Gossett v. State, 92-KA-00413-SCT

Citation660 So.2d 1285
Decision Date17 August 1995
Docket NumberNo. 92-KA-00413-SCT,92-KA-00413-SCT
PartiesChester Lee GOSSETT, Jr., and Eric Owayne May v. STATE of Mississippi.
CourtUnited States State Supreme Court of Mississippi

Johnnie E. Walls, Jr., Walls Law Firm, Greenville, John H. Daniels, III, Dyer Dyer Jones & Daniels, Greenville, Ray Charles Carter, Clarksdale, for appellant.

Michael C. Moore, Attorney General, Jackson, Jean Smith Vaughan, Sp. Ass't Attorney General, Jackson, for appellee.

Before HAWKINS, C.J., SULLIVAN and McRAE, JJ.

SULLIVAN, Justice, for the Court:

Eric Owayne May and Chester Lee Gossett were indicted on June 17, 1991 for the

murder of Nathaniel Hunter in violation of Miss.Code Ann. Sec. 97-3-19. The trial court denied motions from each defendant for the severance of their causes, and they were tried simultaneously on February 24, 1992 in the Washington County Circuit Court. Both were found guilty on the charge of murder, and the court sentenced them each to a term of life imprisonment in the custody of the Mississippi Department of Corrections. The numerous issues raised in their separate appeals are addressed in combination where possible.

FACTS

Gossett and May entered the club known as "Ford's Entertainment" in Leland, Mississippi some time around midnight on March 16, 1991. The facts leading to the shooting of Nathaniel Hunter were disputed, but witnesses observed both defendants shoot Nathaniel Hunter on the dance floor of the club. The club was apparently filled with people, loud music, colored disco lights, simulated fog, and flashing strobe lights during the incident. One witness who was picking up his wife from the club when the shooting began claimed that visibility in the club was such that he brought a flashlight into the club.

Cacious Walker testified that May and Gossett both shot Hunter on the dance floor at Ford's Entertainment on the morning of March 16, 1991. Walker had been acquainted with the victim and the defendants since high-school, and he knew Gossett by the nickname "Rico." Walker identified at trial a silver .380 as being similar to the weapon that Gossett used to shoot Hunter, and a dark colored .44 magnum as being similar to the weapon used by May in the incident. Walker testified that Hunter did nothing to provoke a confrontation, but that both of the defendants nevertheless fired their weapons at Hunter from a distance of about two feet away. He heard at least three shots fired during the incident.

Carlos Smith explained that he was sitting at one of the booths near the front door of the club on March 16, 1991 when he saw the two defendants enter the front door and walk towards the back of the building. Smith testified that he walked to the back of the club to converse with Hunter where he observed May initiate a confrontation by striking Hunter in the face with a pistol without any provocation. Smith said that the scuffle quickly ended when Gossett fired a chrome pistol at Hunter. He testified that May then shot Hunter with a larger black gun, and that before the defendants exited the club, May kicked Hunter who was lying wounded on the ground. Smith identified at trial the chrome .380 and the black .44 magnum recovered by the State as similar to those carried by the defendants.

Anthony Evans corroborated the claim that May and the victim were in a brawl before the defendants each fired their weapons at the victim. Evans, however, had no knowledge of the events leading to the initial scuffle or whether May was holding a gun while struggling with the victim. He also identified the chrome .380 and the black .44 magnum introduced at trial.

Samuel Lee Ratcliff, Jr. testified that he was at the back of the building where he noticed Hunter and May staring at one another. He testified that he looked away for a moment, but that he turned back around as Hunter was throwing a punch at May during a struggle. Like Evans, Ratcliff could not positively determine who was responsible for initiating the brawl. Ratcliff was unsure of the origin of the first shot which rang out, but he was positive that May was responsible for the second. He said that May took a step backwards before aiming the pistol and shooting Hunter. He was unaware of Gossett's presence during the entire confrontation.

Willie Jones testified for the defense that May fell to the floor after being hit over the head with a bottle. He heard two consecutive shots that sounded similar, then one loud blast that sounded different. He estimated that May was approximately fifty feet from his table, and that Hunter, who was only a few feet away, fell onto a table after being shot. Jones was not sure who hit May with the bottle, and he did not notice Gossett anywhere near May when the shots were fired. Robert Johnson testified that May Tommie Rodgers noticed a gun lying on the floor after the shooting. Rodgers exited the club with the gun wrapped in a black jacket after another patron standing nearby denied ownership. He sold the gun to Frederick Jackson the following day at the "Side Effect" for $110.00 and split the money with Paul Banks who had accompanied him to the store. Frederick Jackson corroborated this testimony explaining that he paid $110.00 to Paul Banks and an individual named "Tommie" for a .44 magnum and several .44 magnum cartridges. Jackson surrendered the gun to the Leland Police Department after they identified it through information received from Rodgers.

had a bleeding gash in the back of his head at approximately 1:15 a.m.

