Abdur Rahim Ambrose v. State of Mississippi

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2015-DP-01159-SCT

ABDUR RAHIM AMBROSE a/k/a ABDUR

AMBROSE

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 06/19/2015

TRIAL JUDGE: HON. ROGER T. CLARK

TRIAL COURT ATTORNEYS: CROSBY PARKER

LISA COLLUMS

CHARLIE STEWART

FRANK P. WITTMANN, IV

RICHARD JOEL SMITH, JR.

ROBERT C. STEWART

GLENN F. RISHEL, JR.

ANGELA BLACKWELL

DANA CHRISTENSEN

ALISON R. STEINER

COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER

BY: ALISON R. STEINER

ANGELA BLACKWELL

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: LADONNA C. HOLLAND

JASON L. DAVIS

CAMERON BENTON

DISTRICT ATTORNEY: JOEL SMITH

NATURE OF THE CASE: CRIMINAL - DEATH PENALTY - DIRECT

APPEAL

DISPOSITION: AFFIRMED - 08/02/2018

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

COLEMAN, JUSTICE, FOR THE COURT:

¶1. On December 23, 2013, Abdur Rahim Ambrose, Stevie Ambrose, and Orlander

Dedeaux were indicted for capital murder of Robert Trosclair with the underlying felony

being kidnapping. The trial court severed the case for separate trials.1 Abdur Rahim

Ambrose proceeded to trial, which commenced on June 15, 2015. Following the culpability

phase of trial, a Harrison County jury found Abdur Rahim Ambrose guilty of capital murder.

Following the penalty phase of trial, the jury imposed the death penalty. Ambrose appeals,

raising the following twelve assignments of error verbatim:

I. WHETHER THE TRIAL COURT VIOLATED AMBROSE’S SIXTH

AND FOURTEENTH AMENDMENT RIGHTS TO

CONFRONTATION AND TO PRESENT A DEFENSE BY

PREVENTING HIM FROM IMPEACHING PROSECUTION

WITNESS DEMETRIUS LEE WITH MATTERS CLEARLY

PROBATIVE OF LEE’S BIAS IN FAVOR OF THE STATE AND

INTEREST IN PROVIDING INCRIMINATING TESTIMONY

AGAINST AMBROSE AND IN SUPPORT OF THE STATE’S

THEORY OF PROSECUTION.

II. WHETHER AMBROSE’S DEATH SENTENCE MUST BE

VACATED AND THIS MATTER REMANDED FOR ENTRY OF A

SENTENCE LESS THAN DEATH BECAUSE THE ONLY §

99-19-101(7) SENTENCING ELIGIBILITY FACTOR FINDING BY

THE JURY WAS THAT AMBROSE “CONTEMPLATED THAT

LETHAL FORCE WOULD BE EMPLOYED.”

III. WHETHER THE TRIAL COURT REVERSIBLY ERRED IN TWO

MATTERS RELATING TO THE SEATING OR REMOVAL OF

JU[]RORS, AND IN DENYING A MISTRIAL IN LIEU OF

REPLACING THE REMOVED JUROR WITH AN ALTERNATE.

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On January 22, 2015, Orlander Dedeaux pleaded guilty to second degree murder and

was sentenced to forty years, with ten years suspended. On January 8, 2016, after Ambrose’s

trial, Stevie Ambrose pleaded guilty to first degree murder and was sentenced to life in prison

without the possibility of parole. Neither Stevie nor Dedeaux testified at Ambrose’s trial.

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IV. WHETHER THE JURY SELECTION PROCESS WAS ALSO

CONSTITUTIONALLY INFIRM IN OTHER RESPECTS AND

REQUIRES REVERSAL OF AMBROSE’S CONVICTION AND

SENTENCE OF DEATH.

V. WHETHER AMBROSE’S SENTENCE MUST BE REVERSED

BECAUSE OF THE PROSECUTOR’S MISCONDUCT IN MAKING

CONSTITUTIONALLY IMPROPER AND PREJUDICIALLY

INFLAMMATORY CLOSING ARGUMENTS AT THE PENALTY

PHASE OF THE TRIAL.

VI. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE

EVIDENTIARY ERROR.

VII. WHETHER THE TRIAL COURT CONSTITUTIONALLY ERRED

BY DENYING AMBROSE’S REQUESTS THAT EITHER THE

INDICTMENT ITSELF OR A BILL OF PARTICULARS,

DESCR[I]BE[S] THE ALLEGED CONDUCT BY THE

DEFENDANT THAT CONSTITUTED THE KIDNAPPING

ELEMENT OF THE CAPITAL MURDER AND/OR THE

STATUTORY SENTENCING AGGRAVATOR ON WHICH THE

JURY WAS INSTRUCTED AT THE PENALTY PHASE.

VIII. WHETHER THE TRIAL COURT ERRED IN GRANTING THE

STATE’S REQUESTED ONE CONTINUOUS TRANSACTION

INSTRUCTIONS AT BOTH THE CULPABILITY AND

SENTENCING PHASES.

IX. WHETHER THE TRIAL COURT’S ERRONEOUS SENTENCING

PHASE INSTRUCTIONS REQUIRE VACATION OF THE DEATH

SENTENCE AND REMAND FOR A NEW SENTENCING

PROCEEDING.

X. WHETHER THE DEATH SENTENCE WAS IMPOSED IN

VIOLATION OF THE UNITED STATES CONSTITUTION.

XI. WHETHER THE DEATH SENTENCE IN THIS MATTER IS

CONSTITUTIONALLY AND STATUTORILY

DISPROPORTIONATE.

XII. WHETHER THE CUMULATIVE EFFECT OF THE ERRORS IN

THE TRIAL COURT MANDATES REVERSAL OF THE VERDICT

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OF GUILT AND/OR THE SENTENCE OF DEATH ENTERED

PURSUANT TO IT.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Events at “the Hill”

¶2. On the afternoon of April 7, 2013, Demetrius Lee returned home from work between

3:00 and 4:00 p.m. Lee resided in the DeLisle community at 7486 Lobouy Road, which is

part of a larger property commonly known as “the Hill.” The Hill is comprised of two houses

and a mobile home. While Lee was relaxing, someone knocked on his window, but he

remained inside. Twenty to thirty minutes later, Lee went outside and saw Robert Trosclair,

whom he knew from frequently being at the Hill.

¶3. Lee testified that Trosclair was running and looked like he had been in a fist fight,

because he was shirtless and bloody. Trosclair had a busted lip, blood coming out of his

nose, and blood on his chest. Ambrose, his brother Stevie Ambrose,2 and Orlander Dedeaux

were following behind Trosclair, taking turns hitting him. Stevie handed Lee a cell phone

and told him to record. Lee testified that he videoed anywhere from a mere second to two

minutes of the assault. Trosclair was trying to get away and was not fighting back. Ambrose

kept asking Trosclair, “[W]here is my stuff, you got some explaining to do” to which

Trosclair responded, “it was Terry.” Ambrose, Stevie, and Dedeaux continued taking turns

hitting, kicking, and knocking down Trosclair for thirty minutes to an hour.

2

The Court refers to Stevie Ambrose as “Stevie” to avoid confusion with the

defendant Abdur Rahim Ambrose.

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¶4. Sometime during the assault, Donna Sims arrived at the Hill to return a book bag to

her grandson, who had been staying with his mother Crystal Jameson at the Hill. When Sims

arrived, she saw someone lying on the ground. Although Sims knew Trosclair, she was

unable to recognize him because his head was bloody and swollen. Sims saw Ambrose,

Stevie, Lee, and Dedeaux standing around Trosclair. Sims, whose grandson is also

Ambrose’s nephew, had known Ambrose for years.

¶5. Sims told Ambrose and Stevie to stop assaulting Trosclair and leave him alone.

Ambrose responded that Trosclair had “stolen stuff out of his car.” Sims grabbed, pushed,

and pulled Ambrose and Stevie in an effort to stop them, but she was unsuccessful. Sims

begged them to stop, but they continued hitting Trosclair. Lee also testified that Sims had

yelled for them to stop assaulting Trosclair. Sims testified that Trosclair was not fighting

back and was unable to stand up other than partially sitting up at one point. Sims testified

that Lee was laughing and videoing the assault with a phone.

¶6. After the beating had subsided, Ambrose got into a white truck and told “them” to put

Trosclair in the truck. Sims recognized the truck because it belonged to her daughter Crystal

and her boyfriend Luke Turner, who is Ambrose’s brother.3 Sims approached Ambrose

while he was in the driver’s seat of the truck. Sims spoke to Ambrose for about five minutes.

Meanwhile, Sims testified that “they” had put Trosclair in the back of the truck because he

could not get up from the ground. Sims testified that Lee helped load Trosclair into the back

of the truck. Lee denied helping load Trosclair in the back of the truck at the Hill; rather,

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Luke is also the father of Crystal Jameson’s son, who is Ambrose’s nephew.

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Lee testified that after the fighting had stopped, Trosclair attempted to roll in the back of the

truck. Lee testified that someone then picked up his feet and pushed him in the back of the

truck. Lee got into the passenger’s seat of the truck and Ambrose drove away with Trosclair

in the back of the truck. Lee was under the impression that Ambrose was going to take

Trosclair home. Stevie got into his car with Dedeaux and they followed the truck.

¶7. Lee testified that, by the time Sims arrived at the Hill that afternoon, most of the

assault had subsided. Lee testified that Sims was there about ten minutes before they left the

scene; however, Sims testified that the incident at the Hill lasted thirty-five to forty-five

minutes from the time she arrived at the Hill to the time they left the scene.

Events at Fire Tower Road

¶8. Upon leaving the Hill, Lee described Ambrose’s demeanor as “mad, real mad.” Lee

soon realized Ambrose was not taking Trosclair home, but he was too scared to say anything.

Instead, they went to an address about five minutes away on Fire Tower Road where Jimmy

Lawton lived. Lawton, also known as “Turk,” lived at 9042 Fire Tower Road at the end of

a long dirt driveway. Ambrose drove the truck down the driveway and parked in front of a

trailer next door to Lawton, where Lashonda Jacobs lived. Ambrose parked, got out of the

truck, and went toward Lawton’s house. Ambrose walked to Lawton and spoke to him.

¶9. Meanwhile, Stevie got out of his car and pushed Trosclair out of the back of the truck.

Lee testified that Trosclair and Stevie “squared off” as if to fight. Trosclair “rushed” Stevie,

pushing him away, and ran away toward the main road in an effort to “get away.” Lee

estimated that Trosclair made it about forty yards away. Lee testified that Ambrose ran after

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Trosclair and caught him. Ambrose grabbed Trosclair by the waistband of his shorts and

said, “you got some more explaining to do.” Trosclair responded, “man, I don’t know what’s

going on. It wasn’t me. It was Terry.” Ambrose walked Trosclair back toward the truck.

¶10. Lee testified that the situation then “turned up a level” and “got more heated.”

Trosclair ended up on the ground and Ambrose, Stevie, and Dedeaux began kicking him.

Other than initially rushing Stevie to get away, Trosclair did not fight back at all. During the

assault, Lee grabbed Ambrose and said “[w]e need to figure out who Terry is” because

Trosclair continued yelling the name “Terry.” Ambrose responded, “there ain’t no Terry.”

¶11. Lee testified that Stevie hit Trosclair in the head with a garden hose reel with “full

force” as Trosclair was lying down on the ground. Lee testified that Ambrose retrieved a

fully inflated car tire on a rim and hit Trosclair in the head with it as Troscliar was lying on

the ground. Lee testified that Trosclair’s head bounced off the ground when Ambrose hit

him with the tire. After Trosclair was hit “two to three” times with the tire, Lee testified that

Trosclair “went to sleep” and started “making a snoring sound.”

¶12. Lawton, who witnessed portions of the assault in front of his house, also testified.

That evening, Lawton recalled that Ambrose, whom he had known for about five years,

arrived at his house. Lawton saw him getting out of the driver’s side of the white truck. At

the time, Ambrose regularly stayed at the trailer next door to Lawton’s house and Ambrose

would come to the house to get the trailer key. Lashonda Jacobs also lived at the trailer next

door to Lawton’s house. Lawton, assuming Ambrose was there to get the key, went outside

under the carport to meet Ambrose with the key.

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¶13. While under the carport, Lawton saw Dedeaux and Trosclair sitting in the back of the

truck with no commotion. As Ambrose reached the carport, Lawton saw Trosclair take off

running up the driveway toward the main road. Lawton testified that Dedeaux and Stevie ran

after Trosclair first. Lawton testified that when Trosclair had run about ten to twenty-five

yards, Ambrose also ran after him. Stevie and Dedeaux caught Trosclair first and knocked

him down. Ambrose made it to Trosclair soon thereafter. Lawton testified that Ambrose,

Stevie, and Dedeaux started kicking and punching Trosclair. Lawton went inside for a

moment to get his phone to call his next door neighbor Jacobs. Lawton then continued

observing from his window.

¶14. Lawton testified that Trosclair started stumbling back toward the trailer. Lawton

testified that Trosclair would walk for a moment and then “one of them would hit him and

he would go a little more and then he fell again.” Lawton testified that Trosclair was not

fighting back. Lawton testified that Ambrose and Dedeaux hit Trosclair with the tire and the

hose reel. Lawton testified that “[t]hey picked up a tire and they picked up a [hose reel].

They struck him with it more than twice, I know that for sure.” Lawton testified that he

“kn[e]w [Dedeaux] picked it up once. And [he was] sure the other one was [Ambrose].”

When asked if he was sure about which one hit him with which object, Lawton responded:

Not – I’m not really sure. I know one of them picked this one up, the other

one picked that one up. I’m just saying it was, boom, and they pick something

else up, hit him. And then the other one, Stevie, was right there with him. He

picked it up and hit him hisself, you know. And [Lee], the one he was there

taking pictures with the camera.

8

¶15. On cross-examination, Lawton testified that Ambrose hit Trosclair with the hose reel

and the tire. Lawton also testified that Stevie picked up the hose reel and hit Trosclair with

it. Lawton testified that Trosclair was hit with the tire more than two times. Lawton testified

that Trosclair was lying on his side when he was hit with the garden hose reel and the tire.

After Trosclair was hit with these two objects, he rolled over. During the assault, Lawton

testified that he then went to the bathroom for fifteen or twenty minutes and came back to

the window and saw the truck and car leaving the scene. After the two vehicles left, Lawton

went outside and saw at least three areas of blood in the gravel driveway. Lawton also

noticed that the hose reel and tire, which were used to strike Trosclair, were lying on the

ground.

¶16. Lee testified that after Trosclair had been knocked out in front of Lawton’s house,

Ambrose got into the truck. Stevie and Dedeaux tied Trosclair’s hands and body with a

yellow ratchet tow strap and put him in the back of the truck. When Trosclair was put in the

back of the truck, his head was jerking back and forth.4 Lee testified that he got in the truck

with Ambrose and they left Lawton’s with Stevie and Dedeaux following in Stevie’s car.

Ambrose did not tell Lee where he was driving. Lee testified that Ambrose turned off “some

little entrance, and backed up. And then Stevie and Dedeaux pulled [Trosclair] out the

truck.” Stevie and Dedeaux dumped Trosclair on the side of the road and they left the scene.

Lee testified that Trosclair was unable to move or talk.

4

Lee denied helping load Trosclair in the back of the truck. Lee also denied touching

Trosclair during any part of the assault. Lee denied videoing anything at Lawton’s house.

9

¶17. Later that evening, Lawton testified that Ambrose came to his house with Jacobs.

Lawton said that Ambrose apologized about what had happened in front of his house.

Lawton said that Ambrose asked for a shovel, but Lawton told him he did not have one. The

next day, Lawton went outside and noticed that the areas of blood were covered up. Lawton

also noticed that the garden hose reel and tire had been moved and thrown in the bushes.

Discovery and Investigation

¶18. The same evening, Bradley Holmes was driving home on Cunningham Road in Pass

Christian around 7:00 p.m. Holmes stopped his truck when he noticed what appeared to be

a body lying on the side of the road. Holmes called 911, and when he was getting out of his

truck, he realized it was an unconscious man, later identified as Trosclair, lying face down

between the white line of the road and the roadside ditch. Holmes testified that Trosclair was

making a gargling, snoring sound. Holmes testified Trosclair was partially clothed, with

short pants and socks on. Holmes described that Trosclair was tied up with a yellow ratchet

strap, which was tightly tied around his wrists and loosely tired around his back. Holmes

described his head as “very dirty, covered in dirt, black and blue, blood.” Holmes said that

Trosclair’s ears had blood coming out of them. Holmes also observed stab wounds, cuts, and

scrapes to Trosclair’s body.

