Mackbee v. State

• Citation: 575 So.2d 16
• Decision Date: 27 December 1990
• Docket Number: No. 03-DP-0089,03-DP-0089
• Parties: Frank MACKBEE a/k/a Frankie Lee Mackbee v. STATE of Mississippi.
• Court: United States State Supreme Court of Mississippi

Page 16

575 So.2d 16

Frank MACKBEE a/k/a Frankie Lee Mackbee v. STATE of Mississippi.

No. 03-DP-0089.

Supreme Court of Mississippi.

Dec. 27, 1990.

Robert O. Allen, Allen Allen & Boutwell, Brookhaven, Dennis L. Horn, Horn & Payne, Jackson, for appellant.

Mike Moore, Atty. Gen., Marvin L. White, Jr., Asst. Atty. Gen., Charlene R. Pierce, Sp. Asst. Atty. Gen., Jackson, Dunn O. Lampton, Dist. Atty., Magnolia, for appellee.

EN BANC:

ANDERSON, Justice, for the Court:

On September 5, 1986, Frank Mackbee was indicted by the Lincoln County grand jury for the capital murder of Cicero Montgomery, with an underlying felony of robbery, under Miss.Code Ann. Secs. 97-3-19(2)(e) (Supp.1990). Mackbee was also indicted as an habitual offender under Miss.Code Ann. Sec. 99-19-83 (Supp.1990). Thereafter, upon change of venue, the cause was tried in the Covington County Circuit Court. The jury returned a verdict of guilty as charged, and at the sentencing phase, the same jury returned a sentence of death.

Aggrieved by the judgment and sentence, Mackbee perfected this appeal and assigned numerous issues of error. We have reviewed the extensive record, the issues Mackbee raised in this appeal, the briefs and the law, and we conclude that his conviction must be affirmed. His death sentence, however, is reversed and a new sentencing hearing must be conducted.

I.

During the afternoon of April 2, 1986, as they were driving along Highway 42, at least three individuals saw a man at a brown Mercury automobile that was smoking. One of the individuals, Billy Drennan, on his way home from work stopped and offered assistance to the man, who was attempting to put out the fire. This man was later identified as the defendant, Frank Mackbee. Drennan gave Mackbee a fire extinguisher, but he never used it. It appeared that the only thing wrong with the car was a "busted" radiator hose.

While Drennan was with Mackbee, a second passerby came along. This driver, David Skaggs, also offered his assistance to Mackbee. Skaggs, however, only remained with Mackbee and Drennan for approximately three to four minutes. Drennan then decided to leave as Mackbee determined that he simply would allow the car to cool down.

A third passerby, Ricky Murchison, saw Mackbee at the smoking car, and although he slowed down, he did not offer his assistance. On his return from the store some fifteen minutes later, however, Murchison stopped and looked into the car. He realized the hood and interior of car were burning. No one else was at the scene at this time until Janice Lott arrived. Drennan, Skaggs and Murchison identified the "nervous", six-foot tall 170-pound black male, dressed in a white shirt and dark pants as Frank Mackbee.

Some time later, firemen from the Rawls Springs Fire Department extinguished the car blaze. Deputy Howell Stephens of the Forest County Sheriff's Department was also dispatched to the scene of a burning vehicle. He arrived at the vehicle between 8:00 and 8:30 p.m. The car was located two miles north of Highway 42 and approximately six miles from Hattiesburg in Forrest County. After arriving Stephens ran a National Crime Information Center (NCIC) check on the car's license plate. As a result of this check, he discovered the owner of the car was 77 year-old Cicero Montgomery, a resident of Brookhaven, Mississippi. Brookhaven, located in Lincoln Continuing his investigation, Stephens talked to Janice Lott, who was near the scene of the burning car. She gave him a description of an individual she saw near the car earlier. Lott did not testify at trial. It, however, was unclear whether she was the individual who called the fire department or her neighbor, who was also at the scene called. Lott found Montgomery's driver's license and other scraps of paper in close proximity to the scene, and she gave them to the authorities.

County, is approximately sixty miles from the scene of the burning vehicle.

While conducting an initial investigation, Stephens opened the car's trunk with a screw driver to determine if the fire had been extinguished. When he opened the trunk, he discovered "one badly charred body." He immediately closed the trunk and called for investigators.

Four investigators, Joe Hopstein, Raymond Howell, Ken Ritchey and Mike Hilton, arrived on the scene, and Stephens continued to assist in the investigation. During this investigation, the officers determined that there were two charred bodies in the trunk. The bodies were later identified as Cicero Montgomery and Leon David Tyler. Montgomery's body was lying on top of Tyler's. It was later determined that Mackbee, Montgomery and Tyler lived in the same community in Lincoln County, and they were related to each other.

