Fulgham v. State
| Docket Number: | 2007-DP-01312-SCT Linked Case(s): 2007-DP-01312-SCT |
|
| Oral Argument: | 05-24-2010 | |
* This video is best viewed in the most current version of Google Chrome, Internet Explorer with Windows Media Player plug-in, or Safari (Mac Users). |
||
| Supreme Court: | Opinion Link Opinion Date: 10-28-2010 Opinion Author: Lamar, J. Holding: Conviction of Capital Murder, Affirmed. Sentence of Death, Reversed and Remanded. |
|
| Additional Case Information: |
Topic: Death penalty direct appeal - Unanimity instruction - Relevance of evidence - Hearsay - M.R.E. 801 - Admission by party opponent - Admission of testimony - Two-theory instructions - Burden of proof instruction - Alternative theory instruction - Stacked inferences instruction - Lesser offense instruction - Guilt by association instruction - Witness instruction - Reasonable doubt instruction - Transfer of venue - Exclusion of mitigation testimony - M.R.E. 703 - M.R.E. 702 - Aggravators - Motion to suppress - Circumstantial evidence instruction Judge(s) Concurring: Waller, C.J., Carlson and Graves, P.JJ., Dickinson, Randolph, Kitchens, Chandler and Pierce, JJ. Judge(s) Concurring Separately: Randolph, J., Specially Concurs with Separate Written Opinion joined by Lamar, J. ; Kitchens, J., Specially Concurs with Separate Written Opinion joined by Dickinson, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - DEATH PENALTY - DIRECT APPEAL |
|
| Trial Court: |
Date of Trial Judgment: 12-09-2006 Appealed from: OKTIBBEHA COUNTY CIRCUIT COURT Judge: Lee J. Howard Disposition: Kristi Fulgham was convicted of capital murder and sentenced to death for killing her husband, Joey Fulgham. District Attorney: FORREST ALLGOOD Case Number: 2003-0133-CR |
|
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Kristi Leigh Fulgham |
OFFICE OF CAPITAL DEFENSE COUNSEL: JAMES LAPPAN |
|
|
| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: JASON L. DAVIS, MARVIN L. WHITE, JR. | ||
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. |
|
| Topic: | Death penalty direct appeal - Unanimity instruction - Relevance of evidence - Hearsay - M.R.E. 801 - Admission by party opponent - Admission of testimony - Two-theory instructions - Burden of proof instruction - Alternative theory instruction - Stacked inferences instruction - Lesser offense instruction - Guilt by association instruction - Witness instruction - Reasonable doubt instruction - Transfer of venue - Exclusion of mitigation testimony - M.R.E. 703 - M.R.E. 702 - Aggravators - Motion to suppress - Circumstantial evidence instruction |
| Summary of the Facts: | Kristi Fulgham was convicted of capital murder and sentenced to death for killing her husband. She appeals. |
| Summary of Opinion Analysis: | Issue 1: Unanimity instruction Fulgham argues that the underlying felony of robbery is a specific-intent crime, and that the jury should have been instructed that it must agree unanimously on which item was taken. To obtain a conviction for robbery, the State must prove beyond a reasonable doubt that the defendant: (1) feloniously took (2) the personal property of another (3) in his presence or from his person and (4) against his will, (5) by violence to his person or by putting such person in fear of some immediate injury to his person. At issue is whether the court should have granted a specific unanimity instruction relative to element two, because the State argued alternative theories of what personal property was taken. Reversal is warranted where the jury was presented with alternative legal theories, one of which was legal error, but not where the jury was presented with alternative factual theories and one was factually inadequate. Here, the jury was properly instructed that one of the elements of robbery is taking, stealing, and carrying away some “personal property of another.” The facts necessary to prove this element can be shown by alternative fact patterns, but still lead to the conclusion that there was but one offense – that of robbery. This jury was perfectly capable of sifting through the evidence presented and was able to discard any factually insufficient theories. By its verdict, twelve jurors unanimously agreed that Fulgham had robbed her husband of personal property. Issue 2: Relevance of evidence Fulgham argues that the trial court erred in permitting the State to present evidence of a romantic relationship between Fulgham and her brother. However, Fulgham failed to object contemporaneously. In addition, this testimony was at least marginally relevant to explain the relationship between Fulgham and her brother and the controlling influence that Fulgham exerted over him. Issue 3: Hearsay Fulgham argues that the trial court erred in allowing the jury to hear testimony relating to her alleged statement that she wanted to shoot a stray dog and her requests for a gun to shoot it. Under M.R.E. 801, hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Fulgham’s statement that she wanted to shoot a dog is not hearsay because it was not offered for the truth of the matter asserted. Additionally, Fulgham’s statements that she wanted a gun are admissible as admissions by a party opponent under M.R.E. 801(d)(2)(A). Issue 4: Admission of testimony Fulgham argues that the trial court erred in allowing the State’s questioning of a witness about Fulgham’s relationship with her husband. Fulgham admits that her alleged statement is relevant to the determination of whether she killed her husband, but she then argues erroneously that it constitutes inadmissible hearsay. This testimony was excepted from the prohibition of hearsay, since it was admissible as admissions by a party opponent under M.R.E. 801(d)(2)(A). Issue 5: Two-theory instructions Fulgham argues that the trial court erred in refusing to grant her “two-theory instructions” when it did grant a circumstantial-evidence instruction. It is not reversible error to refuse a two-theory instruction in a case based purely on circumstantial evidence if the court grants a general circumstantial-evidence instruction. Issue 6: Burden of proof instruction Fulgham argues that the trial court erred in refusing a jury instruction on the burden of proof. The jury was properly instructed that the State had the burden to prove its case beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence. Further, when all instructions are read as a whole, the proposed instruction is repetitious of another instruction. Issue 7: Alternative theory instruction Fulgham argues that the trial court erred in granting a jury instruction which defined the statutory phrase “while engaged in the commission of” to include “the actions of Defendant leading up to the robbery, the actual robbery and/or the flight from the scene of the robbery.” Fulgham argues that this instruction confused the jury regarding the State’s alternative theories and further distorted the unanimity requirement. This is a proper instruction pursuant to the Court’s recent ruling in Goff v. State, 14 So. 3d 625, 649-50 (Miss. 2009). Issue 8: Stacked inferences instruction Fulgham argues that the trial court erred in refusing one of her instructions, because the jury was never advised that “stacked” inferences in a circumstantial case must be supported by facts proven beyond a reasonable doubt. However, the court gave another instruction which instructed the jury that each element of the crime must be proven beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence. This instruction was adequate to guard against the jury convicting Fulgham based on “stacked” inferences. Issue 9: Lesser offense instruction Fulgham argues that the trial court should have refused the State’s instruction on the lesser offense of murder. It instructed the jurors to consider the lesser offense of murder only if they first unanimously found the defendant not guilty of capital murder. The Court has previously considered the State’s “acquit-first” instruction and has found that it is not prohibited by the law of this State. Issue 10: Guilt by association instruction Fulgham argues that the trial court should have granted her guilt-by-association instruction. However, the trial court adequately addressed Fulgham’s concerns by granting another instruction. Issue 11: Witness instruction Fulgham argues that the court erred by refusing to grant her instruction on weighing the testimony of witnesses. Although Mississippi law supports such an instruction, the court did not err in refusing to grant the instruction, since another instruction properly informed the jury “of the things it should consider when weighing witness testimony.” Issue 12: Reasonable doubt instruction Fulgham argues that the court erred in refusing to grant her two instructions which defined “reasonable doubt.” A definition of reasonable doubt is not a proper instruction for the jury, because reasonable doubt defines itself. Issue 13: Transfer of venue Fulgham filed a motion to change venue based on the pervasive media attention to her trial and the trial of her codefendant. She requested that the trial court transfer venue to Attala, Grenada, Madison, or Warren County. The court granted the motion and ordered that the jury should be drawn from Union County. Fulgham argues that the trial court erred in refusing to transfer venue to another county, and such error deprived her of the right to a fair and impartial jury which represented a cross-section of the Oktibbeha County community. The trial court did not abuse its discretion in denying Fulgham’s objection to transferring the case to Union County. Only eleven jurors of the venire responded that they had heard or seen pretrial publicity related to Fulgham’s and/or Tyler Edmonds’s trial. None of these potential jurors was seated on the jury. Therefore, Fulgham’s argument