# Petition for Writ of Certiorari — Howell v. Mississippi > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0016%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2005 - **Citation:** 543 U.S. 440 ## Text | aes ie (¢) “wie | FILED 93-9560 | MAR 1? 2004 | OFFICE OF THE CLI RK | No. IN THE SUPREME COURT OF THE UNITED STATES October Term, 2003 MARLON HOWELL, Petitioner, VS. STATE OF MISSISSIPPI, Respondent. MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS The petitioner, Marlon Howell, asks leave to file the attached petition for writ of certioran without prepayment of costs and to proceed in forma pauperis. Petitioner has been granted leave to so proceed in the state courts. Petitioner's affidavit in support of this motion is attached hereto. This the 17" day of March 2004. ti 2a André de Gruy* 510 George St. Suite 300 Jackson, MS 39202 601-576-2316 Duncan Lott P.O. Box 382 Booneville, MS 38829 662-728-9733 Counsel for Petitioner *Counsel of Record NO. IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 2003 MARLON HOWELL. PETITIONER VERSUS STATE OF MISSISSIPPI RESPONDENTS. AFFIDAVIT OF MARLON HOWELL STATE OF MISSISSIPPI COUNTY OF SUNFLOWER PERSONALLY APPEARED BEFORE ME, the undersigned authority in and for the junsdiction aforesaid, the within named MARLON HOWELL, whe being by me first duly sworn, stated as follows: My name is MARLON HOWELL. | am the petitioner in the above-entitled case. In support of my motion to proceed without being required to prepay fees, costs, or give security therefor, | state that because of my poverty | am unable to pay the costs of said case or to give security therefore: and that | believe I am entitled to redress. | further swear that the responses which | have made to the questions and instructions below relating to my ability to pay the cost of proceeding in this Court are true. 1. Are you presently employed? |” __ a. If the answer is yes, state the amount of your salary or wages per month and give the name and address of your employer: __ b. If the answer is no, state the date of your last employment and the amount of s the salary and wages per month which you received: 4+/., 7 or tery 7 id ae) 2. Have you received within the last twelve months any income from a business, profession, or other form of self-employment. or in the form of rent payments, interest, dividends, ‘a or other source? /. a. If the answer is yes, describe each source of income and state the amount received from each during the last twelve months: 3. Do you own any cash or checking or savings account? “= _ > a. If the answer is yes, state the total value of the items owned: _-- _—-_-- a ’ pete? o? . x 4. Do you own any real estate, stocks, bonds, notes, automobiles, or other valuable property (excluding ordinary household furnishings and clothing)? 4. a. If the answer is yes, describe the property and state its approximate value: $. List the persons who are dependent upon you for support and state your relationship to those persons: A t ch c I understand that a false statement or answer to any questions on this affidavit will subject me to penalties for perjury. This the //"" day of March. \| 1 , ( Wi Z ¢ ti! MARLON HOWELL / h SWORN TO AND SUBSCRIBED before me, this the ., _ d_. of March, 2004. ey * / ~ * | NOTARY PUBLIC MY COMMISSION EXPIRES: hectp sti ¢¢ - yy.9 ‘- tu IN THE SUPREME COURT OF THE UNITED STATES October Term, 2003 MARLON HOWELL, Petitioner, VS. STATE OF MISSISSIPPI, Respondent. CERTIFICATE OF SERVICE OF PETITION FOR WRIT OF CERTIORARI I, André de Gruy, a member of the Bar of this Court, hereby certify that on this 17" day of March 2004, | deposited at the main post office on South West Street, Jackson, Mississippi, the Petition for Wnt of Certioran to the Hon. William K. Suter, Clerk of the Supreme Court of the United States, and to Marvin L. White, Jr., Esq., Assistant Attorney General, Post Office Box 220, Jackson, MS 39205, [telephone number (601) 359-3680], counsel for the respondent herein. | further certify that all parties required to be served have been served. André de Gruy* 510 George St. Suite 300 Jackson, MS 39202 601-576-2316 Duncan Lott P.O. Box 382 Booneville. MS 38829 662-728-9733 Counsel for Petitioner *Counsel of Record oe ———— 93-9560 wom No _———— IN THE SUPREME COURT OF THE UNITED STATES October Term, 2003 MARLON HOWELL, Petitioner, VS. STATE OF MISSISSIPPI, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF THE STATE OF MISSISSIPPI THIS IS A DEATH PENALTY CASE André de Gruy* 510 George St. Suite 300 Jackson, MS 39202 601-576-2316 Duncan Lott P.O. Box 382 Booneville, MS 38829 662-728-9733 Counsel for Petitioner *Counsel of Record QUESTION PRESENTED TABLE OF CONTENTS | Can a state court, consistent with the Eighth and Fourteenth Amendments to the Page Constitution of the United Staces. refuse to instruct a jury ina death penalty case on at least one lesser included offense that is recognized in state law and supported by the evidence? Questions Presented ! : Table of Contents TT Table of Authorities Th Opinion Below l Junsdiction | Constitutional Provisions Involved Statement of the Case Reasons for Granting the Writ oo fF NV WN Conclusion TABLE OF AL THORITIES Cases Beck v. Alabama, 447 U.S. 625 (1980) o000000. \aliicnasiilihlantiiiatetbiiieistilis ndepigi lets sae at. 5 aU puss lbetbieaalanidlnedcstialidedamesbibiseidaebds 6.7 Cordova v. Lynaugh, 838 F.2d 764 (Sth Cir. 1988).................cccccccscessccssscessesesesesecsesseseessesseenens 5.6 OOo beside cieiicaehidaenedbbansnellnietisiicioaineniddendeeidesmnneea 7 =D hdeidaib cadena bbamipanaonnanan adsambensaseeonameitinasaiats 5 re ee, Cy ee ee PPI, CIID o..cscensnsnovsenenevesdnnetebnedeareseacivenssousssiosersbencaseene 2. 3, 4,5 eee Seen Canes ar a T- SE. satsasiuh dachasassiananinsieianensabinnaibeestibbensaasneiieenee 6,7 i Ss ateaernaciiesiebchteet epmlebdineiaaaienibnine 4 RS BS a eae ann nse me 5 can TS, otis lainnmensidnidesinipsinaneniaiiannnmmanesansensaddeens 5 i el aebieddneaibiniiadanianiiede 6,7 a eS,“ OED SI, “U2 salesmen 7 Statutes & Administrative Codes RE IE Cll RE i ahi De ali se ek | Miss. Code Ann. § 97-3-19(1 (C).......00. Se RS ESE eS TEE ETT A OF EE EN IN Pa 4 8 Ee aaa Ra SETS eT Ta TN AUER ae aeY /8 No. IN THE SUPREME COURT OF THE UNITED STATES October Term, 2003 MARLON HOWELL, Petitioner, vs. STATE OF MISSISSIPPI, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE SUPREME RT OF THE STATE OF MI IPPI The petitioner, Marlon Howell, prays for a writ of certiorari to review the judgment of the Supreme Court of Mississippi affirming his conviction of capital murder and sentence of death. PINION BELOW The opinion of the Supreme Court of Mississippi is reported at Howell v. State, 860 So.2d 704 (Miss. 2003). The opinion is attached as Appendix “A” to this Petition. JURISDICTION The judgment of the Supreme Court of Mississippi was entered on October 23, 2003, and rehearing denied on December 18, 2003. The jurisdiction of the Supreme Court is invoked under 28 U.S.C. § 1257 on the ground that a nght or privilege of the defendant which is claimed under the Constitution of the United States has been denied by the State of Mississippi. CONSTITUTIONAL PROVISIONS INVOLVED This case ir. olves the following provisions of the United States Constitution: The Eighth Amendment to the Constitution of the United States, which provides that: Excessive bail shall not be required, nor excessive fines imposed. nor cruel and “nusual punishments inflicted. The Fourteenth Amendment to the Constitution of the United States which provides. in pertinent part, that: No state shall ... deprive an~ person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. STATEMENT OF THE CASE Marlon Howell was indicted for capital murder, defined as killing during the commission of an attempted robbery, by a Union County, Mississippi, Grand Jury. Howell, 860 So.2d 704. He was tned and convicted of capital murder and sentenced to death by a jury in the Circuit Court of Union County, Mississippi. During the course of the tnal Howell presented alternative defenses. He presented the absolute defense of alibi but also vigorously fought the alleged underlying felony of attempted robbery. If the jury concluded that the evidence of attempted robbery was not established beyond a reasonable doubt they could not find Howell guilty of capital murder. Id. at 742-43. 136. The evidence of attempted robbery was weak. The only evidence supporting the theory was alleged accomplice testimony secured by plea bargain. And two of the state’s witness undermined the state's own case. First, a co-defendant-turned-state’s-witness testified that the shooting was done by Howell but it resulted from Mr. Pernell spraving Howell in the face with mace. Id. at 714, * 11. Further, the shooting was observed by a disinterested witness, Charles Rice. Mr. Rice testified that he observed a conversation and that there were no indications of a robbery taking place. Id. at 713, 743, 4% 3, 136. Howell sought a jury instruction on “simple” murder and manslaughter. The tnal court denied these instructions. Howell raised this issue on appeal to the state supreme court but was denied relief. Id. at 741-44. In affirming, the state court relied exclusively on two state court decisions from the 1970s. Id. at 744, 4 139. Neither case involved the death penalty, nor did either case address the federal constitution. Such a cursory rejection of a fundamental principle of constitutional law mandates careful review by this Court. Ww REASONS FOR GRANTING THE WRIT IN AFFIRMING THE TRIAL COURT'S DENIAL OF A REQUESTED LESSER INCLUDED OFFENSE INSTRUCTION THE MISSISSIPPL SUPREME COURT IGNORED TWENTY- FIVE YEARS OF CASELAW FROM THIS COURT, THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT AND ITS OWN DECISIONS, RESULTING IN A VIOLATION OF MARLON ‘HOWELL’S tIGHTH AND FOURTEENTH AMENDMENT RIGHTS. Marlon Howell requested his jury be instructed on the lesser included offenses of murder and manslaughter. Howell v. State, 860 So.2d at 741-44, 4 131-40. The trial court refused those instructions and his case was submitted to the jury with two options — guilty of capital murder or not guilty of any offense. Id. Howell argued in the tnal court and on appeal to the state supreme court that he was vigvrously fighting the evidence of robbery — the underlying felony elevating the case from murder to capital murder thus subjecting him to the possibility of a death sentence. Id. at € 136. The state supreme court recognized that Howell's argument, based on the facts of this case, was that: The jury could have found and returned the lesser-included offense of simple murder or manslaughter. The fact remains that if this jury had believed Howell approached Pernell’s vehicle to sell him drugs and was sprayed in the face with mace by Pemell in reaction, then they could have retumed a conviction on manslaughter.' The {cjourt’s failure to instruct the jury on the lesser included offense of simple murder and manslaughter was error. The jury as instructed ad no choice but either to tum Howell loose or convict him of {cjapital murder ... Nonetheless. the court held Howell was not entitled to a lesser included offense based on 1975 and 1979 state court decisions. Howell at © 139 (citing Presley v. State, 321 So.2d 309 (Miss. 1975) More appropriately a reasonable juror could have returned a verdict of guilty of murder pursuant to Miss. Code § 97-3-19(1)(c). Under this fact scenario Howell would have been guilty of killing during the commission of a felony, i.e., attempt to sell drugs. and Grace v. State, 375 So.2d 419, 420 (1979)). Neither case involved the death penalty. Clearly the state court failed to consider this Court’s substantial jurisprudence on this issue since 1980. In holding that Howell was not entitled to a lesser-included offense instruction of murder, the state court ignored its precedent and the mandates of this Court. See Beck v. Alabama, 447 U.S. 625 (1980). Where as here the evidence in a capital murder tnal could support a verdict of guilt of a non-capital offense, the defendant is entitled under the Eighth and Fourteenth Amendments to the Constitution of the United States to submit to the jury an instruction on the non-capital offense. Beck v. Alabama, 447 U.S. 625, 638 (1980). The resulting capital murder conviction upon which the death sentence rests is unreliable and the decision of guilt beyond a reasonable doubt uncertain. Beck at 642-43. This Court's “fundamental concern in Beck was that a jury convinced that the defendant had committed some violent crime but not convinced that he was guilty of a capital crime might nonetheless vote for a capital conviction if the only alternative was to set the defendant free with no punishment at all.”” Schad v. Arizona, 501 U.S. 624, 646(1991). = The Court previously acknowledged that “{t]he absence of a lesser included offense instruction increases the risk that the jury will convict . . . simply to avoid setting the defendant free.” Spaziano v. Florida, 468 U.S. 447, 455 (1984). As the Beck Court noted, such a risk of unwarranted conviction cannot be tolerated in a case in which the defendant’s life is at stake. Beck, 447 U.S. at 637. The goal of Beck was to “eliminate the distortion of the factfinding process that is created when the jury is forced into an all-or-nothing choice between capital murder and innocence.” Schad, 501 U.S. at 646-47. The Beck Court recognized that the issue of lesser included offenses directly impacted the reliability of the guilt determination in capital cases. Schad, 501 U-S. at 646. The Fifth Circuit has held that Beck is violated where the trial judge erroneously fails to give a lesser offense instruction. Cordova v. Lynaugh, 838 F.2d 764, 767 (Sth Cir. 1988), cert. demed. 108 S.Ct. 2832 (1988). Under the Eighth Amendment to the Constituuon o the United States, “a lesser included offense instruction should be given if the evidence would permit a jury rationally to find {a defendant] guilty of the lesser included offense and acquit him of the greater.” Id. at 767. The denial of such an instruction in violation of this standard in a capital murder case / can never be harmless error. Cordova, 838 F.2d at 770, ny 8. “Beck stands for the proposition that ‘the jury [in a capital case] must be permitted to consider a verdict of guilt of a non-capital offense ‘in every case’ in which ‘the evidence would have supported such a verdict.” Cordova, 838 F.2d at 767. The question then becomes, as a matter of state law is “murder” a lesser-included offense of “capital murder?” The Mississippi Supreme Court definitively answered that question in Watts v. State, 717 So.2d 314 (Miss. 1998). In Watts the State of Mississippi argued and the tnal court held that “simple murder is a lesser included offense of capital murder.” Watts at 411 In evaluating this claim the state supreme court held: “12. In support of his argument, Watts cites to two Fifth Circuit Court of Appeals’ cases, Jones v. Thigpen, 741 F.2d 805 (Sth Cir. 1984) 475 U.S. 1003, 106 S.Ct. 1172, 89 L.Ed.2d 292 and Bell v. Watkins, 692 F.2d 999 (Sth Cir. 1982), for the theory that “*[iJ]n Mississippi, no murder committed during the course of a robbery can be a simple murder.’”’ Jones v. Thigpen, 741 F.2d 805, 816 (Sth Cir. 1984) (quoting Bell v. Watkins, 692 F.2d 999, 1004-05 (Sth Cir. 1982)), vacated on other grounds . 475 U.S. 1003 (1986). Both Jones and Bell involved situations in which the tnal court refused to give a lesser offense instruction where the defendant was charged with capital murder while engaged in the commission of robbery. Jones, 741 F.2d at 815-16; Bell, 692 F.2d at 1004-05. In Jones, the Fifth Circuit held that the trial court did not commit error by refusing to give a lesser included offense instruction of simple murder where no lesser included offense was provided by state law for murder committed during the commission of a robbery. Jones, 741 F.2d at 816. In Bell, the Fifth Circuit, stating that under Mississippi law “no murder committed during the course of a robbery can be simple murder,” similarly held that the trial court's refusal to give a lesser included offense instruction was ea) eee Watts at 319. proper where there was no evidence to support the lesser charge. Bell. 692 F.2d at 1005. 413. This Court, however, in Fairchild v. State, 459 So. 2d 793 (Miss. 1984), held that this theory was flawed because it presupposed that the defendant was guilty of robbery. Fairchild v. State, 459 So. 2d 793, 800 (Miss. 1984). The Fairchild Court stated: The theory is flawed. It determines what instruction will be granted at the request of the capital murder defendant on the basis of a presumption that he has already been found guilty of the underlying felony. The theory forgets that there is no such thing as a directed verdict of guilty in a criminal case, either on the principal charge in general or on any of its components. Its logic requires the determination that the proof offered by the State where not substantially contradicted must perforce be believed by the jury and so acted upon in their verdict. True, the evidence that Fairchild participated in a robbery in this case is substantial. What the trial judge has done, however--following the theory advanced by the Fifth Circuit--has been to find as a matter of law that Fairchild is guilty of robbery before the case is ever submitted to the jury. This constitutionally he has no authority to do. Fairchild, 459 So.2d at 800. Based on this logic, this Court held that it was error, although not reversible error because Fairchild received the same sentence that he would have received for a conviction of simple murder, for the trial court to refuse to grant a lesser included offense instruction on simple murder. Id. at 801. Thus, Watts’ reliance on Jones and Bell is unfounded where this Court has held that a simple murder instruction may be given on a charge of capital murder. In addition, this Court has stated that “[b]y its form, [Miss. Code Ann. §97-3-19] implicitly recognizes the established doctrine that simple murder is a lesser included offense of capital murder.” Wheeler v. State, 536 So.2d 1341, 1344 (Miss. 1988). ooo ee | Page | of 73 Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Without question, as a matter of state law. murder is a lesser included offense of capital 860 So.2d 704 : murder.” Accordingly. the denial of the requested a lesser-included offense instruction for which (Cite as: 860 So.2d 704) H Mr. Howell could have been found guilty as a matter of state law violates the Eighth and Fourteenth Supreme Court of Mississippi. Amendments to the Constitution of the United States. Marlon Latodd HOWELL a/k/a Marlon Cox v. | STATE of Mississippi. CONCLUSION | ee ee No. 2001-DP-01104-SCT. For the foregoing reasons, this Court should grant the wnt of certioran, vacate the . . : . Oct. 23, 2003. judgment of the Mississippi Supreme Court, and either set this case for review or summarily Rehearing Denied Dec. 18, 2003. reverse the opinion of the state court. Defendant was convicted following jury trial in the Circuit Court, Union County, R. Kenneth | Coleman, J., of capital murder and was sentenced to death. Defendant appealed. The Supreme Court, Respectfully submitted, Easley, J., held that: (1) denial of motion for change of venue was not abuse of discretion; (2) state provided race-neutral reasons for peremptory strikes of two African-American prospective jurors; (3) identification testimony by eyewitness was sufficiently reliable; (4) testimony about defendant's statements that he needed money to pay his probation officer was admissible to establish defendant's --—— motive and intent; (5) evidence supported finding that defendant intended to rob victim; (6) defense's cross-examination of police officer concerning defendant's prior guilty plea to possession of a controlled substance “opened the door," at sentencing phase during which defense attempted to Jackson, MS 39202 establish lack of significant criminal history, to state's introduction of indictment for sale of 601-576-2316 | marijuana; and (7) death sentence was not imposed under influence of passion, prejudice, or any other arbitrary factor, was supported by statutory aggravating circumstances that capital offense was André dé Gruy* 510 George St. Suite 300 Duncan Lott committed in course of a robbery for pecuniary gain and by a person under a sentence of P.O. Box 382 imprisonment, probation, or parole, and was not excessive or disproportionate. Booneville, MS 38829 662-728-9733 Conviction and sentence affirmed. Counsel for Petitioner Cobb, J., concurred in part and in result. *Counsel of Record Waller, J., concurred with separate written opinion joined by Pittman, C.J., Cobb and Carlson, JJ., and joined in part by Graves, J. Graves, J., dissented with separate written opinion joined by McRae, P.J. ~ See also Miss. Code § 99-] 7-20 providing in death eligible cases for instruction on any non- West Headnotes death eligible offense. {1] Criminal Law 121 110k121 Most Cited Cases Decision to grant a venue change rests in the sound discretion of the trial judge. (Per Easley, J., with two justices concurring and three justices concurring in result.) fe) __/delivery.htmI?dataid=B00 _vaeeen & &dest=atp& fo 1/13/2004 Page 2 ot 73 |2| Criminal Law <>1150 L1OkKL1S0 Most Cited Cases State Supreme Court will not disturb the ruling of the trial court where the sound discretion of the trial judge in denying a change of venue was not abused. (Per Easley, J., with two justices concurring and three justices concurring in result.) [3] Criminal Law ©>126(1) 110kK126(1) Most Cited Cases The accused has a right to a change of venue when it is doubtful that an impartial jury can be obtained. (Per Easley, J.. with two justices concurring and three justices concurring in result.) [4] Criminal Law &134(1) 110k134¢1) Most Cited Cases Upon proper application for change of venue, there arises a presumption that impartial jury cannot be obtained in present venue, and the state then bears the burden of rebutting that presumption. (Per Easley, J., with two justices concurring and three justices concurring in result.) [5] Criminal Law €>134(1) 110k134(1) Most Cited Cases Certain elements, when present, serve as an indicator to tnal court that presumption of prejudicial pretnal publicity for purposes of motion to change venue is irrefutable, including: (1) capital cases based on considerations of a heightened standard of review; (2) crowds threatening violence towards the accused; (3) an inordinate amount of media coverage, particularly in cases of (a) serious crimes against influential families; (b) serious crimes against public officials; (c) serial crimes; (d) crimes committed by a black defendant upon a white victim; (e) where there is an inexperienced tnal counsel. (Per Easley, J., with two justices concurring and three justices concurring in result.) [6] Criminal Law €>134(4) 110k134¢4) Most Cited Cases Denial of motion for change of venue in capital murder case was not abuse of discretion; there was no evidence offered of any threatened violence towards defendant nor an inordinate amount of media coverage, testumony of state's witnesses demonstrated that defendant could receive a fair trial and defendant offered no additional evidence to rebut state's witnesses and support his motion, and defendant did not present any evidence that he could not or did not receive a fair trial from 12 jurors who heard his case. (Per Easley. J.. with two justices concurring and three justices concurring in result.) [7] Criminal Law C>126(1) 110k126¢1) Most Cited Cases Linchpin for reviewing the denial of change of venue motion is whether the venire members stated that they could be fair and impartial jurors if chosen. (Per Easley, J., with two justices concurring and three justices concurring 1n result.) ... delivery htm! ?dataid=BO005 580000002 7620004680 | 22BAIDCB886886CF82&dest=atp& fo 1/13/2004 Page 3 of 73 |8| Costs ©=302.3 102k302.3 Most Cited Cases Denial of motion for funds for an investigator to look into possible mitigating issues was not error in capital murder case. (Per Easley, J., with two justices concurring and three justices concurring in result.) {9] Costs &—302.2(2) 102k302.2(2) Most Cited Cases Denial of defendant's request in capital murder case for funds to hire a jury consultant was not error, where defendant did not proceed as an indigent or have trial court declare him to be an indigent. (Per Easley, J., with two justices concurring and three justices concurring in result.) {10} Costs €=302.2(2) 102k302.2(2) Most Cited Cases Alleged lack of familiarity on part of defendant's father with venire panel drawn in capital murder case did not require grant of defendant's request for a jury consultant. (Per Easley, J., with two justices concurring and fhree justices concurring in result.) [11] Costs €=302.1(5) 102k302.1(5) Most Cited Cases Denial of defendant's request in capital murder case for daily transcripts of testimony of co- defendants and of secondary witnesses was not abuse of discretion. (Per Easley, J., with two justices concurring and three justices concurring in result.) [12] Criminal Law €641.5(1) 110k641.5(1) Most Cited Cases Refusal to furnish defendant in capital murder case a court-appointed attorney to assist his retained counsel was not error. (Per Easley, J., with two justices concurring and three justices concurmng in result.) [13] Criminal Law €>641.5(1) 110k641.5(1) Most Cited Cases Constitution does not require the appointment of two attorneys in a case where the death penalty ts involved. (Per Easley, J., with two justices concurring and three justices concurring in result.) [14] Costs 302.4 102k302.4 Most Cited Cases Denial in capital murder case of defendant's request for funding for additional psychiatne examination, after defendant had received a psychiatric examination from a particular doctor by agreement of the parties, was not abuse of discretion, where defendant did not proceed as an indigent or raise insanity as a defense. (Per Easley, J., with two justices concurmng and three justices concurring in result.) .../delivery.htm!?dataid=B005 580000002 7620004680 | 22BA9DCB886886CF82 &dest=atp& fo 1/13/2004 Page 4 ot 73 }15] Criminal Law C>1158(3) LIOKTTSS¢3) Most Cited Cases A reversal of a determination as to whether exercise of peremptory challenges was result of purposetul discrimination will only occur if the factual findings of the trial judge appear to be clearly erroneous or against the overwhelming weight of the evidence. (Per Easley, J.. with two justices concurmng and three justices concurring 1n result.) [16] Criminal Law €>1158(3) 1 1OK1158¢3) Most Cited Cases On appellate review, the tnal court's determinations under Batson v. Kentucky with respect to whether exercise of peremptory challenges was result of purposeful discrimination are accorded great deference because those determinations are based, in a lenge fart, on credibility. (Per Easley, J., with two justices concurring and three justices concurring in resuii.) [17] Constitutional Law €>221(4) 92k221(4) Most Cited Cases A peremptory challenge based on race constitutes a violation of equal protection. (Per Easley, J., with two justices concurming and three justices concurnng in result.) U.S.C.A. Const.Amend. 