The Mississippi Supreme Court has overturned a death sentence for
Kristi Fulgham and ordered a new sentencing hearing for her 2003
murder conviction. The court issued a decision yesterday finding that
the trial court erred by preventing a social worker from testifying
about Fulgham's background as mitigation evidence.
An Oktibbeha County jury found Fulgham guilty of capital murder for
the killing of her husband, Joey Fulgham, in May 2003. Prosecutors
argued that Fulgham robbed and murdered her husband to take advantage
of his life-insurance policy.
The Supreme Court's decision found no errors in Fulgham's underlying
conviction but stated that the trial court improperly barred Fulgham's
defense lawyers from presenting social worker Adrienne Dorsey-Kidd's
testimony.
"In the sentencing phase of a capital murder trial, the stakes are
life and death," Justice Ann Lamar wrote in the court's opinion. "A
defendant is permitted to introduce virtually any relevant and
reliable evidence touching upon the defendant's background and
character, or the crime itself, which is offered as a basis to
persuade a jury to return a sentence of less than death. We caution
prosecutors and trial judges about limiting mitigation evidence
offered by a defendant when it is presented fairly, and is relevant to
the defendant's character, background, or the circumstances
surrounding the crime."
Fulgham's lawyers sought to use Dorsey-Kidd as an expert witness.
Dorsey-Kidd would have testified that her review of Fulgham's social
history had found that Fulgham lacked bonds with her parents and was
exposed to substance abuse by both her mother and two stepfathers,
defense attorneys argued.
Prosecutors argued that Dorsey-Kidd was not equipped to make judgments
about Fulgham's psychology. The trial judge excluded the social
worker's testimony on the grounds that it did not go beyond what a
layperson might know.
"We find the trial court abused its discretion in refusing to allow
Dorsey-Kidd to testify to her opinions and observations after
accepting her as an expert in the field of social work, and we are
unable to say that such an error did not affect the jury's ultimate
decision," Lamar wrote in the Supreme Court decision.
Fulgham's half-brother, Tyler Edmonds, was also originally convicted
of Joey Fulgham's murder. In 2007, the Supreme Court overturned his
conviction, throwing out the testimony of former medical examiner Dr.
Steven Hayne. During Edmonds' original trial, Hayne had testified that
wounds in Joey Fulgham's body suggested that two pairs of hands held
the gun that killed him. Edmonds was 13 at the time of the murder.
The Supreme Court ordered a new trial for Edmonds, and, in 2008, a new
jury acquitted him.
On Wednesday, a decision by the U.S. Fifth Circuit Court of Appeals
also kept another Mississippi prisoner off death row. The appeals
court upheld a ruling in the Northern District Court of Mississippi
that found William Wiley mentally retarded and thus ineligible for the
death penalty. Wiley was convicted and sentenced to death for the 1981
shooting death of store owner J.B. Turner in DeSoto County.
Supreme Court of
Mississippi
FULGHAM v. STATE
46
So.3d 315 (2010)
Kristi Leigh FULGHAM v. STATE of Mississippi.
No. 2007-DP-01312-SCT.
October 28, 2010.
Office of Capital Defense Counsel by James
Lappan, attorney for appellant.
Office of the Attorney General by Jason L. Davis, Marvin L. White,
Jr., Jackson, attorneys for appellee.
EN BANC.
LAMAR, Justice, for the Court:
¶ 1. Kristi Fulgham was convicted of capital
murder1 and sentenced to death for killing her husband, Joey Fulgham.2
Fulgham claims numerous errors at the guilt and sentencing phases of
her trial. We find merit in one assignment of error: The trial court
committed reversible error by limiting mitigation evidence.
Specifically, the court erred by refusing to allow social worker
Adrienne Dorsey-Kidd to testify to her observations as mitigating
evidence at the sentencing phase. So we affirm Fulgham's conviction of
capital murder and reverse her sentence of death and remand for a new
sentencing hearing.
FACTS
¶ 2. Kristi and Joey Fulgham married in 1991
and lived in the Starkville area. They had two children, Tyler and
Darian Fulgham. Both children lived with them, along with Hayley,
Fulgham's daughter by another man.
¶ 3. Approximately a year and a half prior to
Joey's death, Fulgham and her children moved out of the marital home
and began living with Fulgham's boyfriend, Kyle Harvey. However, by
May 2003, Fulgham had moved back in with Joey, and the two were
working on their marriage.3 On Sunday, May 11, 2003, Joey's body was
discovered with a fatal gunshot wound to the head. Under the State's
theory, Fulgham killed her husband for insurance proceeds and robbed
him of his wallet (and its contents) and a computer's central
processing unit (CPU).
¶ 4. Shannon Fulgham, Joey's brother,
testified that he had worked with Joey at a car dealership, and they
were paid every Friday around lunch time. Shannon stated that on May
9, 2003, Joey had cashed his paycheck for approximately $1,020 and had
placed the money in his wallet. He further testified that he and Joey
had planned to attend an air show on Saturday, May 10, 2003, but that
Joey did not answer Shannon's phone calls when he called around 11:00
a.m. or 11:30 a.m. Shannon also testified that he had stopped by Joey
and Kristi Fulgham's home around 12:00 p.m. or 12:30 p.m. and that
Joey had not answered the door. When Shannon did not hear from his
brother by Sunday afternoon, he cut the screen on Joey's living room
window and entered the home at
[ 46 So.3d 321 ]
approximately 5:30 p.m. He
found Joey lying face down in bed and called 911.
¶ 5. Kyle Harvey met Kristi Fulgham in 2002,
and she and her three children began living with him in Jackson in
March 2002. Kyle testified that Fulgham later moved back into her home
with Joey. Kyle stated that Fulgham had planned to live with Joey
until she found a new home, and that she would come to Jackson to look
at homes for sale in the area. Kyle testified that Fulgham had told
him that she was going to inherit $300,000 from her grandmother.
¶ 6. Kyle stated that he and Fulgham had
planned a trip to the Mississippi Gulf Coast for Mother's Day weekend,
May 9-11, 2003. Fulgham had told Kyle that she would pay for the trip,
even though she was unemployed at the time. Kyle stated that Fulgham
had picked up her brother, Tyler Edmonds, on Friday night, and she had
called Kyle at 6:30 a.m. on Saturday morning (May 10) and informed him
that she was on her way to Jackson. Fulgham, her three children, and
Tyler Edmonds were waiting at Kyle's apartment when he arrived home
from work on Saturday morning at approximately 10:30 or 11:00 a.m.
Kyle stated that they had proceeded to the Coast, and that Fulgham had
a large amount of cash on her person. Kyle also testified that Fulgham
had paid in cash for souvenirs, food, and their hotel room at the Beau
Rivage Hotel. They spent Saturday night on the Coast and returned to
Jackson at approximately 5 p.m. on Sunday.
¶ 7. David Noel, Joey's stepfather, testified
that Tyler and Darian Fulgham routinely had spent Friday nights with
him. David testified that he had picked up Tyler and Darian between 4
p.m. and 4:30 p.m. on Friday, May 9, 2003. David stated that Fulgham,
her three children, and Tyler Edmonds were home at the time. Fulgham
informed him that she would pick up Tyler and Darian early the next
morning because she was taking the children to the Coast. David
testified that Fulgham called him between 4:30 a.m. and 5:00 a.m.
Saturday morning and arrived after 5 a.m. to pick up the boys.
¶ 8. Robert Elmore, chief investigator for the
Oktibbeha County Sheriff's Department, received a call to process the
homicide scene at the Fulgham home. He found Joey lying face down with
a gunshot wound to the head. Robert searched the home for evidence but
did not find any shell casings or Joey's wallet. He also stated that
the carpet in the living room was faintly outlined in the shape of a
CPU.
¶ 9. Robert
testified that the house had security lights around the perimeter but
that four light bulbs had been unscrewed, which prevented them from
automatically turning on. Jason Pressley, who in 2003 worked for the
Mississippi Crime Laboratory, conducted a latent-print examination on
the light bulbs and found Kristi Fulgham's print on one of them.
Pressley testified that he would not expect to find a well-developed
print on a light bulb that had been on for an extended period of time,
evidencing that the light bulbs had been recently unscrewed.
¶ 10. Dr. Steven Hayne testified that he had
performed an autopsy on Joey. He stated that an entrance gunshot wound
was located at the back of Joey's head, and that he had extracted a
small-caliber lead bullet consistent with a .22 caliber projectile.
Dr. Hayne stated that Joey had died from the gunshot wound. He also
testified that Joey's death had occurred approximately thirty-six to
forty-eight hours prior to discovery of the body.
¶ 11. Randy Simpson, Tyler Edmonds's first
cousin, testified that he had gone to Tyler Edmonds's house almost
daily. He
[ 46 So.3d 322 ]
stated that two .22 caliber
weapons had been in Tyler Edmonds's house prior to Joey's death, but
that the older .22 was currently missing. Randy testified that the .22
was a single-shot, bolt-action, and that Tyler Edmonds was not strong
enough to pull back the firing mechanism.
¶ 12. Danny Edmonds, Kristi Fulgham's
biological father, testified that she had asked him for a gun about a
week or two prior to Joey's death. He stated that Fulgham had told him
that she "wanted Joey dead. That he [Joey] was mean to her and her
kids." Danny also stated that Fulgham had told him, "I want him dead,
and that he has a life insurance policy, and. . . the kids would get
$300,000, and I would get $200,000." He testified that Fulgham had
offered to buy him a Cadillac if he "would keep his mouth shut."
¶ 13. Scotty Carrithers testified that he had
met Joey in the National Guard and that in 2003, he had handled
life-insurance records for the National Guard unit in Ackerman. Scotty
stated that Joey had two life insurance policies. The first policy was
worth $55,000, and Kristi Fulgham was the named beneficiary. The
second policy was worth $255,000, and Kristi Fulgham was initially the
named beneficiary, but Joey had changed the beneficiary from Kristi to
his mother. Scotty stated that about a month prior to Joey's death,
Fulgham had called him inquiring about the amount of Joey's life
insurance. Scotty informed her that Joey had signed a privacy
statement and that he could not release that information to her.
