Tavares v. State

• Decision Date: 11 June 1998
• Docket Number: No. 96-CT-00030-SCT.,96-CT-00030-SCT.
• Citation: 725 So.2d 803
• Parties: Suzanne Ilene TAVARES v. STATE of Mississippi.
• Court: Mississippi Supreme Court

725 So.2d 803

Suzanne Ilene TAVARES v. STATE of Mississippi.

No. 96-CT-00030-SCT.

Supreme Court of Mississippi.

June 11, 1998.

Rehearing Denied August 20, 1998.

Grady F. Tollison, Jr., Oxford, Amy D. Whitten, E. Farish Percy, Oxford, for Appellant.

Office of The Attorney General by Wayne Snuggs, Billy L. Gore, Jackson, for Appellee.

En Banc.

ON PETITION FOR WRIT OF CERTIORARI

MILLS, Justice, for the court:

Introduction

¶ 1. This case is before the Court sitting en banc on a petition for writ of certiorari filed by Suzanne Ilene Tavares. Ilene was convicted of murdering her husband, Jerry Tavares. She was sentenced to life imprisonment without possibility of parole. The Court of Appeals affirmed her conviction and sentence and her motion for rehearing. Ilene filed a timely petition for writ of certiorari which this Court granted. Finding no reversible error, this Court affirms Ilene's conviction and sentence.

FACTS

¶ 2. Jerry Tavares was killed by three shots from a nine millimeter gun. Bennie Cork became a suspect and informed the police that Jerry's murder was the result of a scheme involving Billy Joe Barnett, Glen Dale Davis, and Suzanne Ilene Tavares, the deceased's wife.

¶ 3. Cork testified that he was approached by Barnett to kill a man. Cork met with Barnett and Davis to discuss the murder. Cork agreed to kill Jerry and the three of them picked out a location to kill Jerry near the store owned by Jerry and Ilene. Cork and Davis took Barnett to the store so he could get Jerry to the murder site. Cork and Davis drove to the murder site and waited on Barnett and Jerry to arrive. Approximately thirty minutes later, Barnett and Jerry arrived in Jerry's truck. Barnett approached Cork, but Cork stated that he was not going to kill Jerry and turned around and walked off. Cork then heard two gunshots and when he turned around, he saw Barnett shoot Jerry a third time.

¶ 4. The three men then drove toward Little Mountain. Barnett told Cork that he was going to call Jerry's wife and let her know the location of the body. Cork testified that Barnett called a lady named "Ilene." Phone records were introduced at trial indicating that a phone call was placed from the Little Mountain Service Station to Ilene's home at 11:01 p.m. on May 11, 1992. Cork was then taken to Maben, Mississippi, and told to get rid of the gun. Cork threw the gun in a creek. It was later recovered by divers.

¶ 5. Cork was paid $500 to get rid of the gun. A check for $500 dated June 30, 1992, payable from Davis to Cork was introduced at trial. Barnett asked Davis to write the $500 check to Cork. Davis told Barnett that he did not have enough to cover the check and that Barnett would have to make a deposit the next day to cover it. A cash deposit in the amount of $495 was made to Davis's checking account on July 3, 1992.

¶ 6. Cork stated that Barnett was supposed to pay him, but Barnett had difficulty in cashing a $1,500 check given to him by Ilene. A check dated June 5, 1992, in the amount of $1,500 payable to Barnett was introduced at trial. The check was drawn on the store's account and signed by Ilene.

¶ 7. Mark Smith, an acquaintance of Jerry and Ilene Tavares and Billy Joe Barnett, testified that two weeks before the murder, Barnett approached him twice and offered him money and a vehicle to kill Jerry. Barnett told him that he could not pay him because he had to wait on some insurance money. Smith declined the offer on both occasions. The weekend before the murder, Smith traded a nine millimeter gun with Barnett. The gun traded to Barnett was the gun used in the murder. The morning following the murder, Barnett told Smith to report the gun as stolen.

¶ 8. At the time of Ilene's trial, Barnett had been convicted of capital murder and sentenced to life imprisonment without parole. Cork entered a plea of guilty to capital murder and received a sentence of life imprisonment with eligibility for parole. Davis had not been tried.

