Nixon v. State, DP-65

• Decision Date: 25 November 1987
• Docket Number: No. DP-65,DP-65
• Parties: John B. NIXON, Sr. v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1078

533 So.2d 1078

John B. NIXON, Sr. v. STATE of Mississippi.

No. DP-65.

Supreme Court of Mississippi.

Nov. 25, 1987.

Rehearing Denied Nov. 30, 1988.

Clive A. Stafford Smith, Atlanta, Ga., for appellant.

Edwin Lloyd Pittman, Atty. Gen., Marvin L. White, Jr., Asst. Atty. Gen., and Felicia C. Adams, Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc:

PRATHER, Justice, for the Court:

John B. Nixon, Sr. was convicted in the Circuit Court of Rankin County of capital murder of Mrs. Virginia Tucker as the trigger man in a murder-for-hire scheme. Miss.Code Ann. Sec. 97-3-19(2)(d) (1987) provides the definition of such a crime as:

(2) The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases:

(d) Murder which is perpetrated by any person who has been offered or has received anything of value for committing the murder, and all parties to such a murder, are guilty as principals;

From that conviction and a sentence of death, Nixon perfects this appeal, assigning 18 errors, which will be discussed in the order they arose at trial.

I.

Shortly before 8:00 a.m. on January 22, 1985, Thomas Tucker was walking through the den of his home in Rankin County, Mississippi, when his wife, Virginia Tucker, answered a knock at the back door. Mrs. Tucker ran backwards from the door through which entered an "old man," later identified as John Nixon, Sr., and two younger men, identified as Henry Leon Nixon and Gilbert Jimenez. Henry Leon Nixon is John Nixon, Sr.'s son.

After telling the Tuckers "I brought y'all something," John Nixon, Sr. pulled a .22 caliber pistol from his coat. Mr. Tucker immediately responded, "I know Joe Ponthieux hired you to kill us, but we got some money if that's what you (sic) after." ¹ John Nixon, Sr. responded, "That's not what I'm after. The deal has already been made."

John Nixon, Sr. then pointed the pistol at Mr. Tucker and pulled the trigger, but the pistol misfired. Mr. Tucker seized the opportunity to dart toward the front door and pull it open, but he was hit in the left side and knocked to the ground by a second shot. Mr. Tucker managed to pull himself up and to continue his escape. John Nixon, Sr. passed the pistol to Henry Leon Nixon who chased Mr. Tucker into the yard and fired a third shot that grazed Mr. Tucker's head.

Mr. Tucker eventually made his way over 100 yards to the road and was picked up by a small truck and carried to his work site, the Mississippi Power & Light office in Brandon, Mississippi.

Meanwhile, inside the Tucker house, Gilbert Jimenez wrestled Mrs. Tucker to the floor where he kept her pinned during the shooting. When Henry Leon Nixon returned the pistol to John Nixon, Sr., Mr. Nixon, Sr. held the pistol one inch from Mrs. Tucker's head, behind an ear, and fired a shot into Mrs. Tucker's brain. The three intruders then drove away in a Ford van.

When Mr. Tucker arrived at the Mississippi Power & Light office, he was taken inside where he asked Mr. Carl Corley to go to the aid of Mrs. Tucker. Mr. Corley immediately drove to the Tucker home where he found Virginia Tucker lying on the floor, gasping for breath, with blood running from her mouth and nose. According to Mr. Corley, he arrived at the Tucker home within fifteen minutes of the time Mr. Tucker arrived at the MP & L office. Virginia Tucker was taken to a hospital where she died the next day.

The search for Virginia Tucker's killers was on-going for most of 1985. On November 4, 1985, John Nixon, Sr. was arrested after being identified in a personal lineup by Thomas Tucker. Shortly afterward, John Nixon, Jr. was arrested in Louisiana and Henry Leon Nixon was arrested in Los Angeles, California.

Also, the Ford van in which the killers made their getaway was eventually discovered in Houston, Texas. That discovery led to the arrest of Gilbert Jimenez on January 7, 1986 in Houston.

While in the custody of the Houston, Texas police, Jimenez executed a written statement implicating the three Nixons in the murder-for-hire scheme. Subsequently, Joe Ponthieux, former husband of Virginia Tucker, was arrested and indicted along with the three Nixons for capital murder in violation of Miss.Code Ann. Sec. 97-3-19(2)(d), as amended.

John Nixon, Sr.'s case was severed and was tried in a three day trial beginning March 24, 1986. Gilbert Jimenez, who plea-bargained to the charge of conspiracy to commit capital murder, testified at John Nixon, Sr.'s trial, describing the details of the pre-murder preparations and the payments to John Nixon, Sr. and John Nixon, Jr. by Joe Ponthieux.

