Balfour v. State

Decision Date25 March 1992
Docket NumberNo. 89-DP-1355,89-DP-1355
Citation598 So.2d 731
PartiesSusie Ann BALFOUR v. STATE of Mississippi.
CourtMississippi Supreme Court

Thomas H. Pearson, Cheryl Ann Webster, Clarksdale, for appellant.

Michael C. Moore, Atty. Gen., Marvin L. White, Jr., Asst. Atty. Gen., Charlene R. Pierce, Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

DAN M. LEE, Presiding Justice, for the Court:

This is an appeal by Susie Ann Balfour from the DeSoto County Circuit Court from a conviction of capital murder and a sentence to death by lethal injection. Ms. Balfour appeals her conviction and sentence to this Court alleging that the lower court committed twenty-three (23) errors in the trial of her case. After diligent review of all issues raised by Balfour, we find that the trial court erred in admitting into evidence Balfour's statement of confession which was obtained in violation of her Fifth, Sixth and Fourteenth Amendment rights of the United States Constitution, as well as rights secured by Article III, Section 26 of the Mississippi Constitution of 1890. Consequently, we reverse Balfour's conviction of capital murder, vacate her sentence of death by lethal injection, and remand the same to the DeSoto County Circuit Court for a new trial.

We find that Balfour's first issue alleging violation of her Fifth and Sixth Amendment rights is outcome determinative for the result reached in this case. Therefore, we find little or no benefit in exploring all twenty-three (23) issues; however, we do address other issues which we deem to be necessarily dispositive. Balfour raises the following issues on appeal:

I. The trial court erred in admitting into evidence a confession obtained through interrogation initiated by investigators after defendant had requested counsel.

II. The court erred in admitting into evidence a confession obtained in violation of Rules 1.04 and 1.05.

III. The trial court erred in that during the sentencing proceeding it allowed the State of Mississippi to question the appellant in an improper and speculative manner. The State questioned the appellant concerning future robberies which had not been committed, and, further insinuated that she would have been a willing participant "until caught or someone was killed," all of which was designed to inflame the jury and cause unfair prejudice to the appellant and denied her a fair trial during the sentencing proceeding to determine punishment in capital cases.

IV. The trial court erred in that it allowed the State of Mississippi to question the witness, Lawrence Kirby Payne, during its cross-examination about a certified lab report, and the findings contained therein, which were never offered into evidence during the trial, and of which the State of Mississippi knew this witness had no actual knowledge, knew it had no basis in fact for the questioning, and did so question for the sole purpose of inflaming the jury V. The trial court erred in that it allowed the State of Mississippi to question improperly the witness, Lawrence Kirby Payne, with no basis in fact for the questioning whatsoever during the State of Mississippi's cross-examination, all of which was designed to produce irreparable injury to the appellant's defense; and, further, it was designed to inflame the jury thus causing the appellant undue prejudice and denying the appellant a fair trial.

and denying this appellant her right to a fair trial.

VI. The trial court erred in that it failed to grant a mistrial based on the release of juror Chandler after jury deliberations had begun, and the replacement of her with an alternate juror in violation of the laws of the State of Mississippi.

VII. The trial court erred in that it allowed into evidence any and all statements made by Lt. Lance, the decedent, to Bruce Smith, an emergency medical technician.

VIII. The trial court erred in that it allowed into evidence the testimony of Officer Vick concerning the good character of Lt. Lance, the decedent, without the character of Lt. Lance having first been impugned by the appellant, causing the appellant undue prejudice and denying the appellant a fair trial.

IX. The trial court erred in that it allowed into evidence the testimony of State's witness, Pam Tuten, a jail house snitch, which was not relevant to the issues before the bar and therefore was inadmissible.

X. The trial court erred in that it allowed into evidence the testimony of State's witness, Pam Tuten, even if it was relevant in that the testimony should have been excluded because its probative value was substantially outweighed by the prejudice caused the appellant and therefore denied her a fair trial.

XI. The suppression of evidence favorable to Susie Balfour denied her a fair trial and sentencing hearing.

XII. The jury was not fully instructed on the alternative of manslaughter.

XIII. The refusal to permit the defense to voir dire those jurors eliminated pursuant to Witherspoon v. Illinois and Fuselier v. State violated Susie Balfour's constitutional rights.

