The opinion of the court was delivered by: Sullivan, Presiding Justice
DATE OF JUDGMENT: 07/30/1996
TRIAL JUDGE: HON. JOHN M. MONTGOMERY
COURT FROM WHICH APPEALED: OKTIBBEHA COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - DEATH PENALTY - DIRECT APPEAL
MOTION FOR REHEARING FILED:
¶1. On January 18, 1993, Martin Luther King, Jr. Day, at approximately 8:30 p.m., some children noticed the bodies of Emmoline Jimmerson and Alberta Jordan lying on the floor in their apartment at Brooksville Gardens in Starkville, Mississippi. Ms. Jimmerson, who was sixty years old, was the daughter of Ms. Jordan, who was ninety years old. One of the boys kicked the door open, and Nancy Elliott, Ms. Jimmerson's niece, entered the apartment to find the bodies of Ms. Jimmerson and Ms. Jordan lying in pools of blood.
¶2. The last time that witnesses were able to verify that the women were alive was around 5:30 to 5:45 p.m., when Ms. Jimmerson left Vanessa Williams's apartment, went downstairs, and spoke to Ms. Elliott on the telephone. County Medical Examiner Orville Musgrove estimated the time of death to be approximately 8:00 p.m, a Conclusion disputed by Officer Stanley Sisk with the Mississippi Highway Patrol and Officer Jeff Curtis with the Starkville Police Department.
¶3. Both women had been severely beaten about the head with an iron discovered on the scene, and each had sustained slash wounds to the front of the neck which went all the way to the backbone. Officers Sisk and Curtis investigated the crime scene. In addition to the blood-covered iron, they found a bloody kitchen knife wrapped in a curtain on a loveseat in the dining room area. There were no identifiable prints on either weapon, and the only identified print taken from the apartment belonged to Ms. Jordan. Dr. Steven Hayne, who performed the autopsies in this case, testified that the cause of death in both women was the slash wounds, which resulted in severe external bleeding and inhalation of blood. Dr. Hayne stated that the victims essentially drowned in their own blood.
¶4. Kevin Lucious testified that he saw Willie "Fly" Manning at Brooksville Gardens around 6:30 p.m. on the day of the murders. Manning was tipsy from drinking beer, and the two men had a conversation during which Manning mentioned that he needed some money. After their conversation, Lucious went back to his apartment and saw Manning go to Ms. Jimmerson and Ms. Jordan's apartment. Lucious watched Manning knock on the door, and when one of the women opened the door, he pushed the door open, went in and closed the door behind him. Lucious never saw Manning leave within the next twenty to forty-five minutes.
¶5. A couple of weeks after the murders, Lucious saw Manning at Club Essex. Manning had been drinking and said that if he'd known "they" only had twelve dollars, he wouldn't have done anything to "them." Manning's brother Marshon told him to shut up, and Manning told Marshon that he'd kill him, too. Manning then described pushing his way into the "old ladies'" apartment and said that when he went in one of them was in the living room and the other was in the back room, but came up front. Marshon told him to shut up again, which Manning did. Two or three days after the incident at Club Essex, Lucious saw Manning and Marshon at Brooksville Gardens again. Manning was waving a .25 automatic around "saying that it ain't nothing to kill somebody and you know, sometimes you have to kill people in order to get your respect that you deserve." Herbert Ashford testified that two or three weeks after the murders, he overheard Manning tell Lucious that he should have done more than he did to the ladies.
¶6. Manning gave a statement to police on March 10, 1994, in which he denied being at Brooksville Gardens on the day of the murders. He claimed that he went to town with his mother intending to march in the Martin Luther King, Jr. Day parade, but decided to go home when it started raining between 10:00 a.m. and noon. Manning also said that he had known the two old ladies since he was fourteen and did not know anyone who would want to hurt them. Manning's statement was refuted by the testimony of Kevin Lucious, Herbert Ashford, Nancy Elliott, Barbara Duck, and Larry Harris, who were all able to place Manning at Brooksville Gardens on January 18, 1993.
