IN THE SUPREME COURT OF MISSISSIPPI

NO. 92-KA-00242-SCT

CHARLES C. HOOKER

v.

STATE OF MISSISSIPPI

ON MOTION FOR REHEARING

DATE OF JUDGMENT: 02/04/92

TRIAL JUDGE: HON. JOHN LESLIE HATCHER

COURT FROM WHICH APPEALED: COAHOMA COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT: H. HUNTER TWIFORD, III

CHARLES E. WEBSTER

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: DEIDRE McCRORY

DISTRICT ATTORNEY: LAURENCE Y. MELLEN 

PHILLIP WEINBERG

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: AFFIRMED - 7/2/98

MOTION FOR REHEARING FILED: 4/4/96

MANDATE ISSUED: 7/9/98

EN BANC.

PITTMAN, PRESIDING JUSTICE, FOR THE COURT:

¶1. The present case was considered by this Court in Charles C. Hooker v. State, No. 92-KA00242-SCT (decided March 21, 1996). After full consideration, we grant the State's Motion for

Rehearing. The original opinions are withdrawn and these opinions are substituted therefor.

¶2. This appeal arises from Charles C. Hooker's (hereinafter "Hooker") conviction in the Coahoma

County Circuit Court for the March 14, 1991, murder of Walter Johnson (hereinafter "Johnson").

Hooker was indicted on June 12, 1991, pursuant to Miss. Code Ann. § 97-3-19 (1972). Hooker was

tried before a Coahoma County jury that found him guilty. After the jury returned its verdict, the judge

imposed a sentence of life imprisonment. Subsequently, Hooker filed his post-trial motions seeking
either a j.n.o.v. or a new trial. These motions were denied and Hooker timely filed his Notice of

Appeal with this Court and assigns the following as error:

I. THE COURT ERRED IN GIVING STATE'S INSTRUCTION S-1

A. THE COURT ABUSED ITS DISCRETION IN GIVING INSTRUCTION S-1

WHICH HAD NOT BEEN PREFILED AS REQUIRED BY RULE 5.03 OF THE

MISSISSIPPI UNIFORM RULES OF CRIMINAL PROCEDURE, WHICH

ABUSE WAS SO PREJUDICIAL TO THE DEFENDANT AS TO AMOUNT TO A

DENIAL OF DUE PROCESS.

B. THE COURT ERRED IN GIVING INSTRUCTION S-1 TO THE JURY

BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO FIND BEYOND A

REASONABLE DOUBT THAT CHARLES HOOKER ACTED "IN CONCERT

WITH" OR "AIDED AND ABETTED" SOME UNKNOWN AND

UNIDENTIFIED THEIR (sic) PARTIES IN THE COMMISSION OF THE

CRIME.

II. THE COURT ERRED IN REVERSING ITS RULING ON DEFENDANT'S

MOTION IN LIMINE AND ALLOWING THE TESTIMONY OF JIMMY WILLIAMS,

TOMMY LOCKETT, AND CLAYTEE JOHNSON.

III. THE COURT ERRED IN ALLOWING THE FINGERPRINT IDENTIFICATION

TESTIMONY OF CLYDELL MORGAN.

A. ALL FINGERPRINT EVIDENCE SHOULD HAVE BEEN SUPPRESSED

BECAUSE THE SECOND SET OF PRINTS WAS TAINTED BY THE USE OF

THE FIRST SET OF PRINTS, WHICH WAS ILLEGALLY OBTAINED AND

SUBSEQUENTLY SUPPRESSED.

B. THE TESTIMONY OF THE FINGERPRINT EXAMINER WAS TAINTED BY

HER USE OF THE FIRST SET OF FINGERPRINTS, WHICH WAS PROPERLY

SUPPRESSED, IN THE FORMULATION OF HER OPINIONS.

IV. THE COURT ERRED IN FORCING CONTINUED JURY DELIBERATIONS

LATE INTO THE NIGHT AND IN OVERRULING THE DEFENDANT'S MOTION

FOR A MISTRIAL.

V. THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO REQUIRE

THE STATE'S EXPERTS TO DIVULGE THE BASES OF THEIR OPINIONS AND IN

DENYING TO (sic) REQUESTED JURY QUESTIONNAIRE.

VI. CHARLES HOOKER WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO

A FUNDAMENTALLY FAIR AND IMPARTIAL TRIAL.
STATEMENT OF THE FACTS

¶3. This case is based entirely on circumstantial evidence and the events surrounding Johnson's

murder are reconstructed from testimony given at Hooker's trial. Around 5:30 a.m. on the morning of

March 14, 1991, a newspaper delivery man reported to the Coahoma County Sheriff's Office that he

had observed a car off of old Highway 61, between Lyon and Clarksdale, in a local resident's

driveway and it appeared that the driver of the car was "drunk and had passed out." The sheriff's

office responded to the call and upon arriving at the rural crime scene, a Coahoma County Sheriff's

deputy discovered Johnson's dead body behind the steering wheel of his blue and tan Mercury

Marquis. Investigators from the sheriff's office discovered that Johnson had been shot twice in his

right flank and once in his right forearm. Thereafter, investigators searched Johnson's car and found

the following: 1) three .25 caliber shell casings; 2) a bag containing several unopened cans of Coors

Light beer; 3) one opened, partially full can of Coors Light beer sitting on Johnson's dashboard; 4)

two light colored "fibers" found stuck to Johnson's lip; 5) a .22 caliber pistol found between

Johnson's legs; and 6) assorted liquor bottles, cups and papers.

¶4. The events leading to Johnson's death are sketchy. However, the evidence adduced at trial

demonstrated that on the evening prior to his death, Johnson had visited the Veterans of Foreign War

Post in Clarksdale and later stopped in at the Past Time Lounge in Clarksdale. Several witnesses

testified that Hooker was at the Past Time Lounge during the time Johnson was present. Trial

testimony indicated that while at the Past Time Lounge, Hooker and Johnson spoke to each other

outside of the restroom. Testimony revealed that the conversation between the two men was short

and , likewise, it did not appear to observers that there were any problems between them. From the

testimony of the witnesses, it appears Johnson left the bar around 12:00 midnight. However, there are

conflicting stories as to when Hooker left the lounge. O.C. Glasper testified that Hooker left the

lounge around 12:45 or 12:50 in the morning, while Hooker's wife and son testified that he arrived

home between 11:00 and 11:30 p.m. Nevertheless, the testimony clearly indicated that the two men

left the Past Time Lounge at different times.

