Thorson v. State, 90-DP-00015

• Citation: 653 So.2d 876
• Decision Date: 08 December 1994
• Docket Number: No. 90-DP-00015,90-DP-00015
• Parties: Roger Eric THORSON v. STATE of Mississippi.
• Court: United States State Supreme Court of Mississippi

Page 876

653 So.2d 876

Roger Eric THORSON v. STATE of Mississippi.

No. 90-DP-00015.

Supreme Court of Mississippi.

Dec. 8, 1994.

Rehearing Denied April 20, 1995.

Dale Robinson, Gulfport, Elizabeth Jane Hicks, James W. Craig, Jackson, for appellant.

Michael C. Moore, Atty. Gen., Marvin L. White, Jr., Asst. Atty. Gen., Charlene R. Pierce, Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

HAWKINS, Chief Justice, for the Court:

Roger Eric Thorson has appealed his conviction of capital murder and sentence to death. With the exception of the circuit court's failure to require the State to give a race-neutral reason for peremptorily challenging seven blacks from the venire, we find no reversible error. We accordingly remand this cause to the circuit court of Harrison County for the court to conduct a hearing as mandated by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and affirm on all remaining assignments of error.

FACTS

Morrison's Cafeteria is in the Edgewater Mall in Biloxi. On Wednesday, March 4, 1987, Reggie Brazille, the head chef, had been employed by Morrison's for 14 years, and Gloria McKinney, the head pastry cook, for about six years. Roger Thorson had also been an employee at Morrison's as a pastry cook, but had quit some time previously.

Brazille's working hours were 7:00 a.m. until 3:30 p.m., and he got off work that afternoon between 3:30 and 4:00, leaving work by the back door. As he was cranking his car in the parking lot, Thorson walked up and asked him if Gloria was still working. Brazille said she was and asked Thorson what was the problem. Thorson said he had some things that he wanted to get straight with her.

Rick Gaston, a patrol shift captain on the 3:00-11:00 p.m. shift with the Harrison County sheriff's department, was asked around 4:00-5:00 p.m. on Thursday, March 5, by Deputy Van McClendon to help him with a missing persons report on Gloria McKinney. They first went to the residence of Mrs. C.H. Love, Gloria's mother. Gloria had a trailer behind her mother's. Mrs. Love told them where Thorson lived on Jack Graves Road. Around 6:00 p.m. they found a run-down house on the north side of the road, and directly behind it a trailer. Several individuals came out of the trailer, and after Thorson identified himself, the officers told him they were there to see if he could provide some information on Gloria, who was missing. Gaston told Thorson he was the last person who had been seen with her before she was reported missing.

Gaston testified:

Mr. Thorson stated to me that he had, in fact, seen her at Edgewater Mall and talked to her for a few minutes as she was getting into her vehicle when she left work. The last time he saw her she was driving off in her vehicle by herself, and he was walking away just minding his business.

(R. XVIII, 1029 )

With Thorson's consent, the officers went inside his trailer. The officers then asked Thorson if he would mind accompanying them to the investigation division to "get some personal history, as we do anyone we talk to, and just to discuss the situation, see if he could provide us any information, and he said yes, he did not mind [at] all because he was concerned about her [being] missing, also."

When they got to the Criminal Investigation Division, Thorson was questioned also by Gerry Tootle, investigator with the sheriff's office. At first he told Tootle he did not leave Morrison's with Gloria. Later in the questioning he said, according to Gaston, that he had got into the car with Gloria who gave him a ride "in the area of Cedar Lake Road north of I-10," where she was going one direction and he another, and she stopped and let him out. Tootle recalled that Thorson later revised his story to say that he had got in the car with Gloria, "and left with her and had traveled to the end of Popps Ferry Road at the intersection of 67." He estimated Highway 67 was approximately seven or eight miles from Morrison's. (R. XIX, 2241 ) Thorson was at the division office for several hours, not under arrest, and taken home by Gaston late that night. He was not given any Miranda warnings during any of his questioning on March 5.

Shortly after noon on Saturday, March 7, Gloria's body was discovered by three men in the woods off Lamey Bridge Road, outside her car. The left door of her car was open. ¹

Robert Burris, crime scene technician with the Department of Public Safety, was notified at 3:15 that afternoon by Steve Delahousey, county coroner, and arrived at the crime scene twenty minutes later. It had been raining since the previous night and the dirt road was muddy. Except for a pair of socks, Gloria's body was nude. Beneath her body the ground was dry. A nylon cord tied her wrists, and a brassiere was "tied around her head, around through her mouth." (R. XVIII, 2046 ) The nylon cord, twenty-six and one-half inches long and burnt at each end, while binding both wrists, permitted some movement of the arms. Burris attended the autopsy, and said a 2.2 gram piece of lead was removed from her body. Examination of the interior of the Mercury car showed a great deal of blood on the driver's side. Slacks and underpants were on the other side of the front seat. The car had been wiped with white streaks, and no fingerprints were lifted.

