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: 11-02-2017 Opinion Author: Coleman, J. Holding: Upon remand from the United States Supreme Court, affirmed. |
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| Additional Case Information: |
Topic: Death penalty direct appeal - Out-of-court identification - In-court identification - Expert tesimony - M.R.E. 702 - Admission of evidence - Gunshot residue test - M.R.E. 403 - Sufficiency of evidence - Closing argument - Jury selection - Peremptory challenges - Jury bias - Culpability-phase jury instructions - Burden of proof instruction - Circumstantial evidence instructions - Penalty-phase jury instructions - Presumption of life instruction - Aggravating circumstances instruction - Great risk of death to many persons aggravating factor - Armed robbery for pecuniary gain aggravating factor - Avoiding arrest aggravating factor - Double jeopardy - Due process rights - Multiple retrials - Single-count indictments - Section 99-7-2 - Sufficiency of indictments - Constitutionality of section 97-3-19(2)(e) - Victim impact testimony - Proportionality review - Section 99-19-105(3) - Supplemental motion Judge(s) Concurring: Randolph, P.J., Maxwell, Beam and Chamberlin, JJ. Dissenting Author : Waller, C.J. Dissent Joined By : Kitchens, P.J., and Ishee, J. Dissenting Author : King, J., with separate written opinion Dissent Joined By : Kitchens, P.J.; Waller, C.J., joins in part Procedural History: Reconsideration on Remand 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: HON. 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: BRAD A. SMITH, JASON L. DAVIS | ||
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 - Out-of-court identification - In-court identification - Expert tesimony - M.R.E. 702 - Admission of evidence - Gunshot residue test - M.R.E. 403 - Sufficiency of evidence - Closing argument - Jury selection - Peremptory challenges - Jury bias - Culpability-phase jury instructions - Burden of proof instruction - Circumstantial evidence instructions - Penalty-phase jury instructions - Presumption of life instruction - Aggravating circumstances instruction - Great risk of death to many persons aggravating factor - Armed robbery for pecuniary gain aggravating factor - Avoiding arrest aggravating factor - Double jeopardy - Due process rights - Multiple retrials - Single-count indictments - Section 99-7-2 - Sufficiency of indictments - Constitutionality of section 97-3-19(2)(e) - Victim impact testimony - Proportionality review - Section 99-19-105(3) - Supplemental motion |
| Summary of the Facts: | Curtis Flowers was indicted on four counts of capital murder with the underlying felony of armed robbery. Following his sixth trial, he was convicted on all four counts of capital murder and sentenced to death. His convictions and sentence were affirmed on appeal. Flowers filed a petition for a writ of certiorari with the United States Supreme Court. The U.S. Supreme Court granted Flowers’s petition for a writ of certiorari, vacated the Mississippi Supreme Court’s judgment and remanded the case to the Supreme Court for further consideration in light of Foster v. Chatman, 136 S. Ct. 1737 (2016). On remand, the Court afforded the parties an opportunity to submit supplemental briefs in light of Foster as directed by the Supreme Court. |
| Summary of Opinion Analysis: | Issue 1: Identifications Flowers argues that the trial court erred in admitting evidence of a witness’s out-of-court and in-court identifications of Flowers. The witness died in 2002, so his testimony from the 1999 trial was read to the jury. 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. 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 – three other men have complexions similar to Flowers’s complexion; Flowers appears to be the same age or only slightly older than the other men; two of the other men have hair styles similar to Flowers’s; and three of the other men have facial hair similar to his. Accordingly, Flowers fails to show that the lineup was unduly suggestive. Although Flowers does not claim that the witness’s in-court identification was tainted by the alleged suggestiveness of the out-of-court identification, that is the argument often made by defendants. Here, the witness’s out-of-court identification was not impermissibly suggestive; therefore, it could not give rise to the likelihood of an irreparable misidentification. Issue 2: Expert testimony Flowers argues that the trial court erred by excluding the testimony of two experts. Flowers tendered Johnson as an expert in criminal investigation procedures, but the trial court did not permit Johnson to testify. In Flowers’s fourth trial, he filed a motion to determine the admissibility of Dr. Neuschatz’s testimony on the reliability of eyewitness identification evidence. Flowers renewed the motion in the present case, and the trial court denied the motion. Under M.R.E. 702, the expert testimony must be both relevant and reliable to be admissible. With regard to Johnson, he 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. A review of the proffered testimony reveals that Johnson did articulate standards relating to some but not all of his opinions. Johnson did not articulate a standard for his opinion relating to the investigation’s early focus on Flowers as a suspect. And Johnson said that he was not familiar with the procedures used during a witness’s identification. Thus, the trial court did not err in excluding his testimony. Further, the trial court was correct that Johnson’s testimony was cumulative. Law enforcement officers who participated in the investigation were thoroughly questioned about the investigation and admitted that there were flaws in the investigation. With regard to Dr. Neuschatz, the trial judge, in exercising his considerable discretion, found that the defense did not present sufficient evidence in support of Dr. Neuschatz’s opinions. The trial judge did not abuse his discretion in concluding that the affidavit alone was insufficient to withstand the Daubert analysis and in denying Dr. Neuschatz’s testimony. Issue 3: Admission of evidence Flowers agreed to submit to a gunshot residue test. A single particle of gunshot residue was found on the back of Flowers’s right hand. At trial, Flowers moved to exclude the evidence concerning the gunshot residue, and the trial court denied the motion. 