Petition — Hill v. Florida
Supreme Court brief1983
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IN THE
SUPREME COURT OF THE UNITED dias .
October Term, 1982
wi 25 865
ALEXANOER L STEVAS
ALVIN HILL, oS
Petitioner, .
-V=
THE STATE OF MISSISSIPPI,
Respondent.
PETITION POR WRIT OF CERTIORARI
TO THE SUPREME COURT OF MISSISSIPPI
JACK GREENBERG
JAMES M. NABRIT, III
JOHN CHARLES BOGER
STEVEN L. WINTER*
Suite 2030
10 Columbus Circle
New York, New York 10019
(212) 586-8397
Attorneys for Petitioner
*Counsel of Record
* - « CORRECTED Jr. :
: bs ee Office Supe sere F - s
83-5 153 FILED
QUESTIONS PRESENTED
l. Who bears the burden of proof on the question of
independent source for physical evidence that is a pre-
sumptive fruit of an illegally obtained confession and py
what standard?
2. Do instructions to the jury at the sentencing phase
of a capital case that a reasonable juror could have under-
stood to mandate death based on the relative weight of the
aggravating circumstances and to preclude consideration of
mercy regardless of the existence of mitigating circumstances
violate the eighth and fourteenth amendments?
3. Did the admission of photographs of the thirty-
six-day-old, decomposed corpse of the victim at both the
guilt/innocence and sentencing phases of petitioner's capital
trial despite the tact that they had littie or no probative
value and that every relevant fact was already proved by
competent, more reliabie, and less prejudicial testimony
violate the sixth, eighth, and fourteenth amendments?
Questions Presented ......... eee eeeresceccessseeeeescese i
Table of Contents ........... TETTTIITTITILITT TTT TTT ia
Table of Cases ........ Coc cccrceesecesescesseeeccecaceos iv
Statement of the Case ...... Coe eeeseesecceseccsscecccces 2
A. Course of Proceedings ........ceeees ececcccose’s 2
B. Pacts Relevant to the Questions
Presented ..... pts Ghe bees eee eeneeoecdeccoces 3
(1) Petitioner's Challenge to the
Admission ot Evidence Discovered
by Exploiting nis Illegaliy
GRGRe GE, cb Bebececencccecsce 3
(2) Petitioner's Challenge to the
Instructions at the Sentencing
Phase that a Reasonable Juror
Could Have Understood to Mandate
the Imposition of a Death Sentence
and Preclude the Jury from Exercising
its Discretion in Pavor otf Mercy ....... 7
(3) Petitioner's Challenge to the
Admission of Highly Emotional,
Prejudicial Photographs otf the
Badly Decomposed Body of the
Victim at both the Guilt/Innocence
and Sentencing Phases of his Triai ..... 10
Reascas for Granting Che GED ccccsedcdoccsoccesccccecece 12
I. The Court Should Grant the Writ to
Delineate the Standard of Proot
by which the State Must Carry Its
Burden of Showing an Independent
Source for Physical Evidence that,
Otherwise, is a Presumptive “Pruit”
of an Illegally Obtained Contession ......... 12
A. The Errors Below eee eee ewe errr reer er eer eee eee 13
B. Clear and Convincing Evidence as
the Appropriate Standard ............+.: 15
II. The Court Should Grant Certiorari to
Determine Whether Instructions to
the Jury at the Penalty Phase that a
Reasonabie Juror could have Understood
to Limit His or Her Discretion to
Exercise Mercy and, Under Certain
Circumstances, Mandate the Imposition
of a Death Sentence Violate the
Eighth and Pourteenth Amendments ............ 18
-ii-
Page
III. The Court Should Grant Certiorari to
Determine Whether Emotionally Charged
Photographs of the Thirty-Six-Day-Old
Decomposed Body of the Victim Which
had Only De Minimis Probative Value can
be Admitted at the Guilt/Innocence and
Sentencing Phases of a Capital Case .......... 22
GCORBRUBESD ¢ 00d 0006050008 506865606505 6606600666 560464 068% 25
~iii-
TABLE OF CASES
Page
Addington v. Texas, 441 U.S. 418 (1979). cc nwecenvvseveess 17
Barclay v. Plorida, __U.S. ___, 51 U.S.L.W. 5206
(July 6, 1983) wcccccccscccccccccccsccsccscescssssscsss 2141522
Blackburn v. Alabama, 361 U.S. 199 (1960) wwsseesseveess 18
Coleman v. State, 378 So.2d 640 (Miss. 1979)..ceeeeeees 9
Garéner v. Plorida, 430 U.8. 337 (IDST7T) ceocccccecsecceosspatoas
Godfrey v. Georgia, 446 U.S. 420 (1980) wuseseesneveuess 25
Gregg v. Georgia, 428 U.S. 153 (1976) weseeeennnveeee 9,21,22
Hill v. State, __- So.2d _, “Now $3,795 (1983) ..... 2
Irvin v. Dowd, 359 U.S. 394 (1959) wocceeeeevevecveces 24
Jackson v. Denno, 378 U.S. 368 (1964) wnceceeeesevcees 18
Jackson v. State, 337 So.2d 1242 (Miss. 1976) ....606. 8,9
Lego v. Twomey, 404 U.S. 477 (1972) wncceseeesesscvces 12,16
Lockett v. Ohio, 438 U.S. 586 (1978) wesseesesesenees 20
Murphy v. Waterfront Commission, 378 U.S. 52 (1964) .. 12,18
Nardone v. United States, 302 U.S. 379 (1937) wseseees 12
Ramos v. California U.S. _, 51 U.S.L.W. 5220
(July 6, 1983) eevee eneeneneeeeeee een eee eereee eee er eer er eee 20,24
Roberts (Stanislaus) v. Louisiana, 428 U.S. 325
(1976) *eeeereeeeeee eee en ee eeeeeeeeeere rere eee eer ee ee 9
Sandstrom v. Montana, 442 U.S. 510 (1979) wnnseeennees 18
Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ...«+.- 18
Smith v. North Carolina, U.S. , 74 L.Ed. 2d
622, 103 S.Ct. 474 (1982) crcccccceeccceceesesees 18°19,20
Spain v. State, 59 Miss. 19 (1881) wnnseesessecsceess 9
Spano v. New York, 360 U.S. 315 (1959) wweseesesenes 18
Tippet v. Maryland, 436 P.2d 1153 (4th Cir. 1971) .. 17
Trop v. Dulles, 356 U.S. 86 (1958) wwsssesesesseeces 22
United States v. Crews, 445 U.S. 463 (1980) ...seees 16
United States v. De La Feunte, 548 F.2d 528
(Sth Cir. 1977) ccccccccccccccccccscssccessecs 5
United States v. Hale, 422 U.S 171 (1975) w.seeeees 23
-iv-
Page
United States v. Houltin, 525 P.2d 943
(5th Cie. 1976) ewveeeeeeeeeeeeeeeeeeeeeeeeeeee 5
United States v. Matlock, 415 U.S. 164 (1974) ««eeeees 12
United States v. Tweel, 550 P.2d 297 (5th
Cir. 1977) eeeeeeeeeeneeeeeeeeeeeeeeeeeeeereeeeeee 5
United States v. Wade, 388 U.S. 218 (1967) ...+++- 12,16,17,18
Witherspoon v. Illinois, 391 U.S 510 (1968) «.sseeeues 22
Wong Sun v. United States, 371 U.S 471 (1963) «-seeees 3
Woodson v. North Carolina, 428 U.S. 280 (1976) «sseees 9,22
Zant v. Stephens, U.S. , 51 :0.S.L.W. 4891
(June 23, 1983) cccccccccccccscccccccccccceess 21,22,25
OTHER AUTHORITIES
E.W. Cleary, et al., McCormick on Evidence
(1972) eeeeeeeeeee eee eeeee eee eeeereereeeeeeeee 14,15,16,23
28 0.8.C. § 1257(3) eeeeeeveeeeeeeeeeeeeeeeeeeeeeeeeeee 1
Ped. R. Evi. 403 “eee eeeeeeeee “eeeeeevneveeeeneeeereereereeee 23
Adv. Comm. Note, to R. 403 “eer eneeeee “ee eeneeeeeereneeeeee 23
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1982
ALVIN HILL,
Petitioner,
age
THE STATE OF MISSISSIPPI,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF MISSISSIPPI
Petitioner, ALVIN HILL, prays that a writ of certiorari
issue to review the decision of the Supreme Court of Mississippi
of May 4, 1983, affirming his conviction of capital murder
and his death sentence.
OPINION BELOW
The opinion of the Supreme Court of Mississippi is not
yet reported and is set out at pp. A. l- A. 66 of the Appendix.
JURISDICTION
The judgment of the Supreme Court of Mississippi was
entered on May 4, 1983, and rehearing was denied on May 25,
1983. A timely request for a stay of execution pending
consideration of a petition for a writ of certiorari was
granted by Justice White on June 10, 1983. The jurisdiction
of this Court is invoked under 28 U.S.C. § 1257(3).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
EE SEE ERE ERUV IS LONS INVOLVED
This case involves the fifth amendment to the Constitution
which provides in relevant part:
No person ... shall be compelled in any
criminal case to be a witness against
himself ...;
the sixth amendment to the Constitution which provides in
relevant part:
In all criminai prosecutions, the accused
shall enjoy the right to a speedy and public
trial by an impartial jury ...;
the eighth amendment to the Constitution which provides
in relevant part:
Excessive bail shall not be required,
nor excessive fines imposed, nor cruel
and unusual punishments inflicted;
and the fourteenth amendment to the Constitution which provides
in relevant part:
(N]or shall any State deprive any person
of life, liberty, or property, without
due process of law....
It also involves §§ 99-19-101 and 99-19-103, Miss. Code Ann.
(Supp. 1982), which are set out at pages A. 83-A. 85 of
the Appendix.
STATEMENT OF THE CASE
A. Course of Proceedings
Petitioner and two other persons were charged with
the robbery and murder of Robert Watkins, a truck driver. On
November 21, 1979, petitioner was convicted of capital murder
in the Circuit Court of De Soto County, Hernando, Mississippi.
He was sentenced to death on November 26, 1983.
On May 4, 1983, the Supreme Court of Mississippi affirmed
the conviction and sentence. Hill v. State, So.2d ,
No. 53,795 (1983). Rehearing was denied on May 25, 1983. An
execution date was set for June 15, 1983. On June 8, 1983,
the Mississippi Supreme Court denied an application for a
stay of execution pending consideration of a petition for a
writ of certiorari. Justice White, acting as Circuit
Ja
Justice, granted a stay on June 20, 1983.
B. Pacts Relevant to the Questions Presented
(1) Petitioner's Challenge to the Admission of
Evidence Discoverea z 10iting his Illegall
Obtain Confession:
At the time that the body of the victim was
discovered on August 17, petitioner was in custody on another
charge. A. 2.-/ His co-defendant on that charge, Sammy
Hampton, made a statement implicating petitioner in the death
of Watkins. A. 2-3. Petitioner was questioned by Sheriffs
Monteith and Sowell and Officer Ward on Saturday, August 18,
1979. At 5:00 P.M., petitioner confessed to the robbery/murder
of Watkins. He told the officers that the weapon used in the
crime had been thrown into the river. A. 3-4. Officer Ward
went to retrieve the weapon, but was unable to find it. He
returned at 8:00 P.M. and interrogated Hill further. At that
time, Hill told him that the weapon was with a Mr. Carter in
Memphis. T. 492.
The next day, on Sunday, August 19, Sheriff
Monteith contacted Officer Rust in Memphis and asked him to
retrieve the gun from Carter. Rust met Carter at his
workplace on Monday, August 20, and took possession of the
gun.
Petitioner made a pretrial motion to suppress
the confession as involuntary. The trial court heard the
testimony of Sheriffs Monteith and Sowell and Officer Ward.
It granted the motion to suppress, finding that the confession
was involuntary because it was obtained as a result of induce-
ments made by Officer Ward. A. 5. Based on Wong Sun v.
United States, 371 U.S. 471 (1963), defense counsel made a
timely motion to suppress the weapon as a fruit of the illegal
confession. T. 490. The state then adduced the
e/ References to the Appendix to this petition are designated
by A. __.- References to the trial transcript are designated
ee
testimony of Sheriff Monteith to establish an independent
source for his knowledge cof the location of the gun. In
response to leading questions by the prosecutor ,+/ the sheriff
affirmed that he had interviewed petitioner's accomplice to
the prior robbery, Sammy Hampton. And, in the prosecutor's
words, he also affirmed that he called the Memphis police
"“(ajs a result of those interviews." The sheriff, however,
could not remember when he had called Memphis. T. 381-82. -
The court denied the motion to suppress the gun at that time.
At trial, defense counsel renewed his motion
to suppress the gun. The hearing on that motion was held in
chambers. The Memphis officers testified that the sheriff
never mentioned to them the source of his information. fT.
473 & 475 (Sgt. Rust). More importantly, they testified that
they had arrested Sammy Hampton at his home in Memphis the
day before they retrieved the gun, T. 482 (Sgt. Priddy), --
i.e., on Sunday, August 19th, the very day Sheriff Monteith
called them about the gun. The balance of the state's evidence
established the chain of custody. See, e.g., T. 485-86.
The defendant then took the stand and testified
to the conversation he had with Officer Ward at 8:00 P.M. on
the night of the confession. The state made no attempt
1/ The exact text of the testimony relied on by the Mississippi
Supreme Court in affirming the finding of independent source
is as follows:
Q. Sheriff Monteith, in the course of your
investigation, did you have occasion to
interview Sammy Hampton?
A. I did.
Q. As a result of those interviews, did you at
anytime inform officers of the Memphis Police
Department where a possible gun could be found?
A. I did.
A. 5 (quoting T. 379) (emphasis in original). Defense counsel
objected to the prosecutor leading the witness through such
critical testimony. Although noting that the questions were
"somewhat leading," the trial judge overruled the objection
and characterized the questions as “basically proper." fT.
379-80.
to explain or rebut this testimony. It failed to call Sheriff
Monteith, Officer Ward, or Sammy Hampton who might have esta-
blished that Ward did not learn about the gun from petitioner,
that Monteith and Ward did not speak, or that Monteith and
Hampton did. Nevertheless, the trial court admitted the gun
into evidence on the ground “that the information [concerning
the gun obtained] by Sheriff Monteith was developed from some
source other than the Defendant." T. 495. The court did not
find that the source was in fact Hampton, who was in Memphis,
or that it was not Ward, who had obtained it from petitioner.
On direct appeal, the Mississippi Supreme
Court affirmed the admission of the weapon. Relying on three
Pifth Circuit, fourth amendment cases that held only that the
burden of proving independent source or attenuation falls on
the government -- United States v. Tweel, 550 F.2d 297 (Sth
1977); United States v. De La Puente, 548 P.2d 528 (5th Cir.
1977); and United States v. Houltin, 525 P.2d 943 (5th Cir.
1976) -- the Mississippi court pegged that burden at the
preponderance of the evidence standard. A. 14. It then
turned to the evidence in this case.
Hill testified he gave Ward information about
the gun. This is uncontradicted.
On the other hand, if Hampton also gave Tunica
County Sheriff Monteith information about the gun,
this could very well be an independent source, and
certainly “sufficiently distinguishable" from the
information from Hill “to be purgred of the primary
taint.*
Regrettably, for all concerned -- including
this Court -- the record is incomplete.
Let us go to Wednesday afternoon, November 19,
1980, in the chambers of the circuit judge. The
previous day he has heard Sheriff Monteith testify,
and from that testimony (although perhaps not as
clearly stated as it might have been), coupled with
what the Memphis police officers testified, one
could only conclude that Hampton told Sheriff
Monteith about the Carter gun. Indeed, there
seemed to be no question about it.
The circuit judge is then suddenly confronted
with a startling second possibility. Hill had just
testified that he told Ward that Carter had the
gun.
At this intriguing, tantalizing moment, the
well of information runs dry. While either Ward,
Monteith, or Hampton -- certainly two out of these
three -- could have cleared the air and removed all
doubt in a few moments of testimony, none was called.
Why?
The defense cogently argues that their hypothesis
for the information concerning the location of the
gun was correct. But, with the record before us,
that is all it is. While we agree that the state
arguably should have offered some rebuttal to
Hill's testimony in chambers, it chose not to do
so, and rested on the testimony of Sheriff Monteith
the previous day.
Conduct of defense counsel is puzzling. They
did not recall Ward or Sheriff Monteith for further
cross-examination. This failure might be understandable
in the middle of this difficult and enormously
burdensome trial. But, let us move further in the
proceedings. Following trial, defense counsel made
a motion for a new trial, and one of their strongest
arguments was the admission of the gun into evidence.
With ample time to prepare for the hearing on this
motion, they did not subpoena Ward, Sheriff Monteith,
or Hampton to testify, and no affidavit of any of
these three was supplied the court.
On the testimony which was before the circuit
judge and the record as made, no one could ever
know which of these two hypotheses is correct.
Argument from now until doomsday coud never give
the answer; from this record we are damned to an
eternal suspense.
Under these circumstances we are not about to
fault a beleaguered trial judge, nor can we say
he abused his discretion in finding that the in-
formation about the gun came from an independent
source.
A. 14-a. 16.2/
2/ While the court also affirmed on the theory that, “[oJn
he record before him at trial, and in the motion for a
new trial, [the trial judge] had a right to believe the
testimony of the officers, and we find no reversible error
on this record in his having done so...," A. 16, it identified
no such credibility determinations by the trial judge.
It could not, because the trial judge did not even deal
with the relevant question: whether Monteith obtained the
information from Ward.
Recognizing the tenuous nature of its conclusions,
the Mississippi court concluded that: "“Ruefully, we are con-
Strained to ... remind the state that with all the post-
conviction proceedings available to an accused in both our
state and federal courts, this opinion may not be the last
word on the above assignment of error." A. 16 n. 5.
