Clemons v. State, DP-83

Decision Date30 November 1988
Docket NumberNo. DP-83,DP-83
Citation535 So.2d 1354
PartiesChandler CLEMONS v. STATE of Mississippi.
CourtMississippi Supreme Court

Eugene A. Perrier and Travis T. Vance, Jr., Vicksburg, for appellant.

Mike Moore, Atty. Gen. by Marvin L. White, Jr., Asst. Atty. Gen., and Donald G. Barlow, Sp. Asst. Atty. Gen., Jackson, and Frank Campbell, Dist. Atty., Vicksburg, for appellee.

En Banc.

ROY NOBLE LEE, Chief Justice, for the Court:

Chandler Clemons was indicted May 12, 1987, in the Circuit Court of Warren County for the capital robbery/murder of Arthur Shorter, a pizza delivery man. The lower court granted Clemons' motion to change venue and it was changed to Harrison County, Mississippi, where the trial began on July 20, 1987. At the conclusion of the guilt phase, the jury returned a guilty verdict of capital murder and, after the sentencing hearing, on a bifurcated trial, the jury imposed the death penalty upon Clemons. The case now comes to this Court on appeal and Clemons has assigned six (6) errors in the trial below.

Facts

The principal witness in this case was Anthony Calvin, a 17-year-old youth, who was indicted along with appellant Chandler Clemons and Antonio Hay. Appellant, Clemons, testified in his own behalf. The prosecution entered into an agreement with Anthony Calvin when he expressed his willingness to testify for the State. The facts most favorable to the State follow.

On April 17, 1987, Anthony Calvin, while at the Big Star Grocery in Vicksburg with his mother, met a friend, Darwin Hunter. They attempted to contact several other friends in person and by telephone and, about 5 p.m., they picked up Clemons at his home and went to Antonio Hay's home, where they picked up Hay. When Hay joined them, he was carrying a sawed-off shotgun in his jacket and he put the gun under the front seat of the automobile.

Clemons, Hay and Calvin eventually wound up at the home of Gary Hubbard, where Clemons said he needed money and suggested he could get some money by robbing a pizza delivery man. Hay, Hubbard and Clemons discussed the plan and Hay made a call from a pay telephone to Domino's Pizza, ordered a pizza and told the shop to send change for fifty dollars ($50.00). He asked that the pizza be delivered to Lover's Lane, and was informed that the store didn't deliver that far away.

Eventually, Gary Hubbard and Darwin Hunter, who had been picked up by them, were dropped off at a party. Clemons then made a second call from a pay telephone at the Big Star Grocery to Domino's Pizza. He ordered the pizza to be delivered to Woodglen Apartments, # 56. Clemons, Hay, and Calvin went to the Woodglen Apartment complex and parked the car facing the driveway into the complex. Hay and Clemons got out of the car, Clemons taking the shotgun and Hay taking a stick. Calvin stayed in the car. They could see the pizza delivery vehicle approaching and, when it went up the hill, either Clemons or Hay called Calvin to drive their car down the hill. The pizza delivery vehicle went all the way up to the complex and started back down the hill past the car which Calvin had, by that time, apparently parked part of the way down the hill. Hay came out of the bushes and got in the car with Calvin. Clemons was at the bottom of the hill where he stopped the pizza delivery vehicle, got into it and returned up the drive where Hay and Calvin were waiting in the parked car. Clemons, with the gun in his hand, told Arthur Shorter, the pizza delivery man, to get out of the vehicle and told him to "take out everything you have" and to take all his money out of his pockets. At that time, either Clemons or Hay threw the keys to the pizza delivery vehicle into the bushes. Clemons ordered Shorter to lie down, which Shorter did. Clemons took the bag of money and some pizzas from the delivery vehicle. As he started on his way back to the car in which Calvin was sitting, Hay asked Clemons if Shorter had seen his face. Clemons replied in the affirmative. Hay then said, "Chandler, you got to blow his head off because he can identify you." Shorter begged Clemons not to shoot him. Clemons told Hay to pull their car farther down the hill, which he did. Clemons shot Shorter and got into the car with Hay and Calvin and they started down the hill. Calvin looked back and saw Shorter raise his head once.

The physical facts indicate that death for Shorter was not instantaneous; that after being shot, he dragged himself to his vehicle and attempted to get into it; and that, having no keys with which to start the vehicle, he began making his way toward the apartment complex. After going some distance, he collapsed and died sometime later.

