IN THE SUPREME COURT OF MISSISSIPPI
NO. 2003-KA-01295-SCT
TORRI L. SANDERS AND SHERRY SUE
JOHNSON
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 03/27/2003
TRIAL JUDGE: HON. THOMAS J. GARDNER, III
COURT FROM WHICH APPEALED: ALCORN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: ROBERT SNEED LAHER
LOUIS JULIAN HOLLIDAY, JR.
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: W. DANIEL HINCHCLIFF
DISTRICT ATTORNEY: JOHN RICHARD YOUNG
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED -11/09/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE SMITH, C.J., GRAVES AND DICKINSON, JJ.
DICKINSON, JUSTICE, FOR THE COURT:
¶1. This is a depraved heart murder case brought against two shoplifters who were involved
in a fatal car crash at the end of a highspeed chase. The question presented is whether the trial
court abused its discretion in refusing to sever the case to allow separate trials for the two
defendants.
BACKGROUND FACTS AND PROCEEDINGS
¶2. On the morning of February 21, 2002, Sherry Sue Johnson went to Torri L. Sanders’s
home in White House, Tennessee, and convinced Sanders and another woman, Astin Dile, to
accompany her on a shoplifting spree in Alabama. Although Sanders and Dile initially declined
to go, they changed their minds. The three women set out in Johnson’s car to Alabama, where
they used a specialized shoplifting scam to “hit” several Wal-Mart stores. Upon arriving at the
Wal-Mart in Mussel Shoals, Dile and Sanders went inside to purloin merchandise, while
Johnson waited behind the wheel of the getaway vehicle. As they practiced their thievery, Dile
triggered an alarm, prompting a Wal-Mart associate to ask to see a receipt and the contents of
a box she and Sanders were taking from the store. Rather than comply with the associate’s
request, the two women ran to the getaway vehicle and fled the scene.
¶3. Concerned they were being followed by a police officer, Johnson pulled into a
stranger’s driveway, and the women waited for thirty to forty-five minutes until they thought
it was safe to continue their getaway. Sanders then took the wheel of the getaway vehicle,
Johnson moved to the passenger’s seat, and Dile sat directly behind her in the backseat.
¶4. A police officer spotted the getaway car as it left the driveway. Ignoring the officer’s
flashing blue lights, the women fled, and a highspeed chase began. Sanders sped through
residential areas and ran through intersections, stop signs, and red lights until she made her way
onto Highway 72. The officer in pursuit never saw brake lights. At one point, Johnson grabbed
the wheel and steered the car into the median and around two large trucks which were blocking
the lanes at the request of the police. Sanders also flew through both stationary and rolling
roadblocks at speeds (according to Dile’s testimony) of at least 110 miles per hour.
¶5. A Tuscumbia officer testified that, during the highspeed pursuit, he observed the
occupants of the vehicle laughing and carrying on a conversation. Johnson was on the phone
most of the time, while Sanders was smoking cigarettes. A Cherokee police officer who later
joined the chase was nearly run off the road.
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¶6. As Sanders continued to drive, Johnson served as navigator, consulting a road map to
find the best escape route. Dile testified that, rather than trying to get Sanders to stop, Johnson
continuously yelled, “go, go, go!” During the chase, Johnson explained to Dile that they could
not stop because she and Sanders would have their probations revoked and they would have to
go to jail.1 At some point, however, Johnson accepted the inevitable and called her husband to
arrange bail money.
¶7. The defendants entered a busy commercial area of Corinth, Mississippi, at a high rate
of speed. Sanders ran through a red light, hit the brakes, and crashed at 67 miles per hour into
the side of a Chevy Cavalier driven by 36-year-old Kathy Hollands. Also in the Cavalier were
Hollands’s daughter, Brandy, 17, and Brandy’s best friend, Jennifer Parsons, 18. All three
women in the Cavalier were killed. The police arrived only seconds after the wreck.
¶8. Sanders and Johnson were indicted on March 21, 2002, on three counts of depraved
heart murder. On March 7, 2003, Johnson filed a motion to sever the cases, which the trial
court denied. The case against both women proceeded to trial in Alcorn Circuit Court on
March 24, 2003. At the conclusion of the trial, the jury found both defendants guilty on all
counts, and on March 27, 2003, they were each sentenced to three consecutive life sentences
in the custody of the Mississippi Department of Corrections.
