Tolbert v. State, 52925
| Decision Date | 16 December 1981 |
| Docket Number | No. 52925,52925 |
| Citation | 407 So.2d 815 |
| Parties | Donna S. TOLBERT v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Richard E. Stratton, III, Brookhaven, for appellant.
Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before SMITH, P. J., and WALKER and BOWLING, JJ.
Donna S. Tolbert was indicted for the murder of Tim Faust. She was tried upon that charge in the Circuit Court of Copiah County, convicted, and sentenced to life imprisonment. She has appealed, assigning for reversal several grounds.
At the time of the homicide, Donna Tolbert was employed by Faust as bookkeeper and receptionist in the operation of an insurance agency in the City of Hazlehurst. The agency office occupied the ground floor of a building fronting on a public street in the downtown business section of Hazlehurst. The testimony, including that of Tolbert, is undisputed that there was only one way in or out of the office, and that was by way of the front door which opened upon the public sidewalk.
The office consisted, in addition to the room used for the transaction of business, of a bedroom, a bath and a kitchen. The murder weapon was identified as a butcher knife from the kitchen. The homicide occurred in the agency office at about 8:00 on a week day morning, on a clear day. At that time, there was traffic on the street and people were moving about. Witnesses occupying various points of vantage, had their attention drawn to the front (and only) door of the office by a "noise", and by the sight of Faust who staggered out of the door covered with blood. It was later determined that Faust had suffered one stab wound in the back and six stab wounds in the chest, one of the stab wounds having pierced his aorta and having penetrated more than six inches into his chest. Faust also had sustained two "defense type" wounds in the left and right forearms. From these injuries Faust died in a very short time.
Faust was seen to emerge from the door of the office the front of the office having been under observation by one or more of several persons on the street on which the office fronted. No person other than Faust himself, and later Tolbert, was seen to emerge from the office. Tolbert's defense is based upon her statement that an unknown "black man" had come into the office and had engaged in an argument with Faust over a debt. She said, and later testified, that it had not been she, but this black man, who had stabbed Faust to death. Tolbert testified that after stabbing Faust the black man had first run toward the back of the apartment (office). She said that there was no possible exit in that direction and that the man had returned and had then left the office following Faust who had previously gone out the door. This black man was seen by no other person of the several who were observing the office entrance through which they had seen Faust emerge.
A number of witnesses saw Faust fall from the front door of his office onto the sidewalk. Each of them saw Tolbert afterward come to the door, return into the office and then come outside again. No one saw anyone else leave the office or flee the scene.
Despite the fact that there were several persons in a position to observe the front door of the agency office from the time Faust emerged until after Tolbert had come out for the second time, no witness observed a "black man" or anyone other than Faust and Tolbert come out of the office. Tolbert had testified that after the black man had stabbed Faust he threatened her (Emphasis added).
Tolbert reiterated this statement on cross-examination when she had been asked if she had meant to say "That when the alleged black man went out the front door that Mr. Faust had already gone out?" She said again "Mr. Faust was holding onto the door" and also that "He had gone out."
Witness Hardy Brown said that his attention was drawn to the door of the office by the noise when Faust had "hit up against the door." He said that after hearing the noise his "eyes was still on Tim Faust's door, over in that direction."
Brown testified that when Faust had fallen out the door "A lady come to the door and stood up there about a second or two and walked back in the office." The witness said that after Tolbert had looked at Faust and returned to the office she afterward came out a second time "bleeding and calling for help." He stated that it was when she had come out the second time that she began "hollering for help," and started crying and screaming.
On cross-examination Hardy Brown testified that, after hearing the noise of Faust falling against the door as he came out of the office, in response to the question: "You just kept your eyes glued to the Faust Insurance Agency door?" answered: "Time this happened I did."
Witness Ann Jenkins testified that she saw Mr. Faust coming out of his door and holding onto the door and that, at the time, she herself had been "right at the edge of the sidewalk going on to the street."
Ann Jenkins was coming out of the bakery when she saw Faust fall out of the door onto the sidewalk, covered with blood. She caught a glimpse of some other person behind Faust whom she described as "a white face and whoever it was had dark hair." She ran toward Faust from the bakery shouting, "He's bleeding to death," and it was then that she saw Tolbert emerge from the office. Mrs. Jenkins saw no other person leave the office or flee the scene.
Donna Goodman, also employed in a secretarial capacity by the Faust agency, had stopped at a traffic light when she observed Faust "hanging" on the outside of his office door and observed him as he fell out of the door face down on the sidewalk. Mrs. Goodman saw no other person other than Faust and Tolbert leave the office.
All of these witnesses agree that no black man or anyone else, other than Faust and Tolbert, came out of the office door.
Other witnesses who had been in the vicinity support the fact that no black man was seen to emerge from the office or flee the scene.
There was evidence that prior to the murder Faust had discovered several inconsistencies or discrepancies in his office checkbook, check stubs, and bank accounts, several check signatures which were questionable. One of Tolbert's duties was to fill out the check stubs and checks. On Thursday, June 26, Faust had asked Debbie Robinson, also an employee of the agency, to examine the signatures on eight Faust checks (numbers 17931, 19504, 18740, 19398, 19404, 19505, 19405 and 19406). These cancelled checks were found to have been in Faust's pocket at the time he was killed. Mrs. Robinson testified that five of the checks did not bear the genuine signature of Faust. The checks referred to were the last five of those enumerated above. These checks were as follows:
CHECK STUB INFORMATION ON
NUMBER INFORMATION CANCELLED CHECKS
------ -------------------- ------------------
18740 1/28/80 Amount: $460.00
To: David Cloyd Amount payable to
1979 Dividend Merchandise and
$21.90 Planters Bank
19398 6/4/80 Amount: $710.00
To: Terry Breland Payable to: Blank
$28.16 No Endorsement
19404 6/4/80 Amount: $380.00
To: Annie Henry Payable: Blank
$12.00 No Endorsement
19405 6/4/80 Amount: $230.00
To: Edwina Varnado Payable to: Blank
$19.20 No Endorsement
19406 6/5/80 Date: 6/6/80
To: Haynes Brinkley Amount: $671.00
Amount: $17.00 Payable to: Blank
For: C. Barnes- No Endorsement
additional
Faust had made inquiries of office personnel, including Tolbert, about the Merchants and Planters Bank and certain refunds. On Thursday, June 26, Tolbert showed Mrs. Robinson the following letter she had written to Faust.
Mr. Faust, I told you when I first started here that if we had a problem to please let's talk it out. There is a problem, but I don't know what it is. I have hinted that I am not above making mistakes and I do make them, and I consider a small one as serious as a large one. I do try my best to do the accounts. I know you doubt me, because it seems lately you'll ask "Are you sure?" All the time. I know I mess up on things, but I've never had to check thing like this or send payments or write checks, or deal with so many different companies before. I also admit I tend to carry over old habits from working with one company for so long, but I try. I know that in the last few months there have been so many mistakes that anything wrong can really throw things off. And I am responsible. I catch all the responsibility and I guess I should. Its' quite a burden. Sometimes I want to throw my hands up. Some days I need three heads and eight hands. I go to bed at night worried. Have I paid this, did this get renewed, did so and so get paid, is this or that late notice paid. I've never been under so much pressure or such a work load but I have considered it a part of the job and good experience. Since I have come back from vacation, there has been something wrong. Is it because I cancelled our car insurance? Jimmy wrote it but I figured you knew that and would do the same thing in my place. Besides in lieu of a pay raise you were going to pay this and I know you were worried about money so much lately. Which brings us to something else. You mentioned...
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