Spicer v. State
| Docket Number: | 2003-DP-02281-SCT Linked Case(s): 2003-DP-02281-SCT |
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| Oral Argument: | 07-27-2005 | |
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| Supreme Court: | Opinion Link Opinion Date: 01-05-2006 Opinion Author: Cobb, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Death penalty direct appeal - Shackles - Evidence of flight - Character of decedent - Closing argument - Vehicle search - Sufficiency of evidence - Lesser-included offense instruction - Instruction on intent - Send a message argument - Sufficiency of indictment - Challenges for cause - Aggravating factors - Arrest photographs - Proportionality review Judge(s) Concurring: Smith, C.J., Waller, P.J., Carlson, Dickinson and Randolph, JJ. Judge(s) Concurring Separately: Easley, J., Joined by Smith, C.J., Waller, P.J., Carlson, Dickinson and Randolph, JJ. Non Participating Judge(s): Diaz, J. Concurs in Result Only: Graves, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - DEATH PENALTY - DIRECT APPEAL |
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| Trial Court: |
Date of Trial Judgment: 05-01-2003 Appealed from: George County Circuit Court Judge: Dale Harkey Disposition: Spicer was found guilty of capital murder and sentenced to death. District Attorney: Keith Miller Case Number: 2002-10,006(3) |
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| Party Name: | Attorney Name: | |||
| Appellant: | Fred Sanford Spicer, Jr. |
ANDRE DE GRUY, SIDNEY AMON BARNETT, DARRYL A. HURT |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: MELANIE KATHRYN DOTSON, JUDY T. MARTIN |
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| Topic: | Death penalty direct appeal - Shackles - Evidence of flight - Character of decedent - Closing argument - Vehicle search - Sufficiency of evidence - Lesser-included offense instruction - Instruction on intent - Send a message argument - Sufficiency of indictment - Challenges for cause - Aggravating factors - Arrest photographs - Proportionality review |
| Summary of the Facts: | Fred Spicer, Jr., was convicted of capital murder and sentenced to death by lethal injection. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Shackles Before voir dire and while the potential jurors were seated in the courtroom, Spicer, dressed in civilian clothes, was led into the courtroom with his hands and feet shackled. Spicer’s counsel moved for a mistrial arguing that the potential jury members were prejudiced as a result of possibly seeing Spicer shackled. The court denied the motion, and Spicer argues this was error. Although a defendant should be restrained in the courtroom only where there is a danger of the defendant escaping or being a danger to others, the failure, through an oversight, to remove handcuffs from a prisoner for a short time or any technical violation of the rule prohibiting shackling, not prejudicial to him, is not ground for reversal. In the present case, potential jurors possibly observed Spicer shackled in his brief walk of approximately six feet, from the back entrance of the courtroom to the witness room. That would not require a mistrial. Issue 2: Evidence of flight Spicer argues that the court committed reversible error in admitting testimony regarding his fleeing from a police officer, because he had independent reasons for fleeing from law enforcement officials that were known by the trial court and could not be explained to the jury due to their prejudicial effects. Because Spicer did not object to testimony giving evidence of his fleeing from law enforcement officials, he is procedurally barred from appealing the issue. In addition, the evidence of Spicer’s flight from law enforcement officials was not admitted for the purpose of proving consciousness of guilt. Instead, it was admitted as part of a narrative explaining to the jurors the events which transpired prior to Spicer’s arrest. The proscription that evidence of flight is not admissible if there is an independent reason for flight known by the court which cannot be explained to the jury because of its prejudicial effect upon the defendant does not apply in the present context. Issue 3: Character of decedent Spicer argues that the prosecutor presented irrelevant and highly prejudicial evidence of the victim’s character in its case in chief and then argued extensively that this evidence was reason to convict. He argues that the State’s purpose in seeking admission of a photograph of the victim was to evoke the sympathy of the jury. Spicer failed to object to the admission of the photograph at issue and is therefore barred from raising the issue on appeal. In addition, the fact that a photograph of the deceased in a homicide case might arouse the emotions of jurors does not itself render it incompetent in evidence so long as introduction of the photograph serves some legitimate evidentiary purpose. The trial court admitted the photograph of the victim for a legitimate evidentiary purpose, identification. Spicer also argues that testimony by the victim’s mother regarding her interactions with the victim elicited on cross-examination during the guilt phase was inadmissible due to the potential to evoke sympathy from the jury. Spicer waived any alleged error because he invited the testimony by his cross-examination questions. In addition, the testimony was relevant background information that helped the jury understand the relationship between the two and the family’s actions on the day law enforcement officials discovered the body. Issue 4: Closing argument Spicer argues that the State presented irrelevant and highly prejudicial character evidence in its closing argument. Given the latitude afforded an attorney during closing argument, any allegedly improper prosecutorial comment must be considered in context, considering the circumstances of the case, when deciding on their propriety. Spicer did not object to the State’s comments during its closing argument and is thus procedurally barred from appealing the issue. In addition, the prosecutor’s comments were not character evidence. In the context of the present case, the prosecutor summarized testimony regarding the victim’s personal background. Issue 5: Vehicle search Spicer argues that the court erred by failing to exclude from evidence the sword seized from the victim’s truck, because law enforcement officials obtained the sword through an illegal search of the truck that exceeded the scope of a search allowed incident to arrest. Spicer waived any alleged error by the trial court because he failed to object to the admission of the sword into evidence. In addition, Spicer has no standing to make a Fourth Amendment claim. Fourth Amendment rights are personal rights which may not be vicariously asserted. Issue 6: Sufficiency of evidence Spicer argues that there was not legally sufficient evidence to support a conviction of the underlying felony of robbery. When the defendant is discovered with the personal property of the deceased on his person it is entirely