Coleman v. State, No. 51372

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtROBERTSON; No, sir; PATTERSON; PATTERSON; LEE; PATTERSON, C. J., and WALKER; PATTERSON
Citation378 So.2d 640
Decision Date19 December 1979
Docket NumberNo. 51372
PartiesStanley Kelvin COLEMAN v. STATE of Mississippi.

Page 640

378 So.2d 640
Stanley Kelvin COLEMAN
v.
STATE of Mississippi.
No. 51372.
Supreme Court of Mississippi.
Dec. 19, 1979.

Page 641

Gray, Montague, Jackson, Pittman & Hammond, S. Robert Hammond, Jr., Hattiesburg, for appellant.

A. F. Summer, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

EN BANC.

ROBERTSON, Presiding Justice, for the Court:

Stanley Kelvin Coleman and James Sims, Jr. were jointly indicted by the grand jury of the Circuit Court of Forrest County for capital murder in the killing of Harry Burkett on October 6, 1977, while engaged in the commission of the crime of burglary or attempted burglary. After a separate trial, Coleman was found guilty of capital murder and after a separate hearing on the sentencing phase the jury unanimously found:

"(T)hat the aggravating circumstance of:

1) The capital murder was committed while the defendant was engaged in commission of burglary and/or attempted burglary

is sufficient to impose the death penalty and that there are insufficient mitigating circumstances to outweigh the aggravating circumstance."

The circumstances of the killing are basically undisputed. The state's case rested primarily on the testimony of James Sims, Jr., defendant's accomplice in the burglary and murder; Mrs. Harry Burkett, wife of the victim; and a written confession obtained from defendant Coleman.

At the conclusion of the state's case, the defendant moved for a directed verdict, and when the motion was overruled defendant rested his case.

Page 642

On the night of October 5, 1977, the night before the killing, 16-year-old Coleman, armed with a 410 gauge shotgun, and his friend, James Sims, Jr., went to the home of Harry Burkett with the intent to burglarize the home. When they found the Burketts at home, they returned to their own homes. The next night, October 6, 1977, Coleman and Sims returned to the Burkett home about 7:30 p. m. Finding the Burketts away, Coleman, carrying the 410 gauge shotgun, entered the Burkett home by removing a screen and opening a window. Coleman was unable to find a money box in the house, but Sims found what appeared to be a money box on the floor of Burkett's pickup truck parked nearby in the driveway.

Coleman broke a front vent glass window on the truck, but before they could enter the truck, the Burketts drove up. Coleman tried to hide in front of the truck, and Sims crawled underneath it. After parking their car behind the pickup truck, the Burketts went to the front door of their home and Mrs. Burkett went inside. Mr. Burkett walked back to his truck, noticed the broken window and went around the truck to investigate. Apparently seeing Sims's foot protruding from underneath the truck, Burkett started firing with his .38-caliber pistol. Sims crawled out from under the truck on the opposite side and ran into the woods.

After Burkett began shooting, Coleman shot once at him, and when Burkett shot again Coleman fired a second time.

When Mrs. Burkett heard the shots, she rushed out of the house and into the carport. She saw Coleman "down right in front of the right-hand light to the pickup truck in a squatting position" and recognized him, having known him since he was a child. Coleman, about 15 feet from her, aimed the shotgun at her face, and she testified that Coleman had every chance to kill her, but instead "jumped up and ran."

Harry Burkett walked slowly from the pickup truck, saying "they've killed me, sugar." Mrs. Burkett called the police, and when she came back out of the house Burkett had managed to get to the carport where he had fallen down. He kept telling his wife to get his billfold out of his back pocket and after she did this she asked him "how many were there", and he said "two." Mrs. Burkett continued:

"And I said were they black or white? He said black. I said who did it, Harry? And he said Man. And when he said Man, that was his last word the second time he repeated it twice. I said are you sure. He said Man and just, his voice just faded away, . . ."

"Man" was the nickname by which they knew Coleman.

There are ten assignments of error. These four have to do with the guilt phase of the trial:

I. The trial judge erred in refusing to recuse himself because he was related to the deceased.

IV. The appellant's confession was obtained as a result of an illegal arrest and without an intelligent waiver of his rights.

