Mack v. State

• Decision Date: 21 December 1994
• Docket Number: No. 91-DP-0764,91-DP-0764
• Citation: 650 So.2d 1289
• Parties: Jimmie MACK v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1289

650 So.2d 1289

Jimmie MACK v. STATE of Mississippi.

No. 91-DP-0764.

Supreme Court of Mississippi.

Dec. 21, 1994.

Rehearing Denied March 23, 1995.

Raymond L. Wong, Cleveland, James W. Craig, Andre de Gruy, Jackson, for appellant.

Michael C. Moore, Atty. Gen., Marvin L. White, Jr., Asst. Atty. Gen., Charlene R. Pierce, Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

BANKS, Justice, for the Court:

I.

On November 19, 1990, Jimmie Mack, Robert Washington, and Percy Monroe were indicted by the Circuit Court of Bolivar County, Mississippi, for the crime of capital murder, arising out of the death of Henry Fulton, who was killed by repeated blows to the head during a robbery at his home on June 20, 1990. Washington pled guilty to grand larceny and accessory after the fact to the capital murder. Monroe was tried on a lesser charge and acquitted. Mack pled not guilty to the charges. On June 24, 1991, Mack's trial commenced. At the conclusion of the trial on Saturday, June 29, 1991, the jury returned a guilty verdict. After the sentencing hearing, the jury returned a verdict of death by lethal injection. Mack's motion for J.N.O.V. or, in the alternative, for a new trial was denied on July 26, 1991. Mack perfected this appeal from the judgment and sentence in a timely manner.

II.

During the early morning hours of June 20, 1990, Washington and Mack left Bolton and drove to Gunnison, to Mack's friend Monroe's mother's home. Eventually, Mack, while en route to Cleveland so that Monroe could see his newborn child, drove with the others to Mound Bayou in search of cocaine. Mack drove to a club downtown where he met Greg Hooper. Hooper agreed to help Mack find some "crack" cocaine. Mack drove Hooper, with Monroe and Washington, to a fishing site and purchased the crack from a person there. While returning to the club, Mack smoked the crack. Thereafter, Mack took Hooper back to the club and told him he would return with more money to purchase more crack.

From there, Mack drove to his aunt's, Mrs. Dawkins', house to get some money. Mrs. Dawkins told Mack that she did not have any money. Mack then asked Darrell Dawkins if Mr. Fulton, a neighbor of the Dawkins, was home. Dawkins answered affirmatively, and Mack pulled into Fulton's yard and blew his horn. Fulton came out of his house and Mack got out of the truck to talk to him. The jack that Mack was going to sell Fulton was in the bed of the truck, along with other items, including an iron pipe. Monroe testified that he remained in the truck and when he looked back to see what was going on, he saw Mack draw an iron pipe back and hit Fulton in the head. Although Washington claimed that he stayed in the truck, Mack testified that Washington was standing outside the truck with him when he "slapped" Fulton. At any rate, Fulton fell to the ground from an injury that he sustained. Mack then took Fulton's wallet from Fulton's pocket. Mack laid the iron pipe down and ran into Fulton's house where he was joined by Washington.

Mack then drove down the road to Fulton's house, telling Monroe and Washington that he was going to sell Fulton a jack.

Testimony at trial concerning items taken from Fulton's home varied. Washington testified that he did not get out of the truck and take anything out of Fulton's home. However, Monroe testified that both Washington and Mack took several items out of Fulton's home, including a pistol, rifle, television, and a small radio. Monroe's testimony was corroborated by Mack.

After putting the loot in the bed of the truck, Mack picked up the iron pipe again. Monroe got out of the truck and grabbed Mack's arm to keep him from hitting Fulton again. Fulton was clearly alive at this time. Mack drew the iron pipe back to hit Monroe. This forced Monroe to step out of Mack's way. Saying "I'm not leaving any witnesses," Mack hit Fulton several more times until his skull burst open. After Mack finished beating Fulton, Monroe reached down and took Fulton's pulse. Monroe told Mack that Fulton was dead. Fulton's body was placed on the truck and dumped in a bushy area along the side of the road.

After disposing of Fulton's body, the three returned to Dawkins' home. Only Mack got out of the truck. Seeing that Darrell Dawkins and Kerry Reynolds had just returned from drawing water from the well, Mack asked for a glass of water. However, instead of drinking the water, Mack poured it on the back of the truck in an attempt to wash away Fulton's blood.

