Ratliff v. State

• Court: Mississippi Supreme Court
• Writing for the Court: ROBERTSON; ROY NOBLE LEE
• Citation: Ratliff v. State, 515 So.2d 877 (Miss. 1987)
• Decision Date: 04 November 1987
• Docket Number: No. 57257,57257
• Parties: Danny Clay RATLIFF v. STATE of Mississippi

Page 877

515 So.2d 877

Danny Clay RATLIFF v. STATE of Mississippi

No. 57257.

Supreme Court of Mississippi.

Nov. 4, 1987.

Roger F. Wicker, Sparks, Wicker & Colburn, Tupelo, for appellant.

Edwin Lloyd Pittman, Atty. Gen. by DeWitt Allred, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before DAN M. LEE, P.J., and ROBERTSON and ANDERSON, JJ.

ROBERTSON, Justice, for the Court:

I.

On December 11, 1983, Thomas Mallory was dumped out in the middle of the road, a bullet in his head, his truck fleeing the scene, his personal belongings missing, but yet alive. Danny Clay Ratliff was subsequently arrested, indicted and convicted of armed robbery, following which he was sentenced to thirty-three years imprisonment.

Ratliff now appeals. The evidence against him, though circumstantial, is quite convincing. We find no error and affirm, though adding ex cathedra an admonition regarding the sheriff's failure to summon fully the jurors listed on the special venire.

II.

At some time after 8:00 p.m. on December 11, 1983, Clarence Hardy and his wife were driving down Southern Heights Road in Lee County, Mississippi, when they met a vehicle which had its bright lights on. As they approached, the truck driver's door was opening and Clarence Hardy saw the image of a person struggling inside. The truck itself was rolling to a stop. Hardy and his wife passed the truck but, deciding to investigate further, turned around only to discover the truck gone and the figure of Thomas Mallory sprawled across the road whereupon they called for help.

Five witnesses placed Danny Clay Ratliff with Mallory earlier that day; all five had been hanging out at the Haven Acres Grocery Store close to Verona in Lee County. Joan Lauderdale, her sister Jacqueline Smith, Sabrina Edwards, Doris Simms, and Walter Calvin Hereford told similar tales. They had been at the grocery between 7:30 and 8:00 p.m. when a "white guy" had driven up in a truck. Lauderdale remembers Ratliff being in the truck with a guy when it drove up. Hereford and Simms, though, state that the white man was alone when he drove up the first time. As Hereford tells it, he and Denice Owens walked up to the truck when the man called them over.

Danny Ratliff also went to the truck. The white man wanted to know where he could find a black woman. When Hereford said he didn't know of any available, the man asked about getting some liquor. The four drove off to the bootlegger's where the white man paid for some whiskey. They were gone about ten minutes and pulled back up at the store. Hereford testified he thought he might have heard Ratliff say the white man had some money, but he wasn't sure. At any rate, Hereford and Denice left for the skating rink leaving the rest of the story to be told by those inside the Haven Acres Grocery.

Sabrina Edwards had been dating Danny Ratliff occasionally; she had known him for three to four weeks. The morning of the 11th, Ratliff had needed a ride home to Ecru. A friend of Sabrina's brother said he would take him for $10.00. Sabrina borrowed $10.00 from her mother since Ratliff had no money. However, when Sabrina saw Ratliff later at the grocery store, he told her he had gambled and lost the $10.00. Sabrina Edwards did not see the white guy drive up to the store, but she did see Joan, Ratliff and Hereford at the truck. The man had been looking for a girl. She saw Hereford and Ratliff leave with the man but, as opposed to Hereford's ten minutes, thought they were gone about an hour. Sabrina may have missed their earlier arrival at the store because she stated that when the truck came back she didn't see Calvin or the white guy, only Ratliff who came in the store acting rather nervously. He bought some things at the store. Ratliff pulled some money out of his pocket, but Sabrina couldn't tell how much it was. He wanted to give her a ride home to talk to her. "He told me he had done something, that he had shot somebody." About thirty minutes after Sabrina arrived home, Ratliff was at the door. She wouldn't let him in, but he stuck his foot in the door and told her "he had done something and wanted to get away, but he wanted to talk to me before he left." He offered her some money pulling a wad of it out of his pocket. "It looked like a lot."

Joan Lauderdale, Jacqueline Smith, and Doris Simms added that after the white man drove up the first time, Ratliff came in and told them he was looking for a woman and for them to go with him but not to worry because he was going to "clip the man." As Lauderdale explains, she took that to mean he was going to take the guy's money--"rip him off." Strikingly, all three testified to those words "clip the man" or "clip the white man." All were able to identify the truck the white man drove from pictures of it. Doris Simms also testified that Ratliff later drove up in the truck alone and bought something at the grocery.

