Evans v. State

• Decision Date: 11 September 1997
• Docket Number: No. 93-DP-01173-SCT, No. 94-CA-00176-SCT.
• Citation: 725 So.2d 613
• Parties: Donald Leroy EVANS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

725 So.2d 613

Donald Leroy EVANS v. STATE of Mississippi.

Nos. 93-DP-01173-SCT, 94-CA-00176-SCT.

Supreme Court of Mississippi.

September 11, 1997.

Rehearing Denied August 6, 1998.

William S. Boyd, III, Gulfport, for Appellant.

Donald Leroy Evans, Florence, CO, pro se.

Michael C. Moore, Attorney General, Marvin L. White Jr., Asst. Atty. Gen., Leslie Staehle Lee, Special Asst. Atty. Gen., Jackson, for Appellee.

En Banc.

SMITH, Justice, for the Court:

¶ 1. On August 5, 1991, Donald Leroy Evans was arrested in Tangipahoa Parish, Louisiana, for the kidnapping of ten-year old Beatrice Louise Routh. Evans was subsequently transferred to Mississippi where he confessed to murdering Beatrice. On October 15, 1991, Evans was indicted for capital murder with the underlying felony of kidnapping and two counts of sexual battery. Due to extensive pretrial publicity, venue was changed to Adams County for the limited purpose of jury selection. The jury was returned to Harrison County and trial was held September 13-18, 1993. Evans was found guilty of capital murder and two counts of sexual battery and received a death sentence. Evans now appeals his conviction to this Court, citing thirty-one assignments of error.

¶ 2. In reviewing Evans' assignments of error, we note that several of the issues were not presented to the trial court and are therefore procedurally barred and error, if any, is waived. This rule is not diminished in a capital case. Cole v. State, 525 So.2d 365, 369 (Miss.1987), cert. denied, 488 U.S. 934, 109 S.Ct. 330, 102 L.Ed.2d 348 (1988); Irving v. State, 498 So.2d 305 (Miss.1986), cert. denied, 481 U.S. 1042, 107 S.Ct. 1986, 95 L.Ed.2d 826 (1987); Johnson v. State, 477 So.2d 196 (Miss.1985), cert. denied, 476 U.S. 1109, 106 S.Ct. 1958, 90 L.Ed.2d 366 (1986); In re Hill, 460 So.2d 792 (Miss.1984); Hill v. State, 432 So.2d 427 (Miss.1983), cert. denied, 464 U.S. 977, 104 S.Ct. 414, 78 L.Ed.2d 352 (1983); Chase v. State, 645 So.2d 829, 845 (Miss.1994), cert. denied, 515 U.S. 1123, 115 S.Ct. 2279, 132 L.Ed.2d 282 (1995), reh'g denied, 515 U.S. 1179, 116 S.Ct. 20, 132 L.Ed.2d 903 (1995); Foster v. State, 639 So.2d 1263, 1270 (Miss.1994), cert. denied, 514 U.S. 1019, 115 S.Ct. 1365, 131 L.Ed.2d 221 (1995), reh'g denied, 514 U.S. 1123, 115 S.Ct. 1992, 131 L.Ed.2d 878 (1995). However, alternatively, this Court looks to the merits of the underlying claim knowing that any subsequent review will stand on the bar alone. Chase v. State, 645 So.2d 829, 845 (Miss.1994), cert. denied, 515 U.S. 1123, 115 S.Ct. 2279, 132 L.Ed.2d 282 (1995), reh'g denied, 515 U.S. 1179, 116 S.Ct. 20, 132 L.Ed.2d 903 (1995); Foster v. State, 639 So.2d 1263, 1270 (Miss.1994), cert. denied, 514 U.S. 1019, 115 S.Ct. 1365, 131 L.Ed.2d 221 (1995), reh'g denied, 514 U.S. 1123, 115 S.Ct. 1992, 131 L.Ed.2d 878 (1995).

¶ 3. The issues not properly raised in the trial court are procedurally barred from consideration by this Court. The remainder have been carefully considered and found to be without merit. This Court affirms Evans' convictions and sentences.

STATEMENT OF FACTS

¶ 4. On July 28, 1991, Tammy Giles and her two children, Beatrice and Melissa, along with Sherry Lynn Vincent and her two children and Vincent's mother and sister began their journey to the Mississippi Gulf Coast in search of employment and housing. The families initially stayed in motels and shelters and thereafter lived in the van in which they were traveling.

¶ 5. On August 1, the group parked the van in Jones Park in Gulfport to allow the children to play. At approximately two o'clock that afternoon, Tammy Giles sent Beatrice to obtain cigarettes from a man who was making a telephone call at the Harbor Shop. Unfortunately, the individual approached by Beatrice was a Texas parole violator named Donald Leroy Evans. Evans gave Beatrice a pack of cigarettes for her mother and followed the child to the van. Evans befriended the group and led them to believe that he was a former Navy Seal who had taught school in Texas.

¶ 6. After visiting for awhile, Evans offered to purchase groceries and requested that Beatrice accompany him to the store. Giles gave Beatrice permission to go with Evans and the two returned approximately twenty minutes later with bottled water, orange juice and ice. Evans and Beatrice left the park for a second time and traveled to a nearby convenience store to purchase diapers and snacks for the children.

