Humphrey v. State, No. 98-KA-00372-SCT.

• Decision Date: 20 April 2000
• Docket Number: No. 98-KA-00372-SCT.
• Citation: 759 So.2d 368
• Parties: Omar K. HUMPHREY a/k/a Omar Khayyan Humphrey v. STATE of Mississippi.
• Court: Mississippi Supreme Court

759 So.2d 368

Omar K. HUMPHREY a/k/a Omar Khayyan Humphrey v. STATE of Mississippi.

No. 98-KA-00372-SCT.

Supreme Court of Mississippi.

April 20, 2000.

David L. Walker, Batesville, John D. Watson, Attorneys for Appellant.

Office of the Attorney General by John R. Henry, Jr., Attorney for Appellee.

EN BANC.

MILLS, Justice, for the Court:

¶ 1. At the conclusion of a jury trial in the Circuit Court of Tate County, Mississippi, Omar K. Humphrey was convicted of capital murder and sentenced by the jury to life imprisonment without the possibility of parole. Humphrey appeals and urges thirteen issues as grounds to reverse. Because we find no reversible error, we affirm Humphrey's conviction for capital murder and affirm the sentence of life imprisonment without parole.

FACTS AND PROCEEDINGS BELOW

¶ 2. Virginia Warner Phillips lived with her husband, Blue Phillips. Mrs. Phillips was 75 years of age. Her husband was suffering from the latter stages of senile dementia and was entirely dependent upon her. They both lived on the ground floor of their house in Senatobia, Mississippi. Mr. and Mrs. Phillips were assisted by a home health nurse, Mrs. Mary Cossey, as well as Miss Jean Epps who was employed to sit with Mr. Phillips. During the early morning hours of October 31, 1996, someone broke into the home of Mr. and Mrs. Phillips. Between 10.30 and 11.00 a.m. that day Mrs. Cossey, the home health nurse, arrived at her usual time but was unable to gain access to the house. Unusually, the doors were locked, and the shades were drawn. Mrs. Cossey obtained a key from Mrs. Phillips's daughter, Gail Cushman and entered the house. She found Mrs. Phillips on the floor, tied up with duct tape, with a chair and quilt upon her. She was unable to reach Mr. Phillips as the house had apparently been ransacked. Unable to get a dial tone on the telephone, Mrs. Cossey ran screaming from the house and eventually flagged down a passing police officer.

¶ 3. The burglars gained access to the house by prying open a downstairs window. An investigative team from the Highway Patrol found that both telephone and electrical wires to the house had been cut. Outside of a screen door which had been propped open the investigators found a screwdriver and a pair of electrical pliers, the handles of which had been bound in black electrical tape. A flashlight was also found. This flashlight contained a battery found to have a fingerprint left on it by Humphrey. The window where the burglars had gained entry had some "sheer" curtains lying beside it outside of the house, the window and the screen were left open, and the flashlight and a small butterfly knife were found there.

¶ 4. In the field immediately behind the house were found a pair of womens glasses and fabric imprints in the mud, apparently made by a sock. The investigator testified that based on the fact that two separate tracks were found outside the house, at least two persons were involved in the crime. In addition, some shoe imprints were also found, apparently made by a typical tennis shoe.

¶ 5. Once inside the house it appears that the burglars proceeded to tie Mrs. Phillips at the hands, face and feet with duct tape, ultimately resulting in her death through asphyxiation, according to the pathologist who conducted the autopsy. There was also extensive bruising, particularly defensive type bruises, with bruises and abrasions to the face, chest, forearms, hands, the shoulder, and extensive bruising to the shins and calves of both legs. The pathologist testified that in his opinion Mrs. Phillips had suffered a severe beating, had been "hog-tied" and dragged for a distance. Given the state of health of Mrs. Phillips, which was good for a 75 year old lady, the pathologist believed it would have taken at least two people to subdue and tie her. Her death was caused by asphyxia, not through strangulation or the obstruction of the airways. In the opinion of the pathologist the death from asphyxia was caused in part by the duct tape placed around her mouth, and in part by the additional compressive forces on her lungs resulting from her being left in a position that exerted pressure on her diaphragm leading to the eventual collapse of certain sections of her lungs. Death was not instantaneous. There was significant pooling of the blood in the organs, indicating a slow death.

