Bobby Glenn WILCHER
v.
STATE of Mississippi.
Supreme Court of Mississippi.
*1126 William T. May, Logan & May, Newton, for Appellant.
Michael C. Moore, Attorney General, Marvin L. White, Jr., Leslie S. Lee, Jeffrey A. Klingfuss, Sp. Asst. Attorneys General, Jackson; Ken Turner, District Attorney, Philadelphia, for Appellee.
En Banc.
PRATHER, Presiding Justice, for the Court:
INTRODUCTION
This capital murder case is presently before this Court on direct appeal from a 1994 resentencing trial that resulted in Bobby Glenn Wilcher's second death sentence for the 1982 murder and robbery of Katie Belle Moore, age forty-five. The case arises out of the gruesome double murder and robbery of Velma Odell Noblin and Katie Belle Moore. The evidence reflects that Bobby Glenn Wilcher, age nineteen, met his two female victims at a Scott County bar on the night of March 5, 1982. When the bar closed at midnight, Wilcher persuaded the women to take him home. Under this pretext, he directed the women down a deserted service road in the Bienville National Forest where he robbed and brutally murdered the women by stabbing them a total of forty-six times.
Thereafter, Wilcher was stopped for speeding by the Forest Police Department between 1:00 and 2:00 a.m. He was alone and was driving victim Noblin's car. The victims' purses and one victim's brassiere were on the back seat. Wilcher was covered in blood; he had a bloody knife in his back pocket that had flesh on the blade. Wilcher explained his condition by telling the policeman that he had cut his thumb while skinning a possum. The officer followed Wilcher to the hospital, where Wilcher's wound was cleaned and covered with a band-aid. Another officer was called to the hospital to observe Wilcher, the knife, the car, the purses, and the brassiere.
The officers left the hospital on an emergency call. Wilcher went home. The next morning, he abandoned Noblin's car at an apartment complex. Wilcher also threw the victims' purses and some of the victims' clothing in a ditch. He was arrested later that day. The victims' jewelry was subsequently found in Wilcher's bedroom.
STATEMENT OF THE CASE
Wilcher was indicted March 11, 1982, in the Scott County Circuit Court for the capital murders of Velma Odell Noblin and Katie Belle Moore. He was tried separately for each murder, and was convicted and sentenced to death in both cases. In 1984, this Court affirmed both judgments of conviction for capital murder and both sentences of death. See Wilcher v. State,
Wilcher's subsequent motions for post-conviction relief in these cases were denied. Wilcher v. State,
In October, 1993, this Court vacated the death sentences in the cases of both victims and remanded the cases to the Scott County Circuit Court for new sentencing hearings. See Wilcher v. State,
I. WHETHER THE TRIAL COURT ERRED IN THE ADMISSION OF WILCHER'S STATEMENTS TO SHERIFF WARREN?
II. WHETHER THE STATEMENT ALLEGEDLY MADE BY WILCHER TO A JOURNALIST SHOULD HAVE BEEN SUPPRESSED?
III. WHETHER THE TRIAL COURT ERRED IN ADMITTING PSYCHOLOGICAL EXPERT TESTIMONY?
IV. WHETHER THE TRIAL COURT ERRED BY REFUSING TO ALLOW CROSS-EXAMINATION OF SHERIFF WARREN ON HIS EXTORTION CONVICTION?
V. WHETHER THE TRIAL COURT ERRED IN EXCLUDING MITIGATING EVIDENCE?
A. The Evidence of the Harshness of a Life Sentence.
B. The Testimony of Wilcher's Family Members.
VI. WHETHER THE TRIAL COURT ERRED BY DENYING WILCHER'S MOTION TO CONSOLIDATE?
VII. WHETHER THE TRIAL COURT ERRED BY SENTENCING WILCHER BASED ON THE SAME CONDUCT USED TO CONDEMN HIM IN THE COMPANION CASE?
VIII. WHETHER THE TRIAL COURT ERRED BY REQUIRING THAT JURORS MAKE A UNANIMOUS DECISION?
IX. WHETHER THE TRIAL COURT ERRED BY SUBMITTING THE UNDERLYING FELONIES AS AGGRAVATING CIRCUMSTANCES AND SUBMITTING THE "ROBBERY" AND "KIDNAPPING" CHARGES AS TWO SEPARATE AGGRAVATING FACTORS?
X. WHETHER THE PROSECUTORS' CLOSING ARGUMENT CONSTITUTED REVERSIBLE ERROR?
A. The "Heinous, Atrocious, and Cruel" Comments.
B. The "Send a Message" Comment.
This Court finds that the legal issues raised by Wilcher are without merit. For this reason, this Court must also make a determination on the following issue:
XI. WHETHER THE DEATH SENTENCED IMPOSED IN THIS CASE WAS PROPORTIONATE?
Having considered the crime and the defendant, this Court holds that the death sentence imposed in this case was neither disproportionate nor excessive. The judgment of the trial court sentencing Wilcher to death is affirmed.
ANALYSIS
I. WHETHER THE TRIAL COURT ERRED IN THE ADMISSION OF WILCHER'S STATEMENTS TO SHERIFF WARREN?
Wilcher gave two incriminating statements to the authorities. He now contends that they were inadmissible because they were taken in violation of his Sixth Amendment right to counsel. The standard of review for such claims is well-settled. "Determining whether a confession is admissible is a finding of fact which is not disturbed unless the trial judge applied an incorrect legal standard, committed manifest error, or the decision was contrary to the overwhelming weight of the evidence." Balfour v. State,
The record reflects that Sheriff Glen Warren served Wilcher with an arrest warrant the evening after the murders. Sheriff Warren and a deputy questioned Wilcher that night in the sheriff's office. Wilcher confessed *1128 to killing the women, taking the car, and later abandoning the car. Two days later, Wilcher's father led the authorities to the victims' jewelry, which was hidden in Wilcher's bedroom. Wilcher was questioned again, but he declined to give a statement at that time.
Three days later, Wilcher requested to meet with the sheriff. Wilcher then told the officers that he was ready to show them the location of the victims' purses and one victim's brassiere. The three men drove to the Good Hope community. Wilcher then led the officers to a ditch, where they found the purses and the brassiere.
