Saunders v. State

733 So. 2d 325, 1998 WL 906444
CourtCourt of Appeals of Mississippi
DecidedDecember 30, 1998
Docket97-KA-00657 COA
StatusPublished
Cited by5 cases

This text of 733 So. 2d 325 (Saunders 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
Saunders v. State, 733 So. 2d 325, 1998 WL 906444 (Mich. Ct. App. 1998).

Opinion

733 So.2d 325 (1998)

Herman SAUNDERS a/k/a Herman Fitzgerald Saunders a/k/a Robert Marsh a/k/a Mickey Marsh a/k/a Adrian Marsh, Appellant,
v.
STATE of Mississippi, Appellee.

No. 97-KA-00657 COA.

Court of Appeals of Mississippi.

December 30, 1998.
Rehearing Denied April 20, 1999.

*327 William B. Kirksey, Jackson, Attorney for Appellant.

Office of the Attorney General by Charles W. Maris, Jr., Attorney for Appellee.

Before BRIDGES, C.J., and PAYNE and SOUTHWICK, JJ.

SOUTHWICK, J., for the Court:

¶ 1. Herman Saunders was convicted by a Lamar County jury of two counts of capital murder. He appeals alleging these to be errors: (1) applying the murder for hire statute to the killing of a chance victim; (2) admitting evidence of a prior bad act; (3) informing the jury of Saunders's status as an habitual offender; (4) calling of a witness who was expected to invoke his Fifth Amendment rights; and (5) admitting evidence of a co-conspirator's prior conviction. We find no error and affirm.

FACTS CONSISTENT WITH VERDICT

¶ 2. On September 9, 1993, Herman Saunders fired shots into a vehicle occupied by Bennie Brown and Gloria Lampley. Lampley was then Saunders's girlfriend and by the time of trial was his wife. On October 30, 1993, which was two days before Brown was to testify about Saunders before a Lauderdale County grand jury, Brown and his niece were murdered.

¶ 3. Approximately two weeks before the murders, Saunders met with Carlos Stewart and Danny Porter for the purpose of purchasing a gun from them. He mentioned wanting someone killed. One week later, Stewart and Porter again met with Saunders at a local bar. Saunders informed Porter that he would pay him and Stewart $3,000 each for killing someone. Another meeting occurred the night before the murders. This time, Saunders provided details, informing Stewart and Porter that he wanted Bennie Brown killed because he was going to "send him to jail." Saunders attempted to procure a second handgun for Porter and Stewart but was unable to do so. He then drove them past Brown's home. Saunders informed them that Brown drove a red Porsche and they would know whether he was home by its presence in the driveway. Porter and Stewart were then instructed by Saunders to go in through the backyard and not the front of the house.

¶ 4. Early the next morning, the two gunmen approached Brown's home from the rear. They knocked and Brown's niece, Natasha Cole, answered. Stewart panicked, as he knew Cole and feared that she would be able to recognize him. When Brown approached the door, Stewart attempted to close it and flee. Instead, Porter burst through the door and shot Brown. The two contract killers then fled to their vehicle. Stewart told Porter why Cole might recognize him. They decided to kill Cole as well. Stewart went back inside the home and found Cole hiding in a crawlspace in the attic. He shot her four times.

¶ 5. Stewart, Porter, and a friend eventually stopped at a Hattiesburg hotel and Porter phoned Saunders. The next morning, Saunders arrived and the group followed him to the Mississippi Gulf Coast. At a beach pavilion, Saunders paid Porter and Stewart $3,000 each. They then traveled to New Orleans, and, after a few days, returned to Gulfport where they placed their friend on a Hattiesburg bound bus. Porter and Stewart fled to Atlanta. While in Atlanta, the two met with Saunders who said that because of a nationwide search *328 for them, he was surrendering to police. A few days later, Porter and Stewart were arrested in Atlanta.

¶ 6. Saunders was charged with one count of conspiracy to commit murder and two counts of capital murder for the deaths of Bennie Brown and Natasha Cole. The conspiracy charge was dropped. After a jury trial, Saunders was found guilty on both counts. Since the jury was unable to decide on a sentence, the trial judge sentenced Saunders to two terms of life in prison without the possibility of parole, with the sentences to run consecutively.

DISCUSSION

I. Capital murder of Natasha Cole

¶ 7. Saunders makes a technical legal argument concerning whether he could be guilty of capital murder of Natasha Cole. She was not the target of Saunders's murderous contract but got in the scheme's way. At most, Saunders alleges, he could be guilty of the simple murder of Cole. He then argues that the jury instructions did not permit conviction of simple murder.

¶ 8. Capital murder—any murder for which the death penalty is a possibility —encompasses specifically defined crimes that do not necessarily include all heinous murders. Saunders was indicted under the murder for hire subsection. Miss.Code Ann. § 97-3-19(2)(d) (Rev. 1994). Saunders argues that even though this subsection certainly applies to the killing of Bennie Brown, that it cannot apply to the killing of Brown's niece, Natasha Cole. Her murder was not an explicit part of the contract. The supreme court has not considered the contracting party's culpability under the capital murder statute for a secondary murder occurring during the commission of a murder for hire. This is not suggesting that the absent, contracting party cannot be criminally responsible for the secondary murder, but challenges whether it is a capital offense. Saunders is not guilty of capital murder for Ms. Cole's death unless the statute can be reasonably interpreted to make him so.

¶ 9. Murders that occur during the commission of specific felonies can be charged as capital murder: a murder during "the commission of the crime of rape, burglary, kidnapping, arson, robbery, sexual battery," and certain other sexual crimes. Miss.Code Ann. § 97-3-19(2)(e) (Rev. 1994). However, a murder that occurs during the commission of another capital murder is not an enumerated capital murder crime. Saunders was not indicted for Ms. Cole's under that subsection anyway but under the murder for hire subsection.

¶ 10. The only possible subsection for Saunders's guilt of capital murder for Ms. Cole's death is the one the State used: "(d) Murder which is perpetrated by any person who has been offered or has received anything of value for committing the murder, and all parties to such a murder, are guilty as principals...." Miss.Code Ann. § 97-3-19(2)(d) (Rev.1994). Saunders argument starts from the premise that the unwritten contract that structures the murder for hire must be defined narrowly. This section of the capital murder statute applies only to a killing perpetrated by someone who will be paid "for committing the murder...." Saunders argues that only Bennie Brown's murder was part of the contract for which he would receive payment. We must analyze that claim.

¶ 11. Porter and Stewart were explicitly offered money to murder Bennie Brown. Different scenarios could arise under such an agreement. If the person seeking to hire killers knows that another person lives with his intended victim and expressly states that the other person should be killed if she is present, then part of the reason that the money is promised is for the killing of the secondary person. If however the employer of murderers has no idea whether anyone else might be present, but just says generally to kill anyone who witnesses the crime, a secondary killing that occurs is a little more unstructured *329

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Bluebook (online)
733 So. 2d 325, 1998 WL 906444, Counsel Stack Legal Research, https://law.counselstack.com/opinion/saunders-v-state-missctapp-1998.