Booker v. State

• Decision Date: 21 March 1984
• Docket Number: No. 54696,54696
• Citation: 449 So.2d 209
• Parties: John Earl BOOKER v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 209

449 So.2d 209

John Earl BOOKER v. STATE of Mississippi.

No. 54696.

Supreme Court of Mississippi.

March 21, 1984.

Rehearing Denied April 18, 1984.

Ellis Turnage, Morris & Turnage, Cleve McDowell, Cleveland, for appellant.

Bill Allain, Atty. Gen. by Amy D. Whitten, Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

WALKER, Presiding Justice, for the Court:

I.

This is an appeal from the Circuit Court of Tate County, wherein the appellant pled guilty to the charge of capital murder. After a trial to determine sentence, the jury rendered its unanimous verdict that the appellant should suffer the death penalty. Based upon this verdict, the trial judge sentenced Booker to death by lethal gas as provided in Mississippi Code Annotated section 99-19-51 (1972). It is from this verdict and sentence that Booker appeals and assigns the following as error:

(1) The trial court erred in failing to suppress the statement of the appellant;

(2) The trial court erred in failing to grant appellant's motion to quash the special venire panel;

(3) The trial court erred in overruling defendant's objections to the prosecution's introduction of gruesome photographs;

(4) The trial court erred in overruling appellant's objections to the testimony of the victim's widow;

(5) The trial court erred in not granting the appellant's motion for judgment N.O.V. in that the verdict was contrary to the overwhelming weight of evidence; and

(6) The court is urged to consider the closing argument herein pursuant to its ruling in the Howell case.

(7) The jury's sentence of death was against the overwhelming weight of the evidence and the result of an unconstitutional weighing process.

(8) The arbitrary and discriminatory imposition of the death penalty in this case violates the Eighth and Fourteenth Amendments.

(9) The prosecutor improperly used all of his peremptory challenges to exclude all Blacks from the jury, in violation of appellant's constitutional rights.

II.

On the afternoon of March 11, 1981, Mr. O.M. Martin was found shot to death at his Charleston scrap iron business. Charleston Police Chief Jimmy Shows was dispatched to the scene. After arriving, the requested investigative assistance from the Tallahatchie County sheriff's department and the Mississippi Highway Patrol.

Investigators A.D. Gatewood, Jay Clark, and Jimmy Dees responded to Chief Shows' request for assistance. They proceeded to Mr. Martin's scrap iron business, where they conducted an investigation and took photographs of the crime scene. Thereafter, one of the investigators proceeded to the hospital and took pictures of Mr. Martin's body.

Through their investigation the officers learned that on the morning of March 11, 1981, John Earl Booker, the appellant, had helped load a truck at the scrap yard. On March 12, 1981, several of the officers went to Booker's home to question him. While there, investigator Clark obtained written consent to search the pickup Booker was driving. The consent form was signed by Booker and Cora Jones, Booker's girlfriend and owner of the pickup. A search of the pickup produced Booker's wallet, which contained $123.00 and a small bag of marijuana.

Booker was then taken to the police station, where he was advised of his rights and then questioned by Chief Shows, Deputy Sheriff Doyel Morrow and Investigator Jimmy Dees. Throughout the questioning Booker denied any involvement in the crime but agreed to submit to a polygraph examination.

Accompanied by Investigator Dees, Deputy Sheriff Morrow and Chief Shows, Booker traveled to Jackson on March 12 for a polygraph, which was given at the Mississippi Highway Patrol Administration Building. After the test, Booker was taken to a waiting room while the results were being analyzed. At this point he indicated to Deputy Sheriff Morrow that he would like to make a statement. Morrow then called for Dees, who came into the room and advised Booker of his constitutional rights. Booker indicated that he understood these rights and agreed to waive them.

In his statement Booker confessed to killing Mr. Martin. In summary, he told the following story:

Booker and two accomplices agreed to rob Martin's scrap iron business. When they arrived Mr. Martin was welding at the back of an old pickup truck. Booker pulled a nickel-plated .38 calibre pistol and shot Mr. Martin in the head. He then took Mr. Martin's wallet, which contained a little over $400.00. Booker gave his two accomplices $100.00 each and kept the remaining $200.00 for himself. Booker told the officers that Martin was shot so that there would be no witnesses to the robbery.

After making the statement, Booker was placed under arrest and transported back to Charleston.

