Flowers v. State, No. 1999-DP-01369-SCT.

• Court: Mississippi Supreme Court
• Citation: 842 So.2d 531
• Decision Date: 03 April 2003
• Parties: Curtis Giovanni FLOWERS v. STATE of Mississippi.
• Docket Number: No. 1999-DP-01369-SCT.

842 So.2d 531

Curtis Giovanni FLOWERS
v.
STATE of Mississippi

No. 1999-DP-01369-SCT.

Supreme Court of Mississippi.

April 3, 2003.

842 So.2d 534

F. Keith Ball, Louisville, James W. Craig, Jackson, for appellant

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

EN BANC.

ON MOTION TO MODIFY OPINION

CARLSON, JUSTICE, FOR THE COURT:

¶ 1. This Court's prior opinion is withdrawn, and this opinion is substituted therefor.

842 So.2d 535

¶ 2. On March 21, 1997, Curtis Giovanni Flowers was indicted in Montgomery County for the capital murder of Derrick "BoBo" Stewart. Flowers was also separately indicted for the capital murder of three other victims, Bertha Tardy, Carmen Rigby and Robert Golden. The State originally filed a motion to consolidate the four cases without opposition from Flowers but, it later withdrew the motion. Flowers then moved to have the four trials consolidated, but the trial court denied his motion. After a change of venue to the Circuit Court of Lee County, Flowers was convicted and sentenced to death for the murder of Bertha Tardy on October 17, 1997. On appeal, this Court reversed and remanded the case for a new trial. Flowers v. State, 773 So.2d 309 (Miss.2000) ("Flowers I"). Admittedly, in the case sub judice, the State did not have the benefit of our decision in Flowers I before the trial concerning the death of Derrick Stewart was commenced

¶ 3. The case sub judice was set for trial on September 14, 1998. However, during voir dire it became apparent that a fair and impartial jury could not be impaneled. As a result, the trial court granted Flowers's renewed motion for change of venue and changed the venue to the Circuit Court of the First Judicial District of Harrison County. The trial proceeded before the jury on March 22, 1999. On March 30, 1999, the jury returned a verdict of guilty. A sentencing hearing was held, and, on March 31, 1999, the jury imposed the death penalty. After Flowers's motions for a judgment notwithstanding the verdict, or in the alternative, a new trial were denied, Flowers timely filed a notice of appeal before this Court. The execution of the death sentence was stayed pending appeal.

FACTS

¶ 4. On July 16, 1996, Sam Jones, Jr., received a telephone call from Bertha Tardy, the owner of Tardy Furniture Company (Tardy's) in Winona, asking him to come to the store to instruct two new employees on loading and unloading furniture. Jones testified he arrived at the store "somewhere close to around" 9:30 a.m. Upon his arrival, Jones discovered the body of Derrick Stewart and three other Tardy employees. Jones ran to a nearby business and asked an employee to call the police and an ambulance. Winona Chief of Police Johnny Hargrove responded to the call, and upon his arrival, he immediately called for backup and an ambulance. Chief Hargrove also contacted the District Attorney's Office, the Mississippi Highway Safety Patrol and the Mississippi Crime Lab.

¶ 5. Stewart was found to still be breathing, so he was transported to the local hospital; however, he subsequently died on July 23, 1996.

¶ 6. During the investigation it was determined that the gunshot wound which eventually killed Stewart was consistent with a .380 caliber weapon. Doyle Simpson, Flowers's uncle, reported a .380 pistol stolen from his car on the day of the murders. A witness placed Flowers at Simpson's car early on the morning of the murder. Flowers was questioned on the afternoon of the murders and consented to a gunshot residue test, but he was not detained at that time. Flowers moved to Texas at the end of September, but after further investigation had been completed, he was arrested and brought back to Mississippi. The State elected to indict Flowers separately on four charges of capital murder. The circuit court judge denied Flowers's motion to consolidate the four separate causes.

¶ 7. At trial the State called nineteen witnesses to testify during its case in chief.

842 So.2d 536

Melissa Schoene was the State's first witness. Schoene, a certified crime scene analyst with the Mississippi Crime Lab, recovered a bullet projectile, a bullet projectile fragment and two bullet casings for a .380 caliber automatic pistol in the area where Stewart's body was found. Further ballistics tests proved that the .380 caliber automatic pistol used to kill Stewart belonged to Doyle Simpson

¶ 8. Doyle Simpson, Flowers's uncle, testified his gun was stolen the morning of July 16 from his car at the Angelica Factory where he was employed at the time. He testified he went to work at 6:15 a.m., and the pistol was in his glove compartment; however, when he got in his car to pick up lunch at approximately 11:00 a.m., the pistol was gone. Katherine Snow, an employee at Angelica, testified that she saw Flowers "laying on the front end of Doyle Simpson's car" between 7:15 and 7:30 a.m. the morning of July 16.