¶ 14. The jury found Fulgham guilty of killing
her husband while engaged in the commission of a robbery. At the
sentencing phase, the jury found unanimously beyond a reasonable doubt
that Kristi Fulgham had intended that the killing of Joey Fulgham take
place and had contemplated that lethal force would be employed. The
jury further found beyond a reasonable doubt the existence of two
aggravators: (1) the capital murder was committed for pecuniary gain;
and (2) the capital murder was committed during the commission of a
robbery. Lastly, the jury unanimously found that the mitigating
evidence did not outweigh the aggravating evidence, and that Fulgham
should suffer the penalty of death.
DISCUSSION
¶ 15. For ease of discussion, we have
reordered the issues raised by Fulgham in her appellate brief. Where
two issues are interrelated, we have combined them. And because we
reverse for a new sentencing hearing, we decline to address those
penalty-phase issues that now are moot on appeal and not likely to
reoccur on resentencing.
Standard of Review
¶ 16. Fulgham's conviction rests upon
circumstantial evidence. In a case based on circumstantial evidence,
"[i]t is fundamental that convictions of crime cannot be sustained on
proof which amounts to no more than a possibility or even when it
amounts to a probability, but it must rise to the height which will
exclude every reasonable doubt[.]"4 Further, this Court applies
heightened scrutiny to capital-murder convictions where a sentence of
death has been imposed.5 We repeatedly have ruled that "`[w]hat may be
harmless error in a case with less at stake [may become] reversible
error when the penalty is death.'"6
[ 46 So.3d 323 ]
Guilt Phase
I. Whether the trial court erred in
refusing Fulgham's unanimity instruction D-48.
¶ 17. This Court has ruled that "`[t]he trial
court enjoys considerable discretion regarding the form and substance
of jury instructions.'"7 "`In determining whether error lies in the
granting or refusal of various instructions, the instructions actually
given must be read as a whole. When so read, if the instructions
fairly announce the law of the case and create no injustice, no
reversible error will be found.'"8 In order to show that the trial
court abused its discretion in refusing to grant an instruction, the
defendant must show "that his requested instruction was (1) a correct
statement of the law, (2) not substantially covered in the jury
charges as a whole, and (3) of such importance that the court's
failure to instruct the jury on that issue seriously impaired the
defendant's ability to present his given defense."9
¶ 18. Instruction D-48 reads:
For you to find Kristi Fulgham guilty of
capital murder, you must also agree, unanimously and beyond a
reasonable doubt, that Ms. Fulgham robbed Joey Fulgham of the same
item. If all twelve of you do not agree on the same criminal act which
supports the State's allegation of robbery, you must find Kristi
Fulgham not guilty of capital murder.
¶ 19. Fulgham argues that the underlying
felony of robbery is a specific-intent crime, and that the jury should
have been instructed that it must agree unanimously on which item was
taken. Fulgham argues that the trial court's failure to grant
instruction D-48 violated her state and federal constitutional right
to a unanimous verdict, because she claims the State argued that
Fulgham took Joey's wallet, the CPU, and the life-insurance proceeds.
¶ 20. Fulgham also argues that the State
created a situation in which certain members of the jury could have
found that Fulgham had robbed Joey of his wallet while other jurors
could have found that she had taken the CPU. Finally, Fulgham argues
that a conviction based on the missing CPU is against the overwhelming
weight of the evidence, as there is no evidence that the CPU was
present in the house on Friday night or that it was appropriated by
criminal means.
¶ 21.
Contrary to her arguments, a review of the record does not show an
argument by the State that Fulgham had robbed Joey of life insurance
proceeds. The State argued that Fulgham had a desire for money and
that the life insurance proceeds served as a motive for the murder.
But the State did argue that Fulgham had robbed Joey of his wallet
(and its contents) and/or the CPU.
¶ 22. To obtain a conviction for robbery, the
State must prove beyond a reasonable doubt that the defendant: (1)
feloniously took (2) the personal property of another (3) in his
presence or from his person and (4) against his will, (5) by violence
to his person or by putting such person in fear of
[ 46 So.3d 324 ]
some immediate injury to
his person.10 At issue is whether the court should have granted a
specific unanimity instruction relative to element two (as embodied in
D-48), because the State argued alternative theories of what personal
property was taken.
¶
23. We begin our analysis of this issue by recognizing that criminal
defendants in state courts do not have a federal constitutional right
to a unanimous verdict by a twelve-member jury.11 But Article 3,
Section 31 of the Mississippi Constitution12 has been interpreted to
provide criminal defendants the right to a unanimous jury verdict of
twelve impartial jurors.13 Even so, we do not believe that this right
was violated under the facts of this case (as will be explained
below). Furthermore, we look to the U.S. Supreme Court's precedent in
interpreting our state constitution.
¶ 24. In Schad v. Arizona,14 the defendant
appealed his conviction of first-degree murder15 where the prosecution
had argued, and the trial court had instructed on, two theories of
liability: premeditated murder and felony murder.16 On appeal, the
Supreme Court framed the issue as "whether it was constitutionally
acceptable to permit the jurors to reach one verdict based on any
combination of the alternative findings."17 In its analysis, the Court
stated:
We have never
suggested that in returning general verdicts in such cases, the jurors
should be required to agree upon a single means of commission, any
more than the indictments were required to specify one alone. In these
cases, as in litigation generally, "different jurors may be persuaded
by different pieces of evidence, even when they agree upon the bottom
line. Plainly there is no general requirement that the jury reach
agreement on the preliminary factual issues which underlie the
verdict."18
The Court
held that premeditation and felony murder were alternative means of
proving first-degree murder, and that such an option "did not fall
beyond the constitutional bounds of fundamental fairness and
[ 46 So.3d 325 ]
rationality."19
¶ 25. In Griffin v. United States,20 the Court
considered whether either its precedent or the Due Process Clause of
the Fifth Amendment required that a general guilty verdict on a
multiple-object conspiracy be set aside if the evidence was inadequate
to support a conviction as to one of the objects.21 The Court began
its analysis with the common-law rule that "a general jury verdict was
valid so long as it was legally supportable on one of the submitted
grounds — even though it gave no assurance that a valid ground, rather
than an invalid one, was actually the basis for the jury's action."22
The Court concluded that this rule applied to a "variety of contexts"
including "a general jury verdict under a single count charging the
commission of an offense by two or more means."23
¶ 26. The Court did find that reversal was
warranted where the jury was presented with alternative legal
theories, one of which was legal error, but not where the jury was
presented with alternative factual theories and one was factually
inadequate.24 The Court explained its holding with the following
analysis:
Jurors are
not generally equipped to determine whether a particular theory of
conviction submitted to them is contrary to law — whether, for
example, the action in question is protected by the Constitution, is
time barred, or fails to come within the statutory definition of the
crime. When, therefore, jurors have been left the option of relying
upon a legally inadequate theory, there is no reason to think their
own intelligence and expertise will save them from that error. Quite
the opposite is true, however, when they have been left the option of
relying upon a factually inadequate theory, since jurors are well
equipped to analyze the evidence . . . As the Seventh Circuit put it:
It is one thing to negate a verdict that,
while supported by the evidence, may have been based on an erroneous
view of the law; it is another to do so merely on the chance — remote,
it seems to us — that the jury convicted on a ground that was not
supported by adequate evidence when there existed alternative grounds
for which the evidence was sufficient.25
¶ 27. And in Richardson v. United States,26
the defendant appealed his conviction under a federal criminal statute
that prohibited a person from "engaging in a continuing criminal
enterprise."27 The statute defined "continuing criminal enterprise" as
"part of a continuing series of violations."28 On appeal, the Court
examined "whether a jury has to agree unanimously about which specific
violations make up the `continuing series of violations.'"29 The Court
held that a jury must agree unanimously about the specific violations,
since the phrase "series of violations"
[ 46 So.3d 326 ]
constituted several
elements.30 In reaching its holding, the Court distinguished the case
before it from a juror disagreement over the means:
The question before us arises because a
federal jury need not always decide unanimously which of several
possible sets of underlying brute facts make up a particular element,
say, which of several possible means the defendant used to commit an
element of the crime. . . . Where, for example, an element of robbery
is force or the threat of force, some jurors might conclude that the
defendant used a knife to create the threat; others might conclude he
used a gun. But that disagreement — a disagreement about the means —
would not matter as long as all 12 jurors unanimously concluded that
the Government had proved the necessary related element, namely, that
the defendant had threatened force.31
¶ 28. Here, the jury was properly instructed
that one of the elements of robbery is taking, stealing, and carrying
away some "personal property of another."32 The facts necessary to
prove this element can be shown by alternative fact patterns, but
still lead to the conclusion that there was but one offense — that of
robbery. We are satisfied that this jury was perfectly capable of
sifting through the evidence presented and was able to discard any
factually insufficient theories. We find that there was sufficient
evidence to support the taking of the wallet and its contents. By its
verdict, twelve jurors unanimously agreed that Fulgham had robbed Joey
of personal property. If we were to accept Fulgham's position as
embodied in instruction D-48, it could lead to an absurd result. For
example, while all twelve jurors might agree that Fulgham had killed
Joey and had stolen some of his personal property, acquittal would be
required if six believed she had stolen his money and the other six
believed she had stolen the CPU. We find this argument to be without
merit.
II. Whether
the trial court erred in overruling Fulgham's objection to the
relevance of Vanessa Davis's testimony.
¶ 29. Fulgham argues that the trial court
erred in permitting the State to present evidence of a romantic
relationship between Fulgham and her brother, Tyler Edmonds. However,
we find that Fulgham failed to object contemporaneously.33 Fulgham
objected after Vanessa Davis already had answered the State's
questions regarding Fulgham's alleged romantic relationship with her
brother.
