Petition for Writ of Certiorari — Gray v. Mississippi

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35-5454

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

DAVID RANDOLPH GRAY,

PETITIONER,

STATE OF MISSISSIPPI,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT FOR THE

STATE OF MISSISSIPPI

ANDRU H. VOLINSKY

SCHAPIRA AND GREEN, P.A.

108 Bay Street

Manchester, NH 03104

(603) 669-7603

September 17, 1985

a ~ —? oe a ‘ P "

ee ee a ee ep ee a a a a eee . —— rere, ~ - ; P _

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‘Question Presented For Review PAGE

, ate ouneTuce PETITIONS ’S BIGHT TO 8 FAIS AND IMPARTIAL + Le ge, ae ae ee ee ae ae a ee a ee ii

JURY WA I TED IN THI P A

COURT'S EXCUSAL FOR CAUSE OF A POTENTIAL JUROR WHO WAS CLEARLY Questions Presented . ©. ss ee eee ee eee eee

tartan. To BE SEATED AS A JUROR UNDER THE ADAMS AND wlit Opinion Below * * . .* . . * . . * . * * * . * * * * . * *

1. Whether such an error can ever be considered Jurisdiction . . se ee ee tee ee ee ee ee es

harmless.

Statement ofr The Case . . * * 7 . . . *. . . * * * * . * .

Reesen For Greating The Writ. . 2.2. ses eeceevece

A. THE TRIAL COURT'S ERROR, IN EXCUSING A CLEARLY

QUALIFIED JUROR FOR CAUSE, CANNOT BE CONSIDERED ‘

2 a.

Constitutional Provisions Involved. ......+4+++e+6-s 2 ae

' 2

COmsGGEc’ ss 6 & & oe 6 w"O) 60 ee '4 OS te Cs oe

Appendix A-Opinion Below

Appendix B-Denial of Petition For Rehearing

TABLE OF AUTHORITIES

IN THE

Page

SUPREME COURT OF THE UNITED STATES

Cases:

‘gia, 429 U.S. 122, w 3. 100 399, al L.Ed2¢, ” on

339, (1976). . . . = €& & & ss . . . . . . 2,3,

5 No.

State vy. Gray, 472 So.2d 409 (Miss. 1985) . . . . « « « «2,4

U.S. __, 105 S.Ct. 844,

be d2d 81 (1985). * * . . . * * * . * al . . . * . * 4

Constitutional Provisions

Sixth Amendment, United States Constitution ....... &

DAVID RANDOLPH GRAY,

PETITIONER,

STATE OF MISSISSIPPI,

RESPONDENT.

Fourteenth Amendment United States Constitution ..... &

PETITION FOR WRIT OF CERTIORARI TO

- THE SUPREME COURT FOR THE

STATE OF MISSISSIPPI

The Petitioner, David Randolph Gray, through counsel

respectfully prays that a writ of certiorari issue to review the

judgment of the Supreme Court for the State of Mississippi .

entered on July 24, 1985.

I. Question Presented For Review

QUALIFIED TO BE SEATED AS A JUROR UNDER THE ADAMS AND WIIT

CRITERIA.

i 1. Whether such an error can ever be considered

. Il. Qpinion Below

The Mississippi Supreme Court entered its opinion, en

banc, on June 5, 1985. The Court was divided, 6-3, on the issues

presented herein. A copy of the en bane decision is attached as

Appendix A. ; .

The Court denied Petitioner's request for rehearing on

July 24, 1985. A copy of the Court's order is attached as

Appendix B.

Ill. Jurisdiction

The jurisdiction of this Court is invoked under Title 28,

United States Code, Section 1257(3).

IV. Constitutional Provisions Involved

Sixth Amendment, United States Constitution

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the state and district wherein the

crime shall have been committed.

Fourteenth Amendment, United States Constitution

1. Citizenship rights not to be abridged by

states.

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof,

are citizens of the United States and of the

State wherein they reside. No state shall make

or enforce any law which shall abridge the

privileges or immunities of citizens of the

United States...

V. Statement of the Case

On June 5, 1985, the Mississippi Supreme Court, en

banc, affirmed the conviction of Petitioner for capital murder

and he resultant sentence of death. The Court was divided 6-3

on the issues presented herein.

A timely petition for re-hearing and brief were filed

by Petitioner. Said request was denied by the Mississippi

Supreme Court by an order dated July 24, 1985.

the propriety of the exclusion of a juror, Mrs. Bounds, on

Witherspoon grounds. The Court, in its majority opinion, found

that although "(Mrs. Bounds) was clearly qualified to be seated

The Mississippi Supreme Court considered and ruled upon

as a juror under the Adams and Witt criteria,” State vy. Gray, 472

So.2d 409, 422 (Miss. 1985), the trial court's decision to strike

the juror for cause was no more than a correction of the court's

prior erroneous refusels to permit cause challenges of other

jurors.

Three members of the Mississippi Supreme Court

dissented on the point. Citing Davis v. Georgia, 429 U.S. 122,

-2<

eS a , a of ai = * _— ~_ -— at.

97 S. Ct. 399, 50 L Ed 2d 339 (1976), the dissent argued that

this type of dismissal for cause could not be "sanctioned as

‘harmless error'." 472 So.2d at 425.

The voir dire of Mrs. Bounds appears at pp. 391-417 of

the triel transcript (hereafter Tr.). In pertinent part, Mrs.

Bounds was questioned as follows.

By Mr.

Necaise: Mrs. Bounds, do you feel like this

(The Prose- is a case, and I don't, I certainly

ecutor] don't want you to think that I's

teking on you. But, uh, what we

are trying to do here is that we are

trying to pick twelve people, uh,

who we feel that, wh, would be fair

and impartial persons, what we are

looking for is people who could be

fair and impartiai and who could,

if the evidence warranted it, could

impose the Death Penalty because we

feel that this is a case that warrants

the imposition of the Death Penalty.

We know that the law allows it.

And could you tell me, do you feel

like you could reach a verdict in

this case, either guilty or not

guilty in this case?

By Mes.

Bounds: Could I reach a verdict?

(The pro-

spective

juror]

By Mr.

Necaise: A verdict.

By Mrs.

Bounds: A verdict?

By Mr.

Necaise: Yes, ma'am. .

By Mrs.

Bounds: Either way?

By Mr.

Necaise: Yes, Ma'am,

By Mrs.

Bounds: Yes

By Mr.

Necaise: You could reach a verdict of guilty

or not guilty. Now, if that ver-

dict was guiity and you felt that

from the evidence that you used to

find him guilty, that evidence

which you had used to find him

. guilty, if you felt that that evi-

dence was of such a heinous,

atrocious and crvel manner, do you

feel that you could vote for impos-

ing the Death Penalty on this .

twenty-eight year cld Defendant?

By Mrs.

Bounds: Yes.

By Mr.

Necaise: Ma'am?

By Mrs.

Bounds: Yes.

By Mr.

Necaise: Judge, the lady says yes, but we

would challenge her for cause.

(Tr. at 411-813)

Without any further questioning of Mrs. Bounds, the trial court

excused her for cause. (Tr. 417).

VI Reason For Granting The Writ

A. THE TRIAL COURT'S ERROR, IN EXCUSING A CLEARLY

QUALIFIED JUROR FOR CAUSE, CANNOT BE CONSIDERED HARMLESS.

The exclusion for cause of Mrs. Bounds denied

Petitioner his right to a jury that was fair and impartial.

Sixth Amendment, United States constitution. Jurors may orly be

excluded for cause if they are biased. See Reynolds vy. Vnited

States, 98 U.S. 145, 157, 25 L.Ed 244 (1879). The standard for

determining bias requires the trial court to determine "whether

the jurors's views wo.ld ‘prevent or substantially impair the

performance of his duties as a juror in accordance with his

instruction and his oath.'* Wainwright vy. Witt, _..._ «U.S.

105 S.Ct. 844, 852, 83 L.Ed2d 841, 851-852 (1985) (Footnote

omitted)

Here, Mrs. Bounds did not evidence views that would

have substentially impaired her performance as a juror. As

admitted by the Mississippi Supreme Court, "she was clearly

qualified to be seated as a juror under the Adams and Witt

eriteria." (Citation omitted) Gray vy. State, 472 So2d 409, 422

(Miss. 1695) (Citation omitted).

‘ Nonetheless, Mrs. Bounds was excused by the trial court

-4-

y =Pee = ae ee ae ee Se ee OS lO re ae eS . |

for cause. The trial court's error was then found to have been

harmless by the Mississippi Supreme Court.

The facts sub judice are completely consistent with

those present in Georgia vy. Davis, 429 U.S. 123, 97 S.Ct. 399, 50

L.Ed2d 339 (1976). In Davis, the improper exclusion of a juror

invalidated the subsequent imposition of the death penalty.

The holding of this Court in Davis is plain. The

erroneous exclusion of jurors cannot be harmless. The

Mississippi Supreme Court's failure to reverse Petitioner's

sentence of death was clearly erroneous. It is in direct

conflict with this Court's decision in Davis. This Court should,

therefore, issue the requested writ of certiorari, reverse

Petitioner's sentence bf death, and remand for a new sentencing

hearing before a fair and impartial jury.

