Bailey v. State

• Decision Date: 26 January 2012
• Docket Number: No. 2010–KA–00366–SCT.,2010–KA–00366–SCT.
• Citation: 78 So.3d 308
• Parties: Deric BAILEY v. STATE of Mississippi.
• Court: Mississippi Supreme Court

78 So.3d 308

Deric BAILEY

v.STATE of Mississippi.

No. 2010–KA–00366–SCT.

Supreme Court of Mississippi.

Jan. 26, 2012.

Office of Public Defender by Virginia Lynn Watkins, William R. Labarre, Alison Oliver Kelly, Frank L. McWilliams, attorneys for appellant.

Office of the Attorney General by Billy L. Gore, attorney for appellee.

EN BANC.

CARLSON, Presiding Justice, for the Court:

¶ 1. Deric Bailey was convicted by a jury in the Circuit Court for the First Judicial District of Hinds County of deliberate-design murder under Mississippi Code Section 97–3–19(1) (Rev.2006). Bailey was sentenced to life in prison. On appeal, Bailey's conviction and sentence were reversed by the Court of Appeals and the case was remanded for a new trial. Bailey v. State, 952 So.2d 225 (Miss.Ct.App.2006). Ultimately, this Court denied Bailey's petition for writ of certiorari. Bailey v. State, 951 So.2d 563 (Table) (Miss.2007). At his second trial, Bailey again was convicted of deliberate-design murder and sentenced to life in prison. The trial court denied Bailey's motion for judgment notwithstanding the verdict, or in the alternative, a new trial, and Bailey timely filed this appeal. For the reasons discussed below, we find that Bailey's claims are without merit, and today we affirm Bailey's conviction of deliberate-design murder and his sentence of life imprisonment.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. It is undisputed that on October 24, 2001, Deric Bailey shot and killed Thomas Ryan Evans in the parking lot of the Short Stop Corner Grocery in Jackson. Bailey first was tried on May 12, 2004, and he was convicted and sentenced to life in prison for deliberate-design murder. Bailey appealed his conviction, and the Court of Appeals reversed and remanded the case for a new trial. Bailey, 952 So.2d at 241. On December 7, 2009, Bailey again was tried, convicted of deliberate-design murder, and sentenced to life imprisonment in the custody of the Mississippi Department of Corrections. Bailey now appeals his conviction and sentence.

¶ 3. On the evening of October 24, 2001, Fred Braddock dropped off Bailey and James Bernard Pickens at the Short Stop grocery, on the corner of Corinth and Lynch Streets in Jackson and drove away. Braddock testified that when he drove by the store later that evening, he had seen Bailey and Pickens standing at the window of Thomas Ryan Evans's truck. Braddock then stated that he drove by again and had seen Bailey and Pickens running away from the store, down Corinth Street. Braddock testified that after he had heard about a shooting that had occurred at the Short Stop that same night, he had asked Bailey if he had been involved in the murder. Braddock stated that at first Bailey had denied involvement, but then he (Bailey) had said that he had shot Evans.

¶ 4. Billy Donnerson owned a body shop on Lynch Street, adjacent to the Short Stop grocery. Donnerson testified that on the evening of the murder, he had been sitting outside the body shop when he heard a gunshot. Donnerson stated that he looked up and saw two young men leaving in Evans's truck. Donnerson, like Braddock, stated that the two men took off down Corinth Street. Donnerson testified that, because of the way the light reflected off the driver's side window of Evans's truck, he knew that someone had fired a gun into the truck. While dialing for help, Donnerson stated that the truck had reversed slowly and then the driver, Evans, had slumped over inside the truck.

¶ 5. Donnerson's testimony at Bailey's second trial, eight years after the murder, differed from the statement he gave to the police the night of the murder. In his initial statement, Donnerson said that when he heard the gunshot, he had looked up and had seen someone reaching into Evans's truck, and that as the two men ran away, one of the men was looking at something in his hand. At the second trial, Donnerson testified that, as the two men ran away, they were smiling and laughing. Donnerson stated at the second trial that he did not recall seeing the two men reach into Evans's truck, or one of them looking at something in his hand. During cross-examination at the second trial, Donnerson admitted that the murder had been so long ago that he could not remember exactly what he did or did not say in his statement to police on the night of the murder.

