Appendix — Jordan v. Mississippi

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Office Supreme Court, Us. |

FILED

MAY 13 1985

No. ALEXANDER L STEVAS,

84-1783 '

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

RICHARD GERALD JORDAN,

Petitioner,

STATE OF MISSISSIPPI,

Respondent.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF MISSISSIPPI

TIMOTHY N. BLACK

Roy T. ENGLERT, JR.

PHILIP D. ANKER

WILMER, CUTLER & PICKERING

1666 K Street, N.W.

Washington, D.C. 20006

EARL B. STEGALL (202) 872-6000

Post Office Box 1542 Counsel for Petitioner

Gulfport, MS 39501

Of Counsel:

JOSEPH P. HUDSON

LAWYER AND HUDSON

Post Office Box 908

Gulfport, MS 39501

May 13, 1985 “Counsel of Record

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON. D.C. 20001

ee ee ee

Set

INDEX TO APPENDIX

Opinion of the Supreme Court of Mississippi in Richard

Gerald Jordun v. State of Mississippi, 464 So. 2d 475

SI FI UD side vce bette ercndacsdoescanidudadeueasbuvtabeeousice'ee

Judgment of the Supreme Court of Mississippi in Rich-

ard Gerald Jordan v. State of Mississippi, No. 55,493

I I IN Sle nce hg Necacep ecaioenescopseesten

Order of the Supreme Court of Mississippi Staying

Execution in Richard Gerald Jordan v. State of Mis-

sissippi, No. 55,493 (March 4, 1985)

Order of the Supreme Court of Mississippi Denying

Rehearing in Richard Gerald Jordan v. State of Mis-

sissippi, No. 55,493 (March 138, 1985)

Pages 61-63 of Transcript of Trial in Circuit Court of

Harrison County, Mississippi, in State of Mississippi

v. Richard Gerald Jordan, No. 18,807 (Motion to Pre-

clude Consideration of Miss. Code Ann. § 99-19-101

tpg. RP Be, Ue ae 2 eee ee

Pages 856-69 of Transcript of Trial in Circuit Court of

Harrison County, Mississippi, in State of Missis-

sippi v. Richard Gerald Jordan, No. 18,807 (Testi-

mony of Officer Lucius Brown, April 28, 1983)

Pages 922-23 of Transcript of Trial in Circuit Court of

Harrison County, Mississippi, in State of Mississippi

v. Richard Gerald Jordan, No. 18,807 (Proffer of

Testimony of Honorable Rhett Russell, April 28,

a a ab pecnaabedinaians

Pages 1184-86 of Transcript of Trial in Circuit Court

of Harrison County, Mississippi, in State of Missis-

sippi v. Richard Gerald Jordan, No. 18,807 (Sentenc-

ing Instruction No. S-1 (Given), April 29, 1983) __...

Pages 1218-19, 1221 of Transcript of Trial in Circuit

Court of Harrison County, Mississippi, in State of

Mississippi v. Richard Gerald Jordan, No. 18,807

(Proposed Sentencing Instructions D-32, D-33, and

D-35 (Refused), April 29, 1983)

Page

34a

35a

36a

37a

54a

INDEX TO APPENDIX—Continued

Portions of pages 1078-87 of Transcript of Trial in Cir-

cuit Court of Harrison County, Mississippi, in State

of Mississippi v. Richard Gerald Jordan, No. 18,807

(Approval of Instructions, April 29, 1983) -...............

Pages 1090-108 of Transcript of Trial in Circuit Court

of Harrison County, Mississippi, in State of Missis-

sippi v. Richard Gerald Jordan, No. 18,807 (Closing

Argument by State and Motion for Mistrial, April 29,

[\ | Sa EmmasmtnirnnOrmm See ae Meh es

Pages 1157-58 of Transcript of Trial in Circuit Court

of Harrison County, Mississippi, in State of Missis-

sippi v. Richard Gerald Jordan, No. 18,807 (Motion

for Mimbrial, Asperll Tay, TOD sicscccciicirnciinsrsnessecnstaattcern

Portions of pages 1236-43 of Transcript of Trial in Cir-

cuit Court of Harrison County, Mississippi, in State

of Mississippi v. Richard Gerald Jordan, No. 18,807

(Motion for New Trial and Order Overruling Mo-

tion for New Trial, May 13, 1983) .................-.............

Portions of Brief of Appellant, Richard Gerald Jordan

v. State of Mississippi, No. 55,493 (Miss. June 14,

|: | | a nuDn memenuusenmerce es ETT ee Re Sh

Page

6la

63a

78a

79a

SUPREME COURT OF MISSISSIPPI

No. 55,493

RICHARD GERALD JORDAN

Vv.

STATE OF MISSISSIPPI

Jan. 30, 1985

EN BANC.

