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Blakeney v. State

Supreme Court of Mississippi, En Banc

November 9, 2017

JUSTIN BARRETT BLAKENEY a/k/a JUSTIN BLAKENEY
v.
STATE OF MISSISSIPPI

          DATE OF JUDGMENT: 07/15/2014

         JONES COUNTY CIRCUIT COURT, HON. BILLY JOE LANDRUM.

          TRIAL COURT ATTORNEYS: WILLIAM R. LaBARRE ANTHONY J. BUCKLEY J. RONALD PARRISH JEANNENE PACIFIC MICHAEL DUANE MITCHELL JOHN ANTHONY PIAZZA DENNIS LEE BISNETTE RAY CHARLES CARTER.

          ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: ALISON R. STEINER WILLIAM R. LaBARRE.

          ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BRAD ALAN SMITH JASON L. DAVIS.

          DISTRICT ATTORNEY: ANTHONY J. BUCKLEY.

          KING, JUSTICE.

         ¶1. Justin Barrett Blakeney was convicted of capital murder and sentenced to death after a trial in Jones County before Greene County jurors. Because reversible error occurred in the denial of Blakeney's opportunity to present a complete defense, by allowing evidence and testimony obtained from informants working as State agents, and through prosecutorial misconduct, we now reverse Blakeney's conviction and sentence and remand his case for a new trial on the merits.

         FACTS AND PROCEDURAL HISTORY

         ¶2. On August 10, 2010, twenty-six-year-old Justin Barrett Blakeney called 911, stating that two-year-old Victoria Viner ("V.V.") had become unresponsive. Blakeney and Lidia Viner, V.V.'s mother, had been dating for approximately eight months at that time.[1] Viner was a noncitizen of the United States.

         ¶3. Blakeney and Viner had been living together for approximately six months. V.V. had attended daycare when Blakeney first moved in, but Blakeney had been keeping V.V. at home for around two months because he did not have a job and the couple needed to save money. Blakeney would watch V.V. from when Viner left for work around 10 a.m. until around 2 p.m. when Viner returned home.

         ¶4. On August 10, Viner had left for work around 10 a.m., and Blakeney had been alone with V.V. She was still asleep in her crib at the time Viner left. Around 10:30, Blakeney saw that V.V. was awake. Blakeney asked if she wanted to get some milk, and she responded yes. Blakeney stated that he noticed that V.V. had squinted her eyes and thought that she had a headache. Blakeney picked her up from her crib and placed V.V. on the floor. He began walking into the kitchen with V.V. following behind. Blakeney stated that he had taken two steps into the kitchen when he heard what sounded like a loud thump. Blakeney turned around and saw V.V. lying face down on the carpet. When Blakeney picked her up, V.V. was unresponsive and limp. V.V. then began to tense and clench both her fists to her chest. Blakeney called 911 and then called Viner at work.[2] Viner also called 911 and, when asked if V.V. had been having medical problems lately, stated that V.V. had been throwing up and had been cranky. Viner stated that she had been giving V.V. Tylenol because she had not felt well.

         ¶5. Chief William Lee Garrick, a medical first responder for the Calhoun fire department, arrived at Blakeney's house approximately four or five minutes after Blakeney had called 911. Chief Garrick testified that when he arrived, Blakeney had been sitting in a chair next to the couch where V.V. had been lying and had waved Chief Garrick in. Blakeney had informed Chief Garrick that he did not know what had happened, that he had been in a different room and had found V.V. that way.

         ¶6. V.V. was rushed to the South Central Regional Medical Center emergency room. Michael LaRochelle, M.D., medical director of the emergency department at South Central, saw V.V. when she arrived at the hospital and began an examination. Dr. LaRochelle stated that he had not found any obvious reason why V.V. had been in an unresponsive condition but a CAT scan had shown some diffuse injury throughout her brain. A diffuse injury of the brain is a generalized brain injury as opposed to a specific localized injury. Dr. LaRochelle explained that if a person were to fall and hit her head, normally the person would bleed at the point where she had hit her head. A diffuse injury causes swelling and microscopic bleeding throughout the entire brain. Dr. LaRochelle stated that the diffuse injury had indicated to him "a repeated episode or at least one severe shaken type scenario or certainly a repeated type of injury that caused swelling and diffuse injury." Because of suspected child abuse, personnel in Dr. LaRochelle's department called in law enforcement to investigate the matter. V.V. had no other abnormal bruising or marks on her body.

         ¶7. Dr. LaRochelle made the decision to transfer V.V. to the University of Mississippi Medical Center in Jackson. While at UMMC, V.V.'s attending physician asked Dr. Scott Benton to assist in her treatment as a consulting physician. Dr. Benton informed investigators that he believed the case to be one of child abuse. V.V. had extensive brain swelling and was showing signs of brain death. CT scans showed that V.V.'s brain had begun pushing through her skull. V.V. never regained consciousness. She was disconnected from life support and formally pronounced dead on August 12, 2010.

