Davis v. State, 92-DP-00542-SCT

• Decision Date: 08 June 1995
• Docket Number: No. 92-DP-00542-SCT,92-DP-00542-SCT
• Citation: 660 So.2d 1228
• Parties: Kenneth L. DAVIS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1228

660 So.2d 1228

Kenneth L. DAVIS v. STATE of Mississippi.

No. 92-DP-00542-SCT.

Supreme Court of Mississippi.

June 8, 1995.

Rehearing Denied Sept. 21, 1995.

Merrida Coxwell, Keyes Danks Coxwell & Leonard, William B. Kirksey, Kirksey & Associates, Andre de Gruy, Jackson, for appellant.

Michael C. Moore, Atty. Gen., Marvin L. White, Jr., Asst. Atty. Gen., Charlene R. Pierce, Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

DAN M. LEE, Presiding Justice, for the Court:

Kenneth Leon Davis was indicted on April 10, 1989, in the Circuit Court for the First Judicial District of Hinds County, Mississippi, for the capital murder of Bobby Joe Biggert. Davis' capital murder trial commenced on March 11, 1991, in the First Judicial District of Hinds County. After hearing all of the testimony and viewing the evidence, the jury convicted Davis of capital murder. Following a sentencing hearing, the jury sentenced Davis to death. Thereafter, the trial judge ordered that Davis be executed by lethal injection. Davis duly perfected his appeal to this Court and assigns the following as error:

I.

THE SEARCH OF THE APPELLANT'S RESIDENCE WAS IN VIOLATION OF

THE FOURTH AMENDMENT TO THE UNITED STATES

CONSTITUTION AND ARTICLE 3, Sec. 23

OF THE MISSISSIPPI CONSTITUTION.

II.

THE PROSECUTION'S DISCRIMINATORY USE OF PEREMPTORY

CHALLENGES VIOLATED THE FEDERAL AND STATE

CONSTITUTIONS AND STATE LAW.

III.

THE EIGHTH AMENDMENT'S REQUIREMENT OF CONSIDERATION OF

MITIGATING CIRCUMSTANCES WAS REPEATEDLY DISREGARDED.

A. In violation of Morgan v. Illinois venire members Gray and Ashcraft were allowed to remain on the panel despite their stated inability to consider mitigating circumstances.

B. The seating of juror Hill, whose personal tragedy and beliefs about capital punishment impaired her ability to follow the Eighth Amendment's requirement that mitigation be considered, violated the Sixth, Eighth, and Fourteenth Amendments and state law.

C. Venire member Chaffin was improperly struck for cause solely because she proposed to seriously weigh as a mitigating circumstance the fact that D. The trial court refused to instruct the sentencing jury that they were to presume that there were no aggravating circumstances until proved beyond a reasonable doubt and that aggravating circumstances must outweigh mitigating circumstances in order to impose a sentence of death.

Davis would never again be released from incarceration.

E. The prosecutor erroneously argued to the jury that it need not consider mitigation and could disregard sympathy in toto in its deliberations.

F. Conclusion.

IV.

SENTENCING INSTRUCTION S-1 IMPERMISSIBLY "PLACED A THUMB ON

DEATH'S SIDE OF THE SCALE" IN VIOLATION OF STATE LAW AND THE

EIGHTH AMENDMENT BY ALLOWING THE JURY TO WEIGH BOTH THE

"ROBBERY" AND "PECUNIARY GAIN" AGGRAVATORS.

V.

THE SUBMISSION OF THE "ROBBERY" AGGRAVATING CIRCUMSTANCE AT

THE SENTENCING PHASE OF THIS TRIAL VIOLATED KENNETH DAVIS'

RIGHTS UNDER THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE

CONSTITUTION OF THE UNITED STATES AND ARTICLE 3, Sec. 28

OF THE MISSISSIPPI CONSTITUTION OF 1890.

VI.

THE LEGISLATIVE MANDATE AS TO WHAT FACTORS JUSTIFY

IMPOSITION OF A DEATH SENTENCE WAS FLOUTED WHEN THE

PROSECUTION RELIED ON ARBITRARY FACTORS TO ADVOCATE DEATH,

VIOLATING KENNETH DAVIS' RIGHTS UNDER MISSISSIPPI LAW AND

THE EIGHTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES.

A. The prosecution argued Mr. Biggert's status as a police officer as a nonstatutory aggravating circumstance in violation of state law.

B. The prosecution used a prior conviction for escape as an aggravating factor.

C. The prosecution argued perceived lack of remorse as an aggravating circumstance.

D. The prosecution argued that the death sentence in this case would "send a message", thus divorcing the jury's decision from the actual blameworthiness of this defendant.

E. The prosecution vilified the defendant, comparing him to Adolf Hitler, in their attempts to divert the jury from the legislatively mandated factors for deciding punishment.

F. The prosecution relied on uncharged criminal conduct to support a death sentence in this case.

G. The prosecutor repeatedly and flagrantly ignored the trial court's instructions and admonitions concerning the cross-examination of Mr. Davis' mitigation witnesses.

H. The instructions to the jury and the wholesale "adoption" of the guilt phase testimony at the sentencing phase gave judicial approval to the prosecution's efforts to divert the jury's focus from the proper factors for decision.

I. Conclusion.

VII.

