By Patsy R. Brumfield / Daily Journal
2:29 P.M. POST
TUPELO – Thomas J. Ward’s depraved-heart murder trial will resume at 9 a.m. Wednesday with a delay in scheduling for defense witnesses until then.
Ward, 25, of Saltillo is accused in the April 14, 2010, shooting death of Anna Catherine McCoy. He insists it was an accident, but he was indicted on a charge of depraved-heart murder, which includes behavior so reckless as to disregard human life.
McCoy’s parents wept on the stand earlier today as the state’s final witnesses.
The trial began a week ago, with Judge James L. Roberts Jr. presiding.
Defense attorney is Victor Fleitas of Tupelo. Prosecutors are DA Trent Kelly with assistants, Richard Bowen and Josh Wise.
(Below are updates and running accounts of courtroom action. Please excuse the typos and glitches likely as I type fast. *Watch for live Tweets via Twitter.com @realnewsqueen #wardtrial)
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1:59 p.m. – Judge, back on the record in court. Counsel, ready to proceed. Defense ready. Both ready for jury.
2:03 – Judge tells them defense will begin its case.
FLEITAS – CALLS JOSH VAN DYKE
VAN DYKE – (He’s dressed in suit and tie.) Saltillo, student at Univ. of MS, business. Knows Ward and McCoy. Met her through Thomas. (Nature of their relationship?) BOWEN – WE OBJECT … APPROACH? … attorneys confer with judge.
(Aware of the nature of their relationship?) They were dating. (How many times you were socially with them?) 10-20 times (In these situations, were you alone or what/) At times,my wife and me and him and Anna… other times with other people. (April 15, 2010, did you see Anna?) Yes, at Ruby Magic … movie rental and tanning place. With my wife. About 5-6 p.m. Just got through working out. (What about it?) Returning a movie. (Plans?) She said she and Thomas were about to go eat. (Did you see him?) He was in the vehicle. (What was her demeanor?) She seemed happy. (No more questions.)
CROSS – BOWEN
(BOWEN – No questions.
FLEITAS – DEFENSE CALLS ZACH HILL
HILL – (dress shirt, slacks, tie) Saltillo, employed at Baha. Knows Ward, since 8th grade. Know Anna McCoy. (How meet?) Through Thomas. (Relationship with him?) They were dating. (Ever socially with them?) Yes, 10-15 times. (April 14, 2010, where worked?) At Ashley Furniture in Ecru, in shipping. (Did you see them?) At Thomas’ house. About 6:30 p.m. or 7. (How did he look?) He was fine, they were laughing and talking. She had to leave to take a test or something. Said bye, gave her a kiss and she left. She seemed fine, smiling, told me bye. Last time I seen her. (Plans to see them after that?) They were suppose to go eat supper and I’d come over after they got back, on 15th. (Did you visit them?) No, had my son with me so didn’t go. Invited to visit but had my little boy with me. (Let them know weren’t coming?) I did not. (Nothing further.)
CROSS – BOWEN – No questions.
FLEITAS – Asks for bench conference. They confer.
2:16 – JUDGE – Jury, in any trial, especially of this complexity, difficult to schedule everything, including calling of witnesses. Another matter to be conducted outside your presence. Other witnesses scheduled for tomorrow. Will allow jury to leave now. Tomorrow will be like normal work day toward conclusion. See no point for you to sit in jury room without anything for you to do later today. Jury, return 8:30 Wednesday morning.
JUDGE – Asks Fleitas if anything left to be done on record?
FLEITAS – Asked about objection in abeyance per Allison McCoy. In light of her testimony, objection is withdrawn.
I will not be leaving courthouse for a while to work on various things court says we an work on during recess.
KELLY – Nothing, your honor.
JUDGE – To audience, welcome to be here. Lawyers don’t have anything else to do today in open court. Still many matters remaining to be done outside presence of the jury. We’ll spend rest of afternoon to do as much as we can in that regard. Trial is moving right along. Recess until 9 a.m. tomorrow.
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TUPELO – Judge James L. Roberts denied a defense motion to throw out depraved-heart murder charge and ordered that Thomas James Ward’s fate will be decided by a jury.
After that, the noon recess was taken.
(Below is a running account of what’s occurred since 9:46 POST.)
10:12 – Judge back. To counsel, ready to proceed? Yes, state says.
FLEITAS – Took court up on invitation to conduct interview of Mrs. Allison McCoy with DA’s staff. Based on representations and interview with her, I request to hold objection in abeyance subject to her testimony. No problem with this witness being called.
