JAMES COBB HUTTO, III a/k/a JAMES C. HUTTO, III a/k/a JAMES COBB HUTTO a/k/a JAMES C. HUTTO a/k/a JAMES HUTTO, III a/k/a JAMES HUTTO a/k/a JAMIE HUTTO a/k/a THE HITMAN
STATE OF MISSISSIPPI
OF JUDGMENT: 05/28/2013
COUNTY CIRCUIT COURT TRIAL JUDGE: HON. WILLIAM A. GOWAN, JR.
ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER
BY: ANDRE DeGRUY JOHN HELMERT
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
LADONNA C. HOLLAND JASON L. DAVIS
A jury convicted James Cobb Hutto III of capital murder for
the death of Ethel W. Simpson. The jury also found Hutto
should suffer death. Hutto raises fourteen assignments of
error on appeal. Finding no reversible error, we affirm
Hutto's conviction and sentence.
OF FACTS AND PROCEDURE
This case concerns the killing of eighty-one-year-old Ethel
W. Simpson. The following facts were established at trial.
On September 8, 2010, James Cobb Hutto III, a Jasper,
Alabama, resident, contacted his ex-girlfriend, Sherri
Lawson. Hutto told Lawson he wanted to see her and, on
Friday, September 10, he purchased a used Camaro and drove to
Clinton, Mississippi. Hutto and Lawson stayed together that
weekend at the Comfort Inn in Clinton. At some point that
weekend, Hutto's Camaro broke down and was towed to a
local repair shop.
On Monday, September 13, Hutto and Lawson parted ways after
spending the weekend together. According to Lawson, Hutto
indicated that he was trying to get back to Alabama. He also
gave Lawson the paperwork to repair the broken Camaro in case
she wanted to keep the car for herself. Later that afternoon,
Hutto went to the Baptist Healthplex on the Mississippi
College Campus in Clinton, located approximately half a mile
away from the Comfort Inn. Several employees and patrons of
the Healthplex encountered Hutto that day, including Ethel W.
While at the Healthplex, Hutto befriended Simpson. Simpson
drove Hutto back to the Comfort Inn and then drove home. And
later that night, she went back to the hotel and picked up
Hutto to socialize. The two took Simpson's silver
Mercedes to the Riverwalk casino in Vicksburg, Mississippi,
arriving at 8:45 p.m. Hutto and Simpson spent a few hours
gambling, and Simpson bought dinner for the two at a
restaurant inside the casino. Hutto and Simpson left the
casino together at 11:24 p.m.
About an hour after leaving the casino, Hutto arrived back at
the Comfort Inn alone with Simpson's Mercedes. He went to
his room, emerged wearing different clothes, and left the
Comfort Inn at approximately 12:51 a.m., seven minutes after
arriving back at the hotel. Hutto then drove Simpson's
Mercedes back to Vicksburg, where he gambled at the Ameristar
casino. At 2:11 a.m., he left the casino, and, according to
witness testimony, a tag-reading camera on Interstate 20 in
Rankin County captured an image of Simpson's car
traveling east toward Alabama just after 3:00 a.m.
On the morning of September 14, 2010, Thomas Winstead,
Simpson's brother and roommate, alerted Simpson's son
that Simpson had not returned home the night before. Ken
Simpson attempted to inquire into his mother's
whereabouts, and when she could not be found, he contacted
the Clinton Police Department. During the investigation into
Simpson's whereabouts, law-enforcement officials
determined that Hutto was the last person seen with Simpson.
On September 17, 2010, a member of the Auburn (Alabama)
Police Department spotted Hutto driving Simpson's silver
Mercedes. Law-enforcement officials stopped Hutto and took
him into custody in Lee County, Alabama.
On the same day as Hutto's arrest, Simpson's body was
found on a hog farm in Edwards, Mississippi, just off
Interstate 20. Edwards is located in Hinds County and is
approximately halfway between Clinton and Vicksburg. An empty
hog-feed container partially covered Simpson's body.
Simpson died from severe injuries to her head and neck, and
forensic testing later identified her blood on the Nike
flip-flops that Hutto wore on the night of Simpson's
After Hutto's arrest, law-enforcement officials from
Alabama interviewed him on four separate occasions. All four
of these interrogations occurred in Alabama. Hutto told
law-enforcement officials that he and Simpson had gone to the
casino on the night of September 13, but he claimed that a
man named Mark Cox had killed Simpson. Law-enforcement
officials later determined that Mark Cox, an Alabama
resident, was in Alabama at the time of Simpson's
On March 1, 2011, a Hinds County grand jury indicted Hutto
for capital murder while engaged in the commission of a
robbery. Hutto was appointed counsel and, in May 2011, he
entered a plea of "not guilty." The trial judge
held numerous pretrial hearings, including a suppression
hearing and a competency hearing. After the competency
hearing, the trial judge determined Hutto to be competent to
stand trial. Hutto also rejected a plea deal for life in
prison without the possibility of parole, and the State
sought the death penalty.
During the guilt phase of trial, the State called numerous
witnesses, including Mark Cox. Cox testified that, prior to
the trial, he had never been to Hinds County, Mississippi.
Cox further testified that he met Hutto for the first time on
the morning of September 17, 2010-the same day
law-enforcement officials arrested Hutto-when the two
discussed Cox selling Hutto some land. The State also
introduced redacted portions of all four interrogations
law-enforcement officials conducted with Hutto in
Alabama. At the guilt phase, Hutto presented no
defense and exhibited crude behavior in the courtroom. The
jury convicted him of capital murder, with robbery of the
Mercedes as the underlying crime.
At the penalty phase, the State submitted three aggravating
circumstances to the jury: the "prior violent
felony" aggravator, the "heinous, atrocious, or
cruel" aggravator, and the "capital offense
committed in the commission of a robbery" aggravator. In
mitigation, the jury heard testimony from Hutto's
ex-wife, mother, and two sons, as well as testimony from a
social worker. The jury found Hutto should suffer death.
Hutto appeals, raising fourteen assignments of error, which
we have restated and re-ordered for clarity.
"This Court reviews an appeal from a capital-murder
conviction and death sentence under heightened
scrutiny." Ronk v. State, 172 So.3d 1112, 1125
and Guilt Stage
. Whether the trial court erred when it
determined Hutto was competent to stand
trial and whether the trial court erred in not
ordering further mental evaluation mid-trial.
After a competency hearing, the trial judge determined Hutto
to be competent to stand trial. On appeal, Hutto argues: (1)
that the trial judge erred when he placed the burden on him
to prove his incompetence; (2) that the overwhelming weight
of the evidence showed he was incompetent to stand trial; and
(3) that the trial judge committed reversible error by
failing to make specific findings of fact for each factor to
determine a defendant's competence.