On the trip back to Forest, Wilcher told the officers that he was going to tell them the truth about the murders, that the first statement he gave was not "all true." Upon returning to the sheriff's office, Wilcher made a second statement in which he confessed to robbing and killing the victims. Basically, Wilcher said that he killed Moore and Noblin because they would not give him their money. This statement was given at the same time or shortly after the trial court appointed Wilcher's attorney.
The record reflects that Wilcher had been advised of his rights and waived his rights on all occasions in which the authorities questioned him. The testimony also indicates that Wilcher did not ask for an attorney. This Court determined Wilcher's statements to be admissible when this case was considered on direct appeal in 1984. See Wilcher I,
However, Wilcher argued to the trial court that the 1986 United States Supreme Court decision in Michigan v. Jackson,
On appeal, Wilcher contends that (pursuant to the decision in Michigan v. Jackson) his Sixth Amendment right to counsel was violated when the authorities obtained a statement from him after counsel had been appointed for him. In Michigan v. Jackson, the United States Supreme Court held that "once [the Sixth Amendment] right to counsel has attached and has been invoked, any subsequent waiver during a police-initiated custodial interview is ineffective." McNeil v. Wisconsin,
Indeed, in 1992, the federal court thoroughly considered the application of Michigan v. Jackson to Wilcher's case and found that the trial judge properly admitted the inculpatory statements. See Wilcher IV,
A defendant's Sixth Amendment right to counsel attaches upon the initiation of adversary proceedings. Michigan v. Jackson,475 U.S. 625 ,106 S.Ct. 1404 ,89 L.Ed.2d 631 (1986)... . Wilcher asserts that even if his waiver was voluntary and knowing, the questioning in this case violated the prophylactic rule of Michigan v. Jackson,475 U.S. at 635 ,106 S.Ct. at 1411 . The Supreme Court held in Jackson that "if police initiate interrogation after a defendant's assertion at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid." Id. The State argues that Wilcher never took any action to invoke his right to counsel and therefore had not triggered the Jackson rule.
We recently addressed the effect of appointment of counsel on the rights of a defendant who has never asserted or accepted the counsel. We held that a defendant's Sixth Amendment rights are not violated by questioning in the absence of his attorney unless the defendant has asserted his right to an attorney. Montoya v. Collins,955 F.2d 279 (5th Cir.1992). .. . We held that "for purposes of Jackson, an `assertion' means some kind of positive statement or other action that informs a reasonable person of the defendant's `desire to deal with the police only through *1129 counsel.'" Id. at 283. Thus, we concluded that Montoya's interrogation did not violate the rule of Jackson because he did not assert a right to counsel and thereby trigger its protection.
Wilcher likewise did not assert a right to counsel in his interrogation by the officers. Under Montoya he was not protected by the rule in Jackson and voluntarily waived his right to counsel under the Sixth Amendment.
Wilcher IV,
Therefore, because Wilcher did not request an attorney or in any way assert his Sixth Amendment right to counsel, his argument on this point is without merit. Furthermore, the evidence indicates that, upon being given his Fifth Amendment/Miranda[1] warnings, Wilcher waived his right to counsel before each inculpatory statement was given. As a general rule, a defendant may waive his Sixth Amendment right to counsel when he waives his Fifth Amendment rights. Patterson v. Illinois,
In addition, at least with regard to the second statement, Wilcher initiated contact with the authorities. The constitutional safeguards discussed above deal only with police-initiated interrogations:
Once the right to counsel has attached, and the accused asserts the right, he is protected from further police-initiated interrogation. Michigan v. Jackson,475 U.S. 625 , 634-636,106 S.Ct. 1404 , 1410-1411,89 L.Ed.2d 631 , 641-642 (1986). Even if the accused has procured an attorney, the accused may still waive the right to have the lawyer present during any police questioning. Nothing in the Sixth Amendment prevents a suspect charged with a crime and represented by counsel from voluntarily choosing, on his own, to speak with police in the absence of an attorney. Although a defendant may sometimes later regret his decision to speak with police, the Sixth Amendment does not disable a criminal defendant from exercising his free will.
Mettetal,
Therefore, even if the doctrine of res adjudicata did not apply to the admissibility of the statements, Wilcher's argument is without merit. The trial court applied the correct legal standards, did not commit manifest error, and did not act contrary to the overwhelming weight of the evidence by admitting Wilcher's incriminating statements.
II. WHETHER THE STATEMENT ALLEGEDLY MADE BY WILCHER TO A JOURNALIST SHOULD HAVE BEEN SUPPRESSED?
Sid Salter, publisher of the Scott County Times, testified that he interviewed Wilcher in October, 1985, and March, 1988. Both interviews occurred at the State Penitentiary at Parchman at Wilcher's request. During the course of those interviews, Wilcher made several damaging statements. For example, Wilcher told Salter that he committed the murders and that he stabbed the victims multiple times because "it felt good." The trial judge denied Wilcher's motion to suppress these statements that Wilcher made to Salter.
Wilcher now argues that the trial court erred by allowing Salter's testimony to be admitted in evidence: "Because the Salter interview could not have taken place without the substantial assistance and cooperation of the State of Mississippi, through its Department of Corrections, the Salter interview could not take place in the absence of counsel." Wilcher's argument seems to be that, because the Parchman officials had to open the gate in order to comply with his own request to be interviewed by a journalist, then the journalist was acting on behalf of the State.
In support of his argument, Wilcher cites United States v. Henry,
However, the record does not support Wilcher's argument that the State "intentionally created" the interview situation at issue. Indeed, there is no evidence that Salter acted on behalf of the State. Salter went to Parchman at Wilcher's request. The Parchman officials complied with Wilcher's request to allow the interviews. Wilcher signed releases with regard to the interviews. Salter specifically denied that he was acting on behalf of the State. Furthermore, Wilcher had previously confessed to others, and these Salter interviews occurred after Wilcher's direct appeals of this case had been affirmed by this Court. Therefore, the State had no incentive to create a situation in hopes that Wilcher would incriminate himself. For these reasons, this Court finds that Salter was working as a private citizen, a journalist.