¶19. Deputy Carl James of the Harrison County Sheriff’s Department received a call at

approximately 7:00 p.m. with regard to an assault victim who had been stabbed on

Cunningham Road just west of Lobouy Road. Deputy James was the first officer to respond

to the scene. Deputy James testified that Trosclair was wearing only a pair shorts and socks.

10

Deputy James testified that Trosclair had bruising, blood, and abrasions on his face and his

whole body. Deputy James observed blood on the middle of his torso, including three stab

wounds to the lower back. Deputy James testified that Trosclair’s hands and waist were tied

with a ratchet tow strap. Deputy James tried to communicate with Trosclair, but he was

unresponsive. Trosclair’s breathing was shallow and labored with a gurgling sound

resembling a snore.

¶20. Trosclair was flown by helicopter to the University of South Alabama Medical Center,

where he arrived intubated because he was unable to breathe on his own and had signs of

head injuries. Trosclair was unresponsive, and the treating physician determined that

Trosclair had undergone some brain injury and diagnosed him with a global severe cerebral

edema. Because of the swelling of Trosclair’s brain, it had shifted four millimeters to the

left. Trosclair also was diagnosed with a jaw fracture, nasal bone fracture, and superficial

lacerations on his flank, meaning that they did not enter where his organs were. The treating

physician testified that the lacerations were not life threatening in and of themselves. After

performing tests to determine brain activity over the next two days, the treating physician

determined that Trosclair was clinically brain dead.

¶21. On April 9, 2013, Troslciar’s mother Vena Trosclair went to the police station to

report her son missing because he had not been home and was not returning her calls. Law

enforcement officials advised Vena that an unidentified male matching her son’s description

was at the University of South Alabama Medical Center. Vena went to the hospital and

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identified Trosclair, who was comatose and on life support. Trosclair never regained

consciousness and died after he was removed from life support.

¶22. On April 11, 2013, forensic pathologist Dr. Frank Krolikowski performed an autopsy

of Trosclair. Dr. Krolikowski found Trosclair had suffered from three stab wounds to his

side, substantial amounts of head trauma, multiple hemorrhages within his head,

strangulation, and superficial abrasions in a number of different parts of his body. Dr.

Krolikowski testified that the hemorrhages within Trosclair’s head could be consistent with

multiple strikes to the head. Dr. Krolikowski opined that all of Trosclair’s various traumas

were cumulative and contributed to his demise. Dr. Krolikowski concluded that Trosclair’s

cause of death was “multiple blunt trauma, multiple stab wounds, and asphyxia by

strangulation.”

¶23. During law enforcement’s investigation, Ambrose and Stevie were developed as

suspects and an arrest warrant for aggravated assault was issued because Trosclair was still

alive at the time, albeit in a coma. The charges were later upgraded after Troslcair died of

his injuries.

¶24. At the Hill, investigators discovered the white truck that had been driven by Ambrose.

Investigators observed a red substance appearing to be blood inside the truck’s tailgate.

Investigators discovered a leather belt and blue, torn up, tank top shirt inside a trash can

outside the mobile home. Investigators discovered blood stained gravel in the center of the

driveway in front of Lawton’s home. Investigators also discovered the blood stained tire and

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garden hose reel in a wooded area about twenty-five yards from Lawton’s home near the

driveway where blood was found.

¶25. At trial, the State introduced evidence showing that Trosclair’s DNA matched a

reddish brown stain sample collected from the interior of the truck bed near the tailgate.

Trosclair’s DNA matched a reddish brown stain sample consistent with the appearance of

blood collected from the garden hose reel. Trosclair’s DNA matched a reddish brown sample

from the tire rim. Trosclair’s DNA matched samples from reddish brown stained rocks found

in the middle of the driveway near Lawton’s home. Trosclair’s DNA also matched samples

taken from the blue tank top found in a trash can at Lobouy Road and the ratchet tow strap.

Although DNA testing performed on the belt showed a mixed profile from more than one

person, Trosclair could not be excluded as being a contributor to the mixture.

Ambrose’s Version of Events

¶26. Ambrose took the stand in his defense. At the time, Ambrose had been driving the

white truck that he had borrowed from Jameson because his car was broken down and parked

in front of his mother’s trailer at the Hill. On the morning of April 7, 2013, Ambrose

received a call from Jameson, who is Sims’s daughter. Ambrose learned that his car had

been broken into. Ambrose went to the Hill to return the truck to Jameson and to assess the

damage to his car. Ambrose arrived and saw that his car’s window had been broken out with

a brick and the trunk had been opened. When Ambrose opened the driver’s side of his car,

he discovered that his prescription pills for a back injury that had occurred at work had been

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taken. Ambrose also discovered that other drugs, a speaker, and an amplifier had been taken

from the trunk of the car.

¶27. Ambrose became upset and decided to drive around the DeLisle community and ask

if anyone had seen someone trying to sell a speaker and amp so he could determine who had

broken into his car. Ambrose picked up Dedeaux from his house, and they drove around the

community looking for the stolen items. While they were driving around, Stevie called.

Ambrose learned that Trosclair was at the Hill. Ambrose had known Trosclair for more than

a decade, and they had grown up together. Ambrose described Trosclair as his “brother, best

friend.” Ambrose and Trosclair were not actually related; on cross-examination, Ambrose

clarified that Trosclair was his friend. Ambrose also confirmed that he, his brother Stevie,

Dedeaux, Lee, and Trosclair all were friends.

¶28. When Ambrose returned to the Hill, Ambrose approached Trosclair and asked him

about a dog house that Ambrose had asked Trosclair to build. Earlier that day, Trosclair

claimed he could not build it because he was on his way to the hospital due to third degree

burns he had suffered from working on a car radiator. Because Ambrose saw that Trosclair

did not have burns on his body, Ambrose confronted him about the stolen items.

¶29. Trosclair then admitted to breaking into Ambrose’s vehicle, but claimed he did not

break out the window. Ambrose became angry when Trosclair admitted to breaking into his

car. Trosclair claimed that an individual named Terry had broken out the window. Ambrose

did not know an individual named Terry and the argument became heated. Ambrose and

Trosclair “squared off” and fought for “four to five minutes.”

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¶30. During the fight, Ambrose ripped off Trosclair’s blue tank top. Ambrose punched

Trosclair about five or six times. Troslcair fought back and struck Ambrose with a few

blows. The only other individuals present at the time were Stevie and Dedeaux. Later, Lee

came outside and “blindsided” Trosclair, hitting him from behind and knocking him down.

Ambrose told Lee that he did not need any help. Trosclair got up and he and Ambrose

continued to fight. Ambrose testified that Dedeaux was “actually the one with the phone

[videoing].”

¶31. The fight subsided and Ambrose told Trosclair to take him to Terry. Ambrose

testified that Trosclair was “pretty beat up.” Ambrose went toward the truck so they could

go to Terry’s house. Ambrose claimed that Sims pulled up as they were on their way to the

truck. Ambrose denied that Sims had pleaded for him to stop beating Trosclair because the

fight already had ended. Ambrose told “them to get on back of the truck and take me to

whoever this guy named Terry is house [sic].” Ambrose testified that Trosclair got in the

back of the truck so they could get his belongings back. Ambrose testified that he did not

force Trosclair into the truck and Trosclair willingly got in the truck. Ambrose told Trosclair

that once he received his speakers, he “wasn’t going to mess with him anymore.” Stevie

followed Ambrose to “go get the stuff.”

¶32. Instead of going to where Terry supposedly lived, as Ambrose originally had planned,

he remembered that he had purchased four tires from Lawton for his other vehicle, which had

a flat tire. Even though Ambrose was angry about his belongings being stolen, he decided

to take a detour to Lawton’s. Ambrose drove to Lawton’s house, which was “right around

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the corner.” Ambrose pulled up and Lawton had the trailer keys in his hand, but Ambrose

advised Lawton that he was there just to get the tires.5

¶33. While Ambrose and Lawton were talking, “a commotion . . . was going on by the

trailer a few feet away, and [Ambrose] saw people running.” Ambrose testified: “I didn’t

really know what the commotion was about, but when I saw people running, I instantly just

ran. I took off. I did. I took off to see what the commotion was about.” Ambrose saw Lee,

Dedeaux, and Stevie striking Trosclair. Ambrose caught up with them and began striking

Trosclair too. Ambrose admitted that all of them were beating Trosclair after they chased

him down. Ambrose also admitted that “this whole thing [was] about [Ambrose] being mad

at [Trosclair] because [Ambrose] believe[ed] he [had] broke[en] into [his] car.” Ambrose

admitted that was the reason everyone was beating him at the time. Ambrose testified the

beating lasted two minutes until Ambrose learned that Terry was not involved and Stevie

actually had broken into his car. Ambrose then fought Stevie for about three minutes. When

Ambrose and Stevie started fighting, Ambrose testified that Trosclair was injured but got up

and walked back toward Lawton’s house.

¶34. When Ambrose was finished fighting with Stevie, he saw Dedeaux strike Trosclair

in the head with the tire. After Dedeaux struck Trosclair with the tire, Trosclair just “laid

there” and did not get up. Ambrose testified that he was hurt by Stevie and just wanted to

get away. Ambrose left the scene alone in Stevie’s car because it was the closest vehicle to

him.

5

Lawton was called as a rebuttal witness and denied having a conversation with

Ambrose about the tires that day.

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¶35. Later that evening, Ambrose returned to Lawton’s house with Jacobs. Ambrose

apologized to Lawton about the fight that had occurred earlier that day. Ambrose testified

that he and Lawton spoke for about three minutes and he left. Ambrose denied asking

Lawton for a shovel. Ambrose denied intentionally killing Trosclair or making him go

anywhere against his will. Ambrose denied stabbing, strangling, or choking Trosclair.

Ambrose denied striking Trosclair with the tire or hose reel.

¶36. Ambrose’s defense theory presented at trial was that he was criminally responsible as

an accomplice to the events in question or, at most, guilty of a lesser homicide than capital

murder.

The Verdict

¶37. Following the culpability phase of trial, the jury returned a verdict finding Ambrose

guilty of capital murder. After an approximately one hour cooling off period, the penalty

phase of the trial commenced. The State reintroduced and incorporated by reference all

testimony, evidence, and exhibits contained in the culpability phase of trial and rested.

Ambrose called several family members and friends to the stand to serve as mitigation

witnesses and then rested.

¶38. During a recess following the conclusion of the mitigation witnesses’ testimony, a

juror submitted a note disclosing his personal relationship with Ambrose’s family. Ambrose

moved for a mistrial. The juror was called to the stand and questioned by counsel for

Ambrose. The trial court denied the motion for a mistrial. Over Ambrose’s objection, the

trial court excused the juror and replaced him with the first alternate juror. The next day, the

jury heard closing arguments and retired to the jury room to deliberate. The jury returned a

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verdict finding that Ambrose should receive the death penalty. The trial court duly entered

an order sentencing Ambrose to death.

¶39. On June 25, 2015, Ambrose filed a motion for a new trial or, in the alternative, for

acquittal notwithstanding the verdict. On November 24, 2015, the trial court held a hearing

on the motion. On July 30, 2015, the trial court entered an order denying the motion.

Ambrose timely appeals, raising twelve assignments of error. In addressing the issues,

additional relevant facts and procedural history will be set out as necessary.

STANDARD OF REVIEW

¶40. The Court applies heightened scrutiny to capital murder convictions where a sentence

of death has been imposed. Keller v. State, 138 So. 3d 817, 835 (¶ 15) (Miss. 2014). The

Court repeatedly has held that what may be harmless error in a case with less at stake may

become reversible error when the penalty is death. Id.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED BY EXCLUDING EVIDENCE OF

DEMETRIUS LEE’S PRIOR NONADJUDICATED BURGLARY AND

ARMED ROBBERY ARREST.

¶41. Ambrose argues that the trial court unconstitutionally and prejudicially prevented him

from confronting and impeaching Lee with evidence highly probative of Lee’s bias in favor

of testifying in the manner desired by the State. Ambrose argues that Lee, an uncharged

coparticipant in the events leading to Trosclair’s death, was the most crucial witness to the

State’s theory presented at trial. Ambrose argues that at the time Lee made his bargain with

the State to be a witness rather than a defendant, the jury did not additionally learn that Lee

also needed the State to refrain from seeking revocation of probation for a nonadjudicated

18

sentence for burglary that he was serving at the time. Ambrose also argues that Lee faced

a similar risk of prosecution for an unrelated armed robbery for which he had been arrested

while he was being questioned as a suspect in the present matter.

A. Motion in Limine and Proffer

¶42. On June 5, 2015, the State filed a motion in limine to prohibit Ambrose from cross-

examining Lee about his prior nonadjudicated burglary and armed robbery arrest. The State

asserted that on August 16, 2010, Lee had pleaded guilty to burglary and was sentenced to

five years of nonadjudicated probation.6 Also, on April 10, 2013, Lee was arrested for armed

robbery, which ultimately was no true billed by a grand jury.

¶43. On June 11, 2015, prior to trial, the trial court held a hearing on the State’s motion in

limine. The State argued that the prior nonadjudication and armed robbery arrest were

inadmissible under Mississippi Rule of Evidence 609 because neither was a felony

conviction. The State represented that, at the time of the hearing, Lee still was on

nonadjudicated probation. Ambrose responded that because the grand jury returned a no true

bill for Lee’s armed robbery arrest, he sought to introduce the evidence as evidence of bias

under Mississippi Rule of Evidence 616.

¶44. According to Ambrose, a probation revocation had been filed in the burglary matter

and was heard six to ten months later. The record is silent as to the basis of the filed

6

During a proffer offered at trial, Lee testified that he was sentenced to three years’

nonadjudicated probation.

19

revocation or its disposition.7 Ambrose claimed that at the time Lee was interviewed by

investigators, he was facing twenty-five years for the burglary nonadjudication.8 Ambrose

argued that Lee was not charged with capital murder, not charged with armed robbery, and

did not have his probation revoked even though evidence existed that he had violated “a

couple of terms of his probation.”9 The trial court granted the State’s motion based on

Mississippi Rule of Evidence 609.

¶45. At trial, Ambrose cross-examined Lee. Lee admitted giving two different stories to

investigators on April 10, 2013, about the events leading to Trosclair’s death. Hours after

giving the first version, Lee testified that investigators had asked whether he wanted to be

a capital murder defendant or a witness. Lee testified that he chose to be a witness rather

than a defendant and cooperated with investigators. The trial court then granted Ambrose’s

request to make a proffer outside the presence of the jury and allowed cross-examination

with regard to Lee’s criminal past.

¶46. The testimony offered during the proffer showed that, at the time of Trosclair’s

murder on April 7, 2013, Lee was serving nonadjudicated probation for burglary of a

7

The information surrounding Lee’s criminal past is gleaned from the motion in

limine, Lee’s testimony during the proffer, and representations made by counsel, because no

documentation such as a no true bill, nonadjudication sentence, revocation, or order is in the

record.

8

At trial, Ambrose’s counsel represented that Lee was facing twelve years at the time

of the interview.

9

The actual terms of Lee’s nonadjudication probation are unknown. Ambrose

suggests that Lee may have violated a term by associating himself with harmful or

disreputable characters such as Dedeaux, who allegedly was a convicted felon at the time

and on probation for felony possession of a controlled substance.

20

dwelling. Lee acknowledged that he initially was concerned about his probation status while

being questioned by investigators about the case sub judice. After Lee gave his first

statement, an investigator asked Lee about an unrelated, January 27, 2013, armed robbery for

which he had been identified as a suspect. Lee testified that he was not worried about his

probation being revoked as a result of being a suspect in the armed robbery because he was

innocent of the armed robbery.

¶47. Following the proffer, the trial court entertained arguments from counsel. According

to Ambrose, Lee had been arrested for the unrelated armed robbery in April 201310 and had

remained in jail for eight months until January 2014 when the grand jury returned a no true

bill on the charge. Ambrose urged that Lee’s criminal past was admissible as evidence of

bias under Rule 616. The trial court retained its prior ruling and also found that Lee’s

testimony Ambrose sought to elicit had no relevance to the case sub judice. The trial court

refused to “allow questioning about a situation where [Lee] could have been revoked on a

prior [nonadjudication] by an arrest which was presented to the [g]rand [j]ury and no true

billed.”

¶48. On appeal, Ambrose acknowledges that the trial court properly recognized that Rule

609 restricts impeachment of a witness’s character for truthfulness with prior criminal

conduct to only conduct that has resulted in a conviction. See M.R.E. 609. However,

Ambrose argues that the trial court failed to recognize that Lee’s prior criminal conduct went

10

According to Ambrose’s counsel, Lee “went to jail on April 7th, 2013, right at

midnight, and he didn’t leave until January . . . 2014.” The State represented that Lee was

arrested on April 10, 2013, for the armed robbery.