¶ 6. Humphrey was indicted by the Grand Jury of Tate County on November 6, 1997, for Conspiracy to Commit Burglary and the Capital Murder of Virginia Phillips. Humphrey filed a motion for a speedy trial on March 17, 1997. Humphrey filed a motion to suppress oral statements on June 10, 1997, and a motion to suppress physical evidence seized from his person on August 20.1997. The circuit court issued an order denying the motion to suppress physical evidence seized from Humphrey's person on August 29, 1997. An order of continuance was issued on August 29, 1997. An order denying the motion to suppress statements was entered on September 2, 1997. Upon a joint motion by the State and Humphrey's attorney, an order of continuance was filed on September 24, 1997, re-setting the trial for November 3, 1997. An order to continue and reset trial was entered on November 7, 1997, and trial was set for February 9, 1998, in the Chancery courthouse in Panola County. Humphrey was re-indicted on charges of Conspiracy to Commit Burglary and the Capital Murder of Virginia Phillips in order to comply with the requirements of State v. Berryhill, 703 So.2d 250 (Miss.1997). It was agreed by the State and by Humphrey and his counsel that all matters previously filed in cause no. CR97-29-B (T) should carry over and be made part of CR 97-155-B (T) as though originally filed therein, and an order was filed to this effect on November 21, 1997. Humphrey filed a motion to dismiss the indictment on Sixth Amendment speedy trial grounds on December 3, 1997. Humphrey also filed a motion to suppress evidence on December 3, 1997. The circuit court issued an order denying the motion to suppress evidence, and an order denying the motion to dismiss indictment on Sixth Amendment speedy trial grounds was filed on January 16, 1998. After trial took place on February 2, 3, 4, 5, 6, and 7, 1998, the jury unanimously found Humphrey guilty of the crime of capital murder, and Humphrey was sentenced to a term of life imprisonment without parole. Humphrey filed a motion for a new trial, or in the alternative for a judgment notwithstanding the verdict on February 12, 1998. An order overruling post trial motions was filed February 12, 1998, and entered nunc pro tunc on October 9, 1998. Humphrey filed a notice of appeal on February 17, 1998.

STATEMENT OF THE LAW

1. WHETHER THE TRIAL COURT ERRED IN DENYING MR. HUPHREY'S MOTION FOR A MISTRIAL BECAUSE THE PROSECUTOR MADE A "SEND A MESSAGE" TYPE ARGUMENT

¶ 7. During closing arguments of the sentencing phase of the trial, the District Attorney made the following statement:

So what is the proper punishment? These are your options. If you follow them, follow this road map, you'll get there. And no one, no one, folks, has the right to second guess any decision you make. All we want you to do is what's right. My view of the case, obviously, you know by now. I've seen too much of this for the 20 years that I've served as prosecutor in this District, way too much of it. Somehow, some way, it's just got to stop. It's got to stop. Maybe, just maybe, the sentence of death comes out of that jury room, there's somebody who'll see or read about it who'll have second thoughts about going into someone else's house.

¶ 8. At this point Humphrey's attorney objected, suggesting that the District Attorney was making a send a message type argument of the kind which has been condemned by this Court and moved for a mistrial. The circuit court sustained the objection, advised the District Attorney that he was "treading into an area that the Supreme Court has asked us to stay away from," but denied the motion for a mistrial. Humphrey asserts that the trial court was correct in sustaining the objection, but erred in denying the motion for mistrial. Humphrey recognizes that the prosecutor did not literally use "send a message" terminology, but argues that it could be inferred from the context in which it was used, and that such a statement warrants reversal. The State argues that any alleged improper remarks, if any, made during summation were cured by the trial court's sustaining the objection, and by the instruction submitted to the jury instructing them to disregard any argument, statement or remark made by counsel having no basis in evidence. The State further argues that the danger of a send a message type argument does not exist at the sentencing phase of a trial where sending a message is necessarily entailed in imposing the death penalty in view of the fact that deterrence is one of that penalty's goals.

¶ 9. During the guilt phase of the trial the role of the jury is to weigh the evidence and to apply the law, not to "send a message," as this Court has made clear. Williams v. State, 522 So.2d 201, 209 (Miss.1988). The situation is much different during the sentencing phase of the trial. In this case the alleged send a message argument occurred during the sentencing phase of the bifurcated trial, after the determination of guilt had been made by the jury, and during consideration of the death penalty. Prosecutors have been allowed the use of send a message type arguments during the sentencing phase of a trial. We have noted that

... the danger inherent in the "send a message" argument is that jurors will neglect their duty to determine whether "the evidence showed the defendant to be guilty of the crime charged." 522 So.2d at 209. This danger does not exist at the sentencing phase, where the defendant has already been found guilty of capital murder. The sole determination to be made at this point is whether the death penalty

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