Smith v. State

• Decision Date: 10 December 1998
• Docket Number: No. 93-DP-01470-SCT.,93-DP-01470-SCT.
• Citation: 729 So.2d 1191
• Parties: Clyde Wendell SMITH v. STATE of Mississippi.
• Court: Mississippi Supreme Court

729 So.2d 1191

Clyde Wendell SMITH v. STATE of Mississippi.

No. 93-DP-01470-SCT.

Supreme Court of Mississippi.

December 10, 1998.

Rehearing Denied February 25, 1999.

Whitman D. Mounger, W.S. Stuckey, Greenwood, Attorneys for Appellant.

Office of the Attorney General by Marvin L. White, Jr., Attorney for Appellee.

EN BANC.

JAMES L. ROBERTS, Jr., Justice, for the Court:

s 1. Clyde Wendell Smith,¹ along with his younger brother, Jerome Pete Smith, was indicted by a Leflore County grand jury for the November 7, 1992, robbery-murder of Sidon Package Store owner, Johnny B. Smith.² Both Clyde and Jerome were found guilty of capital murder by a Leflore County jury and subsequently sentenced to death. It is from this judgment, entered on July 1, 1993, that Clyde³ now appeals, presenting twenty-two separate issues for review by this Court.

s 2. Finding no reversible error, Clyde's conviction of capital murder and sentence of death is affirmed.

STATEMENT OF FACTS

s 3. At approximately 9:00 p.m. or soon thereafter, on the night of November 7, 1992, Johnny B. Smith, was killed in the liquor store he owned in Sidon, Mississippi, as a result of three gunshot wounds. Taken from the store were a cash register and an extra cash drawer. Also missing was Johnny's handgun which was either a .32 or .38 caliber weapon. The projectiles recovered from Johnny's body and from the scene were consistent with those of a .38 caliber weapon. Steve Byrd, a forensic scientist at the Mississippi Crime Laboratory, testified that the type of bullets recovered, along with their markings, indicated that they were probably fired from a revolver and not a semi-automatic weapon. Found on the counter at the scene was a bottle of Seagram's gin in a brown paper bag. A latent fingerprint and palm print were lifted from the paper bag and identified as matching those of Clyde's co-defendant, Jerome.

s 4. John Stewart and Lyndell Hunt testified that they were in Sidon and drove by the liquor store between 9:00 and 10:00 p.m. on the night of the murder and saw a red and white car parked between a tin two-story building and the post office, near the liquor store. They both stated that they saw two or three men next to the car and one was carrying an object with a cord dangling from it. The witnesses testified that they thought it might have been a VCR, but they could not tell since they only saw the bottom of it. The State suggested that it was the cash register stolen from the liquor store. One of the men they saw near the car ducked under the steps of the building as if trying to hide. Mack Crigler, who was with Stewart and Hunt that night, did not notice a red and white car, but he did see the men with the object with the cord hanging from it.

s 5. Jerry Smith, the victim's brother as well as a deputy with the Leflore County Sheriff's Department, testified on rebuttal that he was on duty in Sidon on the night of the murder. He and Deputy J.B. Henry were patrolling the area in Henry's patrol car when they drove past the tin building and post office. Deputy Smith saw a red car parked near the buildings. He stated that he noticed that the car had small double windows and a burned place near the exhaust. He also noticed a spot on the ground where the car was leaking transmission fluid. Deputy Smith testified that he saw two people sitting in the car and as the patrol car passed by they slid down in their seats. After passing the car, the deputies crossed the railroad track and went back to the sheriff's office where Deputy Smith dropped off Deputy Henry and went out again. He then received the call that there had been a shooting.

s 6. At trial, Deputy Smith identified a picture of the car Clyde and Jerome had been in the night of the murder as the car he saw parked near the liquor store. He stated that he had also personally examined and identified the car when it was in the custody of the sheriff's office. On cross-examination, Deputy Smith stated that when he passed the car the night of the robbery, although he saw the burned spot near the exhaust, he did not notice the reflective butterfly emblem on the back of the car.

s 7. Kevin Smith, the victim's thirteen-year-old son, was at his father's store just minutes and perhaps seconds before the robbery and murder. His father had called him to come get his jeep which was parked in front of the store. Kevin testified that as he was leaving the store and walking toward the jeep he saw two black men run toward the store. The men were wearing dark clothes and coats and one had on a cap that was knocked off by a tree limb. Kevin identified a cap recovered by the police outside the store after the murder as the one he had seen one of the men wearing that night. Kevin stated that the two men came within five or six feet of him as he was getting in the jeep. One of the men went into the store and the other stayed outside. Kevin then left in the jeep.