V. The jury selection process was discriminatory and unconstitutional.

VI. The jury was prejudiced by dining in the Forrest County jail complex and seeing the appellant in prison garb.

These will be dealt with rather briefly because the facts were undisputed as to the defendant firing the fatal shots.

I.

DID THE TRIAL JUDGE ERR IN REFUSING TO RECUSE HIMSELF?

On a pretrial hearing of a motion to suppress, the trial judge, Jack B. Weldy, reprimanded one of the defense attorneys for attempting to circumvent the court's sustaining objections to the evidence by asking the same or similar questions over again. Judge Weldy, in denying the motion to recuse himself, the hearing on which was held a day or so later outside the presence of the jury, admitted that he had misunderstood defense counsel's demeanor and attitude during the pretrial hearing, advised

Page 643

defense counsel that he was not opinionated toward either side, reaffirmed his complete confidence in both defense attorneys' capability and integrity, and further stated:

"(I)t is the purpose of this Court in each case, and it will be in this case, within the limit of the human capabilities of the Judge, to afford this Defendant a trial in which all of his Constitutional rights are protected. It is further the opinion of this Court that the present counsel have up to this time, and the Court is confident that the present counsel will, during the trial, afford this Defendant all that he's entitled to in a trial of this nature, and certainly the remarks of the Court were not in any way intended to reflect upon the integrity or the ability of defense counsel."

A more difficult issue raised by the appellant is that Judge Weldy should have recused himself because of his relationship to the deceased. This fact was not made known to defense counsel until the trial was over and when the appellant was heard on his motion for a new trial. At that time all parties, including the defendant, retired to the judge's chambers and Judge Weldy stated:

"For the record, let it be reflected that my middle initial is 'B' and it stands for Burkett. I am advised that there is a relationship between the deceased Harry Burkett and me, but it's beyond the third degree in civil law. I'm not sure whether the deceased was a second or third cousin of my father, but I thought the record should reflect that. The record should further reflect that I have never visited in the home of the deceased nor has he ever visited in my home; that I have never gone to any family reunion, if there has been one, and that I only knew the deceased casually. Anything further you want to put in here?

BY HON. S. ROBERT HAMMOND, JR.:

No, sir, Judge.

BY THE COURT:

Let me say this. I was aware, as all judges are, of the requirements of the Code of Judicial Conduct when parties or attorneys appear before the Court and there is a relationship within the third degree according to civil law. And I was aware of this prior to going into the trial, and because the relationship is so distant, certainly the fact that the last name of the deceased coincides with my middle name did not in any way affect the ruling of this Court during the course of the trial and did not in any way affect the conduct of the trial which I have previously determined to be a completely fair and impartial trial for the Defendant. Is there anything further you want to put in?

BY HON. S. ROBERT HAMMOND, JR.:

I would say on behalf of the Defendant we do appreciate the disclosure and I would like to say for the record we were not aware of the relationship before the trial and appreciate the Court's disclosure."

Section 165 of the Mississippi Constitution, repeated in almost identical language in Mississippi Code Annotated section 9-1-11 (1972), provides in part:

"No judge of any court shall preside on the trial of any cause, where the parties or either of them, shall be connected with him by affinity or consanguinity, or where he may be interested in the same, except by the consent of the judge and of the parties."

This constitutional provision was construed in Black v. State, 187 So.2d 815 (Miss.1966), wherein this Court said:

"A trial judge should avoid sitting in a case where the sole prosecuting witness is a Near relative, and who is interested in the outcome of the prosecution. For example: A judge should not sit in a case where defendant is being tried for the rape of a Close relative of the judge." 187 So.2d at 819 (Emphasis added).

In Black, the prosecuting witness was a first cousin of the trial judge. In the case at bar, Judge Weldy stated that he was "not sure whether the deceased was a second or third cousin of my father, . . .". This would make Judge Weldy at most a third or fourth cousin. Under any stretch

Page 644

of the imagination he would Not be a Near or Close relative.

The evidence was overwhelming, in fact it was undisputed, that Coleman fired the fatal shots. In his written confession, the defendant himself admitted that he fired the fatal shots. So the jury reached the only conclusion that it could reach on the guilt phase of the trial. Moreover, the record as a whole reflects no bias or prejudice whatsoever on the part of Judge Weldy. On the contrary, his statements and rulings reflect the utmost concern for the rights of the defendant.

