Petition for Writ of Certiorari — Slaughter v. Mississippi
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Supreni Court, US
FILED
02 6 1 4 AUG 2 3 2002
OPPIGE OF THE CLERK
In The
Supreme Court of the United States
Jodon Antonio Slaughter
Petitioner
V.
The State of Mississippi
Respondent
On Petition for Writ of Certiorari
To The Mississippi Supreme Court
PETITION FOR WRIT OF CERTIORARI
Michael W. Crosby
Attorney at Law |
Counsel of Record
2111 25th Ave.
Gulfport, MS 39501
228-822-2727
Ms. Bar No. 07888
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Questions Presented
1. ~ Whether the State Trial Court violated Petitioner
Slaughter’s Sixth and Fourteenth Amendment rights to
fully confront witnesses against him by denying him an
opportunity to fully cross-examine prosecution
witnesses regarding immunity agreements they
received and their motives for testifying before a
Federal Grand Jury in Atlanta Georgia when it was the
Federal Grand Jury testimony which lead to the
Mississippi State indictment of Jodon Slaughter for the
murder of Kelvin Reynolds.
y Whether -the State Court's refusal to grant an
instruction to examine and weigh testimony of
prosecution witnesses who initially provided evidence
against the defendant in exchange for immunity from
the Federal government with greater care and caution
than the testimony of ordinary witnesses violated
defendant's right to a fair trial as guaranteed him by the
Sixth and Fourteenth Amendments to the United States
Constitution.
Parties Below
The parties before this court are Petitioner Jodon
Antonio Slaughter, a Mississippi inmate currently
confined for life pursuant to a murder conviction and
Respondent, the State of Mississippi.
li
Table of Contents
Questions Presented
Parties Below ii
Table of Contents iii
Table of Authorities . iv
Opinion Below and Jurisdiction om |
Constitutional and Statutory Provisions... 2
Statement of the Case cceedd
Reasons for Granting the Writ 17
Appendix 1-4
ili
Table of Authorities
Federal Cases
Alford v. United States, 282 U.S. 687 (1981) ........s..sess0 20
Chambers v. Mississippi, 410 U.S. 284 (1973)........... 18, 19
Chapman v. California, 386 U.S. 18 (1967) .......c..s.ssesse00e: 21
Davis v. Alaska, 415 U.S. 308(1974) ........ 17, 18, 19, 20, 24
Delaware v. Fensterer, 474 U.S. 15 (1985) .......ccccssssseeoee. 24
Delaware v. Van Arsdall, 475 U.S. 673 (1986) ....19, 21, 27
Douglas v. Alabama, 380 U.S. 415 en 18, 24
Dutton v. Evans, 400 U.S. 74 (1970).......:ccccscssssscsesesseseeee 19
Grannis v. Ordean, 234 U.S. 385 (1914) .....c.cceccssessseseeeee 18
in ve Oliver, 333 US. 257 (19GB .scecccsiesssevacserecesssevens 18-19
Olden v. Kentucky, 488 U.S. 227 (1988) ..........ceccssessseeees 17
Pointer v. Texas, 380 U.S. 400 (1965) .......ceccccececesseceseceee 17
Rose v. Clark, 478 U.S. 570 (1986) .......c.ccccccecsssssesesseseseees 28
Strickland v. Washington, 466 U.S. 668 (1984) .............. 18
Sullivan v. Louisiana, 508 U.S. 275 (1993)... .27
United States v. Bradfield, 103 F.2d 1207
Fe a iaies senstinlishclicnsisiausiedehuacectieledtenicciiiicaiied: 27
United States v. D’Antignzc, 628 F.2d 428
(Sth Cir. 1980) cert. den. 450 U.S. 967 (1981)............ 27
United States v. Twomey, 806 F.2d 1136
I D vtetnnsnasntancsatadeiioucs iptvincatinineniiaciimmisianen 25
Washington v. Texas, 388 U.S. 14 (1967).......:.cessscsssseeees 18
Wilkerson v. United States, 591 F.2d 1221
PP A i iccienniestehsie cia ca eee aa oe 27
Mississippi State C
Knight v. State, 57 So.2d 161 (Miss. 1952) .......sssssesee- 28
McNeal v. State, 551 So.2d 151 (Miss. 989).....ssssssssss000 27
Sherrel v. State, 662 S0.2d 1233 (Miss. 1993) .....sescsseese 27
OPINION BELOW AND JURISDICTION
1. Review is sought of the opinion of the
Mississippi Supreme Court affirming the rulings of
the trial court which excluded testimony and refused
jury instructions. The opinion is reported as Slaughter
v. Mississippi, 2000-KA-01533-SCT, Feb. 14, 2000; reh
denied 5/23/2000(Miss 2002) (Appendix 1)
2. The Mississippi Supreme Court denied the
Motion for Rehearing on May 23, 2002. Slaughter v.
Mississippi, 2000-KA-01533-SCT, Feb. 14, 2000; reh
denied 5/23/2000(Miss 2002) (Appendix 2)
3. This petition for certiorari is authorized to be
filed on or before August 21, 2002 pursuant to 28
United States Code § 1257 and Rule 13, Supreme
Court Rules.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
U.S. Const. Amend VI provides:
In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by
an impartial jury of the State and district
wherein the crime shall have been committed;
which district shall have been previously
ascertained by law, and to be informed of the
nature and cause of the accusation; to be
confronted with the witnesses against him; to
have compulsory process for obtaining
witnesses in his favor, and to have the
assistance of counsel for his defense.
U.S. Const. Amend XIV (1) provides:
All persons born or naturalized in the United
States and subject to the jurisdiction thereof,
are citizens of the United States and of the State
wherein the reside. No State shall make or
enforce any law which shall abridge the
privileges or immunities of citizens of the
United States; nor shall any State deprive any
person of life, liberty, or property, without due
process of law, nor deny to any person within
its jurisdiction the equal protection of the laws.
STATEMENT OF THE CASE
On April 29, 1998 Kevin Reynolds was shot to
death while sitting in his Ford Explorer in the parking
lot of River 10 Apartments, Gulfport, Mississippi. On
May 13, 1999 Petitioner, Jodon Slaughter was indicted
for murder and three others, Regina Richardson, Ken
Ogletree, and Tracy Stepney, were indicted for
“accessory after the fact” to the same murder (CP 8; T
386) The indictment against Regina Richardson was
dismissed in exchange for her testimony against
Slaughter. (Tr. 382-385) Neither Ken Ogletree or
Tracy Stepney testified at Slaughter’s trial.
Jodon Slaughter was found guilty of the murder in
the Circuit Court of Harrison County, First Judicial
District and received a mandatory sentence of life in
prison. Slaughter’s conviction was affirmed on
appeal. Slaughter v. Mississippi, 2000-KA-01533-SCT,
Feb. 14, 2002; reh denied 5/23/2002(Miss 2002)
At issue is the trial court’s failure to allow
Slaughter to cross-examine State witnesses about
immunity agreements they received and their
motives for testifying as they did before a Federal
Grand Jury in Atlanta, Georgia and subsequently in
the Trial Court. The grand jury testimony ultimately
led to the indictment and conviction of Jodon
Slaughter in the Mississippi State Court. Also at issue
is the Trial Court's refusal to instruct the jury to
consider the testimony of Regina Richardson or any
witness who provided testimony in exchange for,
immunity from punishment with great care, caution
and suspicion. (Tr. 667-670; CP 630, 632)
Jodon Slaughter was a resident of Atlanta, Georgia
where he worked for a car dealership. Kelvin
Reynolds (the victim) had moved from Atlanta,
Georgia to Mississippi a few weeks prior to his death
3
and was staying with a friend at River 10 Apartments.
Slaughter v. Mississippi, 2000-KA-01533-SCT,§7 (Feb.
14, 2002). Reynolds and Slaughter had known each
other for a number of years.
On Wednesday April 29, 1998 Petitioner Jodon
Slaughter, Ken Ogletree and Tracy Stepney came to
Gulfport to gamble at the Grand Casino. Upon
arrival they were met for lunch by Darryl Screven a
casino host who knew Slaughter and Reynolds. That
evening Slaughter and Reynolds both paged Screven
several times. Slaughter asked Screven to return to
the casino. According to Screven, Slaughter told him
that Reynolds was bringing his vehicle to Slaughter
for Slaughter to use and that Reynolds would need a
ride back to Valerie Seldon’s apartment. When
Screven returned to the Casino Slaughter was not
there. Screven learned later that night that Reynolds
had been killed. Slaughter v. Mississippi,
2000-KA-01533-SCT, 48-9, 11-12 (Feb. 14, 2002).
At the time of the shooting Slaughter, Reynolds
and others were under investigation by the FBI and
Secret Service in Atlanta, Georgia. The federal
investigation concerned fraud, possessing and
uttering counterfeit checks, alteration of vehicle
identification numbers and money laundering. (CP
24) After Reynolds’ death the Federal Grand Jury in-
Atlanta began an investigation concerning the
possibility that Slaughter may have shot Reynolds to
prevent Reynolds from cooperating with the federal
authorities. Lemuel Murray (CP 24-25), Kelly Seldon
(CP 195-196), Linda Dugan (CP 350-351), and Regina
Richardson (CP 429-430) received use immunity from
the Federal authorities in exchange for their
testimony against Slaughter.
4
The information obtained by the U.S. Attorney's
office concerning Jodon Slaughter and the death of
Kelvin Reynolds was provided to the Harrison
County District Attorney’s office and ultimately
murder and accessory indictments were obtained.
Regina Richardson was indicted by the State of
Mississippi as an accessory after the fact to Reynolds’
murder. The charge against her was dismissed in
exchange for her testimony at Slaughter’s murder
trial.
Rulings on the Testimony
The State of Mississippi obtained an order in
limine preventing Slaughter from making any
reference to the criminal investigation by the Federal
agencies or any reference to the criminal character of
the victim, Reynolds. (Appendix 2; T. 115-125)
Slaughter objected and argued that the federal
investigation was material to the defense because the
murder indictment stemmed directly from. the
Federal Grand Jury investigation and it showed that
someone other than Slaughter had a motive to kill
Reynolds. (Appendix 2; Tr. 119). Slaughter also
argued that the jury should be able to hear about the
immunity and deals given to the various witnesses
and how they came to testify before the Federal
Grand Jury so that the jury could determine their
motives for testifying and credibility. (Appendix 2;
Tr. 115-125) The motion in limine was sustained as far
as comments in opening statement. (Appendix 2; Tr.
120) Defense counsel moved for a mistrial after the
ruling in limine arguing that the ruling prevented him
from making an effective opening statement.
(Appendix 2; Tr. 122-123, 125)
fe)
Counsel for Slaughter repeatedly attempted to
persuade the trial judge that it was imperative to his
defense that the jury be allowed to hear testimony
concerning the immunity given to the witnesses
before the Federal Grand Jury but each time, the trial
court refused to allow the evidence. (Appendix 2; T.
146-155, 313-314, 342-372, 519-521, 534-536) Prior to
making his opening statement counsel for Slaughter
argued again to the court that Slaughter’s defense is
based on “the fact that there was a Federal Grand Jury
investigation, that there was criminal activity which
was taking place unrelated to a murder, most of
which was taking place in Atlanta.” (Tr. 147)
The Witnesses, Agreements, and Proffers
“ Lf
Lemuel Murray was Slaughter’s co-worker in
Atlanta. Murray’s grand jury testimony reflects that
he was given immunity and was told that the target
of the grand jury was Jodon Slaughter. (CP 24-25)
In the State Court Trial Murray testified that about
two weeks prior to Reynolds’ death, Slaughter told
Murray that Reynolds “was a F--- rat, and he had
people coming up from Miami bringing him a
silencer and he was gong to blow Kelvin Reynolds's
f--- head off.” The next time Murray spoke with
Slaughter was on April 30, 1998, the day after the
murder of Reynolds. Slaughter called Murray and
told him he was back from Mississippi and asked if he
had heard what had happened to Reynolds.
Slaughter told him that the “word was on the street
that [I] killed Kelvin Reynolds.” Slaughter v.
Mississippi, 2000-KA-01533-SCT,929-30 (Feb. 14, 2002).
6
Prior to Murray’s testimony, Slaughter argued
that the statements could only be explained by
discussing the other criminal activity that was taking
place. (Tr. 147) When Lemuel Murray was called by
the State, defense counsel again attempted to raise the
issue of cross examination regarding the federal
investigation. (Tr. 519-521) A proffer of Murray's
testimony was made. (Tr. 526-534) During a State
Trial proffer Murray repeatedly invoked his fifth
amendment rights but did admit that he knew from
the beginning that “they” wanted Jodon Slaughter.
(Tr. 530) The trial judge excluded from the jury
information that Murray had received immunity from
the Federal authorities stating that the federal
immunity given Murray had nothing to do with the
prosecution of Slaughter in the murder case. The
Court again ruled that “the matter of the investigation
in Atlanta, Georgia, the Grand Jury testimony, all of
that is going to be excluded, and I stand by ruling on
that.” (Tr. 535)
Kelly Seldon
Kelly Seldon, Regina Richardson’s sister, had
become involved with Jodon Slaughter and as the
investigation in Georgia continued Kelly was coming
under pressure from the FBI to tell the authorities
“everything that she knew” about Slaughter. Kelly
was afraid she would be arrested. (Proffer of Regina
Richardson, Tr. 348-349) Richardson secretly listened
over the telephone as the authorities pressured Kelly
Seldon to testify against Jodon Slaughter. (Proffer of
Regina Richardson, T. 347) Seldon had a use
immunity agreement with the federal government.
