Kelly v. State

838 So. 2d 314, 2002 Miss. App. LEXIS 496, 2002 WL 31013674
CourtCourt of Appeals of Mississippi
DecidedSeptember 10, 2002
DocketNo. 2001-KA-00210-COA
StatusPublished

This text of 838 So. 2d 314 (Kelly v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kelly v. State, 838 So. 2d 314, 2002 Miss. App. LEXIS 496, 2002 WL 31013674 (Mich. Ct. App. 2002).

Opinions

LEE, J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. Billy Wayne Kelly was indicted in January 1997 on three counts of depraved heart murder involving the deaths of his wife, Tina, and their two children, two year old Erica and four month old Christopher. A Jones County Circuit Court jury convicU ed Kelly of manslaughter on all three counts, and Kelly was sentenced to serve twenty years in prison for each count, each sentence to run consecutively to all other counts. Kelly appealed to this Court, and in Kelly v. State, 735 So.2d 1071 (Miss.Ct.App.1999), we reversed and remanded for a new trial, finding that the State had violated discovery rules, that improper testimony was allowed without a mistrial, that evidence of prior bad acts was improperly allowed, and that the jury was given improper instructions concerning self-defense.

¶ 2. After remand for a new trial, Kelly was found guilty of manslaughter with regard to the death of his wife, but he was found not guilty with regard to the deaths of his two children. Kelly was sentenced to serve twenty years in prison, with credit given for time already served. He filed a motion for new trial arguing that the verdict was against the overwhelming weight of the evidence, that evidence was improperly presented over his objection, that certain instructions were erroneously given, that the indictment was void, and that his confession was improperly admitted into evidence. The motion was overruled, and he now appeals to this Court, raising the following issues: (1) did the court err in allowing the State to strike a black juror for cause over defense counsel’s Batson objection; (2) did the court err in allowing Kelly’s confession to be admitted into evidence; (3) did the court err in allowing certain expert testimony; and (4) was the [317]*317verdict against the overwhelming weight of the evidence, and Kelly’s right to protection against double jeopardy violated? We find no merit to these issues and affirm.

FACTS

¶ 3. We thoroughly described the facts in this case in our previous opinion on this matter. See Kelly, 735 So.2d at (¶¶ 3-8). To briefly recap, on or about November 7, 1996, the Kelly family car flooded during a rainstorm in Laurel. After attempts to start the car, Tina and the kids started walking towards her mother’s home. Kelly ran after the others and a fight ensued, resulting in Kelly pushing his wife along with his two small children into a flooded drainage ditch. The three ultimately drowned after a current washed them away. Kelly was later questioned and confessed to pushing the three into the ditch. He recalled his confession a few days later for the district attorney, but later recanted at the trial, claiming he had no part in the deaths of his family and that his confession was the result of threats and promises.

DISCUSSION OF THE ISSUES

I. DID THE COURT ERR IN ALLOWING THE STATE TO STRIKE A BLACK JUROR FOR CAUSE OVER DEFENSE COUNSEL’S BATSON OBJECTION?

¶ 4. With this first issue, Kelly argues that the court violated the rule from Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), in allowing the State to strike a black juror for cause. Our standard of review concerning Batson decisions is this:

Batson clearly places upon the trial court the duty to determine whether purposeful discrimination has been shown ... Batson states that “ordinarily,” a reviewing court should give the trial court “great deference” .... [which] has been defined in the Batson context as insulating from appellate reversal any trial findings which are not clearly erroneous.

White v. State, 761 So.2d 221 (¶ 13) (Miss.Ct.App.2000). Kelly specifically cites to the following exchange between the trial judge, the prosecutor, Mr. Hedgepeth, and defense attorneys Buckley and Parrish:

MR. HEDGEPETH: Constance McCann, she was related to one of the witnesses. Which one of the witnesses? On our notes we just put related to witness and didn’t put the name of the witness.
MR. RATCLIFF: My notes reflect that she knows Frank Woods. She’s not related to him.
MR. HEDGEPETH: I didn’t think anybody knew aso [sic] to jurors?
MR. RATCLIFF: I wrote it down as to Constance McCann.
THE COURT: Just make your statement as to what it was so I can rule on it.
MR. HEDGEPETH: We had in our notes that she had responded that she was related to one of the witnesses by marriage. And because of that, we didn’t want her in there.
MR. PARRISH: Your Honor, that’s really pushing it. I don’t know what she said and I don’t know what witness it was, or even if it is actually going to be somebody that will be testifying. Everybody is reading off of a big list here. Unless we — it may be something entirely irrelevant. I noticed that they haven’t exercised challenges on other people, for every white person that said they knew a witness.
MR. HEDGEPETH: Well, also on her questionnaire, it shows that she has only [318]*318been employed for — I think that’s two weeks. It could be two or seven weeks with Howard Industries as a coil winder. It shows a less stable type of juror than we would want. She’s young with a number of children with no spouse. That doesn’t fit the type of profile of the type juror we would like to have on this panel.
MR. PARRISH: We introduced a copy of that juror questionnaire, and I think it will show other jurors, including white jurors, are in the same category; like Michelle Manning who is a young white woman—
MR. BUCKLEY: With a baby in court today.
MR. PARRISH: — that brought a child into court with her today. They accepted her. And they are wanting to excuse this black woman in addition because they say she has young children. I think we are grasping at things.
MR. HEDGEPETH: Although, Michelle Manning has been employed for three and a half years with the same employer. She’s a professional speech pathologist. Just a totally different type of juror all together.
THE COURT: All right. The Court accepts your reason as being race-neutral.

¶ 5. Kelly argues that this exchange shows that the trial judge erred in accepting the prosecutor’s reason for excluding juror McCann as race-neutral. In the transcript of voir dire proceedings, we find that Kelly requested a Batson hearing after the State’s first three strikes were all against black female jurors. The State addressed the three strikes individually, noting that the first was struck because she was young, unmarried, non-responsive, and failed to adequately fill out her juror questionnaire. The court accepted this as a race-neutral reason. The second juror was struck because she had gone to school with Dennis Bisnette, one of the district attorneys on the case, and she appeared to be “less than honest in her answers,” claiming that although she attended school with Mr. Bisnette for seven years, she did not remember him. The court accepted this as a race-neutral reason.

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Related

Batson v. Kentucky
476 U.S. 79 (Supreme Court, 1986)
Davis v. State
767 So. 2d 986 (Mississippi Supreme Court, 2000)
Neal v. State
805 So. 2d 520 (Mississippi Supreme Court, 2002)
Walker v. State
671 So. 2d 581 (Mississippi Supreme Court, 1995)
Hatten v. State
628 So. 2d 294 (Mississippi Supreme Court, 1993)
Mangum v. State
762 So. 2d 337 (Mississippi Supreme Court, 2000)
White v. State
761 So. 2d 221 (Court of Appeals of Mississippi, 2000)
Puckett v. State
737 So. 2d 322 (Mississippi Supreme Court, 1999)
Pearson v. State
746 So. 2d 867 (Court of Appeals of Mississippi, 1998)
Kelly v. State
735 So. 2d 1071 (Court of Appeals of Mississippi, 1999)
Walker v. State
759 So. 2d 422 (Court of Appeals of Mississippi, 1999)
Davis v. State
660 So. 2d 1228 (Mississippi Supreme Court, 1995)
Bogan v. State
811 So. 2d 286 (Court of Appeals of Mississippi, 2001)

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Bluebook (online)
838 So. 2d 314, 2002 Miss. App. LEXIS 496, 2002 WL 31013674, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-v-state-missctapp-2002.