Tolbert v. State

407 So. 2d 815
Mississippi Supreme Court·Decided December 16, 1981·No. 52925·Published·Cited by 59 cases

Opinion

407 So.2d 815 (1981)

Donna S. TOLBERT
v.
STATE of Mississippi.

No. 52925.

Supreme Court of Mississippi.

December 16, 1981.

Richard E. Stratton, III, Brookhaven, for appellant.

Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.

*816 Before SMITH, P.J., and WALKER and BOWLING, JJ.

SMITH, Presiding Justice, for the Court:

Donna S. Tolbert was indicted for the murder of Tim Faust. She was tried upon that charge in the Circuit Court of Copiah County, convicted, and sentenced to life imprisonment. She has appealed, assigning for reversal several grounds.

At the time of the homicide, Donna Tolbert was employed by Faust as bookkeeper and receptionist in the operation of an insurance agency in the City of Hazlehurst. The agency office occupied the ground floor of a building fronting on a public street in the downtown business section of Hazlehurst. The testimony, including that of Tolbert, is undisputed that there was only one way in or out of the office, and that was by way of the front door which opened upon the public sidewalk.

The office consisted, in addition to the room used for the transaction of business, of a bedroom, a bath and a kitchen. The murder weapon was identified as a butcher knife from the kitchen. The homicide occurred in the agency office at about 8:00 on a week day morning, on a clear day. At that time, there was traffic on the street and people were moving about. Witnesses occupying various points of vantage, had their attention drawn to the front (and only) door of the office by a "noise", and by the sight of Faust who staggered out of the door covered with blood. It was later determined that Faust had suffered one stab wound in the back and six stab wounds in the chest, one of the stab wounds having pierced his aorta and having penetrated more than six inches into his chest. Faust also had sustained two "defense type" wounds in the left and right forearms. From these injuries Faust died in a very short time.

Faust was seen to emerge from the door of the office the front of the office having been under observation by one or more of several persons on the street on which the office fronted. No person other than Faust himself, and later Tolbert, was seen to emerge from the office. Tolbert's defense is based upon her statement that an unknown "black man" had come into the office and had engaged in an argument with Faust over a debt. She said, and later testified, that it had not been she, but this black man, who had stabbed Faust to death. Tolbert testified that after stabbing Faust the black man had first run toward the back of the apartment (office). She said that there was no possible exit in that direction and that the man had returned and had then left the office following Faust who had previously gone out the door. This black man was seen by no other person of the several who were observing the office entrance through which they had seen Faust emerge.

THE VERDICT OF THE JURY WAS SUPPORTED BY SUFFICIENT EVIDENCE

A number of witnesses saw Faust fall from the front door of his office onto the sidewalk. Each of them saw Tolbert afterward come to the door, return into the office and then come outside again. No one saw anyone else leave the office or flee the scene.

Despite the fact that there were several persons in a position to observe the front door of the agency office from the time Faust emerged until after Tolbert had come out for the second time, no witness observed a "black man" or anyone other than Faust and Tolbert come out of the office. Tolbert had testified that after the black man had stabbed Faust he threatened her "So I went into Mr. Faust's office and as I went in the man ran past down the hall towards the back of the office building. I looked out and Mr. Faust had gotten to his feet and was making his way to the front door and the man then ran back past, and Mr. Faust had the door open and was going out, and the man ran out directly behind him." (Emphasis added).

Tolbert reiterated this statement on cross-examination when she had been asked if she had meant to say "That when the alleged black man went out the front door that Mr. Faust had already gone out?" She *817 said again "Mr. Faust was holding onto the door" and also that "He had gone out."

Witness Hardy Brown said that his attention was drawn to the door of the office by the noise when Faust had "hit up against the door." He said that after hearing the noise his "eyes was still on Tim Faust's door, over in that direction."

Brown testified that when Faust had fallen out the door "A lady come to the door and stood up there about a second or two and walked back in the office." The witness said that after Tolbert had looked at Faust and returned to the office she afterward came out a second time "bleeding and calling for help." He stated that it was when she had come out the second time that she began "hollering for help," and started crying and screaming.

On cross-examination Hardy Brown testified that, after hearing the noise of Faust falling against the door as he came out of the office, in response to the question: "You just kept your eyes glued to the Faust Insurance Agency door?" answered: "Time this happened I did."

Witness Ann Jenkins testified that she saw Mr. Faust coming out of his door and holding onto the door and that, at the time, she herself had been "right at the edge of the sidewalk going on to the street."

Ann Jenkins was coming out of the bakery when she saw Faust fall out of the door onto the sidewalk, covered with blood. She caught a glimpse of some other person behind Faust whom she described as "a white face and whoever it was had dark hair." She ran toward Faust from the bakery shouting, "He's bleeding to death," and it was then that she saw Tolbert emerge from the office. Mrs. Jenkins saw no other person leave the office or flee the scene.

Donna Goodman, also employed in a secretarial capacity by the Faust agency, had stopped at a traffic light when she observed Faust "hanging" on the outside of his office door and observed him as he fell out of the door face down on the sidewalk. Mrs. Goodman saw no other person other than Faust and Tolbert leave the office.

All of these witnesses agree that no black man or anyone else, other than Faust and Tolbert, came out of the office door.

Other witnesses who had been in the vicinity support the fact that no black man was seen to emerge from the office or flee the scene.

There was evidence that prior to the murder Faust had discovered several inconsistencies or discrepancies in his office checkbook, check stubs, and bank accounts, several check signatures which were questionable. One of Tolbert's duties was to fill out the check stubs and checks. On Thursday, June 26, Faust had asked Debbie Robinson, also an employee of the agency, to examine the signatures on eight Faust checks (numbers 17931, 19504, 18740, 19398, 19404, 19505, 19405 and 19406). These cancelled checks were found to have been in Faust's pocket at the time he was killed. Mrs. Robinson testified that five of the checks did not bear the genuine signature of Faust. The checks referred to were the last five of those enumerated above. These checks were as follows:

  CHECK           STUB                          INFORMATION ON
  NUMBER          INFORMATION                   CANCELLED CHECKS
  18740           1/28/80                       Amount: $460.00
                  To: David Cloyd               Amount payable to:
                  1979 Dividend                 Merchandise and
                 

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