Thorson v. State


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Docket Number: 96-DP-00144-SCT
Linked Case(s): 96-DP-00144-SCT

Supreme Court: Opinion Link
Opinion Date: 11-04-2004
Opinion Author: Carlson, J.
Holding: Affirmed

Additional Case Information: Topic: Capital murder - Avoiding or Preventing a Lawful Arrest or Effecting an Escape from Custody Aggravator - Especially heinous, atrocious or cruel aggravator - Duplicative use of kidnapping aggravator - Rule of independent sufficiency - Mercy instruction - Mitigating circumstance instruction - Procedure instruction - Prosecutorial misconduct - Cumulative error - Proportionality of death sentence - Suppression of confession - Jury selection - UCCCR 4.05 - Peremptory challenges - Photograph - Expert funds for social psychologist - Mental evaluation - Hearsay - Cross-examination - Exclusion of testimony - Mere suspicion instruction - Impeachment instruction - Weight of evidence
Judge(s) Concurring: Smith, C.J., Waller and Cobb, P. JJ., Easley, Dickinson and Randolph, JJ.
Non Participating Judge(s): Diaz and Graves, JJ.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - DEATH PENALTY - DIRECT APPEAL

Trial Court: Date of Trial Judgment: 11-02-1995
Appealed from: Harrison County Circuit Court
Judge: Jerry O. Terry, Sr.
Disposition: Conviction of Capital Murder and Sentence of Death by Lethal Injection.
District Attorney: Cono A. Caranna, II
Case Number: 5190

  Party Name: Attorney Name:  
Appellant: Roger Thorson, a/k/a Roger Eric Thorson




OFFICE OF CAPITAL POST-CONVICTION COUNSEL BY: JAMES LAPPAN, KELLIE WILLIAMSON KOENIG



 

Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL BY: MARVIN L. WHITE, JR.  

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Topic: Capital murder - Avoiding or Preventing a Lawful Arrest or Effecting an Escape from Custody Aggravator - Especially heinous, atrocious or cruel aggravator - Duplicative use of kidnapping aggravator - Rule of independent sufficiency - Mercy instruction - Mitigating circumstance instruction - Procedure instruction - Prosecutorial misconduct - Cumulative error - Proportionality of death sentence - Suppression of confession - Jury selection - UCCCR 4.05 - Peremptory challenges - Photograph - Expert funds for social psychologist - Mental evaluation - Hearsay - Cross-examination - Exclusion of testimony - Mere suspicion instruction - Impeachment instruction - Weight of evidence

Summary of the Facts: Roger Thorson was convicted of capital murder and sentenced to death in 1988. The Supreme Court remanded for a Batson hearing. On remand, the court found no Batson violation. Thorson appealed, and the Court reversed his conviction and remanded for a new trial, finding that a juror was improperly challenged based solely on her religious affiliation. The jury once again found Thorson guilty of capital murder, and he was sentenced to death by lethal injection. Thorson appeals.

