Cox v. State

Decision Date17 July 2003
Docket NumberNo. 2001-KA-01427-SCT.,2001-KA-01427-SCT.
Citation849 So.2d 1257
PartiesRobert Lester COX v. STATE of Mississippi.
CourtMississippi Supreme Court

David G. Hill, David L. Minyard, Oxford, attorneys for appellant.

Office of the Attorney General by Deirdre McCrory, Smith Murphey, attorneys for appellee.

EN BANC.

ON MOTION FOR REHEARING

WALLER, Justice, for the Court.

¶ 1. The motion for rehearing is denied. The prior opinion is withdrawn, and this opinion is substituted therefor.

¶ 2. This appeal involves a tragic tale of adultery, jealousy and murder. Robert Lester Cox's wife Marijo ("Jo Jo") had been involved in a romantic relationship with Charles David Rowland for ten years when Rowland was killed. When Rowland, who was always punctual, did not appear for work at the United States Post Office in Charleston, Tallahatchie County, Mississippi, on April 19, 1999, his supervisor called Jo Jo. That the supervisor first called Jo Jo shows that her relationship with Rowland was well known in the community.

¶ 3. Jo Jo and a friend left their work at the Regional Mental Health Center and drove to Rowland's property out in the county. They found Rowland's body lying by the Subaru station wagon which he used for his mail route. Law enforcement officials and emergency medical personnel were called, with law enforcement arriving first and securing the area with yellow crime scene tape. The top of Rowland's head had been blown off. A sawed-off 12-gauge pump shotgun lay by Rowland's body.

¶ 4. Because of the wide knowledge of the affair, the sheriff immediately suspected that Cox had killed Rowland and commenced an extensive investigation. Approximately nine months after Rowland's death, Cox was indicted in the Circuit Court of the First Judicial District of Tallahatchie County, Mississippi, for murder. At the three-week-long trial, Cox advanced the theory that Rowland had committed suicide. Many witnesses testified, often in conflict with other witnesses' testimony. The jury rejected the suicide defense and convicted Cox, who was then sentenced to life imprisonment.

¶ 5. On appeal Cox raises five issues pertaining to the circumstantial evidence nature of the State's case against him, the sufficiency of the evidence, the denial of a motion for continuance, an evidentiary ruling which admitted hearsay testimony, and the State's remarks during closing argument. In an unusual, but authorized,1 move, the State has filed a cross-appeal, raising issues about a computer-animated re-enactment shown to the jury and the admission of Rowland's medical records. We affirm the conviction and sentence.

DISCUSSION

A. ISSUES RAISED BY COX ON DIRECT APPEAL
I. Whether the State, in a case wholly based upon circumstantial evidence, failed to meet its burden of proof when it failed to exclude the reasonable hypothesis that David Rowland committed suicide.

¶ 6. The State's case was based purely upon circumstantial evidence. There was no direct evidence of Cox's involvement in Rowland's death, and Cox did not make any statements to law enforcement officers. The State established motive by testimony that Jo Jo had a long-term affair with Rowland. It established opportunity by showing, through the testimony of several witnesses, that Cox had been "scouting" the area where Rowland lived for several days prior to the shooting, that Cox would have been able to enter and exit Rowland's property without being detected by cutting across the Stubblefield and Buntin properties, that the cigarette butt found on Rowland's property proved that Cox had "staked out" Rowland's cabin, and that Cox had time after the shooting to arrive at the Co-Op where he worked by 7:00 a.m. Finally, the State proved that the sawed-off shotgun which was used to kill Rowland belonged to Cox.

¶ 7. Cox contends that the guilty verdict could not rest on this circumstantial evidence because he presented the alternative theory of suicide which was a reasonable hypothesis of his innocence that could not be excluded. Cox presented evidence that Rowland had been depressed and was taking an antidepressant, that the eyewitnesses' identifications of Cox's truck were not positive, that the "hard contact" nature of the gunshot wound could not have occurred unless Rowland himself was holding the gun to his head, that Cox could not have killed Rowland and arrived at his work place within the time frame advanced by the State, that Cox had loaned the sawed-off shotgun to someone else prior to the shooting and had not had possession of the gun in years, and that no blood was ever found on Cox, his clothing, his shoes, or his vehicle. Cox further supports his argument by stating that the forensic pathologist who conducted Rowland's autopsy could not rule out suicide. Cox called three expert witnesses who testified that a bloodstain analysis, gunshot reconstruction and death scene reconstruction showed that Rowland committed suicide, that Rowland was at very high risk for committing suicide, and that one of the side effects of the antidepressant Rowland was taking could cause him to attempt suicide. Cox claims that his wife Jo Jo either planted the cigarette butt or emptied the contents of her ashtray on Rowland's property.

