IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
TAVARES SHOWERS
APPELLANT
VS.
NO.2009-KA-0321
STATE OF MISSISSIPPI
APPELLEE
BRIEF FOR THE APPELLEE
APPELLEE DOES NOT REQUEST ORAL ARGUMENT
JIM HOOD, ATTORNEY GENERAL
BY:
LAURA H. TEDDER
SPECIAL ASSISTANT ~EY GENERAL
MISSISSIPPI BAR N~
OFFICE OF THE ATTORNEY GENERAL
POST OFFICE BOX 220
JACKSON, MS 39205-0220
TELEPHONE: (601) 359-3680
TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................. ii
STATEMENT OF THE ISSUES ................................................ 1
STATEMENT OF THE CASE .................................................. 1
SUMMARY OF THE ARGUMENT ............................................. 2
ARGUMENT ................................................................ 2
I.
The trial court correction refused the self defense instruction
offered by Showers ................................................ 2
II.
Dr. Stephen Hayne was adequately voir dired and was qualified
to testify as a forensic pathologist .................................... 4
III.
Showers had no expectation of privacy in the interrogation
room and the statements he made which were recorded were
correctly admitted into evidence by the trial court ...................... 7
CONCLUSION ............................................................. 10
CERTIFICATE OF SERVICE ................................................ 11
TABLE OF AUTHORITIES
FEDERAL CASES
Arizona v. Mauro, 481 U.S. 520, 107 S.Ct. 1931,95 L.Ed.2d 458 (1987) ................ 7
Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) .......... 7-9
Lanza v. New York, 370 U.S. 139, 143,82 S.Ct. 1218,8 L.Ed.2d 384 (1962) ........... 8,9
Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602,1611, 16 L.Ed.2d 694 (1966) ....... 7
Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682,64 L.Ed.2d 297 (1980) ............. 7
United States v. Clark, 8th Cir., 22 F.3d 799,801 (1994) ............................. 8
STATE CASES
Bishop v. State, 982 So.2d 371, 380 (Miss.2008) .................................... 4
Crimm v. State, 888 So.2d 1178, 1186 (Miss. Ct. App. 2004) .......................... 3
Donaldson v. Superior Court of Los Angeles County, Cal.Supr.,
35 Cal.3d 24, 196 Cal.Rptr. 704, 672 P.2d 110 (1983) ............................... 8
Edmonds v. State, 955 So.2d 787, 802-03 (Miss. 2007) ............................... 5
Graves, Tex.App. 1st Disl., 853 S.W.2d 701, 705 (1993) .............................. 8
Heidel v. State, 587 So.2d 835, 842 (Miss. 1991) .................................... 2
Lenard v. State, 828 So.2d 232, 236 (Miss. Ct. App. 2002) ............................ 2
Lima v. State, 7 So.3d 903, 907 (Miss. 2007) ....................................... 5
Pierre v. State, 607 So.2d 43 (Miss. 1992) ....................................... 7, 9
STATE RULES
Miss. R. Evid. 702 ............................................................ 6
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IN THE COURT OF APPEALS OF THE ST ATE OF MISSISSIPPI
APPELLANT
TAVARES SHOWERS
NO. 2009-KA-0321
VS.
STATE OF MISSISSIPPI
APPELLEE
BRIEF FOR THE APPELLEE
STATEMENT OF THE ISSUES
I.
The trial cOUli correction refused the self defense instlUction offered by Showers.
II.
Dr. Stephen Hayne was adequately voir dired and was correctly qualified to testify as a
forensic pathologist.
III.
Showers had no expectation of privacy in the interrogation room and the statements he made
which were recorded were correctly admitted into evidence by the trial court.
STATEMENT OF THE CASE
On or about December 14,2007, Tavares Showers was indicted the Lowndes County Grand
Jury for the murder of Jeremy Munson, without authority of law and not in necessary self defense.
Showers was tried December 1-4, 2008 and was convicted of the lesser included offense of
manslaughter. He was sentenced to twenty (20) years to serve in the Mississippi Department of
Corrections. Aggrieved, Showers filed the instant appeal.