¶5. After leaving the Past Time Lounge, testimony revealed that Johnson entered a local Texaco

convenience store at approximately 12:35 in the early morning of March 14, 1991, and purchased a

six-pack of Coors Light beer from the store attendant. This was the last time anyone testified that

they saw Johnson alive.

¶6. Several witnesses testified that they saw Johnson's car where it was ultimately discovered

between 2:00 and 3:00 a.m. on the morning of March 14, 1991. However, none of those witnesses

stopped to investigate, nor did they notice anyone in the vehicle. They did report seeing a "mediumsized or small, light-colored" car across the road from Johnson's car. No one else reported observing

Johnson's car until the newspaper delivery man reported the car's whereabouts at approximately 5:30

a.m. on the morning of the 14th of March.

¶7. After questioning various people, investigators from the Sheriff's office were led to Hooker.

Hooker talked to the investigators and it was learned that Hooker was a teacher at the middle school

where Johnson had been principal. During the investigatory process, Hooker supplied the sheriff with

several fingerprint cards. These prints were sent to the crime lab in Jackson, and ultimately the crime

lab matched a latent print found on the half-full Coors Light beer can to Hooker. It was also
determined that a .25 caliber pistol belonging to Hooker was used to fire the slugs found in Johnson's

body.

¶8. Hooker complains that the "bungled" murder investigation hampered his defense and, thus,

deprived him of his right to a fair trial. Specifically, Hooker draws this Court's attention to the

following: 1) law enforcement officers failed to preserve the integrity of the crime scene, i.e.,

Johnson's body was moved, car doors opened, etc.; 2) light-colored fibers stuck to Johnson's lip were

lost during transit to the State crime lab; 3) the half-full beer can found on the dash was emptied of its

contents with no attempt made to preserve the beer so that it could be tested for body fluids on which

DNA tests could be performed; 4) a .22 caliber pistol found between Johnson's legs was not tested

for fingerprints; 5) Johnson's car was moved from the homicide site before the State Crime Specialist

arrived to investigate the scene; 6) liquor bottles, cups and papers were found in the floorboard of

Johnson's car and were not fingerprinted; 7) multiple vials of Johnson's blood were allowed to spoil at

the crime lab; 8) Hooker's gun was never tested for fingerprints; 9) a holster found in Hooker's van

was not tested for fingerprints; 10) there was an unexplained three-day break in the chain of custody

of Hooker's gun.

¶9. On appeal Hooker contends that his conviction should be reversed for the reasons enumerated,

supra. We find all of Hooker's assignments of error meritless and therefore, his conviction is

affirmed.

DISCUSSION

I. THE COURT ERRED IN GIVING STATE'S INSTRUCTION S-1.

A. The Court abused its discretion in giving instruction S-1 which had not been

prefiled as required by Rule 5.03 of the Mississippi Uniform Rules of Criminal

Procedure, which abuse was so prejudicial to the defendant as to amount to a denial

of due process.

¶10. Hooker argues that the trial judge abused his discretion when he allowed the prosecution to

submit Jury Instruction S-1 on January 22, 1992. The trial commenced on January 20, 1992, and

Hooker argues that pursuant to Miss. Unif. Crim. R. Cir. Ct. Prac. 5.03, S-1 should have been

submitted before the start of the trial. Hooker contends that the trial judge's decision to allow the

State to submit S-1 prejudiced the defense of his case and therefore, his conviction should be

reversed.

¶11. Miss. Unif. Crim. R. Cir. Ct. Prac. 5.03 provides in part:

At least twenty-four hours prior to the time that a case is set for trial each of the attorneys shall

number and file his jury instructions with the clerk and submit to opposing counsel a numbered

copy of the instructions so filed in the case...Except for good cause shown, the court will not

entertain a request for additional instruction or instructions which have not been prefiled in
accordance with the above.

¶12. Unif. Crim. Ct. R. Cir. Ct. Prac. 5.03 does require that both parties submit their prospective jury

instructions 24 hours prior to the start of trial. However, the rule also provides: "[e]xcept for good

cause shown, the court will not entertain a request for additional instruction or instructions

which have not been prefiled in accordance with the above." Apparently, if a party can show

good cause for not complying with the 24 hour prefiling requirement, the trial court may permit the

party to submit jury instructions at trial.

¶13. In Shaw v. State, 540 So. 2d 26, 29-30 (Miss. 1989), this Court stated:

"...failure to follow the dictates of Rule 5.03, Crim.R.Cir.Ct.Prac., will not lead to reversal

absent actual prejudice to the defendant." See also Carter v. State, 493 So. 2d 327, 331 (Miss.

1986). In the case sub judice, Hooker argues that he was prejudiced because he had no idea

that the prosecution was going to inject "in concert with" and "aiding and abetting" as

alternative grounds for conviction until minutes before he was to start his case.

¶14. Notwithstanding Hooker's claim, the record indicates that the State presented this alternative

theory in its opening argument. Furthermore, Hooker's own defense was that although his fingerprint

was found on a beer can found in Johnson's car and although his pistol was used to kill Johnson,

someone else killed Johnson. Accordingly, it does not appear that Hooker was caught totally unaware

that the State might attempt to prove that others were involved in Johnson's murder with Hooker. We

find that Hooker suffered no prejudice as a result of the trial judge allowing the tardy S-1 jury

instruction, and this claim is without merit.

B. The court erred in giving instruction S-1 to the jury because there was

insufficient evidence to find beyond a reasonable doubt that Charles Hooker acted

"in concert with" or "aided and abetted" some unknown and unidentified their

(sic) parties in the commission of the crime.

¶15. Jury instruction S-1 allowed the jury to find Hooker guilty of murder under two theories. First,

the jury could find that Hooker actually killed Johnson. Second, the jury could find that Hooker aided

and abetted in the murder of Johnson. Hooker argues that the lower court erred in submitting the jury

instruction because it was not supported by the evidence, and accordingly, his conviction should be

reversed.

