Porter v. State, 96-DP-01324-SCT.
| Decision Date | 14 January 1999 |
| Docket Number | No. 96-DP-01324-SCT.,96-DP-01324-SCT. |
| Citation | 732 So.2d 899 |
| Parties | Danny PORTER v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
William L. Ducker, Purvis, Attorney for Appellant.
Office of the Attorney General by Leslie S. Lee, Attorneys for Appellee.
EN BANC.
I. INTRODUCTION
¶ 1. This case arises from the October 30, 1993, murders of Bennie Brown, Sr., and Natasha Cole. It is alleged that Danny Porter (a.k.a. Danny Soul) and his roommate, Carlos Stewart, were hired by Herman Saunders (a.k.a. Robert "Tricky Mickey" Marsh) to kill Brown. It is further alleged, that, immediately after Brown's murder, Stewart returned to the scene alone and killed Cole, because she had recognized him. Porter was acquitted of Cole's murder, and this appeal involves only Count II of the indictment, the capital murder of Brown.
¶ 2. This Court finds that Porter's Sixth Amendment right to counsel was violated by a police-initiated interrogation, which resulted in Porter's confession, and which occurred two days after Porter asserted his right to counsel at an initial appearance. For this reason, the confession, made without the benefit of counsel, should have been suppressed. Therefore, this case is reversed and remanded to the trial court for proceedings consistent with this opinion.
¶ 3. In addition, two other issues are addressed to provide guidance on remand: (1) the granting of a sentencing instruction on the statutory aggravator "that the defendant knowingly created a great risk to many persons", and, (2) the communications from the Attorney General's Office made during the sentencing phase of the trial.
¶ 4. This Court's consideration of the instruction on the aggravating circumstance of knowingly creating a risk to many persons is procedurally barred, because no contemporaneous objection was raised. Nonetheless, should similar evidence be introduced on remand, the instruction should not be given. That is, the evidence presented was insufficient to support such an instruction.
¶ 5. Furthermore, the input of the Attorney General's Office during the sentencing phase of this trial warrants a discussion on the propriety of such communications. The exact circumstances of the communication from the Attorney General's Office are unclear from the record. This Court recognizes that the Attorney General's Office is an important resource for prosecutors throughout this State. However, if any party is allowed to make arguments before a trial judge on behalf of the prosecution, the arguments must be made in the presence and hearing of defense counsel. Moreover, defense counsel must be given an opportunity to respond. The proscription against ex parte communications is a fundamental tenet of our judicial system. Ex parte communications from the Attorney General's Office, or any other source, are unacceptable, and are to be avoided.
¶ 6. Thus, this case is reversed and remanded for proceedings consistent with this opinion. The other issues raised by Porter are procedurally barred, without merit, and/or moot, and will not be addressed.
II. STATEMENT OF THE CASE
¶ 7. On February 25, 1994, Danny Porter was indicted as an habitual offender for Count I, conspiracy to commit capital murder. However, this charge was later dismissed. Porter was also indicted as an habitual offender for Count II, the capital murder of Bennie Brown, Sr., and, Count III, the capital murder of Natasha D. Cole, under Miss.Code Ann. § 97-3-19(2)(d), which defines murder for hire as capital murder.
¶ 8. On August 14, 1996, the jury convicted Porter of the capital murder of Bennie Brown, Sr., and acquitted Porter of the capital murder of Natasha Cole. The sentencing phase of the trial began, and, on August 15, 1996, the jury rendered its verdict—that Porter should suffer death for the capital murder of Brown.
¶ 9. On November 19, 1996, the trial judge denied Porter's motion for judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. Porter appeals, in forma pauperis, and raises the following issues for consideration by this Court:
PRE-TRIAL ISSUES
A. Whether the trial court erred in overruling the appellant's motion to quash and allowing the State to make a substantive amendment to the indictment?
B. Whether the trial court erred in overruling the appellant's motion to suppress the statement taken by Lieutenant Sammy Pickens?
C. Whether the trial court erred in overruling the appellant's motion for appointment of an independent psychologist?
D. Whether the trial court erred in overruling the appellant's motion to quash the jury panel after the court allowed open discussion between the State's attorney and potential jurors concerning their feelings on the death penalty?
E. Whether the trial court erred in admitting the videotape from the security camera installed in Junior Food mart, Exhibit # 14?
