Keller v. State, NO. 2010-DP-00425-SCT

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtCOLEMAN
Decision Date06 February 2014
PartiesJASON LEE KELLER v. STATE OF MISSISSIPPI
Docket NumberNO. 2010-DP-00425-SCT

JASON LEE KELLER
v.
STATE OF MISSISSIPPI

NO. 2010-DP-00425-SCT

SUPREME COURT OF MISSISSIPPI

Dated: February 6, 2014


DATE OF JUDGMENT: 10/08/2009

TRIAL JUDGE: HON. LISA P. DODSON

COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT:

OFFICE OF STATE PUBLIC DEFENDER
BY: ALISON R. STEINER
ANDRE DE GRUY

ATTORNEYS FOR APPELLEE:

OFFICE OF THE ATTORNEY GENERAL
BY: JASON L. DAVIS
MARVIN L. WHITE, JR.

DISTRICT ATTORNEY: JOEL SMITH

NATURE OF THE CASE:

CRIMINAL - DEATH PENALTY - DIRECT
APPEAL

DISPOSITION: AFFIRMED - 02/06/2014

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

COLEMAN, JUSTICE, FOR THE COURT:

¶1. Jason Lee Keller appeals his conviction for capital murder; finding no reversible error, we affirm.

¶2. On March 21, 2008, Jason Lee Keller was indicted for capital murder while in the commission of robbery. On October 5, 2009, a jury trial commenced in the Circuit Court of Harrison County, Second Judicial District, with the Honorable Lisa P. Dodson presiding.

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The jury returned a verdict of guilty on the capital murder charge on October 7, 2009. After a separate sentencing hearing, the jury found beyond a reasonable doubt that the following facts existed at the time of the commission of the capital murder: that Keller intended to kill Hat Thi Nguyen, that Keller attempted to kill Nguyen, and that Keller did kill Nguyen. The jury unanimously found the following aggravating circumstances: the capital offense was committed in the commission of a robbery; the capital offense was committed to avoid or prevent a lawful arrest; and Keller previously had been convicted of a felony involving the threat of violence to a person.

¶3. Subsequently, Keller filed a motion for new trial, followed by an amended motion for a new trial, both of which were denied. Keller then timely filed the instant direct appeal. The Court entered an en banc order on February 15, 2013, remanding the case to the Circuit Court of Harrison County to conduct a supplemental evidentiary hearing on the questions of whether any of the three statements made by Keller to law enforcement officers was coerced, and, if so, whether any information learned in a coerced confession was used to gain additional information from Keller. On remand, the trial court found that none of the statements had been coerced and - even if the first two were - that the third statement was sufficiently removed from them to render it admissible. Having retained jurisdiction, the Court will address Keller's issues on appeal.

FACTS AND PROCEDURAL HISTORY

¶4. On the morning of June 21, 2007, someone shot and killed Hat Thi Nguyen ("Hat") inside Food Mart, a convenience store she owned in Biloxi, Mississippi. A customer, Terri Muffi, found her. Muffi saw a pack of cigarettes lying on the floor and noticed that the cash

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register was not completely closed. Upon looking behind the counter, Muffi noticed a woman lying on the floor, so she rushed behind the counter and called 911.

¶5. An owner of a neighboring business, Teo Nguyen (no relation) ("Teo"), entered the store and immediately noticed a distressed woman behind the counter on the telephone. Muffi asked Teo the name of the store. He went outside to confirm that the store was named Food Mart. Shortly thereafter, Teo saw Hat lying on the floor behind the counter and became concerned about her children. He walked to the rear of the store and called for them but received no answer. Teo went back to the front of the store and took the telephone from Muffi so he could speak with the 911 operator. Muffi proceeded to perform cardiopulmonary resuscitation (CPR) on Hat. On the witness stand at trial, Teo recalled that it appeared as though there had been a struggle between Hat and her attacker. He also noticed that the cash register was damaged.

¶6. Within minutes of the 911 call, first responders were on the scene, including Sergeant Darryl Montiforte of the Biloxi Police Department. Montiforte recalled that, upon his arrival on the scene, a woman (later identified as Muffi) was performing CPR on Hat. Hat did not appear to be responding and did not have a pulse. Montiforte discovered Hat's son, unharmed, sleeping in the rear of the store. Montiforte testified that the cash register appeared to be undamaged and closed.