(CP 195-196)
7
Kelly Seldon testified at the State trial. According
to her on the night of the murder Richardson called
and told her about the murder. Seldon did not know
Reynolds but had met Slaughter. Slaughter showed
up at Kelly’s house a day or two after Reynolds was
killed. Richardson was at Seldon’s house at the time
and Richardson left with Slaughter. Later Kelly
Seldon became personally acquainted with Slaughter
and involved with him. Slaughter v. Mississippi,
2000-KA-01533-SCT,932 (Feb. 14, 2002).
Linda Dugan
Linda Dugan was Slaughter’s former spouse. She
was invited to go to Mississippi with Slaughter but
did not go. Slaughter called her on the night of April
29-30 and stated he was in Mississippi. Slaughter v.
Mississippi, 2000-KA-01533-SCT,§31 (Feb. 14, 2002).
Dugan had a cooperation agreement with the Federal
authorities. (CP 350-351)
Linda Dugan who had testified against Jodon
Slaughter in the Federal Grand Jury was convicted of
federal charges which Slaughter argued would
certainly go to her motive and reason for making
statements against Slaughter. It was Slaughter’s
position that the defense should be allowed to bring
out “any motive or bias that the witnesses’ had
against Slaughter.” (Tr. 148) In order to defend the
charge against Slaughter the motives of the witnesses
would have to be explored and disclosed. (Tr. 148)
Regina Richard
Regina Richardson was a dealer at Grand Casino
and knew Slaughter through his visits to the Grand.
8
A proffer was made of her testimony concerning the
federal investigation and her testimony before the
Federal Grand Jury. (Tr. 342-354) Richardson was
concerned that her sister, Kelly Seldon, was going to
be arrested. As Richardson testified in her proffer, “I
was at no point going to allow my sister go to jail for
anything that had to do with Jodon Slaughter. . .” (T.
349) To prevent that she contacted the federal
authorities and “gave” them Jodon Slaughter as the
murderer of Kelvin Reynolds. (Tr. 345) Richardson
testified that she asked the federal authorities what
she could do to make the problem (the fact that her
sister was going to go to jail) go away. The told her to
come talk to them and she described the solution, “to
put the man [Jodon Slaughter] in jail that was, quote,
unquote, threatening her life.” (Tr. 352)
Richardson had been interviewed by State
authorities and had had “numerous opportunities”
after the shooting to tell them of Slaughter’s alleged
culpability but until the Federal Grand Jury testimony
her version of the events exculpated Slaughter and
herself. (T. 401) After Richardson testified before the
Federal Grand Jury she gave a statement to
Mississippi law enforcement authorities and was
subsequently indicted for accessory to murder, after
the fact. The indictment against Richardson was
dropped with prejudice in exchange for her
agreement to testify truthfully in Slaughter’s
prosecution. Slaughter v. Mississippi,
-2000-KA-01533-SCT,J26 (Feb. 14, 2002). Although
Richardson had an agreement with the Federal
Authorities she was not being investigated by the
federal government and was not facing federal
charges.
Richardson testified before the State Court jury
that she had been indicted as an accessory to murder
and that the charge was dropped in exchange for
statements and cooperation in the investigation of
Slaughter. Slaughter v. Mississippi,
2000-KA-01533-SCT, 939 (Feb. 14, 2002).
As noted by the Mississippi Supreme Court,
Richardson was the key witness for the State.
Slaughter v. Mississippi, 2000-KA-01533-SCT,943 (Feb.
14, 2002). In the trial court’s view her agreement with
the State was all the jury was entitled to know.
As to Regina Richardson defense counsel argued
that they only way to defend against the testimony of
Regina Richardson was if they were allowed to tell
the “whole story”. (Tr. 149) The Court was asked to
revisit the order in limine concerning the Federal
Grand Jury investigation and it declined. (Tr. 154)
The Court stated that the character and credibility of
the witnesses would be subject to cross-examination.
(Tr. 154-155) Slaughter’s counsel noted that the
Federal Grand Jury information was import to
“explain why, number one, the witnesses that were
identified by the State would make such a statement;
secondly, how they could misunderstand such a
statement; and three, what -- the res gestae of what
was going on. (Tr. 155) The Court ordered that
Slaughter’s counsel could not “go into that.” (Tr. 155)
Prior to the direct examination of Regina
Richardson Slaughter’s counsel asked to make a
proffer of her testimony. The purpose of the proffer
of Regina Richardson was to give a full picture of her
motive and reasoning behind her testimony and that
he needed her testimony concerning the federal
investigation. (Tr. 313) The Court postponed the
proffer until after the direct examination. (Tr. 314)
10
Following the proffer of Mrs. Richardson's
testimony (Tr. 342-381) counsel for Slaughter argued
that clearly her testimony before the Federal Grand
Jury involved only testimony concerning the murder
and the things she was saying against Jodon
Slaughter. (Tr. 355) Richardson was being hounded
by the Gulfport Police and her sister was about to be
arrested so she called the U.S. Government and
entered into an agreement that what she said could
not be used against her. Then the State of Mississippi
indicted her. This gave the State an opportunity to
squeeze out of Richardson the same fabricated
testimony in exchange for dismissing the charges
against her. (Tr. 356-357) As defense counsel noted,
“It goes to her motive. It goes to her--anything that
touches on the motive of a witness, especially when it
was spelled out in black and white should be
relevant.” (Tr. 357) This testimony Defense counsel
argued was relevant because it shows the motive,
reason and opportunity for concocting the story
against Jodon Slaughter. (Tr. 360-361) The Court felt
that the fact that the jury knew that the indictment
against Richardson was dismissed with prejudice was
sufficient. (Tr. 362)
Richardson, Murray, Seldon and Dugan all
provided information to the Federal Grand Jury
regarding Slaughter’s alleged involvement in the
murder of Reynolds. This information was used to
build a murder case against Slaughter by the State of
Mississippi.
The State alleged that Richardson drove Slaughter
and Ogletree to and from the shooting in her car, and
Ogletree, Stepney, and Richardson helped conceal the
evidence of the shooting after the fact. (T. 135, 140)
Regina Richardson was the State’s key witness. She
11
was the only alleged eye witness to testify that
identified Slaughter as the shooter. Three residents of
River 10 Apartments testified to hearing the gunshot
and described the assailant as a man but were unable
to identify him. Slaughter v. Mississippi,
2000-KA-01533-SCT,9[2-4 (Feb. 14, 2002).
Police officers investigated the shooting and
collected the physical evidence. Based on information
from Regina Richardson after her testimony before
the Federal Grand Jury, a gun was recovered from a
storm drain on August 25, 1998. State Crime Lab
personnel testified that the gun was a possible source
of the bullet fragments and projectiles found at the
scene, but could not be positively included or
excluded as having been discharged. Slaughter v.
Mississippi, 2000-KA-01533-SCT,]5, 27 (Feb. 14, 2002).
At the trial Regina Richardson testified that on
April 29th she made plans to go out with Slaughter
and two other people when she got off work at 7:00
p-m. on April 29, 1998. By about 9:00 she had met
Slaughter, Ken Ogletree and Tracy Stepney in one on
the hotel rooms where they made plans to go out.
Richardson testified that she drove Slaughter and
Ogletree to River 10 Apartments to pick up a truck.
Slaughter spoke two or three times to Reynolds while
they were en route, telling him that he was still at the
casino and that Reynolds should bring his vehicle to
the casino. He told Reynolds to leave the keys with
the valet and that Screvens would give him a ride
home. Slaughter imparted the same information to
Screvens. Slaughter v. Mississippi,
2000-KA-01533-SCT, 13-14, 16-17 (Feb. 14, 2002).
Richardson testified that she drove around the
apartment complex until Slaughter and Ogletree
located the vehicle. She was told to park and turn off
12
her lights. Slaughter got out of the car and
disappeared from her view. As she turned to speak
to Ogletree she heard gunshots. She saw Slaughter at
Reynold’s car with a gun in his hand, a gun she had
also seen at the hotel. According to Richardson
Slaughter got back in the car and told them that he
had killed Reynolds. Slaughter gave the gun to
Ogletree and tried not to make a mess with the blood
on his _ clothes. Slaughter v. Mississippi,
2000-KA-01533-SCT,19-20 (Feb. 14, 2002).
According to Richardson they stopped at a
railroad crossing on the way back to the Casino where
Slaughter and Ogletree got out of the car, broke the
gun into pieces and dropped them into a drain pipe.
Back at the Casino Ogletree got out of the car and
Slaughter instructed Richardson to drive him to her
house. It was about 10:00 p.m. Slaughter put his
bloody clothes into a trash bag, took a shower and
put on a set of her workout clothes. Richardson
called Stepney and gave her directions to the house.
Stepney drove Ogletree to Richardson’s house and
brought Slaughter new clothes. Ogletree talked with
Slaughter and took the trash bag with him when he
left. Slaughter v. Mississippi,
2000-KA-01533-SCT,}20-23 (Feb. 14, 2002).
Richardson claimed that Slaughter told her what
he wanted her to tell the police about where they had
been and what they had been doing that night.
Before Slaughter left, Richardson called her sister,
Kelly Seldon, in Atlanta and told her what had really
happened. About 1:00 am., Richardson drove
Slaughter to a motel in the Moss Point/Pascagoula
area where Ogletree and Stepney were waiting for
him. The next morning the police questioned
Richardson and she told them the story that Slaughter
13
had fabricated. Two days after the murder,
Richardson went to Atlanta and met with Slaughter.
Slaughter v. Mississippi, 2000-KA-01533-SCT,924-25
(Feb. 14, 2002).
Richardson was the only eye-witness to the
murder to testify however, she never provided any
information to law enforcement inculpating Petitioner
Slaughter until she learned that the federal authorities
were about to arrest her sister. (Tr. 345-346) At that
point she called the federal authorities to make a deal
to “give” them Jodon Slaughter so they would leave
her sister alone. (Tr. 348,-349) Richardson's
testimony was bolstered by the trial testimony of
Kelly Seldon, Lemuel Murray, and Linda Dugan all
who received favors in exchange for information to
support a conviction of Jodon Slaughter.
The Trial Court’s ruling overlooked this fact and
also overlooked that the Federal Grand Jury
transcripts, all of which were submitted for the
Court’s review, did not merely touch upon the
allegations that were the subject of the federal
investigation but focused upon the murder case in
Mississippi. Murray, Seldon and Dugan were never
indicted in Mississippi, but they provided testimony
with regard to the Mississippi murder under
immunity granted to them by the Federal
government.
The exclusion of the testimony of these witness
was raised by defense counsel in his motion for a new
trial and was assigned on appeal as his first
assignment of error. It was raised again in the motion
for rehearing before the Mississippi Supreme Court.
14
Jury Instructions
The Court refused to allow Slaughter’s requested
jury instruction D-5 and D-unnumbered pertaining to
a great care and caution instruction.
The instruction D-5 read:
The testimony of an alleged accomplice is to
be considered and weighed with great care
and caution and suspicion. You may give it
such weight and credit as you deem it is
entitled.
(CP 632)
Jury instruction D-unnumbered reads:
The testimony of one who provides evidence
against the defendant for immunity from
punishment must always be examined and
weighed by the jury with greater care and
caution than the testimony of ordinary
witnesses. You the jury should consider and
weigh such testimony with great care and
caution and suspicion. You may give it such
weight and credit as you deem it is entitled.
(CP 630)
Both instructions were refused. (RE 126-129; 28,
29, T 667-670; CP 630, 32) Slaughter’s position is that
Richardson was in effect charged as an accomplice to
the murder. In addition the care and caution
instruction should also apply to Murray, Seldon and
Dugan.
15
The Trial Court refused D-5 based on the fact that
Richardson was indicted as an accessory after the fact
and not as an accomplice. (Tr. 667-670) Instructing
the jury regarding Richardson’s testimony should not
rest solely on her classification as a co-defendant or
accomplice but on whether she received Some “favor
or benefit” for her testimony. She did and the jury
should have been instructed regarding her testimony.
The other instruction was refused based on the
Trial Court’s refusal to allow evidence of the
" immunity agreements and the Federal Grand Jury to
- be heard by the jury.
REASONS FOR GRANTING THE WRIT
Limitation on Cross-Examination
The rulings of the trial court and the Mississippi
Supreme Court are in conflict with the U.S. Supreme
Court cases dealing with the constitutional guarantee
of a meaningful opportunity to present a complete
defense.
The Mississippi Supreme Court held:
As to the federal immunity agreements for
the witnesses, no promise was made not to
prosecute the witnesses in regard to the
murder or Reynolds. The federal case did
not focus on Reynold’s murder, but on other
alleged federal crimes. Richardson, the key
witness of the State of Mississippi in the
Reynolds murder trial was offered complete
immunity by the prosecution in exchange for
truthful testimony. The immunity agreement
between the State and Richardson was before
16
the jury. Therefore, the issue is without
merit.
Slaughter v. Mississippi, 2000-KA-01533-SCT,
743 Feb. 14, 2000; reh denied 5/23/2000(Miss
2002)
It was critical to the Petitioner’s defense that he be
allowed to cross-examine Richardson regarding a
possible motive to lie, whether out of “fear or favor”.
When the trial court denied his right to fully
cross-examine her it deprived him of his Sixth
Amendment right to confront witnesses against him.