VII Conclusion

WHEREFORE, for the foregoing reasons Petitioner

requests the Court:

1. issue a writ of certiorari to the Mississippi

Supreme Court;

2. reverse Petitioner's sentence of death;

3. remand this cause for a new sentencing hearing; and

4. for such ether relief as the Court deems just and

proper.

DATED: September 20, 1085 Respectfully subm ; .

Su fi. Voli

SCHAPIRA AND 7 °.4.

108 Bay Street .

Manchester, NH 031 .

(603) 669-7603

MINUTE BOOK "EX", PAGE 597 597

; MINUTES, SUPREME COURT OF MISSISSIPPI MARCH TERM, 198 >

a ‘ — - —_— : a en = a $y

[weonespay, JuLy 24, 1985, COURT SITTING : : :: : Ss ae

DAVID RANDOLPH GRAY This cause this day came on to be heard on Petition for

55,738 v Rehearing filed herein and this Court having sufficiently

STATE OF MISSISSIPPI examined and considered the same and being of the opinion

that the same should be denied doth order that said petition be and the same is hereby denied.

: f

Cite as 472 S024 409 (Mics. 1965) which were inflammatory that defendan ,

. the interest Court, jvan, J., held that: (1) defendant ed Arwher-teat Sefendant 4 acted in the heat 16.”

R may Validly lease his ; dorn—A “sths share of the interest ap ied to compel.cttendance of fect the sentencing phase of trial, where passion and without malice aforethought, 9

se can in m on the "Yeths working interest uf Amoco § was no entitle fy: (2) the State laid witness, who was illiterate, never informed as to jusufy manslaughter conviction in

a ' ny -} *» “ . oan : : ;

ht to , ny Great’ ag for the life of Sallie Clark two prisoners to testi!) pe eran state that he would testify differently than light of his tesumony that he never Stabbed =

; Production absent join : titled to the use of the *¥fficient predicate to impeach 4 | his statement concerning defendant's man the victim, and in absence of evidence rats

P tenant moco w not en . as. ‘ was not sulticier : ;

; Both the life tenant } A f the "Yeths working interest or (3) evidence wa ner after crime and State may genuinely changing character of killing, which had th

= Z " i. < _ s ry ryt ~ : .

nderman have present in orpus the investment of that Slow a manslaug not have expected him to be hostile. he malicious and premeditated ongin in kidnap not

mine ’ " mcom rom ; c i di val , de ace natructions wer "

rals on the property and ' any inc .' ath of Sallie Clark. A cumstantial evid a provec less than cooperative during direct ping of victim and his girl friend by defen. 1ST.

til >, Ve . . » - or P rrest

fork to defeat the nlerest of . sun — = oa m during the life of qwat (5) admuss) . examinauon and his statements on redirect dant and others 16.

pplying that rule although profits from that sum Gurin tion revocation for for sents . may have j 7

. : > , , y genuinely surprised State

ed a valid lease of —, Sa lle lark belong to Speights anc “y wrmiss ible 6) evid e was suf 4 ” 11. Criminal Law 82% 15)

oo : as set out above ‘s ’ ; se fae ¢ nvy-murd . roe

rest, it did not have the nght horn to be divided that the corpus of #/o~ sealh penalty 5. Constitutional Law ©"266.1(1) Trial court did not improperly refuse to or

; ~~ f moco & aul w imspure . . — :' r y cw did ne r ; |

oduction L nde: the lease a _~ y wade srovides = tie proportiona t Evidence of defendant's postarrest si grant severa! requested instructions relat. jure

imoco had nd right t, or perder patremngy ~. t d Yathorn review of all capita me ~ lence violates due process since it is funda- '"@ © circumstantial evidence where a very

so af ant Speights an anor M. Lee suc

irs. Clark died » thir the rate of return for — rr 2 eeeme court an Of an M. Le mentally unfair to afford a suspect nght to strong circumstantial evidence instruction

hether it retains the “Jwths and becomes , . . . A spe

se whethe ana tie teneeeeh an ee he at tria remain silent and yet allow implications of ‘®* ranted to defendant which accom. of

personally liable fo uM hoes - prosp ror @ his silence to be used against hin US plished same thing as the refused instrue-

Sallie Clark 1 Burr er it investa Unat sum with & Ure part) f o alieng . = ' : ' lem

ane SUrns Cor nterest. Be ex L.A. Const Amend. 5 = hs

west to Speights by wey of responsible for paying We int affir as

; ‘ , ncery

fm mineral deed, Speight, ause of the failure of the chance 6. Criminal Law €=407(1), 1169.12 12. Homicide 354 17.

subject to define the parties’ interests as we have ~ Ad f 4

ject to the lease Burns w Ge: ' mission of reference by witness to | sentencing phese of Capital murder

t then t ax nereby reverse :

rs) Speig hts was therefore pet them out at oe S nag 7 defendant's intention to remain silent after proceeding, commitmen' paper indicating tuor

. - 4S sh caus Ww proceed g> as ; .

t Clark's life estate and » rema . aus arrest was improper; however. error was that defendant had been convicted of ag for

‘est subject to Amocn’s ‘ wilh Us Of harmless where single reference was nei gravated assault and placed on probation haa

the Yuethe - valty BR . REVERSE AN REMAN w esses ther repeated nor linked with defendant's attached to which was arrest Warrant and duc

hen he leased the ra _ exculpatory statement, tria! judge charged probation revocation forms indicating he she

to Amoc herefars a Ww AL . jury @t conciusion of trial that no adverse had committed another unnuined offense in

Immediate rig! © prod NOE } : ¢ 4 : wr ; nee Could be drawn fron invocauuon was admissible since papers or y showed req:

| the entire life esta:, ‘ a right to remain silent and there was that he eventually served time for aggrava cha

£rTest @as a a $u a verwheiming evidence of gut beyond a tec assault, but did not revezi crime for w he

reasonabie doubt U.S.C.A Lonst. Amend which probation was rev xed, and could not

hts have t - not have prejudiced him very differently cure

’ ) tease to He t uty sume - y esses

a etd ? | BComi ons f other mes

ease to Hathorn was «, . " Criminal Law €=847 from his own admissi of rimes 18

0 the life estate he « mn Defendant's failure tu object or to re 13. Homicide 354

® Clark. The rw “ juest 4n appropriate instruction defining In prosecution for murde: — con

had pur hase ‘, , “ eM ‘ . of underly r fel ny eievauiny luring the courss fa kidr Y Fi w " was

| —, = . “apa! murder waived ae, rb jer victim &§ waliel wu: aISU BWiel bart whet! fre:

0) thorn g the issue

ake a’ nha nA er murder wa committed for pecuniary

Bt to be n

proceeds o/ ; y , \ 5. Criminal Law ¢=10938.3 seein whethe de «Curred during irse ;

' Amo. - Th { Mississip ofs ndant « fa lure to request a lesser - x) napping Could v@ agyrava rn ; > po

, lec offense instruction prevented Su oF Semen OB pUrpos

: 5 ie ).

- : (i rimine preme Court from finding that defendant 14 liomicide 351 vir

ghts o ” wus enulied to such instructuuon I " ; : Sp

ws h " A sentencing proceeding mn Capita

“ : : , les

ns Fuels, | , ix | wht he w . ; 8. Criminal Law €614(3) felony murder prosecution, adinission by d

rest in the ‘ the wast Deheas - ’ ‘ed July 24 . — was mpr “er | vever Jury matruc Uons ure not given unless ee that anolWer individual! told hur :

actua! cost of d- orrected the ma ere ww an evidentiary basis for them hat she wanted victim killed and that he ;

' © E + oh supplied her with murder weapon after dis ;

: : ré gar ; ‘ . : ;

* ] Defendant was convicted in the Uir 10. Homicide 239 abling the victim was sufficiem to establish on

te Troy ‘ aa runes C= 380( 5 : .

yay and a \, rt. Harrison County, J. Ruble Griffin 4. Witnesses G35 ‘ In prosecution for c#pilal murder, evi requisite personal culpability to permit But

‘ AU , ara nt v ; : > _ . 2

— on a Vuths P ¢ capital murder and sentenced to State laid suffi pre , | dence was not sufficient to allow finding death penalty

moco for the life of = er —

death, and he appealed The Supreme peach its witness will pnor

ay that he never stabbed

& absence of evidence

* of killing, which had

sditated orngin in hudnap

his girl friend by defer,

620 16)

ot improperly refuse to

sted instructions rela:.

evidence where a very

ul evidence instructon

fendant which accom.

the refused instruc

ase of capita! murder

vent paper indicating

wen convicted of ag

placed on probation.

