JOE H. COTTON a/k/a JOE COTTON a/k/a JOE HENRY COTTON
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 04/11/2012.
COURT FROM WHICH APPEALED: TUNICA COUNTY CIRCUIT COURT. TRIAL JUDGE: HON. CHARLES E. WEBSTER. TRIAL COURT ATTORNEYS: BRENDA MITCHELL, ROSHARWIN MITCHELL, WILBERT L. JOHNSON.
FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: GEORGE T. HOLMES, WILBERT L. JOHNSON.
FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BILLY L. GORE.
LAMAR, JUSTICE, FOR THE COURT. WALLER, C.J., RANDOLPH, P.J., PIERCE AND COLEMAN, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., CHANDLER AND KING, JJ.
ON WRIT OF CERTIORARI
NATURE OF THE CASE: CRIMINAL - FELONY
¶1. Joe Cotton was convicted of murder in the death of Fannie Lee Burks. He appeals from his conviction, challenging the sufficiency and the weight of the evidence. Finding no error, we affirm Cotton's conviction and sentence.
FACTS AND PROCEDURAL HISTORY
¶2. The following facts are taken from the Court of Appeals' opinion:
On April 9, 1995, [Fannie Lee] Burks's body was found in her apartment in Tunica, Mississippi. She had been shot three times, and some of her jewelry was missing. It was determined her death occurred after 12:01 a.m. There was no indication of forced entry, no eyewitnesses to the crime, and no weapon recovered.
At the time of the original investigation, fingernail scrapings were taken as evidence. In 2008, the cold case was reviewed by the Tunica County Sheriff's Office, and the fingernail scrapings, which had been stored in the property room of the Tunica County Sheriff's Office, were sent for DNA analysis. A DNA analyst found the right-hand fingernail scrapings contained DNA, which can remain present " for years." The DNA profile was found to be " a mixture of more than one person including an unknown male[,] and Fannie Burks could not be excluded as a contributor" to the sample. The results were compared to DNA profiles in a national database, and Cotton was found to be a potential match. The sheriff's office obtained an oral swab from Cotton through a search warrant and compared it to the DNA analysis results. Since the initial DNA analysis used all of the scrapings sample, there was no DNA sample left to re-analyzed. The DNA profile contained in the fingernail scrapings was found to be consistent with that of Cotton.
Prior to her death, Burks had worked as a cook at Nickson's Café (a/k/a Nickson's Disco Club) in downtown Tunica. Burks's good friend, Ms. Willie Nickson, testified at trial that on the afternoon of April 8, 1995, she stopped by to see Burks at the café . They made plans to eat lunch the next day. As they spoke, Nickson noticed Burks was putting rings on her fingers. Nickson also helped Burks put on a herringbone necklace. The next day, after Nickson called Burks's apartment and got no answer, Nickson and a friend went to Burks's apartment. Burks's automobile was in the parking lot, but Burks did not answer their knocks on the door and window. The apartment manager unlocked the door, and Burks's body was discovered. According to Nickson, Burks was
wearing the same dress as the day before, but she did not have on the necklace, and all but one ring was missing from her fingers.
Deputy Sheriff Marco Sykes testified that when he was called to the scene of the murder, he found Burks's body lying face down on the floor of her apartment. The television was on, but the telephone was off the hook. An empty jewelry box was found in Burks's bedroom at the foot of her bed. Sykes stated " [i]t appeared that someone had been in the attic." The attic door in the hallway was pushed up, and there was a chair and several pillows underneath the attic stair opening. Insulation that matched the insulation in the attic was on the kitchen floor, and pieces of hair were found in the kitchen sink. There was no indication of forced entry.
Dr. Steven Hayne performed Burks's autopsy. He took fingernail scrapings from Burks's right and left hands and submitted this evidence to investigators. He noted that Burks was wearing only one earring, and no other jewelry was on her body. Dr. Hayne testified at trial that the three gunshot wounds--one to her front abdomen, one to her left flank, and one to the back of her head--were all close contact wounds and were all lethal.
Sheriff Kalvin Hamp testified that . . . [i]n [hi]s initial statement to police, [Cotton] repeatedly denied having seen Burks the night of her murder; however, he later admitted that he had been to the club where Burks worked on April 8, 1995, and Burks had waited on him. He bought a sandwich, which Burks passed to him in a brown paper bag . . . . Cotton also told investigators that he had been to Burks's apartment on two separate undisclosed prior dates--to return some stolen property of hers and to help move furniture into her apartment. In addition, Cotton's mother lived in the same apartment complex as Burks.
The only direct evidence tying Cotton to Burks's murder was the presence of his DNA under her right-hand fingernail scrapings. William Jones, a forensic scientist qualified as an expert in the field of forensic DNA analysis, testified that Cotton could not be excluded as a contributor of DNA found in fingernail scrapings taken from Burks during her autopsy. Jones tested thirteen genetic markers from the right-fingernail scrapings of Burks. The genetic profile excluded " greater than 99.99 percent of the Caucasian, African American and Hispanic populations." The scrapings were a mixture of at least two individuals, one of whom was a male, and that mixture had a DNA profile consistent with Cotton, i.e., he could not be excluded as a contributor. Nor could Burks be excluded as a contributor to the mixture. Jones testified that, in his opinion, the DNA was a mixture of Cotton's and Burks's, to " a very high degree of [scientific] certainty." Jones admitted that DNA could be transferred between individuals by casual contact. Cotton did not testify at trial; nor did he put on any witnesses in his defense. After the three-day trial, the jury returned a guilty verdict [and] [t]he trial court sentenced Cotton to life [imprisonment]. [Cotton] filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, which was denied.
Cotton timely appealed his conviction, challenging the sufficiency and the weight of the evidence. The Court of Appeals affirmed, and this Court granted Cotton's petition for certiorari. Finding no error, we affirm Cotton's conviction and sentence.
LAW AND ANALYSIS
I. Sufficiency of the Evidence