In Garrett v. State, 187 Miss. 441, 193 So. 452 (1940), this Court said:

"Primarily, he is to judge his own qualification and fairness, and unless a record reflects an abuse of his powers to the extent of showing probable...

To continue reading

Request your trial
207 practice notes
  • Pulley v. Harris, No. 82-1095
    • United States
    • United States Supreme Court
    • January 23, 1984
    ...856-861 (1980); Smith v. Commonwealth, 634 S.W.2d 411, 413-414 (Ky.1982); State v. Sonnier, 380 So.2d 1, 5-9 (La.1979); Coleman v. State, 378 So.2d 640, 649-650 (Miss.1979); State v. McIlvoy, 629 S.W.2d 333, 341-342 (Mo.1982); Munn v. State, 658 P.2d 482, 487-488 (Okl.Cr.App.1983).7 What th......
  • Clemons v. Mississippi, No. 88-6873
    • United States
    • United States Supreme Court
    • March 28, 1990
    ...category to murders that are conscienceless or pitiless and unnecessarily torturous to the victim, id., at 1363 (citing Coleman v. State, 378 So.2d 640, 648 (1979)); and (3) the trial court gave the jury no less than seven instructions that "singly and collectively told the jury that regard......
  • Ballenger v. State, No. 93-DP-00081-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • September 21, 1995
    ...525 So.2d 764 (Miss.1987). Edwards v. State, 441 So.2d 84 (Miss.1983). Dycus v. State, 440 So.2d 246 (Miss.1983). Coleman v. State, 378 So.2d 640 DEATH CASES REVERSED AS TO PUNISHMENT AND REMANDED FOR A NEW TRIAL ON SENTENCING PHASE ONLY * Shell v. State, 554 So.2d 887 (Miss.1989), Shell v.......
  • Hill v. State, No. 53795
    • United States
    • United States State Supreme Court of Mississippi
    • May 4, 1983
    ...and unless such objection is made, any claimed error for such improper argument will not be considered on appeal. See Coleman v. State, 378 So.2d 640 (Miss.1979); Thomas v. State, 358 So.2d 1311 (Miss.1978); Griffin v. State, 292 So.2d 159 (Miss.1974); Myers v. State, 268 So.2d 353 (Miss.19......
  • Request a trial to view additional results
207 cases
  • Pulley v. Harris, No. 82-1095
    • United States
    • United States Supreme Court
    • January 23, 1984
    ...856-861 (1980); Smith v. Commonwealth, 634 S.W.2d 411, 413-414 (Ky.1982); State v. Sonnier, 380 So.2d 1, 5-9 (La.1979); Coleman v. State, 378 So.2d 640, 649-650 (Miss.1979); State v. McIlvoy, 629 S.W.2d 333, 341-342 (Mo.1982); Munn v. State, 658 P.2d 482, 487-488 (Okl.Cr.App.1983).7 What th......
  • Clemons v. Mississippi, No. 88-6873
    • United States
    • United States Supreme Court
    • March 28, 1990
    ...category to murders that are conscienceless or pitiless and unnecessarily torturous to the victim, id., at 1363 (citing Coleman v. State, 378 So.2d 640, 648 (1979)); and (3) the trial court gave the jury no less than seven instructions that "singly and collectively told the jury that regard......
  • Ballenger v. State, No. 93-DP-00081-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • September 21, 1995
    ...525 So.2d 764 (Miss.1987). Edwards v. State, 441 So.2d 84 (Miss.1983). Dycus v. State, 440 So.2d 246 (Miss.1983). Coleman v. State, 378 So.2d 640 DEATH CASES REVERSED AS TO PUNISHMENT AND REMANDED FOR A NEW TRIAL ON SENTENCING PHASE ONLY * Shell v. State, 554 So.2d 887 (Miss.1989), Shell v.......
  • Hill v. State, No. 53795
    • United States
    • United States State Supreme Court of Mississippi
    • May 4, 1983
    ...and unless such objection is made, any claimed error for such improper argument will not be considered on appeal. See Coleman v. State, 378 So.2d 640 (Miss.1979); Thomas v. State, 358 So.2d 1311 (Miss.1978); Griffin v. State, 292 So.2d 159 (Miss.1974); Myers v. State, 268 So.2d 353 (Miss.19......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT