DATE OF JUDGMENT: 10/05/2012.
[Copyrighted Material Omitted]
COURT FROM WHICH APPEALED: PIKE COUNTY CIRCUIT COURT. TRIAL JUDGE: HON. DAVID H. STRONG, JR.
FOR APPELLANT: DENNIS CHARLES SWEET, IV, DENNIS C. SWEET, III, TERRIS CATON HARRIS.
FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BARBARA WAKELAND BYRD.
KING, JUSTICE. PIERCE, JUSTICE. RANDOLPH, PRESIDING JUSTICE, SPECIALLY CONCURRING. KING, JUSTICE, DISSENTING. DICKINSON, P.J., KITCHENS AND CHANDLER, JJ., JOIN THIS OPINION.
NATURE OF THE CASE: CRIMINAL - FELONY
[¶1] A jury convicted Kendrick Cowart of armed robbery and conspiracy, and acquitted him of murder and manslaughter. The trial court sentenced him to fifty-three years: forty-eight years for armed robbery and five years for conspiracy. Terrance London, Cowart's codefendant who pled guilty to armed robbery, conspiracy, and manslaughter, received a sentence of either forty or forty-five years. Cowart appeals, arguing that this Court should reverse his convictions because his statement to police should have been suppressed, photographs of the victim should have been suppressed, the jury was improperly instructed, and the verdicts are against the weight and sufficiency of the evidence. He also argues that his sentence was improper, as he was punished for exercising his right to trial by jury, he was punished for acquitted conduct, the sentence constitutes an illegal sentence not reasonably less than his life, the trial court failed to consider all relevant factors, and the sentence is cruel and unusual. Cowart's arguments regarding his convictions are without merit. For the reasons discussed, Cowart's convictions are affirmed.
FACTS AND PROCEDURAL HISTORY
[¶2] Late Friday, July 10, 2009, or early Saturday July 11, 2009, the Express Cash in Pike County, Mississippi, which was across the street from Sanderson Farms,
was robbed. During the robbery, Peggy Sue Wilkinson Carter was beaten. She was discovered at about 1:00 a.m. on Saturday, July 11. After she was taken to the hospital by ambulance, the crime scene was processed by Greg Nester of the Mississippi Bureau of Investigation (MBI). He collected multiple items for DNA and fingerprint testing, photographed the bloody scene, and preserved steps with bloody footprints on them, among other things.
[¶3] Carter succumbed to her injuries the next day, passing away on July 12, 2009. The cause of death, as determined by the forensic pathologist, was multiple blunt force injuries to the head. The forensic pathologist determined that the manner of death was homicide. No suspects immediately came to light, but after approximately eight months, investigators honed in on Terrence London, Tecory Wade, and Kendrick Cowart as suspects. London and Wade both eventually confessed to the crime, although London did not confess until after he learned that police had identified his DNA at the scene of the crime. Both men implicated Cowart.
[¶4] On March 19, 2011, the grand jury returned an indictment charging London and Cowart with depraved heart murder, armed robbery, and conspiracy to commit armed robbery. It charged Wade with accessory after the fact to murder and armed robbery. The State offered plea deals to both London and Wade. Wade pled guilty to accessory after the fact. Wade's plea deal gave him one year of jail time, one year of house arrest, and three years of probation. London pled guilty to manslaughter, armed robbery, and conspiracy to commit armed robbery, and he apparently received a sentence of forty or forty-five years: twenty-five or thirty years for armed robbery, five for conspiracy, and ten for manslaughter. The State opted to try Cowart on the charges of murder, armed robbery, and conspiracy to commit armed robbery.
[¶5] Prior to trial, Cowart filed a motion to suppress his videotaped statement, as well as his other statements, to the police, and a hearing was held on the motion.
Cowart was interviewed by Detective Haygood, an investigator with the Pike County Sheriff's Department, three times, once before he was under arrest, then when he was under arrest on April 14, 2010, and again on April 20, 2010. The April 20, 2010, interview was videotaped. Detective Fairburn also interviewed Cowart, on April 16, 2010. The State introduced the waiver of rights forms signed by Cowart. The waiver of rights form from the April 16, 2010, interview contains a notation that Cowart had finished McComb High School.