(2) Petitioner's Challe e to the Instructions
at the Sentencin oho hat a Reasonable
At the sentencing phase, the trial court gave
one instruction proposed by the prosecutor that could have
led a reasonable juror to conclude that, under certain cir-
cumstances, he or she was requiréd to impose death. at the
Same time, it refused defense instructions that would have
Clarified to the jury that it retained the right to exercise
its discretion in favor of mercy.
The instruction chat was given indicated that,
in order to impose only a lite sentence, the jury had to find
that the mitigating factors outweighed the aggravating factors.
Jury instruction S. 3-A read:
If an element of aggravation is found
to exist, then you must consider whether
there are mitigating circumstances which
outweigh the aggravating circumstance....
If you find from the evidence that one or
more of the preceding elements of mitigation
exists, then you must consider whether they out-
weigh the aggravating circumstances you previously
found....
A. 70. Defense counsel requested an instruction that would
have made clear to the jury that it was entitled to exercise
mercy under any circumstances it deemed appropriate: "A life
sentence may be returned regardless of the evidence." Proposed
Instruction D-2, A. 77.3/ Defense counsel objected to S. 3-A
unless D-2 were given to clarify that the jury could still
impose life. T. 733-35. He argued that under Jackson v.
State, 337 So.2d 1242, 1256 (Miss. 1976), the jury always
retains the option to impose only lite. T. 734-35. The
judge overruled the objection and denied D-2, stating that:
"I don't think I can give D-2. I don't think there's any
basis in law for that instruction .... D-2 is retused. It
just doesn't work in with what I am required to do.” T. 736.
Instruction S. 3-A also prescribed the form of
the jury's verdict. It provided the jury with three options
only. The jury could decide “that the Defendant should be
sentenced to lite imprisonment...;" that it “has been unabie
to agree unanimously on punishment...;" or to impose the
death sentence. A. 70-A. 71. In the latter case, the jury
was instructed to enter the following verdict:
We, the Jury, unanimously find that the
aggravating circumstance or circumstances of:
{Here the instruction left six blank
lines for the jury to fill in the cir-
cumstances found]
outweigh the mitigating circumstances and are
sufficient to impose the death penalty, and that
there are insufficient mitigating circumstances
to outweigh the aggravating circumstances and
we unanimously find that the Defendant should
suffer death.
A. 70-A. 71. The actual jury verdict was returned in exactly
those words. A. 8l1-A. 82.
3/ Proposed defense instruction D-8 would also have told
the jury that it could tind that the aggravating circum-
stances outweighed those in mitigation but that they were
still insufficient to support a death sentence. A. 80. This
instruction was also refused. A. 79.
On appeal, a divided Mississippi Supreme Court
upheld the instructions. Over three dissenting votes, the
majority held that the jury did not understand the instructions
to mandate death if the aggravating circumstances were not
outweighed by the mitigating circumstances. It deduced this
from the language of the jury's verdict, which stated (as
instructed) that it found the aggravating circumstances to
outweigh the mitigating circumstances and that the aggravating
circumstances were sufficient. A. 26.
The dissent would have found error as a matter
of both state and federal law. It noted that, at least since
1881, Mississippi law “confers on ... a jury the unconditional
right to fix the punishment at imprisonment for life." A. 32
(quoting Spain v. State, 59 Miss. 19, 24 (1881)). Twice,
construing both post-Purman statutes, the Mississippi court
had held that the jury retained that power. Jackson v. State,
337 So.2d at 1256;4/ Coleman v. State, 378 So.2d 640, 646-47
(Miss. 1979) .2/ Moreover, the dissent noted that this Court's
decisions in Woodson v. North Carolina, 428 U.S. 280, 301
(1976), and Roberts (Stanislaus) v. Louisiana, 428 U.S. 325,
332 (1976), precluded a mandatory death sentence while Gregg
v. Georgia, 428 U.S. 153 (1976), upheld the Georgia statute
based, in part, on the observation that the jury retained the
power to exercise its discretion in favor of mercy. Id., 428
U.S. at 197 and 222. It concluded that the majority's approval
of the instructions in this case
4/ In Jackson, the Mississippi court held that: "The jury
shall not be required to make a special finding of any mitigating
circumstance in order to return a verdict that the accused
should be sentenced to life in prison." Id., 337 So.2d at
1256 (emphasis added).
5/ In Coleman, the Mississippi court held that: "If the
State merely proves the existence of an aggravating circum-
stance, the jury is free to find it insufficient to warrant
death and is not required to automatically impose death."
Id., 378 So.2d at 646-47 (emphasis added).
moves the clock back to an age and practice this
state found unconscionable over a century ago,
and rejected. Such construction will most assuredly
make us open to the attack of violating the "evolving
standards of human decency.”
(3) Petitioner's Challenge to the Admission of
Highly emotional, Prejudicial Photographs
of the Badly Decoapored Body of the Victim
at th t uilt/Innocence an ntencing
ses o s Trial.
The victim was killed on July 12, 1979. A.2.
His body was not discovered until August 17, 36 days later.
A. 1. By that time , it was so badly decomposed that it was
nothing more than “human bones and remnants of rotting tlesn.”
A. 2. The medical examiner testified that he “had to get a
screen mesh and a water hose and go through it [aj handtui at
atime." T. 500. Nevertheless, the trial court allowed the
prosecutor to admit seven photographs of the decomposed body
at both the guilt/innocence and sentencing phases ot petitioner's
trial.
At the guilt/innocence phase, the prosecutor
argued that the photographs were relevant to prove identiti-
cation, corpus delecti, and cause of death. T. 279. In his
opening statement, however, the prosecutor had said that
identity and cause of death would be established by the
testimony of torensic experts. T. 200. Indeed, the experts
did establish both identity and cause ot death; they did so
without once reterring to the photographs. T. 536 and 546-
59. Similarly, the prosecutor put on two eyewitnesses who
testified about the discovery of the body and its deteriorated
condition -- more than enough to establish corpus delecti.
T. 274 and 291.
The prosecutor also offered the photographs
at the sentencing phase. T. 659. He argued that they were
relevant to show that “the crime was committed in a cruel,
atrocious and heinous manner.“ T. 654 (emphasis added). The
court readmitted the photographs. T. 659.
At both the guilt/innocence and sentencing
phases, the prosecutor deliberately compounded the prejudicial
effect of the photographs. At the guilt/innocence phase, the
prosecutor specifically requested that the photographs be
passed amongst the jury for their view. That request was
granted. T. 295-96. The record shows that no other exhibit
was passed amongst the jury. The prosecutor also made reference
to the decomposed state of the body in both his opening statement
at the guilt/innocence phase and his closing statement in
support of the death penalty at the sentencing phase. T. 200
and 744.
Defense counsel's timely objections to the
introduction of the photographs at both the guilt/innocence
and sentencing phases were overruled. T. 276 and 653. On
appeal, the Mississippi Supreme Court affirmed the admission
of the photographs in one sentence, noting that it was within
the court's discretion and that the photographs had “probative
value.” <A. 18.
lle
REASONS POR GRANTING THE WRIT
I. THE COURT SHOULD GRANT THE WRIT TO DELINEATE THE
STANDARD OF PROOF BY WHICH THE STATE MUST CARRY
ITS BURDEN OF SHOWING AN INDEPENDENT SOURCE POR
PHYSICAL EVIDENCE THAT, OTHERWISE, IS A PRESUMP-
TIVE “PRUIT" OF AN ILLEGALLY OBTAINED CONPESSION
This case presents an issue never determined by
this Court: the standard by which the state must prove in-
dependent source when the primary source for the evidence
admitted is an illegally obtained confession. Previously,
the Court has held that the issue of voluntariness itself is
to be established by a preponderance of the evidence stan-
dard. Lego v. Twomey, 404 U.S. 477, 489 (1972) (fifth amend-
ment); United States v. Matlock, 415 U.S. 164, 177 (1974)
(fourth amendment; consent to search). And, once the pri-
mary illegality has been established, it is clear that the
burden of showing independent source or attenuation falls on
the government. Murphy v. Waterfront Commission, 378 U.S.
52, 79 n.18 (1964) (fifth amendment); Nardone v. United
States, 302 U.S. 379 (1937) (fourth amendment). Only in the
context of a sixth amendment violation, however, has the Court
determined the standard of proof for showing independent
source. In United States v. Wade, 388 U.S. 218 (1967), the
Court held that the government must show independent source by
"clear and convincing evidence." Id. at 240. The writ should
be granted in this case to determine the standard of proof by
which the state must show an independent source for the fruit
of an illegally obtained confession. Where, as here, the
fifth amendment right to be free of compulsory self-incrimina-
tion is involved, the manifest errors implict in the record
below demonstrate the appropriateness of the clear and convinc-
ing evidence standard.
- 12 <-
A. The Errors Below
A review of how the Mississippi courts dealt with
the question of independent source in this case indicates
both that there was error and that the clear and convincing
evidence standard should be applied. The trial court ad-
mitted the weapon based on the sole finding that Sheriff
Monteith did not obtain information regarding its location
from petitioner himself. T. 495. But it never determined
whether the sheriff obtained it from Ward. As noted by the
Mississippi Supreme Court, it is "uncontradicted" that ward
obtained the information from petitioner illegally. A. 14.
The obfuscatory analysis of the Mississippi Supreme
Court, moreover, only compounded the error. It started from
the correct premise that the state bore the burden of proving
independent source. A. 14. Without analysis or supporting
precedent, it pegged this burden at only a preponderance.
Id. But even so, it affirmed the admission of the weapon
despite the recognition that “the record is incomplete," A.
14; that the state's evidence was “not as clearly stated as it
might have been," A. 15; “that the state arguably should have
offered some rebuttal,” id.; and that “either Ward, Monteith
Or Hampton,” all witness under the control of or available to
the state, “could have cleared the air and removed all doubt."
Id.
If this meets even the preponderance standard, it
is an extremely close call. But even the “Fade eae court
acknowledged in the end that it does not. Rather,
6/ Petitioner submits that a fair reading of the record
shows that the preponderance of the evidence supports the
conclusion that the state did not have an independent source
for the location of the gun. Petitioner's testimony that he
told Ward about the gun was uncontradicted. The state could
- 13 -
it saw the evidence in equipoise: “On... the record as
made, no one could ever know which of these two hypotheses is
correct. Argument from now until doomsday could never give
the answer; from this record we are damned to an eternal
suspense,” A. 16. Yet, despite this “eternal suspense," it
affirmed the admission of the weapon.
This ruling can only be explained in one of two
ways. If, finding the evidence in equipoise, the court still
ruled against petitioner, then it is clear that the court
must have in fact placed the burden of proof on petitioner.
The very puprose of a burden of proof is to tell the fact-
finder that, when he “finds himself in doubt, he... must
decide the issue against the party having the burden. ..."
E.W. Cleary, et al., McCormick on Evidence § 336 at 784 (1972).
Indeed, the opinion of the Mississippi Supreme Court indi-
cates that it did place the burden on petitioner. It noted
that defense counsel should have called Monteith or Ward for
further cross-examination. A. 15. And it found, failing
that, defense counsel should have subpoenaed Monteith, Ward,
Or Hampton -- or at least produced their affidavits -- on the
defense motion for a new trial. Id. Thus, it 1s clear both
from the court's ultimate ruling and its reasoning that it
6/ continued
have produced either Ward or Monteith to show that Ward did
not relay the information to Monteith. It did not. On the
other hand, the only testimony supporting the conclusion that
there was an independent source was the prosecutor's leading
questions that Monteith affirmed. Monteith did not say how or
when or where he spoke to Hampton. The record testimony is
uncontradicted that when Monteith was supposedly talking to
Hampton, Hampton was across the state line being arrested by
the Memphis police. T. 482.
Moreover, as noted above, there is no finding by the
trial court on any of the critical factual issues. Its only
finding was that the defendant did not tell Monteith about
the gun. In sum, had the trial court made any relevant
finding that a preponderance of the evidence showed an
independent source, it would not be supported by the record.
- 14 -
improperly placed the burden on petitioner.
The only other alternative is that the Mississippi
Supreme Court did not apply a burden of proof analysis at
all. Rather, noting that the evidence was in equipoise,
A. 16, the court may simply have deferred to the trial judge's
resolution. If so, this was error. "(T]he principal signifi-
cance of the burden of persuasion is limited to those cases
in which the trier of fact is actually in doubt. Possibly,
even in those cases, ... judges... pay only lip service
to it, trusting that the appellate courts will not disturb
their findings . . . ." McCormick, supra, § 336 at 784.
Indeed, the court's opinion provides Support for the con-
clusion that it did just that. It noted that: “Under these
circumstances we are not about to fault a beleaguered trial
judge, mor can we say that he abused his discretion. .
- +" A. 16. There is no support in theory or precedent
for the application of an abuse of discretion standard; it is
the essence of lawlessness to leave critical factual determina-
tions in a criminal case to the "discretion" of the factfinder
without regard to the weight of the evidence.
B. Clear and Convincing Evidence as the A
The Court should grant the writ to make clear that,
once the primary illegality of a fifth amendment violation
has been shown, the state must bear the burden of proving
independent source by clear and convincing evidence. The
Mississippi court purported to place the burden of proof by a
preponderance on the state. Yet the facts of this case make
clear that the state was only required to to make some factual
showing -- no matter how slight, how incomplete, or how
unclear. Only the application of a clear and convincing
evidence standard can prevent the recurrence of these errors.
- 18 «
Several of the same factors that determine the
allocation of the burden support the application of this
standard. First, the degree of the burden is appropriately
higher “where the facts with regard to an issue lie peculiar-
ly within the knowledge of a party." McCormick, supra, § 337
at 788. Where, as here, only the state can know the identity
of the purported independent source, it is no undue burden to
require it to adduce clear and convincing evidence. ad
Second, "a more frequently significant consideration in the
fixing of the burdens of proof is the judicial estimate of
the probabilities of the situation." Id. Where, as here,
the court has already found a primary illegality, it must
"begin with the premise that the challenged evidence is in
some sense the product of illegal government activity."
United States v. Crews, 445 U.S. 463, 471 (1980). Thus, the
preponderance standard applied in Lego, where the issue was
the existence of the primary illegality, is not the appro-
priate one. Rather, as in Wade, the state should bear a
higher burden to establish that it did not, in fact, continue
to exploit the prior illegality.
That the Wade clear and convincing evidence standard
is more appropriate because of the estimate of probabilities
is nicely illustrated by this case. The trial court had
already found that Sheriff Monteith and Officer Ward had
illegally obtained Hill's confession. It was uncontradicted
7/ Conversely, the defendant is at an undue disadvantage in
trying to disprove independent source when only a prepon-
derance standard is applied. Without extensive discovery, he
will be hard put to elicit from essentially hostile witnesses
evidence that might serve to undercut their story. The
application of a clear and convincing evidence standard more
nearly equalizes the contest.
e 16 -
that Officer Ward exploited this illegality to obtain the
location of the gun. Yet the Mississippi courts admitted the
gun on the unsupported statement of Monteith, who was intimately
involved with Ward in the investigation, that he found out
about the location of the gun not from his fellow law enforcement
agent but from petitioner's former accomplice who was in the
process of being arrested at his home across the state line
in Memphis. Surely, more substantial evidence should be
required to support a finding that the sheriff did not employ
the obvious and more simple expedient of exploiting the prior
illegality.
The Wade standard is more appropriate for another
reason. Standards of proof serve “to allocate the risk of
error between the litigants and to indicate the relative
importance attached to the ultimate decision.” Addington v.
Texas, 441 U.S. 418, 423 (1979). “In cases involving individual
rights, . .. ‘(t]he standard of proof [at a minimum) reflects
the value society places on individual liberty.'* Id., 441
U.S. at 425 (quoting Tippet v. Maryland, 436 F.2d 1153, 1166
(4th Cir. 1971)). In Wade, the liberty interest involved was
the defendant's fundamental sixth amendment right to counsel.
Here, the equally fundamental fifth amendment principle
8/
against compelled self-incrimination is at stake. a
8/ As important as it is that persons who have
committed crimes be convicted, there are
considerations which transcend the question
of guilt or innocence. Thus, in cases in-
volving involuntary confessions, this Court
enforces the strongly felt attitude of our
society that important human values are
sacrificed where an agency of the government,
in the course of securing a conviction, wrings
a confession out of an accused against his
will... . “The abhorrence of society to the
use of involuntary confessions . . . also turns
on the deep-rooted feeling that the police must
obey the law while enforcing the law; that in the
We
There is no principled way in which the sixth amendment values
at stake in Wade which required this higher standard can be
distinguished from the fifth amendment values here; indeed, in
formulating the clear and and convincing evidence standard for
proof of an independent source in Wade, this Court expressly
relied on its prior fifth amendment cases. Wade, 388 U.S. at
240 (citing Murphy v. Waterfront Commission, 378 U.S. at 79
n.18).
The Court should grant the writ to determine the
standard of proof by which the state must carry its burden of
showing independent source in a case involving the fifth
amendment. Alternatively, the Court should grant the writ t.
determine whether the burden of proof on this issue was
impermissibly shifted to petitioner.
II. THE COURT SHOULD GRANT CERTIORARI TO DETERMINE WHETHER
INSTRUCTIONS TO THE JURY AT THE PENALTY PHASE THAT A
REASONABLE JUROR COULD HAVE UNDERSTOOD TO LIMIT HIS OR
HER DISCRETION TO EXERCISE MERCY AND, UNDER CERTAIN
CIRCUMSTANCES, MANDATE THE IMPOSITION OF A DEATH
SENTENCE VIOLATE THE EIGHTH AND FPOURTEENTH AMENDMENTS
The instructions actually given to the jury at the
sentencing phase of petitioner's trial could have led a rea-
sonable juror to believe that he or she could not vote for
8/ Continued
end life and liberty can be as much endangered
from illegal methods used to convict those
thought to be criminals as from the actual
criminals themselves."
Blackburn v. Alabama, 361 U.S. 199, 206-07 (1960) (quoting
s v. New York, 360 U.S. 315, 320-21 (1959)). Accord
ars
[oth v. Bustamoate, 412 U.S. 218, 225 (1973); Jackson v.