¶ 30.
Procedural bar notwithstanding, we address the merits of this claim.
We review the admission or exclusion of evidence under an
abuse-of-discretion standard.34 And we find the trial court did not
abuse its discretion in allowing the testimony. We find that this
testimony was at least marginally relevant to explain the relationship
between Fulgham and her brother and the controlling influence that
[ 46 So.3d 327 ]
Fulgham exerted over him.
This issue has no merit.
III. Whether the trial court erred in
overruling hearsay objections concerning Fulgham's purported desire to
shoot a dog.
¶
31. Fulgham argues that the trial court erred in allowing the jury to
hear testimony relating to her alleged statement that she wanted to
shoot a stray dog and her requests for a gun to shoot it. Over
Fulgham's hearsay objection, Davis testified that about a month prior
to Joey's death, Fulgham had complained about a stray dog and had
asked Davis for her grandmother's gun to shoot it. Fulgham further
objected when the State asked Davis how many times Fulgham had
requested the gun, and Davis responded "three times." Fulgham argues
that these statements constituted inadmissible hearsay, and if
admissible, that their probative value was outweighed by their
prejudicial effect.
¶
32. Under Mississippi Rule of Evidence 801, hearsay is a "statement,
other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter
asserted."35 Fulgham's statement that she wanted to shoot a dog is not
hearsay because it was not offered for the truth of the matter
asserted.36 Additionally, Fulgham's statements that she wanted a gun
are admissible as admissions by a party opponent under Mississippi
Rule of Evidence 801(d)(2)(A). This issue has no merit.
IV. Whether the trial court erred in
overruling a hearsay objection concerning Fulgham's purported
declaration that her marriage was over.
¶ 33. Fulgham argues that the trial court
erred in allowing the State's questioning of Davis about Fulgham's
relationship with Joey. Davis testified that Fulgham and Joey "were
supposed to be getting back together and working things out[,]" and
the State then asked Davis, "Okay. But what did Kristi Fulgham tell
you?" Fulgham objected on the basis of hearsay, and the trial court
overruled the objection. Davis then responded "That, you know, she was
— it wasn't going to work out, basically."
¶ 34. Fulgham admits that her alleged
statement to Davis is relevant to the determination of whether she
killed her husband, but she then argues erroneously that it
constitutes inadmissible hearsay. This testimony was excepted from the
prohibition of hearsay, since it was a "statement by the accused,
direct or implied, of facts pertinent to the issue, and tending, in
connection with other facts, to prove [her] guilt."37 This statement
was an admission by a party opponent and not subject to the hearsay
rule.38
V. Whether
the trial court erred in refusing jury instructions D-13B and D-20.
¶ 35. Fulgham argues that the trial court
erred in refusing to grant her "two-theory instructions" (D-13B and
D-20) when it did grant a circumstantial-evidence instruction. We find
that Goff v. State39 is dispositive of this issue. In Goff,
[ 46 So.3d 328 ]
this Court held that it is
not reversible error to refuse a two-theory instruction in a case
based purely on circumstantial evidence if the court grants a general
circumstantial-evidence instruction.40
VI. Whether the trial court erred in refusing
jury instruction D-54A.
¶ 36. Fulgham argues that the trial court
erred in refusing jury instruction D-54A, which reads:
The court instructs the jury that it is the
duty of each and every juror on the panel to make up his own verdict
for himself, and to be governed by his own judgment and conscience
alone after conferring with his fellow jurors. If any single juror on
this panel, after conferring with his fellow jurors, is not satisfied
by the evidence to a moral certainty of the guilt of the defendant,
then it is the sworn duty of the said juror to vote not guilty, and
never to yield his judgment but firmly stand by it so long as he is
not satisfied beyond a reasonable doubt of the defendant's guilt even
though every other juror on the panel disagree with him.
The trial court denied the instruction as
being repetitive and without foundation in the law. We find the jury
was properly instructed that the State had the burden to prove its
case beyond a reasonable doubt and to the exclusion of every
reasonable hypothesis consistent with innocence. Further, when all
instructions are read as a whole, we agree that proposed instruction
D-54A is repetitious of instruction C-11, which reads:
The verdict of the jury must represent the
considered judgment of each juror. In order to return a verdict it
will be necessary that each juror agree thereto. In other words, all
twelve jurors must agree on a verdict in this case. It is your duty as
jurors to consult with one another and to deliberate in view of
reaching an agreement if you can do so without violence to your
individual judgment. Each of you must decide the case for yourself,
but do so only after an impartial consideration of the evidence with
your fellow jurors. In the course of your deliberations do not
hesitate to re-examine your own views and change your opinion if
convinced that it is erroneous, but do not surrender your honest
convictions as to the weight or effect of evidence solely because of
the opinion of your fellow jurors or for the mere purpose of returning
a verdict.
We find
that the trial court did not err in excluding D-54A as being
repetitive of instructions already granted.
VII. Whether the trial court erred in
granting jury instruction S-5.
¶ 37. Fulgham argues that the trial court
erred in granting jury instruction S-5, which defined the statutory
phrase "while engaged in the commission of" to include "the actions of
Defendant leading up to the robbery, the actual robbery and/or the
flight from the scene of the robbery." Fulgham argues that this
instruction confused the jury regarding the State's alternative
theories and further distorted the unanimity requirement.
¶ 38. However, we find this issue to be a
proper instruction pursuant to this Court's recent ruling in Goff v.
State, in which we held:
. . . "the intent to rob, which is required to
prove the underlying felony of robbery, can be shown from the facts
surrounding the crime." Walker v. State, 913 So.2d 198, 224
(Miss.2005) (quoting Lynch v. State, 877 So.2d 1254, 1266
(Miss.2004)). Mississippi recognizes the
[ 46 So.3d 329 ]
"one continuous transaction
rationale" in capital cases. West v. State, 553 So.2d 8, 13
(Miss.1989). We have construed our capital murder statute and held
that "the underlying crime begins where an indictable attempt is
reached. . . ." Pickle v. State, 345 So.2d 623, 626 (Miss. 1977). "An
indictment charging a killing occurring `while engaged in the
commission of' one of the enumerated felonies includes the actions of
the defendant leading up to the felony, the attempted felony, and
flight from the scene of the felony." Turner v. State, 732 So.2d 937,
950 (Miss.1999) (quoting West, 553 So.2d at 13).41
Therefore, the trial court did not abuse its
discretion in granting instruction S-5.
VIII. Whether the trial court erred in
refusing jury instruction D-13.
¶ 39. Jury instruction D-13 reads:
Each fact which is essential to complete a set
of circumstances necessary to establish the defendant's guilt must be
proved beyond a reasonable doubt. In other words, before an inference
essential to establish guilt may be found to have been proven beyond a
reasonable doubt, each fact or circumstance on which the inference
necessarily rests must be proved beyond a reasonable doubt.
Fulgham argues that the trial court erred in
refusing instruction D-13, because the jury was never advised that
"stacked" inferences in a circumstantial case must be supported by
facts proven beyond a reasonable doubt. The trial court refused this
instruction as being repetitive of Instruction S-2B. Instruction S-2B
instructed the jury as follows:
The Court instructs the jury that if you find
from the evidence in this case beyond a reasonable doubt and to the
exclusion of every reasonable hypothesis consistant [sic] with
innocence, that on or about May 10, 2003, the Defendant, Kristi
Fulgham, acting alone or with another, did, unlawfully, willfully,
feloniously, with or without the design to effect death, kill Joey
Fulgham, a human being, without authority of law and not in necessary
self defense, while engaged in the commission of the crime of Robbery,
then you shall find the Defendant guilty as charged of capital murder.
If the State has failed to prove any one or
more of these elements, then you shall find the Defendant not guilty
of capital murder and proceed in your deliberations to consider the
lesser included charge of murder.
S-2B instructs the jury that each element of
the crime must be proven beyond a reasonable doubt and to the
exclusion of every reasonable hypothesis consistent with innocence. We
find this instruction was adequate to guard against the jury
convicting Fulgham based on "stacked" inferences. Therefore, the trial
court did not err in refusing proposed instruction D-13 as being
repetitious.
IX.
Whether the trial court erred in granting instruction S-3B and in
refusing instruction D-51.
¶ 40. Fulgham argues that the trial court
should have refused the State's instruction, S-3B, an instruction on
the lesser offense of murder. It instructed the jurors to consider the
lesser offense of murder only if they first unanimously found the
defendant not guilty of capital murder. S-3B reads:
The Court instructs the Jury that if you
unanimously find that the State has failed to prove all the elements
of the
[ 46 So.3d 330 ]
crime of Capital Murder,
you may then proceed in your deliberations to consider the lesser
charge of Murder. However, it is your duty to accept the law given to
you by the Court; and if the facts and the law warrant a conviction of
the crime of Capital Murder, then it is your duty to make such a
finding, and not be influenced by your power to find a lesser offense.
This provision is not designed to relieve you from the performance of
an unpleasant duty. It is included to prevent a failure of justice if
the evidence fails to prove the original charge but does justify a
verdict for the lesser crime.
Therefore, if you believe from the evidence in
this case beyond a reasonable doubt and to the exclusion of every
reasonable hypothesis consistent with innocence that the Defendant,
Kristi Fulgham, acting alone or with another, did on or about May 10,
2003, unlawfully, willfully, and feloniously, of her malice
aforethought, kill and murder Joey Fulgham, a human being, without
authority of law and not in necessary self defense, then you shall
find the Defendant guilty of the lesser included offense of Murder.
Rather than granting S-3B, Fulgham argues the
court should have granted instruction D-51, which reads:
I have instructed you now on the crimes of
capital murder and murder.
These are distinct crimes.
I instruct you that, if warranted by the
evidence, you may find the defendant guilty of a crime lesser than
capital murder. However, not withstanding this right, it is your duty
to accept the law as given to you by the Court, and if the facts and
law warrant a conviction of the crime of capital murder, then it is
your duty to make such a finding uninfluenced by your power to find a
lesser offense. This provision is included to prevent a failure of
justice if the evidence fails to prove the original charge of capital
murder but does justify a verdict for the lesser crime of murder.