[¶6] The videotaped statement reveals that, midway through the interview, Cowart demanded to be taken back to his cell, clearly requested a lawyer, and handcuffed himself in preparation for being taken back to his cell. The trial court held, and the State conceded, that the portion of the videotaped statement after Cowart requested a lawyer was inadmissible; however, it held that the portion of Cowart's statement that occurred prior to his request for counsel was admissible. As to the initial waiver of rights, the videotape reveals that Detective Haygood began to read Cowart his Miranda rights, but that Cowart affirmatively stopped Detective Haygood from reading him his rights, indicating that he knew his rights and would sign the waiver. On the videotape, Cowart was coherent and appeared intelligent. Furthermore, at one point when Detective Haygood left the room, Cowart mumbled to himself that his mother told him not to talk to the police, indicating he knew and understood his rights. He then asserted his right to counsel midway through the interview.
[¶7] Trial began on September 24, 2012, and continued through September 28, 2012. Prior to opening statements, the court addressed the issue of certain photographs of Carter. Cowart objected to three of the photographs, all of those photographs showing Carter in the hospital. Cowart argued that the State did not need three photographs to show blunt force trauma to the head; it only needed one. Moreover, he objected to the photos having " all the tubes and hospital stuff on it and other things, which is prejudicial." The State argued that " one photograph is the right side of her head, one is the left. One is just a distant view, which shows a little more clear of her face. And that this is the top, her forehead. They're all different injuries, Your Honor. Those are the only photographs that we intend to introduce with this witness which shows the fatal injuries." The court found that under Rule 403, the photographs, even with the medical devices, were more probative than prejudicial in the case for depraved heart murder. However, the court limited the number of photographs of that nature to the three presented. The photographs were then admitted during the testimony of the responding police officer, Officer Moyo Brown.
[¶8] At trial, several witnesses testified. Wade testified that London called him the day of the murder and asked Wade for a ride, and that he then picked up London and Cowart. He drove them to a restaurant called Granny's, near Sanderson Farms. Later, London called and asked that Wade come back and pick London and Cowart up from the same place, and Wade complied. Wade testified that he dropped them off at London's house, and then London called Wade again and asked him to get a hotel room, which he did. Wade drove London and Cowart to a hotel room at " the Camellia" and left them there. Later that night, Wade went to Cowart's girlfriend's house and played video games with Cowart. The next morning, London
gave Wade $2,500 and said that he appreciated what Wade had done for him.
[¶9] London also testified. London claimed that he and Cowart spent approximately four or five hours together on July 10, 2009, prior to the robbery. He asserted that, during that time, Cowart used London's cellular phone to call Cowart's girlfriend, Demetrius Thompson. He stated that Wade drove him and Cowart to Granny's and that they walked through the woods to Express Cash. He testified that when Carter went outside, Cowart went behind the door with a stick, while London played lookout and warned Cowart about Carter's return. When Carter re-entered the building, London testified that Cowart hit her in the face with the stick, and when she tried to run away, he pulled her inside and hit her multiple times. She fell to the ground; meanwhile, London was robbing the business. According to London, at one point, Carter attempted to get up again, and Cowart hit her a few more times. London then suggested they tie her up, and London attempted to tie her up with both white tape and orange wire. London further testified that Carter's watch fell to the floor when he was trying to tape her wrists together. He testified that they put all the evidence in a bag, and Wade came and picked them up. He then testified that all three of them went to the Camellia Hotel and split up the money. He claimed that he received a little more than $3,000, Wade received close to $3,000, and Cowart received the majority of the money. He claimed they then discarded the evidence in the woods. After they heard that Carter had died, they went to an old school and all three of them burned the evidence.
[¶10] London admitted that he had previously been imprisoned on attempted burglary and conspiracy convictions, and that Wade was involved in the previous burglary attempt for which London was convicted. London admitted that he pled guilty to manslaughter, armed robbery, and conspiracy, and that he was sentenced to forty years. He also admitted that, before he confessed, he requested that the police charge him with manslaughter in exchange for his statement. Moreover, during cross-examination, Cowart asked London about his multiple inconsistent statements to police. He also cross-examined him regarding multiple inconsistencies between his testimony and that of Wade.
