Flowers v. State
| Docket Number: | 2010-DP-01348-SCT Linked Case(s): 2010-DP-01348-SCT ; 2010-DP-01348-SCT ; 2010-DP-01348-SCT ; 2010-DP-01348-SCT ; 2010-DP-01348-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 11-13-2014 Opinion Author: Coleman, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Death penalty direct appeal - Identifications - Expert testimony - M.R.E. 702 - Exclusion of evidence - M.R.E. 403 - Sufficiency of evidence - Closing argument - Jury selection process - Peremptory challenges - Jury bias - Culpability phase instructions - Circumstantial evidence instructions - Penalty phase instructions - Presumption of life instruction - Mercy instruction - Aggravating factors - “Great risk” aggravator - Avoiding arrest aggravator - Double jeopardy - Due process - Single-count indictments - Section 99-7-2 - Constitutionality of death penalty - Section 97-3-19(2)(e) - Victim-impact testimony - Death sentence - Section 99-19-105(3) - Motion for remand Judge(s) Concurring: Waller, C.J., Randolph, P.J., Lamar, Chandler and Pierce, JJ. Dissenting Author : Dickinson, P.J., With Separate Written Opinion Dissent Joined By : Kitchens and King, JJ. Dissenting Author : King, J., With Separate Written Opinion Dissent Joined By : Dickinson, P.J., and Kitchens, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - DEATH PENALTY - DIRECT APPEAL |
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| Trial Court: |
Date of Trial Judgment: 06-19-2010 Appealed from: MONTGOMERY COUNTY CIRCUIT COURT Judge: JOSEPH H. LOPER, JR. Disposition: Convicted on all four counts of capital murder and sentenced to death. District Attorney: Doug Evans Case Number: 2003-0071-CR |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Curtis Giovanni Flowers a/k/a Curtis Flowers a/k/a Curtis G. Flowers |
OFFICE OF STATE PUBLIC DEFENDER: ALISON R. STEINER, SHERI LYNN JOHNSON, KEIR M. WEYBLE |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: MELANIE DOTSON THOMAS | ||
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: | Death penalty direct appeal - Identifications - Expert testimony - M.R.E. 702 - Exclusion of evidence - M.R.E. 403 - Sufficiency of evidence - Closing argument - Jury selection process - Peremptory challenges - Jury bias - Culpability phase instructions - Circumstantial evidence instructions - Penalty phase instructions - Presumption of life instruction - Mercy instruction - Aggravating factors - “Great risk” aggravator - Avoiding arrest aggravator - Double jeopardy - Due process - Single-count indictments - Section 99-7-2 - Constitutionality of death penalty - Section 97-3-19(2)(e) - Victim-impact testimony - Death sentence - Section 99-19-105(3) - Motion for remand |
| Summary of the Facts: | Curtis Flowers was convicted of four counts of capital murder and sentenced to death. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Identifications Flowers argues that the trial court erred in admitting evidence of Porky Collins’s out-of-court and in-court identifications of Flowers. For an out-of-court or in- court identification to be excluded, it must be the result of an impermissibly suggestive lineup and the identification must be unreliable. Flowers claims that the out-of-court photo lineup was unduly suggestive, because his head was larger than the others and the other men had lighter complexions, were younger than him, and had varying hairstyles and facial features. A lineup or series of photographs is impermissibly suggestive if the accused, when compared with the others, is conspicuously singled out in some manner from the others, either from appearance or statements by an officer. Minor differences with the suspects or differences in the photograph backgrounds will not render a lineup impermissibly suggestive. In the photo array that included Flowers’s photograph, Flowers’s head is slightly larger than the others, as it appears his photo was taken from a closer angle than the others. However, the use of a different photographic technique creates only a minor difference, and that is not enough to render the photo lineup impermissibly suggestive. The other characteristics Flowers claims caused the array to be suggestive are not present. Thus, the trial court did not err in admitting Collins’s out-of-court identification. Although Flowers argues that Collins’s in-court identification was “constitutionally unreliable,” he provides no substantive argument or support for that claim. Issue 2: Expert testimony Flowers argues that the trial court erred by excluding the testimony of two experts – Robert Johnson and Dr. Jeffrey Neuschatz. To be admissible under M.R.E. 702, the expert testimony must be both relevant and reliable. Flowers attempted to call Robert Johnson as an expert in criminal investigation procedures. Johnson would have testified that the criminal investigation was flawed in various ways. The trial court found that “there is no valid way of testing the field of police investigatory techniques” and that the testimony was cumulative because the law enforcement officers who already had testified at trial were thoroughly cross-examined and had admitted that there were flaws in the investigation. Here, Johnson certainly is qualified through his knowledge, experience, and training in the field of criminal investigations. Further, there is no question that Johnson’s testimony is relevant. Johnson’s testimony addressed facts relating to the criminal investigation that eventually led to Flowers’s arrest. The critical inquiry, however, is whether Johnson’s testimony is reliable. The trial court focused on the inability to test Johnson’s theories as a basis for excluding the testimony. Whether the expert’s theory can be tested is one factor to be considered under Daubert, but it is not conclusive. While reliance on the testing factor alone would have been error, the trial court cited other reasons for excluding the testimony. The trial court also found that, although Johnson