Benno, . Ve ’ (1964).
9/ Constitutional review of jury instructions “requires
careful attention to the words actually spoken to the jury, .
- « for whether a defendant has been accorded his constitu-
tional rights depends upon the way in which a reasonable
juror could have interpreted the instruction." §& t v.
Montana, 442 U.S. 510, 514 (1979). See also Smi v.
- 19 -
a life sentence unless the mitigating factors outweighed the
aggravating factors. Instruction S. 3-A told the jurors
that, if they found an aggravating circumstance, they "must
consider whether there are mitigating circumstances which
Outweigh”® it. A. 70. (emphasis added). Conversely, it told
the jurors that, if they found mitigating circumstances, they
"must consider whether they outweigh the aggravating cir-
cumstances. . . ." Id. (emphasis added). Petitioner offered
a curative instruction, Proposed Instruction D-2, A. 77, that
would have made clear that the jury retained discretion to opt for
mercy. In giving the instruction described above but refusing
the proffered curative instruction, the court deprived petition
of his rights under the eighth and fourteenth amendments
because it created "the risk that the death penalty will be
imposed in spite of factors which may call for a less severe
9/ Continued
Carolina, U.S. , 74 L.Ed.2d 622, 623, 103 S.ct. 474,
4 ( 2) (Stevens, J., opinion respecting denial of certiorari)
("instructions [that] may lead the jury to believe. . o*).
Because of its view of the case, the Mississippi Supreme
Court did not apply this standard. Rather, it concluded from
the form of the jury's verdict that the jury had no doubt but
that the aggravating circumstances outweighed those in mitigation
and that they were sufficient to justify the death penalty.
- 26. However, the record makes Clear that the jury only
returned the verdict in the form in which it was instructed
to. Thus, reliance on the form of the jury's verdict in this
case is misplaced. Indeed, it constitutes circular reasoning:
If the jury thought that it had to impose death if the mitigating
factors did not Outweigh those in aggravation, then it would
have felt itself compelled to enter the verdict of death in
the form instructed by the court. Thus, the fact that it
entered its verdict in the precise form of the instruction
cannot tell us anything about what it understood or found.
- 19 ~-
="
penalty." Lockett v. Ohio, 438 U.S. 586, 605 (1978).
The risk that the jury may have returned a death
sentence because it felt its judgment constrained is one of
constitutional significance. In finding that the mitigating
factors did not outweigh those in aggravation, it is "entirely
possible” that the jury might “yet feel that a comparison of
the totality of the aggravating factors with the totality of
mitigating factors leaves it in doubt as to to the proper
penalty. But the death penalty can be constitutionally imposed
only if the procedure assures reliability in the determination
that ‘death is the appropriate punishment in a specific
case.'* Smith v. North Carolina, U.S. , 74 L.Bd.2d
622, 623, 103 S.Ct. 474, 475 (1982) (Stevens, J., opinion
respecting denial of certiorari) (quoting Lockett, 438 U.S.
at $01).-”
The recent opinions of the Court underscore the
importance of the jury's exercise of the full range of its
judgment in making the critical decision of life or death.
"Once the jury finds that the defendant falls within the
legislatively defined category of persons eligible for the
death penalty, .. . the jury is then free to consider a
myriad of factors to determine whether death is the appro-
priate punishment." Ramos v. California, U.S. » 3
U.S.L.W. 5220, 5225 (July 6, 1983). Death cannot be mandated,
for the jury must be free to consider both the individual
before it and society's values of mercy. “It is entirely
fitting for the moral, factual, and legal judgment of judges
10/ Another proferred defense instruction, D-8, would have
made clear that the jury should impose life if it found that
the aggravaing factors outweighed those in mitigation but
were nevertheless “insufficient.” A. 80. It too was rejected.
A. 79.
@- 20 -
and juries to play a meaningful role in sentencing." Barclay
v. Plorida, U.S. , 51 U.S.L.W. 5206, 5209 (July 6,
1983) (plurality opinion). Indeed: "The sentencing process
assumes that the trier of fact will exercise judgment in light
of his or her background, experiences, and values." Id., 51
U.S.L.W. at 5214 (Stevens, J., concurring). Por it is only in
that way that “sentencing juries ‘maintain a link between
contemporary community values and the penal system. ...'*
Id. (quoting Gregg v. Georgia, 428 U.S. 153, 190 (1976)).
It is thus not surprising that, in almost every
Opinion upholding the Plorida or Georgia statute on its face
Or as applied, the Court has noted that the statute allows
the jury to exercise mercy. In Barclay, for example, the
plurality noted that the Plorida statute allows the sentencer
to determine that the aggravating factors are not "sufficient"
to impose death. Id., 51 U.S.L.W. at 5210 n.12. Similarly,
the concurring opinion in Barclay notes that: “In both
Plorida and Georgia, even if the statutory threshold has been
crossed and the defendant is in the narrow class of persons
who are subject to the death penalty, the sentencing authority
is not required to impose the death penalty." Id., 51 0.S.L.W.
at 5212. Indeed, Justice Stevens's opinion identified an
entire class of Plorida cases “in which statutory aggravating
circumstances exist, and arguably outweigh statutory mitigating
circumstances, but they are insufficiently weighty to support
the ultimate sentence. . .." Id.
The opinions upholding the Georgia statute also
recognize this critical feature. Thus, in Zant v. Stephens,
U.S. __, Sl U.S.L.W. 4891 (June 23, 1983), the Court
noted Gregg's approving observation that: "The jury is not
required to find any mitigating circumstance in order to make
- 21 -
a recommendation of mercy that is binding on the trial court.
- +" Stephens, 51 U.S.L.W. at 4894 n.13 (quoting Gregg,
428 U.S. at 196-97). And in Gregg, the Court noted that:
“The Georgia Legislature has plainly made an effort to guide
the jury in the exercise of its discretion, while at the same
time permitting the jury to dispense mercy on the basis of
factors too intangible to write into a statute. ..." Id.,
428 U.S. at 222.
Where, as here, the jury might have felt itself
constrained to base its verdict on the mere weight of the
aggravating and mitigating factors, “the sentencing process
{is] transformed into a rigid and mechanical parsing of
Statutory... factors.” Barclay, 51 U.S.L.W. at 5209. But
the eighth amendment requires an “individualized determination,"
Stephens, 51 U.S.L.W. at 4895 (emphasis in original), “that
death is the appropriate punishment in a specific case."
Woodson v. North Carolina, 428 U.S. at 305. The trial judge's
refusal to give petitioner's proffered instruction resulted in
a death sentence unmoored from the jury's values of mercy,
destroying the “link between contemporary community values and
the penal system -- a link without which the determination of
punishment could hardly reflect ‘the evolving standards of
decency that mark the progress of a maturing society.'*
Gregg, 428 U.S. at 190 (quoting Witherspoon v. Illinois, 391
U.S. 510, 519 n.15 (1968), and Trop v. Dulles, 356 U.S. 86,
101 (1958)).
III. THE COURT SHOULD GRANT CERTIORARI TO DETERMINE WHETHER
EMOTIONALLY CHARGED PHOTOGRAPHS OF THE THIRTY-SIX-DAY-
OLD DECOMPOSED BODY OF THE VICTIM WHICH HAD ONLY DE
MINIMIS PROBATIVE VALUE CAN BE ADMITTED AT THE GUILT/
INNOCENCE AND SENTENCING PHASES OF A CAPITAL CASE
Seven photographs of the 36-day-old decom-
posed corpse of the victim were admitted at both the guilt/
@ 22 «
innocence and sentencing phases of petitioner's trial. The
Court should grant the writ to determine whether, given the
de minimis probative value of the photographs, it violated
due process to admit them at the guilt/innocence phase
and whether the admission of the photographs at the sentencing
phase deprived petitioner of the reliable sentencing procedures
mandated by the eighth amendment. See, e.g., Gardner v.
Plorida, 430 U.S. 349 (1977).
At the guilt/innocence phase, the prosecution argued
that the photographs were admissible to show cause of death,
identity, and corpus delecti. However, it amply proved all
those elements through the live testimony of forensic experts
and the police officers who discovered the body. In each
case, the witness was able to testify without reference to
any of the photographs. Thus, at best, the photographs were
merely cumulative. But there can be no doubt that the photographs
of the badly decayed body were emotionally charged and highly
prejudicial.
It is hornbook law that evidence should be excluded
if the potential prejudice -- "the danger that the facts
offered may unduly arouse the jury's emotions of prejudice,"
~~ outweighs its probative value. McCormick, Supra, § 185 at
439. Accord Ped. R. Rev. 403; see also United States v. Hale,
422 U.S. 171, 173, 180 (1975). *'Unfair prejudice’...
means an undue tendency to suggest decision on an improper
basis, commonly, though not necessarily, an emotional one."
Adv. Comm. Notes to Rule 403. “The availability of other
means of proof® is also a factor. Id. Where, as here, the
prosecution was in fact able to prove every necessary element
without the prejudicial photographs, the admission of the
photographs deprived petitioner of an unbiased jury
= 23 «
in violation of the sixth amendment and the requirements of
due process. Cf. Irvin v. Dowd, 319 U.S. 394 (1959).
The admission of the photographs at the sentencing
phase was error of even greater constitutional Gimension. In
Gardner v. Plorida, the Court held that the action of the
state in taking life is so drastic that the decision to do so
must “be, and appear to be, based on reason rather than caprice
Or emotion." Id., 430 U.S. at 357. The introduction of the
photographs at the sentencing proceeding introduced highly
emotional but otherwise irrelevant considerations, destroying
the special reliability necessary to capital sentencing.
Whatever arguable probative value the photographs
might have had at the guilt/innocence phase had long since
expired by the sentencing phase. The prosecutor argued that
the photographs were nevertheless relevant to show that “the
crime was committed in a cruel, atrocious and heinous manner."
T. 654 (emphasis added). But any atrocious aspects of the
photographs resulted from the inevitable decomposition that
occurs naturally, not from the manner in which the crime was
committed.
The admission of the photographs runs afoul of this
Court's precedents in at least four ways. Pirst, photographs
of “human bones and remnants of roting flesh," A. 2, resulting
from subsequent, natural decomposition adduce nothing that is
accurate, reliable, or even relevant to the circumstances of
the crime or the character of the defendant. Thus, “the
sentencer might have rested its decision in part on erroneous
Or inaccurate information," Ramos, 51 U.S.L.W. at 5224, that
was, in addition, irrelevant. Second, "an aggravating cir-
cumstance must genuinely narrow the class of persons eligible
for the death penalty and must reasonably justify the imposi-
@ 26 «
Sition of a more severe sentence on the defendant compared to
others found guilty of murder.” Stephens, 51 U.S.L.W. at
4895. Since every corpse decomposes with time, allowing the
admission of evidence that only serves to make petitioner's
case indistinguishable from every murder has the effect or
broadening the class -- reintroducing the risk of arbitrary
and capricious capital sentencing condemned in Purman.
Third, in Godfrey v. Georgia, 446 U.S. 420 (1980), the Court
held that: “An interpretation of [the heinous, atrocious,
and cruel aggravating factor] so as to include all murders
resulting in gruesome scenes would be totally irrational.”
Id. at 433 n.16. The prosecutor's argument that photographs
of a crime scene rendered gruesome only by the passage of
time were relevant to the heinous, atrocious or cruel aggravat-
ing factor is even more irrational. Pinally, it is clear
that the admission of these emotionally charged and highly
prejudicial photographs with little or no probative value
served only to create a sentencing process based on caprice
and emotion rather than reason. Gardner, 430 U.S. at
317.
CONCLUSION
Por the foregoing reasons, petitioner respectfully
submits that the petition for a writ of certiorari should be
granted.
Respectfully submitted,
; e.
. fe ——— ——_=
= vv twee
JACK GREENBERG
JAMES M. NABRIT, III
JOHN CHARLES BOGER
STEVEN L. WINTER*
10 Columbus Circle
Suite 2030
New York, N.Y. 10019
——
Attorneys for Petitioner
“counsel of Record
@ 2§ -
SS a a a. a,
Sa es Mtl A
IN THE SUPREME COURT OF MISSISSIPPI
NO. 53,795
ALVIN HILL
STATE OF MISSISSIPPI
EN BANC
HAWKINS, JUSTICE, POR THE COURT OW PARTS I, II, & IIT:
BROOM, PRESIDING JUSTICE, FOR THE COURT ON PART IV:
Alvin Hill appeals from his conviction of capital
murder and sentence of death in the Circuit Court of DeSoto
County. We affira.
The two most serious questions on this appeal concern
the admission of the murder weapon into evidence as being
violative of the “fruit of the poisonous tree” doctrine and
the refusal of the trial judge to grant instructions requested
by the defense in the sentencing phase. The former is dis-
cussed in Part II of this opinion, the latter in Part IV.
The remaining assignments of error are addressed in
Part Iii.
I.
FACTS
On Priday, August 17, 1979, at approximately 6:30 p.a.,
reserve deputy sheriffs Doncid Sutton and Mike Madden were
patrolling Stateline Road in DeSoto County. They observed
y disturbance at a car parked in a driveway and stopped to
investigate. The problem was nothing more than a family
quarrel, but while they were quieting the disturbance, they
detected a foul odor. They walked towards the woods north of
the road, from whence the odor came, and just inside the woods
found the decomposed body of Robert Lee Watkins, whose truck
had been hijacked. Watkins had been robbed and murdered on
July 12, 1979.
At the time of his death Watkins was employed as a
truck driver for American Preight Lines Trucking Company in
Memphis.
Opon seeing the decomposed body, other law enforcement
officers were summoned, and an investigation continued well
into the night. Beside the remains Watkins’ wallet was found,
containing his Tennessee driver's license, his social security
card, and a credit card bearing his name. The remains were
identified by experts, and there is no question but that
the human bones and remnants of rotting flesh the officers
found were what was left of Watkins’ corpse.
On July 16, 1979, after the Watkins murder but prior
to discovery of Watkins’ body, in Tunica County, Alvin dill
and one Sammy Lee Hampton hijacked and robbed a truck driver
employed by the Nat Buring Packing Company. Hill was arrested
and taken into custody for this crime by Tunica County Sheriff
Bugh Monteith on July 20. The record does not reflect pre-
cisely when Hampton was arrested, but no doubt his arrest
also took place on or about July 20.
PBI Agent Bobby G. Shanks questioned Hill in a Memphis
police station on July 19 and 20 about the hijacking of the
mmerican Preight Lines truck. He testified he questioned
Hill again July 25 in tho DeSoto County jail. Present at
these interrogations, in addition to Agent Shanks and sill,
were A. 0. Gatewood of the Mississippi Highway Safety Patrol
and Sheriff Monteith. According to Agent Shanks, he informed
Hill om July 25 that Bampton had told him the previous day
that Hill was involved in the hijacking of the American
=
——
Preight Lines truck and the disappearance of the driver.
According to Shanks, when he sade this statement to Hill,
he replied, “Sammy will get his.*
Ricky Wayne Ward was chief investigator for the DeSoto
County sheriff's office on August 17, 1979, and some time
that night informed Hill the body of Watkins had been found.
Ward next questioned Hill on the morning of August 18
in the Tunica Ciunty jail.
Shortly after 5:00 o'clock that afternoon, in the
presence of Sheriff Monteith, DeSoto County Sheriff Denver
Sowell, deputy Bobby Gene Biffle, and Ward, Hill confessed
the robbery and surder of Watkins. The confession was made
in the sheriff's office in Tunica County.
According to Hill's confession, one Gregory Tucker and
another black male whose name he did not know participated
in the hijacking and robbery, but Hill stated he was the
person who shot Watkins. He stated Watkins was on his knees
at the time, and the first shot was into the back of Watkins’
head. He believed he shot three times. (R. 175). When
asked what he did with the surder weapon, Hill stated it was
1 Whether Sammy Hampton in fact told Agent Shanks that Hill was
involved in the American Preight Lines robbery was not corrobo-
rated. Hampton was not involved in any way in the hijacking of
the American Preight Lines truck, or robbery and murder of
Watkins. He and Hill both pleaded guilty to the robbery of the
meat packing company truck and driver, and were sentenced to
the penitentiary by the Circuit Court of Tunica County. #111
was sentenced on September 6, 1979, to a term of 20 years.
Hill admitted saying, “Sammy will get his,” but said he was
referring to the Tunica County hijacking. He also testified
the response was to @ statement by Agent Shanks that Sammy was
“trying to wake it easy on hisself and why don't you make it
easy on yourself, and I just stated Sammy would get his. That's
what I said.” (R. 780).
In any event, the record discloses no other benefit derived
from Shanks’ questioning of Hill these three days than this one
statement; no confession or incriminating admission was made.
The significance of Hampton's non-involvement in the American
Freight Lines hijacking, and the robbery and surder of Watkins,
will be borne out further in this opinion. It is also clear
from the te of Agent Shanks. that during the questior ag
of Hill in July, 1979, the authorities did not know Watkins had
in fact been killed. They only knew he had disappeared.
Hampton did not testify in this case, and was not listed as a
prospective witness for the state in any pretrial discovery
proceedings.
thrown into the Coldwater River from a highway bridge south
of Hernando.
Two aspects of the confession need now be noted. First,
it was later ruled an involuntary confession on a pre-trial
motion to suppress, and was therefore inadmissible at trial.
Second, Hill's statement in the confession that the gun was
thrown into the river was false. Later in the evening of
Saturday, August 18, around 8:00 to 6:30, Ward returned to
Bill's jail cell, and Bill told him "Mr. Carter® of Memphis
had the we,
On Sunday, August 19, Sheriff Monteith telephoned the
Memphis Police Department and informed officer Bobby S. Rust
that a black male named Robert Carter had the pistol, and
that he worked for either a Goodyear or B.F. Goodrich store
on Union Avenue.