ISSUES

I. THE TRIAL COURT ERRED IN ADMITTING "FLIGHT" EVIDENCE AND IN GIVING "FLIGHT" INSTRUCTION.

II. THE TRIAL COURT ERRED IN IMPOSING AN ILLEGAL SENTENCE OF LIFE WITHOUT PAROLE.

III. THE TRIAL COURT ERRED IN ADMITTING COCONSPIRATORS' HEARSAY STATEMENTS.

IV. THE TRIAL COURT ERRED IN EXCLUDING EVIDENCE THAT BENNIE CORK FAILED POLYGRAPH TESTS.

ANALYSIS

I. THE TRIAL COURT ERRED IN ADMITTING "FLIGHT" EVIDENCE AND IN GIVING "FLIGHT" INSTRUCTION.

¶ 9. On the day of her trial, Ilene did not appear. Ilene's bond was revoked and a warrant was issued for her arrest. She was located at approximately 7:00 p.m. in Attala County by Deputy Hudson of the Attala County Sheriff's Department. Deputy Hudson met Ilene head-on. He recognized her, turned his car around, and pursued her. Ilene sped away. Deputy Hudson chased her for approximately four miles before she lost control of her car and crashed into a ditch. Ilene was intoxicated and her car contained a gun with bullets, $2,247.63 in cash, numerous items of clothes and toiletries, photographs, a road atlas, jewelry, etc.

¶ 10. Ilene filed a motion in limine to keep this evidence from being presented to the jury. The trial judge denied the motion and based his reasoning on testimony presented at the hearing held on the motions for psychiatric examination and for release of personal property. Ilene testified that she left her house to go to the store to call her mother and that was the last thing she remembered before being stopped. She stated that the clothing and toilet items were in her car because she did not use the items anymore and did not have room for all of it in her home. ¶ 11. In denying the motion in limine, the trial judge relied on Pannell v. State, 455 So.2d 785 (Miss.1984),Fuselier v. State, 468 So.2d 45 (Miss.1985), and Mack v. State, 650 So.2d 1289 (Miss.1994). In Pannell, this Court held that a flight instruction was appropriate in cases where the flight was unexplained and in cases wherein flight has considerable probative value. Id. at 788. In Fuselier, this Court further held that "an instruction that flight may be considered as a circumstance of guilt or guilty knowledge is appropriate only where that flight is unexplained and somehow probative of guilt or guilty knowledge." Id. at 56-57. In Mack, this Court found that Fuselier implicitly held that "evidence of flight is inadmissible when independent reasons exist to explain the flight...." Id. at 1309. Finally, the probative value must substantially outweigh its prejudicial effect. Id.

¶ 12. The trial judge made the following findings:

I think based on the law that's developed since Pannell and, of course, Pannell was a development of prior law that you have to ask four things in determining whether or not flight evidence would be admissible.

First would be is the flight unexplained, and I think clearly in this case the flight is unexplained. It's totally denied in fact. So, there's a complete dispute in the testimony as to whether or not flight even occurred at all. The Defendant denies that flight occurred. The deputy on the other hand states that he engaged in a high speed chase that resulted in the Defendant, in fact, running in a ditch and wrecking her automobile. So, that is unexplained.

Now, the Defendant attempted to explain what she did on that date by stating that she blacked out, but that does not explain why she apparently came to as soon as she saw a deputy, and then still denies that she ran from him.

The Court also then will look at the next factor, does it have considerable probative value. And, the Court considered that, and it seems that all of the items in the automobile are consistent with someone that was attempting to flee, escape, or make a quick exit from the jurisdiction of the Court.

Many of the items in the car were apparently scattered around, which certainly tends to show someone that was grabbing as many things as possible trying to make a quick and hasty exit and not taking much time to do that.

Also, you look at the evidence that was actually in—or the items that were actually in the automobile. It was clothes, shoes, suitcases with clothes in them, toiletry items, jewelry, family pictures, a Road Atlas, a large sum of case [sic]. That all is certainly probative of somebody that had guilty knowledge of the crime for which they were charged, and I think that the facts as exist as far as the items that were in the automobile, coupled with the fact that that was the day of her trial, would certainly show considerable probative value of the Defendant's consciousness of guilt of the crime for which she was going to be on trial.

The Court also then had to look at the factor, is the evidence of flight probative of things other than the guilt or guilty knowledge of the murder of Jerry Tavares.

In Fuselier v. State and Mack v. State, our Supreme Court stated that because the defendants were prison escapees that evidence of flight tended to show evidence of proof of guilty knowledge of escape, as well as proof of guilty knowledge of the crime for which they were on trial.

So, there was a situation where there were two separate and distinct trials, I mean crimes; if they ran from one crime they might have been running from the escape charge rather than from the crime for which they were on trial.

The Court seemed to be concerned that a defendant in those cases would have to put on proof of their prison escape in order to defend against the allegations that they were fleeing because of a sense of guilt for the crime for which they were on trial.

Now, in this case the Defendant argues that proof of flight in this case is as much evidence of guilt of failure to show up for trial or for a bond violation as it would be of guilt of the crime of capital murder. But, in reviewing the testimony of the Defendant, and if the Defendant had stated under testimony that that's why she ran that would be one thing, but the Defendant's testimony again, which was re-read

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