8 arrest warrant and

forms indicating he

er unnamed offense

papers ogly showed

red time for aggrava

wt reveal crime for

revoked, and could

tim very differently

ms of other crimes

murder committed

kidnapping in whict

stolen, both whet!

itted for pecuniary

arred during course

iGgravating factors

@edings in capita!

m, admission by de

Wividua!l told him

killed and that he

* weapon after dis

ficient to establish

ability to permit

GRAY v. STATE Miss. 41]

Cite as 472 Bold 409 (Mise. 1965

16. Criminal Law © 1134(3)

There is no proportionality review re

quirement that death penalty case be con

pared to all capital murder cases, ever

those in which life sentence was imposea or

not appealed to Supreme Court. Code

1972, § 99-19-10K3x

16. Jury 133

In capital murder prosecution, whether

prospective juror is qualified depends upor

ability of juror to follow instructions and

uror's oath; better practice in voir dire of

oud jurors w to avoid ruling on each pro

spective jurors qualifications in presence

’

of other prospective veniremen to avoid

Le ac hing trose wit wist uu De excused

whal responses W max¢

17. Criminal Law © 1166.17

Defendant in capital murder prosecu

lion was not prejudiced Dy court 8 Gismissa

for cause of a prospect ¥ juror after Stale

nad exhausted its peremptory chaliengé

: . 1

jue Ww her equivocal responses, ai ig

: st rve uw Capita as

ane Was Gualliec Ww & nm a |

ora ‘ ’ rré irt « pri €

Aer : “mre

requy x AU ‘ } |

chaienges li ex }e prospec ve

t) the

wi stated eq Cally 4

‘ :

¥ ef Be A Gea j ua

sLaAMnce

1k. Humicide €°354

. ,

eat! Le : Cu !

ted ‘ f A . 4

” La es, wa

ie : por

A, Ack

Earl I R ’

’ ”

; :

: " | | " At ‘ by Ma

Wi ; 4 W af | ’

As \ Lt Jacks lor appe

ere

br Ban

David Randolph Gray was indicted, along

with Attina Marie Cannaday and Dawn

Bushart, for capital murder for the kidna;

ping and homicide of one Ronald Wojcik

but tried separately. Gray's trial preceded

Cannaday's, but her appeal was heard first

gr 4 71! $5

Cannaday State, 455 So.2d 713 (Mi

: : ;

1984) Wray s ial resuiledc Mm & Bul)

verdict and myx ui | tine leath pena

mt i ; '

nm a eu he asserts that the Urial cour

erred - : priase

e re r |

: les

;

his 4 4

ve X ‘ tne pros

ra U

Slaten

wr us x a}

mpea “ “

aia

as “

| 4

‘ 7

. ;

fna :

' > >

x "

’

ler M ;

iv~ i :

“

Geath seh : P| proj ‘le

er : AN«

; , shored

Part J oft tin Lour . Vpinon au '

by Justice Sullivar will discuss these as

Sigg rirtis nis of error

ney

—_ a a ee

Part Il, bored by Justice Dan Lee,

will address Gray's assertion that the trial

court erred in

12. excluding a prospective juror for

cause in violation of his right to tria! by an

imparual jury

FACTS

Some time after midnight on June 3

1982, Ronald Wojcik and Sandra Sowash

were awakened and forced by knifepoint

from Wojcik's Biloxi apartment by Attina

Cannaday, David Gray, and Dawn Bushart

All five got into Wojcik’s van and Canna

day drove to a remote wooded area north

of Gulfport

On the way, Gray raped Sowash at knife

point in the rear of the van

After the van stopped Cannaday told

Wojcik to get out. When he hesitated

\ray pulled him out. Holding a butche:

knife to Wojcik’s back, Gray marched him

00 to 60 feet into the woods. Cannaday

yelled “Kill him”, and “ray yelled back for

Lannaday to br ng oowash into the woods

SOWaesn turned and rar own the road

Vannaday threw her knife at Sowash but

the handle hit her in the back. Sow ash hid

at @ nearby house, while Cannaday Grey

and Bushart fled to Slidell, Louisiana At

sunrise, the bocy of Ronald Wojcik was

und with 19 stab wounds to the head

nands, upper body, and back

‘Tay Stated that after he yelied for So

out Wo x ik hit him

Dr pping he Knife, Gray had a fist fight

with Wojcik in whic Uray knocked him to

wasi : be brought

ground, breathless Picking up the

Knil “ray suddenly saw Vannaday who

asked fur the knife and said she wanted to

alk to Wojcik. Gray did so, telling her to

Say what she had to, but to make it fast

Uray then returned to the road. About

five minutes later Cannaday returned. He

asked her what happened, and she rephed,

“Nothing, he got up and ran off.” Gray

denied using the butcher knife against

Wojcik at any time during or after the

fight. He said Cannaday did not return

with the butche: knife. He likewise denied

ever using either of the folding knives in

hia possession against Wojcik

Sowash gave the police detailed de.

scription of Wojcik's white van, as well rv)

the name of Tina as a participant. Sher

iff's deputies knew that Cannaday had con-

necuons in Slidell, Louisiana, and informed

the Louisiana authorities to be on the look

out for the white van and occupants

Wojcik’s waliet was found on the highway

near Slide]!

Wojcik’s van was sighted near Slidell,

and Gray and one Timmy Page were ar

rested. Cannaday was arrested at Page's

residence

A. GUILT PHASE

| REFUSAL TO SUMMON

PRISONERS

Uray aryucs tMat Clix ria ’ S$ retu

tO order the return « i pris vr Halbert

and Breland from Parchman to test fy iz

his behalf violated his r ght ler Missis

sippt Constitution Artick > 26, and Unit

ed States ( onstituuon Amendment V] that

n all criminal prosecut he accused

shall have th. right pUise

ry proces lor obiain yw n ?

favor Dee Umit : igurs

427 US. 97, 96 S.Ct. 2300 4 I

(1976 Was/ 907 ] id

S87 5.Ct 1920, 18 L.Ed (19

Gray filed a moti three day rtotria

requesting an ord wr ‘ we pris

oners. The morning of trial. hy offered ir

support of his motion a letter from Halbert

Stating Uthat a prisoner (identified by de

fense counsel as Breland) was told by Can

naday while they were in the Biloxi pail that

she had tried to cut off Wuojcik's head

Gray argues that the sole busis for the trial

judge's refusal was the expense of trans

porting the prisoners from Parchmen to the

Gulf Coast.

fore

al f

silet

and

othe

SO,

reco

day.

It th

righ

and

s0'0

moe

1981

». He likewise denied

the folding knives in

t Wojcik.

police a detailed de

white van, as wel! as

& participant Sher.

at Cannaday had con

jisiana, and informed

jes to be on the look

van and occupants

yund on the highway

tighted near Slidell

mmy Page were ar

b arrested at Page's

for the Court

PHASE

0 SUMMON

ERS

tria! courts refussa

‘prisoners Halbert

hman to testify ix

right under Missis

® 3, § 26, and Unit

mendment VI. that

ons the accused

to have compulso

g witnesses in his

| States v. Agurs

b2, 49 L.Ed.2d 34:

feras, 388 US. 14

a.2d 1019 (1967

} days prior to tria!

pturn the two pris

ial, he offered ir

btier from Halbert

(identified by de

) was told by Can

the Biloxi jai) that

ff Wojcik’s head

basis for the tria!

expense of trans

» Parchmen Ww the

GRAY v. STATE

Cite as 47] Gold 409 (Miss 1955)

The trial judge did refer to the expense

of transferring prisoners in ruling on this

motion, but the primary basis for overru!

ing Gray's request was that the testimony

of Breland as to what Cannaday told him

would be inadmissible hearsay if offered to

prove the truth of the fact asserted. Mur

phy v. Stete, 453 50.2d 1290, 1293-04

(Mies.1984). Also, any testimony by Hal

bert as to what Cannaday told Breland

would be double hearsay, unless each link

fits under an exception Ww the hearsay rule

Id. at 1294

The judge recognized that if Cannaday

took the stand as & witness, waived her

fth Amendment right to remain silent

nd denied that she took part in the mur

der, then Breland’s testimony that she said

ashe cut off Wojcik's head might have beer

admissible to impeach her testumony as 4

prior inconsistent statement. Therefore

the tmal judge ruled that, if the proper

predicate were iaid for impeaching Canna

e would reconsider his ruling on Ux

motion to transfer. The trial judge als

was ade aware that Breland had dis

yssed the matter with defense counse! a!

said that, il Dbroug? back. he would f

testily Al trial, Uannaday was called Dy

Cray to testif | she invoked the Fifu

Amendment mg! wo remaim silent on &@

matters nce; ‘ ine murder

ii,2 The tria sage s refusal & rder

he attendance of the tw prisoners was

pase tire \s. | a rabie nee

‘ De s ‘ t irt orrectiy

/ esaw the ta that Tannacay. wr ‘

al f we ‘ _ ; noose Ww re :

Silk ~ nia DASIS Brose ior Ha

and Breland to be summoned to give the

olherwise inadmiussil testimony bver

si the tral court left its rulu g open tor

reconsideration im the event that Canna

day's testumony allowed for impeachment

It has been observed that the accused's

right to compulsory process is not absolute

and the state may require a showing of

some colorable need for persons to be sum

moned lest the right be abused. Passman

v. Blackburn, 652 F.2d 559, 566 (6th Cir

1981). The motion to return Halbert and

Breland from Parchman was addressed t&

the trial court’s sound discretion, and w:

cannot conclude that Gray has demonstra

ed that the court's ruling was so fundan

tally unfair as to deprive him of due pr

cess of law. See United States v. Wils

732 F.2d 404, 412 (5th Cir.1984

Gray's reliance on Gradsky v. State, 24

Miss. 379. 137 So.2d 820 (1902 Ls

placed. in thal case we held thal a defe:

ant may summon his own attorney Wo g

evidence vita! to his defense, even thoug!

may cause Whe lawyer embarrassme!

