                            IN THE SUPREME COURT OF MISSISSIPPI
                                     NO. 2000-KA-01690-SCT
T. W. KING
v.
STATE OF MISSISSIPPI

DATE OF JUDGMENT:                                   02/11/2000
TRIAL JUDGE:                                        HON. W. ASHLEY HINES
COURT FROM WHICH APPEALED:                          LEFLORE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                            W. S. STUCKEY, JR.
                                                    WHITMAN D. MOUNGER
ATTORNEYS FOR APPELLEE:                             OFFICE OF THE ATTORNEY GENERAL
                                                    BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY:                                  FRANK CARLTON
NATURE OF THE CASE:                                 CRIMINAL - FELONY
DISPOSITION:                                        AFFIRMED - 10/25/2001
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                     11/15/2001

      BEFORE PITTMAN, C.J., COBB AND DIAZ, JJ.

      DIAZ, JUSTICE, FOR THE COURT:

¶1. T. W. King (King) was indicted in the Leflore County Circuit Court for capital murder with the
underlying felony being arson. Prior to trial, the capital portion of the indictment was dismissed. King then
faced trial for murder less than capital and arson. A jury trial commenced on February 9, 2000, with Judge
W. Ashley Hines presiding. At the conclusion of the State's case in chief, King moved for a directed
verdict, which was denied. Subsequently, King put forth his case. At the conclusion of the trial, the jury
returned a verdict of guilty for both the charges of murder and arson. Accordingly, King was sentenced to
life in the custody of the Mississippi Department of Corrections (MDOC) on the murder conviction and
twenty years for arson to run concurrently with the life sentence. In answer, King filed a motion for new trial
or judgment notwithstanding the verdict, which was denied. Then, he timely perfected appeal and challenges
his conviction and sentence contending that (1) the evidence is insufficient to support the jury's verdict and
(2) the trial court erred in overruling his motion to dismiss for failure of the State to properly preserve
certain physical evidence.

                                                   FACTS

¶2. Although there was no eyewitness to the actual crime, the testimony of the various witnesses allows us
to piece together the events of the evening in question.

¶3. Cora Lanette Moore testified that while walking in the "G.P." area of Greenwood, Mississippi, she saw
King driving a green truck. He asked if she wanted to "get high," and the two proceeded to procure and
smoke crack cocaine. She further testified that King began to "act weird" which, in turn, caused her to feel
nervous. Thus, she chose to leave King's company. Moore testified that as she got out of the truck, King
noticed Emma Lou Pitts (Pitts), the victim, and asked Moore to get Pitts to step over to the truck. Pitts got
into the truck, and it drove off in the direction of Pitts's residence.

¶4. Next, Shinner Ellis testified that on the evening in question, she went to the victim's home on several
occasions to see if Pitts wanted to join her in smoking some crack cocaine. She further testified that on at
least two of these occasions, King was present, appeared intoxicated, and was treating the victim poorly
(pulling her by the arm and waving a gun around). King was next seen by Ellis on her third trip to Pitts's
home. She testified that King was drenched wet, carrying a screwdriver, and speaking to two police
officers. At this time, she overheard King tell the policemen that he had just been robbed and thought that
he had stabbed one of his assailants with the screwdriver. Upon knocking on Pitts's door, Ellis received no
answer so she left. Finally, Ellis returned a fourth time and noticed smoke. Along with Rosemary Robinson,
she banged on Pitts's door and got a neighbor to phone the fire department.

¶5. Early Nichols, Officer Michael Johnson, and Officer Reginald Dean all testified, as Ellis had, that King
came running down the alley and told them the story of being robbed. The officers were in the area
investigating an unrelated crime and looking for stolen merchandise. It was during their search that King
approached them. The officers testified that King was soaking wet on the front part of his body but dry on
his back. Furthermore, they noticed some blood on his shirt but no signs of injury to King's person. When
asked, King declined filing a report on the alleged robbery. During the same search, the officers noticed a
water leak under the bathroom of what was later discovered to be Pitts's home. They then left the area.