It is rudimentary that statements made to private individuals do not implicate the Sixth Amendment right to counsel. See United States v. Darden, et al.,
"As long as the police do nothing to direct or control or involve themselves in the questioning of a person in custody by a private citizen, such questioning does not violate the [Sixth Amendment]." United States v. Surridge,
III. WHETHER THE TRIAL COURT ERRED IN ADMITTING PSYCHOLOGICAL EXPERT TESTIMONY?
Wilcher next argues that the trial judge erred in admitting the testimony of Dr. Charlton Stanley, a psychologist, during the State's rebuttal. Dr. Stanley's testimony was used to rebut Wilcher's presentation of mitigating evidence tending to show that Wilcher was extremely emotionally disturbed at the time of the murders.
Wilcher contends that, on May 6, 1994, the State obtained an ex parte order from the trial judge granting the State's motion for a psychiatric and psychological examination of Wilcher. Wilcher claims that he did not receive notice regarding this motion or the court's order granting the motion. On June 1, 1994, at the first motions hearing in this case, the trial judge heard the defense's motion for psychiatric assistance. Wilcher claims that this was the first time he or his counsel received notice that the State had also requested a psychiatric evaluation.
The defense attorneys reviewed the order granting the State's motion for a psychiatric evaluation, which instructed the doctors to perform an examination to determine Wilcher's ability to stand trial and assist his attorneys in his own defense, as well as Wilcher's ability to know the difference between right and wrong and understand the nature of his actions at the time of the offense. The defense attorneys did not object to this type examination, and, therefore, they did not attend the doctors' interview of Wilcher.
However, one of the attorneys visited Wilcher in jail on two occasions prior to the interview. The attorney told Wilcher to cooperate with the evaluation, but testified that he would not have done so if he had known what the purpose of the psychiatric evaluation was other than that set forth in the court order or, in the alternative, one of the defense attorneys would have accompanied Wilcher to the evaluation.
Dr. Charlton Stanley and Dr. Donald Guild interviewed Wilcher June 3, 1994. Dr. Guild advised Wilcher that anything said in the interview could be used against him at the sentencing phase of the trial. Dr. Guild then asked if Wilcher wanted to telephone his attorneys, but Dr. Guild could not remember whether Wilcher called them. According to Dr. Guild, Wilcher (upon advice of counsel) declined to answer questions in three to five *1131 areas. Specifically, Wilcher declined to speak about his exact actions at the time of the offense and his statement to the police. Both doctors testified that they treated Wilcher in the same manner as they would have treated any capital defendant in Wilcher's position.
After a lengthy hearing on the admissibility of Dr. Stanley's testimony, the trial judge ruled that Dr. Stanley could testify, but limited his testimony to the directions set forth in the court order and to Dr. Stanley's observations of the witnesses at trial. Dr. Stanley opined that Wilcher was not under the influence of any kind of extreme mental or emotional disturbance at the time of the murders and stated that Wilcher "did understand and appreciate the difference between right and wrong and knew exactly what he was doing." According to Dr. Stanley, Wilcher "made a conscious choice that [murdering the two women] was what he was going to do, and he did it."
On appeal, Wilcher argues that the admission of Dr. Stanley's testimony was error. Specifically, he argues that the evidence was based upon an examination that was conducted in violation of his Sixth Amendment right to counsel. Wilcher's argument ignores the fact that the trial judge granted his motion to suppress psychological evidence not outlined in the court order or adduced at trial. Wilcher has been unable to demonstrate that any of Dr. Stanley's testimony was based on examination beyond the scope of the court order.
Furthermore, Dr. Stanley's testimony was used to rebut Wilcher's use of medical evidence to demonstrate mitigating factors. Wilcher's attorneys knew of the examination and one of the attorneys had met with Wilcher twice beforehand to prepare him. Although the attorney testified that he had told Wilcher to cooperate with the interview, there is evidence that the attorney advised Wilcher not to discuss some topics. Indeed, Wilcher declined to answer the questions in three to five areas based on the advice of counsel.
Furthermore, the doctors told Wilcher that anything he said could be used against him during the sentencing phase. The doctors offered to allow Wilcher to call his attorneys. Thus, to the extent that Wilcher answered the doctors' questions, he did so with full knowledge of his rights.
The United States Supreme Court has "explicitly declined to hold that a defendant who has obtained counsel cannot himself waive his right to counsel." Michigan v. Harvey,
Thus, defense counsel was aware of the psychological examination and prepared Wilcher for the interview. The doctors warned Wilcher of his rights, and Wilcher exercised those rights by refusing to answer some of the doctors' questions during the examination. The trial judge limited Dr. Stanley's testimony to that evidence adduced in compliance with the court order and at trial. For these reasons, Wilcher's argument that Dr. Stanley's rebuttal testimony was based on evidence obtained in violation of the Sixth Amendment fails.
IV. WHETHER THE TRIAL COURT ERRED BY REFUSING TO ALLOW CROSS-EXAMINATION OF SHERIFF WARREN ON HIS EXTORTION CONVICTION?
Sheriff Glen Warren was one of the officers who took Wilcher's statements during the investigation of these crimes. Sheriff Warren testified at the 1982 guilt phase of this trial. In 1989, Sheriff Warren was convicted of extortion; he died thereafter. The trial judge allowed the sheriff's prior (1982) testimony to be read in the 1994 resentencing trial sub judice.
After the testimony was read, the defense sought to introduce evidence of the sheriff's *1132 1989 extortion conviction for the purpose of impeachment. The trial judge did not allow the 1989 extortion conviction to be admitted in evidence.
On appeal, Wilcher argues that the trial court erred by excluding the sheriff's extortion conviction. This Court finds that the admission of the sheriff's conviction was within the trial court's discretion under M.R.E. 609(a)(1) and the trial court did not abuse that discretion by excluding the conviction.
Clearly, the reading of Sheriff Warren's prior testimony was admissible under M.R.E. 804, which allows for the admission of former testimony for an unavailable declarant under the following circumstances:
(a) Definition of Unavailability. "Unavailability of a witness" includes situations in which the declarant:
* * *
(4) Is unable to be present or to testify at the hearing because of death
* * *
(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1) Former Testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
When hearsay testimony is admitted, M.R.E. 806 provides that "the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if the declarant had testified as a witness." M.R.E. 806. "Rule 806 has been read to allow impeachment of hearsay declarant's [sic] by the use of their previous convictions pursuant to Rule 609 of the Rules of Evidence." Turner v. State,
M.R.E. 609 provides for the use of prior convictions for impeachment purposes:
(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect on a party or (2) involved dishonesty or false statement, regardless of the punishment.