Whether the trial judge erred when he placed the
burden on Hutto to prove he was incompetent
to stand trial.
Hutto argues that this Court's decision in McGinnis
v. State, 133 So.2d 399 (Miss. 1961), required the
prosecution to prove Hutto was competent to stand trial. He
claims that McGinnis stands for the proposition
that, once an order requiring a mental evaluation is entered,
"the burden shifts to the State to prove that a
defendant is competent." We disagree.
Simply put, our decision in McGinnis does not stand
for the proposition that the prosecution bears the burden of
proving a defendant's competence after an order requiring
a mental examination is entered. To the contrary, we
consistently have placed the burden on the defendant to show
his incompetence. See, e.g., Ross v. State, 954
So.2d 968, 1007 (Miss. 2007) ("The defendant must show
incompetency by a preponderance of the evidence.");
Evans v. State, 725 So.2d 613, 660 (Miss. 1997)
("The trial judge committed no error in holding that the
burden of proof was allocated to the defense. This issue is
without merit."); Emmanuel v. State, 412 So.2d
1187, 1188 (Miss. 1982) ("It naturally devolves upon the
defendant to go forward with the evidence to show his
probable incapacity to make a rational defense.").
Hutto also asserts that this Court has misinterpreted
Medina v. California, 505 U.S. 437, 112 S.Ct. 2572,
120 L.Ed.2d 353 (1992), because Mississippi does not have a
statute allocating the burden of proving an individual's
competence as California did in Medina. But, though
Mississippi does not have such a statute, the U.S. Supreme
Court has held:
Once a State provides a defendant access to procedures for
making a competency evaluation, however, we perceive no basis
for holding that due process further requires the State to
assume the burden of vindicating the defendant's
constitutional right by persuading the trier of fact that the
defendant is competent to stand trial.
Medina v. California, 505 U.S. 437, 449, 112 S.Ct.
2572, 120 L.Ed.2d 353 (1992). We find it immaterial that the
Legislature has not spoken on this issue and see no reason to
depart from our well-established precedent. This argument is
Whether the overwhelming weight of the evidence
showed Hutto was incompetent before
Prior to trial, Hutto's counsel filed a motion to
determine Hutto's competence. The trial judge then
promptly entered an order for Hutto to undergo a mental
evaluation. Due to a delay at the state hospital, a
significant amount of time passed before Hutto underwent a
mental evaluation. During this time frame, Hutto logged
profanities and exhibited other crude behavior in court on
numerous occasions. The trial judge determined that
Hutto's outbursts generally concerned the circumstances
of his confinement.
Due to the delay at the State Hospital, Hutto's counsel
hired a private psychologist, Dr. Goff, to evaluate Hutto.
Dr. Goff, however, could not complete "the psychological
testing portion" of the examination because Hutto would
not cooperate. Finally, on February 14, 2013, Dr. Robert
Storer conducted Hutto's mental evaluation at the State
Hospital. Hutto initially stated that he would not
cooperate with Storer, but he later agreed to complete the
"Personality Assessment Inventory." Storer's
report notes that Hutto completed the assessment in "an
usually short period of time" and the report produced
"an invalid profile due to elevations on the validity
Because of the invalid test scores and Hutto's refusal to
answer questions, Storer could not give an expert opinion to
a reasonable degree of psychological and psychiatric
certainty that Hutto "does not have deficits in his
competence-related abilities." But Storer did note that
. . . . collateral interviews and available records provide
no evidence of cognitive deficits, memory problems, or
irrational thought processes. Medical requests and grievance
forms . . . demonstrate no deficits in his ability to
communicate clearly and effectively or in his ability to
think logically. Mr. Hutto also demonstrated the ability to
reconsider and reverse a prior decision . . . During our
evaluation of him on 14 February 2013, while Mr. Hutto was
observed over the course of several hours and while he was
completing psychological testing, he demonstrated no deficits
in his ability to interact with staff. He also demonstrated
no deficits in his awareness of his situation, his thought
process, or his ability to understand a wide range of
pertinent issues . . . . As for whether Mr. Hutto suffers
from mental disease or defect, there appears to be good
evidence . . . that he does not . . . . Likewise, although
there appears to be good evidence . . . that he has the
functional abilities associated with competence, because Mr.
Hutto refused to answer our questions, I am not able to say
with a reasonable degree of psychological and psychiatric
certainty that Hutto does not have deficits in his
After the mental evaluation, the State extended to Hutto a
plea offer of life without the possibility of parole.
Hutto's counsel signed the plea petition, affirming they
were satisfied that Hutto understood the contents of the
petition. At the plea colloquy, however, Hutto rejected the
plea deal after learning that he would waive his appeal
rights by entering a guilty plea.
On April 22, 2013, the trial court held a competency hearing.
Defense counsel called no witnesses and rested on
Storer's report. Based on his observations of Hutto,
Storer's report, and the plea colloquy, the trial judge
found Hutto competent to stand trial. A written order
subsequently was entered. Hutto claims that the overwhelming
weight of the evidence showed him to be incompetent to stand
trial and that the trial judge erred in relying on a report
created by Dr. Robert Storer. We disagree.
A trial judge's determination that a defendant is
competent to stand trial will be reversed only if it is
"manifestly against the overwhelming weight of the
evidence." Dickerson v. State, 175 So.3d 8, 15
(Miss. 2015) (citing Hearn v. State, 3 So.3d 722,
728 (Miss. 2008)). It is well-settled that the standard to
determine whether a defendant is competent to stand trial is
if "he has sufficient present ability to consult with
his lawyer with a reasonable degree of rational understanding
. . . and whether he has a rational as well as factual
understanding of the proceedings against him."
Id. (quoting Dusky v. United States, 362
U.S. 402, 402, 80 S.Ct. 788, 788-89, 4 L.Ed.2d 824, 825
(1960)). A competent defendant is one
(1) who is able to perceive and understand the nature of the
proceedings; (2) who is able to rationally communicate with
his attorney about the case; (3) who is able to recall
relevant facts; (4) who is able to testify in his own defense
if appropriate; and (5) whose ability to satisfy the
foregoing criteria is commensurate with the severity of the
Id. (citing Hearn, 3 So.3d at 728).
We find the trial judge did not manifestly err in finding
Hutto competent to stand trial. The record indicates that the
trial judge held numerous pretrial hearings at which he could
observe Hutto personally during the delay at the State
Hospital. Hutto's outbursts at these hearings, though
disruptive, do not suggest to this Court that Hutto was
incompetent. Instead, the record supports the trial
judge's conclusion that Hutto's outbursts generally
concerned the conditions of the detention center, including
showers and recreational time.