¶ 6. At Bailey's second trial, Pickens invoked his Fifth Amendment right against self-incrimination.¹ Thereafter, the transcript of Pickens's testimony given during the first trial was read into evidence. Pickens stated that he had seen Evans standing outside of his truck and talking to Bailey. Pickens stated that Bailey and Evans had started arguing, and that Evans had said certain provocative words to Bailey,² and had engaged in a “tussle” with Bailey. Pickens stated that after Evans “got the best of Deric,” Evans ran and got into his truck, but that the driver's side door was ajar. Pickens stated that Bailey was blocking his (Pickens's) view of the inside of Evans's truck, but that Pickens saw Bailey shoot into the truck and the driver's side window glass “freeze up.” Pickens stated that the truck door had remained ajar, and Evans had leaned over in his truck, which is when Bailey had fired his gun. Pickens stated that he did not know what had caused Bailey to shoot Evans.

¶ 7. Officer Jonathan Crawford was the first officer to arrive at the crime scene. Crawford could tell that Evans was injured, but he was still breathing. The doors to Evans's truck were locked, so Crawford broke the window glass to unlock the truck and provide Evans with medical help. After medical personnel arrived, Crawford turned his attention to securing the crime scene. Crawford found no gun or other type of weapon in Evans's truck.

¶ 8. Even though no drugs were found at the scene, Investigator Charles Taylor discovered Topps's Rolling Paper in Evans's truck. No alcohol or illicit drugs were found in Evans's blood samples. Dr. Steven Hayne performed a gunshot residue test at Evans's autopsy, which showed that Evans likely had not fired a gun that day. Dr. Hayne testified that Evans's cause of death was a gunshot wound to the upper left chest, which resulted in massive internal bleeding. Dr. Hayne also opined that the manner of death was homicide. Dr. Hayne likewise noted that, during the autopsy, he had found a bruise on Evans's forearm, which he opined was sustained at or near the time of death. Ashley Moore, one of Bailey's coworkers at Rally's restaurant, testified that, while at work, Bailey had confessed to the shooting. This confession caused Moore to call Crimestoppers, which resulted in Bailey's arrest on May 15, 2002.

¶ 9. Bailey did not testify at either trial. However, at the first trial, Bailey's statement to the police after his arrest was admitted into evidence.³ In his statement, Bailey claimed that Evans had approached him as he walked into the Short Stop and had asked Bailey to “serve him up,” meaning to sell him crack cocaine or marijuana. Bailey claimed that Evans got angry when Bailey told him no, and that when Bailey exited the Short Stop, Evans still persisted in trying to buy drugs. Bailey claimed Evans then got in his truck and said certain provocative words to him, while pointing a gun in Bailey's direction. Bailey stated this caused him to pull out his own gun, which he carried to work for protection, and to shoot Evans through the driver's side window. Bailey stated that he then went to Evans's truck, picked up Evans's gun, and started walking home on Corinth Street. Bailey claimed that, once he started walking home on Corinth Street, he was joined by Pickens, who had arrived just after the shooting. Bailey stated that he had sold Evans's gun and had thrown his own gun into the Pearl River. Bailey's statement was excluded as evidence during the second trial because the trial court found that it was self-serving, reasoning that part of Bailey's defense theory was self-defense and that Bailey's statement was the only evidence indicating that Evans had pulled a gun on Bailey.

¶ 10. During a pretrial hearing on November 24, 2009, the trial court denied Bailey's motion to dismiss for failure to provide a speedy trial. The judge relied on the analysis in Johnson v. State, 9 So.3d 413 (Miss.Ct.App.2008), of the four-factor test for delay of trial previously announced in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The trial judge ruled that, even though the length of the delay weighed in Bailey's favor, the other three factors—reason for delay, defendant's assertion of his right to a speedy trial, and prejudice to the defendant—did not weigh in Bailey's favor.

¶ 11. At the same hearing, the trial court granted the State's motion in limine, which prohibited the defense from mentioning Bailey's post-arrest statement at any time during the trial. The trial judge found that the statement was self-serving, and because the State was not using any portion of the statement in its case-in-chief, the statement was inadmissible by the defense.

¶ 12. During a pretrial hearing on December 2, 2009, the trial court denied defense counsel's motion to withdraw for a conflict involving a potential witness, Pickens. In an effort to cure the possible conflict, the trial court appointed separate counsel to represent Pickens.

¶ 13. Once the trial commenced, both sides raised several objections regarding jury selection and jury instructions. The State raised a reverse Batson ⁴ challenge to the defense's striking of two white male jurors, while the defense made a Batson challenge based on the State's striking of two African–American female jurors. Concerning the jury instructions, the conflict centered around the trial court's allowing the State's deliberate-design murder instructions, but refusing Bailey's manslaughter and justifiable-homicide instructions.

¶ 14. On December 9, 2009, the jury returned a verdict of ...