Griffin v. State, No. 03-DP-0068

CourtMississippi Supreme Court
Writing for the CourtHAWKINS; Thank you, Your Honor. And, I was proud of Ms. Palmer when she was on the Stand and she had the courage to come in this room face-to-face with this person over here who had brutally murdered and robbed her husband and she had the courage and
Citation557 So.2d 542
PartiesGary Lynn GRIFFIN v. STATE of Mississippi.
Decision Date14 February 1990
Docket NumberNo. 03-DP-0068

Page 542

557 So.2d 542
Gary Lynn GRIFFIN
v.
STATE of Mississippi.
No. 03-DP-0068.
Supreme Court of Mississippi.
Feb. 14, 1990.

Page 543

Kenneth J. Rose, Jackson, L.F. Sams, Kay Trapp, Mitchell, McNutt, Bush, Lagrone & Sams, Tupelo, for appellant.

Mike Moore, Atty. Gen. by Marvin L. White, Jr., Asst. Atty. Gen., and Jeffery M. Rosamond, Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

ON PETITION FOR REHEARING

HAWKINS, Presiding Justice, for the Court:

The original opinion in this case is withdrawn and this opinion is substituted therefor.

Gary Lynn Griffin has appealed his conviction of capital murder of Russell Palmer in the circuit court of the Second Judicial District of Panola County, and sentence to death.

Because of prosecutorial misconduct (ROY NOBLE LEE, C.J., HAWKINS, P.J., and DAN M. LEE, P.J., dissenting) this cause is reversed. Our review of the trial

Page 544

proceedings and assignments of error thereasto will be limited to those matters which will be faced on retrial, and those which the Court has concluded constitute reversible error.
FACTS

On Thursday, February 21, 1985, Russell Palmer, a World War II veteran of the U.S. Marine Corps, operated a country grocery store on the North side of Highway 6 about six miles East of Batesville. A road known as Belmont Road, just East of the store, ran North from Highway 6. Palmer and his wife had their residence near the store. Mrs. Palmer was employed as an x-ray technologist at the North Panola Hospital. Their children were grown; the couple lived by themselves.

Shortly before six that morning they arose and ate breakfast. Palmer left the house to go to the store shortly before seven. Mrs. Palmer remained at the house preparing to go to her job at the hospital. There was an intercom system between the house and the store, and she heard him open the store and later talk to a customer, who then left. She then heard a "commotion" over the intercom and ran to the store.

As she entered the store, not seeing her husband in his customary position, she started screaming for him. She then ran around the counter and saw Palmer, with the upper part of his head blown off.

Mrs. Palmer testified at trial that Palmer kept from two to three thousand dollars in cash in a large brown billfold attached to a chain. He did this to accommodate customers who needed their checks cashed in paying their bills.

Gary Lynn Griffin on that date was 25 years of age, married, the father of a two-year-old son, and worked as a laborer and truck driver for the Mississippi Forestry Commission. He also did janitorial work for a local attorney. In school he had completed the 11th grade.

Griffin owned a 1976 model four-door white Cadillac, with a "bunny" tag in front, and strips of metal above the headlights. A car of this description was reported to the local law enforcement officers as having been seen at the entrance to a gravel pit on Belmont road a short distance from Palmer's store.

When the officers went to the scene where the car had been parked, they concluded the wheels had been spun in leaving, and there was a deposit of transmission fluid on the ground.

The officers believed that Griffin's car had been used in some way in connection with the homicide, but Griffin was not considered a suspect initially. The car was found at Griffin's house, Griffin was located in Grenada County, and returned to Panola County to answer questions about the car.

Griffin told the officers no one else had used the car, and denied having any involvement in the homicide, himself.

The next day, February 22, he was transported to the Mississippi Highway Patrol headquarters in Jackson to take a polygraph examination. The test indicated Griffin was not telling the truth, and he was informed that the machine indicated he was lying. Griffin then made a full oral confession to Thomas L. McCloud, criminal investigator with the Mississippi Highway Patrol, and one of the officers investigating the crime. McCloud had been personally acquainted with Griffin for about two years.

The investigating party then returned to Batesville where Griffin's confession was reduced to writing by David M. Bryan, sheriff of Panola County. There is no contention on appeal that these confessions were not freely and voluntarily given, in accord with Griffin's constitutional rights.

