Shelton v. State, 2001-KA-00710-SCT.

• Decision Date: 31 July 2003
• Docket Number: No. 2001-KA-00710-SCT.,2001-KA-00710-SCT.
• Citation: 853 So.2d 1171
• Parties: Jarvis SHELTON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

853 So.2d 1171

Jarvis SHELTON v. STATE of Mississippi.

No. 2001-KA-00710-SCT.

Supreme Court of Mississippi.

July 31, 2003.

Rehearing Denied September 25, 2003.

Wesley Thomas Evans, Ridgeland, for appellant.

Office of Attorney General by Billy L. Gore, for appellee.

EN BANC.

EASLEY, Justice, for the Court.

STATEMENT OF THE CASE

¶ 1. On April 2-14, 2001, Jarvis Shelton (Shelton) was tried by a jury in the Circuit Court of Yazoo County, the Honorable Jannie M. Lewis, presiding, for the crime of capital murder. Shelton was convicted by the jury and received a life sentence. From that conviction and sentence, Shelton appeals to this Court.

FACTS

¶ 2. Lisa Crow (Lisa) owned a store named the Cheshire Cat in Yazoo City. On August 16, 1996, twin sisters Katie and Molly Crow saw Shelton leave their mother's store with a green money bag and their mother's purse under his right arm. When the girls entered the store, Katie and Molly found their mother, Lisa, on the floor with a severe head injury. Later that evening, Lisa died at the hospital.

¶ 3. Earlier that same afternoon at about 4:00 p.m., the two girls were in their mother's store. Shelton was also in the store at this time. Lisa grew suspicious of Shelton and asked the girls to stay in the store with her. The girls stayed in the store with their mother about 10-15 minutes and left the store after Shelton walked out the door. Molly and Katie identified Shelton at trial as the man inside their mother's store.

¶ 4. At 5:00 p.m. Molly called her mother and arranged to pick her up at the store. Lisa told Molly that there was one more customer in the store, but to come and get her. Molly and Katie drove the two to three minute trip to the store and parked the car directly in front of the doorway. Molly testified that when the girls arrived she saw Shelton come out of the store with her mother's ivory colored purse and a green money bag. Shelton was carrying the money bag under his right arm. Molly stated that she had a good look at Shelton and knew that he was the same man that was in the store earlier that day. Shelton looked at Molly and "took off up the street." Molly went inside the store, saw her mother lying on the floor with blood around her head and called 911.

¶ 5. Katie testified that she saw Shelton with her mother's purse under his right arm and the green money bag leaving the store. Katie chased Shelton up the street. Katie then went home and got her father. When they returned to the store, she saw that her mother had a head injury and blood was coming out of her ears and nose.

¶ 6. Molly and Katie went to the police station that night, August 16, and looked at photographic books of arrestees in Yazoo City. Molly looked at five to six mug books, but Shelton's photograph was not in the books. The girls also viewed three physical lineups on three different nights and picked Shelton from one of the lineups. Molly did state that she identified another individual in another lineup as a person that looked most like the person leaving the store. Molly stated that the police asked her to do this, but she made it clear that she was not making a positive identification. Katie stated that she looked at hundreds of photographs. Although Katie did not see a photograph of Shelton, she did pick a few photographs of men to give the police an idea of Shelton's appearance. Katie later picked Shelton out of the third lineup.

¶ 7. Robert Hicks (Hicks) testified that he has known Shelton for a long time. On August 16, 1996, Hicks saw and spoke to Shelton near the Black & White department store on Main Street in Yazoo City around 4:00 p.m. As Hicks was leaving the department store around 4:20, he saw Shelton speaking to the Brown brothers, Tommy and Joseph.

¶ 8. Tommy Brown (Tommy) testified that on August 16 he was laying brick within about 800 feet of the crime. A man, who Tommy later identified in court as being Shelton, came up to the brothers and asked them how long they were going to be in the area. The man returned later that day and asked the same type of questions. In fact, Tommy stated that Shelton came by the area a few times that day, approximately before 12:00, between 2:00 to 3:30, and sometime after 4:00. Tommy described Shelton as wearing a cap, khaki pants, and a plaid shirt, and having some facial hair. Joseph Brown (Joseph) gave similar testimony as his brother. He was laying brick on August 16, 1996, on Main Street in Yazoo City and was approached by Shelton. Shelton kept asking the same questions over and over again. Joseph stated that Shelton came by numerous times around 12:00, 2:00, and about 4:20 or 4:30. He described Shelton as wearing a brown cap, brown pants and a plaid shirt.