14. [18] Jury €—33(5.15) 230k33(5.15) Most Cited Cases To establish a prima facie case that race was the cnterion for exercise of a peremptory challenge, the objecting party must show (1) that he/she is a member of a cognizable racial group, (2) the prosecutor has exercised peremptory challenges toward the elimination of prospective jurors of his race, and (3) the facts and circumstances raised an inference that the prosecutor used his peremptory challenges for the purpose of striking minorities. (Per Easley, J.. with two justices concurring and three justices concurring in result.) . [19] Jury €=33(5.15) 230kK3345.15) Most Cited Cases Afncan-Amencan prospective juror's prior arrests and reluctance of that prospective juror's brother to tell officers that he had seen automobile accident in which another motorist ran into prosecutor's vehicle were race- neutral reasons for state's peremptory strike of prospective juror in capita. murder case. (Per Easley. J.. with two Justices concurnng and three justices concurring in result.) {20} Jury 335.15) 230kK33(5.15) Most Cited Cases Afncan-American prospective juror's claim on jury questionnaire that he had never been arrested for a crime. when he had in fact been arrested for receiving stolen property, provided race-neutral reason for state's exercise of peremptory stnke against that prospective juror in capital murder case. (Per Easley. J.. with two justices concurring and three justices concurring in result.) |21| Jury G=131(1) 230K 131061) Most Cited Cases Page 5 ot 73 A jury selection procedure which gives the defendant a fair opportunity to ask questions of individual jurors which may enable the defendant to determine his right to challenge that juror ts proper. (Per Easley, J., with two justices concurring and three justices concurring in result.) [22] Jury —131(2) 230k131(2) Most Cited Cases |22] Jury €=131(4) 230k 131(4) Most Cited Cases Trial court has broad discretion in passing upon the extent and propriety of questions addressed to prospective jurors. (Per Easley, J., with two justices concurring and three justices concurring in result.) [23] Jury —131(13) 230k131(13) Most Cited Cases Denial in capital murder case of defendant's request to conduct individual sequestered voir dire of prospective jury members who had read articles or seen information about case on television was not error; each of those prospective jurors had been individually questioned, by way of juror questionnaires, about what they knew about defendant, his co-defendants, or their families, and more importantly, none of those prospective jurors ended up serving on jury. (Per Easley, J., with two justices concurring and three justices concurring in result.) [24] Jury -131(15.1) 230k131(15.1) Most Cited Cases Sustaining of state's objection during voir dire in capital murder case to a question as to whether prospective juror had ever seen or heard of police officers "puffing up” or giving untrue testimony about facts of a case was not abuse of discretion. (Per Easley, J., with two justices concurring and three justices concurring in result.) [25] Jury €—131(8) 230k131(8) Most Cited Cases Sustaining of state's objection during voir dire in capital murder case to a question about the type of cases in which prospective juror might vote for death penalty was not abuse of discretion. (Per Easley, J., with two justices concurring and three justices concurring in result.) [26] Jury <—131(8) 230k131(8) Most Cited Cases Sustaining of state's objection during voir dire in capital murder case to a question as to whether prospective jurors believed mercy should be a factor in considering a death penalty sentence was not abuse of discretion. (Per Easley, J., with two justices concurring and three justices concurnng in result.) : [27] Jury —131(2) 230k131(2) Most Cited Cases ... delivery. htm!’ dataid=BU05 580000002 7620004680 1 22BAIDC B886886CF 82 &dest=atp& fo 1/13/2004 _../delivery.html?dataid=B0055800000027620004680 1 22BA9DC B886886CF82&dest=atp& fo 1/13/2004 Page 6 ot 73 Vour dire ts conducted under the supervision of the court, and a great deal must be left to its sound discretion. (Per Easley, J.. with two justices concurring and three justices concurring in result.) {28] Criminal Law €—1152(2) LLOKT1S2(2) Most Cited Cases Standard of review in examining the conduct of voir dire is abuse of discretion. (Per Easley, J., with two justices concurring and three justices concurting in result.) {29] Criminal Law €>1152(2) 110k1152(2) Most Cited Cases Abuse of discretion in the conduct of voir dire will only be found where a defendant shows clear prejudice resulting from undue lack of constraint on the prosecution or undue constraint of the defense. (Per Easley, J., with two justices concurring and three justices concurring in result.) {30] Criminal Law €—339.8(4) 110k339.8(4) Most Cited Cases As admitted in capital murder prosecution, testimony of eyewitness identifying defendant as shooter was sufficiently reliable and identification did not need to be suppressed as suggestive, though eyewitness’ view of shooter was brief, where eyewitness paid close attention once he realized a shooting had taken place, accurately described defendant as a young, clean cut, black male, was absolutely certain of defendant's identity when he saw him in lineup, and made that identification from the lineup a little over 24 hours after the shooting. (Per Easley, J., with two justices concurring and three justices concurnng in result.) [31] Criminal Law €—747 110k747 Most Cited Cases Jury alone determines the weight and worth of any conflicting testimony. (Per Easley, J., with two Justices concurring and three justices concurming in result.) [32] Criminal Law €—339.10(5) 110k339.10(5) Most Cited Cases ? Probation and parole officer had legal authority to issue arrest warrant that another probation and parole officer had entered into computer but had not signed, and thus witness's identification of defendant was not the result of an illegal arrest. (Per Easley, J., with two justices concurring and three justices concurring in result.) West's A.M.C. § 47-7-37. [33] Criminal Law €—371(12) 110kK371(¢12) Most Cited Cases Testimony about defendant's statements that he needed money to pay his probation officer was admissible in capital murder case to establish defendant's motive and intent, despite defendant's claim that the probative value of admitting the statement. which revealed defendant's prior convictions, did not outweigh the prejudicial effect. (Per Easley. J.. with two justices concurring and three justices concurring in result.) Rules of Evid., Rule 404(b) .. delivery.htm!?dataid=B005 580000002 7620004680 | 22BAIDCB886886C F82&dest=atp& fo 1/13/2004 Page 7 of 73 |34] Criminal Law €—407(1) 110k407(1) Most Cited Cases : Testimony that declarant told witness that defendant had shot somebody did not constitute hearsay and was admissible in capital murder prosecution as an “adoptive admission,” where defendant was present when statement was made and did not dispute statement, requested that witness drive him home “right now,” and told witness that "y'all don't need to tell nobody.” (Per Easley, J., with two justices concurring and three justices concurring in result.) Rules of Evid., Rule 801(d)(2)(B) . [35] Witnesses <>291 410k291 Most Cited Cases Refusal in capital murder case to allow re-cross examination of prosecution witness concerning criminal charges that were pending against him when he gave statement to district attorney's office was not error, where witness testified on re-direct examination that he had charges pending when he talked to district attorney's office and that those charges were not discussed and he received no promises or leniency in exchange for his testimony. (Per Easley, J., with two justices concurring and three justices concurring in result.) [36] Criminal Law €>1159.2(2) 110k1159.2(2) Most Cited Cases [36] Criminal Law €>1159.2(3) 110k1159.2(3) Most Cited Cases A jury's finding of fact is not to be overturned when there is credible evidence in the record for which the jury could have reasonably inferred the offense or unless the verdict was clearly against the overwhelming weight of the evidence. (Per Easley, J., with two justices concurring and three justices concurring in result.) [37] Homicide >1165 203k1165 Most Cited Cases Finding that defendant intended to rob victim was supported in capital murder prosecution by evidence that defendant told companions on night of murder that he needed some money to pay his probation officer, that defendant reached into victim's car and there was some "scuffling or fighting” prior to fatal shooting, and that police found large amount of change on floorboard of driver's side of victim's car. (Per Easley, J., with two justices concurring and three justices concurring in result.) West's A.M.C. §$§ 97-3-19(2)(e) , 97-3-73 . [38] Homicide 1456 203k1456 Most Cited Cases {38] Homicide <>1457 203k1457 Most Cited Cases Instructions on simple murder and manslaughter were not warranted based on the evidence in capital murder prosecution arising from fatal shooting that allege’s: occurred during commission of a robbery. (Per Easley, J., with two justices concurring and three justices concurring in result.) West's A.M.C. §§ 97-3-19(2(e) , 97-3-73 . .../delivery.htm!?dataid=B005 580000002 7620004680 1 22BA9DCB886886CF82&dest=atp& fo 1/13/2004 Page 8 of 73 |39] Criminal Law €>763(1) 110kK763(1) Most Cited Cases Instructions that comment on the weight of the evidence are not proper. (Per Easley, J., with two justices concurring and three justices concurring in result.) |40] Criminal Law ©8291) 110k829(1) Most Cited Cases A tnal judge is under no obligation to grant redundant instructions. (Per Easley, J., with two justices concurring and three justices concurring in result.) [41] Criminal Law 1173.1 110k1173.1 Most Cited Cases Refusal to grant an instruction which is similar to one already given does not constitute reversible error. (Per Easley, J., with two justices concurring and three justices concurring in result.) [42] Criminal Law €—829(12) 110k829(12) Most Cited Cases Proposed jury instruction on weight of evidence was properly denied in capital murder prosecution in view of instructions that were given concerning how to view evidence as a whole, accomplice testimony, and inconsistent statements or testimony. (Per Easley, J., with two justices concurring and three justices concurring in result.) [43] Criminal Law €—829(16) 110k829(16) Most Cited Cases Refusal in capital murder case of proposed instruction that jury should not give greater or lesser credence to testimony of any witness merely because he or she was a law enforcement officer was not abuse of discretion in view of instructions that were given on how to weigh credibility of each and every witness. (Per Easley, J., with two justices concurring and three justices concurring in result.) [44] Criminal Law €>829(16) 1 10k829(16) Most Cited Cases Denial of proposed jury instruction relating to cross-racial eyewitness identification was not error in Capital murder case in which white eyewitness identified defendant, who was black, as shooter; other evidence corroborated that identification, and jury was properly instructed on how to weigh credibility of each witness who testified. (Per Easley, J., with two justices concurring and three justices concurring in result.) [45] Criminal Law 867 110k867 Most Cited Cases Whether to grant a motion for mistrial is within the sound discretion of the trial court. (Per Easley, J.. with two justices concurring and three justices concurring tn result.) ... delivery.htm!?dataid=B005 580000002 7620004680 | 22BAIDCB886886CF 82&dest=atp& fo 1/13/2004 Page Y ol /3 {46| Criminal Law ©1155 110k1155 Most Cited Cases Standard of review for denial of a motion for mistrial is abuse of discretion. (Per Easley, J., with two justices concurring and three justices concurring in result.) [47] Criminal Law €—855(1) 110k855(1) Most Cited Cases [47] Criminal Law €—857(1) 110k857(1) Most Cited Cases Denial of motion for mistrial was not abuse of discretion in capital murder prosecuiion, where defendant did not submit any proof to support allegation that a juror’'s father had been sitting on front row with victim's family and did not present any evidence that jury did not follow trial court's instructions in rendering its verdict or that defendant was prejudiced in any way. (Per Easley, J., with two justices concurring and three justices concurring in result.) [48] Criminal Law €>721(3) 110k721(3) Most Cited Cases Closing argument comments by prosecutor, "if you had an alibi and were accused of capital murder, don't you think you would tell somebody about it? Don't you think you would have given some details? Done something?,"” were not an improper comment on defendant's failure to testify, but concerned the lack of a successful alibi defense. (Per Easley, J., with two justices concurring and three justices concurring in result.) [49] Criminal Law €>708.1 110k708.1 Most Cited Cases Attorneys are allowed wide latitude in closing arguments. (Per Easley, J., with two justices concurring and three justices concurring in result.) [50] Criminal Law €>730(1) 110k730(1) Most Cited Cases Trial judge is in the best a position to determine if an alieged objectionable remark has a prejudicial effect. (Per Easley, J., with two justices concurring and three justices concurring in result.) {51| Criminal Law 867 110k867 Most Cited Cases Trial judge is provided considerable discretion to determine whcther a remark is so prejudicial that a mistrial should be declared. (Per Easley, J., with two justices concurring and three justices concurnng in result.) [52] Criminal Law €>709 110k709 Most Cited Cases .../delivery.html?dataid=B005 580000002 7620004680 | 22BA9DCB886886C F82&dest=atp& fo 1/13/2004 Page 10 ot 73 An alleged improper prosecutorial comment during closing argument must be considered by the appellate court in context im which the statement was made. (Per Easley, J.. with two justices concurring and three justices concurring 1 result.) {$3} Criminal Law €>1134(3) 110kK1134¢3) Most Cited Cases Appellate court reviews each alleged comment on a defendant's failure to testify on a case by case a basis. (Per Easley, J.. with two justices concurring and three justices concurring in result.) [54] Criminal Law 633(1) 110k633(¢1) Most Cited Cases Tnal judges normally have broad discretion in their decision on the time to begin a trial and the length of the proceedings each day. (Per Easley, J., with two justices concurring and three justices concurming in result.) [SS] Sentencing and Punishment 1774 350HK1774 Most Cited Cases Demal in capital murder case of motion for 24-hour "cooling off period" between guilt and sentencing phase was not abuse of discretion. (Per Easley, J., with two justices concurring and three justices concurring in result.) West's A.M.C. § 99-19-101(1). [56] Sentencing and Punishment €<>1680 350HK1680 Most Cited Cases Aggravating factor in capital murder case that capital offense was committed by a person “under sentence of impnsonment" can include probated, paroled, and suspended sentences. (Per Easley, J., with two justices concurring and three justices concurring in result.) West's A.M.C. § 99-19-101(5) (a). , [57] Criminal Law ©1042 110k1042 Most Cited Cases Defendant in capital murder case was procedurally barred from raising on appeal the argument that prosecution improperly used pecuniary gain both at tral and during sentencing phase to provide an aggravating factor. where defendant failed to raise that objection at sentencing hearing. (Per Easley, J., with two justices concurming and three justices concurring in result.) {58} Criminal Law C=1030(1) 110K 103001) Most Cited Cases If no contemporaneous objection 1s made, the error, if any, is waived. (Per Easley, J., with two justices concurring and three justices concurring in result.) |59| Sentencing and Punishment <>1660 3S50HK 1660 Most Cited Cases That capital offense was committed for pecuniary gain during course of robbery was proper . deinvery.htm!?dataid= BOOS 580000002 7620004680 1 22BAIDCB886886C F82&dest=atp& fo 1/13/2004 Page || of /3 aggravating factor in prosecution in which robbery was also alleged as underlying felony for felony murder charge. (Per Easley, J.. with two justices concurring and three justices concurring in result.) West's A.M.C. §§ 97-3-19(2)(e) , 97-3-73 . |60| Criminal Law €>1130(5) 110k1130(5) Most Cited Cases Argument raised on appeal in capital murder prosecution, that a prior indictment for sale of a controlled substance was not relevant and was highly prejudicial, was waived by defendant's failure to cite relevant authority. (Per Easley, J., with two justices concurring and three justices concurring in rest.) [61] Sentencing and Punishment ©1762 350HK1762 Most Cited Cases Defense's cross-examination of police officer concerning defendant's prior guilty