Kiker v. State

• Citation: 919 So.2d 190
• Decision Date: 07 June 2005
• Docket Number: No. 2003-KA-02376-COA.,2003-KA-02376-COA.
• Parties: Julius Wesley KIKER, Appellant, v. STATE of Mississippi, Appellee.
• Court: Court of Appeals of Mississippi

919 So.2d 190

Julius Wesley KIKER, Appellant, v. STATE of Mississippi, Appellee.

No. 2003-KA-02376-COA.

Court of Appeals of Mississippi.

June 7, 2005.

Rehearing Denied October 11, 2005.

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Sidney Amon Barnett, Darryl A. Hurt, Lucedale, attorneys for appellant.

Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.

Before LEE, P.J., GRIFFIS and ISHEE, JJ.

GRIFFIS, J., for the Court.

¶ 1. Julius Wesley Kiker ("Kiker") was convicted of murder in the Circuit Court of George County. He was sentenced to life in prison in the custody of the Mississippi Department of Corrections. Kiker moved for a judgment notwithstanding the verdict, or in the alternative, a new trial. The trial court denied his motion. We find no error and affirm.

FACTS

¶ 2. The record before us presents two versions of the relevant events. Both versions involve the same two participants: the defendant Julius Wesley Kiker, and the victim, his wife, Renee Kiker.

¶ 3. The Kikers' marriage was, by all accounts, a "stormy" and "hostile" relationship involving alleged physical abuse by both. The State's theory was that the Kikers' marriage was a "volatile domestic relationship" which led to bloodshed. On the day of the shooting, Renee and Kiker were in a heated argument. Kiker was irate because Renee had burned most of his clothes in the yard. Wade Bowlin, Renee's son, left the home to give the couple time to "work things out." Before Wade left, he saw Kiker with the gun that killed Renee.

¶ 4. Kiker's neighbors, Anthony Buckley and Dee Tompkins, testified that they heard gunshots between 6:00 p.m. and 7:00 p.m. After the shots, Kiker appeared at Tompkins' home. Kiker was intoxicated and asked to use Tompkins' phone and for a ride to purchase cigarettes. Later, Tompkins witnessed Kiker standing in his yard with a gun. Elizabeth Reed, Kiker's mother, called the sheriff's department to report that Kiker's phone lines were down and requested that someone investigate. Deputy Purvis arrived at the Kiker home and found Kiker standing over Renee's covered body holding the gun that killed her.

¶ 5. According to Kiker's account of the events, Renee's hostile demeanor had worsened in recent months. On the evening in question, Kiker and Renee were in an argument. Kiker left home purportedly to allow Renee time to calm down. Renee followed Kiker to Harold's beer joint. She threatened Kiker and yelled insults to Kay Allgood accusing her and Kiker of infidelity. The Kiker's left Harold's and the argument continued at home. Renee allegedly pushed Kiker and kicked him in the ribs. Renee then left their home for less than an hour. The argument continued when Renee returned home. Kiker went outside and, as Renee followed him, she waved a gun and threatened to kill him. Renee pointed the gun at his face. A struggle ensued and two shots were fired. The second shot killed Renee. Kiker was in shock and covered Renee's body with a comforter before seeking help from Tompkins and his mother.

¶ 6. The jury believed the State's version and found Kiker guilty of murder. On appeal, Kiker asserts the following issues: (1) the prosecution violated the rule of sequestration in a tactical maneuver which prejudiced Kiker's right to a fair trial; (2) Kiker's jury was not sworn with a capital or non-capital petit juror oath, and therefore his verdict is unconstitutional, contrary to a mandatory statute and void; (3) Kiker's conviction for murder was unsupported by sufficient evidence and the trial court erred in denying his motion for a directed verdict, his request for a peremptory instruction, his motion for a new trial or a JNOV, and in not applying the Weathersby Rule; (4) the trial court erred in admitting photographs which served no other purpose than to inflame the jury against Kiker; and (5) the trial court erred in admitting improper impeachment testimony through Dr. Van Derwood and in limiting the testimony of Elizabeth Reed.

ANALYSIS

I. Whether the State violated the rule of sequestration.

¶ 7. Kiker argues that the trial court erred in allowing Deputy J.D. Mitchell to testify in the State's rebuttal case because he remained in the courtroom for much of the testimony of the State's casein-chief. Kiker contends that this violated Rule 615 of the Mississippi Rules of Evidence, and his defense was prejudiced. Rule 615 provides:

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause.