Hutto fails to point to instances in the record showing that
he lacked the ability to consult with his attorneys
or lacked an understanding of the proceedings
against him. See Dusky, 362 U.S. at 402.
Though the record shows instances in which Hutto failed to
cooperate with counsel, our review of the record does not
suggest that Hutto lacked the ability to do so.
Further, the record supports the trial judge's conclusion
that Hutto understood the proceedings. The trial judge's
competency order shows that Hutto chose not to enter a guilty
plea when he learned he would be waiving his appeal rights.
Even more, Hutto's counsel indicated, by signing the plea
petition, that they believed Hutto was competent to enter a
Lastly, the trial judge did not err by relying on Dr.
Storer's report to find Hutto competent. As previously
mentioned, Storer could not form an opinion to a reasonable
degree of psychological certainty regarding Hutto's
competence because Hutto failed to cooperate. But, though
Hutto alleges that the trial court erred by relying on
Storer's "non-finding, " Hutto's counsel
did not call and cross-examine Storer or any other medical
professional at the competency hearing to discredit his
observations. Simply put, we find Hutto presented no
evidence to the trial judge suggesting he was
incompetent to stand trial. Thus, we cannot conclude that the
overwhelming weight of the evidence shows that the trial
judge manifestly erred by finding Hutto competent to stand
trial. This argument fails.
Whether our decision in Conner requires a trial
judge to make specific findings of fact for each competence
Hutto next argues that the trial judge erred by not making
specific findings of fact for the five competence
considerations listed in Conner v. State, 632 So.2d
1239 (Miss. 1993), overruled on other grounds by
Weatherspoon v. State, 732 So.2d 158 (Miss. 1999). Hutto
argues the trial judge did not consider the first or fifth
criterion nor cite any legal standard in his order and
therefore committed reversible error. We disagree.
In Conner, this Court considered whether a trial
judge had erred by not ordering a competency hearing.
Id. at 1247. In doing so, we took note of "a
set of five criteria which, according the American Bar
Association, collectively define a competent defendant."
Id. at 1248. This Court then considered Conner's
argument that he did "not meet factors two through
five." Id. at 1249. Ultimately, we found
"[t]he trial judge did not manifestly err in not
ordering a competency hearing." Id.
A review of Conner shows that we did not hold that a
trial judge must make specific findings of fact based on the
five competence criteria. Further, although the trial judge
did not cite the applicable test for determining a
defendant's competence in his order, the trial judge did
determine that Hutto understood the nature of the proceedings
and was able to assist his counsel rationally. This issue is
Hutto argues alternatively that the trial judge erred by not
ordering Hutto to undergo further mental evaluation after
another outburst during trial. Hutto's cousin, Jason
Wilson, testified for the State on the third day of trial.
After the direct examination of Wilson, Hutto had another
BY THE DEFENDANT: Don't give a f--- about none of them,
especially them - - them or them - - I don't care. F---
all of y'all. See that? F--- y'all.
BY DEFENSE COUNSEL: He's asked us some questions . . .
but they are just designed to embarrass the witness . . . . .
BY THE DEFENDANT: They're not telling you everything.
There's other crimes, murders in Alabama and . . .
attempted murders and all that in Alabama. Now, think about
that and be fair about that. They're not going to be
fair. I told y'all from the get-go what I wanted.
I've been fighting my whole life. I'm tired of
fighting the whole society . . . . . .
BY THE DEFENDANT: You're wasting money. Go ahead.
Y'all can kill me today. I don't care. Do it today.
Do it today. No. No. I'm just saying they can do it today
if that's what y'all want to do. Do it today and get
it over with . . . .
After this outburst, Hutto's counsel renewed their motion
to determine competence, which the trial judge denied. At the
following day's proceedings, the trial judge noted that
Hutto was actively participating in the proceedings and that
his outbursts were not helping his cause. During the
discussion, Hutto acknowledged he had "acted like a
pompous ass or prima donna." He also objected to his own
counsel's renewed motion to determine competence. On
appeal, Hutto argues his actions are similar to those of the
defendant in Howard v. State, 701 So.2d 274 (Miss.
1997), and that the trial judge committed reversible error by
failing to order, sua sponte, that Hutto undergo another
mental evaluation. We disagree.
As to the issue of competence, we have stated that
"[I]f before or during trial the court, of its
own motion or upon motion of an attorney, has reasonable
ground to believe that the defendant is incompetent to
stand trial the court shall order the defendant to submit to
a mental examination by some competent psychiatrist selected
by the court . . . ." . . .
"What constitutes 'reasonable ground' to believe
that a defendant is incompetent to stand trial rests largely
within the discretion of the trial judge." On review,
the pertinent question is whether "the trial judge
received information which, objectively considered, should
reasonably have raised a doubt about defendant's
competence and alerted him to the possibility that the
defendant could neither understand the proceedings,
appreciate their significance, nor rationally aid his
attorney in his defense."
Harden v. State, 59 So.3d 594, 601 (Miss. 2011)
(emphasis added) (citations omitted).
In Howard, we examined whether the trial judge erred
by failing to hold a competency hearing after witnessing the
defendant's wholly ineffective
self-representation. Howard v. State, 701
So.2d 274 (Miss. 1997). At trial, the defendant attempted
"to elicit information about an imagined conspiracy so
complicated that it never took shape even in his own
mind" and even suggested "that one of the jurors
might have committed the crime." Id. at 278-79.
The record "reveal[ed] that Howard's effort was at
best incoherent and deluded, " and during mitigation,
Howard "made no opening or closing statement, made no
objections, submitted no mitigating evidence, and submitted
no jury instructions." Id. at 279, 282.
Ultimately, we concluded that the trial court erred by
failing to order a competency hearing. Id. at 284.
We find Howard distinguishable. A review of the
transcript does not indicate that Hutto was incoherent and
deluded during trial; rather, as the trial judge noted, Hutto
actively participated in the proceedings and engaged in
discussions with his counsel. Hutto's counsel also
cross-examined some witnesses, stated objections, and
presented mitigating evidence in the penalty phase. Further,
Hutto exclaiming in the presence of the jury that he should
receive the death penalty did not, per se, require the trial
judge to order further mental evaluation. To hold otherwise
would bring our criminal judicial system to a grinding halt.