ROY NOBLE LEE, Presiding Justice, for the Court:

This case involves the third time that Richard Gerald

Jordan has been sentenced to death for the capital :nur-

der of Mrs. Edwina Marter. On July 21, 1976, he was

found guilty of capital murder and was given che death

penalty for the first time. That conviction was prior to

procedures laid down in Jackson v. State, 337 So.2d

1242 (Miss.1976), providing for bifurcated trials in

capital murder cases. The lower court granted a motion

for new trial under the precedents established in Jackson

and Jordan: was tried, convicted and sentenced to death

a second time. The conviction and sentence were affirmed

in Jordan v. State, 365 So.2d 1198 (Miss.1978), petition

for rehearing was denied by this Court, and Jordan pe-

titioned the United States Supreme Court for writ of

certiorari to the Mississippi Supreme Court, and cer-

tiorari was denied. Jordan v. Mississippi, 444 U.S. 885,

100 S.Ct. 175, 62 L.Ed.2d 114 (1979).

Subsequently, Jordan applied to this Court for leave to

file a petition for writ of error coram nobis, which was

denied. 390 So.2d 584. The Federal District Court de-

nied habeas corpus relief, and, upon appeal of such de-

nial, the United States Fifth Circuit Court of Appeals,

688 F.2d 395, vacated the sentence and remanded for

another sentencing hearing finding that there had been

a violation of the Godfrey v. Georgia, 446 U.S. 420, 100

S.Ct. 1759, 64 L.Ed.2d 398 (1980) mandate, in that the

instructions failed to channel the sentencers’ discretion

by clear and objective standards, and did not provide

specific and detailed guidance. 681 1'.2d 1067. The State

of Mississippi was denied rehearing in Jordan v. Thig-

pen, 688 F.2d 395 (5th Cir.1982).

Jordan was tried again on the sentencing phase in the

Circuit Court of Harrison County, and, for the third

time, a jury imposed the death penalty upon him. He

has appealed from that sentence and assigns eleven (11)

errors in the trial below. The facts of the case are de-

tailed in Jordan v. State, 365 So.2d 1198 (Miss.1978),

and we will only briefly state them here.

On or about January 10, 1976, Jordan traded a shot-

gun for a .38-caliber revolver in Baton Rouge, Louisiana,

then drove to Gulfport, Mississippi, and registered at the

Twin Star Motel under the name of “Jack Wilson.” In

order to obtain money, he devised a scheme to kidnap the

relative of a bank executive and demand a ransom. Still

using the fictitious name of “Jack Wilson,” he called

Gulf National Bank and expressed a desire to speak to

the commercial loan officer, and was referred to a Mr.

Marter, whose wife subsequently became Jordan’s victim.

Jordan perused the Gulfport telephone directory and

found that there was only one family by the name of

Marter living in the city. He drove by the Marter resi-

dence, then stopped, rang the doorbell and was admitted

into the home by Mrs. Marter, when he represented that

his electrical company had received information of de-

fective circuit breakers in the area, which he was inves-

tigating.* Thereupon, he kidnapped Mrs. Marter and

took her to a sparsely settled wooded area in DeSoto

National Park where he shot her in the head with the

.38-caliber revolver and killed her. Jordan then de-

manded $25,000 from Mr. Marter without telling him

that his wife had been slain. Mr. Marter obtained the

ransom money, delivered it to a drop place as instructed

by Jordan, who retrieved the ransom. He was followed

by the police and was arrested within a relatively short

while.

THE TRIAL COURT’S INSTRUCTIONS ON AG-

GRAVATING CIRCUMSTANCES WERE UNCON-

STITUTIONALLY VAGUE AND PERMITTED

THE JURY TO FIND AGGRAVATING CIRCUM-

STANCES THAT WERE UNSUPPORTED BY

THE RECORD AND THAT IMPERMISSIVELY

OVERLAPPED WITH EACH OTHER AS WELL

AS THE STATUTORY ELEMENTS OF CAPITAL

MURDER.

Under this assignment of error, Jordan attacks three

elements of aggravating circumstances submitted to the

jury, viz, (1) especially heinous, atrocious and cruel, (2)

for pecuniary gain, and (3) while engaged in the com-

mission of the crime of kidnapping.

A. Especially heinous, atrocious and cruel.

The record indicates that Jordan entered the home of

Mrs. Marter when only she and her small child, who was

asleep, were in the home. He forced her to leave her

home, refused to permit her to arrange for the care of

the child or take the child with her, then forced her to

an isolated place. The record reflects that she was fright-

ened during this time and inferences are that he shot

1} Jordan had dressed and disguised himself as an electrical

inspector.

her in the back of the head at a time when she was on

her knees. Regardless of her position at the time of the

murder, if she was running or trying to get away from

him, that indicates how terrified she was at the time he

killed her. We think these facts constituted a question

for the jury as to whether the killing was especially

heinous, atrocious and cruel, and as said by the Fifth

Circuit in Spinkellink v. Wainwright, 578 F.2d 582 (5th

Cir.1978),

Again, we feel that the meaning of such terms is a

matter of common knowledge, so that an ordinary

man would not have to guess at what was intended.

