Green v. State

• Decision Date: 31 December 1992
• Docket Number: No. 90-KA-0961,90-KA-0961
• Citation: 614 So.2d 926
• Parties: Cecil GREEN v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 926

614 So.2d 926

Cecil GREEN v. STATE of Mississippi.

No. 90-KA-0961.

Supreme Court of Mississippi.

Dec. 31, 1992.

Dissenting Opinion of Chief Justice

Hawkins Feb. 4, 1993.

Rehearing Denied March 25, 1993.

James K. Dukes, Hattiesburg, for appellant.

Michael C. Moore, Atty. Gen., Deirdre McCrory, Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

EDWIN LLOYD PITTMAN, Justice, for the Court:

Cecil Green was charged with capital murder for the November 1, 1988, gunshot death of Ralph Dean, a Mize, Mississippi police officer. A trial held in April 1989 ended in mistrial after the jury was unable to reach a verdict. After a second trial in July 1990 the jury returned a verdict of guilty of murder less than capital. Green has appealed to this Court alleging that:

(1) The lower court should have granted a peremptory instruction, j.n.o.v., or new trial as to Green's guilt because Green was the only eye-witness and his testimony established that the homicide was justifiable and/or excusable and because his testimony was not materially contradicted by other evidence or by the physical facts surrounding the alleged offense (i.e. The Weathersby Rule should have been applied.);

(2) The lower court violated Miss.R.Evid. 404 and 405(b) by denying Green the opportunity to submit evidence of character traits and specific acts of Dean which were relevant to Green's claim of self-defense;

(3) The lower court should not have allowed the jury to view the police vehicle of Dean; and

(4) The lower court should not have allowed the State to try Green on the charge of capital murder since Dean was not a law enforcement officer and was not acting within the scope of his duties.

Finding the lower court misapplied Rules 404 and 405(b) of the Miss.R.Evid., we reverse the judgment below and remand this case for a new trial. We note that the lower court did not err by allowing an inspection of the police vehicle and that the lower court did not err by finding Dean a police officer at the time of his death.

I.

In the early morning hours of November 1, 1988, Cecil Green, a 55-year-old native of Smith County, Mississippi, shot to death Ralph Dean, employed as a policeman by the town of Mize, Mississippi. The incident took place near Dean's patrol car parked beside a service station/convenience store at the intersection of Highways 28 and 35. Gunfire was exchanged between the two men, after which Green left the scene. Law enforcement personnel arriving at the scene found Dean's body face down in the parking lot with his personal pistol, not his official weapon, lying near his right hand. Green turned himself in on November 2, claiming self-defense. There were no eyewitnesses to the incident.

Mize cosmetologist and Fire Department volunteer Phyliss Horn received 911 calls via a phone in her home while working as a Fire Department volunteer. Horn answered a call on November 1, 1988, around 2:45 a.m. The male caller said he needed the sheriff because he had killed somebody. The caller continued, "Just get me the sheriff, and I'll be down here," referring to the downtown area. Horn thought she recognized the voice and asked the caller if it was Mike Harvey. The caller answered yes. Horn called the sheriff in Raleigh and told him about the incident.

Mize Chief of Police Billy Joe Clark and Dean were the only members of the Mize police force. Clark went off duty around 10:00 p.m. on October 31. Dean had been on duty since 6:00 p.m. and was scheduled to continue working until 6:00 a.m. the next morning, November 1. Clark, who lived about 2/5 of a mile from the Shell Station, was lying in bed around 2:40 a.m. that night and heard around eleven to twelve shots. The shots ceased. He then heard four or five slow shots. Clark looked out his back door and didn't see anything. He went back to bed. About five minutes later, the scanner aroused Clark. Clark called the police office and didn't get an answer. Clark called the Smith County Sheriff's Department. He asked them what was going on. Clark then went to the Police Department in downtown Mize. He spotted the police car, with a line of shots through the front windshield, at the Shell Station. There were about four or five holes shot out of the car's back windshield. Dean was on the ground by the back wheel of the police car. Clark got in the police car to call the Sheriff's Department, and saw holes in the front seat and "something ... on the front seat, looked like flesh." The driver's window was shot out. Clark examined Dean, who appeared dead. Blood and glass were on the ground. From the position of the glass, Clark concluded that the driver's window glass had been shot out while the door was open. The patrol car was still running, and the driver's door was open. Dean's revolver was on the ground about two feet from Dean's right side. The gun was Dean's his personal pistol. Clark testified that the rapid eleven or twelve shots he heard first sounded like a high-powered rifle, not a pistol or shotgun.

