Randall v. State, No. 1999-DP-01426-SCT.

• Citation: 806 So.2d 185
• Decision Date: 27 September 2001
• Docket Number: No. 1999-DP-01426-SCT.
• Parties: Armon Andre RANDALL a/k/a Armon Randall v. STATE of Mississippi.
• Court: United States State Supreme Court of Mississippi

806 So.2d 185

Armon Andre RANDALL a/k/a Armon Randall v. STATE of Mississippi.

No. 1999-DP-01426-SCT.

Supreme Court of Mississippi.

September 27, 2001.

Rehearing Denied January 24, 2002.

Michael W. Crosby, Gulfport, John G. Hutchinson, John J. Kuster, New York, NY, Attorneys for Appellant.

Office of the Attorney General by Judy T. Martin, Attorney for Appellee.

EN BANC.

MILLS, J., for the Court:

¶ 1. On May 28, 1997, Armon Andre Randall was indicted in the Second Judicial District of Harrison County for the capital murder of Eugene Daniels. The indictment also charged four other individuals: Nomdray Stokes, Harry Thomas, Tony Williams, and Veronica Johnson.

¶ 2. At the conclusion of Randall's trial, which was severed from his co-defendants, the jury returned a guilty verdict. The jury additionally found that Daniels's murder occurred during the commission of a robbery and that Randall had previously been convicted of another capital offense or of a felony involving the use or threat of violence to a person sufficient to impose the death penalty, and thereafter, sentenced Randall to death. Randall's motion for JNOV or a new trial was denied. Aggrieved, Randall has perfected his appeal. He assigns the following points as error:

ISSUES

PART ONE

(GUILT/INNOCENCE PHASE)

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ADMITTING TESTIMONY AND ALLOWING ARGUMENT ABOUT ANOTHER JURY'S CAPITAL MURDER CONVICTION OF RANDALL'S CO INDICTEE, NOMDRAY STOKES, IN CONNECTION WITH EUGENE DANIELS'S DEATH

II. THE TRIAL COURT DEPRIVED RANDALL OF THE OPPORTUNITY TO DEFEND HIMSELF BY EXCLUDING CRITICAL EXCULPATORY EVIDENCE.

III. THE PROSECUTION ENGAGED IN MISCONDUCT DURING THE GUILT/INNOCENCE PHASE OF THE TRIAL THAT REQUIRES REVERSAL

IV. THE COURT COMMITTED REVERSIBLE ERROR BY DENYING RANDALL'S MOTION FOR A DIRECTED VERDICT AND NEW TRIAL

V. THE STATE'S FAILURE TO COMMENCE RANDALL'S TRIAL UNTIL FIVE YEARS AFTER

THE ALLEGED CRIME DEPRIVED HIM OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW

VI. RANDALL HAS BEEN DENIED HIS RIGHT TO A MEANINGFUL APPEAL

VII. THE ERRORS TAKEN TOGETHER ARE CAUSE FOR A REVERSAL

PART TWO

(SENTENCING PHASE)

I. THE TRIAL COURT'S FAILURE TO EXCLUDE EVIDENCE OF GANG MEMBERSHIP FROM THE PEN PACK CONSTITUTES CONSTITUTIONAL ERROR, REQUIRING REVERSAL OF RANDALL'S DEATH SENTENCE

II. THE PROSECUTORIAL MISCONDUCT WHICH OCCURRED DURING THE SENTENCING PHASE OF THE TRIAL REQUIRES THAT RANDALL'S DEATH SENTENCE BE VACATED

III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ALLOWING THE PROSECUTION TO PRESENT THE UNDERLYING DETAILS OF RANDALL'S PRIOR FELONY CONVICTION WHERE SUCH EVIDENCE WAS NOT NECESSARY TO ESTABLISH THE EXISTENCE OF ANY STATUTORY AGGRAVATING FACTORS

IV. THE DEATH SENTENCE IS A DISPROPORTIONATE PENALTY GIVEN THE FACTS AND CIRCUMSTANCES OF THIS CASE AND IS NOT SUPPORTED BY THE JURY'S FINDINGS

V. THE ERRORS TAKEN TOGETHER ARE CAUSE FOR REVERSAL

FACTS

¶ 3. On October 28, 1993, Eugene Daniels and his fiancee, Linda Cowart, were in the Biloxi, Mississippi, apartment the two shared. Sometime around 10:00 p.m. Cowart left the apartment to get chicken wings at a nearby Kentucky Fried Chicken. She returned to the apartment around 20 minutes later. She found the apartment door unlocked. When she entered, the apartment appeared to be in disarray. She then went to the apartment of an upstairs neighbor, Bruce Johnson, who was a police officer. Although Johnson said he and his wife were at home all night, Cowart said that when she knocked on the door, there was no answer. She next went to a convenience store and placed two calls, one of which was to a good friend, France Brinkley. Cowart asked Brinkley to come to the apartment. Upon his arrival, Brinkley and Cowart entered the apartment. Brinkley discovered the body of Eugene Daniels. Cowart returned to Johnson's apartment, for what she asserted, was the second time. This time, Johnson answered the door. Johnson returned to Daniels's apartment with Cowart and called 911 for emergency assistance after he saw Daniels's body.

