Peterson v. State, 46085

Decision Date21 December 1970
Docket NumberNo. 46085,46085
Citation242 So.2d 420
PartiesFred PETERSON v. STATE of Mississippi.
CourtMississippi Supreme Court

Harold J. DeMetz, Gulfport, for appellant.

A. F. Summer, Atty. Gen., by Velia Ann Mayer, Sp. Asst. Atty. Gen., Jackson, for appellee.

RODGERS, Justice:

This case came to this Court from the Circuit Court of Stone County, Mississippi, in which the appellant, Fred Peterson, was indicted on a charge of having murdered Henry Lee Bond, a Negro policeman. He was tried, convicted and sentenced to suffer death.

The facts leading up to the tragedy, as told by State witnesses in the main, are as follows.

Katheryn Johnson, a Negro woman, lived with the appellant, Fred Peterson, and they had four children although they were not married-this fact is not material except for the reason later observed. On the afternoon of June 28, 1969, Katheryn Johnson went to the 'Dew Drop Inn' cafe in 'Red Quarters.' The appellant came to the cafe and a short time thereafter asked Katheryn Johnson to go. She told him she was not ready to go; an argument ensued, and Fred Peterson fired a pistol at or near Katheryn Johnson. Whereupon, she left after advising Fred Peterson that she was going to call the city marshal. Her brother and sister went with her and Fred Peterson followed them. He shot by her feet knocking gravel on her legs. Katheryn Johnson and her brother and sister went into the home of Mr. and Mrs. Myers and she hid in the bathroom. The appellant came to the Myers house but he was met at the door by Mrs. Myers who refused to permit him to enter the house. While she was talking to Fred Peterson, Henry Bond, a city policeman, arrived. He was dressed in his policeman's uniform. The policeman asked appellant what was going on, to which appellant replied 'family trouble.' The officer said 'Well, family trouble don't consist of shooting in the streets.' The appellant said 'Who told you-prove it.' Whereupon, the appellant put his pistol against the temple of the officer and told the officer that he had been wanting to kill him. Mr. Myers, who was there, struck the pistol down. The appellant again put the gun to the head of the officer and said 'I am going to count to three and I am going to kill you.' The officer seized the appellant but the appellant succeeded in shooting the officer in his body. The officer then released the appellant and started toward his truck, but the appellant 'snatched his (the officer's) pistol out of his scabbard' and shot him again with the 'big gun' twice. The officer fell near his truck and later died 'on the way to the hospital.' The appellant ran from the scene barefooted. He stopped near the home of Katheryn Johnson's sister and told her that he did not hurt her sister but that he had shot 'Pat.' Pat was the nickname of Henry Bond. The witness observed that the appellant had two pistols.

The appellant testified that on the date in question he went to the 'Dew Drop Inn' to get Katheryn Johnson to go home to see about the children. He admitted that he had been drinking and that he got in an argument with Katheryn. He admitted that he fired his pistol at her side. He did not remember shooting at her in the street. He said that Mrs. Myers let Katheryn Johnson in the house but would not let him enter. He was about to decide to give his gun to Mr. Myers when the policeman arrived. He got into an argument with the policeman about his shooting in the street. He contends that he started to walk off but that the policeman pulled him back and went for his gun. Appellant says that he grabbed his hand. He said that he was afraid of the policeman because the officer had threatened him. He denied that he pulled his gun and put it up to the officer's head. He said that he tussled with the officer over the officer's gun and that the gun went off and he thought he was shot. He denied any tussling at the truck, but he followed the officer to the truck to talk to him and did not know that the officer was shot until he fell. He admitted taking the officer's keys when he left. He said he never took the .22 pistol out of his pocket until he left the scene and that he lost it en route to his mother's place. He admitted passing through Lula McCray's yard (Katheryn Johnson's sister). He later surrendered to the officers and went with them to look for the pistol, but could not find it.

There were other witnesses, but the foregoing are essentially the facts as to how the killing occurred.