testified that the investigation fell below generally accepted standards and practices in law enforcement, Johnson did not sufficiently articulate the standards. The proffered testimony shows that Johnson did articulate standards relating to some, but not all, of his opinions. Thus, the trial court did not err in excluding his testimony. Further, the trial court was correct that Johnson’s testimony was cumulative. With regard to Dr. Neuschatz, Dr. Neuschatz’s affidavit essentially provided two opinions: that Collins’s identification of Flowers could have been affected by a number of different circumstances and that the identification procedure was flawed. The trial court applied the Daubert factors and held that Dr. Neuschatz’s theories were not generally accepted and that he did not provide information about the rate of error or the principles and methods used. Dr. Neuschatz’s affidavit cited several tests that support his theory that exposure time, appearance change/disguise, and post-identification feedback may affect eyewitness identifications. However, he did not submit documentation of the tests. Regarding peer review and publication, Dr. Neuschatz’s affidavit stated that he has “published several articles in peer reviewed journals, written peer invited chapters, and presented [his] research findings at regional and national conferences.” Again, however, he did not provide the articles. Dr. Neuschatz’s affidavit did not mention anything relevant to the known or potential rate of error of the applied theory and the existence of standards and controls. Thus, the court did not abuse its discretion in denying Dr. Neuschatz’s testimony. Issue 3: Exclusion of evidence Flowers argues that the trial court erred in admitting evidence that a particle of gunshot residue was found on his hand approximately three hours after the murders were reported, because the prejudicial effect outweighed its probative value under M.R.E. 403. The witness in this case testified that the presence of gunshot residue could result from three scenarios, and his testimony was clear that the residue did not unequivocally prove that Flowers had fired a gun. Because his testimony was clearly explained, there is little risk that the jury was confused or misled by the testimony. As such, the testimony was admissible under Rule 403. Issue 4: Sufficiency of evidence Flowers argues that the evidence produced at trial was insufficient to support the verdict. Although Flowers claims that the case is based on circumstantial evidence, not direct evidence, this is not a case of circumstantial evidence. If an eyewitness is produced or a statement from the defendant is admitted, the case is not circumstantial. Further, a defendant’s admission of culpability to a third party who is not a law enforcement officer constitutes direct evidence of a crime. Here, a jailhouse informant testified that Flowers had told him that he had committed the murders. Thus, there is direct evidence. The State provided evidence that Flowers had lost his job at Tardy Furniture and had his paycheck reduced as a result of batteries that were damaged when he improperly loaded them. A reasonable juror could conclude from that evidence that Flowers had a motive to rob Tardy Furniture and kill four employees. Flowers also claims that testimony from people who saw him on the morning of the murders is not credible because the witnesses’ testimony contains “irreconcilable differences.” Inconsistency in witness testimony is an issue of credibility for the jury. In addition, numerous witnesses saw Flowers walking to and from Tardy Furniture on the morning of the murders. The shoeprint found at the crime scene matched Flowers’s shoe size and matched a pair of shoes he had been seen wearing. Flowers tested positive for gunshot residue. The only paperwork that had been disturbed at Tardy Furniture was Flowers’s paycheck and timecard. Cash was found hidden in Flowers’s headboard after the murders. And, the informant testified that Flowers confessed to committing the murders. From this evidence, any rational trier of fact could have found that the State proved the essential elements of capital murder beyond a reasonable doubt. Issue 5: Closing argument Flowers argues that the prosecution improperly argued facts not in evidence during its culpability phase closing argument. During closing arguments, attorneys may sum up the evidence, comment on facts in evidence, and draw whatever deductions and inferences seem proper from the facts. Even if a prosecutor’s statements during closing arguments are inconsistent with the facts, reversal is not warranted if the statements do not rise to the level necessary to endanger the impartial administration of justice and the fairness of the trial. Flowers claims that, during closing argument, the State misrepresented Sam Jones’s testimony regarding the timeline of events on the morning of the murders. Defense counsel’s summary of the timeline in closing and the reasonable inference that could be drawn from the evidence as a whole preclude a finding of plain error on the issue. Flowers claims that no evidence was presented to support the State’s theory that Flowers was angry about being fired. However, the State identified several facts that supported the contention that Flowers was angry. Thus, the State’s comment during closing did not rise to the level of plain error. Flowers also claims that the prosecutor misrepresented Porky Collins’s response to the photo lineup that included Doyle Simpson’s photograph. While the State’s statement that Collins said “the guy ain’t there” was not an accurate representation of Collins’s response to the first photo array, the reality is that Collins did not identify Simpson. He said he could not be sure. The prosecutor’s statement was slightly inconsistent with the facts but did not rise to the level of plain error. Flowers claims that the prosecutor incorrectly described the location of the victims