Spann v. State

Decision Date24 August 2000
Docket NumberNo. 1999-KA-00149-SCT.,1999-KA-00149-SCT.
Citation771 So.2d 883
PartiesEllis SPANN, III v. STATE of Mississippi.
CourtMississippi Supreme Court

Jeffrey L. Hall, Hattiesburg, Attorney For Appellant.

Office of the Attorney General by Deirdre McCrory, Attorney for Appellee.

BEFORE PRATHER, C.J., SMITH AND DIAZ, JJ.

STATEMENT OF THE CASE

SMITH, Justice, for the Court:

¶ 1. Ellis Spann, III was convicted in the Circuit Court of Forrest County, Mississippi, of aggravated assault and capital murder. On the count of aggravated assault, Spann was sentenced to serve twenty years in custody of the Mississippi Department of Corrections, to run consecutively with a sentence of life imprisonment without parole on the count of capital murder. Spann has appealed his conviction to this Court.

STATEMENT OF FACTS

¶ 2. At 8:30 p.m. on July 29, 1997, Ellis Spann III ("Spann"), nineteen years old, and Jerrian Horne ("Home"), fourteen years old, entered Uncle Guy's Quick Stop in Hattiesburg, Mississippi. Spann was armed with a .38 caliber revolver, and Horne with a .22 caliber rifle. The third member of the trio, Terry McLaurin ("McLaurin"), remained outside the store. Myong Ja Son (commonly referred to as "Ms. Su"), an employee of the Quick Stop, and her brother, Myong Cheon Son ("Son"), were behind the counter watching television. Both Ms. Su and Son were shot. Ms. Su, who was shot in the wrist and in the chest, survived her injuries. Son was killed by a gunshot wound to his head. A bullet also grazed his right shoulder. Spann, Horne, and McLaurin fled the scene immediately. The crime was recorded by a video surveillance camera located behind the counter.

¶ 3. On December 2, 1997, the grand jury of Forrest County, Mississippi, returned an indictment charging Spann, Horne, and McLaurin with aggravated assault and capital murder. Forrest County Circuit Court Judge Richard W. McKenzie granted Spann's request that his trial be severed from that of Horne and McLaurin. On November 23, 1998, the circuit court granted the State's motion to amend the indictment to correct a scrivener's error in Count II of the indictment. The original indictment alleged that the underlying felony for the capital murder charge was the crime of robbery, committed in violation of Miss.Code Ann. § 97-3-73 (1994). The indictment was amended to reflect that the underlying felony was the crime of armed robbery, committed in violation of Miss. Code Ann. § 97-3-79 (Rev.1994).

¶ 4. At trial, Ms. Su testified that she recognized Horne and Spann, who regularly came into the store. She stated that on the day of the crime, they came into the store three or four times. In court, Ms. Su identified Spann as the man who shot her. Officers of the Hattiesburg Police Department interviewed Ms. Su at the hospital, and she gave them a description of Horne, a black male with red hair and blue eyes. She told them where Horne lived.

¶ 5. Upon arriving at Horne's residence, Lieutenant Charles DeJarnett found Horne, who told DeJarnett that he had been at a friend's house on Claiborne Avenue that evening. Officers went to the house on Claiborne Avenue, the home of Essie Ellis ("Ellis"), where they retrieved the .22 rifle from beneath the house. Ellis testified that her nephews, Terry McLaurin and Tony McLaurin, were living with her at the time. She stated that on the day of the crime, Horne and Spann were at the house visiting the McLaurin boys. She stated that Spann lived with his grandmother across from the Ellis house. Ellis testified that between 8 p.m. and 9 p.m. the evening of the crime, she heard a noise outside. She stated that she had corrugated metal around the house and heard it rattling. She stated that she went to the bathroom window and asked who was there. She testified that Horne identified himself and said he was "taking a pee" and had knocked the metal down. Behind the metal, police officers recovered the .22 rifle. Ellis testified that the following day, police officers returned to the house, and Ellis signed a written consent form for search of the house. Under a bed in the house, the officers recovered the .38 revolver.

¶ 6. Horne and McLaurin were taken into custody. Warrants were issued for the arrest of Spann, who could not be located the evening of the crime. Spann's father brought Spann to the police station the following afternoon. Detective Rusty Keyes interviewed Spann at the police station. Keyes stated that before talking to Spann, he read Spann his Miranda rights and waiver, which Spann signed. Spann's statement reads as follows:

Q: Do you know anything about the robbery and shooting that occurred at Uncle Guy's Quick Stop on July 29, 1997, located at 1021 Edwards Street?
A: Yes.
Q: In your own words, please tell Detective Rusty Keyes what you know.
A: At about 8:30, me, Ba-Ba and Fatso1 walked to the store. Ba-Ba went into the store first, and I came in behind him. After he walked from me, he walked to the old man, then Ms. Su started screaming and hollering, and Ba-Ba and I shot. Then Ba-Ba took off running and I took off running. Then I left out of the store and went home and changed clothes. I then left and went to the country and came back this morning.
Q: Why did the three of you go to the store?
A: We were going to get cigarettes, and Ba-Ba said that he was going to rob the store.
Q: Who gave you the revolver that was used in the shooting
A: I got the gun from Ba-Ba while walking to the store. He had the rifle in his pants.
Q: Where is the gun at this time?
A: I left the gun on Fatso's porch, and I left and went home.
. . . .
Q: How many shots did you fire inside the store?
A: Probably two.
Q: Who did you shoot in the store?
A: Ms. Su and no one else.