We previously have considered the State's
"acquit-first" instruction and have found that it is not prohibited by
the law of this State.42 In Gray v. State, we ruled:
This Court has considered such "acquit-first"
instructions before. There is nothing in Mississippi jurisprudence
that prohibits such an instruction. Carr [v. State], 655 So.2d [824]
at 848 [(Miss. 1995)]. Jury "(. . . instructions should be read in
their entirety to determine if there was error)." Walker [v. State],
671 So.2d [581] at 608 [(Miss.1995)] (quoting Chase [v. State], 645
So.2d [829] at 852 [(Miss.1994)]). Gray's claim that the instruction
coerces jurors into convicting of capital murder even though they may
believe him guilty only of simple murder is unfounded. This Court has
held that such a result is not required or warranted from this
instruction. Chase, 645 So.2d at 852.43
The trial court did not abuse its discretion
in granting instruction S-3B and refusing instruction D-51.
X. Whether the trial court erred in
refusing jury instruction D-18.
¶ 41. Jury instruction D-18 reads: "Guilt by
association is neither a recognized nor tolerable concept in our
criminal law." Fulgham argues that the trial court should have granted
this instruction, as "the State tethered Ms. Fulgham to Tyler
Edmonds." However, in reviewing
[ 46 So.3d 331 ]
the instructions as a
whole, we find that the trial court did grant instruction D-9A, which
provides in relevant part that "[t]he defendant is not on trial for
any act, conduct, or offense not alleged in the indictment [;] neither
are you to be concerned with the guilt of any other person not on
trial as a defendant in this case." We find the trial court adequately
addressed Fulgham's concerns by granting instruction D-9A. Therefore,
the trial court did not abuse its discretion in refusing to grant
D-18, as it was repetitive of D-9A.
XI. Whether the trial court erred in refusing
to grant jury instruction D-22.
¶ 42. Fulgham requested that the trial court
instruct the jury that:
Each person testifying in this case is a
witness. You, individually, must determine the believability of the
witnesses. I instruct you that you may consider the following factors
in weighing the testimony of a witness:
1. the intelligence of the witness;
2. the ability of the witness to observe and
accurately remember;
3. the sincerity, or lack of sincerity, of a witness;
4. the demeanor of the witness;
5. the extent to which the testimony of the
witness is supported or contradicted by other evidence;
6. whether discrepancies in testimony are the
result of innocent mistake or deliberate falsehood; and
7. any other characteristics noted by you.
I instruct you that you may reject or accept
all or any part of the testimony of a witness; or you may reject
parts, but accept other parts of the testimony of a witness.
After making your own judgment, give the
testimony of each witness the credibility, if any, you think it
deserves.
This
instruction is taken almost verbatim from Chatman v. State.44 In
Chatman, this Court ruled that Mississippi law supports such an
instruction, and that "under certain circumstances the defendant may
be entitled to [this] more specific instruction[.]"45 But we found
that the trial judge did not abuse his discretion in refusing to grant
the instruction, since another instruction properly informed the jury
"of the things it should consider when weighing witness testimony."46
¶ 43. In this case, the jury was instructed by
instruction C.01 that:
It is your duty to determine the facts and to
determine them from the evidence produced in open court. You are to
apply the law to the facts and in this way decide the case. You should
not be influenced by bias, sympathy, or prejudice. Your verdict should
be based on the evidence and not upon speculation, guesswork, or
conjecture.
You are
the sole judges of the facts in this case. Your exclusive province is
to determine what weight and what credibility will be assigned the
testimony and supporting evidence of each witness in this case. You
are required and expected to use your good common sense and sound
honest judgment in considering and weighing the testimony of each
witness who has testified in this case.
We find the jury was properly instructed under
C.01 "of the things it should consider
[ 46 So.3d 332 ]
when weighing witness
testimony."47 While a specific instruction may have been more helpful,
we find that the lower court did not abuse its discretion in refusing
instruction D-22, as the jury was adequately instructed on this issue
when all instructions are viewed as a whole. And we cannot say that
the instruction was of "such importance that the court's failure to
instruct the jury on that issue seriously impaired the defendant's
ability to present his given defense."48
XII. Whether the trial court erred in refusing
jury instructions D-14 and D-15.
¶ 44. Instruction D-14 reads:
In your deliberations, you are bound to give
Kristi Fulgham the benefit of any reasonable doubt of her guilt that
arises out of the evidence or want of evidence in this case. There is
always a reasonable doubt of a defendant's guilt when the evidence
simply makes it probable that the defendant is guilty. Mere
probability of guilt will never warrant you to convict Kristi Fulgham.
It is only when on the whole evidence you are able to say on your
oaths, beyond a reasonable doubt, that the defendant is guilty that
the law will permit you to find her guilty. You might be able to say
you believe Kristi Fulgham guilty and yet, if you are not able to say
on your oath, beyond a reasonable doubt, that she is guilty, it is
your sworn duty to find Kristi Fulgham not guilty.
¶ 45. And instruction D-15 reads:
A reasonable doubt may arise not only from the
evidence produced but also from a lack of evidence. Reasonable doubt
exists when, after weighing and considering all the evidence, using
reason and common sense, jurors cannot say that they have a settled
conviction of the truth of the charge.
¶ 46. These instructions are attempts to
define "reasonable doubt." "This Court has long held that a definition
of reasonable doubt is not a proper instruction for the jury;
`[r]easonable doubt defines itself.'"49 We find the trial court did
not abuse its discretion in denying these two instructions.
XIII. Whether the trial court erred in
transferring venue to Union County.
¶ 47. Fulgham filed a motion to change venue
based on the pervasive media attention to her trial and the trial of
her codefendant, Tyler Edmonds.50 In her motion, Fulgham asserted that
the court should transfer venue to a county with at least the same
population of black citizens as Oktibbeha County. She further argued
that the counties adjoining Oktibbeha County were tainted as a result
of the media coverage by the Starkville, Columbus, and Tupelo media
outlets. She requested that the trial court transfer venue to Attala,
Grenada, Madison, or Warren County.
¶ 48. After a hearing on the motion to
transfer venue, at which the State asserted that it had no objection
to a change of venue outside Oktibbeha County, the court granted the
motion. But it reserved ruling on a particular county until
"suitability
[ 46 So.3d 333 ]
and availability" were
determined. Thereafter, the trial court ordered that the jury should
be drawn from Union County, and Fulgham filed an objection to this
county. In her objection, Fulgham argued that the Tupelo media
provides Union County with news coverage, and therefore, the transfer
did not remedy the taint. She further argued that the racial
demographics of Union County were not comparable to Oktibbeha
County.51
¶ 49. The
court held a hearing on Fulgham's objection to transfer venue to Union
County, and she presented no argument but stood on her written
motions. The State argued that Fulgham had no right to change venue to
a county of similar racial demographics, and that there is no
requirement that a court transfer out of the original media market.
The trial court ruled that race was not at issue in the case, and that
it failed to see the relevance of racial demographics. The trial court
further ruled that there was no reason to believe that the citizens of
Union County would not apply the law as instructed. The court also
noted that it had checked with three other counties for availability
prior to contacting Union County, and it overruled Fulgham's
objection.
¶ 50. On
appeal, Fulgham argues that the trial court erred in refusing to
transfer venue to another county, and such error deprived her of the
right to a fair and impartial jury which represented a cross-section
of the Oktibbeha County community. "This Court reviews a trial court's
decision to grant or deny a change of venue for abuse of
discretion."52 Further, "the accused has a right to a change of venue
when it is doubtful that an impartial jury can be obtained; such doubt
is implicit when there is present strong public sentiment against the
defendant[.]"53
¶ 51.
We find the trial court did not abuse its discretion in denying
Fulgham's objection to transferring the case to Union County. Only
eleven jurors of the venire responded that they had heard or seen
pretrial publicity related to Fulgham's and/or Tyler Edmonds's trial.
None of these potential jurors was seated on the jury. Therefore,
Fulgham's argument that she failed to receive a fair and impartial
trial has no merit.
¶
52. We further find that Simon v. State is dispositive of Fulgham's
argument regarding her right to change venue to a county of similar
demographics.54 In Simon, the trial court granted the defendant's
motion to change venue based on widespread publicity in Quitman
County.55 However, the defendant objected to the trial court's
transfer of venue to Jones County, because twenty-one percent of the
registered voters in Jones County were African-American compared to
fifty-four percent in Quitman County.56 On appeal, this Court held
that the defendant had no right to a change of venue to a jurisdiction
with racial demographics similar to those in the county where the
offense occurred.57
[ 46 So.3d 334 ]
The Court ruled that
"[n]othing in our constitutions, statutes, or case law gives a
criminal defendant the right to obtain a venue of his choosing by
making repeated motions for a change of venue."58 Under this Court's
holding in Simon, this assignment of error fails.
XIV. Whether the cumulative error in this
case warrants reversal.
¶ 53. Fulgham argues that the aggregate error
warrants reversal under state and federal law. We find that Fulgham
has failed to set forth any error as to the guilt phase.
Sentencing Phase
XV. Whether the trial court erred in
excluding the mitigation testimony of Adrienne Dorsey-Kidd, an expert
in the field of social work.