We conclude that Hutto's midtrial outburst was consistent
with his outbursts before trial. A review of the transcript
does not raise reasonable doubts that Hutto was competent;
rather, it indicates that Hutto did not want to cooperate
fully. See U.S. v. Flores-Martinez, 677 F.3d 699,
707 (5th Cir. 2012) (noting a defendant is not incompetent
because he or she refuses to cooperate). Indeed, Hutto even
admitted that he was acting "like a pompous ass or prima
donna." This assignment of error fails.
Whether the trial judge erred in admitting custodial
statements Hutto had made to law-enforcement
Prior to trial, Hutto sought to exclude from evidence
statements he had made during four interrogations. The trial
judge held a suppression hearing and ultimately allowed the
State to admit highly redacted portions of each of the four
interrogations. Hutto's second assignment of error
consists of two arguments: first, Hutto claims his statements
made to law-enforcement officials after his arrest were
involuntary because the police induced him to talk by
offering him promises of rewards; and second, Hutto argues
that the excerpts from the second, third, and fourth
interrogations should not have been admitted because the
interrogations occurred without counsel and after Hutto had
invoked his Fifth Amendment rights. We analyze these
Whether Hutto was offered promises for his
Hutto claims for the first time on appeal that his statements
made to law-enforcement officials were involuntary because
"[e]arly in th[e] first interrogation, Hutto clearly
seeks and receives promises that his cooperation will result
in rewards for him." We note that Hutto's
voluntariness argument at the trial level concerned whether
his statements were inadmissible due to alleged physical
violence during his arrest, not promises or rewards.
Therefore, we will employ only plain-error review to
determine if Hutto's "substantive or fundamental
rights [were] affected." Dickerson, 175 So.3d
at 29-30 (citing Foster v. State, 148 So.3d 1012,
1018 (Miss. 2014)). "Applying the plain-error rule, the
Court must determine: (1) whether the trial court deviated
from a legal rule; (2) whether the error is plain, clear, or
obvious; and (3) whether the error prejudiced the outcome of
the trial. Id. We will reverse the conviction only
if the error "'resulted in a manifest miscarriage of
"Long before Miranda warnings were mandated by
the U.S. Supreme Court, it was well settled in Mississippi
jurisprudence that a confession [or statements] given after
promises of leniency was incompetent as evidence."
Jones v. State, 841 So.2d 115, 129 (Miss. 2003)
(quoting Dunn v. State, 547 So.2d 671, 674 (Miss.
1989)). The State has the burden to prove, beyond a
reasonable doubt, that a confession is voluntary.
Id. at 130. "This burden [of making out a prima
facie case of voluntariness] is met by the testimony of an
officer, or other person having knowledge of the facts, that
the confession was voluntarily made without any threats,
coercion, or offer of reward." Id.
We note that the Alabama police officers who interrogated
Hutto testified at a suppression hearing that they never
offered rewards or promises to Hutto for his cooperation.
After a thorough review of the record, including all four
interrogations conducted, we also find that Hutto's
statements to law-enforcement officials were not induced by
promises or rewards. Hutto points to a portion of the first
interrogation in which an unidentified officer told Hutto
that he should cooperate with law-enforcement officials. We
note, however, that the unidentified officer did not promise
Hutto that he would be given leniency or any type of reward
for doing so. This issue fails.
Whether statements admitted into evidence were taken
in violation of Hutto's Fifth Amendment right to
Next, Hutto asserts that redacted portions of the second,
third, and fourth interrogations were improperly admitted at
trial because these interrogations occurred after he had
invoked his right to counsel and without an attorney present.
We agree that it was error to submit the redacted portion of
the second interrogation to the jury but conclude the error
was harmless beyond a reasonable doubt.
Investigator Kwesi Drake of the Lee County, Alabama,
Sheriff's Department conducted the first interrogation
not long after Hutto's arrest on September 17, 2010. This
interrogation took place at the Lee County Sheriff's
Office and lasted approximately one hour and forty-two
minutes. The redacted portion of the interrogation admitted
at trial was forty-eight minutes long. Drake gave Hutto a
warning pursuant to Miranda v. Arizona  and Hutto
subsequently admitted going to the casino with Simpson and
taking the Mercedes after Simpson's death. He claimed,
however, that a man named Mark Cox killed Simpson. Hutto also
told Drake that, while back in Alabama after Simpson's
death, he told a woman named Melanie that he had won money at
the casino and bought the Mercedes for her as a gift. Drake
recounted some of Hutto's statements and further
questioned Hutto. Later in the interrogation, Hutto asked
Drake if he needed a lawyer, and shortly thereafter Hutto
asked for a lawyer. Drake then terminated the interview.
Approximately thirty minutes after the first interrogation,
John Tanks and Marcel Walker of the Birmingham Police
Department conducted a second interrogation of Hutto at the
Lee County Sheriff's Office. The interview lasted two
hours and nineteen minutes; the redacted portion admitted at
trial lasted less than four minutes. The focus of this
interrogation concerned the death of Hutto's aunt,
Virginia "Faye" Rardon, and Tanks was unaware that
Hutto had invoked his right to counsel in the prior
interrogation. After being given a Miranda warning
by Tanks, Hutto made the following statements, which were
heard by the jury during the four-minute video played at
Hutto stated that he did not want to answer any questions,
but instead wanted to make some statements. He stated that
Mark Cox found him in Mississippi and followed him back to
Alabama. Hutto claimed that he stayed in a hotel with a girl
when he returned to Alabama. Officers Tank and Walker asked
Hutto who the woman was, and Hutto stated it was a woman he
met at a bar.
Officer Tanks questioned Hutto about what happened after he
and Mark Cox went to his Aunt Faye's house. Hutto stated
that he and Mark Cox did not go to his aunt's house, but
rather that he took the car he had from Mississippi
(Simpson's Mercedes) straight to a motel where he spent
the night after returning from Mississippi. Hutto claimed he
woke up the next morning and called his Aunt Lois, who lived
at his Aunt Faye's house. Hutto said he then went to his
aunt's house, but that she would not let him stay at her
house with the stolen Mercedes. Hutto stated that he then
left his Aunt Faye's house and went to see a girlfriend
named Melanie. Hutto told the officers that he lied to
Melanie, telling her that he had won a bunch of money and had
bought the Mercedes for her. He then told officers that while
he was in Mississippi, an old woman tried to mess with him.
Hutto told the detectives he had no reason to lie to them and
that if they wanted to put him to sleep or shoot him in the
head, it would make his day because he was now free.
At this point, the detectives left and ended the interview.
