Randall 'Red' Pittman v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-KA-00178-COA
RANDALL “RED” PITTMAN
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
12/11/2007
HON. ROBERT B. HELFRICH
PERRY COUNTY CIRCUIT COURT
PAUL B. JOHNSON
LESLIE S. LEE
JUSTIN TAYLOR COOK
OFFICE OF THE ATTORNEY GENERAL
BY: LADONNA C. HOLLAND
CRIMINAL - FELONY
CONVICTED OF TWO COUNTS OF
MURDER AND SENTENCED TO LIFE FOR
EACH COUNT, WITH SENTENCES TO
RUN CONSECUTIVELY IN THE
CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS
AFFIRMED: 07/21/2009
BEFORE MYERS, P.J., IRVING AND BARNES, JJ.
MYERS, P.J., FOR THE COURT:
¶1.
Randall Pittman was convicted in the Circuit Court of Perry County of the murders
of Charles Cochran and S.I. Cochran.1 The trial court sentenced Pittman to serve two
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S.I. was known by her initials, but her given name was Sarah Ida.
consecutive life sentences in the custody of the Mississippi Department of Corrections.
Aggrieved by his convictions and sentences, Pittman appeals, asserting that the trial court
erred in admitting a videotaped police interrogation and that he received constitutionally
ineffective assistance of counsel at trial. Finding no error, we affirm.
FACTS
¶2.
Charles and S.I., his ninety-one-year-old mother, lived on opposite sides of a duplex
in Perry County, Mississippi. Charles was sixty-seven years old and partially paralyzed from
a stroke, and S.I. was believed to suffer from Alzheimer’s disease. Both employed various
caretakers to assist them with day-to-day activities. In September 2006, Brandi Meadows
and her boyfriend, Josh Root, served as Charles’s and S.I.’s caretakers.
¶3.
On September 10, 2006, Meadows and Root decided to go out with a friend.
Meadows went to Charles’s side of the duplex to inform him that she was going out. At that
time, Charles and S.I. were watching television. Pittman, who had been doing some
construction work for Charles, was also present on Charles’s side of the duplex. Meadows
and Root arrived back at the Cochran residence between 8:30 and 9:00 that night, and they
slept on S.I.’s side of the house as they usually did. The next morning, Meadows found it
unusual that Charles had not called for his breakfast by 7:30 a.m., as he usually called every
morning at 7:00 a.m. Meadows told Root to go next door and check on Charles. When he
did, Root found Charles’s and S.I.’s dead bodies. Charles had been beaten to death with a
2x4, and S.I. had been beaten to death with a glass candle holder.
¶4.
Pittman, the last known person to see Charles and S.I. alive, would later tell
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authorities that he left Charles’s home at approximately 7:30 p.m. on the night of the
murders. During his first interview, Pittman claimed that he was wearing blue jeans, a blue
shirt, and Wellington boots when he left the victims’ home. In a subsequent interview,
Pittman stated that he had on blue jeans and boots, but no shirt when he left the victims’
home. In attempting to verify Pittman’s account of his whereabouts after leaving the
Cochran residence, authorities obtained a surveillance video from Tator’s, a convenience
store in New Augusta, Mississippi. The surveillance video showed Pittman entering the store
at approximately 8:30 p.m. on the night of the murders. He was not wearing a shirt or shoes,
and he had on oversized jeans that he was holding up with one hand. Pittman then purchased
a Nascar “combo pack,” which contained a t-shirt, cap, and bolo tie. Two patrons, Jonathon
Hartfield and Frieda Stuart, testified that they saw Pittman at Tator’s that night with no shirt,
no shoes, and oversized jeans. Hartfield and Stuart also testified that Pittman had what
appeared to be blood on his face, chest, arms, and jeans. Iyanter Norris, Tator’s cashier on
duty, testified that Pittman was covered in blood, and that the blood on his chest looked “like
somebody done rubbed down his chest [–] like fingerprints where somebody rubbed down
his chest.” Norris testified that Pittman paid for his Nascar combo pack and other items with
a $100 bill, and he also requested change for another $100 bill. Norris broke the bill, but he
refused when Pittman asked him to break another $100 bill. Norris stated that he saw three
more $100 bills in Pittman’s wallet.
