Ross v. State


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Docket Number: 1998-DP-01038-SCT
Linked Case(s): 1998-DP-01038-SCT ; 1998-DP-01038-SCT ; 1998-DP-01038-SCT ; 1998-DP-01038-SCT ; 1998-DP-01038-SCT ; 1998-DP-01038-SCT ; 1998-DP-01038-SCT

Supreme Court: Opinion Link
Opinion Date: 04-26-2007
Opinion Author: Waller, P.J.
Holding: Reversed and Remanded

Additional Case Information: Topic: Death penalty - Jury selection - Admission of pistol - M.R.E. 403 - M.R.E. 803(8) - M.R.E. 801 - Admission of glass shards - Illegal search - Expert testimony - M.R.E. 702 - M.R.E. 401 - Prior inconsistent statement - M.R.E. 613(a) - UCCCR 9.04(I) - Prosecutorial misconduct - Ineffective assistance of counsel - Competency hearing - Atkins hearing - Jury instructions - Mitigation evidence - Sufficiency of indictment - Weight of evidence - Cumulative error - M.R.C.P. 61
Judge(s) Concurring: Smith, C.J., Cobb, P.J., Diaz, Graves and Dickinson, JJ.
Judge(s) Concurring Separately: Diaz, J.
Dissenting Author : Easley, J.
Dissent Joined By : Carlson, J.
Concur in Part, Concur in Result 1: Diaz, J.
Concur in Part, Concur in Result Joined By 1: Waller, P.J., Graves and Dickinson, JJ.
Concurs in Result Only: Randolph, J.
Nature of the Case: CRIMINAL - DEATH PENALTY - DIRECT APPEAL

Trial Court: Date of Trial Judgment: 10-04-1997
Appealed from: Tippah County Circuit Court
Judge: R. Kenneth Coleman
Disposition: Charles Wayne Ross was convicted of the capital murder of Hershel Ray Yancey by the Circuit Court of Tippah County and sentenced to death.
Case Number: TK96094

  Party Name: Attorney Name:  
Appellant: Charles Wayne Ross




OFFICE OF CAPITAL DEFENSE COUNSEL



 

Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL  

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Topic: Death penalty - Jury selection - Admission of pistol - M.R.E. 403 - M.R.E. 803(8) - M.R.E. 801 - Admission of glass shards - Illegal search - Expert testimony - M.R.E. 702 - M.R.E. 401 - Prior inconsistent statement - M.R.E. 613(a) - UCCCR 9.04(I) - Prosecutorial misconduct - Ineffective assistance of counsel - Competency hearing - Atkins hearing - Jury instructions - Mitigation evidence - Sufficiency of indictment - Weight of evidence - Cumulative error - M.R.C.P. 61

Summary of the Facts: Charles Ross was convicted of capital murder and sentenced to death. He appeals.