¶7. Manning's defense theory was that Emmoline Jimmerson's son, James Lee Jimmerson, was the actual perpetrator in this case. Jimmerson had been in an argument over the telephone with his mother on the morning of the murders. Based upon Dr. Hayne's testimony that one of the slash wounds on Ms. Jordan's neck was cut from her right to her left with a significant amount of force, the defense proposed that Jimmerson, being left-handed, was more likely to have committed the murders than Manning, who is right-handed. Defense attorney Mark Williamson's theory was that the perpetrator stood behind the victims and cut their throats as they lay on the floor. However, as the prosecutor pointed out during closing argument, Dr. Hayne was unable to determine whether the perpetrator stood behind, in front of, or to the side of the victims to slash their throats, and it would be possible for either a right-handed or left-handed person to inflict the wound in question. The defense also relied on the inconsistent statements of Shantay Lee, Jimmerson's girlfriend, regarding Jimmerson's whereabouts on the day in question. Police initially investigated Jimmerson as a suspect in the case, but found no evidence connecting him to the murders. Everyone they interviewed confirmed Jimmerson's alibi that he was at home at the time of the murders. Eventually, the focus of the investigation shifted to Manning, who was indicted in the Circuit Court of Oktibbeha County on two counts of capital murder.
¶8. Based upon the above evidence, the jury returned a verdict of guilty on both counts of capital murder on July 24, 1996. The sentencing phase of the trial was held on July 25, 1996, and the jury voted that the death penalty should be imposed in both counts. On July 30, 1996, Circuit Court Judge John M. Montgomery entered his orders of conviction and sentence, ordering that Manning be put to death by lethal injection on September 5, 1996. Manning perfected his appeal to this Court and assigns as error the following:
"I. THE CASE MUST BE REVERSED AND RENDERED SINCE THE EVIDENCE DOES NOT EXCLUDE THE REASONABLE POSSIBILITY THAT WILLIE MANNING IS INNOCENT OF THE CRIMES. "II. IN A CASE THAT HINGED TOTALLY ON TWO HIGHLY QUESTIONABLE SNITCHES, THE JURY SHOULD HAVE BEEN INSTRUCTED TO VIEW THE TESTIMONY OF INFORMANTS WITH CAUTION. "III. WHERE WILLIE MANNING'S OTHER DEATH SENTENCE WAS COMMON KNOWLEDGE IN THE COMMUNITY, IT WAS ERROR TO REFUSE TO ALLOW THE DEFENSE TO VOIR DIRE MEANINGFULLY ON THIS CRITICAL ISSUE. "IV. WILLIE MANNING WAS DENIED HIS RIGHT TO EFFECTIVE COUNSEL AT THE PENALTY PHASE OF HIS TRIAL. "V. THE FAILURE TO GIVE A CIRCUMSTANTIAL EVIDENCE INSTRUCTION VIOLATED WILLIE MANNING'S RIGHTS. "VI. WILLIE MANNING WAS DENIED A FAIR TRIAL BECAUSE THE STATE ONCE AGAIN ABUSED ITS PEREMPTORY CHALLENGES TO STRIKE BLACK JURORS IN VIOLATION OF BATSON v. KENTUCKY. "VII. THE GRUESOME PHOTOGRAPHS IN THIS CASE NOT ONLY PREJUDICED WILLIE MANNING, BUT RENDERED HIS JURY PARTIAL. "VIII.WITNESSES WHO TESTIFIED FOR THE STATE SHOULD NOT HAVE BEEN ALLOWED TO SPECULATE OR OFFER OPINIONS REGARDING ISSUES WITHIN THE JURY'S SOLE PREROGATIVE. "IX. THE TRIAL COURT ERRED IN LIMITING DEFENSE COUNSEL'S INQUIRY CONCERNING THE SCOPE OF THE POLICE INVESTIGATION INTO THIS OFFENSE. "X. THE PROSECUTOR'S MISCONDUCT DURING THE COURSE OF CLOSING ARGUMENT VIOLATED MANNING'S RIGHT TO A FAIR TRIAL AND WARRANTS REVERSAL. "XI. THE AGGRAVATING CIRCUMSTANCES IN THIS CASE WERE IMPROPERLY APPLIED. "XII. THE SENTENCING INSTRUCTIONS INADEQUATELY INSTRUCTED THE JURY ON THE MANNER IN WHICH THEY SHOULD CONSIDER MITIGATING AND AGGRAVATING CIRCUMSTANCES. "XIII.THE DEFENSE WAS DENIED THE RIGHT TO MEANINGFUL INVESTIGATIVE ASSISTANCE. "XIV. VARIOUS MOTIONS SHOULD HAVE BEEN GRANTED PRIOR TO TRIAL. "XV. THE ACCUMULATION OF ERROR IN THIS CASE REQUIRES THAT THE DEATH SENTENCE BE SET ASIDE."