PROSECUTORIAL MISCONDUCT IN THE TRIAL OF THIS CASE VIOLATED

MR. DAVIS' RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE 3, Secs. 14,

26 AND 28 OF THE MISSISSIPPI CONSTITUTION OF 1890.

A. The prosecutor referred to Mr. Davis' exercise of his right not to testify.

B. The prosecutor made improper comments about defense counsel protecting their client's constitutional rights.

C. The prosecutor argued that the jury had a "duty" to find Davis guilty of capital murder.

D. The prosecutor improperly defined reasonable doubt and negated the presumption of innocence.

E. The prosecutor elicited improper testimony.

F. The prosecutor argued outside record. (omitted from Appellant's Table of Contents)

G. Conclusion.

VIII.

THE TRIAL COURT ERRED IN EXCUSING JURORS FOR CAUSE IN

VIOLATION OF MISSISSIPPI LAW AND THE SIXTH, EIGHTH

AND FOURTEENTH AMENDMENTS TO THE FEDERAL

CONSTITUTION.

IX.

THE TRIAL COURT ERRED IN ALLOWING THE DISTRICT ATTORNEY TO

QUESTION JURORS FIRST IN INDIVIDUAL SEQUESTERED VOIR DIRE

AND IN ALLOWING THE LIBERAL USE OF LEADING QUESTIONS BY THE

PROSECUTOR TO COACH RESPONSES FROM JURORS.

X.

KENNETH DAVIS' RIGHT TO A FAIR TRIAL WAS VIOLATED BY THE

ADMISSION OF UNRELIABLE AND IRRELEVANT EVIDENCE.

A. The trial court erred in admitting an unnecessary autopsy photograph.

B. The trial court erred in allowing the testimony of Wayne Oakes in that it distorted the quantity of evidence presented by the State, in effect lessening the State's burden of proof and violated M.R.E. 702 and state law.

XI.

THE TRIAL COURT'S REFUSAL TO DRAW THE VENIRE FROM BOTH

JUDICIAL DISTRICTS OF HINDS COUNTY DEPRIVED DAVIS

OF A FUNDAMENTALLY FAIR TRIAL.

XII.

THE AGGREGATE ERROR IN THIS CASE REQUIRES REVERSAL OF THE

CONVICTION AND DEATH SENTENCE.

On Thursday, February 23, 1989, Bobby Joe Biggert (hereinafter Biggert) was shot in the head after he walked in on a robbery in progress at Dr. Duck's Pawnshop located in Jackson, Mississippi, on the corner of Raymond Road and Siwell Road ¹. Unbeknownst to Biggert, Kenneth Leon Davis (hereinafter Davis) had previously entered Dr. Duck's and was in the process of robbing the pawnshop. According to Tammy Slaton, the pawnshop clerk, Davis walked into her store at approximately 4:00 p.m., displayed a gun and told her to "[give] him all the money." Slaton placed the money in a blue zippered bag that Davis gave her. Davis also took Slaton's purse which contained her house keys, car keys and keys to the pawnshop.

Next, Davis took Slaton to the front door of the pawnshop and wedged a rake in the front door in an attempt to prevent anyone from entering the building. Davis then took Slaton to a back room where he bound her hands with a piece of sheet. While Davis tied Slaton's hands, Biggert drove up.

Biggert entered the pawnshop and went directly to the room where Davis and Slaton were located. According to Slaton, Biggert asked Davis "what was going on." Davis pointed the gun towards Biggert's head and told him to "get over here." Biggert complied with Davis' command. At this point Slaton got out of the vat, untied her wrists and called the operator and requested emergency assistance. An ambulance crew and the Jackson Fire Department responded to the call and transported Biggert to Hinds General Hospital, where he, mortally wounded from a single .22 caliber gunshot to his forehead, died a few hours later.

Slaton put her head on her knees ². Slaton testified that she heard a gunshot and turned in time to see Biggert fall to the floor. After shooting Biggert, Davis began searching for Slaton's car keys. He found the keys and told Slaton to stay where she was. Within seconds, Davis fled the building and apparently drove off in Slaton's car.

On Friday, February 24, 1989, Mark Womack, a security guard for Forest Wood Estates ³, discovered Slaton's stolen maroon 1980 Chevrolet Camaro near Lake Dockery. Subsequently, Slaton identified the car found at Lake Dockery as the one stolen by Davis during the Dr. Duck's robbery. The Jackson Police Department (hereinafter JPD) and the Hinds County Sheriff's Department conducted a search of the surrounding area where Slaton's car was found. The two-day search of the area led to the discovery of the following significant items: one EIG .22 caliber pistol; one "survival" type knife; one denim jacket; one box of .22 caliber short cartridges; one knife scabbard; one faded red pair of insulated coveralls; one hood and one black baseball-style cap with red letters on the front.

After recovering the .22 caliber pistol, the JPD requested and received information from the Bureau of Alcohol, Tobacco and Firearms (hereinafter ATF) as to the ownership of the EIG .22 caliber pistol. The JPD interviewed Jewel McLaurin, the owner of the pistol, and it was determined that the pistol was stolen during a February 22, 1989, burglary of her home. At this point, the police investigation into Biggert's death focused upon the person responsible for the burglary of the McLaurin residence.

Investigators interviewed McLaurin's next-door neighbor, Billy Hudson, and learned that he and David Sikes cut firewood and sold it to Dr. Duck's Pawnshop. Subsequently, the police interviewed David Sikes and his wife Linda. Linda Sikes told investigating officers that she had seen her brother, Kenneth Leon Davis, in the vicinity of the McLaurin and...