raise the appearance of an ethical! viola

Unlike Gradsky, supra, the admissil

of evidence which Gray & ight Wo imtrod

through the pmsoners was conungent

the laying of a proper predicate w

faged to matlenmalze This ase gnme

error Ww wilnoul meri

2. STATE IMPEACHING ITs

OWN WITNESS

moneu LA 3) ne sla

fy against Gray ab the

ume of the arriva i the three Suspe

Page's Slidell home until | arrest w

riding win Wray ’ Wo) KS W le

Ur direct examination Page Lest ‘

that he noticed Gray had a skinned place

his hand, some “bad things on his knuck

les” and a little blood on his elbow Ura)

Miss. 413

itn |

told Page at he got in a fight with a

couple of men in a bar in Mississippi. To

ward the end of direct examination, the

state asked Page numerous leading ques

ons, to which Page gave unresponsive

answers. The state persisted, and Gray's

objection to leading questions was sus

tained. The state asked Page if he remen

bered giving @ statement. Gray objected

w the state impeaching its own witness

The trial court sustained this objection and

overruled the state's plea of surprise

On redirect, the state returned to the

leading form of questioning and pursued

the matter of Gray's fight in a bar. Page

said that all Gray said was he whipped

them. The state asked, “Didn't he brag t&

you about ’", at which point Gray ob

jected Wo the state continuing to lead its

witness. The trial court sustained the ob

yecuion and overruled requests to treat

Page as a hostile witness. The state asked

how Gray was acting, to which Page re

: 4 " on "

pied He “as ul act ng aerT thing hap

pened The Blale off. red uu refre |

} ac . merry ry “ ’ r stalemer

w . iol ea : >

ocerlens< ‘ ecu DU

¢ the stale show age (nis slate

;

‘ Page Sax ne re Ahied nak Z ‘

Stale t Aske rea he staleme

rage repued that he ] t reac The

Slate When asked rage f he made he f

; ; ' -

“ gy slalemer LDete se cOoOUnse! &

: orr : T> tat :

¢ ; Was ve 1ie@U ; : Siels ea

rage the follow ng

\ Was there ar ‘ mix Jay

seemed strane

" :

‘ Ye Sir W he ay na Jed . a

aorink f Jack Daniel's from the bottk

don t remember which arm it was, Dut he

had dred biood on his arn just below Nis

hand. Ane the opposite hand, hw knuck

les were skinned. It looked hke to me he

had cut his hand, hitling someone in Uh

mouth or teeth. | asked him what had

happened. And he sau he had got into a

fight somewhere in Mississippi with two

Gudes, and he was brag ying about how

bad he was

Y. Anything you would lke to add, at

this time’

A. The duue, David, was real nervous

And when | was looking around. he

didn t want me to look around too much

inside of the van

Page acknowiledyed muking Uhal slalement

and admitted that Gray appeared shaky

The state attempted w further question

Page regarding his prior statement but the

court refused to sustain the plea of sur

pmse, because Page had been in the district

attorney's office for two days. The prose

cutor responded, “| didn't know he would

le. | thought he would testify like his

statement The judge on his own motion

loid the jury to disregard (the district altor

ney's remarks

In this case the trial! urt ruled that the

State could not treat Page as a hostile

witness, but in fact allowed the prosecutor

id use Page 8 pror statement lo the police

impeach his earlier asservion thal Uray

was acting like nothing had happened

ra Z is ina ere U De

ur f prise & 5 ‘ sc tw Ga

wr r ' a . . Ss

SlLaLe : 4 . ra fur

piains al | uri Truk

acd erse ¥ : >¢ wr &

Us : a) ‘ © presence

. ry ‘ 4 ew

ness s | 5 Ne a prejucirm

etlte : \ 4 a

req : 5 y EG ie

45 0.2 Miss. 1984

y\ “

irk wa ‘ :

ec Lin :

jury uu n i

s i ‘ Miss.19

Mis

ivida

(4) This case can lx guished fron

M fe Sapr ia ' ina. Us

record c ait ' that the wiht

ness Page ever informed the state or de

fense counse! that he w | not testify m

accordance. with Ure statement he had gi

en the pohce m Siideli Indeed, & would

have been surprising if the illiterate Page

had »

testify

he cor

State,

prusec

unex,

any

may ¢

be hour

day n

cooper

by Ur

were ¢

‘.T

$ making that statement

Gray appeared shaky

to further QUe8 bos

prvor statement but the

I didn’t know he would

would testify like he’

on his own motor

G the district attor

trial court ruled that the

t Page as « hostile

allowed the prosecutor

statement to the police

ler assertion that Gray

g had happened

that there could be no >

the state had two days

Page concerning hu

not do so. Gray further

the tréal court ruled

te, the prosecutor ac

@ har in the presence

contends that the wit

mts had a prejudicia

& determination and

r Cannaday v. State

1984)

lay to rest the ques

remark While the r

the tria! judge correc:

y by admonishing th

comment. ai!

, 405-06 (Miss 197

279 So2d 599 (Miss

be distinguished fron

ite facts in that this

Sication that the w

G the state or de

would not testify |

Statement he had gy

Indeed, it would

if the illiterate Page

tain the plea of sup ‘

;

-~re

mine — oll

ee ee ee

nad informe. anyone that he intended to

testify differently from a statement which

he could not read. We look now to Hall +

determine whether Unc

rprised and the wiiness

unexpectedly hostile. In the absence of

any indica to the contrary, the stau

ely not have expected Page &

e he was a friend of Canna

roved to be less thar

State, supra, &

prosecutor was 8U

may genuil

be hustle Bir

ay Tay ' age }

operative during his direct examinau

by the state, and the leading quesvons

Page s non-responsive

were dus pa

. : ;

answers. Whe n redirect, Page sax

: ™ r a _ - “ae

tha le >. Ww as Py : Ae wOULig \

" r i.

pe © S\au 4 * £eiy theyre & '

’

eur R g ; ns ea

slau wa a “4 rea

4 - a, MOR x. *

va ave ian & pre 2

a @ XI Lex 8

”~ an a

a ave .

” 4 “eR ay 4

~ 4

a : 3a

_ “ 4

Aja

o~ ’ 7 4

a 1 <a

- a

”

COMMENT ON GRAYS RIGHT 7

REMAIN SILENT

te! : guesuon occ urTeu

" . ir. :

slate was quesuonimn,g Viiner Jo Ke

f the St. Tammany Pariwh sheri

euy vi Ve

department, concerning his arrest of Gray

After you

+ advised them both of

their rights, dia you have occasion to ask

either one of then

David Gray, any questions

oh aw |

A | he niy tring |

uh, avOU e owners

YA .

* ie aus :

> ~~. a:

> -

~ >

a a

a LY “

: “ > i >

> a

“

“®

a‘. >

Ww ams a lar senvem

hel

particular

| vray was

416 Miss.

{5,6} Evidence of post-arrest silence vi-

olates due process because it is fundamen-

tally unfair to afford a suspect the right to

remain silent and yet allow implications of

his silence to be used against him. Doyle

v Ohio, 426 US. 610, 96 S.Ct. 2240, 49

L.Ed.2d 91 (1976). However, we recog-

nized in Austin v. State, 384 So.2d 600, 601

(Miss.1980), that a prosecutor's comment

about a defendant's silence, though improp-

er. was harmiess error in view of the over-

whelming evidence of guilt beyond reason-

able doubt. See Chapman v. California,

886 U.S. 18, 87 S.Ct. 824, 17 LEd 2d 705

(1967). In this case, the single reference

by the witness to Gray's intention to re

main silent was neither repeated nor linked

with Gray's exculpatory statement. More

over, the trial judge charged the jury at the

conclusion of trial that no adverse infer

ence may be drawn by the invocation of the

right to remain silent by @ witness or an

accused. These factors, together with the

overwhelming evidence of guilt beyond rea

sonable doubt, lead us to conclude that the

improper comment in this case was harm

less error. Austin v. State, supra, Chap

man v. California, supra.

Gray's invocation of Williams v. Siate,

supra, is unpersuasive in that it was not

solely the umproper prosecutor's comment,

but the aggregate effect of several distinct

improper arguments that required reversa!

of Williams’ sentencing phase. This as

signment of error i without merit

4. FAILURE TO DEFINE ELEMENTS

OF KIDNAPPING

{7] The state did not offer nor did Gray

request an instruction defining the ele

ments of the underlying felony which ele

vates this murder to capital murder. See

Miss.Code Ann. § 97-3-18%2Me) (Gupp

1984). During the course of his testimony

Gray admitted to the forcible seizu: and

concealment of Sowash and Wojcik against

their will, Cf Miss.Code Ann. § 97-3-53

(Supp.1984) (kidnapping). Gray argues

that the trial court's failure to instruct the

jury regarding the elements of kidnapping

denied him due process of law im that the

472 SOUTHERN REPORTER, 24 .<RIES

jury could not determine his guilt or a |

cence of the crime charged uniess given.

some legal guidance as to what are the

elements of the crime of kidnapping. The «

absence of legal guidance, according to?