1
SUMMARY OF THE ARGUMENT
Instruction D-2 was an improper comment on the evidence, a mis-statement of the law of
self-defense and the law of self-defense was fairly covered elsewhere in the jury instructions. The
trial court did not err in refusing Instruction D-2. Dr. Hayne's testimony as to his medical training
and experience within the field, including what is now thirty years of experience within the State of
Mississippi, exhibited sufficient "knowledge, skill, experience, training, or education" for the trial
judge to qualifY him as an expert. Nothing in the record suggests that Dr. Hayne's testimony was the
product of "unreliable principles and methods." Finally, nothing in the record suggests that Dr.
Hayne did not "apply the principles and methods reliably to the facts of the case," nor does Showers
point to any specific application errors. This issue is without merit and the jury's verdict and the
rulings of the trial court should be affirmed. Showers did not have a reasonable expectation of
privacy in an police interrogation room that had cameras prominently mounted in all four walls, as
well as a microphone mounted beside the table at which he and his mother sat.
ARGUMENT
I.
The trial court correction refused the self defense instruction offered by Showers.
"When a trial court fails to give a jury instruction, this Court must review the jury
instructions as a whole to determine whether reversible error was committed." Lenard v. State, 828
So.2d 232, 236 (Miss. Ct. App. 2002). "[T]he court may refuse an instruction which incorrectly
states the law, is covered fairly elsewhere in the instructions, or is without foundation in the
evidence." Id. (quoting Heidel v. State, 587 So.2d 835, 842 (Miss. 1991).
Instruction D-2 stated:
If you believe from the evidence that the deceased was a much larger
and stronger person than the Defendant, and was capable ofinflicting
great and serious bodily harm on the Defendant with his hands, and
2
that the Defendant had reason to believe and did believe as a man of
ordinary reason that he was then and there in danger of such harm at
the hands of the deceased and used a knife, with which he fatally
stabbed the deceased, to protect himself from such harm, then the
Defendant was justified, and your verdict shall be "not guilty" even
though the deceased may have been armed.
The trial court refused instruction 0-2 and told Showers he
could argue this theory to the jury in closing arguments. (Tr. 381)
Showers contends the instruction properly stated the law and should
have been given. Although a party is entitled to have his theory of the
case presented to the jury through instructions if there is adequate
evidence to support it, nonetheless, "[ilt is also well established that
instructions to the jury should not single out or contain comments on
specific evidence." Crimm v. State, 888 So.2d 1178, 1186 (Miss. Ct.
App. 2004) (quoting Lester v. State, 744 So.2d 757, 759
(Miss.1999)). Accordingly, the trial court did not abuse its discretion
in refusing to grant jury instruction 0-1 which inappropriately
commented on the evidence by addressing the disparity in size of the
victim and the defendant.
Instruction 0-1, addressing self defense, was given to the jury by the trial court and stated:
The Court instructs the jury that to make a killing justifiable on the
grounds of self-defense, the danger to the defendant must be either
actual, present and urgent, or the defendant must have reasonable
grounds to believe that the victim intended to kill the defendant or to
do him some great bodily harm, and in addition to this he must have
reasonable grounds to believe that there is imminent danger of such
act being accomplished. It is for the jury to determine the
reasonableness ofthe grounds upon which the defendant acts. If you,
3
the jury, unanimously find that the defendant acted in self-defense,
then it is your sworn duty to return a verdict in favor of the defendant.
Showers's argument is without merit since 0-1 fairly covers the law of self-defense.
Instruction 0-2 improperly instructed the jury that a disparity in size creates a legal presumption of
self-defense. This is not an accurate statement of the law in Mississippi. In actuality, the size of the
victim and the defendant were matters for the jury to weigh in reaching a determination as to
Showers' state of mind at the time ofthe deadly acts. The trial court properly refused instruction 0-2.
0-1 was given and provides a correct statement of the law of self-defense. Thus, the issue of self
defense was fairly covered in the instructions. This issue is without merit and the jury's verdict and
the rulings of the trial court should be upheld.
II.
Dr. Stephen Hayne was adequately voir dired and was qualified to testify as a forensic
pathologist.
In the case at bar, Dr. Stephen Hayne was qualified and testified in his expert capacity as a
forensic pathologist. He did not offer expert testimony in any other area or field of study. Defense
counsel requested to voir dire Dr. Hayne and conducted a very thorough questioning of Dr. Hayne
regarding his expert qualifications.
