240 So.3d 1082 (Miss. 2017), 2010-DP-01348-SCT, Flowers v. State

• Citation: 240 So.3d 1082
• Opinion Judge: COLEMAN, JUSTICE.
• Party Name: Curtis Giovanni FLOWERS a/k/a Curtis Flowers a/k/a Curtis G. Flowers v. STATE of Mississippi
• Attorney: ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: ALISON R. STEINER, SHERI LYNN JOHNSON, KEIR M. WEYBLE ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BRAD A. SMITH, JASON L. DAVIS
• Judge Panel: RANDOLPH, P.J., MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR. WALLER, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED B Y KITCHENS, P.J., AND ISHEE, J. KING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, P.J.; WALLER, C.J., JOINS IN PART. WALLER, CHIEF JUSTICE, DISSENTING: KITCH...
• Case Date: November 02, 2017
• Court: Mississippi Supreme Court

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240 So.3d 1082 (Miss. 2017)

Curtis Giovanni FLOWERS a/k/a Curtis Flowers a/k/a Curtis G. Flowers

v.

STATE of Mississippi

No. 2010-DP-01348-SCT

Supreme Court of Mississippi, En Banc

November 2, 2017

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MONTGOMERY COUNTY CIRCUIT COURT, HON. JOSEPH H. LOPER, JR., J.

ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: ALISON R. STEINER, SHERI LYNN JOHNSON, KEIR M. WEYBLE

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

OPINION

COLEMAN, JUSTICE.

[¶ 1] Curtis Giovanni Flowers was indicted on four counts of capital murder with the underlying felony of armed robbery, stemming from the 1996 murders of four employees of Tardy Furniture Store in Winona, Mississippi. Following his sixth trial, he was convicted on all four counts of capital murder and sentenced to death. The Court affirmed his convictions and death sentence in Flowers v. State, 158 So.3d 1009 (Miss. 2014) (Flowers VI ). Flowers filed a petition for a writ of certiorari with the United States Supreme Court. In Flowers v. Mississippi, __ U.S. __, 136 S.Ct. 2157, 195 L.Ed.2d 817 (2016), the Supreme Court granted Flowers’s petition for a writ of certiorari, vacated the Court’s judgment in Flowers VI, and remanded the case to the Court for further consideration in light of

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Foster v. Chatman, __ U.S. __, 136 S.Ct. 1737, 195 L.Ed.2d 1 (2016).

[¶ 2] The Supreme Court decided Foster after Flowers VI had been decided by the Court.¹ Because the sole issue raised in Foster was whether the prosecution’s use of peremptory strikes was racially motivated in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court’s order pertains to only one issue raised by Flowers in his latest appeal to the Court— the Batson issue. Accordingly, the remaining issues addressed by the Court in Flowers VI were not disturbed and the Court’s opinion as to the remaining issues is reinstated as fully set out herein.

[¶ 3] On remand, the Court afforded the parties an opportunity to submit supplemental briefs in light of Foster as directed by the Supreme Court. After review and further consideration in light of Foster, we discern no Batson violation and reinstate and affirm Flowers’s convictions and death sentence.

Factual Background and Procedural History

[ ¶ 4] At approximately 9:00 on the morning of July 16, 1996, Bertha Tardy, the owner of Tardy Furniture Store, called Sam Jones and asked him to come to the store to train two new employees. When Jones arrived at the store a short time later, he discovered the bodies of Bertha Tardy, Robert Golden, Carmen Rigby, and Derrick Stewart. All four victims had been shot in the head; Stewart was the only victim still alive when Jones arrived. Jones went to a nearby business and asked an employee to call the police. Johnny Hargrove, the City of Winona Police Chief, was the first law enforcement officer to arrive; he called for backup and ambulance services. Shell casings from 0.380 caliber bullets were recovered from the scene, and a bloody shoeprint was found near one of the victims.

[ ¶ 5] Shortly after officers arrived at the scene, law enforcement officers received a call about an auto burglary at Angelica Garment Factory in Winona. Deputy Sheriff Bill Thornburg responded, and he learned that someone had burglarized Doyle Simpson’s car and had stolen a 0.380 caliber pistol. Katherine Snow, an Angelica employee, placed Curtis Flowers at Simpson’s car around 7:15 that morning.

[ ¶ 6] Police interviewed Flowers around 1:30 that afternoon, and Flowers consented to a gunshot residue test. Police interviewed Flowers again two days later on July 18, 1996. Flowers claimed to have been babysitting his girlfriend’s children on the morning of the murders, but he provided inconsistent statements about his schedule. During the July 16 interview, Flowers said that he woke up around 6:30 a.m. on the day of the murders and went to his sister’s house around 9:00 a.m., then went to a local store around 10:00 a.m. On July 18, Flowers said that, on the morning of the murders, he woke up around 9:30 a.m., went to his sister’s house around noon, and went to the store at approximately 12:45 p.m. Flowers told investigators that he had been employed at Tardy Furniture for a few days earlier that month, but he had been fired on July 6 after he did not show up for a few days. Flowers moved to Texas in September 1996. After further investigation, Flowers was arrested and brought back to Mississippi. He was indicted on four separate counts of capital murder in March 1997.

