Ross v. State, No. 1998-DP-01038-SCT.

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtWaller
Citation954 So.2d 968
PartiesCharles Wayne ROSS v. STATE of Mississippi.
Decision Date26 April 2007
Docket NumberNo. 1998-DP-01038-SCT.
954 So.2d 968
Charles Wayne ROSS
v.
STATE of Mississippi.
No. 1998-DP-01038-SCT.
Supreme Court of Mississippi.
April 26, 2007.

[954 So.2d 981]

Office of Capital Defense Counsel by Alison R. Steiner, Andre De Gruy, for appellant.

Office of the Attorney General by Marvin L. White, Jr., for appellee.

EN BANC.

WALLER, Presiding Justice, for the Court.


¶ 1. Charles Wayne Ross was convicted of the capital murder of Hershel Ray Yancey by the Circuit Court of Tippah County and sentenced to death. Finding errors in both the guilt and sentencing phases of the trial, we reverse and remand for a new trial.

FACTS

¶ 2. The victim, Hershell Ray Yancey, was a construction worker who lived in rural Tippah County. On Friday, June 28, 1996, he was dropped off at his residence by a co-worker between 7:00 p.m. and 7:10 p.m.

¶ 3. Between 7:00 and 9:30 that night, a nearby neighbor, Linda Grey, noticed a loud vehicle driving up and down the road outside her home. Between 9:30 and 10:00, what sounded to her like the same vehicle turned into her yard, approximately 100 to 150 feet from her house. Grey walked outside to investigate and saw a dark-colored car whose make and model she could not specify. She saw a short person working under the hood of the vehicle, and, as the car drove away, she noticed that the right tail light was broken. Grey testified that the car drove away in the direction of Yancey's residence, and that she believed the car stopped near the residence and left its engine running.1

¶ 4. Yancey's mother, Marie Yancey, lived in a trailer across the road from him. That night, she had prepared dinner for her son and asked him to wait at her residence until she returned. Yancey was not there when she returned home around 9:10 p.m., but she saw that he had eaten

954 So.2d 982

dinner and left the lights on. Yancey's mother also noticed that all of the lights in Yancey's residence were on, but there were no vehicles in the driveway. She assumed Yancey had gone home to take a shower and did not go to his residence to check on him.

¶ 5. Shortly after 9:10 p.m., Yancey's mother heard a loud vehicle coming down the road going south and passing both houses. It was too dark for Yancey's mother to determine whether the vehicle was a car or a truck or how many people were in it. At 9:28 p.m., she heard what sounded like the same vehicle start up at Yancey's residence. She then went to her kitchen window, and saw a vehicle drive away towards Dumas. She did not hear the car's engine between 9:10 and 9:28 p.m. Neither Yancey's mother nor any other witness remembered hearing any gunshots or any other loud noises that might have masked the sound of gunshots. Marie Yancey found her son's body in his residence the next morning after he failed to come over for breakfast.

¶ 6. An autopsy showed that Yancey had been fatally shot four times with a .22 caliber weapon. The initial investigation conducted by the Tippah County Sheriff's Office determined that Yancey's wallet, television, and VCR were missing and that there were no signs of a forced entry or struggle. The deputies found an uncashed payroll check for $438.64 in the residence. They also collected beer cans, a broken electrical cord, and shards of red plastic consistent with an automobile's tail lights from Yancey's residence.

¶ 7. Though not brought out at trial, the investigation initially determined that on the afternoon of June 28, an individual identifying himself as Charles Ross [hereinafter "Ross"] had called a local store asking for Yancey and had left the phone number of a rented trailer occupied by Tommy Hale, Hale's girlfriend Margaret Jones, and Jones' son, Jerry Sanders. Ross and Jones are half-siblings. Ross' and Jones' nephew, Donald Ross, Jr., stayed at the Hale residence on occasion and was a close companion of Sanders.

¶ 8. Based on the phone call reported by the store owner, the sheriff's office contacted the Hale household on Saturday, June 29. Hale and Jones initially denied having seen Ross. On Sunday, June 30, Donald Ross, Jr.'s mother contacted the sheriff's office and said that her son was willing to come to the police station and give a statement. Donald Ross, Jr. made his statement to the deputies, in which he averred that Ross had arrived at Hale's residence on the evening of June 29 with a television, VCR, wallet, and gun, and that he had admitted to murdering Yancey. When Donald Ross, Jr. made his statement, he did not claim to have personally seen Ross or to have heard the purported confession. At trial, he admitted that he had not witnessed Ross' arrival nor had he heard his uncle admit to the murder, but that he had been told by his Aunt Margaret that Ross had done so.

