122 So.3d 614 (Miss. 2013), 2010-DP-01927-SCT, Galloway v. State

Docket Nº:2010-DP-01927-SCT.
Citation:122 So.3d 614
Opinion Judge:PIERCE, Justice.
Party Name:Leslie GALLOWAY, III a/k/a Leslie Galloway a/k/a Leslie
Attorney:Anna Arceneaux, Cassandra Stubbs, John Holdridge, Office of State Public Defender by Alison R. Steiner, Glenn F. Rishel, Jr., attorneys for appellant. Office of the Attorney General by Cameron Leigh Benton, Lisa Colonias McGovern, Jason L. Davis, Marvin L. White, Jr., attorneys for appellee.
Judge Panel:WALLER, C.J., RANDOLPH, P.J., LAMAR AND COLEMAN, JJ., CONCUR. CHANDLER, J., CONCURS IN PART AND IN RESULT WITH SEPARATE WRITTEN OPINION JOINED IN PART BY DICKINSON, P.J., AND KITCHENS, J. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS AND KING, JJ. KITCHENS, J., DISSEN...
Case Date:June 06, 2013
Court:Supreme Court of Mississippi
 
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Page 614

122 So.3d 614 (Miss. 2013)

Leslie GALLOWAY, III a/k/a Leslie Galloway a/k/a Leslie " Bo" Galloway, III

v.

STATE of Mississippi.

No. 2010-DP-01927-SCT.

Supreme Court of Mississippi, En Banc.

June 6, 2013

Rehearing Denied Sept. 26, 2013.

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Anna Arceneaux, Cassandra Stubbs, John Holdridge, Office of State Public Defender by Alison R. Steiner, Glenn F. Rishel, Jr., attorneys for appellant.

Office of the Attorney General by Cameron Leigh Benton, Lisa Colonias McGovern, Jason L. Davis, Marvin L. White, Jr., attorneys for appellee.

PIERCE, Justice.

¶ 1. Leslie " Bo" Galloway was convicted and sentenced to death by lethal injection by a jury of his peers after the jury determined he committed the murder of Shakeylia Anderson while he was (1) engaged in sexual battery; (2) a person under sentence of imprisonment at the time; (3) a felon previously convicted of an offense involving the use or threat of violence to another person; and (4) that the murder was especially heinous, atrocious, or cruel.

FACTS AND PROCEDURAL HISTORY

¶ 2. On the evening of Friday, December 5, 2008, seventeen-year-old Shakeylia Anderson and her cousin Dixie Brimage were at their grandmother's house in Gulfport, Mississippi, talking and doing each other's hair. Their uncle, Alan Graham, stopped by briefly. When Graham entered the house, he heard a phone ringing in the living room. He looked at the phone and saw the incoming call was from " Bo." Graham walked through the house and found Anderson and Brimage hanging out in a bedroom. Graham mentioned that someone's phone was ringing, and Anderson said it was hers. Graham overheard Anderson on the phone and got the impression that she was getting ready to go out and meet someone.

¶ 3. At approximately 10:00 that evening, Anderson walked out of her grandmother's house. She was wearing a jacket, blue jeans, and brown boots and carried her book bag with her. Brimage watched Anderson through her grandmother's glass front door as Anderson walked toward a white Ford Taurus parked in the driveway. Brimage saw Anderson stand by the car for a moment and talk to a man. After about five minutes, Anderson got in the white Ford Taurus with the man, and the vehicle drove away.

¶ 4. The following evening, Martin Smith was hunting with dogs in a secluded, wooded area located west of Highway 15 in northern Harrison County. Smith was searching for one of his dogs that had strayed from the pack when he came across an unclothed dead body lying on a dirt logging road. Smith then called law-enforcement personnel.

¶ 5. Shortly before midnight that same evening, Investigator Michelle Carbine of the Harrison County Sheriff's Department received a call that a body had been found in a wooded area. Carbine arrived at the scene in the early morning hours of December 7, 2008. It was too dark to begin processing the body, so Carbine decided to secure the crime scene and wait until daylight. Carbine returned to the scene around 6:30 a.m. that morning with evidence technician Nancy Kurowski and

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medical examiner Dr. Paul McGarry. They found the naked body of a black female lying in the middle of a logging path. Carbine said that the deceased female had a red tint to her body, missing hair, and blood underneath the facial area. The body was smeared with blood and dirt, partially burned, and mangled with scrapes, gouges, and lacerations. The body bore at least three tire marks.

¶ 6. Near the scene of the body, investigators found a burned patch of grass and drag marks indicating that something or someone had been dragged from this area to the spot where the body lay. As they walked back toward the body, officials found broken glass from a bottle of New Amsterdam gin and a burned piece of cloth. Pieces of glass were recovered. Numerous tire tracks were near and in a turning pattern around the female's body. Photographs and impressions of the tracks were made and measurements were taken. Based on the condition of the body and the crime scene, Dr. McGarry theorized that the female had been run over by a vehicle, most likely a car.