When Smith County Sheriff Keith Bounds arrived at the scene of the shooting, about fifteen or twenty people were already there, including policemen from surrounding communities and some of the Smith County deputies. Bounds had been contacted by the radio operator at the Smith County Sheriff's Office. When Bounds arrived, the body was still on the ground. Bounds examined Dean's pistol, which was a fully loaded .38 Rossi revolver with six cartridges. Four had been fired.

Smith County Deputy Rodney Smith was called to the scene of the shooting. Upon arriving at 3:15 a.m., Smith noted that there was blood on the ground right outside of the driver's door with blood spots leading to where the body lay. The metal strip at the edge of the doorway "where you would clean your feet off" had blood and glass on it. The steering wheel had a hole in it. The dashboard was split, and the driver's seat had holes in it. Blood was present in the police car "on the ... driver's seat" on "the back part." About twelve to fifteen empty hulls also lay on the ground.

Paramedic Chuck Carter was called to the crime scene. Carter found the body in a knee-chest position with his knees and legs under him face down. There was no pulse. Carter observed that the major damage was in the head. The "skull appeared to be not intact completely."

Julia James of the Mississippi Crime Lab arrived at the barricaded scene at 6:15 a.m. James said that the six holes in the back windshield appeared to "be on a straight course from the front windshield to the back windshield." There were eleven holes in the front windshield.

Dr. Steven Hayne performed the autopsy of Dean. Dr. Hayne found nine gunshot wounds. There was an entrance gunshot wound on the left side of the nose. The brain "had essentially been blown out of the skull." The bullet had travelled upward and exited the top part of the head. Dr. Hayne did not have the complete skull. There had also been a hemorrhage into the left lung. There were gunshot wounds to the lung. Two bullets had struck the heart. The "heart was literally ripped apart." The right kidney was hit and shredded.

Dr. Hayne said the head wound was probably the last wound because it would have been instantaneously lethal. Other wounds were lethal, but Dean would have had a few seconds of mobility. Dean had a gunshot wound to his right hand rendering the hand incapable of use. Dr. Hayne admitted that a human being can sometimes "go above and beyond what it ordinarily could or would do."

Some of the wounds indicated downward movement of a bullet; some indicated upward movement; some indicated movement to the left; some indicated movement to the right. Dean was moving somewhat when shot, probably in recoil.

Firearms expert Steven Byrd said that sixteen cartridge cases were fired from Green's gun. Four cartridges had been fired from Dean's six-round Rossi revolver. Fragments fired from Dean's revolver were found at the scene.

Joseph E. Andrews, Jr., an expert from the Mississippi Crime Lab in the area of microanalysis, said that fragments of the police car dashboard were found in Dean's body.

On November 2, 1988, about 12:30 p.m., Green called Bounds and asked Bounds to come to his trailer. Bounds had no information connecting Green to Dean's death at that time. Bounds and Deputy Mack Adcox went to see Green. When Bounds arrived with a deputy, Green was sitting on the trailer front doorsteps waiting. Green told Bounds, "I'm the man you're looking for in the Ralph Dean killing." Green also told Bounds that he killed Dean in self-defense and "had to do it." Bounds read Green his rights and told Green that he was going to get a search warrant in order to find the weapon. Green gave Bounds the rifle rather than waiting for a search warrant. The gun was on a couch inside the trailer, unloaded with the clip beside it. The weapon found at Green's home was a .223 semi-automatic known as a Mini .14. Green told Bounds he wanted an attorney.

At the jail in Raleigh, Smith County Deputy Sheriff Craig Gunter helped in the booking process. Both Gunter and Green testified about a conversation they had during the booking process. Gunter told Green, "Cecil, can I talk to you off the record? Well, Cecil, I'm so shocked. I don't understand it." Green told Gunter that Dean had tried to kill him. Green told Gunter, "Now, Craig, can I talk to you off the record?" Gunter said yes. Green replied, "Have you at any time ever heard anybody saying anything about me and Ms. Ruth Ann [Dean] having an affair or seeing each other, a relationship?" Gunter responded, "No, Cecil, I hadn't, but I know how jealous Mr. Ralph [Dean] is of Ms. Ruth Ann [Dean]." Gunter acknowledged that Dean was prone to violence.

Green testified on his own behalf. Green said he was disabled due to a back injury caused by a car accident. Green had surgery twice on his back. Green said that he had been unemployed due to the injury, drawing Social...