See Olden v. Kentucky, 488 U.S. 227, 231 (1988)
The Sixth Amendment right “to be confronted
with the witnesses against him” is incorporated in the
Fourteenth Amendment and available in_ state
proceedings, Pointer v. Texas, 380 U.S. 400 (1965), and
includes the right to conduct reasonable
cross-examination. Davis v. Alaska, 415 U.S. 308,
315-316 (1974). Confrontation means more than being
allowed to confront the witness physically. "Our cases
construing the [confrontation] clause hold that a
primary interest secured by it is the right of
cross-examination." Douglas v. Alabama, 380 U.S. 415,
418 (1965). Professor Wigmore stated:
The main and _ essential purpose of
confrontation is to secure for the opponent
the opportunity of cross-examination. The
opponent demands confrontation, not for the
idle purpose of gazing upon the witness, or
of being gazed upon by him, but for the
purpose of cross-examination, which cannot
be had except by the direct and personal
17
putting of questions and _ obtaining
immediate answers." 5 J. Wigmore, Evidence
1395, p.123 (3d ed. 1940).
Whether rooted directly in the Due Process clause
of the Fourteenth Amendment, Chambers v.
Mississippi, 410 U.S. 284 (1973), or in the Compulsory
Process or Confrontation clauses of the Sixth
Amendment, Washington v. Texas, 388 U.S. 14, 23
(1967); Davis v. Alaska, 415 U.S. 308 (1974), the
Constitution guarantees criminal defendants “a
meaningful opportunity to present a complete
defense.” Strickland v. Washington, 466 U.S. 668,
684-685 (1984) (“The Constitution guarantees a fair
trial through the Due Process Clauses, but it defines
the basis elements of a fair trial largely through the
several provisions of the Sixth Amendment”. An
essential component of procedural fairness is an
opportunity to be heard. In re Oliver, 333 U.S. 257, 273
(1948); Grannis v. Ordean, 234 U.S. 385, 394 (1914).
In Chambers v. Mississippi, 410 U.S. 284 (1973) this
Court noted:
The right of an accused in a criminal trial to
due process is, in essence, the right to a fair
opportunity to defend against the State's
accusations. The right to confront and
cross-examine witnesses and to call witnesses
in one’s own behalf have long been
recognized as essential to due process. Mr.
Justice Black, writing for the Court in In re
Oliver, 333 U.S. 257, 273 (1948), identified
these rights as among the minimum
essentials of a fair trial:
18
A person's right to reasonable notice
of a charge against him, and an
opportunity to be heard in his defense
- a right to his day in court - are basic
in our system of jurisprudence; and
those rights include, as a minimum, a
right to examine the witnesses against
him, to offer testimony, and to be
represented by counsel.
410 US. 284, 295
These rights include the right of cross examination
_which is “implicit in the constitutional right of
confrontation, and helps assure the “accuracy of the
truth-determining process.” Dutton v. Evans, 400 US.
74, 89 (1970). Id. Jodon Slaughter was deprived of his
right to a full cross examination of the witnesses
against him. As this Court in Chambers noted:
While the right is not absolute and may have
to bow to other legitimate interests in the
criminal trial process, any serious limitation
on that right calls into question the ultimate
integrity of the fact-finding process and
requires that the competing interest be
closely examined. Berger v. California, 393
US. 314, 315 (1969)
410 US. 284, 295-296
“(T]he exposure of a witness’ motivation in
testifying is a proper and important function of the
constitutionally protected right of cross-examination.”
Davis v. Alaska, 415 U.S. 308, 316-317 (1974); see also
19
Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986). Here
the jury was not told that the testimony of Murray,
Dugan, and Seldon with regard to Slaughter arose out
of their appearances before a Federal Grand Jury.
They were questioned about the Mississippi shooting
by the Federal government under a promise of use
immunity. They all knew that the “target” was Jodon
Slaughter and they did whatever they could to help
the government (State or Federal) get him instead of
them. Regina Richardson told her “trial” version of
the facts for the first time only after she became
concerned that her sister would be arrested by federal
authorities because of her association with Jodon
Slaughter. (Tr. 348) Whether this jury would have
been influenced by knowing these things requires
some speculation. But regardless the jury was
entitled to have the benefit of a full cross-examination
of Regina Richardson as to her possible motivation to
lie. And they were entitled to know that the
testimony of Dugan, Murray and Seldon was first
obtained under a grant of use immunity in front of a
grand jury. See Davis, 415 U.S. at 317; Alford v. United
States, 282 U.S. 687, 691 (1931) (holding that where
witness was in prosecutor’s custody due to pending
charges, petitioner was “entitled to show by
cross-examination that his testimony was affected by
fear or favor’)
In Davis v. Alaska 415 U.S. 308 (1974); the court
observed that subject to “the broad discretion of a
trial judge to preclude repetitive and unduly
harassing interrogation. . ., the cross-examiner has
traditionally been allowed to impeach, i.e., discredit,
the witness.” Id., at 316. In Davis the court pointed
out that “the exposure of a witness’ motivation in
testifying is a proper and important function of the
20
constitutionally protected right of cross-examination.”
Id., at 316-317. Richardson’s proffer makes it clear
that she was motivated to offer up Slaughter to the
Federal Grand Jury by fear for her sister. The jury
was entitled to this information and was also entitled
to know that Seldon, Murray and Dugan initially
provided testimony against Slaughter in exchange for
“favors” from the Federal authorities.
THIS WAS NOT HARMLESS ERROR
In Delaware v. Van Arsdall 475 U.S. 673 (1986) this
Court held that the denial of a defendant's
opportunity to impeach a witness for bias, like other
Confrontation clause errors, is subject to the Chapman
v. California, 386 U.S. 18 (1967) harmless-error
analysis. The constitutional dimension of the right to
full cross-examination increases in sensitivity in direct
proportion to witness’s importance to state’s case.
The harmless error analysis applies to confrontation
clause cases. See Van Arsdall, 475 U.S. at 680, 684.
The correct inquiry is whether, assuming that
the damaging potential of _ the
cross-examination were fully realized, a
reviewing court might nonetheless say that
the error was harmless beyond a reasonable
doubt. Whether such an error is harmless in
a particular case depends upon a host of
factors, all readily accessible to reviewing
courts. These factors include the importance
of the witness’ testimony in the prosecution’s
case, whether the testimony was cumulative,
the presence or absence of evidence
corroborating or contradicting the testimony
21
of the witness on material points, the extent
of cross-examination otherwise permitted,
and, of course, the overall strength of the
prosecution’s case.
Chapman v. California, 386 U.S. 18 (1967)
HARMLESS ERROR FACTORS
11) The j oe ,
ntl ape
Regina Richardson was the key witness for the
State of Mississippi. She was the only eyewitness to
testify that Slaughter shot Reynolds. This factor
supports Petitioner’s position that the Court's refusal
to allow him to explore the motives of the Richardson
and the other witnesses was not harmless error.
Richardson’s version of the events of April 29 prior to
her contact with the Federal authorities had not
incriminated Jodon Slaughter. It was not until her
sister was threatened with arrest in the federal
investigation did Richardson incriminate Slaughter.
This motive, to save her sister from federal charges,
should have been placed before the jury so that they
might fairly judge her credibility.
Richardson’s testimony was not cumulative, it was
the crux of the prosecution’s case. Murray, Dugan
and Seldon was not as important to the prosecution
but their testimony was not cumulative either, each
told of statements allegedly made by Slaughter,
statements that might have been explained except for
Regina Richardson’s testimony. This factor supports
Petitioner’s position that the Court's refusal to allow
22
him to explore the witnesses motives and thereby
their credibility was not harmless error.
(3) The presence or absence of evidence
Se : st a
There were no corroborating witnesses to the
shooting at River 10 Apartments. The gun recovered
by the State could not be positively identified as the
weapon used to kill Reynolds. The absence of
corroborating evidence supports petitioner's position
- that the trial court committed reversible error by
refusing to allow him to cross-examine Richardson
and the other with regard to their motives for
testifying as they did. This factor supports Petitioner’s
position that the Court’s refusal to allow him to
present to the jury the immunity agreements of the
witnesses and thereby their motives was not harmless
error.
Cross-examination as allowed was not extensive
enough to counter the failure of the trial court to
allow cross-examination regarding the fact that these
witnesses were called before a Federal Grand Jury,
were given immunity and had motives to “give up”
Jodon Slaughter all of which could affect their
credibility before the jury.
,
The State’s case rose and fell with Regina
Richardson, propped up with the testimony of
Murray, Dugan and Seldon. This factor supports
Petitioner’s position that the Court’s refusal to allow
23
him to explore the witnesses’ motives credibility was
not harmless error.
It is well established that “the confrontation
Clause guarantees an opportunity for effective
cross-examination, not cross-examination that is
effective in whatever way, and to whatever extent,
the defense might wish.” Delaware v. Fensterer, 474
U.S. 15, 20 (1985). The Confrontation Clause is
generally satisfied “when the defense is given full and
fair opportunity to probe and expose these infirmities
through cross-examination, thereby calling to the
attention of the fact finder the reasons for giving scant
weight to the witness’ testimony.” Id. at 22.
Slaughter was not allowed to do this.
Cross-examination is the principal means by
which the believability of a witness and the truth of
‘his testimony are tested. Cross-examination may
reveal possible biases, prejudices, or ulterior motives
of the witness as they may relate directly to issues or
personalities in the case at hand. The partiality of a
witness is subject to exploration at trial, and is
"always relevant as discrediting the witness and
affecting the weight of his testimony." 3A J.
Wigmore, Evidence 940, p. 775 (Chadbourn rev.
1970). :
The Supreme Court has recognized that the
exposure of a witness' motivation in testifying is a
proper and important function of the constitutionally
protected right of cross-examination. Davis v. Alaska,
415 U.S. 308, 317 (1974) The jurors were entitled to
have the benefit of the defense theory before them so
that they could make an informed judgment as to the
weight to place on Richardson, Murray, Seldon and
Dugan’s testimony which provided "a crucial link in
24
DORE ANG BAPE: StI IRB ILRI ELIE TOLER OT
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DORON BAT. BPN AI MOE DOSE TONNE ET LO Te NTT PORE
the proof . . . of petitioner's act." Douglas v. Alabama,
380 U.S., at 419.
The accuracy and truthfulness of Richardson’s
testimony were key elements in the State's case
against petitioner. The claim of bias which the defense
sought to develop was admissible to afford a basis for
an inference of undue pressure because of
Richardson’s concern about her sister. While the jury
was allowed to know that Richardson had made a
deal with the State authorities in exchange for her
testimony, they were not allowed to know that the
trial version of her testimony was first placed before
the Federal Grand Jury in an effort to save her sister.
On these facts it seems clear that defense counsel
should have been permitted to expose to the jury the
facts from which jurors, as the sole triers of fact and
credibility, could appropriately draw inferences
relating to the reliability of the witness. Petitioner
Slaughter was thus denied the right of effective
cross-examination.
"An abuse of discretion has occurred if the jury is
left without 'sufficient information concerning
formative events to make a "discriminating appraisal"
of a witness's motives and bias." United States v.
Twomey , 806 F.2d 1136, 1140 (1st Cir. 1986) (quoting
United States v. Campbell , 426 F.2d 547, 550 (2d Cir.
1970)).
JURY INSTRUCTIONS
The Court refused to allow Slaughter’s requested
jury instruction D-5 and D-unnumbered, his care and
caution instructions.
The instruction D-5 read:
The testimony of an alleged accomplice is to 4
be considered and weighed with great care f
and caution and suspicion. You may give it
such weight and credit as you deem it is H
entitled. | -
(CP 632)
Jury instruction D-unnumbered reads:
The testimony of one who provides evidence
against the defendant for immunity from
punishment must always be examined and
weighed by the jury with greater care and
caution than the testimony of ordinary
witnesses. You the jury should consider and
weigh such testimony with great care and
caution and suspicion. You may give it such
weight and credit as you deem it is entitled.
(CP 630)
Both instructions were refused. (RE 126-129; 28,
29, T 667-670; CP 630,32) _
Slaughter’s position is that care and caution
instructions should have been given with regard to
Richardson, Murray, Seldon and Dugan. Since the
trial court excluded testimony regarding the
immunity agreements it did not allow the instructions
with regard to Murray, Seldon and Dugan. The Trial
Court refused D-5 based on the fact that Richardson
was indicted as an accessory after the fact and not as
an accomplice. Instructing the jury regarding
26 -
NEE ee aie Fa act oedasiseh ech Coun Gl Suite a hate
ee OE!
Kg EROS ARAN DOE ARLE APOIO RE TT RR EE REE RA PN
Richardson’s testimony should not rest solely on her
classification as a co-defendant or accomplice but on
whether she received some “favor or benefit” for her
testimony. She did and the jury should have been
instructed regarding her testimony.
Four witnesses, Murray, Seldon, Dugan, and
Richardson gave their direct testimony against
Slaughter’s alleged involvement with the shooting in
exchange for valuable considerations - immunity,
freedom from jail, and vicarious freedom for one’s
sister. Cautionary instructions have been approved
by many state and federal courts, See i.e. United States
v. D’Antignac, 628 F.2d 428 (5th Cir. 1980) cert denied,
450 U.S. 967 (1981); Wilkerson v. United States, 591
Fed.2d 1221 (5th Cir. 1979). It has been held to be
plain error to fail to give such instructions in a
compensated witness case. United States v. Bradfield,
103 F.3d 1207, 1216-1217 (5th Cir. 1997) Mississippi
case law also recognizes cautionary instructions
should be give. McNeal v. State, 551 So.2d 151 (Miss.
1989) and Sherrel v. State, 622 So.2d 1233 (Miss. 1993)
under the right circumstances. Here the trial court as
well as the appellate court denied the defendants
requested instructions.
As part of the Sixth Amendment the accused in a
criminal prosecution shall enjoy the right to a speedy
and public trial by an impartial jury.” Sullivan v.
