Curtis Giovanni Flowers v. State of Mississippi
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 1999-DP-01369-SCT
CURTIS GIOVANNI FLOWERS
v.
STATE OF MISSISSIPPI
ON MOTION TO MODIFY OPINION
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
03/31/1999
HON. C. E. MORGAN, III
MONTGOMERY COUNTY CIRCUIT COURT
F. KEITH BALL
JAMES W. CRAIG
OFFICE OF THE ATTORNEY GENERAL BY:
MARVIN L. WHITE, JR.
JUDY T. MARTIN
DOUG EVANS
CRIMINAL - DEATH PENALTY - DIRECT
APPEAL
REVERSED AND REMANDED - 04/03/2003
EN BANC.
CARLSON, JUSTICE, FOR THE COURT:
¶1.
This Court's prior opinion is withdrawn, and this opinion is substituted therefor.
¶2.
On March 21, 1997, Curtis Giovanni Flowers was indicted in Montgomery County for the capital
murder of Derrick "BoBo" Stewart. Flowers was also separately indicted for the capital murder of three
other victims, Bertha Tardy, Carmen Rigby and Robert Golden. The State originally filed a motion to
consolidate the four cases without opposition from Flowers but, it later withdrew the motion. Flowers then
moved to have the four trials consolidated, but the trial court denied his motion. After a change of venue
to the Circuit Court of Lee County, Flowers was convicted and sentenced to death for the murder of
Bertha Tardy on October 17, 1997. On appeal, this Court reversed and remanded the case for a new trial.
Flowers v. State, 773 So. 2d 309 (Miss. 2000) ("Flowers I"). Admittedly, in the case sub judice, the
State did not have the benefit of our decision in Flowers I before the trial concerning the death of Derrick
Stewart was commenced.
¶3.
The case sub judice was set for trial on September 14, 1998. However, during voir dire it became
apparent that a fair and impartial jury could not be impaneled. As a result, the trial court granted Flowers’s
renewed motion for change of venue and changed the venue to the Circuit Court of the First Judicial District
of Harrison County. The trial proceeded before the jury on March 22, 1999. On March 30, 1999, the
jury returned a verdict of guilty. A sentencing hearing was held, and, on March 31, 1999, the jury imposed
the death penalty. After Flowers's motions for a judgment notwithstanding the verdict, or in the alternative,
a new trial were denied, Flowers timely filed a notice of appeal before this Court. The execution of the
death sentence was stayed pending appeal.
FACTS
¶4.
On July 16, 1996, Sam Jones, Jr., received a telephone call from Bertha Tardy, the owner of Tardy
Furniture Company (Tardy’s) in Winona, asking him to come to the store to instruct two new employees
on loading and unloading furniture. Jones testified he arrived at the store "somewhere close to around" 9:30
a.m. Upon his arrival, Jones discovered the body of Derrick Stewart and three other Tardy employees.
Jones ran to a nearby business and asked an employee to call the police and an ambulance. Winona Chief
of Police Johnny Hargrove responded to the call, and upon his arrival, he immediately called for backup
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and an ambulance. Chief Hargrove also contacted the District Attorney's Office, the Mississippi Highway
Safety Patrol and the Mississippi Crime Lab.
¶5.
Stewart was found to still be breathing, so he was transported to the local hospital; however, he
subsequently died on July 23, 1996.
¶6.
During the investigation it was determined that the gunshot wound which eventually killed Stewart
was consistent with a .380 caliber weapon. Doyle Simpson, Flowers's uncle, reported a .380 pistol stolen
from his car on the day of the murders. A witness placed Flowers at Simpson's car early on the morning
of the murder. Flowers was questioned on the afternoon of the murders and consented to a gunshot
residue test, but he was not detained at that time. Flowers moved to Texas at the end of September, but
after further investigation had been completed, he was arrested and brought back to Mississippi. The State
elected to indict Flowers separately on four charges of capital murder. The circuit court judge denied
Flowers's motion to consolidate the four separate causes.
¶7.
At trial the State called nineteen witnesses to testify during its case in chief. Melissa Schoene was
the State's first witness. Schoene, a certified crime scene analyst with the Mississippi Crime Lab,
recovered a bullet projectile, a bullet projectile fragment and two bullet casings for a .380 caliber automatic
pistol in the area where Stewart's body was found. Further ballistics tests proved that the .380 caliber
automatic pistol used to kill Stewart belonged to Doyle Simpson.
¶8.
Doyle Simpson, Flowers's uncle, testified his gun was stolen the morning of July 16 from his car
at the Angelica Factory where he was employed at the time. He testified he went to work at 6:15 a.m.,
and the pistol was in his glove compartment; however, when he got in his car to pick up lunch at
approximately 11:00 a.m., the pistol was gone. Katherine Snow, an employee at Angelica, testified that
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she saw Flowers "laying on the front end of Doyle Simpson's car" between 7:15 and 7:30 a.m. the morning
of July 16.
¶9.
ChiefHargrove identified photographs showing bloody footprints that were obtained from the crime
scene. Barry Eskridge, owner of MedStat Ambulance Service, found a shoe track next to Stewart's body.
Because Sam Jones stated he did not remember seeing the track when he entered the store initially, Chief
Hargrove and Eskridge checked the footwear of all personnel at the scene. Both men testified that no
footwear at the scene was consistent with the shoe track. The footprints at the scene were later determined
to be consistent with Fila Grant Hill size 10½ tennis shoes, the same size as worn by Flowers. A Grant Hill
Fila shoe box, size 10½, was recovered from the home of Flowers's girlfriend, Connie Moore.
¶10.
Since Flowers had previously been employed at Tardy’s, he was interviewed on the afternoon of
July 16 by Jack Matthews, a Mississippi Highway Patrol investigator. Matthews testified that Flowers
stated he was staying with his girlfriend, Connie Moore, and babysitting her children that morning. Flowers
told investigators the only places he had been that morning were his sister's house on Dennis Street and a
convenience store, Kelly's Stop and Go, on Highway 51. Flowers consented to a gunshot residue test. The
test came back positive for "one single particle" of gunshot residue.
¶11.
During questioning, Flowers told the investigators that he started working at Tardy's on June 29,
but he did not return to work after July 3. He stated that on July 3, 1996, some batteries, which he had
picked up for Mrs. Tardy, fell off the back of the truck he was driving and were damaged. Flowers told
investigators that although Mrs. Tardy held him responsible for the batteries, he and Mrs. Tardy did not
have any problems and there was no argument between them regarding the batteries. Flowers also stated
Mrs. Tardy loaned him thirty dollars on July 3 but would not give him the rest of his paycheck because it
was used to pay for the damaged batteries.
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¶12.
Roxanne Ballard, Bertha Tardy's daughter, testified to the normal operating procedures of the store.
She identified a "daily check-up sheet" and testified that based on the document, there was $400 in the cash
drawer on July 16. Jack Matthews later testified that when he observed the cash drawer on July 16, it
contained no bills. Later $255 was discovered in the home of Connie Moore, Flowers's girlfriend.
Flowers was living with Moore at the time of the murder.
¶13.
The State was able to place Flowers at the scene of the crime by the testimony of several
witnesses. Charles Collins testified that he saw two men across the street from the store around 10:00 a.m.
Collins stated that one of these men was Flowers. Another witness, Clemmie Fleming, also testified that
she saw Flowers running from the store on the morning of July 16. Fleming testified that Roy Harris drove
her to Tardy’s on the morning of July 16 to pay her furniture bill, but she did not go in to pay it because she
was not feeling well. Patricia Hollman, who also saw Flowers the morning of the murders, testified that
when she saw Flowers, he was wearing Fila tennis shoes.
¶14.
After the State's case-in-chief, the defense moved for a directed verdict, and the trial judge
overruled the motion. During the defendant's case-in-chief, Roy Harris testified that he had seen a man
running in downtown Winona at about 9:00 a.m. on the morning of July 16, but Clemmie Fleming was not
with him at the time. Harris testified that almost an hour later, Fleming asked him to take her to Tardy's,
but before they reached the store, she changed her mind and asked him to take her to her mother's house
instead.
¶15.
To further refute Fleming's testimony placing Flowers at Tardy’s on the morning of the murders,
the defense presented the testimony of three witnesses who testified that Fleming had not seen Flowers
running from Tardy Furniture. Latarsha Blisset and Stacey Wright, Fleming's cousins, both testified that
Fleming admitted to them that she had not seen Flowers running from the store. Fleming's sister, Mary Ella
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Fleming, testified that when Clemmie Fleming arrived at her house on the morning of the murders, a friend
came to tell them Mrs. Tardy had been killed. Mary Ella Fleming further testified that she and her sister
went down to Tardy’s, but that Clemmie Fleming never mentioned anything about having seen Flowers
earlier that morning.
¶16.
After the defense rested, the State submitted rebuttal testimony. At this point the State rested, and
the case went to the jury.
¶17.
On March 30, 1999, the jury returned a verdict of guilty. A sentencing hearing was held, and, on
March 31, 1999, the jury returned the verdict of death finding, just as the jury had in Flowers I, two
aggravators:
1) The capital offense was committed for pecuniary gain during the course of an armed
robbery, and
2) The Defendant knowingly created a great risk of death to many persons.
On April 9, 1999, Flowers filed his motion for a JNOV or, in the alternative, for a new trial. A
hearing was held on the motions, and on June 21, 1999, the trial court denied the post-trial motions. On
August 18, 1999, Flowers timely filed a notice of appeal before this Court and raises the following issues:
I.
WHETHER FLOWERS WAS DENIED HIS FUNDAMENTAL AND
CONSTITUTIONAL RIGHT TO A FAIR TRIAL BY THE
ADMISSION OF EVIDENCE AND ARGUMENT OF OTHER
CRIMES AND WHETHER THE TRIAL COURT COMMITTED
REVERSIBLE ERROR BY FAILING TO CONDUCT THE
REQUISITE RULE 403 BALANCING TEST.
II.
WHETHER FLOWERS WAS DENIED HIS FUNDAMENTAL AND
CONSTITUTIONAL RIGHT TO A FAIR TRIAL DUE TO
PROSECUTORIAL MISCONDUCT.
III.
WHETHER THE TRIAL COURT COMMITTED REVERSIBLE
ERROR DURING THE SENTENCING HEARING BY FAILING TO
ANSWER THE JURY'S QUESTION.
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IV.
WHETHER FLOWERS WAS DENIED HIS RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND ARTICLE 3, SECTIONS 14 AND 26 OF THE
MISSISSIPPI CONSTITUTION.
V.
WHETHER FLOWERS WAS DENIED HIS FUNDAMENTAL AND
CONSTITUTIONAL RIGHT TO A FAIR TRIAL BY THE TRIAL
COURT'S PREJUDICIAL COMMENT BEFORE THE JURY.
VI.
WHETHER THE TRIAL COURT COMMITTED REVERSIBLE
ERROR BY OVERRULING FLOWERS'S OBJECTIONS TO THE
OPINION AND HEARSAY TESTIMONY OF JOE ANDREWS.
VII.
WHETHER THE EVIDENCE WAS INSUFFICIENT TO SUPPORT
FLOWERS'S CONVICTION OF CAPITAL MURDER AND THE
VERDICT OF DEATH.