¶5.
Stacy Hill, a friend of Pittman’s, also testified at trial. Hill stated that the last time she
saw Pittman was in September 2006 at a friend’s house. Pittman was wearing a blue Nascar
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shirt bearing the number “24.” 2 The two smoked several hundred dollars’ worth of crack
cocaine, which Pittman paid for. Pittman had several $100 bills and a bottle of Lortab pills.
Pittman was peeling the prescription label off of the bottle when Hill asked Pittman where
he had gotten the pills. Pittman replied that he had killed two people and stolen their
possessions,3 but Hill did not believe him at the time.
¶6.
Pittman was ultimately convicted of Charles’s and S.I.’s murders.
DISCUSSION
1. Motion for Mistrial
¶7.
At trial, Pittman moved in limine to preclude the State from discussing his past
criminal history or discussing other crimes he was suspected of being involved in. The trial
court did not grant the motion in its entirety, but it did admonish the prosecution to abide by
Mississippi Rule of Evidence 404 and to not introduce evidence of prior bad acts unless it
was interrelated or necessary to tell the complete story of the crime. See Bell v. State, 963
So. 2d 1124, 1131 (¶16) (Miss. 2007).
¶8.
The State subsequently sought to introduce a videotaped police interview of Pittman.
The prosecutor stated:
I understand and was told about the Court’s abomination [sic] about getting
2
Hill identified Exhibit 85, which was the shirt Pittman purchased at Tator’s on the
night of the murder, as the shirt Pittman was wearing when she last saw him.
3
Charles had a prescription for Lortab and received ninety pills at the beginning of
each month. Testimony also indicated that Charles had received $600, denominated in $100
bills, the day he was murdered.
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anything in these statements and so forth that had nothing to do with this case
and would be prejudicial. So with the first video interview was on CDs, and
it started getting into this other case. It has nothing to do with this case but
toward the end they were talking about being a psych patient and having
medication[,] and so what I had Jim Kelly to do was to take the VHS tape that
we had made in order to be able to use that and start recording when they
started giving the [Miranda warnings] in this case and ending that before he
volunteered that he’s a psych patient, and I had already told him that. I just
wanted to -The trial court then interrupted, asking defense counsel if this redaction would be sufficient:
[The Court]:
[Defense Counsel]:
Yes, sir.
[The Court]:
And you don’t have any problem with that?
[Defense Counsel]:
¶9.
Is that correct, Mr. Johnson?
No problem.
The videotaped interview was then played for the jury. The following exchange
occurred as the investigator interrogated Pittman concerning the $100 bills he allegedly took
from one of the victims:
[Pittman]:
[Investigator]:
We didn’t have anything to do with that.
[Pittman]:
I understand that[,] and I believe that.
[Investigator]:
¶10.
My mind’s screwed up cause [sic] they got me on this
crap here[,] and it’s the second time I’ve been locked up
on this bull crap I’m up here on now.
We didn’t. What we are here for is to try to solve this
Cochran case. We haven’t asked you anything on this
other case.
Defense counsel then moved for a mistrial, arguing that the State had wrongfully
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introduced prior bad acts evidence.4 The trial court denied the motion, stating: “I didn’t even
hear it. Now, I could give a cautionary instruction to the jury that they should disregard it,
which is your call, but in my opinion it would simply highlight something they probably
didn’t hear either.” Defense counsel declined the offer for a corrective instruction.
¶11.
The decision to grant a mistrial lies within the sound discretion of the trial court.
Dora v. State, 986 So. 2d 917, 921 (¶8) (Miss. 2008). The supreme court has stated:
The trial court must declare a mistrial when there is an error in the proceedings
resulting in substantial and irreparable prejudice to the defendant’s case;
however, the trial judge is permitted considerable discretion in determining
whether a mistrial is warranted since the judge is best positioned for measuring
the prejudicial effect.
Sipp v. State, 936 So. 2d 326, 331 (¶7) (Miss. 2006) (citations omitted). “[A] mistrial is
reserved for those instances where the trial court cannot take any action which would correct
improper occurrences . . . .” Easter v. State, 878 So. 2d 10, 21 (¶34) (Miss. 2004).