Sheriff Warren was convicted of extortion under the Hobbs Act, which is punishable by up to twenty years in prison. See 18 U.S.C.A. § 1951. Therefore, applying M.R.E. 609(a)(1), the admission of Sheriff Warren's extortion conviction was within the trial judge's discretion, depending on whether he found that the probative value of the conviction outweighed the prejudicial effect of its admission.
The trial judge stated that the conviction had no probative value because it occurred seven years after the sheriff's original testimony. In analyzing the probative value of the 1989 conviction, it is important to consider the unique way this evidence was presented to the jury. The trial judge properly considered the fact that the testimony given at the 1994 trial was given by someone who had not been convicted of a crime at the time he originally made the statements at issue. This would tend to decrease the probative value of the sheriff's 1989 extortion conviction. Furthermore, Wilcher has not demonstrated anything about the sheriff's life that would have influenced the investigation of the case at hand. Therefore, the trial judge did not abuse his discretion in excluding the conviction. See also Turner v. State,
*1133 V. WHETHER THE TRIAL COURT ERRED IN EXCLUDING MITIGATING EVIDENCE?
Wilcher next argues that the trial court erred by excluding: a) photographs of Parchman and the testimony of a former prison superintendent to demonstrate the harshness of a life sentence, and b) testimony of Wilcher's family on whether they wished for Wilcher's life to be spared. Wilcher contends that the exclusion of this mitigating evidence violated the Eighth Amendment, which requires that a sentencing jury be allowed to consider all mitigating evidence. Where the sentencer is not permitted to consider all mitigating evidence, there is a risk of "erroneous imposition of the death sentence" and the case will be remanded for resentencing. Mills v. Maryland,
Under our decisions, it is not relevant whether the barrier to the sentencer's consideration of all mitigating evidence is interposed by statute, by the sentencing court, or by an evidentiary ruling.
Mills,
The line of cases cited by Wilcher provides that a sentencer may not be "precluded from considering, as a mitigating factor, any aspect of the defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Eddings v. Oklahoma,
The State argues that the evidence excluded by the trial court was not relevant to mitigation, because the evidence did not pertain to Wilcher's character or record or the circumstances of the offense. Indeed, the rule expressed in Eddings "does not limit the trial court's power to exclude from the sentencing phase as irrelevant, evidence not bearing on the defendant's character or prior record, or the circumstances of the offense." Cole v. State,
A. The Evidence on the Harshness of a Life Sentence.
Wilcher contends that the trial court erred in excluding evidence regarding the harshness of a life sentence. Specifically, Wilcher offered pictures of Parchman and testimony from a former prison superintendent. The harshness of a life sentence in Parchman in no way relates to Wilcher's character, his record, or the circumstances of the crime. Therefore, it was properly excluded. See Minnick,
B. The Testimony of Wilcher's Family Members.
Wilcher also argues that the trial was fundamentally unfair because the trial judge allowed the family of the victim, but not that of the defendant, to give their subjective impressions about the effect of the crime and the alternatives for punishment on them.
The victim impact testimony to which Wilcher apparently refers was given by victim Moore's daughter, Lisa Moore Warren. Warren testified that, at the time of her mother's death, she was eighteen, her older brother was twenty-one, and they had two *1134 younger sisters, ages five and nine. Warren also testified as follows:
Q. [BY THE DISTRICT ATTORNEY:] What effect did your mother's death and the manner in which it occurred have on your family?
A. My brother and I immediately had to start raising my two little sisters, and to be eighteen and all of a sudden become a mother overnight, when you have lost your mother, unless you have been through it, you just don't understand. The girls would have nightmares at night, and there was no way that I could help them, because they wouldn't ever see their mother again, and neither would me or my brother. We just had to take one day at a time and try to get over some of the pain, but you never get over it. (Witness crying).
Warren further stated that she had a six-year-old daughter, born after her mother died at age forty-five.
Wilcher contends that, in view of this testimony by victim Moore's daughter, the trial court erred in excluding testimony from his sister and his mother regarding their feelings on whether his life should be spared. However, the record reflects that, although Wilcher's family testified extensively, neither Wilcher's sister nor his mother were ever asked whether they felt Wilcher's life should be spared. Thus, Wilcher's argument that his family was precluded from giving testimony on whether his life should be spared is spurious. Furthermore, even if Wilcher's representation of the record were true, his argument on this point would still be without merit.
Victim impact evidence, if relevant, is admissible in the sentencing stage. Davis v. State,
Furthermore, the trial court did not err in excluding testimony from Wilcher's family in order to show the impact that the defendant's death would have on their lives. This Court has specifically held that such testimony is not relevant to the defendant's character, record, or the circumstances of the offense and that the exclusion of such evidence is proper. Simon v. State,
VI. WHETHER THE TRIAL COURT ERRED BY DENYING WILCHER'S MOTION TO CONSOLIDATE?
VII. WHETHER THE TRIAL COURT ERRED BY SENTENCING WILCHER BASED ON THE SAME CONDUCT USED TO CONDEMN HIM IN THE COMPANION CASE?
The conviction of murder of the second victim, Velma Odell Noblin, was offered as an aggravating circumstance. Specifically, the jury was instructed to consider "whether the Defendant was previously convicted of a felony involving the use or threat of violence to the person." Wilcher contends that the jury should not have been instructed *1135 to consider his conviction for Noblin's murder as an aggravating circumstance.
Wilcher argues that, by having his conviction in the capital murder of Noblin considered as an aggravating circumstance, the jury was improperly required to weigh the same facts twice against the mitigating evidence, in violation of the Double Jeopardy Cause of the Fifth Amendment. Wilcher correctly states that a capital murder defendant cannot be convicted of both capital murder and the underlying felony; the reason being that the defendant cannot be twice prosecuted for the same actions. See Meeks v. State,
Wilcher's analogy does not hold true. In this case, the court is not faced with one action for which Wilcher could be prosecuted on either the underlying crime or the capital murder. Rather, there are actually two murder victims the product of two separate criminal actions by Wilcher. Even though the same facts surround the murder of each victim, there are undeniably two victims, and two counts of capital murder arising from Wilcher's actions. Therefore, the "same elements" test does not apply.
