Shell v. State, 03-DP-0087

Decision Date29 November 1989
Docket NumberNo. 03-DP-0087,03-DP-0087
Citation554 So.2d 887
PartiesRobert Lee SHELL v. STATE of Mississippi.
CourtMississippi Supreme Court

Hugh Hathorn, Louisville, Clive A. Stafford Smith, Atlanta, Ga., for appellant.

Mike C. Moore, Atty. Gen., Marvin L. White, Jr., Asst. Atty. Gen., Charlene Robb Pierce, Sp. Asst. Atty. Gen., Jackson, Edwin A. Snyder, Dist. Atty., Eupora, for appellee.

En Banc:

PRATHER, Justice, for the Court:

The appellant, Robert Lee Shell was convicted in the Circuit Court of Winston County for the capital murder of Mrs. Audie Johnson, while in the act of committing armed robbery. Miss.Code Ann. Sec. 97-3-19(2)(e) (Supp.1989). The jury found that Shell should receive the death penalty, from which sentence he appeals.


During the early morning hours of June 8, 1986, Mrs. Audie Kirkland Johnson, a sixty-eight (68) year old resident of Winston County, was at her home with her step-daughter, Mrs. Evelyn Lenaz. Following the death of her husband approximately two weeks earlier, Mrs. Johnson had family members staying with her. On this early Sunday morning, Mrs. Johnson was brutally attacked and murdered by an unknown assailant, and Mrs. Lenaz was permanently injured.

The assailant struck Mrs. Johnson numerous times across the head with a tire iron, causing massive injuries to her head, comminuted fractures, extensive bruises, subdural hemorrhaging, and heavy bleeding, which caused her death. She suffered a cut above her right eye, and on her right index finger, she received a cut so severe At approximately 3 p.m. on Monday, June 9, Rev. Burlon Commer, the pastor of the church the Johnsons attended, received a call from Mrs. Lenaz at his home. She told him that she had been attacked. Rev. Commer called the Winston County Sheriff's Office and met a deputy sheriff at the Johnson residence. When the two men went inside the house, they found Mrs. Lenaz in a barely conscious state and also found Mrs. Johnson's body. According to witnesses at trial, Mrs. Johnson was a neat housekeeper, but when Rev. Commer and the deputy sheriff entered the house, they discovered that it was in a state of disarray. Papers were scattered about the house, and in the bedrooms, dresser drawers were emptied. Mrs. Lenaz, survived the encounter, although she was hospitalized for two weeks and remembered none of the events surrounding her attack.

that a portion of the finger was almost severed from the hand.

Sheriff Billy Rosamond questioned Robert Lee Shell on June 10, two days after Mrs. Johnson's murder while the Sheriff's department was talking to all the people who lived near the Johnson residence. (Shell lived approximately one mile from Mrs. Johnson). Rosamond stated that Shell initially told him that he and his wife had been to a party that Saturday night and had not seen or noticed anything unusual.

Prior to June 21st, the sheriff talked to Joe Hickman, Robert Shell's father-in-law, at Hickman's house trailer. Shell's house trailer was located behind Hickman's trailer. The sheriff learned from Hickman that, although Shell and his wife had been at a family party on the Saturday night preceding Mrs. Johnson's death, Shell left the party early, and his wife was brought home by another family member. Hickman stated that Shell was not at his home that Saturday night and early Sunday morning until between six and seven a.m. Shell told Hickman that he had run out of gasoline and left his car at a store just north of the Johnson home. Robert Shell and his wife took gasoline to Shell's car and removed it. This information caused the sheriff to ask Hickman to have Shell come to his office.

The Sheriff spoke with Shell again on June 21st, when he voluntarily came in, at which time Shell told him the same story concerning his whereabouts on the evening in question. Then Shell told the sheriff to ask his wife if he didn't believe his story. The sheriff then talked to Shell's wife separately, but Shell's story was not corroborated by his wife; rather, she corroborated her father's story. Rosamond asked Shell and his wife if they would object to a search of their trailer for clothing, to which search they agreed. The Shells signed a waiver form, allowing the Sheriff's department to search the trailer.