F. Whether the prosecutor engaged in misconduct during closing arguments?
G. Whether the trial court erred in admitting the criminal record of Herman Saunders into evidence? H. Whether the trial court erred in allowing Dr. Chris Lott's rebuttal testimony?
I. Whether the trial court committed reversible error by incorrectly explaining to the appellant his right of elocution?
J. Whether the trial court erred in submitting to the jury the aggravating circumstance instruction that the appellant knowingly created a great risk to many persons?
K. Whether the trial court erred in refusing appellant's proposed Instruction D-3?
L. Whether the trial court erred in refusing appellant's proposed Instruction D-8?
M. Whether the trial court erred in refusing appellant's proposed Instruction D-11?
N. Whether the trial court erred in refusing appellant's proposed Instruction D-12?
O. Whether the trial court erred in refusing appellant's proposed Instruction D-13?
P. Whether the prosecution in this case engaged in misconduct that requires reversal?
Q. Whether the trial court erred in refusing to investigate alleged jury improprieties and in relying on the Attorney General's office to determine procedure?
R. Whether the trial court erred in failing to declare the death penalty statute unconstitutional and disproportionately applied?
¶ 10. As stated earlier, Issue B is dispositive of this case, and only Issues B, J, and Q will be addressed.
III. STATEMENT OF THE FACTS
¶ 11. The following facts are alleged in this case. Danny Porter and Carlos Stewart went to Brown's home on the morning of October 30, 1993. Stewart rang the doorbell, and Porter hid beside the door. One of Stewart's schoolmates, Natasha Cole, answered the door, and Stewart asked for Brown. When Brown came to the door, Porter shot him in the jaw, which caused Brown to eventually drown in his own blood. Stewart and Porter ran to their vehicle. Stewart returned to the house with the gun, and killed Cole, because she had recognized him. Saunders later paid Stewart and Porter $6,000 for killing Brown. Two weeks after the murders, Stewart and Porter were apprehended in Atlanta.
IV. LEGAL ANALYSIS
¶ 12. This Court's well established standard for reviewing an appeal from a capital murder conviction and a death sentence is one of "heightened scrutiny", under which all bona fide doubts are resolved in favor of the accused. Balfour v. State, 598 So.2d 731, 739 (Miss.1992) (quoting Williamson v. State, 512 So.2d 868, 872 (Miss.1987)). This Court recognizes that "what may be harmless error in a case with less at stake becomes reversible error when the penalty is death." Id.
Whether the trial court erred in overruling the appellant's motion to suppress the statement taken by Lieutenant Sammy Pickens?
¶ 13. Porter claims that he invoked his right to counsel at a November 16, 1993, initial appearance. As a result, Porter argues that his November 18, 1993, police-initiated statement to Lieutenant Sammy Pickens, made without counsel, should have been suppressed. Porter raises this argument for the first time on appeal. However, under the plain error doctrine, and, on the record as presented on appeal, this Court must reverse—despite the fact that the trial court did not have the benefit of reviewing this precise issue.
¶ 14. The record reflects that Porter gave three statements to the police. The first two statements were made November 13 and 15, 1993, and were given to the Hattiesburg police officers who retrieved Porter and Stewart from the Atlanta authorities. Porter was extremely frightened in the Fulton County Jail, and was anxious to be returned to Mississippi. In both statements, Porter admitted that he knew of Saunders' plan to have someone killed, and that he recommended Stewart for the job. However, Porter denied actually participating in the murder.
¶ 15. After being returned to Mississippi, Porter gave a third statement on November 18, 1993, to Lieutenant Sammy Pickens of the Mississippi Highway Patrol. In that statement, Porter confessed to shooting Brown. Prior to trial, Porter moved for the suppression of that confession.
¶ 16. A suppression hearing was held, and Criminal Investigator Sammy Pickens, a veteran member of the Mississippi Highway Patrol, testified that the Hattiesburg Police Department asked him to interview Porter. Stewart had already confessed. The Hattiesburg officers wanted a fresh perspective from an experienced officer, because they thought that Porter was lying. Pickens testified as to the circumstances of the November 18, 1993, interview, which resulted in Porter's confession. Pickens believed that Porter made the statement freely and voluntarily.
¶ 17. After Pickens' testimony at the pre-trial hearing, defense counsel argued that the initial appearance was inappropriately delayed until November 19, 1993, or the day after Porter's confession. The trial judge found that, given the fact that Porter had to be returned to Mississippi...
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