Dycus v. State
| Docket Number: | 1998-DP-01094-SCT Linked Case(s): 1998-DP-01094-SCT ; 1998-DP-01094-SCT |
|
| Supreme Court: | Opinion Link Opinion Date: 04-15-2004 Opinion Author: Graves, J. Holding: Affirmed |
|
| Additional Case Information: |
Topic: Death penalty - Peremptory challenge - Striking of prospective juror - Bias in favor of death penalty - Admission of murder weapon - Admission of statement - Exclusion of illiterate jurors - Section 13-5-1 - Discovery violation - Photographs - Mitigating evidence - Weight of evidence - Section 99-19-101(5) - Heinous, atrocious, and cruel aggravating factor - Improper comments - Simple murder instruction - Sympathy - Cruel and unusual punishment - Findings by jury - Reference to victim’s characteristics - Closing argument - Prejudicial testimony - Incomplete record - Proportionality of death penalty Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., Easley, Carlson and Dickinson, JJ. Non Participating Judge(s): Diaz, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - DEATH PENALTY - DIRECT APPEAL |
|
| Trial Court: |
Date of Trial Judgment: 06-19-1998 Appealed from: Bolivar County Circuit Court Judge: Kenneth L. Thomas Disposition: Appellant was convicted of capital murder and sentenced to death. District Attorney: Laurence Y. Mellen Case Number: 8494 |
|
| Party Name: | Attorney Name: | |||
| Appellant: | Kelvin Dycus a/k/a Kevin Dycus |
RAYMOND WONG
ROBERT McDUFF |
||
| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: JUDY T. MARTIN 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 - Peremptory challenge - Striking of prospective juror - Bias in favor of death penalty - Admission of murder weapon - Admission of statement - Exclusion of illiterate jurors - Section 13-5-1 - Discovery violation - Photographs - Mitigating evidence - Weight of evidence - Section 99-19-101(5) - Heinous, atrocious, and cruel aggravating factor - Improper comments - Simple murder instruction - Sympathy - Cruel and unusual punishment - Findings by jury - Reference to victim’s characteristics - Closing argument - Prejudicial testimony - Incomplete record - Proportionality of death penalty |
| Summary of the Facts: | Kelvin Dycus was convicted of capital murder and auto theft and was sentenced to death and five years, respectively. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Peremptory challenge Dycus argues that he should have been allowed to exercise an unused peremptory challenge to remove one of the jurors from the jury and have an alternate juror seated in his place. The right to exercise peremptory challenges is impeded if a prospective juror fails to answer an unambiguous question whose answer would allow counsel to make an informed decision about whether to strike that juror. Here, the judge was correct in not allowing the strike of a juror who once attended church with the victim’s sister and who did not even know her name. Issue 2: Striking of prospective juror Dycus argues that the court erred in striking a prospective juror. The prospective juror was highly ambivalent regarding application of the death penalty. A juror’s position on the death penalty must be unmistakably clear, or a judge may properly remove them for cause. Here, the judge’s conclusion that the juror was not unmistakably clear regarding application of the death penalty was sufficient to have her struck for cause. Issue 3: Bias in favor of death penalty Dycus argues that the court erred in failing to strike two jurors who were biased in favor of the death penalty, because the retention of the two was disparate treatment towards his defense, since the court allowed the strike of the prospective juror who was indecisive about the death penalty. Here, there was no advantage gained by one side through impropriety. The judge properly struck the prospective juror because she was not unmistakably clear that she would follow her oath and uphold the laws of Mississippi, while the two jurors were adamant that they would uphold the laws of Mississippi. Issue 4: Admission of murder weapon Dycus argues that the court abused its discretion in allowing a black .25 caliber automatic pistol into evidence, because the prosecution offered no evidence linking the gun to the murder and the State’s expert was not qualified to testify about ballistics. However, the record shows that the judge was extremely reluctant about admitting the pistol into evidence, only allowing it after half a dozen witnesses, including the man from whom the gun was stolen and the woman to whom it was sold, concretely tied the weapon to the murder. With regard to the State’s forensic expert, the court may allow a witness to testify as an expert if the witness possesses peculiar knowledge or information regarding the relevant subject matter which is not likely to be possessed by a layman. Here, the witness did not testify to ballistics or that the weapon offered for evidence fired the bullets that killed the victim. He simply testified about his area of expertise: that the victim was killed by a .25 caliber weapon. Issue 5: Admission of statement Dycus argues that his statement to the investigator at the police station should be inadmissible because he was under the influence of drugs and alcohol. Not only