Clark v. State, No. 56605

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: Before WALKER; SULLIVAN; WALKER
• Citation: 503 So.2d 277
• Docket Number: No. 56605
• Decision Date: 25 February 1987
• Parties: Larry Wayne CLARK v. STATE of Mississippi.

Page 277

503 So.2d 277 Larry Wayne CLARK
v.
STATE of Mississippi. No. 56605. Supreme Court of Mississippi. Feb. 25, 1987.

Charles W. Easterling, Marks, for appellant.

Edwin Lloyd Pittman, Atty. Gen. by Deirdre D. McCrory, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before WALKER, C.J., and PRATHER and SULLIVAN, JJ.

SULLIVAN, Justice, for the Court:

In the Circuit Court of Quitman County, Mississippi, Larry Wayne Clark was convicted of the murder of John D. Hunt and sentenced to a term of life imprisonment in the custody of the Mississippi Department of Corrections. He challenges his conviction upon three grounds:

I. Refusal to give the circumstantial evidence requirements in instructions S-1 and C-15;

II. Granting the "flight instruction"; and

III. Overruling his motion for a new trial.

FACTS

John D. Hunt died from a knife wound in the stomach received on May 7, 1983, at the Chaney Hollis Cafe in Quitman County, Mississippi.

Page 278

Larry Wayne Clark and his brother, Patrick, had gone to the cafe to buy hamburgers. While waiting for the hamburgers to cook a fight broke out in another room between John Hunt and Terry Harris. The Clark brothers went into that room to see what was going on.

According to witness Annie Mae Hunt, aunt of the victim, her other nephew Sammy Hunt separated the two fighters and was engaged in keeping Harris away from John Hunt. John Hunt was not hurt in the fight. Several people were milling around arguing and talking when suddenly Larry Wayne Clark made a stabbing motion at John Hunt, who grabbed his stomach and fell back into a chair. Clark then left the cafe and Annie Mae Hunt saw a knife on the floor where Clark had been standing. She wrapped the knife in a towel and gave it to Town Marshal Leo Parrish, who gave it to Quitman County Sheriff Billy Cole.

Ronnie Weir testified that he had worked that day with Larry Wayne Clark and had seen Clark sharpening a knife just like that one found at the cafe.

Ruthie Mae McNeal confirmed that Harris and Hunt had fought. She then saw Clark and Hunt standing face to face after the fight and when she noticed Clark leaning over Hunt, she pulled Clark back away from him. Clark immediately left the cafe. McNeal did not see a knife or anyone cut or stab Hunt.

Patrick Clark, Larry Wayne's brother, said that he and Larry Wayne went to see what was going on when the fight broke out. He said Larry never approached the people who were fighting. Patrick never saw Larry with a knife nor did he see him stab anyone. They left the cafe because their hamburgers were ready and for no other reason. That night Larry Wayne Clark left the area and Patrick did not see him again until January of 1985, when he was returned to Mississippi after being arrested in Florida.

Defense counsel failed in his effort to suppress the testimony of Lake Wales, Florida, City Detective Melvin Waldron. Waldron testified that on May 4, 1984, he arrested Clark as a burglary suspect and gave him a verbal Miranda warning. Clark subsequently signed a written standardized Miranda form.

As a part of his normal routine Waldron sent Clark's fingerprints through the National Crime Information Center and shortly thereafter was notified that Mississippi had warrants on Clark for homicide. Waldron informed Clark about the warrants and as Waldron was turning to leave the room Clark said "That him and two other guys killed a man in a bar fight in Mississippi, and he left the State." Wadlron admitted that Clark did not say who he was supposed to have killed, where in Mississippi the killing occurred or when the killing supposedly took place. Detective Waldron made no effort to question Clark about the homicide in Mississippi.

I.

WAS IT ERROR TO REFUSE TO GIVE CIRCUMSTANTIAL EVIDENCE

INSTRUCTIONS?

Clark insists that the language "... to the exclusion of every other reasonable hypothesis consistent with innocence, then you shall find the defendant not guilty" should have been included in the burden of proof instructions because this was purely a circumstantial evidence case.

We have reversed cases in which (1) the State's proof consisted entirely of circumstantial evidence; and (2) the trial court failed to grant a circumstantial evidence instruction. Henderson v. State, 453 So.2d 708, 710 (Miss.1984); Wooldridge v. State, 274 So.2d 131, 133 (Miss.1973) (no direct evidence of any kind linking defendant with the crime); Gilleylen v. State, 255 So.2d 661 (Miss.1971) (circumstantial evidence instruction required where "conviction rests on circumstances and not direct proof"); Kendall v. State, 217 So.2d 35, 36 (Miss.1968) (case "entirely one of circumstantial evidence").

However we will not reverse a conviction based upon both direct and circumstantial evidence. Billiot v. State, 454 So.2d 445, 461-62 (Miss.1984); Bullock v.

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State, 391 So.2d 601, 606 (Miss.1980). The determination to be made here is was the testimony of Annie Mae Hunt direct evidence. She did not see the knife in Clark's hand and cannot say that Clark stabbed Hunt. But when asked to demonstrate what had happened Annie Mae Clark did say

All right, so about that time, me and Ruby was talking. Okay, and I turned, and as I turned, he grabbed him around and hit him, and when he hit him, John D. did like...