¶ 4. Harry Thomas, Tony Williams, Nomdray Stokes, Armon Randall and Veronica Johnson were indicted for Daniels's death. Johnson, Williams, and Thomas all entered into plea agreements with the State. In exchange for reduced charges, the three defendants agreed to testify at the trials of Nomdray Stokes and Armon Randall. Stokes was convicted of capital murder on September 16, 1998. The jury was unable to reach a unanimous decision in the sentencing phase of his trial, and the trial judge sentenced him to life without the possibility of parole. Randall was convicted for the capital murder of Daniels on November 20, 1998. Randall's jury reached a unanimous verdict and imposed the penalty of death.

DISCUSSION

STANDARD OF REVIEW

¶ 5. "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." Flowers v. State, 773 So.2d 309, 317 (Miss.2000)(citing Porter v. State, 732 So.2d 899, 902 (Miss.1999))(citing 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. See also King v. State, 784 So.2d 884, 886 (Miss.2001)

.

PART ONE

(THE GUILT/INNOCENCE PHASE)

I. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ADMITTING TESTIMONY AND ALLOWING ARGUMENT ABOUT ANOTHER JURY'S CAPITAL MURDER CONVICTION OF MR. RANDALL'S CO INDICTEE, NOMDRAY STOKES, IN CONNECTION WITH EUGENE DANIELS'S DEATH.

¶ 6. Randall asserts the trial court committed reversible error by allowing the prosecution to repeatedly inform the jury that his co-indictee, Nomdray Stokes, was convicted by a separate jury on the same capital murder charge. We agree. "The law is well settled in this state that where two or more persons are jointly indicted for the same offense but are separately tried, a judgment of conviction against one of them is not competent evidence on the trial of the other because such plea of guilty or conviction is no evidence of the guilt of the party being tried." McCray v. State, 293 So.2d 807, 808 (Miss.1974) (citing State v. Thornhill, 251 Miss. 718, 171 So.2d 308 (1965); Pieper v. State, 242 Miss. 49, 134 So.2d 157 (1961); Pickens v. State, 129 Miss. 191, 91 So. 906 (1922)). We have held that placing this information before a jury denies a defendant the fundamental right to a fair trial, and rises to the level of reversible error. See Buckley v. State, 223 So.2d 524 (Miss.1969)

; McCray v. State, 293 So.2d 807 (Miss. 1974); Henderson v. State, 403 So.2d 139 (Miss.1981); Johns v. State, 592 So.2d 86 (Miss.1991). We have stated the reasoning behind this rule as follows:

[once a jury is apprized of the fact that a co-defendant has been tried and convicted for the same charge for which the defendant is now on trial, the jury's] ability to objectively reach a fair verdict on the merits of the competent evidence before it [is] necessarily impaired. The jury [is then] placed in the untenable position of pitting its prospective verdict against a guilty verdict previously entered by another jury carrying with it the court's approval by way of the judgment and sentence.

McCray, 293 So.2d at 809.

¶ 7. The language that Randall complains of was spoken by Harry Thomas, one of Randall's co-defendants, during redirect examination. It reads as follows:

Q. And as it was characterized during cross-examination, Mr. Stokes, when the State tried to convict Nomdray Stokes, when that was asked of you three times, you did appear and testify against him, didn't you?

A. Yes, sir.

Q. Did you testify as to the same thing you said today?

A. To the best of my knowledge, yes, sir.

Q. And was Nomdray Stokes convicted of being present, participating in capital murder?

A. Yes, sir.

MR. SIMPSON: That's all.

(emphasis added). Randall asserts that further injustice was done by the following statements made by the prosecution during closing arguments:

BY MR. SIMPSON:

It gets worse than that. Veronica Johnson, Tony Williams, and Harry Thomas, who all stood up here with their lawyers on the eve of trial and admitted their guilt and were going to the penitentiary, and then Nomdray Stokes, who took his chances with 12 citizens like yourself and was found guilty of capital murder, this grand conspiracy that we all contrive got those people to do that.

* * *

And then, but today, the defense said, it is our theory of the case that none of... these people had a thing to do with this. Not Veronica, Tony Williams, Harry Thomas, Nomdray Stokes or the defendant, Armon Randall. Three of them just decided to take the blame, and the other one has been convicted for his participation, for being present and participating in an armed robbery and murder of Eugene Daniels.

We came up here and told you in the beginning we are not going to be able to answer every question you have, but from the evidence you will be convinced, and I suspect are at this point, must be, beyond any reasonable doubt that there are, in fact, the five people. And Armon Randall is the last of the five people to be accountable for his actions.

¶ 8. The State acknowledges that the jury was informed that Nomdray Stokes was convicted on the same capital murder charge for which Randall was on trial, and that normally this would be error as a matter of law. However, it responds first by asserting that counsel for Randall made no objection, and consequently waived this issue for appeal, and secondly, that comments made by Randall's attorney opened the door for the testimony.

A.

¶ 9. First, the issue of waiver: "It is incumbent on defense counsel to raise a proper objection when the offensive language is uttered or waive appellate review of the issue. This rule provides the trial court...