did he fail to object at trial, but the investigator testified that he found Dycus reasonable and understanding. Dycus also argues that another statement should not have been admitted because of his young age and because a police officer and another inmate influenced him to draft the statement. Not only di Dycus fail to present the defense of coercion, but Dycus does not point to any abuse of discretion. Issue 6:Exclusion of illiterate jurors Section 13-5-1 provides that jurors who cannot fill out a simple form shall be disqualified. Dycus argues that by failing to ask a prospective juror why they could not fill out the questionnaire, the court may have unlawfully excluded a person who may not have been illiterate. There are no other questions needed to determine if the juror were illiterate other than the one asked by the judge which was whether there were any persons who could not read or write in the jury. Dycus also argues that the statute requiring juror literacy might be unconstitutional. It is within the command of the Legislature to amend the juror literacy requirement, and the Legislature has determined it serves a legitimate state interest and does not violate the constitutional rights of accused persons to be tried by an impartial jury. Dycus also argues that the statute requiring literacy asks for a juror to handwrite information on a card, and that a person who was physically disabled might have trouble filling out a card. There are not the facts of this case where a prospective juror voluntarily indicated to the court that they could not read or write. In addition, while the statute excludes illiterate jurors, it does not exclude disabled jurors. Issue 7: Discovery violation Dycus argues that the prosecution committed a discovery violation by not disclosing to his counsel an oral statement he gave. The record shows that the judge followed the procedure correctly. The judge conducted a hearing with only counsel for Dycus, counsel for the State, the inspector, and Dycus himself present and found that the information about which Dycus complains was not gained for the first time that day. Therefore, this was not even new evidence. Issue 8: Photographs Dycus argues that the court erred in admitting explicit photographs of the victim’s body. As long as the photographs supplement or add clarity to the testimony of witnesses, there is no abuse of discretion. Here, the photographs were used at trial to assist witnesses in describing the wounds that the victim suffered, the circumstances in which she was attacked, and the possible ways that they were inflicted upon her. They described the location of her body and the cause of her death. Therefore, admission was proper. Issue 9: Mitigating evidence Dycus argues that during the sentencing phase of his trial, the court issued unclear, ambiguous, and confusing instructions to the jury. The judge accidentally left a word out of an instruction, but corrected the mistake when it was brought to his attention. Because Dycus offered no further objection to the reading of the instructions, he is procedurally barred from this issue. In addition, the jury understood the instructions completely. Issue 10: Weight of evidence Dycus argues that the jury’s determination that Dycus committed murder for the purpose of avoiding or preventing a lawful arrest is against the overwhelming weight of the evidence and inconsistent with the jury’s finding that Dycus neither personally killed, nor intended to kill, the victim. The facts show that the victim was murdered while Kelvin Dycus and his brother Jason were robbing her of cash, checks, and food stamps. Even though evidence presented at trial showed that Kelvin’s brother Jason may have been the actual person who shot the victim, section 99-19-101(5) does not require that the defendant be the actual trigger person, simply that they be an accomplice in the crime. Dycus also argues that he did not mean to kill the victim. When a person kills another person in Mississippi in the commission of the crime of robbery, their intent is irrelevant. Issue 11: Heinous, atrocious, and cruel aggravating factor Dycus argues that the jury should never have been issued an instruction that the murder might be “heinous, atrocious, or cruel,” because he neither killed, nor meant to kill, the victim. Not only did Dycus fail to object to the instruction and indeed agreed to it, but Dycus’s intentions towards the victim are irrelevant in terms of the applicable law. Dycus also argues that there was insufficient evidence to convince a reasonable juror that the murder was heinous, atrocious, or cruel. The victim was beaten about the head, pushed face down on her own bed and shot through the back of the head. The assailants robbed her of a few dollars and a handful of food stamps and her decade old car and then drove to the home of an acquaintance where they used drugs, drank beer, and played cards. A reasonable juror could find that this murder was heinous, atrocious, or cruel. Dycus argues that the aggravation instruction is unconstitutionally vague and overbroad. The instruction given in its entirety properly narrows the jury’s consideration of the aggravating circumstances. Issue 12: Improper comments Dycus argues that the