Carter v. State, 2000-KA-00758-SCT.

• Decision Date: 11 October 2001
• Docket Number: No. 2000-KA-00758-SCT.,2000-KA-00758-SCT.
• Parties: Aaron CARTER v. STATE of Mississippi. George Pierce a/k/a `Cadillac' v. State of Mississippi.
• Court: Mississippi Supreme Court

799 So.2d 40

Aaron CARTER v. STATE of Mississippi.

George Pierce a/k/a `Cadillac' v. State of Mississippi.

No. 2000-KA-00758-SCT.

Supreme Court of Mississippi.

October 11, 2001.

Kent E. Smith, Oxford, Attorney for Appellant.

Office of the Attorney General, By Billy L. Gore, Jackson, Attorney for Appellee.

Before BANKS, P.J., MILLS and EASLEY, JJ.

STATEMENT OF THE CASE

EASLEY, Justice, for the Court:

¶ 1. George Pierce a/k/a `Cadillac' ("Pierce") was convicted of capital murder for the killing of James Ryals ("Ryals") while engaged in the commission of robbery following a jury trial conducted on February 17-20, 1998, in the Circuit Court of Coahoma County. Pierce had been jointly indicted with Aaron Carter a/k/a `Little Head' ("Carter"). Pierce was previously tried twice, September 1997 and December 1997, seeking the death penalty. Both trials resulted in a mistrial based on the failure of the jurors to unanimously reach a verdict. The State chose not to pursue the death penalty against Pierce, and the trial court allowed the cases against Pierce and Carter to be consolidated. Both Pierce and Carter were found guilty of capital murder and sentenced to a term of life imprisonment without the possibility of parole.¹ Pierce's motion for judgment notwithstanding the verdict, or in the alternative, for a new trial was denied by the trial court. Pierce filed a request for an out-of-time appeal which was allowed by the trial court on March 24, 2000, and filed on April 6, 2000. Pierce filed his notice of appeal to this Court on April 17, 2000, with the Coahoma County Circuit Clerk, appealing his February 23, 1998, conviction of capital murder and sentence of life imprisonment without the possibility of parole.

FACTS

¶ 2. On October 28, 1996, Ryals was employed at Toney's Package Store located at 1003 Martin Luther King Drive in Clarksdale, Mississippi, across from the Hong Kong Market. As Ryals closed the liquor store and locked the doors from outside around 8:30-9:30 that evening, he was approached by two males. Ryals was carrying the store's money bag. Ryals was also in possession of a .38 pistol which was taken from him. Ryals was pulled to the west side of the building where he was shot six times with his own .38 pistol.

¶ 3. Officer Christopher Salley ("Officer Salley") of the Clarksdale Police Department responded to the call on October 28, 1996. When he arrived on the scene, Ryals was covered with blood and in bad shape, but Ryals was still alive. Ryals told him that he had been jumped by two young guys while coming out of the store, and they took his wallet and tried to take his money. They had used Ryals's own gun to shoot him. Ryals was transported from the scene by ambulance and later died.

¶ 4. Dr. Steven Hayne ("Hayne"), state pathologist, performed the autopsy on October 29, 1996. At the time of his death, Ryals was a 69 year old Caucasian male. Dr. Hayne testified that Ryals's injuries included a total of six gunshot wounds, as well as, multiple scrapes of the skin called abrasions and bruises. There were abrasions over the back of the head and on the back. There were scraps on the right forearm, right knee, left knee, back left forearm and front left forearm. There were bruises on the left forearm and left and right eyes. The gunshot wounds were to various areas of the body: right thigh on the front surface, left thigh on the front surface, back left shoulder, back left arm, chest wall from left to right, back left shoulder, left back, and left flank. Dr. Hayne testified that three of the gunshots were lethal. Ryals died from the three gunshot wounds to the following areas of the body: left shoulder, left back, and left chest. Dr. Hayne further testified that the manner of death was homicide.

¶ 5. Tyrone Collins ("Collins") testified as an eyewitness for the State. Collins had purchased a pint of alcohol at the liquor store and had smoked crack cocaine that day. He had walked to a house near the liquor store to drink with eight or nine of his friends. Collins stood up when he heard shots fired. He testified that the shots were coming from Toney's Liquor Store (Toney's Package Store). Collins saw Pierce standing over a man shooting him.

¶ 6. At trial, Collins identified Pierce. Collins testified that he had known Pierce for about a year before the incident in question. Collins and Pierce used to hang out together. Collins testified that he had an unobstructed view of that side of the liquor store which was illuminated by a bright street light.² Collins testified that at the time of the shooting, Pierce was wearing a white t-shirt, black pants and a black baseball cap.

¶ 7. Pierce's former girlfriend and mother of his child, Latasha Veal ("Veal"), testified at trial on behalf of the State. Veal had seen Pierce on October 28, 1996, between 8:00 and 9:00 that evening. Pierce was pacing around back and forth acting unusual and nervous. Pierce and Veal left that night and traveled to Memphis, Tennessee, in a truck belonging to Pierce's mother. They were heading to Pierce's brother's house in Memphis. Veal testified that when she asked Pierce what was wrong he replied that, "He didn't know what to do about something. He had killed a man." Veal testified that the reason Pierce gave for killing the man at the liquor store in front of Hong Kong Market was that the man had seen him. Veal testified that Pierce was wearing a white t-shirt, some dark pants and a cap on the evening of October 28, 1996. Veal identified the State's clothing exhibit as the clothing Pierce had been wearing.

¶ 8. Pierce turned himself in at the police station in Clarksdale, Mississippi, the next day in connection with the murder of Ryals.

¶ 9. On appeal, Pierce raises the following issues:

I. WHETHER THE TRIAL COURT ERRED BY NOT ALLOWING THE SEVERANCE OF PIERCE'S TRIAL FROM CO-DEFENDANT CARTER?

II. WHETHER THE TRIAL COURT ERRED IN DENYING PIERCE'S OBJECTIONS AND MOTIONS DURING THE JURY SELECTION PROCESS BASED UPON EXCLUSION OF BLACK JURORS WITH THE USE OF PEREMPTORY CHALLENGES?

III. WHETHER THE TRIAL COURT ERRED IN DENYING PIERCE'S REQUEST FOR JURY INSTRUCTIONS THAT WOULD INCLUDE A LESSER OFFENSE OF MURDER AND MANSLAUGHTER?

IV. WHETHER THE JURY'S VERDICT OF CAPITAL MURDER WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

LEGAL ANALYSIS

I. WHETHER THE TRIAL COURT ERRED BY NOT ALLOWING THE SEVERANCE OF PIERCE'S TRIAL FROM CO-DEFENDANT CARTER?

¶ 10. Pierce alleges that the trial court erred in consolidating his trial with co-defendant, Carter, thereby denying his request for severance. Pierce cites the witness testimony of Savannah Watson ("Watson") as establishing the grounds for a severance. Watson testified at trial that on October 28, 1996, she positively saw Carter involved in a fight with a "white dude." The fight began in front of the liquor store and ended on the side of the store. Carter was not alone, but she could not state positively that Pierce was the other man. When Watson heard the shots fired, she ran and left for Memphis. After denying her ability to identify Pierce, Watson was questioned by the State regarding her prior statement to Fernando Harris on February 10, 1997, at the police station. ¶ 11. The pertinent excerpts of Watson's testimony at trial are as follows:

State: On page two of that statement, do you recall that Mr. Harris was asking you what you saw and did you say (as read): And I heard a shot, and I went to the other side of the street. And then Little Head (Carter) and George (Pierce) came out of the liquor store and a white man came out behind them. And Little Head and the white man was fighting on the side of the building. I heard two more shots and them (sic) boys took off running. Little Head bent over and picked something up, and he took off to running (sic).

Watson: No.

State: You remember saying that?

Watson: Because how am I going to see them coming out of the store and then run across the street, then run back across the street? How is that possible when I've got my niece with me?

State: Well, I'm not going to argue with you, but I'm simply asking you what you might have said at that time?

Watson: True.

State: And down here Mr. Harris was still asking you and you said (as read): George (Pierce) came out of the store. Little Head (Carter) came out behind him. The white man came out. And if I'm not mistaken, I think that white man had a pistol. Do you remember saying that?

Watson: Yes.

State: Okay. And Mr. Harris said (as read): Okay. And then you said (as read): And Little Head (Carter) and white man was fighting. I heard some more shots. The white man fell. George (Pierce) took off. Little Head (Carter) bent over and picked up something, and he took off. Do you remember saying that?

Watson: No, I do not.

State: Yeah. (As read): Where was George (Pierce) when Little Head (Carter) was fighting that man? You answered (as read): He was there. And he said (as read): He was standing there? You said (as read): Uh-huh.

Watson: I never did identify a second person.

State: You what?

Watson: I never did identify the second person because I did not see his face.

¶ 12. At trial, Watson maintained her position that she never identified Pierce as being the second man with Carter.

¶ 13. In Stevens v. State, 717 So.2d 311, 312 (Miss.1998), this Court stated that the decision whether to grant a severance depends on whether the severance is necessary to promote a fair determination of the defendant's guilt or innocence. See Tillman v. State, 606 So.2d 1103, 1106 (Miss.1992)

(overruled on other grounds). Defendants jointly indicted for a felony are not entitled to separate trials as a matter of right. Price v. State, 336 So.2d 1311, 1312 (Miss.1976).

¶ 14. Severance in felony cases is governed by Miss.Code Ann. § 99-15-47 (2000) which states as follows:

Any of several persons jointly indicted for a felony may be tried separately on making application therefor, in capital cases, before

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