Thompson v. State

269 So.3d 301

Dennis THOMPSON a/k/a Nucy a/k/a Ray Ray a/k/a Dennis Ray Thompson, Appellant

v.STATE of Mississippi, APPELLEE

NO. 2015–KA–00748–COA

Court of Appeals of Mississippi.

April 10, 2018

Rehearing Denied August 7, 2018

DANIEL CHRISTOPHER JONES, ATTORNEY FOR APPELLANT

OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLINTON, ATTORNEY FOR APPELLEE

EN BANC.

GREENLEE, J., FOR THE COURT:

¶ 1. Dennis Thompson appeals his conviction for murder; finding no reversible error, we affirm.

¶ 2. On December 8, 2009, Thompson was indicted for one count of conspiracy to commit robbery and one count of capital murder. On February 24, 2014, a jury trial commenced in the Circuit Court of Coahoma County. During trial, Thompson requested that the jury be instructed to consider simple murder in the event they found him not guilty of conspiracy to commit robbery. On the morning of February 27, 2014, the jury retired to deliberate. Following deliberations, the jury unanimously found Thompson not guilty for conspiracy to commit robbery. However, the jury was unable to reach a verdict regarding capital murder. While the jury was unanimous that Thompson was not guilty of the underlying felony of robbery, the jury was deadlocked on the lesser-included offense of murder, for which it was instructed to consider per Thompson's request. After ascertaining that the jury was hopelessly deadlocked, the trial court ordered a mistrial on count two and held that Thompson's retrial be limited to the lesser-included offense of murder.

¶ 3. Thompson's retrial commenced on July 29, 2014. After deliberating, the jury unanimously found Thompson guilty of murder. Thompson now appeals, asserting the weight and sufficiency of the evidence do not support his conviction; the trial court erred by admitting unreliable witness testimony; his retrial violated his protection against double jeopardy; and his indictment for capital murder was insufficient for the purpose of retrying him for murder.

FACTS AND PROCEDURAL HISTORY

¶ 4. On December 8, 2009, a Coahoma grand jury indicted Thompson for count one, conspiracy to commit robbery in violation of Mississippi Code Annotated section 97–3–73 (Rev. 2006), and count two, capital murder in violation of Mississippi Code Annotated section 97–3–19(2)(e) (Rev. 2006). During his first trial, Thompson requested that, "if the [c]ourt rules on behalf of [Thompson] that conspiracy has not been established by the State, then [he] would move that Count II, as far as capital murder, be downgraded to simple murder. Because the underlying felony is conspiracy to commit robbery." The jury was accordingly instructed that in the event they found Thompson not guilty of capital murder, they were to consider simple murder.

¶ 5. The jury found Thompson not guilty on count one, conspiracy to conspiracy to commit robbery. However, the jury was unable to reach an agreement on count two, capital murder. Although the jury was unanimous that Thompson was not guilty of the underlying felony of robbery, the jury was deadlocked on the lesser-included offense of murder. The trial court ordered a mistrial and held that the State "not be permitted to retry the [D]efendant on a charge of capital murder, but will be limited to the charge of murder."

¶ 6. On July 29, 2014, Thompson's retrial for the lesser-included offense of murder commenced. Shemeka Palmer was the State's first witness. Palmer testified that on November 30, 2008, she was visiting Clarksdale for work and had reserved a hotel room at the Comfort Inn. She stated that on that evening, Carlos Buford, with whom she was a childhood friend, was driving to meet her at the hotel. Palmer said Buford called her at approximately 7:00 or 8:00 p.m. from a Double Quick store in Clarksdale to ask her for directions to the hotel, but he never arrived at the hotel.

¶ 7. Next, Stephen Poer, a former Clarksdale Police Department patrolmen testified. Poer testified that while he was on duty on November 30, 2008, he was called to investigate a person sitting in a parked car near the Hicks Motel. Poer said that he arrived at the scene sometime between 8:00 and 9:00 p.m. and that upon his arrival, he found the body of a deceased man, later identified as Buford, sitting in the driver's seat. Buford's head was against the headrest of the seat, and blood was coming from the back of his head. The driver's door was open, and the engine was still running. Poer testified he secured the scene without disturbing any evidence.