¶16. The record reveals that in opening argument, the State revealed its secondary theory that others

were present with Hooker on the night in question. The evidence consisted of the testimony of

eyewitness Tanya Moore who testified to facts that, if believed by the jury, would prove that two

men got into Johnson's car at the Past Time Lounge and drove off with Johnson. Neither of these two

men was Hooker. Witnesses testified that they saw a light-colored car across from Johnson's car at or

around 3:00 a.m. on March 14, 1991. A Coors Light beer can found on Johnson's dash had a thumb

print from Hooker. Ann Ingram testified that Johnson bought the beer around 12:30 a.m. on March

14, 1991. The State's fingerprint expert, Clydell Morgan, testified that there were three unidentified
latent prints found in Johnson's car. The State's request for S-1 was to conform to the proof adduced

during the trial. A reasonable juror could certainly have inferred from the testimony that someone

else could have been involved in Johnson's murder.

¶17. Ballistics evidence revealed that the gun used to kill Johnson was owned by Hooker. Testimony

by Hooker's wife and son revealed that he often carried the gun when he went out at night. The gun

was found in a night stand beside Hooker's bed. O.C. Glasper testified that Hooker, contrary to his

wife's and son's testimony, did not leave the Past Time Lounge until sometime close to 12:30 a.m. on

March 14th.

¶18. Even Hooker's theory of defense suggested that others killed Johnson. Hooker claimed an alibi,

that he was at home at the time of the murder. Hooker's defense was in effect that unidentified men

who left the Past Time Lounge with Johnson were his killers. Hooker argued that in spite of his

fingerprint being found on a beer can that Johnson had purchased shortly before his death and that

was recovered from Johnson's car, and although his pistol was used as the murder weapon and

somehow ended up in his night stand, nevertheless, someone else killed Johnson.

¶19. This Court follows the general rule that all instructions should be supported by the evidence in

the record. Brazile v. State, 514 So. 2d 325, 326 (Miss. 1987). This Court, in the recent case of

Swinford v. State, 653 So. 2d 912, 915 (Miss. 1995), stated:

[a]ny person who is present at the commission of a criminal offense and aids, counsels, or

encourages another in the commission of that offense is an 'aider and abettor' and is equally

guilty with the principal offender.

Swinford, 653 So. 2d at 915 (quoting Sayles v. State, 552 So. 2d 1383, 1389 (Miss. 1989)).

¶20. Hooker argues as in Sayles that the jury instruction was improper because the evidence did not

support it and the instruction was an abstract statement of the law. The Sayles Court discussed the

primary difference between an "aider and abettor" and accessory-before-the-fact. That primary

difference is that if a person is actually or constructively present at the offense, due to his

participation, he is an aider and abettor; if not present, he is an accessory-before-the-fact. Sayles, 552

So. 2d at 1389. This Court in Sayles held that the challenged instruction was one dealing with aiders

and abettors. Returning to the case sub judice, Instruction S-1 is clearly an instruction concerning

"aiders and abettors." As in Sayles, the facts in this case support the aiding and abetting instruction.

The evidence, although circumstantial in nature, nevertheless, was sufficient to demonstrate that

Hooker was an aider and abettor as defined in Sayles. A jury is allowed to draw all reasonable

inferences from the evidence. Jackson v. State, 614 So. 2d 965, 972 (Miss. 1993).

¶21. Hooker's complaint that Instruction S-1 was abstract is also without merit. In Pickett v. State,

443 So. 2d 796, 800 (Miss. 1983), this Court held that when abstract instructions could not confuse

or mislead the jury, the granting of such does not constitute reversible error. See also Sayles, 552 So.

2d at 1389. The jury was properly instructed regarding murder. The circumstantial evidence was such

that the jury could have found Hooker aided or abetted in the murder of Johnson. The challenged

instruction applied the facts to the law. This assignment of error is without merit.
II. THE COURT ERRED IN REVERSING ITS RULING ON DEFENDANT'S

MOTION IN LIMINE AND ALLOWING THE TESTIMONY OF JIMMY WILLIAMS,

TOMMY LOCKETT AND CLAYTEE JOHNSON.

¶22. Hooker argues that the trial judge erred in allowing the testimony of Jimmy Williams, Tommy

Lockett, and Claytee Johnson concerning the victim Johnson's habit of parking in a certain location

late at night. Hooker claims the three witnesses' testimony implied that Hooker and Johnson were

engaged in some type of homosexual liaison. This allegation is not supported by the record. The trial

judge initially granted Hooker's Motion in Limine but stated that he would reconsider if the State

reasserted its relevance at a later time.

¶23. The question to be answered is whether the testimony of the three witnesses was relevant

evidence. The State sought introduction of their testimony to show that Johnson had a habit of

driving in the area north of Lyon late at night and parking beside the road and that Hooker had

knowledge of this habit of Johnson. The testimony offered clearly showed that Johnson frequented

the area where his car and body were found. There was testimony that on three occasions prior to the

murder, the three witnesses had been called by Johnson late at night to help him get his car out of a

field. The testimony also showed that on one of these occasions when Johnson's vehicle was stuck in

the mud, Hooker's van was spotted parked behind Johnson's car, hence knowledge by Hooker of

Johnson's habit.

¶24. Rule 406 of the Mississippi Rules of Evidence is identical to Rule 406 of the Federal Rules of

Evidence and thus, the advisory committee notes on the Federal Rules of Evidence are helpful in

determining whether the evidence presented in this case meets the requirements of habit. The advisory

committee notes on the Federal Rules of Evidence define habit as:

"...A habit...is the person's regular practice of meeting a particular kind of situation with a

specific type of conduct, such as the habit of going down a particular stairway two stairs at a

time, or of giving the hand-signal for a left turn, or of alighting from railway cars while they are

moving. The doing of habitual acts may become semi-automatic."

Fed.R.Evid. 406 advisory committee's note (quoting C. McCormick, Handbook of the Law of

Evidence § 162 at 340). See also United States v. Sampol, 636 F.2d 621, 657 n.21(D.C. Cir. 1980).

The regularity of the conduct alleged to be habitual, rests on an analysis of instances "'numerous

enough to base an inference of systematic conduct' and to establish 'one's regular response to a

repeated specific situation.'" Wilson v. Volkswagen of America, Inc., 561 F.2d 494, 511 (4th Cir.

