Terry Lamar Stewart v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-KA-01847-COA
TERRY LAMAR STEWART
APPELLANT
v.
STATE OF MISSISSIPPI
APPELLEE
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
8/31/2001
HON. JAMES W. BACKSTROM
JACKSON COUNTY CIRCUIT COURT
ROSS PARKER SIMONS
OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
ROBERT KEITH MILLER
CRIMINAL - FELONY
CONVICTED OF MURDER AND SENTENCED
TO LIFE WITHOUT PAROLE
AFFIRMED - 6/15/2004
EN BANC.
MYERS, J., FOR THE COURT:
¶1.
Terry Lamar Stewart was convicted in the Circuit Court of Jackson County of capital murder and
sentenced to life in prison without parole. Aggrieved by his conviction and sentence, Stewart appeals to
this Court and raises the following five issues.
ISSUES PRESENTED
I. Were Stewart’s due process rights violated by the three-year delay from the time of his arrest until his
trial?
II. Did the trial court commit reversible error by denying Stewart’s motion to suppress statements made
to the police?
III. Did the trial court commit reversible error by allowing Stewart to be tried and convicted by an unsworn
jury?
IV. Did the trial court err by refusing to allow Simeon Dykes to testify regarding his plea bargain of
manslaughter?
V. Was the evidence presented sufficient to convict Stewart of capital murder?
STATEMENT OF FACTS
¶2.
The record reflects that during the evening hours of Friday, July 8, 1998, Stewart along with a
friend, Simeon Dykes, met Ralph Clayton Bourg, who was later the victim, at a bar in Pascagoula,
Mississippi, called Third and Short. The men left Third and Short and went to another bar called Thunders.
Stewart was not allowed inside Thunders because he did not have identification. Dykes and Bourg
proceeded inside Thunders to continue drinking. After several hours passed, Dykes and Bourg left
Thunders after they purchased some beer to take with them. They picked up Stewart and went out to The
Point, a secluded location on the beach of the Mississippi Gulf Coast in Pascagoula. Dykes and Bourg
began to fight and punch each other. Stewart jumped on Bourg and began stabbing him with a knife.
Stewart and Dykes left Bourg at The Point after Dykes stole his wallet. Bourg’s body was found at The
Point by a man running along the beach the following morning. Bourg had been stabbed several times in
his neck and chest area. Bourg’s empty wallet was discovered inside Dykes’ car.
¶3.
Dykes and Stewart were jointly indicted for capital murder in violation of Mississippi Code
Annotated Section 97-3-19(2)(e) (Rev. 2000). Dykes pled guilty to the lesser offense of manslaughter.
Stewart was convicted of capital murder and sentenced to life without parole. Stewart’s motion for a new
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trial, or in the alternative a JNOV, was denied by the trial court. From that order, Stewart now appeals
to this Court.
ISSUES PRESENTED
I. WERE STEWART’S DUE PROCESS RIGHTS VIOLATED BY THE THREE–YEAR DELAY
FROM THE TIME OF HIS ARREST UNTIL HIS TRIAL?
¶4.
Stewart claims that his fundamental due process rights were violated by the three-year delay from
the time of his arrest until his trial. Stewart was arrested on July 11, 1998, indicted on September 22,
1998, and his trial began on August 8, 2001. He specifically states that he is not raising the Sixth
Amendment right to a speedy trial argument on appeal but that he was denied due process because of the
delay. Since Stewart does not raise the Sixth Amendment argument, we will not discuss the merits of that
claim.
¶5.
The record reflects that Stewart’s trial was continued seven times with three continuances being
agreed to by both the State and the defense. The other four were requested by Stewart’s trial counsel.
Since Stewart has asserted that his claim is not a denial of a speedy trial but a denial of due process, he
limits the issue to pre-indictment delay. The case of De La Beckwith v. State, 707 So. 2d 547, 569 (¶
77) (Miss. 1997), provides the analysis when a defendant claims a due process violation because of delay.
To sustain a claim that a due process violation has occurred, the defendant must prove: (1) that the preindictment delay caused actual prejudice and (2) the delay was an intentional device by the government to
obtain a tactical advantage over the defendant. Id. Stewart’s claim does not fit the description of De La
Beckwith because his claim does not involve a pre-indictment delay. Stewart complains of the three-year
delay after his arrest and indictment but before his trial. Therefore, the analysis of De La Beckwith and
its progeny is inapplicable to Stewart’s claim.
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¶6.