Louisiana, 508 U.S. 275, 278 (1993) It is an integral part
of a fair trial that the jury be fully and correctly
instructed.. The Chapman harmless error standard
recognizes that “certain constitutional errors, no less
than other errors, may have been “harmless” in terms
of their effect on the fact-finding process at trial.
Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986). The
question is “whether the guilty verdict actually
27
rendered in this trial was surely unatrributable to the
error.” 508 U.S. 275, 279. In the absence of proper
instructions, the court can only speculate what a
reasonable jury would have done. And when it does
that, “the wrong entity judge[s] the defendant guilty.”
Rose v. Clark, 478 U.S. 570, 578 (1986).
Considering the fact that Richardson gave
contradictory statements, and allegedly came forward
only on the eve of her sister’s arrest, a cautionary
instruction should have been given. The State of
Mississippi in its brief before the Mississippi Supreme
Court conceded that the refusal to give the cautionary
instruction as to Richardson was error, but denied
that it was reversible error since the defendant was
not prejudiced thereby. (Relying on Knight v. State, 57
So.2d 161 (Miss. 1952) On appeal the State argued
that this was because her testimony was corroborated
in pertinent respects by other witnesses and she was
subject to cross-examination. The truth is Richardson
was the only eyewitness who could purportedly
identify Slaughter as the shooter. Richardson’s first
statements to the police exculpated Slaughter. The
corroborating witnesses were the ones who received
immunity agreements which were not disclosed to
the jury. The failure to grant cautionary instructions
as to all of the witnesses who had previously testified
regarding the events of April 29, 1998 was reversible
error. The failure to give the instructions effectively
deprived Jodon Slaughter of a fair trial by an
impartial jury under correct instructions of law.
CONCLUSION
The rulings set out in this Petition clearly show the
Trial Court and Mississippi Supreme Court erred in
their rulings regarding the proffered testimony and
28
TAF ae Rieceaer noe pt gmap: Ay MOORE TIS TT — —_
FA RS APC a A
the jury instructions. These ruling were in direct
contradiction of the holdings of the United States
Supreme Court and the in derogation of the rights
provided to Jodon Slaughter through the Sixth and
Fourteenth Amendments to the United States
Constitution. This Petition should be granted.
Respectfully submitted,
jut
Michael Crosby
Attorney At Law
2111 25th Ave.
Gulfport, MS 39501
228-822-2727
MS Bar No. 07888
APPENDIX
1. Slaughter v. Mississippi, 2000-KA-01533-SCT,{5
(Feb. 14, 2002).
2. Trial Court rulings on admission of testimony.
3. Slaughter v. Mississippi, 2000-KA-01533-SCT,{5
(Feb. 14, 2002). Order denying
rehearing (May 23, 2002)
4. Trial Court ruling on jury instructions.
|
:
No.
In The
Supreme Court of the United States
October Term 2001
Jodon Antonio Slaughter
Petitioner
v.
The State of Mississippi
Respondent
On Petition for Writ of Certiorari
To The Mississippi Supreme Court
APPENDIX TO PETITION FOR WRIT OF
CERTIORARI
Michael W. Crosby
Attorney at Law
Counsel of Record
2111 25th Ave.
Gulfport, MS 39501
228-822-2727
1.
APPENDIX
Slaughter v. Mississippi, 2000-KA-01533-SCT,45
(Feb. 14, 2002).
08
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 2000-KA-01533-SCT
JODON ANTONIO SLAUGHTER
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 2/11/2000
TRIAL JUDGE: HON. JERRY O. TERRY, SR.
APPEALED FROM: HARRISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:MICHAEL W. CROSBY
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY
GENERAL BY: DEWITT T. ALLRED
DISTRICT ATTORNEY: CONO A. CARANNA, II
NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION:
AFFIRMED - 02/14/2002 MOTION FOR REHEARING
FILED:3/25/2002; denied 5/23/2002
MANDATE ISSUED:5/30/2002
Before PITTMAN, C.J., EASLEY and GRAVES, JJ.
EASLEY, JUSTICE, FOR THE COURT:
1. Jodon Antonio Slaughter (Slaughter) was
found guilty of the murder of Kelvin Reynolds
(Reynolds) by a jury in the Circuit Court of Harrison
County, First Judicial District. A mandatory sentence of
life in prison was imposed on Slaughter. The trial court
denied Slaughter's motion for judgment
notwithstanding the verdict or alternatively, motion for
a new trial. Slaughter now appeals to this Court.
FACTS
42. At trial, a number of residents at the River 10
apartment complex in Gulfport, Mississippi, testified
about what they observed on April 29, 1998. Sharon
Patton (Patton), a resident of Apartment 70, was in the
living room of her upstairs apartment when she heard
an argument and a noise outside that "sounded like a
firecracker." When she looked outside, directly below
her balcony, she saw two men at a Ford Explorer. One
of the men was sitting inside it, "hunched over" on the
passenger side, and "the other man was reaching in
with a gun." She stated that she saw "something shiny"
that it looked like a "gun," and ran back inside. She
then heard two or three more shots. She did not see the
two men clearly enough to describe them.
43. Ronald Lawrence (Lawrence), a resident of
Apartment 69, was on his balcony at about 9:30 p.m.,
when he became aware of an apparent argument or
fight between two men. He saw a gun that was
described as "nickel-plated,” and he saw a_ "silvery
flash." He heard a bang and ran inside. He testified that
he may have heard a few more shots. Lawrence
recognized the victim, who had been there at the
apartment complex for a few weeks, but he was unable
to see the other man_ clearly enough to provide a
description.
94. Alicia Mitchell (Mitchell), a resident of
Apartment 53, was returning home from a shopping
trip at about 9:30 p.m. that night. She heard a sound like
a gunshot as she backed into a parking space
approximately "five or more car lengths" from the
Explorer. She saw what appeared to be "a person
leaning over someone else, leaning into a vehicle."
There was another couple of shots, and then "they"
raced up, got into another parked car, and sped out in
front of her car as they left the complex. She described
the car that passed directly in front of her as "a teal blue
colored car, a Mustang style." She went to the Explorer,
A nO HE hae sch RATE NTR eee Te ETT
Se re oe teens retrace ot
where she confirmed her assumption that someone has
been shot.
5. A number of Gulfport police personnel
participated in the case. Officer Adam Cooper (Officer
Cooper) responded to a "shots fired" call and found the
deceased in the Ford Explorer. Officer Charles Horne
(Officer Horne) collected shell-casings from an
automatic weapon that night at the scene of the
shooting. Subsequently, he recovered a projectile which
a resident of the apartments had found. Officer Horne
also identified fragments of metal and fragments of lead
projectiles recovered during the autopsy of the victim
and some cell phones and_ beepers recovered at the
scene of the shooting. Detective Kevin Raymond
(Detective Raymond) collected evidence from the
interior of Reynolds's van, including three beepers, two
of which were found on the center console and one of
which was found in the front passenger door
compartment. Detective Gregory Herman (Detective
Herman) found the gun in the storm drain on August
25, 1998. Detective Rosario Ing (Detective Ing)
reviewed a videotape of the Grand Casino's valet
parking area taken at 9:08 p.m. on the night of the
murder and identified Slaughter.
16. Valerie Seldon (Valerie) was an employee at
the Grand Casino in Gulfport and a resident of
Apartment 72. At the time prior to the shooting,
Reynolds had been staying with her for two or three
weeks while in the process of moving to the coast from
Atlanta, Georgia, to start a pager and cellular phone
repair business. Valerie and Reynolds became
acquainted at the casino. She also met Slaughter at the
same time as Reynolds.
47. During the day of April 29th, Reynolds was
at the apartment, where Valerie observed him
"constantly on the phone," "antsy" and "nervous." To
her personal knowledge, he spoke with Slaughter
several times during the day, and, to her personal
knowledge, Reynolds knew that Slaughter was coming
to Gulfport. Slaughter also wanted to use Reynolds's
truck. She last saw Reynolds between 6:30 p.m. and
8:00 p.m., when she fell asleep. Valerie first learned of
Reynolds's death when the police came to her
apartment later that night.
48. Darryl Screven (Screven), a casino host at the
Grand Casino, became acquainted with Slaughter
sometime during 1996 or 1997, in connection with his
casino employment. He met Reynolds during a trip to
Atlanta to meet with Slaughter.
49. In April of 1998, Slaughter called Screven and —
informed him that he would be coming to Gulfport
with Ken Ogletree (Ogleree) to patronize the Grand
Casino. Screven met Slaughter, Ogletree and Tracy
Stepney (Stepney) at the casino and had lunch with
them on Wednesday, the day of the murder.
410. At about 7:00 that evening, Screven received
a phone call from Reynolds, who said that Slaughter
wanted to go to a shopping mall. However, only
Screvens and Stepney went to the mall and returned to
the casino at about 8:45 p.m.
4/11. Screven left to go home. On the way, he
received a "succession of beeps" from Slaughter and
Reynolds. He stopped and called Slaughter, who asked
him to come back to the casino. An arrangement had
been made for Reynolds to bring his vehicle to the
casino so that Slaughter could use it to go to New
Orleans. Reynolds would then need a ride from the
casino back to Valerie's apartment. Screven called
Reynolds, who told him "basically the same thing."
Screven returned to the casino, but Slaughter had
departed. He called Valerie's apartment to find out if
Reynolds was coming to the casino. When Screven
spoke with Valerie, she told him "nothing concrete." He
waited at the casino about ten minutes and then went
home.
4412. Screven learned later that night that
Reynolds had been killed. Subsequently Screven was
questioned by the police. The next morning, Slaughter
called him to talk about checking out of the casino's
hotel. Screven told Slaughter about Reynolds's
"demise" and "that the police were looking for
Slaughter."
13. Caroline Patton (Patton), a valet at Grand
. Casino, was working on the night of April 29, 1998. She
knew Regina Richardson (Richardson) and was familiar
with her car, a green Mustang. At about 9:00 p.m. or
9:15 p.m., that night, she saw Richardson at the casino
with two men and a woman. Screven called, and Patton
gave the phone to one of the men with Richardson, who
spoke briefly with Screven. The car was brought
around, and Patton saw the man who had talked on the
phone to Screven get into Richardson's green Mustang
and drive away. She could not say whether or not all
three of the people got into Richardson's car. Screven
called again, and she told him that they had just left.
14. Richardson, a dealer at the Grand Casino,
become acquainted with Slaughter through her
employment. She did not know Reynolds. She saw
Slaughter at the casino early in the afternoon of April
29th, and they made plans at that time to go to New
Orleans that night with two other people when she got
off work. When she got off work at 7:00 p.m., she went
home and changed clothes, got her green Mustang, and
returned to the casino, where Slaughter and Ogletree
were still gambling. By about 9:00 p.m., she met
Slaughter, Ogletree and Stepney in one of the hotel
rooms, and they made plans to go out for the evening.
Richardson had to take Slaughter to pick up this truck
before going out for the evening. Since Richardson
worked early the next day, they agreed that the four of
them would go out somewhere locally afterwards
instead of going to New Orleans.
15. During the evening, both in the casino and
in the hotel room, Richardson was present when
Slaughter talked on the phone numerous time with
Reynolds. In the hotel room, Richardson saw Slaughter
with a gun and put the holstered gun on his belt by his
hip. It was Richardson's understanding from her
conversations with Slaughter that he needed to pick up
his friend's truck. Stepney asked Richardson whether
she knew where Valerie lived. Richardson knew the
apartment complex but she found Valerie's exact
address by calling information.
16. Downstairs, Stepney changed her mind
about going with them and went back into the hotel.
Richardson drove Slaughter and Ogletree to the River
10 Apartments in her car.
17. En route, Slaughter, who was in the front
passenger seat, spoke on the telephone two or three
times with Reynolds. At the entrance to the apartment
complex, Slaughter told Reynolds on the telephone that
he was still at the casino. Slaughter told Reynolds to
bring his vehicle to the casino and leave the keys with
the valet. Slaughter told Reynolds that Screvens would
give Reynolds a ride home. Slaughter also had spoken
on the phone with Screvens and also had "led
[Screvens] to believe that he was still at the casino" and
that Reynolds would be delivering the vehicle to the
casino.
]18. Richardson drove around the apartment
complex until Slaughter and Ogletree located the
vehicle. She drove past the vehicle, a Ford Explorer, to
the end of the parking area and was told to turn off her
lights. She turned her car around and parked about one
car past the Ford Explorer. Before she was completely
stopped, Slaughter, without saying anything, got out of
the car. Richardson did not know Reynolds, but she
Saw a man standing outside a ground-floor apartment.
419. Slaughter disappeared from Richardson's
view. She parked the car, sat there for a couple of
seconds, and turned to speak to Ogletree in the back
seat. As she did so, she heard gunshots. She looked out
and saw Slaughter at Reynolds's Explorer with the
same "silver, big, shiny gun" in his hand that she had
seen at the hotel.
20. She put the car in reverse, intending to flee,
but Ogletree's presence indicated to her that she "could
not leave," that she "had 'trouble' in [her] back seat." So
she stopped, and Slaughter got back into the car.
Richardson testified that "there was conversation that
went sort of like - - and I'm paraphrasing: 'I killed him.
I shot the m-----f-----." Slaughter gave the gun to
Ogletree and tried not to made a mess with the blood
on his clothes.
421. While driving back to the Grand Casino,
they were stopped at a railroad crossing. Slaughter and
Ogletree got out of the car. Slaughter then broke the
gun into pieces and dropped the pieces into a drain
pipe.
422. Back at the Grand Casino, Ogletree got out
of the car, and Slaughter instructed Richardson to drive
him to her house. They got to her house about 10:00
p.m. Slaughter put his bloodied clothes into a trash bag,
took a shower, and put on a set of Richardson's
workout clothes.
