Wilkins v. State

• Decision Date: 03 June 1992
• Docket Number: No. 89-KA-0266,89-KA-0266
• Citation: 603 So.2d 309
• Parties: Larry L. WILKINS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 309

603 So.2d 309

Larry L. WILKINS v. STATE of Mississippi.

No. 89-KA-0266.

Supreme Court of Mississippi.

June 3, 1992.

Robert E. Clark, Vidalia, for appellant.

Michael C. Moore, Atty. Gen., Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before HAWKINS, P.J., and SULLIVAN and McRAE, JJ.

HAWKINS, Presiding Justice, for the Court:

Larry L. Wilkins appeals his conviction of murder in the circuit court of the First Judicial District of Panola County and sentence to life imprisonment. Because of the admission of inadmissible hearsay testimony through the guise of "impeaching" a State witness, we reverse and remand. We find no other error.

FACTS

Sue and the late Willie Nesbit "Woody" Garner lived in a double trailer in Longtown, a community in the northwest corner of Panola County.

Garner apparently was Sue's (whose maiden name was Wilkins) third husband. Her marital union to a man named Jimmy Ray Barnes, Sr., produced three children, namely: Jimmy, Jr., Lisa and David, who were grown. A subsequent marriage to a man named Clifton Leroy Dyer produced Glenn Dyer, who in November, 1987, was thirteen years old. She married Garner January 12, 1978. On Tuesday, November 3, 1987, an election day, she was employed at the F.O. James Gas Company in Crenshaw, and went to work at 2:00 p.m. and got off work at ten that night.

Sue Garner's son Glenn was staying at the home of his sister Lisa, who, along with her husband David and baby girl Shelly, was living with his parents, DeLayne and Anna Mayo, in the Sarah community in the extreme Southwest corner of Tate County. Sue was in the Mayo home a few minutes that evening, and then drove to her own residence about five miles distance, arriving with Glenn around eleven o'clock that night.

A glance at the map reveals that Batesville, the county seat of the First Judicial District of Panola County, is 22 miles South of Senatobia in Tate County, and that Senatobia in turn is five miles South of Coldwater. Como is 15 miles North of Batesville, and Longtown is about ten miles due West of Como. Senatobia is approximately twenty miles driving distance from Longtown.

Sue has two brothers, Barry and Larry L. Wilkins. On November 3, 1987, Barry and his wife Katie were living in the Senatobia Trailer Park, also called "City Trailer Park."

As noted, Sue's daughter, Lisa, was married to David Mayo, and on November 3 they were, with their few-months-old baby girl, Shelly, living at the home of his parents.

David Barnes was married to Susan Leigh Barnes, also twenty years of age. They had a few-months-old baby boy, Dustin, and on November 3 she and David were separated. She was living in the same trailer park as Barry Wilkins, but because she had no heat, her mother was keeping the baby.

David Mayo owned a 1979 400 model Honda motorcycle that on November 3 had been loaned to David Barnes. On November 3 Barnes and his uncle, Larry L. Wilkins, were staying in the Sandman Motel in Senatobia.

On October 29 previous, Sue, accompanied by her son, David Barnes, drove to Memphis where her brother Larry Wilkins was staying, and the three returned to the Howard Johnson Motel in Senatobia, where she rented a room for Larry and David. On the next day they checked out and Larry and David moved in for a day or two with her brother Barry. The two then checked into the Sandman Motel November 1.

On the night of November 3, Susan Barnes was driven to the Sandman Motel by a friend, Ronald Kolb, arriving there precisely at 11:00 p.m., as told to do by her brother, David. When she got there Barry and David were in the room, David drinking Old Charter whiskey, and Barry drinking Busch brand beer. Larry was not there, and the motorcycle that David had borrowed was gone.

Barry remained a few minutes and left. Susan remained another hour or hour and a half, as she estimated--she had no watch--arguing over their baby, Dustin. Susan then left the motel and walked to the trailer park about a mile away, arriving--again according to her estimation--around 1:00 a.m.

About two hours later David rode to her trailer on his motorcycle and they talked about fifteen minutes. David then rode off.

Susan wanted to talk to David some more, so she walked back to the Sandman Motel and knocked on the door. When David opened the door she noticed the motorcycle parked in the room and Larry coming out of the shower, clad in shorts. She noted a knee bruise and some scratches on his leg, which he told her he received in a wreck while riding the motorcycle.

David called a truck stop for hamburgers and french fries, and drove the motorcycle to get the food. When he returned, the three ate. According to Susan, Larry was not really sleepy and wanted to talk. The three eventually went to sleep.

