Simon v. State
| Decision Date | 30 September 1993 |
| Docket Number | No. 90-KA-0904,90-KA-0904 |
| Citation | 633 So.2d 407 |
| Parties | Robert SIMON, Jr. v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Clive A. Stafford Smith, New Orleans, LA, Johnnie E. Walls, Jr., Walls Law Firm, Greenville, for appellant.
Michael C. Moore, Atty. Gen., W. Glenn Watts, Sp. Asst. Atty. Gen., Jackson, for appellee.
EN BANC.
Robert Simon, Jr., was arrested February 3, 1990, in Clarksdale, and was charged with the February 2 capital murder (committed in the course of arson), sexual battery, and kidnapping of nine-year-old Charlotte Parker of Quitman County. Simon was indicted by a Quitman County grand jury March 12, 1990.
A motion for change of venue was granted on June 5, and the trial was moved to Jones County. A six-day trial was held June 18-23, 1990, with a jury picked from a venire from both the first and second districts of Jones County. Simon was found guilty on all three counts; but, after a separate sentencing hearing, the jury was unable to reach a unanimous verdict as to the imposition of the death penalty.
Simon was sentenced to consecutive terms of life imprisonment, thirty (30) years, and thirty (30) years in the custody of the MDOC.
On appeal, Simon alleges numerous assignments of error, but we find only three merit discussion. Finding no error, we affirm.
About 9:15 p.m. on February 2, 1990, Carl Parker, his wife, and their two children returned Approximately two hours later, around 11:15 p.m., the Lambert Volunteer Fire Department was called by a neighbor, Billy King, to a fire at the Parker residence. Fireman Jerry Wages noticed the southwest corner of the house was more badly burned than the rest of the house. Wages found the back door unlocked and crawled into the house.
to their home on Highway 322 in Quitman County. The Parkers had been attending a service at the Riverside Baptist Church near Marks.
Inside, he found the bodies of Carl Parker and his son, Gregory, bound by the feet, ankles, and wrists. He also found the body of nine-year-old Charlotte Parker. She was undressed from the waist down and had a ribbon tied around her wrist. She also had a wound on her hip. The body of Mrs. Parker was later also found in the house.
The Quitman County sheriff and coroner supervised the removal of the bodies from the burned home. Sheriff Harrison noticed that Carl, Gregory, and Charlotte Parker had all been bound; and Charlotte had been shot in the back.
During the fire department's attempt to put out the fire at the Parker house, one of the Parker's neighbors noticed that Carl Parker's truck was missing. Sheriff Harrison then radioed all officers in the area to be on the lookout for Parker's Chevrolet Silverado truck.
Billy King had also seen two sets of headlights coming down the driveway from the Parker's house while he was calling the fire department. He saw two vehicles turn out of Parker's driveway and head toward Clarksdale.
Joe McCullough had been going east on Highway 322 about the same time King was reporting the fire. He remembered meeting two vehicles--the first, a Silverado truck--and both vehicles were going very fast toward Clarksdale.
Eddie Lee Spralls was watching television in his Clarksdale home that night. About midnight he heard noises outside, and when he looked out a window, he saw a truck backing between two abandoned houses. He called the Clarksdale police.
Clarksdale police officers arrived at the alley behind Spralls' house and put a spotlight on the truck. Two black males jumped out of the truck and ran toward Highway 61. The two fleeing men had abandoned Parker's truck near the home of Simon's mother-in-law, where Simon's wife was spending the night.
The truck was later identified as being that of Carl Parker, and it was full of furniture and household items from the Parker residence. A pillowcase found near the truck contained two revolvers--one of which had two live shells left in it--as well as other items belonging to the Parkers.
The next day, Coahoma County Sheriff Andrew Thompson, Jr., received a tip from a caller which led him, Bill Ellis and Ken Dickerson, investigators for the Mississippi Highway Patrol, to a dumpster near the house of Simon's mother-in-law in Clarksdale. Dickerson recovered a pair of coveralls and a pair of work gloves from the dumpster. The clothes were wet and smelled of smoke. At trial, Dean Parker (Carl's son and half-brother to Gregory and Charlotte, who no longer lived in Carl's house) said that the gloves were the same type his father used for work.
