Bailey v. State

• Decision Date: 16 May 2006
• Docket Number: No. 2004-KA-01560-COA.,2004-KA-01560-COA.
• Citation: 952 So.2d 225
• Parties: Deric BAILEY, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

952 So.2d 225

Deric BAILEY, Appellant v. STATE of Mississippi, Appellee.

No. 2004-KA-01560-COA.

Court of Appeals of Mississippi.

May 16, 2006.

Rehearing Denied November 7, 2006.

Thomas M. Fortner, Jackson, Lynn Watkins, attorneys for appellant.

Office of the Attorney General by Scott Stuart, attorney for appellee.

Before MYERS, P.J., BARNES and ISHEE, JJ.

BARNES, J., for the Court.

¶ 1. Deric Bailey was convicted in the Circuit Court of the First Judicial District of Hinds County of the murder of Thomas Ryan Evans, and received a sentence of life in prison. From his conviction, Bailey timely appealed to this Court, asserting a number of errors. Finding that the trial court committed reversible error when it allowed a prior, unsworn statement by James Pickens to be considered by the jury as substantive evidence, we are compelled to reverse and remand.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On the evening of October 24, 2001, Deric Bailey shot and killed Thomas Ryan Evans in the parking lot of the Short Stop Grocery on Lynch Street in Jackson. In May of 2002, Bailey was arrested in connection with the shooting, and was subsequently indicted on a charge of murder. Bailey stood trial in the Circuit Court of the First Judicial District of Hinds County, and on May 13, 2004, was found guilty of murder and sentenced to life in the custody of the Mississippi Department of Corrections.

¶ 3. At trial, the prosecution introduced into evidence a statement that Bailey gave to the Jackson Police Department on the night of his arrest. In the statement, Bailey claimed that, on October 24, 2001, he and his "partner," Fred Braddock, had ridden around town for four to five hours, finally stopping at a liquor store on Lynch Street. Bailey claimed that he walked across the street to the Short Stop Grocery while Braddock was in the liquor store, and that as he approached the store, Evans drove up in a truck and asked Bailey to "serve him up," meaning to purchase marijuana or cocaine. Bailey stated that when he shook his head so as to tell Evans "no," Evans began cursing him, saying, "F____ you, n____." Bailey said that he ignored Evans and went inside the store to purchase a cup of ice, but that when he exited the store he was again accosted by Evans, who once more demanded that Bailey sell him drugs. At this point, according to Bailey's statement, he told Evans, "No, I don't do that," and walked in the direction of Braddock's vehicle, which was parked across the street from the Short Stop Grocery. Bailey stated that at this point, Evans got back in his truck, again said "F____ you, n____," and pointed a gun in Bailey's direction. Bailey claimed that he then reached into his back pocket, pulled his .32 caliber handgun, and shot Evans through the driver's side window of Evans's truck. He stated that after the shooting, Evans's gun fell to the ground, and that he picked it up, fearful that Evans would pick the gun up and "shoot [him] in the back of the head." Bailey stated that immediately after the shooting, he began walking north on Corinth Street, and that he was joined by James Pickens, who arrived at the scene soon after the shooting. As for the guns, Bailey stated that he sold Evans's gun to "a guy that hangs out in [Bailey's] neighborhood," whose name he did not know, and that he disposed of his own weapon by throwing it into the Pearl River the day after the shooting.

¶ 4. The prosecution produced a number of witnesses to contradict Bailey's story. Billy Donerson testified that he had been working in an auto shop directly across the street from the Short Stop Grocery at the time of the shooting, and that he began observing the crime scene immediately after hearing the gunshot. Donerson stated that he watched two men run from the scene, and added that at no point did he see either man approach the truck or pick up any object from the ground. Jonathan Crawford, a police officer who responded to the scene on the night of the shooting, testified that when he arrived at the Short Stop Grocery, he found Evans locked inside his truck with the doors locked, and had to break the window to gain access to Evans. This testimony, taken together with Donerson's testimony that no one approached Evans's truck to open or close the doors or windows until Officer Crawford arrived on the scene, called Bailey's story into doubt. Furthermore, in a statement given to police, Pickens said that he had been with Bailey at the time of the shooting, and that the door to Evans's truck had been closed when Bailey fired the fatal shot.¹ Pickens also told police that he did not see Evans point a pistol at Bailey, and that he did not see Bailey pick up the gun that Evans allegedly dropped after being shot. Also called by the prosecution in its case-in-chief was David Whitehead, an employee of the Mississippi Crime Laboratory admitted by the trial court as an expert in the field of gunshot residue analysis. Whitehead testified that gunshot residue could be expected to be found on Evans's hands had he handled a gun within the four hours preceding his death. However, Whitehead testified that his tests found Evans's hands to be free of gunshot residue, thus leading to his conclusion that Evans had not handled a gun within the four hours preceding his death.²