"It is well-settled that the admission of expert testimony is
within the sound discretion of the trial judge. Fnrthermore, this Conrt will not reverse a trial comt's
decision to admit expelt testimony 'nnless we conclude that the discretion was arbitrary and clearly
erroneous, amounting to an abuse of discretion.' " Bishop v. State, 982 So.2d 371, 380 (Miss.2008)
(citations omitted). Showers' contention that Dr. Hayne was unqualified to serve as an expert
witness in the area offorensic pathology is therefore unfounded and the trial court correctly accepted
Dr. Hayne as an expert witness.
4
Showers argues that his voir dire of Dr. Hayne was unfairly limited by the trial court.
Showers does not make specific cites to the record and specifY the rulings of the trial court which
he finds objectionable. He merely asks the court to review large swathes of the record and to make
findings. He does not cite any authority to support this issue which he asks the court to address. He
does not cite to any specific rulings in the record that limited his voir dire of Dr. Hayne. Therefore
this issue is waived on appeal. However, even if the issue were not waived, Showers fails on the
merits.
Relying on the concurring opinion of Justice Diaz in Edmonds v. State, 955 So.2d 787,80203 (Miss. 2007), Showers makes a nebulous, unspecified claim that Hayne is unqualified. What
Showers ignores is that Dr. Hayne was tendered and accepted as a forensic pathologist. Even Justice
Diaz, in the concurring opinion, concedes that the majority in Edmonds finds "Dr. Hayne qualified
to proffer expert opinions in forensic pathology." Id. at 802. The majority in Edmonds remanded
for a new trial based in part on its determination that Dr. Hayne testified outside his area of expertise
and had no problems with Hayne's testimony that fell squarely within the realm of forensic
pathology. Edmonds v. State, 955 So.2d 787, 792 (Miss. 2007).
In his special concurring opinion
in Edmonds, Justice Diaz attacked Dr. Hayne's qualifications to testify because Dr. Hayne was not
certified in forensic pathology by the American Board of Pathology. Regardless, a majority of the
Edmonds court found that Dr. Hayne was certified to testifY as an expert in forensic pathology. Id.
at 792(8). Therefore, there is no merit to the contention that Dr. Hayne was not properly certified to
testify as an expert in forensic pathology.
Since Edmonds, the Mississippi Supreme Court upheld the trial court's qualification of 01'.
Hayne as an expert in the area offorensic pathology in Lima v. State, 7 So.3d 903, 907 (Miss. 2007).
Lima asserted that "the trial court erred in accepting Dr. Hayne as an expert, because his work load
5
was too heavy, he lacked reliability, his work lacked peer review, and he was not board-certified by
the American Board of Pathology in forensic pathology." Mississippi Rule of Evidence 702 is the
standard for the admission of expert testimony in Mississippi, and it states:
If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testifY thereto in the form of an opinion
or otherwise, if (l) the testimony is based upon sufficient facts or
data, (2) the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and methods
reliably to the facts of the case.
Miss. R. Evid. 702.
In Lima the Mississippi Supreme Court held:
It is clear from the record that the trial court did not abuse its
discretion when it accepted Dr. Hayne as an expert. Dr. Hayne's
testimony as to his medical training and experience within the field,
which included more than twenty years of experience within the State
of Mississippi, exhibited sufficient "knowledge, skill, experience,
training, or education" for the trial judge to qualifY him as an expert.
We find nothing in the record to suggest that Dr. Hayne's testimony
was not based on "sufficient facts or data." Dr. Hayne's post-mortem
examination revealed that Houck's body contained numerous
lacerations and abrasions, and that the fatal injury occurred when two
slash wounds became confluent and ran horizontally across Houck's
neck. Dr. Hayne testified to that effect at trial, and the photographs
entered into evidence supported his conclusions.
Additionally, nothing in the record suggests that Dr. Hayne's
testimony was the product of "umeliable principles and methods."
Lima claims that Dr. Hayne's testimony was unreliable because he
performs many more autopsies annually than the number
recommended by the authors of Forensic Pathology. However, Dr.
Hayne explained that he does not take vacations and works nearly
every day of the year, for approximately sixteen hours a day. He
explained that performing a large number of autopsies is viewed by
some as necessary in order to remain competent in the field. Dr.