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 evidence was inadmissible under M.R.E. 403. Here, the forensic scientist 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. Flowers claims that the case is based on circumstantial evidence, not direct evidence. Flowers’s case, however, 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. A jailhouse informant’s testimony is considered direct evidence. Flowers also asserts that the State failed to prove motive, that the eyewitnesses were not credible, and that the physical evidence lacked probative value. Flowers is correct that the State did not provide direct evidence of any anger toward the Tardy Furniture employees, but the State did provide evidence that Flowers had lost his job at Tardy Furniture and had his paycheck reduced as a result of the damaged batteries. A reasonable juror could conclude from that evidence that Flowers had a motive to rob Tardy Furniture and kill four employees. Flowers also attacks the credibility of the witnesses and asserts that the $30,000 reward for information lured the witnesses to testify. The jury heard testimony related to the reward, and Flowers’s counsel argued during closing argument that investigators allegedly had tried to entice witness statements by offering the reward. The issue was within the jury’s province of determining credibility. Flowers claims that the physical evidence linking him to the murders lacks probative value. He argues that the bloody shoeprint found at the scene does not connect him to the crime, because another person could have come into the store after the murders and stepped on the bloody floor. His assertion lacks merit. The shoeprint was from a size ten-and-a-half Fila Grant Hill tennis shoe. Flowers wore a size ten-and-a-half shoe. A shoebox for size ten-and-a-half Fila Grant Hill tennis shoes was found in Flowers’s girlfriend’s home. Flowers contends that the gunshot residue particle found on his hand has no probative value, claiming that it could have come from another source. However, the forensic scientist testified that the gunshot residue found on Flowers’s hand could prove he had discharged a weapon; he had been in close proximity to a discharged weapon; or he had handled an object that had gunshot residue on it. One alternative was that Flowers actually fired a weapon. Thus, the evidence does have some probative value. When the evidence is viewed as a whole and in the light most favorable to the State, any rational trier of fact could have found that the State had 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 fairly 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 a witness’s testimony regarding the timeline of events on the morning of the murders. However, 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 also claims that a statement by the prosecutor about Flowers’s alleged motive was not based on facts in evidence, i.e., no evidence was presented to support the State’s theory that Flowers was angry about being fired. However, a reasonable inference could be drawn from the evidence that Flowers had ill will toward Tardy Furniture. Flowers also claims that the prosecutor misrepresented a witness’s response to the photo lineup that included another man’s photograph. The misrepresentation was prejudicial to Flowers’s defense, he claims, because his defense was based partially on the theory that the other man committed the murders. While the prosecutor’s statement was slightly inconsistent with the facts, the comment did not rise to the level of plain error. Flowers also claims that the prosecutor incorrectly described the location of the victims at the crime scene. However, Flowers does not claim that the prosecutor’s statement prejudiced him in any other way. 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 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. The Supreme Court in Foster reaffirmed the well-established, three step process for determining when a strike is discriminatory as set out in Batson. When a defendant challenges a peremptory strike under Batson, the defendant must first establish a prima facie case of discrimination in the selection of jury members. Then, the burden shifts to the State to demonstrate that the juror was struck for a nondiscriminatory, or race neutral, reason. The defendant then has the opportunity to rebut the State’s reason. The trial court must determine whether the race neutral reasons given by the State were credible or merely a pretext for discrimination. Foster did not alter the great deference given to trial judges but said that “determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial evidence of intent as may be available.” Here, at the point when five African Americans were struck by the State, the trial court found that a prima facie case of discrimination existed. The State then provided race neutral reasons for the five strikes, and Flowers’s counsel offered rebuttals for the State’s reasons. Ultimately, the trial court found that the State’s reasons were credible. Flowers’s counsel ensured that the trial court consider the totality of the circumstances, including historical evidence of racial discrimination by the district attorney. The trial court not only considered Flowers’s counsel’s argument in its consideration of the totality of the circumstances but also considered other circumstances showing that Evans did not have discriminatory intent. Flowers claims that the State asked potential African-American jurors more questions during individual voir dire than potential white jurors. Overall, the State did ask more questions of African-American jurors than of potential white jurors. However, 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. The State’s assertion that elaboration and followup questions were needed with more of the African-American jurors is supported by the record. 