Porter v. State

• Decision Date: 01 April 1993
• Docket Number: No. 90-KA-949,90-KA-949
• Citation: 616 So.2d 899
• Parties: Debbie Denise PORTER v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 899

616 So.2d 899

Debbie Denise PORTER v. STATE of Mississippi.

No. 90-KA-949.

Supreme Court of Mississippi.

April 1, 1993.

Charles D. Easley, Jr., Columbus, for appellant.

Michael C. Moore, Atty. Gen., Pat S. Flynn, Asst. Atty. Gen., Jackson, for appellee.

Before HAWKINS, C.J., and SULLIVAN and McRAE, JJ.

SULLIVAN, Justice, for the Court:

Debbie Denise Porter was indicted by the Lowndes County grand jury in its 1990 vacation term with "unlawfully, wilfully & feloniously, purposely and knowingly causing bodily injury to her unnamed infant child by a means likely to produce death or serious bodily injury, to-wit: by placing the child inside a garbage sack and depositing her outside in the elements; causing bodily injury to said infant...." Porter was convicted on aggravated assault charges and was sentenced to ten (10) years in the custody of the Mississippi Department of Corrections. Porter appeals to this Court and assigns the following errors:

1. Whether the trial court erred in failing to grant Defendant's motion for a change of venue;

2. Whether the trial court erred in failing to grant Defendant's challenges for cause for all members of the venire who had knowledge of the case;

3. Whether the trial court erred in failing to sustain Defendant's Batson challenge;

4. Whether the trial court erred in failing to grant Defendant's motion to quash the panel because of the circuit clerk's improper remarks to the venire before voir dire;

5. Whether the trial court erred in failing to grant Defendant's motion to suppress un-Mirandized statements made by Defendant to police;

6. Whether the trial court erred in failing to grant Defendant's motion for a directed verdict;

7. Whether the trial court erred in failing to grant Defendant's requested lesser included offense jury instruction; and

8. Whether the trial court erred in failing to grant Defendant a circumstantial evidence instruction.

During the voir dire of this case the Circuit Judge inquired whether any members of the venire had seen or heard about this case through the media, and nineteen (19) responded in the affirmative. After further questioning, eighteen (18) venire members stated unequivocally that media reports had not caused them to prejudge Porter and that they could base their verdict solely on the evidence presented at trial and the instructions received from the judge. Joyce Linton, the remaining member of the venire, did not answer whether she could base her verdict solely on the evidence presented at trial and the instructions given by the judge. She went on to express some personal opinions which she felt should disqualify her from service. Ms. Linton was subsequently removed for cause.

When questioned by counsel for Porter, thirteen (13) of the nineteen (19) venire members said they were upset by the reports they had seen. Of the six other venire members who previously admitted hearing about the case through the media, one (1) did not respond, one (1) said he was "not really" upset, two (2) were "shocked", one (1) said the reports "bothered" him, and one (1) said she was now indifferent as the reports had been a while back. Two (2) members of the venire who had not previously stated they heard or saw media reports of the case now admitted that they had and were indeed upset by these reports. Another two (2) veniremen said they were upset upon hearing about the case from friends. These four (4) veniremen had also indicated that they presumed Porter innocent, that they would base their verdict solely on evidence presented at trial, and they would follow instructions of law given by the judge.

Before any challenges were made, Porter moved for a change of venue because of the number of veniremen who said they were upset about the case after learning of it via the media. Porter argued that if they were upset by the facts they had already formed an opinion on the case. In the alternative, Porter requested the panel be quashed because of the number of veniremen upset by the facts and because of the opinions of Ms. Linton, which had been voiced before the whole panel. Porter also contended that the panel had been prejudiced by a remark made by the clerk that the veniremen could be excused for age if over sixty-five (65), but that their help was needed. This motion was overruled.

Porter then unsuccessfully moved to strike for cause twenty (20) members of the panel who said they were bothered, shocked, or upset by reports of the case from friends or media, including one potential juror who stated she was now indifferent. In overruling these challenges for cause the judge noted that these venire members had indicated that they would base their verdict solely on the evidence produced at trial and the instructions given by the court.

