Whittington v. State

• Decision Date: 16 March 1988
• Docket Number: No. 57308,57308
• Citation: 523 So.2d 966
• Parties: James Michael WHITTINGTON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 966

523 So.2d 966

James Michael WHITTINGTON v. STATE of Mississippi.

No. 57308.

Supreme Court of Mississippi.

March 16, 1988.

Rehearing Denied May 4, 1988.

K. Maxwell Graves, Jr., Meadville, J. Carl Parkerson, J. Randolph Smith, Monroe, for appellant.

Edwin Lloyd Pittman and Mike Moore, Attys. Gen. by Deirdre D. McCrory, Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

HAWKINS, Presiding Justice, for the Court:

James Michael Whittington appeals from his conviction in the circuit court of Franklin County of murder of his wife Patricia R. Whittington and sentence to life imprisonment. This is a circumstantial evidence case, the defense being that Mrs. Whittington was killed in a one-vehicle automobile accident, while driving a car in which her husband was riding. The jury concluded otherwise.

The issues we address are set forth in our opinion. A careful examination of this record convinces us no reversible error was committed and we affirm.

FACTS

At approximately 10:00 p.m. on Saturday, July 21, 1984, Henry Vanier was driving west on Mississippi State Highway No. 84, accompanied by Sandra Jones and her child. It was a dry, clear starlit night. About one-fourth of a mile before reaching the county line of Franklin County, they passed a man in the road waving. They turned around, came back, and he asked for help. The man was Whittington. Off the south side of the highway (which runs east-west), and down an embankment approximately 12 1/2 feet deep was a four-door Lincoln Continental automobile headed west. The lights were on and the motor was running. The trunk was open, the door on the driver's side was closed. The front seats, left and right, were upright.

Behind the car was a woman, who Vanier attempted to revive by mouth-to-mouth resuscitation, but she was dead. This was the corpse of Mrs. Whittington.

Whittington asked that his friend John Gore in Monroe, Louisiana, be called. Whittington appeared to Vanier and Sandra Jones to alternate between being calm and hysterical.

Highway Patrolman Darryl Swanigan was one of the investigating officers. When he first arrived at the scene, he saw Whittington bending over the body as though he were about to give mouth-to-mouth resuscitation. Swanigan detected no vital signs on the body of Mrs. Whittington, which felt cool to him.

There was virtually no damage to the car. There was a small dent on the side of the driver's door, some molding had been torn off, and the left outside mirror was bent down. Also, the hood ornament was broken, and there was a crack in the upper right hand corner of the windshield. Once the car had been pulled away from where it was stuck, it was driven back onto the highway.

There was a profusion of blood around the rear of the left door, downwards from the glass. Blood was inside the left door opening on the door facing and the post, and on the outside of the car just to the rear of the left door opening. There was some blood on the left carpeting and driver's seat. No blood was observed on the dashboard or steering wheel.

By tracing the tracks of the car, Swanigan was of the opinion the car veered first off on the north shoulder, then took a 90-degree left turn south across the highway, and then turned back westerly at an angle, and ran off the south side down the embankment. In doing so, it struck a wooden highway construction sign on the south shoulder, tearing off a part of it.

The car came to rest in a thicket of weeds, briars and bushes approximately 180 feet from where it left the highway. There was also testimony of small trees or saplings in the path of the car.

The body of Mrs. Whittington was behind the car and over a tire track, laying prone, face up. The face and upper clothing showed signs of massive bleeding.

The officers detected no signs of injuries to Whittington.

The officers were unable to question Whittington that night, but Tyrone Lockwood, a patrolman, heard Whittington tell a bystander that he was asleep in the car and heard Mrs. Whittington "holler" and woke up and saw her jumping out of the car.

The body of Mrs. Whittington was approximately 138 feet from the edge of the highway. From the mid-thigh region down, her body lay inside the tire tracks, and the rest of her body was outside the tire tracks. The tire tracks from the edge of the pavement to where the car came to rest were unbroken. There was no evidence of the car wheels running over Mrs. Whittington.

Photographs were taken that night at the scene of Mrs. Whittington's body and the automobile.