On Monday morning, August 20, officer Rust and Sergeant
Priddy of the Memphis Police Department questioned Carter at
a B.?. Goodrich store on Union Avenue; Carter told them he
had loaned his pistol to a black male he knew only as “Rusty”
(and who in fact was Hill). Carter took the officers to his
apartment in Memphis and delivered the pistol to them. Carter
was not implicated in either of Hill's robberies, and never
was charged with any offense. He testified as a witness for
the state at Hill's trial.
After recovering the weapon, the Memphis Police
Department delivered it to Ward.
On October S, 1979, the grand jury of DeSoto County
indicted Hill, Tucker, and one Laverne Milam for capital
* It would appear from the record that Hill's attorneys were
unaware Hill had again been questioned by Ward on Saturday
night following the confession, when he relented and told Ward
the truth about the gun. This last conversation was never
mentioned by Hill or Ward in the hearing on the pre-trial motion
to suppress the confession. The first mention in the record of
this conversation was Hill's testimony in chambers when defense
counsel objected to the introduction of the gun into evidence.
(R. 931).
murder of Watkins, in the commission of the crime of robbery,
in violation of section 97-3-19 (2) (e) of the Mississippi
Code. Milam did not testify and the record does not reveal
anything about hia other than the fact that he was arrested
in Plagstaf’, Arizona, and returned to Memphis by the Memphis
Police Cepartment. ‘Tucker pleaded guilty to manslaughter and
testified as a witness for the state.
The circuit judge conducted a hearing on November 4,
1980, on the motion to suppress the confession, and ruled
the confession had been given as a result of inducements by
Ward, and was therefore inadmissible.
A bifurcated trial of Hill for capital murder was
begun November 17, 1980, and concluded November 21.
Clarity of this opinion does not require a detail of
the trial evidence. When necessary or appropriate, we will
discuss relevant portions of the record under the various
assignments of error.
One part of the trial proceedings, however, does
Geserve our scrutiny at this time. This involves the admission
into evidence of the murder weapon, the pistol recovered fron
Carter.
When Sherif! Monteith was called as a witness by the
state, the record reveals the following testimony relative
to the source of his information about the surder weapon:
Q. Sheriff Monteith, in the course of your
investigation, did you have cocasion to
interview Sammy Zampton?
A. I did,
Q. As &@ result of att interviews, 4id you at
anytime iaform o cers of ¢ Memphis Police
Department where 4 possible gun could be found?
A. = did.
*- *+
Q. So you recall, Sheriff Monteith, who you gave
that iaformation to?
uw
»
A. I gave it to a Sgt. Priddy of Mator Crimes
in Memphis, Tennessee. Sgt. Priddy.
Q. A@® a result of that information being given
to Sgt. Priddy, do you know whether or not
any weapon was recovered?
A. No, Bir, I do not know whether -- 1: passed
the informaticn on, and I do not know the
results of that -- what the outcome of that
was.
R. 818-819) (emphasis added).
The above testimony of Sheriff Monteith was admitted in
open court without objection by defense counsel.
Later in the trial, the trial judge conducted a nearing
smn chambers prior to the introduction of the murder weapon
before the jury. During that hearing, officer Rust related
the receipt of the information about the pistol from Sherif?
Monteith on Sunday, August 19, as above noted; that Sheriffs
Monteith did not give the source of the information; and chat
Rust did not know from whom Sheriff Monteith got his iafcr-
mation. Rust then testified to obtaining a .357 Magnus Ruger)
revolver pistol from Carter the next Gay, also as above noted.
Officer J. B. Anderson and Sergeant R. £. Priddy of the
Memphis Police Department corroborated the testimony of Rust
as to the recovery of the weapon from Carter. Priddy further
testified that Hampton had been previously arrested for the
Tunica County robbery and that Hampton had supplied no infor-
mation about the American Freight Lines hijacking. Priddy
also testified that in their questioning of Milam, he had no
knowledge of where the pistol came ‘roa.
stol from the
Ward then testified he had received the P
Memphis Police Department. Ward was not asked on direct
examination and did not testify whether he had received any
information about this gun from Hill.
Om crogs-examination of Ward, the following appears
in the record:
-6-
Q. Rick, you did not participate in the
recovery of this weapon?
A. Mo, I was contacted by the Memphis Police
Department that they had custody of the
weapon.
Q- Did they ever tell you how they got
information in reference to the recovery
of this gun, what their source of
information was?
A. Mo, sir.
Q. Rick, what information dia you receive on
this gun?
A. Rust or Priddy one called me and told me
that they had picked somebody up who had the
gun that was used in the murder, and that the
person had told thes that they had loaned #ill
this gun, and they wanted to know if we needed
it in our case. I told thes yes, and I asked
them to return it -- you know, give it to us
for they (sic) trial, and they said yes. So,
I went up and they took me over to the property
room and assigned it ower to me.
R. 928-927).
Pollowing the above testimony, the trial judge made a
ruiing. In so doing, he also had before him a transcript of
the November 4 pre-trial hearing at which time he suppressed
the confession. The circuit judge noted that in #ill's con-
fession he stated the gun was thrown into the Coldwater River.
The circuit judge then made the following statement:
The Defendant takes the very strong stand
that this is -- could only be or is in
fact fruits of the poisonous tree, that the
information could only have been provided
to law enforcement officers fron Defendant
Hill. The testimony before the Court, however,
and what I must consider and bound thereby. . .
At this point in his ruling the circuit judge was
interrupted by defense counsel, who Tequested that the court
hear Hill for limited purposes only as to the admissibility
of the weapon. (R. 929-930).
are as
Pertinent portions of Hill's testimony in chambers
follows:
Q. Alvin, you testified earlier, and the
Court is acquainted with you. Would you
tell the Court when and whom you told about
the whereabouts of this gun in question?
A. 2 tolé Mr. Ward about ic.
Q. When did you tell Mr. Ward about it?
A. Well, it was the same day I gave ay
confession, but it was about 8:90 or 8:30
that night. He came back -- = told hia I
throwed it in the Coldwater River anc he came
peck and said he couldn't find it. He was
saying that he wanted ze to help his, to
tell him where it was. So, = told him Mr.
Carter had it.
9. Was Sheriff Monteith at the jail et that tine?
A. No, sir, he was gone home.
Q. Alwin, did you at anytime indicate the where-
abouts or who owned this pistol to Sammy Hampton?
A. Wo, sir.
Q@. did you tell Sherif? Monteith?
A. No, sir.
Q. The only officer you told about it was Rick Ward.
A. Yes, sir, that's right.
-931).
Cross-examination of Hill elicit the following:
0. Mr. Bill, have you discussed what we call
tha fruit of the poisonous tree doctrine
Have they not told you that any evidence that
is recovered as a result of suppressed con-
fessions would be inadmissible?
I don't understand your words.
Now, ¢id your lawyers tell you that anything
else that was recovered after that confession
couldn't be introduced?
0
~
o~
‘
x
»
oe
No, sir, they haven't ¢
A.& -8-
Q. They haven't told you that? did you
hear Sheriff Monteith say he got the
information, yesterday, from Sammy Hampton?
A. I didn't quite understand what he was saying
about what gun he was talking about until now.
(R. 931-932).
Then, on re-direct:
Q. Alvin, will you explain what you mean by
what gun Mr. Monteith was referring to?
A. Well, I thought yesterday Mr. Monteith was
referring to the gun that was used on the
meat truck.
Q. So, you're telling the Court that Sherif?
Monteith could have been refering to another
weapon.
A. That's what I thought he was referring to.
Q. Who supplied that weapon?
A. Sammy and myself -- about who told him about it?
Q. Where did — where did Sammy get the weapon
and where did you get the weapon in Tunica
County?
A. Well, I got it from -- Sammy got it from Quincy,
his next door neighbor.
Q. Who returned it?
A. Sammy.
(R. 933).
There was no rebuttal to Hill's testimony. The state
id not call either Ward or Monteith, and neither did the
Gefense. Purther, Hampton did not testify on this question.
Prom the record, this Court can only assume Hampton was then
ir che state penitentiary.
The circuit judge then made his final ruling as to
the admissibility of the murder weapon:
THE COURT: The testimony before the Court from
Sheriff Monteith given at approximately 4:00 P.M.
on November 18th, this being November 19th, and the
Court quotes from its notes made in the testimony
of Sheriff Monteith that he informed Officer Priddy
of the Memphis ?.D. where gun could be found after
an interview with a person by the name of Hampton,
-9-
and that he did not know the results of information
passed on to the Memphis police officer. During
this motion in Chambers, Defendant Hill was called
upon to testify for the limited purposes of rebutting
testimony of Sheriff Monteith and other officers who
had testified primarily as to the recovery of this
weapon from a Robert Carter in Memphis, Tennessee,
and to the links in the chain establishing custody
and control of the weapon since its recovery. The
Court understood, and it is now a matter of record,
from Defendant Hill that he gave information to
Officer Ward about the whereabouts of this weapon
out of the presence of Sheriff Monteith, which makes
it apparent to the Court that the information passed
on to Officer Priddy by Sheriff Monteith was
developed by him from some source other than the
Defendant, it being contended by Defendant that this
information possibly was derived by the Sherif! from
the Defendant after and subsequent to the confession
which the Court has heretofore suppressed. The Court,
therefore, is compelled to overrule the motion now
before it in Chambers to suppress the introduction
of this firearm because it was derived by statements
of the Defendant subsequent to the suppressed con-
fession. Gentlemen, I think the record is abundantly
clear on that point, and I think all of you will have
to agree that that's what is in the record.
(R. 933-935).
The pistol was then admitted into evidence before the
jury by the same witnesses.
This involved and lengthy trial proceeded, resulting
in Bill being found guilty on the guilt phase of the capital
murder trial, and thereafter the same jury on the sentencing
phase reached a unanimous verdict that he should suffer death.
Tr.
DID THE TRIAL COURT ERR IN ADMITTING INTO EVIDENCE A GUN,
OVER APPELLANT'S TIMELY OBJECTION, THE SAME BEING THE “FRUIT
OF THE POISONOUS TREE*?
This Court has upon numerous occasions dealt with the
admissibility of evidence procured as a direct result of the
violation of a constitutionally protected right, under both
the United States and Mississippi Constitutions. It is well
settled and requires no citation of authority that evidence
obtained as a result of either a warrantless search or an
-10-
\y
| ed
oO
illegal search warrant is inadmissible. Likewise, evidence
obtained as a result of an illegal arrest is inadmissible.
See Pollard v. State, 233 $0.24 792 (Miss. 1970); and
Terry v. State, 252 Miss. 479, 173 S$o.2d4 889 (1965).
In Dover v. State, 227 So.24 296 (Miss. 1969), the
Sheriff of Quitman County obtained a confession from the accused
on a Saturday. On the Monday following the sheriff! again
questioned the accused and learned the whereabouts of the
victim's shirt. Cpon appeal, we held the confession was
involuntary and therefore inadmissible. We also held that
admission of the shirt into evidence was error, since it was
a result of the illegally obtained confession. We stated:
We are of the opinion that the evidence
appertaining to the shirt falls within
the exception noted above and that if it
is to be admitted in evidence, it must be
identified by evidence other than the
involuntary confession or admissions
subsequent thereto. The admission of a
mentally retarded person, in our opinion,
is governed by the same evidentiary rules
as those applying to the confession. We
conclude that the trial court committ
reversible error in admitting the con-
fession, as well as the admission concern-
ing the shirt, into evidence.
- at 301.
The question before us is not the validity of this
well recognized principle, but whether or not it was properly
applied by the trial judge. On this point we have no
Mississippi case, and must resort to cases in the United States
courts which are also determinative.
3 the beginning of this exclusionary rule in the United States
courts is found in Weeks v. United States, 232 0.S. 383 (1914),
which held that articles obta as a result of a warrantless
search were inadmissible in evidence. This case changed the
common law rule that all competent evidence, notwithstanding its
unlawful acquisition, was admissible. Beginning with Tucker v.
State, 128 Miss. 211, 90 So. 845 (1922), this Court adopt
Same exclusionary rule, predicated at the time, however, upon
Article 23 of the Mississippi Constitution.
On the record before us, there is no contradicticn
that Hill told Ward he got the gun from Carter, and this
followed a confession which the trial judge ruled inadmissible.
The record leaves a question whether the state procured the
information about the gun from a totally independent source,
Sammy Hampton.
Assuming the state has received information not only
as a result of a violation of a constitutionally protected
right, but also from a totally independent source, who has
the burden of proving the information was derived from such
totally independent source, and what is the decree of proof?
In Dover, supra, there was no question but that the
information about the incriminating shirt came sclely {from
the accused. In the instant case, we have two possible
sources of information as to the location of the murder weapon.
In Silverthorne Lumber Company v. United States,
251 U.S. 385 (1920), the Supreme Court, speaking through
Justice Holmes, expanded the rule excluding evidence illegally
seized to also reach information received from such tainted
evidence. However, the Court also indicated that the evidence
might be admissible if gained from an independent source. The
Supreme Court stated:
The essence of a provision forbidding the
acquisition of evidence in a certain way is
that not merely evidence so acquired shall
not be used before the court, but that it
shall not be used at all. Of course this
does not mean that the facts thus obtained
become sacred and inaccessible. If knowledge
of them is gained from an independent source
they mav be proved like any others, but the
“knowledge gained by the government's own
wrong cannot be used by it in the way proposed.
Td. at 392.
In Nardone v. United States, 308 U.S. 338 (1939),
the Supreme Court, speaking through Justice Prankfurter, first
used the figure of speech “fruit of the poisonous tree.*
Nardone involved evidence obtained as a result of illegal
wire-tapping. The Court stated:
The burden is, of course, on the accused
in the first instance to prove to the trial
court's satisfaction that the wire-tapping
was unlawfully employed. Once that is
established - as was plainly done here - the
trial judge must give opportunity, however
closely confined, to the accused to prove
that @ substantial portion of the case against
hia was a fruit of the poisonous tree. This
leaves le tunity to the Government
to i = triai court that its proo
hac an indepencent origin.
Id. at 341 (emphasis added).
In Nardone the Supreme Court also recognized that the
claim of a connection between illegally obtained evidence and
information claimed to be derived therefrom “may have become
sc attenuated as to dissipate the taint.* Id.
In Wong Sun v. United States, 371 0.8. 471 (1963),
the Court put the question in a different way:
We need not hold that all evidence is “fruit
of the poisonous tree” simply because it
would not have come to light but for the
illegal actions of the police. Rather, the
more apt question in such a case is “whether,
granting establishment of the primary
illegality, the evidence to which instant
objection is made has been come at >
loitation of th
Id. at 487-88 (citation omitted) (emphasis added).
Wong Sun held that not only was evidence acquired
as a direct result of a violation of a constitutionally
protected right excluded; indeed, if the trail of illegal
conduct led to other evidence, such other indirect evidence
would also be excluded unless it was shown such other evidence
came from (1) an independent source, or (2) had become so
attenuated as to dissipate the taint.
The above loose and rather general pronouncements
of the Supreme Court have been delineated in a multitude of
state and federal court decisions. It is to the Sth Circuit
Court of Appeals, however, that we must an,
The Court of Appeals for the Sth Circuit has held
that once a defendant makes a showing of unconstitutional
conduct by the government in securing its evidence, the
burden shifts to the government to demonstrate by a pre-
ponderance of the evidence that one of the above two noted
exceptions applies. See United States v. Tweel,
$50 P.24 297 (Sth Cir. 1977); United States v. de La Puente,
$48 P.24 $28 (Sth Cir. 1977); and United States v. Houltin,
$23 P.24 943 (Sth Cir. 1976).
We are not concerned in this case with the second
|
| noted exception, but whether the information about the location
of the gun came from an independent source.
| Hill testified he gave Ward information about the
gun. This is uncontradicted.
| On the other hand, if fampton also gave Tunica
| County Sherif! Monteith information about the gun, this could
| very well be an independent source, and certainly “sufficientiv
istinguishable* from the information from Hill “to be
purged of the primary taint’.
Regrettably, for all concerned -- including this
{ Court -—- the record is incomplete.
Let us to go Wednesday afternoon, November 19, 1986,
' in the chambers of the circuit judge. The previous day he
has heard Sheriff Monteith testify, and from that testimony
; 4 Some state courts and other federal circuit courts have en-
grafted another exception to the “fruit of the poisonous tree"
Goctrine: inevitable discovery. This exception would also
allow introduction of indirect evidence if it were shown that
such evidence inevitably would have been discovered from an
independent source. The Court of Appeals of the Sth Circuit
has rejected such exception, however. See United States +.
Houltin, 328 F.2d 943 (Sth Cir. 1976).
(although perhaps not as clearly stated as it might have
been), coupled with what the Memphis police officers testified,
one could only conclude that Hampton told Sheriff Monteith
about the Carter gun. Indeed, there seemed to be no question
about it.
The circuit judge is then suddenly confronted with
a startling second possibility. Hill had just testified that
he told Ward that Carter had the gun.
At this intriguing, tantalizing soment, the well
of information runs dry. While either Ward, Monteith, or
Hampton = certainly two out of these three -- could have
cleared the air and removed all doubt in a few moments of
testimony, none was called. Why?
The defense cogently argues that their hypothesis
for the information concerning the location of the gun was
correct. But. with the record befcre us, that is all it is.
While we agree that the state arguably should have offered
some rebuttal to Hill's testimony in chambers, it chose not
to do so, and rested on the testimony of Sheriff Monteith
the previous day.
Conduct of defense counsel is puzzling. They
"
’
"
o
a
a
'
did not recall Ward or Sheriff Monteith for furthe
examination. This failure might be understandable in the
middle of this difficult and enormously burdensome trial.
But, let us move further in the proceedings. Following
} trial, defense counsel made a motion for a new trial, and
one of their strongest arguments was the admission of the
gun into evidence. With ample time to prepare for the hearing
on this motion, they did not subpoena Ward, Sheriff Monteith,
or Hampton to testify, and no affidavit of any of these three
was supplied the court.