VIII. WHETHER FLOWERS WAS DENIED HIS FUNDAMENTAL AND
CONSTITUTIONAL RIGHT TO A FAIR SENTENCING HEARING
BY THE SUBMISSION OF THE "GREAT RISK OF DEATH TO
MANY PERSONS" AGGRAVATING CIRCUMSTANCE.
IX.
X.
¶18.
WHETHER THE TRIAL COURT VIOLATED FLOWERS'S
RIGHTS SECURED BY THE EIGHTH AMENDMENT TO THE
UNITED STATES CONSTITUTION AND MISSISSIPPI LAW BY
THE SUBMISSION OF AN ANTI-SYMPATHY SENTENCING
INSTRUCTION.
WHETHER FLOWERS WAS DENIED HIS FUNDAMENTAL AND
CONSTITUTIONAL RIGHT TO A FAIR TRIAL BY THE
CUMULATIVE EFFECT OF THE MATTERS ADDRESSED
ABOVE.
Upon meticulous review of the record and consideration of the applicable law, this Court is
absolutely compelled to find that, as in Flowers I, the State employed a tactic or trial strategy of trying
Flowers for all four murders during this trial for which he was indicted only for the murder of Derrick
Stewart. Evidence of the other victims was admitted through photographs, diagrams and other testimony,
which was neither relevant nor necessary to prove the State's case-in-chief against Flowers for the murder
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of Stewart. By using this tactic or trial strategy, the State improperly prejudiced the jury and denied
Flowers his fundamental right to a fair trial. We therefore hold Flowers did not receive a fair trial, and we
reverse and remand for a new trial.
¶19.
As we also held in Flowers I, we further find that the prosecutor repeatedly argued facts not in
evidence. This occurred during the cross-examination of several witnesses and during the closing
arguments of both the district attorney and the assistant district attorney. The testimony of expert witness,
Joe Andrews, was also improperly admitted by the circuit court, as it was hearsay. For these additional
reasons, we must also reverse and remand for a new trial. Finally, as we likewise found in Flowers I,
there was an accumulation of errors which warrant reversal. Inasmuch as this Court is reversing this case
for the reasons thus far stated, there is no need to discuss the other assignments of error as so asserted by
Flowers.
DISCUSSION
¶20.
The standard for this Court’s review of an appeal from a capital murder conviction and death
sentence is abundantly clear. On appeal to this Court, convictions upon indictments for capital murder and
sentences of death must be subjected to "heightened scrutiny." Balfour v. State, 598 So. 2d 731, 739
(Miss. 1992) (citing Smith v. State, 499 So.2d 750, 756 (Miss. 1986); West v. State, 485 So.2d 681,
685 (Miss. 1985)). Under this method of review, all doubts are to be resolved in favor of the accused
because "what may be harmless error in a case with less at stake becomes reversible error when the
penalty is death." Id. (quoting Irving v. State, 361 So.2d 1360, 1363 (Miss. 1978)). See also Fisher
v. State, 481 So.2d 203, 211 (Miss. 1985).
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I.
¶21.
WHETHER FLOWERS WAS DENIED HIS FUNDAMENTAL AND
CONSTITUTIONAL RIGHT TO A FAIR TRIAL BY THE
ADMISSION OF EVIDENCE AND ARGUMENT OF OTHER
CRIMES AND WHETHER THE TRIAL COURT COMMITTED
REVERSIBLE ERROR BY FAILING TO CONDUCT THE
REQUISITE RULE 403 BALANCING TEST.
According to Flowers, the State presented evidence and testimony throughout the trial in clear
violation of the Mississippi Rules of Evidence. (See specifically Miss. R. Evid. 401-404(b)). Flowers, who
was indicted on four separate counts of murder, argues that the State left the issues relevant to the Stewart
indictment with "reckless abandon" and presented an overwhelming amount of evidence and testimony
regarding the other three victims. Flowers claims, as was the case in Flowers I, that he was denied his
fundamental right to a fair trial due to the prosecution's tactics and trial strategy. The State argues the case
sub judice is clearly distinguishable from Flowers I and all evidence admitted was necessary to the
prosecution of its case. The State claims a higher burden of proof was placed on it because this case was
purely circumstantial.
¶22.
"In criminal procedures, due process requires, among other things, that a criminal prosecution be
conducted according to established criminal procedures." Mackbee v. State, 575 So. 2d 16, 24 (Miss.
1990). "To establish those procedures this Court has promulgated the Mississippi Rules of Evidence to
guide the admission of relevant evidence." Id. See Miss. R. Evid. 401, 402.
¶23.
Our Mississippi Rules of Evidence were judicially enacted and adopted by this Court by order
dated September 24, 1985, which order stated, inter alia, that these rules “govern[ed] all proceedings in
any action had on or after January 1, 1986,” in the courts of this State. While these rules are obviously
patterned after the Federal Rules of Evidence, they are also a codification of long-standing and wellestablished Mississippi case law relating to admissibility of evidence. By now, these rules and our
9
interpretation of these rules are hardly a mystery to the lawyers practicing in our state courts. At the time
that Flowers went on trial in Gulfport, in March of 1999, these rules were in their fourteenth year of life.
¶24.
As noted above, while these rules “guide the admission of relevant evidence,” even relevant
evidence may not be admissible "if its probative value is substantially outweighed by the danger of unfair
prejudice." Miss. R. Evid. 403. One area in which relevant evidence may be excluded is in the admission
of evidence of other crimes, wrongs or acts. Miss. R. Evid. 404(b). However, an exception to the
inadmissibility of evidence of other crimes may occur when the purpose of admission is for the purpose of
establishing "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident." Miss. R. Evid. 404(b).
¶25.
"Even when other-crimes evidence is admissible under M.R.E. 404(b), it must pass through the
'ultimate filter' of M.R.E. 403." Smith v. State, 656 So. 2d 95, 99 (Miss. 1995) (citing Jenkins v.
State, 507 So.2d 89, 93 (Miss. 1987)). "Furthermore, the jury must be informed as to the limited purpose
for which they are allowed to consider the other-crimes evidence. This cannot be accomplished if 'its
probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury.'" Id. (quoting Jenkins, 507 So. 2d at 93).
¶26.
Flowers recognizes the exceptions to the rules of evidence, but he argues the State "engaged in
tactical overkill" by their total disregard for whether the evidence introduced was relevant, or even
necessary, to prove the elements of the Stewart indictment.
¶27.
Although Flowers was indicted separately for each of the four murders, there were repeated
occurrences of the introduction of evidence of the other three victims. The State began with an opening
statement which could have been presented (though not properly) at any of the trials involving the Tardy
10
Furniture murders. The District Attorney began his argument by stating four individuals were working at
Tardy Furniture the day of the murders. He then went into detail about each employee:
BY MR. EVANS:
Now Tardy Furniture Store that has been operated up there for
many years; Tom Tardy was the owner of the store originally.
And Tom Tardy was still living but was not really able to run the
store at this time. His wife, Bertha Tardy, was the actual one that
ran the store. Along with her, Carmen Rigby was the
bookkeeper that worked at the store. Now at the particular time
that this crime occurred there were two other employees in the
store. Derrick "BoBo" Smith– Stewart, I'm sorry, is the case that
we are here on today. He was a young male. He was a high
school student. He was a baseball star there in the community,
and this was a summer job for him. This wasn't even a full time
job. We will show you that this was his second day to even work
for Tardy Furniture.
A lot of the things that you see in here are going to be real
coincidental like that. If it had been a day or two earlier, he
wouldn't have even been at the store. Robert Golden was the
other person in the store. It was even more coincidental for him
because he had just been hired that day. This was his first day at
work. He had been hired by Sam Jones, who had been an
employee of the store for forty or fifty years. He showed up that
morning for the first time, and it was the last time he would be
there.
Sam Jones was later allowed to testify that he found four bodies at Tardy's and the condition of each of
those bodies.
Q.
A.
Q.
A.
Q.
Did it appear to you that Mr. Golden was alive or dead at the time that you saw
him?
He was, he appeared to be dead. Yes.
Okay. And you testified a few moments ago that you saw Bertha Tardy. Where
did you see her in the store?
Well, after I looked at Mr. Golden, I turned around again and looked at BoBo.
And just as I raised up to go get help for him because I figured the rest of them
was dead-- I hadn't seen Ms. Tardy. But I raised up to go get help for him, and
when I raised up, well, I just, I was turning around, and I glanced out in the aisle,
and I saw her laying up in the aisle there.
Ms. Tardy, Bertha Tardy?
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A.
Q.
A.
Q.
A.
Q.
A.
Yes.
When did you first notice-- did you know Carmen Rigby before that day?
Carmen Rigby?
Did you know her?
Yes, sir.
Did you see her in the store?
Yes. I saw her the same time I saw Robert and BoBo. See, I was standing right
in, in the middle of all three of them.
Throughout the remainder of the trial, the prosecution continued to refer to all four individuals who had been
killed through the testimony of its witnesses and through the evidence it introduced.
¶28.
"Evidence of prior offenses committed by a defendant, not resulting in a conviction, is generally
inadmissible either for impeachment purposes or as a part of the State's case in chief." Neal v. State, 451
So. 2d 743, 758 (Miss. 1984) (citing Mason v. State, 429 So.2d 569, 572-73 (Miss. 1983); Gray v.
State, 351 So.2d 1342 (Miss. 1977); Mills v. State, 304 So.2d 651 (Miss. 1974); Allison v. State,
274 So.2d 678 (Miss. 1973)) . "On the other hand, our law recognizes certain exceptions to the rule. Proof
of another crime is admissible where the offense charged and that offered to be proved are so interrelated
as to constitute a single transaction or occurrence or a closely related series of transactions or occurrences."
Id. at 759. As stated above, Miss. R. Evid. 404(b) provides that "evidence of other crimes may be
admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident." The Court in Brown v. State, 483 So.2d 328 (Miss. 1986),
stated:
This state has long adhered to the rule that the issue on a criminal trial should be single and
that the evidence should be limited to what is relevant to the 'single' issue. Evidence of a
prior criminal activity on the part of one criminally accused is inadmissible where the prior
offense has not resulted in a conviction. We have held, however, that the State has a
'legitimate interest in telling a rational and coherent story of what happened....' Where
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substantially necessary to present to the jury 'the complete story of the crime' evidence or
testimony may be given even though it may reveal or suggest other crimes.1
Id. at 330 (citations omitted) (emphasis added). See also Davis v. State, 530 So.2d 694 (Miss. 1988);
McFee v. State, 511 So.2d 130 (Miss. 1987); Robinson v. State, 497 So.2d 440 (Miss. 1986);
Davis v. State, 476 So.2d 608 (Miss. 1985).
¶29.
In Mackbee, the State was dealing with two crime scenes and two bodies found in the trunk of
the defendant's car. This Court held there was a "substantial justification" in referring to both bodies. 575
So. 2d at 28. Because the investigating officers were forced to testify as to what they discovered at the
scene of the crime, their responses regarding the bodies were unavoidable. Id.
Simply put, the investigators did not know that Mackbee would be charged in separate
indictments for the murders. They did not know that they would have to fix their cameras
in such an angle which would do the impossible--photograph only one body in the trunk.
The only way they could do this was to remove one body from the top of the other. Of
course this would lead them open to an accusation of tampering with the evidence. On the
contrary, the investigators properly memorialized the scene of the crime, and this was
essential in establishing Montgomery's cause of death. The officers had to do it that day
(i.e., take the pictures of the scene as found) for they could not reconstruct the scene on
the day of the trial to conform with the prosecutor's decisions in prosecuting the case.