Gray, makes the jury's finding of gut’)

unreliable, contrary to the high level of...

reliability required in capital cases. Gregg ;

v. Georgia, 428 U.S. 153, 96 S.Ct. 2008, a,

L.Ed.2d 859 (1976) ‘5

There is no merit to this assignment of =

error because Gray makes no objection to »

the instructions offered by the state and

more importantly, failed to submit an ip-.

struction to the trial judge on the elements +

of kidnapping. The combined failure to °

ebject or to request an appropriate instruc-‘r

Lion operates to waive any objection on this “A

issue. Billiot v. State, 454 So.2d 445, 462

(Miss. 1984), Gilliard v. State, 428 So.2d

576, 583 (Miss.1983). This assignment of

error is without merit

5. FAILURE TO INSTRUCT THAT

SIMPLE MURDER WAS LESSER

INCLUDED OFFENSE

{8} The irial court was never requested

to instruct the jury on the lesser included

offense of simple murder. Newell v. State

308 So.2d 71 (Miss.1975), holds that the

trial judge shall not be put in error for his

failure to instruct on any point of law un

fically requested in writing to do

This rationale has been

appled BY this Court in death pena ly

cases. Gilliard v. State, 428 So.2d 576

583 (Miss.1983). We cannot conjecture that

the trial court would have refused Gray S

proffered instrucuon on simple murder

had ene been offered to him There is no

merit to this assignment

6 REFUSAL TO INSTRUCT THAT

MANSLAUGHTER AND KIDNAP-

PING WERE LESSER INCLUDED

OFFENSES

During discussion of the jury imstruc

tions, Gray's attorney asked the court

permit him to draf: a manslaughter in

struction for submission as a lesser includ

ed offense on the ground that the jury

“

me charged uniess gSivea

ince as to what are the ~

rime of kidnapping. The ‘

Guidance, according to

ry t© the high level of, -

| in capita! cases :

S. 153, 96 S.Ct. 2009. 49 | \

}

rit to this assigninent of :

y makes no objection toe

ered by the state and, «

failed to submit an in

al judge on the elements -

he combined failure to *’

t ap appropriate instruc. -

ive any objection on this a

tate, 454 So.2d 445, 462 >

rd . State, 428 So24 *

). This assignment of -

rit.

D INSTRUCT THAT

JER WAS LESSER

D OFFENSE

rt was newr requested

on the leaser included

urder. Newell v. State.

.1975), holds that the

be put in error for his

m any point of law un

peated in writing to do

is rationale has been

urt im death penalty

State, 428 So.2d 576,

cannot conjecture that

a have refused Gray's

8 On simple murder

ito him. There is no

nent.

INSTRUCT THAT

ER AND KIDNAP.

“ESSER INCLUDED

of the jury instruc.

y asked the court to

, ® manslaughter in-

jon as a lesser inciud-

round that the jury

GRAT ¥. STATE °

ams. 41/

(Cite an 272 be de OOF Mise 1%

could consider Gray’s story to be true that

he fougl.. Wojcik and killed him in the heat

of passion but without malice The court

ruled that even if defense counsel had it

ready, it would not be granted under the

facts of this case

Uray argues nis testumony tat

Wojcik hit him and they engaged in a fist

fight offers the basw for presenting to the

jury the affirmative proposition that his

actions were “without malice afore

thought" and in the heat of passion The

state responds that, even taking the evi

dence in the light most favorable to Gray

there is nO way Unat Kh could Be said te

finding that Gray killed W:

e afore thought '

Gray armed himself and

abducted two people at knife

them into the woods north of

led Wojck into the woods al

knilepoint, and then, accepuing Urey

ony, beat Wojcik to the ground breath

Ne? thts He then supplied the knife to Canna

. Worik to her tender mercies

‘ o y | a

ny are » toe case wilh Lanicr ?

(Mise.1984), den

f proof must be show:

Stale 4 30.240

wder for a mansiaugnter instrucwor

be an appropmate leaser included offens«

Larer's confession mdicated that he was

accosted by a policeman iate at night anc

made to remove a/| of his persona: De | ng

ings [rom a bag lhe officer hav:

s gun, reacted when Lanier removed !

ad weap

fired at Lanier Lanier returned e, hit

Aen Certain physical evidence corroi

nier’s confession was dbeld to

ni to submil W the jury the ques

whether Lamer surprise:

police offer, killed him without mahi:

aforethoughi and in the heat of passic:

id. at 79-8)

19.10! The well settled law in this staix

is that jury instructions are not given un

less there is an evidentiary basis for such

in the record. Colburn v. State, 431 So.2d

L111, 1114 (Miss.1983); Fairchild v. State,

459 So.2d 793 (Miss.1984). In our opinion,

there ia no evidentiary basis in the record

for corcluding that Gray acted in the heat

of passion and without malice afore

thought. Gray's entre tesimony in the

record is that he never stabbed Wojcik. If

by submitung the issuc of manslaughter,

Gray admits that he stabbed Wojcik, there

' to be anything in the

does not appear

record that changer the character of that

i from its malicious and premeditated

State, supra, at

killing

origin. See Fairchild :

801-02 (Miss.1984). The trial court correct

{ 1 (sr s request (Or @ MANSiaupl?

re wcu) wer ay & {veer

ly rejected ’ n

ter instruct

i instruction [)-13

which would have permilled the jury

na hur guilty [ capita murder bul

. De il

| i ny | : ep Ww eC

4 i Mira | L ini Court reso |

Lhus precise involving an wencal jury

is | ,

Gray's co-defendant

j i r Ab, a) .

i | We

i i lay

s ur

” .

. 2

‘ , 7 Fe rij

. - l¢ ‘fense r

» | ah jy

KEFUSAL OF CERTAIN CIRCUM

STANTIAL EVIDENCE

INSTRUCTIONS

i Une 1

i. 1 wii wh le

the preponderance

y upon ey Wence thal

“ ‘ beyond a) reasonabie Gdoubdl

‘vi \. 7 i i

a) i 4 3

| al i “ J

at tn

w 2

w pl ve defendant to be innocent

ia pres 4 i il

and ace he burden upen te siate to

i y of every matenal eiement

yf ve crime beyond a reasonable dowbt and

pot sis ConsisLlent with mnocence

Instrucuien D—5 cautioned the jury not to

indulge m speculation, conjecture, or guess

work. Further it instructed the jury that

where there 8 a controverted issue of fact

4158 Mus.

and the testimony fails to show beyond all

reasonable doubt that the state's conten-

tion in regard to that issue is true, then the

presumption of innocence controls. Ip-

not upon speculation, guesswork or conjec-

D-8, which provided that if there are facts

in the case susceptible of two interpreta-

tions, one favorable and the other unfavor-

able to the accused, and if there is a rea-

sonable doubt as to the correct interpreta-

Gon, then the jury must resolve the doubt

in favor of the accused.

Finally, the court refused instruction D-

11, which informed the jury that it did not

have to explain its verdict to a living sou!

and that a verdict of acquittal wil! not

mean that the jury is convinced of Gray's

innocence but only that a reasonable doubt

remains in their minds

‘It is well settled in this state that where

defendant's instructions on circumstantial!

evidence are properly covered by other in

structions given by the court, the trial

court will not be put in error for refusing

to grant other instructions on the same

point using alternative language. Bullock

v. State, 391 So.2d 601 (Miss 1980); Jones

v. State, 381 So.2d 983, 99) (Miss. 1980)

A very strong circumstantial evidence in

struction was granted to Gray and read to

the jury which accomplished essentially the

same thing that any of the other refused

instructions would have done. There was

no error in refusing to grant the other

circumstantial evidence instructions. We

have carefully reviewed all of the assign

ments of error offered by Gray affecting

the guilt phase of his trial and we find that

none of them are meritorious. We, there

fore, affirm the conviction of David Ran

dolph Gray for the crime of capita! murder

B. SENTENCING PHASE

8. ADMISSION OF ARREST AND

PROBATION REVOCATION

FORMS

{12} The state introduced into evidence

at the sentencing hearing’ s commitment

472 SOUTHERN REPORTER, 24 SER’

paper from Jones County indicating that

Gray had been convicted of aggravated as-

sault upon a law enforcement officer and

had been placed on probation for three

years. Attached to the commitment paper

were the arrest warrant and probation rev-

ocation forms which indicated that he had

commuitied another unnamed violation of

law. Defense counsel objected to introduc.

tion of the order of the circuit court be

cause of the additional writing on the bot-

tom. This referred to the fact that the

commitment paper indicated tha, Gray's

probation was revoked and his three-year

sentence was reinstated

Gray argues that this evidence should

mot have been admitted at trial under the

rule - proof of a crime different from

that alleged in the indictment is not sub

missible against the accused Gray »v.

State, 351 So.2d 1842 1345 (Miss. 1977).

West v. State, 463 So.2d 1048 (Miss 1985)

In West, we held it to be error for the jury

to see during the sentencing phase a copy

of the defendant's Georgia conviction

which recited that he had been found guiliy

of capital murder and sentenced to death

We found that this information impermiss)

bly lessened the burden upon the jury as to

whether their verdict was the only fina!

determination on the question of whether

the death penalty would be Imposed upon

West. /d at 1052-53

Uray further argues that the introduc

tion of the probation revocation evidence

was wrelevant to any of the aggravating

circumstances the state was allowed to

prove and was prejudicial because it sug

gested that Gray had committed other

crimes. Gray further argues Ghat he was

not represented by counsel at the probation

revocation hearing and, therefore, bis Sixth

Amendment right to counsel! was violated

The papers in question only showed that

Gray did eventually serve time for the ag-

gravated assault conviction, but do pot re

veal the crime for which his probation was

revoked Furthermore, the inference that

Gray had committed another unnamed

{13

gues

aggre

court

sider

mitted

occurr

ping

valuing

aspect

been «

v. Sta

irvng

Aull 1

Gill

1983.

