Hunter v. State

Citation684 So.2d 625
Decision Date27 June 1996
Docket NumberNo. 93-DP-01025-SCT,93-DP-01025-SCT
PartiesCalvin HUNTER v. STATE of Mississippi.
CourtMississippi Supreme Court

Andre' de Gruy, Jackson, Anne V. Winter, Stone Pigman Law Firm, New Orleans, LA, Clayton T. Lewis, Philadelphia, for appellant.

Michael C. Moore, Atty. Gen., Marvin L. White, Jr., Asst. Atty. Gen., Leslie S. Lee, Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

PRATHER, Presiding Justice, for the Court:

This is a capital murder case arising from the shooting death of James Albert Brewer outside his home in Union. The defendant, Calvin Hunter, was convicted of murdering the victim during the commission of a robbery, and was sentenced by the Neshoba County Circuit Court to death by lethal injection. The dispositive issue in this case is the failure to instruct the jury on the elements of the underlying crime of robbery; this failure requires reversal. The other issues raised by Hunter are without merit. However, in order to provide guidance on remand, this opinion will also address: the trial court's denial of Hunter's motion to recuse; the shuffling of venire members during jury selection; the admission of Hunter's statement; the trial judge's appointment of the jury foreman; and the comments made by the prosecutor throughout the trial. The following is a complete list of the issues raised by Hunter on appeal:

PRE-TRIAL ISSUES

I. Whether the trial court erred in denying Hunter's motion to recuse?

GUILT PHASE ISSUES

II. Whether the prosecutor's comments during voir dire violated Hunter's rights?

III. Whether the trial judge's moving venire members to the end of the jury list without cause or explanation violated Hunter's rights?

IV. Whether the State exercised peremptory challenges to remove African-Americans from the jury in violation Hunter's rights?

V. Whether the admission of Hunter's statement violated his rights?

VI. Whether the trial court erred in failing to instruct the jury on the crime of robbery?

A. Whether the instruction offered by Hunter was properly denied?

B. Whether the trial court failed to instruct on robbery?

C. Whether the district attorney or the trial judge was obligated to offer an instruction on the elements of the underlying crime?

VII. Whether the trial court failed to fully instruct the jury on manslaughter?

VIII. Whether jury instruction S-8 at the guilt phase relieved the State of the burden of proving intent to commit the underlying felony, thereby violating Hunter's rights?

IX. Whether the trial court's instruction to the jury on the manner of its deliberations was unduly coercive in that it forbade any consideration of the lesser included offense until and unless the jury had unanimously agreed to acquit the defendant of the greater charge?

X. Whether the trial court denied Hunter a fair and impartial jury by appointing the jury foreman?

XI. Whether the prosecutors' comments in closing argument violated Hunter's rights?

XII. Whether the evidence before the jury on the underlying felony of robbery was legally insufficient to support a verdict of capital murder?

SENTENCING PHASE ISSUES

XIII. Whether the trial court erred in submitting to the jury the robbery-murder aggravating circumstances?

XIV. Whether the failure to define one of two aggravating circumstances found by this jury requires that the death sentence be vacated?

XV. Whether the trial court erred in submitting to the jury the aggravating circumstance that Hunter had been convicted of another capital offense?

XVI. Whether the trial court's anti-sympathy instruction coupled with denial of a mercy instruction violated Hunter's rights?

XVII. Whether the trial court erred in instructing the jury at sentencing that it could consider "the detailed circumstances of the offense?"

XVIII. Whether the trial court erred in instructing the jury that, in order to return a sentence of life imprisonment, it had to find that the mitigating factors outweigh the aggravating circumstances?

XIX. Whether the trial court erred in submitting to the jury in the sentencing phase of the trial the form of the verdict as contained in sentencing instruction S-1?

XX. Whether the prosecutors' comments in closing argument violated Hunter's rights?

XXI. Whether the aggregate error in this case requires reversal of the conviction and death sentence?

XXII. Whether the death penalty is a disproportionate punishment given the circumstances of the crime and the character of the defendant?