plea to possession of a controlled substance “opened the door," at sentencing phase of capital murder prosecution at which defense was attempting to establish mitigating factor of no significant criminal history, to state's introduction of indictment for sale of a controlled substance, name.y, marijuana, with respect to which defendant had entered guilty plea to lesser offense of possess.on. (Per Easley, J., with two justices concurring and three justices concurring in result.) [62] Criminal Law 769 110k769 Most Cited Cases Jury instructions are within the sound discretion of the trial court. (Per Easley, J., with two justices concurring and three justices concurring in result.) [63] Sentencing and Punishment €>1780(3) 350Hk1780(3) Most Cited Cases Instruction at sentencing phase of capital murder prosecution, cautioning jurors not to be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion, or public feeling, was not improper. (Per Easley, J., with two justices concurring and three justices concurring in result.) [64] Sentencing and Punishment €<>1789(3) 350Hk1789(3) Most Cited Cases Argument raised on appeal in capital murder case, that trial court erred by denying proposed sentencing instruction and by not providing adequate sentencing instruction definitions, was procedurally barred based on defendant's to provide any authority other than a reference to a publication containing model jury instructions. (Per Easley, J., with two justices concurring and three justices concurring in result.) |65| Sentencing and Punishment ©>1780(3) 350Hk1780(3) Most Cited Cases Instructions at sentencing phase of capital case that defined mitigating circumstances as those which tended to warrant the less severe penalty of life imprisonment, defined aggravating circumstances as those which tended to warrant the death penalty, and set forth the exact elements of alleged .../delivery.html?dataid=B0055800000027620004680 1 22BA9YDCB886886CF82&dest=atp& fo 1/13/2004 Page |2 ot /3 aggravating and mitigating circumstances, adequately informed jury of definitions of those terms. (Per Easley, J., with two justices concurring and three justices concurring in result.) [66] Criminal Law ©>1171.1(1) L1OKL1 71.101) Most Cited Cases é Where a prosecutor has made an improper argument, the question on appeal is whether the natural and probable effect of the improper argument of the prosecuting attorney is to create an unjust prejudice against the accused as to result in a decision influenced by the prejudice so created. (Per Easley, J., with two justices concurring and three justices concurring in result.) {67} Sentencing and Punishment €>1780(2) 350Hk1 780(2) Most Cited Cases Prosecutor's comments during closing argument at sentencing phase of capital murder case, that jury should not be swayed by a "guilt trip,” that victim had worked to earn money whereas defendant had murdered victim for money, and that defendant had ruined not only the lives of victim's family but also the lives of his own family, did not create an unjust prejudice against defendant. (Per Easley, J., with two justices concurring and three justices concurring in result.) [68] Criminal Law €=935(1) 110K935(1) Most Cited Cases A moton for new tnal challenges the weight of the evidence. (Per Easley, J., with two justices concurming and three justices concurring in result.) {69} Criminal Law €—1 156(1) 110k1156(1) Most Cited Cases A reversal of order denying a motion for new tral is warranted only if the lower court abused its discretion. (Per Easley, J., with two justices concurring and three justices concurring in result.) |70| Criminal Law >1144.18 110k1144.18 Most Cited Cases In reviewing an order denying motion for new trial, appellate court accepts as true the evidence which supports the verdict and gives to the prosecution the benefit of all favorable inferences that may be drawn from the evidence. (Per Easley, J., with two justices concurring and three justices concurring in result.) [71] Criminal Law €>935(1) 1 }OK935¢1) Most Cited Cases Appellate court will not order a new tnal unless the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction unconscionable injustice. (Per Easley, J., with two justices concurring and three justices concurring in result.) {72} Sentencing and Punishment <1 788(4) S5S0HK 178814) Most Cited Cases ... delivery html? dataid=BO0S 580000002 7620004680 | 22BAIDC B886886CF82&dest=atp& fo 1/13/2004 Page 13 ol /3 |72| Sentencing and Punishment €>1788(6) 350HkK1788(6) Most Cited Cases Death sentence was not imposed under influence of passion, prejudice, or any other arbitrary factor, was supported by statutory aggravating circumstances that capital offense was committed in course of a robbery for pecuniary gain and by a person under a sentence of imprisonment, probation, or parole, and was not excessive or disproportionate when compared to other factualiy similar cases where death sentence was imposed. (Per Easley, J., with two justices concurring and three justices concurring in result.) West's A.M.C. § 99-19- 105(3) . *712 Duncan L. Lott, Booneville, attorneys for appellant. Office of the Attorney General by Judy T. Martin, Marvin L. White, Jr., Joanne M. Mcleod , Jerrolyn M. Owens , attorneys for Appellee. En Banc. EASLEY , Justice, for the Court. PROCEDURAL HISTORY 4 1. Marlon Latodd Howell (Howell) was indicted along with Curtis W. Lipsey (Lipsey) and Adam Ray (Ray) for capital murder arising from the slaying and attempted robbery of Hugh David Pernell (Pernell) in New Albany, Mississippi. Howell was tried and convicted of capital murder in the Union County Circuit Court. The jury determined that Howell should suffer the penalty of death by lethal injection. Howell's subsequent motion for a new trial was denied. Howell perfected his appeal to this Court after being allowed to proceed in forma pauperis. FACTS 4 2. Pernell, a retired postal worker, worked as a newspaper carrier for the Tupelo Daily Journal. On May 15, 2000, Pernell was delivering newspapers when he was flagged down by another vehicle sometime after 5:00 a.m. Howell, Ray and Lipsey were in the other vehicle. Howell approached Pernell's driver's side window and shot Pernell. Pernell's vehicle hit a parked vehicle in a nearby driveway. Howell, Ray and Lipsey fled the scene. 4 3. The murder occurred in front of the home of Charles Rice (Rice). At the time, Rice was up watching television and getting ready for work. David Grisham (Chief Grisham), New Albany Police Chief, investigated Pernell's murder and spoke with Rice. Rice had observed the exchange. Rice testified that he looked out his window when he heard a horn blowing. *713 He observed the two vehicles stop in front of his house. Rice testified that a man got out of the passenger's side of the rear vehicle and walled between the two vehicles up to the driver's side of the front vehicle. A conversation ensued, and then the man pulled out a pistol and shot the driver. The shooter then jumped back and got into the rear vehicle which had pulled up to pickup the shooter. Rice testified that he called 911. Rice described the shooter as a young black male, early twenties, clean cut, short hair, approximately six feet tall, light complexion. Rice described the rear vehicle as a dark-colored, late model Oldsmobile based upon the insignia in the middle of the tail lights. Later on May 15, 2000, Chiet Grisham received an anonymous telephone call suggesting that he question Lipsey. Chief Grisham left a message for Lipsey to contact the police. Lipsey and Ray voluntarily went to the police .../delivery.htm!?dataid=B005 580000002 7620004680 | 22BAYDCB886886CF82&dest=atp& fo 1/13/2004 ee ee ee Ee ee ee ee ee Pave I4 ol /3 station where they were interviewed by Officers Tim Kent (Officer Kent) and Chief Grisham. Based on the statements made by Lipsey and Ray, Chief Grisham began looking for Howell. * 4. Howell was arrested at approximately 7:30 p.m. on May 15, 2000, and questioned by Officer Kent and Chief Grisham. Howell stated that he did not know anything about the shooting. Howell claimed that he was in Corinth with a woman at the time of the murder. * 5. Brandon Shaw (Shaw) testified that on May 14, 2000, he rode around with Lipsey and Ray. They picked up Howell. When Howell got into the vehicle, he stated that he needed money to pay his probation officer. [FN1] The four then drove to Tupelo. While stopped at a gas station, Howell observed a man in the parking lot and stated "there goes an easy lick." After returning to New Albany, Howell, Lipsey, Ray and Shaw sat around at Shaw's house for a few hours talking. Shaw's brother, Quinton Shaw (Quinton), and his girlfriend, Andrea, were also at the house but in a bedroom. Howell, Lipsey and Ray left together around 4:00 a.m. in Ray's grandmother's car. They all returned together around 5:30 a.m. FN1. At the sentencing phase of tral, Officer Nance testified that a probationer had to pay a $25 monthly supervision fee and an extra $10 if a probationer fails a drug test. *£ 6. Marcus Powell (Powell), who lived in Blue Mountain, had arrived at Shaw's home around 5:10 a.m. and had gone to sleep on the couch. Earlier that evening, Powell had used Quinton's Chevy Lumina. On cross-examination, Powell testified that he was awakened by Howell, Lipsey and Ray returning to Shaw's house. Powell saw them go back to Shaw's bedroom. Howell was wearing a green shirt that evening, and he had a green shirt wrapped around his hand when he returned to the house. Ray came back to the living room and sat down. Powell never saw a gun. { 7. Shaw testified that his cousin, Ray, came back to his bedroom, knocked on the door and stated that "Howell had shot somebody." Shaw came out of his bedroom and saw Howell in the living room with a green shirt wrapped around his hand. Howell asked Shaw to drive him home. Shaw asked his brother to borrow his Chevy Lumina to carry Howell home to Blue Mountain. Powell also wanted a nde home to Blue Mountain. € 8. While Shaw went to borrow Quinton's car keys, Howell, Ray and Lipsey had already gone outside. Howell still had the green shirt around his hand. Shaw testified that he carried Powell home first and then dropped Howell off at his house. { 9. Shaw then dropped off Lipsey and *714 Ray. {[FN2] When Shaw returned home, he discovered a gun in his backyard. Shaw convinced Lipsey and Ray to go with him to the police later that day to report what had happened. Officer Kent went behind Shaw's house and discovered a gun in the weeds in the backyard. Shaw testfied that the gun was lying on top of a bag in the bushes when Officer Kent came to retrieve it. FN2. Ray had returned his grandmother's car before they left for Blue Mountain. * 10. Lipsey tesufied that he was with Howell when he shot Pernell. On the evening of May 14, 2000, Lipsey was with Shaw and Ray when they picked up Howell to go to Tupelo. According to Lipsey, Howell indicated that he needed money to pay his probation officer. While in Tupelo, Howell spotted a man outside at a payphone at a convenience store. Howell stated that the man would be "a good lick.” ... delivery htm!?dataid=B005 580000002 7620004680 | 22BAIDCB886886CF82&dest=atp& fo 1/13/2004 Page 15 ot 73 { 11. Lipsey further testified that after leaving Shaw's house, he was in the car with Ray and Howell when Howell reached over and blinked the vehicle's lights at another vehicle trying to make it stop. Howell got out of the vehicle trying to make the other vehicle stop. Howell then went over to the other vehicle and began fighting with the man for about half a minute. Howell pulled a gun and shot the man. Howell then jumped back into the vehicle and went back to Shaw's house with Lipsey and Ray. Lipsey testified that Howell told them that the man sprayed him in the face with mace, so he shot him. { 12. According to Lipsey, Howell woke Shaw when they got to Shaw's house. Lipsey testified that ive and Ray remained in the living room while Howell went to get Shaw. Shaw carried Powell home first and then dropped off Howell. Lipsey saw Howell take a Wal-Mart sack out of the vehicle and put the gun in the sack. Lipsey did not know what Howell did with the gun. 4 13. Lipsey testified that he went with Shaw and Ray to the police station later that day. He made two statements to the police. For his participation in Pernell's murder, Lipsey pled guilty to manslaughter and armed robbery, receiving a sentence of twenty years and ten years, respectively, to run consecutively. 4 14. Powell testified that on May 14, 2000, he initially arrived at Shaw's house around 8:00 p.m. Ray was already at Shaw's house when he arrived. Ray and Shaw left together to pick up Howell and Lipsey. All four returned to Shaw's house. Powell testified that Howell stated that he needed to pay his probation officer or he was going to be locked up. Shaw, Howell, Ray and Lipsey all left Shaw's home around 11:00 p.m. Poweli borrowed Quinton's vehicle to go to Pontotoc. 4 15. Powell returned to Shaw's house in New Albany around 5:10 a.m. Powell was asleep on the couch when Howell, Lipsey and Ray came back to Shaw's house. Ray sat on the couch beside him. Howell went back to Shaw's bedroom. Powell testified that Shaw used Quinton's vehicle to carry Howell and him home to Blue Mountain. Powell never saw Howell with a gun, but Howell had a green shirt wrapped around his hand. Powell testified that it was the same green shirt Howell had been wearing earlier. Powell was dropped off at his home first. 