-15-
»
r
ui
On the testimony which was before the circuit
judge and the record as made, no one could ever know which
of these two hypotheses is correct. Argument from now until
doomsday could never give the answer; from this record we
are damned to an eternal suspense.
Onder these circumstances we are not about to
fault a beleaguered trial judge, nor can we say he abused
his discretion in finding that the information about the
gun came from an independent source. On the record before
him at trial, and in the motion for a new trial, he had a
right to believe the testimony of the officers, and we find
mo reversible error on this record in his having done aS,
tr.
(a) OfD THE TRIAL COURT ERR IN REMOVING A PROSPECTIVE
JUROR POR CAUSE?
A prospective juror was excused for cause after
stating he could not return a verdict imposing the death
penalty. He had stated there were cases in which he might
consider the death penalty, but not this case. No error was
committed by the circuit judge in excusing this juror for
cause. See Witherspoon v. Illinois, 391 U.S. $10 (1968);
Irving v. State, 361 So.24 1360 (Miss. 1978), cert. denied,
441 0.5. 913 (1979); and Armstrong v. State, 214 So.24 $89
(Miss. 1968), cert. denied, 39° U.S. 965 (1969).
(>) DID THE CIRCUIT JUDGE ERR IN DENYING THE DEFENSE REQUEST
POR FURTHER MENTAL EXAMINATION?
. Several months prior to trial, upon motion of the
defense for mental evaluation, Hill was sent to the
2 further in this opinion we will discuss the prosecution's
statement to the jury that their verdict was not the “last
word", an argument we do not condone. Ruefuily, we are con-
strained to use this language and remind the state that with
all the post-conviction proceedings available to an accused
in both our state and federal courts, this opinion may not be
the last word on the above assignment of error.
16
A.16
Mississippi State Hospital in Whitfield, where the medical
staff rendered an Opinion that Hill was competent to stand
trial. The motion for his examination did not claim he
lacked the mental capacity to form a criminal intent, and was
therefore not guilty because of insanity; rather, the motion
was predicated on whether or not he was mentally incompetent
to the extent that he could not assist his counsel and prepare
for trial.
Onsatisfied with the medical evaluation of the stafs
at Mississippi State Hospital, counsel made a motion for
another examination to Getermine his Sanity and competency
to stand trial. The Circuit judge overruled this motion.
The circuit judge was under no obligation to locate another
psychiatrist for the defense.
Moreover, if there is one thing clear from this
record, Hill was competent to stand trial. Or, put another
way, if he were mentally incompetent to answer questions and
to fully assist his counsel, it would take an extraordinarily
skilled psychiatrist to Getect it.
Just prior to trial #ili was examined by a psychologist,
who administered a test. Counsel did not offer this psychologist
as a witness in either the guilt or sentencing phase of the
trial. Nor was any evidence adduced ‘ron lay or expert
witnesses either on the guilt or sentencing phase of Hill's
competency to stand trial or his mental ability.”
In the motion for a new trial counsel offered the
psychologist as @ witness, who was of the Opinion that the
test revealed Hill had emotional problems which were “relatively
great"; that he was prone to make “impulsive Gecisions, and
6 If counsel had thought the psychologist's evaluation of some
benefit, it would have been relevant and proper to have hia
testify on the sentencing phase. See Miss. Code Ann. § 9919-101
(6) (b), (£) (Supp. 1981).
A.17 ol?
was unable to control those impulses"; that he was unable
to “profit by experiences he had had in life"; and that he
was experiencing some euoepawenio behavior*® at the time
of testing. (R. 1252-1253). He also stated no psychologist
could sake a determination based on a test. Pinally, he
was of the opinion that further testing and evaluation were
needed.
Om this record, no error was committed in overruling
the motion for a new trial based on this clain.
(¢) WERE PHOTOGRAPHS OF THE VICTIM'S REMAINS ADMISSIBLE?
The admission of photographs of the remains of
Watkins was within the discretion of the circuit sudge,
and having probative value, no error was committed in offering
them into evidence. See Tubbs v. State, 402 So.24 830
(Miss. 1981); Davis v. State, 376 So.2d 1079 (Miss. 1979);
Voyles v. State, 362 So.24 1236 (Miss. 1978), cert. denied,
441 0.8. 956 (1979); Irving v. State, Supra; Brown v. State,
235 So.2¢ 458 (Miss. 1970); Stokes v. State, 240 Miss. 453,
128 So.24 341 (1961); and Price v. State, Miss. °
$4 So.2d 669 (1951).
(¢) OID THE TRIAL COURT ERR IN PERMITTING TESTIMONY THAT
HILL ESCAPED FROM JAIL?
In August, 1979, while Hill was in the Tunica
County jail, he escaped. Approximately four days liter, he
returned voluntarily.
The thrust of counsel's argument is that Hill had
not been indicted for the capital crime, and therefore
evicence of his escape from jail was incompetent. of course,
the time of indictment is immaterial but even on the question
? The schizophrenic testing, according to the psychologist,
indicatec a “possible problem*. (R. 1254).
of whether Hill was charged with, or was a suspect of this
robbery at the time he escaped, there are two answers to
this argument: ps Tt is not clear from the record whether
OF mot at the time Hill left the Tunica County jail the
authorities had questioned his about the Watkins robbery
and disappearance, but it would appear that they had. FBI
Agent Shanks interviewed his in July about this hijackiag;
and (2) ther the authorities knew or 414 not know of
his guilt of the Watkins robbery and slaying, Hill knew it.
Plight is edmissible on the issue of guilty
knowledge. See Tnited States v. Ballard, 423 ?.24 127
Sth Cir. 1970); McClendon v. State, 387 $0.24 112 Miss. 1980);
anc Ransom v7. State, 149 Miss. 262, L1S So. 208 (1928).
@) ‘Two assignments of error can be joiatly
discussed:
WAS REVERSIBLE ERROR COMMITTED BY THE STATE'S REVEALING THE
CONVICTION OF A CODEPENDANT OF MANSLAUGHTER?
WAS REVERSIBLE ERROR COMMITTED IN THE CLOSING ARGUMENT oF
THE PROSECUTING ATTORNEY TO THE JURY THAT ITS VERDICT was
NOT THE “LAST WORD‘?
The state called the codefendant Gregory Tucker
as a witness. Ouring questioning of Tucker, the record
reveals the following:
Q. What have you been convicted of?
A. Assault and larceny of a person in Tennessee,
and sanslaughter down here.
Q Manslaughter down here in connection with what?
A. With this here case.
R. 1013-1014).
NO Objection was sade to either the questions or
the answers. in fact, defense counsel cross-examined Tucker
about the comviction, and agked his about being offered
leniency. R. 1943).
In closing argument, the prosecuting «attorney sade
the following argument:
I knew that the attorneys would attempt to
place a heavy burden on you. They would have
you believe that lL the
Ns Semele as ct as
ou s e in ten minutes and bung
so, and know t's not so. and
« snat 8 liy unfair. They
now wors is not ~48t words. ‘ney
(R. 1190-1191) (emphasis added).
Again, there was no obsection by ¢efense counsel +>
this argument.
As to the state's questioning of Tucker about his
conviction of manslaughter, this constituted error. See
Buckley v. State, 223 So.2¢ 524 (Miss. 1969). The error was
not as egregious as it would have been had Tucker been a
witness for the defense, and the state had brought it cut on
cross-examination. See Warren v. State, 407 So.2¢ 100
(Miss. 1981); and Senderson v. State, 403 $o.24 139 (Miss. 1981).
The state's questioning of Tucker, « state witness, about
his comviction of manslaughter was scot altogether a one way
street benefitting the state. This information enabled
the jury to see that a radically different treatment tad been
extended by the state to Tucker than that proposed {cr #ill
The defense sought mileage out of this concession
in cross-examination.
In view of the fact that so cbjection was sade,
that Tucker was cross-examined about his plea and conviction,
and the defense at least three times in closing argument
compared the treatment and punishment of Tucker as opposed
to that being sought for Hill (R. 1075-1076), defense counsel's
complaint at this stage appears directed towards « trial
strategy in which they were participants. What this amounts
to is a trial strategy counsel aided and abetted, and cw
seek to criticize.
A.20
-20-
Moreover, counsel did not even see fit to assign
this error in their sotion for a new trial. if defense
counsel did consider that their client was done an injustice
in this respect, we cannot understand their failure to sention
it is their motion for « new trial.
The argument sade by the prosecuting attorney to
the jury that their verdict was not the “last word" was
clearly erroneous and would ordinarily be considered highly
pretudicial.
In the usual case the jury merely determines guilt
or innocence, and the circuit judge determines the sentence.
In a capital surder case the jury also determines the
sentence.
Any argument by the state which distorts or sinisaizes
this solemn obligation and responsibility of the jury is
serious error. Every attorney knows the jury verdict is indeed
the last word on a factual dispute. Neither the circuit
judge nor this Court is authorized to set aside a jury verdict
om conflicting evidence, or a disputed factual issue. Moreover,
in a death penalty case a jury should never be given false
comfort that any decision they sake will, or can be, corrected.
Im Bowell v. State, 411 So.24 772 (Miss. 1982),
which was not a death penalty case, we condemned a “last
word’ argument.
A prosecutor making this sort of argument is asking
for a aistrial.
_ In this case, however, there was no objection
mace to this argument. We have consistently held that con-
temporaneous objection sust be made to improper argument
by the state, and unless such objection is made, any claimed
error for such improper argument will not be considered
a.zt*
on appeal. See Coleman v. State, 378 S$o.2¢ 640 (Miss. 1979);
Thomas v. State, 358 S$o.24 1311 (Miss. 1978); Griffin v. Stace,
292 So.2¢ 159 (Miss. 1974); Myers v. State, 268 $o.24 353
(Miss. 1972); Peterson v. State, 242 $0.24 420 (Miss. 1979);
Pord v. State, 227 So.2¢ 454 (Miss. 1969); Showers v. State,
227 So.24 452 (Miss. 1969); and Coburn v. State, 250 Miss. 684,
168 So.24 123 (1964). It need also be soted that this holding
has applied to death penalty cases, as well as other crisinal
anc civil cases.
There is even further foundation for application
of this well settied rule in such 4 case as this, where, not
only was there no objection mace at trial, but even in the
motion for a new trial counsel still did not consider this
argument as error. The motion for a new trial was filed
December 12, 1980, cover two weeks after the trial was con-
cluded, and a hearing was held on this sotion January 6, 1981.
The record reveals Hill was represented by alert, avid, and
thorough defense counsel. We can only conclude counsel did
not consider this argument prejudicial, and #ill is bound
thereby.
Por these reasons, we will not consider either of
these two assignments of error on this sopeal.
2) WAS ERROR COMMITTED IN THE INTROOUCTION OF A COMPUTER
PRINT-OUT OF A SHIPMENT OF GOODS?
Wayne Hopper was shipping manager of the J. I. Case
Company's Memphis branch office. He testified Franz Tractor
Company of Bradenton, Florida, was one of their dealers.
Be was handed 4s box containing a carburetor, numbered A19568,
and testified it was a part of « shipment being returned by
the Pranz Tractor Company. This shipment was on the American
Preight Lines truck hijacked and robbed Julv 12, 1979, and
was not received by J. I. Case Company.
-22
»
eee
Pollowing admission of the above testimony without
objection, Hopper was handed a computer print-out of a list
of parts being returned by franz Tractor Company to J. I. Case
Company at its Memphis address, on which was listed a car-
buretor of the same number as the carburetor offered into
evidence. The carburetor above noted had been found in
Bill's spartment. Hopper testified the computer print-out
listed the carburetor and the computer print-out was admitted
into evidence with objection.
Pollowing cross-examination counsel objected to the
admission of the computer print-out, and cited King v. State
ex _ rel. Murdock Acceptance Corp.. 222 So.24 39] (Miss. 1969).
The trial judge overruled the objection.
The trial judge committed no error in overruling
the objection, even if it had been timely made. Although
Bopper had nothing to do with its preparation, the computer
print-out was part of business records with which Hopper
came in daily contact and was familiar with, and upon which
he and his company relied. “is testimony was sufficient for
a prima facie showing of accuracy, and there being no con-
tradictory proof offered, it was competent evidence. The
weight and credibility of this evidence was for the jury. Id.
(g) WAS REVERSIBLE ERROR COMMITTED IN REFUSING INSTRUCTIONS
AUTHORIZING CONVICTIONS OR LESSER OFFENSES?
Instructions 0-9 and 0-10 would have authorized
the jury to convict Hill of murder or sanslaughter. Instruction
> 8-A gives the form of verdict for such lesser included
offenses.
The circuit judge refused these instructions. No
error was committed by the trial judge's refusal to grant
these instructions.
The testimony of Gregory Tucker made out a case
of a planned and pre-conceived robbery by Hill, Milam, and
himself, in which Hill was leader and chief actor.
After hijacking the truck, Hill marched Watkins
off into the edge of the woods where his bedy was later
found, and shot him in the back of the head. Tucker heard
Several shots. As Hill was taking Watkins from the truck
to the woods, Tucker heard Watkins begging for his life.
Counsel now argues the robbery took place before
the murder. Of course, the record reveals the murder took
place during the execution of the robbery. Purthermore,
as we stated in Pickle v. State, 345 So.2d 623, (Miss. 1977):
If the crime of capital murder could
not be sustained unless the homicide
occurred during the actual attack upon a
victim or during the actual burglary,
kidnapping, arson or robbery, such could
be an inducement for an assailant to
kill his victim after the commission of
the first crime in order to silence her/
him as a witness. The rules stated in
the foregoing cases is the more reasonable,
and we hold that where the two crimes are
sonnected in a chain of events and cccur
as part of the res gestae, the crime of
capital murder is sustained
Id. at 626-27.
We find no merit in this assignment of error.
(h) OFD THE crreurr JUDGE ERR IN OVERRULING
HILL'S MOTION FOR A DIRECTED VERDICT, AND A MOTION POR A
NEW TRIAL?
The testimony of Tucker, corroborated by law
enforcement officers finding the carburetor in Hill's apart-
ment, Hill's renting of the U-Haul truck which was used in
the robbery and returned by him the next day, and the
testimony of the law enforcement officers and expert witnesses
that the body found in the woods was that of Watkins, lead us
to conclude this assignment of error has no merit whatever.
-24-
(4) WAS ERROR COMMITTED ry ALLOWING INTO EVIDENCE
OURING THE SENTENCING PHASE OF THE TRIAL TESTIMONY AND
EVIDENCE PREVIOUSLY INTROOUCED IN THE GUILT PHASE?
During the sentencing phase of the trial the
state requested, and was permitted by the trial court, to
have the jury consider all previous testimony and evidence
adduced on the guilt phase. The trial judge permitted this,
and no error was committed in doing so. See In re Jordan,
390 So.2d $84, 585 (Miss. 1980); Irving v. State, supra,
at 1367 n.1; and Jackson v. State, 337 $o.24 1242, 1256
(1976).
Again, this is a point which counsel for the
first time argues on appeal.
Iv.
BROOM, PRESIDING JUSTICE, POR THE COURT:
Argument of appellant is that reversible error
was made by the trial court when it failed to grant the
following sentencing instruction requested by the defense:
Instruction D-2:
Ladies and gentlemen of the jury,
I charge you that you need not find
any mitigating circumstance in order
to return a sentence of life imprison-
ment. <A life sentence may be returned
regardless of the evidence.
The appellant contends that this refusal had the effect of
denying the jury the right to sentence hin according to
their feelings of mercy. He maintains Ahat the jury was
left with the impression that they were bound to return
a verdict that the appellant should suffer the death penal-
ty if they found that aggravating circumstances outweighed
the mitigating circumstances fron the evidence presented.
-25-
According to him, this would be tantamount to a manda-
tory application of the death penalty and contrary to
the mandate of indiv.dualized consideration handed down
by the United States Supreme Court in Gregg v. Georgia,
428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.24 859 (1976).
We do not agree that the jury in the case in
question was under any impression that they had no choice
but to impose the death penalty. Their verdict was as
follows: .
We, the Jury, unanimously find that
the aggravating circumstances ... out-
weigh the mitisating circumstances and
are sufficient to impose the death penalty,
and that there are insufficient mitigating
circumstances to outweigh the aggravating
circumstances...
In Jordan v. State, 365 So.24 1198 (Miss. 1978), the de-
fense was denied an instruction very similar to the one
in question here:
The Court instructs the jury that
you do not have to find any mitigating
circumstances in order to return a ver-
dict that the accused should be sentenced
to life in prison.
Id. at 1205.
We considered the requested instruction along with the cther
instructions which were granted and stated:
Here, Jordan relies on Jackson v. State,
which held:
The jury shall not be required to
make a special finding of any miti-
gating Circumstances +, order to
return a verdict that the accused
should be sentenced to life in
prison. However, before the jury
May return a verdict that the de-
fendant should suffer the penalty
of death, they must unanimously
find in writing that after weighing
the mitigating circumstances and
the aggravating circumstances one
against the other that the mitigat-
ing circumstances do not outweigh
he aggravating circumstances and
that the defendant should suffer
the penalty of death. (Emphasis
added).
~26-
We note the great difference in not
requiring the jury to find any miti-
gating circumstances in order to
return a verdict of life imprisonment
as opposed to not requiring the jury
to “make a special finding of any
mitigating circumstance in order to
return a verdict that the accused
should be sentenced to life in prison."
(337 So.24 at 1256). If there were
any merit to Jordan's contention here,
anc if instruction D-13 be considered
as correct, the jury resolved the issue
by finding:
We unanimously find that after
weighing the mitigating circun-
stances and the aggravating cir-
cumstances, one against the other,
that the mitigating circumstances
do not outweigh the aggravating
circumstances, and that the Defend-
ant should suffer the penalty of
Death.
Oponm these facts, there is no reversible
error in the refusal to grant instruction
o-13.
id. at 1205.