¶7. On the morning of the shooting, Keller, having wrecked and abandoned a stolen truck, set out on foot in possession of a stolen gun before stopping by Hat's store for cigarettes. Keller recounted to Investigator Michael Brown in his third statement, which was admitted into evidence:

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KELLER: . . . . Don't know why I did it, but I did it. I asked her for a pack of cigarettes. When she turned around, I pulled my gun out and when she turn back around, I told her give me all the money. She started screaming no. I just shot her . . . .

Keller recalled that he had shot her "once or twice" before she ran out the door of the convenience store (although he could not remember exactly how many times he had shot her), and he had followed her out of the store with the gun. She told him she would give him all the money in the store, so they returned inside the store. Keller then shot her again. Hat fell to the floor, at which point Keller shot her one final time at close range (referred to by the forensic pathologist as "contact range") in the back of the head. Keller retrieved the money from the register before fleeing on foot to his stepfather's house, where he stole a second truck. Keller then went to a bank to cash the rolls of change he had stolen from the convenience store. Surveillance tape at Keesler Federal Credit Union confirmed that Keller had come into the bank with rolls of change to exchange them for cash. Keller then proceeded to a "crack house." Having sold the stolen gun used in the shooting in exchange for crack cocaine, Keller remained at the house smoking crack cocaine until nightfall. He then left in the stolen truck, driving around until police attempted to pull him over. After initially refusing to yield to police pursuit, Keller finally stopped the vehicle. When he exited the vehicle, Keller, attempting suicide, pointed a metal object that resembled a shotgun barrel at the police to induce them to shoot him. He was shot by arresting officers and transported to Biloxi Regional Medical Center. While in the emergency room, officers attempted to interrogate him on two different occasions. The day after his shooting, Investigator Brown

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of the Biloxi Police Department conducted a recorded police interview with Keller while he was being treated in the intensive care unit (ICU) at Biloxi Regional.

¶8. At trial, without objection by the defense, the State tendered Dr. Paul McGarry as an expert witness in forensic pathology. Dr. McGarry testified that Hat had four gunshot wounds in her body. He identified a gunshot wound to her abdomen (wound C) as nonfatal, because it had not penetrated any vital structures. He testified that, after the initial gunshot, Hat still would have been able to walk, talk, think, and engage in movement (though in pain). Dr. McGarry identified gunshot wound A, a shot that entered Hat's head about four inches above her right ear canal but stayed beneath the scalp and did not penetrate her skull or brain. Dr. McGarry testified that wound A also had been a nonfatal wound that likely would have stunned her and knocked her down but would not have paralyzed her or seriously damaged her brain. According to Dr. McGarry, gunshot wound D went into the brain itself. It would have done more serious damage by decreasing the degree of consciousness and/or rendering her unconscious, along with causing her to suffer brain damage. However, she still would have been able to move the muscles and use the nerves of her extremities. Finally, he described a gunshot wound in which the bullet entered the base of the skull where the spinal cord connects to the brain and traveled to her cerebellum, labeled wound "B." That shot was identified as the fatal one.

¶9. Keller was indicted by a grand jury for capital murder as a nonhabitual offender on March 31, 2008. On May 6, 2008, the State filed a motion to amend the indictment, seeking to charge Keller as a habitual offender pursuant to Mississippi Code Section 99-19-83. Keller maintains that he did not receive notice of the motion, nor did he receive a hearing on the

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motion. He further contends that he was not appointed counsel at the instant stage of the proceedings. On June 6, 2008, Judge Jerry O. Terry granted the State's motion. Keller was appointed counsel on June 11, 2008.

¶10. Judge Clark1 presided over an omnibus hearing on August 27, 2009, during which arguments were heard from both parties on Keller's motion to suppress statements that he had made to police during his hospitalization. Keller had given statements to police in the emergency room and in the ICU. The trial judge granted Keller's motion in part, suppressing statements Keller had made to police while being treated in the emergency room but not suppressing statements Keller had made to police while in the ICU.

¶11. Jury selection in the trial commenced on October 5, 2009. Trial began immediately thereafter, resulting in a jury verdict of guilty of capital murder, on October...

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