4 16. Dr. Steven Hayne (Dr. Hayne), state pathologist, conducted the autopsy on Perel: . body. Dr. Hayne testified that Pernell died from a gunshot wound. The bullet entered the chest cavity and traveled from Pernell's front left side through the body on an essentially horizontal p!ane without deviation up or down and then *715 traveled from front to back at approximately 40 to 50 degrees. Once the bullet entered the chest cavity, it fractured the fourth left rib. The bullet traveled through the left lung and the two chambers of the heart. After the bullet traveled through the left ventricle and the left atrium, it went through the aorta. The bullet left the heart and traveled from the aorta to enter the right lung. The bullet struck the 7th posterior right rib on the right flank, fracturing that bone before it came to rest. 4 17. The bullet caused extensive internal bleeding. There were one and one half quarts of blood in the right chest cavity, approximately one and one half quarts of blood in the left chest cavity, and one cup of blood in the structure that holds the heart's pericardial sac. Dr. Hayne testified that blood displacement of that magnitude would create irreversible shock that would cause death without immediate medical intervention. Dr. Hayne estimated that irreversible shock would have occurred within five to ten minutes. .../delivery.htm!?dataid=B005 580000002 7620004680 1 22BA9DCB886886CF82&dest=atp& fo 1/13/2004 Page 10 ot 73 “ 18. Dr. Hayne retrieved the bullet and transported it under a chain of custody to the Mississippi State Crime Lab in Jackson to the firearms division for analysis. Dr. Hayne concluded the manner of death to be homicide due to a gunshot wound. On cross-examination, Dr. Hayne testified that there was no evidence of a struggle. lacerations, contusions or scratches. However, on redirect, Dr. Hayne testified that he could not preclude the possibility of a struggle, only that there was no evidence of a struggle. * 19. Starks Hathcock (Hathcock), a forensic scientist specializing in firearms identification with the Mississipp: Crime Lab, performed a ballistics examination on the gun recovered from Shaw's residence, the bullet retneved by Dr. Hayne, and the cartridge case recovered from the crime scene. Hathcock fired and retrieved bullets fired from the Larcin .380 caliber handgun recovered from Shaw's residence to compare to the bullet recovered from Pernell's body. Hathcock examined the class characteristics and individual characteristics to that firearm. Hathcock concluded that the .380 caliber handgun recovered and submitted to the crime lab was the firearm that fired the bullet recovered from Pernell. Tc examine the recovered cartridge case, Hathcock compared the cartridge case to the markings on the breach case of the firearm. Hathcock found that the markings on the cartndge case bore class characteristics consistent with the firearms, but he did not find specific characteristics consistent with that firearm to positively include or exclude it as being fired from that gun. { 20. On appeal, Howell raises the following issues for consideration by this Court: 1. Whether the trial court erred in denying a change of venue. Il. Whether the trial court erred in denying Howell access to county funds in order to employ an investigator, a jury consultant, 2 daily transcript, and additional counsel to assist with his defense. Ill. Whether the trial court erred in failing to quash the jury panel. IV. Whether the trial court erred in finding that the State's use of peremptory strikes did not violate Batson. V. Whether the trial court erred in denying Howell's request for individual sequestered voir dire. VI. Whether the trial court erred in limiting Howell's voir dire examination. *716 VII. Whether the trial court erred in admitting Rice's eyewitness identification testimony. VIII. Whether the trial court erred in admitting Howell's statement. 1X. Whether the trial court erred in allowing witnesses to testify as to statements that Howell made. X. Whether the trial court erred in allowing Shaw to testify as to statements made by co- defendant, Ray. XI. Whether the trial court erred in refusing to allow Howell to re-cross- examine Shaw after the State's re-direct examination. XII. Whether the trial court erred in denying Howell's request for a directed verdict. XIII. Whether the trial court erred in granting the State's instruction S-2, which referred to attempted robbery; and whether Mississippi Code Annotated, Section 97-3-19 does not specifically enumerated attempted robbery as an underlying offense for conviction of capital murder. XIV. Whether the trial court erred in granting the State's instruction S-6 which did not instruct the jury on simple murder and manslaughter; and whether the trial court erred in denving Howell's instructions D-13 and D-18 on the crime of simple murder and manslaughter. X\. Whether the trial court erred in denying instruction D-3 on the weight of the evidence. XVI. Whether the trial court erred in denying instruction D-8 on the jury's consideration of .. delivery. htm]?dataid=B005 5800000027620004680 | 22BA9DC B886886CF82&dest=atp& fo 1/13/2004 etal Bet al Page |7 ot 73 testimony of a law enforcement officer. XVII. Whether the trial court erred in denying instruction D-16 as to cross- racial eyewitness identification. XVIII. Whether the trial court erred in denying Howell's motion for a mistrial and renewed motion for change of venue based upon a juror's father allegedly sitting on front row of audience with victim's family. XIX. Whether the trial court erred in allowing the district attorney, in closing argument, to refer to Howell's failure to tell somebody about his alibi defense or give details. XX. Whether the trial court erred in denying a twenty-four (24) hour "cooling off" period before the jury considered sentencing. XXI. Whether the trial court erred in the sentencing phase by allowing evidence of Howell's previous conviction for possession of marijuana as an aggravating factor. XXII. Whether the trial court erred in the sentencing phase by allowing evidence of fees due from Howell during his probation as double use of the same robbery element and pecuniary gain element in the guilt and sentencing phase. XXIII. Whether the trial court erred in the sentencing phase by allowing the introduction of the indictment against Howell on a charge of sale of controlled substance, marijuana. XXIV. Whether the trial court erred in granting sentencing instruction S-2 because it allegedly removed the issue of sympathy and mercy from consideration by the jury, improperly listed aggravating *717 factors of imprisonment and pecuniary gain, and failed to instruct the jury on how to properly weigh mitigating factor against aggravating facts and define what mitigating and aggravating factors are. XXV. Whether the trial court erred in denying Howell's sentencing instruction. XXVI. Whether the trial court erred in the sentencing phase by allowing the district attorney to refer to the victim, Pernell, his work, his loss, and what Pernell might say if he were still alive. XXVII. Whether the trial court erred in denying Howell's post-trial motion for a new trial. XXVIII. Whether the imposition of the death penalty is excessive or disproportionate in this case. : DISCUSSION I. Change of Venue 4] 21. Howell contends that the trial court erred by denying his request for a change of venue. Howell's motion was supported by six newspaper articles: (1) dated May 16, 2000, from the Tupelo Daily Journal, which described the crime, victim, and community reaction, but did not name Howell; (2) dated May 31, 2000, from the Tupelo Daily Journal, which reported on a totally separate crime and briefly referred to this crime, but did not name Howell; (3) dated May 17, 2000, from the Tupelo Daily Journal, which reported on the arraignment of the three co-defendants and the details of the crime, contained pictures of the three co-defendants, and stated that the court appearance was emotional for the victim's family and the defendants’ families; (4) dated May 17, 2000, from the Southern Sentinel, which reported the details of the crime; (5) dated May 17, 2000, from the New Albany Gazette, which reported the details of the crime and contained pictures of the victim and the three co-defendants and was re-run on May 19, 2000; and (6) dated May 19, 2000, from the New Albany Gazette, which reported on the details of the crime, funeral preparations, and community reaction. {| 22. Additionally, Howell submitted seven identical brief affidavits, which stated that Howell could not receive a fair and impartial trial in Union County. Howell also introduced a videotape of a WTVA television newscast. Although Howell did not submit his own affidavit, as statutorily required, the .../delivery.htm!?dataid=B005 580000002 7620004680 1 22BA9DCB886886CF82&dest=atp& fo 1/13/2004 trial court allowed Howell to state in the record his desire for a change of venue. { 23. The State called four witnesses to testify in response to Howell's motion: (1) Tom Cooper (Cooper), Chancery Clerk of Union County; (2) Danny Barnes (Barnes), Second District Supervisor of Union County; (3) Thomas Stanford (Stanford), retired Circuit Clerk of Union County; and (4) Norman Treadway (Treadway), Fourth District Supervisor of Union County. Each witness testified that Howell could receive a fair and impartial trial in Union County. { 24. Specifically, Cooper testified that in his capacity as chancery clerk he dealt with a wide assortment of people from all over Union County. Prior to becoming chancery clerk, Cooper had worked at the Union Grocery Company and served as Mayor of New Albany. Cooper stated that he considered himself to be fairly well informed as to what is happening in the county. Cooper testified that until he was contacted about testifying, it had been several months since he had heard anything about Howell's case. Cooper had not personally heard anybody threaten Howell, *718 express ill will towards Howell or prejudice towards his case. 4 25. Barnes testified that he had lived in Union County for thirty-six years and knew a lot of people in the county both inside and outside of the second district. Before becoming a supervisor, Barnes had served as a policeman, a deputy sheriff and a constable. As a member of the Board of Supervisors, Barnes testified that he had continuous dealings with people in the county and considered himself to be a well-informed resident of Union County. Barnes did not recall any media coverage concerning Howell's case since the days immediately following Pernell's death. Barnes did not believe that Pernell was well known within the county outside of New Albany. He had not heard any ill will expressed toward Howell by people in his district. § 26. On cross-examination, Barnes testified that after Pernell’s murder had first occurred, he had heard some comments within New Albany like "they shouldn't be given a trial." On redirect, Barnes testified that he believed that because of his law enforcement experience, people would be more likely to ask him about the case or talk to him about the case. However, people in his district had not talked to him about the case. No one had expressed to him any opinion about how this case should "turn out.” {| 27. Stanford testified, that as the former circuit clerk for Union County, he dealt with a wide assortment of people and continued to stay in contact with people all over the county. At the time of the incident, people were concerned about the case and there was news coverage. However, several days following Pernell's death, there was very littlke news coverage. Stanford had not seen any newspaper articles in the last month before trial or any recent news coverage. Stanford also testified about his experience as circuit clerk and that the jury pool is selected randomly from the county's list of registered voters. { 28. On cross-examination, Stanford testified that he had heard people express sympathy for both the Pernell and Howell families. He knew Howell's father, Reverend James Howell (Rev. Howell), and thought a lot of the family. Stanford heard that Howell was on probation for a drug-related offense when the incident occurred, but he could not testify as to whether people out in the county had heard about a drug conviction. {| 29. Treadway testified that he had been a supervisor in the eastern part of Union County since 1982. Initially there was some news coverage concerning Pernell's death, but Treadway had not read anything about it in the last two months before trial. Treadway heard very little mention of Pernell’s .../delivery.htm]?dataid=B0055800000027620004680 | 22BAIDCB886886CF82&dest=atp&fo 1/13/2004 _ Page 18 ot 73 Page 19 of 73 death in his part of the county. As supervisor for nineteen years, Treadway knew a lot of people in Union County. Treadway had not heard anyone express any ill will toward Howell or prejudgment of the case. {1} [2] | 30. The decision to grant a venue change rests in the sound discretion of the trial judge. Hoops v. State, 681 So.2d 521, 526 (Miss.1996) ; Johnson v. State, 476 So.2d 1195, 1208 (Miss.1985) ; Winters v. State, 473 So.2d 452, 457 (Miss.1985) ; Cabello v. State, 471 So.2d 332, 339 (Miss.1985) . This Court will not disturb the ruling of the trial court where the sound discretion of the trial judge in denying a change of venue was not abused. Burrell v. State, 613 So.2d 1186, 1190 (Miss.1993) ; Harris v. State, 537 So.2d 1325, 1328 (Miss.1989) ; White v. State, 495 So.2d 1346, 1349 (Miss.1986) . 4 31. In Davis v. State, 767 So.2d 986, 993 (Miss.2000) , this Court held that "[a] motion for change of venue ‘must be in *719 writing and supported by affidavits of two or more credible persons showing that the defendant cannot receive an impartial and fair trial in that particular county because of prejudgment of the case or grudge or ill will to the defendant in the mind of the public.’ " (citing Hoops, 681 So.2d at 526). {3} [4] 4 32. The right to a fair trial by an impartial jury is guaranteed by both the federal and state constitutions. Johnson, 476 So.2d at 1208 (citing U.S. Const. Amend. VI and Miss. Const. art. 3, § 26 ). "The accused has a right to a change of venue when it is doubtful that an impartial jury can be obtained." Davis, 767 So.2d at 993 (citing White, 495 So.2d at 1348). "[U]pon proper application, there-arises a presumption that such sentiment exists; and, the state then bears the burden of rebutting that presumption." Johnson, 476 So.2d at 1211. [5] 4 33. This Court enumerated "certain elements which, when present would serve as an indicator to the trial court as to when the presumption is irrebutable." White, 495 So.2d at 1349. The elements are as follows: (1) capital cases based on considerations of a heightened standard of review; (2) crowds threatening violence toward the accused; (3) an inordinate amount of media coverage, particularly in cases of (a) serious crimes against influential families; (b) serious crimes against public officials; (c) serial crimes; (d) crimes committed by a black defendant upon a white victim; (e) where there is an inexperienced trial counsel. Id.; Davis, 767 So.2d at 993-94; Baldwin vy. State, 732 So.2d 236, 241 (Miss.1999) ; Burrell, 613 So.2d at 1189-90 . {| 34. In the case sub judice, Howell filed a motion for a change of venue accompanied by seven affidavits. He claims that the "alleged murder [of Pernell] evokes great passion and prejudice in this community." Howell's motion contended that a jury empaneled in a case of an assaultive crime by blacks against whites in Union County, a largely rural, small county with a majority white population, would follow a “long tradition" of convicting "on almost any evidence to serve as a deterrent to blacks." Howell's motion stated that the people of a largely rural county such as Union County would "naturally have fears and apprehensions of murder cases." The trial court conducted a hearing on Howell's motion for change of venue. Howell testified at the change of venue hearing that he thought that he could not receive a fair tria! in Union County. _../delivery.htm|?dataid=B005580000002 7620004680 1 22BA9DCB886886CF82&dest=atp& fo 1/13/2004 Page 2U ol /3 “ 35. The State then had the burden of rebutting the presumption. See Jo/inson, 476 So.2d at 1211. In support of its position, the State called the four witnesses, Cooper, Barnes, Stanford and Treadway, to testify. None of the State's witnesses testified to having any knowledge of any grudge or ill will toward Howell, threats against Howell or prejudgments of the case. Within the last months prior to tnal, none of the State's witnesses had heard any publicity about the case. The State rested and Howell offered no additional evidence to support his position. The trial court withheld ruling on the change of venue motion until it could review a tape of a newscast and transcript of the newscast prepared by WTVA offered by the defense and the affidavits filed to support Howell's motion. In denying Howell's motion for change of venue, the trial court stated, *720 "having considered the affidavits and exhibits filed on behalf of the defendant and the testimony presented the [c]ourt finds that the State has overcome the presumption raised by the filing of the affidavits seeking change of venue..." [6] 4 36. Given the facts surrounding this issue, we find that Howell did not demonstrate an abuse of discretion by the trial court's denial of the motion for change of venue. There was no evidence offered of any threatened violence towards Howell, nor an inordinate amount of media coverage. The testimony of the State's witnesses demonstrated that Howell could receive a fair trial. Upon the conclusion of testimony from the State's witnesses, Howell offered no additional evidence to rebut the State's witnesses and support his motion. [7] 4 37. Finally, Howell did not present any evidence that he could not or did not receive a fair trial from twelve jurors who heard his case. Because a large number of the venire panel had read about the case in the newspaper, the trial judge questioned the entire panel to determine whether anyone had formed or expressed an opinion concerning the guilt or innocence of Howell based on anything they may have read, heard or seen in the media. The trial court informed the venire panel that if they had not already responded to the trial court's prior questions concerning media coverage, they must respond at that time if anything they had read, heard or seen wou'd affect their decision. The trial court informed the panel that their responses were being made under oath. No venire member responded that they had formed or expressed an opinion as to Howell's guilt. No venire member expressed that they had any personal knowledge of the case or had been pressured by anyone on how to vote. "The linchpin is whether the venire members stated that they could be fair and impartial jurors if chosen." Simon v. State, 688 So.2d 791, 803 (Miss.1997) . Based on the evidence in the record, we find that the tral court did not abuse its discretion in denying the motion for change of venue. Accordingly, this issue is without merit. II. Faiiure to Grant Howell County Funds For His Defense §{ 38. Howell contends that the trial court erred in denying funds for his defense to hire: (1) an investigator: (2) a jury consultant; (3) limited daily transcripts; (4) additional counsel; and (5) additional psychiatric evaluation. At tnal, Howell did not proceed as a pauper and accordingly he did not have court-appointed counsel. Howell's attorney was retained and chose to handle the case on a pro bono basis as a favor to Howell's father. A. Investigator [8] € 39. Terry Cox (Cox) conducted an investigation on Howell's behalf. Rev. Howell testified that Cox was employed and compensated from donations received from friends. Cox testified that his investigation was limited due to available funds. Howell's family was having trouble paying for his services. Cox had primarily been able to interview the State's witnesses, but he was not able to ... delivery. htm!?dataid=B005 580000002 7620004680 1 22BA9DCB886886CF82&dest=atp& fo 1/13/2004 eS Page 21 of 73 conduct any investigation into any possible mitigating issues. The trial court denied Howell's motion for funds for an investigator. The trial court stated that: The court is of the opinion that there has not been any showing that the defendant has been or is being denied a fair opportunity to present [its] defense based on what the court has before it. This issue is without merit. B. Jury Consultant 4 40. Howell further contends that the trial court erred in denying his request for *721 a jury consultant. Rev. Howell testified that he did not have the funds available to hire a jury consultant to help pick Howell's jury. As pastor of Bethlehem Baptist Church in Tippah County for approximately twenty years, Rev. Howell did not have much contact with people outside of his church. Furthermore, Howell's attorney asked the trial court to take notice that he was not from Union County; and therefore, he would not be familiar with a venire panel drawn from Union County. On cross- examination, Rev. Howell testified that he had a lot of relatives in Union County, grew up in New Albany and also graduated from a school in New Albany. Howell testified that besides the nine years that he lived in Starkville he had lived in New Albany until 1998. The trial court denied Howell's motion for a jury consultant. 4] 41. This Court has stated: [T]he Fifth Circuit has recently held that the right of an indigent to a court-appointed psychiatric expert does not extend to a right to a jury- selection expert. Moore v. Johnson, 225 F.3d 495, 503 (Sth Cir.2000) . There, the court noted that a "defendant cannot expect the state to provide him a most- sophisticated defense; rather, he is entitled to ‘access to the raw materials integral to the to the 105 S.Ct. 1087, 84 L.Ed.2d 53(1985) ). Grayson v. State, 806 So.2d 241, 255 (Miss.2001) (emphasis added). { 42. This Court has further analyzed an indigent's right to defense expenses to hire experts, stating: An indigent's right to defense expenses is "conditioned upon a showing that such expenses are needed needed to prepare and present an adequate defense." Ruffin v. State, 447 So.2d 113, 118 (Miss.1984) . Concrete reasons for requiring an expert must be provided by the accused. Hansen v. State, 592 So.2d 114, 125 (Miss.1991) . In determining whether a defendant was denied a fair trial because of failure to appoint or allow funds for an expert, some of the factors to consider are whether and to what degree the defendant had access to the State's experts, whether the defendant had the opportunity to cross-examine those experts, and lack of prejudice or incompetence of the State's experts. Fisher v. City of Eupora, 587 So.2d 878, 883 (Miss.1991) . We have also considered to what extent the State's case depends upon the State's expert, Zubhs v. State, 402 So.2d 830, 836 (Miss.1981) , and the risk of inaccuracy in resolving the issue for which the expert is requested. Johnson v. State, 529 So.2d 577, 592 (Miss. 1988) . Green v. State, 631 So.2d 167, 171-72 (Miss.1994) . [9] [10] 4 43. Since Howell did not proceed as an indigent or have the trial court declare him to be an indigent, there is no authority to require the State to fund his request for defense expenses. father's lack of contact with Union County required a jury consultant is unpersuasive. This issue is without merit. C. Limited Daily Transcripts .../delivery.htm!?dataid=B005580000002 7620004680 1 22BA9DCB886886CF82&dest=atp& fo 1/13/2004 Page 22 of 73 “ 44. Howell requested that the trial court make the county responsible for providing the defense with a copy of daily transcripts of the testimony of co- defendants, Ray and Lipsey, and the testimony of secondary witnesses, Shaw, Powell and Rice. The tral court stated: The Court is not going to order that the county pay for it [daily transcripts]. *722 But if you want to make some arrangements with Mrs. Fair [the court reporter] that is between you and your client and Mrs. Fair. {11} § 45. Howell was not precluded by the trial court from obtaining the daily transcripts nor did Howcll demonstrate that he had been denied access to daily transcripts by the court reporter. Furthermore, Howell offers this Court no authority which requires the State to furnish a criminal defendant with daily transcripts. We find no manifest injustice or any abuse of discretion in the tral court's denial of Howell's request for daily transcripts. See Ruffin v. State, 481 So.2d 312, 314-15 (Miss.1985) (trial court did not abuse its discretion in denying an indigent defendant with a transcript of the prior tral which ended in mistrial). D. Additional Counsel 4 46. Howell also requested that the State furnish additional counsel to assist Howell's retained counsel in handling his case. Before denying Howell's request for additional counsel, the trial court requested supporting authority. Howell offered no authority to the trial court, nor does Howell offer any authority on appeal. The trial court ruled: I think you [defense counsel] are very good but, I don't know of any authority this court would have to appoint somebody. So I'm going to deny your motion. { 47. Furthermore, the record reflects that a second attorney, Jak Smith, assisted in Howell's case at various stages: voir dire, jury selection, arguments involving evidentiary matters, questioning of witness, arguments on jury instructions and closing arguments. Jak Smith is also listed in Howell's certificate of interested persons as attorney for the defendant/appellant. {12} [13] § 48. We find that the tnal court did not err by refusing to furnish Howell a court-appointed attorney to assist his retained counsel. The constitution does not require the appointment of two attorneys in a case where the death penalty is involved. In Bell v. Watkins, 692 F.2d 999, 1009 (Sth Cir.1982) . the court stated that "[a]lthough Mississippi courts may customarily appoint two lawyers in a Capital case, the constitution dictates no such requirement." This assignment of error is without menit. E. Additional Psychiatric Examination §{ 49. Finally, Howell claims that the tnal court erred in not allowing funding for additional psychiatric examination. Howell had already received, by agreement between the parties, a psychiatric examination from Dr. Louis Masseur (Dr. Masseur). Howell relies on Dr. Masseur’s comment in his notes that Howell suffered slight distortion of reality as to the facts. Howell introduced a copy of Dr. Masseur's handwritten notes indicating what he would charge for an additional] hour on the mitigating factors. The tnal court ruled that based on what it had seen and heard, further funding for additional psychiatric examination was not warranted. * 50. Howell cites 4ke v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) , in support of his position. In Ake the United States Supreme Court determined that “when a defendant ... delivery.htm]?dataid=B005 580000002 7620004680 | 22BAIDCB886886CF82&dest=atp& fo 1/13/2004 Page 23 of 73 demonstrates to the trial judge that his sanity at the time of the offenses to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation and presentation of the defense." 105 S.Ct. at 1096. *723 4 51. We find that Howell's reliance on Ake is misplaced as he did not raise an insanity defense at trial. See Cole v. State, 666 So.2d 767, 781 (Miss.1995) . In Cole, the defendant's post-conviction relief appeal from the affirmance of his conviction and death sentence relied upon Ake contending that he had been deprived due process and eewal protection, as well as, his Fifth, Sixth and Eighth Amendment nghts. This Court determined that since sanity was not an issue, Cole was not entitled to additional mental examination. 4 52. This Court has considered a similar argument raised b, an indigent defendant and held: A defendant is not entitled to a psychological expert where he has not raised insanity as a defense or where the State does not plan to submit psychological evidence against the defendant. Ladner v. State, State, 584 So.2d 743, 757 (Miss.1991) ; Nixon v. State, 533 So.2d 1078, 1096 (Miss.1987) . As we have stated, "[w]here a defendant offers no more ‘than undeveloped assertions that the requested assistance would be beneficial,’ no trial court is under an obligation to provide him with fishing equ »ment." Griffin v. State, 557 So.2d 542, 550 (Miss.1990) (quoting Caldwell v. Mississippi, 472 U.S. 320, 323 n. 1, 105 S.Ct. 2633, 2637 n. 1, 86 L.Ed.2d 231 (1985) ). Bishop did not raise an insanity defense; he offered no facts which would show that there was a need to develop mitigating evidence based on psychological problems; and he underwent a thorough psychological evaluation performed at the State Hospital which produced not mitigating evidence. We therefore find, that Bishop was not entitled to a psychological expert for the purpose of developing mitigating evidence. Bishop v. State, 812 So.2d 934, 939-40 (Miss.2002) . [14] 4 53. As Howell did not proceed as an indigent or raise insanity as a defense, we find that the trial court did not err in denying his request for additional psychiatric examinations. This assignment of error is without merit. Ill. Jury Panel Selection {| 54. Howell raises two arguments on appeal as to the selection process involved in composing the jury wheel used to draw Howell's prospective jurors. The circuit clerk testified that at the time of Howell's jury draw, the jury wheel consisted of 1,195 prospective jurors. The jury wheel had originally consisted of the names of 3,000 qualified electors selected from the roughly 16,200 qualified electors in Union County. Each time a jury panel was selected, the circuit clerk removed those names from the wheel and they were not available for selection at the next draw. Howell contends that the trial court erred by not quashing the jury panel because he was denied a jury from a "fair cross section of the community." However, Howell admits that the circuit clerk followed the procedure dictated in Miss.Code Ann. §§ 13-5-10 & -12 (Rev.2002). Therefore, we find that the circuit clerk clearly complied with the dictates of Miss.Code Ann. §§ 13-5-10 and 13-5-12 . This issue is without merit. 4 55. Howell next contends that prohibiting the selection of jurors under the age of 21 years old pursuant to Miss.Code Ann. § 13-5-1 (Rev.2002) constitutes intentional discrimination against persons who are 18 to 20 years old. .../delivery.htm!?dataid=B005 580000002 7620004680 | 22BA9DCB886886CF82&dest=atp& fo 1/13/2004 Page 24 of 73 * 56. This Court has repeatedly rejected this argument. This Court has previously considered the exclusion of persons under age 21 *724 from jury service and has consistently held that the exclusion does not violate the state or federal constitution. 