Before McMILLIN, P.j., Coleman, And Southwick, JJ.
The opinion of the court was delivered by: Coleman, J.
DATE OF JUDGMENT: 04/19/96
TRIAL JUDGE: HON. ROBERT H. WALKER
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT
NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: COUNT I: MURDER, SENTENCED TO LIFE IMPRISONMENT; COUNT 2: THIRD DEGREE ARSON, SENTENCED TO THREE (3) YEARS IMPRISONMENT, TO RUN CONSECUTIVELY
¶1. A grand jury in the First Judicial District of Harrison County returned a three-count indictment against the appellant, Jon Kurrie Peterson and/or Francis Rudolph Marin, Jr. Count I charged Peterson with the murder of Joseph Darius Saucier; count II charged both Peterson and Marin with third-degree arson for the burning of a 1986 Ford Ranger pickup which belonged to Wendy Thomas; and count III charged Marin with having been an accessory after the fact to Peterson's murder of Saucier. The day before Peterson's trial began, Marin pleaded guilty to both of the crimes for which he had been indicted, and the trial court suspended his sentence and placed him on probation. After Peterson's trial, which lasted four days, the jury returned verdicts of guilty of both murder and third-degree arson. The trial court sentenced Peterson to serve life imprisonment for murder and to serve three years for third-degree arson "to run consecutively with each other in the custody of the Mississippi Department of Corrections." Peterson appeals from the trial court's final judgment to present the following six issues for this court's review and resolution:
1. IMPROPER VOIR DIRE BY STATE
2. THE STATE SYSTEMATICALLY ELIMINATED ALL BLACK JURORS
3. THE COURT ERRED IN NOT GRANTING APPELLANT'S MOTION FOR CONTINUANCE BASED ON PREJUDICIAL IMPACT OF RADIO, NEWSPAPER AND OTHER NEWS OF THE PLEA OF MARIN ONE DAY BEFORE THIS TRIAL.
4. COMPLETE DISPARITY IN SENTENCES OF CO-DEFENDANTS
5. DUTY OF TRIAL COURT TO INSERT MANSLAUGHTER AND SELF-DEFENSE JURY INSTRUCTIONS
6. DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL
¶2. We quote these issues verbatim from the statement of issues found in Peterson's brief as required by Rule 28(a)(3) of the Mississippi Rule of Appellate Procedure, which requires that "[a] statement shall identify the issues presented for review." M.R.A.P. 28(a)(3). We resolve all six of these issues adversely to Peterson and affirm the final judgment of the Circuit Court of the First Judicial District of Harrison County.
¶3. None of Peterson's issues require an elaborate recitation of the facts in this case because all but one of his issues relate to asserted procedural errors committed by the trial court during his trial. At approximately 6:35 p. m. on Saturday, August 5, 1995, Wendy Thomas reported to Lieutenant Coleman and Deputy Bradley with the Harrison County Sheriff's Department that she had not seen Darius Saucier, with whom she had been living, since approximately 7:00 o'clock the night before when Saucier left their home to go to the residence of Jon and Debbie Peterson, the parents of Kurrie Peterson. According to Wendy Thomas, Saucier had taken a VCR with him so that Josh Peterson, Kurrie Peterson's younger brother, who lived with his parents, might repair it. Kurrie Peterson had returned to live in his parents' home about two weeks previously. About one week after Kurrie Peterson returned to his parents' home, Vanessa McClendon, his fiancee, moved into the Petersons' home to be with Kurrie Peterson.
¶4. Earlier that same Saturday afternoon, August 5, at approximately 4:00 o'clock, Patrick Peterson, no relation to Kurrie Peterson, discovered an incinerated pickup, the tires of which were still smoldering, on land located in northwest Harrison County. The land belonged to the Oil Well Hunting Club, of which Patrick Peterson was a member. Patrick Peterson wrote down the license plate number on the pickup and reported his discovery to the Harrison County Sheriff's Department later that evening. Andy Calvanese, a criminal investigator with the Harrison County Sheriff's Department for the previous eight years, drove to the scene of the apparent arson of the truck.