423. Richardson gave Stepney directions to the
house on the telephone, and Stepney drove Ogletree
over to Richardson's house. Ogletree brought Slaughter
some new clothes, talked with Slaughter and then took
the trash bag with him when he left.
24. Slaughter indicated that Ogletree was
"supposed to go and discard the garments." He also
told Richardson the story he wanted her tell the police
about where they had been and what they had been
doing that night. While Slaughter was still at the house,
Richardson called her sister, Kelly Seldon (Seldon), in
Atlanta and told her what had really happened. At
about 1:00 a.m., Richardson drove Slaughter to a motel
in the Moss Point/ Pascagoula area where Ogletree and
Stepney were waiting for him. Slaughter got out of the
car and told Richardson to "keep it together," and
Richardson drove home.
25. At work the next day, Richardson was
picked up by the police and questioned. Thereafter, she
had a telephone conversation with Slaughter. When
she was questioned by the police, Richardson told them
the story that Slaughter had fabricated. About two days
after the murder, Richardson went to Atlanta and met
with Slaughter.
26. Richardson was indicted for accessory to
murder, after the fact, and she subsequently told the
police what actually had happened that night and told
them the location of the gun in the drain. The
indictment was dropped with prejudice in exchange for
her agreement to testify eeaaiieias as in the prosecution of
Slaughter.
727. Crime Lab Technician Steve Byrd (Byrd), a
forensic firearms examiner, test-fired the gun
submitted to him for purposes of comparison with the
bullets and shell-casings. He described the gui has
having a "stainless steel finish." In Byrd's opinion, the
gun's class characteristics were consistent with its
having been the gun that fired the projectiles. He
considered the gun as a possible source for discharging
the components; however, the particular components
could not be positively included or excluded as having
been discharged. Byrd could not state that the gun was
the only source to discharge the components. Byrd
testified that the gun's rusted condition could have had
"an adverse effect on known test standards."
928. Richardson's roommate, Rhonda Reyna
(Reyna), testified that she, her boyfriend, and
Richardson's daughter came back to the apartment at
about 10:00 p.m. after seeing a movie. Richardson and
Slaughter were at the apartment. Later, another man
came to the apartment. Richardson asked Reyna to
hand her a trash bag that was in the living room. The
second man left the apartment soon afterwards, but she
did not see him leave.
429. Lemuel Murray (Murray) and Slaughter
both worked for a car dealership in Atlanta. About ten
days to two weeks prior to April 29, 1998, Murray and
Slaughter spoke on the telephone and, at Slaughter's
request, Murray went to Slaughter's home to talk with
him. Slaughter told Murray that Reynolds "was a f------
rat, and he had people coming up from Miami bringing
him a silencer, and he was going to blow Kelvin
Reynolds's f----— head off."
430. The next time Murray spoke with Slaughter
was on April 30, 1998, the day after the murder of
Reynolds. Slaughter called Murray to tell him that he
had just gotten back from Mississippi and that he was
going to come by the car dealership to talk with
Murray. When Slaughter came over there later, he
asked Murray if he had heard what had happened to
Reynolds last night. Murray replied that he had not.
Slaughter told him that "the word was on the street that
[I] had killed Kelvin Reynolds." Slaughter then talked
on the phone with Ogletree, and, as he was leaving the
dealership he said to Murray, "Do you think they got
the message?"
431. Linda Dugan (Dugan), a resident of Georgia
and Slaughter's former spouse, knew Reynolds for less
than a year. Prior to his departure from Georgia on or
about April 29th, Slaughter invited Dugan to go to
Gulfport with him, but she did not go with him. On the
night of April 29-30, 1998, Slaughter called Dugan and
stated he was in Mississippi. She asked him if he was
"taking care of business", and he said, "Yes, you'll read
about it [in the paper]." She did not know at the time
what his "business" in Mississippi was, except that he
was going there to gamble. Later on the morning of the
30th, at about 10:00 a.m., Slaughter called her again and
asked her if she had heard what had happened to
Reynolds.
432. Richardson's sister, Seldon, stated that on
the night of the murder, Richardson called and told her
about the murder. Seldon did not know Reynolds. She
had met Slaughter on an occasion when they both were
gambling at the Grand Casino in Gulfport, but the first
time she "actually met him eye to eye" was when he
showed up at her house a day or two after Reynolds
was killed. Richardson was at Seldon's house at the
time, and Richardson left Seldon's house with
Slaughter. Thereafter, Seldon became personally
acquainted with Slaughter and he stated that Reynolds
was “his best friend and he hated what he had to do to
him."
STATEMENT OF THE ISSUES
I. Whether the trial court erred by refusing to.
allow disclosure to the jury of evidence of federal
prosecution immunity agreements.
Il. Whether the prosecutor's opening and closing
arguments were prejudicial.
III. Whether the trial court erred by refusing to
allow a "great care and caution" jury instruction.
DISCUSSION
I. Immunity Agreements
433. Slaughter first complains that the trial court
erred by refusing to allow him to disclose federal
immunity agreements to the jury for material witnesses.
The specific witnesses in question are Murray, Seldon,
Dugan and Richardson. The State of Mississippi also
had an immunity agreement with Richardson in regard
to the murder of Reynolds.
434. This Court has held that "reversible error
results when evidence of an immunity agreement
between the State and its key witness is removed from
the jury's consideration." Morgan v. State, 703 So.2d 832,
840 (Miss.1997)(citing King v. State, 363 So.2d 269, 274
(Miss.1978); Suan v. State, 511 So.2d 144, 146-48
(Miss.1987); Foster v. State, 508 So.2d 1111, 1112-15
(Miss.1987); Malone v. State, 486 So.2d 367, 367-69
(Miss.1986); Fuselier v. State, 468 So.2d 45, 51-52
(Miss.1985)).
35. Slaughter claims that witnesses, Murray,
Seldon, Dugan and Richardson, testified to having
immunity agreements and their testimony should have
been disclosed to the jury. (FN1)
36. Murray testified at trial. In a proffer before
the judge and outside the presence of the jury, Murray
testified that he received use immunity from the
federal government concerning alleged crimes
involving Slaughter and Reynolds. The trial judge
excluded this information stating that the federal
immunity given Murray had nothing to do with the
prosecution of Slaughter in the murder case. The trial
judge stood by this ruling and excluded the testimony
as to the immunity pursuant to M.R.E. 403.
137. At trial, defense counsel maintained that
Seldon had a use immunity agreement with the federal
government as indicated in federal grand jury
testimony. Further, Slaughter cites federal jury
testimony that indicates Seldon had a cooperation /use
immunity agreement.
38. The State stipulated, based on federal grand
jury testimony, that Dugan had entered into an
immunity agreement with the federal government. The
type of immunity, use or transactional, was unknown
to the State. The federal grand jury testimony, is also
unclear as to the type of immunity granted to Dugan.
"[A]Jn_ appellant is responsible for bringing to our
attention and presenting to this court a record of trial
proceedings sufficient to undergird his assignments of
error." Winters v. State, 473 So.2d 452, 457 (Miss. 1985).
39. Richardson testified in a proffer of evidence
by Slaughter and outside the presence of the jury. On
cross-examination by the State, she stated that her
immunity from the federal government had nothing to
do with this trial. Furthermore, the federal government
was not investigating her nor was she facing federal
charges. Subsequently, Richardson testified before the
jury that she was indicted for accessory to murder by
the State of Mississippi. In addition, she stated that in
exchange for statements and cooperating in the
investigation, the indictment against her was dropped
with prejudice.
440. The trial judge did not allow any proffer or
testimony from the federal case to go before the jury.
Further, he stated that the immunity agreement for the
accessory after the fact indictment was already before
the jury.
q41. Murray, Seldon and Dugan were never
indicted in Mississippi in connection with the murder
of Reynolds. Their immunity was solely with the
federal government concerning other alleged crimes
separate and distinct from the murder of Reynolds.
From the record, it appears that they received use
immunity agreements. While these witnesses may have
known of some alleged involvement of Slaughter in the
murder of Reynolds, there is no indication that the
federal government offered any immunity from
prosecution concerning the Reynolds murder.
142. Richardson also, apparently, had immunity
from the federal government. However, she was also
indicted by the State of Mississippi as an accessory after
the fact for the murder of Reynolds. There was an
immunity agreement between Richardson and the State
of Mississippi. In exchange for truthful testimony and
cooperation with the State of Mississippi in the
prosecution of Slaughter for the murder of Reynolds,
the State dropped the indictment with prejudice against
Richardson. This was complete immunity from State
prosecution. The immunity agreement between
Richardson and the State of Mississippi was disclosed to
the jury at trial.
143. As to the federal immunity agreements for
the witnesses, no promise was made not to prosecute
the witnesses in regard to the murder of Reynolds. The
federal case did not focus on Reynolds's murder, but on
other alleged federal crimes. Richardson, the key
witness of the State of Mississippi in the Reynolds
murder trial was offered complete immunity by the
prosecution in exchange for truthful testimony. The
immunity agreement between the State and Richardson
was before the jury. Therefore, the issue is without
merit.
II. Opening and closing statements
144. Slaughter next complains of prosecutorial
misconduct in opening and closing statements.
Standard of Review
1/45. The standard of review that appellate courts
must apply to lawyer misconduct during opening
statements or closing arguments is whether the natural
and probable effect of the improper argument is to
create unjust prejudice against the accused so as to
result in a decision influenced by the prejudice so
created. Sheppard v. State, 777 So.2d 659, 660 (Miss.
2000)(citing Ormond v. State, 599 So.2d 951, 961
(Miss.1992)).
A. Opening Statements
446. Slaughter claims that during opening
statements the prosecution stated alleged facts that
could not reasonably be expected to offer into evidence.
The prosecutor stated the following in his opening
statement:
Remember, this happened April 29 of
1998. In August, I think the 25th, almost
four months to the day, she told the police
the rest of the story. And they went out on
Railroad Street in the City of Gulfport and
started checking storm drains. And guess
what they found: A silver 9 millimeter
pistol down in the storm drain with the
handle busted off of it. Guess what else
they found when they cleaned the rust off
of it and got the solvents and cleaned it
engraved on the barrel: "Walt Stepney, Jr."
It's Tracy Stepney's daddy's gun she had
given to Jodon to fix. It's still got "Stepney"
written on it. (emphasis added).
Slaughter claims that there was no expectation that
Tracy Stepney's father gave her the gun, nor that she
had given the gun to Slaughter to "fix." Further, he
argues that at the first opportunity an objection was
made and he moved for a mistrial.
47. A careful review of the record reveals that
Slaughter made no contemporaneous objection during
the prosecutor's opening statement. The first time
Slaughter brought this issue to the trial court's attention
was after the prosecution completed its opening
statement and prior to the defense's opening statement.
This Court held that "[i]f no contemporaneous objection
is made, the error, if any, is waived." Walker v. State, 671
So.2d 581, 597 (Miss. 1995) (citing Foster v. State, 639
So.2d 1263, 1270 (Miss. 1994)). Hill v. State, 432 So.2d
427, 439 (Miss. 1983). An appellate court is under no
obligation to review an assignment of error when an
objection was not made or when an objection was
untimely. Carr v. State, 655 So.2d 824, 832 (Miss. 1995).
The contemporaneous objection rule is in place to
enable the court to correct an error with proper
instructions to the jury whenever possible. Gray v. State,
487 So.2d 1304, 1312 (Miss. 1986) (citing Baker v. State,
327 So.2d 288, 292-93 (Miss. 1976)).
48. The trial court addressed a number of issues
at this time, including the prosecutor's opening
statements. Slaughter simply requested a mistrial based
on the prosecutor's comments. The trial court
overruled the motion for mistrial. Clearly, Slaughter is
procedurally barred for lack. of a contemporaneous
objection.
49. As to Slaughter's motion for mistrial, the
standard of review for a denial of a motion for mistrial
is abuse of discretion. Spann v. State, 771 So.2d 883, 889
(Miss. 2000). Witherspoon v. State, 441 So.2d 1363 (Miss. —
1983). However, an objection is usually made before a
motion for mistrial. The objection provides the trial
court an opportunity to sustain an objection, and if
requested admonish the jury to disregard the remark.
450. This Court has held that trial judge is in the
best a position to determine if an alleged objectionable
remark has a prejudicial effect. Roundtree v. State, 568
So.2d 1173, 1177 (Miss. 1990). "The judge is provided
considerable discretion to determine whether the
remark is so prejudicial that a mistrial should be
declared." Id. at 1778. If serious and irreparable damage
has not occurred, then the trial judge should direct the
jury to disregard the remark. Id. at 1778.
951. In the case sub judice, Slaughter failed to
contemporaneously object at trial to the statements
made by the prosecution. As such, any error is waived.
Walker v. State, 671 So.2d at 597.
452. Procedural bar aside, the opening statement
by the prosecution was not unduly prejudicial. The trial
court warned the jury prior to opening statements,
stating "Opening statements are intended to assist you
in understanding how the evidence will unfold from
the witness stand itself. You must keep in mind that
these opening statements are not in evidence. You are
not to consider it as evidence. It's sort of an outline that
you can follow." This Court has held that "[t]he
purpose of an opening statement is to inform the jury
what a party to the litigation expects the proof to show.
Sometimes the proof does not follow the expectations
of the party's attorney in opening statement and, if so,
that failure usually militates against the party."
Crenshaw v. State, 513 So.2d 898, 900 (Miss. 1987).