Clemons, Hay and Calvin went back to the party where they had dropped off Hunter and Hubbard, ate some of the stolen pizza and divided the money from the robbery, which totaled four or five dollars. They left the party after a short while, and Calvin went home to sleep. About 2 a.m., Calvin woke up and learned that one Charles Bracey, a Warren County jailer, was at Calvin's home visiting Calvin's sister. Calvin described to Bracey the events surrounding the killing of Arthur Shorter.

On the night of the murder, Clemons disposed of the gun in a hole behind his house. Clemons then went to sleep and the next morning got up and went fishing. By that time, the sheriff had the account of the robbery and homicide and went to Clemons' home. On Clemons' return from fishing, he called the sheriff who went there and arrested him in the late afternoon of April 18. Clemons made a videotaped statement which was consistent with his trial testimony. He admitted being a member of the group, but he denied prior knowledge of the plan to rob the pizza delivery man and denied killing Shorter. After his statement, but before trial, Clemons told the sheriff where the gun was located.

Guilt Phase

THE VERDICT OF THE JURY AND SENTENCE OF DEATH IS VIOLATIVE OF APPELLANT'S RIGHTS AND IS AGAINST THE OVERWHELMING WEIGHT OF THE CREDIBLE EVIDENCE IN VIEW OF THE FACT THAT THE CO-INDICTEE, ANTHONY CALVIN, WAS THE ONLY WITNESS FOR THE STATE TESTIFYING TO THE ACTUAL CRIME CHARGED AND WAS GIVEN IMMUNITY FROM THE DEATH SENTENCE IN A LIMITED PLEA BARGAIN AGREEMENT WITH THE STATE OF MISSISSIPPI.

Clemons contends that the jury found him guilty, relying solely on the testimony of Anthony Calvin, a co-indictee, whose testimony was unbelievable, since Calvin entered into an agreement with the State. 1 He contends that the State's agreement with Calvin should be treated differently from plea bargain agreements because the agreement (1) "allowed Anthony Calvin to save his own life at the expense of the life of Chandler Clemons," and (2) " 'proved' to the jury that Clemons was guilty."

The memorandum of agreement between Calvin and the State was before the jury and defense counsel, on cross-examination, used the agreement to attack Calvin's credibility. In Culberson v. State, 379 So.2d 499 (Miss.1979), a death penalty case, a participant in the crime testified for the State. His testimony was the sole evidence that the defendant Culberson fired the fatal shot. This Court said:

The proof in this case shows that Pittman and Culberson conspired to commit robbery and participated in the attempted robbery of decedent with Culberson firing the fatal shot. It was established by other witnesses that there were two assailants. Pittman, one of the participants in the crime, turned state's evidence, and his testimony was the sole evidence that Culberson fired the fatal shot.

This case involves prosecutorial discretion which was necessary. Without the testimony of Pittman, there was no evidence to place Culberson at the scene of the crime and to show that he fired the fatal shot. We recognize the great disparity between the sentences of Pittman and Culberson, but if the state is not permitted to exercise prosecutorial discretion in order to obtain the testimony of a participant in a capital murder by permitting the one furnishing the testimony to plead guilty to a lesser crime, crimes such as the one in this case would not be solved and all participants would go free. When two or more persons commit a crime and cannot be identified except by one of the participants, the state must be allowed some discretion in securing the testimony of one of the participants in order to solve the crime.

To hold otherwise would be tantamount to holding: (1) the testimony of an accomplice in a capital murder case is sufficient to sustain a conviction in the guilty [sic] phase of the trial, but is not sufficient to sustain the death penalty in the sentencing phase. (2) If an accomplice who testifies for the state in a death penalty case is not given the death penalty, the trigger man may not be given the death penalty. Such result is not required by our statutes, the decisions of the United States Supreme Court, or our decisions.

We hold prosecutorial discretion was not abused because Pittman, who did not fire the fatal shot, was permitted to plead guilty to manslaughter, while Culberson, the one who fired the fatal shot, was given the death penalty. We hold the death penalty was not applied capriciously in this case. It is a proper sentence of the senseless and unprovoked murder committed by Culberson, who, after first knocking the victim down with a table leg, then shot the victim while he was lying on the ground begging, "Help me, help me."

379 So.2d at 510.

The testimony of a co-indictee or a co-conspirator, if not improbable, or materially self-contradictory, or thoroughly impeached, is sufficient to sustain a conviction. In Fairchild v. State, 459 So.2d 793 (Miss.1984), the Court, addressing the question, said:

To be sure, the evidence which produced the conviction from which Fairchild here appeals was provided by his co-indictee and accomplice, Timothy Lee Dickson. We have repeatedly recognized that a defendant may be lawfully convicted on...

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