The substance of Griffin's confession was that he had observed Palmer with a large billfold and a lot of money in a local coffee shop in Batesville. Griffin was in debt, had lost $800 betting on the Super Bowl, and decided to rob Palmer at his store. He borrowed a single-shot .16 gauge shotgun from an acquaintance, and took it, along with a .16 gauge slug to the store. When he got to the store, he turned off the highway and drove up the road to a

Page 545

fence gap at the gravel pit and parked the car. He walked to the store, and went in the back door, which was unlocked. He hid beside the door. Palmer came in with his dog, and removed a revolver from his belt. The dog went to a bathroom, drank some water from a commode, and then went to Griffin. Griffin put his hand on the dog's head "and led him up towards the front" and the dog walked on up towards Palmer. Palmer let the dog out. Griffin started towards Palmer when a customer drove up, and Griffin returned to the back of the store. When the customer left, Griffin went behind the meat counter and behind Palmer according to the confession.

Mr. Palmer was reading the paper. I stood behind, trying to figure out what to do. He turned to spit in the garbage can and I moved back to the right and hid. When he turned back and started to read the paper, I walked up behind him and I had the gun--I had cocked the shotgun--I was going to knock him in the head with the barrel. I took the gun in both hands and swung down on him and the gun went off. I knew then that I had shot him. He went forward and then fell backwards. The billfold fell out and was lying between him and the cash register. I picked the billfold up and did not go in his pockets. After I picked the wallet up, I ran out the back door. I went running across the pasture towards my car. I got about half way to my car and I stopped running and started walking. I came out about twenty yards west of my car. I laid the gun and the money in the front seat. I took off in a hurry. When I got back to the Belmont Road, I turned north and crossed Highway Number 35 then went to the gravel road next to the Coke plant. I turned off and ran into the gravel road that runs parallel to Interstate 55. I turned right and got on the gravel road that comes back to Highway 51. While I was driving down the road, I took all the money out of the billfold. When I crossed the railroad track, I threw the billfold out of the passenger side window ...

The grand jury indicted Griffin for capital murder on February 28, in violation of Miss.Code Ann. Sec. 97-3-19(2)(e). The indictment charged that Griffin did on February 21:

Feloniously, intentionally, and of his malice aforethought, kill and murder Russell Palmer, a human being, when he, the said GARY LYNN GRIFFIN, was engaged in the commission of the crime of Robbery, or an attempt to commit Robbery, in direct violation of Section 97-3-19(2)(e), Mississippi Code of 1972 Annotated, as amended;

Griffin was represented by Jack R. Jones, III, and James D. Franks, attorneys from DeSoto County. These attorneys filed 40 defense motions, among which were motions for a defense selected psychologist to examine Griffin, a motion for funds for the defense to employ an independent ballistics expert to support Griffin's claim the gun's firing was accidental, and a motion for funds to employ an independent investigator. The court overruled these motions.

There was a lengthy pretrial hearing on a motion to suppress Griffin's confession, following which the circuit judge overruled the motion. Griffin was examined by the staff at the Mississippi State Hospital in Whitfield and found competent to stand trial.

Trial began on Monday, October 21, and concluded Friday, October 25, 1985.

During the course of the trial, photographs of the scene of the homicide and Palmer, taken by McCloud, were introduced into evidence. Defense counsel objected to all pictures of Palmer as being irrelevant and inflammatory, which objections were overruled.

Wadding from the discharged shell was introduced into evidence, as was a piece of lead alloy found in a soft drink box, presumably the slug. McCloud also testified as to the path of the slug from the victim, through some pastries in a cake rack, and on into the soft drink machine.

Steve Byrd, a firearms expert with the Mississippi Highway Patrol, testified as to the firing mechanism on the shotgun. It was his opinion that, regardless of whether

Page 546

the hammer was cocked or not, the weapon could not be fired without depressing the trigger.

Palmer's body was examined by Richard Graves Soper, a forensic pathologist. After describing the wounds about Palmer's head in considerable detail, he expressed the opinion that the muzzle of the shotgun was at intermediate range from the victim's head, eight-to-twelve feet. Dr. Soper was also shown photographs of the scene, the location of Palmer's spectacles, and what appeared to be blood and tissue several feet from the body, and asked if these photographs were consistent with his opinion Palmer had been shot at intermediate range.