The jury in this case, just as the jury in Jordan,
enanimously found that the aggravating circumstances out-
weighed the mitigating circumstances and that the death
penalty should be imposed. Their verdict is set out ia
language which shows that they had come to the conclusion
that the aggravating circumstances justified the death
penalty's imposition and not that they had no other choice
but to impose it. Based upon our holding in Jordan, we
find no reversible error in the lower court's refusal to
grant instruction D-2.
Hill also complains of the refusal of the circuit
judge to grant sentencing instruction D-5 which instructed
the jury that unless they believed beyond a reasonable doubt
that the aggravating circumstances outweighed the mitigating
circumstances, they should return a verdict of life imprison-
ment.
The answer to this contention is that the sentencing
©27<
A.27
statutes, Mississippi Code Annotated §§ 99-19-101 and
99-19-1103 (Supp. 1981), make no such requirement in the
sentencing phase sf the trial. This very contention was
made in Gray v. Lucas, 677 P.24 1086 (Sth Cir. 1982), and
rejected by the Court of Appeals for the Fifth Circuit
in the following language:
Ninth, Gray argues that the jury should be
required to find beyond a reasonable doubt
that the aggravating circumstances outweigh
the mitigating circumstances before it can in-
pose the death penalty. This states the rule
too strongly. While Mississippi requires that
jurors find the existence of each aggravating
circumstance beyond a reasonable doubt, the
jury may return the death penalty if the ag-
gravating circumstances are not outweighed by
the mitigating circumstances. This allocation
of proof accords with the capital sentencing
procedures which the Court has upheld as faci-
ally valid. See G v. Georgia, 428 9.S.
153, 96 S.Ct. T9505 tPF Ed ta 3S , 9 (1976);
Proffitt v. Plorida, 428 0.8. 242, 96 $.Ct.
7560, 49 L.8d.3d S13 (1976); Jurek v. Texas,
428 0.8. 262, 96 8$.Ct. 2950, TF LEA. Id FTF
(1976). We therefore reject Gray's claiaz.
| 677 P.24 at 1107.
We, therefore, find no merit in this assignment.
Pinally, #il1 complains of the lower court's refusal
to grant instruction D-l which authorizes the jury to con-
sider any other circumstances surrounding his life that would
be reasonably relevant to the question of his sentence.
Since the court stated substantially the same thing as state's
instruction 3-A, the defense instruction was not necessary.
See, @.g., Jones v. State, 381 So.2d 963 (Miss. 1980), cert.
denied, 449 0.8. 1003 (1980).
We have reviewed the record and compared it with all
of our decisions subsequent to Jackson v. State, 337 $0.24
1242 (Miss. 1976), involving the death penalty. Some have
been affirmed and some reversed. After such comparison, we
' conclude that the death penalty here is not excessive in the
light of the eggravating and mitigating circumstances. “e
further find that the infliction of the death penalty on
-28-
A.286
Alvin Hill is not disproportionate, wanton or freakish
when compared to cases involving similar crimes, the facts
surrounding them and the defendants.
We also find that the sentence of death was not
imposed under the influence of passion prejudice or any
other arbitrary factors, and that the evidence overwhela-
ingly supports the jury's finding of statutory aggravating
circumstances in that the capital surder was committed
while the defendant was engaged in the commission of robbery;
that the capital offense was committed for pecuniary gain;
that the defendant was previously convicted of a felony in-
volving the use or threat of viclence to the person; and
that the capital offense was especially heinous, atrocicus
or cruel. The execution of Hill will be consistent and even-
handed in the light of all post Jackson death penalty cases
considered by this Court.
The judgment of the lower court is affirmed and
Wednesday, June 15, 1983, is set as the date for execution
of the sentence and infliction of the death penalty in the
manner provided by law.
APY IRMED.
ALL JUSTICES COWCUR AS TO GUILT PHASE.
AS TO PART IV: HAWKINS, J., AND PATTERSON, C. J.,
DISSENT. ROBERTSON, J., JOINS SECTION I OWLY.
ROBERTSON, J., AND PATTERSON, ¢. J.
CONCUR IN PART AND DISSENT IN PART.
-29-
——=
Tu THE SUPREME COURT OF MISSISSIPPI
wO. $3,795
ALVIN BILL
v.
STATE OF MISSISSIPPI
HAWKINS, JUSTICE, DISSENTING AS TO PART IV:
I.
When the circuit judge was considering the model
instruction approved under our Criminal Procedure Rules,
and given during the sentencing phase of a capital murder
trial, defense counsel had some question about some of the
aggravating circumstances proposed by the state, but stated
that if instruction D-2 were given it would remove their
objection.
The court then inquired if D-2 was not in conflict
with the wording that had to be given in other instructions.
He then stated:
THE COURT: I don't think I can give D-2. I don't
think there's any basis in law for that instruction.
THE COURT: O-2 is refused. It just doesn't work in
with what I'm required to do.
(R. 1278).
It is thus apparent the trial judge was of the opinion,
not that D-2 was adequately covered by other instructions given,
but that it was in conflict with instructions he was required to
give, and that he had no larful authority to even give this instruction.
Instruction D-2 reads as follows:
Ladies and gentleman of the jury, I charge you that
you need not find any mitigating circumstance in
order to return a sentence of life imprisonment. A
life sentence may be returned regardless of the eviderce.
(R. 423).
That the jury in a surder case had the unrestrained
and unfettered discretion to determine, regardless of the evi-
dence, whether the accused should receive a life sentence or
Geath was beyond question in this state until the United States
Supreme Court decisions in 1972. Any instruction which
told the jury that under a certain set of circumstances it
would be obligated by law to return the death penalty would
have been condemned by this Court.
We settled this point over a century ago in
Spain v. State, $9 Miss. 19 (1881). It is well worth our
time to revisit this case.
In 1872 the Legislature passed an act providing
that conscientious scruples against the infliction of the
death penalty would not disqualify a person from being a
juror in a capital murder case. In 1875 the Legislature
repealed the 1872 act, but the right of the jury to fix the
punishment at imprisonment for life was declared. Id. at 24.
Following Spain's trial, the jury found him guilty but rec-
ommended mercy. According to the trial judge, the following
transpired:
[T)he court ordered the jury to be
conduc*ed back to their room, apprising
them tiat they would find a form for their
verdict in the second charge for the State.
This instruction is that, if the jury simply
find the accused guilty as charged in the
indictment, it will be the duty of the court
to pronounce the death penalty; but, if the
evidence in the case warrants them in so doing,
may gu as charged, “and Zectare
that the punishment to be inflicted shall be
imprisonment in the penitentiary for life,* or
they may find the defendant not guilty. After-
wards the jury rendered a verdict of guilty
as charged, and the appellant was sentenced
to be hanged.
Id. at 19-20 (emphasis added).
This instruction was condemned because it “made
the right of the jury to fix the punishment to depend on its
view that the evidence warranted it... .* Id. at 25.
This Court also stated:
The judgment must be reversed, because of
the second instruction given at the instance
of the State. It limits and qualifies the
right of the jury to fix the punishment at
imprisonment for life, whereas the law confers
on the jury this right without qualification
OF restriction. The right of the jury to fix
the punishment as indicated is without any
condition. The most atrocious crime committed
under the most aggravating circumstances may
be punished by imprisonment for life, instead
of by death, if the jury so determines by its
verdict. The law demands a jury willing to
be the instrument of visiting the penalty of
Geath, and confers on such 4 jury the un-
conditional right to fix the punishment at
imprisonment for life. It was erroneous to
instruct the jury that its right was dependent
on any state of the evidence or on any view
it might take of it.
td. at 24. .
Unless this salutary principle, so eloquently stated
and recognized by our Court over a hundred years ago, was
changed by United States Supreme Court decisions beginning
in 1972, or enactment of our Legislature subsequent thereto,
it is incomprehensible to me to argue deinen.”
Equally clear is that no United States Supreme Court
decision has suggested the United States Constitution requires
that a jury be deprived of this unfettered authority to return
a life sentence as opposed to a death penalty verdict,
irrespective of the evidence.
Many varied pronouncements regarding the death
penalty have come from the tangle of subtleties and cam-
plexities in which the United States Supreme Court has
engaged, and which we are obligated to follow. Yet, no
member of that Court has suggested the states remove from
juries this unabridged authority to extend mercy, an authority
that did not spring full grown, but evolved after centuries
of human experience.
A brief review of these seminal cases is in order.
"Im MeGautha v. California, 402 U.S. 183 (1971),
the United States Supreme Court gave the history of capital
punishment in both England and this country. Id. at 197-208.
The Court observed the rebellion in this country against the
+ Since our capital surder statutes subsequent to 1972 were
enacted solely in an attempt to comply with United States
Supreme Court decisions, I think we may safely restrict our
inquiry to pronouncements of that Court.
common law rule imposing a mandatory death sentence on all
convicted murderers. To meet this, legislatures attempted
to define degrees of murder, for which only the most serious
mandated a death sentence. This, too, in time, proved
unworkable, because jurors ‘on occasion took the law into
their own hands in cases which were ‘willful, deliberate,
and premeditated’ in any view of that phrase, but which
nevertheless were clearly inappropriate for the death
penalty. In such cases they sizply refused to convict of
the capital offense." I4. at 199 (citations omitted).
The Court further stated:
In order to meet the problem of jury
nullification, legislatures ¢id not try,
as before, to refine further the definition
of capital homicides. Instead they adopted
the method of forthrightly granting juries
the discretion which they had been exercising
in fact. .. . Tennessee was the first state
to give juries sentencing discretion in
capital cases. . .Dbut other states followed
suit, as 4i4 the Pederal Government in 1897.
Id. at 199-200 (citations and footnotes omitted).
In McGautha it was argued for the first time that
the total absence of any standards being given a jury as to
when it should and should not impose the death penalty had
resulted in freakish and unpredictable imposition of the
death penalty in which there was no pattern, except for the
death penalty being inflicted predominantly on poor and
minority groups.
The absence of any standards or guidelines, it was
argued, violated the due process clause ef the Pourteenth
Amencment.
2 The evolution from mandatory death sentences to jury éiscretion
is also set forth in Peres eects 408 0.S. 238 (1972), at
339-41 (Marshall, J., comeurring): v. ’
428 3.8. 280 (1976), at 289-93; and] ts v. couisiana,
428 0.8. 328 (1976), at 332-33.
While recognizing that “academic and professiona:
sources have suggested that jury sentencing discretion should
be controlled by standards of some sort", T¢. at 202, the
Court rejected the argument. The Court then stated: “To
identify before the fact those characteristics of criminal
homicides and their perpetrators which call for the death
penalty, and to express these characteristics in lanquege
which can be fairly understood and applied by the sentencing
authority, appear to be tasks which are beyond present
human ability.” I4. at 204.
McGautha'’s sage counsel was that any such effort
would fail.
The United States Supreme Court again addressed
the unfettered discretion of juries as to when the ¢eath
penalty should or should nc* be imposed in Purman ¥. Georgia,
408 U.S. 238 (1972). In Purman, the petitioners charged that
this method of imposing the death penalty violated the
Eighth Amendment proscription against czuel and unusual
punishment.
Three members of the Court (Douglas, Stewart, and
White) agreed. Two members of the Court (Brennan and Marshall)
considered the death penalty itself an Eighth Amencment vio-
lation. The four remaining Court members (Burger, Blackzur,
Powell, and Rehnquist) found so Zighth Amendment iaiaetens
Excerpts from seven of the Justices’ opinions are set forth in
an appendix to this opinion.
3 Eyrman consisted of three appeals: ‘wo petitioners from
Georgia, and one from Texas. Two of the petitioners had re-
ceived death sentences for rape, and one for surder.
4 The same argument against unbridled jury discretion, which
was rejected as a due process viclation in McGautha, bore fruit
in as a violation of the Zighth Amendment. As stated
by re ce a te Ces the seeds of the oresent cases
are McGau ° 0.8. at 248. Im this 233 page opinion
in the 0.3. Reports, all nine justices saw fit to write separately.
a.3%%
Following Furman 35 states re-enacted death penalty
statutes in efforts to meet the guidelines of that ai.
The United States Supreme Court in 1976 was faced
with five death penalty cases from states which had re-enacted
death penalty statutes to comply with Furman. We analyzed
these cases in Jackson v. State, 337 So.24 1242 (Miss. 1976).
In Gregg v. Georgia, 428 U.S. 153 (1976), the
Court affirmed a Georgia statutory sentencing procedure quite
similar to Mississippi's. The following observeij.ons from
that opinion concerning the Georgia sentencing procedure
ané decisions of that Court are pertinent:
The jury is not required to find any
mitigating circumstance in order to
make a recommendation of mercy that is
binding on the trial court, see §27-2302
(Supp. 1975), but it must find a
Sarai Teeeaines circumstance
commending a sentence of
éeath.
428 0.8. at 197 (emphasis in original).
Nothing in any of our cases suggests
that the decision to afford an individual
defendant mercy viclates the Constitution.
76. at 199.
The Georgia Legislature has plainly made
an effort to gui@e the jury in the exercise
of its discretion, while at the same time
permitting the jury to dispense mercy on
the basis of factors too intangible to
write into a statute,. ..
Ié. at 222.
dissen : te, scret the Constitutionality of the
New Death Penalty Statutes, 87 Harv. L.Rev. 1690 (1974).
Mississippi promptly addressed the question. 1974 Miss. Laws
ch. 576, amending Miss. Code Ann. §§ 97-3-19 to -21 (1972).
We interpreted these statutes in est 4 State, 337 $0.24
1242 (Miss. 1976). The Legislature ealter amended § 97-321
and enacted procedural rules to comply with Jackson. 1977 Miss.
Laws ch. 458, amending Miss. Code Ann. § 97-3-21 (1972) to what
is now Miss. Code Ann. §§ 97~3-21 and 99-19-101 to -105
(Supp. 1982).
In this way the jury's discretion is
channeled. No longer can a jury wantonly
ard freakishly impose the death sentence;
it is always circumscribed by the legislative
quicepines,
Té. at 296-07.
In Woodson vy, North Caroling, 428 U.S. 280 (1976),
the North Carolina legislature re-enacted its death peralty
statute, but permitted the jury to recommend mercy. in
affirming a conviction under the new statute, the North
Carclina Supreme Court held this provision authorizing
jury 4iscretion to be unconstituticnal, but severable, and
that the statute without this provisior was constitutional.
In vacating the judgment the Court stated:
It is now well established that the
Eighth Amendment draws much of its meaning
from “the evolving standards of decency that
mark the progress of a maturing society.”
eR Se, 386° OS at 101, 2 & 2d 2nd
y $90 (‘plurality opinion). As
the above discussion makes clear, one of the
most significant developments in our society's
treatment of capital punishment has been the
rejection of the common-law practice of
inexorably imposing «a death sentence upon every
person convicted of a specified offense. North
Carolina's mandatory death penalty statute for
first-degree murder departs sarkedly from con-
temporary standards respecting the imposition of
the punishment of death and thus cannot be applied
consistently with the Zighth and Fourteenth
Amendments’ requirement that the State's power
to punish “be exercised within the limits of
civilized standards.* [4., at 100, 2 L £4 tnd 630,
78 $ ce $90.
428 5.S. at 301 (footnote omitted).
In Roberts v. Louisiana, 428 0.$. 325 (1976), the
Court interpreted a Louisiana statute where the discretion
of the jury had been abolished, and which made conviction of
first degree murder mandate the death penalty. The jury had
mo choice: a finding of guilt for this crime required the
trial court to sentence the accused to death. Again, the
+ a ee ee eee =
Court set the death sentence aside and remanded. The opinion
® the first, second, and last excerpts are within the judgment
of the Court as announced by Justice Stewart. The third quote
is foun! in Justice White's concurring opinion.
-T-
emo. 0 ne + eee ee +
noted: ‘The history of mandatory death penalty statutes
indicates a firm societal view that limiting the scope
of capital murder is an inadequate response to the harshness
and inflexibility of a mandatory death sentence statute.*
Id. at 332 (citation omitted).
In summary, the United States Supreme Court has
stated that the Constitution puts no limitations upon a
jury's unabridged authority to return a life sentence verdict.
On the other hand, the Constitution requires that a jury
must be given clear guidelines to follow before it is autho-
rized to return a death penalty verdict.
What was the procedure we adopted in Mississippi?
In Jackson v. State, supra, after analysis of the United
States Supreme Court decisions, we stated:
The jury shall not be required to
make a special finding of any mitigating
circumstance in order to return a verdict
that the accused should be sentenced to
life in prison. However, before the jury
may return a verdict that the defendant
should euffer the penalty of death, they
must unanimously find in writing that after
weighing the mitigating circumstances and the
aggravating circumstances one against the
other that the mitigating circumstances do
not outweigh the aggravating circumstances
anc that the defendant should suffer the
penalty of death.
Id. at 1256.
In Coleman v. State, 378 So.2d 640 (Miss. 1979),
we stated:
If the state merely proves the existence
of an aggravating circumstance, the jury
is free to find it insufficient to warrant
death and is not required to automatically
» impose death. Mississippi's capital murder
statute leaves the appellant the option of
presenting evidence (sitigating circumstances)
on why the death penalty should not be impose,
without requiring him to do so.
Id. at 646-47.
That the Circuit Court of Appeals for the Sth Circuit
is convinced the jury retains the discretion of determining
ee i ee be ee 8 8 ee ee
whether it will return a death penalty verdict, regardless
of the evidence during the sentencing phase, is manifest
from the following statement in Gray v. Lucas, 677 F.2d 1086
(Sth Cir. 1982): “Moreover, even if the jury finds that
the aggravating circumstances outweigh the mitigating
circumstances, it is not required to impose the death
penalty. It may still sentence a defendant to life imprison-
ment." Id. at 1106 (citation omitted).
The majority opinion holds, however, that a jury
may not be instructed that it can do precisely what we have
said it is fully authorized to do.
Not only does such a construction overrule our
present cases, it moves the clock back to an age and practice
this state found unconscionable over a centurv ago, and
rejected. Such construction will most assuredly make us
open to the attack of violating the “evolving standards of
human decency.*
Tr.