Summary of Opinion Analysis: Issue 1: Avoiding or Preventing a Lawful Arrest or Effecting an Escape from Custody Aggravator Thorson argues that the aggravating factor of avoiding arrest should not have been submitted to the jury because there was insufficient evidence to do so, the evidence fails to support the finding of this aggravating factor, and the jury failed to find the avoiding arrest aggravating circumstance. If there is evidence from which it may be reasonably inferred that a substantial reason for the killing was to conceal the identity of the killer or killers or to “cover their tracks” so as to avoid apprehension and eventual arrest by authorities, then it is proper for the court to allow the jury to consider this aggravating circumstance. In his video taped confession, Thorson states that after raping the victim, he took a towel and wiped her car down to remove any traces of fingerprints that he might have left on the car. He then asked her if she would tell anyone what had happened. After indicating that she would not, Thorson, not believing her answer, slit her throat. He then removed several items from the victim’s car and threw them into the woods to make it appear as if someone else where responsible for the crime. Upon returning home, he washed his hands and the knife in bleach and buried several items of which would tie him to the crime scene. This is sufficient evidence which would have allowed the jury to make reasonable inferences that Thorson killed the victim in an attempt to conceal his identity and cover his tracks to avoid arrest. Although the jury found that “[t]he offense was committed with the purpose of covering up and hiding evidence,” there can be no doubt that the jury found the avoiding arrest aggravator to exist in this case. Issue 2: Especially heinous, atrocious or cruel aggravator Thorson argues that the especially heinous, atrocious or cruel aggravator should not have been submitted to the jury because there was insufficient evidence to do so, the evidence fails to support the finding of this aggravating factor, the jury failed to find the avoiding arrest aggravating circumstance, the jury was not properly limited as to the aggravator, and even if limited, the aggravator remains constitutionally vague. The number of wounds and the fact that death was not immediate, but prolonged may be properly considered as evidence supporting a jury's finding of the especially heinous aggravator. Here, the victim was ordered to drive to a deserted dirt road at knife point, where she was bound, gagged and raped. The victim was asked if she would tell anyone what had happened. When she indicated that she would not, her attacker told her that he did not believe her and then slit her throat. The victim was then left to bleed to death in her car while her killer cleaned up after himself. When the victim attempted to scream for help, Thorson shot her in the head. This is sufficient evidence to support the especially heinous aggravator. Although the jury found that “[t]he offense was heinous, cruel and torturous,” the verdict leaves no doubt as to the finding of the jury. The identical limiting instruction given in this case has been found to be constitutionally sufficient. Issue 3: Duplicative use of kidnapping aggravator Thorson argues that Ring v. Arizona, 536 U.S. 584 (2002) prohibits the duplicative use of the kidnapping aggravator as the sole selection factor at the penalty phase when the jury had previously found that Thorson committed the crime at the culpability phase. The Supreme Court has continuously held that Ring has no application to Mississippi’s capital murder sentencing scheme. Issue 4: Rule of independent sufficiency Thorson argues that his death sentence must be vacated due to the rule of independent sufficiency announced in Stromberg v. California, 283 U.S. 359 (1931). That case held that a general verdict must be set aside if the jury was instructed that it could rely on any of two or more independent grounds, and one of those grounds is insufficient, because the verdict may have rested exclusively on the insufficient ground. This rule does not apply in this case, because the jury properly found all three aggravators which were properly submitted to them to exist. Issue 5: Mercy instruction Thorson argues that the court erred in refusing to grant one of his instructions. Not only was the jury sufficiently instructed the jury they must unanimously find that in order to return a sentence of death, the aggravating factors must outweigh the mitigating circumstances beyond a reasonable doubt, but the instruction was nothing more than a mercy instruction and as such, properly refused. Thorson also argues the court erred in refusing to grant two other mercy instructions. Because a defendant has no right to a mercy instruction, the court properly refused the instructions. Issue 6: Mitigating circumstance instruction Thorson argues that the court erred in refusing an instruction which defined “mitigating circumstance” to the jury. Another instruction fully informed the jury of what a mitigating factor is and how it is to be considered. Therefore, the court properly refused to grant the instruction. Issue 7: Procedure instruction Thorson argues that the court erred in refusing to grant an instruction explaining the procedure used in a capital murder case. He argues that the jury was not instructed that the focus of the capital sentencing decision is not the same as an ordinary case, the sentence of death is a unique situation in that it is irrevocable and final, and the jury’s sentencing decision must be made free from passion and prejudice. During voir dire, the court properly informed the jury that sentencing was different in capital cases. In addition, the jury was fully instructed to make its decision free from “passion” and “prejudice.” Issue 8: Prosecutorial misconduct Thorson argues that the argument of the prosecutor during the closing argument of the penalty phase of the trial amounted to prosecutorial misconduct, because the prosecution employed a “send a message” argument, argued that Thorson had shown no remorse, used a victim impact argument and misstated evidence surrounding the victim’s death. In closing argument during the sentencing phase each side may argue its respective position on the death penalty. The prosecution is always free to discuss at length the testimony of the State’s witnesses and why they are credible. The prosecution’s statements did not amount to victim impact evidence but were merely pleas on behalf of the State and the family of the victim to return a sentence of death. Based on the evidence submitted at trial, the State did not misstate facts in the closing argument. Issue 9: Cumulative error Thorson argues that in light of the previous issues, his sentence of death is the end result of an invalid penalty phase. This argument amounts to a cumulative error argument. Since the Court has previously found no reversible errors, there is no reversible error to the whole. Issue 10: Proportionality of death sentence The Court must review the proportionality of the death sentence. There is no evidence supporting a finding that the death sentence was