¶9. We find no errors requiring reversal of Manning's convictions in this case. However, because the trial court erred in overruling Manning's Batson objection to the second venire, we must remand to the Oktibbeha County Circuit Court for the sole purpose of conducting a Batson hearing.
THE CASE MUST BE REVERSED AND RENDERED SINCE THE EVIDENCE DOES NOT EXCLUDE THE REASONABLE POSSIBILITY THAT WILLIE MANNING IS INNOCENT OF THE CRIMES.
¶10. Manning argues that the trial court erred in denying his motions for a directed verdict, because the evidence was insufficient to support the verdict. Specifically he points to the inconsistency and lack of credibility of the State's key witnesses, Kevin Lucious and Herbert Ashford, and the lack of evidence supporting the underlying felony of robbery. Manning requests that this Court reverse his convictions and discharge him.
"When on appeal one convicted of a criminal offense challenges the legal sufficiency of the evidence, our authority to interfere with the jury's verdict is quite limited. We proceed by considering all of the evidence--not just that supporting the case for the prosecution--in the light most consistent with the verdict. We give [the] prosecution the benefit of all favorable inferences that may reasonably be drawn from the evidence. If the facts and inferences so considered point in favor of the accused with sufficient force that reasonable men could not have found beyond a reasonable doubt that he was guilty, reversal and discharge are required. On the other hand, if there is in the record substantial evidence of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different Conclusions, the verdict of guilty is thus placed beyond our authority to disturb." McFee v. State, 511 So. 2d 130, 133-34 (Miss. 1987).
This Court has applied the same standard of review in capital murder cases. Underwood v. State, 708 So. 2d 18, 34-35 (Miss. 1998); Lester v. State, 692 So. 2d 755, 797 (Miss. 1997), overruled on other grounds, Weatherspoon v. State, No. 97-KA-00019-SCT, 1999 WL 12828 (Miss. Jan. 14, 1999); Taylor v. State, 672 So. 2d 1246, 1255 (Miss. 1996); Holly v. State, 671 So. 2d 32, 40 (Miss. 1996); Carr v. State, 655 So. 2d 824, 837 (Miss. 1995).
¶11. There was sufficient evidence to support the jury's verdict in this case. Kevin Lucious testified that he saw Manning enter the victims' apartment after a 6:30 conversation during which Manning commented that he needed some money. Other witnesses were able to place Manning at Brooksville Gardens during the late afternoon and evening of January 18, 1993. Larry Harris, the last witness to see Manning at the apartments that evening, testified that he saw Manning sitting on a balcony apartment at approximately 7:20 p.m. The bodies were discovered at approximately 8:30. Finally, both Lucious and Herbert Ashford testified regarding Manning's incriminating statements in which he described how he forced his way into the victims' apartment, expressed regret for having hurt the women for so little money, and stated that "it ain't nothing to kill somebody" and that he should have done more to the old ladies. These confessions and eyewitness accounts were at least ample evidence for reasonable jurors to differ on the issue of Manning's guilt.
¶12. Manning maintains that his convictions must be overturned, because "the inconsistent testimony of two convicts was insufficient to support the verdict." "It is the duty of the jury to best Judge the credibility and weight of the witnesses in court." Hill v. State, 659 So. 2d 547, 551 (Miss. 1994). The jury was aware that Kevin Lucious had a prior conviction for robbery and was at the time of trial charged with first degree murder, first degree assault, and two counts of armed criminal action arising out of a single incident in Missouri. Herbert Ashford similarly testified that he was currently in federal prison in Florida on a gun charge related to drug trafficking. Although Lucious admitted that he initially did not tell police what he knew about the murders, he explained in his statement and at trial that he did not come forward until his grandmother urged him to tell the truth in a letter delivered by Oktibbeha County Sheriff Dolph Bryan. He had not wanted to get involved because of his concern for his baby and his baby's mother. Moreover, the fact remains that neither Lucious nor Ashford received any leniency in exchange for their testimony at Manning's trial. Ashford was only months away from release at the time of Manning's trial. The jury was fully informed on all issues related to these two witnesses' credibility. Giving the prosecution the benefit of all favorable inferences, we find that there was substantial credible evidence to support the jury's verdict.