¶ 5. After opting not to testify or to present any other evidence in his case-in-chief, Bailey was convicted and sentenced to a term of life in the custody of the Mississippi Department of Corrections. Bailey's motion for judgment notwithstanding the verdict, or, in the alternative, a new trial, was denied by the trial court. Aggrieved, Bailey timely appealed to this Court asserting a number of errors. We shall address each in turn.

ISSUES AND ANALYSIS

I. WHETHER PROSECUTORIAL MISCONDUCT DEPRIVED BAILEY OF THE RIGHT TO A FAIR TRIAL.

¶ 6. While acknowledging the wide latitude given counsel in making closing arguments, Bailey contends that the prosecution stepped so far beyond the boundaries of proper closing as to deny him a fair trial. He first alleges that the trial court allowed the prosecution, in closing, to improperly define "heat of passion." Secondly, Bailey contends that the trial court erred in allowing the prosecution to instruct the jurors that the only way they could find Bailey guilty of the lesser-included offense of manslaughter was "if y'all are tired and you're hungry and you're ready to go home." Third, Bailey claims that, in closing, the prosecution deliberately misrepresented testimony by gunshot residue expert David Whitehead. Lastly, Bailey asserts that the trial court erred in denying his motion for mistrial, which was based upon comments by the prosecution which Bailey claims accused his attorney of subornation of perjury.

STANDARD OF REVIEW

¶ 7. Attorneys are allowed wide latitude in arguing their cases to the jury; however, prosecutors are not permitted to use tactics which are inflammatory, highly prejudicial, or reasonably calculated to unduly influence the jury. Sheppard v. State, 777 So.2d 659, 661(¶ 7) (Miss.2000). The standard of review that appellate courts must apply to lawyer misconduct during opening statements or closing arguments is, "whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created." Id. Furthermore, in closing, counsel "cannot . . . state facts which are not in evidence, and which the court does not judicially know, in aid of his evidence. Neither can he appeal to the prejudice of men by injecting prejudices not contained in some source of the evidence." Id. (citing Nelms & Blum Co. v. Fink, 159 Miss. 372, 383, 131 So. 817, 821 (1930)).

A. Whether the trial court erred in allowing the prosecution to improperly define "heat of passion."

¶ 8. In beseeching the jury to reach a verdict of murder rather than manslaughter, the prosecution stated the following in its closing argument:

Is this a manslaughter. No. [Defense counsel] talked about everything else, and in the last 10 seconds, oh, and if you don't think it's murder, it's heat of passion.

What is heat of passion. In law school I learned this is what heat of passion is. If you're married and you go in and you see your spouse in the bed with another person, you get mad. You don't have a weapon on you but you reach for the gun that's on the dresser and you shoot the lover. That is heat of passion. That is classic heat of passion.

¶ 9. While Bailey asserts that this argument was improper, he failed to make a timely objection to the prosecutor's statements. We find no need to pass on the merits of his claim, as this issue is not properly before this Court. See Byrom v. State, 863 So.2d 836, 872 (¶ 119) (Miss. 2003).

B. Whether the trial court erroneously overruled Bailey's objection to the prosecution's statement that the only way jurors could find Bailey guilty of manslaughter was "if y'all are tired and you're hungry and you're ready to go home."

¶ 10. We agree with Bailey that the prosecutor's statement that "[t]he only way you get to heat of passion is y'all are tired and you're hungry and you're ready to go home" was improper. The purpose of the statement was to prejudice Bailey's defense, and had nothing to do with the evidence presented at trial or any reasonable inferences therefrom. See Sheppard, 777 So.2d at 661-62(¶ 9). However, keeping in mind the strength of the evidence against Bailey, we are unable to find that the natural and probable effect of the prosecutor's statement was to create such prejudice against Bailey as to result in a decision influenced by the prejudice so created.

¶ 11. Bailey contends that the prosecutor's statement in the case sub judice is "perilously close" to a statement found by the Mississippi Supreme Court in Sheppard as constituting reversible error. In that case, in closing, the prosecutor stated that if the jury...