Cowart v. State

• Decision Date: 08 January 2015
• Docket Number: No. 2012–KA–02051–SCT.,2012–KA–02051–SCT.
• Citation: 178 So.3d 651
• Parties: Kendrick COWART a/k/a Rat v. STATE of Mississippi.
• Court: Mississippi Supreme Court

178 So.3d 651

Kendrick COWART a/k/a Rat

v.STATE of Mississippi.

No. 2012–KA–02051–SCT.

Supreme Court of Mississippi.

Jan. 8, 2015.

Rehearing Denied Dec. 10, 2015.

Dennis Charles Sweet, IV, Dennis C. Sweet, III, Terris Caton Harris, Jackson, attorneys for appellant.

Office of the Attorney General by Barbara Wakeland Byrd, attorney for appellee.

EN BANC.

KING, Justice, for the Court:

PART ONE

¶ 1. A jury convicted Kendrick Cowart of armed robbery and conspiracy, and acquitted him of murder and manslaughter. The trial court sentenced him to fifty-three years: forty-eight years for armed robbery and five years for conspiracy. Terrance London, Cowart's co-defendant who pled guilty to armed robbery, conspiracy, and manslaughter, received a sentence of either forty or forty-five years. Cowart appeals, arguing that this Court should reverse his convictions because his statement to police should have been suppressed, photographs of the victim should have been suppressed, the jury was improperly instructed, and the verdicts are against the weight and sufficiency of the evidence. He also argues that his sentence was improper, as he was punished for exercising his right to trial by jury, he was punished for acquitted conduct, the sentence constitutes an illegal sentence not reasonably less than his life, the trial court failed to consider all relevant factors, and the sentence is cruel and unusual. Cowart's arguments regarding his convictions are without merit. For the reasons discussed, Cowart's convictions are affirmed.

FACTS AND PROCEDURAL HISTORY

¶ 2. Late Friday, July 10, 2009, or early Saturday July 11, 2009, the Express Cash in Pike County, Mississippi, which was across the street from Sanderson Farms, was robbed. During the robbery, Peggy Sue Wilkinson Carter was beaten. She was discovered at about 1:00 a.m. on Saturday, July 11. After she was taken to the hospital by ambulance, the crime scene was processed by Greg Nester of the Mississippi Bureau of Investigation (MBI). He collected multiple items for DNA and fingerprint testing, photographed the bloody scene, and preserved steps with bloody footprints on them, among other things.

¶ 3. Carter succumbed to her injuries the next day, passing away on July 12, 2009. The cause of death, as determined by the forensic pathologist, was multiple blunt force injuries to the head

. The forensic pathologist determined that the manner of death was homicide. No suspects immediately came to light, but after approximately eight months, investigators honed in on Terrance London, Tecory Wade, and Kendrick Cowart as suspects. London and Wade both eventually confessed to the crime, although London did not confess until after he learned that police had identified his DNA at the scene of the crime. Both men implicated Cowart.

¶ 4. On March 19, 2011, the grand jury returned an indictment charging London and Cowart with depraved heart murder, armed robbery, and conspiracy to commit armed robbery. It charged Wade with accessory after the fact to murder and armed robbery. The State offered plea deals to both London and Wade. Wade pled guilty to accessory after the fact. Wade's plea deal gave him one year of jail time, one year of house arrest, and three years of probation. London pled guilty to manslaughter, armed robbery, and conspiracy to commit armed robbery, and he apparently received a sentence of forty or forty-five years: twenty-five or thirty years for armed robbery, five for conspiracy, and ten for manslaughter.¹ The State opted to try Cowart on the charges of murder, armed robbery, and conspiracy to commit armed robbery.

¶ 5. Prior to trial, Cowart filed a motion to suppress his videotaped statement, as well as his other statements, to the police, and a hearing was held on the motion.²

Cowart was interviewed by Detective Haygood, an investigator with the Pike County Sheriff's Department, three times, once before he was under arrest, then when he was under arrest on April 14, 2010, and again on April 20, 2010. The April 20, 2010, interview was videotaped. Detective Fairburn also interviewed Cowart, on April 16, 2010. The State introduced the waiver of rights forms signed by Cowart. The waiver of rights form from the April 16, 2010, interview contains a notation that Cowart had finished McComb High School.