¶ 9. On the evening of Sunday, June 30, the sheriff's deputies came to the Hale residence to investigate. They took Jones and Hale into separate rooms to take their statements. At that time, Jones first stated that Ross had told her that he killed Yancey and stole Yancey's television, VCR, and wallet. Jones said that she saw Ross toss a pistol over his head into a sewage ditch behind the Hale residence and burn Yancey's wallet on an outdoor grill belonging to Hale.

¶ 10. Deputies found the television and VCR in Sanders' bedroom. They found the gun in the sewage ditch sixty-five feet from where Jones told the officers Ross had tossed it over his head. Deputies discovered an empty holster in Donald

954 So.2d 983

Ross, Jr.'s Bronco, but did not search the vehicle for ammunition or other evidence. Jones and Hale testified that Hale's son found the holster for Hale's gun behind the commode in their trailer three weeks later. Hale said he called the sheriff's office and told them they discovered the actual holster, but no one from the sheriff's office came out to examine it.

¶ 11. The deputies also found a pile of ashes on the grill outside the Hale residence. One of the investigators, Deputy Wayne Wilbanks, testified at trial that he believed that the ashes were the by product of a wallet which had been burned with the assistance of an accelerant. The State did not conduct any forensic tests on the ashes to determine their composition. The photograph of the grill and ashes included in the record indicate that whatever was burned in the grill had completely disintegrated.

¶ 12. Ross drove a black, 1984 Ford Cougar which had a missing right tail light and ran loudly as a result of a missing muffler and a rattling motor. On Tuesday, July 2, officers found and confiscated Ross' vehicle, which was parked on the property of Ross' brother, Donald Ross, Sr. Inside the vehicle, deputies found seven empty Budweiser cans and one full Budweiser can, three of which matched the manufacturer's stamp of the beer cans in Yancey's trailer. About a quarter of a mile from the car, officers discovered Ross in the woods with bed clothes, cigarettes, food, rubbing alcohol, a thermos, and $50 to $60.

¶ 13. The only latent fingerprints the officers found at the murder scene were on the door of Yancey's trailer. Those prints did not match Ross' fingerprints, and the sheriff's office did not compare the prints to those of Jones, Hale, Sanders, or Donald Ross, Jr. When asked why he did not compare the fingerprints on the door to those of the other potential suspects, Deputy Wilbanks said he was under the impression that defense counsel "was going to take care of that." With regard to the reasoning behind the decision not to investigate the other occupants of the Hale residence, then-Sheriff Gary Mauney explained, "there was no reason to suspect any of them because to our knowledge and all, they were assisting us." Deputy Wilbanks also testified that the police did not test for gunshot residue on the hands of anyone who had stayed at the Hale residence that night, including Ross, even though such a test might have shown whether anyone had fired a gun recently.

¶ 14. The witnesses' account of the events in the evening on June 28 differ substantially. Jones testified that on the afternoon of June 28, Ross came to visit her at the trailer where she lived with her boyfriend, Hale. She stated that Ross left in his black, 1984 Ford Cougar between 8:30 or 9:00 p.m. and returned around 11:30 p.m. Jones' testimony at trial conflicts with her second recorded statement to Ross' investigator regarding the incident, in which she stated that Ross came home between 8:30 and 9:00 that evening.2 Her testimony also conflicts with that of Hale, who testified that Ross left the trailer around 8:00 p.m. and returned sometime between 9:00 and 10:00 p.m. When asked if Ross might have returned as late as 11:30 p.m., Hale insisted that Ross had returned earlier.

¶ 15. Jones testified that when Ross returned, only she and Hale were home. She stated that Sanders and Donald Ross, Jr. did not come home until just before

954 So.2d 984

12:00 p.m. Hale testified that Sanders and Donald Ross, Jr. returned before Ross, and that all were present when Ross arrived with the television and VCR. At trial, Jones testified that Ross took her into a bedroom and showed her a three-fold wallet. This conflicts with her statement to Ross' investigator, in which she stated that Ross had shown her the wallet outside the trailer. Both stories conflict with Hale's testimony, in which he said he never saw Jones and Ross go outside or into a bedroom alone. Inside the wallet, Jones said she saw a $5 bill and an identification of some sort. She also said she was able to read the name, "Ray Yancey" on the identification. Jones testified she did not know whether the wallet was made of leather or plastic.