Susan was awakened by the telephone ringing, which David answered. It was Lisa calling, who told David that Garner had been shot. She said David was telling Lisa, "No, I don't believe it, I'll be there in a minute, tell mama it's all right," and "things like that."

At trial Susan testified that when Larry heard this news, "He fell out of bed laughing." Larry made no statements, however.

David put his clothes on, told them he would be back before 10:00 a.m., and left on the motorcycle. David had a ten o'clock appointment to try to get aid for Susan and Dustin to help with their bills. After he left, Larry and Susan "got everything together and packed it and got it ready to move."

David returned some time later in Garner's truck, and the three put the belongings in the truck, got gas and drove to Batesville where Larry checked into the Comfort Inn. They took boxes, two or three bags, and a garment bag into the room. They then drove and got some food, and returned to the motel and ate.

Susan and David then left in the truck, Susan driving as told to by David, to some dumpsters on Interstate Highway 55 at the Coldwater exit. David told her to pull up beside the third dumpster. David then got out of the truck and got a sack that Larry had given him out of the back of the truck. It was a grocery sack, and appeared to Susan to be about half full. David placed the sack inside the dumpster, poured motorcycle oil on top of it and set it on fire. They left immediately. They met a state trooper, turned the truck around, and then David drove. He drove down a gravel road between Highways 55 and 51 back to Senatobia.

Susan asked David what was in the sack, and he replied it contained clothes "that had blood and brains on them."

Susan testified that it did not take too much to figure out what had happened. She asked David why they had done it, and had Larry "done it?" She said David nodded his head "yes." He then told her to be quiet and quit asking questions or he would have to hurt her.

They returned to Susan's trailer in Senatobia where some of her furniture was loaded and it was taken to Susan's mother's residence.

Moving back in time to the Garner's residence, on Tuesday night, November 3, Sue told highway patrol investigator C.B. (Creekmore) Wright that she got home about 10:30. Her husband was sitting at the kitchen table drinking, and he told her she had been walking in the yard. She told him he was crazy, and they went to bed about 11:30.

At trial Sue testified she arrived home around 11:00 p.m. She corrected her statement to Wright by saying that Garner told her that he heard her walking in the yard and she told him he was crazy. Garner went to bed and she did, too, around 11:15. They lived in a double trailer with three bedrooms, all on the front side of the house. Glenn's bedroom was next to hers. Garner woke her up getting out of bed, saying he had heard a racket and was going to investigate. She rolled over, and as she did, she "heard a pop," which made her "jump up." She heard Garner call her for help:

[A]nd I jumped to go help, but before I could leave the bedroom, I heard another pop, and I says, no, maternal instincts took over, and I stopped at my son's bedroom, and I took a quilt and throwed it over him and throwed him over in the floor, and I rolled up in it with him, and we stayed there just as still as we could stay until it got quiet enough.

(Vol. IV, p. 283)

The telephone was in the kitchen. Sue had no idea how long she and Glenn remained rolled in the quilt. About 25-30 minutes later, she telephoned her uncle, Joel Hufstickler, and then her son-in-law, David Mayo. According to her, she told Mayo there had been some shooting outside, but she did not know what happened. She also told him to bring some help, not to come alone, and she thought "Woody" had been shot. She heard no motorcycle.

Glenn, called as a defense witness, testified he heard a shot, and then Garner call out, "Sue, come help me." Sue then came into his room and threw him under the covers on the floor. He heard more shots, "and then a great big shot." Then everything got quiet and "we got brave enough to crawl back to the phone and call Uncle Joel and David Mayo." He said the telephone was "in mama's bedroom." He heard no motor vehicle.

D.M. Haynes lived about a quarter of a mile south of Garner. On the night Garner was killed, he heard a shot, went to the door and as he did, he looked at his clock. It was 1:25 a.m.

Tom and Sheila Pollen lived across the road from Haynes. Something woke them, and they heard two shots. It was 1:25 a.m. They also heard a motorcycle coming from Garner's, heard it turn around in their drive, head back towards Garner's residence, and then come back and for the second time turn around in their drive. It then headed north towards Garner's and "kept going." It was "pretty loud." Pollen, who had some experience with motorcycles, testified that a "colored boy" in the neighborhood owned a motorcycle, but it was not that loud.

David Mayo received Sue's telephone call at 2:00 a.m. He put his clothes on and drove to Garner's. He found the body of Garner lying beside his eighteen-wheeler truck, face...