Burns v. State

• Citation: 729 So.2d 203
• Decision Date: 19 November 1998
• Docket Number: No. 96-DP-01088-SCT.,96-DP-01088-SCT.
• Parties: Joseph Daniel BURNS, a/k/a "Jojo" Burns v. STATE of Mississippi.
• Court: Mississippi Supreme Court

729 So.2d 203

Joseph Daniel BURNS, a/k/a "Jojo" Burns v. STATE of Mississippi.

No. 96-DP-01088-SCT.

Supreme Court of Mississippi.

November 19, 1998.

Rehearing Denied January 28, 1999.

Melvin C. Ellis, III, Tupelo, for Appellant.

Office of the Attorney General by Leslie S. Lee, for Appellee.

EN BANC.

PITTMAN, Presiding Justice, for the Court:

¶ 1. This case is before this Court on appeal from the Circuit Court of Lee County, Mississippi. Joseph Daniel "JoJo" Burns ("Burns") was indicted during the November 1995 term of the Lee County Grand Jury for the capital murder of Floyd Melvin McBride ("McBride") on November 10, 1994 while engaged in the commission of armed robbery in violation of § 97-3-19(2)(e). The three-day trial began September 3, 1996 and ended September 5, 1996 with the jury returning a verdict of guilty. The sentencing hearing was held September 6, 1996. The jury heard final arguments from both the defendant and the state before retiring to the jury room for deliberation. After 2½ hours of due consideration, the jury returned with a verdict. The following verdict was returned in the proper form:

We the jury unanimously find from the evidence beyond a reasonable doubt that the following facts existed at the time of the commission of the Capital Murder:

1- That the defendant, Joseph Daniel Burns, actually killed Floyd Melvin McBride;

2- That the defendant attempted to kill Floyd Melvin McBride;

3- That the defendant intended that the killing of Floyd Melvin McBride take place;

4- That the defendant contemplated that lethal force would be employed in this crime.

Next, we the Jury, unanimously find that the aggravating circumstances of the defendant, Joseph Daniel Burns, was engaged in the commission of a robbery is sufficient to impose the death penalty and that there are insufficient mitigating circumstances to outweigh the aggravating circumstance, and we unanimously find that the defendant should suffer death.

/s/ Sonny Turner Foreman of the Jury

¶ 2. The trial judge sentenced Burns to death by lethal injection to be carried out on October 11, 1995. Burns filed a Motion to Stay Execution pending appeal which was granted on September 13, 1996. Burns' Motion For JNOV Or In The Alternative A New Trial was denied by the trial judge on September 18, 1996. Burns timely filed a Notice of Appeal with this Court on October 1, 1996. Following the denial of his Motion for Supersedeas Bond Pending Appeal, Burns is currently being held in the maximum security unit at The Mississippi State Penitentiary pending the outcome of his appeal. Burns raises the following issues on appeal:

I. THE COURT ERRED BY FAILING TO GRANT REQUESTED PRELIMINARY HEARING.

II. THE COURT ERRED BY FAILING TO HAVE ENTIRE PROCEEDINGS RECORDED.

III. BURNS WAS DEPRIVED OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, DUE PROCESS AND A RIGHT TO A FAIR TRIAL BY THE COURT'S DENIAL OF BURNS' REQUEST FOR A CONTINUANCE.

IV. THE COURT ERRED IN FAILING TO QUASH THE INDICTMENT.

V. SUFFICIENT EVIDENCE WAS NOT PRESENTED TO CONVICT BURNS ON THE INDICTED CHARGE.

VI. THE COURT ERRED IN ALLOWING THE INTRODUCTION OF THE EXEMPLARS WHERE THE ITEMS WERE TAKEN IN VIOLATION OF BURNS' RIGHTS UNDER

THE FOURTH, FIFTH, AND SIXTH AMENDMENT OF THE U.S. CONSTITUTION.

VII. THE COURT ERRED IN ALLOWING THE LETTERS OVER THE OBJECTION OF THE DEFENDANT WHERE THE PROSECUTION DID NOT LAY THE PROPER FOUNDATION FOR INTRODUCTION AND DID NOT REQUIRE THE PROSECUTION TO SATISFY THE "CHAIN OF CUSTODY" OF SAID LETTERS.

VIII. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR DIRECTED VERDICT, BOTH AT THE CLOSE OF THE STATE'S CASE AND AT THE CLOSE OF THE ENTIRE CASE, AND IN DENYING MOTION FOR NEW TRIAL.

IX. THE COURT ERRED IN ALLOWING THE STATE TO MAKE PREJUDICIAL REFERENCE TO PRIOR CRIMES IN VIOLATION OF M.R.E. RULE 404.

X. THE EVIDENCE PRESENTED PROVED TO BE INSUFFICIENT WHERE GREAT RELIANCE WAS PLACED ON UNCORROBORATED, INCREDIBLE TESTIMONY.

XI. THE TRIAL COURT ERRED IN ADMITTING UNNECESSARY AND GRUESOME AUTOPSY PHOTOGRAPHS INTO EVIDENCE.

XII. THE DENIAL OF BURNS' RIGHT TO AN INDEPENDENT PSYCHOLOGIST EXPERT TO ASSIST HIS DEFENSE VIOLATED CONSTITUTIONAL RIGHTS.

