IN THE SUPREME COURT OF MISSISSIPPI
NO. 2010-KA-00511-SCT
MICHAEL SHANE RICHARDSON
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 02/27/2010 TRIAL JUDGE: HON. JAMES T. KITCHENS, JR. COURT FROM WHICH APPEALED: LOWNDES COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF INDIGENT APPEALS BY: LESLIE S. LEE ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOHN R. HENRY, JR. DISTRICT ATTORNEY: FORREST ALLGOOD NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 09/15/2011 MOTION FOR REHEARING FILED: MANDATE ISSUED:
CARLSON, P.J., RANDOLPH AND KITCHENS, JJ.
CARLSON, PRESIDING JUSTICE, FOR THE COURT:
¶1. Michael Shane Richardson was convicted by a jury in the Circuit Court of Lowndes
County of capital murder under Mississippi Code Section 97-3-19(2)(e) (Rev. 2006), and of
being a convicted felon in possession of a firearm under Mississippi Code Section 97-37-5(1)
(Rev. 2006). The State sought the death penalty at the sentencing phase, but the jury
returned a verdict of life imprisonment without the possibility of parole for the capital-
murder charge. The trial judge sentenced Richardson to serve a term of life without parole
for the capital-murder conviction, and to serve a term of ten years imprisonment for the felony-possession-of-firearm conviction. These two sentences were ordered to be served
consecutively, all in the custody of the Mississippi Department of Corrections. After the trial
court denied Richardson’s motion for a new trial, or in the alternative, motion for judgment
notwithstanding the verdicts, Richardson perfected this appeal, alleging errors at the trial-
court level. Finding Richardson’s assignments of error to be without merit, we affirm the
judgment of the Circuit Court of Lowndes County.
FACTS AND PROCEEDINGS IN THE TRIAL COURT
¶2. Harvey Evans and his girlfriend, Sherrie Halverson, lived together in a neighborhood
in Columbus. Michael Shane Richardson lived near the couple and had befriended them.
Occasionally, Evans would help Richardson financially. On September 19, 2006, at
approximately 2:00 p.m., Richardson knocked on Evans’s door. Halverson answered the
door, let Richardson inside, and then left the room, leaving Richardson and Evans alone.
Soon thereafter, Halverson heard Evans “hollering” and came back into the room to find
Evans on the floor with Richardson standing over him. A baseball bat was rolling on the
floor near the two men. Richardson then left the home. After Richardson left, Evans told
Halverson that Richardson had hit him in the head. The two wallets that Evans usually
carried were missing, along with all of his money. Evans was hospitalized and died on
January 4, 2007, from injuries related to the September 19, 2006, attack.
¶3. Later in the day of the attack, Richardson and Arthur Ray Price met at Beverly
Gurley’s home, and the two men used cocaine together. Price testified that his brother-in-law
had delivered the drugs to Gurley’s home at Richardson’s request and that Richardson had
2 paid for all of the drugs. Richardson admitted to Price that he had robbed a man and had
taken all of his money.
¶4. During the same afternoon, Richardson also went to Barbara Tenney’s home. From
Tenney’s home, Richardson, Tenney, and Sarah Gibson traveled together to visit Tenney’s
friend in Alabama. Gibson testified that she and Richardson had smoked crack cocaine when
they were on their way back to Mississippi and that Richardson had told her, “I done
something bad, Sarah.” Gibson also testified that Richardson had appeared to be upset and
was shaking. After returning to Mississippi later that afternoon, Richardson and Gibson
smoked crack cocaine again. The two then went to an apartment complex, where Richardson
purchased two guns from men standing outside the complex. Richardson and Gibson then
went to a Super 8 motel. Richardson’s friend, McKenzie Barham, joined Richardson and
Gibson at the motel, where the three smoked more crack cocaine.
¶5. Richardson eventually ended up at Barham’s house. Barham testified that Richardson
had two guns with him when he arrived and that Richardson threw one of them into her
backyard. She also testified that Richardson had given her a one-hundred-dollar bill to pay
for gasoline and cigarettes, and that Richardson was the only person who had paid for the
drugs that she used on September 19, 2006.
¶6. On September 20, 2006, Richardson called 911 and told the operator that he needed
the police to come pick him up because he had committed a crime. Richardson was at a
convenience store in Columbus when he called 911. When the police arrived, Richardson
told Investigator Terry Dentry that he wanted to turn himself in. Investigator Tony Cooper
3 testified that Richardson had asked about Evans’s condition and that Richardson had kept
apologizing.
¶7. Richardson was then taken to the Lowndes County Sheriff’s Department, where he
was read his Miranda 1 rights. Richardson told Investigator Cooper that he wished to waive
his Miranda rights, and he signed a waiver-of-rights form. Richardson then told Investigator
Cooper about the events of the previous day. Investigator Cooper typed a statement of
Richardson’s account, and Richardson signed it. In the statement, Richardson claimed that
a man named Kenny Jones had known Richardson was going to attack Evans and take
Evans’s money. Richardson stated that he and Jones were supposed to meet after the robbery
and that Jones was supposed to distribute the money to other people. Richardson admitted
that he had hit Evans in the head with a baseball bat and had taken both of Evans’s wallets.
Richardson then explained to whom he had given the money and what he had purchased with
the money. Richardson concluded by saying, “I didn’t know I had hurt Harvey as bad as I
did.”
