McGilberry v. State, 97-DP-00213-SCT.

• Decision Date: 03 June 1999
• Docket Number: No. 97-DP-00213-SCT.,97-DP-00213-SCT.
• Citation: 741 So.2d 894
• Parties: Stephen Virgil McGILBERRY v. STATE of Mississippi.
• Court: Mississippi Supreme Court

741 So.2d 894

Stephen Virgil McGILBERRY v. STATE of Mississippi.

No. 97-DP-00213-SCT.

Supreme Court of Mississippi.

June 3, 1999.

Rehearing Denied September 16, 1999.

David Michael Ishee, Pascagoula, Attorney for Appellant.

Office of the Attorney General by Leslie S. Lee, Attorney for Appellee.

EN BANC.

WALLER, Justice, for the Court:

STATEMENT OF THE CASE

s 1. Appellant Stephen Virgil McGilberry ("McGilberry") was charged with murdering four members of his family. A Jackson County Grand Jury indicted him on four counts of capital murder while engaged in the commission of a robbery. Trial was held in the Circuit Court of Jackson County, Circuit Judge James W. Backstrom presiding. The jury returned a guilty verdict on the four counts of capital murder and, on February 9, 1996, after hearing arguments in aggravation and mitigation, imposed a sentence of death on all four counts. McGilberry appeals to this Court and assigns 18 issues for review. With the addition of our statutorily mandated review of the proportionality of the death sentence, the following 19 issues are before us:

I. The Jackson County Sheriff's Office did not have probable cause to arrest the Appellant on the morning of October 24, 1994, and therefore any information obtained from the Appellant was fruit of a poisonous tree and was therefore inadmissible.

II. The trial court erred in denying the Appellant's motion to suppress the Appellant's confession as a violation of his Fifth and Sixth Amendment rights of the United States Constitution as well as Article 3, § 23 of the Mississippi Constitution.

III. The trial court erred in allowing a video tape recording of the crime scene into evidence which contained redundant footage and had no value.

IV. The trial court erred in overruling the Defendant's motion for mistrial based on the district attorney's comment on the Defendant's failure to testify.

V. The trial court erred in overruling the Appellant's motion for mistrial based on the prosecution's vilifying of the Appellant in closing argument.

VI. The trial court erred in overruling the Defendant's motion to dismiss the capital portion of the indictment and proceed with the crime of "simple" murder.

VII. The trial court erred in allowing the State to solicit commitments from potential jurors during voir dire.

VIII. The trial court erred in overruling the Defendant's two motions for mistrial due to the district attorney's remarks and the remarks made by the expert witness that if the Defendant was found not guilty by reason of insanity, he would be released.

IX. The trial court erred in denying the Defendant's motion to exclude testimony about the money order for child support as well as the Defendant's motion to exclude the money order from evidence.

X. The trial court erred in overruling the Defendant's motion to dismiss this indictment due to pretrial statements made by the Jackson County Sheriff's office.

XI. The trial court erred in denying the Defendant's motion ex parte for psychological evaluation and forcing the Defendant to have his motion heard in open court.

XII. The trial court erred in allowing the testimony of Dr. Henry Maggio as to the competency of the Defendant to stand trial.

XIII. The trial court erred in denying the Appellant's request for a twelve hour cooling off period between the guilt and sentencing phase of the trial.

XIV. The trial court erred in denying the Defendant's motion for a new trial based on the conduct of the prosecuting attorneys.

XV. The trial court erred in denying the Defendant's motion to transport the Defendant to his attorney's office for confidential consultation.

XVI. The trial court erred in overruling the Defendant's motion for mistrial in regard to comments made of a note not admitted into evidence nor authenticated for the purpose of trial.

XVII. The trial court erred in not giving a basis for acceptance of the State's race neutral reason for striking jurors after Defendant's Batson challenge when some of those reasons provided by the State were improper and unconstitutional in regard to religion.

XVIII. If any of the issues standing alone is not sufficient to create reversible error, then the cumulative effect of these issues, combined with the heightened standard of review in capital cases, creates reversible error.

XIX. Whether the imposition of the death penalty is disproportionate in this case to other death sentences upheld by the Court and is cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution and Article 3, Section 28 of the Mississippi Constitution of 1890.