Furthermore, as the Fifth Circuit has observed:
[C]onsideration of other crimes at sentencing does not implicate the Double Jeopardy Clause because the defendant is not actually being punished for the crimes so considered. Rather, the other crimes aggravate his guilt of, and justify heavier punishment for, the specific crime for which defendant has just been convicted. See United States v. Bowdach,561 F.2d 1160 , 1175 (5th Cir.1977) (rejecting virtually identical double jeopardy argument).
Sekou v. Blackburn,
Wilcher next argues that, at the original (1982) sentencing trial in this case, his conviction for the capital murder of Moore was not yet final. The only reason his conviction was final at the time of the second (1994) sentencing hearing was because the original death sentence was reversed and the case was remanded for resentencing. He argues that "[s]urely the State should not be granted the benefit of its own prior errors."
Wilcher's conviction of guilt in both cases has been repeatedly upheld by every court that has considered the matter. Therefore, Wilcher's argument that his conviction for the murder of Katie Belle Moore was not final is specious. See Wilcher I,
Wilcher also argues that the trial judge should have granted instruction D-4, which provided as follows:
You are allowed to consider, as an aggravating circumstance in this case, whether "the defendant was previously convicted of another capital offense or of a felony involving the use or threat of violence to the person." The state has offered the conviction of Bobby Wilcher for the capital murder of Velma Odell Noblin as its evidence to support this aggravating circumstance.
The Court instructs the jury that the use of this aggravating circumstance does not allow you to punish Bobby Wilcher for any crime other that [sic] the killing of Katie Belle Moore. Indeed, the punishment you assess for the capital murder of Katie Belle Moore will be served in addition to his punishment for the capital murder of Velma Odell Noblin.
*1136 The trial judge refused the instruction, but indicated that he would have given it if the last sentence were redacted. Defense counsel refused to amend the proposed instruction.
Clearly, the instruction would have been granted, but for the last sentence: "Indeed, the punishment you assess for the capital murder of Velma Odell Noblin will be served in addition to his punishment for the capital murder of Katie Moore." An analysis of this sentence indicates that it asserts as fact an entirely speculative matter. "This Court has repeatedly condemned confusing and misleading instructions." Sudduth v. State,
VIII. WHETHER THE TRIAL COURT ERRED BY REQUIRING THAT JURORS MAKE A UNANIMOUS DECISION?
Instruction S-5 was given over defense objection, and provided as follows: "The Court instructs the Jury that all twelve jurors must agree on the verdict before the verdict can be returned into Court." Wilcher asserts that giving this instruction was reversible error because it failed to clarify that if, within a reasonable time, the jury failed to agree unanimously it must cease deliberations and report its findings to the Court.
Miss. Code Ann. § 99-19-103 (Supp. 1994) provides that "[i]f the jury cannot, within a reasonable time, agree as to punishment, the judge shall dismiss the jury and impose a sentence of imprisonment of life." The statute does not (as Wilcher contends) allow the jury to determine what constitutes a "reasonable time" for deliberations and report its findings to the court.
Furthermore, jury instructions "are not to be read unto themselves, but with the jury charge as a whole." Carr v. State,
(1) ... we ... find unanimously that the Defendant should suffer death.
* * *
(2) We, the Jury, find that the Defendant should be sentenced to life imprisonment without parole.
* * *
(3) We, the Jury, find that the Defendant should be sentenced to life imprisonment. [or]
* * *
(4) We, the Jury are unable to agree unanimously on punishment.
Thus, when read as a whole, the jury instructions properly informed the jury that they could return to the courtroom and report that they were unable to agree unanimously on punishment. Therefore, Wilcher's argument is without merit.
In addition, Wilcher alleges that the "error" in granting S-5 was compounded by the fact that the trial judge refused to give proposed defense instruction D-12, which would have instructed the jury as follows:
The Court instructs the jury that if you cannot, within a reasonable time, agree as to punishment, you must cease deliberations immediately and return the following verdict:
"We, the Jury, cannot agree as to punishment."
This verdict should be written on a separate sheet of paper. In that event, the Court will dismiss the Jury and sentence the Defendant in the manner provided by law.
As stated earlier, there is no authority for allowing the jury to determine what constitutes a "reasonable time" for deliberations. Moreover, even if the jury had never been instructed on what would happen if they could not agree, there would have been no error. In Stringer v. State, this Court held that the trial judge did not err by failing to inform the jury that, "if they were unable to agree within a reasonable time on the punishment to be imposed, [the defendant] would *1137 be sentenced to life imprisonment." Stringer,
The [defendant's] argument creates an illusion of prejudice, which has no logical basis. If the jurors were unable to unanimously find that the aggravating circumstances were sufficient to impose the death penalty and that there were insufficient mitigating circumstances to outweigh the aggravating circumstances, then they could not return a death sentence. Further, in the event they could not unanimously agree after a reasonable period of deliberation, it would be the trial judge's duty under Miss. Code Ann. § 99-19-103 to dismiss the jury and impose a sentence of life imprisonment on the jury.
Id. (quoting King v. State,
In addition, "[A]n instructional error will not warrant reversal if the jury was fully and fairly instructed by other instructions." Collins v. State,
A defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.
Heidel v. State,
IX. WHETHER THE TRIAL COURT ERRED BY SUBMITTING THE UNDERLYING FELONIES AS AGGRAVATING CIRCUMSTANCES AND SUBMITTING THE "ROBBERY" AND "KIDNAPPING" CHARGES AS TWO SEPARATE AGGRAVATING FACTORS?
Instruction S-1B was given over defense objections. With regard to aggravating factors, Instruction S-1B provided as follows:
Consider only the following elements of aggravation in determining whether the death penalty should be imposed:
(1) whether the Defendant was previously convicted of a felony involving the use or threat of violence to the person;
(2) whether the capital offense was committed while the Defendant was engaged in the commission of robbery;
(3) whether the capital offense was committed while the Defendant was engaged in the commission of or an attempt to commit the crime of kidnapping ...
You must unanimously find, beyond a reasonable doubt, that one or more of the preceding aggravating circumstances exists in this case to return the death penalty. If none of these aggravating circumstances are found to exist, the death penalty may not be imposed ...