¶ 6. The videotaped statement reveals that, midway through the interview, Cowart demanded to be taken back to his cell, clearly requested a lawyer, and handcuffed himself in preparation for being taken back to his cell. The trial court held, and the State conceded, that the portion of the videotaped statement after Cowart requested a lawyer was inadmissible; however, it held that the portion of Cowart's statement that occurred prior to his request for counsel was admissible. As to the initial waiver of rights, the videotape reveals that Detective Haygood began to read Cowart his Miranda³ rights, but that Cowart affirmatively stopped Detective Haygood from reading him his rights, indicating that he knew his rights and would sign the waiver. On the videotape, Cowart was coherent and appeared intelligent. Furthermore, at one point when Detective Haygood left the room, Cowart mumbled to himself that his mother told him not to talk to the police, indicating he knew and understood his rights. He then asserted his right to counsel midway through the interview.

¶ 7. Trial began on September 24, 2012, and continued through September 28, 2012. Prior to opening statements, the court addressed the issue of certain photographs of Carter. Cowart objected to three of the photographs, all of those photographs showing Carter in the hospital. Cowart argued that the State did not need three photographs to show blunt force trauma to the head

; it only needed one. Moreover, he objected to the photos having "all the tubes and hospital stuff on it and other things, which is prejudicial." The State argued that "one photograph is the right side of her head, one is the left. One is just a distant view, which shows a little more clear of her face. And that this is the top, her forehead. They're all different injuries, Your Honor. Those are the only photographs that we intend to introduce with this witness which shows the fatal injuries." The court found that under Rule 403, the photographs, even with the medical devices, were more probative than prejudicial in the case for depraved heart murder. However, the court limited the number of photographs of that nature to the three presented. The photographs were then admitted during the testimony of the responding police officer, Officer Moyo Brown.

¶ 8. At trial, several witnesses testified. Wade testified that London called him the day of the murder and asked Wade for a ride, and that he then picked up London and Cowart. He drove them to a restaurant called Granny's, near Sanderson Farms. Later, London called and asked that Wade come back and pick London and Cowart up from the same place, and Wade complied. Wade testified that he dropped them off at London's house, and then London called Wade again and asked him to get a hotel room, which he did. Wade drove London and Cowart to a hotel room at "the Camellia" and left them there. Later that night, Wade went to Cowart's girlfriend's house and played video games with Cowart. The next morning, London gave Wade $2,500 and said that he appreciated what Wade had done for him.

¶ 9. London also testified. London claimed that he and Cowart spent approximately four or five hours together on July 10, 2009, prior to the robbery. He asserted that, during that time, Cowart used London's cellular phone to call Cowart's girlfriend, Demetrius Thompson. He stated that Wade drove him and Cowart to Granny's and that they walked through the woods to Express Cash. He testified that when Carter went outside, Cowart went behind the door with a stick, while London played lookout and warned Cowart about Carter's return. When Carter re-entered the building, London testified that Cowart hit her in the face with the stick, and when she tried to run away, he pulled her inside and hit her multiple times. She fell to the ground; meanwhile, London was robbing the business. According to London, at one point, Carter attempted to get up again, and Cowart hit her a few more times. London then suggested they tie her up, and London attempted to tie her up with both white tape and orange wire. London further testified that Carter's watch fell to the floor when he was trying to tape her wrists together. He testified that they put all the evidence in a bag, and Wade came and picked them up. He then testified that all three of them went to the Camellia Hotel and split up the money. He claimed that he received a little more than $3,000, Wade received close to $3,000, and Cowart received the majority of the money. He claimed they then discarded the evidence in the woods. After they heard that Carter had died, they went to an old school and all three of them burned the evidence.

¶ 10. London admitted that he had previously been imprisoned on attempted burglary and conspiracy convictions, and that Wade was involved in the previous burglary attempt for which London was convicted. London admitted that he pled guilty to manslaughter, armed robbery, and conspiracy, and that he was sentenced to forty years. He also admitted that, before he confessed, he requested that the police charge him with manslaughter in exchange for his statement. Moreover, during cross-examination, Cowart asked London about his multiple inconsistent statements to police. He also cross-examined him regarding multiple inconsistencies between his testimony and that of Wade.

¶ 11. Thompson, Cowart's girlfriend and the mother of his child, testified. She noted that Cowart had worked at Sanderson Farms, and that he did not go to work on July 10, 2009. She testified that she went to work at 2:00 or 3:00 p.m. on Friday, July 10, 2009. She testified that, around noon that day, she saw Cowart with London on...