Clark v. State, 2019-DP-00689-SCT

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtBEAM, JUSTICE
PartiesTONY TERRELL CLARK v. STATE OF MISSISSIPPI
Decision Date12 May 2022
Docket Number2019-DP-00689-SCT

TONY TERRELL CLARK
v.

STATE OF MISSISSIPPI

No. 2019-DP-00689-SCT

Supreme Court of Mississippi, En Banc

May 12, 2022


DATE OF JUDGMENT: 09/21/2018

MADISON COUNTY CIRCUIT COURT HON. JOHN H. EMFINGER JUDGE

TRIAL COURT ATTORNEYS: BENTLEY E. CONNER WILLIAM R. LABARRE WESLEY THOMAS EVANS JOHN K. BRAMLETT, JR. BRYAN P. BUCKLEY MICHAEL GUEST GREGORY VINSON MILES ASHLEY RIDDLE ALLEN

ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: ALISON R. STEINER ANDRE DE GRUY

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LADONNA C. HOLLAND BRAD ALAN SMITH

DISTRICT ATTORNEY: JOHN K. BRAMLETT, JR.

BEAM, JUSTICE

¶1. A Madison County jury found Tony Terrell Clark guilty of capital murder, attempted murder, and possession of a firearm by a previously convicted felon. The jury sentenced

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Clark to death by lethal injection. After careful review of the record and Clark's arguments, we find no reversible error. Therefore, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On the night of October 27, 2014, Fahd Saeed and his thirteen-year-old son Muhammed were working together in Fahd's convenience store in Canton, Mississippi. Fahd had immigrated to the United States from Yemen in the 1990s when he was thirteen years old. He grew up in California working with his parents in convenience stores, and he eventually moved to Canton where he continued to work in convenience stores until he was able to buy his own store, which he named Fat Boy. Fahd and Muhammed lived in the back of the store; Fahd's wife and two daughters lived in Yemen.

¶3. At approximately 10:10 p.m. that evening, Muhammed was working the cash register while Fahd was sitting directly behind him on FaceTime with Muhammed's mother in Yemen. Muhammed had just finished a transaction with regular customer Marcus Anderson when Clark and his nephew Teaonta Clark walked into the store. No other customers were in the store at the time.

¶4. Without saying a word, Clark walked up to Muhammed and shot him in the left side of the head at point-blank range, killing him instantly. Clark then attempted to shoot Fahd, but the gun jammed. Clark immediately racked the gun's slide, walked around the service counter and pointed the gun at Fahd's head. Fahd managed to push the gun away. Clark then shot Fahd in the stomach and demanded that Fahd "give it up."

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¶5. Clark walked over to the cash register, stepping over Muhammed's body while reaching down and grabbing Muhammed's cell phone. Clark asked Teaonta where Fahd kept the store's money, and Clark attempted to open the cash register. At that moment, a vehicle drove up to the store. Teaonta alerted Clark, and the two men left the store with Muhammed's cell phone. Two women exited the vehicle and walked inside the store where they saw Muhammed's body lying on the ground, and one of the women immediately called 911.

¶6. Authorities quickly identified Clark and Teaonta as the suspects. Anderson, who knew Clark and Teaonta, saw the two men enter the store as he was leaving. Anderson was standing just outside the store when Clark shot Muhammed; Anderson ran as soon as he heard the first shot. He went to the police station later that night and gave a statement to the authorities.

¶7. Fahd also knew Clark and Teaonta. Teaonta was a frequent customer at the store, and Clark had shopped there on occasion. Fahd identified Clark as the shooter at trial.

¶8. The most damning evidence in the case came from the video authorities retrieved from the store's seven surveillance cameras, which showed Clark and Teaonta entering the store and Clark shooting Muhammed. The video also captured Clark behind the counter grabbing Muhammed's cell phone and then attempting to open the cash register.

¶9. Clark and Teaonta were apprehended in Dallas, Texas, a week later. Both were indicted for capital murder, attempted murder, and conspiracy to commit armed robbery. Clark also was indicted as a habitual offender and charged with unlawful possession of a

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firearm by a previously convicted felon. The State elected not to proceed on the conspiracy charge.

¶10. The State called six witnesses during the guilt phase of trial, including Fahd and Anderson. And the State submitted the video evidence from the store's surveillance cameras. The defense called no witnesses during the guilt phase. The jury found Clark guilty of capital murder, attempted murder, and possession of a firearm by a convicted felon.

¶11. The State adopted and incorporated its evidence from the guilt phase to the sentencing phase and presented additional testimony from Fahd. Clark presented six witnesses during the sentencing phase. The jury sentenced Clark to death for killing Muhammed during the commission of a robbery.

¶12. The trial court entered a sentence of death by lethal injection for Clark's capital murder conviction. The trial court sentenced Clark to forty years' imprisonment for attempted murder and to ten years for possession of a firearm by a convicted felon as a habitual offender under Mississippi Code Section 99-19-81, with both sentences to run consecutively.

¶13. Clark appeals, raising the following issues:

I. Was the jury constituted and selected in violation of the United States and Mississippi constitutions and controlling Mississippi law?
II. Must Tony Clark's death sentence be vacated and replaced with a sentence of life in prison without the possibility of parole because the trial court reversibly erred when, after failing to properly instruct the jury on the consequences of verdicts either to impose a life sentence or to fail to agree on sentence, it denied Clark's
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motions to discharge the jury and impose a LWOP sentence for capital murder when the jury could not, in fact, agree on sentence?
III. Must the capital murder conviction be reversed because the trial court erroneously refused to instruct the jury on the lesser included offense of child homicide?
IV. Must the death sentence be vacated because all of the aggravating circumstances instructed on were unsupported by the evidence and/or applicable law and because the jury was not instructed on a mitigating circumstance for which there was evidence?
V. Did the trial court reversibly err in its evidentiary rulings at both phases of the trial?
VI. Was the indictment constitutionally and statutorily sufficient to charge capital murder and/or to support imposition of a death sentence in the event of a conviction?
VII. Is the death sentence in this matter constitutionally and statutorily disproportionate?
VIII. Does the cumulative effect of the errors in the trial court require reversal of all convictions and vacating all sentences imposed?

¶14. "The Court applies heightened scrutiny when reviewing capital murder convictions where the death penalty has been imposed." Dickerson v. State, 175 So.3d 8, 15 (Miss. 2015) (citing Fulgham v. State, 46 So.3d 315, 322 (Miss. 2010)).

I. Was the jury constituted and selected in violation of the United States and Mississippi constitutions and controlling Mississippi law?

A. The prosecution flouted the Fourteenth Amendment and discriminatorily "whitewashed" the jury that heard this case, in order to secure a jury that was overwhelmingly white and therefore more likely to be receptive to the racial "dog whistles" it used at trial to secure the verdicts of conviction and death it was seeking against Clark.

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¶15. During jury selection, the prosecution exercised seven of twelve peremptory strikes against black jurors and five against white jurors. The seated jury was comprised of eleven white jurors, one black juror, and two white alternate jurors.

¶16. After the prosecution had struck five black jurors, the defense raised a challenge under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), claiming the prosecution's strikes showed a pattern of discrimination based on race. The prosecution responded that it had exercised nine peremptory strikes; of those, five were black, and four were white. The prosecution claimed there was not a pattern of discrimination. The trial court found that the defense had made a prima facie showing under Batson and asked the prosecution to provide race-neutral reasons for the strikes.

¶17. At the start of the Batson hearing, the prosecution informed the trial court it had mistakenly used a peremptory strike against Prospective Juror Number 44 (Ragland), a white prospective juror. Without objection from the defense, the trial court allowed the prosecution to withdraw that strike. The trial court then heard arguments on the prospective black jurors struck by the prosecution preceding Prospective Juror Number 44 (Ragland), which reduced the total from five to four. These four were Prospective Juror Number 2 (Alexander), Prospective Juror Number 6 (Esco-Johnson), Prospective Juror Number 24 (Ammons), and Prospective Juror Number 28 (Majors). After hearing the prosecution's reasons for striking each and the defense's arguments against those reasons, the trial court found no purposeful discrimination.

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¶18. Jury selection continued. The prosecution struck three more black jurors, Prospective Juror Number 46 (Luckett), Prospective Juror Number 61 (Love), and Prospective Juror Number 81 (Day). Finding a prima facie showing, the trial court conducted another Batson hearing after which the court found no purposeful discrimination with the prosecution's peremptory strikes.

¶19. Relying on the Supreme Court's decision in Flowers v. Mississippi, 139 S.Ct. 2228, 204 L.Ed.2d 638 (2019), which reversed this Court's decision in Flowers v. State, 240 So.3d 1082 (Miss. 2017), Clark claims that the State treated black and white venire members differently overall. Clark alleges that the State targeted African-Americans for removal through...

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