State v. Divers
| Decision Date | 05 September 1996 |
| Citation | 681 So.2d 320 |
| Parties | 94-0756 La |
| Court | Louisiana Supreme Court |
R. Neal Walker, New Orleans, for Applicant.
Richard P. Ieyoub, Attorney General, Jerry L. Jones, District Attorney, Madeline M. Slaughter, Monroe, Charles L. Cook, West Monroe, for Respondent.
[94-0756 La. 1] JOHNSON, Justice. *
On July 6, 1988, a grand jury in Ouachita Parish indicted James E. Divers for two counts of first degree murder, in violation of R.S. 14:30. On July 26, 1991, following a jury trail, the defendant was found guilty as charged on both counts. The jury then recommended the death penalty, having found two statutory aggravating circumstances, namely: (1) the offender was engaged in the perpetration or attempted perpetration of armed robbery, and first degree robbery; and (2) the offender knowingly created a risk of death or great bodily harm to more than one person. La.C.Cr.P. art. 905.4.
On direct appeal to this court under La. Const. Art. 5, § 5(D), the defendant assigns 95 assignments of error of which 61 were briefed. Finding merit in his argument that certain jurors should have been excused for cause but were not, we reverse the conviction and sentence, and remand this case for a new trial.
On April 12, 1988, two college students reported to the police that, while walking for exercise at the Moon Lake [94-0756 La. 2] recreational area in Monroe, Louisiana, they came across what appeared to be two dead bodies. The authorities arrived and discovered two bound and gagged black men: Winston Vandervield, 1 who was dead, and Simmie Lee Stevenson, who was unconscious. Each man had been shot once in the head with a small caliber weapon. Vandervield's mouth was taped shut with duct tape and his ankles and wrists were bound with men's neckties. His sweatpants were pulled down around his ankles and his underpants were pulled low, exposing his pubic hair. Stevenson was gagged with a piece of cloth and some men's neckties. His wrists were bound with a length of electrical cord and more neckties. Vandervield did not appear to have been injured in any other way, but Stevenson had several small lacerations on his face. Stevenson was transported to a local hospital where he died as a result of his injuries.
Stevenson's car, a 1983 maroon Chevrolet Monte Carlo, was found in nearby Sterlington, Louisiana, 2 and was seized by the police. Blood and pillows covered in blood were found in the Monte Carlo's trunk and blood was found in the car's back seat. In addition, a piece of electrical cord like the one used to tie Stevenson's wrists was found in the trunk. Stains made by the victims' blood were also found on the carpet of Vandervield's house at 1403 Mississippi Street in Monroe. Because there was blood in the house and car, it appeared to the police that at least one, if not both of the victims had been shot at the house. However, the police left open the possibility that one of the victims was shot at the Moon Lake location. "The Moon Lake Murders" as they were dubbed by the press at the time, generated a fair amount of publicity, although it was noted by some reports that this was not the first time that the Moon Lake recreational area had been used as "a dumping ground for bodies."
[94-0756 La. 3] The police got its first break in the case about a month after the bodies were found. The Dallas police reported that they had located Winston Vandervield's 1988 white Dodge Shadow, which had been missing since the night of the murders. The person who had been seen driving the car was the defendant, who was then apprehended and questioned by the police. The defendant gave his name as "Jessie Divers," and claimed he had gotten the car in Dallas by trading some addicts about $250 worth of cocaine for it. A check of police records provided information which confirmed that the defendant's first name was James, not Jessie. Jessie was the name of defendant's brother. Divers maintained that he had not been in Monroe since February, 1988 and that he had never met Vandervield or been to his house. However, Divers' fingerprints were found on several items in Vandervield's house.
A few days after Divers was arrested in Texas, his cousin, Everett Tyronne English, was arrested in Monroe in connection with the "Moon Lake Murders." English confessed to having been involved in the events leading up to the deaths of Vandervield and Stevenson and gave several statements, including a recorded statement. In this statement, English portrayed Divers as the ringleader and himself as a hapless youth who unwittingly found himself in the wrong place at the wrong time, however he refused to testify against Divers and his statements were ruled inadmissible. Divers was then confronted by the police with the fingerprint evidence linking him to Vandervield's house and with English's statements, but Divers still refused to make an inculpatory statement.
However, two of Divers' cellmates came forward to claim that Divers had confessed to them. Their testimony was given pursuant to a Motion To Perpetuate testimony. There was no indication that the two informants knew each other or were working in concert. One of them, Joel B. Thompkins, had been in a "tank" with the defendant in a Dallas jail, whereas the other, Donald Jack Elledge, had been housed with him in the Monroe jail. Each informant approached the authorities individually and each gave [94-0756 La. 4] similar, although not identical, information which they claimed had been provided to them by Divers. Both claimed that Divers had admitted to them that he killed the two men found at Moon Lake.