1977)(quoting Strauss v. Douglas Aircraft Co., 404 F.2d 1152, 1158 (2nd Cir. 1968) and

McCormick on Evidence § 162 (1964)). Of course, in the case sub judice, the State had the burden

of proving habit.

¶25. "Relevant evidence" is "evidence having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it would be

without the evidence." Miss.R.Evid. 401. Rule 403 of the Mississippi Rules of Evidence reads, "[a]

lthough 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, or by considerations of
undue delay, waste of time, or needless presentation of cumulative evidence." This rule necessarily

vests a certain amount of discretion with the trial judge. Stokes v. State, 548 So. 2d 118, 125 (Miss.

1989), cert. denied, 493 U.S. 1029 (1990).

¶26. The testimony in question was evidence that made the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it would be

without the evidence. Miss.R.Evid. 401. Thus, the factor to be considered was whether Hooker knew

where to look to find Johnson in the early morning hours of March 14th. The offered evidence was

relevant to show that even if Hooker was home by 1:30 p.m., it was still possible that he could have

left his house, found Johnson's car at the place that he knew to look for it, and shot and killed him.

The evidence clearly established Johnson's habit of parking at a particular area beside the road late at

night. The fact that Johnson's body was discovered in his car at that exact spot supports the three

witnesses' testimony of habit. There was no abuse of discretion by the trial judge in allowing into

evidence this relevant evidence. This assignment of error is without merit.

III. THE COURT ERRED IN ALLOWING THE FINGERPRINT IDENTIFICATION

TESTIMONY OF CLYDELL MORGAN.

A. All fingerprint evidence should have been suppressed because the second set of

prints was tainted by the use of the first set of prints, which was illegally obtained

and subsequently suppressed.

¶27. Hooker first argues that all fingerprint evidence should be suppressed as the "fruit of the

poisonous tree," Wong Sun v. United States, 371 U.S. 471 (1963); Rooks v. State, 529 So. 2d 546,

555 (Miss. 1988), because the State did not prove that it informed Hooker prior to taking the first set

of prints that he had the right to refuse the request that he give the police his prints. Hooker gave two

sets of fingerprints to the sheriff's office. The first set was given on March 19, 1991, and the second

set was given on March 28, 1991. The trial court did suppress the first set of prints, but refused to

suppress a second set ruling that on March 28, 1991, Hooker had been properly informed that he had

the right to refuse to give his prints. On appeal, Hooker argues that because the second set of prints

were not "independently obtained", they too should be suppressed.

¶28. The taking of fingerprints is a search for purposes of the Fourth Amendment to the Constitution

of the United States of America. Davis v. Mississippi, 394 U.S. 721, 724 (1969). In Mississippi, the

defendant has the right to be informed that he can refuse the search. Penick v. State, 440 So. 2d 547,

558 (Miss. 1983). However, all evidence obtained by virtue of illegal actions of the police is not "fruit

of the poisonous tree." "The test is 'whether granting establishment of the primary illegality, the

evidence to which instant objection is made has been come at by exploitation of that illegality instead

of by means sufficiently distinguishable to be purged of the primary taint.'" Yates v. State, 467 So. 2d

884, 887 (Miss. 1984)(quoting Wong Sun v. United States 371 U.S. 471, 487 (1963)).

¶29. In the case sub judice, the trial judge found that the second set of fingerprints Hooker gave to

the sheriff's department was voluntarily given and that Hooker was informed of his right to refuse to

give the fingerprints. The evidence overwhelmingly supports the trial judge's finding that the second
set of prints was voluntarily given, and Hooker was informed of his right to refuse the search.

Harrigill v. State, 381 So. 2d 619, 623 (Miss. 1980). Thus, the dispositive question appears to be

whether the second set of fingerprints was obtained by exploiting the first set of "illegally" seized

fingerprints as opposed to gaining the second set by some means independent of the "taint" of the

suppressed first set of prints. Yates, 467 So. 2d at 887.

¶30. The "illegally" seized first set of prints did not result in the police discovering the second set of

prints. The first set of Hooker's prints were smudged and the State crime lab informed the sheriff that

they would require a second set. The sheriff called Hooker at work and asked if he could come to the

sheriff's office and give a second set of prints. Hooker agreed and in turn was informed of his right to

refuse the request for his prints. At the suppression hearing, the trial judge found that Hooker had

been adequately informed of his right to refuse the second set of prints.

¶31. The second set of fingerprints was not gained by exploiting the illegally seized first set of

fingerprints. Therefore, because the evidence supports the trial judge's determination that the second

set of prints were voluntarily given, this assignment of error is without merit. Wiley v. State, 449 So.

2d 756, 759-60 (Miss. 1984).

B. The testimony of the fingerprint examiner was tainted by her use of the first set

of fingerprints, which was properly suppressed, in the formulation of her opinions.

¶32. Hooker contends that the fingerprint examiner's testimony was tainted because she could not say

that she did not use the suppressed first set of prints in effecting her initial match of Hooker's

thumbprint to the beer can found in Johnson's car on the morning of March 14, 1991. Therefore,

Hooker argues, the print examiner's testimony should have been excluded.

¶33. During voir dire, Clydell Morgan, the fingerprint examiner, testified that when she effected the

initial identification of Hooker's thumbprint on the Coors Light beer she had both the first set and

second set of Hooker's prints before her. However, Morgan could not testify whether initially, she

used the first set of prints (the subsequently suppressed set) or the second legally obtained set of

prints to match Hooker's thumbprint found on the beer can.

¶34. During a break in the trial, Morgan was allowed to compare the second set of prints with the

latent print removed from the Coors Light beer can. At trial, and before the jury, Morgan testified that

the thumbprint matched the known thumbprint of Hooker. This identification was accomplished solely

through the use of the non-suppressed second set of prints. Likewise, this identification was not based

on the suppressed first set of prints. Therefore, we find that this assignment of error is meritless.

IV. THE COURT ERRED IN FORCING CONTINUED JURY DELIBERATIONS

LATE INTO THE NIGHT AND IN OVERRULING THE DEFENDANT'S MOTION

FOR A MISTRIAL.

