Nathaniel GRIFFIN
v.
STATE of Mississippi.
Supreme Court of Mississippi.
*187 Thomas E. Royals, Royals, Hartung & Davis, Jackson, for appellant.
Edwin Lloyd Pittman, Atty. Gen. by John H. Emfinger, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before HAWKINS, P.J., and ROBERTSON and SULLIVAN, JJ.
SULLIVAN, Justice, for the Court:
Nathaniel Griffin was convicted of murder and sentenced to life imprisonment by the Circuit Court of the Second Judicial District of Hinds County. Prior to his trial, a competency hearing was held and the jury found that Griffin was competent to assist his lawyer in preparing his defense and thereby competent to stand trial. He has consolidated these two cases for our consideration on appeal. For the reasons discussed below, we affirm both the competency determination and the murder conviction.
FACTS
Sometime during the early morning hours of September 22, 1982, Maxine Lewis and Bernice Ratliff were murdered. Their bodies were found near the Natchez Trace at a rest area just south of Interstate 20 in Hinds County. Officer Sammy Magee of the Hinds County Sheriff's Department investigated the crime and learned that the victims were last seen with Nathaniel Griffin. Griffin was subsequently arrested in Vicksburg and a search of the residence where he was staying uncovered a .22 calibre revolver. Subsequent ballistic tests conducted by the State Crime Lab confirmed that the revolver was used in the murders. Griffin was later indicted for the murder of Maxine Lewis on February 24, 1983.
*188 During his incarceration in Hinds County pending trial, Griffin complained of numerous physical ailments and filed numerous handwritten motions alleging, among other things, that there was a conspiracy at jail to poison him. Drs. Donald Guild and Charlton Stanley examined Griffin and concluded that he was incompetent to assist counsel and incompetent to stand trial. Griffin was transferred by court order to the Mississippi State Hospital. The staff at the Mississippi State Hospital evaluated Griffin and determined that he was competent to stand trial. Drs. Guild and Stanley disputed this determination and Griffin's attorney filed a motion for a preliminary hearing to determine his competency. The jury, after hearing conflicting medical testimony, found that Griffin was competent to stand trial.[1]
A trial on the merits was held on March 12, 1984. Debra Butler, Griffin's girlfriend, testified on behalf of the prosecution and detailed the events leading up to the murder. She stated that after arguing with the victims, Griffin shot Maxine Lewis. Additional forensic evidence confirmed that the gun recovered at the time of the arrest was the murder weapon. At the close of the hearing, the jury found Griffin guilty of the murder of Maxine Lewis and sentenced him to life imprisonment.
LAW
As previously noted, Griffin assigns errors from both the competency hearing and the trial on the merits. Accordingly, we will examine each under separate headings.
THE COMPETENCY HEARING
I.
WHETHER ALLEGED CUMULATIVE ERROR AND ALLEGED PROSECUTORIAL MISCONDUCT WAS SUCH THAT THE DEFENDANT WAS DENIED A FAIR COMPETENCY HEARING?
Griffin points to at least seven alleged errors which he claims rendered his competency hearing unfair and in violation of both the United States and our State Constitution. Citing Smith v. State,
Griffin's first alleged error occurred at the close of voir dire when the prosecutor commented that the defendant had assisted his counsel in selecting the jury. Griffin argues that this was an improper comment on his demeanor and influenced the jury to believe he was competent regardless of the evidence produced at the hearing.
We have long held that prosecuting attorneys should refrain from commenting upon the appearance or the demeanor of the defendant at trial. Reed v. State,
Griffin's next alleged error concerns the mode of cross-examination used by the prosecution during its examination of Dr. Guild. The questions complained of concern the amount of time which Dr. Guild examined Griffin prior to rendering his opinion as to Griffin's competency to stand trial. Griffin argues that the prosecution's examination of Guild amounted to nothing more than a browbeating technique designed to prejudice the jury. We do not agree.
*189 In Hollins v. State,
Griffin next argues that Dr. Guild was asked to draw legal rather than psychiatric conclusions during the cross-examination. Under direct examination, Guild testified that his opinion as to Griffin's incompetency was based in part on Griffin's belief that he was a legal expert and that the 270 day rule would prevent him from being tried on these charges. He also stated that he relied on the opinion of Tommy Mayfield, the assistant prosecutor, in determining that Griffin was incompetent to stand trial. On cross-examination, the prosecution asked Guild numerous questions with regard to whether Griffin's beliefs and Mayfield's opinions led to his conclusion that Griffin was incompetent to stand trial.
