Northup v. State

• Decision Date: 06 September 2001
• Docket Number: No. 1999-KA-00078-SCT.,1999-KA-00078-SCT.
• Citation: 793 So.2d 618
• Parties: Michael NORTHUP a/k/a Michael A. Northup v. STATE of Mississippi.
• Court: Mississippi Supreme Court

793 So.2d 618

Michael NORTHUP a/k/a Michael A. Northup v. STATE of Mississippi.

No. 1999-KA-00078-SCT.

Supreme Court of Mississippi.

September 6, 2001.

Paul McGerald Luckett, McComb, for Appellant.

Office of the Attorney General by Dewitt T. Allred, III, for Appellee.

Before McRAE, P.J., DIAZ and EASLEY, JJ.

McRAE, Presiding Justice, for the Court:

¶ 1. Michael Northup ("Northup") was indicted by a Pike County grand jury on June 13, 1997, for the July 28, 1996,¹ murder of Odon Loper. A jury found Northup guilty of capital murder, and on March 27, 1998, the trial court sentenced Northup to a life sentence without parole. After a year's delay, Circuit Court Judge Keith Starrett allowed an out-of-time appeal in which Northup raises these four issues: 1) whether Northup was unduly prejudiced and received an unfair trial when the trial court allowed the State's expert witness to remain in the courtroom during a witness's testimony; 2) whether Northup's constitutional rights were violated when the State lost exculpatory evidence and/or whether Northup received a fair trial due to the loss of this exculpatory evidence; 3) whether the jury's verdict was against the overwhelming weight of the evidence; and 4) whether Northup was prejudiced and therefore received an unfair trial when the trial court abused its discretion in admitting a photograph into evidence.² Finding no error, we affirm the trial court.

FACTS

¶ 2. Seventy-five-year-old Odon Loper (Loper), a retired barber, lived alone in a small house in McComb, Mississippi. His health was deteriorating, and he required the use of oxygen to breathe. Loper had no family, but he had friends whom he treated like family, including two of Northup's co-defendants, Diane Bryant ("Diane") and Chastity Pettrus (Chastity), Diane's first cousin.

¶ 3. Diane was married to James Bryant ("James") and was living in Bay St. Louis in 1996. While James worked offshore, Diane had an affair with Northup. In the summer of 1996, fifteen-year-old Chastity and her then boyfriend, nineteen-year-old Donnie Pettrus ("Donnie"), came to live with Diane.³

¶ 4. Loper often provided money to his friends, and both Chastity and Diane testified that Loper had often given them money and gifts. Diane stated that her relationship with Loper was like that of a granddaughter and that he bought her first vehicle for her and paid the down payment on her house. The two also testified that in the time prior to Loper's death, their relationships with Loper had deteriorated. Loper disapproved of Chastity and Diane dating people with racial backgrounds different from their own.

¶ 5. In July 1996, Diane, Chastity, Donnie, and Northup were in Diane's trailer drinking alcohol, and some were smoking crack cocaine. Diane had no money to purchase drugs, and she and the other three present began discussing killing Loper. After some discussion, Donnie and Northup agreed to rob and kill Loper.

¶ 6. On July 28, 1996, the four left Bay St. Louis and drove to McComb. Using two knives they brought from Northup's house, Donnie and Northup stabbed Loper, who had been in bed asleep, fifteen times and cut his throat. The two rummaged through the house but were only able to find twenty dollars.

¶ 7. A few months after Loper's death, Diane inherited approximately $37,000 to $40,000 from Loper. The murder of Loper remained unsolved.

¶ 8. In January 1998, police arrested James Stevens for some burglaries he had committed with Donnie, and he implicated Donnie in the Loper murder. When Donnie was confronted, he confessed and told police that both Northup and Diane were involved. Donnie pled guilty and was sentenced to life in prison. Diane also confessed, pled guilty and was sentenced to life in prison. Chastity pled guilty to accessory after the fact of capital murder and was sentenced to the RID program.

¶ 9. When Northup was arrested, a search of his trailer revealed a note, which was entitled "pepel to kill" and listed several names including James Bryant (Diane's husband) and Lori Blaylock, Chastity's step-mother. Diane, Chastity, and Donnie testified against Northup at trial.

DISCUSSION

I. WHETHER NORTHUP WAS UNDULY PREJUDICED AND RECEIVED AN UNFAIR TRIAL WHEN THE TRIAL COURT ALLOWED THE STATE'S EXPERT WITNESS TO REMAIN IN THE COURTROOM DURING A WITNESS'S TESTIMONY.

¶ 10. Northup invoked M.R.E. 615, the rule of sequestration, at the beginning of the trial. Prior to the State calling Donnie to the stand, it requested that pathologist, Dr. Steven Hayne ("Hayne"), be permitted to stay in the courtroom during Donnie's testimony. Northup objected, stating that Hayne's presence had not been shown to be essential, therefore it did not meet one of the exceptions to the rule. M.R.E. 615 allows a party to request the court to order witnesses excluded from the courtroom so that they may not hear the testimony of other witnesses.

