Blue v. State

• Decision Date: 15 February 1996
• Docket Number: No. 93-DP-00534-SCT,93-DP-00534-SCT
• Citation: 674 So.2d 1184
• Parties: David BLUE v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1184

674 So.2d 1184

David BLUE v. STATE of Mississippi.

No. 93-DP-00534-SCT.

Supreme Court of Mississippi.

Feb. 15, 1996.

Rehearing Denied June 6, 1996.

Solomon C. Osborne, Greenwood, for Appellant.

Michael C. Moore, Attorney General, Marvin L. White, Jr., Assistant Attorney General, Leslie S. Lee, Sp. Asst. Attorney General, Jackson, for Appellee.

En Banc.

SMITH, Justice, for the Court:

David Blue appeals from the Circuit Court of Leflore County his conviction of capital murder of Mary Turntine committed during the course of (1) the sexual penetration of Turntine's anus with a baseball bat, (2) the penetration of Turntine's anus with his penis, and (3) armed robbery of Turntine's purse and firearm. Blue, a seventeen year old at the time of the crime, was sentenced to death on the capital murder charge, and thirty years for each of the other charges. Blue appeals to this Court raising twenty-five assignments of error:

In reviewing these assignments we take note that Blue failed to raise some of these issues in the lower court and on other issues he failed to bring them to the court's attention by an appropriate, timely objection. This Court, in Foster v. State, 639 So.2d 1263, 1270 (Miss.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1365, 131 L.Ed.2d 221 (1995) stated:

[i]f no contemporaneous objection is made, the error, if any, is waived. This rule's applicability is not diminished in a capital case. Cole v. State, 525 So.2d 365, 369 (Miss.1987), cert. denied, 488 U.S. 934, 109 S.Ct. 330, 102 L.Ed.2d 348 (1988); Irving v. State, 498 So.2d 305 (Miss.1986), cert. denied, 481 U.S. 1042, 107 S.Ct. 1986, 95 L.Ed.2d 826 (1987); Johnson v. State, 477 So.2d 196 (Miss.1985), cert. denied, 476 U.S. 1109, 106 S.Ct. 1958, 90 L.Ed.2d 366 (1986); In re Hill, 460 So.2d 792 (Miss.1984); Hill v. State, 432 So.2d 427 (Miss.1983), cert. denied, 464 U.S. 977, 104 S.Ct. 414, 78 L.Ed.2d 352 (1983).

Although this Court need not look further after finding a procedural bar, this Court also, alternatively, may review the merits of the underlying claim knowing that any subsequent review will stand on the bar alone. The Fifth Circuit Court of Appeals has addressed this issue in Sawyers v. Collins, 986 F.2d 1493, 1499 (5th Cir.1993), stating:

On application for the writ of habeas corpus, federal courts will not review a state court's holding on a federal law claim ... if that holding rests upon a state law ground which is both independent of the merits of the federal claim and adequate to support the state court's judgment. Harris v. Reed, 489 U.S. 255, 260-63, 109 S.Ct. 1038, 1042-43, 103 L.Ed.2d 308 (1989). Consequently, "[w]hen a state-law default prevents the state court from reaching the merits of a federal claim, that claim can ordinarily not be reviewed in federal court." Ylst v. Nunnemaker, 501 U.S. 797, 801, 111 S.Ct. 2590, 2593, 115 L.Ed.2d 706 (1991) (citing Wainwright v. Sykes, 433 U.S. 72, 87-88, 97 S.Ct. 2497, 2506-07, 53 L.Ed.2d 594 (1977); Murray v. Carrier, 477 U.S. 478, 485-92, 106 S.Ct. 2639, 2643- Further, the United States Supreme Court in Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) stated:

48, 91 L.Ed.2d 397 (1986). Furthermore, where a state court finds that a federal claim is procedurally barred, but goes on to reach the merits of that claim in the alternative, the state court's reliance on the procedural default still constitutes an independent and adequate state ground which bars federal habeas review.

The mere existence of a basis for a state procedural bar does not deprive this Court of jurisdiction; the state court must actually have relied on the procedural bar as an independent basis for its disposition of the case....

If the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds, we, of course, will not undertake to review the decision.

Therefore, this Court will apply the procedural bar to each issue waived by Blue. Alternatively, we address each of those issues on the merits. A thorough review of all issues reveals none to be meritorious. We, therefore, affirm Blue's conviction and sentence of death for the capital murder of Mary Turntine. We also affirm Blue's convictions and sentences for sexual battery and armed robbery.