Hayne also testified that there was no deterioration of his intellectual
or physical performance. The State points out that, while Dr. Hayne's
6
work in this particular case was not peer-reviewed, his work in other
cases has been. Finally, nothing in the record suggests that Dr. Hayne
did not "apply the principles and methods reliably to the facts of the
case," nor does Lima point to any specific application errors.
Thus, based on the foregoing analysis, we hold that the trial court did
not abuse its discretion when it accepted Dr. Hayne as an expert.
In the instant case as in Lima, Dr. Hayne's testimony as to his medical training and experience
within the field, including what is now thirty years of experience within the State of Mississippi,
exhibited sufficient "knowledge, skill, experience, training, or education" for the trial judge to
qualify him as an expert. Further, as in Lima, nothing in the record suggests that Dr. Hayne's
testimony was the product of "unreliable principles and methods." Finally, as in Lima, nothing in
the record suggests that Dr. Hayne did not "apply the principles and methods reliably to the facts of
the case," nor does Showers point to any specific application errors. This issue is without merit and
the jury's verdict and the rulings of the trial court should be affirmed.
III.
Showers had no expectation of privacy in the interrogation room and the statements
he made which were recorded were correctly admitted into evidence by the trial court.
"Custodial interrogation" occurs in "questioning initiated by law enforcement officers after
a person has been taken into custody or otherwise deprived of his freedom of action in any
significant way." Miranda v. Arizona, 384 U.S. 436, 444,86 S.Ct. 1602, 1611, 16 L.Ed.2d 694
(1966); see also Arizona v. Mauro, 481 U.S. 520, 107 S.Ct. 1931, 95 L.Ed.2d 458 (1987) (police did
not conduct custodial interrogation when they tape-recorded defendant's conversation with his wife
in the presence of an officer); Rhode Islandv. Innis, 446 U.S. 291,100 S.Ct. 1682,64 L.Ed.2d 297
(1980) ( Miranda safeguards apply only during express police questioning or its functional
equivalent). Although Showers made the inculpatory statement while in custody, he did not make
it in response to custodial interrogation or any police action designed to elicit a response. The
7
interrogation had ended. Thus, the fifth amendment imposed on the trial court no need to ascertain
voluntariness, knowledge, and intelligence of waiver. Pierre v. State, 607 So.2d 43 (Miss. 1992).
The analysis of whether or not a reasonable expectation of privacy exists, whether in the
context of an alleged violation of the Wiretap Statute or ofthe Fourth Amendment, derives from the
rule set forth in Justice Harlan's concurring opinion in Katz v. United States, 389 U.S. 347, 360, 88
S.C!. 507, 19 L.Ed.2d 576 (1967). That rule, which has been universally adopted by subsequent
cases as the prevailing rule oflaw, states that a "reasonable expectation of privacy" in conversations
that may be protected from interception by individuals not parties to the conversation exists only
where "a person ... exhibit[s] an actual (subjective) expectation of privacy and [where] that...
expectation [is] one that society is prepared to recognize as [objectively] 'reasonable.' " (Id. at 361,
88 S.C!. 507 (Harlan, J., concurring)). Both prongs must be met for a constitutional violation to
occur. Id. The first prong of the test involves an issue of fact, the second an issue of law. See
United States v. Clark, 8th Cir., 22 F.3d 799,801 (1994).
A.
Showers did not Exhibit a Subjective Expectation of Privacy
In addressing the first prong of the Katz test, the Court must decide whether Showers
exhibited a subjective expectation of privacy such that the conversations with her husband which
took place in a police interview room would be private. Ex parte Graves, Tex.App. 1st Dis!., 853
S.W.2d 701, 705 (1993) (holding that no reasonable expectation of privacy existed in jailhouse
conversations held between defendant and alleged accomplice when defendant was or should have
been aware of monitoring system since speaker was visible on cell room wall).
As to the second prong of Katz (the objectively reasonable expectation of privacy), the Court
of Appeals must determine if Shower's expectation of privacy in a conversation that took place in
a police interview room was one that society is prepared to recognize as reasonable. Courts have
8
delineated the parameters of persons' reasonable expectation of privacy in their conversations. For
example, courts have generally found no "reasonable expectation of privacy" for overheard or
monitored conversations in police cars (US. v. Clark, 8th Cir., 22 F.3d 799,801-02 (1994)), police
interview rooms (Donaldson v. Superior Court olLos Angeles County, CaI.Supr., 35 Cal.3d 24, 196
Cal.Rptr. 704, 672 P.2d 110 (1983), or in prisons. Lanza v. New York, 370 U.S. 139, 143,82 S.Ct.