¶8. Barbara Tenney testified for the defense. Tenney and Jones had been dating in 2006.
On September 19, 2006, Jones awakened Tenney and asked to borrow her car to go to the
store. When Jones returned, he had $500 to $600 with him. Tenney also admitted to driving
Richardson and Gibson to Alabama later that same day. Tenney testified that Richardson had
stated that he needed new pants because there was blood on his. Tenney also testified that
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
4 Richardson had stated, “I hope he didn’t die. His eyes rolled back in his head when I hit
him.”
¶9. Richardson testified in his own defense. Richardson stated that he and Evans were
friends, and that Evans and Halverson had given him the baseball bat for protection.
Richardson testified that he had conversations with Kenny Jones both before and after the
robbery. During cross-examination, Richardson admitted that he had hit Evans with a
baseball bat and had taken Evans’s wallets. He testified that, after the robbery, someone else
was supposed to take the money and distribute it. Richardson also admitted to buying two
guns on the same day as the robbery.
¶10. While incarcerated, Richardson wrote Investigator Cooper two letters. In one,
Richardson inquired about his bail and stated, “I am very sorry about what I done now.” In
the other letter, Richardson stated that he had conceived the idea of the robbery on his own
and that he was sorry that he had told Kenny Jones what he was going to do.
¶11. Dr. Steven Hayne performed an autopsy on Evans and testified to the cause and
manner of death at trial. According to Dr. Hayne, the cause of Evans’s death on January 4,
2007, was blunt-force trauma to the head. Dr. Hayne determined the manner of death to have
been homicide. The State also presented evidence that Richardson previously had been
convicted of a felony – aggravated assault in 2001.
¶12. The jury found Richardson guilty of capital murder and being a felon in possession
of a firearm. The State sought the death penalty at the sentencing phase, but the jury returned
a verdict stating that Richardson should serve a sentence of life in prison without the
possibility of parole for capital murder. The trial judge subsequently sentenced Richardson
5 to serve consecutive sentences of life imprisonment without parole for capital murder, and
ten years for being a felon in possession of a firearm. Richardson’s motion for a new trial,
or in the alternative, motion for judgment notwithstanding the verdicts, was denied.
DISCUSSION
¶13. On appeal, Richardson asserts that the trial court erred in: (1) denying Richardson’s
motion to suppress his statement; (2) refusing to sever Counts I and II of the indictment; (3)
denying Richardson’s motion in limine to exclude evidence of other crimes; and (4)
admitting a photograph of the victim’s brain.
I. WHETHER THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS RICHARDSON’S STATEMENT.
¶14. We apply the following standard when reviewing a trial court’s ruling on a motion to
suppress: “[S]ince the trial court sits as the fact-finder when determining the issue of whether
an accused’s confession has been intelligently, knowingly and voluntarily given, we will only
reverse the trial court’s determination of this issue when such determination is manifestly
wrong.” Glasper v. State, 914 So. 2d 708, 716 (Miss. 2005) (citing Manix v. State, 895 So.
2d 167, 180-81 (Miss. 2005)) (other citations omitted). We “will not disturb the trial court’s
determination on the admissibility of a confession unless the trial court applied an incorrect
legal standard, committed manifest error, or rendered a decision which was contrary to the
overwhelming weight of the evidence.” Glasper, 914 So. 2d at 716 (citing Thorson v. State,
895 So. 2d 85, 115 (Miss. 2004)) (other citations omitted). A confession is admissible if the
State “has proven beyond a reasonable doubt that the accused’s confession was voluntary by
showing that such confession was not the product of promises, threats or inducement.” Id.
6 at 717 (citing Manix, 895 So. 2d at 180) (other citations omitted). With regard to the trial
court’s findings on the admissibility of a confession, we have stated that “[w]here, on
conflicting evidence, the [trial] court makes such findings, this Court generally must affirm.”
Lesley v. State, 606 So. 2d 1084, 1091 (Miss. 1992) (citing Stokes v. State, 548 So. 2d 118,
122 (Miss. 1989)).
¶15. Richardson argues that the trial court erred by denying his motion to suppress, because
the statement that he made to police is inadmissible under Miranda. Richardson supports
this contention by claiming that his requests for counsel were not honored. After Richardson
called 911 and turned himself over to police, he was taken into custody and given his
Miranda rights. Richardson then made a statement to Investigator Cooper. Investigator
Cooper typed the statement on a Lowndes County Sheriff’s Department form, and
Richardson signed the statement. Richardson admitted in this statement to hitting Evans on
the head with a baseball bat and taking both of Evans’s wallets. Richardson signed a waiver-
of-rights form prior to signing the typed statement.
¶16. The trial court held a pretrial suppression hearing on Richardson’s motion and heard
testimony from Richardson, Investigator Cooper, and Deputy Greg Wright. Richardson
testified at the hearing that he repeatedly had asked Investigator Cooper and the other
investigating officers for “legal assistance.” Richardson testified that he first had asked to
speak with a “legal assistant” when the police initially had arrived to arrest him after his 911
call. Richardson said that an officer had told him that he would be able to speak with an
attorney at the Sheriff’s Department. Richardson testified that when he had asked to speak
with an attorney at the Sheriff’s Department, the investigator immediately had left the room.
7 He testified that he had made his requests again and that the investigator had continued to
question him. Richardson also testified that he had been read his Miranda rights initially at
the convenience store where he was picked up by police and that he was not sure if he had
been read his Miranda rights at the Sheriff’s Department.