Id. This Court further held the prosecutor was allowed to mention the bodies in closing arguments because
it allowed him to "relay the state's story in a complete and coherent manner." Id. at 29.
¶30.
In Ladner v. State, 584 So. 2d 743 (Miss. 1991), the State was also dealing with two bodies
found at the crime scene. This Court held the references made to the second victim were necessary to tell
the complete story of the crime. Id. at 758. In overruling a motion for a mistrial, the trial judge stated:
1
This case was tried in March, 1985, prior to the enactment of the Mississippi Rules of Evidence,
and while this case was decided on appeal in February, 1986, there is, understandably, no mention of the
Mississippi Rules of Evidence in this Court’s opinion.
13
As to the second victim at the scene, the two cases are so intertwined it's impossible as we
discussed in pretrial, to disassociate one from the other. There must be some lapping into
the second victim because the second victim was found right there at the scene with a bullet
in her head, too. They can't go into the detail that they could go into if the
defendant were on trial for the second victim today, but there is necessarily going
to have to be some testimony that concerns itself with the other capital murder charge.
Id. (emphasis added). Because both victims were killed with the same gun in the same location, this Court
found this argument to be without merit. Id.
¶31.
In Neal v. State, 451 So. 2d 743, 759 (Miss. 1984), the Court found that the defendant's
confession of two other murders was admissible because "they were integrally related in time, place and
fact with the murder" of which the defendant was being tried. See also Johnson v. State, 416 So.2d
383, 387 (Miss. 1982). This Court held there was no error in allowing evidence of the other murders to
be presented to the jury because "[w]e are concerned here with the State's legitimate interest in telling a
rational and coherent story of what happened to [the victim]."Neal, 451 So. 2d at 759. This Court held
that the confession would not have been coherent, rational, or worthy of belief if the other crimes were
dissected from the statement. Id.
¶32.
But there have been cases where this Court has held it is not always necessary to tell the complete
story by introducing evidence of other victims from the crime scene. As he did in his first appeal before
this Court, Flowers has relied on Stringer v. State, 500 So. 2d 928 (Miss. 1986), to in turn aver that
the prosecution presented this case as "part of an overall scheme" to try Flowers for the murders of all four
victims. In Stringer, this Court held the defendant did not receive a fair sentencing trial due to the
improper conduct of the State during the sentencing phase of the trial. Id. at 946.
¶33.
The defendant in Stringer was on trial for the murder of Mr. McWilliams. However, photographs
of Mrs. McWilliams were introduced into evidence during the testimony of the officer who found the bodies
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of Mr. and Mrs. McWilliams and then used during the testimony of both the officer and the pathologist. Id.
at 934. Slides of her body were also shown during closing argument in both the guilt phase and the
sentencing phase. Id. The pictures of Mrs. McWilliams were not overly gruesome, but the "question in the
case was primarily only of relevance--were the photographs of Mrs. McWilliams's body necessary to
establish the guilt of Jimbo Stringer in the murder of Mr. McWilliams?" Id.
¶34.
"It has long been the position of this Court that photographs of bodies may be admitted into
evidence where they have probative value, and where they are not so gruesome as to be overly prejudicial
and inflammatory." Id. See also Johnson v. State, 476 So.2d 1195, 1206 (Miss. 1985); Cabello v.
State, 471 So.2d 332 (Miss. 1985). However, by again referring to Stringer, we note language that is
also applicable in the case sub judice:
While the introduction of these pictures, in itself, did not constitute reversible error, the
pictures must have had a highly inflammatory effect on the jury. First, the pictures were part
of an overall scheme to, in effect, try Jimbo Stringer for the murders of both Ray
McWilliams and Nell McWilliams. The prosecution introduced extensive evidence about
both murders....Second, the prosecution could not be content with merely introducing the
photographs of Nell McWilliams into evidence, but displayed them to the jury during
closing argument as part of its "slide show." We deplore this practice. As the West Virginia
court noted in Clawson,2 the effect is to take the pictures far beyond their evidentiary
value and use them as a tool to inflame the jury.
500 So.2d at 934-35.
¶35.
The facts in the case before the Court today bear a strong resemblance to those in Stringer.
Because the issue is one of relevancy of evidence, this Court must decide whether the admission of
photographs, corresponding slides, autopsy diagrams and extensive testimony regarding the killing of the
three other victims constituted a tactical scheme by the State to try Flowers for all four murders during this
2
State v. Clawson, 165 W.Va. 588, 270 S.E.2d 659 (1980).
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proceeding involving only the murder of Stewart. Because the case at bar involves the same set of facts and
the same defendant, only a different victim, as Flowers I, the analysis in Flowers I provides a helpful
guide here.
¶36.
In Flowers I, this Court held:
After a thorough review, we find that the State improperly employed a tactic or trial
strategy of trying Flowers for all four murders during this trial for the murder of Tardy
alone, which we cannot say did not inflame and prejudice the jury. Evidence of the other
crimes was admitted which was not necessary in order for the State to prove its case in
chief against Flowers for the murder of Ms. Tardy. We therefore, hold that Flowers did
not receive a fair trial, and we reverse and remand for a new trial.
Flowers I, 773 So. 2d at 317. Because Flowers was tried on the Stewart indictment before the Flowers
I ruling was handed down by this Court, the State was unable to correct its past mistakes, and instead,
employed many of the same tactics during the second trial. However, the State should find little solace in
the fact that we acknowledge here that it tried Flowers on the Stewart indictment prior to our decision in
Flowers I, because in Flowers I we made no new pronouncements of law nor did we overrule any prior
case or cases in reaching the conclusion we did. Instead, as noted above in reversing the conviction in
Flowers I we applied the all-too-familiar Miss. R. Evid. 404(b)/403 balancing test based on our wellestablished case law interpreting these rules of evidence.
¶37.
One of the primary reasons Flowers I was reversed and remanded was because of the
introduction of evidence of the other three victims. Bertha Tardy's body was found twenty feet away from
the other bodies. However, the State insisted on introducing evidence of the other three victims through
photographs of the crime scene. In the case sub judice, Stewart's body was found in close proximity to
the bodies of two of the other victims. Therefore, several of the crime scene photographs would obviously
show all three bodies, or in this case the two bodies and the area where Stewart's body was found. Some
16
of the crime scene photographs will understandably and unavoidably depict the bodies of other victims.
However, any picture of Tardy, other than to establish the crime scene, would not be relevant. In Flowers
I this Court listed several other errors by the prosecution which warranted a reversal such as improper
questions and improper cross-examination. Id. at 317. Many of the same errors occurred in the second
trial and other new errors were apparent.
¶38.
As in Flowers I, Melissa Schoene, crime scene analyst, testified to many aspects of the crime
scene. Through a transparency sketch of the crime scene, Schoene described for the jury where the
bloody shoe prints were discovered, where Stewart's body had been positioned and the location of the
other victims. She testified that she recovered a bullet projectile and fragment, Exhibits S-78 and S-79,
in the area where Stewart's body had been discovered. Schoene also testified that she recovered two bullet
casings for a .380 caliber pistol, Exhibits S-82 and S-83, in the same area of the store. The defense never
disputed the fact that Stewart was shot by Doyle Simpson's .380 caliber pistol; it only disputed the identity
of the shooter.
¶39.
Schoene's testimony, which is complete, did not end at this point. The prosecution proceeded to
ask Schoene questions about Exhibits S-77, S-80, S-81, S-84 and S-85. These exhibits all pertained to
projectiles, fragments, casings or cartridges which were found no where near Stewart's body. Schoene's
answers to the prosecution's questions about the location of where these items were found included, "near
the head of Carmen Rigby," "near Robert Golden" or "near Bertha Tardy." This testimony and these
exhibits were clearly not relevant to the case at bar. The State introduced another set of exhibits. Exhibits
S-18, S-19, S-20, S-22, S-24, S-25, S-26, S-27 and S-31 and their corresponding slides were pictures
of the crime scene. Four pictures were of Bertha Tardy, one picture was a close-up of Robert Golden,
one picture was of Carmen Rigby and two pictures portrayed Golden and Rigby. Only one picture clearly
17
showed where Stewart's body had been found. The others depicted individual shots of the other victims.
Schoene was questioned by the State about each of these pictures and was also asked to give explicit
testimony as to the wounds found on Tardy.
Q.
A.
Q.
A.
Exhibit 18?
Okay, this is a photograph of Bertha Tardy.
Exhibit 19?
This is another photograph of Bertha Tardy. She is lying, she is the victim who
was farthest back in the store, and again, here is her office door.
***
Q.
A.
Exhibit 20?
Okay, again this is victim Bertha Tardy from a slightly different angle.
***
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Exhibit 22?
Okay, this is a close-up photograph of Bertha Tardy.
Okay. Were you able to determine where any wounds were on Bertha Tardy?
Yes, sir. She had some defects to her head.
And can you remember what part of the head that was?
If I may refer to my notes?
Okay.
(Pause) Yes, sir. My documentation for Bertha Tardy is that she was lying face
down, head toward the west, face facing north in a pool of blood around her head
and shoulders. Her right arm is extended outward and bent at the elbow
downward. Her left arm is underneath her body. There was a defect over her left
eye, a defect behind her right ear.
***
Q.
A.
Q.
A.
... Exhibit 25, can you tell us what this is?
This is Exhibit 25?
Right.
Okay, this is a photograph of victim Carmen Rigby.
***
Q.
Okay, and I noticed two separate pools of blood; is that correct?
18
A.
Q.
A.
Yes, sir. There is a pool of blood underneath her, and there is a pool of blood
coming from the fourth, the fourth area where there was blood but there was no
victim.
Okay, so the pool of blood in the front of that did not come from her. It came
from where the fourth victim had been removed; is that correct?
I believe so; yes, sir.
***
Q.
A.
¶40.
Exhibit number 27.
Okay, this is a photograph of victim Robert Golden lying up against the counter.
As this Court found in Flowers I, we also find this testimony was not relevant to the case at bar.
There was no probative value in introducing the pictures of the other individual victims. The admission of
the evidence, both testimony and exhibits, was highly prejudicial to Flowers.
¶41.
It must be noted that the defense objected to the introduction of these pictures on several
occasions. An earlier Miss. R. Evid. 403 hearing had taken place with regards to general evidence of the
other victims. As to whether the evidence of the other killings would be admissible, the trial judge's ruling
was as follows:
BY THE COURT:
Well, if I have not, let me rule now that I find that based- -the
evidence that would show that there are other killings is, has more
probative value than prejudicial effect, and therefore it is
admissible at least to some extent.
(emphasis added). To further clarify as to what extent the evidence would be allowed, the trial judge also
stated:
BY THE COURT:
Okay. They are entitled to show the entire, to present the jury
with the entire picture. They are entitled to see what goes on at
the scene. The position of the bodies in relation to each other is a
relevant factor that the jury should be able to consider one way or
another. Now what I will not allow-of course, there is a lot
of cumulative evidence in regard to that. I mean once
the State establishes the crime scene and all like that,
there is no point in going back into it over and over and
19
over again unless the State can establish some reason
for that.
(emphasis added).
¶42.