4/53. The jury was properly instructed by the trial
judge that opening statements are not evidence. As to
the motion for mistrial, Slaughter failed to make a
contemporaneous objection on which the judge could
make a ruling. There was no error and no abuse of
discretion by the trial judge in allowing the
prosecution's opening statement to be heard by the jury
and in overruling the motion for mistrial. B. Closing
Statements
54. Slaughter also claims that the prosecutor
again referred to matters not in evidence in closing
argument. Slaughter cites the following excerpts from
the prosecutor's closing argument:
We also talked about the various rules of
court; that it was not a function of you as
jurors to rule on the various objections
that would come form the attorneys.
There is obviously -- even more than I
think either Mr. Crosby or I could have
anticipated -~but there is a wealth of
information that's been developed over
the last two years about this case. As is
obvious to you now, a lot of it was not
able to be given to you under these rules
of court from either side.
Mr. Crosby: Objection, Your
Honor.
The Court: Don't comment on
what was not given.
Mr. Crosby: And move for a
mistrial with respect to his improper
comment.
The Court: Overruled. The jury will
disregard the argument that there was
something that you did not hear.
Proceed.
Slaughter also cites the following closing excerpt:
I mean, what a coincidence. What a
strange little turn of events. And I've got
to tell you, as a prosecutor who needs
some luck now and then, when you get
this gun back there, you're going to have
to turn the paper so you can see it.
Manipulate it around right here. Right
engraved on that barrel there: "Walt
Stepney, Jr." What a little piece of
coincidence that the girl, who at the time
the defendant was beating this on the
ground and stuffing it in the drainage
pipe over on 42nd Avenue, the girl, whose
father owns this gun, is at the Grand
Casino packing everything in a duffel bag
fixing to get the hell out of Gulfport and
back to Atlanta. What a little funny turn of
a coincidence they would have you
believe. Consistent with Regina's story,_
what she told the police four months later.
755. This Court has held that attorneys are
allowed wide latitude in closing arguments. Holly v.
State, 716 So.2d 979, 988 (Miss. 1998); Wilcher v. State,
697 So.2d 1087, 1010 (Miss. 1997). In addition, the "court
should also be very careful in limiting free play of
ideas, imagery, and personalities of counsel in their
argument to [a] jury." Ahmad v. State, 603 So.2d 843, 846
(Miss. 1992). Any alleged improper comment must be
viewed in context, taking the circumstances of the case
into consideration. Id. The trial judge is in the best a
position to determine if an alleged objectionable
remark has a prejudicial effect. Roundtree, 568 So.2d at
1177.
9756. If sustaining the objection alone is
considered to be inadequate to remove the alleged
prejudicial effect of the objected matter from the minds
of the jury, then the court must be requested to instruct
the jury to disregard the matter. Anderson v. Jaeger, 317
So.2d 902, 906 (Miss. 1975). The jury is presumed to
understand that the court disapproves of any testimony
when an objection is sustained. Estes v. State, 533 So.2d
437, 439 (Miss. 1988).
757. In the closing argument a prosecutor is
allowed to argue evidence that has been admitted.
Brooks v. State, 763 So.2d 859, 864 (Miss. 2000). However,
“arguing statements of fact that are not in evidence or
necessarily inferable from it which are prejudicial to the
defendant is error." Id. Dancer v. State, 721 So.2d 583
(Miss. 1998); Banks v. State, 725 So.2d 711 (Miss. 1997).
This Court does not condone the prosecution stating
matters not in evidence and potentially causing the
jury to disfavor the defendant. Brooks, 763 So.2d at 864;
Banks, 725 So.2d at 711.
q58. "The test for determining if improper
argument by the prosecutor to the jury requires
reversal is 'whether the natural and probable effect of
the improper argument of the prosecuting attorney is
to create an unjust prejudice against the accused as to
result in a decision influenced by the prejudice so
created." Brooks, 763 So.2d at 864 (quoting Davis v. State,
660 So.2d 1228, 1248 (Miss. 1995)).
459. Slaughter claims that the reference to the
gun by the prosecution, in the opening and closing
statements, is the only link to show how he allegedly
acquired the gun that was used in the shooting. In the
case sub judice, the statements made by the
prosecution do not warrant reversal. The fact that the
prosecution commented on the ownership of the gun
does not rise to the level of unjust prejudice in this case.
460. The gun was admitted into evidence during
the testimony of Officer Herman. In addition,
Richardson testified that Stepney was with Slaughter,
Ogletree and her at the hotel on the night of the
murder. Since the gun is in evidence, any writings on
the gun would be proper for comment.
{61. Moreover, the testimony of numerous
witnesses at the apartment complex described a gun
that was shiny, silvery, or nickel-plated. Richardson
stated that she saw Slaughter place a "silver, big, shiny
gun" in a holster on his hip. Richardson also testified
that she heard shots being fired at the scene. Slaughter
had the same silver, shiny gun in his hand that he had
in the hotel. Furthermore, according to Richardson,
Slaughter returned to the car bloodied and stated
something along the line of "I killed him." The gun
allegedly was disposed of in a drain near a railroad
crossing by Slaughter and Ogletree. Information
provided by Richardson enabled the police to recover a
gun by the railroad crossing. The crime lab technician
testified that the recovered gun's characteristics were
consistent with it being the gun that fired the projectiles
and a possible source for discharging the components.
There is substantial testimony in the record pertaining
to the gun, separate and apart from the comments
made by the prosecution, to provide the jury with
enough information to link the recovered gun to
Slaughter. Accordingly, the facts of this case do not
warrant reversal. To the extent that any prejudice may
have arisen by the prosecutor's comments, the error is
harmless. This issue is without merit.
III. Great Care and Caution Jury Instruction
62. Slaughter contends that the trial court erred
in refusing jury instruction D-5 and D-unnumbered
pertaining to a great care and caution instruction.
Slaughter claims that Richardson was an accomplice to
the murder. In addition, Slaughter maintains that
should this Court agree with his immunity argument,
then the great care and caution instruction should also
apply to Murray, Seldon and Dugan. We find that there
was no error in excluding the proffered testimony as to
Murray, Seldon and Dugan's federal immunity and,
therefore, no such instruction should apply to them.
463. Jury Instruction D-5 read as follows:
The testimony of an alleged accomplice is
to be considered and weighed with great
care and caution and suspicion. You may
give it such weight and credit as you
deem it is entitled.
Jury instruction D-unnumbered reads as follows:
The testimony of one who provides
evidence against the defendant for
immunity from punishment must always
be examined and weighed by the jury
with greater care and caution than the
testimony of ordinary witnesses. You the
jury should consider and weigh such
testimony with great care and caution and
suspicion. You may give it such weight
and credit as you deem it is entitled.
Both instructions were refused by the trial court.
While Slaughter maintains that Richardson was an
accomplice, she was actually indicted by the State of
Mississippi as an accessory after the fact, not an
accomplice. Standard of review
464. It is within the discretion of the trial court to
grant a cautionary — instruction pertaining to the
testimony of an accomplice witness. Burke v. State, 576
S0.2d1239, 1242 (Miss. 1991). The discretion is not
absolute and may be abused. Id.
765. This Court, in Wheeler v. State, 560 So.2d 171
(Miss. 1990), held the following:
In Van Buren v. State, 498 So.2d 1224, 1229
(Miss.1986), this Court said, "the granting
of a cautionary instruction regarding the
testimony of an _ accomplice is
discretionary with the trial judge."
(Citations omitted). However, _ that
discretion is not absolute; it may be
abused. 522 So.2d at 754. (FN2)
The Derden case stated that two of the
aspects in determining whether a trial
judge has abused his _ discretion
concerning a "caution and suspicion"
instruction are: (1) was the witness an
accomplice; and, (2) was his testimony
without corroboration. In Green v. State,
456 So.2d 757, 758 (Miss.1984), this Court
said that a judge's discretion is subject to
abuse when the State's evidence rests
solely upon the testimony of an
accomplice and there is some question as
to the reasonableness and consistency of
the testimony, or the defendant's guilt is
not clearly proven.
See also Williams v. State, 729 So.2d 1181, 1188
(Miss. 1998); Holmes v. State, 481 So.2d 319, 323 (Miss.
1985).
466. This Court has defined an accomplice in
prior case law. "An accomplice is a person who is
implicated in the commission of a crime." Brewer v.
State, 725 So.2d 106, 124 (Miss. 1998). An accomplice
has also been defined by this Court as "a person who is
implicated in the commission of the crime. That is to
-say, that if the evidence admits a reasonable inference
that the witness may have been a co-perpetrator or the
sole perpetrator the cautionary instruction should be
given." Williams v. State, 729 So.2d 1181, 1188 (Miss.
1998)(citing Dedeaux v. State, 125 Miss. 326, 87 So.664
(1921)); Burke v. State, 576 So.2d at 1242.
467. An accessory after the fact has been defined
by this Court as "a person assisting one who has
completed the commission of a felony to avoid being
apprehended, arrested, convicted, etc." Chase v. State,
645 So.2d 829, 851 (Miss. 1994).
468. The Court of Appeals in Smothers v. State,
756 So.2d 779, 787 (Miss. Ct. App. 1999), had a similar
situation as the case at hand, in which the court held
the following:
The disputed jury instruction
characterized Carney as either a
co-defendant or an accomplice of
Smothers, even though Carey was only
charged as an accessory after the fact
which was later dismissed. A cautionary
instruction about accomplice testimony is
not required unless there is an accomplice.
Since Carney was neither an accomplice
nor a co-defendant and Smothers failed to
present any evidence to the contrary, the
cautionary instruction requested was
correctly denied, and this assignment of
error is without merit.
Likewise, Richardson was not an accomplice. She
was indicted for accessory after the fact. Further, her
testimony was corroborated by other witnesses. Since
the facts of the case sub judice fail to meet the Derden
test for giving cautionary instructions, the trial court
was within its discretion and correctly refused the
instruction. Accordingly, this issue is without merit.
CONCLUSION
69. For these reasons, the judgment of the
Circuit Court of Harrison County is affirmed.
470. CONVICTION OF MURDER AND
SENTENCE OF LIFE IMPRISONMENT IN THE
CUSTODY OF MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AFFIRMED.
PITTMAN, CJ., McRAE AND SMITH, P_JJ.,
WALLER, COBB, DIAZ, CARLSON AND GRAVES,
JJ.. CONCUR.
(FN 1) Apparently, the F.B.I. and Secret Service had
been investigating a number of crimes in
Atlanta. These alleged crimes did not include the
murder of Reynolds although some of the
testimony concerned the murder.
(FN 2) Derden v. State, 522 So.2d 752, 759 (Miss. 1988).
APPENDIX
2. Trial Court rulings on admission of testimony.
Motion (Jury Out) [Transcript 115]
MR. SIMPSON: Your Honor, since we’re on the
record now, I would like to go ahead and -- this is based
on the objection that I made during the voir dire. I
would like to go ahead and move in limine to prohibit
the defense during opening statements from making
any reference to criminal conduct or conspiracy or any
criminal investigation by the FBI or Secret Service or the
Justice Department, or any other reference to the
criminal character of the victim, Kelvin Reynolds, until
some evidence is introduced to the same.
MR. CROSBY: We expect the testimony will be
that the items that the State just identified are all
material to the defense and will be brought out in both
the State’s case and the defense case. We expect that the
whole -- our whole theory of this defense is that the
reasons for the witnesses coming forward is because of
the federal investigation and the reasons for the whole
case is because of the federal [116] investigation; and
that without talking about character evidence of the
decease, we still -- the fact remains that he was involved
in extensive criminal activity with the defendant; and
that the State is going to - From my understanding,
unless I’m going to be completely surprised, the State is
contending that the motive behind this case is that the
defendant believed that the deceased was testifying
against him at a Federal Grand Jury, and that’s what all
the witnesses are going to -- for the State are
supposedly going to say, is that the defendant was
arguing with the deceased over his testimony against
him; and therefore, he murdered him. That's their
whole -- that their case. And I can’t believe that they
would even - I mean, when we expect that’s what the
testimony is going to be, I can’t imagine not being
allowed to summarize that in the opening statement.
MR. SIMPSON: Your Honor, the State doesn’t
have to prove motive, and we don’t have any intention
of attempting to fashion a motive for this crime. The
testimony may be elicited that there was an argument
about whether or not the deceased was a government
informant. But the state has no [117] intention of
developing direct testimony about a federal
investigation in Atlanta and the substance of that. The
defendant has prior convictions that are, in my opinion,
admissible under 404, and we may get into that. They
are for fraud and other crimen falsi type crimes. But
we're not putting on any federal agents in our case in
chief or anyone else who's going to testify that, you
know, these people, the defendant as well as the
deceased, were subjects of a federal investigation.
MR. CROSBY: Well, --
MR. SIMPSON: And I really don’t know how
that can be brought out other than through hearsay.
The only witness -- There was reference made in the
voir dire regarding all the deals that the State made, but
the only witness who has been given anything -- and it
wasn’t so much in exchange for testimony. Regina
Richardson was indicted in a separate indictment for
accessory after the fact, and that case has been
dismissed against her and she is expected to testify.
Some months ago that was done. But she is local, she’s
not from Georgia, and she has no knowledge -- has no
knowledge and will not be giving any direct testimony
as to any federal investigation.
[118] THE COURT: Well, how can the character
of the victim be introduced into evidence to begin with?
MR. CROSBY: I’m not going to talk about his
character. I’m going o talk about his criminal
involvement with the defendant, his testimony at the
Federal Grand Jury Level. I mean, just by the State
telling me this, it may modify the way I want to defend
the case. But I do think that if we expect in my defense
that this testimony is going to come out, we reasonably
believe it will come out, that we should be entitled to do
sO.