21

not merely to his general credibility, but to a specific factual basis for his being biased in

favor of the State or having an interest in receiving a benefit or forestalling harm from

prosecution.

¶49. Ambrose argues that the trial court erred by excluding testimony that Lee faced

unresolved criminal charges, over which the prosecutor retained the power to exercise

favorable or unfavorable discretion. Ambrose argues that the trial court’s error clearly was

prejudicial because Lee’s testimony was key to implicating Ambrose for kidnapping and

designating him as the lead participant in the blows with the tire that resulted in Trosclair’s

fatal brain injuries. In response to Ambrose’s claim of prejudice, the State argues that the

jury heard evidence of Lee’s motive and bias to testify as a witness rather than as a defendant

charged with capital murder for his involvement in the events leading to Troslciar’s death.

The State argues that any bias stemming from the deal was fully explored by defense counsel.

B. Applicable Law and Analysis

¶50. The trial court generally is allowed wide discretion concerning the admission of

evidence offered to suggest bias on the part of a witness against the defendant. Tillis v.

State, 661 So. 2d 1139, 1142 (Miss. 1995). We review the trial court’s ruling for an abuse

of discretion. Id. “We will affirm the trial court’s exercise of discretion unless the ruling

resulted in prejudice to the accused.” Anthony v. State, 108 So. 3d 394, 397 (¶ 5) (Miss.

2013).

¶51. “The Confrontation Clause of the Sixth Amendment of the United States Constitution

provides, ‘In all criminal prosecutions, the accused shall enjoy the right to be confronted

22

with the witnesses against him.’” White v. State, 785 So. 2d 1059, 1062 (¶ 9) (Miss. 2001).

Likewise, “Article 3, Section 26, of the Mississippi Constitution grants and guarantees a

criminal defendant the right to confront witnesses against him.” Young v. State, 731 So. 2d

1145, 1151 (¶ 38) (Miss. 1999). “The right of confrontation extends to and includes the right

to fully cross-examine the witness on every material point relating to the issue to be

determined that would have a bearing on the credibility of the witness and the weight and

worth of his testimony.” Id.

¶52. “Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or

in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the

Constitution guarantees criminal defendants a meaningful opportunity to present a complete

defense.” Holmes v. South Carolina, 547 U.S. 319, 324 (2006). “While the Constitution

thus prohibits the exclusion of defense evidence under rules that serve no legitimate purpose

or that are disproportionate to the ends that they are asserted to promote, well-established

rules of evidence permit trial judges to exclude evidence if its probative value is outweighed

by certain other factors such as unfair prejudice, confusion of the issues, or potential to

mislead the jury.” Id. at 326-27. (“Plainly referring to rules of this type, we have stated that

the Constitution permits judges to exclude evidence that is repetitive, only marginally

relevant or poses an undue risk of harassment, prejudice, or confusion of the issues.”)

(quotations omitted).

¶53. Mississippi Rule of Evidence 611(b) allows wide open cross-examination of

witnesses, and Rule 616 allows evidence of bias for the purpose of attacking the credibility

of a witness. McFarland v. State, 707 So. 2d 166, 176 (¶ 33) (Miss. 1997); see also Meeks

23

v. State, 604 So. 2d 748, 755 (Miss. 1999). For purposes of attacking the credibility of a

witness under Rule 616, evidence of bias, prejudice, or interest of the witness “includes

interrogating the witness’s belief or perception as to whether the State could extend leniency

for pending charges.” Anthony, 108 So. 3d at 397 (¶ 6).

¶54. At the time of trial,11 Rule 616 provided: “For the purpose of attacking the credibility

of a witness, evidence of bias, prejudice, or interest of the witness for or against any party

to the case is admissible.” M.R.E. 616. However, “Rule 616 must be interpreted as it relates

to other rules of evidence, particularly [Rules] 104, 401 and 402.” Tillis v. State, 661 So. 2d

1139, 1142 (Miss. 1995). “Rule 616 states the general rule of admissibility of such evidence

subject to the trial court finding, in the exercise of its discretion under [Rule] 104, that it is

relevant, under [Rules] 401 and 402, to the specific facts in the case.” Id. Rule 40112

provided: “‘Relevant Evidence’ means evidence having any tendency to make the existence

of any fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” M.R.E. 401. Rule 40213 provided: “All

relevant evidence is admissible, except as otherwise provided by the Constitution of the

11

In 2016, the language of Rule 616 was amended as part of the general restyling of

the evidence rules. Rule 616 now provides: “Evidence of a witness’s bias, prejudice, or

interest – for or against any party – is admissible to attack the witness’s credibility.” M.R.E.

616.

12

In 2016, the language of Rule 401 was amended as part of the general restyling of

the evidence rules.

13

In 2016, the language of Rule 402 was amended as part of the general restyling of

the evidence rules.

24

United States, the Constitution of the State of Mississippi, or by these rules. Evidence which

is not relevant is not admissible.” M.R.E. 402.

¶55. Here, the trial court ultimately found the evidence of Lee’s criminal past not relevant.

See M.R.E. 401, 402. However, the Court has emphasized that a material witness’s favored

treatment from law enforcement authorities when the witness is subject to prosecution is

probative of the witness’s interest or bias and may be developed through cross examination.

See, e.g., Anthony, 108 So. 3d at 397-98 (¶¶ 5-7); McFarland v. State, 707 So. 2d at 176 (¶¶

32-34); Suan, 511 So. 2d at 147-48 (Miss. 1987); Hall v. State, 511 So. 2d 144, 27-28 (Miss.

1985).

¶56. In general, “one accused of a crime has the right to broad and extensive

cross-examination of the witnesses against him, and especially is this so with respect to the

principal prosecution witness.” Suan, 511 So. 2d at 148. The right is secured by our rules

of evidence, namely Rule 611(b), and it is a function of the Confrontation Clauses of the

federal and state constitutions. Id. “Evidence that a material witness has received favored

treatment at the hands of law enforcement authorities, particularly where that witness is

himself subject to prosecution, is probative of the witness’[s] interest or bias and may be

developed through cross-examination or otherwise presented to the jury.” Id. at 147–48. We

specifically have held that “[a] leniency/immunity agreement may be presented to the jury

where such would tend to impeach or show bias in the testimony of a State’s witness.”

Barnes v. State, 460 So. 2d 126, 131 (Miss. 1984). In the context of the State failing or

refusing to disclose witness leniency and immunity agreements, “the law is clear that the

immunity deal must be disclosed to the defense.” Barnes, 460 So. 2d at 131.

25

¶57. The record fails to show that a leniency or immunity agreement had been struck with

Lee and the State in regard to the nonadjudicated burglary or armed robbery arrest. Indeed,

Ambrose did not argue at the trial level or in its initial brief on appeal that the State had

failed or refused to disclose a leniency or immunity deal to the defense in violation of our

holding in Barnes. Id. The only actual leniency or immunity agreement between the State

and Lee demonstrated in the record was the deal he had cut with investigators to serve as a

witness in the present case rather than be charged for his involvement in the events leading

to Trosclair’s murder. Evidence of the deal was disclosed at trial during Lee’s cross-

examination.

¶58. In direct conflict with a leniency or immunity deal, the record shows that the State

actually pursued Lee’s armed robbery charge, but the grand jury returned a no true bill. The

record also suggests that the State sought revocation of Lee’s nonadjudication, although the

basis of the revocation and ultimate disposition are unclear. On appeal, the State argues that

“presumably, the [trial] judge denied revocation.” In contrast, Ambrose claims that, although

the State filed revocation proceedings, it “abandoned” the revocation of Lee’s

nonadjudication probation sentence. To the extent that Ambrose is arguing for the first time

that the State failed or refused to disclose a leniency or immunity deal to Ambrose, that

argument has been waived and simply is not supported by the record. See Hansen v. State,

592 So. 2d 114, 127 (Miss. 1991) (holding that the Court must decide each case by the facts

shown in the record, not assertions in the brief); Evans v. State, 725 So. 2d 613, 632 (¶ 2)

(Miss. 1997) (holding that issues that were not presented to the trial court therefore are

procedurally barred, and error, if any, is waived).

26

¶59. The State maintains that Ambrose’s entire argument hinges on the premise that the

jury could have inferred that the State promised leniency by not seeking revocation of Lee’s

probation and not charging him in the armed robbery case, or that the charges were leveraged

over Lee in exchange for his testimony. The State argues that the trial court properly

excluded the evidence of Lee’s criminal past because both charges against him had been

resolved prior to Ambrose’s trial; therefore, nothing existed for the State to leverage against

Lee to make him a biased witness in favor of the State. The State claims that Lee had

completed his nonadjudicated probation at the time of trial and his testimony.

¶60. However, although it is unclear whether Lee’s probation sentence was three or five

years, the record shows that Lee was on probation at the time of trial because the State

represented at the motion in limine hearing that Lee was still on probation. Regardless, it is

undisputed that Lee was subject to revocation at the time of his interview and for some time

thereafter. Ambrose is correct that, although Lee’s armed robbery charge was no true billed,

he remained subject to have the armed robbery charge presented to the grand jury again.

¶61. In Suan, the defendant sought to show that a witness had been involved in criminal

activity but had not been prosecuted. Suan, 511 So. 2d at 148. Specifically, the defendant

sought to establish that the witness had a motive for testifying falsely, and that if he did not

testify falsely, he would be subject to parole revocation proceedings and returned to prison.

Id. at 147. The Court noted that the witness’s “neck was on the line if he did not testify in

a manner pleasing to the prosecution.” Id. at 148. The Court held that the trial court had

erred when it refused to allow such cross-examination because the witness was the principal

27

witness for the State, and because so much of the prosecution’s case turned upon his

credibility. Id.

¶62. Likewise, in McFarland, the defendant argued that the trial court had erred by

refusing to allow defense counsel to question a witness fully regarding any favorable

treatment by the State so as to demonstrate the witness’s possible bias in testifying for the

State. McFarland, 707 So. 2d at 176 (¶ 32). The Court recognized that defense counsel may

have had a colorable argument that he should have been permitted to question the witness

regarding any favorable treatment by the State. Id. at 176 (¶ 33). However, the defense

failed to make a proffer at trial or demonstrate on appeal or at trial that the witness was

subject to prosecution for the alleged criminal conduct. Id. at 176-77 (¶ 33). The Court held

that any error was not properly preserved for review because the defendant failed at trial to

make a proffer or even argue that the witness received favorable treatment from the State.

Id. at 177 (¶ 34).

¶63. In Hall v. State, 476 So. 2d 26, 27 (Miss. 1985), the defendant Johnny Hall was

indicted for armed robbery and sought to question a coindicted defendant (Dennis Smart) and

a witness (Elizabeth Hughes) about the separate, unrelated criminal charges pending against

both of them at the time of the defendant’s trial. The trial court forbade questioning Smart

and Hughes about their pending charges. Id. at 27. The Court examined Mississippi Code

Section 13-1-13, the controlling evidentiary statute at the time, which provided that “[a]ny

witness may be examined touching his interest in the cause or his conviction of any crime.”

Id. at 27-28. The Court recognized that such questioning has been allowed for purposes of

showing motivation to testify. Id. at 28 (citing Rouse v. State, 65 So. 501 (Miss. 1914);

28

Perry v. State, 64 So. 466 (Miss. 1914)). The Court rejected the State’s argument that the

existence of an immunity or leniency agreement had not been definitely established. Id. at

28. The Court held:

The circumstances of this case strongly support the admission of such

evidence. The state relied heavily on the testimony of Smart and Hughes.

Smart and Hughes were brother and sister, and may have colluded. Smart was

charged with the same crime as Hall. Both Smart and Hughes had criminal

charges pending against them at the time of the trial. Although there was no

evidence of a bargain, they might well have believed that their testimony in

Hall’s case could somehow affect the disposition of their own. It would be

naive to suppose that the absence of a formal agreement with the prosecution

precluded such an expectation. Smart and Hughes had an “interest in the

cause” (to use the statutory language), and fuller inquiry into it should have

been allowed. We believe that the trial judge’s decision on this point

prevented Hall from presenting his defense effectively, and thus deprived him

of a fair trial. Accordingly, this case must be reversed and remanded for a new

trial.

Hall, 476 So. 2d at 28.

¶64. The State argues that, unlike Suan and McFarland, where the witnesses had not been

prosecuted, the State actually pursued charges against Lee. However, Suan and McFarland

lend support to Ambrose’s position because Lee may have been subject to probation

revocation proceedings for a number of reasons, not just his armed robbery arrest, as

presumed by the trial court. Although the jury heard that Lee chose to be a witness rather

than a defendant in the present case, Ambrose’s chief argument is that it did not hear that Lee

also had an additional reason to be a witness, i.e., the possibility of probation revocation.

¶65. Aside from the obvious distinction that the evidentiary statute controlled in Hall, the

State argues that Hall may be distinguished because Lee had no charges pending at the time

of Ambrose’s trial. The State argues that the jury could not have inferred that Lee was given

29

leniency in exchange for testimony because the State sought revocation and presented the

armed robbery case to the grand jury. The State argues that the charges were “fully resolved

by the time Lee testified at Ambrose’s trial.” As suggested by Ambrose, certain terms of his

revocation may have included his arrest or involvement in the case sub judice or his

association with alleged convicted felon Dedeaux. At the time he was interviewed by

investigators, Lee certainly was subject to prosecution. Moreover, the record shows that Lee

continued to be subject to prosecution through trial. The State admitted that Lee was “still

on non-adjudicated probation” at the motion in limine hearing on June 11, 2015.

¶66. Here, Lee was a principal witness in the sense that he was an eyewitness to nearly

the entire sequence of events leading to Trosclair’s death on April 7, 2013. We explained

in Suan:

The impeachment sought here, however, was not of that sort. Here the defense

sought to show that Eddie Grammer had been involved in criminal activity but

had not been prosecuted. The point was that Grammer’s neck was on the line

if he did not testify in a manner pleasing to the prosecution. This Suan was

entitled to show—or at least to attempt to show. The Circuit Court erred when

it refused to allow such cross-examination. Because Grammer was the

principal witness for the State, and because so much of the prosecution’s case

turned upon his credibility, the error is of reversible proportions.

Suan, 511 So. 2d at 148.

¶67. In the same way, Lee’s neck was on the line at the time he was interviewed by police

and through trial. Although Lee’s testimony was not necessary to finding Ambrose guilty

of capital murder beyond a reasonable doubt, as further explained below, we hold that, under

the heightened scrutiny standard of review, the trial court erred by excluding the evidence.

30

By limiting Ambrose’s cross examination of Lee, the trial court denied Ambrose the

opportunity to fully challenge Lee’s credibility.

¶68. Alternatively, the State argues that, even if the evidence was admissible under Rule

616, it was properly excluded under Rules 611(a) and 403. While the State may be correct

that the evidence may have been properly excluded under Rule 403, the trial court did base

its decision to exclude the evidence on Rule 403. Here, the trial court erroneously concluded

that the evidence of bias was not relevant, as we have held that similar testimony is probative

of the witness’s interest or bias. See Anthony, 108 So. 3d at 397-98 (¶¶ 5-7); McFarland,

707 So. 2d at 176 (¶¶ 32-34); Suan, 511 So. 2d at 147-48 (Miss. 1987); Hall, 476 So. 2d at

27-28. We decline to conduct a Rule 403 balancing analysis for the first time on appeal.

C. Harmless Error

¶69. The State argues that, even if cross-examination regarding Lee’s criminal past should

have been permitted, the trial court’s exclusion of the evidence was harmless beyond a

reasonable doubt. Ambrose argues that, in light of his own testimony, no overwhelming

evidence of guilt exists to render harmless the trial court’s error in restricting the

impeachment of Lee.

¶70. “[E]ven errors involving a violation of an accused’s constitutional rights may be

deemed harmless beyond a reasonable doubt where the weight of the evidence against the

accused is overwhelming.” Clark v. State, 891 So. 2d 136, 142 (¶ 29) (Miss. 2004). “The

well-settled standard for determining whether a constitutional error is harmless is whether

it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the

verdict obtained.’” Gillett v. State, 148 So. 3d 260, 266 (Miss. 2014) (quoting Chapman v.

31

California, 386 U.S. 18, 23-24 (1967)). The constitutionally improper denial of a

defendant’s opportunity to impeach a witness for bias, like other Confrontation Clause errors,

is subject to harmless error analysis under Chapman. In Clark, we explained:

The correct inquiry is whether, assuming that the damaging potential of the

cross-examination were fully realized, a reviewing court might nonetheless say

that the error was harmless beyond a reasonable doubt. Whether such an error

is harmless in a particular case depends upon a host of factors, all readily

accessible to reviewing courts. These factors include the importance of the

witness’[s] testimony in the prosecution’s case, whether the testimony was

cumulative, the presence or absence of evidence corroborating or contradicting

the testimony of the witness on material points, the extent of cross-examination

otherwise permitted, and, of course, the overall strength of the prosecution’s

case.

Clark, 891 So. 2d at 142 (¶ 29) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684

(1986)).

¶71. The State argues that it proved Ambrose was guilty beyond a reasonable doubt without

Lee’s testimony. We agree. Ambrose admitted to fighting Trosclair at the Hill, driving him

to Lawton’s house, chasing down Trosclair, and beating Trosclair again. At the Hill, Sims

testified that she saw Ambrose beating Trosclair, who was not fighting back. Sims testified

that she begged Ambrose to stop beating Trosclair, but he refused. Sims also testified that

Ambrose instructed Stevie, Dedeaux, and Lee to put Trosclair in the truck before they left.

Sims testified that they complied with Ambrose’s instructions. Although Ambrose claimed

Trosclair did not go anywhere against his will, Ambrose admitted telling Trosclair that, once

he received his speakers, he “wasn’t going to mess with him anymore.”

¶72. At Lawton’s house, Lawton testified that he saw Trosclair try to run away, but Stevie,

Dedeaux, and Ambrose chased him down. Lawton testified that they began beating

32

Trosclair. Lawton testified that Ambrose hit Trosclair with a fully inflated tire with rim.

Ambrose admitted that all of them were beating Trosclair after they chased him down.

Ambrose also admitted that the reason everyone was beating Trosclair was because Ambrose

was angry about Trosclair breaking into his car.

¶73. A passing motorist discovered an unconscious Trosclair on the side of the road

nearby. Trosclair had significant injuries and was tied up with a ratchet tow strap. Without

Lee’s testimony, Ambrose’s guilt was proven beyond a reasonable doubt. Thus, we conclude

that the error excluding evidence of Lee’s criminal past was harmless beyond a reasonable

doubt.

II. WHETHER THE SOLE FINDING BY THE JURY THAT AMBROSE

“CONTEMPLATED THAT LETHAL FORCE WOULD BE EMPLOYED”

UNDER MISSISSIPPI CODE SECTION 99-19-101(7) IS

CONSTITUTIONALLY SUFFICIENT.

¶74. Ambrose argues that his death sentence is invalid because, by itself, the Section 99-

19-101(7) sentence eligibility factor found by the jury that Ambrose “contemplated that lethal

force would be employed” is constitutionally insufficient under Enmund v. Florida, 458

U.S. 782 (1982), and Tison v. Arizona, 481 U.S. 137 (1987). The State responds that the

jury’s sole finding that Ambrose contemplated that lethal force would be employed satisfies

Section 99-19-101(7). The Court repeatedly has held the finding to be constitutional.

¶75. In Enmund, the United States Supreme Court concluded: “Because the Florida

Supreme Court affirmed the death penalty in this case in the absence of proof that Enmund

killed or attempted to kill, and regardless of whether Enmund intended or contemplated that

life would be taken, we reverse the judgment upholding the death penalty and remand for

33

further proceedings not inconsistent with this opinion.” Enmund, 458 U.S. at 801.

“Following Enmund v. Florida, Mississippi amended its capital sentencing scheme to

require that a jury must find that the defendant actually killed, attempted to kill, intended that

a killing take place, and/or contemplated that lethal force would be employed in order to

return and impose a sentence of death. Ch. 429, Senate Bill No. 2699, 1983 General Laws

of Mississippi.” Dickerson v. State, 175 So. 3d 8, 32 (¶ 79) (Miss. 2015) (citing Miss. Code

Ann. § 99-19-101(7)).

¶76. In Tison, the Supreme Court held “that major participation in the felony committed,

combined with reckless indifference to human life, is sufficient to satisfy the Enmund

culpability requirement.” Tison, 481 U.S. at 158. “In Tison, the [Supreme] Court noted that

Mississippi had modified the capital murder sentencing scheme following Enmund.”

Dickerson, 175 So. 3d at 32 (¶ 79) (citing Tison, 481 U.S. at 152, n.4).

¶77. Section 99-19-101(7) provides:

(7) In order to return and impose a sentence of death the jury must make a

written finding of one or more of the following:

(a) The defendant actually killed;

(b) The defendant attempted to kill;

(c) The defendant intended that a killing take place;

(d) The defendant contemplated that lethal force would be

employed.

Miss. Code Ann. § 99-19-101 (Rev. 2015).

34

¶78. The jury was duly instructed in accordance with Section 99-19-101(7): “To return the

death penalty in this case you must first unanimously find from the evidence beyond a

reasonable doubt that one or more of the following facts existed: 1. That the Defendant

actually killed Robert Trosclair; 2. That the Defendant attempted to kill Robert Trosclair; 3.

That the Defendant intended the killing of Robert Trosclair take place; or, 4. That the

Defendant contemplated that lethal force would be employed.”

¶79. Following the penalty phase of the trial, the jury returned the verdict:

We, the Jury, unanimously find from the evidence beyond a reasonable doubt

that the following facts existed at the time of the commission of the Capital

Murder.

Section A:

That the Defendant contemplated that lethal force would be

employed.

Next we, the jury, unanimously find that the aggravating circumstances of:

1. The Capital offense was committed when the Defendant

was engaged in the commission of, or an attempt to

commit, or flight after committing or attempting to

commit, a Kidnapping.

2. The Capital offense was especially heinous, atrocious or

cruel.

Exists beyond a reasonable doubt and is sufficient to impose the

death penalty and that there are insufficient mitigating

circumstances to outweigh the aggravating circumstances, and

we further find unanimously that the Defendant should suffer

death.

¶80. We have held that the State must prove only one of the four facts listed in Section 99-

19-101(7). Stevens v. State, 806 So. 2d 1031, 1053 (¶ 99) (Miss. 2001). Indeed, Section 99-

35

19-101(7) requires that only one of the factors be found to support a death sentence. Id.

(citing Smith v. State, 729 So. 2d 1191, 1218-19 (Miss. 1998); Bell v. State, 725 So. 2d 836,

860-61 (Miss. 1998)). We also have held that “[i]n compliance with Enmund, Section 99-

19-101(7) of the Mississippi Code requires the jury to find beyond a reasonable doubt at least

one of the four enumerated scienter factors before imposing the death penalty.” Ronk v.

State, 172 So. 3d 1112, 1145 (¶ 91) (Miss. 2015).

¶81. Recently, we addressed whether the scienter provisions of Mississippi’s capital

sentencing scheme are constitutional. In Evans v. State, 226 So. 3d 1, 39 (¶ 106) (Miss.

2017), the capital murder defendant argued that Section 99-19-101(7)(d), which requires that

the jury find the defendant contemplated that lethal force would be employed, is an

unconstitutional basis for a person convicted of capital murder to be sentenced to death under

Enmund and Tison.

¶82. In Evans, we rejected the same constitutional argument that Ambrose makes today

and held that Section 99-19-101(7)(d)’s scienter provision was constitutional. Evans, 226

So. 3d at 39 (¶ 106). Likewise, in Corrothers v. State, we held that Section 99-19-101(7)(d)

was constitutional because the State must prove only one of the four facts; it is not necessary

that the State prove intent where the victim actually was killed. Corrothers, 148 So. 3d at

322 (¶ 126).

¶83. As noted by the State, the Court repeatedly has held Section 99-19-107(7)(d) to be

constitutional in capital cases. See Evans v. State, 725 So. 2d 613, 683-84 (¶¶ 311-316)

(Miss. 1997) (holding that, in light of Enmund and Tison, a critical review of our capital

sentencing scheme reveals no constitutional infirmities); see also Ronk, 172 So. 3d at 1145

36

(¶¶ 91-92); Cox v. State, 183 So. 3d 36, 61 (¶ 91) (Miss. 2015); Batiste v. State, 121 So. 3d

808, 871-72 (¶¶ 177-178) (Miss. 2013); Knox v. State, 901 So. 2d 1257, 1268 (¶¶ 38-39)

(Miss. 2005); Lockett v. State, 517 So. 2d 1317, 1338 (Miss. 1987). Ambrose acknowledges

that the Court has declined to declare Section 99-19-101(7)(d) unconstitutional on a number

of occasions, but urges the Court to revisit its prior holdings because the constitutionality of

a sentence with the sole finding that the “defendant contemplated that lethal force would be

employed” has never been squarely before the Court.

¶84. Ambrose also quotes the Court in Dickerson: “Under Enmund and Tison, a defendant

who participated in the commission of a felony, but did not actually kill or intend to kill the

victim, cannot receive the death penalty.” Dickerson, 175 So. 3d at 31-32 (¶ 79). However,

the Dickerson Court, relying on Evans, confirmed that Section 99-19-101(7) was

constitutional. Id. at 31-33 (¶¶ 78-79) (citing Evans, 725 So. 2d at 683 (¶¶ 311-316)).

¶85. Ambrose also recognizes that the Court has affirmed a death sentence in which the

trial court, sitting as the fact finder, made the sole finding that the capital murder defendant

had contemplated that lethal force would be used. See Bishop v. State, 812 So. 2d 934, 937

(¶¶ 1) (Miss. 2002). In addressing the sufficiency of the evidence on appeal, we held, at a

minimum, the defendant had contemplated that lethal force would be used and had taken an

active role in the killing. See id. at 948-49 (¶¶ 48-52) (“A jury could have easily found that

Bishop killed, intended to kill, or at least contemplated that deadly force would be used.”).

Although Ambrose does not raise a sufficiency of the evidence argument, the evidence here

was sufficient to satisfy Enmund culpability, given Ambrose’s major participation of the

kidnapping, combined with reckless indifference to human life.

37

¶86. In support of Ambrose’s argument, he relies on Randall v. State, 806 So. 2d 185, 232-

234 (¶¶ 132-141) (Miss. 2001), in which the jury made the sole finding that Armon Randall

had contemplated that lethal force would be employed. Relying on White v. State, 532 So.

2d 1207 (Miss. 1988), Randall argued that the jury’s sole finding allowed him to be

sentenced to death on nothing more than tort forseeability. Randall, 806 So. 2d at 232 (¶

134). The Randall Court quoted what the Court wrote in White:

We are less than certain of the precise difference between Subsection (c), “the

defendant intended that a killing take place,” and Subsection (d), “the

defendant contemplated that lethal force would be employed.” Subsection (c)

has reference to the defendant’s mental purpose and design that someone’s life

be taken. But what of Subsection (d)’s contemplation of lethal force? The two

surely are not synonymous, although “contemplate” is one synonym for intend.

See Roget’s International Thesaurus § 653.7 (4th ed. 1977). This alone

excludes the notion that Subsections (c) and (d) describe two mutually

exclusive categories of culpability.

Careful attention to the King’s English, definitional and grammatical, [led] to

the view that Subsection (c) is subsumed in Subsection (d), for we cannot

imagine a case in which a defendant intended that a killing take place but

somehow did not contemplate use of lethal force. In this sense, Subsection

(c)’s “intended that a killing take place” is surplusage and may with profit be

set aside. But the converse is not necessarily so. One may contemplate lethal

force while stopping short of a definite plan or design to kill. In a sense,

Subsection (d) describes a contingent intent. Where, as a part of pre-crime

planning, a defendant includes in his plans the substantial probability that fatal

force will be employed, Subsection (d) is satisfied. On the other hand, mere

tort foreseeability–an objective, reasonable man approach–falls well short of

what the statute requires.

Randall, 806 So. 2d at 232 (quoting White, 532 So. 2d at 1220-21).

¶87. In Randall, the Court agreed with Randall’s argument “that because the jury found

‘contemplation’ alone, the language of White required the jury to find that he had some sort

of ‘pre-crime,’ ‘contingent intent,’ or plan that establishes a mental state beyond mere

38

foreseeability or reckless indifference to human life.” Id. at 233 (¶ 135). The Court held that

“[b]ecause the instruction failed to properly instruct the jury on the mental state required, this

instruction was erroneously given.” Id.

¶88. The Randall Court’s reliance on White was misplaced. First, the White Court was

addressing whether the evidence was legally insufficient to support a sentence of death, not

whether a sole Section 99-19-101(7)(d) finding was constitutional. White, 532 So. 2d at

1219-20. Second, the White Court unequivocally said: “More precisely, this sentence of

death may be upheld only if we have before us a record which contains evidence legally

sufficient that the jury may have found that Willie Lee White, Jr., killed, attempted to kill,

intended that a killing take place, or contemplated that lethal force would be employed.” Id.

at 1219 (emphasis added).

¶89. Indeed, “only one of Subsection (7)’s facts must be found.” Id. at 1220. “More

specifically, there is no evidence that White made any attempt to kill Lewis, or that he

contemplated that lethal force would be used.” Id. at 1221 (emphasis added). The White

Court continued: “Because nothing in the record legitimately suggests that White killed or

contemplated any physical harm to Lewis, the death verdict dies.” Id. at 1221. The Court

concluded: “In the present state of the record, we hold that the evidence was legally

insufficient to enable a rational trier of fact to find beyond a reasonable doubt that Willie Lee

White, Jr., killed, attempted to kill, intended that a killing take place, or contemplated that

lethal force would be employed.” Id. at 1222.

¶90. To the extent that Randall, purportedly relying on White, holds that a sole finding that

a capital defendant contemplated that lethal force would be employed is insufficient, it is

39

wrongly decided. White issues no such holding; rather, White stands for the proposition that

a death verdict may be upheld if the legally sufficient evidence supports a finding that the

defendant contemplated that lethal force would be used. Id. at 1221.

¶91. Even though Randall’s reliance on White is misplaced, Randall is distinguishable in

some significant ways. The State argues that Randall is different because there was no

evidence that Randall had participated in the killing, and proof of his participation in the

underlying robbery appeared to be no more than his possession of a gun and presence at the

scene. See Randall, 806 So. 2d at 233-34 (¶¶ 136-141). The State argues that the stark

difference is Ambrose’s level of involvement in both the kidnapping and the killing. The

State also points out that in Randall, the Court held that the evidence to support a finding that

Randall contemplated that lethal force would be employed was legally insufficient, whereas

here, Ambrose does not challenge the legal sufficiency of the evidence on the jury’s finding.

See id. at 234 (¶ 141) (“The mere possession of a gun when there is no evidence that there

was a plan to kill, although sufficient under the felony-murder statute, does not establish that

there was a “substantial probability that fatal force will be employed.”).

¶92. The Court’s decision in Abram v. State is somewhat at odds with Randall. See

Abram v. State, 606 So. 2d 1015, 1041-42 (Miss. 1992), overruled on other grounds by

Foster v. State, 961 So. 2d 670 (Miss. 2007) (a jury’s single statutory finding under Section

99-19-101(7) that the capital defendant contemplated that lethal force would be employed

is adequate if supported by sufficient evidence). In Abram, we looked to the White Court

for guidance and wrote:

40

In the federal context, there is little doubt that the evidence here is sufficient

to satisfy the Enmund culpability requirement given Abram’s “major

participation in the felony committed, combined with [the supportable finding]

of reckless indifference to human life.” Tison v. Arizona, 481 U.S. 137, 158,

107 S. Ct. 1676, 1688, 95 L. Ed. 2d 127, 145 (1987).

However, as noted in Tison, and affirmed in Minnick v. State, 551 So. 2d 77,

98 (Miss.1988), reversed on other grounds [by] 498 U.S. 146, 111 S. Ct. 486,

112 L. Ed. 2d 489 (1990), Mississippi by statute requires more in the

felony-murder scenario than major participation and reckless indifference to

the value of human life. [Tison,] 481 U.S. at 154, n.10, 107 S. Ct. at 1686,

n.10, 95 L. Ed. 2d at 142, n.10. And obviously, “mere tort foreseeability—an

objective, reasonable man approach—falls well short of what the statute

requires.” White v. State, 532 So. 2d 1207, 1221 (Miss.1988).

Abram, 606 So. 2d at 1041-42.