It is our interpretation that heinous means ex-

tremely wicked or shockingly evil; that atrocious

means outrageously wicked and vile; and, that cruel

means designed to inflict a high degree of pain with

utter indifference to, or even enjoyment of, the suf-

fering of others. What is intended to be included

are those capital crimes where the actual commis-

sion of the capital felony was accompanied by such

additional acts as to set the crime apart from the

norm of cap.tal felonies—the conscienceless or piti-

less crime which is unnecessarily torturous to the

victim.

578 F.2d at 611.

We have decided this question adversely to Jordan’s

position in Edwards v. State, 441 So.2d 84 (Miss.1983) ,

and in every case where the question has been raised

since Edwards.

B. For Pecuniary Gain.

Jordan contends that it was improper to allow the

jury to consider both kidnapping and pecuniary gain be-

cause they are elements of the same offense, and there

was a doubling of aggravating circumstances. This ques-

tion has been decided adversely to Jordan in Irving v.

State, 441 So.2d 846 (Miss.1983) ; Tokman v. State,

435 So.2d 664 (Miss.1983); Hill v. State, 432 So.2d

427 (Miss.1983) ; Gilliard v. State, 428 So.2d 576 (Miss.

1983) ; and Smith v. State, 419 So.2d 563 (Miss.1982).

In Henry v. Wainwright, 721 F.2d 990 (5th Cir.1983) ,

the Fifth Circuit Court of Appeals rejected the same

constitutional arguments, holding that resolution of the

issue was a question of state law.

C. While Engaged in the Commission of the Crime of

Kidnapping.

Argument on this issue parallels Jordan’s argument on

Section B, next preceding. We answer that question as

hereinabove, viz, this Court has decided it adversely to

Jordan in Billiot v. State, 454 So.2d 445 (Miss.1984) ;

Wilcher v. State, 448 So.2d 927 (Miss.1984); and

Leatherwood v. State, 435 So.2d 645 (Miss.1983).

II.

THE DEFENDANT WAS SENTENCED TO DIE

UNDER INSTRUCTIONS THAT UNCONSTITU-

TIONALLY SHIFTED THE BURDEN OF PROOF

TO THE DEFENSE AND THAT FAILED TO IN-

FORM THE JURY OF ITS DISCRETION TO EXx-

ERCISE MERCY.

ITI.

THE TRIAL COURT’S INSTRUCTIONS IMPROP-

ERLY PERMITTED THE JURY TO SENTENCE

DEFENDANT TO DEATH WITHOUT MAKING

THE ESSENTIAL FINDING THAT HE IN-

TENDED TO KILL, IN VIOLATION OF THE

EIGHTH AND FOURTEENTH AMENDMENTS.

Under Assignment II above, Jordan argues that the

sentencing instructions were improper because they did

not require the State to prove that the aggravating cir-

cumstances outweigh the mitigating circumstances be-

yond a reasonable doubt, and that they did not advise

the jury that it had the authority to exercise mercy and

return a life sentence regardless of its findings. These

arguments are not new and have been presented to this

Court previously. In Gray v. Lucas, 677 F.2d 1086 (5th

Cir.1982), the Court addressed the same proposition

raised here and resolved the question against Jordan’s

position. See also Billiot v. State, 454 So.2d 445 (Miss.

1984); Wilcher v. State, 448 So.2d 927 (Miss.1984) ;

and Hill v. State, 432 So.2d 427 (Miss.1983).

As to the second part of the present assignment, it is

beyond peradventure that instructions must be read and

considered as a whole in analyzing whether they should

be granted or denied. We have carefully considered In-

struction S-1 and are of the opinion that it clearly and

adequately charged the jury in such manner that the

jury’s discretion was channeled and guided. On the other

hand, we are of the opinion that the proffered instruction

by appellant would have removed such channeling and

probably would have authorized the return of a verdict

outside the scope of evidence, which could result in an

uneven and prejudicial capital punishment. Therefore,

we are of the opinion that the jury was properly in-

structed under this question. See Irving v. State, 441

So.2d 846 (Miss.1983); Hill v. State, 432 So.2d 427

(Miss.1983) ; and Bullock v. State, 391 So.2d 601 (Miss.

1980).

Under Assignment III, Jordan argues that the trial

court erred in permitting the jury to sentence defendant

to death without first requiring them to find that he in-

tended to kill in violation of the United States Supreme

Court’s decision in Enmund v. Florida, 458 U.S. 782, 102

S.Ct. 3368, 73 L.Ed.2d 1140 (1982). Those courts which

have been faced with this question have universally

found that the death penalty is permissible where one of

the four following conditions exists: (1) where the de-

fendant actually kills, (2) where the defendant attempts

to kill, (3) where the defendant intends that a killing

take place, or (4) where the defendant contemplated that

lethal force would be employed. See Reddix v. Thigpen,

728 F.2d 705 (5th Cir.1984); Drake v. Francis, 727

F.2d 990 (11th Cir.1984); Skillern v. Estelle, 720 F.2d

839 (5th Cir.1983) ; Henry v. Wainwright, 721 F.2d 990

(5th Cir.1983) ; Stephens v. Kemp, 721 F.2d 1300 (11th

Cir.1983); Stanley v. Zant, 697 F.2d 955 (11th Cir.

