Simon v. State

• Court: Mississippi Supreme Court
• Writing for the Court: PITTMAN; DAN LEE; McRAE; BANKS; BANKS
• Citation: Simon v. State, 688 So.2d 791 (Miss. 1997)
• Decision Date: 20 February 1997
• Docket Number: No. 91-DP-00353-SCT,91-DP-00353-SCT
• Parties: Robert SIMON, Jr. v. STATE of Mississippi.

Page 791

688 So.2d 791

Robert SIMON, Jr. v. STATE of Mississippi.

No. 91-DP-00353-SCT.

Supreme Court of Mississippi.

Feb. 20, 1997.

Johnnie E. Walls, Jr., Walls Law Firm, Greenville, for Appellant.

Michael C. Moore, Attorney General, Marvin L. White, Jr., Charlene R. Pierce, Sp. Asst. Attorneys General, Jackson, for Appellee.

En Banc.

ON MOTION FOR REHEARING

PITTMAN, Justice, for the Court:

Motion for Rehearing is denied. The original opinions in this case are withdrawn and these opinions are substituted therefor.

STATEMENT OF THE CASE

On February 3, 1990, in Clarksdale, Mississippi, Robert Simon, Jr. was arrested for the murders of Carl, Bobbie Joe, Charlotte and Gregory Parker. The February 2, 1990, murders were committed in the course of arson, robbery, burglary, sexual assault and kidnaping.

In March of 1990, Simon was charged by a Quitman County grand jury, in four separate indictments, with the capital murders of Carl, Bobbie Joe, Gregory and Charlotte Parker. In June of 1990, after a change of venue to Jones County, Simon was tried and convicted on the first indictment for the capital murder (committed in the course of arson, sexual battery and kidnaping) of Charlotte Parker. ¹ The district attorney dismissed the three remaining indictments. Later that month and during the June, 1990 term of the Quitman County Court, Simon was once more indicted by the grand jury for the capital murder in the course of robbery of Carl Parker; the capital murder in the course of burglary of Bobbie Joe Parker; and the capital murder in the course of kidnaping of Gregory Parker. While it was a single indictment, each of the three capital murders and underlying felonies were designated as separate counts.

Upon Simon's motion for change of venue from Jones County, the court transferred the cause to DeSoto County. On October 8, 1990, a jury was impaneled and the trial began. The trial continued through October 13, 1990, on which day the jury returned a verdict of guilty on each charge. The sentencing phase of the trial began on October 13, 1990, and on the same day, the jury sentenced Simon to death by lethal injection for each of the three counts.

In accordance with the jury's verdict and sentence, the trial judge set the date of December 5, 1990, for execution by lethal injection and ordered that Simon be transferred to the Mississippi Department of Corrections.

On November 12, 1990, Simon moved for a Judgment Notwithstanding the Verdict and/or New Trial. The trial court denied said motion on November 12, 1990.

On November 12, 1990, Simon perfected his appeal to this Court. Simon assigns twenty-two issues as error committed by the trial court. After full consideration of each assignment of error, we affirm both Simon's convictions and sentence to death by lethal injection on all three counts. During oral presentation and argument of the case sub judice, Simon argued only two issues, those being the issues related to voir dire of jurors and the venue of DeSoto County. These matters designated Issue I and II below are of primary concern and significance. Issues VII; VIII; XII, A, B, & D; and XX are procedurally barred. The claim based jury instructions S-4(A) regarding accomplice liability is procedurally barred. The Court hereafter speaks only to those issues meriting full discussion; however, each of the issues presented by Simon have been fully considered by this Court. ²

I. THE LOWER COURT ERRONEOUSLY REMOVED FOR CAUSE AND PREVENTED DEFENSE VOIR DIRE OF SEVERAL JURORS WHO DID NOT INDICATE THAT THEIR VIEWS ON CAPITAL PUNISHMENT WOULD SUBSTANTIALLY IMPAIR THEIR ABILITY TO FOLLOW THE LAW.

II. THE TRIAL COURT ERRED IN TRANSFERRING VENUE TO DESOTO COUNTY.

A. THE TRIAL COURT'S DENIAL OF SIMON'S DEMAND TO BE TRIED IN QUITMAN COUNTY DEPRIVED HIM OF HIS SIXTH AMENDMENT RIGHT TO A TRIAL IN THE COUNTY WHERE THE ALLEGED OFFENSE OCCURRED.

B. THE TRIAL JUDGE'S TRANSFER OF SIMON'S TRIAL FROM PREDOMINANTLY BLACK QUITMAN COUNTY TO VIRTUALLY ALL-WHITE DESOTO COUNTY RAISES AN INFERENCE OF RACIAL DISCRIMINATION WHICH THE STATE FAILED TO REBUT.

C. THE GROSSLY PREJUDICIAL PRETRIAL PUBLICITY THAT SATURATED DESOTO COUNTY,

TOGETHER WITH THE TRIAL COURT'S REFUSAL TO APPROVE INDIVIDUAL SEQUESTERED VOIR DIRE, DEPRIVED SIMON OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL ON GUILT AND PUNISHMENT.

