Day v. State, 90-KA-0108

• Decision Date: 06 November 1991
• Docket Number: No. 90-KA-0108,90-KA-0108
• Citation: 589 So.2d 637
• Parties: Calvin DAY v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 637

589 So.2d 637

Calvin DAY v. STATE of Mississippi.

No. 90-KA-0108.

Supreme Court of Mississippi.

Nov. 6, 1991.

Sam N. Fonda, Lott Franklin Fonda & Flanagan, Greenwood, for appellant.

Mike C. Moore, Atty. Gen., Wayne Snuggs, Asst. Atty. Gen., Jackson, for appellee.

En Banc.

BANKS, Justice, for the Court:

I

Here we are confronted with the question of whether it is error to exclude evidence of prior threats made by a homicide victim to the accused where the accused takes the position that the ultimate shooting was accidental but the prior threats have bearing on the issue of whether the result was manslaughter or murder. Because the difference between murder and manslaughter is measured by the perpetrator's state of mind it is essential that an accused be allowed to introduce probative evidence of all of the surrounding circumstances which may be fairly thought to have a bearing on his state of mind. Because Calvin Day was deprived of that opportunity, we reverse and remand.

II

The Leflore County Circuit Court indicted Calvin Day on October 12, 1989, for the murder of J.B. Johnson. On December 7, 1989, a jury returned a verdict of guilty, and the court sentenced Day to life imprisonment in the Mississippi State Penitentiary. There is little dispute about the facts.

About dusk on August 16, 1989, J.B. Johnson, Otha Watkins, Greg Littleton, Charles Bowie and Ronnie Tabor were riding around Greenwood in Otha Watkins' car. They intended to play basketball at a local park, but by the time they arrived there it had become too dark to play. After proceeding to a near-by convenience store, where they purchased a twelve-pack of beer, the group drove to the Broad Street Park.

While stopped on Broad Street, Calvin Day and his companion, Lincoln Austin, drove up in Watkins' truck. Day was a self-employed mechanic and had been repairing Watkins' truck. He stopped to explain to Watkins the repairs that he had made and what remained to be completed.

At some point during the discussion about the truck, Johnson began to taunt Day with statements such as, "you be screwing people ... out of their money all the time, I guess you are fixing to screw Otha out of some more now." All the witnesses confirmed that Day tried to walk away from Johnson, but every time Day would turn away Johnson would grab his arm and turn him around or jerk him back. Johnson said, "I am going to show you that I ain't no punk and you can't run over me." Further testimony revealed that Johnson "walked up on him [Day], told him, said 'we're going to find out right now who the best man is,' and so he pointed a finger in Calvin's face ... Calvin pushed his hand back out of his face again and then ... J.B. [Johnson] hit him, hit him beside his head."

This fight began when Johnson struck Day, and although Day returned the lick, testimony indicates that Johnson not only instigated the fight, but also passed the first lick. Each exchanged a blow before one of the men separated them. When Johnson picked up what Austin believed to be a brick, Austin led Day to the truck to leave. During the fight, Johnson cut Day's ear with what Day believed to be a knife, but which Johnson said was his key ring.

Bowie testified that, before leaving, Day told Johnson to "be there" when he returned. On cross examination he stated that he felt no immediate threat or danger from this remark and that he felt that the altercation was over. Watkins testified that he was quite close to Day during and after the altercation and that Day made no such remark.

After the men were separated, Johnson, Watkins, Tabor, Bowie and Littleton left the park and drove to Tabor's house which was located nearby. According to Day, he and Austin left the park intending to meet Watkins at his house. They proceeded to Austin's home to pick up another car which Day was going to drive, and Austin was going to follow him in the truck to Watkins' house. Watkins was going to drive the truck overnight to check it out. Because Watkins was not at home, however, they did not leave the truck and, upon leaving Watkins's home, Day and Austin were separated.

The car Day picked up at Austin's was a small gray car which belonged to another customer. Day testified that he had driven the car to Memphis earlier in the week to pick up some parts and supplies and had put a .22 caliber pistol in the glove compartment. He had not yet removed it from the car. While Johnson and his companions watched an unrelated altercation between Tabor's neighbor and the neighbor's girlfriend, Day pulled up to the intersection of Elm Street and Avenue H in front of Tabor's house in the gray car. What occurred next is in some dispute.

Watkins and Tabor testified that they could not see Johnson because he had gone around the corner of Elm and Avenue H toward Short Ash Alley. They stated that they did see Day get out of his car with a pistol in his hand, point down the street, and shoot one time.