1983) ; Ross v. Hopper, 716 F.2d 1528 (11th Cir.1983) ;

Clark v. Louisiana State Penitentiary, 697 F.2d 699 (5th

Cir.1983); Bell v. Watkins, 692 F.2d 999 (5th Cir.

1982) ; Irving v. State, 441 So.2d 846 (Miss.1983); and

Leatherwood v. State, 435 So.2d 645 (Miss.1983).

In the case at bar the jury found that Jordan killed,

and also that Jordan contemplated lethal force be em-

ployed.

Therefore, we are of the opinion that there is no merit

in this contention.

IV.

THE TRIAL COURT ERRONEOUSLY ADMIT-

TED A TAPE RECORDED STATEMENT ELIC-

ITED FROM DEFENDANT IN THE ABSENCE

OF APPOINTED COUNSEL.

Jordan requested an attorney prior to his preliminary

hearing or arraignment, but after formal charges had

been filed against him. The trial judge agreed that

Jordan should have an attorney prior to his preliminary

hearing, and sent him out with a bailiff. Shortly there-

after, Jordan was questioned by the police without counsel,

the police not knowing that counsel had been appointed.

Statements were made which were tape recorded and in-

troduced into evidence at the trial over defense objections.

Appellant argues that the statements should have been

suppressed by the trial court at the resentencing hearing

and at the Federal habeas corpus proceeding.

In Jordan v. State, 365 So.2d 1198 (Miss.1978), the

Court, citing Brewer v. Williams, 430 U.S. 387, 97 S.Ct.

1232, 51 L.Ed.2d 424 (1977), stated:

[T]he United States Supreme Court made it clear

that an accused can voluntarily, knowingly and in-

telligently waive his right to counsel at an interroga-

tion which occurs after counsel has been appointed,

provided the prosecution has adequately carried its

heavy burden to show that the waiver was know-

ingly and intelligently made.

365 So.2d at 1202.

The argument under this assignment was raised and

the question was addressed in Jordan’s petition for writ

of habeas corpus. In passing on the question, the United

States Court of Appeals in Jordan v. Watkins, 681 F.2d

1067, 1075 (5th Cir.1982) said:

Appellant also argues that his right to counsel un-

der the sixth and fourteenth amendments was vio-

lated by his interrogation in the absence of counsel

after adversary proceedings had commenced. It is

undisputed that adversary proceedings had com-

menced when the authorities elicited the recorded

confession. “[O]nce adversary proceedings have com-

menced against an individual, he has the right to

legal representation when the government interro-

gates him.” Brewer v. Williams, 430 U.S. 387, 401,

97 S.Ct. 1232, 1240, 51 L.Ed.2d 424, 438 (1977).

This does not mean that at that stage an accused

cannot waive his rights under the sixth and four-

teenth amendments. Id., 480 U.S. at 405-406, 97

S.Ct. at 1243, 51 L.Ed. at 441. Rather, it is “encum-

bent upon the [prosecution] to prove an intentional

relinquishment of a known right or privilege.” Id.,

430 U.S. at 404, 97 S.Ct at 1242, 51 L.Ed. at 439.

Based on the facts and circumstances previously dis-

cussed, we hold that the prosecution met this strict

standard with respect to Jordan.

We are of the opinion that the State met its burden

with respect to Jordan and that question is now res

judicata.

THE VOIR DIRE RESULTED IN A JURY

SKEWED IN FAVOR OF SENTENCING THE

DEFENDANT TO DEATH, IN VIOLATION OF

THE SIXTH, EIGHTH AND FOURTEENTH

AMENDMENTS.

Jordan contends that (1) four jurors removed for

cause did not make it unmistakeably clear that they would

automatically vote against the death penalty without re-

gard to the evidence and instruction of the court, (2)

that the State followed a systematic practice of peremp-

torily excusing jurors who expressed qualified reservations

against the death penalty, and (3) that the death qualifi-

cation of the jury had the effect of creating a hanging

jury. ,

Juror Jones, Juror Belvin, Juror Lyons and Juror

Osswald, were all excused for cause. All of those venire-

men, except Juror Jones, stated without equivocation that

they were opposed under the circumstances to the imposi-

tion of the death penalty. Juror Jones equivocated in her

responses, but ultimately stated, and, from the totality of

her responses, it was reflected that she absolutely opposed

the infliction of the death penalty.

The landmark case on this question is Witherspoon v.

Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776

(1968), where the United States Supreme Court heid:

[A] sentence of death cannot be carried out if the

jury that imposed or recommended it was chosen by

excluding veniremen for cause simply because they

voiced general objections to the death penalty or

expressed conscientious or religious scruples against

its infliction.

