Killen v. State
| Docket Number: | 2005-KA-01393-SCT Linked Case(s): 2005-KA-01393-SCT ; 2005-TS-01393-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 04-12-2007 Opinion Author: Dickinson, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Manslaughter - Lesser-included offense instructions - Due process Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., Diaz, Carlson, Graves and Randolph, JJ. Non Participating Judge(s): Easley, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 06-23-2005 Appealed from: Neshoba County Circuit Court Judge: Marcus D. Gordon Disposition: Jury found the Appellant guilty of three counts of manslaughter. District Attorney: Mark Sheldon Duncan Case Number: 05-CR-0006-NS-G |
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| Party Name: | Attorney Name: | |||
| Appellant: | Edgar Ray Killen |
PERCY STANFIELD, JR.,
GLEN W. HALL |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Manslaughter - Lesser-included offense instructions - Due process |
| Summary of the Facts: | Edgar Ray Killen was convicted of three counts of manslaughter and sentenced to twenty years for each count. Killen appeals. |
| Summary of Opinion Analysis: | Issue 1: Lesser-included offense instructions Killen argues that the court erred in granting the State’s request for jury instructions on manslaughter. Killen’s argument that manslaughter is not a lesser-included offense of murder is procedurally barred because he did not object on that ground at trial. Killen also argues that the manslaughter instruction should not have been given because there was no evidence of a kidnaping, there was no proof that Killen participated in the killing in the heat of passion, without malice and without premeditation, and the statute of limitations had run on kidnaping. However, the record replete with evidence that there was a kidnaping, and that Killen planned and participated in it. With regard to the statute of limitations, kidnaping was not the lesser-included offense in this case, but was used only to establish an element of the lesser-included offense, which was manslaughter. Since the statute of limitations had not run on manslaughter, the statute of limitations had not run on the lesser-included offense. Issue 2: Due process Killen argues that the delay of forty-one years in bringing the indictment denied him due process of law. Killen argues that he suffered actual prejudice by the forty-one year delay, in that he was eighty years old at the time of the trial, in poor health and many witnesses had died or their memories had failed. In order for a defendant to prevail on such a claim there must be a showing that the pre-indictment delay prejudiced that defendant, and the delay was an intentional device used by the government to obtain a tactical advantage over the accused. Because Killen cites no authority that his age and health are sufficient to constitute actual prejudice, these factors warrant no consideration. With regard to witnesses, Killen has not suggested any witness he was unable to call on his behalf as a result of the forty-one- year delay. Further, the testimony in the record does not indicate that Killen’s witnesses failed to remember the events of 1964. With regard to Killen’s argument that the State intentionally delayed prosecution to obtain a tactical advantage, Killen cites no authority for the proposition that he was denied a trial in a prejudiced political atmosphere before a prejudiced jury selected from the virtually all-white voter rolls used to select persons for jury duty. |
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