¶ 11. The State argues that an expert may listen to other witnesses' testimony pursuant to M.R.E. 702 and 703, notwithstanding Rule 615. Rule 703, which allows an expert to base his testimony on facts made known to him "at or before the hearing," implies experts are not necessarily excluded from the courtroom via the rule of sequestration. There are two sources upon which an expert may base his opinion: "1) where the expert bases his opinion on personal observation and 2) where he bases it either on a hypothetical question presented to him at trial or on the trial testimony of others which the expert has heard while sitting in the courtroom." See M.R.E. 703 cmt. Collins v. State, 361 So.2d 333, 334 (Miss.1978), also recognizes that an expert witness may be allowed to remain in the courtroom during the testimony of others. Id. (citing Providence Washington Ins. Co. v. Weaver, 242 Miss. 141, 152, 133 So.2d 635, 639-40 (1961)).

¶ 12. Indeed, in Hickox ex rel. Hickox v. Holleman, 502 So.2d 626, 638 (Miss. 1987), this Court expressed a preference for the approved practice of having an expert base his opinion on testimony and evidence:

We observe further, for purposes of the trial on remand, that the hypothetical question is by no means the only vehicle providing a legally sufficient foundation for an expert's opinion. See Rule 703, Mississippi Rules of Evidence and comment thereto. Where feasible other means, such as having the expert witness sit in the courtroom and hear the testimony of foundation witnesses, are often superior to the hypothetical question.

See also McGilberry v. State, 741 So.2d 894, 918 (Miss.1999)

; Gray v. State, 728 So.2d 36, 56 (Miss.1998).

¶ 13. The State argued that allowing Hayne to remain in the courtroom would be efficient in that it would eliminate proposing lengthy hypothetical questions to Hayne and lengthy repetition of the facts. The trial judge ruled that Hayne would be allowed to hear Donnie's testimony, as he stated, "[T]hat's the main reason for the witness remaining in the Courtroom, is to hear the predicate that you normally lay by use of a hypothetical question."

¶ 14. The trial judge allowed Hayne to testify as to the nature and cause of death and to the type of instrument used to kill Loper, but not as to the identification of the specific instrument used in the murder, since Donnie described the knives used in the murder during his testimony. The trial court did not err and is affirmed as to this issue.

II. WHETHER NORTHUP'S CONSTITUTIONAL RIGHTS WERE VIOLATED WHEN THE STATE LOST EXCULPATORY EVIDENCE AND/OR WHETHER NORTHUP RECEIVED A FAIR TRIAL DUE TO THE LOSS OF THIS EXCULPATORY EVIDENCE.

¶ 15. During the course of the trial, defense counsel stated that the State had made a tape recording of a conversation between Diane and Donnie at the Pike County Jail, some time in 1997, and that this conversation significantly impeached Donnie's trial testimony, making the tape exculpatory evidence. Neither the trial judge nor the State was aware that this tape existed prior to the reference made to it by the defense at trial. Assistant District Attorney Danny Smith ("Smith") addressed this issue to the trial judge outside the presence of the jury and stated that while he remembered the meeting, he did not remember tape-recording the meeting. Smith recalled that he was present along with Assistant District Attorney William Goodwin ("Goodwin"), and two of the three members of the defense, the Honorable Emma Simpson Vaughn and the Honorable Willard Brown. Neither Smith nor Goodwin remembered tape-recording the meeting, and the State could not produce the tape as it could not be found. The State asserts that even if this tape was made, the statements between Donnie and Diane were of no consequence, as they did not differ significantly from statements they had already made. Smith stated that he did not ask questions of Diane or Donnie at this meeting.

¶ 16. Northup asserts that during this interview, Donnie stated that he could not describe the knives used during the murder. However, at trial, Donnie was able to describe both knives used, and he was even able to render a drawing of the knives for the jury. For this reason, Northup argued that the tape was exculpatory evidence and that Northup was severely prejudiced by the State's losing it. Northup asserts that this impeachment testimony could not be found elsewhere, and he was prejudiced when it was not produced. In addition, Northup asserts that Donnie's trial testimony influenced Hayne's testimony. The State has the duty to preserve evidence, but that duty is limited to that evidence which "might be expected to play a significant role in the suspect's defense." Tolbert v. State, 511 So.2d 1368, 1372 (Miss.1987) (quoting California v. Trombetta, 467 U.S. 479, 488, 104 S.Ct. 2528, 2534, 81 L.Ed.2d 413, 422 (1984)).

¶ 17. When the defendant claims he is entitled to a new trial based on the prosecution's having lost or destroyed evidence, this Court employs a two-part test. First, it must be determined...