Summary of Opinion Analysis: Issue 1: Jury selection During voir dire, when the trial court asked if anyone knew Ross, a venire member stated that she had testified against him in federal court and that this would prejudice her against Ross. Defense counsel did not request a recess to address the statement or have her removed from the panel. Ross argues that the trial court erred in failing to quash the entire jury venire because of the juror’s statement. Defense counsel’s general statement that he “wondered” about “how beneficial” the statements were, without more, was not a specific enough objection to preserve the issue for appeal. Ross did raise an objection in a motion for new trial. However, raising objections in a motion for new trial which should have been made at trial has never been thought to cure the failure to object at the proper time. Ross correctly notes that it is the obligation of the trial court to insure that the jury impaneled in a case can render an impartial judgment. That obligation goes to the core of a defendant’s right to a fair jury trial under the Sixth and Fourteenth Amendments of the United States Constitution. However, there is no basis on which to determine the potential prejudice caused by the juror’s statements, because the defense counsel failed to object to the comment and subsequently failed to question potential jurors about the effect of the statement. While the statements are cause for great concern, the Court will not find prejudice absent a record. Ross also argues that the trial court impermissibly restricted his right to question potential jurors on their ability to consider mitigating evidence during the sentencing phase of the trial. Mississippi law guarantees the right of either party in a case to probe the prejudices of prospective jurors and investigate their thoughts on matters directly related to the issues to be tried. However, judicial rules prohibit a party from asking venire members hypothetical questions or attempting to elicit a pledge to vote a certain way if a certain set of circumstances are shown. The trial court’s ruling in the present case was within its discretion. Asking jurors to speculate on what sorts of events or circumstances might warrant mitigation may in some circumstances be considered hypothetical. In addition, the record demonstrates that defense counsel asked a number of questions pertaining to mitigation evidence. Ross also argues that the court committed reversible error in refusing to give a special instruction to the venire members that questions regarding the application of the death penalty did not pertain to Ross’ guilt or innocence. While the trial court refused to give the proposed instruction, it made repeated reference to Ross’ presumption of innocence and the burden that the State had to carry in order to move on to the punishment phase of the trial. Defense counsel was in no way restricted from noting Ross’ presumption of innocence, and in fact emphasized it in his voir dire. Issue 2: Admission of pistol Ross argues that the court erred in refusing to hear his pre-trial motion to suppress the pistol belonging to the victim and erred in eventually admitting the firearm into evidence in violation of M.R.E. 403. Ross’ failure to obtain a ruling on his pre-trial motion was a direct result of his failure to request a ruling at an appropriate time. The trial court expressly noted that it had provided a time to hear pre-trial motions and that conducting an evidentiary hearing on the pistol was inconvenient since the venire members had been convened and were waiting outside the courtroom. Further, the trial court did not deny the motion to suppress, but instead reserved judgment until the State moved to introduce the weapon into evidence. The forensic scientist called by the State did not state that the pistol introduced into evidence could have been the weapon used in the murder; he was careful to note only that the weapon had the same caliber, and that both the weapon in evidence and the murder weapon lacked distinguishing characteristics that would allow a positive identification. Therefore, the State’s witness did not impermissibly speculate whether the pistol had been used in the crime. While the pistol was not directly connected to Ross through any forensic evidence, other evidence in the case demonstrated that the pistol was of the same caliber as the one that killed the victim and that Ross had access to the weapon. Under the circumstances, the trial court did not abuse its discretion in admitting the pistol into evidence. Ross argues the trial court erred in refusing to admit the ballistics report of the State’s expert into evidence. Evidence may be excluded under M.R.E. 403 if it is merely cumulative. Ross correctly notes that the ballistics report was absolutely admissible as a public record under M.R.E. 803(8), and that it did have to be introduced as a prior statement under M.R.E. 801. However, since Ross was able to extensively cross-examine the State’s ballistics expert and highlight the minimal value of the evidence provided by the report, this is not reversible error. Issue 3: Admission of glass shards Ross argues that the court erred in admitting glass shards consistent with a motor vehicle’s tail light found at the victim’s residence and a pile of ashes that a witness testified were the remains of the victim’s wallet. The relevance of the tail light fragments was tenuous at best. While Ross’ car had a broken right tail light, all the testimony at trial indicated that it had been broken for at least six months. There was even testimony that the broken tail light had been spray-painted to disguise the fact that it was broken. The State’s forensic expert testified that