         ¶8. During an interview with the police, Blakeney stated that V.V. had an incident with a stool two weeks before she passed away.[3] Blakeney stated that V.V. had been sitting outside on a stool while Blakeney had been smoking. When V.V. attempted to get down, she fell off of the stool and hit her head. Viner had not been present at that time. Blakeney initially denied that V.V. had incurred any bruises resulting from the fall. Blakeney later admitted that V.V. actually had obtained two black eyes, "raccoon eyes, " after her fall from the stool. He stated that after the stool incident, V.V. had been complaining of headaches and had been throwing up in the two weeks prior to her death. Blakeney and Viner had not taken V.V. to the doctor because they thought that it was getting better. Blakeney repeatedly denied harming V.V.

         ¶9. Dr. Amy Gruszecki, a forensic pathologist, performed an autopsy on V.V. Dr. Gruszecki determined that V.V.'s cause of death was blunt force trauma to the head and classified her manner of death as homicide.

         ¶10. On December 16, 2010, a grand jury for the Jones County Second Judicial District indicted Blakeney for the crime of capital murder while in commission of the crime of felonious child abuse, pursuant to Mississippi Code Sections 97-3-19(2)(f) and 97-3-73.[4]Viner also was charged. Viner pleaded guilty to a negligence charge, was placed on probation, and later was deported to Mexico.

         ¶11. The trial court appointed Blakeney counsel through the Capital Defense Division of the State Public Defender's Office. Blakeney's trial was continued several times, and Blakeney remained in jail. On April 1, 2013, Jones County Sheriff's Department officers conducted a shakedown, which included a search of Blakeney's cell and person. In the course of the search, deputies found in Blakeney's possession the 88 Precepts of the Aryan Brotherhood.[5] Also found on Blakeney's body were various tattoos that Blakeney had obtained after his incarceration, including a large swastika on his chest area and two lightning bolts on his side. These tattoos were symbols of membership in the Aryan Brotherhood.

         ¶12. After the search, a confidential informant, later identified as Gregory "Hobo" Hancock, contacted the sheriff's department and relayed conversations that he allegedly had with Blakeney concerning V.V.'s murder and Blakeney's efforts to gain membership into the Aryan Brotherhood. On April 5, 2013, Hancock was transported to the sheriff's office. Hancock alleged that Blakeney had confessed that he had killed V.V. "by placing a telephone book on her head and hitting it as hard as he could with his fist." Hancock also stated that Blakeney had confessed to striking the child at other times when Viner was not looking or had not been present, including an occasion when he had kicked a stool out from under the child, resulting in her having two black eyes. Hancock was himself a member of the Aryan Brotherhood and stated that Blakeney had relayed this information to see if he could use V.V.'s murder to gain membership.

         ¶13. Hancock wanted to make a deal. The District Attorney's (DA) Office stated that Hancock's word was not good enough. Hancock then offered to wear a camera and microphone back to the jail cell to talk to Blakeney. The DA's office, along with Sgt. Tonya Madison and Maj. Don Scott, instead agreed that Hancock would go to visitation the next day to talk to Blakeney.

         ¶14. On April 6, 2013, the sheriff's department recorded a phone call while Hancock had been visiting Blakeney at the same time as Blakeney's mother.[6] The conversation went as follows:

Hancock: What's up buddy?
Blakeney: What you doing son?
Hancock: Nothing.
Blakeney: You come over here to visit us huh?
Hancock: Yeah.
Hancock: You alright?
Blakeney: Yeah.
Hancock: That's good.
Hancock: I told yall I was gonna come up here.
Blakeney: Hey, ah, I'm glad you came, Seth told me that Big Dave sent the word up the road to get me smashed when I got up there, what is that all about?
Hancock: About a bunch of lies, you know like I gave you my word right?
Blakeney: Yeah.
Hancock: I talked to Bedrock.
Blakeney: Aight.
Hancock: It's understood to me that the only way of a child, death of a child, it's got to be bi-racial.
Blakeney: Right.
Hancock: And it's got to be under the 88 precepts, that's what he told me. I spoke with him this morning, him and Josh Maxey and they said the only way to get accepted or passed out for vote is that if it was done bi-racial child.
Blakeney: Aight.
Hancock: You know what I am saying.
Blakeney: Yeah.
Hancock: So.
Blakeney: You see I ain't, if I do go I ain't, it ain't gonna be on capital murder gone be on
Hancock: It don't matter what it is, it don't matter what charge it is.
Blakeney: It's gonna be negligent manslaughter if it's anything.
Hancock: Just the bi-racial killing is gonna get you in there; you understand what I am saying.
Blakeney: Aight.
Hancock: You know the 88 precepts you gonna go by that.
Blakeney: Aight.
Hancock: That cool with you.
Blakeney: Yeah I mean.
Hancock: Aight don't, I am sticking my neck out on the line that's why I came up here to talk to you. I promised you I would.
Blakeney: Ok.
Hancock: Don't let me down ...

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