428 So.2d 576 (Miss. 1983), 53959, Gilliard v. State

Docket Nº:53959.
Citation:428 So.2d 576
Party Name:Robert C. GILLIARD, Jr. v. STATE of Mississippi.
Case Date:February 16, 1983
Court:Supreme Court of Mississippi
 
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Page 576

428 So.2d 576 (Miss. 1983)

Robert C. GILLIARD, Jr.

v.

STATE of Mississippi.

No. 53959.

Supreme Court of Mississippi.

February 16, 1983

Page 577

J. Ronald Parrish, Laurel, for appellant.

Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

ROY NOBLE LEE, Justice, for the Court:

Robert C. Gilliard, Jr. and Edwin Darby were jointly indicted in the Circuit Court of Jones County, for capital murder. A severance was granted, Gilliard entered a plea of guilty to the charge, and the trial proceeded on the sentencing phase, Honorable James D. Hester, presiding. After hearing the evidence, receiving the instructions from the court, and argument of counsel, the jury found Gilliard guilty and sentenced him to death. He has appealed and assigns eleven (11) errors in the trial below.

FACTS

The evidence for the State shows that on August 27, 1981, Gilliard, age thirty-seven (37) years, lived with one Tressie Jones in Heidelberg, Mississippi. On that date, they attended a party and met Warren Seals and Edwin Darby. They were drinking intoxicating liquor and the group decided to rob some business in Laurel. They drove to two establishments there, but several customers were in each place and they passed them up. Eventually, they drove to the Best Chance Package Store on Ellisville Boulevard, where Gilliard and Darby got out of the car, leaving Seals and Tressie Jones inside.

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Gilliard was armed with a .25-caliber automatic pistol and Darby had a sawed-off shotgun. Gilliard exchanged the .25-automatic to Darby for the shotgun before leaving the automobile. They entered the store and saw the proprietor, Grady Chance, sitting in a chair facing the entrance to the store. Mrs. Wilma Chance, his wife, was sitting on a stool behind the counter and was talking on the telephone. Darby grabbed the telephone from her hand and jerked it off the wall. The robbers then ordered Mrs. Chance to open the cash register and give them the money, which she did. Mr. Chance told them, "We don't have much money here. We went to the bank." He remained sitting in the chair and Gilliard went behind the counter in search of more money. They took approximately two hundred dollars ($200.00) from the store.

Gilliard ordered the Chances to give him the keys to their automobile, planning to take the same and drive it to a different place where Seals would pick them up. Mrs. Chance testified that her husband was still sitting in the chair and was only about two feet away from Gilliard when he shot Mr. Chance in the chest, the load causing him to spin and fall to the floor. Gilliard and Darby then left and went around the back of the store. Seals started the car, left the scene and was unable to find them. Mrs. Chance went to a nearby restaurant for help, where a nurse had heard the noise and went to the store. She found Mr. Chance lying in a pool of blood with no pulse or breathing. She attempted to resuscitate him without success. Detective Jonathan Hare of the Laurel Police Department received a call about the robbery around 8:15 p.m. and immediately went to the scene (other officers had already arrived). He photographed the body and the store and collected items of physical evidence, consisting of a spent shotgun shell and wadding.

Gilliard admitted the robbery and the shooting, but claimed that he was pointing the shotgun at Mr. Chance and did not intend to shoot him; that Mr. Chance came up from the chair, apparently fumbling in his pocket for the car keys; that he (Gilliard) went to turn and the gun fell from his shoulder; and that the butt end of it hit the counter, causing the gun to fire and the load to hit Mr. Chance in the chest.

John M. Allen, a forensic scientist with the Mississippi State Crime Lab, performed tests on the shotgun trying to make it fire accidentally. It was dropped and hit with a mallet, and Allen testified that the only way he could fire the gun was by applying three (3) to five (5) pounds of pressure on the trigger. Dr. Sergio Gonzalez, pathologist who performed an autopsy on Mr. Chance, stated that, in his opinion, based on the angle of the wound, the victim was in a sitting position at the time the shot hit him. A certified copy of a previous conviction was introduced into evidence, which indicated Gilliard pled guilty to another armed robbery and received a sentence of thirty (30) years prior to the present trial.