that she failed to receive a fair and impartial trial has no merit. Issue 14: Exclusion of mitigation testimony Fulgham argues that the trial court erred in excluding the testimony of Dorsey-Kidd, a licensed social worker who had completed an intensive social history of Fulgham, after the court accepted the witness as an expert in the field of social work. Fulgham argues that the State failed to object in a timely manner to Dorsey-Kidd’s proposed testimony when the State objected after it had conceded Dorsey-Kidd could testify regarding her opinions as a social worker. Dorsey-Kidd testified that she had been hired to complete an intensive social history of Fulgham, which had involved reviewing documents, interviewing numerous people, and three meetings with Fulgham. The State then objected when Dorsey-Kidd was asked: “Ms. Kidd, did you reach any conclusions or make any observations in completing your intensive social history?” The State argued that “Ms. Kidd is not authorized to give any opinions in the areas set forth in her report. She is a social worker, she is not a psychiatrist or a psychologist.” The court sustained the objection. In objecting to Dorsey-Kidd’s testimony, the State presented no argument or evidence that Dorsey-Kidd’s testimony was outside the field of social work. And its objection based on hearsay is unfounded. Under M.R.E. 703, an expert such as Dorsey-Kidd may form an opinion based on facts or data not admissible in evidence if of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject. And due process requires that all evidence relied upon at sentencing, including expert testimony, be relevant and reliable, a rule which is reflected by Rule 702. Further, the proffered testimony was offered as mitigation, and mitigating evidence is admissible if it relates to the character and background of the defendant and the circumstances surrounding the crime. Where the sentencer is not permitted to consider all mitigating evidence, there is a risk of erroneous imposition of the death sentence, and the case will be remanded for resentencing. Dorsey-Kidd’s proposed testimony would have provided the jury with additional observations and a cohesive overview of the mitigation evidence presented by the other three witnesses. Her expert testimony would have focused on Fulgham’s social history and the social context of the crime. Dorsey-Kidd’s testimony was especially relevant, since she had reviewed various documents and had conducted interviews prior to offering her expert observations and/or opinions. Additionally, Dorsey-Kidd was the only mitigation witness who had based her findings on interviews with multiple people, including Fulgham. The exclusion of this evidence denied Fulgham a fair sentencing phase and warrants reversal as to sentencing, since the jury was prevented from considering all relevant mitigating evidence. Issue 15: Aggravators Over Fulgham’s objection, the court allowed the jury to consider both the robbery and the pecuniary-gain aggravators. Fulgham argues that the felony-murder aggravator is unconstitutionally duplicative and that the indictment failed to list the aggravators. The Court repeatedly has held that the use of an underlying felony as an aggravating factor is constitutional and that an indictment of capital murder does not have to list the statutory aggravators. Issue 16: Motion to suppress Fulgham provided the police two custodial statements on two different occasions. Fulgham concedes that the State did not introduce or mention either statement during the guilt phase. Neither statement was admitted into evidence during the sentencing phase, but was used to cross-examine a witness. Fulgham argues the trial court erred in refusing to suppress the second statement when the State used it to cross-examine Dr. Webb at the sentencing phase. She argues that her right to counsel and the Due Process Clause of the Fourteenth Amendment were violated when the police refused to allow her attorney access to her. Even if an accused has procured an attorney, the accused may still waive the right to have the lawyer present during any police questioning. Nothing in the Sixth Amendment prevents a suspect charged with a crime and represented by counsel from voluntarily choosing, on his own, to speak with police in the absence of an attorney. Fulgham voluntarily initiated the questioning and waived the right to have her attorney present during questioning. Issue 17: Circumstantial evidence instruction Fulgham argues that the court erred in refusing two circumstantial evidence instructions at the sentencing phase when it granted a circumstantial-evidence instruction at the guilt phase. A defendant (under the proper circumstances) is entitled to a circumstantial-evidence instruction at the guilt phase. There is no authority to support such an instruction at sentencing. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