XIII. THE TRIAL COURT ERRED IN DENYING APPELLANT'S REQUEST FOR A MANSLAUGHTER INSTRUCTION.

XIV. THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY ON THE UNDERLYING CRIME OF ROBBERY.

XV. THE COMMENTS MADE BY PROSECUTION AMOUNTED TO PROSECUTORIAL MISCONDUCT.

XVI. THE COURT MUST REMAND THIS CASE FOR A NEW SENTENCING PROCEEDING, IN LIGHT OF PROSECUTION'S MENTIONING OF UNDEFINED AGGRAVATORS WHICH WERE VIGOROUSLY ARGUED TO THE JURY AS THE GROUNDS FOR A DEATH SENTENCE.

STATEMENT OF THE FACTS

¶ 3. The facts, as revealed in the record, indicate that during the day of November 9, 1994, Burns and Phillip Hale went to the Town House Motel on Gloster Street in Tupelo, Mississippi where Mike McBride was the hotel manager. Phillip Hale testified that he and McBride were friends, and that he introduced Burns to McBride on November 9, 1994. Phillip Hale testified that he went in and asked McBride if they could stay there three or four days. McBride said sure, and Phillip went out to the truck, got his bag and asked Burns to come inside. Phillip Hale testified that they then "hung out for awhile" with McBride. Burns and Phillip Hale then went to get something to eat and watched a movie before returning to the motel office. McBride asked Burns and Phillip Hale if they wanted to help him count $30,000. They agreed and while they were counting the money, the two decided to rob McBride. Burns and Phillip Hale agreed that Hale would hit McBride and Burns would take the money. Phillip Hale further testified that he hit McBride and knocked him down and left the room to make sure nobody was coming. When he returned to the room, Burns was stabbing McBride in the back of the neck with a knife, a fork, and a phillip's head screwdriver. When Hale asked Burns what he was doing, Burns stabbed Hale in the foot. Hale testified that McBride was repeating "why me" while he was being stabbed to death. After the stabbing, Burns and Hale wiped fingerprints, got the money and left. The record reflects that $3,000 was taken from a tin safe in McBride's office. Burns broke the lock off of the safe with a pair of pliers. ¶ 4. After the stabbing, Burns and Phillip Hale returned to the trailer in Verona where they were living with Janie Taylor and Brandi Sides. Burns went into Janie Taylor's room, whom he was dating at the time, woke her up, told her what they had done, counted the money, and divided the money between himself and Hale ($1,500 each).

¶ 5. Phillip Hale then went to his brother, Jeff's, shop. His brother was out of town. Burns showed up later and informed Phillip Hale that he had thrown the "stuff" behind the trailer park where they lived. The testimony of State's witness, Carrie Cryder, revealed that on December 24, 1994 he and Burns were riding around, and Burns retrieved the weapons from behind the trailer and threw them off of the bridge on Brewer Road.

¶ 6. Later that day, on November 10, 1994, Phillip Hale parked the truck the two had driven to the Town House Motel behind Jeff's house because he was fearful that someone had seen the truck and could identify Burns and Hale by the truck. Jeff Hale had loaned his brother the truck several weeks before McBride was killed.

¶ 7. When Jeff Hale returned to town, he was suspicious about why Phillip had parked the truck behind the house. Also, Phillip paid his brother, Jeff, $600 he owed him, and this too made Jeff suspicious about where Phillip got the money. When Jeff first asked Phillip where the money came from, Phillip lied to him. Phillip testified that he ultimately told his brother that he and Burns killed McBride, although there is some question about when he told him. Burns also told Jeff Hale what happened. The following weekend, on November 12, 1994, Burns, Phillip Hale and his brother, Jeff went to Tunica to the casinos and spent the money they had stolen from the Town House Motel returning to Tupelo with $100 or $200.

¶ 8. A guest of the Town House Motel the night of November 9, 1994 testified for the State. He testified that he remembered seeing two men arrive at the motel in a tan truck that fit the description of the truck belonging to Jeff Hale that Phillip Hale was driving on the day of the murder. The guest testified that they arrived about 8:00 p.m. and left around 10:00 or 10:30 p.m. McBride's body was found by another employee of the motel around 7:00 a.m. the next morning.

¶ 9. Phillip Hale and Burns were not arrested until August of 1995 concerning this crime. The Tupelo Police Department arrested them pursuant to an investigation that ensued after two anonymous phone calls were received by the Crime Stoppers.

¶ 10. McBride's body was found in his living quarters at the Town House Motel. McBride died from a combination of blunt force injuries to the head and neck caused by numerous blows to the head and back of the neck and exsanguination from the injuries to his face and neck.

¶ 11. While Burns was in jail in Lee County, he began corresponding with a female prisoner, Contina Kohlheim. In the letters Burns sent Kohlheim, he talks about killing a man. "Look about the guy I killed, me and Phillip were dealing with a lot of dope and Phillip was giving our dope to this guy. He owed us $58,000. I told Phillip to ask him one more time to pay us but he never did. So that night we went to the town house and I killed his ass." In the other letter Burns sent Kohlheim, he wrote, "I took a man's life now I'm looking at the Death Penalty." Testimony at trial revealed that Burns was not charged with any other murder, and there had been no other murders at the Town House Motel.

¶ 12. The letters were signed from "JoJo," or "Love JoJo." Burns gave the letters to a male trustee who in turn gave them to the jailer who then gave them to a female trustee to deliver...