V. THE PROSECUTOR OFFERED A PATENTLY PRETEXTUAL EXPLANATION FOR HIS PEREMPTORY REMOVAL OF ONE OF THE ONLY TWO PROSPECTIVE BLACK JURORS IN THE QUALIFIED VENIRE.

VII. THE TRIAL COURT IMPROPERLY TOLD THE JURORS THAT SIMON'S STATEMENT WAS VOLUNTARY AND REFUSED TO INSTRUCT THE JURY THAT THEY COULD INDEPENDENTLY DETERMINE THIS ISSUE.

IX. THE TRIAL COURT ERRED IN ADMITTING A STATEMENT ALLEGEDLY MADE BY SIMON, WHICH WAS INVOLUNTARY, NOT PRECEDED BY A WAIVER OF HIS MIRANDA RIGHTS, AND OTHERWISE OBTAINED IN VIOLATION OF THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS.

XVIII. THE TRIAL COURT ERRED IN REFUSING TO ALLOW SIMON TO PRESENT RELEVANT MITIGATING EVIDENCE TO THE JURY AT THE SENTENCING STAGE.

STATEMENT OF THE FACTS

On February 2, 1990, sometime between 8:45 and 9:15 p.m., Carl Parker, his wife Bobbie Joe, and their two children Charlotte and Gregory, left the Riverside Baptist Church in Clarksdale, Mississippi, and returned to their home on Highway 322 in rural Quitman County, Mississippi.

Later that evening, around 11:00 p.m., Billy King, while driving on Highway 322, noticed a fire at the Parker home. King proceeded to the home and discovered a fire in the southwest corner of the home. King attempted to open the unlocked carport door, but was driven back by the smoke and flames. King then left and drove eastward to the home of D.L. Ivey, to call for help. King testified that while he did not pass any vehicles on the way to the neighbor's house, he did observe the taillights of two vehicles leaving the Parker's property from a road leading to the Parker's farm shop. That same night, Joe McCullough, while driving east on Highway 322, observed two vehicles traveling west towards Clarksdale. McCullough identified the first vehicle as a Chevrolet truck but stated that because of the speed of the vehicles, he was unable to identify the second vehicle. McCullough also stated that the two vehicles were tailgating closely and were traveling very fast, some 70 m.p.h.

Jerry Wages was the first fireman to arrive at the scene of the burning Parker home. Wages crawled into the house through the unlocked back door. When the other Lambert fire fighters arrived at the Parker home, they entered the home and subsequently discovered the bodies of Carl, Bobbie Joe, Gregory and Charlotte Parker. Jerry Wages pulled the body of Carl Parker from the burning home. Wages and the other firemen then went back into the house and recovered the bodies of Gregory and Charlotte Parker. Wages recalled that the bodies of Carl and Gregory were bound at the hands and at the feet. After the fire was extinguished, the body of Bobbie Joe, burnt beyond recognition, was discovered in a bed in the southwest corner of the house. Wages also testified that he recalled seeing several items, including a television and a VCR, stacked up near the back door of the home.

Jack Harrison, Quitman County Sheriff, was called to assist in investigating the crime scene. Carl Parker's pickup truck was discovered missing and the police radioed this information to all neighboring authorities.

Sometime around midnight that same night, Eddie Spralls, a Clarksdale resident, heard noises and observed a truck being backed up between two houses. ³ Spralls called the police.

When the Clarksdale police arrived, the officers placed a spot-light on the truck. The officers observed two black men jump from the truck and run towards Highway 61. After running a VIN search on the abandoned truck, the police discovered that it belonged to Carl Parker. The truck was in the vicinity of Carrie Armstrong's home. Armstrong was Martha Simon's mother and Robert Simon's mother-in-law. ⁴ Several household items from the Parker home were found loaded in the back of the truck. Pillowcases containing other items, allegedly owned by the Parkers, were also found. Due to heavy rains that evening, all of these items were taken to a city garage in order for them to dry out.

In addition, a shotgun and a pillowcase containing two revolvers were discovered near the truck. One of the guns contained two live shells. Steve Byrd performed forensic and ballistic testing on the guns recovered. Byrd, an expert in the field of ballistics, testified that the projectiles removed from the bodies of Carl and Gregory Parker were fired from a .32-20 revolver and the projectile removed from the body of Bobbie Joe Parker was fired either from a .38 Colt revolver (found in the same location) or from a revolver with the same class characteristics. In addition, Mrs. Mamie Elmore, a Winona resident, identified Robert Simon as one of two men who had stolen the two guns from her less than a week before the murders were committed. The Clarksdale police relayed the information that a truck similar to the description of Carl Parker's was discovered in Clarksdale to the Quitman County Sheriff's Department.

Andrew Thompson, Jr., Sheriff of Coahoma County, testified that when he arrived at his office on Saturday morning, he received a call and obtained information concerning the Parker murders from a "female citizen." ⁵ Thompson then proceeded to Marks, Mississippi, to relay this information to the Quitman County Sheriff's Department. Thompson also testified that he later talked directly with Martha Simon (Robert Simon's wife) when she came to the Department. Thompson stated that this conversation led to the recovery of a pair of coveralls and work gloves from a locked dumpster, near Simon's mother-in-law's home. The coveralls were wet and the gloves smelled of smoke.

After collecting this evidence and relying on the information obtained, Sheriff...