¶35. Hooker assigns as error the trial judge's decision to begin jury deliberations on the evening of

January 24, 1992, after both sides had rested their respective cases at approximately 4:00 p.m.
Hooker claims that the jury initially was in favor of beginning its deliberations on the morning of

January 25, 1992, but was coerced into changing its mind after being informed by the trial judge that

they would be sequestered if they chose to start the next morning.

¶36. "Ordinarily, trial judges have broad discretion in determining when trials will begin and how long

they will continue on any given day." Dye v. State, 498 So. 2d 343, 344 (Miss. 1986). There is not a

"bright line rule" as to when a trial judge should grant a continuance or recess. Necessarily then, our

analysis focuses upon the unique facts of each case. To support his position that the trial judge

abused his discretion in allowing the jury to deliberate into the night, Hooker cites Isom v. State, 481

So. 2d 820 (Miss. 1985), Grimsley v. Tyner, 454 So. 2d 482 (Miss. 1984), Edge v. State, 393 So.

2d 1337 (Miss. 1981), and Thornton v. State, 369 So. 2d 505 (Miss. 1979).

¶37. In Isom, after a day and a half of hearing the trial of the defendant's murder case, the jury

deliberated from 3:21 p.m. until 10:38 p.m. without reaching a verdict. Three of the jurors expressed

their desire to recess deliberations at that time. Nonetheless, the trial court sent the jury back for

further deliberations and at 11:35 p.m., the jury finally reached a verdict of manslaughter. On appeal,

this Court held that seven hours of jury deliberation under the facts of that particular case was

excessive, where the length of the trial was relatively short as opposed to the length of deliberations

and where several jurors expressed a desire to begin deliberations anew the next day. Isom, 481 So.

2d at 824.

¶38. In Grimsley, the jury heard a paternity case until 11:00 p.m. and was then forced to begin its

deliberations. The jury returned its verdict at 4:30 a.m. the next morning. On appeal, we stated that

"[t]his Court will look closely at records and verdicts rendered under such circumstances." Grimsley,

454 So. 2d at 485. This Court expressed its concern with such deliberations, but ultimately reversed

the case on other grounds.

¶39. In Edge, we reversed the defendant's conviction because the trial judge's refusal to allow his

attorney a continuance denied the defendant his Sixth Amendment right to effective assistance of

counsel. The attorney in Edge had asked for a continuance at approximately 6:30 p.m. after having

spent the morning selecting the jury. The jury was seated by 3:30 p.m. and the trial commenced. The

defendant's attorney, feeling exhausted and taking medication, asked that the trial be recessed until

the morning. The trial judge, anxious to complete the entire murder trial in two days, refused at 6:30

p.m. to stop the proceedings for the evening. Edge, 393 So. 2d at 1342. We reversed and held that

the judge's refusal to recess the trial until the next morning denied the defendant his right to effective

assistance of counsel at the most crucial stage of his trial, that stage being the beginning of the

presentation of his defense. Id.

¶40. In Thornton, we held that the trial court denied the defendant his Sixth Amendment right to

effective assistance of counsel when it refused to grant a recess as requested by defense counsel. In

that case, the State rested its case-in-chief at about 6:00 p.m. and the defense counsel moved for a

recess stating that he was exceedingly tired. The trial judge refused to grant the defendant's request

for a recess. Subsequently, the defendant was forced to put on his defense which lasted until

approximately 10:00 p.m. The parties had to then submit their objections to the submitted jury

instructions and then make closing arguments. Both sides were given one hour for closing. After

making closing arguments, the defendant's attorney became ill and was rushed to the hospital.
Thornton, 369 So. 2d at 506.

¶41. In the case sub judice, the State's rebuttal was completed and the State rested at 3:35 p.m.

Hooker stated that he would prefer to start jury deliberations in the morning but would leave that

decision to the trial court's discretion. The judge asked the jurors if they preferred to start

deliberations the next day or begin that evening. The record indicates that one juror expressed his

desire to begin deliberations the next day. At this point, the trial judge informed the jurors that if they

chose to begin the next day, they would be sequestered for the night.

¶42. The court recessed and allowed the jury to discuss whether they wanted to continue or not. All

twelve of the jurors and the four alternates voted to begin deliberations that evening. Closing

arguments commenced at 4:35 p.m. and the jury retired to deliberate at 6:45 p.m. At 7:45 p.m. the

jury asked for further instructions on "aiding and abetting." This request was refused by the court. At

9:15 p.m. the jury asked if it could review any of the testimony given during the trial. The jury was

told that the testimony had not been transcribed. At 10:23 p.m. the jury announced that it was

divided by an eight to four vote. Three of the jurors stated that they did not feel that they could reach

a unanimous verdict by deliberating further. Thereafter, the trial judge read Jury Instruction C-40, the

approved version of the "Sharplin Charge", to the jury. See Sharplin v. State, 330 So. 2d 591 (Miss.

1976).

¶43. The jury retired at 10:40 p.m. and at 11:45 p.m. returned its verdict. The jury found Hooker

guilty of murder. We find that the trial judge did not abuse his discretion in refusing to wait and begin

jury deliberations on the following day. The hearing of this trial lasted approximately four days and

encompassed many witnesses. The jury deliberated for approximately five hours before returning its

verdict. Likewise, neither the jurors nor Hooker's attorneys expressed a feeling of exhaustion or

fatigue. Thus, we find that Hooker was not denied the effective assistance of counsel, Thornton,

supra, nor was the jury's verdict suspect such as was the case in Grimsley and Isom. Therefore, we

find this assignment of error to be meritless.

V. THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO REQUIRE

THE STATE'S EXPERTS TO DIVULGE THE BASES OF THEIR OPINIONS AND IN

DENYING TO (sic) REQUESTED JURY QUESTIONNAIRE.

¶44. Hooker argues that during pretrial proceedings, he requested that the State provide him with the

facts upon which its experts would rely and the bases for their opinions. Hooker does not argue that

he was denied the opportunity to contact the State's experts and determine from the experts on what

facts they based their opinions or the bases of those opinions. Because the Mississippi Uniform

Criminal Rules of Circuit Court Practice do not provide for the same minimal discovery benefits as

do the civil rules, Hooker argues that he was denied his right to due process under Article 3, Section

14 of the Mississippi Constitution (1890) and under the Fifth and Fourteenth Amendments to the

Constitution of the United States of America. Hooker also argues that the trial court denied him his

right to due process by refusing his request for a jury questionnaire.