¶93. The Abram Court explained:

The circuit court was right to conclude that something more than a

“possibility” is required. But the [trial] court went too far in the other direction

when it concluded that there are only three tests under Enmund, and that under

§ 99–19–101(7), subsections (c) and (d) are conjunctive. The court at times

appeared to zero in on the precise meaning of subsection (d) by restricting its

application to those killings which are a “necessary or probable result of the

initial felony.” But the circuit court ultimately applied a more restricted

interpretation of § 99–19–101(7)(d) by requiring proof of actual intent to kill,

an interpretation which for all practical purposes blurs any distinction between

subsections (c) and (d) of § 99–19–101(7).

Abram, 606 So. 2d at 1042.

¶94. The Abram Court noted that we have articulated at least some difference between

subsections (c) and (d). Id. However, in Abram, we unequivocally rejected the idea that

“there must be proof in either case of an actual intent or definite plan or design to kill.” Id.

The Abram Court held that the trial court erred in its interpretation and application of Section

99-19-101(7)(d) to the facts of the case because the jury’s finding that Abram contemplated

the use of lethal force was within the permissible range of law and evidence. Id. at 1043.

41

However, the Court cautioned that, on remand, absent new admissible evidence sufficiently

implicating Abram, a finding under Section 99-19-101(70(d) would not be justified. Id.

Thus, although the Abram Court’s decision addressed the sufficiency of the evidence, it

properly held that a sole finding under Section 99-19-101(7)(d) would be justified if

supported by sufficient evidence. Id.

¶95. Again, Ambrose does not challenge the sufficiency of the evidence. To the extent he

does, the argument is without merit. For the foregoing reasons, we reaffirm the well settled

principle that a sole finding under Section 99-19-101(7)(d) is constitutional.

III. WHETHER THE TRIAL COURT ERRED IN THE SEATING OR REMOVAL

OF CERTAIN JURORS.

¶96. Ambrose argues that the trial court reversibly erred by (1) seating Juror Gary Garner,

an admittedly biased juror who served in both phases of trial; (2) and improperly removed

Juror Jeffrey Jenkins, an unbiased juror, and replaced him with an alternate at the conclusion

of the penalty phase evidence.

A. Juror Gary Garner

¶97. During voir dire, the trial court asked whether any jurors or their family members

currently or have been in the past connected with law enforcement. Eleven potential jurors

answered in the affirmative, including Garner. The entire exchange between Garner and the

trial court is set out below:

THE COURT: Mr. Garner?

MR. GARNER: Yes.

THE COURT: There you are.

42

MR. GARNER: My son is a supervisor with Biloxi PD.

THE COURT: Is he now?

MR. GARNER: Now, yes, Sir.

THE COURT: Okay. You’ve got a real close connection with law

enforcement. Does he discuss cases with you and his

job?

MR. GARNER: There are some things that he and I discuss as his pastor

that we have discussed, and there are situations that I am

aware of that he is involved in, yes.

THE COURT: Okay. Would the fact that you take an interest in his job,

and he is active in law enforcement at this time, would

that cause you maybe to lean toward the law enforcement

side of this case?

MR. GARNER: Yes, sir. I’m actively involved in his life, not his work.

THE COURT: Not his work, okay. Good. Thank you.

MR. GARNER: Yes, sir.

¶98. Ambrose did not follow up with Garner on the issue of bias. Garner was accepted by

Ambrose without a challenge for cause or exercising a peremptory strike and was seated on

the jury.

¶99. Ambrose argues that Garner’s response to the question asking whether he would

maybe lean toward the law enforcement side of the case was an admission that he was biased.

Ambrose relies on Brown v. State, 164 So. 3d 1046 (Miss. Ct. App. 2014), in support of his

argument. Ambrose’s reliance on Brown is misplaced for two reasons. First, the bias was

unequivocal because the juror stated “it would be hard to be impartial.” Brown, 164 So. 3d

at 1048 (¶¶ 3-4). Second, the issue was addressed within the context of a claim for

43

constitutional ineffective assistance of counsel for failing to challenge the allegedly biased

juror. Id. at 1051 (¶ 12).

¶100. Ambrose urges the Court to review the issue for plain error because his fundamental

right to a fair trial by an impartial jury has been violated. “As a rule, the Supreme Court only

addresses issues on plain error review when the error of the trial court has impacted upon a

fundamental right of the defendant.” Dora v. State, 986 So. 2d 917, 924 (¶ 17) (Miss. 2008).

“The right to a fair trial by an impartial jury is fundamental and essential to our form of

government. It is a right guaranteed by both the federal and state constitutions.” Carr v.

State, 655 So. 2d 824, 840 (Miss. 1995). “Plain-error review is properly utilized for

‘correcting obvious instances of injustice or misapplied law.’” Armstead v. State, 196 So.

3d 913, 916 (¶ 11) (Miss. 2016). “To determine if plain error has occurred, we must

determine if the trial court has deviated from a legal rule, whether the error is plain, clear or

obvious, and whether the error has prejudiced the outcome of the trial. Id.

¶101. In Archer v. State, 986 So. 2d 951, 958 (¶ 27) (Miss. 2008), the Court, without

discussing whether plain error review was employed, addressed the defendant’s argument

that a juror should have been removed by the trial court sua sponte during voir dire due to

the juror’s relationship with the victim and her circumstance as a victim herself. First, the

Court held that the issue was procedurally barred by the failure to object to the potential

juror’s competence to sit before the jury was empaneled. Id. at 958 (¶ 28). Next, the Court

held that in limited circumstances, the Court will set aside the procedural bar and reverse

when it is clear that a juror disqualified under Mississippi Code Section 13-5-67 was not

removed before the jury retired to consider its verdict. Id. The Court went on to address the

44

substantive arguments advanced by the defendant, holding that the defendant’s claim was

without merit and the trial court did not err by not sua sponte removing the juror. Id. at 959

(¶ 959).

¶102. In Archer, we also held that “[a] party who chooses not to challenge a juror

peremptorily when he has unused challenges may not thereafter seek to put the trial court in

error because the court declined to permit the juror to be challenged for cause.” Archer, 986

So. 2d at 957-58 (¶ 26); see also Hansen v. State, 592 So. 2d 114, 129 (Miss. 1991). “To

hold otherwise would allow the defendant to invite error and later take advantage of it on

appeal.” Archer, 986 So. 2d at 957-58 (¶ 26) (citing Hansen, 592 So. 2d 129–30).

¶103. Here, we decline to employ plain error review because Ambrose had used only four

peremptory strikes at the time Garner was tendered and Ambrose accepted him. At the

conclusion of jury selection, Ambrose had four unused peremptory challenges. Thus, the

trial court’s failure to remove Garner does not constitute reversible error under the well

settled rule that a party who chooses not to challenge a juror peremptorily when he has

unused challenges may not thereafter seek to put the trial court in error because the court

declined to permit the juror to be challenged for cause. Archer, 986 So. 2d at 957 (¶ 26).

¶104. Even assuming that Garner’s response may be construed as demonstrating bias, the

Eighth Circuit Court of Appeals14 has addressed a nearly identical scenario with the same

14

Ambrose relies on a different Eighth Circuit opinion in Johnson v. Armontrout,

961 F. 2d 748, 755-56 (8th Cir. 1992) (holding harmless error analysis does not apply in an

ineffective assistance of counsel claim for failure to challenge a juror for cause because the

presence of a biased jury is no less a fundamental structural defect than the presence of a

biased judge). Ambrose’s reliance on the Armontrout opinion is misplaced because (1) the

claim was for ineffective assistance of counsel, and (2) the case turned on whether harmless

45

procedural posture. In United States v. Johnson, 688 F.3d 494, 500-01 (8th Cir. 2012), the

Court was faced with the issue of whether “whether the empaneling of Juror S.R., who

admitted there ‘might be a possibility’ she would find law enforcement officers more credible

than other witnesses, violated Johnson’s Sixth Amendment right to be tried by an impartial

jury[.]” The Court of Appeals declined to employ plain error review on appeal when

reviewing a scenario in which the defendant failed to object to the seating of a juror during

voir dire when the basis for the objection was then known. Id. at 500. The Court of Appeals

wrote that the “failure to object at the time the jury is empaneled operates as a conclusive

waiver if the basis of the objection is known or might have been known or discovered

through the exercise of reasonable diligence.” Id. at 501. The reasoning for the rule is

simple: “if a defendant is allowed to forego challenges for-cause to a biased juror and then

allowed to have the conviction reversed on appeal because of that juror’s service, that would

be equivalent to allowing the defendant to plant an error and grow a risk-free trial.” Id. at

501-02.

¶105. Here, on appeal, Ambrose argues that Garner was biased based solely on his response

when asked if his relationship with his policeman son would cause him to “maybe lean

toward the law enforcement side of this case.” Undoubtedly, the basis for the objection that

Ambrose now advances was known during voir dire. We follow the guidance of the Court

of Appeals in Johnson and decline to employ plain error review. Ambrose waived his right

to challenge the seating of allegedly biased Juror Garner by not challenging him during voir

error analysis applied.

46

dire, because the basis for the objection was then known. See Johnson, 688 F.3d at 500

(holding that by failing to object to the seating of the allegedly biased juror during voir dire,

the defendant intentionally relinquished or abandoned a known right).

¶106. As to the merits, the State argues that it is “painfully obvious” that Garner’s

substantive answer to the question of whether his relationship would cause him to lean

toward the law enforcement side of the case was “no” even though he led in with “yes, sir.”

The State also argues that the trial court’s followup statement, “Not his work, okay. Good.

Thank you[,]” confirms that the trial court understood Garner to be answering the question

in the negative. Furthermore, the State points out how Garner responded to the trial court’s

follow up statement with “Yes, sir,” which was not an actual response to a question. The

State argues that the record demonstrates that neither the trial court nor Ambrose perceived

Garner’s response as demonstrating bias. The State’s interpretation of the record is

persuasive, and thus, we cannot say that evidence of bias is plain and obvious, based on a

reading of the entire exchange in context.

B. Juror Jeffrey Jenkins

¶107. Ambrose argues that the trial court reversibly erred at the conclusion of the penalty

phase evidence when it removed Juror Jeffrey Jenkins, who asserted his lack of bias, and then

compounded the error by replacing him with an alternate rather than granting a mistrial.

During jury selection, Jenkins responded that he knew Ambrose’s uncle, Mark Turner. The

exchange was as follows:

MR. JENKINS: Yes, sir. In reference, when she was mentioning Mark

Turner, I also know him by Pastor Turner, but I know

him.

47

THE COURT: I see. Okay, would the fact that your pastor is going to

testify in this case cause you to automatically lean toward

the side that he testifies for?

MR. JENKINS: He is not my pastor, your Honor. No, sir. His nephew

and me were real good friends when we were young.

THE COURT: Okay. Would that have any effect on you?

MR. JENKINS: No, sir. When she mentioned that I was like that is the

same pastor. I just want to be truthful. That’s all.

¶108. Jenkins ultimately was seated on the jury without a challenge for cause lodged by the

State or Ambrose. Jenkins remained on the jury through the culpability phase of trial,

returned a guilty verdict, and heard the testimony presented during the penalty phase. During

the penalty phase, Ambrose called several family members and friends to testify on his

behalf.

¶109. During a recess following the conclusion of the mitigation witnesses’ testimony, but

before the jury was instructed, a juror submitted a note disclosing his personal relationship

with Ambrose’s family. The note read: “I cannot sit on the penalty phase of the trial due to

my personal relationship with the defendant’s family. Jeffrey Jenkins.” Ambrose suggested

to the trial court that counsel “should voir dire him, find out what his relationship is, and it

may be that it doesn’t amount to anything.” Then Ambrose moved for a mistrial on the basis

that the juror had misinformed the trial court and he should not have been on the jury at all.

The trial court brought in Jenkins and allowed voir dire. Jenkins gave the following

testimony:

48

Q. Mr. Jenkins, you sent out a note stating that you could not sit in on the

punishment phase of this trial because you’re related to someone. Is

that true?

A. No, my personal relationship is with the defendant’s father’s side of the

family.

Q. Personal relationship with the defendant’s father’s side of the family?

A. Yes.

Q. Are you talking about Willie Dedeaux or Mark Turner?

A. Mark Turner.

Q. Okay. Do you know the defendant?

A. After the testimony, I knew him when he was a young child. Because

when I first were in the Jury pool when you asked did anybody know

Mark Jackson–not Mark Jackson, Mark Turner, I raised my hand, said

I knew him as Pastor Turner. I’m good friends with his nephew. So I

didn’t realize until the penalty phase when they came up and mentioned

Luke Turner I realized at that time that at the time when his father was

killed I was staying -- I was still good friends with his cousins Sam and

Jonathan. And I remember Rahim as a young child when he came

through. I say he was around two or three, you know, so many years

ago, he would come by and visit his grandmother.

Q. So at the time that we were doing the voir dire when you were sitting

out front and we were picking Jurors –

A. Yes, sir.

Q. -- you didn’t realize that you were related to Rahim in some way?

A. I’m not related to him. I didn’t realize who Rahim’s father was.

Rahim’s father’s last name is Turner. When you asked did I know

Mark Turner, I raised my hand, said yes, I do know Mark Turner. But

I didn’t realize until we came up to the penalty phase and they

mentioned that his father was Luke Turner, at that time I’m like, I know

Luke. And when Mark came up and I realized that they were brothers,

because at the time when you was asking the jury pool, you never asked

49

was Mark and Luke brothers. If you would have said that, I would

have said yes, sir.

Q. You knew Luke Turner, Junior?

A. I knew Luke, too.

Q. How old are you?

A. I’m 44.

Q. Okay. Well, you were very young when you knew Luke Turner, senior,

weren’t you?

A. I was very young. But as I stated, I was good friends with his -- which

is the defendant’s cousin, would be with Jonathan, Rahim and Sam

Turner. And I’m still good friends with them today. But I was very

young, yes, but I happened to be, if he was two, I happened to be

twelve at that time.

Q. Well, do you think you can’t be fair and impartial in this?

A. In the penalty phase?

Q. Yeah –

A. I don’t feel comfortable. I can be fair and impartial, as I stated. I still

stand by my original verdict. But as far as what the penalty phase, I just

wanted to make it be known and be truthful that I knew the family.

And, you know, I have been with my Jurors for the last three or four

days, and I just wanted to be truthful to the court to say, hey, I know

Mark Turner. I knew the defendant as he came along. But, your

Honor, I didn’t want to be, like, I was hiding some type of secret,

because I don’t feel comfortable sitting in there, and I got this

background, unfair background to say I know this man. So I just

wanted to be honest. As I stated, when I did in the beginning, I just

wanted to be honest, say, hey, I know him. I don’t want it to come

back either way, because if I didn’t make this be known, you know, to

me it gives the defendant an unfair advantage because I got a personal

relationship with Mark, Ms. Bernice, Jonathan, Sam, Sherrell. I know

the whole family. Like I said, your Honor, we stay –

Q. You didn’t recognize the name Rahim?

50

A. No. I knew a lot of -- I know a lot of different people with

Q. Ambrose?

A. No, I don’t know Ambrose. Like I said, I know a lot of different people

with Masonic names, because his cousin Wajida, they got Masonic

names. I didn’t recognize Rahim. I haven’t seen him since he was two.

Q. Well, you don’t think you could be fair and impartial in deciding what

his punishment should be?

A. I mean, yeah, I can be fair and impartial. But as my note said, I didn’t

feel comfortable going into that situation without advising the court and

the judge and things like that. I didn’t feel comfortable to go in that

situation with my jurors to keep this secret that I knew the defendant,

and I knew Mark. I mean, you can ask me history about the family, I

know it.

Q. Have you discussed this with any jurors?

A. No. So none of the other Jurors know about this?

A. I mean, I discussed with them that I was coming out because of my

personal relationship. And I told the foreman that I need to write a note

advising the jury that I know the defendant. I don’t know the

defendant, but I know the defendant’s immediate family.

Q. So you told the other jury members about that, at least some of them?

A. Yeah. I wrote the note. They knew why I was coming out, yes.

Q. You say they, who are you talking about?

A. I mean, we were all in the room. They knew the reason why I was

stepping out because I wrote the note.

Q. The other thirteen people in there know why you’re in here now?

A. Yes, sir.

¶110. The trial court then heard arguments for and against the grant of a mistrial.

Ambrose’s counsel spoke to the concern about Jenkins’s possible influence on the other

51

jurors and what Jenkins may have told the other jurors about Ambrose’s family. The trial

court asked what prejudice Ambrose would suffer if the juror was removed. Ambrose’s

counsel responded that “We don’t know. We don’t have any firm information one way or

the other regarding this man. Quite frankly, part of our team thinks he is a positive influence.

And others are uncertain, and you know it’s one of those deals.” The trial court denied the

motion for a mistrial and then heard from counsel whether Jenkins should be removed and

replaced with an alternate.