James Earl Kirkwood set out the final scene in this circumstantial drama. He was working at a service station in Memphis in the early morning hours of December 12, 1983. A man driving a truck came in and wanted to buy beer but settled for some cigarettes and potato chips when he found out it was too late (or early) to purchase alcohol. He pumped some gas and paid for it with a credit card signing "Tom Mallory" to the charge slip. Kirkwood testified that Ratliff was the man who signed the card.

There was another man accompanying Ratliff. Ratliff told Kirkwood that the man was a hitchhiker. Kirkwood described with great particularity the clothing Ratliff had on that night down to the "Pierre Cardin" western-style boots but failed to mention a rather prominent two and a half to three inch scar on Ratliff's forehead. Kirkwood testified that the man was at the station for almost an hour since the pumps were slow. The charge slip was admitted into evidence. Kirkwood identified the truck from photos shown him of Mallory's truck and the man who was in it as Ratliff.

The truck was found at the Belden, Mississippi, post office December 13, 1983, abandoned. The Lee County Sheriff's Department had it dusted for fingerprints. Five prints were found to be those of Danny Ratliff. These were found on the inside of the driver's side window; outside on the passenger side; outside, passenger side, under the window; outside on the driver's side; and on the outside of the passenger door.

Ratliff presented no evidence on his behalf. The jury found him guilty of armed robbery but was unable to fix the sentence. On June 21, 1985, the Circuit Court sentenced Ratliff to thirty-three years imprisonment. See Miss.Code Ann. Sec. 97-3-79 (Supp.1986). From this conviction, Ratliff appeals.

III.

I. Did The Lower Court Err In Overruling the

Defendant's Objection To The Special Venire

In That Approximately Fifty Percent Of Said

Venire Was Shown To Be "Not Found?" Did

The Court Further Err In Refusing To Allow

The Defendant To Call The Lee County Sheriff

As A Witness To Inquire As To His Department's

Procedures In Serving The Members Of The Venire?

Prior to commencing with voir dire, Ratliff moved for a continuance. It appears that counsel for defense and state had agreed to use the special venire of a hundred persons drawn for another case. However, of the one hundred, fifty-two were "not found" and fourteen were excused for other reasons. Ratliff attempted to call the Sheriff of Lee County to discover with what diligence his department had served those on the special venire. The State responded by stating that the thirty-two who appeared on the special venire and the thirty-nine jurors on the regular panel should be sufficient. Based on this, the judge denied the motion.

If there were not some seventy to eighty jurors available for the trial of this case and we were running short or whatever, I would feel that that [examining the Sheriff's Department] might be an appropriate matter to deal with, but we've got eighty jurors who have not tried a case, who have done nothing.

In Robinson v. State, 418 So.2d 794, 796 (1982), forty additional jurors were summoned per motion of the defense. Defendant moved to quash the special venire, however, on the grounds that only twenty-three of the forty appeared and five of those were excused by the judge. This Court, citing Smith v. State, 242 Miss. 728, 733, 137 So.2d 172, 173 (1962), found no prejudice to the defendant and thusly, no merit to the assignment. In Smith, the trial court had summoned a special venire of forty jurors; only eighteen appeared. After excusals and challenges, six remained. That court looked to Walford v. State, 106 Miss. 19, 27, 63 So. 316, 317 (1913) which stated:

The Sheriff failed to summon forty jurors, and therefore to that extent failed to obey the order of the court; but under Section 2718 this provision of the jury law is directory merely. Since there is no hint in the record that an impartial jury was not obtained, appellant suffered no harm by reason of the fact that the Sheriff summoned thirty men, and cannot complain thereof.

See also Buchanan v. State, 84 Miss. 332, 36 So. 388 (1904).

In the case at bar, Ratliff argues that the failure of two-thirds of the special venire to show defeats the purpose behind the calling of a special venire "which is to give the defendant in a case such as this a sufficient number of extra jurors from which to draw." On other days this argument may prevail. Here, however, Ratliff challenged none of the jurors for cause.

Ratliff argues that the "defendant should have been allowed to question the process servers as to any potential discrimination with regard to race or ethnic composition in serving veniremen." Yet, if the resulting venire represented only one race or socio-economic class, lending truth to the allegation of fraudulent procedures on the part of the Sheriff's Department, the record should so reflect. If Ratliff had pointed out below that the members of the special venire were all Japanese, or all came from...