THE COURT: Well, I think maybe that you
might be correct if that evidence does come out. But
until such time as it does come out, it would be
improper -- If the State opens the door for you, then -
but up until that time, you can’t do it. And it would be
improper to make that in your opening statement, that
you expect that proof to be, the State saying it’s not
going to be, and that would be just in anticipation.
Now, if they open a door concerning this, then
certainly the ruling could be different. But at this point
in time, of course, the State is saying that it’s [119]
obvious they do not have to prove any motive for a
murder or a killing. It’s the fact that one occurred is all
that they've got to prove.
MR. CROSBY: Well, that may be all that they
have to prove, but out defense is going to be based on
that. And if they don’t bring it out, I submit that once
they start the case, they’ve opened the door for us to
prove our -- to bring out our defense, and our defense is
that this case was based on -- and is stemming directly
from the Federal Grand Jury investigation.
THE COURT: Is that a defense for a murder?
MR. CROSBY: It’s a defense that someone else
other than this defendant did it.
MR. SIMPSON: Well, that may. be, and we'll -
you know, if his client wants to take the stand and say,
you know, he has some information that that’s why the
deceased was killed, then we can address that on cross.
But, you know, certainly there are going to be some
things brought out, but not to the extent that I believe
the deceased -- you can in opening statement allege the
deceased was part of a criminal conspiracy. I don't
think that [120] can be established by the evidence. To
my knowledge, there’s no evidence that he testified
with the Federal Grand Jury. Certainly it’s not going to
come out in any direct evidence that he ever testified.
THE COURT: Well, all right. I sustain the
motion in limine as far as any comments in opening
statement concerning any criminal activity on the part
of the victim in this case. At some time in the testimony
if a door is opened concerning that, then the ruling will
be different.
MR. CROSBY: Well, I need to establish some
very clear rules because I don’t want to cause a mistrial.
But if I understand your ruling, I cannot tell the jury
that my client was talking to the deceased about --
asking the deceased whether or not he was cooperating
or giving information to the Federal authorities that
was conducting an investigation against many people;
and I cannot, apparently, tell the jury in my opening
statement that the defendant is expected to testify that
he was trying to get the deceased to bring his vehicle to
the Grand Casino to -- or to come to the Grand Casino
for the purpose of having a discussion with someone
above them in his criminal activity that they were [121]
doing for the -- to talk about and deny that he was
giving the information to the Federal authorities.
THE COURT: No, sir, you can’t do that because
that’s presupposing that at the appropriate time you're
going to put the defendant on the witness stand to
testify to this, because I take it that there were no other
-- Were there any eyewitnesses to this shooting?
MR. SIMPSON: Yes, sir; there are.
THE COURT: Anyone else heard those
statement made?
MR. SIMPSON: No, sir.
THE COURT: Then how is it going to be shown?
_ MR. CROSBY: He’s got at least three witnesses
that are going to testify that they overheard the
defendant or -- talk to the deceased; that the defendant
was trying to get the deceased to come to the Grand
Casino.
MR.-‘SIMPSON: To borrow his vehicle, correct.
MR. CROSBY: And they would talk about the
fact he was going to borrow the vehicle. But it's also
expected and integral to the defendant, a key part of the
defense, that the defendant, who is [122] expected tot
testify, that the reason why - that’s not the only reason
why he was supposed to come there. That they weren't
discussing all the details of why he was coming there on
the telephone; that they already met in person and
discussed it the night before, which is in the statement
of some of the other potential -- or other -- other
witnesses that the State has provided in discovery.
I’m submitting you right now that -- and I’m - I
am -- I mean, we’re doing this in limine, so I don’t guess
I’d have to re-raise it. I don’t -- I’m making a -- I'm not
asking you if — I mean, I’m not asking you the law, but
I'm stating this on the record that if we're not allowed
to lay out what we expect the evidence to show, that
we're being denied our right to make an opening
statement.
Opening statement is an important part of the
trial, and I’m moving for — I would move for a mistrial
right now rather than have to raise it again at the time
when I’m denied that right because your ruling right
now that I can’t do it, that I cannot make that part of my
opening statement of what I fairly believe the evidence
and testimony to show.
[123] The remedy to the State is to come back in
closing argument and say: “well, the defendant made
statements in -- made factual statements and he didn’t
prove it, and you can hold that against him.” The
remedy would not be for a judge to prohibit me from
making an opening statement as to what I fairly believe
the evidence will show. And I do. But he’s limiting me
and preventing me from being able to defend my case.
He’s telling me: “Well, I’m not going to talk about the
Federal Grand Jury.”
COURT REPORTER: Slow down, Mike.
MR. CROSBY: The prosecutor is saying --
THE COURT: All right. You’ve made your
point. Your request for a mistrial based upon my ruling
is overruled. The matter of reserving your opening
statement, you have a right to do that, and you can
reserve your opening statement; and then, of course, at
the time that you present your opening statement, you
can make such statements if the State has opened that
door and that avenue to raise that particular defense.
MR. CROSBY: I'll submit that we - that it’s
important in my belief --
[124; RE 47] THE COURT: Well, it’s important to
the -- it’s important, I realize, as far as what you’re
saying is important to your defense. But it’s also
important to justice in this case that no broad
statements be made in opening that may not be
presented during the course of the trial and put the
burden on the other party to then, in closing, say they
didn’t prove it. I’ve seen that done in many occasions,
and I -- and justice requires that you be held to that. So
that’s my ruling.
MR. CROSBY: I understand your ruling, and I
want to make sure that I follow your ruling.
THE COURT: I’m sure you will.
MR. CROSBY: Whether we agree or don’t agree,
you know, that irrelevant. | want to follow that ruling.
And I think what you told me right now is that you said
I could reserve it until a later time. But, of course, I
don’t want to reserve it. I want to hit it at the very
beginning before the jury hears any of the testimony,
which is the right of both the defendant and the
prosecutor to do that before they hear any testimony.
And I submit it is impairing my defense if I must wait
until after the State has its way, and then at [125; E 48]
that point I have to then -- you know, because I’m going
to make some kind of opening statement at the
beginning, and I don’t think that -- in all likelihood,
you're not going to let me make a second opening
statement before —
THE COURT: Oh, I certainly won't let you make
a second opening statement because the rules do not
allow it.
MR. CROSBY: So I’m not -- So in my judgment t
of how I should defend this case, I must make an
opening statement in order to properly defend it. And
by doing so and not being able to give what I -- what I
fairly expect the evidence to be, I’m being denied -- my
client is being denied his right to that which would be
entitled by making a opening statement.
THE COURT: You have your record. You're
overruled on your motion.
Ready?
Opening Statements 146
(ALL COUNSEL APPROACHED THE BENCH,
AND THE FOLLOWING PROCEEDINGS WERE HAD
OUTSIDE THE HEARING OF THE JURY:) r
MR. CROSBY: Before I make my opening
statement and deciding whether I’m going to make it,
you want to have this hearing outside the presence of
the jury.
(BENCH CONFERENCE CONCLUDED, AND
THE FOLLOWING PROCEEDINGS WERE HAD IN
THE PRESENCE OF THE JURY:)
[147; RE53] THE COURT: Okay. The jury will
go with the bailiff, please.
(JURY OUT AT 2:25 P.M., AND THE
FOLLOWING PROCEEDINGS WERE HAD:)
MR. CROSBY: Your Honor, this is -- before we
make a decision as to whether to proceed with out
opening statement, I have to clarify a few issues in light
of your ruling. You previously ruled that I cannot
mention anything concerning the federal investigation,
even though it was my - our position that our defense
is based on he fact that there was a Federal Grand Jury
investigation, that there was criminal activity which
was taking place unrelated to a murder, most of which
was taking place in Atlanta.
Now, the prosecutor has made reference to Buck
Murray and to Linda Dugan -- Linda Dugan is the
ex-wife of my client -- and statements that my client
allegedly made to those people. It is our position that
the statements that Buck Murray is expected to come in
here and testify to can be explained only by discussing
the other criminal activity that was taking place. The
conversation between my client and Buck Murray took
place concerning stolen Jeeps that Buck Murray [148; RE
54] was involved with with the deceased, Kelvin, and
that he -- that Buck Murray allegedly - or claims hat
my client allegedly made a statement that there was
going to be people from Miami come over and kill the
decease.
It is our - It is integral to our defense that we be
allowed to put into evidence that Darryl Brown, who
was mentioned throughout all the Grand Jury — Federal
Grand Jury transcripts by all the witnesses, was a
higher up person who we believe was the person who
was responsible for this, and he was, in fact, from
Miami.
Additionally, Linda Dugan testified against my
client in the Federal Grand Jury, and she was convicted
for federal charges. And that would certainly go to her
motive and reasons for testifying -- or making
statements against my client, and I submit that we
should be allowed to bring that out, any motive or bias
that the witnesses would have against us, and also our
theory of the defense in our opening statement. And
the prosecutor has opened a door in that these are
people who were involved in that federal investigation
and their motives would have to e explored and
disclosed in all fairness to defend the [149; RE 55]case,
and we certainly expect that this would come out.
Additionally, Regina Richardson did, in fact,
testify in front of the Grand Jury, and a lot of the -- a lot
of the things that she heard and, we're going to submit,
misunderstood can be explained only if we are allowed
to tell the whole story by way of the criminal activity of
Kelvin and the suspected belief this Kelvin was a
federal informant. And actually, the State is going to
say that it was - in reality it was Buck Murray who
was the federal informant as opposed to Kelvin
Reynolds, but that that was misunderstood. That is
their position that they actually have advised me.
And then finally, with respect to Tracy Stepney,
the prosecutor in opining statement made two
statements that Tracy Stepney is allegedly going to
testify to, one of which is that she did not want to go --
she said -- the prosecutor said Tracy Stepney did not
want to go with Regina and Jodon; she wanted to stay
at the hotel.
Another statement was that Tracy Stepney gave
Jodon a relative’s gun, which is the one they submit was
used in the killing, to clean. Now, Tracy Stepney is a
[150; RE 56] defendant in this case. The prosecutor is
only allowed, as I am, only allowed to give in opening
statement a rendition of what we reasonably expect
what we will be able to prove by testimony.
As late as yesterday, it is my understanding that
Tracy Stepney is not going to be a witness in his case
and has not been offered any deal to testify in his case.
And after conferring with her attorney, it’s my
understanding that they -- if we call her, that they
would invoke their right to the Fifth Amendment
protections. So the prosecutor has injected these two
statements in the opening statement from a witness
who we are on notice is not going to be able to be called
by either party. And so that’s sort of a separate issue.
But Judge, I would move for a mistrial on the
basis of him improperly injecting onto evidence and
into opening statement things which he knows cannot
be proven and will not be proven or reasonably expect
to be proven during this trial.
So I’m asking you to, in light of how he has
phrased and boxed us into this, in light of the way he
has couched his opening [151; RE 57] statement, in light
of what I reasonable expect to submit, at this point, I
move that I should be allowed to, number one, talk
about our defense, that is, how it’s involved with the
Federal Grand Jury; and secondly, that we should be
entitled to a mistrial on the basis of the alleged
statements and information that could come only from
Tracy Stepney.
MR. SIMPSON: Let me start with the latter, if I
may. With regard to Stepney, the transcript will reflect
exactly what I said. I believe my statement was that
Regina Richardson will testify that Tracy Stepney
decided not to go with them at the time they were in the
valet area about to leave allegedly to go gambling and
partying; that she decided not to go and stayed at the
casino. Regina Richardson is going to say exactly that.
She is also going to say -- I think it’s Regina
Richardson is also going to say of her personal
knowledge that Tracy Stepney told her -- she had
personal knowledge that the gun that was used
belonged to Tracy Stepney’s dad because Stepney was
irritated the gun -- that her dad’s gun had been used
and disposed of. So That's Richardson's testimony. We
have [152; RE 58]no deal and they’re not calling
Stepney. That's testimony that can be elicited from
Regina Richardson and that’s all in the discovery.
That’s Regina Richardson's statement.
MR. CROSBY: Your Honor, as he said, the
transcript will bear out what the prosecutor said in his
opening statement. I remember it differently, but
reasonable people can remember things differently. I
think I’m correct on what I’m saying.
Nevertheless, a hearsay statement of Tracy
Stepney, I would submit, would not be allowed into
evidence, and I believe the prosecutor should know
this; and therefore, the statement was nonetheless
made. And for that reason, we should be entitled to a
mistrial.
MR. SIMPSON: I think I also said, Your Honor,
she saw the gun. Regina Richardson saw him put the
gun in his holster that night.
MR. CROSBY: Well, my objection is this
evidence that Tracy -- that the gun belonged -- that the
testimony is going to show what the prosecutor has told
the jury is that this was Tracy Stepney’s relative’s gun,
and that she gave it to Jodon Slaughter to be cleaned;
and she was upset [153; RE 59] about the fact he used
her gun — her relative’s gun in this killing.
I would like for him to tell us how that testimony
would be admissible without Tracy Stepney to testify to
those facts. And I submit you can’t do so; that Regina
cannot -- that even though Regina can say he had a gun
and the gun was put in the grate, or the police
recovered the gun and that engraved on it was the
name of Stepney, that’s one issue that could come in if
that’s what Regina wants to say.
But what I would submit would not come in was
that Tracy Stepney gave the gun to Jodon for the
purpose of having it cleaned, and that that was her
relative’s gun and that she was upset about Jodon using
that gun in an alleged killing.
Now, --
MR. SIMPSON: Your Honor, that’s not before
the jury. I didn’t say that in opening statements. I just
told you that in argument about the cleaning. That's
not before the jury. This is just a rabbit trail.
THE COURT: What's before -- What do you
have before the Court at this time, a motion for mistrial
based upon the statements of the prosecutor; is that
[154; RE 60] correct?