Wilcher argues that this instruction was flawed in three ways.
A. Failure to Require a Finding of Both Underlying Felonies.
Wilcher contends that the trial court erred by instructing the jury that it could find either underlying felony (robbery or kidnapping). The jury found beyond a reasonable doubt that the murder was committed during the course of a robbery, but did not find that the murder was committed during the course of a kidnapping. Wilcher bases his argument that the State had to prove both underlying felonies on the indictment, which charged that he:
did willfully, unlawfully, feloniously, without the authority of law, and of his malice aforethought, kill and murder Velma Odell Noblin, a human being, while he, the said Bobby Glen Wilcher, was engaged then and there in the commission of the crime of robbery or an attempt to commit the crime of robbery of the said Velma Odell Noblin, and while he, the said Bobby Glen Wilcher, was engaged then and there in the commission of the crime of kidnapping of Kattie [sic] Belle Moore and the said *1138 Velma Odell Noblin, human beings, contrary to and in violation of Mississippi Code of 1972 Annotated, Section 97-3-19(2)(e), as amended.
Wilcher contends that, because the indictment charged him with murder during the course of kidnapping and robbery, the State was required to prove that the offense was committed in furtherance of both underlying felonies. In support of this argument, he cites Fisher v. State,
In the case sub judice, the jury was given the option of finding either that the murder occurred during the course of a robbery or a kidnapping. They found beyond a reasonable doubt that the murder was committed during the course of a robbery. This is supported by Wilcher's own statements to the police and Sid Salter and by the fact that he took the victims' purses, jewelry, and car. This is sufficient to meet the statutory definition of capital murder. See Miss. Code Ann. § 97-3-19 (defining capital murder as murder by a person engaged in the commission or the attempt to commit robbery or several other felonies). See also Fisher,
B. The Use of the Underlying Felony as an Aggravator.
Wilcher also argues that the use of the underlying felony as an aggravating circumstance violates the Eighth Amendment in that it does not "genuinely narrow" the class of death-eligible defendants. Wilcher did not raise this issue at trial, and therefore, is procedurally barred from doing so on appeal. Walker v. State,
The use of the underlying felony ... as an aggravator during sentencing has been consistently upheld in capital cases. This Court has stated:
The argument is the familiar "stacking" argument that the state can elevate murder to felony murder and then, using the same circumstances can elevate the crime to capital murder with two aggravating circumstances. As pointed out in Lockett v. State,517 So.2d 1317 , 1337 (Miss. 1987), this Court has consistently rejected this argument.
Minnick v. State,551 So.2d at 96-97 . The United States Supreme Court has confirmed that this practice does not render a death sentence unconstitutional. Lowenfield v. Phelps,484 U.S. 231 ,108 S.Ct. 546 ,98 L.Ed.2d 568 (1988). See also, Ladner v. State,584 So.2d 743 , 763 (Miss. 1991).
This issue is without merit.
Walker,
C. The Underlying Felony Aggravator and Proportionality.
Wilcher's final argument on this point is that the felony murder aggravator is disproportionate within the meaning of the Eighth Amendment. Specifically, Wilcher argues that unintentional felony murder is punishable by death, while premeditated murder, standing alone, is not.
Our precedents make clear that a State's capital sentencing scheme must ... genuinely narrow the class of defendants eligible for the death penalty. When the purpose of a statutory aggravating circumstance is to enable the sentencer to distinguish those who deserve capital punishment from those who do not, the circumstance must provide a principled basis for doing so. If the sentencer fairly could conclude that an aggravating circumstance applies to every defendant eligible *1139 for the death penalty, the circumstance is constitutionally infirm.
Blue v. State,
Not every defendant eligible for the death penalty will have committed murder while in the course of robbery or kidnapping or the other statutorily enumerated felonies. See Miss. Code Ann. § 97-3-19. Therefore, the felony murder aggravator genuinely narrows the class of defendants eligible for the death penalty. Furthermore, "[t]he legislature has a very great latitude in prescribing and fixing punishment for crime." Smith v. State,
Moreover, the aggravating factor for murder committed during the course of a robbery is constitutional. See Lowenfield v. Phelps,
X. WHETHER THE PROSECUTORS' CLOSING ARGUMENT CONSTITUTED REVERSIBLE ERROR?
Wilcher next argues that the prosecutors' comments on two topics during closing arguments constituted reversible error:
A. The "Heinous, Atrocious, and Cruel" Comments.
The "heinous, atrocious, and cruel" aggravator was not submitted to the jury in the case sub judice. Wilcher argues that the trial court erroneously allowed the prosecutor to comment on this aggravator in closing argument. The record reflects, however, that the district attorney was merely restating the testimony of the doctor who performed the autopsy. That is, the district attorney was properly commenting on the evidence in this case. Wilcher's argument therefore, is without merit. See Williams v. State,
B. The "Send a Message" Comment.
Wilcher contends that the following comment by the district attorney during closing arguments constituted reversible error:
Ladies and gentlemen, capital murder with robbery as one of the underlying circumstances, or aggravating circumstances, is one of the worst cruelest crimes there is, because a person who kills someone in the course of a robbery is saying to that person, in effect, "Your money or your property is worth more to me than your life is, and if it's necessary, or maybe just for meanness or maybe because it feels good, I will kill you, too."
The death penalty will send a message to that kind of person
BY [DEFENSE COUNSEL]: If Your Honor, please, I will object to that. That has been condemned in Williams vs. State.
BY THE COURT: I am going to sustain the objection.
BY [DEFENSE COUNSEL]: And, move for a mistrial.
BY THE COURT: Overruled.
