Murray v. State, 2001-KA-01524-SCT.

• Decision Date: 24 July 2003
• Docket Number: No. 2001-KA-01524-SCT.,2001-KA-01524-SCT.
• Citation: 849 So.2d 1281
• Parties: Antonio MURRAY v. STATE of Mississippi.
• Court: Mississippi Supreme Court

849 So.2d 1281

Antonio MURRAY v. STATE of Mississippi.

No. 2001-KA-01524-SCT.

Supreme Court of Mississippi.

July 24, 2003.

Donna Sue Smith, Columbus, attorney for appellant.

Office of the Attorney General by W. Glenn Watts, attorney for appellee.

EN BANC.

CARLSON, Justice, for the Court.

¶ 1. Having been convicted of five counts of aggravated assault and sentenced to five concurrent fifteen years sentences in the custody of the Mississippi Department of Corrections, Antonio Murray (Murray) appeals from the final judgment of the Circuit Court of Lowndes County, claiming that the circuit court erred in denying his motion to dismiss the charge of murder against him, in refusing jury instructions, and in abusing its discretion as to the admissibility of evidence. Finding no reversible error, we affirm the judgment of the circuit court.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. On April 23, 1999, a party was held at the home of Monique Ledbetter, located on the corner of 11th Avenue South and 7th Street South in Columbus. As it began to get dark, the party spilled over from the house to the vacant lot directly across the street. At least 100 people attended the party, including members of two rival gangs.

¶ 3. Around 10:00 p.m., people from the "Northside" of Columbus began to arrive at the party, including Aaron Dumas, Keisha Thomas, Corrie Morris, Dathan McCoy, and Jimmy Weatherspoon. Earlier in the day, Murray had gotten into a fight with Dumas's cousin. When Dumas heard loud words coming from Mareyo Hines, Murray's cousin, he attempted to get his friends in his car and leave the scene of the party. However, as he was trying to leave, a bottle was thrown at his rear window. He turned around and saw Murray "pull up a gun and start shooting." Dumas testified that he saw Murray pull the gun from under his shirt. When Murray fired the gun, the car's rear window shattered; however, the occupants were able to flee the scene unharmed. Tragically, Ledbetter was killed outside her home by one of the errant bullets.

¶ 4. After arriving at a safe location, Dumas noticed a bullet hole in his back passenger window. When questioned by police, Dumas stated he heard approximately four or five shots fired. He indicated that Murray was behind his car and at an angle when Murray fired the shots. Dumas testified that he did not see anyone else at the party with a handgun.

¶ 5. Shift Lieutenant Carl Kemp of the Columbus Police Department examined the car driven by Dumas. Lt. Kemp found two projectiles in Dumas's vehicle. The two fragments were collected and sent for testing. At the hospital, Shift Lieutenant Keith Worshaim gave Lt. Kemp Ledbetter's clothing and a specimen bottle containing one spent projectile removed from the deceased. After searching the crime scene, the police were unable to locate spent cartridges or the murder weapon.

¶ 6. After interviewing witnesses who were present when the shooting occurred, it was determined that Murray was a chief suspect. Testimony differed widely as to how many shots were fired and their point of origin. At least six witnesses testified that they saw Murray with a gun, and several saw him fire it at Dumas's vehicle. Several witnesses testified that Hines was trying to start a fight with Dumas as he and the others were leaving and that Murray was standing nearby with a gun. Many witnesses testified that shots were coming from different places. ¶ 7. For one year and three months, all evidence relating to the murder and aggravated assaults laid undiscovered in Lt. Kemp's file cabinet. At some point, Lt. Kemp sent two projectiles to the FBI laboratory for ballistics testing identifying one as being from Ledbetter's body and the other as being recovered from Dumas's vehicle. The FBI testing revealed that both of the projectiles could have been fired by the same gun. A more definite conclusion could not be reached. The report also stated that the projectiles most likely came from either a Hi-Point nine millimeter Luger pistol, a Hi-Point .380 caliber pistol, or a Hi-Point nine millimeter Luger carbine. Eyewitness testimony revealed, and Murray admitted, that he had a nine-millimeter pistol that night.

¶ 8. At the trial, Shemika Murray, Murray's sister, testified that she gave Murray the nine-millimeter handgun. She testified that she hid the gun in a barbeque grill, but later that night Murray "tossed" the gun into some bushes. Lt. Kemp testified that Shemika told him that Murray threw the gun toward the Tombigbee River.