In every case where an expert witness is allowed to express an opinion, such witness is subject to cross-examination as to the basis of that opinion. City of Laurel v. Upton,
Griffin next contends that the trial judge erred in allowing Dr. Gray Hillsman to express his opinion about Dr. Guild's diagnosis of Griffin. Griffin argues that such testimony serves only to pit one expert's testimony against another and that this usurped the function of the jury.
In Belesky v. City of Biloxi,
It is argued that the trial court erred in allowing Dr. Stanley to testify as to his opinion of the finding of appellant's expert witness. We hold that these opinions were based upon his expert, independent knowledge of psychology and were used as a substitute for a hypothetical question. Having two different and opposing opinions offered by two experts, it was the duty of the jury as the fact-finding body to give such weight as it saw fit to their opinions.
The testimony in this case is controlled by the authority cited above. Dr. Hillsman listened to Guild's testimony at trial and offered his opinion with regard to whether or not Guild reached the correct diagnosis concerning Griffin's competency. Such testimony did not usurp the function of the jury, rather it gave the jury two opinions which they could give weight to as they saw fit. Again, we find no merit to this argument.
Additionally, Griffin contends that Dr. Margie Lancaster was allowed to testify outside her field of expertise. Dr. Lancaster was qualified as an expert in neurology. She was asked on direct examination whether or not she had an expert opinion as to whether Griffin was competent to stand trial. She testified that Griffin suffered from no neurological abnormalities which would prevent him from assisting counsel at trial. Griffin contends that such testimony was psychiatric rather than neurological and therefore was admitted in error.
In reviewing Lancaster's testimony, we fail to see where she stepped outside the realm of expertise. The gist of her testimony was that she had performed several neurological examinations on Griffin and found that he had no problems in his nervous *190 system which would prevent him from assisting counsel in preparing his defense. She was never asked nor did she ever express an opinion with regard to whether Griffin suffered from psychiatric abnormalities that would prevent him from assisting counsel at trial and thereby rendering him incompetent to stand trial. Therefore, we hold that no error occurred here.
Griffin's last alleged incident of prejudicial error occurred when the State was allowed to introduce a letter written by the staff at Whitfield into evidence at the conclusion of Dr. Lancaster's testimony. The letter in question was a culmination of various tests performed by the staff at Whitfield and used in the final evaluation of Griffin's competency. Griffin argues that such information constitutes inadmissible hearsay and requires that this Court reverse.
In Williamson v. State,
In Wild v. Bass,
II.
WHETHER THE JURY WAS ERRONEOUSLY INSTRUCTED AS TO THE BURDEN OF PROOF IN A COMPETENCY HEARING?
Under this assignment of error, Griffin contends that the jury was erroneously instructed as to the burden of proof in a competency hearing. The essence of his argument though is that there is no particular standard of proof that the State is required to prove competency by. He argues that the State should be required to prove by clear and convincing evidence that the defendant was incompetent to stand trial. As such, he argues that instruction Nos. 1 and 2 were erroneous because they set the same standard of proof for each party. Griffin's argument fails for at least two reasons. First, he failed to make a specific objection at trial to any of the instructions given by the trial judge. Rule 42 of the Mississippi Supreme Court Rules specifically provides that unless a specific objection is made at trial to a particular instruction, such an assignment of error will not be considered on appeal by this court. See Miss.Sup.Ct. Rule 42. Griffin's failure to object at trial thereby bars review of this alleged error.
Secondly, the basic procedure for trial courts to follow in determining whether or not an accused is competent to stand *191 trial is set forth in Emanuel v. State,
Thus, after reviewing the evidence and the record, we find no prejudicial error which denied Griffin due process or rendered his competency hearing unfair and in violation of the State and Federal Constitutions. Therefore, we affirm the finding of the jury that Griffin was competent to stand trial.
TRIAL ON THE MERITS
I.
WHETHER THE CUMULATIVE EFFECT OF ALLEGED PROSECUTORIAL MISCONDUCT DEPRIVED APPELLANT OF HIS RIGHT TO A FAIR TRIAL?
Again Griffin presents numerous incidents of misconduct and urges that their cumulative effect ultimately deprived him of his right to a fair trial. He basically sets forth two types of errors for review. First, Griffin contends that the trial court erroneously allowed the prosecution to admit evidence of other crimes for which he was neither charged nor being tried for at this proceeding. Secondly, he argues that the prejudicial comments by the prosecution during voir dire and closing argument inflammed the jury's passion, prejudice and bias such that he was denied a fair and impartial trial. We will address the errors under their respective headings.
A.
DID THE TRIAL COURT IMPROPERLY ADMIT EVIDENCE OF SEPARATE AND DISTINCT CRIMES OTHER THAN THE ONE CHARGED?
