Dycus v. State

Decision Date15 April 2004
Docket NumberNo. 1998-DP-01094-SCT.,1998-DP-01094-SCT.
Citation875 So.2d 140
PartiesKelvin DYCUS a/k/a Kevin Dycus v. STATE of Mississippi.
CourtMississippi Supreme Court

Raymond Wong, Cleveland, Robert McDuff, Jackson, attorneys for appellant.

Office of the Attorney General by Judy T. Martin, Marvin L. White, Jr., attorneys for appellee.

EN BANC.

GRAVES, Justice, for the Court.

¶ 1. Kelvin Dycus appeals from the judgment of the Bolivar County Circuit Court convicting him of capital murder and auto theft and sentencing him to death and five years in the custody of the Mississippi Department of Corrections, respectively. Finding no reversible error, we affirm the convictions and sentences.

FACTS

¶ 2. On September 24, 1996, Kelvin and Jason Dycus moved across the lawn of an old house in Cleveland, Mississippi. They had pantyhose yanked down over their faces and rubber gloves, the kind doctors use, covering their hands. One of the men carried a black .25 caliber automatic pistol, while the other clutched a length of rope. They knocked on the front door of 403 North Bayou, where seventy-six-year-old Mary Pittman lived. She'd been there forty years, long after her husband had passed and all her children moved away. She was tired because she had just got out of the hospital a week earlier after a bout with pneumonia. Her right arm still didn't work so well, because they had to take out most of the muscles in it after an infection from the cancer she'd finally beaten a few years before.

¶ 3. When she heard the knocks, Mrs. Pittman opened the door without hesitation, just as she would any other time in the decades she had lived on that street. The black automatic smashed into her face when the door opened, and the two men rushed in the house.

¶ 4. She staggered up against the wall, and the men demanded to know where her car keys were. When she did not answer, they cracked the pistol into her head again, and she fell to the ground. The two men kept hitting her, screaming "where are the keys?" Mary Pittman would not tell them. One of the men rolled her onto her stomach and bound her arms up with the length of rope, tying them up behind her back.

¶ 5. The two men drug her through the house on her knees. Mrs. Pittman continued to struggle. One of the men picked up a lamp and cracked it down over Mrs. Pittman's head. He did it again and again until the lamp shattered into pieces, and then he hit her with the broken base of the lamp.

¶ 6. The men threw her face down on her own bed, arms tied behind her back, still conscious. "I know who you are," she told them, "y'all are the boys from across the street."

¶ 7. Kelvin and Jason Dycus, aged seventeen and fifteen respectively pressed Mrs. Pittman face down against the bed and laid a pillow across the back of it, pressed the gun up tight against the pillow, and put a single bullet through the back of her head. They fired a second shot right through her right arm.

¶ 8. They rifled through her purse, turning up twenty bucks in cash, eleven dollars in food stamps, and the keys to Mrs. Pittman's 1986 Chevrolet Caprice. Kelvin Dycus walked through the blood of Mary Pittman as he and his brother headed for the front door, leaving one distinct crimson footprint on a page of the Bolivar Commercial newspaper.

¶ 9. The Dycus brothers got in Mrs. Pittman's car and headed down Highway 61 towards Greenville, about forty miles away. They spent Mrs. Pittman's money on gas and cigarettes to fuel the trip. Then they met up with some friends and quickly sold the .25 automatic, which they had stolen from their brother-in-law, for twenty dollars and a little bag of marijuana. When they ran out of marijuana and beer, they jumped back into Mrs. Pittman's car and headed for the B-Quik convenience store, where they hoped to cash a check they stole from Mrs. Pittman.

¶ 10. The B-Quik just happened to be the location Greenville Police Department officers and Bolivar County Sheriff's Department officers were meeting up to hunt for the Dycus brothers. When the lawmen pulled into the convenience store's parking lot, Mrs. Pittman car was sitting right there.

¶ 11. Kelvin and Jason Dycus were arrested immediately; Kelvin had a pair of pantyhose and some rubber gloves stuffed into the pockets of his pants. Kelvin was shortly indicted by the Bolivar County Grand Jury on two charges: Count I, the capital murder of Mrs. Pittman, and Count II, the felony charge of auto theft.

¶ 12. Jason, only fifteen at the time of the crime, quickly cut a deal with prosecutors. Kelvin was tried and was found guilty on both counts of the indictment on June 8, 1998, and sentenced to death by lethal injection. This is his appeal from those judgments; he argues twenty-five errors in the case sub judice. For the reasons listed below, we find no error, and we affirm his convictions for capital murder and auto theft and his sentences of death and five years in the custody of the Department of Corrections.

