Birkhead v. State, No. 2007-KA-00666-SCT (Miss. 2/19/2009), 2007-KA-00666-SCT.
| Decision Date | 19 February 2009 |
| Docket Number | No. 2007-KA-00666-SCT.,2007-KA-00666-SCT. |
| Parties | RICHARD EARL BIRKHEAD v. STATE OF MISSISSIPPI. |
| Court | Mississippi Supreme Court |
¶ 1. On November 21, 2003, Richard Birkhead was indicted for capital murder, having being found guilty of murdering Walter Lanier while engaged in a robbery.
¶ 2. Birkhead filed a series of pre-trial motions, one of them for a mental evaluation at the Mississippi State Hospital at Whitfield. The trial judge granted this motion, among other reasons, to determine whether Birkhead had sufficient ability to consult with his attorney in the preparation of his defense as well as to ascertain his mental state at the time of the alleged offenses. A neuropsychologist in Tuscaloosa, Alabama, opined that Birkhead was mildly mentally retarded, assigning him an intelligence quotient of 72. However, the Mississippi State Hospital staff disagreed with that diagnosis and determined that Birkhead was not mentally retarded. After briefing and a hearing, the trial court issued an order and opinion, citing Atkins v. Virginia,1 and found that Birkhead had established by a preponderance of the evidence that:
(1) his full scale IQ is within the established range of an individual who is mentally retarded; (2) he suffers from adaptive deficits in both the functional academics and social/interpersonal skills areas that were manifested prior to the age of eighteen; and (3) he is not malingering.
The trial court granted Birkhead's motion to preclude the State from seeking the death penalty.2
¶ 3. A four-day jury trial took place in the Circuit Court of Washington County. After the State rested its case, Birkhead moved for directed verdict, which the trial court denied. Birkhead was found guilty of capital murder. After the verdict, Birkhead renewed his motion for directed verdict, or in the alternative, sought a new trial. The trial court denied this motion as well.
¶ 4. Birkhead was sentenced as a habitual offender and was ordered to serve life without parole in the Mississippi Department of Corrections. Birkhead appeals from this judgment.
¶ 5. Birkhead presents the following issues for appeal to this Court:
I. Whether the trial court erred when it determined the defense had not established a prima facie case of discrimination in the State's selection of jury members and use of peremptory strikes.
II. Whether Birkhead's constitutional right to confrontation was violated by the admission of the victim's death certificate into evidence.
III. Whether the trial court abused its discretion in allowing the death certificate into evidence when it showed the purported time of injury.
IV. Whether the trial court erred in not dismissing a sleeping juror.
V. Whether the trial court erred in not declaring a mistrial after a witness's comment regarding Birkhead's exercise of his right to remain silent.
VI. Whether the trial court erred in giving Jury Instruction CR-12 regarding attorney's notes.
VII. Whether there was a cumulative error which deprived Birkhead of his right to a fundamentally fair trial.
¶ 6. On June 12, 2003, eighty-two-year-old Walter Lanier left his home in Hamburg, Arkansas, to go to the Jubilee Casino in Greenville, Mississippi. Surveillance tape from the casino shows Lanier entering the casino at 9:00 p.m. and shows Lanier exiting the casino on June 13, 2003, at 2:17 a.m.
¶ 7. Officer Jeffery Parsons, who was a patrolman with the Washington County Sheriff's Office, testified he heard on his scanner that there was a disturbance when the nightclub was closing at the Jubilee. While Officer Parsons was driving through the parking lot of the casino, he noticed a Cadillac with one white male seated in the front seat and one African-American male seated in the back seat. He continued to drive through the parking lot until he was flagged down by an unknown female, who directed him back to the Cadillac.
¶ 8. According to testimony, when Officer Parsons returned to the Cadillac, he saw an African-American male exiting the rear passenger door and walking rapidly toward the casino. Officer Parsons radioed the Greenville Police Department and advised the man should be detained. He then exited his patrol car, while maintaining visual contact with the man. He further testified the lighting was good and that no other people were in the area.