at the crime scene. While the statement may have been an error, it did not result in a manifest miscarriage of justice or an unfair trial. Issue 6: Jury selection process Flowers argues that the State exercised its peremptory strikes in a racially discriminatory way by striking five African-American venire members after employing disparate questioning and citing pretextual reasons for the strikes. Flowers claims that the questioning of African-American and white jurors was so “starkly different” that the questioning lead to purposeful discrimination. While disparate questioning is evidence of purposeful discrimination, evidence of disparate questioning, alone, is not dispositive of racial discrimination. Flowers claims that the State did not question white venire members about their relationships with defense witnesses even though African-American jurors were extensively questioned about similar relationships. Most of the followup questions pertained to the potential juror’s knowledge of the case, whether they could impose the death penalty, and whether certain relationships would influence their decision or prevent them from being fair and impartial. Those issues are appropriate for followup questions. Flowers was given ample opportunity to question jurors, rehabilitate jurors, and make challenges. That he had these opportunities is evidence of a fair and proper jury selection process. There is no evidence of discrimination based on the number of questions asked alone. One juror was struck because she knew multiple defense witnesses, she had been sued by Tardy Furniture, and she had worked with Flowers’ father. Thus, the State had multiple, credible race-neutral reasons for striking the juror. Another juror knew several members of the Flowers family and she was uncomfortable serving on the jury. That reason alone is a sufficient race-neutral reason to strike her. With regard to another juror, her late arrival and her attitude toward jury service, evidencing a lack of concern about or commitment to the proceedings, are two race-neutral reasons for a peremptory strike. Another juror’s seeming dishonesty about her relationship with Flowers’ sister, her doubt about whether she could impose the death penalty, and her inconsistent statements about the death penalty are all race-neutral reasons for a peremptory strike. Because a juror’s views on the death penalty and hesitation about serving as a juror are race neutral reasons for peremptory challenges, the court did not err in denying a Batson challenge with regard to a juror who said that her reservations about judging another person would affect her ability to serve as a juror. Issue 7: Jury bias Flowers argues that the jury did not adequately deliberate because it was influenced by racial bias. The jury deliberated for twenty-nine minutes during the guilt-or-innocence phase and for an hour and a half during the sentencing phase. While there is no formula to determine how long a jury should deliberate, the time spent deliberating in this case was adequate. Flowers also argues that he was denied the right to a fair trial because the jury was biased. Flowers claims that excessive law enforcement presence caused bias in the venire. Considering the notoriety of the crimes in the case, a large number of law enforcement personnel would be expected. Flowers’s claim that the jury interrupted a mitigation witness is not supported by the record. There is no indication that the jury interrupted the witness when the jury’s meal arrived, and Flowers’s counsel encouraged the recess. Flowers asserts that a majority of the jurors empaneled were acquainted with Flowers, acquainted with the victims, or had formed opinions related to the case prior to trial. However, if jurors indicated that they could not be fair and impartial, they were properly struck. Flowers’s claim that the trial court erred by denying several of his challenges for cause fails. The potential jurors that Flowers challenged for cause were not selected to serve as jurors, and Flowers did not exercise all of his peremptory challenges. Flowers’s claim that a pervasive bias existed throughout the community conflicts with his suggestion that another venire should have been empaneled. If the bias was in fact pervasive, another venire from the same community likely would contain the same bias. Issue 8: Culpability phase instructions Flowers argues that the trial court erred in refusing three of his culpability phase instructions. While a defendant is entitled to have jury instructions which present his theory of the case, the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence. Flowers’ instruction D-6 was properly refused because it was repetitive of another instruction. Instructions D-7 and D-8 were circumstantial evidence instructions. Circumstantial evidence instructions are properly refused in cases in which direct evidence of the crime is presented, which includes testimony from a jailhouse informant. Here, the jury was adequately instructed regarding the informant’s testimony, and the trial court did not err by refusing the circumstantial evidence instructions. Issue 9: Penalty phase instructions Flowers argues that the trial court erred in denying several of his penalty phase jury instructions. Instruction D-4 was a “presumption of life” instruction. The Supreme Court has consistently refused to find error when a trial court denies presumption of life instructions. Flowers claims that the trial court erred by refusing to grant two instructions related to aggravating circumstances and circumstantial evidence. However, the Court has previously held that a trial court did not abuse its discretion in refusing to grant circumstantial evidence instructions at the penalty phase. Flowers claims that the trial court should have granted Instruction D-34 because the jury did not receive guidance on what would happen if the jurors could not unanimously agree on a punishment. The Court has