¶111. The State argued that Jenkins should be removed because he had indicated that his

personal relationship with Ambrose’s family would give Ambrose an unfair advantage.

Ambrose’s counsel responded, “I can’t deny what he said, your Honor. He did, in fact, say

that. I would like to see him stay on the jury.” The trial court determined that, based on the

note and Jenkins’s testimony that continuing to serve would be an unfair advantage to

Ambrose, Jenkins should be removed from the jury. Jenkins was removed and replaced with

the first alternate Juror Glen Turner.

¶112. The standard of review for the denial of a mistrial is abuse of discretion. Hutto v.

State, 227 So. 3d 963, 984 (¶ 66) (Miss. 2017). “A trial judge need declare a mistrial only

when there is an error in the proceedings resulting in substantial and irreparable prejudice to

the defendant’s case.” Id. Ambrose argues that the Court should employ a de novo standard

of review because the denial of the mistrial violated the Constitution.

¶113. This Court disagrees with Ambrose’s proposed standard of review because neither

case cited by Ambrose employs a de novo standard of review to the present scenario. As

discussed more fully below, the Court addressed a nearly identical issue recently and held

52

that the trial court’s decision to dismiss a juror for good cause and substitute an alternate is

reviewed for an abuse of discretion. See Evans, 226 So. 3d at 25 (¶ 55). Moreover, the

Court held that a defendant must show actual prejudice from the exclusion and substitution.

Id. Thus, we review the trial court’s decision for an abuse of discretion.

¶114. Ambrose abandons the exact grounds for a mistrial he initially made to the trial court,

i.e., Jenkins may have improperly influenced the jury. To the extent that Ambrose reurges

the argument, the trial court did not abuse its discretion in denying the motion for the mistrial

based on Jenkins’s testimony and as evidenced by Ambrose’s counsel’s uncertain response

to the trial court’s inquiry as to what prejudice Ambrose would suffer if Jenkins was removed

from the jury.

¶115. In Ambrose’s motion for a new trial or, alternatively, for acquittal notwithstanding the

verdict, Ambrose argued that the trial court had erred by removing Jenkins and replacing him

with the first alternate juror in violation of Mississippi Code Section 13-5-67. On appeal,

Ambrose advances the same argument he advanced in his post trial motion.

¶116. Section 13-5-67 provides, in relevant part: “An alternate juror who does not replace

a regular juror shall be discharged at the time the jury retires to consider its verdict.” Miss.

Code Ann. § 13-5-67 (Rev. 2012).15 Ambrose argues that, under the plain language of the

statute, Turner should have been discharged and should not have been available to replace

Jenkins. Ambrose argues that once deliberations have commenced, no replacement of a juror

15

Section 13-5-67 also provides, in part: “Alternate jurors in the order in which they

are called shall replace jurors who, prior to the time the jury retires to consider its verdict,

become unable or disqualified to perform their duties.” Miss. Code Ann. § 13-5-67.

53

with an alternate is permitted. In support, Ambrose relies on Balfour v. State, 598 So. 2d

731, 754 (Miss. 1992) (holding that it was error for the trial court to excuse a juror after the

jury had retired to deliberate a sentencing verdict), and Folk v. State, 576 So. 2d 1243, 1251-

52 (Miss. 1991) (holding the trial court erred by substituting an alternate juror after the

alternate juror had been dismissed from jury service and after the jury had been in

deliberations for almost two hours).

¶117. Ambrose contends that, for purposes of a death penalty case governed by Mississippi

Code Section 99-19-101(1), the discharge of alternates occurs when the jury retires to

deliberate guilt during the culpability phase.

¶118. Section 99-19-101(1) provides, in part:

(1) Upon conviction or adjudication of guilt of a defendant of capital murder

or other capital offense, the court shall conduct a separate sentencing

proceeding to determine whether the defendant should be sentenced to death,

life imprisonment without eligibility for parole, or life imprisonment. The

proceeding shall be conducted by the trial judge before the trial jury as soon

as practicable. If, through impossibility or inability, the trial jury is unable to

reconvene for a hearing on the issue of penalty, having determined the guilt of

the accused, the trial judge may summon a jury to determine the issue of the

imposition of the penalty.

Miss. Code Ann. § 99-19-101 (Rev. 2015).

¶119. Ambrose argues that the statute mandates that the trial jury hears the sentencing phase,

and if through impossibility or inability the trial jury is unable to reconvene, the only

statutory solution available is to summon a jury to act. Ambrose argues that the Court

narrowly construes the capital sentencing statutes. See Bell v. State, 160 So. 3d 188 (Miss.

2015). Ambrose argues that a mistrial is the only option if a juror cannot continue serving

once guilt deliberations commence, since a unanimous twelve person jury is required to

54

return a valid verdict under Mississippi’s Constitution, caselaw, and the Uniform Rules of

County and Circuit Court Practice in effect at the time. Ambrose also argues that the failure

to grant a mistrial violated his Fourteenth Amendment right due to “state procedural

shortcomings” affecting his “substantial and legitimate expectation[s].”

¶120. Alternatively, Ambrose argues that the trial court abused its discretion by removing

and replacing Juror Jenkins because there was no evidence Jenkins was unable to continue

to perform his duties for any reason, including bias. Ambrose argues that the record was

“devoid of evidence” that Jenkins had “lied under oath or withheld information” and he had

assured that he was capable of being a fair and impartial juror. Ambrose argues that the trial

court has “no license to remove jurors and replace them with alternates willy nilly.” Jenkins

was not removed “willy nilly;” rather, the note and Jenkins’s own testimony provided good

cause to remove him from the jury. See Shaw v. State, 540 So. 2d 26, 28 (Miss. 1989)

(holding that the dismissal of a juror for good cause and his replacement with an alternate is

within the sound discretion of the trial judge).

¶121. The State argues that Ambrose is procedurally barred because an objection on one

ground waives all other grounds on appeal. See Rubenstein v. State, 941 So. 2d 735, 760

(¶87) (Miss. 2006)). Although Ambrose did not raise the statutory argument at trial, he

raised the argument in his post trial motion. “On numerous occasions, th[e] Court, has held

that an objection on one ground waives remaining grounds for purposes of appeal and that

the failure to raise an issue in the trial court requires this Court to impose a procedural bar

on appeal. Notwithstanding [an appellant’s] failure to raise [a] specific ground before the

55

trial court, th[e] Court may, alternatively, consider the merits of the argument.” Evans, 725

So. 2d at 638 (¶ 48).

¶122. After Ambrose filed his initial brief, the Court handed down Evans v. State, 226 So.

3d 1, 24-25 (¶¶ 53-55) (Miss. 2017), addressing the precise argument Ambrose now

advances. In Evans, the capital murder defendant Timothy Evans argued that his state and

federal rights to a fair trial by a qualified jury and the state constitutional and statutory

guarantees of jury sentencing in death penalty cases were violated by the departure of Juror

Tanya Ladner and the seating of an alternate juror, Larry Lind, during the sentencing phase.

Id. at 24 (¶ 53).

¶123. After guilt phase deliberations, but prior to the sentencing phase, Juror Ladner was

excused upon learning that her son had suffered an injury requiring emergency surgery. Id.

Alternate Juror Lind had heard all the evidence as an alternate, but had not participated in

guilt phase deliberations. Id. The trial court replaced Ladner with Alternate Juror Lind, who

joined the jury and participated in the sentencing phase deliberations. Id.

¶124. On appeal, Evans argued that the seating of Juror Lind violated Section 99-19-101(1).

Id. at 24-25 (¶¶ 54-55). The Court recognized Section 13-5-67 is applicable to capital and

noncapital cases. Id. at 24-25 (¶ 55). The Court wrote that “[s]ubstitution of an alternate

juror is proper if done before the jury retires for deliberations.” Id. (citing Folk, 576 So. 2d

at 1251). The Court also wrote that a “substitution of an alternate during jury deliberations

is improper.” Evans, 226 So. 3d at 25 (citing Folk, 576 So. 2d at 1252; Balfour, 598 So. 2d

at 753).

56

¶125. The Evans Court reviewed the trial court’s decision to dismiss a juror for good cause

and substitute an alternate for an abuse of discretion. Evans, 226 So. 3d at 25. The Court

wrote that the defendant must show actual prejudice from the exclusion and substitution. Id.

The Evans Court held:

Considering the fact that Section 13–5–67 allows the substitution of alternate

jurors in capital cases, the trial court’s substitution of Lind at the sentencing

phase did not violate Section 99–19–101. Rather than discharging the

alternate jurors after the guilt phase ended, the trial court permitted them to

remain through the sentencing phase in case substitution was necessary. As

an alternate juror, Lind did not participate in deliberations with the

twelve-member panel, which undoubtedly would have been improper. See

Luster v. State, 515 So. 2d 1177, 1180 (Miss. 1987). However, when the trial

court dismissed Tanya Ladner, the trial court substituted Lind for the

sentencing-phase jury trial and deliberations, leaving the jury composed of

twelve jurors who had heard all of the evidence presented. A purpose of

selecting alternate jurors is so they are available to “fill the gap created by

some contingency.” Walls v. State, 371 So. 2d 411, 413 (Miss. 1979). We

discern no error.

Evans, 226 So. 3d at 25 (¶ 56).

¶126. In Ambrose’s reply brief, he argues that Evans was wrongly decided and urges the

Court to revisit the holding. We decline to disturb the holding. According to the reasoning

in Evans, the trial court did not violate Sections 99-19-101(1) and 13-5-67 by replacing Juror

Jenkins with Alternate Juror Turner after the culpability phase had concluded, but before the

penalty phase deliberations had begun. We follow the guidance of Evans and hold that the

trial court did not abuse its discretion by removing Juror Jenkins and replacing him with

Alternate Juror Turner, who had heard all of the evidence presented.

¶127. We likewise reject Ambrose’s alternative argument that Jenkins’s removal was

improper because he had testified that he could remain fair and impartial. The trial court did

57

not abuse its discretion by removing Juror Jenkins for good cause based on the note and

Jenkins’s testimony that in his own estimate, remaining on the jury would give Ambrose an

“unfair advantage,” an admission also acknowledged by Ambrose’s counsel at trial. See

Shaw, 540 So. 2d at 28. Finally, Ambrose also fails to show any actual prejudice by the trial

court’s ruling on the motion for a mistrial or on the removal and replacement of the juror.

See Hutto, 227 So. 3d at 984 (¶ 66); Evans, 226 So. 3d at 25 (¶ 55).

IV. WHETHER THE JURY SELECTION PROCESS WAS

CONSTITUTIONALLY INFIRM.

¶128. First, Ambrose argues that, in violation of Morgan v. Illinois, 504 U.S. 719 (1992),

the trial court denied his request that the trial court excuse or, at minimum, allow individual

voir dire of venire members whose general voir dire responses suggested they were

disqualified in their ability to consider imposition of a sentence other than death. Second,

Ambrose argues that in violation of Witherspoon v. Illinois, 391 U.S. 510 (1968), and

Wainwright v. Witt, 469 U.S. 412, 424 (1985), the trial court unconstitutionally excused

three jurors who had scruples against the death penalty. Third, and alternatively, Ambrose

argues that any death qualification whatsoever is unconstitutional.

A. Individual Voir Dire

¶129. Ambrose argues that the trial court erroneously refused individual voir dire of all

prospective jurors who indicated in general voir dire that they would impose a death sentence

only on the basis of having found the defendant guilty.

¶130. “The Constitution . . . does not dictate a catechism for voir dire, but only that the

defendant be afforded an impartial jury. Even so, part of the guarantee of a defendant’s right

58

to an impartial jury is an adequate voir dire to identify unqualified jurors.” Morgan, 504

U.S. at 729. “Voir dire plays a critical function in assuring the criminal defendant that his

constitutional right to an impartial jury will be honored. Id. The trial court’s responsibility

to remove prospective jurors who will not be able to follow the trial court’s instructions

impartially and evaluate the evidence cannot be fulfilled without an adequate voir dire. Id.

at 729-30.

¶131. “In general, voir dire is presumed sufficient to ensure a fair and impartial jury. To

overcome the presumption, a party must present evidence indicating that the jury was not fair

and was partial and must show that prejudice resulted from the circuit court’s handling of

voir dire.” Keller v. State, 138 So. 3d 817, 843 (¶ 47) (Miss. 2014). “Voir dire of a jury is

conducted under the supervision of the court, and a great deal must, of necessity, be left to

its sound discretion.” Pitchford v. State, 45 So. 3d 216, 229 (¶ 43) (Miss. 2010). Likewise,

whether to allow individual sequestered jury voir dire is within the discretion of the trial

court. Stevens v. State, 806 So. 2d 1031, 1055 (¶ 112) (Miss. 2001). As such, the standard

of review in examining the conduct of voir dire is abuse of discretion. Howell v. State, 860

So. 2d 704, 727 (¶ 75) (Miss. 2003). An”abuse of discretion will only be found where a

defendant shows clear prejudice resulting from undue lack of constraint on the prosecution

or undue constraint of the defense.” Id.

¶132. “Morgan provides that a ‘juror who will automatically vote for the death penalty in

every case will fail in good faith to consider the evidence of aggravating and mitigating

circumstances as the instructions require him to do.’” Batiste v. State, 121 So. 3d 808, 851

(¶ 95) (Miss. 2013) (quoting Morgan, 504 U.S. at 729). “Indeed, because such a juror has

59

already formed an opinion on the merits, the presence or absence of either aggravating or

mitigating circumstances is entirely irrelevant to such a juror.” Keller, 138 So. 3d at 846 (¶

60) (citing Morgan, 504 U.S. at 729). “Based on the requirement of impartiality embodied

in the Due Process Clause of the Fourteenth Amendment, a capital defendant may challenge

for cause any prospective juror who maintains such views. If even one such juror is

empaneled and the death sentence is imposed, the State is disentitled to execute the

sentence.” Batiste, 121 So. 3d at 851 (¶ 95) (quoting Morgan, 504 U.S. at 729).

¶133. During voir dire, Ambrose’s counsel posed two questions with respect to voting

for the death penalty. First, Ambrose’s counsel asked:

So let me ask you this, I want you to assume some facts. I want you to assume

that there’s some evidence been presented and it’s proven beyond a reasonable

doubt in your mind that these facts exist, that the defendant killed someone, he

intended to kill him, he didn’t have any good cause to kill him, it wasn’t in

self-defense, he wasn’t insane, there was nothing wrong with him, he just did

it. If that were the case, how many of you would vote to impose the death

penalty, raise your cards?

¶134. Forty-six members of the venire responded to the question in the affirmative. After

recording the members of the venire who had responded affirmatively, Ambrose’s counsel

posed a follow-up question:

Now, I asked you that question, and I, didn’t mention anything about

mitigating circumstances, did I? Mitigating circumstances are factors in the

background, record and life of the defendant if he is found guilty of capital

murder. Those things are admissible to tell the jury a little bit about the

defendant, give you some idea of what kind of person he is, and to also let you

understand that he is a human being and that what you’re trying to do, what

you’re determining is whether this person is -- this human being is so much of

an offense to the community of other human beings that we have to eliminate

him, we have to get rid of him. Would you at least consider the mitigating

circumstances? Those of you who would -- you don’t care about mitigating

circumstances, you don’t care what kind of life he’s had, what kind of

60

problems he’s had, what kind of things that have developed and molded him

into the person that he is, you don’t care about any of that. If that’s true, raise

your card, if you don’t care.

¶135. Of the forty-six potential jurors who had answered the first question affirmatively,

nine answered the follow-up question affirmatively. Ambrose’s counsel recorded the nine

potential jurors’ numbers. After a brief follow up, the trial court called for a recess to allow

for individual voir dire. The potential jurors who indicated that they had conscientious

scruples against the death penalty were identified and the following exchange occurred:

MR. RISHEL [Defense]: Yes, sir. I would like to bring back everybody

that said they would automatically vote against

the death penalty after they –

THE COURT: Is that would automatically vote –

MR. RISHEL: Yes, sir. You asked them if they would

automatically vote for the death penalty, and they

all sit there nobody says anything. But when you

say you have actually convicted this guy of capital

murder, would you vote for the death penalty. So

they are, in fact, automatically voting. If the guy

is found guilty of capital murder, they’re going to

vote for the death penalty. That’s as automatic as

it gets.

MR. SMITH [State]: I agree if you’re talking about the nine that after

you explained your question to them, and the ones

when you said I didn’t mention mitigating factors,

who would not at least consider mitigating

factors. Those nine are the ones automatic death.

I assume that’s who you’re talking about, not the

7516 that raised their card the first time.

16

Based on the record and parties’ representations on appeal, the number of members

who raised their card in response to the first question was forty-six, not seventy-five.