391 U.S. at 522, 88 S.Ct. at 1777, 20 L.Ed.2d at 784-85.

10a

In Williams v. Maggio, 679 F.2d 381 (5th Cir.1982),

the Court said:

By means of this appeal, petitioner asks this Court

to narrow further the stiff requirements of Wither-

spoon and its progeny and, in this Court’s opinion,

thereby infringes the State’s right to an impartial

jury that is willing to consider all penalties pro-

vided by law. According to petitioner’s analysis, ex-

clusion of a venireman is impermissible unless he

states in response to ail questions that he absolutely

refuses to consider the death penalty. An equivalent

response framed in any other reasonable manner is

judged to demonstrate that the individual’s position

is not firm. We reject such a rigid, unthinking in-

terpretation of Witherspoon. Form will not be placed

over substance.

679 F.2d at 386. See also Porter v. Estelle, 709 F.2d 944

(5th Cir.1983).

After carefully scrutinizing the voir dire examination

of the jurors, we are of the opinion that the jury was

lawfully and properly selected and impaneled, and we

reject the contentions of the appellant on this assignment.

Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 18 L.Ed.2d

759 (1965); Willis v. Zant, 720 F.2d 1212 (11th Cir.

1983) ; Washington v. Watkins, 655 F.2d 13846 (5th Cir.

1981) reh. and reh. en banc den. 662 F.2d 1116 (1981) ;

United States v. Carlton, 456 F.2d 207 (5th Cir.1972).

VI.

THE PROSECUTOR’S CLOSING ARGUMENT IN-

CLUDED NUMEROUS REFERENCES TO THE

DEFENDANT’S PRIOR EXERCISE OF HIS FIFTH

AMENDMENT RIGHT NOT TO TESTIFY AS

WELL AS OTHER HIGHLY IMPROPER AND

PREJUDICIAL REMARKS.

The record from the two previous trials reflects that

Jordan elected not to testify at either the guilt or sen-

lla

tencing phases. Upon the resentencing hearing in the

present case, Jordan testified in his own behalf and at-

tempted to convince the jury that he did not intentionally

kill Mrs. Marter. In closing argument, the prosecutor

made the following remarks relative to Jordan’s testi-

mony and the fact that this was the first time he had

testified in explanation of the killing:

Through the entire procedure that we employed here,

at another time and another place we presented this

case, and the Jury found him guilty. We were re-

quired to do so as we went through that process of

convicting him of guilt. Now the time comes for the

sentencing, and we see Mr. Jordan come up on the

stand. Six years. He takes the stand and he says,

I’m a changed man; I didn’t mean to do what I did.

You finally got me convicted; now you got me in the

box; it’s getting close to the penalty stage; I’m going

to play on your sympathy, I’m going to play on your

mercy, I’m going to play on your bias. I’m a changed

man. I didn’t mean to do what I did. It was an

accident, and I’m sorry because I have found the

Lord.

. . . Another thing that is bothering me, and has

bothered me since 1976—and I have never had to

face this problem until Mr. Jordan took the stand.

+ ¢ * * * #

. . . Many many years we have worked on this case

waiting for this very minute, and I’ll be dadgum it,

if he doesn’t take the witness stand and say “I’m

sorry’; “I’m sorry that I did it, and I think I ought

to have life imprisonment.” See, because when I was

a little boy I wasn’t a bad fellow.

Jordan contends that the closing arguments of the

prosecuting attorney were improper and prejudical be-

cause they related to the exercise of his Fifth Amend-

12a

ment right not to testify in the previous trials. He relies

in principal on Griffin v. California, 380 U.S. 609, 85

S.Ct. 1229, 14 L.Ed.2d 106 (1965) reh. den. 381 U.S. 957,

85 S.Ct. 1797, 14 L.Ed.2d 730. There, Griffin chose not

to testify during the guilt phase of his bifurcated trial,

but did testify at the sentencing hearing. The trial judge

instructed the jury that it was permissible to draw un-

favorable inferences from the defendant’s failure to

testify. The prosecutor’s comment and the judge’s in-

struction were on the issue of guilt that occurred before

the jury reached its verdict. We distinguish that case

from the case sub judice. In Calloway v. Wainwright, 409

F.2d 59 (5th Cir.1968), the Court said:

It is clear that when a defendant voluntarily testi-

fies to the merits, and not just upon a purely col-

lateral matter, the prosecutor may comment upon the

defendant’s failure to deny or explain incriminating

facts already in evidence.

409 F.2d at 65.

In Tucker v. Francis, 728 F.2d 1504, 1511-12 (11th

Cir.1984), the Court addressed the question in the follow-

ing language:

It is not fundamentally unfair to comment on the

appellant’s silence during the culpability phase as

juxtaposed with his exculpatory testimony during the

sentencing phase. A defendant is usually told that

so long as he does not testify, his failure to testify

will not be used against him. In this case, Richard

Tucker’s failure to testify was not used against him

during that portion of his trial in which he invoked

the fifth amendment. After he waived his fifth

amendment privilege by testifying, any expectations

of protection from adverse comment also were

waived.

13a

See also Raffel v. United States, 271 U.S. 494, 46 S.Ct.

566, 70 L.Ed. 1054 (1926) ; McGahee v. Massey, 667 F.2d

1357 (11th Cir.1982) on waiver.