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[ ¶ 7] Flowers was tried for the murder of Bertha Tardy in October 1997. After a change of venue from Montgomery County to Lee County, Flowers was convicted and sentenced to death. Flowers appealed and we reversed and remanded for a new trial on the ground that Flowers’s right to a fair trial had been violated by admission of evidence of the other three murder victims. Flowers v. State, 773 So.2d 309 (Miss. 2000) ("Flowers I "). Flowers’s second trial was for the murder of Derrick Stewart; it was held in Harrison County in March 1999. The jury returned a guilty verdict and sentenced Flowers to death. On appeal, we again reversed and remanded for a new trial. The Court held that Flowers’s right to a fair trial had been violated, again, by admission of evidence of the other victims and by the prosecution arguing facts that were not in evidence. Flowers v. State, 842 So.2d 531 (Miss. 2003) ("Flowers II ").

[¶ 8] The Montgomery County Circuit Court held Flowers’s third trial in 2004 and tried him for all four murders. The jury found Flowers guilty and sentenced him to death. Finding that the State had engaged in racial discrimination during jury selection, the Court once again reversed and remanded the case for a new trial. Flowers v. State, 947 So.2d 910 (Miss. 2007) ("Flowers III "). Flowers’s fourth and fifth trials also were on all four counts of capital murder. Both resulted in mistrials when the jury was unable to reach a unanimous verdict during the culpability phase. The State did not seek the death penalty in the fourth trial but did seek it in the fifth trial.

[ ¶ 9] The circuit court conducted Flowers’s sixth trial, the subject of the instant appeal, in June 2010 in Montgomery County. The State tried Flowers for all four murders. The State called twenty-one witnesses in its case-in-chief. Police Chief Johnny Hargrove was the State’s first witness. Hargrove testified that police had found a bloody shoeprint at the scene. Hargrove had asked the District Attorney’s Office and the Highway Patrol to help investigate the murders. Mississippi Highway Patrol Investigator Jack Matthews testified that he saw a bloody shoeprint and shell casings scattered near the bodies. Matthews testified that cash was taken from the store during the murders and that he found Flowers’s time sheet and a check made out to him for $82.58 on Bertha Tardy’s desk. Matthews said that, according to the documents on Bertha Tardy’s desk, the store would have had $300 cash on hand that morning. However, there was only change, no bills, in the cash drawer. During his investigation, Matthews spoke with Roxanne Ballard, Bertha Tardy’s daughter, and learned that Flowers recently had been fired from his job at Tardy Furniture. Matthews testified that $235 was found hidden in Flowers’s headboard after the murders. He also testified that Flowers wore a size ten-and-a-half shoe.

[ ¶ 10] Ballard was the bookkeeper at Tardy Furniture and had worked in the store her whole life. Looking at the books from the morning of the murders, Ballard testified that the store had $400 in the cash drawer that morning. However, she confirmed Matthews’s testimony that the books showed $300, but Ballard saw a receipt for a late charge in the amount of $100, so she knew the drawer had contained a total of $400. Ballard testified that $389 was missing from the cash drawer after the murders. Also, looking at pictures from the crime scene, Ballard testified that the photos showed a bank bag lying wide open on a pile of fabric swatches. She testified that the bank bag was always closed and it should have been in a drawer or on Carmen Rigby’s desk.

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[ ¶ 11] Melissa Schoene, a crime scene expert with the Mississippi Crime Laboratory, testified that she took impressions of the bloody shoeprint and collected the 0.380 caliber casings. Sheriff Bill Thornburg testified that he had gone to Angelica Garment Factory on the day of the murders to investigate Doyle Simpson’s stolen 0.380 caliber pistol. Thornburg testified that it looked like a screwdriver or tire iron had been used to pry open the glove box of Simpson’s car. Thornburg also went to Simpson’s mother’s home to collect spent 0.380 hulls from Simpson’s gun. A few days after the murders, Thornburg searched the home of Connie Moore, Flowers’s girlfriend. He found a size ten-and-a-half Fila Grant Hill shoebox in a dresser at Moore’s house.

[ ¶ 12] David Balash, a firearms identification expert, testified that the bullets collected from Tardy Furniture either matched the bullets or were consistent with the bullets collected from Simpson’s mother’s house. Joe Andrews, a forensic scientist specializing in trace evidence, testified that Flowerss gunshot residue test revealed one particle of gunshot residue on the...