FACTS

On October 14, 1992, David Blue was indicted in the Leflore County Circuit Court for the commission of capital murder during the course of the sexual battery and armed robbery of Mary Turntine (Turntine). The murder occurred between 11:30 p.m. and 12:30 a.m. on June 6, 1992. The body was found laying between houses located at 104 and 106 Jackson Street in Greenwood. Blue was charged on the first count of sexual battery for inserting a bat into Turntine's anus against her will and without her consent or at a time when she was physically helpless. On the second sexual battery count, he was charged with penetrating Turntine's anus with his penis. On the armed robbery count, Blue was charged with using a bat while stealing Turntine's purse, its contents, and her firearm. Blue was seventeen years old at the time of his arrest.

At 5:30 p.m. on June 6, 1992, Blue gave the following statements to Greenwood police officer Charlie Barr:

Last night myself, Freddie Outlaw, a/k/a, Redman, were standing out in front of Claudine's on Howard and Gibbs. A fight broke out inside the place. Then me, Redman and J.J. McGlothin ran up in the place and Lonzo and another dude were fighting and a girl was kicking on Lonzo. I ran over there and pushed her out the way and told her to get up off of him. She got back. Then we got Lonzo up and went out the place and I saw this woman walking down Howard St., towards the Chinaman Store. She kept straight down Howard St., to Jackson St., and then she made a left in the 100 Block of Jackson St., going towards the under pass. That's when I ran up behind her and hit her in the back of the head. She was going down to the ground on her knees and then she reached in her bosom and got the pistol out of there and then she shot towards me and I hit her again with the bat, that I had gotten from Redman, in the front. I hit her hard and then she passed out. I picked her up off the ground and carried her over in the alley between two houses on Jackson St. I laid her on the ground. I pulled her underclothes down and I got the wooden baseball bat and I took the skinny part and stuck it up in her booty-hole. She came to and tried to get up and I hit her again in the head again and she passed out again. Then I had fun. I had sex in her booty. I really don't know how many times I hit her while she was on the ground, but I know it was more than twice. Then I went over there and got her pistol. It was laying beside the big purse that had some design on it, over by where I hit her at first. Then I got the .22 pistol, and I looked in the purse, but there wasn't any money in it. There was a lot of papers in it and I took the purse and went to the railroad tracks and crossed over the railroad tracks and crossed over to the other side of the underpass and walked down At 7:30 p.m. on June 7, 1992, Blue gave a similar statement of the events to officers Andrew Cates and Terry Sanford. In addition to the statement to police officers set forth above, Blue made the following statements to other individuals. Blue and his friends were at Claudine's Place drinking between 9:00 and 10:00 p.m., and remained there until 11:00 p.m. or 12:00 a.m. He thereafter followed Lonzo and Redman outside. Lonzo went back into the cafe and Redman asked him if he wanted to rob somebody. Blue told him that it was up to them. After the fight in the bar, Redman ran home and got his bat. When Redman returned, he said "Lets go rob somebody," to which Blue responded "Okay." Redman then gave Blue the bat. It was at this time that Blue saw Turntine walking down the street. Blue stated:

beside the underpass onto Scott St., and I threw the purse over there by the fence by the underpass. Then I walked over on Vardaman St., to Sister Dot's house and I went in there and washed the blood off the bat that I used to hit the lady with. Blood was on my socks and on my shirt and pants. I had on a red shirt and dark navy blue pants. I exchanged shirts with Joe Taylor, my cousin, a/k/a Peanut. Then I left and left the bat there and I walked over in Baptist Town and went to the Chinaman Store across from the washeteria, which is the street right down by the railroad and I threw the pistol away. Then I came back to Sister Dot's house and I got the bat and I carried it with me around to C.J.'s Place and I saw Steve Clay and I told him to hold the bat until I came out and I went in C.J.'s, where my uncle was. Redman called me outdoors and he had the wooden brown bat. Redman told me to lets go to Double Quick and steal something to eat and I told him no and I went in there where my uncle was. While I was over to Sister's Dot the first time I showed Joe Taylor, Robert Lee Davis, Cornelius Cummings and Annette Cummings the .22 pistol. I walked to the back door and shot it in the air. They said I was crazy and I told them wasn't nobody crazy. When I first got to the house with all the blood on me they asked me what happened. I told them I had gotten in a fight with two dudes. I told them a dude had pulled a gun on me and I took the gun away from him. That was not the truth, but what I've told in my statement is true. The last time I saw the bat Redman and Willie Crawford had it and the bat that Redman brought upto [sic] the police station was not the bat. The type of bat that I had was brown and a wooden bat ... I did not know this lady and this was my first time seeing her. I don't know why I did it. I just was mad and ran and caught the lady and started beating the lady with the bat. I was still mad and I was ready to kill somebody else. I just calmed down this morning. I drank some...