Spicer v. State, No. 2003-DP-02281-SCT (MS 1/5/2006)

Decision Date05 January 2006
Docket NumberNo. 2003-DP-02281-SCT.,2003-DP-02281-SCT.
PartiesFRED SANFORD SPICER, JR. a/k/a FREDDIE SPICER, JR. v. STATE OF MISSISSIPPI.
CourtMississippi Supreme Court

Page 1

FRED SANFORD SPICER, JR. a/k/a FREDDIE SPICER, JR.
v.
STATE OF MISSISSIPPI.
No. 2003-DP-02281-SCT.
Supreme Court of Mississippi.
January 5, 2006.

COURT FROM WHICH APPEALED: GEORGE COUNTY CIRCUIT COURT, TRIAL JUDGE: HON. DALE HARKEY, DATE OF JUDGMENT: 05/1/2003

DISPOSITION: AFFIRMED.

ATTORNEYS FOR APPELLANT: ANDRE DE GRUY

ATTORNEYS FOR APPELLEE: SIDNEY AMON BARNETT, DARRYL A. HURT, OFFICE OF THE ATTORNEY GENERAL

DISTRICT ATTORNEY: BY: MELANIE KATHRYN DOTSON, JUDY T. MARTIN, KEITH MILLER

EN BANC.

COBB, PRESIDING JUSTICE, FOR THE COURT:


¶1 On April 30, 2003, a George County jury found Fred Sanford Spicer, Jr., guilty of capital murder. After a sentencing hearing, the jury determined that Spicer should be given the death penalty, and the trial court entered judgment sentencing him to death by lethal injection. Spicer filed a Motion for New Trial, or in the Alternative J.N.O.V., which the trial court denied. He now appeals to this Court and raises the following issues:

1. Denial of his state and federal constitutional and statutory rights because he was brought before the jury in shackles and the trial court denied his timely motion for mistrial.

2. Improper admission of evidence of flight from authorities.

3. Improper admission of prejudicial evidence of character of the decedent in the State's case in chief.

4. Failure to suppress evidence seized in violation of the state and federal constitutions.

5. Insufficiency of evidence to prove guilt of capital murder.

6. Denial of a lesser-included offense instruction.

7. Jury instruction S-81 relieved the State of the burden of proving intent to commit the underlying felony, thereby violating the federal and state constitutions.

8. Allowing the prosecution's "send a message" argument in the guilt phase.

9. Failure of the indictment to charge aggravating circumstances and a mens rea standard.

10. Removal, for cause, of jurors qualified to serve under constitutional standards.

11. Prosecutorial misconduct in closing argument of the sentencing phase

12. Allowing the jury to consider the aggravators of robbery and pecuniary gain.

13. Admission of irrelevant and prejudicial photographs of the accused.

14. Cumulative error sufficient to require reversal of the conviction and death sentence.

¶2 Finding that Spicer's assertions of error have no merit, we affirm.

FACTS

¶3 In late September, 2001, Edmond Hebert invited Fred Spicer to live with him in his trailer located at 170 Pinewood Drive, Lucedale, Mississippi. At the same time, Hebert helped Spicer obtain employment with the roofing company for which Hebert worked. On the night of October 11, 2001, Hebert and Spicer left work and drove to Woody's Outpost in Jackson County, Mississippi, where they bought beer, and then proceeded to the home of Larry Beauchamp, where they spent several hours drinking and socializing. While at Beauchamp's home, Hebert mentioned that he was in violation of his parole from Louisiana and that he might have to return there to finish his prison sentence. Hebert then asked Beauchamp to take care of his dog if he ever had to return to Louisiana. When Spicer heard Hebert's request, he told Hebert that he wanted the dog if Hebert had to return to Louisiana. Hebert replied that he had already given the responsibility to Beauchamp. According to Beauchamp, Spicer's attitude and demeanor changed when Hebert refused to give Spicer responsibility of the dog. Hebert and Spicer left Beauchamp's home after several hours and Beauchamp was the last known person besides Spicer to see Hebert alive.

¶4 On October 12, 2001, Hebert's mother, Patricia Elder, received a phone call from the employer of Hebert and Spicer, stating that the two had been fired for not showing up for work. Elder lived next to Hebert's trailer, and she went over to tell Hebert of the phone call she received. When she saw that Hebert's green Nissan truck was not there, she returned to her home.2 She came by Hebert's trailer a second time after she returned from a trip into town, but Hebert's truck was still not there. A third check by Mr. and Mrs. Elder later in the day again revealed that Hebert's truck was not there.