We are of the opinion that the remarks of the prose-

cuting attorney did not constitute error, and, at the most,

were harmless error.

VII.

THE DEFENDANT WAS SENTENCED UNDER

A DEATH PENALTY STATUTE THAT DID NOT

EXIST WHEN HE COMMITTED THE CAPITAL

MURDER OR WHEN HE WAS ORIGINALLY

TRIED, IN VIOLATION OF THE EX POST FACTO

CLAUSES OF THE UNITED STATES AND MIS-

SISSIPPI CONSTITUTIONS, AS WELL AS SEC-

TION 99-19-1 OF THE MISSISSIPPI CODE.

Jordan contends here that his sentence of death is in

violation of the ex post facto clauses of the United States

and Mississippi Constitutions and Mississippi Code An-

notated § 99-19-1 (1972). The very question was an-

swered adversely to appellant in Irving v. State, 441 So.2d

846 (Miss.1983). The Court said:

[Wle are of the opinion appellant has misapplied

§ 99-19-1. By its terms, the statute comes to life only

with respect to statutory changes “affecting the crime

or its punishment.” The 1977 amendments did not

affect the substance of capital law but merely made

changes in the procedures by which such cases were

to be tried. Therefore, we do not find § 99-19-1 re-

quires reversal in this case.

* ~ . * * *

. . . [T]he new statutes provided increased pro-

tection for capital defendants and the intent that all

such defendants on trial after April 1977, should

merit this protection. We are of the opinion the ex

post facto contention is without merit.

441 So.2d at 852, 853.

l4a

In Dobbert v. Florida, 482 U.S. 282, 97 S.Ct. 2290,

53 L.Ed.2d 344 (1977), the Court stated:

[T]he change in the statute was clearly procedural.

The new statute simply altered the methods employed

in determining whether the death penalty was to be

imposed; there was no change in the quantum of

punishment attached to the crime.

* * * * * 7

In this case, not only was the change in the law

procedural, it was ameliorative. It is axiomatic that

for a law to be ex post facto it must be more onerous

than the prior law.

432 U.S. at 293-94, 97 S.Ct. at 2298-99.

The question was likewise decided in Gray v. State,

351 So.2d 1342 (Miss. 1977).

VIII.

THE TRIAL COURT ERRED BY REFUSING TO

GRANT THE DEFENDANT AN EVIDENTIARY

HEARING TO SUBSTANTIATE HIS CLAIM

THAT THE DEATH PENALTY IS APPLIED IN

MISSISSIPPI IN A DISCRIMINATORY MANNER

BASED UPON THE RACH OF THE VICTIM.

Jordan contends that he was entitled to an evidentiary

hearing to substantiate his claim that the death penalty

is applied in Mississippi in a discriminatory manner based

upon the race of the victim. The appellee states in its

brief, “The allegation that the trial court denied defend-

ant an evidentiary hearing to substantiate his claim that

Mississippi has applied the death penalty in a racially

discriminatory fashion is not only without support in the

record, but also a blatant misstatement of the facts.”

Pages 216-22 of the record are cited as relating to argu-

ment on motion for evidentiary hearing. However, the

motion discussed there (R. 216), related to a motion to

ns om tr nl. Me APN When RY ean leas Ae “a

15a

impose a life sentence. At the conclusion of the discussion

(argument), counsel for Jordan stated:

BY MR. HUDSON:

Your Honor, you had indicated prior to our start-

ing that you were prepared to rule on our motion;

the one that is pending on the imposition of the life

sentence. We would ask that the court rule and the

court give us an opinion on this decision.

BY THE COURT:

In my opinion, based upon the decision of the Fifth

Circuit in remanding this matter back to be tried on

the penalty phase, I feel like that I must overrule

your motion and submit it to the jury on the issue of

the penalty.

Therefore, it appears that Jordan’s counsel did not

press for hearing and ruling on the motion for an evi-

dentiary hearing. In Booker v. State, 449 So.2d 209

(Miss.1984), this Court said:

The appellant next contends that the arbitrary and

discriminatory imposition of the death penalty in this

case violates the Eighth and Fourteenth Amend-

ments. Specifically, he contends that Blacks are much

more likely to receive the death penalty than Whites.

Although the appellant raised this issue in his mo-

tion for a new trial, he failed to introduce any evi-

dence in support of the contention. In Gordon v.

State, 349 So.2d 554 (Miss.1977), this Court held:

The general rule is that a motion is at issue

without any further pleading, but the allegations

thereof do not amount to any proof of the facts

stated therein. Shaw v. State, 188 Miss. 549, 195

So. 581 (1940). It devolves upon the movant to

support his motion by proof. Reed v. State, 143

Miss. 686, 109 So. 715 (1926). It is also the

16a

rule that in the absence of proof in support of a

motion, the presumption in favor of the correct-

ness of the action of the trial court must pre-

vail. Walters v. State, 127 Miss. 324, 90 So. 76

(1921).

449 So.2d at 221.”

We are of the opinion that there is no merit in this

assignment of error.