61

MR. RISHEL: Well, I would argue that they are automatic death

people. That they’re going to automatically vote

for the death penalty if they –

THE COURT: Well, the problem with that is that you didn’t

explain to them the procedures, the mitigating

factors and -- all they were asked if they would

just automatically vote against the death penalty.

So I agree with Mr. Smith, and I have no problem

bringing those last nine in that- -

MR. RISHEL: Yeah, we’ll talk about the last nine. I think

they’re going to vote for the death penalty no

matter what you say or do.

¶136. The trial court allowed individual voir dire of the nine potential jurors who had raised

their cards to the second question. None of the nine venire members served on the jury.17

¶137. Of the remaining thirty-seven venire members who had answered the first question

affirmatively, five ultimately served on the jury, including First Alternate Juror Turner, who

was seated during the penalty phase as discussed above, and Second Alternate Juror Mary

Bourdin. The other three who served on the jury were Don Martin, Dorothy Wells, and Doug

Schloemer.

¶138. On appeal, Ambrose maintains that he should have been allowed to individually voir

dire all forty-six venire members had also answered the first question affirmatively, not just

the remaining nine venire members who had also answered the second question

affirmatively. The State responds that, based on the exchange, Ambrose failed to preserve

17

Four were excused for cause because they stated they could not consider mitigating

evidence. Two were excused for cause based on sequestration issues. One was peremptorily

struck. The remaining two were not seated because the jury was selected before they were

tendered.

62

his argument because he did not specifically ask to individually voir dire all forty-six venire

members. Ambrose’s counsel did advance an argument, albeit unsuccessful, that all forty-six

venire members who answered the first question would automatically vote for the death

penalty. Ambrose properly preserved the issue for appeal.

¶139. As to the merits, the State argues that Ambrose was permitted to and did follow up

to the first question during general voir dire. The State also argues that Ambrose’s failure

to challenge for cause or use a peremptory strike on any of the jurors he alleges were seated

in violation of Morgan, renders his claim procedurally barred or, at minimum, void of

prejudice.

¶140. The Court’s decision in Foster v. State, 639 So. 2d 1263, 1272-73 (Miss. 1994),

guides our analysis. In Foster, capital murder defendant Ronald Foster argued that the trial

court prevented him from asking whether members of the venire automatically would vote

for the death penalty if they found Foster guilty of capital murder. We held:

We find that Foster was not denied the opportunity, and in fact did question the

venire members about their views on the death penalty and whether it should

be imposed in the event of a murder conviction. The fact that counsel for

Foster chose not to rephrase his question to inquire whether the venire persons

would automatically impose the death penalty if Foster was convicted is no

ground for reversal under the differing facts of Morgan.

Foster, 639 So. 2d at 1275. We explained that Foster’s counsel had the opportunity to

choose and form his own questions, and by gauging responses from the venire, could freely

rephrase or ask follow-up questions where the responses were insufficient or indicated the

jurors were confused. Id. at 1275. We determined that the record did not support Foster’s

63

claim that his counsel was denied any opportunity to question the venire in a manner of his

own choosing. Id.

¶141. Similarly, Ambrose’s counsel had the opportunity to choose and form his own

questions, and by gauging responses from the venire, could freely rephrase or ask follow up

questions. Ambrose’s counsel confessed in his follow-up question that his first question did

not mention anything about mitigating circumstances. In the context of jury instructions, we

have stated that “sentencing juries must be able to give meaningful consideration and effect

to all mitigating evidence that might provide a basis for refusing to impose the death penalty

on a particular individual.” Evans, 226 So. 3d at 20 (¶ 39) (citing Abdul-Kabir v.

Quarterman, 550 U.S. 233, 246 (2007)).

¶142. Only nine venire members answered that they would not consider mitigating

circumstances. Thus, the trial court did not abuse its discretion by not allowing individual

voir dire of the remaining venire members who affirmatively answered that they would

consider mitigating circumstances. To the extent that Ambrose argues that the remaining

jurors did not state that they would give “meaningful consideration and effect to all

mitigating evidence,” the argument is without merit because no such question was asked by

Ambrose’s counsel, nor did the trial court prevent Ambrose’s counsel from rephrasing or

posing such a follow-up question. See Howell, 860 So. 2d at 727 (¶ 75) (“A jury selection

procedure which gives the defendant a fair opportunity to ask questions of individual jurors

which may enable the defendant to determine his right to challenge that juror is proper.”).

¶143. Moreover, Ambrose fails to show how he was prejudiced by the trial court’s decision.

See id. at 727-28 (¶ 76). He was not prevented from rephrasing or posing follow-up

64

questions in general voir dire, nor did Ambrose exercise a peremptory strike for any of the

five of the remaining thirty-seven venire members who actually served on the jury, even

though he had peremptory strikes remaining. See Evans, 725 So. 2d at 652 (explaining that

the appellant has the power to cure substantially any error so long as he has remaining unused

peremptory challenges); see also Galloway v. State, 122 So. 3d 614, 645 (¶ 87) (Miss. 2013)

(“A defendant cannot complain on appeal of alleged errors invited or induced by himself.”).

The precise issue now raised with respect to the five jurors seated obviously was known at

trial based on the venire’s responses during voir dire, and Ambrose chose not to exercise a

peremptory strike on the venire members. We discern no prejudice.

B. Jurors With Scruples Against the Death Penalty

¶144. Ambrose argues that the trial court erroneously excused three prospective jurors with

scruples against the death penalty who were not disqualified under Witherspoon and

Wainwright.

¶145. The Court gives deference to the trial court’s decision to exclude a juror for cause, and

we will not disturb the trial court’s decision unless there was an abuse of discretion. Batiste,

121 So. 3d at 850 (¶ 91). The trial court “does not commit reversible error by excusing for

cause a prospective juror who gave contradictory responses, wavered on their position, and

generally appeared confused regarding the death penalty issue.” Bennett v. State, 933 So.

2d 930, 942 (¶ 31) (Miss. 2006).

¶146. In Witherspoon, the Supreme Court held that “a sentence of death cannot be carried

out if the jury that imposed or recommended it was chosen by excluding veniremen for cause

simply because they voiced general objections to the death penalty or expressed

65

conscientious or religious scruples against its infliction.” Witherspoon, 391 U.S. at 522.

Witherspoon and its progeny stand for the “general proposition that a juror may not be

challenged for cause based on his views about capital punishment unless those views would

prevent or substantially impair the performance of his duties as a juror in accordance with

his instructions and his oath.” Moffett v. State, 49 So. 3d 1073, 1094 (¶ 61) (Miss. 2010)

(quoting Adams v. Texas, 448 U.S. 38, 45 (1980)). Therefore, the proper standard for

determining when a prospective juror may be excluded for cause because of his or her views

on capital punishment is whether the juror’s views would “prevent or substantially impair the

performance of [her] duties as a juror in accordance with [her] instructions and [her] oath.”

Wilcher v. State, 863 So. 2d 776, 813–14 (¶ 116) (Miss. 2003) (quoting Wainwright, 469

U.S. at 424).

¶147. In Wainwright, the Supreme Court clarified Witherspoon, holding that the standard

“does not require that a juror’s bias be proved with unmistakable clarity.” Moffett, 49 So.

3d at 1094 (¶ 61) (quoting Wainwright, 469 U.S. at 424). The Supreme Court explained:

This is because determinations of juror bias cannot be reduced to

question-and-answer sessions which obtain results in the manner of a

catechism. What common sense should have realized experience has proved:

many veniremen simply cannot be asked enough questions to reach the point

where their bias has been made “unmistakably clear”; these veniremen may not

know how they will react when faced with imposing the death sentence, or

may be unable to articulate, or may wish to hide their true feelings despite this

lack of clarity in the printed record, however, there will be situations where the

trial judge is left with the definite impression that a prospective juror would be

unable to faithfully and impartially apply the law.

Wainwright, 469 U.S. at 424-26 (explaining why deference must be paid to the trial judge

who sees and hears the juror).

66

¶148. “[A] juror who in no case would vote for capital punishment, regardless of his or her

instructions, is not an impartial juror and must be removed for cause.” Pitchford v. State,

45 So. 3d 216, 229 (¶ 38) (Miss. 2010) (quoting Morgan, 504 U.S. at 728). However,

“[v]enire members may be jurors even if they have remaining scruples about the death

penalty, so long as the individuals agree to follow the law and consider the sentence in

accordance therewith.” Cox, 183 So. 3d at 51 (¶ 50).

¶149. The individual voir dire of the three venire members in question is set out below:

i. Venire Member Allison Meleones

THE COURT: All right. Ma’am, you were one of the ones who held up

your card when I asked if anyone had any conscientious

scruples or other feelings against the death penalty. Is

that correct?

MS. MELEONES: Uh-huh.

THE COURT: And are you telling the court and these lawyers that you

don’t believe in the death penalty?

MS. MELEONES: I just don’t know if I could actually go through with it.

I don’t know if I could live with that on my mind. I

don’t know. I haven’t really given it a lot of thought

before this. Now, I mean, I just don’t know the

circumstances. Maybe.

THE COURT: Well, if the evidence proved someone to be guilty of

capital murder, and the law allowed the death penalty as

one of the penalties, do you think you could vote for it?

MS. MELEONES: No.

THE COURT: Are you telling the lawyers and me that you could not

vote for the death penalty under any circumstances?

MS. MELEONES: Um, I -- it’s just hard to say if I don’t know the case.

Like, I’m a teacher, so I see a lot of kids that maybe they

67

could have gone a different way if they had different

parents or made different choices. It’s hard to think

somebody could be defined by just one mistake. I don’t

know. I don’t know any details on the case. Maybe.

THE COURT: Well, let me ask you this, if you followed the law that the

court gives you, could you consider the death penalty for

someone -- I mean, not knowing the circumstances,

obviously you don’t know the circumstances. And don’t

worry, there is nothing wrong. If you have your own

feelings, you have your feelings. So nobody is going to

criticize you. We’re just here to try to find out exactly

how everyone feels in regard to this issue. And I guess

what I’m trying to find out is regardless of the proof and

the evidence that is brought out during the course of the

trial, are you telling me that you won’t vote for the death

penalty?

MS. MELEONES: I don’t think I would. I don’t think I would.

THE COURT: All right. State?

MR. SMITH: And just to echo what the judge is saying, nobody is

trying to get you to say that you would vote for the death

penalty. Everybody has their own beliefs about that. But

do you think that if given the choice between voting for

the death penalty or voting for life in prison as a juror

that you would ever vote for the death penalty?

MS. MELEONES: Probably not. I would probably choose life in prison.

MR. SMITH: No questions, judge.

MR. RISHEL: You say probably not. Why would you say probably not?

Why not just say no, I’m not voting for the death penalty

ever. I’m not telling you what to say, but what is it that

is sticking in your mind keeping you from making a full

commitment?

MS. MELEONES: To be honest, I haven’t given a whole lot of thought

about the death penalty or how I felt about it. I’ve only

been a registered voter for two months, and this is my

first jury duty, so I really don’t know how I feel about it

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100 percent. I feel like that is not something that I agree

with.

MR. RISHEL: So when you say probably, you don’t really know, do

you? You have to wait until you know what happened,

don’t you?

MS. MELEONES: Yes.

MR. RISHEL: Once you found out what happened you might be able to

vote for the death penalty if you thought it was

appropriate, would that be true?

MS. MELEONES: Maybe. I don’t probably not. I can’t say anything else

besides probably not.

MR. RISHEL: All right. Well, okay. That’s all I have, judge.

ii. Venire Member Carolyn Owen

MR. SMITH: Ma’am, you stated earlier that you had conscientious

scruples against the death penalty?

MS. OWEN : Yes.

MR. SMITH: Would those views impair or hurt your ability to serve as

a juror in this case because the death penalty is a possible

sentence?

MS. OWEN: I don’t feel like I would have any trouble listening to the

case to determine guilt or innocence, but when it comes

to punishment I would definitely have issues with the

death penalty.

MR. SMITH: Although you said that you think you would always if

you got to that sentencing phase, that you would always

vote for life as a sentence instead of death?

MS. OWEN: I would probably be very hardpushed to consider fairly

the death penalty. It’s just, I’m a Christian, and it’s

something that I’m having a difficult time wrapping my

head around.

69

MR. SMITH: No questions, your Honor.

THE COURT: All right. Mr. Rishel?

MR. RISHEL: Ma’am, are you saying that if during the phase where

you’re considering innocence or guilt that you could vote

for the guilty even though it may lead to a death penalty?

MS. OWEN: Yes. I think I could judge guilt or innocence, yes.

MR. RISHEL: So you could vote guilty even though it may result in the

death penalty?

MS. OWEN: Yes.

MR. RISHEL: Could you?

MS. OWEN: Yes. I could vote innocent or guilty based on the

evidence.

MR. RISHEL: Thank you, ma’am.

THE COURT: Well, let me ask you this, in other words, Mr. Rishel was

saying you could vote guilty even if it leads to the death

penalty, but if you were on the jury that voted for the

death penalty then what would your –

MS. OWEN: I would not vote for the death penalty.

THE COURT: You would not under any circumstances?

MS. OWEN: None that I could think of, no, sir.

iii. Venire Member Susan Quillen

THE COURT: Okay. Ms. Quillen, we just want to ask you a few

questions. You were one of the ones who raised your

card when I asked if anyone was opposed to the death

penalty or had scruples against the death penalty. You

raised your card, is that correct?

MS. QUILLEN: Yes, sir.

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THE COURT: All right. Would you explain to me and the lawyers your

feelings in regard to the death penalty. And nobody is

going to criticize you one way or the other. We’re not

here to do that. We just want to find out how you feel.

MS. QUILLEN: I feel like if I said somebody was guilty and they got the

death penalty I would feel like I did that to them, you

know. I’m not sure I could sleep at night knowing I put

somebody to death. I have three children of my own, and

I think that would be hard for me to deal with.

THE COURT: So you’re telling us that you think that your feelings with

regard to the death penalty might cause you some

problems even deliberating the guilt of the defendant?

MS. QUILLEN: I do. I do.

THE COURT: Yes, ma’am.

MS. QUILLEN: I have been sitting there debating between the two, you

know, can I do this, how would I feel, and I just think it

would be hard.

THE COURT: Well, let me ask you this, if you were sitting on the jury

and the state convicted a person of capital murder, the

evidence showed that he or she was guilty of capital

murder, are you telling me that when you go into the

penalty phase where there are options of either death or

life without parole, that you would always vote for life

without parole?

MS. QUILLEN: More than likely, I would. I just couldn’t put somebody

to death. That would be too hard for me.

THE COURT: All right. Thank you, ma’am. Mr. Smith?

MR. SMITH: No questions. Thank you for your honesty.

THE COURT: Mr. Rishel?

MR. RISHEL: Ma’am, I’m a little confused. You said more than likely.

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MS. QUILLEN: Yeah. No, I mean, honestly I don’t know how I would

feel after sitting on a jury listening to the evidence, but I

just think it would hurt me knowing I put somebody to

death.

MR. RISHEL: Okay. Let me ask you this, do you think you could vote

whether a person is guilty or not guilty of capital murder?

MS. QUILLEN: Uh-huh.

MR. RISHEL: If the state proved beyond a reasonable doubt in your

mind that the person was guilty, would you vote for that

person to be found guilty?

MS. QUILLEN: I could vote for him to be found guilty, yes.

MR. RISHEL: So then the question is can you vote -- can you consider

the two choices as far as punishment is concerned, death

and life without parole? Are you telling the court you

would never consider life without parole -- I mean death?

You would always go with life without?

MS. QUILLEN: I think so, yes.

MR. RISHEL: You think so or you know so?

MS. QUILLEN: I know so. I don’t think I could sleep at night with that

on my mind. I mean, I would feel like I did it to them,

which basically I did. Yeah, no, I don’t think I would be

comfortable with that.

MR. RISHEL: Okay. It’s always a hard thing to do.

MS. QUILLEN: It is. It’s a very hard thing.

¶150. Over the objection of Ambrose, the trial court excused Meleones, Owen, and Quillen

for cause.

¶151. Again, the test for determining when a prospective juror’s views on the death penalty

justify her removal is whether the trial court finds that the juror’s views would prevent or

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substantially impair the performance of her duties in accordance with the instructions and

oath and the trial court is left with the impression that a prospective juror would be unable

to faithfully and impartially apply the law. King v. State, 784 So. 2d 884, 892-92 (¶ 39)

(Miss. 2001). “To meet th[e] test, the prospective juror’s response can be less than

unequivocal.” Id.

