Cole v. State, No. DP-58

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtWALKER; HAWKINS, P.J., and SULLIVAN; DAN M. LEE; ROBERTSON, PRATHER, and ANDERSON, JJ., concur by separate written opinion in which DAN M. LEE; HAWKINS; SULLIVAN; ROBERTSON; DAN M. LEE
Citation525 So.2d 365
Docket NumberNo. DP-58
Decision Date29 July 1987
PartiesWest COLE v. STATE of Mississippi.

Page 365

525 So.2d 365
West COLE
v.
STATE of Mississippi.
No. DP-58.
Supreme Court of Mississippi.
July 29, 1987.
Rehearing Denied June 3, 1988.

Page 366

Davey L. Tucker, Jackson, for appellant.

Edwin Lloyd Pittman, Atty. Gen. by Marvin L. White, Jr., Asst. Atty. Gen., and Donald G. Barlow, Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

WALKER, C.J., for the Court:

West Cole was charged by indictment with the capital murder of Nettie Mae Whitten. At a bifurcated trial in the Circuit Court of the Second Judicial District of Hinds County, he was convicted of capital murder and sentenced to death. From that conviction and sentence he appeals, assigning eighteen (18) errors. Finding no reversible error, we affirm the conviction and sentence.

Between 7:00 and 7:30 a.m. on December 22, 1983, Sonny Gallman and his son Joey Richardson drove in separate vehicles to the Midway Grocery in Hinds County to purchase gasoline. As Richardson pumped the gasoline, Gallman walked into the store, expecting to find the owner Nettie Mae Whitten, whom he knew well. He saw her lying on the floor between the cash register and the meat counter, bleeding from gashes on her head. Her hands were bloody and bruised; one finger was almost completely severed. Though conscious, she was incoherent. Gallman telephoned his employer and asked him to call an ambulance and the police. He then covered Nettie Mae Whitten with a blanket and wiped the blood from her face. He noticed blood splattered on the floor, walls and ceiling.

Gallman's son was outside the store pumping gasoline. He noticed a large green car in the parking lot, and he saw a black man approximately fifty (50) years old, gray around the temples, exit from the back part of the Midway Grocery building, which was Nettie Mae Whitten's residence. Richardson, who was seventeen, walked to the store entrance, where his father stopped him and told him to go home.

Page 367

Investigator William Turcotte of the Hinds County Sheriff's Department was the first officer on the scene. He found an eighteen-inch lead pipe outside the entrance to the residence part of the building.

Nettie Mae Whitten was hospitalized; five (5) days later she died. An autopsy revealed that the cause of death was multiple blunt trauma to the cranium.

Investigation revealed that several witnesses had seen an automobile resembling West Cole's at the Midway Grocery that morning. The police questioned West Cole, who gave the following account in a written confession. Cole went to the Midway Grocery on the morning of December 22, 1983, and purchased 75cents worth of luncheon meat. He returned to his car. While he was sitting in his car eating, a "white lady and a little girl" went into the store. After they left he went back into the store and reached for some money lying on top of the cash register. Nettie Mae Whitten grabbed Cole's hand and then picked up a knife in an effort to stop him. He shook the knife from her hand, picked up a length of pipe from the floor and struck the woman on the front of the head. She fell forward. He then struck her on the back of the head and left, dropping the pipe on the ground as he walked out the door.

West Cole was tried July 23-27, 1984, in the Circuit Court of the Second Judicial District of Hinds County. At the conclusion of the guilt phase, the jury returned a verdict of guilty of capital murder. The trial court then conducted the sentencing phase, after which the jury found that Cole should suffer the death penalty. Cole appeals, assigning eighteen (18) errors.

I. DID THE TRIAL COURT'S FAILURE TO GRANT A MISTRIAL OR A CONTINUANCE UPON THE PROSECUTION'S CALLING OF A SURPRISE WITNESS VIOLATE RULE 4.06 OF MISSISSIPPI CRIMINAL RULES OF CIRCUIT COURT PRACTICE AND DENY COLE DUE PROCESS OF LAW?

In his confession Cole mentioned "a white lady and a little girl" whom he had seen at the Midway Grocery the morning of the robbery and beating. Law enforcement officials immediately began a search for this potential witness, an effort which proved initially fruitless. During jury voir dire the prosecuting attorneys, unaware that police officers had located the witness, told defense counsel she would not be called.