¶6. King was next seen by Michael Buchanan walking around the area without a shirt. Buchanan related
that King had told him of the alleged robbery. King said the robbers had taken about $800, his truck, and
his keys. Buchanan informed King that he knew where his truck was and took him to it. At which time,
King then produced the allegedly stolen keys, got in the truck, and drove off. Buchanan also testified to
hearing King tell the police officers of the robbery, as well as Lee Bell and another individual saying they
had heard the same story.

¶7. The police officers returned to the area a couple of hours later in response to the call about the fire.
After the fire was put out, Pitts's body was found in her bathtub. The medical examiner would later testify
that she had died of fresh water drowning. In addition to the signs of drowning, the medical examiner
testified that Pitts was beaten quite severely; she had bruises and several cuts on her head and face.
Specifically, the medical examiner noted that Pitts had a large contusion covering her left eye and cheek,
other bruises to her lips, a series of small cuts on her forehead, larger scraps on her left cheek, a scratch and
small cut on her left hand fingers, a bruise on her left arm, and a large contusion across much of her chest.

¶8. With additional help, the officers again searched the area, this time looking for evidence related to the
fire and apparent homicide. In the search, they found a cell phone belonging to King's girlfriend, Catherine
Andrews, under a burnt paper sack.

¶9. To fill in the gaps, Andrews, King's live-in girlfriend for five years, testified that King had left the house
between 7:30 and 8:00 p.m. that evening. He returned between 3:30 and 4:00 a.m., and explained that he
had been robbed in G.P. He also explained that he had dropped her phone and was going to return to the
area to look for it. After an unsuccessful solo attempt, King persuaded Andrews to come with him but upon
seeing the fire engines, left the area before looking for the phone. Later that morning, after King was taken
into custody, the police searched Andrews's home with her permission. She identified and handed over the
shirt, which was still quite damp and somewhat hidden, and the pants King had been wearing that evening.

¶10. King has consistently denied killing Pitts and setting fire to her house, and he has persisted in claiming
he had been robbed.

¶11. The only other pertinent facts concern the handling of evidence. All possible evidence was placed in
plastic evidence bags and labeled. Bloody paper towels found near the scene of the crime were identified as
having human blood on them; however, the blood was inconsistent with both Pitts and King. The shirt
obtained from Andrews was bagged as evidence, but not frozen. It was later tested, and the blood found
on the shirt was identified as human blood. However, the samples had degraded to such a degree that
DNA testing revealed no results.

                                                DISCUSSION

      I. WHETHER THE EVIDENCE IS INSUFFICIENT TO SUPPORT THE JURY'S
      VERDICT.

¶12. Through this assignment of error, King is essentially challenging the sufficiency and weight of the
evidence that form the basis for his conviction. When the sufficiency and weight of the evidence are
questioned, the allegation is really being directed against the accuracy of the jury's verdict. May v. State,
460 So. 2d 778, 780-82 (Miss. 1994). The assignment of error is predicated upon the contention that the
evidence simply does not justify a finding of guilt beyond a reasonable doubt. However, it is a fundamental
principle of law that jury verdicts will not be disturbed except under the most dire of circumstances.
Manning v. State, 735 So. 2d 323, 333 (Miss. 1999). Accordingly, in our review of criminal convictions,
we consider the evidence in the light most favorable to the conviction. Id. If then we decide that no
reasonable person could have found the accused guilty beyond a reasonable doubt, the verdict will be set
aside. Id. However, if our review reveals that "reasonable and fair-minded jurors in the exercise of impartial
judgment might have reached different conclusions, the verdict of guilty is thus placed beyond our authority
to disturb." Id.

