Coleman v. State
Decision Date | 19 December 1979 |
Docket Number | No. 51372,51372 |
Citation | 378 So.2d 640 |
Parties | Stanley Kelvin COLEMAN v. STATE of Mississippi. |
Court | Mississippi Supreme Court |
Gray, Montague, Jackson, Pittman & Hammond, S. Robert Hammond, Jr., Hattiesburg, for appellant.
A. F. Summer, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
EN BANC.
Stanley Kelvin Coleman and James Sims, Jr. were jointly indicted by the grand jury of the Circuit Court of Forrest County for capital murder in the killing of Harry Burkett on October 6, 1977, while engaged in the commission of the crime of burglary or attempted burglary. After a separate trial, Coleman was found guilty of capital murder and after a separate hearing on the sentencing phase the jury unanimously found:
The circumstances of the killing are basically undisputed. The state's case rested primarily on the testimony of James Sims, Jr., defendant's accomplice in the burglary and murder; Mrs. Harry Burkett, wife of the victim; and a written confession obtained from defendant Coleman.
At the conclusion of the state's case, the defendant moved for a directed verdict, and when the motion was overruled defendant rested his case.
On the night of October 5, 1977, the night before the killing, 16-year-old Coleman, armed with a 410 gauge shotgun, and his friend, James Sims, Jr., went to the home of Harry Burkett with the intent to burglarize the home. When they found the Burketts at home, they returned to their own homes. The next night, October 6, 1977, Coleman and Sims returned to the Burkett home about 7:30 p. m. Finding the Burketts away, Coleman, carrying the 410 gauge shotgun, entered the Burkett home by removing a screen and opening a window. Coleman was unable to find a money box in the house, but Sims found what appeared to be a money box on the floor of Burkett's pickup truck parked nearby in the driveway.
Coleman broke a front vent glass window on the truck, but before they could enter the truck, the Burketts drove up. Coleman tried to hide in front of the truck, and Sims crawled underneath it. After parking their car behind the pickup truck, the Burketts went to the front door of their home and Mrs. Burkett went inside. Mr. Burkett walked back to his truck, noticed the broken window and went around the truck to investigate. Apparently seeing Sims's foot protruding from underneath the truck, Burkett started firing with his .38-caliber pistol. Sims crawled out from under the truck on the opposite side and ran into the woods.
After Burkett began shooting, Coleman shot once at him, and when Burkett shot again Coleman fired a second time.
When Mrs. Burkett heard the shots, she rushed out of the house and into the carport. She saw Coleman "down right in front of the right-hand light to the pickup truck in a squatting position" and recognized him, having known him since he was a child. Coleman, about 15 feet from her, aimed the shotgun at her face, and she testified that Coleman had every chance to kill her, but instead "jumped up and ran."
Harry Burkett walked slowly from the pickup truck, saying "they've killed me, sugar." Mrs. Burkett called the police, and when she came back out of the house Burkett had managed to get to the carport where he had fallen down. He kept telling his wife to get his billfold out of his back pocket and after she did this she asked him "how many were there", and he said "two." Mrs. Burkett continued:
"Man" was the nickname by which they knew Coleman.
There are ten assignments of error. These four have to do with the guilt phase of the trial:
I. The trial judge erred in refusing to recuse himself because he was related to the deceased.
IV. The appellant's confession was obtained as a result of an illegal arrest and without an intelligent waiver of his rights.
V. The jury selection process was discriminatory and unconstitutional.
VI. The jury was prejudiced by dining in the Forrest County jail complex and seeing the appellant in prison garb.
These will be dealt with rather briefly because the facts were undisputed as to the defendant firing the fatal shots.
On a pretrial hearing of a motion to suppress, the trial judge, Jack B. Weldy, reprimanded one of the defense attorneys for attempting to circumvent the court's sustaining objections to the evidence by asking the same or similar questions over again. Judge Weldy, in denying the motion to recuse himself, the hearing on which was held a day or so later outside the presence of the jury, admitted that he had misunderstood defense counsel's demeanor and attitude during the pretrial hearing, advised
defense counsel that he was not opinionated toward either side, reaffirmed his complete confidence in both defense attorneys' capability and integrity, and further stated:
A more difficult issue raised by the appellant is that Judge Weldy should have recused himself because of his relationship to the deceased. This fact was not made known to defense counsel until the trial was over and when the appellant was heard on his motion for a new trial. At that time all parties, including the defendant, retired to the judge's chambers and Judge Weldy stated:
No, sir, Judge.
Let me say this. I was aware, as all judges are, of the requirements of the Code of Judicial Conduct when parties or attorneys appear before the Court and there is a relationship within the third degree according to civil law. And I was aware of this prior to going into the trial, and because the relationship is so distant, certainly the fact that the last name of the deceased coincides with my middle name did not in any way affect the ruling of this Court during the course of the trial and did not in any way affect the conduct of the trial which I have previously determined to be a completely fair and impartial trial for the Defendant. Is there anything further you want to put in?
Section 165 of the Mississippi Constitution, repeated in almost identical language in Mississippi Code Annotated section 9-1-11 (1972), provides in part:
"No judge of any court shall preside on the trial of any cause, where the parties or either of them, shall be connected with him by affinity or consanguinity, or where he may be interested in the same, except by the consent of the judge and of the parties."
This constitutional provision was construed in Black v. State, 187 So.2d 815 (Miss.1966), wherein this Court said:
187 So.2d at 819 (Emphasis added).
In Black, the prosecuting witness was a first cousin of the trial judge. In the case at bar, Judge Weldy stated that he was "not sure whether the deceased was a second or third cousin of my father, . . .". This would make Judge Weldy at most a third or fourth cousin. Under any stretch The evidence was overwhelming, in fact it was undisputed, that Coleman fired the fatal shots. In his written confession, the defendant himself admitted that he fired the fatal shots. So the jury reached the only conclusion that it could reach on the guilt phase of the trial. Moreover, the record as a whole reflects no bias or prejudice whatsoever on the part of Judge Weldy. On the contrary, his statements and rulings reflect the utmost concern for the rights of the defendant.
of the imagination he would Not be a Near or Close relative.
In Garrett v. State, 187 Miss. 441, 193 So. 452 (1940), this Court said:
"Primarily, he is to judge his own qualification and fairness, and unless a record reflects an abuse of his powers to the extent of showing probable injustice, the Court here will not reverse a case...
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