within reason for the jury to find that this fact in itself constitutes robbery. Law enforcement officials discovered Spicer in possession of the victim’s truck and a sword taken from the victim’s trailer. Therefore, a reasonable juror could determine that Spicer stole the victim’s property. Issue 7: Lesser-included offense instruction Spicer argues that the judge erred by not instructing the jurors that they could find Spicer guilty of the lesser-included offense of murder. Due process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction. Spicer presented no evidence that would warrant a lesser-included offense instruction of murder. In addition, there is too much probative evidence in the record of the underlying felony of robbery for a reasonable juror to find Spicer guilty of simple murder beyond a reasonable doubt. Issue 8: Instruction on intent Spicer argues that a jury instruction misled the jury on the intent necessary for a for a conviction of capital murder, because it created an irrebuttable presumption relieving the jury of its responsibility of determining whether Spicer intended to commit robbery at the time of the killing. Spicer did not place before the trial judge the present issue of whether the instruction relieved the State of the burden of proving intent to commit the underlying felony of robbery. In addition, the instruction correctly stated the law regarding the "continuous chain of events” theory in capital cases and when the underlying felony of robbery could have occurred. Issue 9: Send a message argument Spicer argues that the prosecutor made an improper “send a message” argument at the close of the guilt phase when he stated “May I submit to you that this might be an opportunity for us to say in George County: We can’t keep you from doing it, but you will pay the price for doing it.” Jurors are the representatives of the community, but must vote based on the evidence shown at trial and not in their representative capacity. Even though it was unprovoked by defense counsel, the statement in the present case is not per se reversible error. In order to find reversible error, the court must determine whether the remarks were improper and if so, whether the remarks prejudicially affected the accused’s rights. It must be clear beyond a reasonable doubt, that absent the prosecutor’s comments, the jury could have found the defendant guilty. This goes beyond a finding of sufficient evidence to sustain a conviction. In the present case the prosecutor’s statements were improper. However, if the offending statement is removed from the record it remains clear, beyond a reasonable doubt, that there was sufficient evidence for the jury to find Spicer guilty of capital murder. The error does not warrant reversal. Issue 10: Sufficiency of indictment Spicer argues that his death sentence must be vacated because the indictment failed to include a statutory aggravating factor or the mens rea standard required for capital murder. An indictment is only required to have a clear and concise statement of the elements of the crime the defendant is charged with. When Spicer was charged with capital murder he was put on notice that the death penalty may result, what aggravating factors may be used and the mens rea standard that was required. Issue 11: Challenges for cause Spicer argues that his death sentence must be vacated because the court erroneously removed two veniremembers for cause based on their views on the death penalty. A juror's position on the death penalty must be unmistakably clear, or a trial judge may properly remove them for cause in a capital case. Here, the two men voiced reservations to the application of the death penalty and could not adequately assure the trial judge they would be able impose the death penalty if called upon by the State. Therefore, the court did not err in finding the two veniremembers’ beliefs would substantially impair their ability to follow the law and perform their duties as a juror according to their oath. Issue 12: Closing argument Spicer argues that the prosecutor repeatedly misstated the law and argued his personal opinion on the appropriateness of the death penalty in this case and minimized the jury’s role in sentencing. The prosecutor’s comments did not create unjust prejudice that influenced the verdict. The prosecutor was not making statements of law when discussing the concept of retribution, but was instead laying the historical foundation of an argument to rebut defense counsel’s plea for mercy. Counsel may draw upon literature, history, science, religion, and philosophy for material for his argument. Also, the prosecutor was responding to Spicer’s attorney’s argument for life without parole by urging the jury to conclude Spicer deserved the death penalty. In that regard the prosecutor was acting as an advocate for the State in an effort to encourage the jurors to draw conclusions from the evidence and to make suggestions as to a proper conclusion. Issue 13: Aggravating factors Spicer argues that it was error for the trial judge to submit an instruction on the aggravators of robbery and pecuniary gain. According to Spicer, these two aggravating circumstances cannot be submitted together nor should they have been submitted separately to the jury. Spicer did not object to the submission of the aggravating circumstances and is thus procedurally barred from appealing. In addition, the two aggravators were essentially one and therefore the single instruction was appropriate whereas two separate instructions were not. Issue 14: Arrest photographs Spicer argues that the court erred in admitting photographs taken while Spicer was in jail after he had been arrested, because there were no allegations of injuries, the explicit nature of some of them would serve only to inflame and prejudice the jury and the photographs had no probative value. There is no dispute that the photographs accurately displayed Spicer’s appearance at the time of the murder. Since photographing of a suspect is a routine part of any investigation, the photographs were not unanticipated. The photographs were relevant to demonstrate Spicer’s condition close to the time of the murder and his alleged fight with the victim. Part of Spicer’s defense was that he killed the victim in self-defense. These photographs were relevant to disprove that defense. Spicer asserts that photographs of his tattooed body would not be accepted in a rural east Mississippi court. However, Spicer does not support this arguments with any evidence, factual or legal. Issue 15: Proportionality review There is no evidence supporting a finding that the death sentence was imposed under the influence of passion, prejudice or other arbitrary factor. The evidence supports the trial court’s finding that the statutory aggravating factor of robbery was proven beyond a reasonable doubt. Upon comparison to other factually similar cases where the death sentence was imposed, the sentence of death is not disproportionate in this case. |
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