Gilliard called witnesses who testified that he was one of eleven children; that he dropped out of school around age fourteen (14) to assist in supporting the family; that he was faced with hardships in growing up; and that he had a drinking problem. A psychologist testified that Gilliard is below average intelligence, but is not retarded; that he needs a structured disciplined environment; that he is easily influenced; and that he should not be released from prison.

Seals testified for the State. He was permitted to plead guilty as an accessory before the fact to the crime of armed robbery and was sentenced to ten (10) years in the custody of the Mississippi Department of Corrections.

LAW

I.

Did the lower court err in overruling appellant's motion for a change of venue?

Appellant filed a motion for change of venue because of alleged publicity through the news and television media given to the crime prior to the trial. The appellant did not comply with Mississippi Code Annotated Sec. 99-15-35 (1972), which follows:

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On satisfactory showing, in writing, sworn to by the prisoner, made to the court, or to the judge thereof in vacation, supported by the affidavits of two or more credible persons, that, by reason of prejudgment of the case, or grudge or ill will to the defendant in the public mind, he cannot have a fair and impartial trial in the county where the offense is charged to have been committed, the circuit court, or the judge thereof in vacation, may change the venue in any criminal case to a convenient county, upon such terms, as to the costs in the case, as may be proper. (Emphasis added)

Appellant's motion was supported only by his affidavit, and not affidavits of two or more credible persons. In Gentry v. State, 416 So.2d 650 (Miss.1982), a capital murder case, this Court held the requirement is essential to the validity of the motion. See also Butler v. State, 320 So.2d 786 (Miss.1975); Fabian v. State, 267 So.2d 294 (Miss.1972) and Wilson v. State, 234 So.2d 303 (Miss.1970).

Even so, the court heard evidence on the motion from seven (7) witnesses, none of whom testified that appellant could not receive a fair trial in Jones County. Five of the witnesses testified that, in their opinions, appellant would receive a fair trial in the county. The trial judge reserved final decision until after voir dire examination of the jurors to determine from that examination whether or not a fair and unbiased jury could be obtained. He overruled the motion to change venue after considering the totality of the voir dire and being convinced that the jury was unbiased in the case.

We are of the opinion that the lower court did not abuse its discretion in denying the change of venue and that no error was committed. Saucier v. State, 328 So.2d 355 (Miss.1976); Parks v. State, 267 So.2d 302 (Miss.1972), cert. den. 411 U.S. 947, 93 S.Ct. 1923, 36 L.Ed.2d 408 (1972); Anderson v. State, 246 Miss. 821, 152 So.2d 702 (1963).

II.

Did the lower court err in failing to quash the jury panel because of the State's use of its peremptory challenges to exclude all persons of the Negro race solely on the basis of race?

After the jury panel had been challenged for cause, twelve (12) jurors were tendered to the State, which exercised seven (7) peremptory challenges. A full panel was then tendered to the defense which exercised six (6) peremptory challenges. The State used one additional challenge for a total of eight (8) peremptory challenges. After completion of the panel, the appellant requested that the record reflect all persons peremptorily excused by the State were Negroes. Later, after selection of the alternate juror, and sequestration of the jury for the night, appellant filed a motion to quash the panel on that ground. The lower court overruled the motion and the appellant now asserts it was obvious those persons were excused from the jury solely on the basis of race in violation of the Sixth and Fourteenth Amendments in allowing systematic exclusion of Negroes from the jury.

In the capital murder case of Gaines v. State, 404 So.2d 557 (Miss.1981), the same question was presented to this Court. Relying upon Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), the Court held that exercise of such challenges did not constitute error. See also Coleman v. State, 378 So.2d 640 (Miss.1979).

III.

Did the lower court err in failing to excuse certain jurors for cause upon the request of appellant?

The appellant contends that several jurors on the voir dire examination indicated they were acquainted to some extent with the deceased, and that the lower court erred in failing to excuse them for cause. None of these persons actually served on the jury. Only one of them (L.M. Johnson) was discussed seriously in the brief and appellant exercised a peremptory challenge on him. As to the others, a full panel was accepted by appellant before it was necessary to call them as jurors. He exercised only six (6) peremptory challenges, and,

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when the jury was accepted, appellant still had six (6) peremptory challenges which were not used. The trial court will not be put in error because of failure to permit a challenge for cause as long as peremptory challenges remain unused. Rush v. State, 278 So.2d 456 (Miss.1973); Chapman v....

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