¶ 54. The admission of expert testimony is
within the sound discretion of the trial court, and this Court will
review the trial court's decision to admit or deny expert testimony
under an abuse-of-discretion standard.59
¶ 55. Fulgham argues that the trial court
erred in excluding the testimony of Dorsey-Kidd after the court
accepted the witness as an expert in the field of social work. Fulgham
argues that the State failed to object in a timely manner to
Dorsey-Kidd's proposed testimony when the State objected after it had
conceded Dorsey-Kidd could testify regarding her opinions as a social
worker. In support of her argument, Fulgham asserts that she timely
gave notice to the State of her expert witness and offered
Dorsey-Kidd's proposed testimony via an expert report. Fulgham further
notes that the State failed to object (knowing the substance of
Dorsey-Kidd's proposed testimony) when her trial counsel informed the
jury during opening statement that it would hear from Dorsey-Kidd, a
licensed social worker who had completed an intensive social history
of Fulgham. Fulgham argues that the trial court's ruling deprived the
jury from hearing all relevant mitigation evidence.60
¶ 56. During the sentencing phase, Fulgham
called four mitigation witnesses: Mark Webb, a psychiatrist; Carol
Morgan, Fulgham's mother; Sarah Ferguson, Fulgham's long-time friend;
and Adrienne Dorsey-Kidd, a licensed certified social worker. Webb
testified that he had performed a psychiatric assessment of Fulgham at
the Oktibbeha County Jail. He testified that Fulgham suffered from
post-traumatic stress disorder and panic disorder with dependent
personality traits. In arriving at these diagnoses, Webb testified
that he had based his opinion on information from Fulgham, namely: (1)
Fulgham was raped by her biological father when she was eleven years
old; (2) one of her stepfathers was an alcoholic who had abused her
mother; (3) and one of her mother's boyfriends had neglected her.
¶ 57. Carol Morgan testified that Fulgham's
biological father was absent during her infancy and that he never had
paid child support. Morgan also testified about their frequent moves,
and that she was married and divorced several times, in addition
[ 46 So.3d 335 ]
to having various male
friends with whom she and Fulgham had lived throughout Fulgham's
formative years. She also stated that two of her husbands had been
abusive alcoholics.
¶
58. Sarah Ferguson testified that Fulgham often came over to her house
as a teenager because Fulgham's stepfather was "scary and mean." She
also introduced various pictures of Fulgham's children and testified
that Fulgham was a good mother, and her children were important to
her.
¶ 59. Prior to
Fulgham calling Adrienne Dorsey-Kidd, the State objected to her
testimony, asserting: "She is a licensed social worker. She is not a
psychiatrist, a psychologist, and I don't believe — and everything she
would be testifying to would be hearsay, and I'd like to object to any
testimony that she has at this time." The court overruled this
objection. Fulgham then called Dorsey-Kidd and questioned her
regarding her qualifications as a licensed social worker. When Fulgham
tendered Dorsey-Kidd as an expert in the field of social work, the
State asked the court whether Dorsey-Kidd was being accepted "strictly
in the area of social work. . . not psychiatry or psychology." The
court answered in the affirmative, and the State responded "No
objection to social work[.]" And she was accepted by the court as an
expert in the field of social work.
¶ 60. Dorsey-Kidd testified that she had been
hired to complete an intensive social history of Fulgham, which had
involved reviewing documents, interviewing numerous people, and three
meetings with Fulgham. The State then objected when Dorsey-Kidd was
asked: "Ms. Kidd, did you reach any conclusions or make any
observations in completing your intensive social history?" The State
argued that "Ms. Kidd is not authorized to give any opinions in the
areas set forth in her report. She is a social worker, she is not a
psychiatrist or a psychologist." The court sustained the objection and
allowed Fulgham to make an offer of proof outside the presence of the
jury.
¶ 61. In her
proffer, Dorsey-Kidd testified to four "observations" that she had
made: (1) lack of parental bonding; (2) substance abuse by Carol
Morgan and at least two of Fulgham's stepfathers; (3) lack of a
biological father's input; and (4) the love that Fulgham had for her
children and vice versa after three years of incarceration. The court
ruled that Dorsey-Kidd's testimony was not of such a high degree of
expertise and skill that it was outside the knowledge of a lay person,
and that the jury could arrive at these conclusions based on the
evidence already admitted. The court did allow Dorsey-Kidd to
introduce into evidence drawings, cards, and letters made by Fulgham's
children.
¶ 62. In
objecting to Dorsey-Kidd's testimony, the State presented no argument
or evidence that Dorsey-Kidd's testimony was outside the field of
social work. And its objection based on hearsay is unfounded. We note
that under Mississippi Rule of Evidence 703, an expert such as
Dorsey-Kidd may form an opinion based on facts or data not admissible
in evidence "[i]f of a type reasonably relied upon by experts in the
particular field in forming opinions or inferences upon the
subject[.]"61 And due process requires that all evidence relied upon
at sentencing, including expert testimony, be relevant and reliable,62
a rule which is reflected by Mississippi Rule of Evidence 702:
[ 46 So.3d 336 ]
If scientific, technical,
or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise,
if (1) the testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods, and (3)
the witness has applied the principles and methods reliably to the
facts of the case.63
¶ 63. Further, the proffered testimony was offered as mitigation, and
mitigating evidence is "admissible if it relates to the character and
background of the defendant and the circumstances surrounding the
crime[.]"64 The evidence must be relevant to one or more of these
factors.65 "Where the sentencer is not permitted to consider all
mitigating evidence, there is a risk of `erroneous imposition of the
death sentence,' and the case will be remanded for resentencing."66
¶ 64. Dorsey-Kidd's proposed testimony would
have provided the jury with additional observations and a cohesive
overview of the mitigation evidence presented by the other three
witnesses. Her expert testimony would have focused on Fulgham's social
history and the social context of the crime. We find Dorsey-Kidd's
testimony was especially relevant, since she had reviewed various
documents and had conducted interviews prior to offering her expert
observations and/or opinions. Additionally, Dorsey-Kidd was the only
mitigation witness who had based her findings on interviews with
multiple people, including Fulgham.
¶ 65. We also find merit in Fulgham's argument
that any prejudice was compounded by the timing of the State's
objection. Prior to trial, the State had notice of Dorsey-Kidd's
proposed testimony, and without objection, heard Fulgham's counsel
inform the jury that it would hear testimony from this expert. While
the State was not required to object prior to the time it did, it
appears from the record that the timing of its objection exacerbated
the error.
¶ 66. In
the sentencing phase of a capital murder trial, the stakes are life
and death. A defendant is permitted to introduce virtually any
relevant and reliable evidence touching upon the defendant's
background and character, or the crime itself, which is offered as a
basis to persuade a jury to return a sentence of less than death. We
caution prosecutors and trial judges about limiting mitigation
evidence offered by a defendant when it is presented fairly, and is
relevant to the defendant's character, background, or the
circumstances surrounding the crime.
¶ 67. We find the trial court abused its
discretion in refusing to allow Dorsey-Kidd to testify to her opinions
and observations after accepting her as an expert in the field of
social work, and we are unable to say that such an error did not
affect the jury's ultimate decision. We conclude that
[ 46 So.3d 337 ]
the exclusion of this
evidence denied Fulgham a fair sentencing phase and warrants reversal
as to sentencing, since the jury was prevented from considering all
relevant mitigating evidence.67
¶ 68. Although we find this issue to be
dispositive, warranting reversal for another sentencing hearing, we
will address those issues raised by Fulgham that are likely to recur
on resentencing.
XVI. Whether the court committed reversible error by allowing the jury
to consider pecuniary gain and robbery as separate and distinct
aggravators.
¶
69. By statute, the Legislature has limited the aggravators the State
can attempt to prove at sentencing. Mississippi Code Section 99-19-101
provides in relevant part that:
Aggravating circumstances shall be limited to
the following: . . . . (d) The capital offense was committed while the
defendant was engaged in, or was an accomplice, in the commission of,
or an attempt to commit, or flight after committing or attempting to
commit, any robbery[.] . . . . (f) The capital offense was committed
for pecuniary gain.68
Over Fulgham's objection, the court allowed
the jury to consider both the robbery and the pecuniary-gain
aggravators. Fulgham argues that the felony-murder aggravator is
unconstitutionally duplicative and that the indictment failed to list
the aggravators. We quickly dispose of this second argument, since
this Court repeatedly has held that the use of an underlying felony as
an aggravating factor is constitutional and that an indictment of
capital murder does not have to list the statutory aggravators.69
¶ 70. In Ladner v. State, the Court held that
"where the indictment charges a robbery/murder capital offense and
robbery is designated as an aggravating circumstance, pecuniary gain
should not be used as an aggravating circumstance unless clearly
supported by the evidence."70 In Willie v. State, the Court extended
its holding in Ladner and ruled:
Today, we go one step further. Not only should
the two aggravators not be given as separate and independent
aggravators when they essentially comprise one, they may not be given.
When life is at stake, the jury cannot be allowed the opportunity to
doubly weigh the commission of the underlying felony and the motive
behind the underlying felony as separate aggravators.71
¶ 71. The purpose of this holding is to
minimize those cases in which the same conduct will support multiple
aggravators. In this case, the relevant inquiry is whether the
evidence supported a finding that Fulgham had committed the murder in
the expectation that she would receive some pecuniary gain separate
and apart from the robbery proceeds. We find that there was evidence
to support the pecuniary-gain aggravator for conduct distinct and
[ 46 So.3d 338 ]
separate from the
robbery-murder aggravator. First, as to the robbery aggravator, the
State presented evidence that Joey's wallet had been stolen. Shannon
Fulgham testified that he saw Joey cash his paycheck for approximately
$1,020 and place the money in his wallet on Friday (the day before the
murder). He further testified that Joey had always carried a wallet.
Kyle Harvey testified that, on their Coast trip (which began on the
day of the murder), Fulgham paid for everything — food, souvenirs, and
hotel room — with cash, even though she was unemployed at the time.
Therefore, the State presented evidence in support of the robbery
aggravator: Joey's missing wallet (and its contents).