Dawkins and Reynolds saw the blood on the truck. At that point, Mack, who was carrying the pistol taken from Fulton's home, told Reynolds "If you say anything, I'll blow your brains out." Reynolds told Mack that he was not going to say anything. Darrell testified that he heard Mack threaten Reynolds. Mack also told the other people at the Dawkins' home not to go down the road. When he was asked if he had seen snakes down there, he told them, that there was something worse than snakes.

Shortly thereafter, Mack returned to the truck and the trio headed to Mound Bayou in search of Hooper. After picking Hooper up, Mack went back to the fishing hole to find the person who had sold him crack cocaine earlier that day. He wasn't there, so Mack drove to a house in the country. Mack gave Hooper money to go in and purchase more crack. After purchasing the cocaine, Mack took Hooper back to the club and dropped him off. He did not smoke the crack. It was found on Monroe's person when the trio was arrested.

Meanwhile, the Dawkins became suspicious. Albert Dawkins saw Mack's truck earlier that evening at Fulton's home. When returning to her mother's after work, Jacqueline Dawkins saw someone carrying a television out of Fulton's house. Despite Mack's warning earlier that day, Albert walked down the road first and then went back to get Jacqueline after he saw some blood along the road. The two returned home and told their mother that something was wrong. Since Mrs. Dawkins did not have a telephone, she went next door to her neighbor's to phone the authorities. After making the call, her neighbors took her to town to talk with the authorities.

Somewhere within that same time period, Mack was dropping Hooper off at the club.

While Mack was in the club, someone told him that the police were looking for him. Mack, followed by Washington ran out of the club, jumped in the truck, and sped off. Mack told Monroe, who was still in the truck, that the authorities were looking for him. Monroe asked Mack to let him out of the truck. Mack told Monroe "No, we are in this together now."

For some reason, Mack drove past Fulton's house. It was along that road that Mack was first confronted by the authorities. A sheriff's car, which passed Mack travelling in the opposite direction, turned around and pursued Mack. Mack, ignoring entreaties by Monroe and Washington to let them out, tried to outrun the car. In an attempt to stop Mack, authorities shot at the truck tires. He ran off the road several times while the authorities were chasing him. However, despite the fact that several tires on the truck had been shot out, he managed to get back on the road. In the end, a law enforcement officer rammed his car into Mack's truck which caused Mack's truck to run into a ditch.

As he exited the truck, Mack shot at the law enforcement authorities. They fired back, wounding Mack. Mack, Monroe, and Washington were arrested and transported to the Bolivar County Jail where they were charged with the capital murder of Henry Fulton. Shortly after their arrival at the jail, Monroe gave authorities a statement. Mack refused to waive his Miranda rights but gave a statement denying involvement in the murder.

At the time of his arrest, Mack was under indictment on a burglary charge, and was being represented by Raymond Wong, the public defender. The court appointed Wong to represent him on the capital murder charge.

III

Mack brings this appeal, raising several issues, each of which will be addressed in this opinion.

A. WHETHER THE STATE USED ITS PEREMPTORY CHALLENGES IN AN UNCONSTITUTIONAL MANNER TO STRIKE BLACKS FROM THE JURY?

Mack contends that the State used its peremptory challenges in an unconstitutional manner to exclude potential black jurors from the jury. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The State used only four (4) of its twelve (12) challenges, all against blacks. Mack used seven (7) of his challenges against whites, three (3) challenges against blacks, and one (1) challenge against a Latina of Mexican descent. The defendant declined to give reasons and, out of an abundance of caution, the court did not order that he give reasons. The jury which was seated to try Mack's case included nine (9) blacks and three (3) whites. Four alternates were chosen, three of whom were black. The state used none of the four challenges accorded it against alternates. The defendant struck two whites and one black.

Under Batson, a defendant must show that (1) he is a member of a cognizable racial group; (2) that the prosecutor exercised peremptory challenges to excuse a venire person of the defendant's race; and (3) that there is an inference that the venire persons were excluded on account of their race. Batson, 476 U.S. 79, 96, 106 S.Ct. 1712, 1722-23. The burden then shifts to the State to come forward with a race-neutral explanation for challenging the jurors. Id.

Here, Mack raised the Batson issue prior to the State's use of its peremptory challenges. The trial court observed that the motion was premature and judicially noted that the county where the trial was held was 36.4% white and 62.9% black. Without ruling on whether a prima facie case was presented, the court required the State to state the reasons for its strikes, and the following reasons were given: (1) Marcus Mitchell-- Mack now contends that the reasons offered by the State were pretextual. It is incumbent upon a defendant claiming that...