On September 22, 2010, Drake conducted another interview of
Hutto at the Lee County Sheriff's Office. The interview
concerned the events that occurred in Mississippi, including
Simpson's death. The interrogation lasted two hours and
thirteen minutes, and the redacted portion admitted at trial
lasted seventeen minutes. Drake conducted this interview only
after Hutto had sent a request to speak to an investigator
concerning the charges against him.
On September 23, 2010, Tanks and Walker conducted another
interview of Hutto concerning the death of Hutto's aunt,
but Hutto made statements about Simpson as well. The
interview took place at the Jefferson County Jail in
Birmingham, Alabama, after Hutto had asked to speak with
Tanks and Walker again. The interrogation lasted thirty
minutes, but the jury heard only six and a half minutes of
the interrogation. During the interrogation, Hutto claimed he
had slept with Simpson on the day he met her and told
law-enforcement officials they could kill him if they wanted
Both Drake and Tanks testified at a suppression hearing on
this issue. The videos of the first and third interrogations
were admitted during Drake's testimony, and the videos of
the second and fourth interrogations were admitted during
Tanks's testimony. Both Drake and Tanks testified that
they never had threatened Hutto or offered him promises of
rewards for cooperation. On cross-examination, Drake admitted
that Hutto had invoked his right to counsel at the end of the
first interrogation. Further, Tanks admitted on
cross-examination that he and Detective Walker had questioned
Hutto during the second interrogation. After arguments, the
trial judge determined that parts of each interview would be
admissible at trial. The trial judge determined that
Hutto's second interrogation concerned a separate crime
and a completely different matter than the first
interrogation and that Hutto was read his rights in the
We previously have stated that:
It is fundamental that an accused has a Fifth and Fourteenth
Amendment right to have counsel present during custodial
interrogation. The Fifth and Fourteenth Amendment prohibition
against self-incrimination requires that custodial
interrogation be preceded by advising the defendant that he
has the right to remain silent and the right to the presence
of an attorney. If the subject indicates that he wishes to
remain silent, then the questioning must stop; and if he
requests counsel, the questioning must stop until an attorney
When an accused has invoked his right to have counsel present
during custodial interrogation, a valid waiver of that right
cannot be established by proving that the accused responded
to further police-initiated interrogation, even if he has
been advised or re-advised of his rights. Furthermore,
when an accused has expressed a desire to deal with the
police only through counsel, further interrogation is
absolutely barred until counsel has been made available to
him, unless the accused himself initiates further
Balfour v. State, 598 So.2d 731, 744-45 (Miss. 1992)
(emphasis added)(citations omitted). The United States
Supreme Court also has determined that it is irrelevant
whether a law-enforcement official conducting a second
interrogation knew that the suspect had invoked his Fifth
Amendment right to counsel in a prior interrogation:
Finally, we attach no significance to the fact that the
officer who conducted the second interrogation did not know
that respondent had made a request for counsel. . . .
Whether a contemplated reinterrogation concerns the same
or a different offense, or whether the same or different law
enforcement authorities are involved in the second
investigation, the same need to determine whether the suspect
has requested counsel exists. The police
department's failure to honor that request cannot be
justified by the lack of diligence of a particular officer.
Arizona v. Roberson, 486 U.S. 675, 687-88, 108 S.Ct.
2093, 2101, 100 L.Ed.2d 704 (1988) (emphasis added) (citation
We find that Hutto's statements given in the second
interrogation were taken in violation of his Fifth Amendment
rights. Hutto clearly and unequivocally asked for counsel at
the end of his first interrogation; therefore, it is
immaterial that Officers Tanks and Walker, who conducted the
second interrogation, were unaware that Hutto had invoked his
rights in the prior interrogation. The State requests this
Court to note that the United States Supreme Court stated in
Roberson that the police "are free to inform
the suspect of the facts of the second investigation as long
as such communication does not constitute
interrogation[.]" Roberson, 486 U.S. at 687. We
conclude, however, that the police did more than inform Hutto
of the second investigation involving his aunt; they
interrogated him. The State's own brief concedes that
questions were asked in this interview.
But the admission of statements taken in violation of an
accused's Fifth Amendment rights is "amenable to
harmless error analysis." Haynes v. State, 934
So.2d 983, 991 (Miss. 2006) (citing Goodwin v.
Johnson, 132 F.3d 162, 181 (5th Cir. 1998); United
States v. Webb, 755 F.2d 382, 392 (5th Cir. 1985)).
"In order for a violation of a constitutional right to
be held harmless, this Court must determine that the
violation was harmless beyond a reasonable doubt."
Id. (citing Chapman v. California, 386 U.S.
18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). We have held
that "errors involving a violation of an accused's
constitutional rights may be deemed harmless beyond a
reasonable doubt where the weight of the evidence against the
accused is overwhelming." Id. (quoting
Clark v. State, 891 So.2d 136, 142 (Miss. 2004)).
Further, inadmissible statements that are cumulative of other
admissible statements may render the admission of the
statements harmless beyond a reasonable doubt. Byrom v.
State, 863 So.2d 836, 858 (Miss. 2003).
We find that the admission of the redacted video of
Hutto's second interrogation constituted harmless error
beyond a reasonable doubt. Hutto's statements given in
the second interview were exculpatory rather than inculpatory
and cumulative of other properly admitted statements. In the
second interrogation, Hutto mentioned Mark Cox, the stolen
Mercedes, and attempting to give the Mercedes as a gift to a
woman named Melanie. We note that all of these statements
were cumulative of statements Hutto gave in the properly
admitted first interrogation that took place thirty minutes
prior to the commencement of the second interrogation.
Further, Hutto's statement that an old woman in
Mississippi tried to mess with him is cumulative of a
statement given in Hutto's fourth interrogation. In the
fourth interview, Hutto stated that Simpson was "a horny
old broad" and that they slept together on the day they
met. This later statement encompasses the statement in the
second interview. Hutto's final statement in the second
interview that the police could put him to sleep or shoot him
in the head also is cumulative because, in the fourth
interview, Hutto also stated that police could do whatever
they wanted to him: "lethal-injection, firing squad,
Finally, the trial judge did not err in admitting portions of
the third and fourth interviews into evidence. Again, this
Court has acknowledged that "when an accused has
expressed a desire to deal with the police only through
counsel, further interrogation is absolutely barred until
counsel has been made available to him, unless the
accused himself initiates further communication."
Balfour , 598 So.2d at 744-45 (emphasis added). The
term "initiate" requires "more than the
inquiry of simply 'who talks first.'"
Haynes, 934 So.2d at 989. For an
Edwards initiation to occur, the suspect must
show "a willingness and a desire to talk generally about
his case, " and such a willingness must not be
influenced by law-enforcement officials. Id.