s 8. At trial, Kevin identified Clyde and Jerome as the men he saw that night. In a photographic lineup several days after the shooting, Kevin picked out a picture of Jerome as possibly being one of the men he saw that night. He did not pick out Clyde's picture, and in fact, he picked out that of another man. Jimmy Tindall, Chief Deputy for the Leflore County Sheriff's Department, conducted the photographic lineup. He testified that although Kevin did not pick out Clyde's picture, Kevin stated that if he saw him in person he would probably be able to identify him.

s 9. Witnesses place Johnny still alive shortly before 9:00 p.m. on the night of his murder. His wife, Jeannette Smith, testified that she left Johnny alone at the store around 8:00 that night. A neighbor knocked on her door some time around 9:00 or 9:15 to tell her Johnny had been shot.

s 10. Peyton Crigler, Johnny's cousin, was at the liquor store visiting from 8:30 until about 10 minutes before 9:00. At approximately 9:15, Crigler drove back past the store and saw one person inside whom he took to be Johnny, although he could not really tell who it was. Crigler then drove down a gravel road that connects with Highway 49. He stated that he was going approximately 30 miles per hour when a car came up behind him and passed him. Tommy Peoples found the broken cash register from the liquor store the next morning on the side of Highway 49, south of Sidon about three miles from the gravel road that Crigler was traveling on when passed by the car.

s 11. Carolyn Pearce testified that around 2:00 a.m. on the morning after the murder, she was with Clyde and Jerome in a red and white car in Indianola. When she got into the car the brothers bought a twenty-dollar rock of crack cocaine. She testified that Clyde told her if she was nice to them they would come back and buy $300 or $400 more. She saw Clyde with a lot of loose bills.

s 12. Pearce stated that they started driving toward the outskirts of town so she grabbed the steering wheel. Jerome then pulled out what Pearce described as a "big silver revolver" and began hitting her arm with it. At some point Clyde got into the back seat with her and pulled out a knife and held it to her throat. Then Jerome and Clyde changed seats as well as weapons. The brothers made her take off her clothes and get out of the car naked. Clyde threw her clothes in the street. Outside the presence of the jury, Pearce stated that both men raped her before putting her out of the car naked.

s 13. J.D. Roseman, Isola Chief of Police, was a patrolman at the time of the murder. Sometime between 3:15 and 3:30 a.m. after the robbery and murder, Roseman was on patrol when he spotted a red and white automobile leaving Gresham Service Station in Isola. Roseman went to the service station to see if anything was wrong.

s 14. Roseman then followed the car and noticed that it was weaving some. He stopped the vehicle and turned his spotlight on the car. Roseman walked up to the car and shined his flashlight so that he could see the driver and the front seat passenger. He asked the driver, who he recognized as Clyde Smith, to step out of the car. He recognized the passenger as Jerome Smith. Roseman noticed the two seemed nervous and he asked Clyde what they were doing at the service station. Clyde stated that the car was running hot and they were trying to get some water. Roseman told Clyde that if he would follow him to the fire station they could get some water. Clyde declined, stating that he thought they would make it.

s 15. After talking with Clyde for a few minutes, Roseman decided to let him go. Clyde got back in the car, but when he cranked it, it went dead. Roseman shined his flashlight on the temperature gauge and saw that it read normal. Roseman stated that the car did not smell hot either. Clyde cranked the car again and pulled away.

s 16. Roseman stated that the car the brothers were in was a 1972 white-on-red Ford Elite. After allowing the brothers to leave, he thought he remembered the town of Sunflower running the car's description and license plate earlier. Sunflower advised him that it had no problems with the vehicle. Roseman then advised the Humphreys County Sheriff's Department to keep an eye out for the vehicle because the brothers were acting suspicious. He ran the license plate and learned it was registered to Clyde and Jerome's sister, Dorothy Smith.

s 17. Roseman then got a radio call from the Inverness Police Department that two black males in a red car had picked up a woman "and was trying to mess with her." Roseman also received a radio call from Tim Goad, a Humphreys County deputy sheriff, who stated that there had been radio traffic from Greenwood that a red and white vehicle was believed to be involved in a robbery and murder in Sidon. Roseman advised Goad that he had just stopped a vehicle matching that description and that he would try to locate the car again.

s 18. Eventually, Roseman met the vehicle going very slowly on Old Highway 49. He...