Of the twenty (20) potential jurors Porter had attempted to strike for cause because they were upset by the facts of the case, two (2) were successfully challenged for cause with different reasons provided by Porter. Following the peremptory challenges, the "upset" group of veniremen had been reduced to thirteen (13); two (2) were stricken by the State and three (3) by Porter.

In the midst of these peremptory challenges, Porter lodged a Batson objection. Of the prosecutor's six (6) peremptory challenges, four (4) were to members of the Black race. The racially neutral reasons given for striking these potential jurors were: two (2) veniremen, apparently of an age to be employed, had no occupation; one (1) venire member knew Porter's family and several of her witnesses; the one (1) remaining target of the prosecutor's peremptory challenges, to which Porter objected, knew Porter. Porter argued that the State had accepted three White veniremen who were unemployed. (Two were homemakers and the third was retired.) The State responded that the retired venireman was of retirement age and that homemaking was a valid occupation. The Batson motion was overruled.

The jury finally accepted consisted of five (5) members of the "upset" group, one (1) of whom was Black while the other four (4) were White, one (1) additional Black juror, and six (6) other White jurors. The alternate was also White.

The first witness for the prosecution was Bennie Billups, the paramour of Porter's next-door neighbor, Lisa Richardson. Billups was at Richardson's house the evening of November 8, 1989, until the early morning of November 9, 1989. While inside Richardson's house, with all doors and windows closed, Billups heard a sound like a cat or a baby but did not investigate. When preparing to leave Richardson's home via the back door, Billups still heard the crying sound and saw a Black female in Porter's back yard. She was bending over a garbage bag but Billups could not tell what she was doing with it. To avoid detection Billups went back into the house and left through the front door. He testified that he continued to hear the crying noise when he was a block away from the Porter/Richardson duplex. On cross-examination Billups was adamant about having heard the crying before and after leaving Richardson's home, although in a statement given to police the day after the incident he had only mentioned hearing the crying sound upon leaving the house.

Lisa Richardson corroborated Billups' testimony as she too said they heard the sound of a baby crying while inside her house before Billups left. Richardson also testified that the crying was continuous for some period of time after Billups left and was loud enough to keep her awake for a while. At seven o' clock the following morning, Richardson went outside to hang some clothes and still heard the crying, but at this point it had gotten much weaker. She saw only a garbage bag in Porter's back yard and assumed the crying was coming from the bag. Richardson went to the Porter house and told Mattie Porter, mother of the appellant, that she had heard a baby crying all night and that she thought there was a baby in the garbage bag in her (Mattie's) back yard. Richardson testified that on the way to speak to Mattie she saw blood on the Porters' back porch. Mattie Porter got a broom with which she probed the garbage bag, then she and Richardson decided to call 911 and let the police handle the matter.

Shell Richardson, who lived across the street from the Porters, testified that she was visiting at the Porter house when Lisa Richardson came to tell Mattie about the baby. When Mattie Porter left her backyard to call 911, the baby stopped crying so Shell tore open the garbage bag, and in the process a plastic Kroger bag which had been placed over the baby's head, "so the baby [could] get some air." Shell reported that she had seen Debbie Porter go in and out of the living room of the Porter house over the course of the morning.

Officer Carroll Culpepper, of the Columbus Police Department, testified that he had responded to the call about an abandoned baby on the morning of November 9, 1989. He found a newborn baby girl inside a garbage bag which had been torn open. The child was crying very lightly, her breathing was very weak, and her skin was cold and clammy with a considerable amount of dried afterbirth fluid on it. Officer Taylor, another policeman on the scene, decided they should not wait for an ambulance but should transport the baby to the hospital themselves. Once inside the patrol car the baby stopped breathing and Culpepper commenced rescue breathing. When the infant did not respond he checked for an airway obstruction. Finding none, he performed rescue breathing a second time and the baby responded with one breath but then stopped breathing again. Culpepper checked for vital signs, found none, and started CPR. After approximately two minutes the baby responded and was breathing on her own when they reached the hospital.

Billy Speed, an investigator with the Columbus Police Department, also testified that during the course of his investigation of this case on the morning...