Turner v. State
| Decision Date | 12 December 1990 |
| Docket Number | No. 03-DP-0082,03-DP-0082 |
| Citation | 573 So.2d 657 |
| Parties | Kevin Lewis TURNER v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
T. Patrick Welch, John P. Price, McComb, Clive A. Stafford Smith, Atlanta, Ga., for appellant.
Mike C. Moore, Atty. Gen., Marvin L. White, Jr., Asst. Atty. Gen., Jackson, Dunn O. Lampton, Dist. Atty., Magnolia, for appellee.
ON PETITION FOR REHEARING
En Banc.
PART ONE: GUILT PHASE
Kevin Lewis Turner was indicted in the Circuit Court of Pike County, Mississippi, for the capital robbery/murder of Elizabeth Blakely, and, as an habitual criminal. Venue was changed to Hinds County where the trial began on May 26, 1987. Turner was found guilty of capital murder on May 28, 1987, and in a bifurcated trial, the jury imposed the death penalty upon Turner the next day. Thereafter, the trial judge conducted a hearing on the habitual criminal charge and Turner was adjudged to be an habitual offender. Turner has appealed to this Court and assigns twenty-two (22) errors in the trial below.
The facts of this case are undisputed. On December 2, 1985, appellant Kevin Turner and Eric Jones went to the "Forget Me Not" grocery in Summit, Mississippi, for the purpose of burglarizing it. When they arrived at the store, they found the front door to be unlocked. They opened the door and entered the store. Elizabeth Blakely, the owner and only occupant, came from the back to wait on them. Jones asked for change to use the cigarette machine and Ms. Blakely went to the rear of the store to make the change. Upon her return to the front, Kevin Turner pulled a .38 revolver, pointed it at her and said that it was a stickup. Immediately, Turner shot the victim and moments thereafter shot her two more times. Two of the wounds were fatal, one being to the brain and another through the heart. The third was a flesh wound. After shooting Ms. Blakely, Turner and Jones searched and ransacked the building looking for valuables. Approximately $190.00 in cash was found and taken by Turner. They took the victim's car keys, house keys and purse, and went next door to her home which they searched for things of value. After leaving the premises in disarray, they returned to the store, wrapped the victim's body in a blanket and put it in the trunk of her car.
Turner and Jones then went to the house where Jones lived, changed clothes, and told Jones' mother that they were going to New Orleans. Turner went back to the store, got the victim's car, and picked up Jones around the corner. They drove around for a while and then decided to drive to Memphis and dump the victim's body. When they arrived in Memphis, they decided to drive on to Chicago.
Appellant Turner lived in his mother's house in Chicago and had gone to the Summit, Mississippi, community for a visit. When Turner and Jones arrived in Chicago, they went to the home of appellant's mother and stayed there. During their stay, they committed crimes, including robberies, in Chicago. In the meantime, family members, being concerned about the disappearance of Ms. Blakely, began to make inquiries and notified law enforcement officials. They entered the victim's home and store, where they discovered the evidence of foul play. The investigation indicated Turner and Jones were suspects, the Chicago Police Department was contacted, and the license plate number of Ms. Blakely's car was given the Chicago police along with the address of appellant's mother.
The Chicago police went to the Turner home, where they found Kevin Turner and Eric Jones and arrested them. They opened the trunk of the victim's car and found her body. This occurred on December 8, 1985, seven (7) days after the robbery/murder.
The jury, which heard this case, comprised eight (8) blacks and four (4) (1) The first peremptory strike used by the State was against a prospective juror by the name of Brenda Bell, who is a black female. The prosecutor told the court that he had initially challenged her for cause because she said, "In my mind I couldn't vote for the death penalty." The prosecutor felt that she had conscientious scruples against the death penalty and that she could not be fair in her decision. The trial judge agreed with the prosecutor and stated that it was a non-discriminatory exercise of peremptory challenge and he allowed it.