The jury deliberated only thirty-one minutes before returning a verdict of guilty of capital murder. The penalty phase of the trial was then conducted after which the jury deliberated sixty-seven minutes before returning their decision in an improper form.

The jury was sent back to the jury room with a correcting instruction. Twenty-five minutes later, the jury returned a death penalty verdict, having found: (1) the capital offense was committed for pecuniary gain; (2) the capital offense was especially heinous, atrocious, and cruel; and (3) the defendant had previously been convicted of a felony involving the use and threat of violence to a person.

After John Nixon, Sr.'s motion for new trial was overruled, he perfected this appeal.

II.

Was the impartiality of the venire questioned because of the

number of venire members with ties to law enforcement?

Our criminal justice system is geared toward providing a defendant a fair trial. Among the constitutional guarantees aimed at securing a fair trial is the requirement of Article 3, Section 26, Mississippi Constitution, that a defendant is entitled to a "trial by an impartial jury." Thus the challenge of this assignment of error is whether an impartial jury was provided whose attitudes were uninfluenced with a number of law enforcement connections of the venire members.

When questioned whether they had ties to law enforcement, sixteen members of the remaining sixty member venire responded affirmatively. Of those sixteen, four were struck for cause. Of the remaining twelve, three found their way onto the jury and one became an alternate juror.

The ties the jurors had with law enforcement varied. Juror Hemphill was part owner of an air-conditioner company that worked on highway patrol cars. Juror Jones had a nephew who was a law enforcement officer in Franklin County. Juror Hester was friends with a constable. The alternate, Juror Eaton, had a deceased cousin who was once sheriff of Chickasaw County.

Based on those ties, Nixon contends the jury that tried him "was so improbably replete with associates of law enforcement as to 'adulterate its neutral and impartial decision.' "

As authority, Nixon cites Mhoon v. State, 464 So.2d 77 (Miss.1985), which is factually distinguishable from the instant case. In Mhoon, twelve of thirty-nine potential jurors were either police officers or related by blood or marriage to current or former police officers. Id. at 80. Six of the twelve jurors were chosen for the jury with a uniformed police officer acting as foreman. After exhausting all his peremptory challenges, Mhoon requested the trial judge excuse the law enforcement-related jurors for cause, but that request was rejected. Id.

Referring to the makeup of the Mhoon venire as a "statistical aberration," this Court reversed and remanded for a new sentencing hearing. Id. at 85. Commenting on its line of reasoning, the Court held, "[T]he sheer number of law enforcement-connected persons in the jury pool, as well as persons selected as jurors, has worked a great hardship on Mhoon." Id. at 81.

In the instant case, there is simply no showing of hardship suffered by Nixon. There are only bare assertions. None of the three law enforcement-related jurors had a particularly close tie to law enforcement and none of the three served as jury foreman. In addition, Nixon used only ten of his twelve peremptory challenges and was informed by the trial judge that more peremptory challenges would be considered if needed.

For those reasons, this Court holds this assignment of error is without merit.

III.

Did the trial court err in excusing for cause venireperson

Dorothy Jenkins?

After informing the prospective jurors that the chosen jury would have to be sequestered, the trial judge asked the venire whether sequestration would present a hardship and a burden to each venireperson. Of the jurors who responded affirmatively, Mrs. Dorothy Jenkins stated she had four children at home and her husband was out of town. Mrs. Jenkins' children were ages 13, 15, 17, and 19.

The trial judge excused Mrs. Jenkins because "she had children at home with no one to care for them and could not suffer sequestration without an undue hardship." When asked whether they objected to the excusal of several potential jurors, including Mrs. Jenkins, one of the defense attorneys responded, "We would so state into the record that we feel the court justifiably for cause allowed to be peremptorily excused for cause all the jurors that were excused...."

On appeal, Nixon argues the trial court erred in excusing Mrs. Jenkins. As a general rule "the court, in the exercise of sound discretion, may excuse a juror before he is sworn for any reason personal to such person which would make his service as a juror oppressive, or in fact for any reason which to the judge seems sufficient." 47 Am.Jur. Jury Sec. 121 (1969). See also, Brown v. State, 38 So. 316 (Miss.1905) (Venireperson excused because he desired to be at home when his son left for the Philippine Islands.)

The trial judge was well within his discretion to excuse Mrs. Jenkins. This assignment of error has no merit.

Also, Nixon contends the prosecutor made an improper comment on voir dire concerning Nixon's failure to testify in his own behalf.

During voir dire, the defense attorney, not the prosecutor,...