he could not make the tail light fragments fit mechanically into what remained of Ross’ tail light. With regard to the ashes, at trial, the State made no showing that the ashes had been covered or that they had remained undisturbed for that forty-eight hour span. Most troubling, the State conducted no forensic tests on the ashes to determine their composition, yet at trial asserted that they were the remains of a wallet. However, Ross not only failed to object to the introduction of these items, but affirmatively stated for the record that there was no objection. Such action effectively waives the issue on appeal. Though the tail light fragments may have been of slight probative value, Ross had ample opportunity to highlight that the state’s own expert could not mechanically fit the fragments into the tail light frame. Similarly, Ross was able to challenge the probative weight of the ashes by emphasizing that no forensic tests had been conducted to determine the composition of the burnt material. The trial court did not abuse its discretion in admitting the evidence. Issue 4: Illegal search Ross argues that the court committed reversible error in admitting beer cans found in his car into evidence since the car was searched without a warrant in violation of the Fourth Amendment. Consent to search may be provided by a third party who possesses common authority over or other sufficient relationship to the premises or effects sought to be inspected. A renter such as the person who gave the permission in this case has been recognized as possessing sufficient authority to consent to a search of the premises. Ross had no ownership interest in the premises and therefore cannot argue that any expectation of privacy was violated. Because the renter consented to a search of his premises, evidence collected pursuant to that consent was constitutionally acquired. Issue 5: Expert testimony Ross argues that the court erred in excluding the testimony and accompanying investigative report of his expert in investigatory techniques. M.R.E. 702 allows expert testimony regarding non-scientific matters, so long as the witness’s knowledge, skill, experience, training, or education qualify him as an expert in a given field, and the testimony is based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case. In his proffered testimony, the expert questioned the account of Ross destroying the victim’s wallet by burning it. He told how he had attempted to destroy a wallet by burning it. The expert’s experiment was inadmissible under M.R.E. 401 since he could not verify that the wallet he burned was similar in composition to the victim’s or that he had attempted to destroy it under similar circumstances. The expert also offered testimony concerning statements made to him by a witness which were inconsistent with her testimony at trial. However, introduction of any such statements would have been mere commentary on the veracity of a witness, which is not appropriate expert testimony under Rule 702. The expert was also proffered as an expert on police investigatory techniques. He testified to his experience in securing crime scenes and collecting evidence, and opined that in those areas the investigation into the victim’s murder was deficient. However, his proffer failed to establish the reliability of his testimony under Daubert. Issue 6: Prior inconsistent statement Ross argues that the court refused to allow him to impeach a witness with prior inconsistent statements made in her statement to his expert and that it erred in refusing to admit the statement into evidence. Under M.R.E. 613(a), prior inconsistent statements used to impeach a witness need not be disclosed to opposing counsel unless opposing counsel has requested that such statements be disclosed. However, if a statement is introduced into evidence not only for impeachment, but also to bolster the substantive case of a party, then the admission of the statement may nevertheless be subject to the reciprocal discovery rule under UCCCR 9.04. While elements of the statement taken by the expert might have been used to impeach the witness’s testimony, introduction of the entire statement as impeachment testimony would have been inappropriate since a crucial element of Ross’ defense was undermining the witness’s credibility. Therefore, though the proper foundation was laid for the introduction of impeachment evidence, the statement should not have been admitted as impeachment evidence, since it tended to prove Ross’ theory of the case. Because the statement was not introduced solely for impeachment and did not constitute work product, defense counsel’s failure to disclose the statement to the State was a violation of the discovery rule. However, the trial court erred in failing to consider the admission of the statement in accordance with UCCCR 9.04(I). Nothing in the record indicates that defense counsel deliberately attempted to ambush the State with new evidence, and the trial court did not find that the introduction of the statement was motivated by a desire to gain a tactical advantage. The admission or exclusion of evidence constitutes reversible error only where a party can show prejudice or harm. While Ross was allowed to impeach the witness with her prior statement on cross-examination, the exclusion of that statement from evidence did prejudice his case, because the testimony of this witness was the only direct evidence linking Ross to the crime. Given that the credibility of this witness was the crucial issue in this case, and in light of the severity of the crime charged, the trial court committed reversible error in excluding her statement from evidence without conducting a hearing pursuant to Rule 9.04(I). Issue 7: Prosecutorial