XIV. When the accused stated that she wished to proceed to trial without counsel, the trial court was obligated to conduct a full inquiry into her Faretta demand.

XV. The prosecution improperly questioned the accused so as to set up a strawman to use as an excuse to impeach Susie Balfour with her first statement, taken in violation of her Fifth Amendment rights.

XVI. Improper statements made by the prosecutor throughout the trial violated Susie Balfour's right to a fundamentally fair proceeding. Specifically, there was improper questioning of the accused when she testified, improper cross-examination of other witnesses and improper statements generally.

XVII. The instructions at the guilt phase failed to adequately define the law for the lay people XVIII. The instructions at the penalty phase failed to channel the jurors' discretion as required by Furman v. Georgia.

who were called to serve as jurors.

XIX. The invalidity of various aggravating circumstances in this case requires resentencing.

XX. The exclusion of black jurors raised a presumption, which was never rebutted, that racial considerations were playing a part in jury selection.

XXI. By taking no action to control the number of uniformed, armed law enforcement officers who came to encourage a verdict of guilty and a sentence of death, the trial court abdicated its responsibility to guarantee a fair trial.

XXII. The trial judge should not have conducted significant aspects of the proceedings ex parte without the defendant or counsel being present.

XXIII. The indictment failed to adequately charge the crime of capital murder under Mississippi law.

Our opinion today emphasizes issue I, violation of appellant's Fifth and Sixth Amendment rights, while also addressing issues III, IV, V, VI, XIII and XXI. We begin with a recitation of the facts which have brought us thus far.


On October 4, 1988, Susie Ann Balfour along with her boyfriend, Lawrence Kirby Payne, embarked on a crime spree throughout Marshall and DeSoto Counties in north Mississippi. Payne and Balfour's criminal adventure came to a tragic halt in the early morning hours of Friday, October 7, 1988, when Balfour shot and killed Lt. Billy Lance, a Southaven police officer, who had stopped Payne and Balfour as they attempted to flee to Memphis after having robbed the Circle K convenience store in Southaven, Mississippi.

Balfour was taken into custody at approximately 7:00 a.m. at the home of Mary Payne, Lawrence Kirby Payne's mother, on October 7, 1988, and she was charged with capital murder. At 9:43 a.m., Balfour met with Investigators Creekmore Wright and Kenny Dickerson. At this meeting, Balfour was presented with a waiver of rights form. Although Balfour placed her initials, "S-B," at the end of each sentence on the rights form, she refused to sign the form and declined the offer to waive any of her Miranda rights. The signature blank on the form was marked, "Refused to Sign".

Balfour remained in the custody of the DeSoto County Sheriff's Office over the following weekend and Monday, October 8, 9, and 10, 1988. On Tuesday morning at 9:00 a.m., October 11, 1988, Balfour had her initial appearance before Judge Mills Barbee. At the initial appearance, Balfour informed the court that she had not retained counsel in the four days since her arrest, but she expressed a belief that a family member was making arrangements for her legal representation. Judge Barbee instructed law enforcement officials who had custody of Balfour to make a telephone available so that Balfour could contact her family to inquire about their progress in retaining counsel. Investigator Jimmy Radford and Deputy Bud Smith were in the courtroom during the initial appearance and heard the exchange between Judge Barbee and Balfour. Therefore, both Radford and Smith knew that Balfour had indicated that she would be obtaining counsel. However, in the early afternoon on October 11, 1988, within four hours of the initial appearance, Deputy Bud Smith retrieved Balfour from her jail cell and brought her to an office where Investigator Radford was waiting. Radford and Smith acknowledge that they initiated the contact with Balfour on the afternoon of Tuesday, October 11, 1988, to question her about the robberies and the murder of Lt. Lance.

Radford testified that he read the waiver of rights form to Balfour, and after reading each item, he asked her if she understood. When Balfour replied that she understood, Radford asked her to place her initials at the end of each sentence, and Balfour complied. At a hearing on Balfour's motion to suppress her statement of confession, Investigator Jimmy Radford described the procedure which he used at the October 11, 1988, interview and Balfour's "nonassertion" of her right to counsel:

Q. Okay. During this administration of rights, what request, if any, did she make for a lawyer?

A. She did not request an attorney. She said her family might...

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