¶ 72. The State also introduced evidence of
the pecuniary-gain aggravator in support of its theory that Fulgham's
motive for the murder was to collect life-insurance proceeds. Scotty
Carrithers, who in 2003 handled life-insurance records for the
National Guard, testified that Fulgham had called him and inquired as
to the amount of Joey's life-insurance policies. Scotty testified that
he had refused to release the information to Fulgham, but that Fulgham
was the beneficiary of a $55,000 policy. Scotty also testified that
Fulgham once was the beneficiary of a second policy worth $255,000,
but that Joey had changed the beneficiary to his mother. Fulgham's
biological father also testified that she had told him "I want him
dead, and that he has a life insurance policy, and . . . the kids
would get $300,000, and I would get $200,000. And that she would buy
me — I would look good sitting in a Cadillac, if I would keep my mouth
shut." We find sufficient evidence existed to support the
pecuniary-gain aggravator.72
XVII. Whether the trial court committed
constitutional error in denying Fulgham's motion to suppress her June
2, 2003, custodial statement.
¶ 73. Fulgham provided the police two
custodial statements73 on two different occasions: May 12, 2003, and
June 2, 2003. Fulgham concedes that the State did not introduce or
mention either statement during the guilt phase. Neither statement was
admitted into evidence during the sentencing phase, but was used to
cross-examine a witness. Fulgham's assignment of error concerns only
the second statement.
¶ 74. The court held a suppression hearing on
March 18, 2006, and heard testimony regarding the voluntariness of the
June 2, 2003, statement. George Carrithers, chief deputy of the
Oktibbeha County Sheriff's Office, testified that at Fulgham's
request, he had spoken with her on June 2, 2003. The record is unclear
as to the starting time of this statement, but a transcript of the
recording shows that Carrithers had Fulgham sign the following waiver
at the beginning of her statement, which was some time prior to 2:45
p.m.:
I, Kristi
Fulgham, have this day, June 2, 2003, requested to speak to Deputy
George Carrithers of the Oktibbeha County Sheriff's Department. It is
my decision to speak to Deputy Carrithers
[ 46 So.3d 339 ]
and I have initiated the
interview. No one has asked me to speak to Deputy Carrithers. I
understand that I have an attorney and I also understand that I have
the right to have my attorney, Stephanie Mallette present during any
interview I give to Deputy Carruthers.
However, I choose to waive my right to have my attorney present and I
am making this decision to speak to Deputy Carrithers knowingly,
voluntarily and intelligently and of my own free-will.
Deputy Carrithers proceeded to record
Fulgham's statement, and at 2:55 p.m. (at her request) Fulgham took a
polygraph test. Fulgham continued her statement at 4:45 p.m. Emily
Britt, a secretary with the Sheriff's office, and Eddie Young, the
jail's administrator, witnessed Fulgham's statement and corroborated
Deputy Carrithers's testimony.
¶ 75. As a courtesy, one of the deputies
called Stephanie Mallette, Fulgham's counsel, and informed her that
Fulgham had requested a polygraph. Mallette testified that she had
instructed the deputy not to administer the polygraph. Mallette stated
that she had arrived at the jail at 2:45 p.m. and was denied access to
her client. According to Mallette, the deputy informed her the
polygraph already had begun.
¶ 76. Fulgham argues the trial court erred in
refusing to suppress the June 2, 2003, statement when the State used
it to cross-examine Dr. Webb at the sentencing phase. Fulgham argues
that the Sixth Amendment confers a bilateral, post-attachment right to
counsel. In other words, Fulgham argues that her attorney can invoke
the right to counsel on behalf of her client, Fulgham. Fulgham asserts
that her right to counsel and the Due Process Clause of the Fourteenth
Amendment were violated when the police refused to allow Mallette
access to her. Therefore, Fulgham argues that the trial court erred in
not suppressing that portion of her statement that occurred at and
after 2:45 p.m., the time at which Mallette had arrived at the jail
requesting to speak with her client.
¶ 77. A trial court's finding that a
defendant's statements were voluntarily given cannot be reversed
unless the court applied an erroneous legal standard or was clearly
erroneous in its findings of fact.74 This Court has held the following
regarding a defendant's right to counsel:
An accused, after expressing a desire to deal
with police only through counsel, is not subject to further
interrogation by the authorities until counsel has been made available
to him, unless the accused himself initiates further communication,
exchanges or conversations with the police. Edwards v. Arizona, 451
U.S. 477, 484-485, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378, reh'g denied
452 U.S. 973, 101 S.Ct. 3128, 69 L.Ed.2d 984 (1981). Once the right to
counsel has attached, and the accused asserts the right, he is
protected from further police-initiated interrogation. Michigan v.
Jackson, 475 U.S. 625, 634-636, 106 S.Ct. 1404, 1410-1411, 89 L.Ed.2d
[631] 641-642 (1986).75 Even if an accused has procured an attorney,
the accused may still waive the right to have the lawyer present
during any police questioning. Nothing in the Sixth Amendment prevents
a suspect charged with a crime and represented by counsel from
voluntarily choosing, on his own, to speak with police in the absence
of an
[ 46 So.3d 340 ]
attorney. Although a
defendant may sometimes later regret his decision to speak with
police, the Sixth Amendment does not disable a criminal defendant from
exercising his free will. See Michigan v. Harvey, 494 U.S. 344, 110
S.Ct. 1176, 108 L.Ed.2d 293 (1990).76
In line with this Court's ruling in Mettetal, we find that Fulgham
voluntarily initiated the questioning and waived the right to have her
attorney present during questioning. We find no merit in Fulgham's
constitutional arguments. Therefore, the trial court not was not
clearly erroneous in refusing to suppress the statement.
XVIII. Whether the trial court erred in
refusing jury instructions D-77A and D-77B in the jury charge.
¶ 78. Fulgham argues that the court erred in
refusing jury instructions D-77A and D-77B at the sentencing phase
when it granted a circumstantial-evidence instruction at the guilt
phase. Instruction D-77A reads:
The Court instructs the jury that if the State
has relied on circumstantial evidence to establish an aggravating
circumstance, then the evidence for the State must be so strong as to
establish the aggravating circumstance not only beyond a reasonable
doubt, but must exclude every other reasonable hypothesis other than
establishment of the aggravating circumstance.
Put differently, all of the facts and
circumstances, taken together, must be inconsistent with any
reasonable theory or conclusion other than the existence of the
aggravating circumstance. All of the facts and circumstances, taken
together, must establish to your satisfaction the existence of the
aggravating circumstance beyond a reasonable doubt.
¶ 79. And instruction D-77B reads:
During the penalty phase, I instruct you that
if there be a fact or circumstance in this case which is susceptible
of two interpretations, one favorable and the other unfavorable to Ms.
Fulgham and if, after considering all the other facts and
circumstances, there is a reasonable doubt regarding the correct
interpretation, then you must resolve such doubt in favor of Ms.
Fulgham and place upon such fact or circumstance the interpretation
most favorable to Ms. Fulgham.
¶ 80. Contrary to Fulgham's argument, we have
held that a defendant (under the proper circumstances) is entitled to
a circumstantial-evidence instruction at the guilt phase.77 We find no
authority to support such an instruction at sentencing. We find the
trial court did not abuse its discretion by excluding these
circumstantial-evidence instructions from the jury's consideration at
the sentencing phase.
XIX. Whether the trial court erred in refusing
instruction D-64 in the jury charge.
¶ 81. Jury instruction D-64 reads as follows:
You have found Ms. Fulgham guilty of capital
murder. You must now decide the appropriate punishment in this case.
Before I instruct you on specific matters
regarding Ms. Fulgham's sentence, I will instruct you on the general
principles that will govern your deliberations in this sentencing
phase. In explaining your duties, I must offer as complete an
explanation as possible concerning the legal matters that must govern
your deliberations.
[ 46 So.3d 341 ]
I cannot stress to you
enough that the focus of your deliberations during this phase is not
the same as in an ordinary case. Punishment by death is a unique
punishment. It is final. It is irrevocable. You must render a decision
based on the evidence free from anger and prejudice.
Fulgham argues the trial court erred in refusing this instruction
"[b]ecause this is a case where the State sought and secured death,
[and] it is different from cases where the State either does not seek
death or is unsuccessful in its quest." But Fulgham concedes that no
caselaw mandates that the trial court grant this instruction.
¶ 82. In Thorson v. State, this Court
considered a similar instruction to the one at issue in this case.78
In Thorson, the trial court denied jury instruction DS-6, which
included the following language: "The death penalty is a unique
punishment. It is final and irrevocable. You must render a decision
based on the evidence free from passion and prejudice."79 On appeal,
this Court found the issue to be procedurally barred, since the
defendant had failed to cite any relevant authority to support
instruction DS-6.80 But the Court addressed the merits, and held that
the trial court properly had excluded the jury instruction, because
the jury had been properly instructed that it should "`consider and
weigh any aggravating and mitigating circumstances . . . [but that it
should not be] swayed by mere sentiment, conjecture, sympathy,
passion, prejudice, public opinion or public feeling.'"81
¶ 83. Like the issue in Thorson, this issue is
procedurally barred, as Fulgham fails to cite any relevant authority
in support of this instruction. Procedural bar notwithstanding, we
find that our discussion in Thorson is applicable. The language
rejected in Thorson closely tracks jury instruction D-64. Further, the
trial court instructed the jury to "objectively consider the detailed
circumstances of the crime . . . as well as the character of the
Defendant herself [and] not to be swayed by mere sentiment,
conjecture, passion, sympathy, prejudice, public opinion, or public
feeling." The trial court also instructed the jury regarding its
consideration of aggravating and mitigating circumstances. We find no
merit in this issue.
CONCLUSION
¶ 84. We affirm Fulgham's conviction of
capital murder. We reverse her sentence of death and remand this case
to the Oktibbeha County Circuit Court for a new sentencing hearing
consistent with this opinion.
¶ 85. CONVICTION OF CAPITAL MURDER, AFFIRMED.
SENTENCE OF DEATH, REVERSED AND REMANDED.
WALLER, C.J., CARLSON AND GRAVES, P.JJ.,
DICKINSON, RANDOLPH, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR.
RANDOLPH, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED
BY LAMAR, J. KITCHENS, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN
OPINION JOINED BY DICKINSON, J.