Hill also was refused the following instruction:
In order to impose a death sentence, you must
be convinced beyond a reasonable doubt that the
totality of the aggravating circumstances outweigh
the totality of the mitigating circumstances. If
you are not convinced beyond a reasonable doubt
that the aggravating circumstances outweigh the
mitigating circumstances, you must return a verdict
of life imprisonment.
Tt is true, as stated in Gray v. Lucas, 677 F.24 1086,
1107 (Sth Cir. 1982), that the sentencing statutes do not
specifically mandate this burden of proof.
‘The pertinent portions of Mississippi Code Annotated
$$ 99-19-10] and 99-19-103 (Supp. 1981) are as follows:
(1) Opon conviction or adjudication of guilt of
a defendant of capital murder or other capital of-
fense, the court shall conduct a separate sentencing
proceeding to determine whether the defendant should
be sentenced to death or life imprisonment. ...
In the proceeding, evidence may be presented as to any
A.38
A A
matter that the court deems relevant to sentence,
and shall include matters relating to any of the
aggravating or mitigating circumstances. .
(2) After hearing all the evidence, the jury
shall deliberate on the following matters:
(a) Whether sufficient aggravating circum
stances exist as enumerated in subsection (5)
of this section;
(b) Whether sufficient mitigating circun-
stances exist as enumerated in subsection (6) of
this section, which outweigh the aggravating
circumstances found to exist; and
(c) Based on these considerations, whether the
defendant should be sentenced to life imprison-
ment or death.
(3) Por the jury to impose a sentence of death,
it must unanimously find in writing the following:
(a) That sufficient aggravating circumstances
exist as enumerated in subsection (5) of this
section; and
(b) That there are insufficient mitigating cir-
cumstances, as enumerated in subsection (6), to
outweigh the aggravating circumstances.
Miss. Code Ann. § 9919-101 (Supp. 1981).
The jury, if its verdict be a unanimous recommen-
dation of death, shall designate in writing, signed
by the foreman of the jury, the statutory aggra-
vating circumstance or circumstances which it
unanimously found beyond a reasonable doubt. Un-
less at least one {1) of the statutory aggravating
circumstances enumerated in section 99-19-1101 is so
found or if it is found that any such aggravating
circumstance is overcome by the finding of one or
more mitigating ee the death penalty
shall not be sed.
Miss. Code Ann. § 99-19-103 (Supp. 1981)
The sentencing jury is required to determine
(1) whether sufficient aggravating circumstances exist;
(2) whether sufficient mitigating circumstances exist which
outweigh the aggravating circumstances found to exist; and
(3) based upon these whether the defendant should be sentenced
to death or life imprisonment.
To impose the death sentence, the jury is further re-
quired to unanimously find (a) that “sufficient aggravating
circumstances” exist as enumerated in subsection (5) of
-10-
A.39
§ 9919-101; and (b) that there are insufficient mitigating
circumstances as enumerated in subsection (6) to outweigh
the aggravating csonieneies”
Section 99-19-1003 requires that if the jury verdict
be a recommendation of death, it shall designate the aggra-
vating circumstance or circumstances which it unanimously
found beyond a reasonable doubt. Unless it finds at least
one of the aggravating circumstances, it cannot return the
Geath penalty. Or, if the jury finds the aggravating cir-
Cumstance overcome by one or more mitigating circumstances,
the death penalty shall not be imposed.
In summary, the sentencing jury is required to de-
termine this factual issue: Do one or more aggravating cir-
cumstances exist? If so, are there one or more mitigating
circumstances which outweigh the aggravating circumstance?
Is the sentencing phase of the trial supposed to be
meaningful?
As a general rule, the jury in the guilt and senten-
cing phase are the same. Therefore, a jury which has found
a defendant guilty in a capital murder case has of necessity
already found at least one aggravating circumstance beyond «
reasonable doubt. An examination of the capital surder
Ntatute, Miss. Code Ann. § 97-3-19 (2) (a)-(f) (Supp. 1981),
reveals that the elements required to elevate murder to capi-
tal murder are virtually the same as the aggravating circus-
stances set forth in § 99-19-101 (5) (a)-(h).
Therefore, when the same jury which passed upon the
quilt of the accused is called upon in the sentencing phase,
it would have to change its mind in order not to find beyond
The statutes are somewhat ambiquous on “sufficient aggra-
vating circumstances.” Section 99-19-1001 (3) (a) uses the
term in the plural, but section 99-19-103 only requires a
single aggravating circumstance to justify the death penalty.
elle
a reasonable doubt the aggravating circumstances asserted
by the state, because these were the same ingredients of
the capital surder dines."
The only meaningful fact-finding function of the
jary in the sentencing phase is to determine whether there
is ome or more mitigating circumstances which outweigh the
aggravating circumstance, or circumstances, the aggravating
circumstance having already been determined beyond a reason-
able doubt.
In this case the jury was given no guideline as to
whether the accused or the state had the burden of persuasion
in determining whether the mitigating circumstances outweighed
the aggravating circumstances, nor the weight of such burden.
It would appear to me that the burden was upon the
state to prove that the aggravating circumstances outweighed
the mitigating circumstances, and this should be proved beyond
a reasonable doubt. This is in accord with well settled
principles of the burden of proof in criminal cases, and I
cannot see any reason for a departure.
It is my view the trial court erred in not granting
this instruction in some foru.
PATTERSON, C. J., JOINS IN THIS OISSENT.
ROBERTSON, J., JOINS IN SECTION I ONLY.
'
Section 99-19-101 (5) (h) does suggest one possible addi-
tional ingredient as an aggravating circumstance beyond the
capital murder statute: the capital offense was especially
heinous, atrocious or cruel.
A.é1,.
APPENDIX
The following are excerpts from seven of the
Justices’ opinions in Purman v. Georgia, 408 U.S. 238 (1972).
BRENNAN, J., COMCURRIW? :
Tt is a denial of hman dignity for the State
arbitrarily to subject a person to an unusually
severe punishment that society has indicated it
does not regard as acceptable,
be
to |
than a si ¢ Under
these principles a s test, death is today a
“cruel and unusual* punishment.
Id. at 286 (emphasis added).
Death is today an unusually severe punishment,
unusual in its pain, in its finality, and in its
enormity.
Id. at 287.
Death is truly an swesome punishment. The
calculated killing of a human being bv the State
involves, by its very nature, a denial of the
executed person's humanity.
Ié. at 290.
STEWART, J., CONCURRING:
one
On that score I would say only that I cannot
agree that retribution is a constitutionally
Ss msg per in the imposition of
punishmen instinct for retribution is
part of 4 Bt. of man, and channeling that
instinct in the administration of criminal justice
serves an important purpose in promoting the
stability of a society governed by law. When
people begin to believe that organized society
is umwilling or unable to impose upon criminal
offenders the punishment they “deserve,” then
there are sown the seeds of anarchy—of self-
help, vigilante justice, and lynch law.
The constitutionality of capital punishment
in the abstract is not, however, before us in
these cases.
Id. at 308.
ST ee ec te
that, if any basis can be discerned for the
Selection of these few to be sentenced to die,
it is the constitutionally impermissible basis
of race. See McLaughlin v Plordia, 379 0S 184,
13 & 26 222, 85 $ Ct 283. But racial discrimina-
tion has not been proved, and I put it to one
side. Is ly conclude that the Zighth and
Pourteen c fOlerate the
I
J
Infliction of a sentence of 3a y under 1 al
stems t t uni 4
so tS = 30 raat shi s_ponalty to os
408 0.8. at -TORCTO -(loctastes cuttted) (emhests edded).
MARSHALL, J., CONCURRING:
. @ 2
The foregoing history demonstrates that capital
punishment was carried from Europe to America Dut,
once here, was tempered considerably. At times in
our histcry, strong abolitionist movements have
existed. But, they have never been completely
successful, as no more than one-quarter of the
States of the Cnion have, at any one time, abolished
the death penalty. They have had partial success,
however, especially in reducing the number of
capital crimes, replacing mandatory death sentences
with jury discretion, and developing sore humane
methods of conducting executions.
This is where our historical foray leads. The
question now to be faced is whether American society
has reached a point where abolition is not dependent
on a successful grass roots movement in particular
jurisdictions. but is demanded by the Eighth
Amendment. “2 answer this question, we must first
examine whether or not the death penalty is today
tantamount to excessive punishment.
Id. at 341-42.
.
To arrive at the conclusion that the death
pernslty violates the Eighth Amendment, we have
had to engage in a long and tedious journey. The
amount of information that we have assembled and
sorted is enormous. Yet, I firmly believe that
we have not deviated in the slightest from the
principles with which we began.
At a time in our history when the streets of
the Nation's cities inspire fear and despair,
rather than pride and hope, it is difficult to
maintain objectivity and concern for our fellow
citizens. But, the measure of a country's great-
ness is its abili to retain compassion in time
of crisis. Wo na in the recorded say <a My
man has a greater tradition of revering ju
and fair treatwent for all its citizens in times
of turmoil, confusion, and tension than ours.
This is a country which stands tallest in troubled
times, @ country that clings to fundamental
principles, cherishes its constitutional heritage,
and rejects simple solutions that compromise the
values that lie at the roots of our democratic
syste.
-1l4-
A.43
In striking down capital punishment, this
Court does not malign our system of government.
' On the contrary, it pays homage to it. Only in
a free society could right triumph in difficult
’ times, and could civilization record its magnificent
advancement. In recognizing the humanity of our
fellow beings, we pay ourselves the highest
tribute. We achieve “a major milestone in the long
road up from barbariem® and join the approximately
70 other jurisdictions in the world which celebrate
their regard for civilization and humanity by
shunning capital punishment.
id. at 370-71 (footnotes omitted).
BURGER, C.J., OISSENTING: .
* 2° @
The responsibility of juries deciding capital
cases in our system of justice was nowhere better
described than in Witherspoon v Illinois, supra:
“(A) jury that sust choose between life iaprison-
j ment and capital punishment can do little more—
ané must do nothing less—than express the conscience
| of the community on the ultimate question of life
! or death.*
“And one of the most important functions any jury
can perform in making such a selection is to main-
tain a link between contemporary community values
and the penal system—a link without which the
determination of punishment could hardly reflect
“the evolving standards of decency that mark the
progress of a maturing society’* 391 US, at 519
and on 15, 20 L Bd 24 783. (emphasis added).
prescr: he categories of crimes for which the
Geath penalty should be available, and, acting as
“the conscience of the community,” juries are
| entrusted to determine in individual cases that
the ultimate punishment is warranted. Juries are
undoubtedly influenced in this judgment by myriad
! factors. The motive or lack of motive of the
perpetrator, the degree of injury or suffering of
the victim or victims, and the degree of brutality
in the commission of the crime would seem to be
'
prominent among these factors. Given the general
awareness that death is no longer a routine punish-
ment for the crimes for which it is made available,
it is hardly surprising that juries have been
increasingly meticulous in their imposition of the
“penalty. But to assume from the sere fact of
j relative infrequency that only a random assortment
{ of pariahs are sentenced to death, is to cast
; grave doubt on the basic integrity of our jury
i systen.
408 0.8. at 388-89 (emphasis added).
‘;
-15-
Real change could clearly be browght about ig
legislatures provided mandatory death sentences
in such a way as to deny juries the opportunity
to bring in a verdict on « lesser charge: under
such a system, the death sentence could only be
avoided by a verdict of acquittal. If this is
the only alternative that the legislatures can
safely pursue under today's ruling, I would have
preferred that the Court opt for the total
abolition.
It seems remarkable to me that with our basic
trust in lay jurors as the keystone in our system
of criminal justice, it should now be suggested
that we take the most sensitive and important of
all decisions away from them. I could ii
r na I
¥ rat
uror are ar °
viola *
afrequency ea es sed by jurors
attests their cautious and discriminating reser-
vation of that penalty for the most extreme cases.
I had thought that nothing was clearer in history,
ae we noted in McGautha one year ago, than the
American abhorrence of “the common-law rule imposing
a mandatory death sentence on 41) convicted sur-
derers.* 402 US, at 198, 28 & B46 24 at 72). As
the concurring inion of Mr. Justice Marshall
shows, ante, at 339, 33 L £4 24 at 406-07, the
: t from mandatory ¢eath
always measured by the category of the crise
committed. This c¢ in sentenc ractice
was greeted .
TT TU 24 456, 19 S Ct 212 (1899); cf. Calton v
Utah, 130 OS 63, 32 L Bd 870, 9 S Ct 435 (1889).
See also Andres v Onited States, 333 0S 740,
753, 92 & Bd 1055, 1063, 68 S$ Ct 880 (1948)
(Prankfurter, J., concurring).
seggences at the Tigbeh eeeeeery senaee
: nme < s
. e tur
408 0.8. at 401-02 (emphasis added).
BLACKMUN, J., OISSENTING:
e*ee
As I have said abowe, were I « legislator, I would
40 all I could to sponsor and to vote for legislation
abolishing the death penalty. And were I the
‘chief executive of a sovereign State, I would be
. sorely tempted to exercise executive clemency... .
t4. at 410.
,
ee
I do not sit on these cases, however, 48 4
legislator, responsive, at least in part, to the
will of constituents. Our task here, 48 suSst £9
A.45
A
frequently be emphasized and reemphasized, is to
pass upon the constitutionality of legislation
that has been enacted and that is challenged.
This ie the sole task for judges. We should not
allow our personal preferences as to the wisdos
of legislative and congressional action, or our
Gistaste for such action, to guide our judicial
decision in cases such a8 these. The temptations
to cross that policy line are very great. In fact,
as today's decision reveals, they are almost
irresistible.
té. at 410-11.
POWELL, J., OISSENTING:
“When the power of Congress to pass a statute is
challenged, the function of this Court is to
Getermine whether legislative action lies clearly
outside the constitutional grant of cower to which
it has been, or may fairly be, referred. [In making
this determination, the Court sits in judgment on
the action of @ co-ordinate branch of the Government
while keeping unto iteelf—as it sust under our
constitutional system—the final determination of
its own power to act. .
"Rigorous observance of the difference between
limits of power and wise exercise of power—between
questions of authority and questions of prudence—
requires the most alert appreciation of this
Gecisive but subtle relationship of two concepts
that too easily coslesce. Wo less does it require
a dieciplined will to adhere to the difference.
It is not easy to stand aloof and sallow want of
wiedom to prevail, to disregard one's own strongliv
held view of what is wise in the conduct of affairs.
But it is not the business of this Court to pro-
| nounce policy. It must observe a fastidious regard
for limitations on its own power, and this pre-
ciudes the Court's giving effect to its own notions
of what is wise or politic. That self-restraint
ia of the essence'in the observance of the judicial
oath, for the Constitution has not authorized the
judges to sit in judgment on the wisdom of what
Congress end the Executive Sranch do.* 356 US, at
119-120, 2 & £6 2d at 652, 653.
408 0.8. at 432-33.
REEFQUIST, J., OISSENTING
* ef
The very nature of judicial review,. . ., sakes
the courts the least subject to Madisonian check
} in the event that they shall, for the best of
motives, expand judicial suthority beyond the lisits
contemplated by the Framers. [It is for this reason
that judicial self-restraint is surely an iaplied,
if not an expressed, condition of the grant of
authority of judicial review.
té. at 470.
-l?-
IN THE SUPREME COURT OF MISSISSIPPI
wo. $3,795
ALVIN HILL
STATE OF MISSISSiPPI
ROBERTSON, JUSTICE, COMCURAING IN PART, DISSENTING IN PART:
t. ZeEROOUCT ION
A. The Three Errors Below
With practically ell of what has en said in the majority
opinion of Justice Hawkins, i concur. ore specifically I coneur
in all of Parts I and ii and all of Part III except subpart
(e). I dissent from Parts Iirie) and IV. Without doubt, the
| evidence is clear that Alvin Hill brutally surdered Robert lee
| Watkins on July 12, 1979. i expressly join in the Court's affir-
| mance of Hill's comviction.
| In my view, however, three errors occurred in the pro-
ceedings before the trial court which should require that the
sentence of death be vacated and that the case be remanded for «
new trial on the question of sentence only.
First, the prosecution elicited from the oodefendant
) Gregory Tucker that, arising out of the same operative events as
| the case at bar, Tucker had been convicted of manslaughter. The
' majority correctly and enequivocally states that *. . . Sh48 son-
phituted error’ (empnasis added), citing Buckiey v, State, 223
$0.24 $24,528 Otiss.1969), Dut then inexplicably holds that mili
should be dispatched to the gas chamber because 515 lawyer did
not object.
<All el, ee a
Second, the state's attorney argued to the jury at “e
sentencing phase that its verdict was sot the “last word’, thet
other courts would review any death penalty. The indisputadis
effect of the argument was to “minimize or disturd” the jury's
primary role in sentencing under our capital murder statute.
Again we agree with the majority that this argument was ‘clearly
erroneous’ and “highly prejudicial’. Howell v. State. 411 So.2¢6
772 (Mise. 19892) is indeed controlling. We do sot understand
how the court can in the next breath hold the point procedurally
barred.
Third, the circuit court refused to grant #ill's requested
Instruction 0-2. ‘That instruction would have advised the jury
of its prerogative and power to refuse to impose the death sentence
no matter what - a power the jury clearly hed. f join with
Justice Hawkins in his opinion that this was error.
These three errors ought to require vacation of the death
sentence imposed upon Bill. Because the majority holds otherwise,
I respectfully dissent.
B. The Target: Procedural Bars in Death Penalty Cases
My principal target is the statement in Part Iii(e) of the
majority opinion, at peges 21-22, that this Court has consistently
applied a contemporaneous objection rule in death penalty cases.
The statement is wrong as a matter of fact. Far sore of our cases
going back over the decades have 4eclined to invoke procedural bars
in capital cases. Beyond that, the statement is wholly at odds (a)
with constitutional imperatives enunciated by the Supreme Court
of the United States, (b) with the mandate of the legislature of
this state regarding appellate review, Miss. Code Ann. $99-19-105, and
ic) with this Court's plain error rules, Miss. Sup. Ct. Rules 6(D)
and 42.