¶152. The Court has affirmed the exclusion of jurors who “repeatedly switched positions,”

“gave wavering responses,” or “exhibited an obvious confusion concerning the issue.”

Moffett, 49 So. 3d at 1094 (¶ 62) (citing King v. State, 960 So. 2d 413, 435 (Miss. 2007));

King, 784 So. 2d at 888. We have held that “[i]t goes without saying that a potential juror

who cannot give a straight answer would be unlikely to follow the law.” King, 784 So. 2d

at 888. We also have held that “[a] juror’s position on the death penalty must be

unmistakably clear, or a trial judge may properly remove the juror for cause in a capital

case.” Moffett, 49 So. 3d at 1094 (¶¶ 62-63) (holding that none of the three prospective

jurors provided an unmistakably clear and consistent answer regarding whether his or her

views on the death penalty would prevent or substantially impair the performance of their

duties in accordance with the jury instructions and oath).

¶153. Here, the record shows that the trial court had sufficient bases for excluding the three

venire members, given their responses to questioning as to whether their personal beliefs

regarding capital punishment would prevent or substantially impair them from carrying out

their duties as jurors.

¶154. Owen affirmatively stated that she would not vote for the death penalty and she could

not think of any circumstances in which she would. Quillen stated that she “just couldn’t put

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somebody to death. That would be too hard for me.” Quillen also stated she thought she

would always vote for life without parole, and when asked whether she “thinks so” or

“knows so,” she answered that she knew so. Quillen explained: “I don’t think I could sleep

at night with that on my mind. I mean, I would feel like I did it to them, which basically I

did. Yeah, no, I don’t think I would be comfortable with that.”

¶155. Meleones was asked initially if she thought she could vote for the death penalty for

someone convicted of capital murder, to which she responded, “No.” When asked whether

she could vote for the death penalty under any circumstances, Meleones responded that

“maybe,” because she did not know any details on the case. Meleones was asked whether

she could ever vote for the death penalty, given the choice between the death penalty or life

in prison, to which she responded, “Probably not. I would probably choose life in prison.”

Meleones also stated: “I feel like [the death penalty] is not something that I agree with.”

Meleones was asked “[o]nce you found out what happened, you might be able to vote for the

death penalty if you thought that was appropriate, would that be true?” Meleones responded,

“Maybe. I don’t – probably not. I can’t say anything else besides probably not.”

¶156. Ambrose argues that it was reversible error to strike Meleones based on our holding

in Fuselier v. State, 468 So. 2d 45, 55 (Miss. 1985):

As stated by the United States Supreme Court in Adams v. Texas, “Neither

nervousness, emotional involvement, nor inability to deny or confirm any

effect whatsoever is equivalent to an unwillingness or inability on the part of

the jurors to follow the court’s instructions and obey their oaths, regardless of

their feelings about the death penalty.” Adams, 448 U.S. at 50, 100 S. Ct. at

2529, 65 L. Ed. 2d at 593. Absent a clear showing that the prospective juror

would be unable to follow the court’s instructions and obey the juror’s oath,

that juror’s feelings regarding the death penalty do not constitute grounds for

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a challenge and the granting of such a challenge is reversible error. Wainright

v. Witt, supra, Adams v. Texas, supra.

Fuselier, 468 So. 2d at 55. However, the Fuselier Court noted that “there was no indication

from [the] jurors’ comments that they would be prevented or substantially impaired in the

performance of their duties as jurors, nor that they would be able to decide the facts

impartially and conscientiously apply the law. Id. at 54.

¶157. Given the deference to the trial court, which observed the three potential jurors’

demeanors, we cannot say the trial court abused its discretion in excluding Owen, Quillen,

and Meleones. See Wainwright, 469 U.S. at 426 (“[D]eference must be paid to the trial

judge who sees and hears the juror.”). The trial court did not abuse its discretion because it

very well may have thought that the jurors would be unlikely to follow the law because they

were unable to give a straight answer. See King, 784 So. 2d at 888.

C. Death Qualification

¶158. Alternatively, Ambrose claims that any death qualification of the jury at all violates

the Sixth and Fourteenth Amendments and Mississippi’s capital sentencing statute because

it allowed the State to remove potential jurors based solely on their opposition to the death

penalty and not on their ability to follow the process prescribed by Section 99-19-101(2).

Ambrose cites Adams v. Texas, 448 U.S. 38 (1980), in support of his position. Adams, 448

U.S. at 48 (stating that “if prospective jurors are barred from jury service because of their

views about capital punishment on any broader basis than inability to follow the law or abide

by their oaths, the death sentence cannot be carried out.”)).

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¶159. Neither the United States Supreme Court nor the Mississippi Supreme Court has held

that the death qualification process is unconstitutional per se. “The best way to ensure that

a prospective juror would not automatically vote for the death penalty is to ask.” Morgan,

504 U.S. at 729 n.3. “Any juror who states that he or she will automatically vote for the

death penalty without regard to the mitigating evidence is announcing an intention not to

follow the instructions to consider the mitigating evidence and to decide if it is sufficient to

preclude imposition of the death penalty.” Morgan, 504 U.S. at 738. In comparison, “a juror

who in no case would vote for capital punishment, regardless of his or her instructions, is not

an impartial juror and must be removed for cause.” Pitchford, 45 So. 3d at 229 (¶ 38)

(quoting Morgan, 504 U.S. at 728). Ambrose’s alternative argument is without merit.

V. WHETHER THE STATE ENGAGED IN PROSECUTORIAL MISCONDUCT

DURING CLOSING ARGUMENTS.

¶160. Ambrose argues that two instances of prosecutorial misconduct occurred during the

rebuttal portion of the prosecutor’s sentencing phase closing statements. Specifically,

Ambrose alleges that the State made an improper golden rule argument and an improper “in-

the-box” argument. Because no objection was made to the alleged improper statements,

Ambrose urges the Court to review the statements for plain error. The State responds that

the statements were neither improper nor inflammatory, so reversal under plain error review

is not warranted.

¶161. We have held that “the plain-error doctrine is applied to closing arguments only when

the substance of the statement is out of bounds for closing arguments.” Boyd v. State, 977

So. 2d 329, 337 (¶ 34) (Miss. 2008); see also Minor v. State, 831 So. 2d 1116, 1123 (¶¶ 22-

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23) (Miss. 2002). Moreover, the “plain error doctrine has been construed to include anything

that seriously affects the fairness, integrity or public reputation of judicial proceedings.”

Boyd, 977 So. 2d at 338. We also have held that a defendant could not be prejudiced by

unnecessary and inappropriate prosecutor statements when the evidence presented was

insurmountable. Franklin v. State, 136 So. 3d 1021, 1032 (¶ 40) (Miss. 2014).

¶162. Normally, “[t]he standard of review that appellate courts must apply to lawyer

misconduct during opening statements or closing arguments is whether the natural and

probable effect of the improper argument is to create unjust prejudice against the accused so

as to result in a decision influenced by the prejudice so created.” Jackson v. State, 174 So.

3d 232, 236 (¶ 9) (Miss. 2015); see also Sheppard v. State, 777 So. 2d 659, 661 (¶ 7) (Miss.

2000). “Even when a prosecutor has made an impermissible comment, this Court requires

a showing of prejudice to warrant reversal.” Outerbridge v. State, 947 So. 2d 279, 286 (¶

23) (Miss. 2006).

¶163. However, because Ambrose did not object to the alleged improper statements, the

assignment of error has been waived and his arguments are barred procedurally on appeal.

See Evans, 226 So. 3d at 31 (¶ 78); Jackson, 174 So. 3d at 236 (¶ 11); O’Connor v. State,

120 So. 3d 390, 400 (¶ 27) (Miss. 2013).

¶164. In Walker v. State, 913 So. 2d 198 (Miss. 2005), the capital murder defendant argued

that “[a]lthough no objection was raised during the argument, under th[e] Court’s heightened

level of scrutiny of death penalty cases, they will be reviewed.” Id. at 238 (¶ 147) (noting

that we have relaxed the contemporaneous objection rule and applied the plain error rule,

which allows an appellate court to address an issue not raised at trial if the record shows that

77

error did occur and the substantive rights of the accused were violated). The Court “refused”

to consider the issue of prosecutorial misconduct because “on numerous occasions [the

Court] has refused to consider the issue of prosecutorial misconduct where the defendant did

not raise it at trial.” Id. at 238 (¶¶ 148-49).

¶165. In O’Connor, we wrote that “[w]e repeatedly have provided that, though the failure

to object contemporaneously generally waives a claim of prosecutorial misconduct during

closing argument, we will review such a claim if the prosecutor’s statement was so

inflammatory that the trial judge should have objected on his own motion.” O’Connor, 120

So. 3d at 399 (¶ 26). We explained the purpose for applying the “so inflammatory” standard

of review in cases where no contemporaneous objection is lodged:

We hold that the proper inquiry is not whether the language “tracks” language

found to be misconduct, for such a standard would require the Court

prematurely to consider the merits of the claim to resolve a so-called

“threshold” question. Moreover, such a standard essentially would negate the

requirement of contemporaneous objecting during closing argument—if we

will review, in the absence of a contemporaneous objection, any claim that a

statement during closing argument was improper so long as it “tracks”

language found to be misconduct, then the failure to contemporaneously object

would never operate as a waiver. Accordingly, to resolve the confusion created

by Spicer [v. State, 921 So. 2d 292 (Miss. 2006)], we now declare that the “so

inflammatory” standard is the proper threshold inquiry for appellate review of

claims of prosecutorial misconduct during closing argument.

O’Connor, 120 So. 3d at 400–01 (¶ 29).

¶166. In Jackson, the Court noted that “even without the defendant attorney’s objection,

‘unwarranted and improper remarks of a district attorney would warrant reversal where there

was “most extreme and intolerable abuse of his privilege.’” Jackson, 174 So. 3d at 236 (¶

11) (quoting Randall v. State, 806 So. 2d 185, 221 (¶ 101) (Miss. 2001)). Thus, we have

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held that “in extreme cases, a failure to object to questions which were violative of a

constitutional right will not act as procedural bar to consideration.” Jackson, 174 So. 3d at

237 (¶ 13). Recently in Evans, we applied the so inflammatory standard of review because

the defendant’s failure to object during the prosecutor’s closing arguments operated as a

procedural bar on appeal. Id. The application of the so inflammatory standard is in accord

with the Court’s concern that “the failure to contemporaneously object would never operate

as a waiver.” See O’Connor, 120 So. 3d at 401 (¶ 29).

¶167. Based on the foregoing, the Court reviews whether the alleged prosecutorial

misconduct was so inflammatory that the trial court should have intervened on its own.

Evans, 226 So. 3d at 31 (¶ 78); O’Connor, 120 So. 3d at 400-01 (¶ 29). “Attorneys generally

are afforded wide latitude in arguing their cases to the jury.” Ronk v. State, 172 So. 3d 1112,

1137 (¶ 60) (Miss. 2015). “Any allegedly improper prosecutorial comment must be

considered in context, considering the circumstances of the case, when deciding on their

propriety.” Id.

A. Golden Rule Argument

¶168. “[A] golden-rule argument, which asks the jurors to put themselves in the place of one

of parties, is impermissible.” Evans, 226 So. 3d at 31 (¶ 79).

¶169. Ambrose claims that the following portion of the closing statement made by the

prosecutor during the penalty phase in rebuttal constituted an improper golden rule argument:

I thought about how when you’re a child 18 and you run–and you’re playing

a game of chase that adrenaline that hits you when you hear the foot steps

behind you, and you realize that whoever is chasing you is getting close and

they’re going to catch you or that dream when you wake up in the middle of

the night and somebody is chasing you, and the panic and fear of that person

79

actually catching you. I wonder if Robert was having the same feelings and

the same thoughts at that moment when he realized he was not going to get

away from this man and his men, the panic and fear of that moment as he

heard the foot steps getting closer. And then the very last moment in his life

as he laid on that ground, eyes looking up at the defendant’s eyes and at the

defendant’s men, and looking at all of those eyes back at him knowing that he

knew that -- Robert knew they had already inflicted all of this punishment on

him, and before they hit him with those items what must have gone through

Robert Trosclair’s mind? Why? Why? And the panic that he must have felt

when he realized that he would no longer be on this earth at age 30.

¶170. The State argues that it did not explicitly or implicitly ask the jurors to place

themselves in the shoes of Trosclair. Moreover, the State argues that the comments were in

response to Ambrose’s counsel’s remarks “minimizing [Trosclair’s] kidnapping.” At one

point, Ambrose’s counsel posed the following question to the jury: “Is the kidnapping so

severe that the mere fact that he was taken from one place to another would create a

circumstance where he should be given a death penalty as opposed to life without?” The

State points out that we have stated that “[i]n order to make an appropriate assessment, the

reviewing court must not only weigh the impact of the prosecutor’s remark, but must also

take into account defense counsel’s opening salvo.” Rubenstein v. State, 941 So. 2d 735,

778 (¶ 188) (Miss. 2006).

¶171. Ambrose argues that the prosecutor’s comments are similar to the improper golden

rule arguments made by the prosecutor in Holliman v State, 79 So. 3d 496 (Miss. 2011). In

Evans, we distinguished Holliman and rejected a similar golden rule argument that Ambrose

advances today. Id. at 31 (¶¶ 76-79). We held:

“Attorneys are to be given wide latitude in making their closing arguments.”

Jimpson v. State, 532 So. 2d 985, 991 (Miss. 1988). But a golden-rule

argument, which asks the jurors to put themselves in the place of one of

parties, is impermissible. Holliman v. State, 79 So. 3d 496, 500 (Miss. 2011).

80

Evans argues that the prosecutor’s speculation about the thoughts that might

have gone through Holling’s mind improperly invited the jury members to

place themselves in Holling’s position. He contends that the argument was the

equivalent of the improper argument in Holliman. But in Holliman, this

Court reversed because the prosecutor, over objection, repeatedly asked the

jurors to imagine how they would feel if a loaded shotgun were pointed in their

faces. Id. at 499–500. Thus, in Holliman, the prosecutor explicitly violated

the prohibition on golden-rule arguments by repeatedly asking the jurors to put

themselves in the place of the victim. While the prosecutor’s argument in the

instant case approaches a golden-rule violation, the argument was not so

inflammatory as to have required intervention by the trial court. Thus, no plain

error occurred.

Evans, 226 So. 3d at 31-32 (¶ 79).

¶172. We have held that the “mental anguish and physical torture suffered by the victim

prior to death, and the vulnerability of the victim are factors which should be considered in

determining whether the capital offense was especially heinous, atrocious, and cruel.” Ronk,

172 So. 3d at 1143 (¶ 83). Here, the prosecutor’s statements were not so inflammatory as to

have required intervention by the trial court.

B. In-the-Box Argument

¶173. “It is an improper influence to put the jury in a ‘box’ by voir dire tactics which extract

a promise, prior to trial, to ignore evidence favorable to the defendant.” Keller, 138 So. 3d

at 859 (¶ 106) (quoting Stringer v. State, 500 So. 2d 928, 938–39 (Miss. 1986)). Such a

promise or pledge prevents the jurors from considering all factors relative to the verdict.

Keller, 138 So. 3d at 859 (¶ 106).

¶174. Ambrose argues that the State had gotten a commitment from the jury during voir dire

with respect solely to its deliberations and decision making at the culpability phase. Ambrose

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admits the prosecutor’s following statements were not improper at the time because the

prosecutor did not ask the jury to return any particular verdict:

I also ask that you don’t compromise or come to a lesser verdict based on

sympathy alone, because at times in these types of cases some may try to

appeal to your sympathy or to your bias in asking for a specific or for a lesser

verdict. If you can agree that we should base our decision solely on the

evidence and the law as given to you by the judge, please indicate so by raising

your card. Thank you.

As the judge also told you, your job as jurors will be to judge the facts of the

case. You get to decide the proof of what happened back on April 7th, 2013.

Your job is not to judge the defendant as a person. Your job is only to judge

the actions that he took on April 7th, 2013. Is there anybody here who just

doesn’t think that they can do that, they don’t think that they can sit in

judgment of the actions of another human being? If you don’t think you can

do that, let us know. Thank you.

¶175. In light of the prosecutor’s statement during voir dire, however, Ambrose claims that

the prosecutor’s following rebuttal statement made during the penalty phase constituted an

improper “in-the-box” argument:

Often times in this process the defendant will place witnesses on the witness

stand. Then they come before you and they ask you for sympathy. Ladies and

gentlemen, in these last few minutes I want to boil it down for you. What the

defendant is asking you to tell him by your verdict today is that what he did to

Robert Trosclair, what they did ou

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