Spann's motion to suppress his statement was denied by the trial court. The defense rested at the close of the State's case-in-chief.

¶ 7. The jury found Spann guilty of aggravated assault and capital murder and found that Spann should be sentenced to life imprisonment without parole for the crime of capital murder. On December 14, 1998, the circuit court sentenced Spann to serve a term of twenty years for aggravated assault, to run consecutively with the life sentence.

¶ 8. On December 21, 1998, Spann filed a Motion for Judgment Notwithstanding the Verdict or, in the Alternative, for New Trial. The circuit court denied the motions on January 15, 1999. On January 22, 1999, Spann filed a notice of appeal. He raises the following contentions:

I. THE TRIAL COURT ERRED IN FAILING TO GRANT A MISTRIAL.
II. THE TRIAL COURT ERRED IN DENYING SPANN'S MOTIONS FOR DIRECTED VERDICT AND FOR JUDGMENT NOTWITHSTANDING THE VERDICT.
III. THE TRIAL COURT ERRED IN FAILING TO GIVE A PEREMPTORY INSTRUCTION TO THE JURY REQUIRING THEM TO RETURN A VERDICT OF "NOT GUILTY."
IV. THE VERDICT OF THE JURY WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE, AND THE VERDICT EVIDENCED BIAS AND PREJUDICE AGAINST SPANN.
V. THE TRIAL COURT ERRED IN ALLOWING INTO EVIDENCE A PROJECTILE WITHOUT ESTABLISHING THE PROPER CHAIN OF CUSTODY.
VI. THE TRIAL COURT ERRED IN ALLOWING INTO EVIDENCE CRIME SCENE PHOTOGRAPHS.
VII. THE TRIAL COURT ERRED IN ALLOWING THE MANIPULATION OF THE SURVEILLANCE TAPE.
VIII. THE TRIAL COURT ERRED IN ALLOWING THE STATE TO AMEND THE INDICTMENT.
IX. THE TRIAL COURT ERRED IN ALLOWING INTO EVIDENCE SPANN'S CONFESSION.
X. THE TRIAL COURT ERRED IN FAILING TO GRANT SPANN'S JURY INSTRUCTION REGARDING THE AGE OF HORNE AND HIS ELIGIBILITY TO RECEIVE THE DEATH PENALTY AND IN PROHIBITING DEFENSE COUNSEL FROM ARGUING THAT HORNE WAS INELIGIBLE TO RECEIVE THE DEATH PENALTY.
XI. THE STATE'S EXERCISE OF PEREMPTORY STRIKES VIOLATES BATSON V. KENTUCKY.

DISCUSSION OF LAW

I. THE TRIAL COURT ERRED IN FAILING TO GRANT A MISTRIAL.

¶ 9. Spann argues that the trial court committed reversible error in refusing to grant a mistrial during Ms. Su's testimony. The applicable standard of review for denial of a motion for mistrial is abuse of discretion. McGilberry v. State, 741 So.2d 894, 907 (Miss.1999).

¶ 10. Ms. Su, who speaks only broken English, testified with the aid of an interpreter. On direct examination by the State, while the State was attempting to lay a foundation to support an in-court identification of Spann by Ms. Su, Ms. Su, apparently in an emotional state, pointed at Spann. The court instructed the jury to leave the courtroom, at which time the State proffered the testimony of Ms. Su. During the proffer, Ms. Su again pointed in Spann's direction. Because Ms. Su was having difficulty describing the person to whom she was pointing, the trial judge allowed Ms. Su, outside the presence of the jury only, to walk over to Spann and point him out. The trial judge explained that he did not want Ms. Su to walk over to Spann in the presence of the jury, but stated that because the jury was out, "if she identifies him to my satisfaction outside the presence of the jury, then I don't have any objection to her at the appropriate time pointing to the defendant and saying what he's got on if, in fact, she has identified him." The trial judge explained that, based upon Ms. Su's identification of Spann on proffer, he would allow her to identify Spann in open court, but told the prosecutor that Ms. Su was not to leave the witness stand and that she must not point to Spann until the prosecutor asked Ms. Su if she could identify Spann. The interpreter explained this to Ms. Su. At that time, defense counsel moved for a mistrial. The judge denied the request, and, upon the jury's return to the courtroom, issued a precautionary instruction:

I'm going to instruct you at this particular time that any previous or prior gestures made by this witness, i.e. the same as pointing in any direction, should be totally disregarded by you as a jury and would be of no evidentiary value.

The prosecutor then laid the appropriate foundation for Ms. Su's identification of Spann, following which the prosecutor asked Ms. Su...

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