¶17. When asked why he had made a statement to Investigator Cooper after requesting an
attorney, Richardson stated:
He -- insisted I make the statement. He insisted I make the statement. Our -- well, I -- that was -- that was pretty much it. He -- he just, you know – he pretty much insisted I make a statement. I have told him I’d like to sit there and talk to my mother and a law -- or a -- you know, a legal assistance, but typically mainly my mother, probably, but, you know – and he just insisted I make -- I make the statement.
When asked at the hearing why he had signed a waiver of rights, Richardson invoked the
Fifth Amendment.
¶18. Investigator Cooper typed Richardson’s statement and witnessed Richardson’s waiver
of rights. Cooper testified that Richardson had requested legal assistance neither at the
convenience store nor at the Sheriff’s Department. He also testified that he never insisted
that Richardson make a statement. Deputy Wright testified that he never insisted that
Richardson give a statement and that he never had heard Richardson request counsel.
¶19. After hearing all of the testimony, the trial court denied Richardson’s motion to
suppress. The trial court found that Richardson had not invoked his right to counsel and that
Richardson knowingly, intelligently, and voluntarily had given his statement to police.
¶20. The trial court was presented with contradicting testimony regarding the voluntariness
of Richardson’s statements. On one side, Richardson consistently claimed that he had asked
8 to speak with an attorney and that his requests had been ignored. On the other hand, two
law-enforcement officers testified that Richardson never had made these requests and that
he voluntarily had given the statement, signed a written statement, and signed a waiver of
rights. When viewing all of the evidence as a whole from the record before us, we find that
the trial court did not abuse its discretion in denying Richardson’s motion to suppress his
statement. Accordingly, we find that this issue is without merit.
II. WHETHER THE TRIAL COURT ERRED IN REFUSING TO SEVER COUNTS I AND II OF THE INDICTMENT.
¶21. We review a trial court’s denial of a motion to sever multiple counts of an indictment
for abuse of discretion. Rushing v. State, 911 So. 2d 526, 532 (Miss. 2005) (citing Brawner
v. State, 872 So. 2d 1, 6-7 (Miss. 2004)). Both multicount indictments and multi-offense
trials are allowed under certain circumstances. Id. “In trials concerning multi-count
indictments, severance is unnecessary in Mississippi if the acts or transactions are connected
together as part of a common scheme or plan and if the indictment was otherwise proper.”
Id. The authority to charge and try a defendant for multiple counts in the same indictment
is provided by Mississippi Code Section 99-7-2 (Rev. 2007), which provides:
(1) Two (2) or more offenses which are triable in the same court may be charged in the same indictment with a separate count for each offense if: (a) the offenses are based on the same act or transaction; or (b) the offenses are based on two (2) or more acts or transactions connected together or constituting parts of a common scheme or plan.
(2) Where two (2) or more offenses are properly charged in separate counts of a single indictment, all such charges may be tried in a single proceeding.
(3) When a defendant is convicted of two (2) or more offenses charged in separate counts of an indictment, the court shall impose separate sentences for each such conviction.
9 (4) The jury or the court, in cases in which the jury is waived, shall return a separate verdict for each count of an indictment drawn under subsection (1) of this section.
¶22. In Corley v. State, 584 So. 2d 769, 772 (Miss. 1991), we recommended the following
procedure to trial judges who are faced with an issue of severance:
[W]e recommend that a trial court hold a hearing on the issue. The State, then, has the burden of making a prima facie case showing that the offenses charged fall within the language of the statute allowing multi-count indictments. If the State meets its burden, a defendant may rebut by showing that the offenses were separate and distinct acts or transactions.
When deciding whether a multicount indictment was proper, the trial court should consider
the following factors: (1) the time period between the offenses, (2) whether the evidence
proving each count would be admissible to prove each of the other counts, and (3) whether
the crimes are interwoven. Id. (citing Allman v. State, 571 So. 2d 244, 248 (Miss. 1990);
McCarty v. State, 554 So. 2d 909, 914-16 (Miss. 1989)).
¶23. Richardson contends that the trial court erred in denying his motion to sever Counts
I and II of his indictment. Richardson’s indictment contains two counts: (1) capital murder
with the underlying felony of robbery under Mississippi Code Section 97-3-19(2)(e) (Rev.
2006);2 and (2) felon in possession of a firearm under Mississippi Code Section 97-37-5(1)
2 Count I states in part:
that MICHAEL SHANE RICHARDSON late of the County aforesaid, on or about the 19th day of September, 2006, in the County and State aforesaid, did unlawfully, willfully, and feloniously, with or without the design to effect death, kill and murder Harvey Evans, 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 MCA 1972 as amended; contrary to the form of the statutes in such cases and provided, and against the peace and dignity of the State of Mississippi.
10 (Rev. 2006). Richardson filed a pretrial motion to sever the two counts, arguing that the
nature of the two crimes prevented him from having a fair trial and that the crimes were not
based on the same act or transaction. A pretrial hearing was held on the motion, and the trial
court denied Richardson’s motion to sever.
¶24. On appeal, Richardson argues that the trial court abused its discretion in denying the
motion because of the “explosive nature” of the capital-murder charge. Richardson contends
that the two crimes were separate and distinct and that the evidence needed to establish the
second count of being a felon in possession of a firearm – specifically evidence of his prior
aggravated-assault conviction – was unduly prejudicial.
