Moody v. State, No. 2001-KA-00779-SCT.

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: Before PITTMAN, C.J., WALLER and CARLSON, JJ.
• Citation: 841 So.2d 1067
• Parties: Kenneth MOODY v. STATE of Mississippi.
• Decision Date: 13 March 2003
• Docket Number: No. 2001-KA-00779-SCT.

841 So.2d 1067

Kenneth MOODY
v.
STATE of Mississippi

No. 2001-KA-00779-SCT.

Supreme Court of Mississippi.

March 13, 2003.

841 So.2d 1070

William B. Kirksey, Jackson, John Michael Horan, attorneys for appellant

Office of the Attorney General by: Jean Smith Vaughan, attorney for appellee.

Before PITTMAN, C.J., WALLER and CARLSON, JJ.

CARLSON, J., for the Court.

s 1. This is Kenneth Moody's second time before us. Moody was indicted in 1995 by the Perry County Grand Jury on two counts of capital murder and one count of simple murder in cause number 4369 on the docket of the Circuit Court of Perry County, Mississippi. On June 22, 1995, Moody executed a written "Memorandum of Understanding," which provided, inter alia, that Moody would plead guilty to the murder charges and would cooperate fully by making complete disclosures to the State regarding his knowledge of the charged offenses, his participation, and the participation of his co-defendants. In exchange for his plea, the State agreed not to seek the death penalty; however, this agreement was rejected by the trial court. The trial court certified the matter for interlocutory appeal to this Court, we granted the interlocutory appeal, and then thereafter, we reversed and remanded for further proceedings, finding that the trial court had abused its discretion in refusing to accept Moody's plea agreement. Moody v. State, 716 So.2d 592 (Miss.1998). Because of this holding, the trial court was directed upon remand to enforce the plea agreement, in toto. Id. at 595-96.

s 2. Upon remand to carry out this Court's directive to enforce the plea agreement, the trial court set this matter for hearing to accept Moody's guilty pleas and to impose sentences consistent with the plea agreement. However, while awaiting this Court's decision on his vehement protestations via appeal because of the trial judge's refusal to enforce the plea agreement, Moody evidently considered the serious ramifications of enforcement of the

841 So.2d 1071

previously executed Memorandum of Understanding and decided that it would be imprudent for him to perform the terms of the agreement. Deductive reasoning enables us to come to this conclusion because a careful review of the transcripts of the various pre-trial hearings in this case before us today reveals that both the State and defense counsel stated into the record that upon this Court's remand, Moody failed to fulfill the terms of the Memorandum of Understanding in that he refused to offer his pleas of guilty as required, in cause number 4369. In other words, although Moody was the one who initially complained because the trial judge would not accept his guilty pleas and impose two consecutive life sentences in order for him to avoid the possibility of a jury's imposition of the death penalty, in the end, it was Moody who reneged on the agreement and refused to be bound by its terms. Not surprisingly, based on Moody's failure to fulfill the terms of the plea agreement, the State filed a motion to revoke the Memorandum of Understanding; and, by order dated September 22, 1998, and entered in cause number 4369, the trial judge declared the Memorandum of Understanding to be null and void.¹

s 3. While the record does not reveal whether cause number 4369 was dismissed, nolle prossed (order of nolle prosequi), or remanded, we do know that the record reveals that in cause number 4856 (the case sub judice), the Perry County Grand Jury returned a two-count capital murder indictment against Moody on December 21, 2000. Count One charged Moody with the murder of Robbie Bond while engaging in the commission of sexual battery upon her, and Count Two charged Moody with the murder of William Hatcher while engaged in the commission of sexual battery upon Robbie Bond. See Miss.Code Ann. §§ 97-3-19(2)(e) & 97-3-95(1)(a). After a change of venue, a trial was held in the Second Judicial District of Harrison County from March 27, 2001, through April 7, 2001, Honorable Richard W. McKenzie presiding.² The jury returned verdicts of guilty on both counts of capital murder, but was unable to unanimously agree on punishment. Therefore, as mandated by the applicable statutes, Judge McKenzie sentenced Moody to terms of life imprisonment without parole eligibility. See Miss.Code Ann. §§ 99-19-101(3) & 47-7-3(f). Additionally, Judge McKenzie, in the exercise of discretion, ordered that these two life sentences were to run consecutively, as opposed to concurrently. See Miss.Code Ann. § 99-7-2(5).

s 4. Moody filed a motion for judgment notwithstanding the verdict (JNOV), or in the alternative, a new trial and the trial judge denied the motion. It is from the denial of this motion that Moody appeals, seeking reversal of his convictions and sentences and a remand of his case for a new trial. Finding no reversible error, we affirm.

