Hart v. State

Decision Date24 February 1994
Docket NumberNo. 91-KA-00195,91-KA-00195
Citation637 So.2d 1329
PartiesLance L. HART, v. STATE of Mississippi.
CourtMississippi Supreme Court

Jerome L. Lohrmann, Lohrmann & Associates, Jackson, for appellant.

Michael C. Moore, Atty. Gen., Deirdre McCrory, Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

PRATHER,

Presiding Justice, for the court:

Lance Hart prosecutes this appeal from his conviction of murder entered in the Circuit Court of Hinds County, First Judicial District, and the life sentence imposed.

Hart raises four issues dealing with (1) the admissibility of postmortem photographs; (2) the granting of jury instruction S-4 allegedly diluting, if not precluding, Hart's theory of self-defense; (3) the exclusion of expert opinion testimony from Dr. Stanley, a psychologist, that Hart had "reasonable grounds" to believe the victim was trying to kill him, and (4) the legal sufficiency of the evidence.

I. FACTS

On October 10, 1989, Lance Hart was indicted for murder. The indictment charged that Hart, on or about July 15, 1989, did wilfully, unlawfully, feloniously, and of his malice aforethought kill and murder George C. Thurman, III. Thurman was the estranged husband of Jennifer Thurman, a female whom Hart had befriended.

A. The State's Case

The case for the prosecution consisted of the testimony of seven (7) witnesses.

Jewel Bell, the victim's mother-in-law, testified that her daughter, Jennifer Thurman, had been separated from George Thurman since March of 1989 and was in the process of obtaining a divorce from Thurman at the time he was killed. Jennifer and her three children were living with Mrs. Bell in her mother's home on July 15, 1989. Thurman was living with his mother at 149 Holly Hill Drive in south Jackson.

At approximately 11:00 o'clock the night of July 15, 1989, Mrs. Bell received the first of four telephone calls from Lance Hart. After Hart asked to speak to Jennifer, Bell told him that Jennifer was out with a companion, David Keith.

Hart, who sounded nervous and upset, informed Mrs. Bell that George Thurman and his brother "had been harassing him and he and his family were not going ... to settle for that; that they were going to do something about it." Hart requested Thurman's address and telephone number. He hung up the telephone when Mrs. Bell declined to give out that information.

Shortly thereafter, Hart telephoned the house a second time. He told Mrs. Bell that Thurman had threatened to stomp him and break every bone in his body if he didn't stay away from Thurman's kids. According to Hart, "he wasn't going to let him get him first." The three children were with George that night because it was his visitation weekend with them. Hart told Bell that somebody needed to go over and get George and Jennifer's children out of George's house because Although Mrs. Bell provided Hart with Thurman's address, she begged Hart to stay away from the victim's house because the children were there. Hart's voice became agitated as he continued his threats and advised Mrs. Bell that he (Hart) "wasn't going to fight fair" with Thurman because he had been shot and stabbed in a California gang fight and he wasn't going to stand by and let it happen again.

he (Hart) was going to go and set the house on fire and burn it down.

During this second conversation, Hart put Bell "on hold" while he talked with another person. When he returned to her line, he said: "I'm going to have to let you go. There is a policeman on the other line talking about a gun law." According to Mrs. Bell, the tone of Hart's voice changed drastically, alarming her. "It was just a flat, level, determined ... like he had made up his mind about something...." After Hart hung up the telephone, Mrs. Bell telephoned Jennifer and instructed her to come home so they could go and get her children.

Approximately fifteen minutes later, before Jennifer could arrive, Mrs. Bell received a third telephone call from Hart who advised her excitedly: "I did it. I killed him." When asked by Bell if he had actually killed Thurman, the defendant stated that George had fallen "like a rag doll."

When Hart hung up, a policeman called and asked for Jennifer. After Mrs. Bell told him that Jennifer had not made it home, the officer advised her that someone needed to come and get the children. Bell, accompanied by her nephew, went to Thurman's home where they picked up three frightened children. As she drove up to Thurman's house, she observed Thurman's body lying near the walkway "with his head toward the house like he'd just walked off the porch and he'd gotten shot and he just fell backwards."