This Court has cautioned prosecutors against using "send a message" language in closing arguments. See Williams v. State,
XI. WHETHER THE DEATH SENTENCE IMPOSED IN THIS CASE WAS PROPORTIONATE?
Miss. Code Ann. § 99-19-105 (Supp. 1996) requires that, before a death sentence can be upheld, this Court must determine whether the sentence imposed was excessive or disproportionate to the penalty imposed in similar cases decided since Jackson v. State,
Having given individualized consideration to the defendant and the crime sub judice, this Court concludes that there is nothing about this defendant or this crime that would make the death penalty excessive or disproportionate in this case. See Appendix A; Blue v. State,
CONCLUSION
The arguments raised by Wilcher in this appeal are without merit. In addition, this Court, pursuant to Miss. Code Ann. § 99-19-105 (Supp. 1996), has reviewed this case to determine whether the sentence imposed here is excessive or disproportionate to the penalty imposed in similar cases decided since Jackson v. State,
CONVICTION OF CAPITAL MURDER AND SENTENCE OF DEATH BY LETHAL INJECTION AFFIRMED. THIS SENTENCE SHALL BE CONSECUTIVE TO THE SENTENCE IMPOSED BY THE CIRCUIT COURT OF RANKIN COUNTY IN CAUSE NUMBER 94-DP-00760-SCT. EXECUTION DATE TO BE SET WITHIN SIXTY DAYS OF FINAL DISPOSITION OF THIS CASE PURSUANT TO MISS. CODE ANN. § 99-19-105(7)(1972) AND M.R.A.P. 41(a).
DAN LEE, C.J., and PITTMAN, JAMES L. ROBERTS, Jr., SMITH and MILLS, JJ., concur.
SULLIVAN, P.J., dissents with separate written opinion joined by McRAE, J.
BANKS, J., dissents with separate written opinion joined by SULLIVAN, P.J.
APPENDIX
DEATH CASES AFFIRMED BY THIS COURT
Simon v. State,
Jackson v. State,
Williams v. State,
Davis v. State,
Taylor v. State,
Brown v. State,
Blue v. State,
Holly v. State,
Walker v. State,
Russell v. State,
Ballenger v. State,
Davis v. State,
Carr v. State,
Mack v. State,
Chase v. State,
Foster v. State,
Conner v. State,
*1141 Hansen v. State,
Shell[*] v. State,
Davis v. State,
Minnick v. State,
Pinkney[*] v. State,
Clemons[*] v. State,
Woodward v. State,
Nixon v. State,
Cole v. State,
Lockett v. State,
Lockett v. State,
Faraga v. State,
Jones[*] v. State,
Wiley v. State,
Johnson v. State,
Gray v. State,
Cabello v. State,
Jordan v. State,
Wilcher v. State,
Billiot v. State,
Stringer v. State,
Dufour v. State,
Neal v. State,
Booker v. State,
Wilcher v. State,
Caldwell v. State,
Irving v. State,
Tokman v. State,
Leatherwood v. State,
Hill v. State,
Pruett v. State,
Gilliard v. State,
Evans v. State,
King v. State,
Wheat v. State,
Smith v. State,
Johnson v. State,
Edwards v. State,
Bullock v. State,
Reddix v. State,
Jones v. State,
Culberson v. State,
Gray v. State,
Jordan v. State,
Voyles v. State,
Irving v. State,
Washington v. State,
Bell v. State,
DEATH CASES REVERSED AS TO GUILT PHASE AND SENTENCE PHASE
Hunter v. State,
Lanier v. State,
Giles v. State,
Duplantis v. State,
Harrison v. State,
Butler v. State,
Jenkins v. State,
*1142 Abram v. State,
Balfour v. State,
Griffin v. State,
Bevill v. State,
West v. State,
Leatherwood v. State,
Mease v. State,
Houston v. State,
West v. State,
Davis v. State,
Williamson v. State,
Foster v. State,
Smith v. State,
West v. State,
Fisher v. State,
Johnson v. State,
Fuselier v. State,
West v. State,
Jones v. State,
Moffett v. State,
Lanier v. State,
Laney v. State,
DEATH CASES REVERSED AS TO PUNISHMENT AND REMANDED FOR RESENTENCING TO LIFE IMPRISONMENT
Reddix v. State,
Wheeler v. State,
White v. State,
Bullock v. State,
Edwards v. State,
Dycus v. State,
Coleman v. State,
DEATH CASES REVERSED AS TO PUNISHMENT AND REMANDED FOR A NEW TRIAL ON SENTENCING PHASE ONLY
Taylor v. State,
Shell[*] v. State,
Pinkney[*] v. State,
Clemons[*] v. State,
Jones[*] v. State,
Russell v. State,
Holland v. State,
Willie v. State,
Ladner v. State,
Mackbee v. State,
Berry v. State,
Turner v. State,
State v. Tokman,
Johnson v. State,
Williams v. State,
Lanier v. State,
Stringer v. State,
Pinkton v. State,
Mhoon v. State,
Cannaday v. State,
Wiley v. State,
Williams v. State,
SULLIVAN, Presiding Justice, dissenting:
I cannot concur with the majority reasoning in several particulars, and therefore dissent. This dissent also applies to 94-DP-00761 except for the section dealing with prior conviction as an aggravating factor.
I.
THE TRIAL COURT ERRED BY REFUSING TO ALLOW CROSS-EXAMINATION OF SHERIFF WARREN ON HIS EXTORTION CONVICTION.
In Crapps v. State,
The majority is incorrect in holding that the trial court did not abuse its discretion when not admitting Sheriff Warren's conviction for extortion. The trial court did not allow the conviction because the conviction was in 1989 and the sheriff originally testified in 1982. However, the trial court fails to take into account that the hearing was held in 1994. Therefore, if the sheriff had been able to testify at trial in 1994, then he would have been able to testify to the prior 1989 conviction for extortion.
The sole reason that the trial judge excluded the evidence is found in the transcript of the trial proceedings while the jury was adjourned. It reads in part, "Well gentlemen, we are retrying events that occurred in 1982. The fact that we are here in 1994 rehashing those matters, to me, is of no consequence. It is dictated by the fact that in 1982, the crime occurred. In 1982, there was a trial. In 1982, Sheriff Warren testified." However, the transcript was read in 1994 before a 1994 jury. The jury is directed to give Sheriff Warren's transcribed testimony equal weight as other live testimony. If Sheriff Warren had been able to testify in 1994, he would have been able to testify as to his conviction of extortion in 1989.