¶ 16. Jones testified that Ross then brought in a television and a VCR, one of which was missing part of its cord. When she asked where he got the items, Ross told her it was best that she not know. Jones stated that around 12:30 or 1:00 a.m., Ross told her he wanted to talk to her outside. According to Jones, the following conversation...

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293 practice notes
  • Flowers v. State, NO. 2010–DP–01348–SCT
    • United States
    • United States State Supreme Court of Mississippi
    • November 2, 2017
    ...‘assist the trier of fact in understanding or determining a fact at issue.’ " Galloway , 122 So.3d at 632 (¶ 27) (quoting Ross v. State , 954 So.2d 968, 996 (¶ 57) (Miss. 2007) ). To determine reliability, the following nonexhaustive list of factors may be considered: whether the expert's t......
  • Hutto v. State, NO. 2014-DP-00177-SCT.
    • United States
    • Mississippi Supreme Court
    • May 11, 2017
    ...is entered. To the contrary, we consistently have placed the burden on the defendant to show his incompetence. See, e.g., Ross v. State, 954 So.2d 968, 1007 (Miss. 2007) ("The defendant must show incompetency by a preponderance of the evidence."); Evans v. State, 725 So.2d 613, 660 (Miss. 1......
  • Loden v. State, No. 2002-DP-00282-SCT.
    • United States
    • Mississippi Supreme Court
    • October 4, 2007
    ...61 (Miss.1978). Bell v. State, 360 So.2d 1206 (Miss. 1978). DEATH CASES REVERSED AS TO GUILT PHASE AND SENTENCE PHASE Ross v. State, 954 So.2d 968 (Miss.2007). Flowers v. State, 842 So.2d 531 (Miss. 2003). Randall v. State, 806 So.2d 185 (Miss. 2002). Flowers v. State, 773 So.2d 309 (Miss. ......
  • Ben v. State, No. 2009–CT–01495–SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • August 23, 2012
    ...violation caused a miscarriage of justice.” Payton v. State, 897 So.2d 921, 942 (Miss.2003) (citations omitted); see also Ross v. State, 954 So.2d 968, 1000–01 (Miss.2007) (stating that reversal is not “inexorably require[d]” and that the key inquiry is whether the trial court's failure to ......
  • Request a trial to view additional results
293 cases
  • Flowers v. State, NO. 2010–DP–01348–SCT
    • United States
    • United States State Supreme Court of Mississippi
    • November 2, 2017
    ...‘assist the trier of fact in understanding or determining a fact at issue.’ " Galloway , 122 So.3d at 632 (¶ 27) (quoting Ross v. State , 954 So.2d 968, 996 (¶ 57) (Miss. 2007) ). To determine reliability, the following nonexhaustive list of factors may be considered: whether the expert's t......
  • Hutto v. State, NO. 2014-DP-00177-SCT.
    • United States
    • Mississippi Supreme Court
    • May 11, 2017
    ...is entered. To the contrary, we consistently have placed the burden on the defendant to show his incompetence. See, e.g., Ross v. State, 954 So.2d 968, 1007 (Miss. 2007) ("The defendant must show incompetency by a preponderance of the evidence."); Evans v. State, 725 So.2d 613, 660 (Miss. 1......
  • Loden v. State, No. 2002-DP-00282-SCT.
    • United States
    • Mississippi Supreme Court
    • October 4, 2007
    ...61 (Miss.1978). Bell v. State, 360 So.2d 1206 (Miss. 1978). DEATH CASES REVERSED AS TO GUILT PHASE AND SENTENCE PHASE Ross v. State, 954 So.2d 968 (Miss.2007). Flowers v. State, 842 So.2d 531 (Miss. 2003). Randall v. State, 806 So.2d 185 (Miss. 2002). Flowers v. State, 773 So.2d 309 (Miss. ......
  • Ronk v. State, No. 2011–DP–00410–SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • May 7, 2015
    ...L.Ed.2d 389 (2000) ). Second, the defendant must prove that such deficient performance prejudiced the defense of the case. Ross v. State, 954 So.2d 968, 1003 (Miss.2007) (citing Irby, 893 So.2d at 1049 ). “To establish prejudice, a defendant must show that there is a reasonable probability ......
  • Request a trial to view additional results

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