Griffin's first assignment of error concerns the introduction of certain photographs which depicted the scene of the crime. The photographs showed two bodies laying at the rest area. Although Griffin fails to cite any authority for the proposition that such photographs constitute evidence of other crimes, we will address this issue any way.
Photographs of bodies may be admitted into evidence in criminal cases where they have probative value and where they are not so gruesome or used in such a way as to be overly prejudicial or inflammatory. Johnson v. State,
Turning to the instant case, it is clear that the two crimes were so connected so as to constitute a single transaction. The bodies were found together and the victims were killed by the same weapon. The remaining forensic evidence indicates that the time of death for each victim was within minutes of the other. Further, the *192 photographs were not extremely gruesome nor used in an inflammatory or prejudicial manner. They were used simply to identify the scene of the crime and the victim and were highly probative in this regard. We cannot say that the introduction of these photographs was reversible error.
Griffin complains that evidence of a separate crime was elicited by the State during the testimony of Officer Kenny Williams. During direct examination, Officer Williams was asked who arrested Griffin and testified that Griffin was arrested on other charges. Defense counsel objected and the trial judge immediately instructed the jury to disregard the statement. Thereafter, on cross-examination, defense counsel again asked Williams who arrested Griffin and he responded in like manner. Defense counsel moved for a mistrial which was overruled.
An attorney who invites error cannot complain of it. Edwards v. State,
Additionally, Griffin argues that evidence of a separate and distinct crime was introduced during the re-direct examination of Debra Butler by the State. On cross-examination, defense counsel attempted to impeach Butler by introducing letters she had written to Griffin while she was incarcerated. Reference was made to certain violent acts done to her by Griffin in the past. On re-direct, the State inquired about the nature of these acts and Butler testified that Griffin had beaten her and burned her with cigarettes in the past. Griffin contends that such testimony was highly prejudicial and simply used to inflame the passion of the jury, thus constituting reversible error. We disagree.
In Gill v. State,
Finally, Griffin cites other similar incidents during the testimony of other witnesses which he failed to object to at trial. It is incumbent on counsel to object contemperaneously when objectional statements are given during a witness' testimony so that the trial judge can correct any error with proper instructions to the jury. Shelton v. State,
B.
WHETHER PROSECUTORIAL MISCONDUCT DURING VOIR DIRE AND CLOSING ARGUMENT WAS SUCH TO WARRANT REVERSAL OF THE CONVICTION?
Under this assignment of error, Griffin contends that statements by the prosecution during voir dire were highly prejudicial and improper. The thrust of Griffin's argument concerns the following exchange:
Is there anyone that for any reason right now knows in their mind that they would be looking for a doubt other than a reasonable doubt? For instance, a shadow of a doubt and excuse or any reason at all to find this defendant not guilty? ... You'll only require us to prove him guilty beyond a reasonable doubt.... So, no one then will be looking for an excuse to find defendant not guilty.
*193 Griffin contends that this amounted to a verbal instruction defining reasonable doubt and urges that we reverse the conviction based on this. See Gilleylen v. State,
In Bingham v. State,
Additionally, Griffin argues that the prosecution's questioning of prospective jurors during voir dire with regard to whether they had any prejudice against prostitutes or known convicted felons constituted an obvious comment on the testimony of the witnesses and was therefore highly improper and constituted reversible error. We disagree.
In Myers v. State,
Finally, Griffin contends that the prosecution made impermissible comments on his failure to testify and his failure to call witnesses on his own behalf during their closing argument to the jury. Griffin's argument centers around the following passage:
... the defendant's niece. The only person on voir dire I said, "Tell us who your witnesses are going to be." She's the only name we were given. And why? Why? We found out yesterday, didn't we? Because he had called her and said, "Tell him Debra brought the gun out there." And she played along with him. And we found out about it. And we confronted her with it. And she said, "Okay, I'll tell the truth." And she took the stand and did. And all of a sudden they don't have that witness any more. That one great witness they told us that they were going to call. We couldn't imagine why they were going to call her. But we found out. If he's so innocent, if that's another witness that didn't have anything to say, why did he bother to call her? Why did he bother to ask her to lie?
Although Griffin failed to object at trial, he now contends that this statement clearly made reference to his failure to testify and warrants that this Court reverse his conviction.
Commenting on a defendant's failure to testify violates "an elementary and long established principle of law." West v. State,
The record reflects that Griffin contacted his niece, Carolyn Buck, and attempted to influence her testimony. The comments in this case appear to comment on the evidence properly presented to the jury rather than Griffin's failure to call a witness on his behalf. Both sides are afforded wide latitude in their final arguments to the jury so long as they do not argue some impermissible factor. Neal v. State,
II.