¶ 9. Lieutenant Selvain McQueen later took over Murray's case. He discovered the evidence in Lt. Kemp's file cabinet, created an evidence card, and placed it in an evidence locker. In February 2001, defense counsel went to the police department and asked to see the evidence. Lt. McQueen and others produced a brown paper bag which contained Ledbetter's clothing, a gun shot residue kit and a sealed clear specimen container containing a projectile which was marked by Lt. Worshaim as the projectile he was given at the hospital the night Ledbetter was killed.

¶ 10. Shortly thereafter, District Attorney Forrest Allgood met with the officers involved in the case and viewed the same evidence. There was no notation on the evidence card that the third projectile was removed from the evidence locker for viewing during this meeting, but there was testimony that it was removed from the container and viewed. This was the last time the third projectile was seen.

¶ 11. In March 2001, the trial court ordered that the third projectile, which was viewed by Allgood and previously by defense counsel, be sent to the FBI laboratory. In late April and early May, the district attorney and defense counsel were notified that the third projectile was missing and was never sent to the FBI lab.

¶ 12. After it was discovered that the third projectile was missing, the first projectile, which Lt. Kemp had labeled as coming from Ledbetter's body and sent to the FBI laboratory, was sent to a genetics laboratory. It was determined that it did not have blood on it. The second projectile, which had also been tested at the FBI lab and which Lt. Kemp labeled as coming from Dumas's vehicle, was not sent in for this same analysis.

¶ 13. A stipulation was entered into the record that the bullet received from the hospital had been lost from police custody prior to trial. That bullet had never been tested by either the prosecution or the defense.

¶ 14. Murray was convicted of five counts of aggravated assault upon Dumas, Jimmy Weatherspoon, Keisha Thomas, Corrie Morris, and Dathan McCoy and was sentenced to serve five concurrent sentences of fifteen years in the custody of the Mississippi Department of Corrections. Then, the State filed a motion to dismiss the murder count without prejudice against Murray, and this motion was granted. Murray filed a motion for JNOV or, in the alternative, a new trial which was denied by the trial court. Murray timely appealed to this Court, citing the following issues for consideration:

I. WHETHER THE CIRCUIT COURT ERRED IN DENYING MURRAY'S DUE PROCESS MOTION TO DISMISS THE MURDER CHARGE AGAINST HIM.

II. WHETHER THE CIRCUIT ERRED BY REFUSING JURY INSTRUCTIONS D-31 AND D-32.

III. WHETHER THE CIRCUIT COURT ERRED IN ALLOWING THE PROSECUTION TO ELICIT TESTIMONY ABOUT THE AUTOPSY OF THE MURDER VICTIM AND THE GUN SHOT RESIDUE KIT TAKEN FROM THE MURDER VICTIM'S BODY.

IV. WHETHER THE TRIAL COURT ERRED BY SUSTAINING THE STATE'S OBJECTION TO TESTIMONY REGARDING AARON DUMAS'S PRIOR CONVICTION.

DISCUSSION

I. WHETHER THE CIRCUIT COURT ERRED IN DENYING MURRAY'S DUE PROCESS MOTION TO DISMISS THE MURDER CHARGE AGAINST HIM.

¶ 15. Murray was indicted on five counts of aggravated assault and one count of murder. Before the trial commenced on the aggravated assault charges, Murray filed a pretrial motion to dismiss the murder charge based on a denial of due process and intentional loss of evidence. The trial court denied this motion; however, the trial commenced only as to the five counts of aggravated assault.

¶ 16. In a recent opinion, this Court held:

The standard that developed after [California v.] Trombetta, [467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984)

] is that the evidence in question must meet the two-part test stated above, that (1) evidence must possess an exculpatory value that was apparent before the evidence was destroyed, and (2) be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. In addition, "the prosecution's destruction of evidence must not have been in bad faith." Tolbert [v. State], 511 So.2d 1368, 1372 (Miss.1987); see also Taylor [v. State], 672 So.2d 1246, 1271 (Miss.1996)(citing Tolbert).

The question of whether Trombetta actually mandated a finding of bad faith on the part of the State in such cases was no longer open to interpretation after the U.S. Supreme Court's decision in Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). Youngblood dealt with a failure to refrigerate clothing worn by a victim of a sexual assault and to test the clothing for semen samples. In Youngblood, 488 U.S. at 58, 109 S.Ct. 333, the U.S. Supreme Court stated: "We therefore hold that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." The Youngblood rule was applied by this Court in Holland v. State, 587 So.2d 848, 869 (Miss.1991).

State v. McGrone, 798 So.2d 519, 522 (Miss.2001). Therefore, this Court has adopted a three-part test which is to be applied when a due process violation has been claimed by the defendant.

While bad faith may not be a prong of the two-part test for materiality under Trombetta, it is a requirement for a due process violation in a preservation of evidence case under Youngblood, Tolbert, Taylor, and the Court of

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