Prior convictions are admissible to impeach a witness on two grounds according to MRE 609(a). According to the requirements of MRE 609(a)(1), Sheriff Warren's conviction was punishable in excess of one year. However, according to MRE 609(a)(1), the trial judge must also determine that the probative value outweighs the prejudicial effect on the "party." Two problems arise. First, the trial judge never weighed the probative value versus the prejudicial effect because the trial judge determined that the extortion conviction was not a prior conviction. Therefore, the trial judge failed to follow the second prong of MRE 609(1)(a) by not determining the conviction's probative value versus its prejudicial effect when excluding the conviction as evidence for impeachment purposes. Secondly, MRE 609(a)(1) refers to the "prejudicial effect on a party." Since Warren was not a party to the suit but merely a witness, the prejudicial effect on his testimony is irrelevant. In other words, when a defendant or party to a suit (such as Wilcher) testifies, and a prior conviction is sought admissible for impeachment purposes, the court must weigh the probative effect of the prior conviction and its prejudicial effect on the "party." However, a non-party may not be prejudiced. Therefore, the extortion conviction should have been admitted.
The extortion conviction could have automatically been admitted for impeachment purposes pursuant to MRE 609(a)(2) and not subject to court discretion. Butler v. State, *1144
Extortion is a dishonest crime admissible under MRE 609(a)(2). While Mississippi case law fails to address specifically that extortion is a crime of dishonesty, Iowa has done so. The Iowa Supreme Court held that "extortion is clearly an example of dishonesty." State v. Brodene,
Therefore, for the previously stated reasons, the trial court erred in excluding Sheriff Warren's conviction of extortion.
II.
THE TRIAL COURT ERRED IN EXCLUDING MITIGATING EVIDENCE IN REGARDS TO THE TESTIMONY OF WILCHER'S FAMILY MEMBERS.
Victim impact statements are irrelevant as to a criminal defendant's guilt or culpability. Therefore, I must agree fully with Justice Stevens's dissent in Payne v. Tennessee,
When Payne over-ruled Booth and Gathers, the United States Supreme Court did not state that all victim impact statements are admissible or even should be admitted. The highest Court only stated that the Eighth Amendment does not erect a per se bar. Payne,
While Payne justified the use of victim impact statements in the name of fairness, Payne did not take away Eighth Amendment rights specifically due an accused. Payne reiterated that the Eighth Amendment imposes special limitations when the death penalty is imposed. Of those limitations, "`States cannot limit the sentencer's consideration of any relevant circumstance that could cause it to decline to impose the penalty. In this respect, the State cannot challenge the sentencer's discretion, but must allow it to consider any relevant information offered by the defendant.'" Payne, at 824,
Criminal law was created with the notion of protecting the innocent and punishing the guilty. However, since the State has great power over its constituents, our criminal system affords individuals certain rights and protections. In the words of Justice Stevens:
The Constitution grants certain rights to the criminal defendant and imposes special limitations on the State designed to protect the individual from overreaching by the disproportionately powerful State. Thus, the State must prove a defendant's guilt beyond a reasonable doubt. See In re Winship,397 U.S. 358 ,90 S.Ct. 1068 ,25 L.Ed.2d 368 (1970). Rules of evidence are also weighted in the defendant's favor. For example, the prosecution generally cannot introduce evidence of the defendant's character to prove his propensity to commit a crime, but the defendant can introduce such reputation evidence to show his law-abiding nature. See, e.g., Fed. Rule Evid. 404(a).
Payne,
The majority relies on three Mississippi cases in determining that a defendant's family testimony about the impact of the possibility of death of the defendant is neither admissible nor relevant. The first Mississippi case, which the later cases rely on as precedent, is Mease v. State,
In the second case, Turner v. State,
*1146 III.
THE TRIAL COURT ERRED BY INSTRUCTING THE JURY THAT IT COULD CONSIDER WILCHER'S CONVICTION FOR THE MURDER OF THE SECOND VICTIM AS AN AGGRAVATING CIRCUMSTANCE.
The majority incorrectly concluded that Wilcher's second and later conviction in Wilcher (Rankin County) 94-DP-00761 was properly considered as an aggravating factor in Wilcher (Harrison County) 94-DP-00760. The majority fails to recognize the long settled premise that a criminal conviction is not final until sentencing. While "conviction" is often used in reference to the ascertainment of guilt, a conviction, as a final judgement, includes the sentence. In 24 CJS Criminal Law § 1458, "conviction", in its technical legal sense, "means the final consummation of the prosecution against accused including the judgement or sentence rendered pursuant to a verdict, confession, or plea of guilty." Mississippi reaffirmed this concept of "conviction" as a final judgement in Lang v. State,
IV.
THE PROSECUTOR'S CLOSING ARGUMENT CONSTITUTED REVERSIBLE ERROR.
No doubt, attorneys are given latitude in their closing arguments. However, the prosecution went beyond reasonable limits on closing argument. In Williams v. State,
... [W]e consider the argument improper. The jurors are representatives of the community in one sense, but they are not to vote in a representative capacity. Each juror is to apply the law to the evidence and vote accordingly. The issue which each juror must resolve is not whether or not he or she wishes to "send a message" but whether or not he or she believes that the evidence showed the defendant to be guilty of the crime charged. The jury is an arm of the State but it is not an arm of the prosecution. The State includes both the prosecution and the accused. The function of the jury is to weigh the evidence and determine the facts. When the prosecution wishes to send a message they should employ Western Union. Mississippi jurors are not messenger boys.
Williams, at 209. Even though Williams did not reverse the conviction on the assignment of error concerning the improper prosecution closing argument, this Court warned prosecutors against making such arguments. If this Court continues to allow improper remarks such as "send a message," and only note the Court's distaste of such remarks, then prosecutors will continue making improper comments as is the case here. Therefore, this Court must reverse on grounds of improper prosecutorial comments and "send a message" to the prosecutors that this Court will not approve and affirm such egregious conduct.
CONCLUSION
In light of the foregoing errors by the trial court in the case sub judice, Wilcher was denied a fair sentencing trial and protection of his rights. I cannot agree with the majority's conclusion that these errors were nonexistent. *1147 Therefore, I must respectfully dissent and would reverse.
McRAE, J., joins this opinion.
BANKS, Justice, dissenting:
By reference, I reiterate the views that I expressed in my separate opinion in Wilcher v. State, 94-DP-00760-SCT and dissent from the result reached by the majority.
SULLIVAN, P.J., joins this opinion.
NOTES
Notes
[1] See Miranda v. Arizona,
[*] Case was originally affirmed in this Court but on remand from U.S. Supreme Court, case was remanded by this Court for a new sentencing hearing.