¶9. On April 16, 2003, the defendants filed a Motion for New Trial, which the trial court
denied. The defendants then appealed to this Court,2 raising only one substantive issue for our
1
Johnson had been convicted of theft and was on probation. Sanders had been convicted of DWI
and possession of a Schedule IV controlled substance and was on probation.
2
The defendants state in their Notice of Appeal that they are appealing from the trial court’s denial
of their joint Motion for New Trial, wherein the issue of severance was listed as one ground for requesting
3
consideration, that is, whether the trial court erred in not severing the case and allowing the
defendants to have separate trials.
DISCUSSION
¶10. Rule 9.03 of the Uniform Rules of Circuit and County Court Practice provides that
“[t]he granting or refusing of severance of defendants in cases not involving the death penalty
shall be in the discretion of the trial judge.” Therefore, we will review the trial court’s denial
of the defendants’ motion to sever, and reverse only for abuse of discretion. King v. State,
857 So. 2d 702, 716 (Miss. 2003).
¶11. Both this Court and the United States Supreme Court have recognized the
appropriateness and importance of joint trials. Cavett v. State, 717 So. 2d 722, 727 (Miss.
1998) (citing Richardson v. Marsh, 481 U.S. 200, 210, 107 S. Ct. 1702, 95 L. Ed. 2d 176
(1987) (“Joint trials generally serve the interests of justice by avoiding inconsistent verdicts
and enabling more accurate assessment of relative culpability – advantages which sometimes
operate to the defendant’s benefit.”)). Defendants jointly indicted for a felony are not entitled
to separate trials as a matter of right. Price v. State, 336 So. 2d 1311, 1312 (Miss. 1976).
¶12. “[T]he decision whether to grant a severance depends on whether the severance is
necessary to promote a fair determination of the defendant’s guilt or innocence.” Carter v.
St at e, 799 So. 2d 40, 44 (Miss. 2001) (citing Stevens v. State, 717 So. 2d 311, 312 (Miss.
1998)). The trial court must consider a number of criteria when ruling on a motion to sever:
a new trial. Although we have not been presented with an order denying the original Motion to Sever, we
will nonetheless consider the merits of the defendants’ assignment of error based on the denial of the
Motion for New Trial.
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These criteria are whether or not the testimony of one codefendant tends to
exculpate that defendant at the expense of the other defendant and whether the
balance of the evidence introduced at trial tends to go more to the guilt of one
defendant rather than the other. Absent a showing of prejudice, there are no
grounds to hold that the trial court abused its discretion.
Hawkins v. State, 538 So. 2d 1204, 1207 (Miss. 1989) (citing Duckworth v. State, 477 So.
2d 935, 937 (Miss. 1985)).
¶13. The defendants frame their assignment of error in two parts, both of which are
addressed as follows.
I. Denial of the defendants’ motion to sever
¶14. Both defendants assert the trial court erred in denying their motion to sever. Both
defendants also repeatedly argue the trial court was informed that an integral part of their
individual defenses would be the casting of blame and culpability for the crash toward the
other. Therefore, they say, the trial court improperly refused to sever the trial.
¶15. There are two Duckworth factors to be considered by a trial court when determining
whether or not to sever a trial: (1) whether the testimony of one co-defendant tends exculpate
that defendant at the expense of the other, and (2) whether the balance of the evidence tends
to go more to the guilt of one defendant than the other. 477 So. 2d at 937. The overarching
consideration when evaluating these factors is whether the defendants would be prejudiced by
a joint trial. Id. Sanders focuses on the first factor, while Johnson primarily relies on the
second. However, both defendants’ arguments fail to establish that either defendant was
prejudiced by the joint trial. King, 857 So. 2d at 716.
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A. Co-defendants’ testimony
¶16. Sanders asserts that her testimony – that she was less than a voluntary participant in the
shoplifting spree prior to the fatal wreck – exculpated herself at Johnson’s expense. Sanders
also claims that she was coerced into going to Alabama by Johnson, told to drive after hiding
out from the police in Mussel Shoals, and ordered to continue driving after the police gave
chase. Finally, Sanders testified that Johnson pinned her against the accelerator and controlled
the vehicle during most of the chase, so her actions were done under duress.