¶25. After Richardson had filed his motion to suppress, the trial court held a pretrial Corley
hearing.3 After both sides presented their arguments on the motion, the trial court discussed
Count II states in part:
that MICHAEL SHANE RICHARDSON late of the county aforesaid, on or about the 19th day of September, 2006, in the County and State aforesaid, did unlawfully, willfully, and feloniously, have in his possession one Lorcin .380 pistol bearing serial number S36216 in violation of Section 97-37-5 MCA 1972 as amended, while he, the said MICHAEL SHANE RICHARDSON was a convicted felon having been convicted in the Circuit Court of Lowndes County, Mississippi in cause number 2001-0099-CRI for the crime of Aggravated Assault, a felony, and sentenced on July 27, 2005 to a term of years in the Mississippi Department of Corrections; contrary to the form and statutes in such cases made and provided, and against the peace and dignity of the State of Mississippi. 3 At the hearing, Richardson, through counsel, first presented his argument that the counts should be severed, and then the State presented its argument. Corley directs that the State must first present a prima facie case showing that the offenses may be tried together and that the defendant may rebut the State’s case. Corley, 584 So. 2d at 772. Although the trial court in today’s case did not follow the exact procedure outlined in Corley, the State and Richardson were still able to present both sides of their arguments to the trial court. Richardson’s counsel also initiated the discussion of the motion at the hearing and did not
11 each of the Corley factors. The trial court first discussed the time period between the
occurrences (the first Corley factor) and found that the time period was “insignificant.”
Corley, 584 So. 2d at 772. We agree with the trial court’s finding. Richardson robbed Evans
around 2:00 p.m. and purchased two guns later that same afternoon. In Patrick v. State, 754
So. 2d 1194, 1196 (Miss. 2000), we held that separate counts of aggravated assault, armed
robbery, burglary, and grand larceny properly were tried together when the crimes occurred
within a seven-hour period. Notably, the crimes in Patrick involved three separate incidents,
each having different victims. Id. Similar to Patrick, the crimes in today’s case occurred
within a relatively short time period. Thus, the trial court did not abuse its discretion in
finding that the period of time between the two crimes did not warrant severance of the two
counts in Richardson’s indictment.
¶26. The trial court then considered the second Corley factor – whether the evidence
proving each count would be admissible to prove each of the other counts. Corley, 584 So.
2d at 772. The trial judge made the following statement when considering the second factor:
There may be some different witnesses and different evidence, because in the firearm charge you’re going to have to show that he was prior-convicted of some felony offense, and I -- so you’re going to have some different witnesses that may testify that may not necessarily testify about the capital murder. There may be some additional witnesses that would be brought in.
object to presenting the defense’s argument before the State presented its argument. See Rushing, 911 So. 2d at 533 (denial of motion to sever upheld despite the trial court not following the exact procedural guidelines in Corley). Richardson also does not argue on appeal that the exact Corley procedure was not followed at the trial court.
12 Richardson now contends that the evidence of his prior aggravated-assault conviction would
not have been admissible in a capital-murder trial. He thus argues that the evidence of his
prior felony conviction was unduly prejudicial.
¶27. At trial, evidence of Richardson’s prior felony conviction was introduced to establish
that he previously had been convicted of a felony when he purchased the firearms on
September 19, 2006. During the pretrial severance hearing, the trial court noted that, if the
defense wished to stipulate that Richardson had a prior felony conviction, the State would
be bound by that stipulation and the court would allow it. The defense, however, never
attempted to stipulate to this fact. Although Richardson filed a pretrial motion to sever the
counts, Richardson did not object to the entry of evidence of his aggravated-assault
conviction at trial. Further, Richardson never requested that a limiting instruction be given
to the jury.
¶28. In Williams v. State, 991 So. 2d 593, 605-06 (Miss. 2008), we addressed when trial
courts should allow the parties to stipulate to a defendant’s prior conviction and issue
limiting instructions on the prior conviction. We stated:
Where evidence of a prior conviction is a necessary element of the crime for which the defendant is on trial (i.e., possession of a firearm by a convicted felon), but the evidence of the specific nature of the crime for which the defendant was previously convicted (i.e., armed robbery), is not an essential element of the crime for which the defendant is on trial, as it is in DUI cases, the trial court should accept a defendant’s offer to stipulate and grant a limiting instruction.
Id. In Williams, the defendant was on trial for possession of a firearm by a convicted felon
and offered to stipulate to his status as a convicted felon. Id. at 606. The trial court refused
to allow the stipulation, and we reversed. Id.
13 ¶29. In Armstead v. State, 978 So. 2d 642, 648-49 (Miss. 2008), we held that multiple
counts did not need to be severed simply on the basis that evidence in one count would not
be admissible as to the other count if the two were tried separately. We stated that:
There is no authority for restricting the multi-count-indictment statute because some element of proof necessary as to one charge would be inadmissible on another charge if tried separately. Whenever a defendant is tried on a multi- count indictment, the possibility that a jury will infer guilt on all counts from guilt on one individual count does not warrant reversal so long as the jury is instructed that each count must be considered separately, and each count is supported by substantial evidence and proven beyond a reasonable doubt.
Id. at 649 (internal citations omitted).