Stewart also argues that his access to the courts was limited because he could not object to the
seven continuances made on his claim. Stewart also claims that he was denied an opportunity to call a
hearing on his two motions for relief due to the delay of his trial. A prisoner is entitled to either access to
the courts to prepare and file legal documents or adequate assistance from persons legally trained to do
so. Parisie v. State, 848 So. 2d 880, 884 (¶ 9) (Miss. Ct. App. 2002). If he receives either his rights
have been protected. Id. Stewart’s claim of denial of access to courts is without merit because he was
appointed counsel to represent him. The record also indicates that Stewart filed several pre-trial motions
on his own behalf. Stewart was not denied access to the court. This issue is without merit.
II. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY DENYING STEWART’S
MOTION TO SUPPRESS STATEMENTS MADE TO THE POLICE?
¶7.
Stewart asserts that the trial court erred by denying his motion to suppress statements he made to
the police following his arrest. Stewart claims that the statements should have been excluded because he
was denied his right to an initial appearance within forty-eight hours of arrest as provided by Rule 6.03 of
the Uniform Rules of Circuit and County Court.
¶8.
When this Court reviews a trial court's ruling on a suppression hearing, we must determine whether
the trial court's finding is supported by substantial evidence considering the totality of the circumstances.
Reid v. State, 825 So. 2d 701, 702 (¶ 5) (Miss. Ct. App. 2002). The admissibility of evidence lies within
the trial court's discretion and will only be reversed if this discretion is abused. Crawford v. State, 754
So.2d 1211, 1215 (¶ 7) (Miss. 2000). "The discretion of the trial court must be exercised within the
boundaries of the Mississippi Rules of Evidence." Reid, 825 So. 2d at 702 (¶ 5) (quoting Johnston v.
State, 567 So.2d 237, 238 (Miss. 1990)).
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¶9.
Stewart was arrested at approximately 4:00 a.m. on July 11, 1998 and was given Miranda
warnings about thirty minutes later. The record reflects that Stewart signed a Miranda waiver form at 4:28
a.m. on July 11, 1998. After Stewart signed the form, he gave a statement to police. At no time did
Stewart ask for an attorney or invoke his right to remain silent. Three days later, Stewart initiated a
conversation with the police regarding the killing of Bourg. Stewart told the police that he needed to clear
up some things he said during the first statement. Stewart signed another Miranda waiver form before he
spoke to police. During this statement, Stewart mentions that Dykes said he was “gonna roll this guy
[Bourg].” Stewart also recalled that Dykes took Bourg’s wallet. During the suppression hearing, the trial
judge found beyond a reasonable doubt that Stewart was given his Miranda warnings and freely,
voluntarily and intelligently gave the first statement. The trial judge found that Stewart initiated the second
conversation with police, was given Miranda warnings and freely, knowingly, intelligently and voluntarily
made the second statement.
¶10.
Uniform Circuit and County Court Rule 6.03 states the following in pertinent part: “Every person
in custody shall be taken, without unnecessary delay and within 48 hours of arrest, before a judicial officer
or other person authorized by statute for an initial appearance.” Stewart claims that his statements should
have been suppressed because he was not given an initial appearance until July 15, 1998. Stewart relies
on the case of Abram v. State, 606 So. 2d 1015 (Miss. 1992), to support his argument. In Abram, the
court held the “failure to provide the initial appearance reversible since, as a consequence, Abram gave a
confession in the absence of, and in violation of, his right to counsel. Such an error could hardly be deemed
harmless, since the conviction of Abram for capital murder was based entirely on his confession.” Abram,
606 So. 2d at 1029.
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¶11.
However, two subsequent cases limit the applicability of Abram to Stewart’s claim. The supreme
court recently held that a Rule 6.03 violation does not automatically create a Fourth Amendment violation.
Lawrence v. State, 869 So. 2d 353 (¶ 12) (Miss. 2003). Also, in Jones v. State, 841 So. 2d 115, 132
(¶ 47) (Miss. 2003), the court held:
It is well established that the failure to provide an initial appearance for an accused within
the time provided is not, of itself, a reason to suppress a confession. . . . [T]his Court found
that a violation of Rule 6.03 alone will not result in the suppression of evidence or
reversible error where the defendant was informed of his rights and made a knowing and
voluntary waiver.
¶12.
Stewart’s reliance on Abram is misplaced because Abram did not sign a waiver form and
Stewart did. Also, the court in Abram based its decision to reverse the conviction on the fact that
Abram’s conviction was based solely on his incriminating statement. Stewart was informed of
his rights to remain silent and to representation when he was given Miranda warnings prior to his
statements to police. Stewart signed two waiver forms stating that he understood his rights and did not wish
to assert them. In accordance with Jones, the trial court did not commit reversible error by admitting
Stewart’s statements.
III. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY ALLOWING STEWART TO
BE TRIED AND CONVICTED BY AN UNSWORN JURY?
¶13.
Stewart asserts that his conviction should be reversed because he was tried and convicted of capital
murder by an unsworn jury. Stewart argues that the jurors in his case should have been sworn according
to Mississippi Code Annotated Section 13-5-71 (Rev. 2002), the petit juror oath, and Section 13-5-73
(Rev. 2002), the jurors’ oath for capital murder cases. A review of the record does not reveal that an oath
was given to the jury; however, the sentencing order states that the jury was duly sworn. In Bell v. State,
360 So. 2d 1206, 1215 (Miss. 1978), the supreme court found no reversible error where the record did
not reflect that the jury was specially sworn. The court held, in such a situation, there exists a rebuttable
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presumption that the trial judge properly performed his duties. Id. Also, when the judgment states that the
jury was properly sworn it is presumed that the trial judge performed his duties. Woulard v. State, 832
So. 2d 561, 567 (¶ 24) (Miss. Ct. App. 2002). The failure of the court to specifically swear the jury in
a capital case is waived where no objection is made by the defendant until the verdict is rendered. This
issue cannot be raised for the first time on appeal. McMillan v. State, 191 Miss. 59, 61, 2 So. 2d 823,
824 (1941) (citing Hill v. State, 112 Miss. 375, 383, 73 So. 66, 67 (1916)).
¶14.
Stewart did not object to the issue of the unsworn jury until his trial was completed and a verdict
was rendered. Therefore, Stewart has procedurally waived his claim. His claim also fails on the merits
because the sentencing order clearly states that the jury was duly sworn. Stewart did not present sufficient
evidence to overcome the presumption that the trial judge properly performed his duties.
IV. DID THE TRIAL COURT ERR BY REFUSING TO ALLOW SIMEON DYKES TO TESTIFY
REGARDING HIS PLEA BARGAIN OF MANSLAUGHTER?
¶15.
Stewart asserts that the trial court erred by refusing to allow his co-indictee, Simeon Dykes, to
offer testimony regarding his plea bargain of manslaughter. Dykes and Stewart were jointly indicted for
capital murder based upon the killing of Bourg in the commission of a robbery. Dykes pled guilty to the
lesser offense of manslaughter while Stewart went to trial on the capital murder charge. At trial, Stewart
called Simeon Dykes as a defense witness. Stewart wished to ask Dykes questions regarding his guilty plea
to manslaughter as a means of proving that Stewart was also guilty of manslaughter, not capital murder.
The State objected to Dykes testifying about his guilty plea and sentence on direct examination. After
considering arguments from both sides, the trial judge ruled that Dykes could not testify about his guilty plea
and sentence during Stewart’s case-in-chief.
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¶16.
The record reflects that Dykes was allowed to testify about the events that took place on the night
Bourg was killed. He told the jury that Stewart stabbed Bourg and that he took Bourg’s wallet. The jury
heard evidence on Stewart’s theory of the case and defense. On appeal, Stewart is contesting only the
exclusion of evidence regarding Dykes’s guilty plea to manslaughter.
¶17.
The admissibility of evidence is within the sound discretion of the trial judge. Crawford, 754 So.
2d at 1215 (¶ 7). The decision to admit or exclude evidence will not be reversed absent abuse of
discretion. Id. The trial judge ruled that according to Stewart v. State, 662 So. 2d 552 (Miss. 1995),
the testimony about the guilty plea was inadmissible on direct examination by Stewart. “Federal and state
appellate courts have found the admission of a co-conspirator's plea of guilty, while incompetent as
substantive evidence of the defendant's guilt, may be admissible for other purposes.” Clemons v. State,
732 So. 2d 883, 890 (¶ 30) (Miss. 1999) (quoting United States v. Medley, 913 F.2d 1248, 1257-58
(7th Cir.1990)). In Wallace v. State, 466 So. 2d 900, (1985), our state supreme court held that the
State’s questioning of a defense witness about a prior guilty plea was not reversible error because the plea
was used in rebuttal to impeach the credibility of the witness and not as substantive evidence for the
defendant. It is Stewart’s purpose for offering the plea that determines its admissibility.
¶18.
This was not a situation where Dykes was called as a State’s witness and Stewart sought to use
the guilty plea as a method of impeachment during cross-examination. Nor is it a situation similar to
Wallace where Dykes was called by Stewart and the State introduced the plea as impeachment evidence.