¶45. Rule 4.06(d) of the Miss. Unif. Crim. R. Cir. Ct. Prac. provides:
(d) Except as is otherwise provided or in cases where the witness would be forced to reveal

self-incriminating evidence, neither the counsel for the parties nor other prosecution or defense

personnel shall advise persons having relevant material or information, except the accused, to

refrain from discussing the case with opposing counsel or showing opposing counsel any

relevant material, nor shall they otherwise impede opposing counsel's investigation of the case.

Hooker does not argue that he was not allowed to talk to any of the State's expert witnesses or that

the prosecution told the experts not to talk to him. Likewise, he does not argue that he was not

informed of the names of the State's experts. Instead, he argues that the Mississippi Uniform Rules of

Circuit Court Practice should contain a provision that requires the prosecution to provide the defense

with the facts upon which its experts depend, as well as the bases for their opinions.

¶46. Hooker does not allege or demonstrate that the State failed to comply with Rule 4.06. The State

called three expert witnesses. The State's witnesses were known to Hooker and he could have

discussed the case with them. Likewise, Hooker does not point to any testimony at trial by the

experts that resulted in any unfair surprise to him. Accordingly, we find that this assignment of error

is without merit.

¶47. Hooker also argues that he was denied his right to due process when the trial judge refused to

allow him to use a jury questionnaire. Our case law does not indicate that a defendant in a criminal

case has an absolute right to submit a jury questionnaire. In Lutes v. State, 517 So. 2d 541, 547

(Miss. 1987), the defendant argued that the trial judge erred in refusing to allow him to submit a jury

questionnaire. This Court found no merit in the defendant's contention and dismissed the assignment

of error as meritless. In the case sub judice, Hooker was allowed wide latitude during voir dire and

some of the voir dire was conducted in chambers. Upon a thorough review of the record, it is clear

that Hooker was allowed to ask many of the questions that appeared on his proposed jury

questionnaire. We find no prejudice to the defendant in refusing to allow the questionnaire, and find

this assignment of error to be meritless.

VI. CHARLES HOOKER WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO

A FUNDAMENTALLY FAIR AND IMPARTIAL TRIAL.

¶48. Hooker's last assignment of error is for the most part an attempt to reargue his first five

assignments of error. However, Hooker also takes this opportunity to attack the way that the

Coahoma Sheriff's Office conducted the murder investigation. Hooker contends that the

accumulation of errors by the investigators deprived him of a fundamentally fair and impartial trial.

See Brady v. Maryland, 373 U.S. 83 (1963). Hooker points to various transgressions alleged to have

been committed by law enforcement officials investigating Johnson's murder. These errors, Hooker

argues, deprived him of possible exculpatory evidence and the opportunity to discredit the State's

case.

¶49. In the case sub judice, as was the case in Johnston v. State, 618 So. 2d 90, 92-93 (Miss. 1993),

Hooker's defense was alibi. Hooker's wife and son testified that Hooker was home by 11:30 on the

night of March 13, 1991, and did not go out again that night. The points Hooker has raised in his

brief concerning lost or mishandled evidence did not affect his ability to present the defense of alibi.

Necessarily, if the jury had chosen to believe Hooker's alibi witnesses, they could not have found
Hooker guilty of Johnson's murder because testimony indicated that Johnson was alive at 12:30 a.m.

on the morning of March 14, 1991. Therefore, the last time Johnson was seen alive was

approximately one hour after Hooker's wife and son testified that Hooker came home, showered and

went to bed for the night.

¶50. Hooker makes much ado about the loss of the light colored fibers that were found stuck to

Johnson's lips. However, the jury was able to view two pictures of the fibers. Hooker also claims that

the contents of the beer can found on the dash were emptied, thus depriving him of the chance to

obtain possible saliva tests. However, Hooker does not establish that if there was any saliva or other

bodily fluids contained in the beer can, that tests were available to extract the fluids from the beer to

allow for a determination of blood type, sex, race, etc. Hooker also takes issue with the fact that a

vial of blood taken from Johnson spoiled while at the crime lab. Hooker does not however, state how

this blood could have been exculpatory.

¶51. Hooker asks this Court to speculate on whether this evidence might have been exculpatory. He

does not state how the evidence could have been exculpatory, nor does he attempt to show how he

has been prejudiced. Equally, if not more importantly, is that Hooker does not show that any of these

complaints regarding the investigation and gathering and presentation of evidence affected his alibi

defense. That is because his alibi defense was not affected. Hooker, while not receiving a perfect trial,

nevertheless, received a fair trial. Sand v. State, 467 So. 2d 907, 911 (Miss. 1985). This assignment

of error is meritless.

CONCLUSION

¶52. We find that Hooker received a fair trial. The jury properly heard and considered all the

evidence and determined Hooker was guilty as charged. We find no error on the part of the trial

court, and find that all of Hooker's assignments of error are meritless. Therefore, the verdict of the

jury shall stand, and this case is affirmed.

¶53. CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE

CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AFFIRMED. THE

SENTENCE IMPOSED IN THIS CAUSE SHALL RUN CONSECUTIVELY WITH ANY

AND ALL SENTENCES PREVIOUSLY IMPOSED.

ROBERTS, SMITH, MILLS, AND WALLER, JJ., CONCUR. SULLIVAN, P.J., DISSENTS

WITH SEPARATE WRITTEN OPINION JOINED BY PRATHER, C.J., AND McRAE, J.

BANKS, J., JOINS THIS OPINION AS TO PART I.

SULLIVAN, PRESIDING JUSTICE, DISSENTING:

¶54. Because Charles C. Hooker has not received a fair trial, his conviction should be reversed, and he

should receive a new trial. Accordingly, I respectfully dissent with the majority regarding Issues I.B.

and II.
I. THE COURT ERRED IN GIVING STATE'S INSTRUCTION S-1

B. THE COURT ERRED IN GIVING INSTRUCTION S-1 TO THE JURY

BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO FIND BEYOND A

REASONABLE DOUBT THAT CHARLES HOOKER ACTED "IN CONCERT

WITH" OR "AIDED AND ABETTED" SOME UNKNOWN AND

UNIDENTIFIED THEIR (sic) PARTIES IN THE COMMISSION OF THE

CRIME.