¶12.
First, as defense counsel specifically declined to object to the introduction of the
videotape, this issue is procedurally barred. See Rollins v. State, 970 So. 2d 716, 721 (¶12)
(Miss. 2007). Notwithstanding the procedural bar, we find that the trial court did not abuse
its discretion in denying Pittman’s motion for a mistrial. Defense counsel declined a
corrective instruction, and we find that the references to “this bull crap I’m up on here now”
and “this other case” on the tape are sufficiently nondescript that any prejudice resulting from
their admission is harmless in light of the other evidence of guilt. This issue is without merit.
4
Pittman was apparently being held in Forrest County on an unrelated murder charge
when the interview took place.
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2. Racial Comments
¶13.
Pittman argues that the State wrongfully failed to redact a certain portion of the
interrogation videotape where Pittman used racial epithets. During the interview, Pittman
was inconsistent about the number of $100 bills he possessed on the night of the murders.
Pittman initially stated that he had one, but he later said that he had a second, which he had
used to purchase crack cocaine for a prostitute. He stated that the reason he had initially lied
was that he feared that the drug dealer would retaliate against his family. Specifically,
Pittman stated, “I know how these G**-d****ed n****rs is [sic]. They – I know – I’m living
up here with them now. I listen to them every day.”
¶14.
At trial, prior to the introduction of the tape and its exhibition to the jury, the
prosecutor stated: “I don’t want to do anything to create an error in the case, but there are
some racial comments on there and some other comments that just need to be in it, and
there’s no way I can redact it, so I wanted to advise the Court of that.”
¶15.
As Pittman’s defense counsel made no objection to the introduction of the videotape,
this issue is procedurally barred. See Rollins, 970 So. 2d at 721 (¶12). This Court, however,
retains the inherent power to notice error notwithstanding trial counsel’s failure to preserve
the error, if necessary to prevent a manifest miscarriage of justice. Johnson v. Fargo, 604
So. 2d 306, 312 (Miss. 1992).
¶16.
Pittman argues that this portion of the interview tape was irrelevant and prejudicial,
and that we should notice plain error as the supreme court did in Tate v. State, 784 So. 2d 208
(Miss. 2001). In Tate, the supreme court stated that “[t]he race question and all of its
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vexations and perplexities should be dropped at the outer door of all courts of justice . . .
under no circumstances should the court permit the officers of the [S]tate to say or do
anything which might in the remotest degree prejudice the jury against the defendant on
account of race or color or social standing.” Id. at 215 (¶33) (quoting Clark v. State, 102
Miss. 768, 772, 59 So. 887, 888 (1912)).
¶17.
Pittman’s admissions concerning whether and when he possessed the $100 bills were
unquestionably relevant. While we agree that the State could have redacted the racially
derogatory remarks from the interview videotape, Pittman has failed to demonstrate that this
was necessary to prevent a miscarriage of justice. See Johnson, 604 So. 2d at 312. In Tate,
the prosecutor brought the issue of race to the forefront, repeatedly interjecting race into a
trial concerning a white defendant and a black victim. See Tate, 784 So. 2d at 215 (¶29)
(“While one or two of these alleged racial statements may have been relevant, the State’s
repeated reference to and focus on alleged racist statements undoubtedly prejudiced Tate’s
right to a fair trial.”). Here, Pittman acknowledges that race was not an issue in the case, and
the prosecutor made no reference to the racial comments before the jury. Likewise, any
prejudice resulting from the jury’s distaste for the racial comments must be viewed in light
of the severity of the offenses charged and with Pittman’s contemporaneous admissions that
he had purchased crack cocaine with the money and used the cocaine to pay a prostitute.
This issue is without merit.
3. Ineffective Assistance of Counsel
¶18.
Pittman argues that his counsel at trial was ineffective in failing to preserve for appeal
the trial court’s denial of his motion for a continuance. He also asserts that his defense
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counsel was ineffective in failing to request a “jail-house snitch” jury instruction.
¶19.
Mississippi Rule of Appellate Procedure 22(b) states:
Issues which may be raised in post-conviction proceedings may also be raised
on direct appeal if such issues are based on facts fully apparent from the
record. Where the appellant is represented by counsel who did not represent
the appellant at trial, the failure to raise such issues on direct appeal shall
constitute a waiver barring consideration of the issues in post-conviction
proceedings.