Littleton, who had never met Day before the incident on Broad Street earlier, testified that he saw Johnson run toward, or in the direction of, Day at the intersection, but then turn and start down Avenue H. He, like Watkins and Tabor, saw Day fire the pistol once in the direction of Johnson.

Day testified that Johnson ran toward his car, and upon seeing Johnson coming toward him, he grabbed the gun and exited the car. Upon exiting the car he heard someone yell "he's got a gun." Day did not know whether it was Johnson or himself to whom the person was referring. He added that he intended to fire in the air to scare Johnson off, but the safety was on and while fumbling with the safety the gun went off, firing in the direction of where Johnson had been. Other witnesses testified to hearing Day say something about the safety before the gun went off. Day's single shot struck Johnson in the back and traveled through the aorta valve to the heart, killing Johnson almost immediately.

When Day drove around to the alley to see where Johnson had gone and found him lying face down in the alley, he returned to tell Johnson's companions. No weapon was found on Johnson, only a key ring with a fingernail file. Day went to the police station where he turned himself in with the gun.

The altercation on August 16, 1989, was only one of many such meetings between Day and Johnson. According to testimony Johnson had disliked Day from their first meeting which occurred soon after Day moved to Greenwood two or three years earlier. Johnson took every available opportunity to convey to Day his dislike of him. There had been numerous difficulties with and increasing threats from Johnson prior to the shooting. Although the defense attempted to introduce evidence through the testimony of Day and witnesses, the trial court sustained the State's objections to the evidence and excluded the testimony.

Watkins testified that just a few months prior to the shooting, Johnson chased Day with a "box-cutting" razor but his testimony was cut-off by the State's objection. The exclusion of the following proffered testimony serves as the basis for Day's appeal.

Day's proffered testimony included the following:

Q. All right, what did he say when he threatened you?

A. Well you know he would be talking about what he gonna do to me, said he was gonna cut me with this razor and so on and so on. Every time ...

Q. Well what ...

A. Every time I see him, you know, wherever I be at, in public or whatever, you know he come to me with the same thing, talking about what he gonna do to me.

Q. Had this gone on over a long period of time?

A. It being going on, like I said, about at least two or three years, but, see, I had been ... he had been disappearing and I didn't see him that much until I started ... 'til I started back running with Otha.

Q. All right.

A. And then he came back with the same situation every time I seen him.

Q. And that--was he threatening to cut you with a razor all the time?

A. Everytime I seen him he was talking about doing something to me.

Q. All right. Now had he made these threats recently; and I mean when I say recently, were they in close proximity to the day of the shooting on August the 16th?

A. Right, he did. He told a friend guy of mine, said "When I say [see] Calvin, I ain't gonna say nothing to him, just gonna walk up to him and cut him in the face with this razor."

Q. Who did he tell that to?

A. He told that to Otha Watkins, then Otha Watkins proceeded and came back and told me.

. . . . .

Q. All right, now, you say that razor; had he ... you ever seen that razor before?

A. Yes, he pulled it on me once before.

Q. All right, where did he pull it on you?

A. We was at a store down there by ... on Bowie Lane named Speedway. Me and him got into a little dis-scuffle ... a little scuffle; and after my uncle told us to stop, we just stopped, and J.B. walked off from me and I seen him take the razor out and he clicked the razor. And then he started coming toward me so I just took off running around the store.

. . . . .

Q. All right, now, did you know of your own mind whether or not he carried a razor with him ...

A. Yes.

Q. ... most of the time?

A. Yes.

Q. How did you know that?

A. Because he worked with Otha and they use it every day.

Henry Day testified to the following outside the hearing of the jury:

Q. Are you familiar with the ... with J.B. Johnson, or do you recall an incident at the One Stop on Highway 7 when J.B. Johnson pulled a razor on your nephew, Calvin?

A. Yeah. I remember that because I came up about the time.

Q. All right. Did he chase him around the store with the razor?

A. Yes, he did.

Q. All right. Had you heard later and generally was it street talk that he was going to cut Calvin's face with that razor?

A. Yes, I did.

Q. That was pretty much known on the streets ...

A. Yeah, that's ...

Q. ... among y'all?

A. Yeah.

Q. Was J.B. known to carry a razor?

A. Yeah, a box cutter type razor, yeah.

Finally, the court recalled Otha Watkins to...