No witnesses were offered by the defense during the guilt phase. At the conclusion of the guilt phase of the trial, defense counsel requested and were refused the following instruction:

INSTRUCTION NO. D-21

The Court instructs the jury that if you find from the evidence in this case beyond a reasonable doubt that

1. Russell Palmer was a living person and

2. he died as a result of the Defendant striking said decedent, Russell Palmer, with the shotgun causing it to discharge which was a cruel or unusual...

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223 practice notes
  • Ballenger v. State, No. 93-DP-00081-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • September 21, 1995
    ...and; therefore, require that her conviction and sentence be reversed. See Jenkins v. State, 607 So.2d 1171 (Miss.1992); Griffin v. State, 557 So.2d 542 (Miss.1990); White v. State, 532 So.2d 1207 A. The prosecution vilified the defendant, comparing her to Charles Manson. The record reflects......
  • Flowers v. State, NO. 2010–DP–01348–SCT
    • United States
    • United States State Supreme Court of Mississippi
    • November 2, 2017
    ...So.2d 1171 (Miss. 1992). Abram v. State , 606 So.2d 1015 (Miss. 1992). Balfour v. State , 598 So.2d 731 (Miss. 1992). Griffin v. State , 557 So.2d 542 (Miss. 1990). Bevill v. State , 556 So.2d 699 (Miss. 1990). West v. State , 553 So.2d 8 (Miss. 1989). Leatherwood v. State , 548 So.2d 389 (......
  • Russell v. State, No. 93-DP-00418-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • December 7, 1995
    ...his failure Page 836 to take the stand and violates this Court's rulings in Butler v. State, 608 So.2d 314 (1992) and Griffin v. State, 557 So.2d 542 (Miss.1990). Notwithstanding Russell's argument, we find that the case at bar is readily distinguishable from the authorities cited in Russel......
  • Flowers v. State, No. 97-DP-01459-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • December 21, 2000
    ...309, 317-22 (Miss.1992)(reversing murder conviction due to prosecution's tactics of introducing inadmissible evidence); Griffin v. State, 557 So.2d 542, 552-54 (Miss.1990) (reversing capital murder conviction due to cumulative effect of improper prosecutorial acts which denied defendant fun......
  • Request a trial to view additional results
223 cases
  • Ballenger v. State, No. 93-DP-00081-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • September 21, 1995
    ...and; therefore, require that her conviction and sentence be reversed. See Jenkins v. State, 607 So.2d 1171 (Miss.1992); Griffin v. State, 557 So.2d 542 (Miss.1990); White v. State, 532 So.2d 1207 A. The prosecution vilified the defendant, comparing her to Charles Manson. The record reflects......
  • Flowers v. State, NO. 2010–DP–01348–SCT
    • United States
    • United States State Supreme Court of Mississippi
    • November 2, 2017
    ...So.2d 1171 (Miss. 1992). Abram v. State , 606 So.2d 1015 (Miss. 1992). Balfour v. State , 598 So.2d 731 (Miss. 1992). Griffin v. State , 557 So.2d 542 (Miss. 1990). Bevill v. State , 556 So.2d 699 (Miss. 1990). West v. State , 553 So.2d 8 (Miss. 1989). Leatherwood v. State , 548 So.2d 389 (......
  • Russell v. State, No. 93-DP-00418-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • December 7, 1995
    ...his failure Page 836 to take the stand and violates this Court's rulings in Butler v. State, 608 So.2d 314 (1992) and Griffin v. State, 557 So.2d 542 (Miss.1990). Notwithstanding Russell's argument, we find that the case at bar is readily distinguishable from the authorities cited in Russel......
  • Flowers v. State, No. 97-DP-01459-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • December 21, 2000
    ...309, 317-22 (Miss.1992)(reversing murder conviction due to prosecution's tactics of introducing inadmissible evidence); Griffin v. State, 557 So.2d 542, 552-54 (Miss.1990) (reversing capital murder conviction due to cumulative effect of improper prosecutorial acts which denied defendant fun......
  • Request a trial to view additional results

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