(quoting U.S. v. Whaley, 13 F.3d 963, 967 (6th Cir.
Drake testified at trial that the reason for the third
interrogation was because Hutto "sent up a request from
the jail to speak to an investigator." Indeed, the last
two interrogations began with law-enforcement officials
stating they were meeting with Hutto because Hutto had asked
to speak with them. In the third interrogation, Drake clearly
said to Hutto: "I know you said you wanted to talk to
somebody, but I still have to read you your rights."
After his rights had been read, Hutto confirmed that no
threats, promises, or rewards had been offered to him
"whatsoever, " and that he did "want to answer
questions and make some statements." And at the
beginning of the fourth interrogation, Tanks clearly stated
to Hutto: "you called us over here, what do you
need to tell us? But before we begin, I need to read you your
rights." Tanks proceeded to read Hutto his rights, and
Hutto waived his rights before further questioning began. For
these reasons, we find that Hutto reinitiated contact with
law-enforcement officials, and, thus, the trial judge did not
err in admitting portions of the third and fourth
interrogations into evidence. Hutto's second assignment
of error fails.
Whether the trial judge improperly admitted
prejudicial and inflammatory post- autopsy
Next, Hutto asserts that the trial judge improperly admitted
four autopsy photos. He claims that "[w]hile these
photos would assist a medically trained doctor in reaching a
forensic opinion[, ] they show nothing to a layman beyond the
undisputed testimony." Hutto also argues that autopsy
photos "are almost per se inadmissable." Hurns
v. State, 616 So.2d 313, 319 (Miss. 1993) ("Few
autopsy photographs will meet the criteria of containing more
probative value, as compared to being unfairly prejudicial or
inflammatory, or overly gruesome."). In sum, Hutto
states these photos were overly prejudicial and inflammatory.
"On appeal, this Court will give great deference to
trial judges in the sound exercise of their discretion in the
admission of photographs[.]" Bonds v. State,
138 So.3d 914, 919 (Miss. 2014). Though this discretion is
not unlimited, it is "considerable, " and we will
reverse a trial judge's decision to admit a photograph
only if he abused that discretion. Id. at n.2. In
Keller v. State, we noted that
In Westbrook v. State, 658 So.2d 847, 849 (Miss.
1995), this Court found that photographs of a victim have
evidentiary value when they aid in describing the
circumstances of the killing, Williams v. State, 354
So.2d 266 (Miss. 1978); describe the location of the body and
cause of death, Ashley v. State, 423 So.2d 1311
(Miss. 1982); or supplement or clarify witness testimony,
Hughes v. State, 401 So.2d 1100 (Miss. 1981).
Keller v. State, 138 So.3d 817, 857 (Miss. 2014)
(quoting Le v. State, 913 So.2d 913, 955 (Miss.
2005), overruled in part by Bonds, 138 So.3d at
We find that the trial judge did not abuse his discretion in
admitting the autopsy photos. Before admitting the photos,
the trial judge conducted a Rule 403 balancing test and found
the photos admissible. And at trial, Dr. Adele Lewis
testified that Simpson had suffered numerous injuries which
led to her death. Exhibits 64, 65, and 66 were introduced
during Lewis's testimony as evidence that Simpson had
suffered a "fracture or break in the spine." Lewis
testified that these photos showed "bleeding in the
muscles of the neck" and that such injuries "could
be consistent with either a blow or with strangulation."
Exhibit 67 also was introduced during Lewis's testimony
as evidence that Simpson had suffered an ear-to-ear skull
fracture. Lewis testified that the injury shown in the photo
was consistent with blunt-force trauma. Lewis further stated
that either the broken neck shown in Exhibits 64, 65, and 66
or the skull fracture shown in Exhibit 67 "could have
caused [Simpson's] death by itself." Because the
photos aided Lewis in describing "the circumstances of
the killing" and "clarified her testimony, "
we find this issue to be without merit. See Keller,
138 So.3d at 857.
Whether Hutto's Sixth Amendment right to confront
the witnesses against him was
During the investigation of Hutto, the Mississippi Crime
Laboratory used blood taken from Simpson's autopsy to
make a bloodstain card. Hinds County Sheriff's Department
Investigator Greg Lewis, a chain-of-custody witness,
testified that he had retrieved the bloodstain card from the
crime lab and delivered it to Scales Bio Lab for DNA testing.
The testing would determine if Simpson's blood matched a
substance found on Hutto's Nike flip-flop that he wore on
the night of Simpson's disappearance. During
cross-examination, the defense asked Lewis whether the
bloodstain card he received from the crime lab was the first
or second card that he had taken to the bio lab. The State
objected because the trial judge had not yet ruled on a
motion in limine seeking to exclude any testimony that the
crime lab initially had mislabeled Simpson's bloodstain
card with the incorrect crime lab number. The trial judge
accepted a proffer from Kristy Fuson, an employee of the
crime lab, on the issue.
Fuson stated that all cases at the crime lab are assigned
case numbers. Simpson's case number was SME No. 10-1136,
but the labels to be attached to Simpson's files were
transposed with the number "8" instead of the
number "6." Thus, the first bloodstain card that
Lewis delivered to the bio lab was labeled with the number
"10-1138." When tested at the bio lab, the
bloodstain card generated a male profile. After a male
profile was generated from "Simpson's"
bloodstain card during DNA testing, the bio lab informed the
crime lab of this finding. The crime lab found the error and
then relabeled Simpson's actual bloodstain card with the
correct case number; it was then delivered by Lewis to the
bio lab. Kathryn Rodgers, a forensic DNA analyst, later
determined the substance on Hutto's flip-flop to be
Simpson's blood. Rodgers testified as to her conclusions
at trial, noting that the result was a match frequency of
less than one in 276 billion.
After the proffer, the trial judge granted the State's
motion in limine. The trial judge found the mislabeling at
the lab was irrelevant or, alternatively, would create juror
confusion. On appeal, Hutto argues that his constitutional
right of confrontation was violated when the trial judge
ruled Hutto could not cross-examine witnesses about the error
in the lab. We agree that the trial judge should have allowed
cross-examination about the mislabeling, but we determine
this error to be harmless beyond a reasonable doubt.
"Defendants in criminal cases have a fundamental
constitutional right to be confronted with witnesses against
them." Armstead v. State, 196 So.3d 913, 917
(Miss. 2016) (citing U.S. Const. amend. VI; Miss. Const. art.
3, § 26 (1890)). And "[t]he right of a criminal
defendant . . . to cross examine witnesses against him is at
the heart of the [C]onfrontation [C]lause." Id.
(quoting Lanier v. State, 533 So.2d 473, 488 (Miss.
