Nicholson on Behalf of Gollott v. State

• Citation: 672 So.2d 744
• Decision Date: 18 April 1996
• Docket Number: No. 91-KA-00511-SCT,91-KA-00511-SCT
• Parties: Gail D. NICHOLSON on Behalf of Francis Ray GOLLOTT, Deceased v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 744

672 So.2d 744

Gail D. NICHOLSON on Behalf of Francis Ray GOLLOTT, Deceased v. STATE of Mississippi.

No. 91-KA-00511-SCT.

Supreme Court of Mississippi.

April 18, 1996.

Appeal No. 6273 from Judgment dated February 16, 1991, Kosta N. Vlahos, Ruling Judge, Harrison County Circuit Court, Second Judicial District On change of venue to Hancock County.

Gail D. Nicholson, Chester D. Nicholson, Nicholson & Nicholson, Gulfport, for appellant.

Michael C. Moore, Attorney General, Jackson, Kenneth C. O'Neal, Sp. Ass't Attorney General, Jackson, MS, for appellee.

En Banc.

ON PETITION FOR REHEARING

PRATHER, Presiding Justice, for the Court:

The petition for rehearing is denied. The original opinions are withdrawn and these opinions are substituted therefor.

I. INTRODUCTION

This case concerns several constitutional and criminal law issues appealed by Francis Ray Gollott, defendant (Gollott) from a conviction of manslaughter in the death of Bilie Diane Gollott (Diane) on February 16, 1991. The trial court judge sentenced Gollott to fifteen years in the custody of the Mississippi Department of Corrections, with three years suspended. Aggrieved, Gollott appeals to this Court the following issues: ¹

1) DID THE TRIAL COURT DENY GOLLOTT A FAIR TRIAL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND ARTICLE III, SECTION 26 OF THE MISSISSIPPI CONSTITUTION, BECAUSE OF PROSECUTORIAL MISCONDUCT IN PROCURING THE ASSISTANCE OF THE CIRCUIT CLERK IN AN EFFORT TO STACK THE JURY WITH JURORS HAVING A PENCHANT TO CONVICT?

2) WAS THE TRIAL BARRED BY THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION, AND ARTICLE III, SECTION 22 OF THE MISSISSIPPI CONSTITUTION?

3) DID THE TRIAL COURT ERR IN OVERRULING THE DEFENDANT'S MOTION TO DECLARE MISS.CODE ANN. § 25-7-13 (1972) UNCONSTITUTIONAL?

4) DID THE TRIAL COURT ERR IN OVERRULING THE DEFENDANT'S MOTION TO QUASH THE VENIRE AND TO EXCLUDE THE CIRCUIT CLERK?

5) DID THE TRIAL COURT ERR IN REFUSING TO GRANT THE DEFENDANT'S MOTION FOR A DIRECTED VERDICT AND IN FAILING TO GRANT HIS REQUEST FOR A PEREMPTORY INSTRUCTION ON MURDER?

6) DID THE TRIAL COURT ERR IN GRANTING INSTRUCTIONS S-4 AND S-5 OR IN REFUSING TO GRANT D-4, D-11, AND D-12?

7) DID THE TRIAL COURT ERR IN FAILING TO GRANT D-10, THE REQUESTED INSTRUCTION ON ACCIDENT?

8) WAS THE DEFENDANT DENIED HIS RIGHT TO CONFRONT HIS ACCUSERS UNDER THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE III, SECTION 26 OF THE MISSISSIPPI CONSTITUTION?

9) DID THE TRIAL COURT JUDGE ERR IN REFUSING TO RECUSE HIMSELF?

10) WAS THE TRIAL FUNDAMENTALLY UNFAIR UNDER CUMULATIVE ERROR ANALYSIS?

II. FACTS AND PROCEDURAL HISTORY

After a 17 year marriage, Francis Ray Gollott (Gollott) and Billie Diane Gollott (Diane) were divorced. They continued to run a business together following their divorce, and met with some frequency. On May 10, 1989, Gollott went to Diane's home to discuss business; she suffered a gunshot wound from Gollott's pistol and died. Gollott was indicted for murder, and his first trial resulted in a mistrial when the jury could not agree. The second trial, appealed here, resulted in a conviction of Gollott to the lesser charge of manslaughter.

The proof offered at the second trial is best understood with a description of Diane's home. The shooting took place in a rear room which had a six foot wide sliding glass door which opened onto a patio surrounding a swimming pool. Diane was seated in a chair about four feet inside the sliding glass door. Eighteen yards in back of Diane's home was a two-story apartment where Diane's tenants lived. Helena Fuller, one tenant, lived on the second floor with a view of Diane's sliding glass patio door. John Bell, another tenant, lived on the first floor of the apartment, and his sliding glass door opened directly across from Diane's sliding glass door in her home.

The proof offered established a series of events on the day of Diane's death. Lonnie Hebert, an employee of Diane and Gollott, stated that Gollott ordered Hebert to give him a copy of Diane's work schedule. Gollott stated that he would get that schedule "if he had to slap the (expletive deleted) out of her to get it." Hebert also stated that Diane had told him that Gollott had threatened her. Gollott explained that in attempting to get the work schedule, he was trying to avoid contact with Diane. Gollott had a key to Diane's home.