¶13. King asserts that the State's case was based entirely on circumstantial evidence. Furthermore, he goes
on to suggest that the already weak evidence's character is suspect at best, given the unreliable and dubious
nature of the witnesses. King points out that many of the State's witnesses that saw him that night admit to
being long time drug addicts, as well as having used drugs on the very night in question. In his brief, King
takes issue with each witness individually and sets forth his reasons why their testimony should not be
trusted. In addition, King reiterates the robbery story and various other portions of his statement to the
police and claims that other witnesses corroborate his version of events. Finally, King attacks the weight of
the physical evidence and proposes alternate theories of the crime, such as the robbers that assaulted him
could be responsible for Pitts's death. King even points to certain aspects of the physical evidence to
support his theory (e.g. the blood on the paper towels not matching him nor the victim). In conclusion, King
asserts that even when viewed in the light most favorable to support the conviction, the evidence is
insufficient.

¶14. As pointed out by the State, there was an abundance of evidence in support of King's conviction. A
thorough review of the record reveals that all of the concerns and problems King asserts the witnesses
suffered from were brought out and addressed by counsel. The jury heard about the drugs, promiscuity, and
stealing. The jury also heard the State's version of events, as well as King's story. Essentially, King now
asks this Court to reweigh the credibility of witnesses. It is a well-settled principle of law that issues of
weight and credibility of witness testimony are within the sole province of the jury as fact finder. Humphrey
v. State, 759 So. 2d 368, 387 (Miss. 2000). The jury has a much better vantage point to view and assess
the tone, mannerisms, and disposition of witnesses. True, most of the State's witnesses were not choirboys,
but there was also physical evidence and the testimony of two police officers tying King to the murder.
Given the evidence in the record and the fact that the jury was properly instructed, we find ample evidence
to support the conviction. Thus, this issue is without merit.

     II. WHETHER THE TRIAL COURT ERRED IN OVERRULING HIS MOTION TO
     DISMISS FOR FAILURE OF THE STATE TO PROPERLY PRESERVE CERTAIN
     PHYSICAL EVIDENCE.

¶15. King next contends that the State improperly handled and failed to preserve certain physical evidence,
and thus, deprived him of his right to a fair trial and due process of law. Specifically, King points to the
handling of the blood stained shirt and the fact that it could not be analyzed for DNA. The test for whether
dismissal is warranted due to evidentiary snafus has been laid out in Duplantis v. State, 708 So. 2d 1327
(Miss. 1998) and Banks v. State, 725 So. 2d 711 (Miss. 1997); and was originally set forth in Tolbert v.
State, 511 So. 2d 1368 (Miss. 1987). The test is:

     [T]he State's duty to preserve evidence is limited to evidence that is expected to play a significant role
     in the defense. To play a constitutionally significant role in the defense, the exculpatory nature of the
     evidence must have been (1) apparent before the evidence was destroyed and (2) of such a nature
     that the defendant could not obtain comparable evidence by other reasonable means.

Banks, 725 So. 2d at 714-15 (citing Tolbert, 511 So. 2d at 1372). King asserts that he has satisfied this
test; and therefore, his conviction and sentence should be reversed and rendered.

¶16. In fact, the shirt was found wet and placed in a plastic evidence bag. However, the shirt was not
frozen, as recommended by the testimony of expert Julie Golden of Reliagene Technologies as the best
method for preserving items for DNA testing, especially a wet article of clothing. No evidence was
introduced to suggest that articles of potential evidence are normally frozen by the Greenwood Police
Department; actually, officers testified that they try to "bag" anything that may be evidence. However, it was
stipulated that the lack of proper preservation (freezing rather than mere storage) led to DNA being
degraded by bacteria. Golden compared cuttings from the shirt to samples of Pitts's and King's blood. In
the end, valid DNA results could not be obtained from the shirt in question.

¶17. Does such evidence fulfill the Tolbert test? As to the first prong, there is little doubt that the
exculpatory nature of the evidence was apparent before it was allowed to spoil. After all, this case deals
with a homicide. The DNA testing could have shown that Pitts bled on King sometime that night, or it could
have bolstered King's version of events by substantiating his claims of being attacked by unknown
assailants. Such evidence would have gone a long way in giving King's story some credence and weight.