Booker's two accomplices, Kermit Jones and Timothy Gardner, were also arrested. Shortly after their arrest, Lottie Jones, Kermit's sister, surrendered a brown paper bag to the police. The bag contained a .38 calibre pistol and a wallet belonging to Mr. O.M. Martin. Mrs. Jones informed the officers that the bag had been hidden outside of their house.

On the defendant's motion, venue was changed from Tallahatchie to Tate County due to the publicity surrounding the case. Trial commenced on July 20, 1981 and the appellant changed his plea from not guilty to guilty. Consequently, the trial consisted of the sentencing phase only.

On July 22, 1981 the jury returned its verdict, finding that the aggravating circumstances outweighed the mitigating circumstances and the defendant should receive the death penalty. In accordance with this verdict the trial judge sentenced Booker to be executed on September 11, 1981. This order was then stayed pending the outcome of this appeal.

III.

A.

In his first assignment of error the appellant urges that the trial court erred in failing to suppress the confession he gave to Deputy Sheriff Morrow and Investigator Jimmy Dees. The appellant contends that the officers threatened to beat him if he didn't talk and, therefore, the confession is not voluntary.

The procedure for admitting a confession in the face of a challenge that it is involuntary was set forth in Agee v. State, 185 So.2d 671 (Miss.1966):

The State has the burden of proving the voluntariness of a confession. This burden is met by the testimony of an officer, or other person having knowledge of the facts, that the confession 185 So.2d 673.

was voluntarily made without any threats, coercion, or offer of reward. This makes out a prima facie case for the State on the question of voluntariness. Lee v. State, 236 Miss. 716, 112 So.2d 254 (1959). When objection is made to the introduction of the confession, the accused is entitled to a preliminary hearing on the question of the admissibility of the confession. This hearing is conducted in the absence of the jury. Lee v. State, supra, is also authority for the proposition that when, after the State has made out a prima facie case as to the voluntariness of the confession, the accused offers testimony that violence, threats of violence, or offers of reward induced the confession, then the State must offer all the officers who were present when the accused was questioned and when the confession was signed, or give an adequate reason for the absence of any such witness. See also Holmes v. State, 211 Miss. 436, 51 So.2d 755 (1951).

A hearing was conducted outside the jury's presence and the appellant testified that he gave a confession only because the officers threatened to take him into a room and make him talk. The State then called Investigator Dees and Deputy Sheriff Morrow, the two officers who were present when the confession was given. Both testified that the appellant was in no way threatened or coerced and that he gave the confession after twice being advised of his Miranda rights. At the conclusion of the hearing the trial judge held that Booker's statement was free and voluntarily given. Based upon this finding, he ruled that it would be admitted into evidence.

The procedure followed by the trial court comports completely with the requirements set forth in Agee, supra. Although the trial judge made no specific finding that the appellant was not beaten, such is to be inferred from his holding that the confession was voluntarily given. This Court has held many times that whether a confession was voluntarily given is a question of fact for the trial court's determination. Where there is substantial and believable evidence supporting his decision, it will not be overturned. See Harrigill v. State, 381 So.2d 619 (Miss.1980); Curry v. State, 328 So.2d 328 (Miss.1976); Clemons v. State, 316 So.2d 252 (Miss.1975). We are unable to say that the trial court's ruling was contrary to the evidence. Accordingly, his finding will not be disturbed.

B.

The appellant next contends that the trial court erred in failing to grant his motion to quash the special venire panel.

On May 18, 1981 the appellant filed a motion for a special venire. The trial judge sustained the motion and ordered the Clerk of Tate County to draw 150 names from the jury wheel. He also directed the Clerk to give defense counsel notice of the time and date of the drawing so that he could be present to observe the drawing if he desired. After the names were drawn, only 67 were statutorily qualified to serve on the special venire.

Three allegations are made under this assignment of error. First, the appellant contends that the remaining number, 67, was not broad enough to legally constitute a special venire. We note that the appellant cites no authority for this contention, which is clearly without merit. Mississippi Code Annotated section 13-5-77 (1972) provides:

When any person charged with a capital crime, or with the crime of manslaughter, shall have been arraigned and the plea of not guilty entered, it shall be the duty of the court, upon the demand of the accused or the district attorney, to cause to be drawn, in open court, from the jury-box as many...