¶ 8. The purpose of the rule is to prevent a witness from adapting his/her testimony to previous testimony. Douglas v. State, 525 So.2d 1312, 1316 (Miss.1988) (quoting Geders v. United States, 425 U.S. 80, 87, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976)). When a party invokes the rule, the trial court must apply it; the trial court has no discretion. Finley v. State, 725 So.2d 226, 233(¶ 22) (Miss.1998). The rule also applies to rebuttal witnesses. Id. at 233(¶ 21). Kiker must demonstrate that the trial court abused its discretion which resulted in prejudice to his defense. Id. This Court will not simply reverse a trial court for failing to order a mistrial or to exclude testimony after a sequestration violation. Id.

¶ 9. Once a witness has violated "the Rule," the trial court has discretion as to the proper remedy. Id. at 233(¶ 23). Appropriate remedies for a sequestration violation include prospectively excluding the witness where prejudice will otherwise ensue; striking the testimony where connivance gave rise to the testimony; striking the testimony where the prejudice arose. Id. The most appropriate remedy is allowing the other party to subject the witness to a "full-bore cross-examination" on the facts of the rule violation. Id. Finally, the court may instruct the jury that it may consider the rule violation when the jury evaluates the violating witness's credibility.

¶ 10. Kiker cites Douglas v. State, 525 So.2d 1312 (Miss.1988). In Douglas, the sheriff remained in the courtroom for the entire trial and was called by the prosecution as a rebuttal witness. Douglas, 525 So.2d at 1316. The trial court allowed the sheriff's testimony over the objection of Douglas' counsel. Id. On appeal, the supreme court held that it was error to allow the sheriff to testify, but striking a witness' testimony was a severe sanction and should only be used where a party suffered actual prejudice. Id. at 1318. Whether the error resulted in sufficient prejudice and the appropriate remedy was within the trial court's discretion. Id. The court concluded that the error did not amount to sufficient prejudice and that the appropriate remedy was a full-bore cross-examination as provided by the trial judge. Id.

¶ 11. Kiker cites Douglas for the proposition that "the Rule" applies to rebuttal witnesses. Id. at 1316. Here, as in Douglas, Mitchell remained inside the courtroom for much of the State's case-in-chief but was called as a rebuttal witness for the testimony of Elizabeth Reed, Kiker's mother. In Douglas, the sheriff remained in the courtroom for the entire trial. Id. at 1317. Mitchell was not present for any of Reed's testimony, but rather only heard the testimony of Grant Graham, Bobby Crawford, and Dr. Steve Hayne. Mitchell heard none of Reed's testimony. The record is clear that when the State realized that Mitchell was going to be a rebuttal witness concerning the testimony of Reed, he was removed from the courtroom. Therefore, there was no undue prejudice, and Mitchell's rebuttal testimony was admissible.

¶ 12. The second part of Kiker's argument relies upon a previous ruling by the trial court. Earlier in the trial, the State requested that Mitchell remain in the courtroom during its case-in-chief so Mitchell could later testify to a "time line of events" of the night in question. The trial court denied this request.

¶ 13. Kiker argues that Mitchell's rebuttal testimony was inadmissable since his testimony referenced the time of events on the night in question. Reed testified that Kiker called her at approximately 9:45 p.m. on the night Renee was killed. On rebuttal, Mitchell testified that in his interview with Reed, she stated that Kiker called her between 7:00 and 8:00 p.m. The trial court determined that this rebuttal testimony was different than the previous ruling regarding the "time line of events." The purpose of Mitchell's rebuttal testimony was to impeach Reed. Mitchell was not present during Reed's testimony and therefore, there was no resulting prejudice to Kiker.

¶ 14. The trial court had discretion as to the best remedy for a sequestration violation. Here, it allowed a full-bore cross-examination. Defense counsel fully cross-examined Mitchell before the jury. This was the appropriate remedy. Accordingly, we find no error.

II. Whether it was error for the trial court not to administer the capital juror oath.

¶ 15. Next, Kiker argues that it was reversible error for the trial court not to have administered the capital juror oath. Kiker cites Miller v. State, 122 Miss. 19, 84 So. 161 (1920), to support his argument. In Miller, the jurors took an oath to answer truthfully the questions as to their qualifications rather than an oath to properly try the issues of the case. Id., 122 Miss. at 19, 84 So. at 162. The jurors were not administered a subsequent oath until after testimony had begun. Id. The Mississippi Supreme Court concluded that jurors must be sworn before hearing evidence so as to "heighten the conscientious manner in which [the jurors] received and considered the evidence. . .". Id. at 20...