When the prosecuting attorneys learned that the witness was available, they immediately notified defense counsel of 1) their intent to call her as a witness, and 2) the substance of her testimony. The following day, when the State called the witness, whose name was Tracy Pope, defense counsel objected, claiming surprise. The trial court then gave defense counsel the opportunity to interview the witness. After the interview, defense counsel renewed the objection but did not request a continuance. Overruling the objection, the trial court allowed the State to call Tracy Pope, who identified Cole as the man she had seen at Midway Grocery on December 22, 1983.

Cole argues on appeal that because Tracy Pope's name was not provided in response to a discovery request, the trial court erred in allowing her to testify. At the outset we note that the prosecuting attorneys diligently informed defense counsel of each development in the search for Tracy Pope. It is, nevertheless, apparent from the record that the police had located the witness two (2) days before trial began. Because the officer's knowledge is attributable to "the State," Fuselier v. State, 468 So.2d 45 (Miss.1985), the failure to inform defense counsel that Pope would testify constituted, technically, a discovery violation.

When faced with a discovery violation, technical or otherwise, the trial court should follow this procedure:

1) Upon defense objection, the trial court should give the defendant a reasonable opportunity to become familiar with the undisclosed evidence by interviewing the witness, inspecting the physical evidence, etc.

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2) If, after this opportunity for familiarization, the defendant believes he may be prejudiced by lack of opportunity to prepare to meet the evidence, he must request a continuance. Failure to do so constitutes a waiver of the issue.

3) If the defendant does request a continuance the State may choose to proceed with trial and forego using the undisclosed evidence. If the State is not willing to proceed without the evidence, the trial court must grant the requested continuance.

Box v. State, 437 So.2d 19 (Miss.1983) (Robertson, J., specially concurring). See also Griffin v. State, 504 So.2d 186 (Miss.1987); Watts v. State, 492 So.2d 1281, 1290 (Miss.1986); Hall v. State, 490 So.2d 858, 859 (Miss.1986); Gray and Nations v. State, 487 So.2d 1304, 1313-14 (Miss.1986); Cabello v. State, 471 So.2d 332, 343 (Miss.1985), cert. denied, 476 U.S. 1164, 106 S.Ct. 2291, 90 L.Ed.2d 732 (1986).

The trial court in the case at bar followed this procedure and afforded defense counsel an opportunity to interview the witness. After the interview, however, defense counsel made no request for a continuance. We will not put the trial court in error for failing to grant relief which was never requested. By failing to request a continuance, Cole waived any violation of Rule 4.06.

II. DID THE TRIAL COURT ERR IN PRECLUDING THE DEFENSE FROM ARGUING TO THE JURY THE VOLUNTARINESS OF COLE'S CONFESSION?

Cole moved to suppress his confession, alleging that it was not voluntarily given. After conducting a suppression hearing, the trial court admitted the confession into evidence. Cole argues on appeal that the trial court, after admitting the confession, improperly prohibited him from putting on evidence and argument as to its voluntariness. This argument is without merit.

Where the trial court has admitted a confession into evidence, it is still within the province of the jury to determine whether the statement is true and voluntary, and what weight and credibility should be accorded to it. Wilson v. State, 451 So.2d 724 (Miss.1984); Rhone v. State, 254 So.2d 750 (Miss.1971). Thus, once a confession has been admitted, "either party has a right to introduce before the jury the same evidence which was submitted [at the suppression hearing] as well as any other evidence relative to the weight and credibility of the confession." Rhone, 254 So.2d at 754.

The record in the case at bar simply does not support Cole's claim that he was prevented from arguing voluntariness to the jury. We note the following areas explored by defense counsel in the presence of the jury: 1) whether Cole was tired when he confessed, 2) whether, at the time he confessed, Cole had been at the sheriff's office all day, 3) whether Cole was separated from his family during questioning, and 4) whether Cole had only a third grade education.

During cross-examination of one of the officers present when Cole confessed, defense counsel questioned the officer extensively about the circumstances of the interrogation, prompting the following exchange:

BY THE DISTRICT ATTORNEY:

Your Honor, this statement has been introduced; it has been ruled admissible; and we object to any further questioning in this regard.

BY THE COURT:

Let's move along, Mr. Tucker.

We note that the trial court did not sustain the objection, but instead told defense counsel to "move along," an instruction which we deem eminently appropriate, since defense counsel had consumed nine (9) pages of the record questioning the officer about the exact time the confession was given. Moreover, the record reveals that after the objection defense counsel continued to cross-examine the officer about voluntariness, asking 1) whether Cole was threatened during questioning, and 2) whether Cole asked for his high

Page 369

blood pressure medicine during questioning.