reviewed almost identical instructions in previous cases and found that the trial court did not err in refusing the proffered instructions. Flowers claims that the trial court erred by refusing instructions on the jury’s ability to consider mercy. Mercy instructions are not required and may be given at the discretion of the trial court. Thus, the trial court did not err in refusing the instruction. Issue 10: Aggravating factors Flowers argues that the trial court erred by allowing the jury to consider the aggravating factor of “great risk of death to many persons.” The “great risk” aggravator is appropriate when there are multiple victims of a single crime. Because Flowers shot four victims in the same room, the evidence was sufficient to warrant the instruction. Flowers argues that the trial court erred by instructing the jury to consider the aggravating factor of armed robbery for pecuniary gain because the instruction essentially combined two aggravating factors. Listing armed robbery and pecuniary gain as separate aggravating circumstances could be unconstitutional in some factual circumstances. However, when pecuniary gain and armed robbery are used within the same factor, the concern of the jury “doubly weighing” the aggravating factors is not present. As such, the issue is without merit. Flowers argues that the trial court erred by instructing the jury that the capital offense occurred for the purpose of avoiding or preventing arrest as an aggravating factor, because the evidence presented at trial was insufficient to support the instruction. The factor is appropriate where the accused purposefully killed the victim of the underlying felony to avoid or prevent arrest for that felony. From the evidence, it could be reasonably inferred that Flowers attempted to conceal his identity, disposed of evidence, or tried to cover his tracks. Thus, the evidence is sufficient to support the avoiding arrest instruction. Issue 11: Double jeopardy Flowers argues that his six trials for the Tardy Furniture murders violate his due process rights and the Double Jeopardy Clause. Flowers’s first and second trials resulted in convictions and death sentences that subsequently were overturned by the Court for various instances of prosecutorial misconduct. At his third trial, Flowers was again convicted and sentenced to death, but the Court reversed and remanded for a new trial for a Batson violation. At Flowers’s fourth and fifth trials, the jury was unable to reach a unanimous decision, and the trials resulted in mistrials. The Double Jeopardy Clause does not bar reprosecution when a conviction has been set aside on appeal. Also, jeopardy does not attach when a criminal case ends by the jury failing to reach a unanimous verdict. Flowers has not been acquitted, his convictions have not been upheld on appeal, and he has not received multiple punishments. Therefore, the Double Jeopardy Clause has not been implicated. Flowers also claims that continued trials, despite the reversals in his first three direct appeals on the bases of prosecutorial misconduct, violate his due process rights. Other courts have held that multiple retrials do not violate a defendant’s due process rights when implications of double jeopardy are not at issue. Because the double jeopardy protections have not been violated, Flowers cannot assert a due process claim on the same grounds. Issue 12: Single-count indictments Flowers argues that it was error for him to be tried for all four murders at a single trial when there were four single-count indictments rather than a multi-count indictment. Flowers claims that section 99-7-2 requires that he should have been charged under a multi-count indictment and/or that the trial court should have entered an order consolidating the matters. Section 99-7-2 does not include either of the alleged requirements; rather, it includes permissive language allowing – but not requiring – the trial court to proceed under a multi-count indictment. Flowers also claims that the trial court erred by not entering an order consolidating the matters and/or obtaining a waiver from Flowers “to be tried on only a single count indictment.” Because proceeding under single-count indictments is permitted, the issue is without merit. Flowers claims that his indictments were constitutionally insufficient because they failed to list the aggravating factors and/or the mens rea requirement. Because Flowers’s indictments provided him with notice and a reasonable description of the charges against him so that he may prepare his defense, the issue is without merit. Flowers claims that section 97-3-19(2)(e) is unconstitutional because it allows for an “arbitrary and capricious” application of the death penalty. However, the Court has previously held that the death penalty in Mississippi does not violate the U.S. Constitution. Issue 13: Victim-impact testimony Flowers argues that the trial court erred in permitting victim-impact testimony during the penalty phase because the testimony did not relate to the statutory aggravating factors. The Court has permitted victim-impact testimony that described the impact of the victim’s death on his or her family. The victim-impact testimony in this case was of this type and properly admitted. Issue 14: Death sentence Section 99-19-105(3) requires the Court to determine “[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” The Court consistently has upheld the death penalty in cases involving capital murders committed during the commission of a robbery and in cases involving multiple victims. Thus, this issue is without merit. Issue 15: Motion for remand Flowers filed a motion for remand and leave to file supplemental motion for new trial on the basis that the State failed to disclose information relating to the credibility of one of its witnesses. Because the issue was not presented to the trial court, it is not proper on appeal. |
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