¶13. Manning's contention that the evidence did not support the underlying felony of robbery is also without merit. Emma Jean Harris gave Ms. Jimmerson and Ms. Jordan each a ten dollar bill on January 16. Ms. Harris testified that Ms. Jimmerson kept her money in a pocketbook, and Ms. Jordan kept her money tied in a handkerchief pinned to her bra. Two days later, when the authorities investigated the crime scene, they found a handkerchief in a puddle of blood in front of the couch. Ms. Harris identified the handkerchief as the one Ms. Jordan used to secure her money. Investigators also discovered Ms. Jimmerson's billfold and change purse underneath her mattress, which had been left crooked. No money was found in the apartment. Finally, Lucious testified that Manning commented on the small amount of money he was able to get from the women-only twelve dollars. The prosecution met its burden of proof to show that Manning killed Emmoline Jimmerson and Alberta Jordan during the commission of robbery.
IN A CASE THAT HINGED TOTALLY ON TWO HIGHLY QUESTIONABLE SNITCHES, THE JURY SHOULD HAVE BEEN INSTRUCTED TO VIEW THE TESTIMONY OF INFORMANTS WITH CAUTION.
¶14. Judge Montgomery refused Manning's Instructions DGP-7 and DGP-8 relating to the testimony of Kevin Lucious and Herbert Ashford, because the instructions were accomplice cautionary instructions, and neither Lucious nor Ashford was an accomplice in this case. The refused instructions read, "[Herbert Ashford/Kevin Lucious] has testified in this case and his testimony is to be considered and weighed with great care and caution. In making this determination you may consider this witness' [sic] bias or interest. You may give it such weight and credit as you deem it is entitled."
¶15. Manning argues that the unreliability of these informants' testimony warranted the refused instructions. He cites Foster v. State, 508 So. 2d 1111, 1115 (Miss. 1987), to support his theory that careful instructions should be given to aid the jury in weighing the suspect testimony of snitches due to their bias resulting from "preferential treatment." In Foster, we held that questions about the details of a witness's criminal participation were improper, but "questions about preferential treatment constituted a legitimate attempt to show the witness's bias or motive in testifying." Id. In this case, the jury heard evidence of Lucious and Ashford's criminal records. Manning was allowed to question fully both Lucious and Ashford about any potential preferential treatment which they might be receiving in exchange for their testimony. Neither witness made any deals with law enforcement or prosecutors regarding their testimony at Manning's trial, although Ashford's letters to Captain Lindley indicated that he had initially hoped Lindley would be able to help him. This questioning satisfied the dictates of Foster.
¶16. No evidence was presented implicating either Lucious or Ashford in the murders of Emmoline Jimmerson and Alberta Jordan. Where, as here, the witness was not charged as an accomplice, and no evidence was presented indicating that he should have been charged, the cautionary instruction is not necessary. Bell v. State, No. 93-DP-00189, 1998 WL 334709, *10 (Miss. June 25, 1998). Instructions DGP-7 and DGP-8 were properly excluded.
WHERE WILLIE MANNING'S OTHER DEATH SENTENCE WAS COMMON KNOWLEDGE IN THE COMMUNITY, IT WAS ERROR TO REFUSE TO ALLOW THE DEFENSE TO VOIR DIRE MEANINGFULLY ON THIS CRITICAL ISSUE.
A. The Defense Was Not Able to Explore Whether Eight Jurors' Knowledge of His Prior Convictions and Death Sentences Would Truly Make it Impossible for Them to Sit Fairly in Judgment on Him.
¶17. On appeal, Manning complains that he should have been allowed to conduct individual voir dire regarding the jurors' knowledge of his previous convictions and death sentences for murdering two Mississippi State students, recently affirmed by this Court in Manning v. State, No. 95-DP-00066-SCT, 1998 WL 334719 (Miss. June 25, 1998) (Manning I), overruled on other grounds, Weatherspoon v. State, No. 97-KA-00019-SCT, 1999 WL 12828 (Miss. Jan. 14, 1999). Manning filed a pre-trial motion requesting individual sequestered voir dire based in part upon pre-trial publicity about the case. After hearing arguments from both sides at the April 21, 1995, motions hearing, Judge Montgomery decided to allow individual voir dire solely on the death qualification question. Manning argues that merely questioning the entire panel regarding whether they had heard about Manning's prior involvement in another case was insufficient to ensure that an impartial jury was impaneled in this case.