[¶11] Thompson, Cowart's girlfriend and the mother of his child, testified. She noted that Cowart had worked at Sanderson Farms, and that he did not go to work on July 10, 2009. She testified that she went to work at 2:00 or 3:00 p.m. on Friday, July 10, 2009. She testified that, around noon that day, she saw Cowart with London on London's porch. She also testified that she had a cell phone, and that Cowart did not, but that she took her phone with her to work on July 10, 2009. She stated that she woke up at around 2:00 a.m. on Saturday, July 11, 2009, and saw Cowart and Wade at her house. Thompson also testified regarding jailhouse letters she received from Cowart. The letters described money Cowart claimed to possess, and contained the following statements: 1) " [M]e and my mama paid 4 my lawyer. I spent my 401K money (6,000) my checks I had saved 4 my truck[; ]" 2) " I have save [sic] 6,000 dollars for that truck saved and I had to spend it all on my lawyer. Bay I got a little bit more and then I'm broke. Bay my stocks bonds are 4 you and Jr once they are sold[; ]" 3) " When I come home we can blow that stocks bonds money that I'm going to get. Bay it should be about 10 to 20,000."
[¶12] A witness for Cellular South testified to authenticate London's cellular telephone records. The records indicated that London and Wade called one another, and
most likely spoke to one another given the duration of the phone calls, multiple times on July 10 and July 11, 2009. The records indicate both that London called Wade and that Wade called London. The records also indicate that London's phone called Thompson's phone several times on July 10, and all the call durations were less than sixty seconds. The records indicated both that London's phone called Thompson's phone and that Thompson's phone called London's phone on July 11 and 12, 2009.
[¶13] Greg Nester, the crime scene examiner from the MBI who processed the crime scene, testified in detail. He described the crime scene, including blood splatters, blood stains, and location of items and stains; he authenticated crime scene photographs; he described his collection of materials for testing and identification; and he described how and what testing was performed on those materials. Bloody footprints were located on the top step of the stairs leading into Express Cash. The materials that Nester collected included the board of the top step with the bloody footwear impressions, a watch, the cashbox, some of the victim's clothing, masking tape allegedly used to bind the victim, a metal bar, and samples of blood. He also testified that law enforcement found finger impressions in blood that did not appear to have fingerprint identification ridge detail, but rather had a " material-type look," which indicated that gloved fingers may have made the impression.
[¶14] Detective Haygood testified regarding his investigation in the case. He testified that law enforcement officers were not able to determine an exact amount of money that was stolen. However, they were able to determine that the maximum amount possibly stolen would have been approximately $16,000. He further testified that " just inside the edge of the wood line behind" Express Cash, investigators found " a pair of white knit cotton gloves that appear[ed] to be similar to the gloves" used at Sanderson Farms by its employees. Several months after the incident, the sheriff's department received a tip, and based on that tip, the sheriff's office spoke with Cowart, Wade, London, and two other men in March 2010. At that point, the sheriff's office collected DNA oral swabs from all five individuals because the watch found at the scene of the crime contained DNA to which they wanted to compare the five individuals' DNA. The DNA on the watch was a partial profile match to London, but did not match Wade or Cowart. After receiving the results, London confessed to involvement in the crime and implicated Wade and Cowart. Detective Haygood then spoke with Wade, and testified that Wade's version of the events was generally consistent with London's version. Also based on the tip received, the sheriff's department went to the " old Taggert School," an abandoned school building in Summit, Mississippi, and found several burned or partially burned items, including Express Cash receipts, items that appeared to be part of a purse and personal items from a purse, another pair of white cotton gloves, a dark-colored shirt, and a small cooler. They
also found torn up and burned deposit and withdrawal receipts that were hidden in a cinderblock.
