Daumer v. State, 51735

• Decision Date: 05 March 1980
• Docket Number: No. 51735,51735
• Citation: 381 So.2d 1014
• Parties: Raymond Arthur DAUMER, Jr. and Linda J. Tuggle (Daumer) v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1014

381 So.2d 1014

Raymond Arthur DAUMER, Jr. and Linda J. Tuggle (Daumer) v. STATE of Mississippi.

No. 51735.

Supreme Court of Mississippi.

March 5, 1980.

Rehearing Denied April 16, 1980.

Prewitt & Prewitt, John W. Prewitt, Sr., Vicksburg, for appellants.

A. F. Summer, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, BROOM and COFER, JJ.

BROOM, Justice, for the Court:

Murder conviction of Raymond Arthur Daumer, Jr. and Linda L. Tuggle (Daumer) occurred at their joint trial in the Circuit Court of Copiah County. Indictments charging them with the murder of Tuggle's son Kenneth "Bunky" Tuggle were returned by the Warren County Grand Jury, but upon the defendants' motion, venue was changed to Copiah County Circuit Court. Following the jury's verdict of guilty, the trial judge sentenced the defendants (Daumer and Tuggle) to life imprisonment in the custody of the Mississippi Department of Corrections. They appeal and urge reversal of their conviction on alleged (1) procedural errors, (2) faulty jury instructions, and (3) insufficient evidence. We affirm as to Daumer and reverse as to Tuggle.

Tuggle is the mother of Kenneth Tuggle, also known as "Bunky", who died January 13, 1978 after having been taken by Daumer and Tuggle to a Vicksburg hospital on December 24, 1977. From there the little boy (described as being very intelligent and handsome) was transferred to Baptist Hospital in Jackson, where, after brain surgery, he died. Daumer and Tuggle had lived together for some time but did not marry each other until after the child's death.

According to the evidence, Daumer and Tuggle and the child "Bunky" occupied a residence in Vicksburg. On Christmas Eve, 1977, several people were there and "Bunky" appeared to be active and healthy. An incident occurred in the den about whether "Bunky" had eaten some candy contrary to instructions. From the den, Daumer and "Bunky" had gone into "Bunky's" bedroom and Daumer was heard to say twice, "I'm not raising no liar in my house. Have you been eating candy?" Tuggle (having gone into the bedroom after Daumer and "Bunky") was overheard saying, "Ray, why don't you leave 'Bunky' alone? It's Christmas Eve." Within a short time Tuggle was heard yelling that something was wrong with "Bunky". Those present entered Tuggle's bedroom where they found "Bunky" unconscious his ear was "real red." At the two hospitals, numerous bruises, bite marks from a "large mouth" on his right shoulder, and other physical evidence of numerous injuries was found upon "Bunky's" body. The injuries included a partly healed broken collar bone. Dr. Scanlon (a pathologist), one of several physicians who testified, said that the little boy had been hit from the right side going down, which he related to the occasion when Tuggle and Daumer were in the bedroom with "Bunky". Dr. Scanlon stated the cause of death was a head injury which caused a "hematoma on the right side of the brain . . . so large that it depressed the brain so greatly that the brain ceased to function and he died . . . he did not get enough oxygen." Theory of the defense was that "Bunky" was an easily bruised child who had many times accidentally fallen (out of bed, etc.) and thereby received his fatal injuries.

First argument made by the defendants is that the court erred in overruling their motion for a second change of venue. They contend that after venue was moved from Warren County to Copiah County, venue should have been changed again because the people of Copiah County had become prejudiced by excessive publicity. At the hearing of the motion for the second change of venue, evidence was taken and exhibits were introduced concerning the media giving out publicity concerning the homicide in question. We have for many years followed the rule that whether venue will be changed is vested largely in the discretion of the trial judge. From the testimony in the record, we are unable to say that the trial judge erred in finding that the defendants could receive a fair trial in Copiah County. Contained in the record is the voir dire examination of prospective jurors which does not establish error. Juror process was served upon sixty-six veniremen from which twenty-five were excused by the court for various reasons. Forty-one of those summoned were found qualified and capable of giving a fair trial to the appellants. Upon the record, we cannot say that the trial judge abused his discretion by his failure to change venue the second time.

Second argument advanced by the defendants is that the trial judge erred in overruling their motion objecting to participation by the district attorney of the Ninth Judicial District (Warren County) in the trial of the case. It is to be noted that the joint indictment was returned against the two defendants in Warren County within the Ninth Judicial District. Venue was changed on their motion to Copiah County within the Fourteenth Judicial District, which has a different district attorney from the one who serves in Warren County. It is said that the district attorney of the Ninth Judicial District was without authority to represent the state in the Fourteenth Judicial District. The argument is made under Mississippi Code Annotated § 25-31-11 (1972), which states:

It shall be the duty of the district attorney to appear in the circuit courts and prosecute for the state in his district all criminal prosecutions . . . . (Emphasis added).

State ex rel. Patterson v. Warren, 254 Miss. 293, 180 So.2d 293 (1965) and Capital Stages v. State, 157 Miss. 576, 128 So. 759 (1930) are relied upon here as authority for the argument. We think the most pertinent decisional law is State ex rel. Cowan v. State Highway Commission, 195 Miss. 657, 13 So.2d 614 (1943), where we said:

It is not perceived why one having authority to sue has not the right to resort to the venue where the suit must be brought. He instituted this action in Hancock County, within his district, and it was transferred to Hinds County over his protest on motion of the Commission.

Section 25-31-11, supra, and Mississippi Code Annotated § 19-23-11 (1972) relate to the duties of prosecutors: district attorneys and county attorneys. These statutes charge the prosecutors with the duty of trying cases involving criminal offenses committed within their jurisdictions. We think it is logical to hold, and we now hold, that the duty of prosecutors requires them to discharge their duties in prosecuting criminal offenses until the prosecution terminates. Mere change of venue simply cannot reasonably terminate the duty of a prosecutor. Therefore, when the indictment was returned by the Warren County Grand Jury and venue was changed to Copiah County upon the appellants' own motion, there was nothing amiss in the prosecutor (doing statutory duties) completing his prosecutorial work. The record does not show any prejudice or disadvantage to either of the defendants on account of the district attorney of the Ninth Judicial District performing his duties in a judicial district encompassing Copiah County. As noted by the trial judge, from a practical standpoint the officers in question should have prosecuted this case, especially after having investigated the matter and presented it to the Warren County Grand Jury.

Thirdly, argument is made that the trial court erred in overruling the defendants' objection to certain remarks made by the prosecutor during closing argument. In his closing argument the prosecutor stated to the jurors, "I tell you, the hand of Linda Tuggle, Linda Tuggle Daumer, it drips the blood of Ken Tuggle". Objection was promptly made by defense counsel to the remark and the trial judge was asked to instruct the jury to disregard the remark. When the objection was overruled, a mistrial was requested which was also overruled and in their brief, the appellants say "The statement was very prejudicial and assumed facts that were not in...