¶18. "Individual jurors may be examined only when proper to inquire as to answers given or for other good cause allowed by the court." URCCC 3.05. "[T]his is a matter within the sound discretion of the trial Judge. While not requiring the use of sequestered voir dire, Rule 5.02 of the Uniform Criminal Rules of Circuit Court Practice does, within the court's discretion, allow it, but only on good cause shown." Bell, 1998 WL 334709 at *5.*fn1
"We do not read Rule 5.02 as prohibiting a circuit court from utilizing individualized, sequestered voir dire. In its discretion, the court may allow it." Jones v. State, 461 So. 2d 686, 692 (Miss.1984). We have held, however, that Rule 5.02 does not require more than by its terms it requires. White v. State, 532 So. 2d 1207, 1218 (Miss.1988); Lutes v. State, 517 So. 2d 541, 547 (Miss.1987); West v. State, 463 So. 2d 1048, 1054 (Miss.1985); see Gilliard v. State, 462 So. 2d 710, 714 (Miss.1985).
Russell v. State, 607 So. 2d 1107, 1110 (Miss. 1992). "Appellant's contention that he should have been allowed to individually voir dire jurors out of the presence of the others is not supported by the decisions of this Court. The procedure followed by the trial court has been repeatedly upheld." White v. State, 532 So. 2d 1207, 1218 (Miss. 1988) (citing Billiot v. State, 454 So. 2d 445 (Miss.1984); Speagle v. State, 390 So. 2d 990 (Miss.1980); Gray v. State 351 So. 2d 1342 (Miss.1977); Peters v. State, 314 So. 2d 724 (Miss.1975)). In both McFarland v. State, 707 So. 2d 166 (Miss. 1997), and Carr v. State, 655 So. 2d 824 (Miss. 1995), this Court approved the denial of individual sequestered voir dire where the entire venire was questioned about pretrial publicity, and those jurors who stated that they could not be fair and impartial were excused. McFarland, 707 So. 2d at 170; Carr, 655 So. 2d at 842-43.
¶19. Unfortunately, due to the highly publicized nature of Manning's first capital murder trial, it would likely have been impossible for the trial court to seat a jury of individuals who were unaware of the prior convictions, particularly in Oktibbeha County where Manning committed all four of his homicides. Here, of the twenty-eight members of the first venire who had heard about Manning's prior case, all but two stated that they would be able to set aside what they knew and be fair and impartial jurors. The other two, Juror # 20 David Jones and Juror # 35 Mildred Horton, who both stated that they had already formed an opinion regarding the case, were excused for cause. All ten of the jurors on the second venire who had heard something about Manning's involvement in another case stated that they could set aside any prior knowledge and be fair and impartial jurors. Eight of the impaneled jurors and both alternates informed the court that they had heard Manning's name in connection with another case, but assured the court that they could still be fair and impartial. It is doubtful that individual voir dire would have encouraged any of the jurors to admit that they would be partial or unfair. There is no evidence before us indicating that the jury empaneled in this case was not fair and impartial, and Manning has failed to show any prejudice resulting from the trial court's conduction of voir dire. As a result, we find that the general voir dire conducted by Judge Montgomery on the issue of pre-trial publicity was sufficient to ensure a fair and impartial jury in this case. See Speagle, 390 So. 2d at 993-94.
B. The Trial Court Rushed and Hurried the Voir Dire Examination in a Manner That Is Incompatible with a Serious Case Such as This.
C. Jurors Were Excused in Violation of Witherspoon v. Illinois.
¶20. Manning contends that Judge Montgomery needlessly rushed individual voir dire on the jurors' death penalty views. He complains that the jurors whom he was not permitted to throughly question were, by definition, excluded in violation of Witherspoon v. Illinois, 391 U.S. 510 (1968). In Witherspoon, the United States Supreme Court held that "a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction." Id. at 522 (footnote omitted). The Supreme Court clarified its Witherspoon decision in Wainwright v. Witt, 469 U.S. 412 (1985), setting out the standard for determining when it is proper to exclude a juror for cause based upon his views on the death penalty. "That ...