7urner v. State, 373 So.2d 657, 666 (Miss.1990) , rev'd on other grounds; /rving v. State, 498 So.2d 305, 319 (Miss. 1986) . cert. demied, 481 U.S. 1042, 107 S.Ct. 1986, 95 L.Ed.2d 826 (1987) ; Fermo v. State, 370 So.2d 930, 934 (Miss.1979) ; Jovee v. State, 327 So.2d 255, 261 (Miss.1976) ; Johnson v. State, 260 So.2d 436, 437 (Miss.1972) . Milano v. State, 790 So.2d 179, 188 (Miss.2001) . See Jordan yv. State, 786 So.2d 987, 1024 (Miss.2001) . Therefore, we find that this argument is also without merit. The circuit clerk properly followed the statutes of this State in drawing and selecting Howell's jury IV. Batson { 57. Howell contends that the trial court erred by allowing the State to exercise its peremptory challenges on two black members of the venire, namely Juror 34 (High) and Juror 68 (Wade). The record reflects that the State exercised a total of 12 peremptory challenges, 11 on the jury panel and | on the alternates. The jury was selected, and the trial court recessed for lunch. { 58. Howell did not raise a contemporaneous objection to the State's use of its two peremptory challenges as to Juror 34 and 68. However, the record indicates that, prior to resuming court and empaneling the jury, Howell's counsel requested “that the State provide race neutral reasons for disqualifications of two jurors (Jurors 34 and Juror 68) under Batson. “ The record reflects the following exchange occurred: State: Your Honor. | don't know if they made out a prima facia case of racial discrimination. Nevertheless without waiving our argument. | would state as our reason to first of all there are only three Afncan American remaining on the entire panel. I exercised 12 strikes, two of which were of Afncan American. First strike that I exercised was on juror number 34. He was a black male Lavongia High, [J]unior. Mr. High has had several arrests here actually on his jury questionnaire he has had a recent public drunk and he is the Highs and the Fosters are related. He didn't state anything about being related. That is information that I have gathered from some of the law enforcement. And the main reason is when | left here two weeks ago from the 60 motions that we went through some woman ran into me. It happened in front of Mr. High's house. Mr. High's brother came out and he was first one out there. Mr. High was out there and | believe they saw the wreck but when I sent the officers over there the brother stayed outside and you can see him inside the screen and he wouldn't _ tell them that he saw it. So that is our reasons for having striken him. The Court: Let me hear you on your next one. Yhe other one was. The Court: Number 68. State: Anthony Wade. Anthony Wade ts an African American. Who put down on his jury questionnaire that he had never been arrested for a cme when | have right here warrants that were issued for receiving stolen property out of Lee County where he was arrested. Yes, here is a copy of his arrest record of Anthony Wade in Lee County for receiving stolen property. There were some guns in that case arose out of stolen here in Union County that wound up in the possession of *725 Anthony Wade and he did not state that he had been arrested. And I have the arrest record here available. You can make 11 a part of this record so therefore we believe that he was not forth coming in his jury questionnaire and that his criminal activity would prevent him from being a fair and impartial juror. And that was our main reason for striking him but also I assume defense counsel would have striken him because he testified that if the county coroner Mark Golden testified he would follow his testumony. The Court: All mght. The court is satisfied of the race neutral reasons even though | don't think there .../delivery.hum!?dataid=B0055800000027620004680 1 22BA9DCB886886CF82&dest=atp& fo 1/13/2004 . Page 25 ot 73 has been any pattern of racial discrimination. But | think it would be sufficient. Anything else before we go now. [15] [16] 4 59. A reversal will only occur if the factual findings of the trial judge appear to be "clearly erroneous or against the overwhelming weight of the evidence." Tanner v. State, 764 So.2d 385, 393 (Miss.2000) (citing Stewart v. State, 662 So.2d 552, 558 (Miss.1995) ); Davis v. State, 551 So.2d 165, 171 (Miss.1989) . "On appellate review, the trial court's determinations under Batson_v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) , are accorded great deference because they are based, in a large part, on credibility." Coleman v. State, 697 So.2d 777, 785 (Miss.1997) (citing Lockett v. State, 517 So.2d 1346, 1349 (Miss.1987) ). The term “great deference” has been defined in the Batson context as meaning an insulation from appellate reversal any trial findings which are not clearly erroneous. Lockett v. State, 517 So.2d at 1349. [17] 4 60. In Batson, the United States Supreme Court held that a peremptory challenge cannot be used to exclude venire-persons from jury service based on their race. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) . A peremptory challenge based on race constitutes a violation of equal protection. /d. at 98, 106 S.Ct. 1712. [18] 4 61. The necessary steps to resolve a peremptory challenge based upon Batson are cited in Stewart v. State, 662 So.2d 552, 557-58 (Miss.1995) , as follows: 1. The party objecting to the peremptory challenge must first make a prima facie showing that race was the criteria for the exercise of the peremptory challenge. 2. If this initial showing is successful, the party desiring to exercise the chalienge has the burden to offer a race-neutral explanation for striking the potential juror. 3. The trial court must then determine whether the objecting party has met their burden to prove there has been purposeful discrimination in the exercise of peremptory challenges. To establish the first prong, a prima facie case under Batson, the objecting party must show (1) that he/she is a member of a "cognizable racial group,” (2) the prosecutor has exercised peremptory challenges toward the elimination of prospective jurors of his race, and (3) the facts and circumstances raised an inference that the prosecutor used his peremptory challenges for the purpose of striking minorities. Conerly v. State, 544 So.2d 1370, 1376-77 (Miss.1989) . [19] [20] 4 62. In the case sub judice, a review of the record demonstrates that the State provided race neutral reasons for striking juror 34 and 68. Great deference is afforded to a trial court's ruling. Therefore, this issue is without merit. *726 V. Individual Sequestered Voir Dire { 63. Howell contends the trial court erred in denying his request to conduct individual sequestered voir dire of prospective jury members who had read articles or seen information about the case on telev.sion. Howell wanted to question these prospective jurors as to their knowledge of any facts concerning the "alleged" robbery and Howell's previous drug conviction that appeared in newspaper articles. The trial court concluded that Howell's counsel had questioned the prospective jurors 13, 85, 88, 106, 126, 127, 146 and 153 at issue, who indicated they had heard about the case. 4 64. Howell's counsel had generally questioned them as to whether they would have to hear strong evidence to contradict what they had seen or heard. The trial court took a recess. In chambers, Howell's counsel requested individual sequestered voir dire. The trial court ruled that Howell's counsel could ask more narrow questions in general voir dire in order to elicit the information. .../delivery.html?dataid=B005 580000002 7620004680 | 22BAIDCB886886CF 82&dest=atp& fo 1/13/2004 Page 20 ot 73 1 65. Furthermore, each juror had completed juror questionnaires which asked questions to determine if they had ever heard of Marlon Howell or his family, Adam Ray or his family; and Curtis Lipsey or his family. The questionnaires asked the jurors to "[p]lease explain what you know about" each of these individuals. Therefore, each juror had been individually questioned as to any prior knowledge of Howell. {| 66. More importantly, the record further reflects that prospective jurors 13, 85, 88, 106, 126, 127, 146 and 153 in question did not end up serving on the jury. Jurors 13, 88 and 126 were excused for cause at Howell's request. At the time of the request for individual sequestered voir dire, juror 106 had already been excused from the panel. After the request, the parties agreed to strike juror 85. Jun selection did not reach jurors 127, 146 and 153. They did not serve on the jury or as alternates, and they were never tendered for possible service on the jury. { 67. This Court has held that voir dire "is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion." Ballenger v. State, 667 So.2d 1242, 1250 (Miss.1995) (citing Morgan vy. Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222, 2230, 119 L.Ed.2d 492 (1992) , citing Ristaino v. Ross, 424 U.S. 589, 594, 96 S.Ct. 1017, 1020, 47 L.Ed.2d 258 (1976) ) (quoting Connors v. United States, 158 U.S. 408, 413, 15 S.Ct. 951, 953, 39 L.Ed. 1033 (1895) ). See also Foster v. State, 639 So.2d 1263, 1274 (Miss.1994) . This Court has stated that the trial court should take a substantial role in conducting Witherspoon voir dire of the venire panel in capital cases. Ballenger v. State, 667 So.2d at 1250; see Hansen v. State, 592 So.2d at 128-29; Lockett v. State, 517 So.2d at 1335. § 68. Rule 3.05 of the Uniform Circuit and County Court Rules addresses voir dire examination of jurors: In the voir dire examination of jurors, the attorney will question the entire venire only on matters not inquired into by the court. Individual jurors may be examined only when proper to inquire as to answers given or for other good cause allowed by the court. No hypothetical questions requiring any juror to pledge a particular verdict will be asked. Attorneys will not offer an opinion on the law. The court may set a reasonable time limit for voir dire. {2 1 { 69. "A jury selection procedure which gives the defendant ‘a fair opportunity to ask questions of individual jurors which may enable the defendant to determine his right to challenge that juror’ is proper.” *727 McLemore v. State, 669 So.2d 19, 25 (Miss.1996) (quoting Peters v. State, 314 So.2d 724, 728 (Miss.1975) ). {22} { 70. "The tnal court has broad discretion in passing upon the extent and propriety of questions addressed to prospective jurors.” Sevens v. State, 806 So.2d 1051, 1062 (Miss.2001) . See also McGulberry vy. State, 741 So.2d 894, 912 (Miss.1999) ; Davis v. State, 684 So.2d 643, 651-52 (Miss.1996) ; Jones v. State, 381 So.2d 983, 990 (Miss.1980) . [23] 4 71. We find nothing in the record that supports Howell's contention that the trial court erred by denying his request to conduct individual sequestered voir dire. None of the prospective jurors whom Howell sought to individually voir dire actually served on the jury that was seated. Finally, Howell presents no evidence of any ‘arm or prejudice which resulted because of the denial for individual voir dire. See Stevens, 806 So.2d at 1054. This issue is without merit. VL. Voir Dire Examination ... delivery htm]? dataid=B005 580000002 7620004680 1 22BA9IDCB886886C F82&dest=atp& fo 1/13/2004 Page 27 of 73 {24} 4 72. During voir dire, Howell sought to question jurors as to whether or not they had ever seen or heard of police officers "puffing up" or giving untrue testimony about the facts of a case. The State objected to this line of questioning which was sustained by the trial court. The "puffed testimony” question was proposed to Juror 153 (Whiteside). The question posed by the defense did not involve the facts of the case sub judice. [25] [26] 4 73. Next, Howell questioned Juror 98 (Nobles) about his feelings against the death penalty and the type of cases in which he might vote for the death penalty. The State objected to the question, and it was sustained by the trial court. Howell finally questioned the jurors concerning whether they believed mercy should be a factor in considering a death penalty sentence. The State objected to this question, and the objection was sustained by the trial court. 4 74. The only authority provided by Howell in support of his argument, that the trial court erred in restricting voir dire of the jury panel, is the general concept that the trial court has the responsibility to control the voir dire process. Howell cites Mack v. State, 650 So.2d 1289, 1304 (Miss.1995) , which states, "[t]rial courts have a responsibility to control voir dire but in doing so they must take care not to hinder a fuil exploration of a juror’s predisposition by hypothetical or otherwise." (citing Dennis v. United States, 339 U.S. 162, 171, 172, 70 S.Ct. 519, 523-524, 94 L.Ed. 734 (1950) ). [27] [28] [29] 4 75. Voir dire "is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion.” Ballenger v. State, 667 So.2d at 1250-51 (citing Morgan v. Illinois, 504 U.S. at 729, 112 S.Ct. 2222). See also Foster v. State, 639 So.2d at 1274. "The standard of review in examining the conduct of voir dire is abuse of discretion." Jackson v. State, 791 So.2d 830, 835 (Miss.2001) . Further, “[aJbuse of discretion will only be found where a defendant shows clear prejudice resulting from undue lack of constraint on the prosecution or undue constraint of the defense.” /d. at 835-36 (citing Davis v. State, 684 So.2d at 652). "A jury selection procedure which gives the defendant ‘a fair opportunity to ask questions of individual jurors which nay enable the defendant to determine his right to challenge that juror’ is proper.” Stevens, 806 So.2d at 1062 . 