misconduct Ross argues that the district attorney committed misconduct in his closing argument in the guilt phase and sentencing phases of the trial by attacking the character and honesty of opposing counsel, making personal observations about the veracity of a witness, and referencing information not submitted into evidence. While some of the statements are provocative, they fall within the wide discretion granted to parties in closing argument. Ross argues that the State impermissibly implied that Ross had been seen at the crime scene. The prosecution made two references to the crime scene sign-in sheet and arguably misconstrued the significance of the sheet by initially arguing it indicated that someone had seen Ross at the victim’s residence around the time of the crime. The trial court’s instruction to disregard the first statement is deemed sufficient to cure any impermissible prejudice. Nevertheless, the second reference to the crime sign-in sheet was error. However, it is not reversible error since it was not as pointed as the first. Issue 8: Ineffective assistance of counsel Ross argues that nearly all of his independent assignments of error are, in the alternative, evidence of ineffective assistance of counsel. Given the severity of the charge against Ross, defense counsel’s failure to investigate Ross’ psychological problems and his disciplinary record in prison constitutes ineffective assistance of counsel for the sentencing phase of the trial. Issue 9: Competency hearing Ross argues that the competency hearing conducted by the trial court was deficient for placing the burden on Ross of proving his lack of competency by a preponderance of the evidence, for the trial court’s denial of Ross’ motion for a continuance to consider the testimony of the examining physician, and for the trial court’s failure to address Ross’ motion to retain an independent expert to examine Ross. Where there is a serious question about the sanity or competency of a defendant to stand trial, it naturally devolves upon the defendant to go forward with the evidence to show his probable incapacity to make a rational defense. After conducting his examination of the psychologist who examined Ross, Ross’ appellate counsel renewed a previously off-the-record motion for a continuance to review material that he maintained had only been made available to him the day of the hearing. The trial court found that witnesses had been called up from the Mississippi State Hospital and that the case would not be well served by having the witnesses make repeated trips. The record does not reflect that Ross’ appellate counsel was unfamiliar with the evaluation results or that he was unable develop his case through the examination of witnesses. The trial court’s determination was within its discretion. With regard to the trial court’s failure to address his motion for an independent expert, the trial court cannot be faulted for failing to rule on a motion never formally before it. Issue 10: Atkins hearing Ross argues that his sentence must be vacated and his case remanded to the trial court for an evaluation of his mental capacity in light of Atkins v. Virginia, 536 U.S. 304. The record reflects that while Ross’ scores on his I.Q. test were within the range of mentally retarded, the hospital’s psychologist testified that in her opinion Ross was malingering and that he was not actually mentally retarded. The examining psychologist also stated that the Mississippi State Hospital had administered the Minnesota Multiphasic Personality Inventory, or MMPI, to Ross. The examining psychologist opined that the results of the MMPI were invalid because Ross intentionally malingered on the test by randomly choosing answers. A defendant will not be deemed mentally retarded for the purposes of the Eight Amendment unless such defendant produces, at a minimum, an expert who expresses an opinion, to a reasonable degree of certainty, that: the defendant is mentally retarded, as that term is defined by the American Association on Mental Retardation and/or The American Psychiatric Association; the defendant has completed the Minnesota Multiphasic Personality Inventory-II and/or other similar tests, and the defendant is not malingering. Because Ross has failed to proffer the information necessary to warrant an Atkins hearing, he is not entitled to a reconsideration of his sentence on this issue. Issue 11: Jury instructions Ross argues that the evidence presented by the State was insufficient to support his conviction of capital murder, and that, as a result, the trial court erred in refusing Ross’ proposed instruction to the jury for a directed verdict of not guilty. There was sufficient evidence, both circumstantial and in the form of testimony, for a reasonable jury to find that Ross murdered the victim in the commission of a robbery. Ross also argues that the trial court erred in refusing to instruct the jury that the case against Ross was based entirely on circumstantial evidence. The trial court did not err in refusing to treat Ross’ case as a de facto circumstantial-evidence case since there was testimony about statements made by Ross. Ross argues that the trial court erred in refusing his proposed jury instruction no. 2, which defined reasonable doubt, and proposed jury instruction 3, which stated that all reasonable doubts must be resolved in favor of the defendant. Because Ross’ proposed instructions on reasonable doubt had been adequately addressed by other jury instructions, this assignment of error is without merit. Ross argues that the court erred in instructing the jury on the statutory aggravator that “the capital offense was committed for the purpose of avoiding or preventing a lawful arrest.” Because Ross