(Mis:

Coun

tues

of Uy

The

error

wanamed violation of

el objected to introduc.

P the cireuit cours be-

| ateused Gray v

@, 1345 (Miss. 1977).

v.2d 1048 (Miss 1985)

| be error for the jury

tencing phase a copy

Georgus Con vicven

had ene fognd guilty

| sentenced to death

lorma tion impermiss;

® upon the jury as to

was the only fina!

question of whether

id be imposed upon

} that the introduc

revocation evidence

of the aggravating

te was allowed to

tal because it suy

1 committed other

gues that he was

sel at the probation

therefore, his Sixth

unsel was violated

URAT VY. BIATS

mus. 419

Cite no OT) Rodd GOP (Mins. P98:

crime could not have prejudiced him in any

way differently from his own admission

from the witness stand of convictions for

aggravated assault, grand larceny, and cat

tle theft. Gray admitted to the jury that

he served around 28 months in prison and

was last paroled from the penitentisry in

August of 1981

Gray's situation is readily distinguishable

from Weal v. State, supra, because nothing

in the probation revocauon forms indicated

that Gray had already been sentenced to

death, so that their admissior could not

have lessened the jury's burden in re

turning a second death sentence. The

state properly points out wn ite argument

that thw record is completely ‘silent as to

whether Gray was represented by counse!

at the probation revocation hearing and

this Court will not act on such naked asser

WONnSs

8. INCLUDING PECUNIARY GAIN

AS AN AGGRAVATING

CIRCUMSTANCE

{13} Uneéer this assignment, Gray ar

g es that there was a “doubling uj

age ravating circumstances when rw ria

court, instructed the jury that it could cor

sider both whether the murder was con

mitted for pecuniary gain and whether it

occurred during the course of the kidnap

ping. Gray contends that these two aggra

vating circumstances arose from the same

NAS

aspect of the crime. This question

been decided adversely to Gray im Jo

v. State, 464 So.2d 475, 478-789 (Miss.i

Irving » State, 44) do.2d B46 (Miss oon

Hill vw. Stete, 432 So.2d 427 (Miss.1983)

triltard v. State 28 So.2d 576 ‘Miss

1983): and Smith v. State, 419 So.2d 5G

(Miss.1982). In Henry + Wainwright 721

F.2d 990 (Sth Cir.1983), the Fifth Circuit

Court of Appeals rejected this same const:

tutional argument hoiding that resolutoor

of the issue was @ question of state law

we |

jar

rTaa

"“o%

ma ry t {

There is no merit to this assignment of

error

10. INSTRUCTIONS REQUIRING

ENMUND FINDINGS

U.S. 782,

14) Enmund v. Flonda, 458 s.

-. ~~ $368, 73 L.Bd.2d 1140 (1982) con

strued the Eighth Amendment to forbid

imposition of the death penalty against

“one who neither took life, attempted to

take life, nor intended to take life” id. at

786, 102 S.Ct. at 3371. Gray claims that

his death sentence must be set aside be

cause there was neither a finding nor suff:

cient evidence to support a finding that he

killed or intended to kill Wojcik in the

course of the kidnapping. Gray's convic

tion occurred prior to the amendment of

the Mississippi Death Penalty statute to

require the jury to make Enmund find

See Miss.Code Anh. § 99-19-101(7)

instruction S-1 at the guilt phase re

quired the jury to make Enmund findings

bpcause in order to find Gray guilty the

jury had to believe from the evidence be

y ond a reasonable doubt that Gray did “un

awlu wilfully, and feloniously and o

his malice aforethougAt kill and murder

iid Wojcik, while engaged in the

of the crime and felony of kid

ping phasis added) Aliso, instruc

>3 told the jury that malice afore

ug! a predelterminabon to commit

an act without legal justification or ex

cust Jordan v. Watkins, 681 F.2d 1067

(olm Uir.i98Z), holds that the “intent

ard was met wher:

ns were given to Whose

cf, 7 ; » ff urt

ine case swO judice ihere the Cour

the hat

iound that the charge to the jury Wa

1 not convict appellant absent a findiny

it murder mean!

thal he ntended t

he read

8 Ver u ve reac ¢

revi ast 4 fd. wt 1071

‘The testimony of Gray refiectec that La

say asked Gray W get some Khives ar

me with her to help scare her ex-boy

frend, Wojcik. Gray said that she asked

him to kill Wojcik; he said he would hel;

her scare Wojcik but would not kili hin

Gray claimed that after he marched Wo)cik

at knifepoint into the woods, he was going

to scare Wojcik and tell him to run. When

they got into a fight, Gray punched Wojcik

as hard as he could. Then, handing his

butcher knife to Cannaday, Gray left.

In Jone: ‘Thigpen, 741 F.2d 805 (5th

Cir.1984), the Fifth Circuit reversed the

defendant's conviction because there was

mo evidence indicating that the defendant

killed or assisted his accomplice in killing

the victim, or that he supphed the murder

weapon, or even that he knew his accom.

plice intended that a killing occur. In that

case, the Fifth Circuit said that, had the

state introduced such evidence, the death

penalty would not be disturbed. 741 F.2d

at 817. In this case, Gray admitted that

Cannaday told him she wanted Wojcik

killed and that he, Gray, supplied Cannaday

with the murder weapon after disabling the

vicum. This admission by Gray establishes

the requisite persona! culpability under En-

mund v. Florida, and there is no merit to

this assignment of error

il. SUFFICIENCY OF

PROPORTIONALITY

REVIEW

(15) We are urged by Gray that Missis

sippi Code Annotated § 99 19-105(3Kc)

Supp.1984), requires us to compare his

death penalty with al! Capital murder cases.

even though a life sentence is imposed and

whether or not the case was even appealed

to this Court. Grey further argues that we

should compare eppealed capital convic

UYons where a life sentence was imposed

with cases where the death penalty was

imposed. Gray contends that a detailed

examinauon and review of all capital mur

der cases is necessary to achieve the justice

that the proportionality requirement envy;

sions. We reject this contention. In Pul

ley v. Harris, 465 U.S. 37. 104 S.Ct. 871, 79

L.Ed.2d 29 (1984), the Supreme Court of

the United States held that such a review is

not constituuionally mandated, being exciu

sively a question of state law. In Gray v

Lucas, 677 F.2d 1086 (5th Cir.1982), the

Fifth Circuit said:

Gray claims that the Mississipp: Su

preme Court's comparative review of

death sentences is flawed since the Court

only compared Gray's case with those

cases where the death sentence had been

imposed and not with all the cases where

Supreme Court has rejected a similar ar.

gument in Proffitt v. Florida, 428 US.

242, 258-59 fn. 16, 96 S.Ct. 2960, 2969-79

fn. 16, 49 L.Ed.2d 913 (1976), we reject

this claim as well

677 F.2d at 1111

We find no basis in this assignment of

error and it w rejected

PART Il

DAN M. LEE. Justice for the Court:

12, EXCLUDING 4 PROSPECTIVE JU.

ROR FOR CAUSE, IN VIOLATION

OF HIS RIGHT TO TRIAL BY AN

IMPARTIAL JURY

It may correctly be said that the nght of

an agcused to be tried by a jury of his or

her peers is the foundation of fairness and

the halimarik of our judicial system. US

Const. Amend. VI; Miss. Const art. I]

§ 26. This Court and the United States

Supreme Court have frequently written of

the significance of the jury's role. See

Puselier v. State, 468 So 2d 45 (1985); Wi

‘ey v. Slate, 449 So.2d 756 (Miss. 1984)

Sanders v. State, 440 So.2d 278 (Miss. 1983)

and Duren v. Missouri, 439 U.S. 357, 99

S.Ct. 664, 58 L.Ed.2¢ 579 (1979) In fact,

the jury is so engrained in our nowon of a

tral that it has become the Subject of great

drama such as Reginald Rose's Twelve An

gry Men. Unfort

acceptance of the jury System sometimes

unately the common piace

results in taking that mgnht for granted

making the importance of the jury's rok

not as readily appreciated by those who do

not have a direct stake in the outcome of

the proceedings Every trial lawyer and

judge is well aware of the difficulties posed

by citizens reluctant to give of their time

and attention to help administer our system

of justice. It was just such reluctance

which presented the tria! court with some

troublesume decisions in the imstant case

The voir dire of « jury % important in

any case but especially so where the state

seeks to impose the death penalty. The

mature of the penalty and the strong per-

it could hav Jen imposed. Because the

"ceo: wnec®g

“=> ~

oa?

rejected a aim ilar ar

& Florida, 428 US.