¶18. The second prong of the test is somewhat more difficult. While the DNA testing could have lent a hand
to King's defense, he was still able to put forth his theory. Furthermore, he even was able to use other
physical evidence to support his version of events, namely the paper towels which had blood on them that
did not match King or Pitts. King could have and did argue that the blood on the paper towels came from
the same person as the blood on his shirt, and he argued that but for the shoddy work of the police
department, he would have had more evidence of his innocence. So, even though it is undeniable that the
DNA testing would have played a role in this case, King was still able to present his argument to the jury.

¶19. In addition to the two enumerated prongs of the test, Tolbert also held:

      "the mere possibility the evidence might aid the defense does not satisfy the constitutional materiality
      standard." United States v. Binker, 795 F.2d 1218, 1230 (5th Cir.1986); United States v.
      Webster, 750 F.2d 307, 333 (5th Cir.1984). In deciding whether the destruction of evidence
      constituted a due process denial, the Trombetta Court also considered whether the government
      agents had acted in good faith and in accord with their normal practice or had made a conscious effort
      to suppress exculpatory evidence. California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81
      L.Ed.2d 413 (1984).

Tolbert, 511 So.2d at 1372. "[W]e do not believe [King] was prejudiced . . . by the absence of this
alleged evidence. [King] fails to present any compelling evidence of fraud or intentional suppression of the
truth on the state's behalf." Duplantis, 708 So. 2d at 1338. Furthermore, our review of the record shows
that, at best, this evidence would have only aided King's defense; it was not a necessary element of it. Thus,
since the DNA testing would have only been an aid in King's defense and there is no evidence of bad faith
on the part of the State, we find this issue to be without merit.

                                              CONCLUSION

¶20. A jury verdict will not be disturbed unless this Court concludes that no reasonable jury could have
found the accused guilty beyond a reasonable doubt, viewing the evidence in the light most favorable to a
conviction. King did not overcome this rather high standard. In fact, we find ample evidence in the record to
support a conviction in the present case.

¶21. While the State bobbled the handling of the physical evidence in this case (as evinced by its stipulation
to the same), the absence of the evidence in question was not so significant to the defense as to warrant
reversal of his conviction. We do take this opportunity, however, to admonish law enforcement to take all
necessary precautions in the future. Convictions in cases similar to the present case need to be beyond
reproach, so as to ensure fair and exacting justice.

¶22. Since we find no err in the record, we therefore affirm the conviction and sentence imposed by the
Leflore County Circuit Court.

¶23. COUNT I: CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT
IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS,
AFFIRMED. COUNT II: CONVICTION OF ARSON AND SENTENCE OF TWENTY YEARS
IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS,
AFFIRMED. SENTENCE IN COUNT II SHALL RUN CONCURRENTLY WITH SENTENCE
IN COUNT I.

      PITTMAN, C.J., McRAE, P.J., SMITH, MILLS, WALLER AND EASLEY, JJ.,
      CONCUR. COBB, J., CONCURS IN PART. BANKS, P.J., CONCURS WITH SEPARATE
      WRITTEN OPINION JOINED BY COBB, J.
      BANKS, PRESIDING JUSTICE, CONCURRING:

¶24. I agree with the result here, but I differ with the majority on its analysis of the spoilation issue. I do not
think that the exculpatory nature of the evidence was readily apparent. If the DNA revealed that it was
Pitts's blood, it would be inculpatory. The police could not know in advance which way it would turn out.

¶25. As to the second prong, I do not think that there is comparable evidence. This is blood on King's shirt
not on paper towels in the area unconnected to him or Pitts. Nor do I think that the fact that King was able
to make argument to the jury about the absence of an ability to prove that the blood was not his, fits the
category of "comparable proof."

¶26. In short, I think that this situation flunks the first rather than the second prong of the test reiterated in
Banks v. State, 725 So. 2d 711, 715 (Miss. 1997). While in Banks there could be no certainty that the
evidence was exculpatory, unlike here, there was expert testimony from the State regarding the evidence
which the defendant could not meet because of the spoilation.

      COBB, J., JOINS THIS OPINION.