¶ 8. To sustain a conviction on circumstantial evidence, every other reasonable hypothesis of innocence must be excluded. "[D]irect evidence is unnecessary to support a conviction so long as sufficient circumstantial evidence exists to establish guilt beyond a reasonable doubt." Neal v. State, 805 So.2d 520, 526 (Miss. 2002) (quoting Underwood v. State, 708 So.2d 18, 35 (Miss.1998) (quoting Conner v. State, 632 So.2d 1239, 1252 (Miss.1993), overruled on other grounds, Weatherspoon v. State, 732 So.2d 158 (Miss.1999)

)). "Circumstantial evidence need not exclude every `possible doubt,' but only every other `reasonable' hypothesis of innocence." Neal, 805 So.2d at 526 (quoting Tolbert v. State, 407 So.2d 815, 820 (Miss.1981)). "Each case must be determined from the circumstances shown in the testimony and the facts must consistently point to but one conclusion-guilt." Neal, 805 So.2d at 526 (quoting Hilliard v. State, 749 So.2d 1015 (Miss.1999)).

¶ 9. In support of his argument Cox cites Steele v. State, 544 So.2d 802, 807-08 (Miss.1989), where we reversed a conviction based solely upon circumstantial evidence. Steele was caring for a small child who died from massive head injuries. The State's theory was that Steele physically abused the child, causing his death; Steele's theory was that the injuries were caused when the child fell out of the bed. No one but Steele was present at the time the injuries were sustained. Physical evidence did not support either theory. Five physicians testified that the child's injuries were inconsistent with Steele's theory. One physician testified that the injuries could not have been sustained by a fall from a bed. Another physician testified that, while Steele's theory was not probable, it was possible. We held that the State proved only that the child's injuries were probably not caused by a fall from a bed, and that the State failed to prove Steele's guilty because it did not exclude the possibility that the injuries were caused by a fall. The evidence was "legally insufficient to establish anything more than a probability of guilty and did not `invest mere circumstances with the force of truth.'" Id. at 809.

¶ 10. Here, the State established motive and opportunity. Cox made no attempt to impeach evidence of the existence of his wife's affair with Rowland or that he knew his wife was having an affair with Rowland. Other unimpeached testimony was that within a week or two of Rowland's death, Cox asked several people for the location of Rowland's property or the Stubblefield property, and Cox engaged in threatening behavior to Rowland when he stood outside Rowland's apartment2 with a gun. Cox's wife had also asked him for a divorce, which he had refused to give her.

¶ 11. Cox complains that the death scene was cleaned up before investigators could collect measurements of tire tracks, fingerprints and blood spatter patterns. This claim is addressed in further detail in Issue III below. However, even though this evidence was not available, Cox ignores ample physical evidence at the scene which belies a suicide theory. Before the shooting, Rowland had gotten up, eaten breakfast, dressed, fixed his lunch and gathered up garbage to take to town for disposal. Immediately preceding the shooting, Rowland was loading an ice chest in his car with a bottle of frozen water. While he was loading the ice chest, he set a cup of coffee on the roof of the car. The bag of garbage and the lunch bag were found between Rowland's body and the car. Crediting this evidence and all reasonable inferences most favorable to the State, we find that the jury could reasonably exclude the hypothesis that Rowland committed suicide. See, e.g., McDonald v. State, 454 So.2d 488, 493 (Miss.1984)

.

¶ 12. Some of the evidence presented was contradicted, but, of course, the jury assigns credibility. A Winston cigarette butt was found behind a bale of hay. It had been put out by someone stepping on it. If Cox stood behind the bale of hay, he would have a clear view of Rowland's cabin. Cox had bought a pack of Winstons at a convenience store between 4:00 and 4:30 a.m. that morning. Testing showed that Cox's DNA was on the cigarette. Jo Jo testified that she routinely emptied her car's ashtray on Rowland's property, but cigarettes put out on an ashtray are usually stubbed out, not stepped on. And even though Cox's DNA was on the cigarette, there was no evidence of how old the cigarette butt was.

¶ 13. A trail of clues portrayed a possible route used by Rowland's killer to carry out the murder. An impression in grass on neighboring property showed that a vehicle had been parked there. Dirt was found on a metal gate between the Rowland and the Buntin properties and on a barbed wire...

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