¶17. Johnson does not provide any specific examples of how her testimony exculpated her
at Sanders’s expense. She generally alleges that the “statements given by each co-defendant
to the police subsequent to their arrest” and the strategy of assessing more blame on the other
for the crash demonstrate the exculpatory nature of each defendant’s testimony. Her argument
under the second Duckworth factor – that she was not the person who crashed the car – may
also be evaluated under the exculpatory testimony factor.
¶18. The State argues that the defendants did not actually offer any exculpatory evidence.
In fact, “both women virtually confessed to the crime during their testimonies, thus inculpating
themselves.” Both testified to their own guilt, as well as to the guilt of the other. Each
consented to and performed acts that were part of the crime, making them principals acting in
concert. Because they aided and abetted each other, neither defendant exculpated herself or
inculpated the other.
¶19. We find merit in the State’s position on this factor. Sanders says our decision in
Hawkins implies that any conflict of interest created by a co-defendant’s testimony
necessitates severance. However, there are numerous factual differences between Hawkins
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and the case at bar. In finding that severance was required in Hawkins, the Court based its
decision on the following scenario:
Hawkins did not testify in his own defense, he opted to rest after the State’s
case. At that point in the trial the State’s witness Ms. Brown had identified both
Hawkins and [his co- defendant] Amos as the robbers. Amos then proceeded
to testify stating he was not in the s tore but that Hawkins had gone back
to the store. This testimony tends to exculpate Amos at the expe ns e of
Hawkins. The jury now has to weigh Amos’ credibility against Ms. Brown
while Hawkins’ silence is de trime ntal in light of Amos’ testimony. Also
Amos’ testimony disrupts the balance of evidence. His testimony helps
corroborate Ms. Brown’s testimony that Hawkins was in the Charter Food Store.
538 So. 2d at 1207 (emphasis added). In this case, both defendants testified on their own
behalf, and neither of them denied participation in the activities leading up to the crash. Each
defendant’s testimony merely sought to lessen her personal responsibility for the crime.
¶20. Joint trials that violate this factor tend to involve co-defendants with inconsistent
defenses. For example, in Tillman v. State, 606 So. 2d 1103, 1106 (Miss. 1992), overruled
in part on other grounds by White v. State, 785 So. 2d 1059, 1061 (Miss. 2001), Tillman
testified that he was not even with his co-defendants, Stevenson and Campbell, on the night of
the burglary, but that they had borrowed his truck. Tillman also testified that he later found the
stolen merchandise at his house and told Stevenson and Campbell to take the items elsewhere.
Id. Stevenson, on the other hand, testified that he had not borrowed Tillman’s truck for any
purpose and was in fact at a friend’s house the night of the burglary. Id. The Court found that
Tillman’s and Stevenson’s defenses were directly in conflict, leaving the jury with the
impression that both were lying. Id. Therefore, the trials should have been severed. Id. See
also Stevens, 717 So. 2d at 312- 13 (defendant was prevented from raising a defense because
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of an order in limine based on his co-defendant’s motion; inability to raise a defense because
of the joint trial required severance upon remand).
¶21. In only one case has this Court found that mere blame-shifting, rather than a defendant’s
attempt to fully exculpate himself at his co-defendant’s expense, necessitated severance. See
Payton v. State, 785 So. 2d 267, 269-70 (Miss. 1999). Like many other severance cases,
though, Payton involved co-defendants with completely inconsistent defenses: one defendant
denied the allegations against him altogether while the other admitted some involvement but
primarily laid blame with his co-defendant:
Payton was prejudiced by [his co-defendant] Marshall’s testimony and defense
strategy in general. This strategy was an attempt by co-defendant Marshall
through his testimony and that of his witness to mitigate his potential dual life
sentences by shifting as much blame as possible to Payton, whose defense was
a general denial of the allegations. While it is true that Marshall did not
attempt to fully exculpate himself, the blame-shifting is apparent. As the Court
of Appeals dissent pointed out, Marshall’s defense was successful to Payton’s
detriment as evidenced by the disparity in sentencing verdicts.