The day of the shooting, Billy Jack Edgerton, Diane's father, testified that Gollott told him he and Diane should both make out a will. Latter, Gollott explained that his statement was a joke.

John Bell, who had a view of Diane's home at the rear across a swimming pool, saw Gollott's truck at Diane's house around 5:00 p.m. Helena Fuller saw Gollott at Diane's house around 4:15 p.m. Fuller testified that Diane called her that night around 9:30 p.m. Fuller testified as to the effect of her conversation with Diane. After their conversation, Fuller stated that she turned down the television, and began to watch Diane's apartment on the first floor from her second floor apartment. Diane arrived at her house at 9:50 p.m. according to Fuller. Fuller had a view of Diane in her room through the glass sliding door, sitting in her chair.

Gollott, testifying about the evening's events, stated that he and Diane had a discussion about selling the farm. Gollott stated that Diane told him she loved him, but not enough to take care of him. Gollott stated that he then went to his truck, obtained a pistol, returned to the rear room, and asked Diane to shoot him. Gollott stated that Diane told him not to be stupid. After more heated conversation, Gollott took the gun with his left hand, drew the hammer of the pistol back, and brought it up to his head. Gollott stated that there was a gesture from Diane, which he could not describe. Gollott then stumbled, and the gun fired. According to Wayne Hennig, a patrol officer on the scene, Gollott stated to him that Diane grabbed the gun as it fired.

However, Fuller testified as to this time period that she never saw Gollott go to the truck before Diane's shooting. She did see Diane make a defensive gesture with her left hand in the air. Fuller was dialing 911 when the shot occurred, and she heard Diane scream, "Oh, Ray."

John Bell also heard the shot and Diane's scream, as if she had cut herself. Bell testified that Diane was still alert and slumped in her chair, when he came to her aid after he heard the gunshot. As Bell began CPR, he heard Diane say, "He didn't...."

The State's expert opined that the stippling pattern of skin-imbedded-gunpowder indicated that Diane was turning away from the gun and making a defensive gesture. The State's expert testified that the bullet's path indicated the gun was above the shoulder of the victim at the time of the shooting. The gunshot wound was inflicted at close range, entering the left shoulder and traveling through Diane's chest, piercing the heart, both major arteries to the lungs, and the esophagus, and lodging in the right side of her chest under her right arm. Massive internal hemorrhaging was the cause of Diane's death.

Gollott's experts stated that because of the location of the wound in the left shoulder, the shot indicated an unintentional act. In addition, tests on the pistol demonstrated it had a light trigger pull, and would not discharge except by the trigger pull. Another of Gollott's experts noted that the pattern of stippling as being on the back side of her hand was inconsistent with a defensive gesture, as people do not ordinarily defend themselves with the back of their hands. That expert also noted that people do not generally defend themselves with defensive gestures in gunshot cases. On this testimony, the jury found Gollott guilty of manslaughter.

III. ANALYSIS

1) DID THE TRIAL COURT DENY GOLLOTT A FAIR TRIAL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND ARTICLE III, SECTION 26 OF THE MISSISSIPPI CONSTITUTION, BECAUSE OF PROSECUTORIAL MISCONDUCT IN PROCURING THE ASSISTANCE OF THE CIRCUIT CLERK IN AN EFFORT TO STACK THE JURY WITH JURORS HAVING A PENCHANT TO CONVICT?

Gollott asserts that the alleged assistance provided by the Circuit Clerk of Hancock County to the State in jury selection violates his right to a fair trial. Gollott asserted that since the Circuit Clerk, Pam Metzger, was an officer of the court, her assistance violated the impartiality of the trial, infringing upon Gollott's rights.

On the second day of trial, the defendant's counsel motioned for a dismissal of the indictment, or in the alternative, for a mistrial for alleged prosecutorial misconduct. The allegations charged that the assistant district attorney sought information from the circuit clerk in jury selection. A hearing outside the jury's presence was held and Pam Metzger testified that after she followed statutory procedures to draw a jury, and before voir dire, the Assistant District Attorney asked her questions about the jurors. She answered the State's questions with information she knew about the jurors. She did tell the State which jurors she recommended to keep or strike. Metzger testified that she assisted the defense, when asked, and that it was her practice to assist anyone. The trial judge did not have the knowledge of this assistance. The record does not state the information Metzger volunteered about the jurors.

Gollott is correct in stating that the courts guarantee him a right to an impartial jury trial. Duncan v. Louisiana, 391 U.S. 145, 155-56, 88 S.Ct. 1444, 1450-51, 20 L.Ed.2d 491, 498-500 (1968). Gollott is also correct in asserting that courts have held that "participation of an interested official" in juror selection is a due process violation. Anderson v. Frey, 715 F.2d 1304, 1309 (8th Cir.1983), cert. denied, Frey v. Anderson, 464 U.S. 1057, 104 S.Ct. 739, 79 L.Ed.2d 198 (1984). The question arises as to what is...