Dover v. State, 45471
| Decision Date | 20 October 1969 |
| Docket Number | No. 45471,45471 |
| Citation | 227 So.2d 296 |
| Parties | Leslie DOVER v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Ney M. Gore, Jr., Marks, Walter E. Dreaden, Jr., Lambert, for appellant.
A. F. Summer, Atty. Gen., by Guy N. Rogers, Asst. Atty. Gen., and Velia A. Mayer, Sp. Asst. Atty. Gen., Jackson, for appellee.
Leslie (Blue) Dover was indicted by a grand jury of Quitman County for the murder of E. B. Mitchell. He was convicted of manslaughter and sentenced to serve ten years in the state penitentiary. He appeals and assigns as error the following:
1. The court erred in admitting the testimony as to the alleged confessions and admissions of the defendant.
2. The court erred in admitting the shirt allegedly worn by the decedent at the time he was shot.
3. The court erred in granting the State its instruction on manslaughter.
The following facts and circumstances are revealed by the record. On Thursday evening, June 1, 1967, E. B. Mitchell (the decedent), Morris Gregory, Jessie Doty and Junior Hall were at the home of Jessie Doty. All were drinking heavily at the time with the possible exception of Hall. The appellant came to Doty's home. Thereafter Mitchell joined the appellant in his truck which the appellant drove across the road to the house of Phillips Ellis.
Ellis testified that when he returned to his home at about 9:00 p.m., he discovered the appellant's pickup truck in his driveway, with Mitchell sitting in the right side. Though Ellis recognized the vehicle as that of the appellant, he was unable to identify the person on the driver's side. Ellis further testified that the truck backed out of his driveway and pulled across the road where it stopped and that he did not observe it thereafter.
The record reveals that Gregory, one of those present at Jessie Doty's home, was the same evening returned to his home in a drunken stupor by his companions. Mrs. Gregory testified that about 2:00 a.m. on Friday, June 2, the appellant woke her by knocking on the door and requesting to see her husband, but that she refused to wake him. She testified that appellant's truck was parked under the front porch light and that there was a 'blackheaded, dark complected man' therein whom she did not recognize. She also testified that when the appellant attempted to back out of her driveway, he was aided in this effort by an occupant of the truck who held a light for the driver; that she did not observe anything unusual about the person attempting to aid the driver of the truck. Thereafter, apparently unable to back out of the driveway, the truck ran across the front part of the yard and circled through the driveway of her son's home and departed.
Ruffin Fyfe, a witness for the State, related that he was acquained with both the appellant and Mitchell; that about four o'clock p.m. on Friday he saw the appellant in the office of Dr. House. He stated further that Mitchell was on the operating table in the doctor's office when the following conversation occurred between the appellant and the doctor.
'A. Doctor House asked him what happened, and he said, 'He got shot.' Doctor House said, 'Did you shoot him?' and he said, 'No, sir', said, 'He was already shot when I found-when the-when I found him', I think he said, said, 'He spent the night at my house last night."
Mitchell was transferred to the Coahoma County Hospital later that afternoon where he was examined by Dr. Julius Levy. Dr. Levy testified that Mitchell was conscious upon arrival and told him that he had been shot about ten o'clock the night before. Dr. Levy also testified that Mitchell expired the following morning as the result of internal bleeding from three bullet wounds.
Clint Turner, the Sheriff of Quitman County, testified that on the first Friday in June 1967, he received a call from Clarksdale that Mitchell had been shot. During the course of his investigation he tried without success to question Dr. House who was hard of hearing. Thereafter, he went to a beer joint outside the town of Sledge where he met two of the appellant's brothers. He advised them that he wanted to see the appellant. Upon being advised that the appellant lived in Tunica County, he told them what had happened, Upon arriving at the home of the appellant, the sheriff asked him if he owned a 22-caliber pistol. The appellant's reply was in the negative, whereupon the sheriff departed without arresting the appellant. The sheriff testified that he did warn the appellant of his constitutional rights prior to this questioning.
Later that night the sheriff determined that the appellant did own a 22-caliber pistol and on Saturday morning he learned that Mitchell had died. The sheriff returned to the appellant's home, but the appellant was not there. He then went to the home of Cordis Dover, a brother of the defendant, and told him to bring the appellant and his pistol to the office. On his way back to the county seat Sheriff Turner stopped at Jessie Doty's home, and finding blood on the floor and the door torn down, arrested Doty and took him to jail. However, no charges were ever pressed against him. After attending an autopsy upon the body of Mitchell, the sheriff returned to his office where he found the appellant with Cordis and Leon Dover, his brothers, and Mrs. Sybil Miller, his sister. Mrs. miller turned a 22-caliber pistol over to Sheriff Turner. Chester Quarles, an expert witness for the State, later testifed that the bullets removed from the body of mitchell had been fired by the same 22-caliber pistol which Mrs. Miller turned over to Sheriff Turner.
Thereafter, a sharply contested colloquy transpired between the Dover Brothers and their sister on the one hand, and the sheriff and later the sheriff and district attorney, on the other. The substance of the testimony on behalf of the appellant was that he was never warned of his constitutional rights by the sheriff nor was he warned by the district attorney prior to the appellant's making a confession that he killed Mitchell. To the contrary, the sheriff testified that he did not conduct an interrogation pending the arrival of the district attorney, whom he had called, and that the district attorney upon his arrival fully warned the appellant of his constitutional rights before the interrogation was conducted which resulted in appellant's confession that he had shot Mitchell.
Subsequent to the confession the appellant was placed in jail. The following Monday he called the sheriff to the jail and stated that he wanted to get a shirt, whereupon the sheriff asked, 'you mean Mitchell's shirt?' to which the appellant replied, 'I can get Mitchell's shirt and I want a shirt for myself.' Thereupon the appellant accompanied the sheriff to the home of Mrs. Miller, his sister, where he obtained a shirt from a laundry basket. He identified this shirt, which was bloodstained and punctured by bullets, to be that of Mitchell.
The testimony of Cordis and Leon Dover, brothers, W. E. Dover, father, and Mrs. Sybil Miller, the sister, was to the effect that appellant was below normal in intelligence, was unable to read and write, was unable to progress beyond the second grade in school. The brothers and sister further testified that appellant was fortyfive years of age and lived alone though they constantly checked upon and saw to his needs. It was admitted by them that appellant owned the truck, but that he had no driver's license.
Prior to trial the appellant was twice confined in Whitfield for observation. Dr. Stary, a member of the medical staff of that institution, testified that the appellant was referred to him for psychological testing; that the result of the intelligence test which included the Wechsler adult intelligence scale, a 'house-tree-person' drawing test, and the Rorschach test, the last two for determining personality, was that the appellant had an Intelligence Quotient of 60 and that he was diagnosed as having a moderate mental retardation or moderate mental defective range. It was further established that a figure between 90 and 110 would be considered as average intelligence; that the mean is 100 and that the defendant was 40 points below normal. The doctor also testified as a general truth that a person with an Intelligance Quotient of 60 and who is classified as a moderate mental retardation or moderate mental defective, does not exercise as good judgment under periods of stress as he does in periods not under stress.
Dr. Anderson, a staff psychiatrist at Whitfield,...
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Neal v. State
...of a confession has been put in issue, the State has the burden of proving voluntariness beyond a reasonable doubt. Dover v. State, 227 So.2d 296 (Miss.1969); Harvey v. State, 207 So.2d 108 (Miss.1968); Stevens v. State, 228 So.2d 888, 889 (Miss.1968). When an accused makes an in-custody in......
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