The trial judge’s rulings on this issue were crystal clear and eminently correct. The State certainly
had been timely and fairly forewarned by the trial judge as to the rulings. There was never a hearing where
the judge was shown the specific pictures the State intended to introduce into evidence at the trial. The trial
judge even once stated late into the trial during the direct examination of Jack Matthews, "Nobody showed
me the pictures. I guess I didn't ask, but they are admitted. They are into evidence now so- -." The
defense was objecting to the continual use of the pictures to show the jury the bodies of the other victims.
Although the trial court initially ruled that it would not allow cumulative evidence of the other victims, it is
clear from the record that the State proceeded to do that which the trial judge had specifically instructed
the State not to do, namely, to introduce extensive evidence beyond the “establishment of the crime scene.”
¶43.
During the testimony of Dr. Steven Hayne, the State's eminently qualified pathologist, the autopsy
diagrams of each victim, except Stewart, were introduced. Dr. Hayne went into great detail regarding the
injuries and the wounds of the other three victims.
Q.
A.
Q.
A.
Q.
A.
Dr. Hayne, I hand you what has been introduced in evidence as State's Exhibit
101. Is that the diagram you just previously testified about in reference to the
autopsy of Bertha Tardy?
Yes, sir.
And I will try to shorten it some. Did you observe any gunshot wound to her
head?
I did, sir.
Would you tell the jury about this particular gunshot wound?
It was a gunshot wound to the right side of the head, coursing across the head,
exiting near the left eye, going through and through the head producing extensive
injuries to the brain leading to death as well as fractures or breaking of the bone
at the base of the skull, that part of the skull on which the brain sits.
***
20
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Also, State's Exhibit 100 is the autopsy of Robert Golden. Is that the diagram that
you testified about earlier?
Yes, it is the diagram that I identified; yes, sir.
That you identified earlier?
Yes, sir.
Would you describe the gunshot wound that you found on the body of Mr.
Golden?
There was a through and through gunshot wound entering near the left ear and on
the left side of the head, exiting on the right side of the head slightly behind the right
ear. There was one unusual characteristic about this gunshot wound in that there
was tatooing [sic], deposits of unburned powder on the skin surface about the
entrance gunshot wound which would make this a near contact gunshot wound in
that the muzzle of the weapon was approximately a foot to maybe even 15 inches
away from Mr. Golden's head when the handgun was fired.
Did you notice any other wounds about him, about his body?
May I look at my notes, sir?
Sure.
Yes, sir.
Where was that gunshot wound located, Dr. Hayne?
The gunshot wound on Mr. Golden, sir?
Right. Yes, sir.
It was, it entered on the front part of the left ear, exited behind and slightly above
the right ear, sir.
Describe the second wound that you-There were multiple other wounds on the body including abrasions or scrapings
of the skin located on the left side of the face. There was also a large bruise
located on the front of the right arm near the right shoulder, and located within that
bruise was an area of skin scraping measuring approximately an inch and a half.
There was also a bruise on the inner surface of the right arm that measured
approximately one inch, and there was also a bruise located near the elbow that
measured approximately an inch and a half.
***
Q.
A.
Q.
A.
And finally, I show you State's Exhibit 102. Is that the diagram of the autopsy of,
that you performed on Carmen Rigby?
These are the diagrams of that autopsy; yes, sir.
Okay, would you describe the gunshot wound, if any, that you found on the body
of Carmen Rigby, please, sir?
The entrance gunshot wound was located over the back of the head, slightly to the
right of the midline at a 2 point 3 inches below the top of the head and
approximately 1 inch to the right of the midline of the back of the head.
21
¶44.
Amazingly, after tendering Dr. Hayne as a witness, the prosecution had to ask permission to
introduce the autopsy diagram of Stewart, having forgotten to introduce it as an exhibit or question Dr.
Hayne specifically about it. In other words, even though Flowers was on trial solely for the murder of
Stewart, after introducing into evidence and taking Dr. Hayne through detailed testimony as to the autopsy
diagrams of the other three murder victims, Bertha Tardy, Robert Golden, and Carmen Rigby, the State,
almost unbelievably, failed to introduce the autopsy diagram of Stewart, and had to seek permission from
the trial judge to have a late introduction of Stewart’s autopsy diagram into evidence. While Dr. Hayne
must certainly answer questions propounded to him by the prosecution, his testimony as elicited by the
State was found to be part of the overall trial tactic of the prosecution to try Flowers for all four murders
in Flowers I, 773 So. 2d at 323. Because essentially the same testimony was elicited at each trial, we
are compelled to once again find that in the case today the prosecution was employing the same trial tactic;
and therefore, the testimony must be found to be irrelevant and highly prejudicial to Flowers.
¶45.
In addition to the projectiles and casings offered into evidence during the testimony of Melissa
Schoene, further testimony was given by Dr. Hayne and David Balash, a firearms examiner, as to bullets
actually removed from the other victims. Dr. Hayne testified as follows:
Q.
A.
Q.
A.
Q.
A.
Q.
A.
I hand you State's Exhibit number 88 and 87 for identification purposes, and tell
me whether or not you have ever seen those items before?
(Pause while witness examines.) Yes, sir.
Okay, what are those items? If you could explain to the jury what they are,
please, sir?
These are on Mr.-- well, the first item, State's 87 shows fragments of the bullet
recovered from Mr. Golden. State's 88 shows fragments of the bullet recovered
from Carmen Rigby.
Where did you recover the projectile in 88 from Carmen Rigby? Was that
actually out of her skull, out of her head?
That's correct, sir.
And also from Mr. Golden, was it recovered?
Parts of the bullet, yes, sir.
22
Q.
A.
Q.
A.
Okay, the condition of the one recovered from Mr. Golden's head, do you recall
whether or not what type of condition it was in?
Markedly deformed.
And what about the one out of Ms. Rigby's head?
Markedly deformed fragments.
Again the defense never disputed the fact that Stewart was killed by Doyle Simpson's .380 pistol. The
State argues that it was necessary to introduce all bullets to tie in evidence to the gun, but this Court cannot
find the relevancy in this evidence. It was clearly introduced in furtherance of the State's trial tactic of trying
Flowers for all four murders.
¶46.
Chief Hargrove and Sam Jones were asked to testify as to their personal relationships with the
other victims. Chief Hargrove stated he had "[b]een knowing [Robert Golden] a long time [and] [w]hen
[Chief Hargrove's brother] come home, [Robert Golden] used to come over to [Chief Hargrove's] mother's
house and eat." The following exchange took place between the prosecution and Sam Jones in regards
to Robert Golden:
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
...Is that a photograph [shown Exhibit S-26, picture of Robert Golden] of the
condition that you saw Mr. Golden at the time you entered the store?
No, sir. It wasn't.
What is different about it?
What is different about it, he was, when I saw him, he was sitting, leaning up
against the counter like this. This hand, his left hand was on the floor. His right
hand was across here.
Okay, was he sitting up, or was he on the floor?
He was sitting up back against the counter, and he had his right hand was laying
up here, and his left hand was laying on the floor.
Okay.
Flat on the floor.
Okay, is that Mr. Golden though? Do you remember seeing him? I know you may
not be able to see his face, but does that appear to be Mr. Golden?
It seems to be, but I can't see his face.
I will show you another exhibit. State's Exhibit number 27.
That's him there.
Okay. Mr. Jones, did it appear that Mr. Golden was alive or dead at the time that
you saw him. Could you tell whether or not he was alive or dead? Mr. Golden.
23
A.
Q.
A.
Repeat the question again.
Did it appear to you that Mr. Golden was alive or dead at the time that you saw
him?
He was, he appeared to be dead. Yes.
This testimony, like so much in Flowers I, wherein Mrs. Tardy was the victim, is clearly not relevant to
the killing of Stewart. In Flowers I, Jones testified in great detail about finding Stewart's body, his
condition and even the sounds he made. But in the case at bar, the prosecution chose to focus more on
Jones's personal relationship with Golden and the crime scene as it related to that particular victim.
¶47.
Cases such as Mackbee, Ladner and Neal, illustrate the necessity of telling the jury the
complete story. But the case sub judice is only illustrative of a trial tactic employed by the State in an
attempt to try Flowers for all four murders. It was clearly necessary for the State to introduce some
evidence to the jury pertaining to the other three victims to ensure a complete and rational story. But here
the State crossed the line, a line which was established by the trial judge during a pretrial ruling. The jury
should have been allowed to see only those pictures necessary to depict the crime scene. Close-ups of
other victims lying in pools of blood did nothing to help prove the State's case against Flowers in the killing
of Stewart. Those pictures only helped to inflame and prejudice the jury and to remind the jury that four
people were killed that day at Tardy Furniture.
¶48.
This Court also finds the State went too far in allowing its witnesses to testify as to the specific
wounds of the other three victims using the autopsy diagrams. This line of testimony is further evidence of
the trial tactic and strategy employed by the State to try Flowers for all four murders. The State also
entered every bullet and every casing into evidence, including the ones found by Bertha Tardy who was
shot in a different location and the bullet fragments which were recovered from the other victims. The
24
defense never disputed Stewart was shot with Doyle Simpson's gun. It was not necessary for the State's
case as to the Stewart killing to introduce all the fragments and casings found.
¶49.
The State of Mississippi, by and through the various offices of the District Attorneys, is acting
totally within its authority in seeking and receiving multi-count indictments from the county grand juries in
certain specified instances as provided by statute and rule. See Miss. Code Ann. § 99-7-2 (Rev. 2000);
URCCC 7.07. Upon the return of a multi-count indictment, the trial court in the exercise of sound
discretion and on motion of the State or the defendant, may grant a severance of offenses. However, as
to Flowers, there were four separate indictments returned against him, one for each of the victims. Again,
notwithstanding the statutory authority which has existed since 1986 for one or more defendants to be
charged in a multi-count indictment in certain instances, there is no legal prohibition against a defendant such
as Flowers being charged in separate indictments for each of the offenses, thus resulting in separate trials
on each indictment. Indeed, there is no mystery as to why the State might choose to proceed as it did
against Flowers -- the odds are much better from the State’s viewpoint as far as securing at least one
conviction and what might be deemed to be an appropriate sentence. On the other hand, if the State in this
case were so insistent in presenting at trial all the evidence that was presented as to all four victims, it need
only to have left viable its initial motion to consolidate the four cases (which Flowers had not opposed),
instead of withdrawing the motion, or at least conceded Flowers’s later motion to consolidate the cases
instead of opposing the motion. Agreed consolidation of multiple indictments for trial purposes in certain
instances certainly is not foreign to Mississippi criminal procedure. See Frost v. State, 453 So.2d 695,
696 (Miss. 1984).
¶50.
At oral argument in this case, the State argued, inter alia, that since Flowers’s trial here on the
Derrick Stewart indictment was based purely on circumstantial evidence, thus resulting in the State being
25
required to prove Flowers’s guilt not only beyond a reasonable doubt, but also to the exclusion of every
reasonable hypothesis consistent with innocence, the State was not only permitted, but obligated, to present
extensive evidence of homicide as to all four victims in order to exclude any hypothesis which might be
deemed to be consistent with innocence. Interestingly, but not surprisingly, the State offers no authority for
this proposition. Again, we emphasize that although the learned trial judge correctly ruled that in order to
convey the “entire picture” the State could offer evidence of the crime scene, including location of the
bodies, the trial judge, in his pre-trial ruling, also correctly limited the State’s presentation of the evidence
by disallowing “cumulative evidence....once the State establishes the crime scene.” Notwithstanding the trial
court’s initial proper evidentiary rulings, the State chose to go far beyond the trial court’s ruling, and when
the State chose this course of action, it did so at its own peril.