¶ 7. After returning to Jones Park, Evans suggested they have a barbeque. Evans again requested that Beatrice accompany him to the store to purchase groceries for the barbeque. Evans led Giles to believe that the trip would take approximately one hour because he needed to call a friend who could help the group find an apartment.

¶ 8. Prior to leaving the park area a third time, Beatrice asked Sherry Lynn Vincent¹ to come along because Beatrice did not like riding alone with Evans. Evans, however, refused to allow Vincent to ride along. Vincent told Giles about Beatrice's apprehension, but Giles allowed her daughter to leave with Evans. Evans and Beatrice left the park at approximately 7:00 p.m. Contrary to his representations to Giles, Evans did not go to the store, but rather continued west on Highway 90 to Pass Christian, eventually arriving in Covington, Louisiana. In his confession to police, Evans stated that Beatrice became worried when they did not stop for groceries. However, Evans stated that he "deluded her into thinking and believing" that they were just taking a longer route. Prior to reaching Louisiana, Evans stopped near Bay St. Louis and purchased ice cream for Beatrice. Evans also purchased gray duct tape.

¶ 9. Evans traveled to St. Tammany Parish, Louisiana, where he eventually stopped in a secluded wooded area. Evans remained in the jeep with Beatrice and ordered her to take off her clothes. Although Beatrice began crying and begged Evans to take her back to her mother, Evans responded that "there was no one there to help her and that she was alone with him." Beatrice asked to be taken to a bathroom because she could not control her bowels, but defecated in the vehicle after Evans refused. Evans cleaned the child with towels, wrapped duct tape around her head and mouth several times, and removed her clothing. Evans then sexually assaulted Beatrice vaginally and anally and strangled her to death with a white cotton rope.

¶ 10. Evans traveled back to Mississippi with Beatrice's body concealed in the backseat and later dumped the child's body in a wooded area in Pearl River County and disposed of her clothing nearby. Evans attempted to disguise the stolen Suzuki Samurai jeep in which he was traveling by removing the top. Evans traveled across Mississippi and Louisiana for four days, cashing checks at small country stores to survive.

¶ 11. When Evans did not return with Beatrice in one hour, Sherry Lynn Vincent contacted the Gulfport Police Department. Vincent described Evans, Beatrice, and the jeep in which they were riding. Vincent had memorized the license plate number on the jeep because she felt uncomfortable about Beatrice leaving the park with Evans.

¶ 12. Detective Whitney Carvin and Officer Tapper with the Gulfport Police Department met with Tammy Giles at Jones Park. After receiving the information regarding the jeep, Detective Carvin determined that the jeep belonged to Joseph Whitted and was in the possession of Donald Leroy Evans. On the following day, Detective Carvin signed an affidavit and warrant for kidnapping. After receiving information that Evans might be traveling to either Louisiana or Florida, Detective Carvin contacted Agent George Holder with the Federal Bureau of Investigation (hereinafter "FBI").

¶ 13. A phone monitoring device was placed on the telephone of Gail Stewart, Evans' girlfriend in Galveston, Texas, to aid the FBI in locating Evans. Law enforcement was also able to trace Evans through checks cashed by Evans. Evans was tracked by law enforcement from August 1, 1991 until August 5, 1991, when he was arrested by a sheriff's deputy from Tangipahoa Parish, Louisiana.

¶ 14. On August 19, 1991, Evans pled guilty to federal kidnapping charges and was sentenced to life in prison on October 24, 1991. On October 15, 1991, Evans was indicted by the Harrison County Grand Jury for capital murder with the underlying felony of kidnapping and two counts of sexual battery. Following a trial on September 13-18, 1993, Evans was found guilty on all counts and sentenced to death.

A. GUILT PHASE

I. WHETHER THE TRIAL COURT ERRED IN REFUSING TO SUPPRESS EVANS' STATEMENTS.

¶ 15. In Chase v. State, 645 So.2d 829 (Miss.1994),cert. denied, 515 U.S. 1123, 115 S.Ct. 2279, 132 L.Ed.2d 282 (1995), reh'g denied, 515 U.S. 1179, 116 S.Ct. 20, 132 L.Ed.2d 903 (1995), this Court held that "[t]he general rule is that for a confession to be admissible it must have been given voluntarily and not given as a result of promises, threats or inducements." Id. at 838-39 (citing Layne v. State, 542 So.2d 237, 240 (Miss. 1989)

). The burden is on the prosecution to prove beyond a reasonable doubt that the confession was voluntary. Id. (citing Haymer v. State, 613 So.2d 837, 839 (Miss.1993); Kirkland v. State, 559 So.2d 1046 (Miss. 1990)). The "burden is met and a prima facie case made out by testimony of an officer, or other persons having knowledge of the facts, that the confession was voluntarily made without any threats, coercion, or offer of reward." Id. (citing Cox v. State, 586 So.2d 761, 763 (Miss.1991)).

¶ 16. In Hunt v. State, 687 So.2d 1154 (Miss.1996), this Court reiterated the standard of review when determining the admissibility of confessions. In Hunt, this Court held:

Once the trial judge has determined at a preliminary hearing, that a confession is admissible, the defendant/appellant has a heavy burden in attempting to reverse that decision on appeal. Sills v. State, 634 So.2d 124, 126 (Miss.1994) (quoting Frost

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