¶20.
“In order to prevail on the issue of whether his defense counsel’s performance was
ineffective, [the appellant] must prove that his counsel’s performance was deficient and that
he was prejudiced by counsel’s mistakes.” Kinney v. State, 737 So. 2d 1038, 1041 (¶8)
(Miss. Ct. App. 1999) (citing Strickland v. Washington, 466 U.S. 668, 687-96 (1984)).
“There is a strong but rebuttable presumption that counsel’s conduct fell within the wide
range of reasonable professional assistance.” Id. (citing Moody v. State, 644 So. 2d 451, 456
(Miss. 1994)). Additionally, an appellant is required to “allege both prongs of the above test
with specific detail.” Coleman v. State, 979 So. 2d 731, 735 (¶15) (Miss. Ct. App. 2008)
(citing Brooks v. State, 573 So. 2d 1350, 1354 (Miss. 1990)).
¶21.
Prior to the trial, Pittman’s defense counsel moved for a continuance to locate a
witness, Jamie Witter, that Pittman wished to call at trial. Witter had given a sworn
statement to investigators stating that she had been with the Cochrans’ caretakers, Meadows
and Root, on the night of the murders. She stated that when she arrived at the Cochrans’
duplex around 9:45 p.m., Root was there, and he told her that he had checked on the
Cochrans some time before. She also stated that around midnight, Meadows went outside
and returned, stating that she had checked on the Cochrans and found that they had fallen
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asleep watching television.
¶22.
Pittman argued in his motion for a continuance that locating Witter was crucial to his
defense because her statement contradicted those of Meadows and Root, who initially made
similar statements to investigators, but subsequently recanted.5 Pittman’s counsel admitted
that he did not know where Witter was located, but he asked the trial court to provide him
with the means to locate her. The trial court denied the motion, and Pittman’s counsel did
not raise the issue again in his motion for a new trial.
¶23.
The supreme court has held that “there are certain errors that must be brought to the
attention of the trial judge in a motion for a new trial, so that the trial judge may have an
opportunity to pass upon their validity before [an appellate court] is called upon to review
them.” Jackson v. State, 423 So. 2d 129, 131 (Miss. 1982) (quoting Colson v. Sims, 220 So.
2d 345, 346 n.1 (Miss. 1969)). One of these is a motion for continuance, the denial of which
“is not reviewable unless the party whose motion for continuance was denied makes a motion
for a new trial on this ground, making the necessary proof to substantiate the motion.” Id.
at 132. The supreme court has also stated:
If the court declines to grant the continuance [an attorney] should sue out the
proper process for them, and when the case is called for trial should renew his
application, make such changes in his affidavit as the conditions then existing
require. If the continuance is still refused, he should with unremitting
diligence seek to secure their attendance pending the trial by the continued use
of the process of the court; if tried and convicted he should still persist in his
efforts to enforce their attendance before the expiration of the term, and on his
motion for a new trial present them to the court for examination; if, with all of
5
At trial, they testified that they initially lied because they felt guilty about leaving
the Cochrans alone that night and not checking on them until the next morning.
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his efforts, he is unable to have the witnesses personally present, he should, if
practicable, secure their ex parte affidavits, which should be presented for the
consideration of the court, which, on the motion for a new trial, will review the
whole case and correct any error prejudicial to the defendant which may
appear in any part of the proceeding.
King v. State, 251 Miss. 161, 171-72, 168 So. 2d 637, 641 (1964) (citation and internal
quotations omitted).
¶24. As it is not clear what subsequent developments, if any, Pittman’s counsel might have
relied upon in a motion for new trial, the facts relating to this issue are not fully apparent
from the record. We therefore decline to address the issue of ineffective assistance of
counsel on direct appeal.
¶25. THE JUDGMENT OF THE CIRCUIT COURT OF PERRY COUNTY OF
CONVICTION OF TWO COUNTS OF MURDER AND SENTENCE OF LIFE FOR
EACH COUNT, WITH SENTENCES TO RUN CONSECUTIVELY IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PERRY
COUNTY.
KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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