The appellant has presented twelve assignments of error which are alleged to have occurred during the trial of the case in the circuit court and for which appellant contends that he is entitled to a new trial. The errors assigned are as follows:

1. The trial court erred in overruling appellant's motion to quash the indictment.

2. The court erred in failing to sustain a motion to change the venue of the trial.

3. The admission of certain exhibits into evidence was prejudicial and was reversible error.

4. The court erred in releasing six prospective jurors who did not believe in capital punishment.

5. The court erred in refusing the appellant a certain jury instruction and in allowing the State another instruction, numbered 2.

6. The court erred in permitting the district attorney to refer to the deceased's war record in his final argument and a statement referring to deceased 'dying like a dog' and defendant shooting deceased down 'like a dog in the streets.'

7. The court erred in accepting the guilty verdict of the jury because it was biased and prejudicial.

8. The court erred in overruling a motion made at the conclusion of the evidence for the State asking the court to exclude the evidence offered by the State and to dismiss the prosecution.

9. The court erred in not granting a new trial.

10. The court erred in permitting the first attorney appointed by the court to withdraw from the trial.

11. The court erred in imposing the death penalty sentence upon defendant.

12. And for other reasons to be shown on the hearing.

The first assignment of error is based upon shop-worth theory that there were not enough Negroes on the Grand Jury because Negroes have not been summoned for jury duty in Stone County, which from past records indicated systematic exclusion of Negroes from jury duty in violation of the equal protection clause of the Fourteenth Amendment to the Federal Constitution. The trial court granted an evidentiary hearing on this motion and it developed that Stone County had a total population of only 7,013 people, of which 1,709 were Negroes and 5,302 were Caucasian.

The appellant complains that he was only allowed to go into the records of the jury list for a period of four years, 1966-67-68-69; that of 542 names, 100 were Negroes on the 1969 jury list and these were wrongfully included because they were of 'good intelligence, reliable and responsible jurymen'; that the Grand Jury in August 1969 contained no Negroes; that the petit jury for 1969 did contain two Negroes. The record shows also that there were 4200 qualified electors in Stone County in 1969 and that the voter registration book did not indicate sex or race and at no time was any effort made to exclude Negroes from the jury. It also appears that at one time few Negroes were registered voters, and until the judge ordered the board of supervisors to include freeholders on the jury list, the board of supervisors had a limited number of qualified Negroes available for jury service. The record further shows that in 1968-1969 the jury list of 350 names contained 18 Negroes. Although there were no Negroes on the 1968 January term of court, two Negroes were included on the first and second weeks' jury list.

The trial judge, after having heard the testimony on the motion, reached the conclusion that 'there was no systematic exclusion of Negroes from the jury list at the time the indictment was returned.' The court pointed out that as more Negroes were qualified by qualifying as electors, more names were added to the jury list. An examination of all the testimony introduced on this motion convinces us that the trial court was correct in its ruling and the motion was properly overruled. See cases collected in Note 1, Black v. State, 187 So.2d 815, 818 (Miss.1966). The facts in the instant case are not similar to the facts that were at issue in Shinall v. State, 187 So.2d 840 (Miss.1966).

Motion to Change Venue

The appellant contends that the motion to change venue of the trial of the charge against the defendant, Fred Peterson, should have been sustained because of 'grudge and ill will toward the defendant in the public mind.' The defendant called 15 witnesses to substantiate his contention and of those testifying, only two witnesses testified that in their opinion the defendant could not get a fair trial in Stone County and one of these was an attorney who had been permitted to withdraw from the appointed defense of defendant. The other witnesses for movant either did not know or stated that they believed the defendant could obtain a fair hearing.

The State introduced as witnesses the sheriff, the circuit clerk and the county prosecuting attorney, all of whom testified that the defendant could get a fair trial in Stone County. The appellant also points out that there were other attorneys in Stone County who could have been appointed to defend the defendant and that the failure to appoint a local attorney indicated that there was considerable local prejudice against the defendant. We are not able to reach the conclusion or form the inference from the record indicated by the appellant because all trial judges in serious murder cases usually appoint persons they feel are capable criminal lawyers and seldom appoint civil lawyers. Moreover, the record shows that the mother of the defendant did not feel that one local lawyer could or would adequately represent her son.

A careful consideration of the foregoing evidence and the answers given by...

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