The body of Mrs. Whittington was taken to the Jeff Davis Hospital in Natchez that night; Whittington was admitted to the hospital. The officers endeavored to question him, but he did not talk to them. A nurse told them she didn't think they could get anything out of him because of his condition; the nurse, however, went in to ask him. Whittington came out of the room and was in sort of an outrage, walking the halls back and forth. He was released the next day. The car remained in Franklin County until it was taken to Monroe, Louisiana.

Gary Austin, a criminal investigator, and Charles Scarborough, an accident reconstructionist, both employed by the Mississippi Department of Public Safety, took a number of color photographs of the car in Monroe on July 25, 1984.

The body of Mrs. Whittington was exhumed on December 18, 1984, and an autopsy performed on it the next day by George M. McCormick, II, a Shreveport, Louisiana, pathologist.

Dr. McCormick observed numerous injuries about her body, head and face. There was a large bruise on the outer aspect of the thigh. There were abrasions on the top of her feet. There was a bruising on the point of her right shoulder, her right biceps at the top part, her right elbow, and undersurface of her right forearm, on top of her right hand, and "snuff box" of her right hand (the cupping in hand between thumb and forefinger).

There was a bruise from her left shoulder down to her left elbow, and a smaller bruise inside the elbow. There was a large bruise on top of her left hand, a very large bruise on her back over her left shoulder blade, which went halfway down her back. There was a large bruise over her right nipple, and the belt level of her hip bone. Bruising was generalized over her body, except on top of her feet, where the abrasions were.

There was a complex of bruises and abrasions over her entire forehead, which were more severe on the left side. There were extensive bruises around both eyes, and a laceration on the outside of the upper left eyelid. There were bruises and lacerations on her nose. There was a laceration down the center, and two off to the side of the nose. He also noted small tears on the under surface of the left side of the nose as if the nose had been pushed upward and torn. There was a large bruise under her chin towards the right, and a long laceration along the jawbone.

There were no fractures or broken bones found.

There were several large lacerations on her scalp through to the skull. Two were long in a straight line from front to back with a circular laceration from the top of her left ear to the back of her head. He noted another large laceration beginning at the right ear, and running back, making a right angle intersection to form a laceration with another laceration, which ran across to the back of the skull towards the left ear, which appeared ragged. There was bruising on top of the head and beneath the scalp. There was extensive bruising over her entire skull. There was hemorrhaging beneath the entire scalp surrounding the lacerations. There was extensive hemorrhaging around and into the brain. There was subdural hemorrhaging down to the spinal cord. The bruises on the brain were continuous on the right side and at the back.

He found the inside of her mouth clean and with no signs of injuries, but in her airway he found a large impacted mass of grass, rocks, dirt and other debris. He found a three-to-four-inch stem there of what he termed as sage grass.

The grand jury of Franklin County indicted Whittington for murder on May 27, 1985, in violation of Miss.Code Ann., Sec. 97-3-19(1), and the case went to trial on January 21, 1986.

Vanier, Swanigan, Austin and Lockwood testified to the facts as above related. Paul Michael Parker, a local embalmer, testified that he observed nothing unusual in Mrs. Whittington's mouth. Percy Peeler, county coroner, and Sandra Jones also testified as State witnesses.

Another investigator of the scene was Grover Allen Chandler, a highway patrolman of 19 years' experience. After relating what he had observed at the scene, he was permitted to testify, over defense objection, that following his investigation he did not think Mrs. Whittington was "killed in the wreck." (R. 588)

Charles Scarborough, an employee of the Department of Public Safety, was permitted to testify as an "accident reconstructionist." His specialized training consisted of a seven-week course at Northwestern University. He said he had obtained a degree in law enforcement from the University of Mississippi. He had taken three hours of college algebra, but no course in either physics or chemistry.

Scarborough testified that the black mark at the edge of the pavement was a tire mark, and over defense objection was permitted to testify that it was an "acceleration scuff" as opposed to a skid mark. According to Scarborough, a rubber mark made by acceleration would be heavier and darker at the beginning of the mark (in the direction in which the car was moving), and a skid mark would be the reverse. He also based his opinion on the rocks in the asphalt where the tire mark was made.

Also, over objection, Scarborough testified that the car could not have been traveling over sixteen miles an hour as it went over and down the embankment, that it would have had to be traveling in excess of this speed in order for there to have been any break in the tracks.

Dr....