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. The jurors who had heard little about the case, who said they would not be influenced by what they had heard, and who said they would not be influenced by relationships were asked the fewest 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. Flowers also contends that the State responded differently to African-American jurors’ voir dire answers compared to the answers of white venire members, and mischaracterized the voir dire responses of African-American jurors. However, the State provided multiple race neutral reasons for the peremptory strikes against each of the five African Americans. The evidence indicates that the race neutral reasons were valid and not merely pretextual. Issue 7: Jury bias Flowers argues that the jury did not adequately deliberate because it was influenced by racial bias in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Flowers implies that African-American jurors either were afraid to serve as jurors or were afraid to find Flowers not guilty as a result of the alleged pervasive racial bias in Montgomery County. The jury deliberated for twenty-nine minutes during the guilt-or-innocence phase and for an hour and a half during the sentencing phase. Cases support that the time spent deliberating was adequate. Flowers takes several approaches to support his contention that he was denied the right to a fair trial because the jury was biased. However, his claims are all without merit. Issue 8: Culpability-phase instructions Flowers argues that the trial court erred in refusing three of his culpability-phase instructions. A defendant is entitled to have jury instructions which present his theory of the case, but 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 claims that the trial court erred in refusing instruction D-6 because he was entitled to an instruction on the burden of proof. The trial court refused the instruction, finding that it was repetitive of instruction S-1, which stated that the State must prove all of the elements of the crimes beyond a reasonable doubt. Because the instructions are repetitive, the trial court did not err in denying D-6. Instructions D-7 and D-8 were circumstantial-evidence instructions. Flowers recognizes that Mississippi caselaw allows trial courts to refuse circumstantial-evidence instructions in cases in which direct evidence of the crime is presented, which includes testimony from a jailhouse informant. Flowers, however, claims that jailhouse informant testimony should not serve as a basis for refusing a circumstantial-evidence instruction when the informant’s credibility is questionable. While the informant’s credibility in this case is questionable, he was cross-examined extensively at trial, and the trial court instructed the jury “that the law looks with suspicion and distrust on the testimony of a jailhouse informant, and requires the jury to weigh the same with great care and suspicion.” The jury was instructed adequately regarding the informant’s testimony. Issue 9: Penalty-phase instructions Flowers argues that the trial court erred in denying several of his penalty phase jury instructions and in allowing the State’s aggravating-circumstances instruction. Flowers contends that the trial court erred in refusing instruction D-4, which was a “presumption of life” instruction. The Court consistently has 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. The Court has 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 agree unanimously 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. And the trial court instructed the jury that it could reach three possible outcomes in the penalty phase: death, life without parole, or being unable to agree unanimously on a punishment. Flowers claims that the trial court erred by refusing instructions on the jury’s ability to consider mercy. Instruction D-38 is clearly a mercy instruction, and the Court has recognized that such instructions are not required and may be given at the discretion of the trial court. Flowers asserts 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 claims 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. 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 claims that the trial court erred by instructing the jury that it could consider 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. Whether the avoiding arrest aggravator is constitutional has been addressed several times, and the Court has consistently held that it is not overly broad. Here, it could be reasonably inferred that Flowers attempted to conceal his identity, disposed of evidence, or tried to cover his tracks. The evidence is sufficient to support the avoiding-arrest instruction. Issue 10: Double jeopardy Flowers argues that his six trials for the Tardy Furniture murders violate his due process rights and the Double Jeopardy Clause. 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. Flowers’s due process claim is an attempt to supplement the protections of the Double Jeopardy Clause. Because the double jeopardy protections have not been violated, Flowers cannot assert a due process claim on the same grounds. Issue 11: 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 multicount indictment. Section 99-7-2 includes permissive language allowing – but not requiring – the trial court to proceed under a multicount indictment. Flowers was charged with four counts of capital murder with the underlying felony of armed robbery. Because proceeding under single-count indictments is permitted, the issue is without merit. Issue 12: Sufficiency of indictments Flowers argues 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. Issue 13: Constitutionality of section 97-3-19(2)(e) Flowers argues that section 97-3-19(2)(e) is unconstitutional because it allows for an “arbitrary and capricious” application of the death penalty, since cases of deliberate design and depraved heart murder are not death penalty eligible when felony murder is death penalty eligible. The Court has previously held that the death penalty in Mississippi does not violate the U.S. Constitution. Issue 14: Victim impact testimony During the penalty phase, four witnesses provided 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 United States Supreme Court has held that there is no per se bar to victim-impact testimony. This testimony is admissible at the sentencing phase, but not in the culpability phase. On several occasions, the Court has permitted victim-impact testimony that described the impact of the victim’s death on his or her family. Here, the victim-impact testimony is the type that is permissible. Issue 15: Proportionality review 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. Therefore, this issue is without merit. Issue 16: Supplemental motion 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. Approximately four months prior to the start of Flowers’s sixth trial, a federal grand jury indicted the witness for tax fraud. Because the issue was not presented to the trial court, it is not proper on appeal. |
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