LEGAL ANALYSIS
PRE-TRIAL ISSUES

I. Whether the trial court erred in denying Hunter's motion to recuse?

On the Friday before this case was set to go to trial on Monday, Hunter presented his motion to recuse Judge Marcus D. Gordon. Hunter's basic argument was that the trial judge's law firm had represented the victim (Jimmy) in his divorce from his wife (Lucille). Specifically, the trial judge's nephew, Rex Gordon, Jr., had represented Jimmy in the divorce, in which Hunter was Lucille's "named paramour." A no-fault divorce was eventually entered. Furthermore, the parties stipulated that (after the trial judge left the firm) Rex Gordon, Jr., represented Jimmy's estate and his daughter. This same daughter was a witness against Hunter at trial.

The trial judge denied Hunter's motion to recuse, and made the following statement:

I practiced law until January of 1991 in the firm in Union known as the Gordon Law Firm, of which Rex Gordon, Jr. was a member. It appears that [Rex Gordon, Jr.] filed a complaint for divorce for James Albert Brewer in June of 1990. That there was the wife of James Albert Brewer, who was the Defendant in the case, was represented by the Honorable Jerry Bustin of Forest, Mississippi. That later, through negotiations among the parties Now, the question [the defense attorney] raises is that the Trial Judge should recuse himself in the trial of the case of State of Mississippi vs. Calvin Hunter, with Calvin Hunter being named as the paramour of Lucille Brewer.

the matter was resolved by a no-fault divorce that was entered in September of 1990.

Now, I do not recall the law firm representing this case, nor any witnesses, nor was the case ever discussed between myself and Rex Gordon, Jr.

I fail to see how a case involving a victim of an offense, a domestic case involving a victim of an offense, and another person, raises the appearance of impropriety in the case where a paramour is being tried for the murder of his friend's husband.

On appeal, Hunter argues that Judge Gordon should have recused himself, because "the combination of Judge Gordon's familial and firm relationship to counsel for the victim and the State's witnesses against Calvin Hunter provides the appearance of and the potential for partiality."

Canon 3(C)(1) of the Code of Judicial Conduct provides as follows:

C. Disqualification.

(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:

(a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(b) he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it.

Miss.Code of Judicial Conduct, Canon 3(C)(1). "[T]he Canon enjoys the status of law such that we enforce it rigorously ..." Green v. State, 631 So.2d 167, 177 (Miss.1994).

Mississippi has an objective test in determining when a judge should recuse himself. Jenkins v. State, 570 So.2d 1191, 1192 (Miss.1990). "A judge is required to disqualify himself if a reasonable person, knowing all the circumstances, would harbor doubts about his impartiality." Rutland v. Pridgen, 493 So.2d 952, 954 (Miss.1986).

The presumption is "that a judge, sworn to administer impartial justice, is qualified and unbiased. To overcome the presumption, the evidence must produce a 'reasonable doubt' (about the validity of the presumption)[.]" Turner v. State, 573 So.2d 657, 678 (Miss.1990). When a judge is not disqualified under the constitutional or statutory provisions[ 1], "the propriety of his or her sitting is a question to be decided by the judge and is subject to review only in case of manifest abuse of discretion." Buchanan v. Buchanan, 587 So.2d 892 (Miss.1991); Turner, 573 So.2d at 677; Ruffin v. State, 481 So.2d 312 at 317 (1985) (quoting McLendon v. State, 187 Miss. 247, 191 So. 821, 823 (1939)).

Banana v. State, 635 So.2d 851, 853 (Miss.1994) (quoting Collins v. Joshi, 611 So.2d 898, 901 (Miss.1992)); Green v. State, 631 So.2d 167, 177 (Miss.1994).

"While an attorney may rightfully, in cases where he thinks the judge's relations would result to the injury of the defendant, move for a recusation of the judge; this Court, in such a case, will look to the whole trial and pass upon questions on appeal in Adams v. State, 220 Miss. 812, 817, 72 So.2d 211, 213-14 (Miss.1954) (trial judge need not recuse himself where he had previously presided over civil case involving same defendant and same transaction) (quoting Garrett v. State, 187 Miss. 441, 455, 193 So. 452, 456 (Miss.1940)). There is nothing in the manner in which Judge Gordon presided over Hunter's trial and exercised his discretionary powers that would indicate prejudice to Hunter. Furthermore, there was nothing in the record regarding any financial arrangements of the trial judge with his former law firm. Indeed, Hunter does not allege that he was actually prejudiced, he only argues that the trial judge's relations gave the appearance of impartiality.

the light of the completed trial. Every act and movement had during the entire trial will be considered, and if we are unable to find that rulings have been prejudicial to the defendant, we will not reverse."

Hunter has not overcome the...

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