¶ 8. Captain Ulyda Johnson of the Clarksdale Police Department was the next State's witness to testify. Captain Johnson stated that in November 2008, she was a detective with the Clarksdale Police Department and was the chief investigator in Buford's case. She said that on November 30, 2008, at approximately 9:20 p.m., she responded to a dispatcher call in the area near the Hicks Motel. When she arrived, Captain Johnson said she saw Buford's body in the driver's seat of a parked vehicle. She photographed the scene and accompanied the Coahoma County Coroner to the morgue to photograph Buford's body. While at the morgue, the coroner gave Captain Johnson a phone number collected off Buford's body. Captain Johnson called the number and discovered it belonged to Palmer. She then met Palmer at the Comfort Inn, where Palmer was staying. Captain Johnson obtained a statement from Palmer and was headed back to the office when she received a call from an informant. The informant provided the names of several people: Isaiah Johnson, Eddie Johnson, and Cheesy Hollins. Isaiah, Eddie, and Cheesy gave Captain Johnson statements and information about a person of interest, Danny Starks. Cheesy provided a recorded phone call, from which Captain Johnson developed two suspects: David McLymont and Thompson. Captain Johnson also brought Starks in for questioning and asked him to look at two photo lineups she had prepared. Starks viewed the lineups and identified McLymont and Thompson as people he recognized. Under McLymont's photo, Starks wrote "front seat," and under Thompson's, he wrote "this is the guy I saw with the gun." As a result, warrants were issued for both McLymont and Thompson. Both men were arrested, and their fingerprints were sent to the crime lab.

¶ 9. Several experts testified for the State. Dr. Feng Li, an expert physician in the field of anatomical, clinical, and forensic pathology, testified that he performed Buford's autopsy and recovered a bullet from Buford's head. Dr. Li stated that Buford died of a penetrative gunshot wound to the head. Kristopher Wingert, an expert crime scene analyst with the Mississippi Bureau of Investigation, processed the finger prints and contents of the vehicle. Wingert stated that a copper jacket¹ was found on the floorboards of Buford's car. Starks Hathcock, an expert forensic scientist specializing in firearms identification and examination, identified the copper jacket as bearing similar characteristics to a .40–caliber bullet. Hathcock also analyzed the bullet recovered from Buford's brain and determined it bore similar characteristics to a .38–caliber bullet. Mike Hood, an expert forensic scientist specializing in latent fingerprints, testified that McLymont's fingerprints were found on the front passenger's door of Buford's car.

¶ 10. Derrick Noah, a Coahoma County Jail inmate, also testified for the State. Noah testified that he was acquainted with Thompson prior to his imprisonment and had the opportunity to speak to Thompson while they were both housed in the Coahoma County Jail. Noah stated that in one conversation, Thompson told him he was in jail because of a gun he bought from a mutual acquaintance. Noah recalled that the gun Thompson bought from the acquaintance was a .38–caliber revolver. Noah said that in another conversation, Thompson told him that he, McLymont, and Starks were at a Double Quick and came across a man wearing a chain-link necklace with a medallion. Thompson told Noah he wanted the medallion and started talking to the man, who allegedly asked about purchasing some marijuana. Thompson responded that they could get the marijuana, but they needed a ride from the Hicks Motel to get it. Thompson, McLymont, and Starks got into the man's car. Thompson sat in the rear passenger seat, McLymont was in the front passenger seat, and Starks was seated behind the man. According to Thompson, as McLymont got out of the car, he reached for the man's necklace, and the man shot McLymont in the leg with a .40–caliber gun. Thompson told Noah that after the man shot McLymont, he shot the man in the back of the head. Thompson also told Noah that he was wearing gloves so as to not leave fingerprints at the scene. Thompson said that he hid in the bushes behind the Hicks Motel "until the coast was clear."

¶ 11. Following these conversations with Thompson, Noah wrote the district attorney's office. Noah said he decided to share the information with the State because Thompson had threatened him and his family.

¶ 12. Starks was the State's last witness. Starks testified that he met Thompson and McLymont (Thompson's cousin), while he was living in Clarksdale. He stated that on the evening of November 30, 2008, McLymont and Thompson met him at his house, and the three of them left to walk to a club together. On the way to the club, they came across a Double Quick. Thompson went into the store while Starks and McLymont waited outside. Thompson engaged in a conversation with another man (later determined to be Buford) inside the store. Starks said he heard Thompson ask Buford about a ride. Starks testified that he, Thompson, and McLymont got in Buford's car, and that as they were driving by the Hicks Motel, McLymont, who was seated in the front passenger seat, began wrestling with Buford. Starks said he was seated in the backseat, behind Buford, and Thompson was seated next to him. Starks stated that a shot rang off, and then he saw Thompson reach for his leg, pull out a...