Meanwhile in Lincoln County, Garry Austin, then Mississippi Highway Patrol Criminal Investigator, was requested to assist in the investigation by Lincoln County Sheriff George Earls. Austin proceeded to the Highway Patrol substation in Brookhaven and met with Sheriff Earls and two Forrest County deputies, Mike Hilton and Ken Ritchey. Austin testified that at this time he was aware that Montgomery's vehicle had been found burned in Forrest County and that two bodies were in the trunk. The men assumed that one of the bodies was that of Montgomery. Austin also was aware that Leon Tyler had been reported as missing to the Lincoln County Sheriff's Department by his mother. The transcript does not indicate at what time Austin was dispatched to the scene in relation to his learning of Tyler's missing person report. At the preliminary hearing, however, Austin testified that he first talked to Tyler's mother at approximately 1:20 a.m. on April 3, 1986.

Austin and the other officers went to Montgomery's home, which was located in a rural area approximately eight (8) miles east of Brookhaven. The men observed that the house was in disarray--blood was on the dining room table, the kitchen floor and under the carport, fired shotgun shells were located in the same area as the blood and the dining room table was broken down the middle. All of the windows were closed, but a screen was missing from one window on the west side of the house.

Several shoe prints were located outside the house in a turnaround area (thirty to forty feet from the carport), the driveway, and an area approaching the carport. The shoe prints appeared to be of "a shoe with a gum-type, soft-type sole" but thick sole, and a distinguishing tap on the heel. (Vol. IV. T. 462). The officers backtracked the prints starting at Montgomery's home to Mackbee's parents' residence. The same shoe prints were left approximately one-hundred yards from Montgomery's home at a mailbox of his neighbor's house. On cross-examination Austin revealed that they lost contact of the shoe prints somewhere between Montgomery's and Mackbee's parents' home. Ken Ritchey, Chief Investigator, testified and corroborated Austin's testimony.

The trial transcript does not indicate at what point in the investigation Austin began to suspect Mackbee, who lived approximately one-half mile from Montgomery. During the preliminary hearing though, Austin testified that the disarray at Montgomery's house indicated that a crime had occurred. He was familiar with Mackbee's past criminal history of robbery and burglary, all of which happened in the immediate area where Mackbee lived. Austin talked to Mackbee's parents who reported they had not seen him since 9:00 a.m. on April 2, 1986. Mackbee's mother informed Returning to Forrest county, a taxi driver picked up a male he identified as Mackbee approximately six miles north of Hattiesburg at approximately 6:42 p.m. on April 2. The same taxi driver picked up Mackbee again about 8:00 p.m. and drove him to Dabbs Street in Hattiesburg.

Austin that when he left home Mackbee was wearing jeans, a plaid shirt, and suede shoes with a design. She also gave the officer Mackbee's approximate weight and height and his age. Through subsequent investigation, Austin determined that Mackbee was on parole.

Law enforcement officials began looking for a taxi passenger, and they gave the dispatcher a description of Mackbee. The dispatcher, in turn, relayed this description to his drivers. The driver told the dispatcher that one of his passengers fit the description. Later at 3:00 a.m. on April 3, 1986, the dispatcher received a call for a fare from a man whose voice sounded like the earlier caller asking to be picked up on Dabbs Street. The police followed the taxi cab to within three hundred yards of the telephone booth, but did not see Mackbee.

Meanwhile, another cab company driver, Billy Holmes had picked up a male he identified as Mackbee at approximately 2:00 a.m. on Highway 49 and delivered him to the corner of Dabbs and Ruby Avenue. ¹ When law enforcement officials learned of Holmes' fare to Dabbs Street, they asked Holmes to talk to them and to drive back down Dabbs Street. Holmes responded and saw Mackbee walking on Dabbs Street. This information was radioed to the police who pursued Mackbee to the private residence where he was arrested at approximately 3:00 a.m. for trespassing.

The investigation continued. When he was arrested, the officers confiscated Mackbee's clothes. A forensic serologist determined that he found type-O human blood on Mackbee's clothes. A small amount of blood was also found on Mackbee's right shoe; however, there was not enough blood to determine its type. Montgomery and Mackbee each had type-O blood.

A forensic scientist, Frank McCann, testified that he determined that Montgomery's clothes had accelerants on them. He was unable to determine where the fire had started, but he opined that it was started with an accelerant. In addition, because of the amount of soot present in the trunk and on Montgomery's clothes, McCann postulated that there was a smoldering fire in the trunk. The fact that the trunk did not explode indicated to McCann that the accelerants on the bodies did...