1218,8 L.Ed.2d 384 (1962). Thus, it has been said that "[a]s a rule, [surreptitiously recorded or
overheard] arrestees' conversations are fair game. The underlying theory ... is that arrestees lack an
expectation [protected by the Fourth Amendment] that what they say will be free from monitoring."
Therefore, arrestees will ordinarily have no reasonable expectation of privacy in a police interview
room, such as the one at Troop 3 of the Delaware State Police in Kent County. Fishman &
McKenna, supra n. 21 § 7:28 (citations omitted).
In the instant case, Showers and his mother appear in the tape to believe that they are
speaking privately. However, it is the second prong of Katz, that Showers fails. The video reflects
that the interrogation room had cameras mounted behind glass in the middle of each wall. The
cameras were clearly visible and were at eye level when Showers and his mother were seated. It is
simply unbelievable that they would not have seen the cameras. Testimony was adduced at trial that
to get to the interrogation room Showers would have had to pass as glassed in area with TV monitors
which are used to monitor the interrogation room.
Arrestees engaged in conversations in
interrogation rooms are not objectively entitled to a reasonable expectation of privacy. An arrestee,
especially for a violent crime, should assume that he is being monitored at all times unless he has
specifically requested privacy for a privileged conversation with an attorney or spouse.
In Pierre v. State, 607 So.2d 43 (Miss. 1992), the Mississippi Supreme Court held:
As for the privacy one might expect in a telephone conversation in an
9
open room with police officers nearby, the accepted law of search and
seizure holds that one may only challenge an intrusion where one
would objectively and reasonably expect privacy. Katz v. United
States, 389 U.S. 347,351-52,88 S.Ct. 507, 511,19 L.Ed.2d 576
(1967) (petitioner possessed a reasonable expectation of privacy in an
enclosed, public telephone booth). Pierre could not reasonably have
expected privacy when she conversed on a telephone in an open
office a few feet from where two police officers sat.
While Showers and his mother were in a room that had a closed door, there were also
cameras installed in the walls at eye level and television monitors that they had to pass in order to
get to the room. Like, PielTe, they could not reasonably have expected privacy with cameras and
monitors within a few feet of them and in plain sight.
This issue is without merit and the jury's verdict and the rulings of the trial court should be
affirmed.
CONCLUSION
The assignments of elTor raised by the Appellant are without merit and the jury's verdict and
the rulings of the trial court should be affirmed.
Respectfully submitted,
JIM HOOD, ATTORNEY GENERAL
BY:
~
\) /1,
; L"{.
.Xclc
.• , J{/jifJ.-- !LA
H. TEDDER
SPECIAL ASSISTANT ATTORNEY GENERAL
MISSISSIPPI BAR ~
OFFICE OF THE ATTORNEY GENERAL
POST OFFICE BOX 220
JACKSON, MS 39205·0220
TELEPHONE: (601) 359-3680
10
CERTIFICATE OF SERVICE
I, Laura H. Tedder, Special Assistant Attorney General for the State of Mississippi, do hereby
certifY that I have this day mailed, postage prepaid, a true and correct copy of the above and
foregoing BRIEF FOR THE APPELLEE to the following:
Honorable James T. Kitchens, Jr.
Circuit Court Judge
P. O. Box 1387
Columbus, MS 39703
Honorable Forrest Allgood
District Attorney
P. O. Box 1044
Columbus, MS 39703
Dennis Harmon, Esquire
Attorney At Law
Post Office Box 8008
Columbus, MS 39705
This the 22nd day of March, 2010 .
.2{i,UL£l
,tJ
4dlL~
All RAH. TEDDER
SPECIAL ASSISTANT ATTORNEY GENERAL
OFFICE OF THE ATTORNEY GENERAL
POST OFFICE BOX 220
JACKSON, MISSISSIPPI 39205-0220
TELEPHONE: (601) 359-3680
11