¶ 9. Officer Parsons testified that he trailed the man until he saw Officer Rod Shannon detain him. About five to six steps from where the male was being detained, Officer Parsons found a knife. Officer Parsons did not touch the knife, but instead notified a supervising officer at the scene. When Officer Parsons approached the Cadillac, paramedics were trying to resuscitate the man in the car, who later was identified as Lanier.
¶ 10. When Officer Parsons approached the African-American man, he recognized him as the male who was in the Cadillac. The man identified himself as Richard Birkhead. The supervising officer collected Birkhead's shirt, along with the knife, and gave it to Investigator Misty Litton Watson as evidence. Officer Parsons placed Birkhead in the custody of the Greenville Police Department and left the scene. Officer Parsons did not recall the time he arrived at the scene, nor did his report reflect the time.
¶ 11. After Officer Parsons testified, seven other Greenville Police Department officers testified that when they had arrived on the scene, they had found Lanier slumped over in the Cadillac with fresh stab wounds to his chest. It was later determined Lanier's fatal wounds matched the knife found by Officer Parsons. Officer Brian Payne testified there were no signs of forced entry into the car.
¶ 12. Greenville Police warrant officer Jimmy Myrick testified he arrived at the scene at 3:38 am. Officer Myrick transported Birkhead to the Greenville police station. He said he observed no signs of scratches or bruises on Birkhead or signs that Birkhead had been involved in any physical altercation. On the way to the station, Officer Myrick received a call from another officer who was at the hospital with Lanier. The officer reported that Lanier had been pronounced dead. The hospital determined the time of death to be 4:01 a.m., although Officer Myrick stated "he could not advise as to whether it was possible that Lanier died before 4:01."
¶ 13. When they arrived at the Greenville police station for booking, Officer Myrick confiscated money from Birkhead and discovered the money had blood on it. Officer Myrick immediately called Investigator Watson and waited with the money on the counter until she came to retrieve it. Officer Russell Frazier additionally testified to the presence of blood on Birkhead's blue jeans, which were taken into evidence at booking.
¶ 14. Forensic DNA analyst Huma Nasir testified that the blood on the money found in Birkhead's pocket, on Birkhead's jeans, and on the knife belonged to Lanier. No fingerprints were obtained from the knife. Nasir testified that Birkhead's DNA was on a washcloth found in the car, and based on a partial DNA profile, Birkhead's DNA also was on a baseball cap found in the car. Ken Gill, a latent fingerprint examiner, testified that Birkhead's fingerprints were found on the car's rear passenger door as well as on the silver strip above the door handle.
¶ 15. Lanier's autopsy revealed a bruise on his forehead and a stab wound to his chest. The pathologist testified that while he could not determine Lanier's exact position at the time of the attack, the wound to the front of Lanier's body could have been made by a person seated in the back seat of a vehicle as Lanier sat in the front seat. The pathologist testified he did not determine a time of death, as "I was not asked to, and I did not do that, and would not have had the requisite information at that time to come to a conclusion."
¶ 16. The defense moved for directed verdict after the State rested. When the motion was denied, the defense offered no witnesses. The focus of Birkhead's defense was the lapse of time between when Lanier left the casino at 2:17 a.m. until the time he was found dead at 3:38 a.m. In his opening argument, Birkhead's attorney pointed out that Lanier was unaccounted for for one hour and twenty-one minutes. Birkhead claimed he was on his way to the casino when he saw Lanier slumped over in the car and believed Lanier was sleeping or intoxicated. Birkhead claimed he saw property on the back seat and took the opportunity to steal the property. Birkhead asserted Lanier was already dead when he entered the vehicle.
¶ 17. After deliberation, the jury found Birkhead guilty of capital murder. After denial of his motion for judgment notwithstanding the verdict ("JNOV"), or in the alternative, for a new trial, Birkhead appealed his conviction to this Court.
¶ 18. According to this Court:
[a] Batson challenge to a peremptory strike should proceed as follows. First, the defendant must establish a prima facie case of discrimination in the selection of jury members. Berry v. State, 703 So. 2d at 294 (citing Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986)). The prosecution then has the burden of stating a racially neutral reason for the challenged strike. If the State gives a racially neutral explanation, the defendant can rebut the explanation. Finally, the trial court must make a...
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