IX.

DEFENSE COUNSEL WAS IMPERMISSIBLY

RESTRICTED IN THE PRESENTATION OF

MITIGATING EVIDENCE.

Jordan contends that the lower court impermissibly re-

stricted testimony concerning mitigating facts which con-

stitute reversible error. The witnesses are Robert Jordan,

brother of appellant; Shirley Thames, first cousin; Lucius

Brown, prison guard; and Rhett Russell.

The testimony of Robert H. Jordan consists of six

record pages. He told about his relationship with ap-

pellant from boyhood through manhood. A sample of his

testimony follows:

Well, I can state for a fact that my brother’s a very

fine man. We had a good relationship. He was a

good man in the community, and he raised a good

family. He went to church regular.

Following that testimony, Robert H. Jordan made a

more detailed statement in which he complimented and

lauded his brother as a good man.

Testimony objected to by the State was whether or not

Robert H. Jordan knew his brother’s reputation for peace

and violence in the community and the trial judge per-

mitted him to answer that question in the affirmative and

2 Jordan and Mrs. Marter are members of the white race.

17a

state that the reputation was good. The only other ob-

jection was to testimony of the witness to the effect that

“Well, I don’t know. I believe that they should be.. .”

An objection was sustained as to what the witness believed

and thought.

The direct examination of Shirley Thames consumes

eight (8) pages of the record. She testified at length

about the family background and life of Jordan when he

was growing up. Objections were sustained to an answer

of Mrs. Thames when she stated that Jordan was brought

up in the church by his parents and then that she had

never been in church service with him at any time; also,

objections were sustained to the questions “What problem

for your family has this matter created?” and, “Do you

know, Mrs. Thames, about the family relationship be-

tween Gerald Jordan and his wife?”

The testimony of Officer Lucius Brown of the Maximum

Security Unit consists of five (5) pages. He testified that

he had requested, and appointed, Jordan as his hall man.

He explained Jordan’s duties in that capacity and was

highly complimentary of everything Jordan did. Objec-

tions were sustained to questions asked Officer Brown as

to placing trust in a person selected for the job of hall

man, whether Jordan had demonstrated any violent tend-

encies in Maximum Security (question answered in the

negative), questions as to how he would characterize

Jordan’s attitude, what the reputation of Jordan was for

peace and violence in the Maximum Security Unit, and

questions as to whether or not Jordan can be rehabili-

tated, and whether or not Jordan had engaged in fights

on the yard.

Rhett Russell was called by the defense as a witness

and, at a bench conference, the trial judge was informed

of the substance of his testimony, the State objected

thereto, and the court sustained the objection. Where-

upon, the defense made the following proffer of Russell’s

testimony :

18a

BY THE COURT: Let the record show that Defense

Counsel has offered the Honorable Rhett Russell as

a witness. We had a conference here at the bench

and I was informed a little about what he would

testify to. And the State objected to it and I sus-

tained it. But I have offered the Defense Attorneys

an opportunity to make a record on his testimony.

BY MR. KILBRETH: Your Honor, if permitted to

testify, Mr. Russell would testify about a method for

generating electricity from an alternative energy

source, as it is known; through wind tunnels and

things of that nature. Mr. Jordan has been in con-

tact with the Tennessee Valley Authority over this

invention and has entered into an agreement with

them about it. And Mr. Russell is familiar with all

those details and would testify about that.

BY THE COURT: This is some thoughts and ideas

that have been developed by Mr. Jordan since he has

been in prison; is that right?

BY MR. KILBRETH: That is correct, Your Honor.

In Jackson v. State, at page 1256 (1976), this Court

said:

[T]he defendant . . . may also adduce proof of any

other circumstance or combination of circumstances

surrounding his life and character or the commission

of the offense with which he is charged that would

be reasonably relevant to the question of whether he

should suffer death or be sentenced to life in prison.

The United States Supreme Court said in Lockett v.

Ohio, 488 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) :

[T]he Eighth and Fourteenth Amendments require

that the sentencer, in all but the rarest kind of

capital case, not be precluded from considering, as a

mitigating factor, any aspect of a defendant’s charac-

ee et ee

sia Niet N AN lt ites bs ana Memeo, Kt ned Sted ns

19a

ter or record and any of the circumstances of the

offense that the defendant proffers as a basis for a

sentence less than death.

438 U.S. at 605, 98 S.Ct. at 2964-65, 57 L.Ed.2d at 990.

See also Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct.

869, 71 L.Ed.2d 1 (1982).

The question presented here is whether or not the testi-

mony proposed to be introduced, and which was excluded

by the lower court, was competent and reasonably rele-

vant to the question of whether or not Jordan should

suffer death or be sentenced to life in prison. Robert

Jordan, Shirley Thames, and Officer Lucius Brown testi-

fied in detail as to circumstances surrounding the life and

character of Jordan. Objections to certain questions were

sustained, and we think properly so, because they were

not competent and reasonably relevant to the issue.