[ 46 So.3d 342 ]
RANDOLPH, Justice,
Specially Concurring:
¶ 86. I fully concur with the Majority
Opinion, but write separately to register respectfully my concern with
the separate specially concurring opinion, which, sua sponte, raises
an issue not presented for our consideration. See Glover v. Jackson
State Univ., 755 So.2d 395, 398 n. 1 (Miss. 2000) ("this Court has
long held that issues not raised on appeal are procedurally barred
from consideration"); Luther T. Munford, Mississippi Appellate
Practice, § 3.7 at 3-24 (2006) (citing Educ. Placement Servs. v.
Wilson, 487 So.2d 1316, 1320 (Miss.1986)) (discussing the sound
principle of judicial administration that this Court generally will
avoid considering issues not first presented to and decided by the
trial court). Nor is the opposing party granted an opportunity to
present argument in opposition. It shall come as a great surprise if
the appellate counsel for Fulgham's post-conviction-relief motion will
not present the issue, having received this instruction on advocacy
from such an esteemed jurist as Justice Kitchens. I decline to join in
offering such advice, as I fully expect this litigant will appear
before this Court again. A jurist should adjudicate, not advocate. In
resolving disputes presented for adjudication, we should neither
favor, nor offer advice to, an accused or the State.
LAMAR, J., JOINS THIS OPINION.
KITCHENS, Justice, Specially Concurring:
¶ 87. I agree with the majority's finding that
the trial court abused its discretion in refusing to allow the social
worker to testify to her opinions and observations after its
acceptance of her as an expert in the field of social work, and that
such error warrants reversal of the death sentence. However, I write
separately to address the insufficiency of the indictment, the
insufficiency of the evidence with respect to the crime of robbery,
and the insufficiency of the jury instructions on robbery.
¶ 88. The capital murder charge against
Fulgham required the State to prove that she committed a robbery and a
murder during the course of a robbery. Miss. Code Ann. §
97-3-19(2)(e)(Rev.2006). The State claimed she robbed her husband in
the house where they both lived. To obtain a conviction, the State was
required to prove, beyond a reasonable doubt, that Fulgham had used
force or threat of force intentionally to take and carry away her
husband's property from his person or presence. Crocker v. State, 272
So.2d 664, 665 (Miss.1973). The indictment accused Fulgham of taking
her husband's property, but it did not identify what property she is
alleged to have taken. Instead, the State waited until the trial to
disclose to the jury, and to Fulgham, what property it claims she
stole from her husband.
¶ 89. This case provides an excellent example
of why, in a robbery prosecution, due process of law requires that an
indictment identify the property the accused is alleged to have taken.
The State was required to prove that Fulgham committed a robbery, but
she appeared at trial without knowing what property she was accused of
stealing. In fact, neither the indictment, the prosecutor, the trial
court, nor the jury has ever been informed of what property she was
convicted of taking. To this day, she does not know, and neither does
this Court.
¶ 90. In
closing argument, the State suggested it might have been a computer
that appeared to have been missing from the house.82 Or, perhaps some
money belonging
[ 46 So.3d 343 ]
to her husband was stolen,
according to the prosecutor. But Fulgham and her husband were living
together in the house. So the computer, assuming there was one — no
evidence was adduced that there was a computer available to be stolen
— certainly could have belonged either to Fulgham or her husband, or
to both. The State offered no proof either way. The jury could not
have concluded that Fulgham unlawfully took her husband's computer
without some proof that the computer, in fact, was not hers. Such a
finding, without any proof, would require pure speculation, and it
certainly could not have been proven beyond a reasonable doubt. And as
for the money, the State offered no proof that the money found on
Fulgham belonged to her husband. Again, the jury was required to
speculate.
¶ 91. But
the important point is that, because the indictment did not identify
the property Fulgham was alleged to have stolen, she was required to
appear at trial and defend the State's claim that she had stolen
something, even though she was not told what it was. Had the
indictment identified the alleged stolen property, she would have had
a fair opportunity to defend the charge. For instance, if the
indictment had informed her that the alleged stolen property was a
computer (as the prosecutor suggested in closing argument), she
perhaps could have produced a receipt or other evidence showing it
actually belonged to her.
¶ 92. This Court has held that "[i]n the
context of capital murder, . . . a bare allegation of robbery in an
indictment, without further specification of the facts in support of
that, is sufficient." State v. Berryhill, 703 So.2d 250, 256
(Miss.1997) (citing Mackbee v. State, 575 So.2d 16, 35 (Miss. 1990)).
See also Bullock v. State, 391 So.2d 601, 606 (Miss.1980); Bell v.
State, 360 So.2d 1206, 1208-09 (Miss.1978). I respectfully disagree
with this analysis. A careful look at these cases reveals that this
conclusion is based on the interpretation of a statute, specifically
Mississippi Code Section 99-17-20. However, it is our state and
federal constitutions, above all else, that govern the requirements of
an indictment, specifically the right to due process of law and the
right "to be informed of the nature and cause of the accusation." U.S.
Const. amend. VI. See also U.S. Const. amend. XIV; Miss. Const. art.
3, §§ 14, 26.
¶ 93.
Mississippi Code Section 99-17-20 (Rev.2006) provides, in relevant
part,
Any conviction
of the accused for an offense punishable by death shall not be valid
unless the offense for which the accused is convicted shall have been
set forth in the indictment by section and sub-section number of the
Code which defined the offense allegedly committed by the accused.
This Court has relied on this language to hold
that an indictment for capital murder, where the killing was committed
while engaged in the commission of one of those felonies enumerated in
Mississippi Code Section 97-3-19(2)(e), need not describe the
underlying felony. Mackbee, 575 So.2d at 35; Bullock, 391 So.2d at
606; Bell, 360 So.2d at 1208-09. These holdings conflict with this
Court's well-established rule that any citation to a code section
cannot properly charge a crime, and that it is the language of the
charging document that informs a defendant of the specific crime he or
she is alleged to have committed. Golden v. State, 968 So.2d 378, 386
(Miss. 2007); Pearson v. State, 248 Miss. 353, 358-59, 158 So.2d 710,
712 (1963); Dendy v. State, 224 Miss. 208, 213, 79 So.2d 827, 829
(1955).
[ 46 So.3d
344 ]
¶ 94. A proper indictment
provides protection of one's due process right to adequate notice of
the crime the accused is alleged to have committed. Jefferson v.
State, 556 So.2d 1016, 1020 (Miss.1989). See also U.S. Const. amend.
VI ("In all criminal prosecutions, the accused shall enjoy the right .
. . to be informed of the nature and cause of the accusation."); Miss.
Const. art. 3, § 26 (1890) ("In all criminal prosecutions the accused
shall have the right . . . to demand the nature and cause of the
accusation."). Further, "from the earliest colonial days in this
country it has been the settled rule that a formal accusation is an
essential condition precedent to a valid prosecution for a criminal
offense." Woods v. State, 200 Miss. 527, 27 So.2d 895, 896-897 (1946).
The Woods Court further opined that an indictment is:
first to furnish the accused such a
description of the charge against him as will enable him to prepare
his defense and avail himself of the conviction or acquittal against
further prosecution for the same offense, and, second to inform the
court of the facts alleged, so that it may be able to say whether the
facts are sufficient in law to support a conviction if one should be
had.
Id. at 897. Citation to a statute, as our Code Section 99-17-20
requires, informs the accused of the nature of the accusation; but it
does not inform him or her of the cause, i.e., "you committed a
robbery [the cause], and here's what robbery you committed [the
cause]."
¶ 95. The
indictment under which Fulgham was charged did not provide her an
accurate description of the charge against her so that she could
adequately prepare her defense. The three elements of robbery are (1)
intentional (2) taking and carrying away of another's property from
his person or presence (3) effectuated by force or threat of force,
Crocker v. State, 272 So.2d 664, 665 (Miss.1973), and every element of
a criminal statute must be properly pled and sufficiently proven in
order to permit conviction thereunder. Taggart v. State, 957 So.2d
981, 985-86 (Miss.2007) (quoting Carr v. State, 208 So.2d 886, 889
(Miss.1968)). The indictment did not describe the underlying crime of
robbery, but simply alleged that Kristi Fulgham did:
unlawfully, wilfully, and feloniously, with or
without the design to effect death, kill and murder Joey Fulgham, a
human being, without authority of law and not in necessary self
defense, while engaged in the commission of the crime of Robbery, in
violation of Section 97-3-19(e) [sic] MCA (1972). . . .
Fulgham was never put on notice of what
personal property she was alleged to have taken, or from whom the
property was taken, or that the property was taken "by force or threat
of force." Crocker, 272 So.2d at 665; Miss.Code Ann. § 97-3-73
(Rev.2006). Indeed, were Fulgham charged with robbery alone, the
indictment would fall woefully short.
¶ 96. Moreover, the indictment does not even
meet the basic requirements of Mississippi Code Section 99-17-20,
discussed above, because it does not "set forth in the indictment by
section and sub-section number of the Code which defined the offense
allegedly committed by the accused." The indictment references
"Section 97-3-19(e)," but the proper citation is 97-3-19(2)(e).
Further, in violation of Section 99-17-20, it does not cite any
robbery statute; and this charge, under the State's apparent theory of
the case, is not a capital offense, absent robbery.
¶ 97. Indictments must contain a "plain,
concise and definite written statement of the essential facts
constituting the offense charged and shall fully notify the defendant
[ 46 So.3d 345 ]
of the nature and cause of
the accusation." URCCC 7.06. See also U.S. Const. amends. VI, XIV;
Miss. Const. art. 3, §§ 14, 26. Despite our prior cases to the
contrary, the indictment in the present case could not have satisfied
these constitutional requirements.
¶ 98. Furthermore, the jury was not instructed
as to what property Fulgham is alleged to have stolen. Incredibly, the
only clue came from the prosecutor's closing argument. Thus, it is my
opinion that the indictment was insufficient, the proof of robbery was
insufficient, and the jury instruction on robbery was insufficient.