The autopsy was performed Sunday morning, March 8, by Paul McGarry, M.D., a pathologist, assisted by Delahousey, and the time of death estimated by Delahousey to be approximately 7:00 p.m. on March 4.

Around 5:00 p.m. on Saturday, March 7, Thorson was taken by Gaston to Tootle's office for questioning, at which time he was told of Gloria's death and given Miranda warnings. That Saturday evening, Tootle testified:

The statement at that time was the same statement he had made earlier as far as him hitchhiking to Morrison's, leaving the parking lot with Gloria McKinney and traveling down Popps Ferry Road.

He changed the statement from traveling to the end of Popps Ferry Road to turning north on Cedar Lake Road and traveling just north of the interstate, and then pulling off that particular road onto a dirt road for a few minutes. He then departed her vehicle, and he hitchhiked home, and she left traveling in the opposite direction.

(R. XIX, 2259 )

Thorson was questioned for several hours but made no incriminating statement. After midnight Thorson was presented with a Miranda waiver of rights form to sign, and he refused. He was formally placed under arrest at 1:30 a.m., Sunday, March 8. He was not questioned further, and there were no further developments on Sunday.

Thorson rented the trailer where he lived from Patricia (Pat) Isham Cook, who lived in another trailer next to it. On Monday morning, March 9, she informed the sheriff's office of the location where incriminating evidence might be buried. (R. XIX, 2268 ) Tootle and other officers accompanied by Cook went to Thorson's trailer, and around 10:00 a.m., twenty yards from his trailer, they dug up a blue jacket tied in a knot. Inside the jacket was a taped plastic bag containing a pistol, knife, watch, 50-60 .22 caliber bullets, and photograph of Gloria which had been removed from a Mississippi driver's license. (R. XIX, 2261 )

After discovering this evidence, Tootle returned to his office, and Thorson was again brought in for questioning shortly after 10:00 a.m. According to Tootle and Richard Giraud, investigator in the sheriff's department, who assisted Tootle in his questioning, Thorson was again given a Miranda warning, and then shown the items found by the officers. Following this Thorson gave a verbal confession of having gotten in the car with Gloria, and then having threatened her with a knife to drive to a secluded spot, where he forced her to remove all her clothes, bound her with a rope, raped her, cut her throat, and then shot her. (R. XIX, 2305 ).

Following this questioning by Tootle and Giraud, Thorson was presented with a waiver of rights form at 1:49 p.m. on Monday, March 9. Following this, Donald Keith, also an officer in the Harrison County sheriff's office, was called in to operate a videotape recorder, and under questioning by Tootle, Thorson gave a detailed confession.

Thorson was 29 years of age. According to him, Gloria was his fiancee. He went to Edgewater Mall on March 4 and waited until she got off from work shortly before 5:00 p.m. When Gloria was getting into her car, Thorson told her he had come to apologize for something Pat Cook had said to her, and asked her to give him a ride to the Cedar Lake Exit. When they got to the Cedar Lake Exit, he asked her to turn left and give him a ride towards his house. They had driven past Winn-Dixie at the exit when he pulled a knife on her. He said the knife had a lock blade, was approximately 3-4 inches long, with a "copper, gold casing."

After pulling the knife on her, he directed her to continue driving. They turned off Lamey Bridge Road onto a dirt road. He told her to stop the car. He then asked her to take him back and give him a second chance. He told her to remove her clothes, and put a .22 caliber revolver he had purchased from Paul Quinn on the dash of her car.

The revolver had a plastic handle, held six bullets. He said it had no serial number on it, but had "Miami or something or other on it." Gloria removed all her clothes, and Thorson had her turn her back to him. He then took a piece of rope and tied her hands behind her back. He took her brassiere, put it in her mouth and tied the back of it around her neck, giving as his reason he did not want her to bite him. He then told her to lean back on the passenger side of the car. He got out of the car and walked around to the driver's door. Gloria's head was against the passenger door, and he said her clothes were in the back seat.

Following sexual intercourse with her, Gloria slid back into the driver's seat. Thorson got out of the car, went around to the passenger side, took a towel that was in the car,...