SCOPE OF REVIEW

¶ 13. We review with heightened scrutiny any sentence of death and any conviction upon an indictment for capital murder. See Flowers v. State, 842 So.2d 531, 539 (Miss.2003)

. While we may apply different standards for different questions—for example, a review of the admission of evidence—we always apply a heightened scrutiny. We do not take the sentence of death lightly, and a heightened scrutiny is shown to the cases where it is applied.

ANALYSIS

1. Did the trial court err when it denied Dycus a peremptory challenge against a juror?

¶ 14. Dycus alleges that the circuit court erred by failing to replace juror Thomas Arinder with an alternate juror. Dycus claims that he should have been allowed to exercise an unused peremptory challenge to remove Arinder from the jury and have an alternate juror seated in his place.

¶ 15. During voir dire the prospective jurors were asked if they had any knowledge of or any relationship with Mrs. Pittman or any of the witnesses to be called for trial. Juror Thomas Arinder did not indicate he knew Mrs. Pittman or any of the witnesses.

¶ 16. Yet after the jury had been impaneled but before testimony began, Arinder saw the victim's sister in the courtroom. He realized that he knew her, and he promptly brought this to the attention of the court. The judge quickly brought counsel and the juror back into chambers.

¶ 17. Arinder related that he had gone to church with Mrs. Pittman's sister for thirteen years, although she did not go very much anymore. Yet they were barely acquaintances, and Arinder could not even recall her name when asked by the judge. Arinder told the judge repeatedly that he could lay any relationship or knowledge of Mrs. Pittman's sister aside and render a reasonable and fair verdict based upon the law.

¶ 18. Despite this assurance, Dycus moved to strike the juror, and the court refused the motion. He court reasoned that in a town like Cleveland, Mississippi, with just under fourteen thousand citizens, it is not unusual for one juror to have had insubstantial contact or a bare acquaintance with a witness. We agree.

¶ 19. The right to exercise peremptory challenges is indeed impeded if a prospective juror fails to answer an unambiguous question whose answer would allow counsel to make an informed decision about whether to strike that juror. See Odom v. State, 355 So.2d 1381, 1383 (Miss. 1978)

. For "[t]he failure to respond to a relevant, direct, and unambiguous question leaves the examining attorney uninformed and unable to ask any follow-up questions to elicit the necessary facts to intelligently reach a decision to exercise a peremptory challenge or to challenge a juror for cause." Id. at 1383.

¶ 20. There was no Odom failure to respond to a relevant, direct, and unambiguous question in the case sub judice. The question was asked of the jury if they knew Mrs. Pittman or any of the witnesses—and Arinder did not respond, because Mrs. Pittman's sister was not on the witness list. She never testified at trial and was not scheduled to do so. Arinder brought his connection with her to the attention of the court.

¶ 21. The trial judge was wholly correct in not allowing the strike of a juror who once attended church with the victim's sister and who did not even know her name. The trial court had ample opportunity to observe Arinder's demeanor and responses, and carefully and repeatedly asked him if he could be fair and impartial. We will not substitute our judgment for that of the trial judge, who found that this juror was not prejudicial to Dycus. This issue is without merit.

2. Did the trial court err in striking a prospective juror?

¶ 22. Juror Pamela Lee was a compliance officer at the state's maximum-security penitentiary at Parchman, although she did not have direct contact with inmates. She indicated that being sequestered during the trial would be an undue hardship on her.1 Most importantly, she was highly ambivalent regarding application of the death penalty. Lee would vacillate between stating that she could apply the law of Mississippi and then stating that she would "prefer ... life without parole [rather] than the death penalty."

¶ 23. The State of Mississippi applies capital punishment in certain cases, and the Legislature has crafted intricate rules juries must follow in levying society's greatest punishment. See Miss.Code Ann. § 99-19-101 (2000). There is even a special oath for jurors in a capital case, which requires them to "be sworn to `well and truly try the issue between the state and the prisoner, and a true verdict give according to the evidence and the law.'" Miss.Code Ann. § 13-5-73 (emphasis added).

¶ 24. This is the edict of the state, and a juror must honor its lawful application. If jurors provide inconsistent answers regarding their feelings on the stated law of this state, they may be struck for cause. In Walker v. State, 671 So.2d 581, 629 (Miss.1995), we allowed a juror to be "struck for cause because sh...

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