whites with one (1) white alternate and one (1) black alternate. The State exercised six (6) peremptory challenges to excuse blacks and two (2) to excuse whites. The appellant exercised twelve (12) peremptory challenges, all against whites. The appellant complains that there was discrimination in the selection of the jury. As soon as the jury selection process began, the appellant raised the Batson 1 issue and the trial judge, without further discussion, instructed the prosecutor that the State would be required to give race neutral reasons as to the peremptory challenge of any black person. The reasons stated by the prosecutor appear follow:
(2) The second challenge was against a woman by the name of Juanita Bennett. The record is not clear as to whether or not she was black or white, but it appears that she was a black female. In any event, the prosecutor objected to her for the same reasons as the previous juror because she stood up during voir dire and stated she was against the death penalty. The trial judge found that this was also a non-discriminatory exercise of a peremptory challenge and he allowed it.
(3) The third challenge used by the State was against David Bradley, white male. The State excused him for the same reason as the two previous jurors--that he was opposed to the death penalty. The court then tendered those to the defense, and the defense used five (5) of its challenges, all against white members of the jury.
(4) The fourth challenge used by the State was against Julia D. Brown. The State gave the reason that she also stood up in voir dire and expressed opposition to the death penalty. The trial judge accepted that as being non-discriminatory and allowed the strike.
(5) The prosecutor next struck a white female by the name of Susan L. Brumfield because she was opposed to the death penalty.
(6) The sixth challenge was to a black female by the name of Valerie Butler. The prosecutor said that she had stated on voir dire that she did not think that this case was as important as some other cases which have occurred in Hinds County. The prosecutor stated that she also attempted to walk out of the courtroom and that several times she stood up and walked around during voir dire and got coffee. The court also noticed that she had stated that she had heard about this case through relatives. The trial judge allowed the challenge as being non-discriminatory.
(7) The seventh challenge used by the prosecutor was against a black male by the name of Roy L. Davidson. The prosecutor's reason for striking this man was that he was currently charged with a crime, that he had said he was the head of a household and needed to be home with his kids, and that he was a teacher, currently in the middle of giving exams. This juror also had asked to be excused from service. The trial judge allowed the peremptory strike as being non-discriminatory based on the fact that the man was charged with a crime.
(8) The eighth juror stricken by the State was a black female by the name of Beulah M. Dillon. The State's reasoning was that she also tried to leave the courtroom, did not listen to the prosecutor during voir dire, that she requested to be excused, and her employer had written a letter for her, asking for her to be excused. The prosecutor reasoned that because she had prepared a letter asking to be excused from service, her attention to the case would be distracted. The trial court agreed with the prosecutor (9) The prosecutor next attempted to challenge a black female by the name of Brenda Dotson. His reason was that she is a Catholic and had taken a position against the death penalty. The prosecutor stated that his main reason was the fact that she did not respond to the questions that he asked. The trial judge did not allow this strike, and the juror ultimately was seated on the jury.
and allowed the challenge as being non-discriminatory.
(10) The State attempted to strike a black male by the name of S.L. Edwards. The prosecutor stated that Edwards had been unresponsive to his questions and had not answered a single one and that he was uncomfortable with seating the man on the jury. The trial court did not permit the exercise of this challenge, and this man was seated on the jury.
The trial court then moved into the selection of the alternate jurors and allowed each side two strikes per alternate. The prosecutor attempted to strike a Mr. Tony Fields, Jr., as being unresponsive to any of his questions and that he had read about capital murders in the paper. The trial court did not allow this strike and seated Mr. Fields on the jury. Mr. Fields is a black male.
(11) The last strike used by the State was against a Mr. Charles Fulgham. The State's reason was that Mr. Fulgham had told them he had health problems and had conscientious scruples against the death penalty and that he wouldn't keep an open mind and would not listen to the evidence. The court agreed and found that this was a non-discriminatory use of the peremptory challenge and allowed such by the State.
As to the appellant's contention that opposition to the death penalty is some form of discrimination, the issue has already been addressed in Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986), where the U.S. Supreme Court ruled that opposition to the death penalty is not in the same suspect classification as race.
The reasons given by the prosecutor for striking the jurors,...
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