STATEMENT OF THE FACTS

s 2. McGilberry, who was 16 years of age at the time, lived at 7101 Dewberry Street in the St. Martin community in Jackson County, Mississippi, in the home of his stepfather and mother, Kenneth and Patricia Purifoy. McGilberry's half-sister, Kimberly Self, and her son, Kristopher Self, also lived in the Purifoy home.

s 3. McGilberry and Meyer Shawn Ashley ("Ashley") initially planned only to steal his half sister's green GEO Storm and sell it for cash or drugs in New Orleans. One week prior to the murders, McGilberry approached Ashley about killing his family. Ashley withdrew from the plot the Friday night before the murders when "things didn't sound right." On Saturday, McGilberry then discussed the murders with Chris Johnson ("Johnson"), who was 14 years of age. That Saturday night, McGilberry had a dream in which he visualized killing his parents. It was after this dream that he went down the street to Johnson's house where the plan to murder his family evolved.

s 4. McGilberry and Johnson returned to McGilberry's residence sometime around 10:30 a.m. on Sunday morning, October 23, 1994. They originally considered slitting his parents' throats with a utility knife which police later found under a box in the attic of the Purifoy's home. This changed when they realized that it would be impossible to cut their throats because of the way Kenneth was sleeping. McGilberry and Johnson were in the garage smoking cigarettes when Johnson picked up a baseball bat and suggested that they knock their victims unconscious. They decided to hit the victims in the head with the baseball bat, drag them into the garage, weight the bodies and dump them off the pier. Due to the fact that McGilberry's mother was awake, the two were unable to execute their plan immediately. They placed the bats outside McGilberry's bedroom window and went back inside the house.

s 5. McGilberry later told Detective Ken McClenic ("McClenic") that he had hit his stepfather and half-sister Kimberly, while Johnson had hit McGilberry's mother and three-year old nephew. McGilberry also confessed to striking his mother once on top of the head with the baseball bat because she was suffering.

s 6. On Sunday, October 23, 1994, police received a 911 call regarding a medical emergency at the Dewberry Street residence. At approximately 10:59 p.m., James D. McArthur ("McArthur"), a Jackson County Sheriff's Deputy on patrol, was instructed to investigate. Upon arrival, he found several people standing in the driveway of the residence. Michael Petranglo ("Petranglo"), later determined to be the boyfriend of one of the victims, approached McArthur and said "I think they're dead." Confused, and still thinking that this was only a medical emergency, McArthur secured Petranglo in the back of his patrol car. McArthur entered the house through the front door and eventually found the bodies of four persons.

s 7. Found dead inside the house were: Kenneth Purifoy ("Kenneth"), a 44 year-old technical sergeant at Keesler Air Force Base; his wife, 44 year-old Patricia Purifoy ("Patricia"); her daughter, 24 year-old Kimberly Self ("Kimberly"); and Kimberly's 3 year-old son, Kristopher Self ("Kris"). From Petranglo, who was Kimberly's boyfriend, police learned that there was a fifth family member, McGilberry, whose whereabouts were unknown.

s 8. After committing the murders, McGilberry and Johnson drove Kimberly's GEO Storm to some friends' house in Vancleave, Mississippi, where the two spent the night at the home of Mrs. Brenda Smith Saucier ("Brenda"), the friends' mother. Upon learning that something was wrong at the Purifoy home, Brenda drove McGilberry and Johnson back to the scene the morning after the murders.

s 9. McGilberry and Johnson were taken by officers to the Jackson County Sheriff's Office in Pascagoula. The pair were subsequently transported to the Criminal Investigation Department, also located in Pascagoula. After McGilberry was read his Miranda rights, he signed a waiver form and indicated that he understood his rights.

s 10. The first part of the initial interview between McClenic, the chief investigator on the case, and McGilberry was not recorded. Thereafter, McClenic videotaped the remaining parts of the interview with McGilberry. On videotape, McGilberry confessed to bludgeoning his family to death and also to taking cash, a money order, a credit card, and Patricia's drivers license after the murders had taken place.

s 11. It appears that McGilberry had been disciplined by his parents for skipping school and for losing his job. Particularly disturbing to McGilberry was the fact that his privilege of driving the family Bronco had been taken away, and he was embarrassed for his friends to see his mother driving him to school.

s 12. While being interviewed, McGilberry told police where to find the murder weapons and other pertinent evidence. McGilberry was charged, indicted, convicted and sentenced to death on four counts of capital murder. He timely perfected his direct appeal to this Court.

DISCUSSION OF THE LAW

I. The Jackson County Sheriff's Office did not have probable cause to arrest the Appellant on the morning of October 24, 1994, and therefore any information obtained from the Appellant was fruit of a poisonous tree and was therefore inadmissible.

s 13. The...