JUDGE – Jury, some matters conducted outside your presence. Ready to proceed.
STATE CALLS ALLISON MCCOY
10:16 – Mrs. McCoy a petite, graying brunette.
A MCCOY – Anna was my daughter. (Kelly – asks to publish document. What is this?) It’s her daughter … mother’s voice trembles. What she looked like April 15 prior to 10 p.m. Smile … (employed?) No sir (In 2010?) PE teacher at Nettleton schools. (Why not now?) Tried to go back but I just couldn’t … kids, smiling faces, Anna used to come there. I just couldn’t go back. (Does Anna hve siblings?) Sister and brother. (Anna at ICC?) Yes. (Living where?) At home. (Involved with activities there?) Always involved in HS and college – soccer from age 4 up. Ran track. Softball. ICC soccer, on scholarship.
(Back to April 15, 2010 – saw her?) I did … voice trembles, tears. (Saw her?) Last time standing in my kitchen about 5 or 5:30, in Tupelo. (What saw, talking about?) She had gotten dressed, said going to dinner with Thomas. She had just come back from t=getting tires rotated. Had new dress on. (Saw her in dress?) I did. It was a white top with ascoop nec with beading. Bottom was a gray skirt with black lace around bottom of tiers. Beautiful dress on beautiful girl. (Leaving to meet Thomas?) Yes. (Had you met him prior to this?) One time at a restaurant. Only that. (What?) Olive Garden. Did not eat together then.(What was her mood like then?) … WARD WEEPING …. she was in a good mood, smile on her face. She always was.
(You got call that night?) I did. About 11:30-12. (Recall who called?) Mark Haygood. (What did he tell you to do?) Asked if I was her mother, I said yes, he said to come to hospital. (Did you?) I did. (Talked?) Called Cotton to come. (Arrive before he did?) I did… weeping. (What next?) I told them that I was Anna’s mother … they ex=scorted me to a room. I said, I need to see Anna. I wanted to go back to the room, They took me to a room. Waited there. (When find out about her?) Carolyn Green came in and said Anna’s gone… weeping…. I didn’t understand at first…. WARD WEEPS …
(What did Anna mean to you and family?) weeping …. she mean everything to us. She was a sister, an aunt a niece, a daughter. … weeping …. BOWEN’S CELL PHONE GOES OFF … she cared about her family. (NO further questions.)
FLEITAS – 10:26 – (PRB – DA didn’t ask her about the letter.) (When you met Thomas at Olive Garden, did Anna introduce him?) She did. (I’m very sorry for your loss. Nothing further.)
BOWEN – THE STATE RESTS
JUDGE – Not sure what will happen next (says to jury.) Ask that you be escorted to jury room and take whatever time we can to handle these matters. We will not forget that you are there.
FLEITAS – Moves for directed verdict per charge of depraved-heart murder. Cites case law… Mississippi cases … First point, with respect to the interplay between statute and culpable negligent manslaughter statutes. Courts of this state have struggled to find a meaningful difference. Depraved-heart speaks to recklessness with max of life in prison. Manslaughter is 20 years max. Courts have described this dicotomy as murky at best. BEst court has said is that it’s a question of degree of culpability and somehow jurors are supposed to figure it out, when language of two stattues are basically indistinguishable. Cover almost same conduct. Sentences different. Say it violates due process to have these two stattues and that they have no rational difference with penalties. (BOWEN CELL GOES OFF AGAIN)
As stated, court is well aware that depraved-heart murder statute is reffered to malice murder, others say second-degree murder … requires a certain mental state. Inferred ffrom circumstances around indictment. State has presented numerous witnesses to support those conclusions. But I submit that state has not proved one witness or enough testimony tht permits implication that this was a depraved heart murder. Situations where DHM … were actions by defendant directed at a group, so reckless and so indifferent to value of human life to raise act to murder … like shooting into a room or house filled with people and killing someobyd in there. At some point, MS Supreme Court looked at instances of applying for individual on individual basis. In that, the court requied showing of reckless and imminently dangerous act … cases found to be in existence, … assault with hammer … jail beating … stomping and kicking of head and causing death … in those cases court looked at conduct showed sufficient degree of depravity necessary to create question of whether DHM was raised.