¶51.
All of this having been stated on this issue, in the end, the question which must be asked is whether
the evidence introduced by the State was relevant, or necessary, to establish the guilt of Flowers in the
murder of Derrick Stewart, and only Derrick Stewart. This Court holds the cumulative evidence of the
photographs, the autopsy diagrams and the testimony regarding the other individual victims were neither
relevant nor necessary to the case sub judice, and were, therefore, highly prejudicial to Flowers. The
State's pattern of continuously referring to the killing of the other three victims throughout the entire guilt
phase denied Flowers his fundamental right to a fair trial.
II.
¶52.
WHETHER FLOWERS WAS DENIED HIS FUNDAMENTAL AND
CONSTITUTIONAL RIGHT TO A FAIR TRIAL DUE TO
PROSECUTORIAL MISCONDUCT.
Flowers next argues that prosecutorial misconduct occurred at several stages throughout the trial.
Flowers asserts that these individual occurrences and their cumulative effect denied him his right to a fair
trial. The State argues several of Flowers's cited occurrences are procedurally barred by lack of
26
contemporaneous objections. Flowers contends that objections were made in almost all of the instances,
and that even if objections were not made, the plain error rule should apply. While some of these
allegations of error are procedurally barred, we will address the merits of the underlying claims in the order
raised by Flowers, knowing that any subsequent review will stand on the procedural bar alone. Chase
v. State, 645 So.2d 929, 845 (Miss. 1994); Foster v. State, 639 So.2d 1263, 1270 (Miss. 1994).
[I]t is the duty of a trial counsel, if he deems opposing counsel overstepping the wide range
of authorized argument, to promptly make objections and insist upon a ruling by the trial
court. The trial judge first determines if the objection should be sustained or overruled. If
the argument is improper, and the objection is sustained, it is the further duty of trial
counsel to move for a mistrial. The circuit judge is in the best position to weigh the
consequences of the objectionable argument, and unless serious and irreparable damage
has been done, admonish the jury then and there to disregard the improper comment.
Johnson v. State, 477 So.2d 196, 209-10 (Miss. 1985). See Wilson v. State, 234 So.2d 303, 308
(Miss. 1970); Aldridge v. State, 180 Miss. 452, 456, 177 So. 765 (1938); Matthews v. State, 148
Miss. 696, 791, 114 So. 816 (1927).
However, heightened scrutiny applies in death penalty cases. Plain
error will apply to the issues we discuss hereafter. Foster v. State, 639 So.2d at 1289 (citing Gray v.
State, 487 So.2d 1304, 1312 (Miss. 1986) ("defendant who fails to make a contemporaneous objection
must rely on plain error to raise the assignment on appeal")). Two of Flowers's sub-claims regarding
prosecutorialmisconduct warrant discussion: (1) the attempted impeachment of witnesses by the prosecutor
without a factual basis, and (2) the prosecutor's arguing of facts not in evidence.
A.
¶53.
Whether the Prosecutor Improperly Attempted the Impeachment
of Witnesses Without Factual Basis.
Flowers argues the prosecution committed reversible error by arguing facts not in evidence when
the prosecutor on cross-examination accused Latarsha Blissett, Stacey Wright and Mary Ella Fleming of
harassing Clemmie Fleming and allegedly trying to get her to give false testimony. Flowers contends this
27
same tactic was used by the State in Flowers I during the cross-examination of Connie Moore. The State
argues that any impeachment questions were supported by the testimony of Investigator John Johnson.
¶54.
Miss. R. Evid. 613, which governs prior statements of witnesses, provides:
(a) Examining Witness Concerning Prior Statement. In examining a witness concerning a
prior statement made by him, whether written or not, the statement need not be shown nor
its contents disclosed to him at that time, but on request the same shall be shown or
disclosed to opposing counsel.
(b) Extrinsic Evidence of Prior Inconsistent Statement of Witness. Extrinsic evidence of
a prior inconsistent statement by a witness is not admissible unless the witness is afforded
an opportunity to explain or deny the same and the opposite party is afforded an
opportunity to interrogate him thereon, or the interests of justice otherwise require. This
provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2).
(emphasis added).
It is no longer required that the witness be directed to the statement on
cross-examination as to a particular time or sequence, but the witness should be given an opportunity to
explain the statement. See Miss. R. Evid. 613 & cmt. This Court has held that a stricter standard should
be followed, and we have, therefore, required the questions to include, "whether or not on a specific date,
at a specific place, and in the presence of specific persons, the witness made a particular statement."
Carlisle v. State, 348 So.2d 765, 766 (Miss. 1977) (citations omitted). "Then with the predicate
properly laid, the witness may be impeached by showing prior statements inconsistent with the in-court
testimony, so long as the statement made in court is one relevant to the issue in the case and therefore not
collateral." Id. (citing Williams v. State, 73 Miss. 820, 19 So. 826 (1896), aff'd, 170 U.S. 213, 18
S.Ct. 583, 42 L.Ed. 1012 (1898)).
¶55.
As we stated in Flowers I, it is of the utmost importance that counsel have “a good faith basis for
any question asked on cross-examination; therefore, counsel may not use prior inconsistent statements as
a ‘guise of impeachment for the primary purpose of placing before the jury substantive evidence which
is not otherwise admissible.’" 773 So. 2d at 326-27 (citing Harrison v. State, 534 So.2d 175, 178
28
(Miss. 1988) (citations omitted) (emphasis in original); Foster v. State, 508 So.2d 1111, 1115 (Miss.
1987)). This Court has stated:
The asking of questions without a factual basis leaves an impression in the mind of jurors
that the prosecutor actually had such facts in hand and that the insinuations through
questioning contained some truth. This leaves false and inadmissible ideas in the minds of
jurors that cannot be adequately rebutted by the testimony of witnesses or instructions from
the court.
Walker v. State, 740 So. 2d 873, 884 (Miss. 1999).
¶56.
In Flowers I, the State attempted to impeach the defense witness, Connie Moore. Id. 773 So.
2d at 327-28. On direct examination, Moore testified that she bought a pair of Fila Grant Hill tennis shoes
for her son. Id. at 328. On cross-examination, the State tried to show Moore had, in fact, bought them
for Flowers. Id. During her testimony, the State asked Moore if Patricia Hollman was with her when she
purchased the shoes. Id. Moore stated Hollman was not present when she bought the shoes. Id. Moore
also testified that she did not tell Hollman she was buying the shoes as a gift for Flowers. Id.
¶57.
After this particular questioning, this Court held the proper predicate for impeachment had been
laid. Id. See also Carlisle v. State, 348 So.2d at 766. This Court further held the State was required
to either continue with the impeachment by showing a basis in fact for the questions or offer a witness in
rebuttal to prove the truth of the prior statement. Flowers I, 773 So. 2d at 328. Because the State had
no basis in fact to make the claim and because on rebuttal the State never refuted Moore's denial, this
Court found the State's tactic to be in bad faith. Id. Although Patricia Hollman was called as a witness
by the State, she was never questioned about either being present when Moore bought the shoes or hearing
Moore state for whom she was buying the shoes. Id. Hollman was not called as a rebuttal witness after
29
the State posed these particular questions to Moore. Id. This Court held this was clearly error by the
State.
¶58.
In the case sub judice, Flowers again argues that the State improperly attempted to impeach three
witnesses without presenting a factual basis: Latarsha Blissett, Mary Ella Fleming and Stacey Wright.
When cross-examining Flowers's witnesses, the State accused the witnesses of "harassing" their witnesses.
During the cross-examination of Latarsha Blissett, the prosecutor asked her if she had tried to get Clemmie
Fleming to lie for Flowers in order to get him out of jail, and if she and other family members had harassed
Fleming in an effort to get her to change her story. The prosecution cross-examined Mary Ella Fleming on
the premise that she had attempted to have Clemmie Fleming testify in such as way as to “save” Flowers.
Also, Stacey Wright was cross-examined by the prosecution in such a way as to infer that she and others
had been harassing Clemmie Fleming to get her to change her testimony.
¶59.
After the above cross-examination was complete, the proper predicate for impeachment was laid.
Flowers I, 773 So. 2d at 328. See also Carlisle v. State, 348 So. 2d at 766. According to Flowers
I, the State was required to "continue with the impeachment and show a basis in fact for the question, or
to offer a subsequent witness in rebuttal to prove the statement[s] [were] true that [the witnesses] lied."
773 So. 2d at 328. The State called Clemmie Fleming as a rebuttal witness, but on direct examination, the
prosecutor failed to question Fleming about whether Latarsha Blisset, Mary Ella Fleming or Stacey Wright
ever harassed her or asked her to lie. However, on redirect, the prosecution asked Fleming, "[w]ho, if
anyone, asked you to lie in relationship to this case?" Fleming responded, "Mary Fleming." Defense
counsel immediately objected and asked the answer be stricken because he had no ability to crossexamine. The trial court asked the jury to disregard the witness's last statement and excused Fleming.
30
¶60.
The State argues this claim is factually distinguishable from the defense's argument in Flowers I.
The State contends the impeachment questions in the case sub judice were supported by the testimony of
Investigator John Johnson. The State points out that when Clemmie Fleming was interviewed by Johnson,
she was "real nervous and upset." Although Johnson testified that Fleming did tell him why she was upset,
he was not allowed to testify to any statements made by Fleming because of hearsay. Contrary to the
contentions of the State, there is no evidentiary basis for this line of questioning.
¶61.
This Court has clearly held that "it is prejudicial error for questions on cross-examination to contain
insinuations and intimations of such conduct when there is no basis in fact." Walker, 740 So. 2d at 884
(citing Hosford v. State, 525 So.2d 789, 793 (Miss. 1988)). Here, the only attempt by the prosecutor
to prove that the three defense witnesses lied during cross-examination about statements made to Clemmie
Fleming was to ask one question during redirect that was stricken from the record. This Court finds error
in the State's failure to offer proof that Latarsha Blissett, Stacey Warren and Mary Ella Fleming lied. This
line of questioning without evidentiary basis has been found by this Court to be inflammatory and highly
prejudicial. This Court holds it was prejudicial to the case at bar.
B.
¶62.
Whether The Prosecutor Argued Facts Not In Evidence During
Closing Arguments.
Flowers also argues both the District Attorney and the Assistant District Attorney, in their closing
arguments, argued facts not in evidence. Flowers cites to several specific examples in each closing
argument where the State argued facts not in evidence. In response, the State tries to connect the
comments made in the closing arguments to the proper testimony on which they were based.
¶63.
The standard of review which this Court must apply to lawyer misconduct during opening
statements or closing arguments is "whether the natural and probable effect of the improper argument is to
31
create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so
created." Sheppard v. State, 777 So. 2d 659, 661 (Miss. 2001) (citing Ormond v. State, 599 So.2d
951, 961 (Miss. 1992)).
¶64.
Attorneys are afforded wide latitude in arguing their cases to the jury, but they are not allowed to
employ tactics which are "inflammatory, highly prejudicial, or reasonably calculated to unduly influence the
jury." Sheppard, 777 So.2d at 661 (citing Hiter v. State, 660 So.2d 961, 966 (Miss. 1995)). The
purpose of a closing argument is to fairly sum up the evidence. Rodgers v. State, 796 So. 2d 1022,
1027 (Miss. 2001). The State should convey those facts which the prosecution asserts a verdict of guilty
would be proper. Clemons v. State, 320 So.2d 368, 370 (Miss. 1975). "The prosecutor may comment
upon any facts introduced into evidence, and he may draw whatever deductions and inferences that seem
proper to him from the facts." Bell v. State, 725 So.2d 836, 851 (Miss. 1998) (collecting authorities).