[¶15] Detective Haygood testified that, in furtherance of the investigation, he interviewed Cowart approximately three times and Detective Fairburn interviewed him once. The first interview lasted approximately thirty to forty-five minutes, and Cowart was not under arrest at that time. The second interview was on April 14, 2010, and was not recorded. At that interview, Cowart signed a Miranda rights form and a waiver of rights form, which Detective Haygood testified he explained to Cowart. During that interview, Cowart told Haygood that he had taken off July 10, 2009, from work at Sanderson Farms. Detective Fairburn interviewed Cowart again on April 16, 2010. He testified that Cowart told him that he was with Wade visiting friends from 6:30 or 7:00 p.m. on July 10, 2009, until about 9:30 p.m., when they went to Thompson's home until approximately 11:00 p.m. that night. At 11:00 p.m., Thompson arrived home and Thompson and Cowart went to bed. On April 20, 2010, Detective Haygood interviewed Cowart again, and in that interview, Cowart stated that he had seen London on July 11, 2009. Detective Haygood testified that in a prior interview, Cowart had stated that he had not seen London. Detective Haygood testified that Cowart signed another waiver of rights form before the April 20, 2010, interview. He testified that Cowart indicated that Detective Haygood did not need to go over the rights form, because he knew what it was and understood it.
[¶16] The State then introduced the video of the April 20, 2010, Cowart interview. Cowart's counsel indicated that he had no objection, then asked to have a bench conference. He asked where the video would stop, and the State indicated that the DVD would stop after Cowart mentioned an attorney and put his own handcuffs back on. The court then found that " with the objections previously noted at the [suppression] hearing, the DVD, as edited, will be admitted into evidence." The video shows Cowart explaining the events of July 10 and 11 and explaining when he saw London and Wade, as well as explaining the phone records and stating that he did not speak to London on July 10.
[¶17] Detective Haygood also described collecting shoes from Cowart and London in April 2010. He collected two pairs of Nike Air Force One tennis shoes (a very common shoe) belonging to Cowart, and a pair of Polo shoes belonging to London. One of the pairs of Cowart's shoes was excluded as being the source of either of the two bloody footprints, but the other pair was not. As to the pair of Cowart's shoes that was not excluded, the FBI shoeprint analyst testified that Cowart's shoe corresponded " in design and approximate physical size" to one of the bloody shoeprints, but that " the shoes are clearly more worn than the crime scene impression; " thus he could not determine " whether or not that shoe left the impression." However, the Polo shoes belonging to London were matched to one of the bloody shoeprints, with the FBI finding that London's shoes " could have" made the impression.
[¶18] Detective Haygood also testified that in June 2011, he spoke with Perry Lang, a man incarcerated in the Pike County jail. Lang and Cowart were in the same zone of the jail for less than two months in 2011. After Detective Haygood's interview with Lang, law enforcement officials began investigating a missing ring. Detective Fairburn, who accompanied Carter to the hospital, testified that he noticed severe damage to
Carter's right ring finger, but he did not recover any ring or see a ring on her.
[¶19] Detective Haygood further testified that they sent Carter's pants to be tested for DNA. He testified that the results came back positive for male DNA that did not match Cowart's DNA, nor did it match the DNA of any of the other suspects in the case.
[¶20] Detective Haygood also testified that he learned through his investigation that Wade and London had committed crimes, specifically burglaries, together in the past. He admitted that London's statements to police included London asking Detective Haygood how Haygood was going to help London if he confessed, and London requesting that Detective Haygood charge him with manslaughter instead of capital murder.
[¶21] The store manager of Speedy Cash, a payday loan company used by Cowart, testified that Cowart took out a loan on June 12, 2009, and apparently repaid it and took out another loan on June 27, 2009. He repaid that loan on July 11, 2009. Cowart did not take out another loan until September 14, 2009. She testified that Cowart would typically repay a loan and take out another one on the same day. She further testified that, in 2009, the only break in his taking out regular loans was from June 27, 2009 to September 14, 2009. However, on cross-examination based on the records introduced into evidence, she admitted that her characterization was incorrect and that there had been another break that year in Cowart taking out loans, from the end of January 2009 until the end of March 2009.