In this case, evidence of state has provided no proof of such malice. (cites a case of kids playing around with revolver … one held gun to head, killed other one … court looked at that witnessed by another … said those facts did not rise to level of DHM. Said all could be said was for culpable negligence.) Based on evidence … cites case … Haygood testified to Ward’s state of shock, covered in blood. Prentiss Brown said similar things to Ward’s state of mind. 911 call admitted into evidence. Fair listening … don’t think any witness … reasonable listener to conclude anything other than call experssed degree of grief and agony and hurt, which a cold record cannot convey. The screams …. Thomas administers CPR … covered in her blood after it took place.
Before Brown arrived and other medical intervention. Couldn’t help Ms. McCoy.
The testimony does not … state has not and cannot demonstrate beyond reasonable doubt … looking at evidence inbest light to state … be able to establish necessary elements for offense charged. This is, always was, arguable a culpable negligence manslaughter case. State chose to indict differently. Know it wasn’t this administration’s decision. Again, looking in light of circumstantial evidene standards. don’t think state has provided any proof … said coldly pointed gun and discharged it without concern for her well being or her safety. I submit that has not been borne out in any way with evidence. State conceded in its motions and practice … at inception no evidence to support notion that was a dispute, fight, argument or any issue between Ward and McCoy on night in question. That evidence has not been introduced. State admits no such facts exist.
Submit respectfully … state has not made out case for DHM, particularly in light that state must meet burden of exclusion of every reasonable hypothesis … hasn’t been met. That WArd acted in reckless, indifferent manner. Record is completley silent.
For that reason, move to directed verdict on DHM. Also, culpable negligent manslaughter … mandates tht CNM charge be dismissed for directed verdict with respect to that charge.
Again, to be brief, Ward objects to DHM statute, violates right to due process – with two statutes on same conduct… impose different penalties. DHM much more severe. Request to directed verdict on DHM and manslaughter.
10:46 – BOWEN – Only eyewitnesses …. must be taken as truth unless controverted by evidence. We’ve put on expert testimony that his version of what happened here with statement … is contradictory to physical facts. Experts say in light most favorable to state that defendant’s version could not have happened. Two experts about gun, its ranges. Defendant’s version … with exchange between McCoy and him. He said she handed gun to him … bumped trigger and it went off – could not have happened. Experts, pathologist… clear tht if it had happened, would be physical evidence of soot, stipling if happened that way.
Defendant’ version is contradicted in many instances. Fleitas cites cases … court found that DHM wasn’t proved because showed more culpable negligence. But call court’s attention to MS Law Journal article analysis of DHM statute. That article draws attention to cases … court has history with DHM statute, tried to provide clarity to it. Most recently, said difference is very high degree of carelessness rather than culpable neg manslaughter. Author of article makes clear that (Tate case) inconsistent with other decisions of Ms Supreme Court. (Cites other cases… defense claimed accident. Intent of tht case … majority of court said proof was shown DHM, if jury decided it was. Theme of all these cases is for the jury to make deterination about degree of recklessness constitutes DHM. Degree is important, not just reckless conduct.)
In Clark vs State, Justice McRae who wrote the opinion … stated defendant got shotgun and shot through door of house in attempt to enter. Shot victim and killed her. Jury not instructed DHM. Convicted of DHM. Court said evidence was sufficient for DHM even though victim was behind steel door and defendant said didn’t intent to kill her. High degree of carelessness for value of human life.
In Banks case … inference that manslaughter by culpable negligence … is difference of degree. For jury to decide difference with DHM.
Has state met its burden? Enough evidence to warrant a jury to determine it was culpable negligent manslaughter or DHM? Stae contends evidence clearly slows that recklessness involved … statement of defendant of how this happened is so clearly contradictory of expert testimony … to make it an issue for jury to determine … so reckless it would amount to DHM.
Last case … Boatner v State, 2000 – trial court found defendant removed ammunition from gun and defendant believed it to be unloaded when shot fired. But court also found that defendant placed gun to victim’s head was imminently dangerous and DHM … or recklessly points loaded gun with flashlight into victim’s face … But trial court said matter of fact that gun near or to head of victim was imminently dangerous or DHM for disregard to victim’s life. Dangerous as a firearm, loaded or unloaded, doesn’t permit its pointing or firing at people, court said. Mere belief is not necessarily a certainty. Utter disregard for life of another. Trial judge said person pulling trigger on weapon against another’s head … like this case here… near victim’s head.. or aiming light … was sound. Person pulling trigger, even tho believes gun to beunloaded, can be utter disregard for life.
It’s this simple – Weathersby rule has to place in ase. Defendant contradicted what happened with experts and evidence in this case, even on behalf of defendant. He’s not entitled to a directed verdict.