¶55. While the evidence at trial may have supported the State's theory that Hooker killed Johnson,

none of the evidence supported a finding that Hooker, along with other suspects, were involved in

Johnson's murder. Nonetheless, the State was allowed a jury instruction that enabled the jury to find

Hooker guilty of murder if it found that he aided and abetted in the murder of Johnson.

¶56. Hooker's defense was twofold: first, witnesses testified that he was home at the time of the

murder, and second, Johnson was seen leaving the Past Time Lounge with two men, neither of whom

were Hooker. At trial the two unknown men were not linked to Hooker in any way, whether by

physical evidence or by testimony. There simply was not enough proof to find that Hooker aided and

abetted in the murder of Johnson and, therefore, it was error to give Jury Instruction S-1.

¶57. In the recent case of Swinford v. State, 653 So. 2d 912 (Miss. 1995), this Court, quoting Sayles

v. State, 552 So. 2d 1383, 1389 (Miss. 1989), stated:

"[a]ny person who is present at the commission of a criminal offense and aids, counsels, or

encourages another in the commission of that offense is an 'aider and abettor'and is equally

guilty with the principal offender."

Swinford, 653 So. 2d at 915 (internal citations omitted). Quoting Walters v. State, 218 Miss. 166, 65

So. 2d 465, 467 (1953), we then stated:

[I]n the case of Wynn v. State, 63 Miss. 260 [(1885)], the Court said: "Aiding and abetting is

defined to be 'the offense committed by those persons who, although not the direct

perpetrators of a crime, are yet present at its commission, doing some act to render aid to

the actual perpetrator.' . . . And such aiding and abetting may be manifested by acts, words,

signs, motions, or any conduct which unmistakably evinces a design to encourage, incite or

approve of the crime, or even by being present, with the intention of giving assistance, if

necessary, though such assistance may not be called into requisition."

Swinford, 653 So. 2d at 915 (emphasis added).

¶58. In a criminal case, the burden is on the State to prove the defendant's guilt through evidence

which satisfies each element of the charged crime. Hedrick v. State, 637 So. 2d 834, 837 (Miss.

1994) (citing McVeay v. State, 355 So. 2d 1389 (Miss. 1978)). The prosecution must prove all of the

elements of the crime beyond a reasonable doubt, Hedrick, 637 So. 2d at 839, and this burden never
shifts from the State. Brown v. State, 556 So. 2d 338, 339 (Miss. 1990).

¶59. Jury Instruction S-1 instructed the jury to find Hooker guilty of Johnson's murder if Hooker "by

his own act or by acting in concert with or aiding and abetting another did willfully, of his deliberate

design and without the authority of law, cause the death of Walter Johnson, by shooting him with a

pistol." Therefore, in order to find Hooker guilty of Johnson's murder, the jury had to find, beyond a

reasonable doubt, that Hooker actually shot Johnson or that Hooker aided, counseled, or encouraged

others in the commission of Johnson's murder. See Simmons v. State, 568 So. 2d 1192, 1204 (Miss.

1990).

¶60. It is well settled under Mississippi law that jury instructions are not given unless there is an

evidentiary basis in the record for such. Perry v. State, 637 So. 2d 871, 877 (Miss. 1994); Haddox v.

State, 636 So. 2d 1229, 1238 (Miss. 1994); Givens v. State, 618 So. 2d 1313, 1320 (Miss. 1993).

On appeal Hooker correctly points out that there was no evidence or testimony adduced at trial to

establish the requisite elements of aiding and abetting.

¶61. The record is simply devoid of any proof that Hooker, through acts, words, signs, motions, or

any other conduct, evinced a design to encourage, incite or approve of Johnson's murder. Swinford,

653 So. 2d at 915. The majority concludes that the jury could have found that Hooker aided and

abetted in Johnson's murder based solely upon the evidence that two unidentified men left the Past

Time Lounge with Johnson, and three unidentified latent prints were found in Johnson's car. While

the jury is allowed to draw all reasonable inferences from the evidence, Jackson v. State, 614 So. 2d

965, 972 (Miss. 1993), in the case at bar, any finding by the jury that Hooker aided and abetted in the

murder of Johnson would be based purely on speculation. The unidentified latent prints could have

been left at any time by anyone who had been in Johnson's car, so their existence lends nothing to the

State's theory that Hooker was guilty of aiding and abetting. Since there was no testimony to link

Hooker to the two men leaving the lounge with Johnson, that evidence likewise does not support a

finding that Hooker aided and abetted them in Johnson's murder.

¶62. Allowing an instruction on aiding and abetting was error, and it cannot be said that the inclusion

of the aiding and abetting language in S-1 was harmless. A review of the record clearly indicates that

the jury was hung up on the question of whether Hooker had aided and abetted in the murder of

Johnson. In fact, at one point during the deliberations, the jury sought additional instructions as to

"aiding and abetting." The trial court's use of Jury Instruction S-1 was reversible error, because the

instruction on aiding and abetting was unsupported by the evidence. Perry v. State, 637 So. 2d 871,

877 (Miss. 1994); Haddox v. State, 636 So. 2d 1229, 1238 (Miss. 1994); Givens v. State, 618 So. 2d

1313, 1320 (Miss. 1993).

II. THE COURT ERRED IN REVERSING ITS RULING ON DEFENDANT'S

MOTION IN LIMINE AND ALLOWING THE TESTIMONY OF JIMMY WILLIAMS,

TOMMY LOCKETT AND CLAYTEE JOHNSON.

¶63. The majority concludes that the testimony of Jimmy Williams, Tommy Lockett, and Claytee

Johnson was admissible and relevant to show that it was Johnson's habit to park late at night in the

vicinity where his body was found. The majority further finds that the testimony was relevant to show

that Hooker had knowledge of Johnson's nocturnal parking habits. The State's theory at trial was
that, even if Hooker was at home by 11:30 p.m., as testified to by his wife and son, he knew that it

was Johnson's habit to go out late at night and park there. Accordingly, the State surmises that on the

early morning of March 14, Johnson parked his car along the side of the road in the area north of

Lyon, as was his habit. The State maintains that Hooker had knowledge of Johnson's "habit" and,

thus, although Hooker did not leave the Past Time Lounge with Johnson, Hooker knew where to

look for Johnson and subsequently found him.