16 S.Cu 2960, 2969-79

918 (1976), We reject

Mpuse: Because the

| assignment uf

ri .

iiee, for the Court

PROSPECTIVE JU.

i, IN VIOLATION

TO TRIAL BY AN

wad that the night of

| by @ jury of his or

ation of fairness and

idicial system. US

lies. Const. art I!)

| the United States

requently written of

@ jury's role. See

Bo.2d 45 ( We

ad 756 ( 1984)

0.2d 278 (Miss 1983)

% 439 US. 357, 99

79 (1979). In fact,

i in our notion of a

Une subject of great

| Rose's Twelve An

y the common place

system sometimes

right for granted

of the jury's role

id by those who do

in the outcome of

|} trial lawyer and

e difficulties posed

give of their time

unister Our By ser,

t such reluctance

‘

a a ee a es eee

sonal convictions of many prospective jur-

ors have resulted in voi dire proceedings

unique to capital cases. Witherspoon v

Hilimoiws, 391 US. 610, 68 S.CK 1776, 20

L.Ed.2d 776 (1968); Lockett v. Ohio, 438

U.S. 586, 98 S.Ct. 2954, 57 L.Ed. 2d 973, 9

Ohio Ops.3d 26 (1978); Adams v Texas,

448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed 2d 581

(1980); Waeinwnght v Witt, — US. —.,

106 S.Ct 844,83 L.Ed.24 841 (1985)

In Armstrong v. State, 214 So.2d 589

(Miss 1968) this Court attempted to provide

guidelines by which our trial courts could

follow the dictates of Witherspoon

The proper method of bringing the

death penalty to the attention of the spe

cial veniremen is for the trial judge to

inform them Uhat they have been sum

moned as venuremen in a capita! case and

that a verdict of guilty could result in the

infliction of the death penalty. The

judge should then ask them if any mem

ber of the panel has any conscienuous

scruples against the infliction of the

death penalty, when the law authorizes

eit, in proper cases, and where the test)

mony warrants jit. If there are those

who say that they are opposed to the

death penalty, the tral judge should then

go further and ask those veniremen, who

have answered in the affirmative, whet

er or not they could, nevertheless, follow

the testimony and the metructions of the

court and return a verdict of guilty a!

gh that verdict could result in th

eath penalty, if they, beimg the judges

of the weight and worth of the evidenc«

were convinced of the guilt of the de

fendant and the circumstances warranteJ

such a verdict. Those who say that they

could follow the evidence and the instruc

uons of the court should be retained, and

those who cannot follow the instructions

ef the court should be released. The

mere fact that a venireman is opposed

to the death penalty does not disqualify

im as a juryman, if he can do his duty

as «@ citizen and juror and follow the

i. This certainly highlights the problems thei can

‘be encountered when the trial court rules on

each juror immediaicly after that juror's voir

dure and in the presence af the other prospect: ve

instructix. 7 the court, and where he is

convinced of the defendant's guilt he can

convict him although the verdict of the

jury may result in the death penalty's

‘being inflicted upon the defendant.

214 Se.2d at 593

{16,17} Although the United States Su

preme Court has refined the Witherspoon

decision in Adams, the wave remains the

ability of the prospective juror to follow the

instructions and the juror’s oath. The

proper method of determining whether the

prospective juror can do that ws stil] for the

yudge to follow the procedure outlined in

Armstrong Unfortunately that did not

occur in the present case and that failure

uluumately combined with some prospective

jurors’ reluctance tc serve to create the

difficuilttes we now face

! The Harrison County Dwtunct Attorney

conducted the majority of the death penaity

vow dire, w the circuit judge participat

ing only when the questions and responses

of Mrs. Bounds became so tangled that

everyone involved admitted to being con

fused That probier notwithstanding the

groundwork for Mrs. Bounds’ removai was

laid jong before any questions were asked

of her

When the voir dire began several jurors

expressed the sentiment that they had con

screnuous scruples against the death pena!

ty and could not vote to inflict it under any

circumstances. The trial judge refused to

excuse those jurors for cause and required

née slale lo exercise peremptory ehallenges

them. It is abundantly clear from the

record that his reason for doing so was

because he beheved that the purers were

simply clamming to have concientious scru

ples against the death penalty so that they

could be released from jury service.’ Con

fronted by what he beheved to be insincere

attestauions of personal moral convictions,

the trial court was unwilling t dismiss

those jurors for cause even though their

responses clearly indicated that they could

veniremen. Jurors who wish te be excused are

quick to learn what responses will get them

excused Such a procedure is not good practice

and should be avoioed

Adams and Witi criteria Sec PYewelsey

| Because of Mrs. Bounds’ equivocation

the state sought to excuse her and com.

plained that the trial court had erroneously

forced it to use all of its peremptory chai.

— The trial judge responded by say.

Well, I think that’s mght. I made you

use about five of them that didn’t equivo

cate. Uh, | never had no ides that wed

rup into tus many

| The trial judge then directed the prosecu

tor to resume questioning Mrs. Bounds in

an effort to gei an unequivocable response

She again replied that she could vole for

the death penalty. The state then again

requested that she be dis:nissed for cause

The court then ruled as follows

(BY THE COURT (Interposing) | should

have questioned them on the I!

guess

(BY (DISTRICT ATTORNEY}: (Unable

w disuunguish Mr Necaise's remarks as

the Court continued talking, at the same

ume.)

(BY THE COURT but | never

had no idea it was going w

(BY [DEFENSE COUNSEL} (Interpos

ing) Dwregarding the evidence

(BY THE COURT wind up in a

mess like this. I'd hate to get &@ convic

Yon and get it reversed because of this

one woman. She can't

A make up her

Weill, let the record show that the Court

= of the firm opinion that there was at

beas( five, even though | think there's

around nine challenges been used by the

District Attorney for cause, sither eight

or nine, all right, there was eight of them

that had said that they were against Cap

ital Punshment

And I think there was, wh, five of those

the: were unequivocaily opposed to it

and answered, in substance, if not even

stronger language than the question set

that I should, at this point, allow him to

challenge this lady for cause. She is

totally indecisive I think she is totally

indecusive. She says one thing one ume

and one thing another

The Court w of the opinion that it cheat

ed the State by making him, wh, use, wh.

by makirz the District Attorney use his

peremptory challenges in at least five

imstances. And I'm going to allow it in

Uus partcular case

(BY [DEFENSE COUNSEL)

her for cause’

(BY THE COURT. I'm going to excuse

her |

(BY [DEFENSE COUNSEL} Let me

ask the Court this, is the Court of the

Opimen tnat, wh, that there has been a

sufficent record

(BY THE COURT (Inter posing) i'n

gomg to add any \& hes challenges

(BY [DEFENSE COUNSEL} Okay. A

nght .

(BY THE COURT: i'n net going tu

back and give him five more. I'm gwir

to excuse her for cause

(BY [DEFENSE COUNSE! Okay. A

might) |

(BY THE COURT: You can go, Mrs

Bounds. anu ca)! back Lomerruw afler

noon |

Although the route taken t& Mrs

Bounds’ dismissal was » circuitous one in

deed. and most hughly disfavored, ix should

be obvious to all that no prejudice occurred

to the defendant Gray The force and ef

feet of the trial court's ruling was to cor

rect an error he had commitied wn refusing

to disrmuas Other jurors for cause after they

Lvs unequivocably stated thai they could

;

ee ee |

wees Y. oSemer ==. €f20 -

Y for cause, either eight Cite as 473 0.24409 (ies) APr: ; on. os ;

» there was eight of then not vole to impose the death penalty im any AS wO PART |: All Justices concur ' King « S: vw So. 2d SULLIVAN, . hee, dissenting pre.

a they were against Cap circumstance. Certainly the state w enti _ t 9 (Mme The majority admits that it would be The

AS TO PART Il: WALKER and ROY 982),

tied wo a jury that can follow the instruc NOBLE LEE PJ 4 HAWKINS error for the trial judge to excuse venire Us

> wan, ch Bie of tens end fevers cath, Adema cugre no My ie = — : Wheat « State, 420 Gold 2 (Mina. member Bounds for cause since “she was avi

nose : j . anc , ' concu 982). . 4

wivocally opposed to it Witt, supra. That being the case the tria! == th» Sen ' omy clearty qualified to be seated as « juror sale

) substance, if not even court was correct when K recognized the Smits « State, 419 So2d 663 (Mies. under the Adams and Witt witera”. Ante “hs

pe thar the question error in its prnor rulings and took affirma : - P 1982), at 421. We are told that her excusal did the

9 set ? ; PATTERSON, CJ., and SULLIVAN and ast vi Gray's te chal

herapoon case, uh from tive action to correct that error. We have ROBERTSON. JJ. dissent es to Part Il Johneon * State, 416 So2d 883 (Mins vwolate ; right an impartial! jury Es

= Supreme Court uh recognized in numerous cases that a tna! 1 eazy, because the trial judge was actually cor-

this point, allow him w court should be afforded the opportunity to . recting ® prior erroneous ruling which de her

ay for cause. She ix correct any errors at trial by way of « APPENDIX “A —* State, 413 So2d 1007 (Miss. rived the state of » peremptory challenge. rs

: »n tral Ouse S 2 Wi erence Or ,

f think she is totally mete Hare aoe House . Stats, 445 ri PENALTY CASES AFFIRMED | Hh all deference to the majority, it Cir.

ays one thing one time So.2d 815, 819 (Miss.1984); Read v Slate BY THIS COURT ) Bullock « State, 391 So2d Gl (Mica . Otradicts the trial judge's very words to 4s)

ther. 430 So.2d 832, 838 (Miss.1983); JoAnson + | 1980), . rule that Bounds was removed by « per