Mrs. Bell described the fourth and final telephone conversation she subsequently had with Hart that evening:

He called from the police station--from jail, I assume--wanted to talk to Jennifer. Jennifer was in no shape to talk to anyone. She was like in a state of shock. So he said he just wanted to tell her he was sorry. And I said, "Sorry?" He said, "I wanted to tell her I was sorry." And I said, "George didn't deserve that." I said, "No matter what George did, he did nothing to deserve that." And he said, "I know that." But then he said, "What'd you want me to do? Wait until he come and got me?" So--and then I just hung up. That's the last conversation that I had with him." (emphasis supplied)

Ralph Lundstrom, a Jackson police officer, was dispatched to the scene to back up another unit summoned to a "shots fired" call. Lundstrom testified that when he arrived, the paramedics were present tending to a subject lying in front of the house about forty feet from the edge of the street. The victim was wearing brass knuckles on his right hand. No firearm was found on or near his body.

Lundstrom entered the house where he found three terrified children. While sitting with them in a bedroom he received a telephone call from a man who identified himself as a friend of the family and asked to speak to George. Shortly thereafter the same man telephoned a second time. After stating he had the wrong number, the man hung up the telephone. A few minutes later, the same caller telephoned a third time and asked how Mr. Thurman was. The caller then stated, "I'm the one that shot him." After Lundstrom identified himself as a police officer, Hart, in turn, identified himself to Lundstrom as Lance Hart and said he wanted to turn himself in.

Hart was arrested a short time later by Lundstrom and another officer at a location approximately two miles from the scene of the shooting. After being advised of his Miranda rights, Hart told Lundstrom he was "scared" of George; that George had threatened him; that he (Hart) had telephoned the police department and reported the incident earlier that evening; that Hart had gone over to Thurman's house and that Thurman, who was in the front yard, began to run toward Hart's car, that he shot Thurman from the car, and, finally, that the gun used in the slaying was located at Hart's home. According to Lundstrom, there was about After surrendering the gun to the officers, Hart told Lundstrom that he and George had experienced friction because of Hart's relationship with Jennifer and the two had previously argued over that relationship. Hart claimed that George had threatened to "cripple" him; that Hart had been cut up before and was "scared of this subject," and that Hart said he thought he had birdshot in the shotgun. Officer Lundstrom testified further that someone experienced with weapons and ammunition would readily be able to tell the difference between birdshot and buckshot. Finally, Lundstrom testified that Hart never mentioned having seen Thurman come out of the house with a gun, a knife, or brass knuckles.

ten feet of "running distance" between the front porch and the spot where Thurman's body was found and forty feet from the location of the body to the edge of the street.

Dr. Steven Hain (Hayne), a forensic pathologist, performed the autopsy on Thurman's body. Hain testified the cause of death was a "shotgun wound to the head." Hain further testified:

On the external examination, the decedent had been struck by multiple projectiles, a total of twelve, located predominately on the right side of the face of which two were grazed gunshot wounds, a total of six were perforating gunshot wounds; that is[,] they went into the body and exited the body, and four of which went into the body but did not leave the body. They were penetrating gunshot wounds. And it was subsequently determined by examination that this was consistent with a single discharge of a shotgun.

The type of load fired from the shotgun was consistent with buckshot. "[T]he pellets were traveling slightly upward at about five degrees."

Charles Smith, a crime scene investigator with the Jackson Police Department, testified he arrived at the scene of the homicide about ten minutes after midnight and found Thurman's body lying "about 9.8 feet north of the very front wall of the house" and about four feet from the porch. Smith observed sixteen pellet holes in the exterior of the dwelling house. The trajectory of the pellets as they passed through the wall of the house was upward from 5.8 feet to 6.8 feet from the floor. According to Smith, the shotgun was fired from a low angle, and when it was fired "it would have had to [have] been out in the street somewhere."

No physical evidence other than several spent buckshot pellets was recovered from the scene of the shooting. The shotgun was recovered from the home of Hart while the brass knuckles were recovered from the morgue. In Smith's opinion, Thurman was lying at the spot where he was shot, and the shotgun pellets were consistent with ammunition and trajectories that would be emitted from a 20 gauge shotgun such as the one recovered from Hart's home.

Danny Woods, a lieutenant with the Jackson Police Department, testified he spoke to Hart over the telephone at approximately 11:30...

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