Id. (Emphasis added).
¶22. In this case, both Sanders and Johnson testified as to their own guilt as well as to the
guilt of the other. Neither of them denied shoplifting, fleeing the police afterwards, or
crashing into the victims’ car. No one was prevented from raising a defense based on the joint
trial, and their defenses were not inconsistent with one another. Additionally, both Sanders and
Johnson received the same sentence.
¶23. Sanders’s attempt to establish a defense of duress is irrelevant, as longstanding
Mississippi law holds that duress is not a legal defense to murder. Watson v. State, 212 Miss.
788, 793, 55 So. 2d 441, 443 (1951). Additionally, Johnson’s defense that, although she and
8
Sanders were acting in concert, she really wished Sanders would have stopped is equally feeble
given the evidence produced at trial. Neither defendant offered any testimony exculpating
herself at the other’s expense. Each testified as to her own guilt, as well as to the guilt of her
co-defendant. The defendants have not shown the trial court abused its discretion based on the
first Duckworth factor.
B. Balance of the evidence
¶24. We must also evaluate whether the balance of the evidence goes more to the guilt of
one defendant. Sanders does not specifically address this Duckworth factor, but Johnson
heavily relies on it. Johnson points to the fact that Sanders was driving the car at the time of
the crash. Johnson also notes that Sanders was the person operating the car in a reckless
manner, traveling at high rates of speed, and disregarding traffic devices. As such, the balance
of the evidence introduced at trial obviously points more to the guilt of Sanders than Johnson.
¶25. The defendants ignore crucial language in their indictment. Each of the three counts
of the indictment states that Sanders and Johnson
did wilfully, unlawfully, and feloniously without authority of law kill [the
victims], while in the commission of an act eminently dangerous to others and
evincing a depraved heart, regardless of human life, although without any
premeditated design to effect the death of [the victims], in that they, while
acting in concert with each other, did drive at an excessive speed, did refuse
to stop while being pursued by law enforcement officers, and did run through a
stop light crashing into the car that [the victims] occupied, in violation of
Mississippi Code, Annotated, Section 97-3-19(1)(b).
(Emphasis added).
¶26. The evidence introduced at trial clearly went equally to the guilt of both defendants.
Testimony by the defendants and Dile established that the shoplifting spree originated with
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Johnson, and all three women voluntarily participated because Sanders and Johnson needed
the money. The women “hit” at least five stores during their trip using a specialized scheme
in which each one played a crucial part. See Blanks v. State, 451 So. 2d 775, 777 (Miss.
1984) (witness testified implicating both co-defendants, as well as himself, in the planning and
commission of the crime; thus, there was no prejudice because the evidence introduced at trial
went to the guilt of both defendants).
¶27. After getting caught at the Mussel Shoals Wal-Mart, Johnson drove the getaway car.
Although Johnson told Sanders to drive the car after the three left their hiding spot, Sanders
voluntarily agreed to get behind the wheel. When the high speed chase began, Sanders
recklessly evaded police by running through stop signs, red lights, and stationary and rolling
roadblocks. During this time, Johnson was consulting a road map. According to Dile’s
testimony, Johnson repeatedly yelled at Sanders to keep going and commented on the fact that
both she and Sanders were on probation and would go to jail if caught with the stolen
merchandise.
¶28. Although Sanders argues that Johnson had taken control of the car, this claim is refuted
by Dile and the police officers in pursuit, who saw no struggle whatsoever in the fleeing
vehicle. In fact, several witnesses testified to seeing Sanders smoking cigarettes while driving
and Johnson chatting on her cell phone. Additionally, Sanders contradicted herself during her
testimony, often acknowledging that she had control of the car during several parts of the
chase. However, Johnson did admit to taking control of the vehicle in order to pass the semis
driving side-by-side and blocking the lanes, thus prolonging the defendants’ attempt at escape.
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¶29. While Sanders was the driver during the high speed chase, the evidence introduced at
trial demonstrated that Johnson at all times was working in concert with her to steal
merchandise and escape the police. “Therefore, ‘where all the evidence at trial went to the
guilt of both appellants and not to one more than the other,’ it is not error to try the defendants
jointly.” Johnson v. State, 512 So. 2d 1246, 1254 (Miss. 1987) (quoting Blanks, 451 So. 2d
at 777). See also Gossett v. State, 660 So. 2d 1285, 1290 (Miss. 1995) (“The balance of the
evidence demonstrated that both defendants separately shot Hunter implicating them equally
in the murder.”).
