Hurns v. State

• Decision Date: 01 April 1993
• Docket Number: No. 90-KA-1068,90-KA-1068
• Citation: 616 So.2d 313
• Parties: Victor HURNS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 313

616 So.2d 313

Victor HURNS v. STATE of Mississippi.

No. 90-KA-1068.

Supreme Court of Mississippi.

April 1, 1993.

Boyd P. Atkinson, Cleveland, Thomas H. Pearson, Clarksdale, for appellant.

Michael C. Moore, Atty. Gen., Jackson, Charles W. Maris, Jr., Special Asst. Atty. Gen., Jackson, for appellee.

Before PRATHER, P.J., and PITTMAN and SMITH, JJ.

SMITH, Justice, for the court:

On October 25, 1989, the grand jury of Bolivar County, Mississippi, indicted the appellant, Victor Hurns, along with Derrick Lowery and Eddie Lee Robinson for capital murder in connection with the June 25, 1989, death of Robert Anderson. Victor Hurns was arraigned on November 20, 1989. One of the co-defendants requested and was granted a continuance on December 7, 1989. Hurns, pro se, filed a motion to dismiss for failure to provide a speedy trial, on December 28, 1989.

The trial court on January 8, 1990, acting on a motion, granted severance to the co-defendants. On February 22, 1990, Robinson's case went to trial first and Hurns, pursuant to his request, was allowed by the trial court to attend the proceeding. On April 2, 1990, Hurns filed another motion to dismiss, alleging speedy trial grounds. The motion was denied.

Hurns was re-indicted on April 24, 1990. He filed another motion to dismiss on speedy trial grounds, which the lower court dismissed and his trial commenced May 28, 1990. At the conclusion of the State's case-in-chief, Hurns moved to dismiss the capital portion of the case alleging the State had failed to prove that the victim's death occurred as a result of actions taken during the commission of a sexual battery. The lower court agreed and allowed the case to proceed to the jury on simple murder. Hurns was found guilty of murder by the jury, and the lower court entered judgment against Hurns finding him to be an habitual offender and sentenced him to life without possibility of parole under Miss.Code Ann. Sec. 99-19-81 (Supp.1990), with his custody given to the Mississippi Department of Corrections. Aggrieved by the trial court judgment, Hurns appeals to this Court alleging the following assigned errors for review:

I. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO DISMISS THE INDICTMENT SINCE THE STATE OF MISSISSIPPI VIOLATED THE DEFENDANT'S RIGHT TO A SPEEDY TRIAL.

II. THE TRIAL COURT COMMITTED ERROR IN THAT IT FAILED TO SUSTAIN A DEFENSE MOTION TO DISALLOW THE INTRODUCTION OF GRUESOME, HIGHLY PREJUDICIAL PICTURES OF THE DECEASED THEREBY DENYING THE DEFENDANT A FAIR TRIAL.

III. THE TRIAL COURT ERRED IN THAT IT FAILED TO GRANT DEFENDANT'S JURY INSTRUCTION D-3, A CULPABLE NEGLIGENCE MANSLAUGHTER INSTRUCTION.

IV. THE TRIAL COURT ERRED IN OVERRULING THE DEFENSE MOTION TO DISMISS THE CHARGE OF MURDER AND RELEASE THE JURY PANEL BECAUSE THE EVIDENCE OF THE UNDERLYING FELONY CHARGE OF SEXUAL BATTERY HAD BEEN RECEIVED PRIOR TO THE TRIAL COURT REDUCING THE CAPITAL MURDER INDICTMENT TO MURDER THEREBY PREJUDICING THE JURY AND DENYING THE DEFENDANT A FAIR TRIAL.

FACTS

The only undisputed fact in this case is that Robert Anderson, a prisoner in the Bolivar County Jail in Cleveland, Mississippi, was found dead in his cell on Sunday morning, June 25, 1989, at approximately 8:00 a.m. The body was removed by the county coroner and a sheriff's deputy and taken to Jackson, Mississippi, where it was examined by Dr. Steven Hayne, a pathologist. Dr. Hayne observed significant lesions over the face, back, left arm, the back of both hands and on both feet of Anderson's body. There were multiple abrasions over the left side of Anderson's neck, contusions predominantly on the left arm and forearm and hematomas around both eyes.

Dr. Hayne removed the skull cap, and found the immediate cause of Anderson's death to be massive injuries or trauma to the brain. He found hemorrhage as well as multiple contusions to the left side of the brain which would induce death. Dr. Hayne concluded that the deceased had received multiple blows over a relatively short period of time from an unknown object, but he excluded wood or metal objects as possible causes of death.