WHETHER THE TRIAL COURT ERRED IN ALLOWING PREVIOUS CONSISTENT STATEMENTS BY DEBRA BUTLER TO BE INTRODUCED DURING RE-DIRECT EXAMINATION?
At trial, Debra Butler testified on behalf of the State and implicated Griffin as the sole culprit in the murders. During cross-examination, defense counsel impeached Butler's testimony by introducing letters she had written to Griffin while she was incarcerated which indicated that she had lied to police officers when she told them that Griffin committed the crimes. On re-direct, over defense counsel's objection, the State was allowed to introduce Butler's initial statements made to police shortly after her arrest. Griffin now contends that this constituted an impermissible bolster of Butler's testimony and ultimately led to a miscarriage of justice. We cannot agree.
In Smith v. State,
In this case defense counsel attacked the truthfulness of Butler's initial statements with the subsequent letters. This amounted to a direct attack on Butler's veracity. Thereafter, on re-direct, she admitted writing the letters, attempted to explain why she wrote the letters, and testified that her initial statements were truthful. Under the authorities set forth above, we find no error in the admission of the prior consistent statements and conclude that this assignment of error is meritless.
III.
WHETHER THE TESTIMONY OF TIMOTHY BUCK WAS INTRODUCED IN VIOLATION OF RULE 4.06?
At trial, the State attempted to call Timothy Buck to the stand to testify that Nathaniel *195 Griffin instructed him to remove the gun from Carolyn Buck's home. Defense counsel objected, arguing they were not notified of Buck's testimony pursuant to a 4.06 discovery order. The trial judge delayed the testimony until defense counsel had the opportunity to interview Buck that night. The next day, defense counsel objected to Buck's testimony and moved for a mistrial. Griffin now argues that this constitutes reversible error.
In Cabello v. State,
Clearly, the trial court attempted to avert any unfair prejudice by allowing Griffin's counsel to interview Buck prior to his testimony. Thereafter, it was incumbent on Griffin to move for a continuance rather than a mistrial prior to Buck's testimony. Failing to do so, we cannot say that the trial court erred in allowing Buck to testify even though the defense was not formerly notified that he would be called as a witness. We find that this assignment of error lacks merit.
IV.
DID THE TRIAL COURT ERR IN ADMITTING STATEMENTS MADE BY THE DEFENDANT WHICH WERE SECURED IN VIOLATION OF THE DEFENDANT'S RIGHT AGAINST SELF-INCRIMINATION?
Under this final assignment of error, Griffin argues that the trial court improperly admitted certain statements that he had made while being transported to Hinds County because those statements were obtained after he invoked his right against self-incrimination. The statements complained of concern Griffin's purchase of a gun prior to the date of the murders. Subsequently, the gun was identified as the murder weapon. Griffin concedes that the officers re-read him his Miranda rights on the way to Hinds County. However, he contends that the State failed to prove a knowing and intelligent waiver of those rights so as to make the admission of the statements permissible.
In Jones v. State,
1. There has been an adequate cooling off period;
2. There is a reasonable basis for inferring that the suspect has voluntarily changed his mind;
3. New and adequate Miranda warnings are given.
Jones,
The State has the burden of proving that these requirements have been met before a subsequent statement can be properly admitted into evidence. Id.
Apparently, Griffin indicated that he wished for the initial interrogation to cease while he was in custody in Vicksburg. However, subsequent interrogation occurred over an hour after he was initially read his Miranda rights. Further, there is no dispute that Griffin was re-read his Miranda rights enroute to Hinds County. Finally, Sheriff J.W. Stevens testified that he personally re-read the Miranda warnings to Griffin and that Griffin acknowledged that he understood those rights prior to making any statements. Applying the guidelines set forth in Jones to the instant case, we hold that that State met its burden and therefore, the trial *196 court properly admitted the statements at trial.
Finding no prejudicial error either at the competency hearing or at the trial on the merits, we affirm both the determination that Griffin was competent to stand trial and the subsequent conviction and life sentence for the murder of Maxine Lewis.
COMPETENCY DETERMINATION AFFIRMED. CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT AFFIRMED.
WALKER, C.J., ROY NOBLE LEE and HAWKINS, P.JJ., and DAN M. LEE, PRATHER, ROBERTSON, ANDERSON and GRIFFIN, JJ., concur.
NOTES
Notes
[1] This hearing was conducted pursuant to § 99-13-11 of the Miss. Code Ann. (1972), which has been construed as requiring the issue of competency to be submitted to a jury for resolution. See McGinnis v. State,