As to argument that practically no difference between DHM and MCN … Supreme Court … cases have not always been consistent… but in past few years, state believes MSSC all coming to conclusion in difference is degree of recklessness. Such an utter disregard for safety of human life, that malice may be inferred, it’s DHM. If less than that, it’s MCN. But it’s decision to be made by jury.
11:02 – FLEITAS – Article by Michael Hoffheimer at Ole MIss Law School. Nothing there takes away anything from this case. Much of it points out extreme difficulty these two statutes create …genuine, confusion and difficulty.
With respect to state-cited cases… in all tht evidene was that absolutely unarguable act, coupled with catastrophic result. Extreme state of mind, supports DHM. (Talks about cases state cited …. Banks… he literally concealed a body. After concealment… permitted court to let DHM go to jury. Clark case, example of prototypical case … person shoots shotgun into home, intentional act of pulling trigger, person dies. Court may infer necessarily malice. I say it’s different completley from this. In Boatner case… ammunition clip and INTENTIONAL act … pointing and pulling trigger. INTENTIONAL act of catastrophic result. Here, they have introduced no such evidence… to meet this standard.
Standard is more likely than not. Has state proved beyond reasonable doubt … that DHM case is stated. I suggest state has not done so in this case. Again, ask court to look at Tate v state … facts of Tate are exactly .. .circumstances inform the argument being made here. Mr. WArd’s actions, absence of any evidence of malice or ill-will… in fact the opposite when events took place. Bowen said pointing and shining light… your honor, there’s no evidence of that. No witness to put such evidence on. Could submit 100 hypotheses… necesary that state provide evidence. Element requierd to provide is: Can requisite extreme state of mind to support charge be demonstrated. In this case, they have not.
Ask court to direct verdict. 11:09.
JUDGE – Seems I knew more 40 years ago than today. This is serious matter. Highlights arguments by each counsel. In listening to each, difficult to disagree with points made by each. Govt has great power in terms of its prosecutorial arm, in seeking an indictment, obtaining it. Just a charge. True as Fleitas said, tht one prosecutorial administration sought and obtained this chrge and present administration made conscious choice to pursue it. Is maybe lack of clarity and disagreement by court, scholars, lawyers as to charge of Depraved Heart Murder and culpable negligent manslaughter. I understand the disagreement. I wish I could clearly delineate.. the basis for each.
Face here with situation which I would like to believe … not inserting myself in jury’s place … hopefully no one would have wanted the outcome which occurred. But that’s in the past and it did occur. I believe that degree of culpability depends on the degree of recklessness. I suspect, depending on what jury does … this case may … have a continued life. I understand and respect. My job as judge to do best I can. … fair basis.
It appears to me from evidence there was a high degree of recklessness. These two people, compared to me, are extremely young. Ms. McCoy even though was 20 … is extremely young. Ward … you too were extremely young but both adults. Gun was yours and home was yours or your right to live there. This young woman is deceased today. Seems testimony we’ve heard rebuts Weathersby rule on both DHM and culpable negligent manslaughter. As I understand Weathersby, if facts aren’t contradicted then defendant must be discharged. Believe evidence rebuts Weathersby Rule.
I do not personally believe Ms. Mccoy shot herself.
Think I understand argument Fleitas makes. Appears to me that state indicted DHM and pursued that … has produced evidence which creates a jury issue. Motion for directed verdict as to DHM and MCN is overruled and denied. 11:17
Lunch? Or I might bring jury back and explain. Expect you might want time
FLEITAS – Best to recess and allow me time to get a few things organized. Once announces recess, would like to meet with counsel and court to go over a scheduling thing or two. Otherwise, ready after noon recess.
JUDGE – Bring jury back in. ….. (they return). Fleitas says 1:30 p.m. will be adequate to come back.
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9:30 – FLEITAS – Question about Cotton McCoy’s testimony. Represented to have material evidence. I’m sympathetic to Mr. McCoy’s situation. I would submit that I would be remiss in my obligations to say McCoy’s testimony had little or more evidentiary value relevant to this case. Nobody’s heart wasn’t moved. In anticipation of next witness, Allison McCoy identified as witness. She picked up a letter at her daughter’s grave. I understand that state will have certain latitude. I understand that. But emotional testimony of thise type that has no evidentiary value is highly prejudicial and inflammatory. Request court to … I know I’m asking for something that almost can’t be decided before witness takes stand. Obviously, at some point this testimony crosses the line from being relevant than being a plea for sympathy. Make my record on this. We have no discovery that she has any matters of evidentiary value to jury.