prosecution made improper comments about his brother Jason’s age, especially regarding the death penalty. Dycus did not object at the time the statement was made or at the end of the prosecutor’s closing statement, nor did he address the issue in his own opening statement. In addition, Dycus agreed to stipulate that under the law and because of his age at the time of commission of the crime of capital murder, Jason Dycus could not have been given the death sentence. Dycus also argues the prosecution repeatedly tried to make his age and his brother’s age an issue in the closing arguments of the trial, essentially attempting to make him bear the brunt of his brother’s crimes. It is clear that the State was not attempting to make Kelvin a scapegoat for his brother. The effort was not to scapegoat Kelvin with Jason’s crimes; it was to convince the jury that Jason was lying and that Kelvin was guilty. Issue 13: Simple murder instruction Dycus argues that he was deprived of his right to a lesser-included offense instruction, because the jury should have been instructed to consider felony manslaughter rather than, or in addition to, simple murder. The manslaughter statute explicitly excepts robbery from its provisions. Dycus also argues that the Mississippi capital punishment statute is unconstitutional on its face. As previously held, our capital punishment statute is constitutional. Issue 14: Sympathy Dycus argues that the court erred in instructing the jury that it could not consider sympathy in his sentencing. An instruction that does not inform the jury that it must completely disregard sympathy and that leaves the option to vote for or against the death penalty is a proper statement of law. The instruction that was provided to the jury was accurate. Issue 15: Cruel and unusual punishment Dycus argues that executing him would violate the Eighth Amendment prohibition against cruel and unusual punishment. He urges that his youth might exempt him from such a punishment. The United States Supreme Court has concluded that such punishment does not offend the Eighth Amendment's prohibition against cruel and unusual punishment. Issue 16: Findings by jury Dycus argues that the findings of the jury are invalid because of insufficient evidence. There was testimony at trial that Dycus wore pantyhose over his face to disguise his identity and rubber gloves to eliminate fingerprints and that the victim recognized the Dycus brothers and that they murdered her after this identification. These facts are sufficient to support a jury finding that Dycus murdered her to avoid detection and apprehension. Issue 17: Reference to victim’s characteristics Dycus argues that during opening statement and closing argument the State made highly inflammatory and irrelevant references to the victim. Not only did he fail to object, but evidence of the victim’s character is admissible if it is relevant to the crime and the relatively minor statements of the prosecution would not have resulted in prejudice so substantial that it influenced the outcome of the trial. Issue 18: Closing argument Dycus argues that the prosecution argued a matter outside the record and scope of the trial in his closing argument. Not only did he fail to object, but the minor statements of the prosecutor pale in light of the facts and evidence admitted at trial. Dycus also argues the prosecution impermissibly relied on religious authority in its closing argument. The prosecution used the incidental reference to the Bible to illustrate a point to the jury. The defense did the same thing. This is well within the boundaries of what is allowed in closing arguments. Dycus also argues that the prosecution committed misconduct by urging to the jury that their responsibility was to return a verdict of death; that an overt attempt was made to encourage the jury to disregard mitigating evidence; and that the prosecution misled the jury by implying that they shared a common mission. The prosecution was clearly attacking the mitigating evidence Dycus had offered in his defense, and there is no error. Issue 19: Prejudicial testimony Dycus argues that the prosecution introduced prejudicial and inadmissible testimony which allowed the jury to hear that he allegedly threatened the witness and called him names. When the judge sustains an objection to testimony and he directs the jury to disregard it, prejudicial error does not result. Here, the judge sustained the objection and admonished the jury to disregard the witness’s non-responsive statement. Issue 20: Incomplete record Dycus argues that he is entitled to a new trial because the record is incomplete. There are no errors or omissions in the record that would warrant a new trial. Issue 21: Proportionality of death penalty The sentence of death imposed upon Kelvin Dycus was not imposed under the influence of passion, prejudice, or any other factor. The evidence is more than sufficient to support the jury’s finding of statutory aggravating circumstances, and the sentence is not excessive or disproportionate to factually similar cases, despite the age of Dycus when the crime was committed. The mitigating circumstances did not outweigh the aggravating circumstances. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