MR. CROSBY: Yes, sir.
THE COURT: That's overruled.
Now, what else do you have?
MR. CROSBY: I also have a motion to —
THE COURT: To reconsider the order in limine
concerning the Federal Grand Jury investigation and /or
the involvement of the victim in some criminal activity;
is that correct?
MR. CROSBY: That's part. And there’s also the
involvement of the other witnesses in criminal activity
in conjunction with my client and the deceased, and the
context --
THE COURT: Okay. As far as any criminal
activity on the part of the victim himself, I decline to
revisit that matter. You will not be able to go into that.
That is not admissible in evidence. The character or the
-- any crimes that the defendant may have been -- not
the defendant -- the victim may have been involved in
some fashion, that’s not admissible in our courts.
As far as the character or the credibility of the
witnesses that -- as they testify, you will be entitled to
[155; RE 61] cross-examine them. Certainly, you can go
into any matters that might be -- might reflect upon the
character of the witness, because witnesses are always
subject to cross-examination concerning their character.
But any involvement involving this victim in all of this
is absolutely inadmissible, period, because it doesn’t
mater what kind of character that person might have
been. It does not raise a defense as to his killing, period.
MR. CROSBY: It’s not to raise a defense as to
why Jodon would allegedly kill Kelvin. It’s only to
explain why, number one, the witnesses that were
identified by the State would make such a statement;
secondly, how they could misunderstand such a
statement; and three, what -- the res gestae of what was
going on.
THE COURT: Well, you can’t convince me that
the left hand is the right hand at this time, and I'll stand
by my ruling. You cannot go into that.
Now, do you want to make your opening now,
or do you want to reserve? It’s up to you. I’ve already
told the jury that you have that right to reserve.
(Jury Out) 313; RE 62
THE COURT: While we're waiting here, Mr.
Crosby, do you want to do your proffer? Does it
concern this witness here?
MR. CROSBY: Yes, sir.
THE COURT: Okay.
THE COURT: Would it be best if she’s not in the
courtroom with the proffer, or what?
MR. CROSBY: No, sir. I need her to testify
concerning the proffer.
THE COURT: Well, now, wait a minute. That
would be inappropriate. That’s inappropriate. She
hasn’t been tendered for cross-examination, and that
would be in the nature of a cross-examination, as I
would perceive it.
MR. CROSBY: My proffer is to go to her motive
and such and reasons behind her testimony. I need to
give a full picture of what it is, and it goes to your
earlier ruling about the federal investigation. I need her
testimony concerning that.
THE COURT: Well, I don’t -- I don’t know what
any arrangements have been made as far as the State of
Mississippi is concerned, nor any agreements that have
been struck. That may very well come out on -- it
probably will come out on direct [314; RE 63]
examination. Do you anticipate it on direct
examination?
MR. SIMPSON: Yes, sir; we do.
THE COURT: Well, I'll have to wait and see
what comes out at that point in time. And then, if
necessary, I'll take a recess and let you make a proffer if
you feel that it’s getting close to the area that I’ve
already instructed you on. |
MR. CROSBY: Yes, sir, that’s what I -- what I felt
like. Without getting into it, she had a cooperation
agreement with the federal government, immunity
agreement. And I wanted to -- I felt like in light of your
ruling, that I would be going past that, and that’s why I
wanted her to explain that.
THE COURT: We'll get to that when we get to it.
MR. CROSBY: Can we ask for the witness to be
admonished not to talk with anyone?
THE COURT: I’m going to.
All right. We’re going to take the noon recess
now for ourselves.
Ms. Richardson, during the noon break, you’re at
liberty to move around as you see fit, but do not discuss
your testimony with anyone during the break. . .
519; RE 110
MR. SIMPSON: Your Honor, we’ll cll another
witness. Buck Murray.
THE COURT: Allright. Bring him in.
(PAUSE IN PROCEEDINGS)
(THE OATH WAS ADMINISTERED>)
LEMUEL “BUCK” MURRAY,
was thereupon called as a witness for and on behalf of
the State, and, having been duly sworn, testified as
follows:
MR. CROSBY: Your Honor, before his
testimony, we had a matter of that motion that we were
-- we discussed bringing up [520; RE 111] concerning
the exclusion of this testimony, which I would say it
would be —
THE COURT: His testimony?
MR. CROSBY: Yes, sir. This is Buck Murray,
correct?
MR. SIMPSON: That’s who it is.
(PAUSE IN PROCEEDINGS>)
MR. SIMPSON: May we approach?
THE COURT: Yeah.
(ALL COUNSEL APPROACHED THE BENCH,
AND THE FOLLOWING PROCEEDINGS WERE HAD
OUTSIDE THE HEARING OF THE JURY:)
THE COURT: On what basis?
MR. SIMPSON: I think this is just about the
federal investigation stuff.
MR. CROSBY; Uh-huh (affirmative). And it’s
more detailed on it. And also -
THE COURT: Have you got a formal motion on
this so I can know what the motion is about?
MR. CROSBY; No.
THE COURT: Well, then I’m overruling it and
you won't o into any of it, because I’m tired of this.
MR. CROSBY: And I won’t be allowed to make a
proffer?
THE COURT: What?
MR. Crosby: I won't be allowed to make a
proffer?
[521; RE 112] THE COURT: You can do it after
his testimony.
(BENCH CONFERENCE CONCLUDED, AND
THE FOLLOWING PROCEEDINGS WERE HAD IN
THE PRESENCE OF THE JURY)
THE COURT: Proceed.
DIRECT EXAMINATION BY MR. SIMPSON:
Q. Would you state your name, please?
A. Lemuel Murray.
Q. Are you also known as “Buck”?
COURT REPORTER: Your first name again,
please?
THE WITNESS: Lemuel, LEMUEL.
BY MR. SIMPSON:
Q. Mr. Murray, let me get you to keep your
voice up loud so everyone can hear you, please, and
speak slowly enough that the court reporter can write
down everything you say, all right?
A. Okay.
Q. Where do you reside, Mr. Murray?
A. Atlanta, Georgia.
Q. How long have you lived in Georgia?
A. All my life.
Q. What business are you in?
A. Automobile industry.
Q. Do you know the defendant, Jodon
Slaughter?
A. Yes, sir.
Q. How long have you known him?
A. Since around 19839, ‘90.
Lemuel “Buck” Murray - Cross (Proffer/Jury out) 534;
RE 118
BY MR. CROSBY:
Q. And you said that in response to the question
by Investigator Barnes, who said: “who did he say he
had coming up to blow his head off?” And your
reasons was: “He just said he had some boys coming
up from Miami, “ correct?
A. No, that’s not correct.
_
THE COURT: All right. Mr. Crosby,
you ve shifted gears now, and you've gone into a
matter of a statement that apparently this witness made
to Officer Barnes from Gulfport; is that right?
MR. CROSBY: Yes, sir. That's --
THE COURT: I don’t have an problems
with your using that in cross-examining this witness, so
we re wasting time for you to go through all of this and
try to cross-examine him at this time.
MR. CROSBY: The only reason that I
would do this now is because in talking about Miami, --
THE COURT: Well, we're wasting time
right now. What he told the officer from Gulfport, you
can cross-examine him as to that. But the matter of the
investigation in Atlanta, Georgia, the Grand Jury
testimony, all of that is going to be excluded, and I
stand by my ruling on that.
Now, you may feel that it has some relevance,
but I don’t think that it has any relevance. And under
403, although relevant evidence -- relevant evidence
may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
consideration or undo delay, waste of time and needless
presentation of cumulative evidence.
Now, the thrust of your position in this case
seems to be that the victim in this case was someone
who was assisting the government in investigating your
client. That falls completely in line with the exclusion of
character evidence of the victim, and I cite you to the
comments under the rule of -- under 404. It says: “The
victim’s character is irrelevant. The fact that a bad man
rather than a good man was murdered or beaten is
inconsequential,” citing the cases. The only time that it
would be admissible would be to show that there was a
-- that the victim was the [536: RE 120] first aggressor.
That's it.
MR. CROSBY: Well, obviously, I haven't stated
it correctly, then, if that’s -
THE COURT: Well, if you haven't stated it
correctly, that is exactly my interpretation of it, so let’s
move on, okay?
MR. CROSBY: I would -—
THE COURT: You still have not asked this man
the question which I really need to know: Has he been
convicted of a crime which falls within the matter of
character assassination, I'll call it.
BY MR. CROSBY:
Q. Have you been convicted of a crime?
A. Ever convicted of a crime:
Q. Yes, sir.
A. Yes, sir.
Q. What would those crimes be?
A. [had two DUI’s, things of that nature.
Q. Anything involving bad checks, fraud,
stealing, grand larceny?
A. Never.
Q. Now, when you said that they were ratting
him out, what did you mean by that, or said that Kelvin
Reynolds --
A. Fifth Amendment, sir.
APPENDIX
3. Slaughter v. Mississippi, 2000-KA-01533-SCT,95
(Feb. 14, 2002). Order denying
rehearing (May 23, 2002)
Supreme Court of Mississippi
Court of Appeals of the State of Mississippi
Office of the Clerk
Betty W. Sephton (Street Address)
Post Office Box 249 450 High Street
Jackson, Mississippi 39205-0249 Jackson, Mississippi 39201
Telephone: (601) 359-3694
Facsimile: (601) 359-2407 e-mail:sctclerk@mssc.state.ms.us
May 23, 2002
This is to advise you
that the Mississippi Supreme Court rendered the
following decision on the 23rd day of May, 2002.
Supreme Court Case # 2000-KA-01533-SCT
Trial Court Case # 99-331
Jodon Antonio Slaughter v. State of Mississippi
Motion for rehearing filed by appellant is denied.
*NOTICE TO CHANCERY/CIRCUIT/COUNTY
COURT CLERKS*
If an original of any exhibit other than photos was sent
to the Supreme Court Clerk and should now be
returned to you, please advise this office in ——
immediately.
APPENDIX
4. Trial Court ruling on jury instructions.
Charge Conference (Jury Out) 667
Judge, when I went into this trial, there was a distinct
possibility that we would have some of the other
co-defendants or other indicted defendants testify. And
we didn’t know right up until - in fact, them attorneys
have been here and sat in the courtroom and gave every
indication they were desperate to try and work out a
deal where their clients would testify, and that’s why I
used the vague word of “alleged accomplice.” I kept it
vague because I didn’t know who all was going to
testify. But I would need to modify this, because there
was only one alleged accomplice in this, and — namely,
Regina Richardson.
THE COURT: Well, you want to redo this to
make it read that the testimony of Regina -- whatever
her name is -- Well, reword it however you want to
word it to make it specific for her.
MR. CROSBY: I would submit: “The testimony
of Regina Richardson, an alleged accomplice, is to be
considered,” et cetera. The rest of it would remain the
same.
MR. SIMPSON: To which we would object.
THE COURT: On what basis?
[668: RE 127] MR. SIMPSON: Two bases: One,
she’s not an accomplice. She’s not indicted for murder.
She’s indicted for accessory after the fact, which is not a
lesser included offense. You can’t be found guilty of
accessory after the fact as a lesser included to murder.
It’s a separate stand-alone crime in and of itself, and an
accomplice has to be one - someone who is willingly
there, present and participates in some overt act
towards the furtherance of the crime. There's no such
evidence of that at all. The only testimony is that she
did not know in fact that that crime was fixing to take
place. 3
~ My second objection is that it singles out the
testimony of a single witness, which is impermissible.
MR. CROSBY: Well, we have to - I'm sorry.
THE COURT: I’ve not thought about it in the
nature of the charge that she was charged with,
accessory after the fact. But those instructions that have
been given in this nature do relate to those who
participated in the crime itself.
MR. SIMPSON: Willingly participated.
THE COURT: Do you have some authority on
that? This give me a problem [669: RE 128] here
because it - because technically, she was not 4 -- there’s
no evidence that she was a participant in this crime
other than driving out there. You never were able to
get anything out of her that she knew in advance of
what was going to happen; that she willingly went out
there for that purpose. And the only thing that has
come out is, is that she was indicted as an accessory
after the fact, and that that was dismissed.
MR. CROSBY: Here’s what she did say, and it
was contradictory, but it was said at one point or the
other, either brought out in her prior statements or in
her testimony, that she was expecting there to be some
kind of —
THE COURT: Argument, fight maybe.
MR. CROSBY: -- an argument and possibly even
as much as a pistol whipping, although, not a killing.
When she participated in this, she turned her lights off
on her car, she drove around, she helped get to this
location, and then she -- her conduct subsequent to that
without any threats being made to her, she continued to
help and -- allegedly help in the concealment of
evidence and such, which would all be -- could have
been used [670; RE 129] against her as someone who
was a principal being -- I mean, if you go in to roba
bank or steal a car or take a car away from someone, the
violence, rob a Quick Stop, you could — I mean that’s
felony murder.
MR. SIMPSON: If you have that intent prior to
the overt act in furtherance of the crime. There’s no
evidence that she had any knowledge, intent or did
anything in furtherance of committing any assault upon
the gentleman.
And in fact, You Honor, S — I mean, all he wants
to do is attack the credibility of Regina Richardson. He
has instruction D-3 regarding prior inconsistent
statements. That instruction is there for the jury to
attack her credibility. To try to include her as an
accomplice, someone who is engaged in the furtherance
of the crime, there are no facts to support that.
THE COURT: Of course, I guess what her
answers were, were — that could perhaps be considered
to be self-serving, her saying that she did not anticipate
there being any problems, that at one point in time, she
testified as I recall, that she — when the — she saw the
defendant take a gun from the bag and stick it in his
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.