KELLY – As to McCoy, he identified body of his daughter. He did do that. As to Mrs. McCoy, she was one of last people to see Allison, within 12 hours or less of event. She can talk about her state of mind. She has very probative evidence about day of event and seeing her within hours of being killed.
FLEITAS – That has never ben provided to defense. (shows document – says Allison McCoy found letter on grave.) Nothing else about knowledge or other information possessed by Allison McCoy about this ase. State has obligation to provide substance of testimony prior to trial not in the midst of trial. If that’s true, she should not be allowed to testify. Defense hasn’t been notified about this. Testimony should ot be permitted.
BOWEN – His objection … to interview this witness prior to her taking the stand. State willing to let her do this. However, she has evidentiary value as far as their complaints about substntive value. Defense has done that too – he’s offered no explanation about his witnesses. If wishes to interview Mrs. McCoy… she will testify about hours before daughter was killed. Quite relevant.
FLEITAS – It is 10:36 a.m. of 6th day of this trial. State is NOW for the first time, other than making statement about letter on grave, advising defense and court that this witness has all sorts of evidence in case. Defense provided detailed reports to state about all our witnesses. With Phone numbers, a statement required about substance of testimony. (Gives examples.)
JUDGE – We’re not going to play ping pong. Both sides represented by fine, able lawyers. This is a difficult proceeding. I understand that. Trial to me has been relatively smooth thus far in terms of each abiding by the rules. That said, and dynamic of this situation. Mr. Fleitas understand that you are extremely fine lawyer. In the dynamic of this situation, with identify of this witness being known, if state did not technically comply with some rule – that may be a violation – but it is somewhat difficult for court to believe .. though you have credibility … to believe that Ms. McCoy would be an absolute surprise. If they say it’s about letter on grave, if they didn’t tell you something else, I don’t know why they didn’t. Neither of you need help with strategy. I’m going to recess for some period of time for you to discuss this matter out of my presence, if you wish. Fleitas, if you want to interview her, you may. Great interest in this proceeding. My job is to provide fairest forum I can. That said, jury is out … been few breaks. I’ll take whatever time you need to confer with each other or anyone else. We can meet in chambers. Will wait until I heard from you. 9:45
FLEITAS – I’ll be expeditious, your honor.
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TUPELO – Veteran retired Tupelo policeman Jimmy “Cotton” McCoy wept and fought for emotional compose this morning as he told the court how he came to see his daughter, Anna Catherine, dead the night of April 15, 2010.
Thomas J. Ward, 25, of Saltillo is accused in her shooting death. He insists it was an accident but he was indicted on a charge of depraved-heart murder, which includes behavior so reckless as to disregard human life.
Ward, his family and others in the audience also wept as McCoy told about seeing Anna.
Late Monday, prosecutors said they expected to complete their case today.
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9:08 a.m. – Judge , jury in courtroom.
Judge – think you have heard 16 witnesses so far.
STATE CALLS JIMMY “COTTON” MCCOY / DA KELLY TO QUESTION.
9:14 – McCoy is a small, bearded, balding man.
MCCOY – Jimmy L. McCoy, 64. I’m retired from Tupelo Police Dept., 30 years with them. Anna is my daughter (his voice trembles.) Says he’s hard to hearing, two hearing aids. They don’t work all that good. Anna was 20 in 2010.
(Kelly – See her that day?) No sir. (After 10 p.m., phone call?) Yes, I did. Call from Allison, Anna’s mother. She told me I needed to come to the hospital, Anna was there. I got dressed and went to hospital, emergency room. Walked through front door, nurse took me to back when turned the corner, I seen Caorlyn Gillentine Green standing there. I knew something bad had happened. Went in the room, was ex-wife Allison with Mark Haygood. They told me Anna had been shot. Haygood explained what happened. I asked him. He said Anna had been shot. I asked, can I see her (voice trembles… he’s weeping.) She said, yes, showed me Anna. At that time, we went back into the room ….(he’s weeping) where Anna was. Then, my brother came in … one of them. He asked to see Anna, asked if I could take him there. They said yes. Brother Tommy.
At that time, I had to take Anna’s jewelry off. Took her necklaces and rings. (People weeping in audience, including Ward family.) Then we all went home.
(Kelly – Have you ever met Thomas McCoy?) No, sir. Never had.
FLEITAS – (I’m Thomas Ward’s attorney. Don’t think we’ve met… McCoy having hard time hearing…. moves closer to witness stand. I am very sorry for your loss.) Thank you, I appreciate that. (No further questions.)
JUDGE – Brief work to do, sends jury out. Court in recess.
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