Edwards v. State, 53298

• Decision Date: 14 April 1982
• Docket Number: No. 53298,53298
• Citation: 413 So.2d 1007
• Parties: Leo E. EDWARDS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1007

413 So.2d 1007

Leo E. EDWARDS v. STATE of Mississippi.

No. 53298.

Supreme Court of Mississippi.

April 14, 1982.

Rehearing Denied May 26, 1982.

Stanfield & Holderfield, Percy S. Stanfield, Jr., Jackson, for appellant.

Bill Allain, Atty. Gen. by Amy D. Whitten, Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

BROOM, Justice, for the Court:

The death penalty was ordered at Leo E. Edwards' trial upon an indictment charging him with the murder of Lindsey Don Dixon while engaged in the commission of robbery. Miss.Code Ann. Sec. 97-3-19(2)(e) (Supp.1981). ¹ Trial was in the Circuit Court of the First Judicial District of Hinds County, the Hon. William F. Coleman, presiding. Edwards (defendant herein) appeals and asserts that the trial court erroneously (1) excused a juror for conscientious scruples against the death penalty, (2) failed to instruct the jury on circumstantial evidence, (3) allowed the state to "show a separate and distinct crime," (4) refused to reduce the "charge to murder," (5) admitted into evidence a "photograph of deceased," (6) held the evidence was sufficient, (7) allowed defendant's co-indictee to receive a life sentence, and (8) denied defendant "effective assistance of counsel." We affirm.

Defendant Edwards, his girl friend, and his co-indictee Mikel Leroy White, drove around in Jackson during the early hours of June 14, 1980. Some time later that morning, at defendant's request, White drove defendant to a convenience store on Hanging Moss Road in Jackson. Defendant's stated purpose was to get money from a girl friend who worked there. At a nearby intersection, defendant exited the car and told White to go "one block down" and wait on a side street, which White did. After parking, White went to sleep and not long afterwards, White was awakened by defendant who reentered the car carrying a brown bag and an automatic pistol. At trial, the pistol, which had been confiscated, was identified by White. White's testimony was that the defendant told him, "Let's go, I shot somebody."

Lindsey Don Dixon was the clerk in charge of the store, a Stop-N-Go Market. Dixon's fiance, a Miss Singleton, telephoned him about 4 a. m. on June 14, 1980, and during their phone conversation, Dixon put the phone down on his end of the line after telling her to "hold on." Promptly, Miss Singleton heard a gunshot followed by silence. She alerted the police and at about 4:30 a. m. officers went to the Stop-N-Go where they found Dixon dead in a pool of blood--shot in his chest. Money was missing from the cash drawer which was in disarray. Dixon's cause of death was determined to be internal bleeding resulting from the bullet wound.

That same morning, White heard a radio news report of a store clerk's slaying on Hanging Moss Road and mentioned the report to the defendant. In reply the defendant told White he "shot the sucker" so he (the defendant) would not be identified. White testified that the defendant gave him some money after the killing but he didn't remember how much. During the early part of June 15, Officer Williams proceeded to a local rooming house to investigate a report that a woman was being threatened at gunpoint. Officer Williams found the defendant there brandishing a pistol which the officer confiscated, but the defendant escaped into the crowd. Ballistics tests established that the projectile which killed Dixon was fired from this pistol.

Three days later, on June 18, 1980, the defendant and White were stopped in North Mississippi on a traffic violation. A fictitious name was given by the defendant who was intoxicated. The two men were taken into custody and a routine check revealed they were wanted for armed robbery and murder. After the officers there obtained a search warrant, two pistols were taken from the car's trunk. At the March, 1981 court term, the defendant was found guilty and sentenced to death.

First argument made relates to the exclusion of juror Hibler on the ground of "conscientious scruples" against the death penalty. Juror Hibler was asked by the circuit judge if she could follow the testimony and instructions of the court although the "verdict could result in the death penalty"; juror Hibler said, "I couldn't."