¶5 Around the time Elder first began searching for Hebert, Deputy Sergeant Brian White of the Jackson County Sheriff's Department noticed a man driving a green Nissan truck in an unusual manner. Traveling northbound on Market Street in Jackson County in a marked vehicle, Sergeant White stopped at the intersection with Highway 90. Traveling southbound on Market Street, the green Nissan stopped at the same intersection and proceeded to make a left-turn onto Highway 90. Sergeant White testified:

I noticed a green Nissan pickup truck facing me with a white male, white female occupant. The driver just, immediately when I pulled up, put a cold stare, what I call a cold stare on me. He just made eye contact with me and did not break eye contact with me.

Sergeant White then stated:

The green Nissan pickup truck began to make a left-hand turn onto Highway 90, at which time the driver never broke eye contact with me. As the driver began to make his left-hand turn, his stare continued in my direction, and as the vehicle began its left-hand turn, he just turned his head along with it, keeping a stare on me. And the white female passenger put her hand over her face and tried to squat down in the seat to avoid contact with me.

After Sergeant White turned right onto Highway 90 behind the green Nissan truck, he noticed the female passenger still squatting down in the passenger side of the vehicle and the driver still staring at Sergeant White through the rear-view mirror.

¶6 Due to the suspicious actions of the Nissan's passengers, Sergeant White began to follow the truck in the far left lane and called in the license plate number to the Jackson County Sheriff's Department for a background check. Suddenly, the Nissan crossed three lanes of traffic without using a turn signal and turned right into the parking lot of the China Garden Restaurant. Sergeant White was unable to change lanes safely due to the flow of traffic and thus proceeded to the nearest turnaround and pulled into a parking lot where he waited to see if the Nissan would drive by. A few seconds later, the Nissan truck drove by, traveling in the same direction as before. Sergeant White decided to pull the truck over, but before he could reenter Highway 90, the truck suddenly turned right into a motel parking lot. As Sergeant White turned onto the motel premises, he observed the driver and the female passenger exit the truck and attempt to hide.3 After a brief search of the parking lot, Sergeant White was able to detain the driver, who, when commanded to display his hands, threw the keys of the Nissan truck to the side.

¶7 Despite questioning from Sergeant White, the driver refused to identify himself and had no identification on his person. Sergeant White found the keys that the driver discarded and asked the driver whether the keys belonged to him. The driver responded by saying, "What keys?" When the dispatcher informed Sergeant White that the license plate identified that car as registered to Edmond Hebert, Sergeant White asked the driver whether he was Hebert. The driver responded by saying, "I don't know who you are talking about."

¶8 While Sergeant White was attempting to question the unknown driver, Lieutenant Krebs of the Jackson County Sheriff's Department came to the scene and stayed with the driver while Sergeant White attempted to locate the female passenger. He found the passenger hiding behind a garbage can on the top floor of the hotel and determined her name to be Angel Hinger.4 Hinger identified the unknown driver as Freddie Spicer and that Spicer had told her that "he did not need to be caught in [the] pickup truck."5

¶9 When Sergeant White returned to where he left Krebs with Spicer, Krebbs said that Spicer had revealed his first name to be Freddie. Sergeant White decided to detain Spicer and have the truck held until a positive identification could be made of Spicer.6 Before the truck was towed, White conducted an inventory search in the presence of Spicer pursuant to Jackson County Sheriff's Department procedures. Through the inventory search, the officers discovered paperwork stating that Edmond Hebert was the registered owner of the vehicle, and also discovered a sword in plain view on the front seat and a camouflage jacket and drugs in the truck's toolbox.

¶10 After completing the inventory search, White transported Spicer to the Jackson County Adult Detention Center. During transport, Spicer told Sergeant White his date of birth and social security number. With this information, they determined that the driver of the Nissan truck was indeed Freddie Spicer and that he was wanted by police in Franklin, Massachusetts, for burglary. Once Spicer was positively identified, Sergeant White issued Spicer three traffic citations for improper lane usage, driving with no driver's license, and resisting arrest by fleeing. At the detention center, Spicer continued to deny knowing who the truck belonged to or that the keys he threw away matched the truck.

¶11 The George County Sheriff's Department was contacted and requested to check on Edmond Hebert's welfare. George County Deputy Sheriff John Hilburn drove through the neighborhood where Hebert's trailer was located, but he could not find the actual address. He then approached James Elder, Hebert's stepfather who happened to be outside, and asked Elder if he knew Hebert. When James Elder identified himself as Hebert's stepfather, the two proceeded to Hebert's trailer. The trailer was locked, and they received no answer to their knocks on the door and windows. Elder then forced the door open and found Hebert's body dead on a couch, covered with blood from facial and head wounds. There were also blood spatters on the trailer walls, ceiling, floor, lampshades, and a...

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