Bell v. StateBell v. State
Charles S. Bell appeals from a conviction of capital murder and life sentence by the Circuit Court of Forrest County.
The court permitted an amendment of the indictment prior to trial so that it might cite
Bell testified in his own behalf during the trial, stating he was nineteen years of age when the crime occurred and admitting previous convictions of two armed robberies, aggravated assault and second degree burglary. After considering the evidence, the jury returned a guilty verdict of capital murder, but was unable to agree on the sentence after hearing the aggravating and mitigating circumstances in the separate sentencing proceeding. Therefore the court sentenced Bell to life imprisonment and then overruled a motion for a new trial.
The appellant first complains the indictment should have been quashed because it failed to cite and define the offense charged. The indictment as initially written and without its formal parts charged: “... did willfully, unlawfully, and feloniously, and of his malice aforethought, kill and murder Michael Romanoff, a human being, while in the commission of the crime of armed robbery, or in an attempt to commit armed robbery.” It was amended prior to trial so as to charge: “... did willfully, unlawfully, and feloniously, and of his malice aforethought, kill and murder Michael Romanoff, a human being, while in the commission of the crime of armed robbery, or in an attempt to commit armed robbery, in violation of Section 97-3-19 (2)(e) of the Mississippi Code of 1972, as Amended, ...” (Emphasis added.) It thus satisfies
Bell next argues the indictment should have been quashed because his true age was not established during the proceedings against him thereby violating his constitutional rights under the
Lastly, Bell attacks the application of the bifurcated trial promulgated in Jackson v. State, 337 So.2d 1242 (Miss. 1976), and contends the Jackson standard imposed an ex post facto law upon him thereby violating his due process rights. We observe, however, that he was first provided a trial to determine his guilt or innocence and upon being found guilty was provided a separate hearing to determine his sentence where both the state and the appellant presented evidence of aggravating and mitigating circumstances in accord with Jackson. We are of the opinion that Bell failed to demonstrate any prejudice to his due process rights by this procedure, but rather benefited by it because the law before Jackson mandated the death penalty under similar indictment and facts.
Moreover, the requirements of Jackson affect procedure and not substance and on the whole are ameliorative. In such case, the appellant is not subjected to an ex post facto violation. In Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), the murders for which Dobbert was convicted and sentenced to death occurred prior to the United States Supreme Court decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). At that time Florida law mandated that a person convicted of a capital felony be punished by death unless the jury, by majority vote, recommended mercy, in which event the court was required to impose a life sentence. After the Florida Supreme Court held the death penalty statutes unconstitutional under Furman, that state‘s legislature enacted a new death penalty procedure, upheld in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), under which Dobbert was tried. After conviction and sentence to death, the case reached the United States Supreme Court which rejected Dobbert‘s claim that the changes in the death penalty statute between the time of the murders and the trial were ex post facto laws. The Court concluded that the changes in the law were procedural, and on the whole ameliorative, and there was no ex post facto violation.
In making this determination, it emphasized the old and new laws must be compared in toto and noted the former procedure mandated the death penalty “unless the jury, in its unbridled discretion, made a recommendation for mercy.” It observed that the new procedure providing the constitutional safeguards subsequent to Furman included a separate sentencing procedure benefiting a defendant because it permitted mitigating evidence relevant to sentence without prejudice to the guilt determination. A portion of Chief Justice Burger‘s concurring opinion is appropriate:
... A crucial factor in this case, for me, is that, as the Court‘s opinion recites, when petitioner committed the crime, a Florida statute permitted the death penalty for the offense. Petitioner was at
least constructively on notice that this penalty might indeed follow his actions. During the time which elapsed between the commission of the offense and the trial, the statute was changed to provide different procedures for determining whether death was an appropriate punishment. But these new procedures, taken as a whole, were, if anything, more favorable to the petitioner; consequently the change cannot be read otherwise than as the Court‘s opinion suggests.
Similarly, Bell‘s position is benefited inasmuch as subsequent to Jackson the jury is required to “unanimously find in writing that after weighing the mitigating circumstances and the aggravating circumstances one against the other that the mitigating circumstances do not outweigh the aggravating circumstances and that the defendant should suffer the penalty of death.” (337 So.2d at 1256) The life sentence evidences the fact that Bell benefited by the procedures required by Jackson rather than being prejudiced by them. We conclude this assignment of error is also without merit.
We have studied this record in its entirety and find no error therein, but rather overwhelming evidence of a brutal homicide committed in an attempted robbery. The conviction and sentence are affirmed.
AFFIRMED.
INZER and SMITH, P. JJ., and ROBERTSON, SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.