¶64. Under Rule 406 of the Mississippi Rules of Evidence, competent evidence of a person's "habit"

may be admissible to prove conduct in conformity with the habit on a particular occasion. "[H]abit

refers to the type of nonvolitional activity that occurs with invariable regularity." Weil v. Seltzer, 873

F. 2d 1453, 1460 (D.C. Cir. 1989). "It is the nonvolitional character of habit evidence that makes it

probative." Weil, 873 F. 2d at 1460 (citing Levin v. United States, 338 F. 2d 265, 272 (D.C. Cir.

1964) (testimony concerning religious practices not admissible because "the very volitional basis of

the activity raises serious questions as to its invariable nature, and hence its probative value"), cert.

denied, 379 U.S. 999, 85 S. Ct. 719, 13 L. Ed. 2d 701 (1965)). "Habits have a reflexive, almost

instinctive quality." Weil, 873 F. 2d at 1460. See also United States v. Pinto, 755 F. 2d 150 (10th

Cir. 1985).

¶65. The burden of proving habit is placed on the proponent of the evidence. Weil, 873 F. 2d at

1461. While there are no precise standards for determining whether a behavior pattern has matured

into habit, as a general rule two factors are considered controlling: "adequacy of sampling and

uniformity of responses." Fed.R.Evid. 406 advisory committee's note; United States v. Newman, 982

F. 2d 665, 668 (1st Cir. 1992); McWhorter v. City of Birmingham, 906 F. 2d 674, 679 (11th Cir.

1990).

¶66. One of the prime concerns over the reliability of habit testimony is that the conduct at issue may

not have occurred with sufficient regularity to make it more probable than not that it would be

carried out in every instance or in most instances. Levin, 338 F. 2d at 272. The requisite regularity is

tested by the ratio of reaction to situations. Wilson v. Volkswagen of Am., Inc., 561 F. 2d 494, 512

(4th Cir. 1977) (quoting Lewan, Rationale of Habit Evidence, 16 Syracuse L.Rev. 39, 51 (1964)),

cert. denied, 434 U.S. 1020, (1978). Accordingly, it is essential that the regularity of the conduct

alleged to be habitual rest on an analysis of instances "'numerous enough to base an inference of

systematic conduct' and to establish 'one's regular response to a repeated specific situation' . . . ."

Wilson, 561 F. 2d at 511 (citations omitted).

¶67. Upon a review of the testimony in this case, the witnesses in question could testify cumulatively

to three instances in which they observed Johnson parked and stranded in the vicinity of the murder

scene. Williams testified that he was out late at night in the vicinity of the murder scene on five or six

additional occasions. However, Williams did not testify that he observed Johnson or his car on these

five or six occurrences. Thus, out of the eight to nine times Williams was in the vicinity of the murder

scene, he testified that he saw Johnson on three of those episodes. Also, Williams, the only witness

who could testify as to all three events in which Johnson became stuck, gave inconsistent answers as

to the time frame in which the three incidents occurred. At first he testified that the first incident

occurred approximately three or four months prior to March 14, 1991. Then Williams testified that

the first event might have occurred in September. (Williams testified that the first and second event

occurred about a month apart and that the second event occurred in October). Finally, on cross-
examination, Williams testified that the first event could have occurred as early as June of the

previous year. Claytee Johnson's and Tommy Lockett's testimony as to the time frame of the

incidents is equally unavailing.

¶68. Except for Williams's testimony that he saw Hooker's van near Johnson's car the first time

Johnson got stuck, none of the witnesses could testify that they had seen Hooker or his van with or

near Johnson on any of the remaining nights he had elicited their help. On two of the three occasions

Johnson sought their help, Williams, Lockett, and Claytee Johnson testified that they saw Johnson

with an unknown man. At trial the State asked the witnesses numerous times whether or not the man

seen with Johnson on these two occasions was Hooker. Despite repeated questioning as to the

unknown man's identity, none of the witnesses could identify Hooker as being that man. In fact,

Williams admitted on cross-examination that he could not even be absolutely positive that the

unknown "man" with Johnson was in fact a man.

¶69. Certainly, habit may be inferred from proof of specific instances of conduct. Nonetheless, after

reviewing the evidence in the case at bar, it cannot be said that the prosecution's proof of three

incidents spread over a period of four to eight months meets the test of frequency and regularity to be

habit evidence. See Pacesetter Corp. v. Barrickman, 885 S.W. 2d 256, 263 (Tex.Ct.App. 1994)

(defendant's offer of two incidents insufficient to establish habit as to how company handled workers'

compensation claims); Weil v. Seltzer, 873 F. 2d 1453, 1460 (D.C. Cir. 1989) (evidence of how

physician treated five former patients insufficient to establish habit); United States v. Pinto, 755 F. 2d

150, 152 (10th Cir. 1985) (proof that defendant, while drunk, entered wrong home four times over

eight years insufficient to show that it was his habit to get drunk and enter wrong home).

¶70. Evidence concerning the three incidents in which Johnson elicited the trio's help is not of the

nonvolitional, habitual type that guarantees its probative value. Since the testimony was insufficient

to establish habit, it was error for the judge to allow the trio's testimony to show that Hooker had

knowledge of Johnson's alleged habit of parking along the road late at night. Accordingly, it was

error to allow the introduction of this highly prejudicial evidence.

CONCLUSION

¶71. The trial court erred in allowing Jury Instruction S-1 to be presented to the jury when there was

no evidence to support a finding that Hooker aided and abetted in the murder of Walter Johnson.

Also, the trial judge's decision to allow Jimmy Williams, Claytee Johnson and Tommy Lockett to

testify as to Johnson's habit of parking off the road in the vicinity of where his body was found was

error. The evidence presented at trial regarding this matter was not of sufficient frequency to prove

habit. Therefore, the trio's testimony was not admissible to show that Hooker had knowledge of

Johnson's nocturnal parking habits. For the above-discussed reasons, I would reverse Hooker's

murder conviction and remand this cause to the Coahoma County Circuit Court for a new trial.

PRATHER, C.J., AND McRAE, J., JOIN THIS OPINION. BANKS, J., JOINS THIS

OPINION AS TO PART I.