[¶22] Perry Lang testified that he was housed in the same zone at the Pike County Jail as Cowart, and that they became friends during the approximately seven months that they were housed in the same zone. Lang testified that Cowart told him that " they" went to steal money and that " we" (referring to Cowart and London) hit Carter because she was yelling. He also testified that Cowart told him that they took money and a ring, and that they hit Carter's hand until the ring came off. He further testified that Cowart informed him that they burned the evidence of the crime at a school. On cross-examination, Lang admitted that in his original statement, he wrote that he was Cowart's cellmate, but that Lang was never Cowart's cellmate. Lang also testified that he did not know any personal details regarding his " friend" Cowart, including whether he was married, whether he had children, and whether he had a job. Further, on cross-examination, Lang admitted to at least three convictions for sale of cocaine. He was also charged with selling cocaine for a fourth time in 2010, and the sentencing in that case was scheduled for the month after Cowart's trial. The State recommended a twelve year sentence, with six years suspended, to run concurrently with the sentence Lang was at that time serving.
[¶23] Theresa Brumfield, a close friend of Carter's, testified that Carter habitually and routinely wore a gold ring with a green stone on it. Carter wore the ring on her right hand, and Brumfield testified that, to her knowledge, the ring had not been located since the crime. She also testified that she had been present during searches for the ring. Melissa Carter, Carter's daughter, also testified regarding the ring. She testified that Carter wore the ring on her right ring finger every day. The State introduced photographs of Carter
wearing a gold ring with a green stone on her right ring finger. It also introduced a photograph of Carter's injured right ring finger after the robbery.
[¶24] Bo Scales performed DNA testing in the case, and he testified that his laboratory tested a pair of Carter's pants and her watch. He testified that his lab found male DNA on both Carter's watch and her pants. Cowart's DNA was excluded from the DNA found on the watch, but it appears that his DNA was never compared to the DNA found on the pants. This is distinguishable from Detective Haygood's testimony that the DNA from the pants was not a match to Cowart's.
[¶25] During jury instructions, Cowart objected " to the instruction of the form of the verdict, including manslaughter." The form of the verdict was instruction S-12. He then specifically mentioned jury instruction S-10, outlining the charges, as providing the definition of manslaughter, but it is unclear from the transcript whether he was objecting to the instruction S-10 (including a manslaughter charge), instruction S-12 (the form of the verdict allowing a manslaughter conviction), or both. Regardless, the trial court overruled the objection and allowed a manslaughter instruction. S-10 provided under Count One an instruction on murder, and then stated that:
Or, if you believe from the evidence in this case, beyond a reasonable doubt, that on or about July 11, 2009, in Pike County, Mississippi, the defendant, KENDRICK COWART, did wilfully, unlawfully and feloniously kill and slay one Peggy Sue Wilkinson Carter, a human being, in the heat of passion without malice and without premeditation, then you should find the said KENDRICK COWART guilty of manslaughter in Count One.
The form of the verdict, S-12, had an option to find Cowart guilty of manslaughter on Count One. During jury deliberations, the jury sent the court a note asking " What is the legal definition of manslaughter and the length of time served?" The court agreed that the jury was not properly instructed on manslaughter, because the crime was not defined. The court then answered the jury with: " You have heard all testimony, received all evidence, and been instructed as to the law. Please continue deliberating."
[¶26] The jury ultimately found Cowart not guilty of Count One, for murder or manslaughter. It found him guilty of armed robbery, but specifically declined to set his sentence at life. It also found him guilty of conspiracy to commit armed robbery.
[¶27] A sentencing hearing was held on October 5, 2012. Cowart declined to make a statement. His attorney explained that he had advised Cowart not to make a statement because of the legal situation and any appeals, and emphasized that Cowart understood the seriousness of the situation and that he wasn't declining to make a statement out of any disrespect for the system. At sentencing, a pastor and Cowart's mother testified on his behalf. His attorney pointed out that Cowart had never been in serious trouble with the law, that he had held a job for eight or nine years (from the time he graduated high school until being arrested for this crime), and that he was a good employee. The State argued that " [d]isregarding whether the jury found him guilty of murder or not, they did find him guilty of the armed robbery at which this occurred. The death ...