4 76. It is evident from the record that the trial judge did not abuse his discretion in sustaining the State's objection to Howell's three proposed questions. More importantly, however, is the fact that Howell *728 was not harmed in any way by the trial court's rulings. None of the prospective jurors to whom the first two questions were directed actually se1 ved on the jury. [FN3]} FN3. Neither of the jurors whom Howell sought to question actually served on the jury. As stated previously, the jury selection never reached Juror 153 (Whiteside) so he was never tendered to the defense. Additionally, Juror 98 (Nobles) was tendered as an alternate and struck by the defense. Supreme Court has held that giving a jury instruction allowing consideration of sympathy or mercy could induce a jury to base its sentencing decision upon emotion, whim, and caprice instead of upon the evidence presented at trial." Goodin, 787 So.2d at 657. Accordingly, we find that since this Court has held that the jury is not entitled to be instructed to give mercy, then there is no error in the tnal court's decision to disallow questioning prospective jurors on voir dire as whether they would provide mercy in sentencing. _../delivery.html?dataid=B005 580000002 76200046801 22BAIDCB886886CF82&dest=atp& fo |/1 3/2004 Page 28 ot 73 * 78. The record does not indicate that the trial court abused its discretion or that Howell was denied a fair opportunity to conduct voir dire on any relevant issue. As such, Howell's arguments on this point are clearly without merit. VIL. Identification of Howell and Illegal Arrest * 79. Howell contends that Rice's eyewitness identification should have been suppressed as the lineup Was suggestive. The record reflects that a pretrial hearing was conducted on Howell's motion to suppress the identification testimony. § 80. Rice testified that on the morning in question, he was in his living room watching television while he was getting ready for work. He heard a car horn, went to the window and pulled back the blinds. Rice had described the lighting conditions as "[p]re-dawn." Rice talked to Officer Kent at the scene that moming. He had identified the shooter as wearing a plaid flannel jacket that was open with a light colored t-shirt underneath and a pair of blue jeans. He did not notice the shooter's shoes. § 81. Later that morning, at the police station, Rice gave a statement to Officer Kent and Chief Grisham. Rice stated that the shooter was wearing a red and black plaid flannel shirt. Howell contends that Rice misidentified him as wearing a long sleeve plaid red and black shirt as opposed to the green short sleeve shirt described by other witnesses. Rice told the police that the shooter was a black male. Rice left the police station and returned later that day to participate in a lineup upon being informed that three people had been arrested. § 82. According to Rice, none of the officers gave a description of the defendant or made any Suggestions as to his identity. Rice testified that there was nothing about the lineup that was suggestive. Rice described the lineup as follows: I was in the small office with a desk and couple of chairs and I was kind of sitting on the edge of the desk squatting against it. There was a small window, yay high, yay wide and they told me that the men would be brought out one at a time. Take my time and if I can identify the gentleman that I saw the morning prior to let them know. When they came out they came out, said they would *729 phase (face) me. Turn sideways and leave and then they would bring the next one out. They brought a total of six. But I didn't need to see all six them. When | saw the third person of the line up which was Mr. Howell, | identified him at that time. When Rice proceeded to view the six people in the lineup, he identified Howell as the shooter. § 83. Chief Grisham testified that the lineup was composed of six, young, black males, who were inmates. They were selected by a computer program to help choose similar size, race, age, and things of that nature. No one pressured Rice to identify Howell. Rice was not shown any photographs prior to the lineup. § 84. Chief Grisham's testimony at trial reflected that the other five subjects in the lineup were Dominique Cannon, 6', 130 pounds: Robert Antron Carr, 5'10", 135 pounds; Romaro Dixon, 6', 145 pounds: Brad Marion. 6'. 160 pounds; Robert Harris, 6'2", 185 pounds. Howell's arrest slieet reflects him to be 6'2", 175 pounds. However, Chief Grisham did place in the case file a photographic display of the peuple in the lineup. The picture was taken in an adjacent room, prior to the time the participants went into the lineup room. [wo or three of the individuals in the lineup were as tall as Howell. Chief Gnsham did not observe that Howell was the only one wearing tennis shoes. * 85. The picture showed six young. black men, all of whom are wearing street clothes. The feet of ... delivery.htm!?dataid=B005 580000002 7620004680 | 22BAIDCB886886C F82&dest=atp& fo 1/13/2004 POT RP Page 29 ot 73 four of the six people in the lineup appear in the photograph. Of those four, Howell was the only one wearing sneakers. The other three men in the picture wore socks and sandals. Howell claims that the height, weight, skin tone and hair of the other people in the lineup were different than his appearance. 4 86. Rice specifically testified that he was not able to see the feet of the people in the lineup. The window that he was looking through "was up off the floor" and he was looking at people's faces. Rice testified that he did not pay attention to what they were wearing. 4 87. Howell was represented by a local attorney, Regan Russell (Russell), who was present at the lineup. Officer Kent was also present in the viewing room with Rice and Russell. Chief Grisham was not in the viewing room at the time the lineup was conducted. q 88. After hearing this evidence and related argument, the trial court denied the motion to suppress, concluding that the lineup was proper and not tainted or suggestive. 4 89. In White v. State, 507 So.2d 98, 99-100 (Miss.1987) , this Court in upholding a lineup where the defendant was the only person with plaited hair, stated that: In York v. State, 413 So.2d 1372 (Miss.1982) , this Court reviewed United States Supreme Court decisions addressing due process violations predicated on impermissibly suggestive lineups. The Court said: An impermissibly suggestive pretrial identification does not preclude in- court identification by an eyewitness who viewed the suspect at the procedure, unless: (1) from the totality of the circumstances surrounding it (2) the identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Even if testimony is proffered of the out-of-court identification itself, the same standard exists as to the above, with the omission of the wora "irreparable." *730 In determining whether these standards are fulfilled, Neil v. Biggers states the following may be considered: ... the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. 409 U.S. at 199, 93 S.Ct. at 382 . In the final analysis, under Manson v. Brathwaite [ , 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977)], "reliability is the linchpin in determining the admissibility ...” York, 413 So.2d at 1383. See Foster v. State, 493 So.2d 1304 (Miss.1986) (Foster was the only member of the lineup wearing a distinctive fishing hat, and the Court rejected Foster's contention that the lineup was impermissibly suggestive); Jones v. State, 504 So.2d 1196 (Miss.1987) . (Jones was the only person in a photograph display wearing a cap similar to the one worn by the rapist, and the display was not so suggestive as to be impermissible). 4 90. In Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L Ed.2d 401 (1972) , the U.S. Supreme Court set out five factors to be considered in determining whether a lineup is impermissibly suggestive: 1. The opportunity of the witness to view the criminal at the time of the cnme. 2. The witness's degree of attention. 3. The accuracy of the witness's prior description of the criminal. 4. The level of certainty demonstrated by the witness at the confrontation. 5. Length of time between the crime and the confrontation. .../delivery.html?dataid=B005 580000002 7620004680 1 22BA9DCB886886CF82&dest=atp& fo 1/13/2004 Page 30 ot 73 See White, 507 So.2d at 100. [30] 4 91. When the lineup ts considered in light of the Biggers factors, it is evident that: (1) Rice's view of the shooter was brief {| FN4] ; but, (2) he was paying very close attention, once he »ealized that a shooting had taken place; (3) he accurately described Howell as a young, clean cut, black male; (4) he was absolutely certain of Howell's identity when he saw him in the lineup; and (5) the lineup took place a little over 24 hours after the shooting. See Biggers, 409 U.S. at 199, 93 S.Ct. 375. FN4. Rice testified that it was “pre dawn,” but he could see. Both vehicles had their lights on. The lights of the rear vehicle were shining on the shooter. The neighborhood was "well lit." There was a streetlamp right across the street from Rice's house and one at the end of the block. Rice's neighbor had a porch light on. Rice's view was unobstructed. [31] € 92. Howell was represented by counsel throughout the lineup procedure. Furthermore, the jury was instructed on how to consider eyewitness identification. [FN5] *731 Under the totality of the circumstances, there is no likelihood whatsoever, that Rice's identification was not reliable. See Biggers, 409 U.S. at 199, 116, 93 S.Ct. at 382 ; York, 413 So.2d at 1383. Furthermore, this Court has repeatedly held that “the jury is the final arbiter of a witness's credibility." See Williams v. State, 794 So.2d 1019, 1028 (Miss.2001) ; Morgan v. State, 681 So.2d 82, 93 (Miss.1996) . The jury alone determines the weight and worth of any conflicting testimony. Hicks v. State, 812 So.2d 179, 194 (Miss.2002) . Rice's credibility as a witness at trial rests with the jury. Therefore, we find that this issue 1s without ment. FNS. Instruction S-8 provided, in pertinent part: Identification testimony is an expression of the belief or impression by the witness. You must judge its value and reliability from the totality of the circumstances surrounding the crime and the subsequent identification. In appraising identification testimony of a witness, you should consider the following: 1. Did the witness have an adequate opportunity to observe the offender? 2. Did the witness observe the offender with an adequate degree of attention? 3. Did the witness provide an accurate description of the offender after the crime? 4. How certain is the witness of the identification? 5. How much time passed between the crime and the identification? If, after examining all of the testimony and the evidence, you have a reasonable doubt that Marlon Latodd Howell was the person who committed the crime, then you must find Marlon Latodd Howell Is not guilty. The defense indicated that this was a “good” instruction. The jury's verdict demonstrates how it resolved any issues about the identification. 4, 93. Additionally. Howell contends that the identification was the result of an alleged illegal arrest. Howell alleges that the Field Officer's Warrant or “blue warrant" under which he was arrested was invalid. § 94. Probation and Parole Officer Nance testified that the New Albany Police Department called him on the evening of May 15. 2000, to inquire whether the Mississippi Department of Corrections (MDOC) had a picture of Howell. Nance checked Howell's file and discovered that Probation and Parole Officer Mullins had entered a warrant for Howell's arrest into the computer, but Officer Mullins had not signed the warrant. Officer Nance telephoned Officer Mullins, and the record reflects that the following transpired: .../delivery.htm!dataid=B005 580000002 7620004680 | 22BAIDCB886886CF82&dest=atp& fo 1/13/2004 Page 31 of 73 I asked [Mullins] if we could go get the warrant, asked him if he had sent a copy of it to the Sheriff's department which he had not at that time to the best of my knowledge and asked if we could go ahead and get the warrant and serve it on him and go ahead and place him under arrest of the D O C for the violation that he had listed on his warrant. He said that will be fine, go ahead and get it. Chad Glasson, New Albany police officer and | went to the Tippah County Officer, looked in the file, found the warrant that Mr. Mullins had typed up. He had not signed the warrant but he had issued the warrant. | turned around and copied the warrant exactly as he had it. Put my name down there as the field officer and signed it. That way we would have truly valid warrant. That is the only reason that I issued the warrant instead of Chuck Mullins because he had not signed the warrant. 4 95. Officer Nance further explained that: The administrative authority we have as field officers have t right to issue a field officer[']s warrant for a violation of probation, terms and conditions. We ar. to get a judge[']s warrant as soon as possible after the field officers warrant is issued. The reason that | signed it instead of Chuck [Mullins] is because he had not signed the field officer{']s warrant hisself. He had issued it, typed in his name but just had not signed it. 4 96. The warrant charged that Howell had violated his probation by "failure to avoid injurious or vicious habits, fail{ure] to pay supervision fees, fail [ure] to pay for positive urine screen fail[ure] to pay court ordered monies." Shortly after the warrant was issued, Howell was arrested and transported to the New Albany Police Department. The arrest warrant from Justice *732 Court Judge Ronnie Rakestraw was obtained around noon on May 16, 2000. 4 97. The trial court ruled "that the arrest was in fact proper and that there wasn't anything illegal about it." Howell contends that Officer Nance did not have authority to sign the warrant which rendered an illegal arrest. Howell alleges that Officer Nance had no personal knowledge of the circumstances in the warrant. . [32] 4 98. Officer Nance clearly had the legal authority to issue the warrant. The applicable statute provides in pertinent part as follows: Any probation and parole officer may arrest a probationer without a warrant, or may deputize any other officer with power of arrest to do so by giving him a written statement setting forth that the probationer has, in the judgment of the probation and parole officer, violated the conditions of probation. Such written statement delivered with the probationer by the arresting officer to the official in charge of a county jail or other place of detention shall be sufficient warrant for the detention of the probationer. Miss.Code Ann. § 47-7-37 (Rev.2000). Accordingly, we find that this issue is wholly without menit. VIII. Howell's Statement 4] 99. As a continuation of issue VII, Howell contends that the statement he gave to the police on May 15, 2000, at approximately 9:30 p.m. should have been suppressed. The record reflects that Howell was read a waiver-of-rights form at 9:29 p.m., and he signed the waiver at 9:31 p.m. Howell argues that since his arrest was illegal, because Officer Nance signed the “blue warrant,” the statement should have been suppressed. Finding that the arrest was proper, the trial court denied Howell's raotion to suppress. 4 100. As issue VII concluded that Howell's arrest was in fact valid, this issue is without merit. Therefore, we find that the trial court did not err in denying Howell's motion to suppress his .../delivery.htm!?dataid=B005 580000002 7620004680 | 22BA9DCB886886CF82&dest=atp& fo 1/13/2004 Page 32 of 73 statement given to the police. IX. Howell's Stat [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0016%3A2. Public record. Not legal advice.