¶30. In Golden v. State, 968 So. 2d 378, 383 (Miss. 2007), the defendant was tried for two
counts of rape, occurring approximately three hours apart. While discussing whether the trial
court had erred in refusing to sever the two counts, we stated that the issue of whether the
evidence to prove one count would be admissible to prove the other is “problematic.” Id.
During a Corley hearing, the trial court in Golden recognized that the two counts would have
some evidence in common and some evidence not in common. Id. On appeal, we found that
“the trial court took into account the factors which were common, and those which were not,
and we are unable to say that the trial court abused his discretion.” Id.
¶31. Based on the forgoing discussion, we cannot say that the trial court in today’s case
abused its discretion by finding that Richardson’s counts should be tried together, despite
evidence being needed to prove each count that would not be admissible to prove the other
count. The trial court recognized that there would be different witnesses and different
evidence for the two crimes. We note, however, that some of the witnesses at trial testified
concerning both the murder and the firearm charges. For example, Investigator Cooper gave
14 significant testimony as to both counts. He testified about Richardson’s confession, in which
Richardson admitted to hitting Evans in the head with a baseball bat and stealing both of
Evans’s wallets. Investigator Cooper also located both of the guns that Richardson had
purchased. Sarah Gibson also gave testimony relating to both counts. She testified that, on
the day of the attack, Richardson had stated to her that he had “done something bad.” She
also testified that she later had witnessed Richardson’s purchase of two guns. Also,
Richardson’s counsel did not request a limiting instruction, nor did Richardson’s counsel
offer to stipulate that Richardson had a previous felony conviction. Also, defense counsel
did not object at trial to evidence of Richardson’s previous conviction. See Harper v. State,
478 So. 2d 1017, 1025 (Miss. 1985) (citing Newell v. State, 308 So. 2d 71, 78 (Miss. 1975))
(“[T]he lower court may not be put in error for failure to instruct the jury on any point of law
unless specifically requested in writing to do so.”). See also Rushing, 911 So. 2d at 539
(citing Brown v. State, 890 So. 2d 901, 913 (Miss. 2004)).
¶32. For the sake of emphasis, we state again that, during the pretrial severance hearing,
the trial court offered to allow defense counsel to stipulate that Richardson had a prior felony
conviction, and if so stipulated, then the State would be bound by that stipulation. However,
defense counsel never stipulated to this fact. We quote the trial judge on this point:
But if the defense wishes to stipulate that [Richardson] has a prior conviction, then the State would be bound by that stipulation, as the Court recalls, from the U.S. Supreme Court.4 But I -- I think they meet -- the Court finds that they meet that test, that they’re interwoven, that the time period is insignificant, and
4 The trial court most likely had in mind Old Chief v. United States, 519 U.S. 172, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997). See also Rigby v. State, 826 So. 2d 694, 699-703 (Miss. 2002).
15 that there’s going to be some bleed-over in the witnesses that can prove one count and the other.
Presented with this golden opportunity to stipulate before the jury to the prior felony
conviction, without any reference to the nature of the offense (aggravated assault) for which
Richardson was convicted, or any other details of the prior conviction, the defendant, through
counsel, chose not to stipulate to the prior conviction for the purpose of proof of an element
of the offense of felony firearm possession.
¶33. Finally, we take note that the trial court did instruct the jury that the two counts were
separate offenses and should be considered separately.
¶34. The final Corley factor that the trial court should consider is whether the crimes are
interwoven. Corley, 584 So. 2d at 772. In Rushing, 911 So. 2d at 537, we found that three
counts of prescription forgery occurring in a five-month period were interwoven because
they “involve too many similar factors when viewed together, to be anything but clearly
linked and part of the same common scheme or plan.” In Harris v. State, 908 So. 2d 868
(Miss. Ct. App. 2005), the Court of Appeals found that the trial court did not err in denying
a motion to sever a felon-in-possession-of-a-handgun charge from other counts of burglary
and sale of a stolen firearm. The defendant in Harris broke into a mobile home and stole a
Glock 19 pistol. Id. at 870. Approximately two months later, the defendant sold the stolen
gun to a police informant. Id. at 871. In finding that the trial court did not abuse its
discretion by refusing to sever the counts, the Court of Appeals stated:
The common thread running through each of the counts is the gun. It was taken in the burglary, it was possessed, and it was sold. Each of the offenses are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan. It seems that the scheme or
16 plan was to commit a burglary and get items which could be sold illegally for cash.
Id. at 875.
¶35. Similar to Harris, we find that Richardson’s charges have a “common thread” – the
money stolen from Evans. The underlying felony in Richardson’s murder charge is robbery.
After Richardson hit Evans on the head with a baseball bat, he stole Evans’s wallet, which
contained a large amount of cash. Shortly thereafter, Richardson used the money he had
stolen from Evans, among other things, to purchase two guns. Based on this connection, we
find that the trial court did not abuse its discretion in finding that Richardson’s two charges
were interwoven.
¶36. In the background of our analysis, we also consider the policy behind prohibiting
multicount indictments in some cases, but allowing multicount indictments in other cases.
In Corley, we stated:
We have been, and remain, unwilling to allow separate and distinct offenses to be tried in the same criminal proceeding. We do so in order to avoid potential problems of a jury finding a defendant guilty on one unproven count due to proof of guilt on another, or convicting a defendant based upon the weight of the charged offenses, or upon the cumulative effect of the evidence.
