Birkhead v. State

57 So.3d 1223

Richard Earl BIRKHEAD

v.STATE of Mississippi.

No. 2007–KA–00666–SCT.

Supreme Court of Mississippi.

Feb. 17, 2011.

Office of Indigent Appeals by Leslie S. Lee, Jackson, Justin Taylor Cook, attorneys for appellant.Office of the Attorney General by Stephanie Breland Wood, attorney for appellee.EN BANC.

ON MOTION FOR REHEARING

RANDOLPH, JUSTICE, for the Court:

¶ 1. Richard Earl Birkhead's motion for rehearing is denied. The previous majority opinion of this Court is withdrawn and this opinion is substituted therefor.

¶ 2. On November 21, 2003, Birkhead was indicted for the capital murder of Walter Lanier while engaged in a robbery.¹

¶ 3. A four-day jury trial was conducted in the Circuit Court of Washington County. After the State rested, Birkhead moved for directed verdict, which the trial court denied. Birkhead did not testify and offered no witnesses. The jury found Birkhead guilty of capital murder. Birkhead then renewed his motion for directed verdict, or in the alternative, sought a new trial. The trial court denied his motion. Birkhead was sentenced as a habitual offender and was ordered to serve life without parole in the Mississippi Department of Corrections. Birkhead appeals from this judgment.

¶ 4. Birkhead presents the following issues for appeal:

I. Whether the trial court erred when it determined the defense had not established a prima facie case of discrimination in the State's selection of jury members and use of peremptory strikes.

II. Whether the trial court abused its discretion in allowing the death certificate into evidence when it showed a purported time of injury.

III. Whether Birkhead's constitutional right to confrontation was violated by the admission of the victim's death certificate into evidence.

IV. Whether the trial court erred in not dismissing a sleeping juror.

V. Whether the trial court erred in not declaring a mistrial after a witness's comment regarding Birkhead's exercise of his right to remain silent.

VI. Whether the trial court erred in giving Jury Instruction CR–12 regarding attorney's notes.

VII. Whether there was cumulative error which deprived Birkhead of his right to a fundamentally fair trial.

FACTS

¶ 5. On July 12, 2003, eighty-one-year-old Walter Lanier left Hamburg, Arkansas, between 3:00 and 4:00 p.m., to go to a gaming boat (casino) in Greenville, Mississippi. Surveillance tapes from the Jubilee Casino show the victim, Lanier, entering the casino at 9:00 p.m. on July 12, 2003, and exiting the same casino on July 13, 2003, at 2:17 a.m.

¶ 6. The State's first witness was Lanier's daughter. She testified that “[a]fter my mom passed away, ... I don't think [Lanier] liked staying in the house very much. A lot of times he would just sit in the car and drink his beer, smoke a cigarette, and listen to the radio. He did that a lot.” Inter alia, she further testified that Lanier had smoked Montclair-brand cigarettes and generally drank Budweiser beer.

¶ 7. Officer Jeffery Parsons, who was a patrolman with the Washington County Sheriff's Office, testified he heard on his scanner that there was a disturbance as the nightclub was closing at the Jubilee Casino. While Officer Parsons was driving through the parking lot of the casino, he noticed a gray Cadillac with a white male seated in the front seat and an African–American male seated in the back seat, which raised his suspicion. Momentarily, Officer Parsons was flagged down by an unknown female, who directed him back to the same Cadillac.

¶ 8. When Officer Parsons returned to the Cadillac, he saw the defendant exit the rear passenger door and walk rapidly toward the casino. Officer Parsons radioed an officer of the Greenville Police Department who was also in the parking lot, and advised that the defendant should be detained. Officer Parsons then exited his patrol car, pursuing and maintaining visual contact with the defendant. Officer Parsons testified the lighting was good and that no other people were walking in that area of the parking lot.

¶ 9. Officer Parsons trailed the defendant until he saw Officer Rod Shannon detain him. About five to six steps from where the defendant was detained, Officer Parsons found a knife. Officer Parsons did not touch the knife, but instead notified a supervising officer. Officer Parsons confirmed that the defendant was the same male whom he had seen exit the back seat of the Cadillac. The man identified himself as Richard Birkhead. A supervising officer collected Birkhead's red-stained shirt, along with the knife, which had blood on its blade, and gave them to Investigator Misty Litton as evidence.