¶ 7. After some investigation, Carbine determined that the deceased female was Anderson. Based on Brimage's description of the man with whom Anderson had left that Friday evening, and Graham's recollection of " Bo" calling Anderson's phone, as well as information from friends and family, Carbine began looking for a light-skinned black male, approximately five feet, five inches tall, from the Moss Point area, nicknamed " Bo," who drove a white Ford Taurus.

¶ 8. On the evening of December 9, 2008, Lieutenant Ken McClenic of the Jackson County Sheriff's Department received information that Harrison County was looking for a black man with the nickname " Bo" who drove a white Ford Taurus. Through his investigation, McClenic identified Leslie Galloway as a possible suspect. Having obtained a residential address for Galloway, McClenic drove by and observed a white Ford Taurus in the driveway. McClenic and other deputies began conducting surveillance of the residence. Later that same evening, the white Ford Taurus was reported leaving the residence. Officers stopped the vehicle a short distance away. Galloway and Cornelius Triplett, a friend of Galloway's, were inside the vehicle. Galloway was placed under arrest.

¶ 9. Carbine responded to the scene. Carbine walked around the Taurus and noticed a small piece of possible evidence flapping underneath the passenger side. Since the vehicle was going to be towed and Carbine feared the substance might be lost, she collected the item. Officers also noticed some broken glass on the lip of the trunk. The vehicle was then towed and secured at Bob's Garage. A search warrant for the car was obtained and executed by Kurowski and two other investigators. When the vehicle was raised on a lift, officers noted that one side of the undercarriage appeared to be wiped cleaner than the other. Pursuant to a second search warrant, the car was turned over to the Harrison County Sheriff's Department and taken to a work center for processing.

¶ 10. Kurowski processed the car. For comparison to the tire impressions taken from the crime scene, Kurowski made tread impressions of the white Ford Taurus. The tire tracks at the crime scene matched the type of tire on the white Ford Taurus Galloway was driving when he was arrested. From the interior of the car, Kurowski collected blood located just above the trunk-release latch and blood from the left rear passenger door near the door handle. From different places underneath the car, Kurowski collected several pieces of a stringy tissue-like substance.

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Both the blood and the tissue substances were matched to Anderson's DNA.

¶ 11. A search warrant was obtained and executed for Galloway's residence. There, officers seized a pair of Nike shoes, an Atlanta Braves baseball hat, a Burger King shirt with the name tag " Bo," and an empty bottle of New Amsterdam gin. DNA testing revealed the presence of Anderson's DNA on the shoes and on the baseball hat.

¶ 12. During the autopsy, Dr. McGarry collected additional physical and biological evidence from Anderson's body, including swabs of her anal and vaginal cavities. Analysis of the vaginal swab indicated the presence of DNA from Anderson, Galloway, and James Futch. Futch was Anderson's boyfriend, who admitted that he had sexual intercourse with her days prior to her disappearance and death. As part of his examination, Dr. McGarry noted that Anderson had a dilated vagina— indicative of sexual activity— and her anus had stretching injuries including abrasions, rubbing of the lining, and a fresh tear— three quarters of an inch by one quarter of an inch— characteristic of forceful anal penetration. Dr. McGarry concluded that the anal tear had been caused by forceful sexual penetration. He reasoned that the tear could not have been caused by being run over or crushed by the automobile, because Anderson's rectum was intact— or had not been penetrated by any broken bones— but was naturally in a protected area of the body. Dr. McGarry also explained that the tear was not caused by some foreign object, such as a metal or wooden instrument, because the rubbing and stretching injuries to the rectum were not consistent with jamming, ripping, or irregular injuries that would be associated with penetration by that type of object. The injury to her anus involved much more subtle characteristics.

¶ 13. Days after his arrest, on December 10, 2008, Galloway spoke with Carbine. Galloway admitted that he went by the nickname " Bo." Galloway stated that he had been seeing Anderson since November 2008, and he said that he had sex with Anderson on Thanksgiving Day. Galloway admitted that he spoke with Anderson on December 5 and picked her up that evening in a white Ford Taurus.

¶ 14. Also, as part of the criminal investigation, Carbine obtained cell-phone records for Galloway from November 1, 2008, to December 21, 2008. The records indicated that Galloway and Anderson had been in contact beginning as early as November 11, 2008, and every day in December leading up to her disappearance and murder. They were in contact as many as fourteen times on Friday, December 5, 2008, the last time being 11:12 p.m.

¶ 15. Galloway was indicted and tried for the capital...

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