Corley, 584 So. 2d at 772 (citations omitted). Based on the facts of this case – most notably,
the overwhelming evidence supporting the jury verdicts for both counts – we find that the
well-settled law in Corley, protecting defendants from convictions based on evidence of
separate and distinct offenses, is not in jeopardy.
¶37. While we have found that the overwhelming weight of the evidence supports the jury
verdicts in today’s case, we also note, alternatively, that even if we were to find that the trial
17 court had abused its discretion in today’s case (which we do not find), the result would be
harmless error. “Harmless-errors are those which in the setting of a particular case are so
unimportant and insignificant that they may, consistent with the Federal Constitution, be
deemed harmless, not requiring the automatic reversal of the conviction.” Williams, 991 So.
2d at 599 (quoting Tran v. State, 962 So. 2d 1237, 1247 (Miss. 2007)). We “have the duty
to be fair, not only to the defendant, but to the State as well.” Tran, 962 So. 2d at 1246.
“Harmless-error analysis is often necessary to prevent unfair prejudice to the State, and the
State is certainly prejudiced where convictions are reversed based on errors which do not
affect the substantial rights of the parties.” Id. (citations omitted). “In conducting [a]
harmless-error analysis, this Court has the power and duty to review the record de novo in
order to determine the error’s effect.” Id. at 1247 (citations omitted). Both of Richardson’s
convictions are supported by overwhelming evidence. Richardson confessed to both crimes.
He also admitted to several other witnesses that he had robbed Evans. Richardson inquired
of Investigator Cooper as to Evans’s condition and apologized several times for what he had
done to Evans. Barbara Tenney, a witness for the defendant, testified, inter alia, that
Richardson had informed her that he needed new pants because of blood on his pants.
Tenney also testified that Richardson had told her that “I hope [Evans] didn’t die. His eyes
rolled back in his head when I hit him.” There was also eyewitness testimony that he had
purchased handguns on the day of the murder. Accordingly, even assuming, arguendo, that
the trial court in today’s case erred in denying Richardson’s motion to sever, we find the
error was harmless and did not result in Richardson’s trial being fundamentally unfair.
18 ¶38. In sum, we find that the trial court did not abuse its discretion by denying
Richardson’s motion to sever. The trial court held a pretrial Corley hearing and properly
considered all of the Corley factors. This issue is without merit.
III. WHETHER THE TRIAL COURT ERRED IN DENYING RICHARDSON’S MOTION IN LIMINE TO EXCLUDE EVIDENCE OF OTHER CRIMES.
¶39. We review a trial court’s admission or exclusion of evidence for abuse of discretion.
Murray v. State, 849 So. 2d 1281, 1288 (Miss. 2003). “The trial court’s discretion must be
exercised within the confines of the Mississippi Rules of Evidence.” Davis v. State, 40 So.
3d 525, 529 (Miss. 2010) (citing Murray, 849 So. 2d at 1288). “We will reverse only if such
discretion has been abused and a substantial right of a party has been affected.” Id.
¶40. Evidence must be relevant to be admissible. Miss. R. Evid. 402. Absent an exception,
all relevant evidence is admissible. Miss. R. Evid. 402. Relevant evidence “may be
excluded if its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury . . . .” Miss. R. Evid. 403. Moreover,
“[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show that he acted in conformity therewith. It may, however, be
admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” Miss. R. Evid. 404 (b). “Evidence
of other crimes, wrongs, or acts of the defendant offered pursuant to Rule 404(b) may be
excluded if its probative value is substantially outweighed by the danger of unfair prejudice.”
Davis, 40 So. 3d at 529-30 (citing Miss. R. Evid. 403).
19 ¶41. Richardson contends that the trial court abused its discretion in allowing evidence of
other crimes and bad acts – in particular, the purchase and use of cocaine and possession of
firearms. Richardson filed a motion in limine to exclude evidence of these acts, and a
hearing was held on the motion. At the hearing, Richardson argued that the evidence of other
crimes was highly prejudicial and should be excluded. The trial court denied Richardson’s
motion. The trial court performed a Rule 403 balancing test and found that the evidence
relating to the cocaine and guns was prejudicial. But the trial court then found that the
evidence had probative value and that the probative value of this relevant evidence was not
substantially outweighed by the danger of unfair prejudice.
¶42. On appeal, Richardson contends that the trial court abused its discretion because the
evidence of the robbery alone was sufficient to establish motive for the murder. Richardson
also claims that the State “never clearly articulated that Richardson’s motive was to get
money to buy drugs and guns,” and any such assertion by the State was “purely speculation.”
¶43. Richardson cites Snelson v. State, 704 So. 2d 452 (Miss. 1997), in support of his
argument. In Snelson, we found that the introduction of evidence of a defendant’s cocaine
purchase after he had committed a murder was reversible error. Id. at 455. In Snelson, the
defendant stole several items, including guns, from a man’s home with the intention of
selling the stolen items for cash. Id. at 453. The defendant then shot and killed the
homeowner. Id. After selling the guns, the defendant used the proceeds to purchase cocaine.
Id. at 455. This Court found that it was error for the trial court to allow the evidence of the
defendant’s purchase and use of cocaine, stating that:
20 We hold that the evidence which showed that Snelson bought and used cocaine after he had sold the stolen guns did not have the tendency to make any fact that was of consequence to the determination of whether Snelson killed Stephen Goode more probable or less probable than it would without the introduction of such evidence.
Id.
