brothers Kenneth Clemons and Bobby Clemons [hereinafter Bobby]. Sudberry led the authorities to two guns, which matched the ballistic evidence from the crime scene.

¶5. At the time of his arrest, fourteen-year-old Kenneth Clemons was advised of his rights and asked several times whether he understood them. He acknowledged that he did, and signed the waiver of rights form. Clemons then stated that he and his brother ( Bobby) remained in a separate vehicle, while Sudberry murdered the people in Amos' car. When confronted with the fact that this statement did not conform with the physical evidence, however, Clemons changed his statement. Clemons told the police that Cecil Amos owed him ten dollars, and, at Amos' suggestion, Clemons agreed to meet Amos at "the caves" for a beer. Clemons described his role in the killings:

"I asked Cecil if he had my money. When I got out of my car, I had a chrome with pearl handle twenty-five automatic in my back -- in my pocket. When Cecil was walking back to sit down after getting the beer, I pulled the twenty-five automatic out of my right back pocket with my right hand. I was holding the gun behind me in my left hand. I had moved the gun from my right hand to my left to hide it behind me. I was looking at Cecil as he was sitting in the car. I was standing about eight feet away from him. "I said, "You got my money?" Cecil replied, "No, I don't have it." I was thinking all them together should have about four thousand dollars. When Cecil told me he didn't have my money, I came out with a twenty-five automatic pistol in my left hand pointed straight at his forehead area. "I fired the pistol by accident, and the bullet hit him somewhere in the side of the head. I knew I hit him because I saw blood coming from behind his left ear area. "His head fell to the right side of the car, and he slumped over. Timothy Sudberry and Bobby Clemons were still sitting in the car. I saw Frankie Amos look at me, but he didn't say anything. He looked scared. "The girl in the back started screaming and hollering. I stepped up inside the car to where I was leaning inside the car with my gun still in my left hand and shot Frankie one time in the chest area. Frankie's head fell forward and began to shake from side to side. I then turned the gun toward the girl and shot. I don't know where that shot went. "I saw somebody coming from behind me and going around the trunk of Cecil's car to the passenger side. I saw them with the nine millimeter pistol in their hand. "They got to the passenger side. The girl in the back of the car, her head was already hanging down forward. "When the person got to where the girl was sitting on the passenger side, he shot the girl one time. I then heard two more shots from the nine millimeter as I was going back to our car. Bobby Clemons and Timothy Sudberry came back to the car after I had got in the car. Timothy Sudberry had a nine millimeter pistol in his hand when he got back in the car."

LEGAL ANALYSIS

A. WHETHER THE APPELLANT'S CONFESSION WAS INVOLUNTARY AND WITHOUT AN INTELLIGENT WAIVER OF HIS RIGHTS?

¶6. Clemons first contends that his statement to the police should not have been admitted. Three officers testified at the hearing on Clemons' motion to suppress the confession: Neshoba County Deputy Sheriff Thomas Thornton; Highway Patrol Officer Allen Stewart; and, Philadelphia Police Officer Tommy Waddell. The officers testified that Clemons did not appear to be under the influence of drugs or alcohol, and that neither threats nor promises were made to Clemons. Clemons never requested an attorney, or asked for the questioning to cease. Deputy Thornton stated that, due to Clemons' age, the authorities took great care to ascertain that Clemons understood the Miranda warnings, prior to questioning.

ΒΆ7. As stated earlier, Clemons first implicated Sudberry, but Officer Stewart had difficulty resolving Clemons' statement with the physical evidence. Officer Stewart became impatient and left the interview, ...


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