¶30. Given the breadth and depth of the evidence against each defendant, we cannot say the
trial court abused its discretion in refusing to sever the trial. Significantly, even if this Court
should find that each defendant had exculpated herself at the expense of the other, “[a]bsent a
showing of prejudice, there are no grounds to hold that the trial court abused its discretion.”
Hawkins, 538 So. 2d at 1207. The evidence against both Sanders and Johnson was
overwhelming. They were caught at the site of the crash with the stolen merchandise, and both
made admissions of active participation in the crime. Separate trials would not have altered
the outcome of this trial. See King, 857 So. 2d at 716 (without a showing of prejudice, there
are no grounds upon which to hold the trial court in error).
II. Failure of the trial court to sua sponte sever the case
¶31. Defendants also argue the trial court erred by not sua sponte ordering the trial to be
severed. This assignment of error appears to be the defendants’ fall-back position should this
Court find that they did not pursue their motion to sever to decision as required by URCCC
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2.04.3 Alternatively, the defendants might have made this argument out of concern for the
potentially deficient record they provided to the Court. See Acker v. State, 797 So. 2d 966,
971 (Miss. 2001) (“Our law is clear that an appellant must present to us a record sufficient to
show the occurrence of the error he asserts and also that the matter was properly presented to
the trial court and timely preserved.”). Regardless, this issue is meritless based on our
discussion in Part I. The defendants failed to demonstrate that the trial court abused its
discretion by not severing their trial. Therefore, the trial court cannot be put in error for
failing to sua sponte sever the trial when it was not required to do so even upon a proper
motion.
CONCLUSION
¶32. The defendants have not shown that they suffered prejudice as a result of the joint trial.
There is no evidence that the trial court abused its discretion in denying the defendants’ motion
to sever and motion for new trial. Finally, the trial court was in no way required to sua sponte
sever the trial. Therefore, the trial court did not err in denying both motions. We affirm the
trial court’s judgment.
3
URCCC 2.04 states:
It is the duty of the movant, when a motion or pleading is filed, including motions for a new
trial, to pursue said motion to hearing and decision by the court. Failure to pursue a
pretrial motion to hearing and decision before trial is deemed an abandonment of that
motion; however, said motion may be heard after the commencement of trial in the
discretion of the court.
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¶33. AS TO TORRI L. SANDERS: COUNT I: CONVICTION OF DEPRAVED HEART
MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. THIS SENTENCE SHALL
RUN CONSECUTIVELY TO COUNTS II AND III OF THIS CAUSE. COUNT II:
CONVICTION OF DEPRAVED HEART MURDER AND SENTENCE OF LIFE
IMPRISONM ENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AFFIRMED. THIS SENTENCE SHALL RUN CONSECUTIVELY TO
COUNTS I AND III. COUNT III: CONVICTION OF DEPRAVED HEART MURDER AND
SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, AFFIRMED. THIS SENTENCE SHALL RUN
CONSECUTIVELY TO COUNTS I AND II. AS TO SHERRY SUE JOHNSON: COUNT I:
CONVICTION OF DEPRAVED HEART MURDER AND SENTENCE OF LIFE
IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AFFIRMED. THIS SENTENCE SHALL RUN CONSECUTIVELY TO
COUNTS II AND III OF THIS CAUSE. COUNT II: CONVICTION OF DEPRAVED HEART
MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. THIS SENTENCE SHALL
RUN CONSECUTIVELY TO COUNTS I AND III. COUNT III: CONVICTION OF
DEPRAVED HEART MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE
CUSTODYOF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. THIS
SENTENCE SHALL RUN CONSECUTIVELY TO COUNTS I AND II.
SMITH, C.J., WALLER AND COBB, P.JJ., DIAZ, EASLEY, CARLSON, GRAVES
AND RANDOLPH, JJ., CONCUR.
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Torri L. Sanders v. State of Mississippi
Combined Opinion