In either of those situations, the guilty plea would be admissible as relevant evidence which might affect
Dykes’ credibility in the eyes of the jury. Stewart, 662 So. 2d at 563. Here, Stewart wanted to take
advantage of Dykes’ plea to a lesser charge of manslaughter and use it as substantive evidence that he did
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not commit capital murder. The use of Dykes’s plea for this purpose was improper and the trial court did
not commit error by excluding such testimony.
V. WAS THE EVIDENCE PRESENTED SUFFICIENT TO CONVICT STEWART OF CAPITAL
MURDER?
¶19.
Our standard of review regarding challenges to convictions based on the sufficiency of the evidence
is well-settled. The Mississippi Supreme Court has stated:
[T]he sufficiency of the evidence as a matter of law is viewed and tested in a light most
favorable to the State. The credible evidence consistent with [the defendant's] guilt must
be accepted as true. The prosecution must be given the benefit of all favorable inferences
that may be reasonably drawn from the evidence. Matters regarding the weight and
credibility of the evidence are to be resolved by the jury.
Muscolino v. State, 803 So. 2d 1240, 1242 (¶ 10) (Miss. Ct. App. 2002) (citing McClain v. State, 625
So.2d 774, 778 (Miss. 1993)). We reverse a conviction when the evidence, as to an element of a crime,
is such that reasonable and fair-minded jurors could only find the accused not guilty. Id.
¶20.
Stewart argues on appeal that the evidence presented at trial was not sufficient to support a guilty
verdict for capital murder. Specifically, Stewart contends that there was no evidence that Bourg was killed
in the commission of a robbery by him. Stewart was convicted of violating section 97-3-19(2)(e) (Rev.
2000) of the Mississippi Code which states:
(2) The killing of a human being without the authority of law by any means or in any manner
shall be capital murder in the following cases:
(e) When done with or without any design to effect death, by any person engaged in the
commission of the crime of rape, burglary, kidnaping, arson, robbery, sexual battery,
unnatural intercourse with any child under the age of twelve (12), or nonconsensual
unnatural intercourse with mankind, or in any attempt to commit such felonies.
Robbery is defined by statute as: “Every person who shall feloniously take the personal property of another
in his presence or from his person and against his will, by violence to his person or by putting such person
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in fear of some immediate injury to his person, shall be guilty of robbery.” Miss. Code Ann. § 97-3-73
(Rev. 2000).
¶21.
The record reveals that the jury members heard that Stewart and Dykes met Bourg at a bar called
Third and Short. Bourg was bragging about having lots of money and was buying expensive drinks. The
men left Third and Short and went to another bar called Thunders to continue drinking. Stewart was not
allowed into Thunders because he had lost his identification. Dykes and Bourg proceeded into Thunders.
After many hours of drinking, Dykes and Bourg left the bar after buying two six-packs of beers to take with
them. They picked up Stewart who had been at Dykes’ house where he was living at the time. The three
men went to a secluded area of the beach called The Point. As they got out of the car, Dykes said to
Stewart, “I’m gonna roll this guy [Bourg].” Dykes and Bourg got into an argument which caused Dykes
to punch Bourg several times in the head. Stewart, who had a knife in his possession, starting kicking
Bourg and stabbing him. Dykes admitted that he stole Bourg’s wallet. Stewart and Dykes left Bourg at
The Point with six stab wounds which were fatal. Stewart threw the knife used to stab Bourg out the
window of Dykes’ car into the water.
¶22.
Stewart claims that there was insufficient evidence that he participated in the robbery of Bourg and
therefore he cannot be guilty of capital murder. Stewart’s argument hinges on the fact that Dykes actually
took the wallet. The jury heard testimony that when Dykes and Stewart got into Dykes’ car, Stewart said
to Dykes, “I got him good. The blade went all the way through. He’s not so tough now.” Stewart
searched through Bourg’s wallet looking for money. No money was found in the wallet, but the men tried
to hide the wallet in a sock in Dykes’ car. When reviewing the evidence in the light consistent with the
verdict and giving the State all favorable inferences which may be drawn from the evidence, this Court finds
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that a reasonable juror would find Stewart guilty. This issue is without merit and we affirm the conviction
and sentence of the trial court.
¶23. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY OF
CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE WITHOUT PAROLE IN
THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED.
ALL COSTS OF APPEAL ARE ASSESSED TO JACKSON COUNTY.
KING, C.J., BRIDGES AND SOUTHWICK, P.JJ., THOMAS, LEE, IRVING,
CHANDLER AND GRIFFIS, JJ., CONCUR.
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