knew the victim personally, it was reasonable for a jury to conclude that he was murdered to conceal either the identity of the killer or to avoid investigation for the robbery. Ross’ argument that the State erred in failing to state the aggravating circumstances to be used in the sentencing phase is similarly unavailing. Mississippi law does not require the aggravating circumstances to be set forth in the indictment. Ross argues that the trial court erred in refusing his second proposed sentencing instruction, which set out elements of the crime that the State had to prove, a list of the aggravating circumstances the State would attempt to show, and a list of twenty-four nonstatutory mitigators, presented as illustrations of the type of information that the jury could consider mitigating circumstances. Another instruction properly informs the jury about what may be considered as mitigation evidence. Therefore, the trial court’s refusal of Ross’ proposed instruction does not constitute error. Ross argues that the trial court erred in refusing his third sentencing instruction, which stated that the fact of his conviction of capital murder was not itself an aggravator that could be considered for the purpose of punishment. However, when a jury has been instructed to consider only an enumerated list of statutory aggravating factors, there is no need for a separate instruction to this effect. Ross argues that the trial court erred in refusing his fourth proposed sentencing instruction, which instructed jurors to consider as a mitigating circumstance the possibility of residual doubt about Ross’ guilt. Both the United States Supreme Court and this Court have held that a capital defendant is not entitled to an instruction on residual doubt. Ross argues that the trial court erred in granting the State’s first sentencing instruction and denying his twelfth proposed sentencing instruction. There was no error in refusing Ross’ proposed instruction specifically citing mercy or sympathy as a mitigator. A capital defendant is not entitled to a sympathy instruction, because, like a mercy instruction, it could result in a verdict based on whim and caprice. Ross argues that the trial court erred in denying his thirteenth instruction, which would have allowed jurors to rely on a sense of mercy to sentence Ross to life imprisonment, despite the fact that aggravators existed and were not balanced by any mitigating factors. There is no right to a mercy instruction or to instructions that would nullify the balancing of aggravating and mitigating factors, since such instructions might induce verdicts based on whim and caprice. Issue 12: Mitigation evidence Ross argues that the trial court erred in granting the State’s in limine motion to prevent Ross’ family from testifying to the impact a death sentence would have on the family. Testimony regarding the impact a death sentence may have on the defendant’s family is not relevant mitigating evidence, because it does not address the defendant's character, record, or the circumstances of the offense. Issue 13: Sufficiency of indictment Ross argues that the indictment was insufficient because it failed to charge all elements necessary to impose the death penalty under Mississippi law. While specific aggravating circumstances need not be specified in the indictment under Mississippi law, the underlying felony that elevates the crime to capital murder must be identified in the indictment along with the section and subsection of the statute under which the defendant is being charged. Ross’s indictment sufficiently informed him of the charges against him, and his claim is without merit. Issue 14: Weight of evidence A careful review of the evidence supporting the verdict raises serious concerns regarding the weight of the evidence considered by the jury. There were numerous and substantial inconsistencies among the testimonies of the witnesses. Absent the testimony of the main witness against Ross, the bulk of the evidence against Ross was inconclusive, circumstantial, or did not implicate Ross any more than it did the other occupants of the residence. The State’s case relied on a number of items in evidence whose relevance was questionable. For example, the State provided no support for their argument that the tail light fragments came from Ross’ car. The State made no showing that the ashes found on the grill had been properly preserved or what their composition was. The State noted that the beer cans collected from Ross’ car had the same manufacturer’s stamp as those found at the crime scene, but never explained how many cans would have the same stamp. However, absent from the record are the myriad nuances and subtle impressions from which jurors weigh credibility. Therefore, the court did not err in denying Ross’ motion for a new trial. Issue 15: Cumulative error Ross argues the cumulative effect of the various errors in the trial, even if harmless, requires reversal and remand. The cumulative error doctrine stems from the doctrine of harmless error, codified under M.R.C.P. 61. It holds that individual errors, which are not reversible in themselves, may combine with other errors to make up reversible error, where the cumulative effect of all errors deprives the defendant of a fundamentally fair trial. Relevant factors to consider in evaluating a claim of cumulative error include whether the issue of innocence or guilt is close, the quantity and character of the error, and the gravity of the crime charged. The errors in this case provide justification for reversal because of their cumulative effort. Therefore, Ross’ conviction and sentence are reversed and his case remanded for a new trial


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