1988)). The right of confrontation "extends to and
includes the right to fully cross examine the witness on
every material point relating to the issue to be determined
that would have a bearing on the credibility of the witness
and the weight and worth of his testimony." Scott v.
State, 796 So.2d 959, 964 (Miss. 2001) (quoting
Myers v. State, 296 So.2d 695, 700 (Miss. 1974)).
Hutto claims the United States Supreme Court opinions
Bullcoming v. New Mexico, 564 U.S. 647, 131 S.Ct.
2705, 180 L.Ed.2d 610 (2011), and Melendez-Diaz v.
Massaschusetts, 557 U.S. 305, 129 S.Ct. 2527, 174
L.Ed.2d 314 (2009), support his argument that reversible
error was committed. But at issue in those cases was whether
testimonial statements or documents were admitted against the
defendant without being accompanied by proper witness
testimony. See Armstead, 196 So.3d at 918. We noted
in Armstead that
[u]nder Melendez-Diaz and Bullcoming,
forensic reports created specifically to serve as evidence
against an accused at trial are among the "core class of
testimonial statements" governed by the Confrontation
Clause. Melendez-Diaz, 129 S.Ct. at 2532;
Bullcoming, 131 S.Ct. at 2717. The Confrontation
Clause prohibits the introduction of these testimonial
documents through the "surrogate testimony" of a
witness who had no involvement in the creation of those
documents. Bullcoming, 131 S.Ct. at 2709.
Rodgers, the bio lab analyst, was the only witness for the
State who testified about forensic DNA testing. Further, she
testified about her own specific findings and conclusions,
not the findings of another person. The trial judge did not
allow the State to introduce testimonial hearsay against
Hutto and, therefore, the Melendez-Diaz and
Bullcoming decisions do not require reversal of
Hutto also directs this Court to Terry v. State, 718
So.2d 1115 (Miss. 1998). In Terry, a jury convicted
the defendant of embezzling. Terry v. State, 718
So.2d 1115, 1117 (Miss. 1998). At trial, a witness for the
State testified that a document at issue "could not be
altered." Id. at 1125. During cross-examination
of the witness, defense counsel attempted "to introduce
a counterfeit document to prove that an altered document
could have been substituted for the real one[, ]" but
the trial judge did not allow the attorney to do so.
Id. This Court held that Terry "was denied her
right to cross-examine" when the trial judge prevented
defense counsel from impeaching the witness's assertion
"with the 'fake' [document]. " Id.
This case is distinguishable from Terry because, in
that case, the defendant was denied her right to impeach a
witness about a statement the witness had offered to the
court. Here, Hutto merely was denied the opportunity to show
the jury that Simpson's bloodstain card initially was
mislabeled. The trial judge allowing cross-examination on
this point would not have changed the fact that, when
Simpson's actual bloodstain card was compared to the
substance found on Hutto's flip-flop, it resulted in a
match frequency of less than one in 276 billion. Defense
counsel also failed to request a proffer of Lewis or any
other witness to articulate any prejudice on this issue. We
find that the trial judge's failure to allow defense
counsel to question Lewis about the error in the lab did not
prejudice the outcome of the trial.
Whether Hutto's motion for a mistrial should have
been granted after a jail administrator
testified he had received "threats" from
Next, Hutto argues that a request for a mistrial should have
been granted. Michael Ivy, a former jailhouse administrator
with the Hinds County Sheriff's Department, testified for
the State. During Ivy's testimony, the State admitted two
letters that Hutto had written to the district attorney's
office. After testifying to the substance of the letters, the
following exchange took place between counsel for the State
Q. And would [Hutto] generally give you correspondence,
A. Yeah. He gave me quite a bit of correspondence and notes
and threats and all kind of stuff.
counsel immediately moved for a mistrial, and the trial judge
denied the motion.
We employ an abuse-of-discretion standard of review to
determine whether a trial judge erred in denying a request
for a mistrial. Pitchford v. State, 45 So.3d 216,
240 (Miss. 2010). A trial judge need declare a mistrial only
"when there is an error in the proceedings resulting in
substantial and irreparable prejudice to the defendant's
case." Id. (quoting Parks v. State,
930 So.2d 383, 386 (Miss. 2006)).
Hutto cites Rose v. State, 556 So.2d 728 (Miss.
1990), and Sample v. State, 643 So.2d 524, 528-29
(Miss. 1994), to support his argument that the trial judge
should have granted a mistrial. In Rose, the
defendant was indicted for conspiracy to commit larceny.
Rose, 556 So.2d at 729. During cross-examination at
trial, the State questioned the defendant about arson and the
fact that her house burned down. Id. at 730-31. On
appeal, we found that the defendant "did not place her
character at issue" and concluded that the effect of
cumulative errors denied Rose a fair trial. Id. at
In Sample, a jury convicted the defendant of
possession of marijuana with intent to distribute.
Sample, 643 So.2d at 528-29. The defendant was
arrested while driving a black Camaro. Id. The
officer who arrested Sample testified that his attention was
drawn to the Camaro because "it was parked at a
residence where a shooting had occurred a week earlier"
and he "had received official information at a
pre-patrol briefing that a car matching the description of
the black Camaro had recently been stolen." Id.
We reversed the defendant's conviction, finding the
testimony about the shooting and stolen car "was unduly
prejudicial in that it allowed an inference that Sample was
engaged in other crimes." Id. at 529.
We find Rose and Sample distinguishable, as
both of those cases involved direct evidence of other
possible crimes. Though Ivy should not have testified about
receiving "threats, " the passing reference was too
vague and nondescript to amount to evidence of other crimes
or bad acts. See Miss. R. Evid. 404(b). Further,
this testimony was not introduced to show that Hutto was the
kind of person who would commit capital murder. See
id.; see also Rose, 556 So.2d at 730.
Ivy's brief reference did not result "in substantial
and irreparable prejudice to the defendant's case."
Pitchford, 45 So.3d at 240.
Whether evidence of the victim's character was
admitted improperly during the
Hutto next contends that the trial judge erred in allowing
the State repeatedly to elicit testimony concerning
Simpson's character and reputation "designed to do
nothing but prejudice the jury against Hutto." Hutto
points to multiple instances in which he argues error
State's Opening Statement
During the prosecution's opening statement, counsel
You're going to hear that Ethel Simpson was 81 years old
at the time of her death. But don't let her age fool you.