¶ 10. After Birkhead was placed in the custody of the Greenville Police Department, Officer Parsons returned to the Cadillac. There, Officer Parsons found Greenville Police Department officers and paramedics from Delta Regional Medical Center (“DRMC”), who unsuccessfully tried to resuscitate the victim, later identified as Lanier, in the car. Lanier was transported to DRMC, where he was officially pronounced dead by Dr. Marilyn McLeod. Officer Parsons did not recall the time he arrived at the scene, nor did his report reflect a time.

¶ 11. Just outside Lanier's vehicle, investigators collected several Montclair-brand cigarette butts and one Star-brand cigarette butt, along with four empty Budweiser beer cans. From the back seat, investigators collected a small blue ice chest and a Budweiser twelve-pack carton containing eight unopened cans.

¶ 12. Officer Brian Payne testified that when he had arrived at Lanier's vehicle, in response to Officer Parsons's call, Officer Scott Stewart and Officer Jason Jenkins already were there. According to Officer Payne, there were no signs of forced entry into the car. Officer Stewart advised him that “the subject in the car was bleeding and is possibly deceased.” Officer Payne attempted to take Lanier's pulse and found none. Lanier exhibited no other signs of life. Nonetheless, Officer Payne began performing chest compressions on Lanier. He found the victim “warm to the touch[,]” with his blood not yet coagulated, i.e., “the blood had not started to clot....” Officer Payne observed that the blood was “still fresh,” and opined the stabbing had “happened within the last five to ten minutes.” ² Shortly after Officer Payne arrived, paramedics were on the scene. Officer Payne rode with the paramedics in the ambulance transporting Lanier to the hospital. Officer Payne testified that Dr. McLeod pronounced Lanier dead at the hospital.

¶ 13. Following Officer Payne's testimony, the State moved to have a certified copy of Lanier's death certificate admitted into evidence. When the death certificate was offered, the following exchange took place:

Court: Is there any objection?

Defense Counsel: Your Honor, may we approach?

Court: Yes.

(Conference at the Bench, out of the hearing of the jury).

Defense Counsel: On the report they have the hour of injury as being 3:38 a.m.[ ³] I don't know that they have established that. They have the hour of death as being 3:50 a.m. I don't think they have established that. We will object to it being introduced.

State Counsel: It's a state official record, Your honor, certified under the laws of the State of Mississippi.

Court: I will allow it.

Defense Counsel: I have a question. Is anybody coming to testify about that death certificate?

State Counsel: It's a certified copy. It's admissible under the rules.

Defense Counsel: Okay.[ ⁴]

¶ 14. Officer Stewart testified that he had received a dispatch call at “3:38 [a.m.] by paperwork.” When he arrived on the scene along with Officer Jenkins, he opened the passenger side door and unsuccessfully tried to rouse Lanier. He then checked the victim for movement, breathing, a pulse, or any other signs of life, and found none. Officer Stewart corroborated Officer Payne's testimony that Officer Payne had arrived shortly thereafter and had begun administering CPR on Lanier. Officer Stewart did not know what time Lanier died.

¶ 15. Greenville Police warrant officer Jimmy Myrick testified he had arrived on the scene at 3:38 a.m. Officer Myrick transported Birkhead to the Greenville police station. He observed no scratches or bruises on Birkhead or signs that Birkhead had been involved in any physical altercation. On the way to the station, Officer Myrick received a call from Officer Payne, who was at the hospital with Lanier, that Lanier had been pronounced dead. He was advised the time of death was 4:01 a.m., although Officer Myrick “could not advise as to whether it was possible that Lanier died before 4:01.”

¶ 16. At the Greenville police station, Officer Myrick found $29.09 of blood-splattered money on Birkhead. Officer Myrick called Investigator Litton and waited with the money at the booking counter for her to process it. After Officer Myrick, several other Greenville Police Department officers testified. One officer, Russell Frazier, testified to the presence of blood on Birkhead's blue jeans (which also were taken for evidence at booking).

¶ 17. Forensic DNA analyst Huma Nasir testified that the blood on the money found in Birkhead's pocket, on Birkhead's jeans, and on the knife belonged to the victim, Lanier. Nasir testified that Birkhead's DNA was on a washcloth found in Lanier's car and, based on a partial DNA profile, Birkhead's DNA also was on a baseball cap found in the car. Ken Gill, a latent fingerprint examiner, testified that Birkhead's fingerprints were found on the car's rear passenger door as well as on the silver strip above the door handle.

¶ 18. Lanier's autopsy revealed a bruise on his forehead and a stab wound to his chest. The pathologist testified that, while he could not determine Lanier's exact position at the time of the attack, the wound to the front of Lanier's body could have been made by a person seated in the back seat of the vehicle as Lanier sat in the front seat. The pathologist testified he did not determine a time of death, as...