Counsel "cannot, however, state facts which are not in evidence, and which the court does not judicially
know, in aid of his evidence. Neither can he appeal to the prejudices of men by injecting prejudices not
contained in some source of the evidence." Nelms & Blum Co. v. Fink, 159 Miss. 372, 131 So. 817,
821 (1930). See also Sheppard, 777 So.2d at 661.
¶65.
"In appropriate circumstances, prosecutorial misconduct has been the basis for reversal of a
defendant's conviction and sentence." Chase, 645 So.2d at 853. However, in discussing the broad
latitude afforded attorneys in making their closing arguments, this Court has stated:
Counsel was not required to be logical in argument; he is not required to draw sound
conclusions, or to have a perfect argument measured by logical and rhetorical rules; his
function is to draw conclusions and inferences from evidence on behalf of his client in
whatever he deems proper, so long as he does not become abusive and go outside the
confines of the record.
32
Brown v. State, 690 So.2d 276, 296 (Miss. 1996)(quoting Johnson v. State, 416 So.2d 383, 391
(Miss. 1982)). Indeed, we have held that "the prosecutor may comment on facts in evidence and may
draw proper deductions there from." Id.
A defendant is entitled to a fair and impartial trial before a jury not exposed to abusive
arguments appealing to their passions and prejudices. Although ours is an adversary
system, prosecuting attorneys must exercise caution and discretion in making extreme
statements in their arguments to the jury, if for no other reason than to save themselves, the
defendant, the court and the jury the additional time, expense and effort involved in a
retrial.
Dunaway v. State, 551 So. 2d 162, 163-64 (Miss. 1989)(citing Keyes v. State, 312 So.2d 7, 10
(Miss. 1975)). See also Stewart v. State, 263 So.2d 754, 758 (Miss. 1972).
¶66.
Where the argument does not result in "unjust prejudice against the accused as to result in a
decision influenced by the prejudice so created," this Court will find it harmless. Wells v. State, 698 So.2d
497, 507 (Miss. 1997) (quoting Davis v. State, 684 So.2d 643, 656 (Miss. 1996); Davis v. State, 530
So.2d 694, 701 (Miss. 1988)).
¶67.
In Harvey v. State, 666 So. 2d 798 (Miss. 1995), this Court found the defendant's issue
regarding the State's improper closing argument to be meritorious. This Court held the prosecutor crossed
the line and proceeded outside of the record when the State told the jury the defense threatened a witness
to keep her from testifying at the trial. Id. at 801. This Court determined:
The prosecutor's comment of "somebody connected with the defense" and "they
threatened her," could be interpreted as referring to Harvey, other defense witnesses, or
even defense counsel. The prosecutor should have limited his comments in argument to
Brown's state of mind of being fearful at the time she testified. His failure to do so makes
the verdict suspect as to whether Harvey received a fair trial.
Id. This Court further held "the natural and probable effect of the prosecutor's improper argument was to
create unjust prejudice against Harvey so as to result in a decision by the jury which this Court cannot say
33
with any degree of certainty was not influenced by prejudice." Id. See Johnson v. State, 596 So.2d
865 (Miss. 1992).
¶68.
Flowers cites to at least fourteen different comments by the State which he believes are improper.
Over one-half of the comments relate to the State’s accusing the defense witnesses of either changing their
stories or trying to get prosecution witnesses to lie for the defendant. The State lists several examples of
testimony upon which it contends the comments were based. In one comment, the prosecution stated that
the defense witnesses tried to force their prosecution witnesses to lie.
BY MR. EVANS:
You have heard testimony how the defense witnesses tried to get
our witnesses to lie, to come into court and change their story and
say that he was not the person. You have seen that happen in this
courtroom before your very eyes.
***
[Curtis Flowers] got rid of [the Fila tennis shoes], but he couldn't
get rid of the witnesses. They tried to force them to lie. They put
pressure on them.
¶69.
Because this Court held the State improperly impeached Latarsha Blissett, Stacey Warren and
Mary Ella Fleming, there is no evidentiary basis for this statement. But as stated above, attorneys are
afforded wide latitude in arguing their case to the jury. A prosecutor is allowed to draw whatever
deductions and inferences that seem proper from the facts. Testimony was before the jury of one witness,
Roy Harris, changing his story. The trial court also gave an instruction to the jury which said:
BY THE COURT:
¶70.
Arguments, statements and remarks of counsel are intended to
help you understand the evidence and apply the law, but are not
evidence. If any argument, statement or remark has no basis in the
evidence, then you should disregard that argument, statement or
remark.
"The test to make such determination is whether the natural and probable effect of improper
argument is to create unjust prejudice against the accused so as to result in a decision influenced by
34
prejudice." Harvey, 666 So.2d at 801 (citing Johnson v. State, 596 So.2d 865, 869 (Miss. 1992)).
By specifically accusing the defendant and the defense of trying to coerce prosecution witnesses into lying,
the State attempted to create a prejudice against Flowers that would influence the jury.
¶71.
The remaining comments cited by the defense concern alleged misstatements of facts by the
prosecution. Two examples cited by Flowers involve the prosecutor’s closing arguments to the jury about
the testimony of Sam Jones and Robert Campbell. The prosecutor argued Jones had testified that at 9:30
a.m., he received a call from Bertha Tardy to come to the store, while defense counsel asserted in his
objection that Jones had testified that he received the call at 9:00 a.m. and arrived at the store at 9:30 a.m.
After the trial judge ruled that the jury would recall the evidence and that “[t]his is argument,” the
prosecutor fired the last shot by stating before the jury, “[Jones] said he received a call around 9:30. I
recall; I wrote it down.” Additionally, the prosecutor argued to the jury that Campbell had testified that
Flowers was mad because Mrs. Tardy had terminated his employment and was holding money out of his
paycheck to cover the damaged batteries. Defense counsel objected on the basis that the prosecutor was
mischaracterizing Campbell’s testimony, and when the prosecutor responded that he was quoting verbatim
from his notes, the trial court overruled the defense objection.
¶72.
After a thorough examination of the record, it is clear from Jones's testimony that he testified he
arrived at Tardy's at 9:30. He never once stated he was called at 9:30 on the morning of July 16, but he
did testify he arrived at the store around 9:30. On direct examination, the State never questioned Jones
about a specific time. He only stated he received a call from Mrs. Tardy on the morning of July 16. On
cross-examination, Jones was asked what time he arrived at Tardy's, and he answered that it was around
9:30.
35
¶73.
The second exchange involves the testimony of defense witness, Robert Campbell. After a thorough
examination of the Campbell's testimony, it is clear Campbell never testified Flowers was upset at Mrs.
Tardy. The State never questioned Campbell about Flowers's feelings toward Tardy or about any money.
On redirect, Campbell was asked if Flowers ever mentioned anything was wrong with Mrs. Tardy and,
Campbell stated Flowers never mentioned anything to him.
¶74.
Flowers lists several other instances where the State misstated testimony of witnesses. The
cumulative effect of the State's repeated instances of arguing facts not in evidence was to deny Flowers his
right to a fair trial.
III.
¶75.
WHETHER THE TRIAL COURT COMMITTED REVERSIBLE
ERROR DURING THE SENTENCING HEARING BY FAILING TO
ANSWER THE JURY'S QUESTION.
Flowers next argues the trial court had the authority to answer the question asked by the jury during
sentencing deliberation. Flowers specifically contends the trial court had authority to tell the jury that "life
without parole is life without parole." The State argues Flowers received the instruction he requested and
waived any objection with regard to the instruction.
¶76.
The question asked by the jury was, "If Curtis Flowers gets imprisonment without parole-Does that
mean he will never get out of prison?"3 The defense asked for the court to instruct the jury that "life without
parole is life without parole." The trial court decided that because he had no authority to answer the jury's
question, he would refer them back to the instructions previously given by the court. The counsel for the
defense then asked the trial judge to refer to Instruction Number One, which specifically dealt with the
sentencing options. Sentencing Instruction Number One stated in pertinent part:
3
As required by URCCC 3.10, the question was reduced to writing, and the trial judge followed
the correct procedure in dealing with the question.
36
BY THE COURT:
You have found Curtis Giovanni Flowers guilty of the crime of
capital murder. You must now decide whether Curtis Giovanni
Flowers will be sentenced to death or life imprisonment without
parole.
After each side agreed to waive any objections, the trial court sent a note back to the jury saying, "You
should refer to Sentencing Instruction number 1."
¶77.
According to Miss. Code Ann. § 97-3-21, "[e]very person who shall be convicted of capital
murder shall be sentenced (a) to death; (b) to imprisonment for life in the State Penitentiary without parole;
or (c) to imprisonment for life in the State Penitentiary with eligibility for parole as provided in Section
47-7-3(1)(f)." Miss. Code Ann. § 99-19-101(1) states in pertinent part that "[u]pon conviction or
adjudication of guilt of a defendant of capital murder or other capital offense, the court shall conduct a
separate sentencing proceeding to determine whether the defendant should be sentenced to death, life
imprisonment without eligibility for parole, or life imprisonment." Miss. Code Ann. § 47-7-3(1)(f) states
"[n]o person shall be eligible for parole who is charged, tried, convicted and sentenced to life imprisonment
under the provisions of Section 99-19-101." The reading of these statutes together indicate that a
defendant on trial for capital murder may only be sentenced to death or life imprisonment without the
eligibility of parole. According to § 47-7-3(1)(f), there is no longer the possibility of life imprisonment. By
giving only the sentencing options of death or life imprisonment without parole, the trial judge properly gave
the jury all the instructions that were needed. See Pham v. State, 716 So.2d 1100, 1103-04 (Miss.
1998).
¶78.
This Court has repeatedly held that except in habitual offender cases, where a life sentence would
automatically mean life without parole, the parole issue should not be considered by the sentencing jury.
Smith v. State, 724 So.2d 280, 293-94 (Miss. 1998);Blue v. State, 674 So.2d 1184, 1194-96 (Miss.
37
1996); Mackbee v. State, 575 So.2d 16, 40-41 (Miss. 1990); Williams v. State, 544 So.2d 782,
798 (Miss. 1987); Cabello v. State, 471 So.2d 332, 346 (Miss. 1985). In this state's original case on
this issue, Williams v. State, 445 So.2d 798, 812-14 (Miss. 1984), this Court held that:
A jury should have no concern with the quantum of punishment because it subverts a
proper determination of the sentencing issue.
Reference to the possibility of parole should the defendant not be sentenced to die are
wholly out of place at the sentencing phase of a capital murder trial for two additional
reasons.
First, such references inevitably have the effect of inviting the jury to second guess the
Legislature. The Legislature has declared that persons sentenced to life imprisonment may
under certain circumstances become eligible for parole. Miss. Code Ann. § 47-7-3(1)
(Supp. 1982). It is no more proper for the jury to concern itself with the wisdom of that
legislative determination than it is for the jury to consider the Legislature's judgment that
death in the gas chamber be an authorized punishment for capital murder. Johnson v.
State, 416 So.2d 383, 392 (Miss. 1982).