Without doubt the state has an interest in achieving
finality in litigation, even death penalty litigation. Contes-
porsnecus objection and other procedural rules, when fairly
enforced,no doubt promote legitimate state interests in non-
capital cases. But death is different. Surely the State of
Mississippi has no interest as great as its interest in assuring
that, before a man suffers the ifrevocable penalty of death, he be
accorded every substantive right and protection known to our
law, procedural niceties to the contrary notwithstanding. No
such contrary interest has been identified in the majority opinion,
mor could it be.
Make no mistake about the implications of the procedural
bar the majority imposes upon Alvin Hill. It presumes that Hill's
rights secured in tne positive laws of this state have been
violated. The majority notes - then overlooks - two errors, each
of which standing alone has in the past been sufficient to vitiate
non-capital comvictions and sentences. What state interest requires
this fateful step eludes me.
I have addressed this proposition briefly in my special
concurring opinion in Eéwards v. Thigpen, No. 53,298, decided
March 23, 1983 (not yet reported.) In Edwards, sy view on the
merits of the issues tendered was that petitioner was entitled to
mo relief. The case at bar, however, as the majority correctly
notes, is ¢ifferent. Were it not for the procedural sluggishness
of defense counsel, Alvin Hill would be entitled to reversal here.
In Eéwards, counsel's procedural defaults were in my view harmless
because the points were substantively seritless. Because here
Bill's attorsey’s failures have, if the majority opinion becomes
the last word, become castastrophic, I wish to set forth ay views
at some length.
II. The Uniqueness Of The Desth Penalty
A. The Onited States Supreme Court Says
I begin with the a priori constitutional imperstive ~-
that the penalty of death is qualitatively éifferent from any other
form of punishment Known to our society. The Supreme Court of the
Onited States has in recent years repeatedly recognized the
uniqueness of the death penalty. Concurring in Furman v. Georgis,
308 0.S. 238, 92 S.Ct. 2726, 33 L.B4.24 346 (1972), Justice Stewart
wrote
“The penalty of death differs from all other
forms of criminal punishment, not in degree
but in kind. It is unique in its totai
irrevocability. It is unique in its rejection
of rehabilitation of the convict as a basic
purpose of criminal justice. And it is
unique, finally, in its absolute renunciation
of all that is embodied in our concept of
humanity. 408 0.S. at 306, 92 $.Ct. at 3760.
This theme, the unique nature of the death penalty, has
been repeated time and time again. See, @-g-, Furman v. Georgia,
sopra, 408 0.S. at 287 -289, 92 S.Ct. at 2751, 3752, 33 L.Ed.2d
376-378 (Brennan, J., concurring : Gregg v. Georgia, 428 0.5. 133,
197-188, 97 S.Ct. 2909, 2931, 49 L.B4.24 859 (1976); Woodson v.
North Carolina, 428 0.8. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.
24 944 (1976); Gardner v. Florida,430 U.S. 349, 357-358, 97 S.Ct.
1197, SL L.B4.24 393, 402 (1977); Coker v. Georgia, 433 U.S. 584, 598,
97 S.Ct. 2861, $3 L.E4. 24 982 (1977); Lockett v. Ohio, 438 U.S.
586, 604-605, 98 S.Ct. 2954, $7 L.Ed.24 973, 989-990 (1978);
and Beck vy. Alabama, 447 U.S. 625, 638, 100 S.Ct. 2382, 65 L.Ed.
26 393, 403 (1980).
Because capital punishment is “qualitatively different’,
Woodson vy. North Carolina, 428 0.5. 280,96 (1978) helds that
"there is a corre ing difference
in the need for reliability in the deter-
mination that death is the appropriate
punishment.” 428 0.5. at 305.
Lockett v. Ohio, 438 9.5. $86 (1978), observes, in & some~
what different context, that the penalty of death is “so profoundly
4ifferent* that a greater degree of sentencing reliability is
A.50
o*. —!- ««
required. 438 0.6. at 604-605. Beck v. Alabama, 447 0.8. 625
(1960), posits as the goal of 4a capital trial a process which
*“ineure(s) that the death penalty is in-
Geed imposed on the basis of ‘reason
rather than caprice or emotion.'* 447
G.8. at 638.
That death is different is a fundamental notion that underlies
and helps explain much of what we say below.
8. In More Practical Ways, The Supreme Court
of Mississippi Recognizes That Death is
Different
This Court recognized that death was different long before
the above utterances of the Supreme Court of the United States.
This recognition has mmnifesteditself in varying forms.
i. Teal Errors Viewed For Their Cumulative impact
The Court has an established tradition in capital cases of
considering trial errors for their cumulative effect. In setting
aside a guilty verdict and sentence of death in a murder case,
Russell _v. State, 185 Miss. 464, 189 So. 90 (1939), holds:
"It is true that not one of the errors,
when considered separately and apart
from the others, is sufficient to
justify a reversal of the case, but
when they are considered as a whole it
is our view that they resulted in the
appellant being denied a fair trial... .*
18S Mise. at 469, 189 So. at 91.
Indeed, this Court has recently sanctioned the practice of
cumulating errors in a non-capital case. Collins v. State, 408
$0.24 1376, 1380 (Miss. 1997).
2. The Plain Error Rule is Liberally Applied
The policy of allowing a defendant in a capital case to
cumulate the errors at trial were sone individually justifies
reversal, enunciated in the Russel] case, has a corollary:
meritorious grounds for reversal should be considered by the
Court without regard to procedural niceties. In Augustine v. State,
201 Miss. 731, 29 $0.24 454 (1947), the Court stated:
A.51l-53-
od
sion, ‘searched’,
t = onal es cue y re
Ol Mass. at 740, 29 So.24 at 454.
Ross v. State, 185 Miss. 438, 188 So. 295 (1939) finds this Court
accepting its duty to be mindful that sometimes “a spirit of
community vengeance finds its way into a jury verdict." 185 Miss.
at 445, 188 So. at 296. See also Gipson v. State, 203 Miss. 434,
437, 35 $0.24 327, 328 (1948).
This, of course, is nothing more than a common law plain
error rule. Compare Rule 6(b), Miss. Sup. Ct. Rules. In death
penalty cases, errors less plain and less noticeable are grounds
for reversal.
3. Contemporaneous Objection Rule Greatly Relaxed
In the context of jury instructions not objected to at
trial, we note Rule 42 of the rules of this Court, the last
sentence of which reads
“In extreme cases this Court may raise an
objection to a jury instruction in order
to prevent manifest injustice.*
This Court has employed the above quoted sentence to hold
that capital cases are “extreme cases” and that the contemporaneous
objection rule does not apply in such cases. Toney v. State,
298 So.24 716, 721 (Miss. 1974); Culberson v. State, 379 $0.24 499,
506 (Miss. 1980)7° (Rule 42 waived “with reluctance and only
because this is a capital case"). See also Bell v. State, 360
So.24 1206, 1215, 1217-1218 (Miss. 1978).
4. anmee Errors Resolved in Favor
Fourth, boma fide doubts are resolved in favor of the
accused. In Gambrell v. State, 92 Miss. 728, 46 So. 138 (1908),
a death penalty case, the Court held that
-_——
—
The Court then epplied the same rule to close questions regarding
jury instructions.
“What is here said in reference to
admitting testimony in cases of serious
legal doubt equally applies to the
granting of instructions in favor of the
accused. 92 Miss. at 736.
S. Heightened Scrutiny on Appesl
All of this culminates in the more recently recognized
proposition that appellate review in capital cases is different from
that in other cases. Irving v. State, 361 So.2d 1360 (Miss. 1978)
observes:
“We recognize that thoroughness and intensity
of review are heightened in cases where the
death penalty has been imposed. (Citation
omitted) What may be harmless error in a
case with less at stake becomes reversible
error when the penalty is death.” 1361 So.2d
at 1363.
Reaffirmed in Laney v. State, 421 So.2d 1216, 1217 (Miss. 1982).
Cc. Our Sister States Likewise Recognize that Death
ds Different
This Court hardly stands alone among state courts of last
resort in recognizing that death is different. In many other
jurisdictions we find the same careful protective approach to appellate
review of capital cases.
For example, in State v. Mount, 152 A.2d 343 (N.J. 1959),
_ the defendant appealed his judgment of conviction and death sentence
to the Supreme Court of New Jersey. The Court stated:
“But where a life is at stake, this court
does not hesitate in the interests of justice
to invoke the plain error rule (R.R.1:5-1)
and to reverse where the trial errors vere
ent ge ay with the likelihood of having
the substantial rights of the de-
fendant." 152 A.2d at 352.
In « similar context, the Supreme Court of Alabama, ia
Abpertson vy. State,254 Ala. 87, 47 So.2¢ 182 (1950), has stated:
“Perhaps it is well to note that in reviewing
a death (penalty) case under the automatic
appeal statute, supra, we may consider
testimony that was seriously prejudicial to the
rights of the appellant and may reverse
» @ven though no lawful objection or
was made thereon.
See also, Duncan v. State, 176 So.2d 840,851 (Ala. 1965).
Even though no exception was taken to the overruling
of a motion for a new trial and thus there was nothing legally
before it for review, the Supreme Court of Missouri, in State v.
Black, 186 S.W. 1047, 1048 (Mo. 1916) “ex gratia and out of
caution®, examined the entire record, “owing to the fact that
Defendants have been sentenced to death.”
The Supreme Court of Connecticut, in State v. Walters,
145 Conn. 60, 138 A.24 786, 789 (1958), has said:
"The claim that the court should have
dismissed the jury without more as soon
as the foreman reported the ‘hopeless
disagreement’ was not made, as it should
have been, at the time, but was deferred
until the following morning after the
court had — Ss the first portion of the
: i : However
The Supreme Court of Idaho has also recognized, in
State v. foyte, 43 Idaho 459, 252 P. 673 (1927), that justice
demands less stringent application of appellate court review
procedures where the Defendant has been sentenced to die:
"This court has frequently held in
criminal cases that it would not consider
errors in the admission of evidence
unlese exceptions thereto were preserved.
But it has never so held in a capital
case...
Mere inadvertence of counsel to
should not lude a defendant, wi
life at » trom claiming the right of
fair trial.* 252 P. at 674.
In Worth Carolina « general rule exists that objections
to arguments to the jury must be duly and timely sede. Aelaxing
a a
A.54
this rule, the Supreme Court of North Carolina held that a
Gefendant in a capital case can belatedly make this objection
even after the verdict is returned.
*“Purthermore, an exception to improper
argument of «a solicitor or other counsel
for the State may be entered after verdict,
where the verdict rendered requires the
court to enter a death sentence and the
harmful effect of the argument is such
that it may not be removed from the minds
of the jurors.* , 229 N.C.
167, 48 $.8.24 35; su ’
v P ery,
ows Geese 7 . .
IIl. Procedural Perfection in Preservation of
Errors Bas Never Been Demanded in Death
A. The Majority's Cases Do Not Support The
On v
The cases relied upop by the majority do not support the
proposition for which they are necessarily cited here, to-wit:
that failure to preserve procedurally an otherwise reversible
error is sufficient to preclude this Court's consideration of the
point in its review of the imposition of the penalty of death upon
Alvin Hill.
The majority relies upon eight cases. See Part III (e),
page 22. These are: Coleman v. State, 378 So.24 640 (Miss. 1979);
Thomas v. State,258 So.2¢ 1311 (Miss. 1978); Griffin v. State, 292
So.24 159 (Miss. 1974); Myers v. State, 268 So.24 353 (Miss. 1972);
Peterson v. State, 242 $0.24 420 (Miss. 1970); Ford v. State, 227
So.24 454 (Miss. 1969); Showers v. State, 227 So.24 452 (Miss. 1969);
and Coburn v. State, 250 Miss. 684, 168 So.2d 123 (1964).
First, not one of these cases involves the affirmance of «
death sentence!
Second, three of these cases - Thomas, Ford and Showers,
were not even surder cases. Two more, Griffin and Coburn, were
murder cases in which « life sentence had been imposed in the trial
court. Omly Goleman, Myers end Peterson are cases where the death
es
penalty had been imposed in the trial court, but in each of those
three cases the sentence of death was vacated for varying reasons.
Absent citation to a case in this Court where an otherwise
reversible error was held precluded from consideration on the merits
by virtue of a failure timely to preserve the point for appeal, and
where the death sentence was in fact affirmed, we suggest that the
majority holding is simply without precedent in this state.
B. A Half Century's Precedents Expressly
or By Clear Implication Support the
Proposition that Procedural Bars are
Not Invoked to Affirm Death Sentences
The majority holding is contrary to the dominant philosophy
of the overwhelming majority of the death penalty cases which heve
been reviewed in this Court. It is contrary to the expressed or
clearly implied premises of fifty years'worth of death penalty cases
decided in this Court.
Without belaboring the point, we list the following cases
as & representative sampling of the occasions on which this Court,
in cases in which the death penalty has been imposed by the trial
court, has ignored procedural requirements for preservation of
error and has proceeded to decide on the merits the issues,
unpreserved or unassigned,tendered by the defendant. Fisher v.
State, 145 Miss. 116, 134, 110 So. 361, 365 (1926) (failure to
contemporaneously object to a confession did not preclude reversal
because “constitutional rights of a person on trial for his life
rise above mere rules of procedure."); Ross v. State, 185 Miss. 438,
445, 188 So. 295 (1939) (Court's duty to apply “closest scrutiny”
to death penalty cases since community vengenance may taint the
verdict); Carter v. State, 198 Miss. $23, 528, 21 So.2d 404 (1945)
(errors affecting fundamental rights present an exception to the
general rule that errors cannot be raised for the first time on
appeal); Musslewhite v. State, 212 Miss. $26, 539, 54 So.24 911,
914-15 (1951) (merits of an evidentiary issue reached even though
trial court was not afforded an opportunity to pass on the proposition);
Bell v. State, 360 So.24 1206, 1215, 1216-18 (Miss. 1978) ‘erroneous
instructions not urged on appeal still considered); Voyles v. State,
- 16 -
- . 56
A SS a
362 So.24 1236, 1237 (Miss. 1978) (court carefully studied every
aspect of the case to insure that unassigned errors were not
present); Culberson v. State, 379 So.24 449, 506 (Miss. 1980)
(Anstruction question considered on merits though no formal
Objection lodged); Wheat v. State, 420 So.24 229, 239 (Miss. 1982)
(same). The holdings of these cases find their exegesis in the
expressed policy that, notwithstanding an appellant's failure to
file assignments of error and brief, and notwithstanding that such
cases are subject to dismissal, this Court, in capital cases, will
nevertheless read the record and search for errors to insure
that the “extreme penalty® is not unjustly exacted. Gibson v.
State, 203 Miss. 434, 437, 35 $0.24 327, 328 (1948); Shafter v.
State, 46 So.24 545, 545 (Miss. 1950); Russell v. State, 226 Miss.
865, 885, 85 So.2d 585 (1956); Drake v. State, 228 Miss. 589,
590, 89 So.24 593 (Miss. 1956); Irving v. State, 228 So.24 266,
268 (Miss. 1969).
Suffice it to say that, in view of the considerations
outlined in Section II(B) of this opinion above, it is hardly
surprising that these and many other cases say be found in our
reports declining to impose procedural bars in death penalty cases.:
1
Nothing said by the majority suggests any overruling of
the cases cited in this section, and we are confident no one would
suggest that the majority Opinion has any such effect. Whenever
one of this Court's decisions effects a major change in established
precedent, the prior precedent is ger “aa a and the
overruled cases are set forth in the gf. te
+ 356 So.24 1151, 1161 (iss. i er townnen
instruction
could be a defense to certain beret Re ree 420 So.24
1063, 1067 (Miss. 1982) a en, © care s are held
aloes, 1082-83 saa) fabstished doctrine ot
421 $0.24 1046, 1052-53 (Miss. 1982
sovereign immunity); » $53,626,
*
in Chancery Courts). I trust nothing
said by the sajority in any way questions the correctness of this
approach.
-ill-.-
LT
TV. Invoking Procedural Bars Produces Arbitrary
Pactors This Court Has Been Legislatively
v
A. Sentence Review in Search of Arbitrary
Pactors Is In Addition To Ordinary
Appeal
The Mississippi Legislature has mandated automatic
sentence review by this Court in each case in which a death
verdict is returned. Miss. Code Ann. §99-19-105 (Supp. 1982).
The statute expressly provides that
“The sentence review shall be in addition
to direct appeal. .. ." §99-19-105(6)
This Court is directed to “considet the punishment as well as any
errors enumerated by way of appeal." §99-19-105(2).
The statutory scheme thus provided is clear. A convicted
defendant say appeal his conviction and sentence as in any other
ease. On 4ppeal only, the same rules regarding preservation of
errors below apply as in a non-capital case. Where the sentence
imposed below is death, however, review of the sentence only
occurs without regard to preservation of error below or
specification of error in this Court.
In performing its automatic sentence review this Court
is directed to consider similar cases. It is likewise directed to ©
consider whether the sentence of death was imposed under the
influence of “any .. . arbitrary factor®. §99-19-105(3) (a).
This mandate that similar cases be compared and contrasted coupled
with the charge to root out arbitrary factors are important here.
They provide a legislatively mandated undergirding of the
fundamental thesis of this opinion: that procedural bars may not
lawfully be invoked in this state to affirm death sentences.
We can think of no more arbitrary factor than having
nimbleness of counsel on points of procedure determine whether
Alvin Hill lives or dies.
5. asia a Travis Buckley While Condemning
Om the first substantive error under discussion, compare
this case with Buckley vy. State, 223 So.id 524 (Mies. 1969).
-l2z-
em
In Buckley the defendant was convicted of kidnapping and sentenced
to ten years in prison. This Court reversed his conviction because
the trial court erroneously allowed the state to elicit from « co-
defendant that he (the codefendant) hed pled quilty to the
kidnapping. Buckley obse
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