During Dr. Hayne's testimony, the State sought to introduce exhibit S-11, a photograph of Anderson's head with the skin pulled back and the skull cap removed, which showed the brain and a large amount of blood present within the skull and the brain tissue. Hurns' counsel objected that the photograph should not be exhibited to the jury on the ground that "the type of picture outweighs the probative value of it." The court found the probative value of the photograph to outweigh any prejudicial effect and allowed the photographs to be submitted to the jury.

Dr. Hayne further testified that the blow or blows inducing the contusions to the brain and the bruising of the left side of the brain would have rendered the decedent unconscious in a short period of time, probably at the time of the infliction of the injury, if not, shortly thereafter within minutes, even seconds.

The State's case-in-chief consisted of the testimony of six of Anderson's and Hurns' fellow inmates at the Bolivar County Jail. With some variation, they all testified that the events leading to Anderson's death began after the supper meal on June 24, 1992, at approximately 5:00 p.m.

They all testified that Hurns led a group on the east side of the jail known as the "posse." This group terrorized prisoners in their wing of the jail. They further testified that Hurns, Derrick Lowery, and Eddie Lee Robinson were the leaders of the "posse." The testimony further revealed that when minor infractions occurred or disobedience of the commands of the "posse" were brought to the attention of Hurns, trials were held for the inmates committing such infractions. Hurns served as the judge, with Lowery serving as the prosecutor, and other members of the "posse" serving as jurors and being responsible for meting out punishment. The principal method of punishment once a prisoner was "convicted" was a "blanket party." A "blanket party" consisted of placing a blanket over the convicted inmate; the other inmates would then beat and kick the covered inmate.

Hurns ordered the two weakest inmates of the group, Robert Anderson and M.C. Robinson, to fight since Anderson was going to Parchman and needed to be toughened up, because he could expect rough treatment there as a convicted sex offender. Anderson was the weaker of the two inmates. The testimony of the State's witnesses revealed that the two fought several times with Robinson winning each fight. Upon the conclusion of each fight, Hurns ordered Anderson to receive a "blanket party" as punishment for losing. The proof further showed that from three to five "blanket parties" were given Anderson on the evening in question.

The first witness offered by the State was Anthony Keeton, who testified that at Anderson's last "blanket party," Anderson was standing in the middle of cell four when Hurns jumped off the top of a bunk bed and hit him on the top of his head with an elbow. He further testified that Leroy Perry testified next for the State. He testified that Hurns was the "chief head man" of the "posse" and that Hurns had become very upset two days before this incident when he had been sentenced. When he returned to his cell from sentencing, Hurns said, "Somebody must die." Hurns gave Perry the option of receiving a "blanket party" or fighting Anderson. Perry admitted that he was a member of the "posse," but only because he had to be. He admitted hitting Anderson during the "blanket parties," but claimed that he did not hit him as hard as he could. Perry further testified that he saw Hurns jump off the bed in cell four and hit Anderson in the head with his knee and that Anderson just lay there on the floor, face down and shaking. He further testified that he observed Hurns and Derrick Lowery take Anderson to his cell and lay him on the concrete floor. Finally, Perry testified that, during the final "blanket party," Eddie Lee Robinson grabbed Anderson and forced his head into the wall four or five times.

Anderson got up a couple of times and Hurns continued the same treatment each time, with the final blow making Anderson fall on the concrete floor. Anderson could not get up after this final blow, and Hurns and Lowery picked him up and dragged him back to his cell and left him lying on the floor. Keeton testified that between the "blanket parties" Robinson had been forced to perform oral sex on Anderson. Keeton further testified that Hurns hit Anderson harder and more often than anyone else participating in the incident.

The next State witness was Mark Ferretti. Ferretti testified that when the "blanket parties" were held, fifteen to twenty people would all crowd into cell four, because that was the only cell in the jail that was not monitored by a camera. Ferretti testified that on Friday, June 23rd, and Saturday, June 24th, "they" made M.C. Robinson and Anderson fight many times. He further testified that Hurns chose who got the "blanket parties." After each fight, they brought Anderson to cell four for a "blanket party." Ferretti said that Anderson was forced to have sex with eight to nine other people. He did see Hurns hit Anderson with an elbow. After Anderson was found dead, Ferretti heard Hurns tell inmates that they needed to make up and report a story that M.C. and Anderson must have gotten into another fight that night after lockdown, as they were in the same cell.

Cedric Coleman was called by the State and testified basically to the same facts relating to the "posse" and "blanket parties" as other inmates had. He testified that Hurns forced Anderson and M.C. Robinson to fight and that Anderson received three to four "blanket parties" that night. Further, Anderson was forced by Hurns to perform oral sex on Leroy Perry and Willie Drummer. Coleman stated that at the last "blanket party" he saw Hurns hit Anderson once in the back and once with his...