While at the trailer, Shell's wife, in the presence of Sheriff Rosamond and Officer Curtis Austin, told her husband to "tell ... the truth" because she had already "told ... the truth." The Sheriff then took Shell back to the Sheriff's office, where Shell was read his constitutional rights under the Miranda decision, (Miranda v. Arizona, 384 U.S. 436, 467-473, 86 S.Ct. 1602, 1624-1627, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966)) and signed the waiver of rights form. Following the signing of the form, Shell initially told the same story he had told before. When the Sheriff reminded him what his wife had said to him at the trailer, Shell admitted that he had been out driving the early morning of June 8, and had stopped to pick up two friends, Jimmy Rush and Bubba Hughes. According to this version of Shell's story, Rush and Hughes decided to break into Mrs. Johnson's house. When Shell entered the house, he saw Hughes beating a woman with the tire tool he had used to break into the home. Shell said that he told Hughes to quit beating the woman, and the three men proceeded to ransack the house, eventually netting $287.00 in cash. The men split the money three ways; Shell took the tire tool and threw it behind the house, and went home. The time was approximately 4:30 a.m. on Sunday, June 8, 1989.

Following the giving of this second statement, Shell was officially placed under arrest, and Sheriff Rosamond called Deputy The next day, June 22nd, Shell accompanied Rosamond and Lee to the Johnson residence to show them where he had thrown the tire tool. Once Shell showed the two men where he thought the tool was, the tool was found. Shell was returned to the Sheriff's office and was read his Miranda rights again prior to questioning by Rosamond and Lee. In this third statement, Shell did not mention Bubba Hughes as an accomplice, and further stated that he wore gloves while inside the Johnson residence and mentioned a pocket knife he had thrown away beside the railroad track. Shell showed the officers where the gloves were located, but the knife was not found until later.

Greg Lee in to assist him. Lee read Shell his rights once again, and asked him if he would be willing to give a statement that would be put in writing. Shell agreed, and Lee took down a statement that was consistent with Shell's prior oral statement to Sheriff Rosamond. Shell told the Sheriff where he had thrown the tire tool, but because it was too dark, they did not look for it that day. Based on Shell's statement implicating Rush and Hughes, warrants were issued for their arrest. When the two men were found, Hughes and Rush were taken to separate jails to keep the men apart until the Sheriff could talk to each of them individually. Rosamond testified at trial that the only evidence linking Rush and Hughes to the crime was Shell's statement.

Sheriff Rosamond testified that on the morning of June 23, when he arrived at work, he was told that Shell wanted to see him. When Rosamond talked to Shell, Shell told him that Jimmy Rush was not involved in the attack on Mrs. Johnson or Mrs. Lenaz. The Sheriff called Deputy Greg Lee into his office again, and Shell was read his rights. In the fourth statement Shell gave, he admitted that he had acted alone when he broke into Mrs. Johnson's home, killing her and injuring Mrs. Lenaz. A psychiatric examination was given the defendant which showed that the defendant was criminally responsible at the time of the crimes and was competent to stand trial although he had a history of alcohol and substance abuse.

At trial Sheriff Rosamond testified that Shell was asked to give the sheriff's office the tennis shoes he was wearing, and that he did so voluntarily. Bloodstains were found in several rooms of the house, and traces of blood were found on the tire tool, the gloves, and on the tennis shoes belonging to Robert Lee Shell. No blood was found on a pair of tennis shoes belonging to Jimmy Rush.

Frank McCann, a forensic scientist with the Mississippi Crime Laboratory, testified that the marks found on a piece of paper from inside the Johnson residence were made by the right shoe of Robert Lee Shell. Furthermore, the marks on a business card also found inside the home were made by a right shoe pattern similar to or consistent with, the shoe worn by Shell. McCann also testified that the tests he had run were 100% accurate.

Shell testified at trial, relating a fifth version of the crime. He stated that he had been riding around with Jimmy Rush the night in question. He testified that Bubba Hughes was not with them, but a man named Dexter Ball was. According to Shell's testimony at trial, he, Rush and Ball rode in Shell's car to Noxapater. Rush was at the wheel because Shell was too intoxicated to drive. The group travelled to a party at an unspecified location and then returned to Winston County. According to Shell, his car ran out of gas on the way home, forcing him to leave his car at Flowers' Store.

Continuing Shell's in-court testimony, he stated that as he was walking down the road, he saw three men running from a trailer near the Johnson residence. When the men saw Shell, they yelled at him and began chasing him. Shell was able to outrun the men and hide in the woods. When Shell reached his trailer, he climbed in the bathroom window and went to bed. Shell further testified that when he went to pick up his car the next day, he discovered a gun holster, Army belt, and a pocket knife on the back seat. He also testified that he received two phone calls warning him that When questioned about the approximate $300.00 he showed his aunt and uncle the day after Mrs. Johnson's murder,...

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