Second, parole is not automatic. No person sentenced to life imprisonment has any "right"
to parole. Greenholtz v. Inmates of Nebraska Penal and Correctional
Complex, 442 U.S. 1, 11, 99 S.Ct. 2100, 2105, 60 L.Ed.2d 668, 677 (1979); Davis
v. State, 429 So.2d 262, 263 (Miss. 1983). Allowing argument or testimony regarding
the possibility of the defendant some day being paroled is in effect inviting the jury to
speculate how ten years in the future the parole board may exercise its legislatively
granted discretionary authority. This would introduce into the sentencing proceedings an
"arbitrary factor" proscribed by section 99-19-105(3)(a).
Williams, 445 So.2d at 813 (emphasis in original). This Court has reaffirmed this holding on several
occasions. See Smith v. State, 724 So.2d 280, 293-94 (Miss. 1998); Blue v. State, 674 So.2d 1184,
1194-96 (Miss. 1996); Mackbee v. State, 575 So.2d 16, 40-41 (Miss. 1990); Williams v. State,
544 So.2d 782, 798 (Miss. 1987); Cabello v. State, 471 So.2d 332, 346 (Miss. 1985).
¶79.
This Court has also cautioned judges against making any comments, or giving instructions to the
jury after it retires to reach a verdict. Haynes v. State, 451 So. 2d 227, 231 (Miss. 1984).
38
In this case the jury had already been amply instructed, indeed, more than amply instructed
in S-4. There was no need to further instruct them. While the circuit judge was
undoubtedly trying to deal with a vexing type of problem as best he could, we believe the
proper response to the jury would have been that they had already been properly
instructed on this question and to read their instructions.
Id. We agree with the Court in Haynes in determining the jury in the case sub judice was amply instructed
as to the sentencing options. Unlike the trial judge in Haynes, this trial judge in the case before us today
correctly instructed the jury to refer back to the instructions which had been previously given. Also
pursuant to the applicable statutes, the trial judge properly instructed the jury on the appropriate sentencing
options. This issue is without merit.
VI.
¶80.
WHETHER THE TRIAL COURT COMMITTED REVERSIBLE
ERROR BY OVERRULING FLOWERS'S OBJECTIONS TO THE
OPINION AND HEARSAY TESTIMONY OF JOE ANDREWS.
Flowers argues that the evidence put on by the prosecution through one of their experts, Joe
Andrews, was based solely on hearsay. The State argues the trial court did not abuse his discretion in
admitting the disputed evidence because, as an expert, Andrews is entitled to rely on hearsay to form his
opinions.
¶81.
At trial Flowers objected to Andrews testifying about the shoe impression found at the crime scene
because he believed the analysis was based on hearsay. The trial court overruled the objection and
allowed Andrews to testify regarding the shoe impression.
¶82.
Andrews, an employee of the Mississippi Crime Lab, was qualified as an expert in the field of
forensic microanalysis. As indicated earlier, photographs were taken from the scene which depicted
footprints. From those photographs, Andrews determined the prints were of footwear, or shoe
impressions. After determining the photographs were of footwear impressions, Andrews next compared
the photographs with a pair of shoes taken from the defendant. The shoes, a pair of Nike Flight tennis
39
shoes, were not consistent with the type of shoe that left the impression at Tardy's. Andrews then visited
several athletic stores, and found a design that was very similar to the design in the photograph. The design
was found on a pair of Fila athletic shoes.
¶83.
The shoe box found at Connie Moore's home was submitted to Andrews and the Mississippi Crime
Lab for the examination for latent prints. After noticing that the shoe box originally contained a pair of Fila
Grant Hill II MID shoes, Andrews suggested the Highway Patrol purchase a similar pair of shoes so that
they could be compared to the impressions from the scene. An investigator from the Highway Patrol
purchased a pair of Fila Grant Hill Olympic athletic shoes. Although the two pair of shoes were different
styles, Andrews testified the Fila manufacturer told him "all of the Grant Hill II designs have the exact same
out sole pattern." Andrews testified that an expert concerning footwear impressions, it is sometimes
necessary to confer with manufacturers to obtain information about shoes and shoe soles because there are
so many different styles and sizes of shoes available.
¶84.
Andrews then testified in his expert opinion the type shoe purchased by the Highway Patrol
investigator could not be excluded as having made the impressions at the scene of the crime. Andrews also
testified that the type of shoe which would have originally been in the shoe box found at Connie Moore's
house would have also made the same type of impression.
¶85.
Miss. R. Evid. 703 states:
The facts or data in the particular case upon which an expert bases an opinion or inference
may be those perceived by or made known to him at or before the hearing. If of a type
reasonably relied upon by experts in the particular field in forming opinions or inferences
upon the subject, the facts or data need not be admissible in evidence.
This Court has allowed evidence, as a basis of an expert's opinion, that would otherwise be inadmissible
hearsay. Mississippi Valley Gas Co. v. Estate of Walker, 725 So.2d 139, 152 (Miss. 1998). See
40
Hull v. State, 687 So.2d 708, 716-17 (Miss. 1996) (holding statements that expert used to base opinion
on admissible where not offered to prove the truth of the matter asserted); Slay v. Illinois Cent. Gulf
R.R., 511 So.2d 875, 879 (Miss. 1987) (holding trial court did not err by allowing expert to testify about
statements made to him in forming his opinion where statements were not offered to prove the truth of
matter asserted).
¶86.
In Morley v. Jackson Redevelopment Authority, 632 So.2d 1284, 1293 (Miss. 1994), this
Court addressed the issue of "whether the information relied on by an expert is admissible just by virtue of
his reliance on it" in reaching his expert opinion. In Morley, this Court held that the trial court erred by
allowing into evidence hearsay statements used by an expert where the statements were used not to explain
the expert's opinion, but to merely bolster his opinion. Id. at 1294. In making its decision, the Court relied
heavily United States v. Grey Bear, 883 F.2d 1382, 1392-93 (8th Cir. 1989), which held that "while
a witness may rely on information which is inadmissible in evidence, that does not give the witness the right
to circumvent the rules of hearsay by giving statements which corroborate his view." Morley, 632 So.2d
at 1294.
¶87.
However, this Court, in Slay, held that the trial court did not err by allowing an expert to testify
about statements made by employees of the Illinois Central Gulf as part of the basis for his opinion. 511
So.2d at 879. The trial judge overruled an objection that the statements were inadmissible, finding the
testimony admissible "not for the purpose of proving the truth of what was told him, but for the purpose of
showing that it was told to him, which led him to take certain other actions," such as conducting his own
tests. Id. This Court held:
Simply put, hearsay is "an out-of-court statement, not made under oath and not subjected
to cross-examination, which is introduced for the truth of the matter asserted." Ellis &
41
Williams, Miss. Evidence, § 8-1 (1983). Here, the trial judge properly ruled that
Copeland's testimony, relating statements made by those present at McNamara's test, was
introduced not to show the manner of McNamara's examination, but to explain the basis
for his own test of the locomotive. Consequently, there was no error.
Id.
¶88.
In Walker, Valley Gas asserted that if the offered statements had been allowed into evidence, the
statements were not hearsay because they were offered to further explain the basis of the expert's opinion
and not to prove the truth of the matter asserted. 725 So. 2d at 153. The plaintiffs, however, contended
that the statements, if allowed, would have enabled Valley Gas to present to the jury statements offered
to prove the truth of the matter asserted. Id. This Court held:
[T]he trial court did not err by refusing to allow [the expert] to testify about the statement
made by the unidentified man about the children playing in the abandoned house before the
fire because such testimony would not go to explain the basis of the expert's opinion but
would be used to prove the truth of the matter asserted, i.e., that there were children
playing in the abandoned house where the fire ignited. Therefore, the statements were
inadmissible hearsay and properly excluded by the trial court.
Walker, 725 So. 2d at 152-53.
¶89.
In the case sub judice, Andrews, as an expert, was qualified to testify regarding his forensic testing
performed on the Fila Olympic shoes. However, Andrews went a step further and testified, based on what
was told to him by the Fila representative, that if he had performed an analysis on the Fila Grant Hill II
MID shoes, those, too, would be consistent with the impressions. This statement does not show that
Andrews was led to other actions because the Fila Grant Hill II MID shoes were never tested. This
statement was only offered to prove the truth of the matter asserted–that the Fila Grant Hill II MID shoes
were consistent with the impressions found at the crime scene. We, therefore, find that the testimony by
Joe Andrews regarding the shoe impressions was based on hearsay and was erroneously admitted by the
trial court.
42
VIII. WHETHER FLOWERS WAS DENIED HIS FUNDAMENTAL AND
CONSTITUTIONAL RIGHT TO A FAIR SENTENCING HEARING
BY THE SUBMISSION OF THE "GREAT RISK OF DEATH TO
MANY PERSONS" AGGRAVATING CIRCUMSTANCE.
¶90.
Flowers next argues that by obtaining four separate indictments, the State was forced to rely on
the other three victims to prove the aggravating factor of "knowingly created a great risk of death to many
persons." Flowers claims that where the conduct alleged to constitute "a great risk of death to many
persons" was the same conduct that was the subject of other indictments for which the death penalty is also
sought, the use of this factor violated the Eighth Amendment, the double jeopardy clause of the Fifth
Amendment and Mississippi law. The State argues that this particular claim has previously been addressed
and rejected by this Court. The State also asserts that the lack of objections serves as a procedural bar
to this issue. But, as stated above, we will address this issue under the plain error rule.
A.
¶91.
Whether the Submission of the "Great Risk of Death to Many
Persons" Violated Flowers's Rights Secured by the Eighth
Amendment to the United States Constitution.
Flowers first contends that the use of this aggravator violated his rights under the Eighth
Amendment. As the State points out, this issue was addressed in Flowers I where we held:
Finally, we note that one of the aggravators that the jury found was that Flowers created
a great risk of death to many people. This Court has allowed evidence of other crimes
against other victims during sentencing where this aggravator has been sought by the State
and the proof supported it. See McGilberry v. State, 741 So.2d 894, 925 (Miss.
1999) (robbery case where four murders were committed and where the aggravator of
creating a great risk of death to many people was given and the proof supported). We note
however, that the District Attorney in McGilberry tried all four murders together. The
Court has also considered this same aggravator and rejected it because of the lack of
proof to support the giving of such an aggravator, because the Court stated "there is no
evidence that Porter knowingly created a great risk of death to anyone, other than Brown,
his intended victim." Porter v. State, 732 So.2d 899, 905-06 (Miss. 1999) (citing
Jackson v. State, 684 So.2d 1213, 1235 (Miss. 1996)). Thus, evidence regarding the
other killings would have been relevant in the case at bar during sentencing, whereas during
the guilt phase, although some of the evidence is probably admissible, the overwhelming
43
prejudicial evidence regarding the killing of the other three victims was for the most part
irrelevant and inadmissible. The admission of this irrelevant, inadmissible testimony and
exhibits was substantially prejudicial to Flowers. Therefore, we must reverse and remand
for a new trial on guilt and if necessary, sentencing. On remand, if a sentencing hearing
becomes necessary, and if the prosecution alleges as one of the aggravators that Flowers
created a risk to many people, then evidence regarding the other three killings would be
relevant at sentencing.
Flowers I, 773 So. 2d at 325.
¶92.