, St : § i; 7 oA nso Stale So.i : emplory . Purthermore =

@ opinion that it ches: my ey ny pF Hy AS gt yet : Reddiz » Stats, 381 So2d 999 (Mina oe ) Go as Ch

aking him wh use ub beti v. State, 394 So.2d S78, 880-81 (Mus 55.265, decwded May 8, 1985, (not yet re 1980), . mot sanctaon the attempt to exereme 198

strict Attorney use b 198 ported - — : flover peremptory challenges to cure a

us p Jonas late | (Mma . :

meee im at least five There @ no logical reason not to allow Cabello v. State, 471 So.2d 332 (Miss 381 So.2d 983 1980); violation of « capital defendant's right to of

m going to allow it i the trial court in this situation to correct ips 198 i sg nltersom © State, 379 So.2d 490 (Mins trial by an impartial jury On

. erroneous Trulng prwr to We empaneiing Leodan « bate (64 So 2d 4 _—_ \ The! record could act mére plainly reflect Ap

COUNSEL} Excus, f the jury and termination of trial. No - Gray « State, 376 So.2d 994 (Mies. 1979), that the basis for excusing juror Bounds ; Bs

s of judicia! economy make it clear tha Witcher @ State: Gh Gadh Tt Clie Jordan « State, 365 So2d 1198 (Micg 4 “*™* 9°t ® peremptory challenge, but a cha! : Pe

I'm going to excus: the tra! court should be allowed to recog 04 and 448 1 927 (Mins 1984 | 978), lenge for cause. At the conclusion of the ' Ce

ze « orrect iis error early im We pro . . . . colloquy quoted by the majority. ante at An

SOUNSEL} Let : ceding especialiy where as here 7 , Sininger e 454 So 2d 468 iM . = . State 362 So 2d 1236 (Mims 422-423, the trial judge — ~~ ~— “

. @ the Court of uy ; have been no possible prejudice & aS4 : ‘ . going to add any to his challenges I'm

nat there Yas bese o la That being the case, wi j 454 So2d 44 Miss Washington e. State, 361 So.2d 61 (Mins not going to go back aod give him five ha

“ nerit to Gray's fina! assignm« 84 1978), more. I'm going to excuse her for cause.’ as

Gaterpesing) I'm ; 7 error Dus fnn — Tt TS ; Bell «. State, 360 So.2d 1206 (Mias.1978) = at S65). Whatever may have been the pes

his challenges 18) Finally, we have clescly examined 1984 ; DEATH PENALTY CASES REVERSED —e = aoe AL. trial court's rul un

UNSEL} Okay 4 ' ; rye nS va CASe @ equiv ‘ ; Rie 4 ‘. Miss gm4 AS TO PUNISHMENT AND REMANDED rn he : ~~ : - es ome id

—y 7 et Ureys murc Wojcik ;' 1 909 (Ml FOR RESENTENCING TO LIFE IMPRIS mber Bounds for cause da

I'm not going wo warranted the death penalty. A compa “ — ONMENT The majority makes an appealing argu se

we more. I'm goin, : his case with our cases decide: » ane on Edwards ». State, 441 So2d 84 (Ming ‘"2™* that the trial judge properly corrected -

UNSEL} Okay. , Miss. 1976), in which the death penalty has *"" Dycus « State, 440 So2d 246 ms Fusare Wao Stated Gat Gey could ast

bee mposed and upheld reveals that suc! rvIng State, 441 So.2d 846 (Miss. 1983 1983) Glee vote for the death penalty under any cir ~~

enaily neiLher nition. tre ; ces a 0.20 130 Miss is cums lances The

You can go, Mr: ~ oe —— ' Coleman « State, 378 So.2d 640 (Miss onginall con ied ane AD WON u

ck tommorrow afte: sive, nor Guproporuonatle lo Whe sentences Tokman 1 State 43 So 9d 664 (Miss | 1979) y exc ‘ according to the major ch

mposecd m UWose cases (See Appendix 1 OR: : ty, wes Uthat the trial judge beleved that C

| . 1, ensestien wanté be eaneiete hi | | DEATH PENALTY CASES REVERSED ‘their answers were maincerely given in or “

® taken t Mr snd enem Cantal atts of Go niet fen Leatherwood « 485 Sold 64 AS TO PUNISHMENT AND REMANDED der to be released from jury service. If in 7

Sremarry: one ir mass geedizuste effisnad ter en Miss 1983 ) FOR A NEW TRIAL ON SENTENCING ‘act these jurors were concealing an ability i

favored, it shou i EO ie a oe Hill v. State, 432 So.2d 427 (Miss.1983 | PHASE ONLY © serve oo & capital murder case, then

) prejudice occurred Torn DAVID RANDOLPH GRAY'S Pruett vw State, 431 So2d 1101 (Miss Mhoon «. State, 464 So 2d TT (Mins. 1985): they could not any more be excused for

The force and ef affirr | NDOL »RAY'S ver be ; cause consistent with Adams and Witt Dd

Bmitied in refusing sentence ss Wo be carmed oul in Lhe manner Gilhard v. State, 428 So.2d S76 (Mus 1984), .

or cause after they e prescribed by law on the 26th day of June, 1983) Wiley . State, 449 So_2d 756 (Mins_1984), The underlying reasoning of Lhe majority é u

q AFFIRMED 1982) ; Agen 08. = Stet, 445 So2d 708 (Mis. cause was harmless error since the trial Ss 7

judge, in effect, gave the state back « _

' .

gheols

he it

challenges I'm

ao giv? hum five

her for cause

may have been the

the trial court's ru!

& -«

previousiy exercised peremptory challenge. cation of » ,./emptory challenge, clearly

The problem w that Davis 0. Georgia, 429

US. 122, 9 S.Ct 899, LEd2d 389

(1976), requires us to conclude that dismiss

sals for cause cannot be sanctioned os

“harmless error”, regardless of whether

the state, at trial, could have peremptorily

challenged the same juror See Burns ¥

Estelle, G92 F.2d 1297 (6th Cir.1979), ad-

hered en banc 626 F.2d 396 (5th Cir.1980),

Moore v. Betelle, 610 F.2d 66 (6th Cir.1982),

Hance & Zant, 696 F.2d 040, 966 (11th

Cir.1983), Barfield v. Harris, 640 F Supp

451, 465 (ED.N.C.1982); Keeten v. Gorn

son, 578 F Supp. 1164, 1190 (WD N.C.1984);

Chandler ». State, 442 So.2d 171, 175 (Fla

1983); Blankenship v. State, 280 8.E.2d

623, 624 (Ga.1981); overruling Alderman

» State, 241 Ga 496, 246 S.E.2d 642 (1978)

Grijalva v. State, 614 S.W.2d 420 (Tx.Cr

App.1980) en banc overruling Chambers

» State, 568 S.W.2d 313 (Tx.Cr.App.1978)

People v. Velasquez, 26 Cal3d 425, 162

Cal. Rptr. 306, 606 P.2d 341 (1980), In Re

447 P.2d 117 (1968)

The case law holding that there car be

harmiess error in Witherspoon cases, suc!

as when the state has not used al) of its

peremptory challenges, represents ex

tremely doubtful authority, as it fails wo

follow the absolute rule of reversal man

dated by Dams v. Georgia, referred to by

Justice Rehnquist in his dissent as & per se

rule. Davis announces a clear rule man

dating reversal and the following cases

which fail to adhere to it are ignoring the

authoritative construction of the United

States Supreme Court of the Federa! mgh'

to trial by an impartial jury. Stele v Ni

cholson. 437 So.2d 849 (La.1983); Gall t

Commonwealth, 607 S.W.2d 97 (Ky.1980)

State v. Johnson, 298 N.C. 356, %59 S.E.2d

752 (1979), People v. Moore, 42 1.24 73

246 N.E.2d 299 (1969)

In conclusion, there can be no doubt that

juror Bounds was clearly qualified to be

seated as a juror under the Adams and

Witt criteria. The majority errs in holding

that the trial judge did not excuse her for

cause. Its attempts to justify the tral

judge's error amount to 8 retroactive appl

an unacceptable and unwise course to pur

sue in view of the clear authority to the

contrary. I would rule that the trial court

erred in excluding juror Bounds for cause,

and this error requires reversal of Gray's

death sentence for a new sentencing uia!

See Oranviel v. Estelle, 655 F.2d 673 (Sth

Cir.1981). 1 would adhere to the ruling in

Davis v. Georgia, that a violation of Ad

ams and Witt is per se grounds for rever

sal. and cannot he excused as harmiess

error

PATTERSON, CJ., and ROBERTSON

J., join in Us dissent

Mar~ THOMAS and Harold Anderson

STATE of Missiesipp'

No. $5550

reme Court of Mississipp!

Defendants were jomluUy ndicted for

sale of controlled substance One defend

ant pled guilty sale of controlled sub

stance and the other defendant pled guilty

to possession of controlled substance, but

subsequently, prior to sentencing defend

ants filed motion withdraw thew prev)

ous pleas and subsutule pleas of not gutlty

The Circuit Court, Adams County Edwin

EF Benoist, Jr., J., denied the moon and

defendants appealed The Supreme Court

Dan M. Lee, J., held that: (1) trial court did

not abuse its discretion in denying motion

for withdrawal of guilty plea of either de

fendant, based upon finding that both pleas

were knowingly and voluntarily entered,

(2) fact that at the time defendants entered

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