After pursuing the lead provided by the caller and finding the information reliable, Sheriff Thompson passed information along to Quitman County Sheriff Harrison. Harrison obtained two arrest warrants for Anthony Carr and Simon and took them to the Coahoma County sheriff. Simon and Carr were arrested at approximately 3:30 p.m. on Saturday, February 3, 1990, in Clarksdale. 1
Later that day, with the consent of Simon's wife, investigators searched Simon's Memphis apartment. They found a man's and a woman's wedding ring, an antique pocket watch, a pellet gun, a pair of boots, bullets for a rare caliber revolver, a notebook with After his arrest on Saturday, Simon was given his Miranda warnings and held in the Clarksdale City jail. On Sunday, February 4, he was moved to the Quitman County jail. On Monday, at about 10:30 a.m., Officer Dickerson read Simon his Miranda rights and Dickerson, Officer Billy Eglis, Deputy Hunter and Sheriff Harrison questioned Simon.
"Mr. Parker" written on it, and other items. All were identified by either Dean Parker, Carl Parker's older son, or E.C. Parker, Carl's father. The two wedding rings were also identified by a jeweler, who had done work on them, as belonging to the Parkers.
Simon's alleged statement was unrecorded. However, all of the officers present at the questioning testified that Simon said he understood his rights and did not want an attorney. They also said that he waived his right of silence and told them that he had killed the Parkers. When the officers presented Simon with a waiver form, he refused to sign. One of the officers noted on the form, "Understands but prefers not to sign and waives."
Simon later moved to suppress his statements, contending he did not waive his rights voluntarily. At the pre-trial suppression hearing, Simon testified he had requested an attorney when he talked to one of the jailers; however, he could not identify the jailer to whom he made the alleged request. He did admit that he had been read his Miranda rights, both when he was arrested on Saturday and, again, before he talked to the officers on Monday. Simon did not deny making the statement about killing the Parkers to the officers; however, he said he had made it up.
Three inmates of the Quitman County jail testified Simon had made statements to them that he had been involved in the Parker murders, the rape of Charlotte Parker, and in the burning of the Parker house. Simon admitted talking to A.J. Jones, a cellmate; however, Simon denied talking about the Parker case.
Counsel for Simon asked the court to provide adequate funds for a psychologist to evaluate Simon and make a full psychological report to the court. The court granted the defense motion, and the trial judge reserved ruling on the admissibility of the statements by Simon until the psychologist completed his report.
The report of Dr. Kallman, the psychologist hired by the defense, was not available until after the trial had started. However, Dr. Kallman provided a preliminary report to defense counsel the night before the trial started.
The final ruling on Simon's motion to suppress his statements was made after the court had read and considered the report of Dr. Kallman. The trial court ruled Simon's statement to the police officers was freely and voluntarily made and was admissible. The statement was admitted at trial.
Dr. Steve Hayne, a forensic medical specialist, performed an autopsy on Charlotte Parker's body. He found she had been sexually assaulted anally and vaginally, as well as having been shot more than once at close range. The cause of her death, however, was smoke inhalation, rather than the gunshot wounds. One of the bullets was removed from her body and sent to the Mississippi State Crime Laboratory for analysis.
During Simon's trial, the State introduced forensic evidence showing that the handgun found near Parker's truck in Clarksdale was the same gun that had been used to fire the bullet removed from Charlotte Parker's body. Test results also showed the inside front of a pair of Simon's shorts tested positive for the presence of feces.
Deputy Fire Marshall Charles Neal testified the fire in the Parker home had started in the master bedroom. He also stated that, in his opinion, the fire was arson. He noted the melted bedsprings, which indicated a high temperature fire, as well as a metal bucket in the room. No scientific tests to identify an accelerant were performed, however, because of the intense rain that had fallen the night of the fire.
A jury composed of two African-Americans and ten whites, five males and seven females, convicted Simon on all three charges. Simon appeals, with twenty-two assignments
of error. Finding no merit to any of the alleged errors, we affirm.
In Batson v. Kentucky, the U.S. Supreme Court set forth the rule that a criminal defendant has a right to be tried by a jury selected without regard to race. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). This Court has held,
It is thus clear under Batson 's express terms that a defendant raising a Batson claim must show
1. That he is a member of a "cognizable racial group";
2. [t]hat the prosecutor has exercised peremptory challenges toward the elimination of veniremen of his race, and
3. [t]hat facts and circumstances infer [sic] t...
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...ensure that the racial composition of the receiving jurisdiction mirrors that of the transferring jurisdiction. See, e.g., Simon v. State, 633 So.2d 407 (Miss.1993), vacated on other grounds, 513 U.S. 956, 115 S.Ct. 413, 130 L.Ed.2d 329 (1994).8 Indeed, on at least one occasion, the United ......
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...who successfully moves for a change of venue is entitled to a jury of similar racial composition as the original county in Simon v. State, 633 So.2d 407 (Miss.1993). There, venue was originally established in Quitman County where a 1980 census evinced that 55.98% (7,074 out of 12,636 total ......
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