imposed under the influence of passion, prejudice or any other arbitrary factor. The evidence supports the trial court's finding that the statutory aggravating factors of kidnapping, avoiding or preventing a lawful arrest and especially heinous, atrocious and cruel were 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. Issue 11: Suppression of confession Thorson argues that his confession to the murder should have been suppressed. In the original direct appeal of this case, Thorson challenged the admission of his confession on five separate grounds which were all found to be without merit. Therefore, this claim is barred by the law of the case doctrine. Issue 12: Jury selection Thorson argues that the court erred in failing to require the State to present him with a full panel of jurors before he was required to exercise his peremptory challenges. URCCC 4.05 requires that first challenges for cause be exercised until a full panel of twelve prospective jurors is selected. Once selected, peremptory challenges may be exercised. Then jurors are added to replace those struck to obtain a full panel of twelve jurors. This process is repeated until the jury panel is selected. This procedure was properly followed by the court in the instant case. Issue 13: Peremptory challenges Thorson argues that the court erred in not permitting him an opportunity to rebut the State’s race neutral reason for striking one of the jurors. A defendant is allowed, or must request, to rebut the State’s race neutral reasons for striking a juror. Thorson did not request to rebut the reasons for the State’s striking the juror. In addition, Thorson failed to offer any rebuttal during jury selection and fails to offer any reason as to why the reasons stated by the State should not be considered race neutral. Issue 14: Photograph Thorson argues that the court erred in admitting a photograph depicting the victim’s head, shoulder, mouth and throat. This photographs had probative value in that it was the only picture admitted by the State which clearly identified the victim as Gloria McKinney. Issue 15: Expert funds for social psychologist Thorson argues that the court erred in denying him funds to hire a social psychologist who was reportedly an expert in the areas of police interrogation and coerced confessions. An indigent defendant requesting non-psychiatric experts must demonstrate something more than a mere possibility of assistance from a requested expert. Here, there is no instance, other than to say the jury must be educated about the possibility of false confessions, of a substantial need for such an expert. Thorson was only able to show the trial court that there was a mere possibility of assistance. Issue 16: Mental evaluation Thorson argues that the court erred in refusing to allow defense counsel to be present during the court ordered mental evaluation. There is no constitutional right for counsel to be present during a mental evaluation. Issue 17: Hearsay Thorson argues that the court erred in excluding, as hearsay, answers to questions during Thorson’s testimony regarding threats made by another person who had a coercive influence over him. However, as evidenced from the trial transcript, Thorson was able to testify that as a result of a jailhouse visit from this person, he felt compelled to take responsibility for the death of the victim. Thorson also argues that the court erred in sustaining a hearsay objection to the testimony of an employee of the Biloxi Police Department who wrote a report concerning a missing person. A party must do more than simply show some technical error has occurred before he will be entitled to a reversal on the exclusion or admission of evidence; there must be some showing of prejudice. Thorson has failed to show that he suffered any prejudice as a result of the court’s exclusion of this hearsay testimony. Thorson also argues that the court erred in sustaining an objection to his testifying to what an officer said to him during the interrogation. Because this information was already before the jury, at most it was harmless error for the court to sustain the State’s objection. Issue 18: Cross-examination Thorson argues that the court abused his discretion in not allowing him to impeach his own witness with a prior conviction during direct examination. Thorson has failed to show actual prejudice in the exclusion of this evidence. He only wanted to ask the question because the witness had recently been released from Parchman. Issue 19: Exclusion of testimony Thorson argues that the court erred in sustaining an objection to a question asked of a witness regarding threats made against the victim’s children during the witness’s visit with Thorson. Thorson was allowed to present his theory of the case as to why he confessed to the murder and why that confession was false. Therefore, any error committed by the court in excluding testimony was harmless error. Issue 20: Circumstantial evidence instruction Thorson argues that the court erred in refusing to grant his burden-of-proof instruction. It is only in cases consisting entirely of circumstantial evidence that an instruction must be given which requires the jury to resolve, in favor of the accused, doubt over circumstances susceptible of two interpretations. If a defendant makes an admission on a significant element of the offense, the admission constitutes direct evidence. Because Thorson’s confession was introduced into evidence, the court properly refused the instruction. Issue 21: Mere suspicion instruction Thorson argues that the court erred in refusing to grant a mere suspicion instruction during the culpability phase. Because the instruction was repetitious, the court properly refused to grant it. Issue 22: Impeachment instruction Thorson argues that the court erred in refusing to grant an impeachment instruction. Because Thorson did not use any prior statements to impeach any witnesses, the court did not abuse its discretion in refusing to grant the instruction. Issue 23: Prosecutorial misconduct Thorson argues that prosecutorial misconduct occurred during his cross-examination during the guilty phase of the trial and during the cross-examination of his mother during the sentencing phase of the trial. Thorson specifically requested that the entire confession be played to the jury, minus one racial slur. Included in that confession were references to Thorson and McKinney having sex. Therefore, there was no prosecutorial misconduct in asking these questions of Thorson during cross-examination. With regard to his mother, the State asked her if she understood that the jury would not personally carry out the punishment of death but would render a decision on her son’s action. This comment did not mislead the jury as to the importance of the decision which it faced. Issue 24: Weight of evidence Thorson argues that his conviction was against the overwhelming evidence introduced at trial. Viewing the evidence introduced by the State in the light most favorable to the verdict returned by the jury, Thorson’s conviction of capital murder is supported by the overwhelming weight of the evidence adduced at trial.


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