Upon this state of juror Hibler's voir dire examination, she was excused and the defendant urges reversible error under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Having categorically stated that she couldn't follow the testimony and instructions of the court, we think that the juror was correctly excluded. The fact that upon questioning by defense counsel, Hibler stated she would try to be a "fair" juror did not qualify her in this case. Similar argument was made in Edwards v. State, supra, n.1, but there the sentence was life imprisonment whereas here the sentence is death. Thus, the two cases are not precisely analogous. For an excellent explanation of the proper method of bringing the death penalty to the attention of the special venire in capital cases, see Armstrong v. State, 214 So.2d 589 (Miss.1968).

The second issue raised is that the lower court erred in failing to instruct the jury on circumstantial evidence. There is no merit to this argument because the defendant's accomplice, co-indictee White, gave direct testimony about the defendant's activities on the occasion in question. White's testimony was that he took the defendant to a place near the Stop-N-Go Market on Hanging Moss Road where the defendant exited after stating he was going into the store. Shortly thereafter the defendant returned with a brown bag and pistol and stated that he had shot someone in the store to prevent his (defendant's) later identification. Later he told his co-indictee White that he "shot the sucker." Some money was given White by the defendant. In view of the testimony of the defendant's accomplice, the case against the defendant was not wholly circumstantial and therefore he was not entitled to a jury instruction which he sought on circumstantial evidence. Bullock v. State, 391 So.2d 601 (Miss.1980).

Thirdly, the defendant argues that he was denied a constitutionally fair trial because the state was allowed to show a "separate and distinct crime." His contention is that the lower court erred in allowing Officer David Williams to give hearsay testimony that the appellant had threatened to kill a woman over some money. The matter came up when the state, in presenting its case in chief, offered the testimony of Officer David Williams who was called for his testimony regarding his seizure of a pistol from the defendant which was later established to be the weapon used in the murder of the deceased Dixon. The testimony in question of Officer Williams was as follows:

Q. About what time was this?

A. Approximately 3:00 o'clock in the morning.

Q. Just continue as to what was happening at that time.

A. At that time, we were engaged in a brief conversation with Mr. Freddie Tubbs when we received information that an individual was across the street at a rooming house in the doorway with a weapon and the individual stated that he was gonna kill a girl over some money.

Following the above testimony, the defendant objected and the jury was excluded while the matter was considered by the judge and the lawyers. At that time, defense counsel agreed to the court's offer to admonish the jury to disregard the statement. The court admonished the jury not to let the testimony in question "have any bearing" on their verdict and the record clearly shows that each juror raised his hand indicating his willingness to follow the court's admonishment. The record does not indicate that the state intentionally elicited the hearsay report, but only asked Officer Williams, "What was happening at that time." Our rule is that absent a showing to the contrary, jurors are presumed to follow the court's direction with regard to testimony. Hughes v. State, 376 So.2d 1349 (Miss.1979); Butler v. State, 375 So.2d 1039 (Miss.1979); Gray v. State, 375 So.2d 994 (Miss.1979); Duke v. State, 340 So.2d 727 (Miss.1976).

We think the record clearly shows that the challenged testimony was not elicited to establish its truth or to establish that the defendant killed Dixon. As to the taking of the gun from the defendant, defense counsel stated, "We have no qualms with that." No motion or request for a mistrial was made by the defense and the court granted the defense all that was requested. In view of the context of the testimony and the court's admonishment of the jurors, the argument does not warrant reversal.

Fourthly, the defense argues that the lower court erred in denying the defendant's motion to reduce the charge against him to murder. Apparently he contends that the state's evidence did not prove a robbery within the purview of Sec. 97-3-19(2)(e) which makes killing in the commission of robbery a capital offense.

Testimony of the state included that of Vera Avalon, a district supervisor for Stop-N-Go Markets. She stated that when she surveyed the store shortly after Dixon was shot, she discovered over a hundred dollars missing from the cash register. According to the record, investigating law officers found strewn about the floor of the store in random fashion several checks and small change. Dixon's body was found in an adjoining storage area of the store. Mikel White, the defendant's accomplice and co-indictee, testified that shortly after the event he was given money by the defendant knowing that "he had got it from the store," but he accepted it anyway so that the defendant would not "do anything" to him. We think this evidence plus the defendant's statement that he "shot the sucker" sufficiently established the crime of robbery. This is the only logical conclusion that can be drawn from the above evidence and from the lack of evidence that anyone else was connected with the store robbery or Dixon's death. Clearly the testimony, together with...