FACTS

s 5. On May 15, 1995,³ Dana Moore, Peyton McKay, and Joey Byrd, co-workers

841 So.2d 1072

and friends of Robbie Bond and William Hatcher, became concerned about Hatcher's whereabouts because he had not shown up for work that day.⁴ They found this unusual because Hatcher never missed work. When Dana Moore's shift ended, she began looking for both Bond and Hatcher at their respective homes, but could not locate them. The night before, Bond and Hatcher asked Dana to accompany them to the Mahned Bridge in Perry County, though Dana did not join them. Moore, McKay, and Byrd finally drove out to the Mahned Bridge to look for Bond and Hatcher

s 6. They arrived in the middle of a sunny afternoon. The first thing they spotted was Hatcher's truck. Upon approaching the truck, Moore found Bond's key chain and necklace. After these discoveries, the three left the bridge, and Moore returned to tell her boss, John Grafton, and Hatcher's brother, Eric. Moore, Grafton, and Eric immediately returned to Mahned Bridge. While on the bridge the second time, Moore testified that Moody drove across the bridge in a white truck.⁵ A short time later, the three went to a nearby house where a female occupant called the police.

s 7. Perry County Sheriff Carlos Herring arrived on the scene within 20 minutes. Other investigators from the Mississippi Highway Patrol (MHP) were called in later. Don Sumrall, then-lieutenant with the MHP Criminal Investigation Bureau (CIB), testified he found a knife blade and knife handle with the blade missing on the bridge. Sumrall collected the knife blade and handle, believing them to be blood stained. He also collected hairs and a leaf he believed to be blood stained. He also took a photograph of a bloody footprint and blood stains on the board road of the bridge. Lt. Sumrall sent the evidence he had collected to the Mississippi Crime Laboratory. Chief Deputy Jimmy Smith of the Perry County Sheriff's Department testified that Kenneth Moody was picked up for questioning on May 18, 1995. Smith testified Moody was not under the influence of alcohol or drugs and was read his Miranda rights before giving a statement.

s 8. MHP criminal investigator Sammy Pickens testified that he obtained a search warrant for Kenneth Moody's residence and property. After the discovery of the bodies of Bond and Hatcher on Moody's property on the evening of May 18, 1995, Moody was formally placed under arrest. After his arrest, Moody signed a waiver of his Miranda rights. After being advised of his Miranda rights, Moody waived those rights and confessed to the murders of both Bond and Hatcher, A partial transcript of Moody's confession was admitted at trial.⁶

s 9. Deborah Haller, a forensic scientist with the Mississippi Crime Lab, was requested by local law enforcement officials

841 So.2d 1073

to come to the Moody property to examine a blue pick-up truck and to excavate the gravesite of Bond and Hatcher. At approximately 11 p.m., May 18, 1995, Haller and other personnel removed the body of an unclothed female, hands bound by jumper cables, from a grave on Moody's property. The body of a clothed male was found underneath the body of the female. Vaginal swab testing of the female identified the presence of seminal fluid. The swabs were sent to Reliagene, a DNA Testing lab in New Orleans

s 10. Forensic scientist Joe E. Andrews of the Mississippi Crime Lab identified hairs from the truck as exhibiting the same microscopic characteristics as the known hairs of Bond.

s 11. Dr. Steven Hayne, a forensic pathologist with Renal Laboratories, conducted autopsies on the bodies of Bond and Hatcher and found the bodies to be in states of decomposition from burial. Dr. Hayne determined that Hatcher had single stab wounds to the head and neck below the right ear. He had a slash wound under his chin and also injuries to the soft tissue of the scalp on the right side of the head. There was blunt force trauma to the right side of Hatcher's head. There was also a single stab wound on the back of the right hand and two stab wounds to his back. A large fracture was found at the base of the skull. Dr. Hayne determined that Bond was also the victim of blunt force trauma to the face and suffered skull fracturing. Bond also had defensive posturing injuries to the forearms and back of her hands. She was missing her right thumb. Dr. Hayne found no vaginal trauma, but testified such trauma would not always be present in cases of sexual assault. Dr. Hayne also found bruises on Bond's thighs and bruising in Bond's larynx, which resulted from something being forced approximately two and a half inches into her larynx.

DISCUSSION

I. WHETHER THE TRIAL JUDGE CORRECTLY INFORMED THE JURY THAT THE DEFENDANT WAS PRESUMED INNOCENT UNTIL PROVEN OTHERWISE BY THE STATE.

s 12. During the fourth day of jury voir dire, the trial judge, according to Moody, incorrectly equated presumption of innocence with the directed verdict standard. The trial judge stated:

Okay. Thank you. In order to accomplish our task, we must first select a jury of 12 people from among you. Once those 12

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