Miss. Code Ann. § 99-19-101(5)(c) provides that a defendant must have "knowingly created a
great risk of death to many persons." "In upholding the aggravator, we have said that to restrict its use to
those crimes where a very large number of individuals were at risk or to where the safety of those, other
than an intended few, is jeopardized would be to limit the statute beyond its intended scope." Snow v.
State, 800 So.2d 472, 493 (Miss. 2001). See Jackson v. State, 672 So.2d 468, 490 (Miss. 1996)
(finding the aggravator warranted where a defendant stabbed four children and one adult to death, and
inflicted life-threatening stab wounds on two other children); McGilberry v. State, 741 So.2d 894 (Miss.
1999) (evidence in capital murder prosecution supported jury's finding of aggravating circumstance of
creating a great risk of death to many persons, committing capital offense for pecuniary gain during the
course of a robbery). The risk must be to someone other than the intended victim. Porter v. State, 732
So.2d 899 (Miss. 1999) (evidentiary basis insufficient where a defendant, hired to kill the victim, hid outside
the doorway of the victim's home and shot him when he came to the door, fleeing afterwards despite the
fact that there were other persons in the house).
¶93.
Based on case law and statutes of this state, the submission of this aggravator did not violate
Flowers's Eighth Amendment rights. Therefore, this Court finds this issue to be without merit.
B.
Whether The Submission of the "Great Risk of Death to Many
Persons" Violated Flowers's Rights Secured by the Double
44
Jeopardy Clause of the Fifth Amendment to the United States
Constitution.
¶94.
Flowers next argues the submission of this aggravator violated the double jeopardy clause of the
Fifth Amendment. Flowers cites Meeks v. State, 604 So. 2d 748 (Miss. 1992) to support his argument
that a defendant may not be punished twice based on the same set of facts. But as the State points out,
a similar argument was addressed and rejected in Wilcher v. State, 697 So. 2d 1087 (Miss. 1997):
Wilcher argues that, by having his conviction in the capital murder of Moore considered
as an aggravating circumstance, the jury was improperly required to weigh the same facts
twice against the mitigating evidence, in violation of the double jeopardy clause of the Fifth
Amendment. Wilcher correctly states that a capital murder defendant cannot be convicted
of both capital murder and the underlying felony; the reason being that the defendant
cannot be twice prosecuted for the same actions. See Meeks v. State, 604 So.2d 748,
753 (Miss. 1992). By analogy, Wilcher argues that the "same elements" or "Blockburger
" test precludes the introduction of his conviction of the capital murder conviction of the
second victim as an aggravator at the sentencing hearing on the first murder victim. See
Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306
(1932).
Wilcher's analogy does not hold true. In this case, the court is not faced with one action
for which Wilcher could be prosecuted on either the underlying crime or the capital
murder. Rather, there are actually two murder victims-- the product of two separate
criminal actions by Wilcher. Even though the same facts surround the murder of each
victim, there are undeniably two victims, and two counts of capital murder arising from
Wilcher's actions. Therefore, the "same elements" test does not apply.
Furthermore, as the Fifth Circuit has observed:
[C]onsideration of other crimes at sentencing does not implicate the
Double Jeopardy Clause because the defendant is not actually being
punished for the crimes so considered. Rather, the other crimes aggravate
his guilt of, and justify heavier punishment for, the specific crime for which
defendant has just been convicted. See United States v. Bowdach,
561 F.2d 1160, 1175 (5th Cir. 1977) (rejecting virtually identical double
jeopardy argument).
Sekou v. Blackburn, 796 F.2d 108, 112 (5th Cir. 1986). Wilcher's argument to the
contrary is without merit.
45
Wilcher, 697 So. 2d at 1105.
¶95.
Based on this Court's holding in Wilcher, we find this sub-issue to be without merit.
C.
¶96.
Whether, under the Prosecution's Own Theory, the Submission of
the "Great Risk of Death to Many Persons" Violated Mississippi
Law.
Flowers finally argues that the use of the aggravator violated Mississippi law. Flowers solely bases
this argument on a statement made by the prosecutor in closing argument. The Assistant District Attorney
stated:
The Defendant went down to that store for the purpose of seeing Bertha Tardy. Derrick
Stewart had been there two days, and Robert Golden had been there, that was his first
day. He had no idea those two individuals would be there.
Because of this statement, Flowers argues the State admitted Flowers had no idea two of the other victims
would be in the store that day; therefore, he could not "knowingly create[] a great risk of death" to anyone
other than Bertha Tardy, his intended victim.
¶97.
The State argues that the evidence clearly supports the submission of this aggravator. The same
weapon was used to commit all four murders, and testimony linked Flowers to this weapon. Eyewitness
testimony placed Flowers near the scene of the crime. There was also evidence that Mrs. Tardy had
docked Flowers's paycheck after an incident regarding some batteries. The State argues, and we agree,
that the jury could have inferred Flowers deliberately killed Mrs. Tardy and robbed the store.
¶98.
There was also evidence that three other people were killed during the robbery. Flowers was a
former employee of Tardy Furniture, so he was aware Bertha Tardy, Carmen Rigby, and other employees
would be present at the store. Because the murders took place while the store was open for business, it
was also likely that customers could have been in the store. All this evidence supports the jury's finding that
this aggravated circumstance existed.
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¶99.
This aggravator was properly submitted to the jury and did not violate Mississippi law. This Court
finds this issue to be without merit.
¶100. In conclusion, the use of the "great risk of death to many persons" as an aggravator in the
sentencing phase of this trial did not violate Flowers's Eighth or Fifth Amendment rights, nor did it violate
Mississippi law. This issue is without merit.
IX.
WHETHER THE TRIAL COURT VIOLATED FLOWERS'S
RIGHTS SECURED BY THE EIGHTH AMENDMENT TO THE
UNITED STATES CONSTITUTION AND MISSISSIPPI LAW BY
THE SUBMISSION OF AN ANTI-SYMPATHY SENTENCING
INSTRUCTION.
Flowers argues that the trial court submitted an anti-sympathy instruction to the jury, and thus, committed
reversible error. The State argues that Flowers did not object to this instruction, but as stated above, we
will address this issue under the plain error rule. The State also argues it is well-settled law that, although
the jury may not be instructed to totally disregard sympathy during deliberations, the jury may be instructed
as they were here.
¶101. Sentencing Instruction Number 1 stated, in pertinent part:
You should consider and weigh any aggravating and mitigating circumstances, as set forth
later in this instruction, but you are cautioned not to be swayed by mere
sentiment, conjecture, sympathy, passion, prejudice, public opinion, or public
feeling.
(emphasis added). Both Flowers and the State cite to King v. State, 784 So. 2d 884 (Miss. 2001). In
King, this Court held:
InBlue v. State, 674 So.2d 1184, 1225 (Miss. 1996), we approved an instruction which
read in pertinent part as follows: [Y]ou are cautioned not to be swayed by mere sentiment,
conjecture, sympathy, passion, prejudice, public opinion or public feeling. "[B]ecause the
instruction does not inform the jury that it must disregard in toto sympathy ... the instruction
is a proper statement of the law." Id.
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King, 784 So. 2d at 889. This Court has also held that the use of the words "not to be influenced by
sympathy" does not mean that the jury is instructed to disregard sympathy. Holland v. State, 705 So.2d
307, 351 (Miss. 1997). See also Ladner v. State, 584 So.2d 743, 759 (Miss. 1991).
¶102. The instruction given in the case sub judice is the exact instruction upheld in King and Blue. This
Court finds the instruction was properly given, and this issue is without merit.
X.
WHETHER FLOWERS WAS DENIED HIS FUNDAMENTAL AND
CONSTITUTIONAL RIGHT TO A FAIR TRIAL BY THE
CUMULATIVE EFFECT OF THE MATTERS ADDRESSED
ABOVE.
¶103. In his final assignment of error, Flowers asks this Court to reverse his capital murder conviction and
sentence of death based upon the cumulative impact of the errors at his trial. The State argues all errors
have been refuted with substantial authority; therefore, "[w]here there is no reversible error in any part, ....
there is no reversible error to the whole." Doss v. State, 709 So. 2d 369, 401 (Miss. 1996)(quoting
McFee v. State, 511 So.2d 130, 136 (Miss. 1987)). The State also contends that if this Court were to
find that errors exist, there are no errors substantial enough to warrant reversal. "A criminal defendant is
not entitled to a perfect trial, only a fair trial." McGilberry v. State, 741 So. 2d at 924 (citing Sand v.
State, 467 So.2d 907, 911 (Miss. 1985)).
¶104. This Court has reviewed this case with "heightened scrutiny" and has found that the previously cited
errors alone are sufficient to warrant reversal. Thus, when considered together, these errors also have such
a cumulative effect as to require reversal. The cumulative effect of all of these errors is clearly the most
substantial reason for this Court's reversal of this case. This Court, therefore, finds merit to Flowers's
argument on cumulative error.
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¶105. The State had more than ample evidence with which to try its case against Flowers. It is the duty
of the State to provide each defendant with a fair trial, not to engage in tactics which mirror "prosecution
overkill." This Court, more than 100 years ago, laid out a simple roadmap for the prosecution of criminal
cases:
The fair way is the safe way, and the safe way is the best way in every criminal
prosecution. The history of criminal jurisprudence and practice demonstrates, generally,
that if everyone prosecuted for crime were fairly and fully conceded all to which he is
entitled, and if all doubtful advantages to the state were declined, there would be secured
as many convictions of the guilty, and such convictions would be succeeded by few or no
reversals.
Johnson v. State, 476 So. 2d 1195, 1215 (Miss. 1985) (citing Hill v. State, 72 Miss. 527, 534, 17
So. 375, 377 (1895)).
¶106. Notwithstanding the State’s position that the fact that this was a circumstantial evidence case
required the presentation of extensive evidence to the jury not just on Derrick Stewart, but also on the other
three victims as well, the prosecution went far beyond the realm of admissible evidence in this case in order
to improperly enhance the likelihood of a conviction of Flowers for the capital murder of Stewart. Had the
prosecution only heeded the 1895 admonition of this Court in Hill, and the long-standing decisions of this
Court regarding admissibility of evidence, it would have greatly increased its chances of having not only a
conviction and sentence, but also an “affirmed” conviction and sentence.
CONCLUSION
¶107. This Court and its members do not function in a vacuum. We acknowledge that we cannot begin
to fully understand and appreciate the extreme grief experienced by family members and friends of not only
Derrick Stewart, but also Bertha Tardy, Robert Golden and Carmen Rigby, because of these senseless
murders. These survivors are also victims. Additionally, these victims must suffer the pain of knowing that
49
almost seven years after these murders, no one stands convicted and punished for these brutal killings.
Were we to ignore the Hill admonition to be fair -- were we to ignore our well-established and longstanding case law concerning admissibility of evidence -- were we to ignore our decision in Flowers I -were we to ignore our constitutional oaths -- we could simply turn our heads and affirm Flowers’s
conviction and sentence of death. However, this we cannot and will not do. We must do that which our
allegiance to the law requires us to do. Accordingly, for the reasons stated above, this Court reverses the
judgment of the Montgomery County Circuit Court and remands this case to that court for a new trial
consistent with this opinion.
¶108. REVERSED AND REMANDED.
PITTMAN, C.J., SMITH, P.J., WALLER, COBB, DIAZ AND GRAVES, JJ.,
CONCUR. McRAE, P.J., AND EASLEY, J., DISSENT WITHOUT SEPARATE WRITTEN
OPINION.
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