¶44. Snelson distinguished Mack v. State, 650 So. 2d 1289 (Miss. 1994), finding that
“[u]nlike Mack, there is no evidence showing that the primary objective of Snelson’s actions
was to obtain money to buy cocaine.” Snelson, 704 So. 2d at 455. In Mack, the defendant
killed a man during a robbery at the man’s home. Mack, 650 So. 2d at 1294. Mack then
used the money he had stolen from the victim to purchase cocaine. Id. at 1313. On appeal,
Mack argued that the trial court had erred in admitting evidence that he had purchased and
used cocaine, because the underlying felony of robbery was sufficient to establish motive for
murder. Id. at 1311. There was evidence that Mack had smoked cocaine prior to the murder;
that he wanted to purchase more cocaine but did not have the funds; and that, after the
murder, Mack purchased more cocaine. Id. at 1313. Although we did caution against the
use of such evidence, we found that it was not reversible error for the trial court to admit the
evidence of Mack’s purchase and use of cocaine, stating that:
This is an area fraught with danger, and prosecutors and trial courts alike should approach with caution any evidence of other crimes offered for the purpose of proving motive for a robbery. Robbery has its own motive – the attainment of something of value. It matters not whether the perpetrator is poor seeking the cost of a meal, or rich in search of a thrill. The use to which that value is put or to be put ordinarily has no relevance. Here, because of the close connection of a specific monetary objective and because of the overwhelming evidence of guilt, we conclude that the error in admitting this evidence, if any, is harmless beyond a reasonable doubt.
Id. (emphasis added).
21 ¶45. With facts similar to Mack, this Court in Conner v. State, 632 So. 2d 1239, 1273-74
(Miss. 1993), overruled on other grounds by Weatherspoon v. State, 732 So. 2d 158 (Miss.
1999), found that evidence of the defendant’s cocaine use on the same day that he had robbed
and murdered an elderly woman was admissible to show pecuniary motive. The prosecution
in Conner presented evidence of the defendant’s “penniless condition before the crime” and
“his improved financial situation thereafter.” Id. at 1274. In finding that the evidence of
drug use was entered to show pecuniary motive to rob and murder, we stated that the
evidence was “[o]bviously . . . relevant to the core issue of whether Conner committed the
crime with which he is charged.” Id.
¶46. We find the facts of today’s case similar to those in Conner. Evidence was presented
at trial that, typically, Richardson did not carry large amounts of money, and that Evans had
given Richardson financial help in the past. Arthur Price testified that, after the murder and
robbery, Richardson had stated to him that “he had robbed somebody and that he had some
money to get some drugs.” Price also testified that Richardson had paid for all of the cocaine
which was delivered to Beverly Gurley’s home. McKenzie Barham testified that Richardson
had given her a one-hundred-dollar bill to pay for gasoline and cigarettes and that Richardson
had paid for the drugs she had used on September 19, 2006. This evidence, coupled with the
testimony that Richardson had purchased the cocaine and guns shortly after he had robbed
Evans, tends to show Richardson’s pecuniary motive. Additionally, in his statement to law
enforcement officials, Richardson had claimed that a man named Kenny Jones knew
Richardson was going to attack Evans and take Evans’s money. Richardson stated that he
and Jones were supposed to meet after the robbery and that Jones was supposed to distribute
22 the money to other people. Thus, evidence of Richardson’s actions after the crimes was
relevant for the jury to hear “the whole story” to compare Richardson’s post-crime actions
concerning how he used the money with his statement to law enforcement personnel that the
money taken in the murder and robbery was to be distributed “to other people.”
¶47. Moreover, we have held that “‘the State has a legitimate interest in telling a rational
and coherent story of what happened.’” Davis, 40 So. 3d at 530 (quoting Brown v. State,
483 So. 2d 328, 330 (Miss. 1986)). “‘Where substantially necessary to present to the jury
the complete story of the crime, evidence or testimony may be given though it may reveal
or suggest other crimes.’” Davis, 40 So. 3d at 530 (quoting Brown, 483 So. 2d at 330). The
evidence of Richardson’s conduct after the murder provided the jury with a “rational and
coherent story of what happened.” Id. Richardson’s counsel also did not object to any
evidence of Richardson’s other crimes at trial or request a limiting instruction concerning the
evidence. See Brown v. State, 890 So. 2d at 913 (quoting Miss. R. Evid. 105) (“The burden
should properly be upon the trial counsel to request a limiting instruction . . . . ‘[W]hen
evidence which is admissible . . . for one purpose but not admissible . . . for another is
admitted, the court, upon request, shall restrict the evidence to the proper scope and instruct
the jury accordingly.’”) (Emphasis original).
¶48. Because the evidence of Richardson’s other crimes showed his pecuniary motive for
murdering Evans, we find that the trial court did not abuse its discretion in admitting
evidence of these other crimes. Further, in light of the overwhelming weight of the evidence
of Richardson’s guilt, we find that any unfair prejudice resulting from the admission of other-
23 crimes evidence was harmless and does not require reversal. See McKee v. State, 791 So.
2d 804, 811 (Miss. 2001). Accordingly, this issue is without merit.
IV. WHETHER THE TRIAL COURT ERRED IN ADMITTING A PHOTOGRAPH OF THE VICTIM’S BRAIN.
¶49. We review admission of photographs by the trial court for abuse of discretion.