She was lively, she was vivacious, she loved to socialize,
she had a very busy life. She was survived by a son, Ken
Simpson, who described his mother as social. She loved to
travel, she loved to eat and she loved people.
defense objected, claiming the statements concerning
Simpson's character were improper. The State countered
that these statements were going to come into the
prosecution's case-in-chief to indicate why she was
targeted by Hutto. Counsel for the State continued:
Again, Ethel Simpson was vivacious, she was alive and she was
full of life. Ken Simpson, her son, described her as colorful
in the way she dressed. She also died [sic] her hair bright
red. She was a lover of people. And one of the qualities that
people loved so much about Ethel was how much she loved
people and how outgoing she was. And what you'll come to
find out is that's one of the reasons that led to her
demise and that's one of the reasons that she's not
here today and that's one of the reasons why James Hutto
You'll hear that Ethel Simpson was widowed in 2005 when
her husband died of lung cancer.
these statements, defense counsel asked for a continuing
objection to all victim character evidence. On appeal, Hutto
argues these statements prejudiced the jury against him.
Though these statements concerned the victim's character,
we find these statements "set the stage for the
presentation of relevant evidence." Goff v.
State, 14 So.3d 625, 652 (Miss. 2009)). In
Goff, we reiterated that "the purpose of an
opening statement is to inform the jury what a party to the
litigation expects the proof to show." Id. at
652 (quoting Slaughter v. State, 815 So.2d 1122,
1131 (Miss. 2002)). "Attorneys are also allowed a wide
latitude in arguing their cases to the jury, including
opening statements and closing arguments." Dycus v.
State, 875 So.2d 140, 170 (Miss. 2004), sentence
vacated by Roper v. Simmons, 543 U.S. 551, 125
S.Ct. 1183, 161 L.Ed.2d 1 (2005) (citing Sheppard v.
State, 777 So.2d 659, 661 (Miss. 2000)). And
further, opening statements "do not constitute
evidence." Goff, 14 So.3d at 652.
In Dycus, the prosecution claimed in its opening
statement that the victim was seventy-six years old, had
lived in the same house for forty years, and made cookies for
neighbors. Dycus, 875 So.2d at 870. And in its
closing argument, the State told the jury that the victim
"had recently recovered from a serious bout with
cancer." Id. On appeal, Dycus alleged that such
statements were irrelevant and inflammatory, but we concluded
"that the relatively minor statements" about the
victim did not result "in prejudice so substantial that
it influenced the outcome of the trial." Id.
The only caselaw Hutto cites in support of his position is
Wiley v. State, 484 So.2d 339 (Miss. 1986),
vacated by Wiley v. State, 635 So.2d 802 (Miss.
1993). In that case, this Court "held that in death
penalty cases, as in other cases, the victim's character
is ordinarily not at issue and reference thereto is
improper." Mack v. State, 650 So.2d 1289, 1324
(Miss. 1994) (citing Wiley, 484 So.2d at 348). But
we also have "held that such evidence as is relevant to
the crime charged is admissible, notwithstanding an objection
that it bears on the victim's character."
Id. Indeed, "evidence of the victim's
character is admissible if it is relevant to the crime."
Dycus, 875 So.2d at 870; see also Randall v.
State, 806 So.2d 185, 225 (Miss. 2001); Hansen v.
State, 592 So.2d 114, 146-47 (Miss. 1991).
We find no error in the prosecution's statements above.
Again, opening statements do not constitute evidence, and the
State is allowed to argue its theory of the case. Moreover,
the statements about Simpson's outgoing character did
"set the stage for the presentation of relevant
evidence." See Goff, 14 So.3d at 625. As shown
in the trial transcript, a witness for the State testified
that Hutto catered "his story to the people that were
around him [at the Healthplex] to try to entice people and
pull people in." Further testimony was elicited during
the State's case-in-chief that Hutto claimed to have the
same type of cancer that Simpson's husband had died from.
The "relatively minor statements" concerning
Simpson's character followed the State's theme that
Hutto had manipulated an outgoing and social Simpson.
Dycus, 875 So.2d at 170.
Hutto further argues he was prejudiced when the jury heard
testimony that Simpson participated in Bible study. At trial,
Daty Rochelle testified that she and Simpson were
"friends." Counsel for the State asked Rochelle how
she knew the victim, to which Rochelle responded: "I
knew her from a Bible study at First Baptist in Clinton. She
was in a small - she and I were in a small group
together." The prosecution then moved on to questions
concerning Rochelle's encounter with Hutto and Simpson at
Simply put, the State asked the witness how she knew the
victim, the witness answered, and the State moved on. Hutto
cites no caselaw showing that such testimony is improper. The
testimony of how Rochelle knew Simpson is relevant for the
purpose of Rochelle's credibility and personal knowledge
of the events in question.
from Simpson's Brother
Hutto objected at trial to testimony given by Simpson's
brother and roommate, Thomas Winstead. On direct examination,
the prosecution asked Winstead why he and Simpson lived
together. Winstead responded: "Well, [we were] just kind
of looking after each other." Again, this is simply a
background question concerning how the witness knew the
victim and resulted in no prejudice to Hutto.
of the Victim
Hutto also objected to the introduction of a photo of Simpson
during the testimony of her son, Ken Simpson. The prosecution
countered that the photo was "relevant for the purpose
of identification" and the judge admitted the photograph
In Spicer v. State, this Court noted that
"[t]he trial judge has discretion to determine whether
or not photographs have a legitimate evidentiary
purpose." Spicer v. State, 921 So.2d 292, 306
(Miss. 2006) (citing Walker v. State, 671 So.2d 581,
601 (Miss.1995)). In Spicer, the State introduced,
and the trial judge admitted, a photo of the victim "for
identification purposes." Id. at 307. On
review, we determined that "[s]ince the trial court
admitted the photograph of [the victim] for a legitimate
evidentiary purpose and there was nothing otherwise
prejudicial about the picture itself, " the trial judge
did not err in admitting the photograph. Id.
As in Spicer, the State sought to introduce the
picture of Simpson for the purpose of identification. And
having viewed the photograph, we find nothing prejudicial
about the photograph itself. The photo does not show Simpson
with her family or any other person; rather, it is simply a
professional photo of Simpson. No error occurred here.
of Jan Cossitt
Hutto also claims testimony from Jan Cossitt, an employee of
the Healthplex, prejudiced him. When asked how she knew the
victim, Cossitt testified:
Ethel is a - was a longtime member of the Baptist Healthplex,
also a friend, a member of the church that I attended and a
member of an organization called the Red Hat Society, which
is group of ladies 50 years of age and above who get together
at least once a month to have a meal together or participate
in some program.
the State asked what Simpson was like, Cossitt testified:
A. Probably one of the most generous, giving people I've
ever met in my life. ...