On March 4, 1991, Thompkins testified that Divers had bragged to him that he "killed two homosexuals in Louisiana but got caught in Dallas because he had the car." He claimed that Divers had been "pimping punk", 3 however, he said that Divers' real motive for going to Vandervield's house on the night in question was to commit a robbery. He went on to say that Divers's cousin had voluntarily participated in the robbery, but that he "just flipped on [Divers]" when the violence started. Divers claimed that his cousin urged him not to kill the victims, prompting Divers to want to kill his cousin as well. Thompkins also claimed that when Divers learned that his cousin had made a statement to the authorities, Divers said he was going to make it look like his cousin did it.
Subsequently, on April 2, 1991, Elledge testified that Divers first approached him to ask for assistance with his case. 4 Elledge said that Divers then told him that he (Divers) had pulled the trigger on both victims. Divers told Elledge that he killed these men because he had been having a homosexual relationship with one of them and when Divers discovered that Vandervield was HIV positive he became concerned that others would find out about it. He further stated that Divers also told him that he killed the men and disposed of their bodies in the way he did to make it look as if their deaths had been incidental to a robbery. Elledge said that Divers' cousin had been a willing participant in the robbery, but that the cousin had turned Divers in for the murders, making a lengthy statement [94-0756 La. 5] against him. Elledge also said that Divers told him about a plea bargain he had been offered.
During trial, voir dire was conducted over several days. The judge did not deny the defendant's change of venue motion until a jury had been selected. The judge opted not to conduct individual voir dire, but questioned the jurors in panels of four to contain the risk of taint from any prejudicial comments. Both the State and the defendant challenged many prospective jurors for cause.
The State employed a "check one of the above" approach, arguing to the jury that the defendant was guilty of two counts of first degree murder because he intentionally killed two people either: (1) during the commission of an enumerated felony, such as armed robbery, first degree robbery, simple robbery, aggravated kidnapping, or second degree kidnapping, or (2) with the specific intent to kill or inflict harm on more than one person.
The defendant presented an alibi defense through the testimony of two witnesses who claimed that, although the defendant was in fact in Monroe on the night in question (contrary to what he told the Dallas police), he spent the entire evening attending a barbecue and chaperoning a 14-year old family friend. The prosecution presented no rebuttal. The jury deliberated for one hour and 18 minutes before returning guilty verdicts on both counts of first degree murder.
Twenty minutes after the jury returned its verdicts in the guilt phase, the trial court commenced the penalty phase. The prosecution introduced the testimony of one witness, a Los Angeles police officer who arrested the defendant on prior felony charges and submitted the testimony and evidence presented in the guilt phase. Divers took the stand and stated that, although he had once been addicted to PCP, he had never sold the drug and had not used it since 1986. The defendant's mother and aunt (Mary English, the co-defendant's mother) both testified in his behalf. [94-0756 La. 6] The final defense witness was Dr. Doyle Preston Smith, a specialist in addiction medicine, who testified to the effects of long-term narcotics addiction. The sole rebuttal witness was Linda Jones, a former girlfriend of the defendant, who disputed the defendant's testimony that he never dealt PCP.
The jury deliberated for two hours and 15 minutes before returning its recommendation that the defendant be sentenced to death. Although the defendant was convicted of two counts of first degree murder, the state asked for a single verdict and the jury returned only one penalty phase verdict.
After the jury filled out written polling slips, confirming its verdict, the jurors were...
To continue reading
Request your trial
-
State v. Odenbaugh
...1979) (first degree murder occurred in Lafayette Parish, case transferred to Ouachita Parish on change of venue). In State v. Divers, 94-0756 (La. 9/5/96), 681 So.2d 320, the defendant was charged with two counts of first degree murder; convictions and death sentences reversed by this Court......
-
State v. Miller
... ... However, this court has reversed several death penalties in which reverse- Witherspoon challenges by the defense have been denied, but answers to questions on the particular aggravating circumstances required disqualification of the juror. See State v. Divers, 94-0756 (La.9/5/96), 681 So.2d 320 (death penalty reversed because two jurors would not consider a life sentence when the particular case involved a premeditated murder); State v. Maxie, 93-2158 (La.4/10/95), 653 So.2d 526 (death penalty reversed because a juror would not consider a life ... ...
-
State v. Scott
...to disqualify a venire person unable to consider both life and death as penalties constitutes reversible error. State v. Divers, 94-0756 (La.9/5/96), 681 So.2d 320 (death penalty reversed because two jurors would not consider a life sentence when the particular case involved a premeditated ......
-
State v. Ball
... ... State v. Taylor, 99-1311, p. 8 (La.1/17/01), 781 So.2d 1205, 1214 ... The failure to disqualify a venireman unable to consider both life and death as penalties constitutes reversible error. State v. Divers, 94-0756, pp. 8-13 (La.9/5/96), 681 So.2d 320, 324-27 ... In the instant case, seven panels of 13 prospective jurors were first questioned initially as to their views on capital punishment in pre-qualification rounds. Before questioning by the lawyers, the trial court informed ... ...