Chamberlin v. State, 989 So. 2d 320, 340 (Miss. 2008). This Court should consider whether
the photographs were so gruesome or inflammatory as to lack any evidentiary purpose, thus
rendering them inadmissible. McFee v. State, 511 So. 2d 130, 134-35 (Miss. 1987). “Some
probative value is the only requirement needed in order to support a trial judge’s decision to
admit photographs into evidence.” Chamberlin, 989 So. 2d at 340 (quoting Jones v. State,
920 So. 2d 465, 476-77 (Miss. 2006) (other citations omitted)). Although reversal for the
admission of gruesome photographs is rare, “photographs which have no evidentiary purpose
and which only arouse the emotions of a jury should not be admitted.” Barfield v. State, 22
So. 3d 1175, 1181 (Miss. 2009) (quoting Sharp v. State, 446 So. 2d 1008, 1009 (Miss.
1984)). Photographs have evidentiary value when they: (1) aid in describing the
circumstances of the killing; (2) describe the location of the body and cause of death; or (3)
supplement or clarify witness testimony. Barfield, 22 So. 3d at 1181 (citing McIntosh v.
State, 917 So. 2d 78, 83 (Miss. 2005)).
¶50. Richardson contends that the trial court erred in admitting a photograph of Evans’s
brain. The photograph was taken during Evans’s autopsy and showed Evans’s brain after his
scalp and part of his skull had been removed. The original photograph also contained an
image of Evans’s open chest cavity. The trial court redacted the part of the photograph
24 depicting Evans’s chest cavity and admitted the rest of the photograph over Richardson’s
objection. Richardson now argues that the photograph was unduly prejudicial and not
probative.
¶51. Richardson cites McFee, 511 So. 2d at 135, and Hewlett v. State, 607 So. 2d 1097
(Miss. 1992). In McFee, this Court found that two photographs depicting a rape and murder
victim were “relevant and material,” and thus admissible. McFee, 511 So. 2d at 135.
Richardson cites Hewlett for the proposition that “photographs of a victim should not
ordinarily be admitted into evidence where the killing is neither contradicted nor denied, and
the corpus delicti and the identity of the deceased have been established.” Hewlett, 607 So.
2d at 1102. Richardson correctly quotes Hewlett; however, the opinion continues and states:
“Photographs may nevertheless be admitted into evidence in criminal cases where they have
probative value and where they are not so gruesome or used in a way as to be overly
prejudicial or inflammatory.” Id. (citing Sudduth v. State, 562 So. 2d 67, 70 (Miss. 1990)).
¶52. In this case, the photograph was entered into evidence during Dr. Hayne’s testimony.
Dr. Hayne, a pathologist, performed Evans’s autopsy and testified as to Evans’s injuries and
cause of death. Dr. Hayne was describing the injuries to Evans’s brain when the State
introduced the photograph. Richardson’s counsel objected, arguing that the photograph was
not relevant and highly prejudicial. The trial court found that the portion of the photograph
depicting Evans’s brain was relevant and, after performing a Rule 403 balancing test, that
this portion of the photograph was admissible. See Miss. R. Evid. 403. Specifically, the trial
court found that the photograph was relevant because Evans had died approximately three
25 and one half months after being hit in the head, and the photograph had helped to establish
the age of Evans’s brain injury.
¶53. The photograph was used to supplement Dr. Hayne’s testimony regarding the injury
to Evans’s brain. Dr. Hayne referred to the photograph while testifying that Evans’s brain
injury had occurred months prior to his actual death. The photograph showed a brown
discoloration on the brain, which Dr. Hayne testified forms four to five days after the actual
injury and lasts for years after the injury.
¶54. We find that the trial court did not abuse its discretion in admitting the photograph of
Evans’s brain. The trial judge weighed the probative value of the photograph against its
prejudicial effect and even redacted a portion of the photograph that was not relevant.
Because the photograph had probative value and was otherwise admissible under Rule 403,
we find that this issue is without merit.
CONCLUSION
¶55. The trial court’s admission of Richardson’s statement to police was in accordance
with correct principles of law and was supported by substantial evidence. The trial court did
not abuse its discretion in denying Richardson’s motion to sever the two counts of his
indictment or his motion in limine to exclude evidence of other crimes. Alternatively, any
error resulting from the trial court’s ruling on these motions was harmless beyond a
reasonable doubt because of the overwhelming evidence of guilt presented by the State.
Finally, the trial court did not abuse its discretion in admitting a photograph of the victim’s
brain, because the photograph had probative value which was not substantially outweighed
by the danger of unfair prejudice.
26 ¶56. Accordingly, we affirm the Lowndes County Circuit Court’s judgment of conviction
for capital murder and felony possession of a firearm, as well as the respective sentences of
life imprisonment without parole and ten years’ imprisonment, to be served consecutively,
all in the custody of the Mississippi Department of Corrections.
¶57. COUNT I: CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF FELONY POSSESSION OF A FIREARM AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE IN COUNT I SHALL NOT BE REDUCED OR SUSPENDED, NOR SHALL APPELLANT BE ELIGIBLE FOR PAROLE OR PROBATION, WEEKEND PASSES OR EARLY RELEASE OF ANY KIND. SENTENCE IN COUNT II SHALL RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I.
WALLER, C.J., DICKINSON, P.J., RANDOLPH, LAMAR, KITCHENS, CHANDLER, PIERCE AND KING, JJ., CONCUR.