¶ 9. Michael Biasello (Biasello) was working for the FBI and on complaint duty on July 25, 1997. At 11:45 a.m. he received a call from a man who identified himself as Jarvis Shelton. Shelton apparently stated that he was in the Yazoo County jail which Biasello confirmed with Wade Woods at the Yazoo City police department. Biasello stated that the person began the conversation by complaining about his attorney and the police department and continued as follows:

He [person on the phone] went on to say that he had seen a police report which indicated that a claw hammer was found at the scene of the murder, which was an antique store, and he said the claw hammer was not the murder weapon, that he'd have to check his car. And I believe I asked him, "Why would you have to check your car?" And he responded, "To see if the object was in there." And I said, "What object?" And he said, "The blunt object." And I said, "What was the cause of death in the murder?" And he said, "A blunt object." And I asked him if he was aware of the significance of what he was telling me, and he said that he—I believe he said he had to go or words to that effect, and he hung up the phone.

William Mercer (Mercer), who was in custody of the Mississippi Department of Corrections at the time of trial, testified that he met Shelton in April 1997 while they had "yard call" at the facility. Shelton told Mercer that his case involved a middle age woman in Yazoo City and that "he had looked at—he had scoped the place for a couple of days." According to Mercer, Shelton "cased" the place for a few day. There was too much "traffic" on the first day so he went back the second day. Shelton watched the place and actually entered two or three times. Finally, just before closing time, Shelton entered and hit the lady with a pipe wrench. He left with the money bag and purse and did not realize that the daughters were the people that had pulled in as he was leaving.

¶ 10. Dr. Steven Hayne (Dr. Hayne), a forensic pathologist who performed the autopsy on Lisa's body, testified that she had a tear that was two and one half inches by one and one half inches on the back of her head. The tear had a star-shape and was in the mid back of the head. This injury produced a straight line skull fracture. The resulting blow to the back of the head produced other fractures in the head and hemorrhaging. Dr. Hayne testified that this type of injury indicated that a large amount of force by a broad surface was delivered to the head. The cause of death was determined to be blunt force trauma which produced cranial cerebral trauma. When asked if either a pipe wrench or a crescent wrench could be capable of producing the type of injuries that Lisa sustained, Dr. Hayne stated, "If struck on the flat surface, either of those instruments, if the instruments were large in size, it could easily produce that, if delivered with force."

¶ 11. Following his conviction, Shelton appealed to this Court raising the following issues:

I. Whether the trial court erred by refusing to suppress the pre-trial identification of evidence and testimony of the out-of-court show up identification and by allowing the in-court identification testimony of Molly Crow and Katie Crow.

II. Whether the trial court erred by denying Shelton's motion for continuance based upon illness of the defense attorney.

III. Whether the trial court erred by failing to grant Shelton's motion for mistrial after a prospective juror stated in voir dire that this was the second capital murder trial for Shelton.

IV. Whether the trial court erred in refusing to grant Shelton's motion for a mistrial based on the witness's improper comment regarding Shelton's right to testify or remain silent under Amendment V of the United States Constitution and Article 3, Section 26 of the Mississippi Constitution of 1890.

V. Whether the court committed reversible error when it refused to grant a directed verdict.

DISCUSSION

I. Whether the trial court erred by refusing to suppress the pre-trial identification of evidence and testimony of the out-of-court show up identification and by allowing the in-court identification testimony of Molly Crow and Katie Crow.

¶ 12. "The standard of review for suppression hearing findings concerning pretrial identification is whether or not substantial credible evidence supports the trial court's findings that, considering the totality of the circumstances, in-court identification testimony was not impermissibly tainted.... The appellate review should disturb the findings of the lower court `only where there is an absence of substantial credible evidence supporting it.'" Horne v. State, 825 So.2d 627, 637 (Miss. 2002) (quoting Ellis v. State, 667 So.2d 599, 605 (Miss.1995)).

¶ 13. The court must consider the five Biggers factors to determine whether the standard has been met for the identification testimony. Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972). The five factors are as follows: "(1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the criminal; (4) the level of certainty exhibited by...