¶ 9. Chief Hargrove identified photographs showing bloody footprints that were obtained from the crime scene. Barry Eskridge, owner of MedStat Ambulance Service, found a shoe track next to Stewart's body. Because Sam Jones stated he did not remember seeing the track when he entered the store initially, Chief Hargrove and Eskridge checked the footwear of all personnel at the scene. Both men testified that no footwear at the scene was consistent with the shoe track. The footprints at the scene were later determined to be consistent with Fila Grant Hill size 10½ tennis shoes, the same size as worn by Flowers. A Grant Hill Fila shoe box, size 10½, was recovered from the home of Flowers's girlfriend, Connie Moore.

¶ 10. Since Flowers had previously been employed at Tardy's, he was interviewed on the afternoon of July 16 by Jack Matthews, a Mississippi Highway Patrol investigator. Matthews testified that Flowers stated he was staying with his girlfriend, Connie Moore, and babysitting her children that morning. Flowers told investigators the only places he had been that morning were his sister's house on Dennis Street and a convenience store, Kelly's Stop and Go, on Highway 51. Flowers consented to a gunshot residue test. The test came back positive for "one single particle" of gunshot residue.

¶ 11. During questioning, Flowers told the investigators that he started working at Tardy's on June 29, but he did not return to work after July 3. He stated that on July 3, 1996, some batteries, which he had picked up for Mrs. Tardy, fell off the back of the truck he was driving and were damaged. Flowers told investigators that although Mrs. Tardy held him responsible for the batteries, he and Mrs. Tardy did not have any problems and there was no argument between them regarding the batteries. Flowers also stated Mrs. Tardy loaned him thirty dollars on July 3 but would not give him the rest of his paycheck because it was used to pay for the damaged batteries.

¶ 12. Roxanne Ballard, Bertha Tardy's daughter, testified to the normal operating procedures of the store. She identified a "daily check-up sheet" and testified that based on the document, there was $400 in the cash drawer on July 16. Jack Matthews later testified that when he observed the cash drawer on July 16, it contained no bills. Later $255 was discovered in the home of Connie Moore, Flowers's girlfriend. Flowers was living with Moore at the time of the murder.

¶ 13. The State was able to place Flowers at the scene of the crime by the testimony of several witnesses. Charles Collins testified that he saw two men across the street from the store around 10:00 a.m. Collins stated that one of these men was Flowers. Another witness, Clemmie

842 So.2d 537

Fleming, also testified that she saw Flowers running from the store on the morning of July 16. Fleming testified that Roy Harris drove her to Tardy's on the morning of July 16 to pay her furniture bill, but she did not go in to pay it because she was not feeling well. Patricia Hollman, who also saw Flowers the morning of the murders, testified that when she saw Flowers, he was wearing Fila tennis shoes.

¶ 14. After the State's case-in-chief, the defense moved for a directed verdict, and the trial judge overruled the motion. During the defendant's case-in-chief, Roy Harris testified that he had seen a man running in downtown Winona at about 9:00 a.m. on the morning of July 16, but Clemmie Fleming was not with him at the time. Harris testified that almost an hour later, Fleming asked him to take her to Tardy's, but before they reached the store, she changed her mind and asked him to take her to her mother's house instead.

¶ 15. To further refute Fleming's testimony placing Flowers at Tardy's on the morning of the murders, the defense presented the testimony of three witnesses who testified that Fleming had not seen Flowers running from Tardy Furniture. Latarsha Blisset and Stacey Wright, Fleming's cousins, both testified that Fleming admitted to them that she had not seen Flowers running from the store. Fleming's sister, Mary Ella Fleming, testified that when Clemmie Fleming arrived at her house on the morning of the murders, a friend came to tell them Mrs. Tardy had been killed. Mary Ella Fleming further testified that she and her sister went down to Tardy's, but that Clemmie Fleming never mentioned anything about having seen Flowers earlier that morning.

¶ 16. After the defense rested, the State submitted rebuttal testimony. At this point the State rested, and the case went to the jury.

¶ 17. On March 30, 1999, the jury returned a verdict of guilty. A sentencing hearing was held, and, on March 31, 1999, the jury returned the verdict of death finding, just as the jury had in Flowers I, two aggravators:

1) The capital offense was committed for pecuniary gain during the course of an armed robbery, and

2) The Defendant knowingly created a great risk of death to many persons.

On April 9, 1999, Flowers filed his motion for a JNOV or, in the alternative, for a new...