Cole also argues on appeal that the trial court prevented him from challenging the confession during closing argument. The record reveals, however, that the trial court simply told defense counsel not to argue outside the record.

Having reviewed the record thoroughly, we are of the opinion that Cole was...

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220 practice notes
  • Ballenger v. State, No. 93-DP-00081-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • September 21, 1995
    ...moved to the end of the selection list. Since no objection was made this issue was not properly preserved for appeal. Cole v. State, 525 So.2d 365, 369 (Miss.1987); Irving v. State, 498 So.2d 305 (Miss.1986); Cannaday v. State, 455 So.2d 713, 718-19 IV. THE DENIAL OF EVIDENCE PRESENTED TO T......
  • Flowers v. State, NO. 2010–DP–01348–SCT
    • United States
    • United States State Supreme Court of Mississippi
    • November 2, 2017
    ...for new sentencing hearing. Woodward v. State , 533 So.2d 418 (Miss. 1988). Nixon v. State , 533 So.2d 1078 (Miss. 1987). Cole v. State , 525 So.2d 365 (Miss. 1987). Lockett v. State , 517 So.2d 1346 (Miss. 1987).240 So.3d 1182 Lockett v. State , 517 So.2d 1317 (Miss. 1987). Faraga v. State......
  • Woodward v. State, No. DP-81
    • United States
    • United States State Supreme Court of Mississippi
    • October 5, 1988
    ...State, 517 So.2d 1317 (Miss.1987) Lockett v. State, 517 So.2d 1346 (Miss.1987) Faraga v. State, 514 So.2d 295 (Miss.1987) Cole v. State, 525 So.2d 365 Jones v. State, 517 So.2d 1295 (Miss.1987) Wiley v. State, 484 So.2d 339 (Miss.1986) Johnson v. State, 477 So.2d 196 (Miss.1985) Gray v. Sta......
  • Russell v. State, No. 93-DP-00418-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • December 7, 1995
    ...the defense failed to object to any of these statements at trial. Chase v. State, 645 So.2d 829, 835 (Miss.1994) (citing Cole v. State, 525 So.2d 365, 369 (Miss.1987), cert. denied, 488 U.S. 934, 109 S.Ct. 330, 102 L.Ed.2d 348 (1988)) (If no contemporaneous objection is made, the error, if ......
  • Request a trial to view additional results
220 cases
  • Ballenger v. State, No. 93-DP-00081-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • September 21, 1995
    ...moved to the end of the selection list. Since no objection was made this issue was not properly preserved for appeal. Cole v. State, 525 So.2d 365, 369 (Miss.1987); Irving v. State, 498 So.2d 305 (Miss.1986); Cannaday v. State, 455 So.2d 713, 718-19 IV. THE DENIAL OF EVIDENCE PRESENTED TO T......
  • Flowers v. State, NO. 2010–DP–01348–SCT
    • United States
    • United States State Supreme Court of Mississippi
    • November 2, 2017
    ...for new sentencing hearing. Woodward v. State , 533 So.2d 418 (Miss. 1988). Nixon v. State , 533 So.2d 1078 (Miss. 1987). Cole v. State , 525 So.2d 365 (Miss. 1987). Lockett v. State , 517 So.2d 1346 (Miss. 1987).240 So.3d 1182 Lockett v. State , 517 So.2d 1317 (Miss. 1987). Faraga v. State......
  • Woodward v. State, No. DP-81
    • United States
    • United States State Supreme Court of Mississippi
    • October 5, 1988
    ...State, 517 So.2d 1317 (Miss.1987) Lockett v. State, 517 So.2d 1346 (Miss.1987) Faraga v. State, 514 So.2d 295 (Miss.1987) Cole v. State, 525 So.2d 365 Jones v. State, 517 So.2d 1295 (Miss.1987) Wiley v. State, 484 So.2d 339 (Miss.1986) Johnson v. State, 477 So.2d 196 (Miss.1985) Gray v. Sta......
  • Russell v. State, No. 93-DP-00418-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • December 7, 1995
    ...the defense failed to object to any of these statements at trial. Chase v. State, 645 So.2d 829, 835 (Miss.1994) (citing Cole v. State, 525 So.2d 365, 369 (Miss.1987), cert. denied, 488 U.S. 934, 109 S.Ct. 330, 102 L.Ed.2d 348 (1988)) (If no contemporaneous objection is made, the error, if ......
  • Request a trial to view additional results

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