¶5. After Officer Calvanese determined that the truck belonged to Wendy Thomas and that it was this truck in which Darius Saucier had left to drive to the Petersons' home the night before, Officer Calvanese interviewed Saucier's brother. Then, Officer Calvanese interviewed Wendy Thomas and her sister Robin Barnett. Darius Saucier had accompanied Robin Barnett when she drove her father to the airport at New Orleans on Friday morning, August 4. After Officer Calvanese interviewed Wendy Thomas and Robin Barnett, he learned that Saucier had gone to the Petersons' home, which was located in northwest Harrison County.
¶6. At approximately 5:40 o'clock on Sunday morning, August 6, Officer Calvanese traveled to the Petersons' home, where he interviewed Kurrie Peterson. During his interview, Kurrie Peterson told Officer Calvanese that Saucier had loaned him $1,200, but that he had paid Saucier $800 on the previous Friday night after Saucier had arrived at the Petersons' home.
¶7. Officer Calvanese left the Petersons' home and drove to the home of Rudy Marin, where he arrived at about 6:15 o'clock that morning. When Officer Calvanese drove onto the driveway leading to Rudy Marin's home, he first observed a black motorcycle equipped with tires that had treads similar to tracks left by a motorcycle in the area where Patrick Peterson had discovered the incinerated pickup. Officer Calvanese interviewed Marin after he had advised him of his Miranda rights, the result of which was Marin's arrest by Officer Calvanese on the charge of arson of the pickup which belonged to Wendy Thomas. After Officer Calvanese arrested Marin, he placed Marin in a police car and drove to the site of a shallow grave to which Marin had directed him. Officer Calvanese and other deputies recovered Darius Saucier's body from the grave.
¶8. Later, a pathologist, Dr. Paul McGarry, conducted a post mortem examination of Saucier's corpse. He found "five gunshot wounds that involved the head, the neck, the chest, right arm, and the abdomen." Dr. McGarry opined that either of two wounds was fatal. The first was caused by a .25 caliber slug that entered the right side of Saucier's head above and behind his right ear, penetrated through Saucier's brain, and lodged under the skin on Saucier's left temple. The second fatal wound was caused by a .38 caliber slug that went through Saucier's "right arm, behind the bone of the arm and went into the chest passing through both lungs and the heart." Evidence adduced during the trial established that Saucier had a .38 caliber revolver and that Kurrie Peterson had a .25 caliber automatic pistol the night that Saucier was killed.
¶9. During this four-day trial, the State called twelve witnesses, and Peterson called nine witnesses. Because none of Peterson's six issues relate to the admission, sufficiency, or weight of the evidence, we forgo a detailed recitation of the testimony and evidence which both the State and Peterson adduced. The State's primary witness was Vanessa McClendon, who testified that Kurrie Peterson had told her earlier that day, Friday, August 4 that he intended to kill Saucier, who was his second cousin. She testified that after Saucier had brought the VCR to the Petersons' home for Josh Peterson to repair and had visited for some time, Kurrie Peterson, who did not own a vehicle, invited Saucier to take a ride with him in Wendy Thomas's pickup truck.
¶10. Peterson and Saucier left in the pickup with Saucier driving. Hardly had they left, when they returned only long enough for Peterson to exit the truck, run into his parents' home, exit equally quickly, get back into the pickup, and again leave with Saucier at the wheel. Ms. McClendon testified that within a very brief time after Saucier and Peterson left the second time, she heard four or five gunshots. The pickup returned within minutes after she heard the gunshots, only this time Peterson was driving it. According to McClendon, Peterson instructed her to get into the bed of the pickup while Peterson got a shovel from a nearby shed.
¶11. With McClendon squatting in the rear of the bed of the pickup, Peterson drove two or three miles from his parents' home into some woods, where he parked the truck. Not until then had McClendon seen Saucier's body on the passenger's side with its knees resting on the floorboard and its head against the passenger's door. Saucier weighed well over two hundred pounds, so Peterson had some difficulty removing the body from the passenger's side of the pickup. McClendon then described Peterson's dragging Saucier's body farther into the woods, where he found a "soft spot" and there dug a shallow grave. Peterson covered Saucier's remains, and McClendon gathered pine straw with which to cover it. Once they had finished their grisly task, Peterson drove the pickup with McClendon as a passenger back to his parents' home, where he rinsed his arms with water from an outdoor hose, and then went to bed with McClendon on a pallet which they had made on the floor of the Petersons' den. The State had granted Vanessa McClendon complete immunity from prosecution for ...