¶ 99. None of these issues was raised on
appeal. However, Fulgham's appellate counsel was the same as her trial
counsel, so she will have an opportunity (should she so desire) to
raise the issues in a properly filed petition for post-conviction
relief.
¶ 100. For
the reasons stated, I specially concur.
DICKINSON, J., JOINS THIS OPINION.
Footnotes
1. Miss.Code Ann. § 97-3-19(2)(e) (Rev.2006).
2. Fulgham's brother, Tyler Edmonds, was
indicted separately for the capital murder of Joey Fulgham. See
Edmonds v. State, 955 So.2d 787 (Miss.2007).
3. Fulgham moved back into the marital home
about six months prior to Joey Fulgham's death.
4. Kolberg v. State, 829 So.2d 29, 39 (Miss.
2002).
5. Bishop v.
State, 812 So.2d 934, 938 (Miss. 2002) (citations omitted).
6. Id. (quoting Flowers v. State, 773 So.2d
309, 317 (Miss.2000)).
7. Chatman v. State, 761 So.2d 851, 854 (Miss.
2000) (quoting Higgins v. State, 725 So.2d 220, 223 (Miss. 1998)).
8. Edwards v. State, 737 So.2d 275, 305 (Miss.
1999) (citing Coleman v. State, 697 So.2d 777, 782 (Miss. 1997),
disagreed with on other grounds by Dilworth v. State, 909 So.2d 731
(Miss.2005)) (quoting Collins v. State, 691 So.2d 918, 922
(Miss.1997)).
9.
Chatman, 761 So.2d at 854-55 (quoting U.S. v. Davis, 132 F.3d 1092,
1094 (5th Cir.1998)).
10. Miss.Code Ann. § 97-3-73 (Rev.2006); see
also Downs v. State, 962 So.2d 1255, 1259 (Miss.2007) (citing
Miss.Code Ann. § 97-3-73) (emphasis added).
11. See Apodaca v. Oregon, 406 U.S. 404,
410-12, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); Johnson v. Louisiana,
406 U.S. 356, 359-63, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972); but see
Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979)
(requiring unanimity for conviction of a nonpetty offense by a
six-person jury).
12.
Miss. Const. art. 3, § 31 (granting right to trial by jury).
13. Markham v. State, 209 Miss. 135, 137, 46
So.2d 88, 89 (Miss.1950).
14. Schad v. Arizona, 501 U.S. 624, 111 S.Ct.
2491, 115 L.Ed.2d 555 (1991)
15. The statute at issue defined first degree
murder as:
[A]ll murder, which shall
be perpetrated by means of poison, or by lying in wait, or by any
other kind of wilful, deliberate and premeditated killing, or which
shall be committed in the perpetration, or attempt to perpetrate any
arson, rape, robbery, or burglary, shall be deemed murder of the first
degree; and all other kinds of murder shall be deemed murder in the
second degree. Id. (citing 1794 Pa. Laws, ch. 1766, § 2).
16. Id. at 629, 111 S.Ct. 2491.
17. Id. at 630, 111 S.Ct. 2491.
18. Id. at 631-32, 111 S.Ct. 2491 (quoting
McKoy v. North Carolina, 494 U.S. 433, 449, 110 S.Ct. 1227, 1236-37,
108 L.Ed.2d 369 (1990)).
19. Id. at 645, 111 S.Ct. 2491.
20. Griffin v. United States, 502 U.S. 46, 112
S.Ct. 466, 116 L.Ed.2d 371 (1991).
21. Id. at 47, 112 S.Ct. 466.
22. Id. at 49, 112 S.Ct. 466.
23. Id. at 50, 112 S.Ct. 466.
24. Id. at 60, 112 S.Ct. 466.
25. Id. at 59-60, 112 S.Ct. 466 (citations
omitted).
26.
Richardson v. U.S., 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985
(1999).
27. Id. at
815, 119 S.Ct. 1707.
28. Id.
29. Id.
30. Id. at 823-24, 119 S.Ct. 1707.
31. Id. at 817, 119 S.Ct. 1707.
32. Miss.Code Ann. § 97-3-73 (Rev.2006).
33. Cole v. State, 525 So.2d 365, 369 (Miss.
1987) ("If no contemporaneous objection is made, the error, if any, is
waived. This rule's applicability is not diminished in a capital
case."); see also Simmons v. State, 805 So.2d 452, 468 (Miss.2001)
(noting that this Court has the prerogative to relax the procedural
bar in capital cases and address the merits).
34. Smith v. State, 25 So.3d 264, 269 (Miss.
2009).
35. Miss. R.
Evid. 801(c).
36.
Miss. R. Evid. 801(c).
37. Reed v. State, 229 Miss. 440, 91 So.2d
269, 272 (Miss.1956) (emphasis added).
38. Miss. R. Evid. 801(d)(2)(A).
39. Goff v. State, 14 So.3d 625, 662-63 (Miss.
2009).
40. Id. at
662-63 (citing Kitchens v. State, 300 So.2d 922, 926 (Miss. 1974)).
41. Goff, 14 So.3d 625, 649-50 (Miss.2009).
42. Gray v. State, 728 So.2d 36, 75 (Miss.
1998).
43. Id.
44. Chatman v. State, 761 So.2d 851, 854
(Miss.2000).
45. Id.
at 852.
46. Id. at
855.
47. Id.
48. Id. at 854-55.
49. Barnes v. State, 532 So.2d 1231, 1235
(Miss. 1988) (quoting Boutwell v. State, 165 Miss. 16, 143 So. 479,
483 (1932)).
50.
Fulgham attached seventy-four exhibits to her motion to change venue.
These exhibits consisted of seventy-one newspaper clippings, two video
tapes of the news coverage, and three affidavits.
51. Fulgham attached an exhibit of the 2000
Census which showed that Oktibbeha County is 59.2% white and 37.7%
black, and Union County is 84% white and 15.2% black.
52. Ruffin v. State, 992 So.2d 1165, 1174
(Miss.2008).
53.
Johnson v. State, 476 So.2d 1195, 1210-11 (Miss. 1985).
54. Simon v. State, 633 So.2d 407 (Miss.
1993), vacated on other grounds, 513 U.S. 956, 115 S.Ct. 413, 130
L.Ed.2d 329 (1994).
55. Id. at 411.
56.
Id. at 412.
57. Id.;
see also De La Beckwith v. State, 707 So.2d 547, 596-97 (Miss. 1997)
(discussing Simon v. State, 633 So.2d 407 (Miss. 1993)).
58. Simon, 633 So.2d at 412.
59. Bishop v. State, 982 So.2d 371, 380 (Miss.
2008).
60. Fulgham
also filed a motion for a new trial or in the alternative for new
sentencing hearing in which she argued the trial court erroneously had
excluded Dorsey-Kidd as an expert. In support of this motion, she
attached affidavits, one from a social worker and one from a
capital-defense attorney (respectively, Jill Miller and David Bruck),
who asserted that Dorsey-Kidd's proposed testimony was the type of
mitigation regularly admitted at the sentencing phase.
61. Miss. R. Evid. 703.
62. See Green v. Georgia, 442 U.S. 95, 96, 99
S.Ct. 2150, 60 L.Ed.2d 738 (1979); Williams v. State of Oklahoma, 358
U.S. 576, 584, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959).
63. Miss. R. Evid. 702.
64. Eskridge v. State, 765 So.2d 508, 511
(Miss. 2000) (citing Tuilaepa v. California, 512 U.S. 967, 976, 114
S.Ct. 2630, 2637, 129 L.Ed.2d 750, 762 (1994)).
65. Id.
66. Wilcher v. State, 697 So.2d 1123, 1133
(Miss. 1997) (citing Mills v. Maryland, 486 U.S. 367, 375, 108 S.Ct.
1860, 1866, 100 L.Ed.2d 384 (1988) (quoting Eddings v. Oklahoma, 455
U.S. 104, 117, 102 S.Ct. 869, 878, 71 L.Ed.2d 1 (1982))).
67. Wilcher v. State, 697 So.2d 1123, 1133
(Miss. 1997) (citing Mills v. Maryland, 486 U.S. 367, 375, 108 S.Ct.
1860, 1866, 100 L.Ed.2d 384 (1988) (quoting Eddings v. Oklahoma, 455
U.S. 104, 117, 102 S.Ct. 869, 878, 71 L.Ed.2d 1 (1982))).
68. Miss.Code Ann. § 99-19-101(5)(d), (f)
(Rev.2007).
69. See
Goff v. State, 14 So.3d 625, 655 (Miss. 2009); Brawner v. State, 947
So.2d 254, 265 (Miss.2006).
70. Ladner v. State, 584 So.2d 743, 763 (Miss.
1991) (emphasis added).
71. Willie v. State, 585 So.2d 660, 680-81
(Miss. 1991) (emphasis added), overruled on other grounds by King v.
State, 784 So.2d 884 (Miss.2001).
72. See also Byrom v. State, 863 So.2d 836,
881 (Miss.2003) (finding sufficient evidence existed to support the
instruction of the pecuniary-gain aggravator in a capital murder case
where defendant planned to pay off house and car and promised to pay
trigger-man money from decedent's life-insurance proceeds).
73. In each statement, Fulgham stated that her
brother, Tyler Edmonds, had shot and killed Joey.
74. Mettetal v. State, 602 So.2d 864, 868
(Miss. 1992).
75.
Overruled on other grounds by Montejo v. Louisiana, ___ U.S. ___, 129
S.Ct. 2079, 173 L.Ed.2d 955 (2009).
76. Id. (emphasis added).
77. See King v. State, 960 So.2d 413, 446
(Miss.2007).
78.
Thorson v. State, 895 So.2d 85, 109 (Miss. 2004).
79. Id.
80. Id. at 110.
81. Id.
82. There was very minimal proof that a
computer was stolen — only indentations in the carpet where a computer
might have been.