Milton Gaston of the Washington County Sheriff's Department helped secure the crime scene and take pictures for evidence. Johnny Earl Smith, the Washington County Medical Examiner, discovered a bullet wound in the left center of the victim's chest with an exit wound in the left side of his back. Smith testified that the wound appeared to be the result of a large caliber weapon. He removed a piece of lead from an area near the surface of the exit wound. He also identified at trial a T.L. Weston High class ring bearing the inscription "Rico" which he discovered lying underneath the victim.

An autopsy report prepared by Dr. Clausen indicated that the victim had two entrance wounds and two exit wounds. The report concluded that the entrance wound on the left center of the chest had been caused by a large caliber weapon, while the other wound on the right side of the body had been caused by a small to medium caliber weapon.

Dempsey Hollis of the Leland Police Department was the first officer to arrive at the crime scene on March 16, 1991 at approximately 12:34 a.m. Several people were attempting CPR on the victim when he arrived, and he estimated that there were 150 people in the area immediately after the shooting. They eventually located a witness who subsequently gave a statement at the police station implicating Gossett and May in the murder of Hunter.

Officer Hollis testified that Carlos Smith accompanied the police to each of the defendants' parents' homes after arrest warrants were obtained. May's father advised the officers that the suspects were at the Alamatt Motel on Highway 82 in Greenville. They traveled to the motel where the night manager identified the defendants from photos provided by the defendants' parents. Both defendants were apprehended at the motel, and a search of the room revealed a chrome plated .380 automatic wrapped in toilet paper laying underneath the bed. May had a small cut on the rear upper portion of his head.

Officer Williams of the Leland Police was dispatched to Ford's at 6:00 a.m. on March 16, 1991 where he met Patrick Ford. Mr. Ford turned over a copper-coated bullet he discovered on the floor near the bar while sweeping.

Steve Byrd, a forensic scientist with the Mississippi Crime Laboratory, testified that the projectiles recovered from the victim's body and from the crime scene were fired from the same .380 and .44 magnum recovered by the police.

I. WHETHER THE CIRCUIT COURT ERRED AS A MATTER OF LAW BY FAILING TO GRANT THE APPELLANTS' MOTIONS FOR THE SEVERANCE OF THEIR CAUSES?

A trial judge exercises discretion in refusing or granting a severance in all criminal trials except for cases involving the death penalty. Miss.Unif.Crim.R.Cir.Ct.Prac. 4.04; Tillman v. State, 606 So.2d 1103, 1106 (Miss.1992); Rigby v. State, 485 So.2d 1060, 1061 (Miss.1986); Cardwell v. State, 461 So.2d 754, 758 (Miss.1984). The trial court abuses its discretion in not granting a severance if the defense of one codefendant tends to exculpate himself at the expense of the other codefendant, or the balance of the evidence tilts more towards the guilt of one codefendant than to the other. Duckworth v. State, 477 So.2d 935, 937 (Miss.1985).

Gossett argues that the evidence produced in favor of his defense showed that he either stumbled and fired the shots at Hunter Contrary to Gossett's argument, his actual defense employed at trial failed to produce any evidence of an accidental shooting or in support of the inference that he shot Hunter "in the defense of May." Gossett's entire defense was based upon the witnesses' inability to perceive the events which transpired on the morning of March 16, 1991. Gossett introduced the disc jockey from Ford's Entertainment who explained that the room was equipped with strobe lights, fog machines, and loud music making it difficult for anyone to perceive the events which transpired that evening. Another victim to the shooting who was wounded in the hand testified that he used a flashlight to locate his wife in the bar that evening. This was his entire line of defense--one based upon mistaken identity. Although he claims in his brief that these other defenses existed, this Court must rely on the record before it and not on the assertions in the brief "however sincere counsel may be in those assertions." Phillips v. State, 421 So.2d 476, 478 (Miss.1982). Based upon the evidence within the record before this Court, May's defense...

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