Referring to the above statement of the court in sus-

taining an objection to the testimony of Rhett Russell, it

appears that the court offered the defense attorney an

opportunity to make a record on his testimony. The rec-

ord does not indicate what was said to the judge at the

bench conference about the testimony of Russell. Instead

of making a record as permitted by the court, appellant’s

counsel made a proffer of what was intended to be shown

by Russell’s testimony. From that proffer, it appears that

his testimony would have been hearsay and inadmissible.

However, we are of the opinion that such testimony would

not be reasonably relevant to the question of whether

Jordan should suffer death or be sentenced to life im-

prisonment.

Jordan took the stand and testified at length in his own

behalf. He was not interrogated by his counsel as to, nor

did he attempt to testify to, the matters sought to be

elicited from Rhett Russell. Had Jordan so testified, it

would not have been objectionable on the ground of hear-

say testimony, and he may have been able to establish it

as being relevant in his behalf. Having failed to offer

20a

such testimony in evidence, we do not think that he can

now complain that the court erred in excluding the testi-

mony of Russeli. Therefore, we hold that the lower court

did not commit reversible error in excluding the testimony

under this assignment.

THE TRIAL JUDGE ERRED IN ADMITTING

THE OPINION TESTIMONY OF DAVE MEL-

TON, A NON-EXPERT, WITHOUT FIRST AL-

LOWING VOIR DIRE AS TO HIS QUALIFICA-

TIONS.

Jordan contends that the witness Dave Melton was not

qualified as an expert for the State and that admitting

his testimony constituted reversible error, particularly

since the court did not permit Jordan’s counsel to voir

dire Melton before he testified. The court permitted Mel-

ton to testify about bloodstains and blood spatters found

at the scene of the homicide. The record reflects that he

had a week’s training in 1973 under a Dr. McDonald,

who was an authority in such field, and that he had on-

the-job experience since that time. We have read the

record carefully scrutinizing the qualifications and testi-

mony of Mr. Melton, and we are satisfied that the lower

court committed no reversible error in permitting him to

testify as an expert. In Waycaster v. State, 185 Miss.

25, 187 So. 205 (1939), the Court stated: “[{T]he trial

court determines the competency of the witnesses, whether

expert or non-expert, to testify, and the weight to be

given to the opinion of the witness, if competent, is for

the jury alone.” 185 Miss. at 35, 187 So. at 208.

In Grinnell v. State, 230 So.2d 555 (Miss.1970), the

Court said:

The rule is well established that the question of

the qualification of a witness to speak as an expert

lies largely in the discretion of the trial court, and

its determination that a witness is qualified to speak

will not be reversed unless it clearly appears that the

itl 8 reeset cin

2la

witness was not qualified. ... The jury, of course,

was free to accept or disregard it.

230 So.2d at 557-558.

In Floyd v. State, 166 Miss. 15, 148 So. 226 (1933),

this Court said: “[T]o testify as an expert a witness

need not be infallible, or possess the highest degree of

skill, it being generally sufficient that he possess peculiar

knowledge respecting matter involved not likely to be

possessed by the ordinary layman.” 166 Miss. at 37, 148

So. at 231.

The proper procedure and policy when an expert wit-

ness is offered is for the court to permit qualification by

the party offering the expert witness, and then to permit

voir dire by the opposite party before ruling on the com-

petency of the witness. Here, the failure of the lower

court to follow that procedure does not constitute reversi-

ble error. During cross-examination, Jordan’s counsel

thoroughly interrogated Melton about his training and

experience, then cross-examined him concerring his di-

rect testimony. Counsel apparently was satisfied at that

time with his competency because he did not renew his

objection to the testimony or move to exclude such testi-

mony. Further, a layman or a member of the jury, after

hearing and seeing a description of the bloodstains, using

common knowledge and experience, could have arrived at

the same conclusion of Melton. We find no prejudice re-

sulting to the appellant Jordan for failure of the lower

court to permit his counsel to voir dire Melton at the

outset of his testimony.

XI.

THE DEATH PENALTY IMPOSED IN THIS

CASE IS DISPROPORTIONATE TO THE PEN-

ALTIES IMPOSED IN OTHER CAPITAL MUR-

DER CASES IN MISSISSPPI.

Jordan contends under this assignment (1) that this

Court has interpreted the statute too narrowly by con-

fining its proportionality review to cases in which the

22a

death penalty was imposed. In Pulley v. Harris, ——

US. , 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), the

Court held that such a review is not constitutionally

mandated. In Gray v. Lucas, 677 F.2d 1086 (5th Cir.

1982), the Fifth Circuit said:

Gray claims that the Mississippi Supreme Court’s

comparative review of death sentences is flawed

since the court only compared Gray’s case with those

cases where the death sentence had been imposed

and not with all the cases where it could have been

imposed. Because the Supreme Court has rejected a

similiar argument in Proffitt v. Florida, 428 USS.

242, 258-59 fn. 16, 96 S.Ct. 2960, 2969-70 fn. 16, 49

L.Ed.2d 913 (1976), we reject this claim as well.

677 F.2d at 1111.

Jordan contends (2) that even if this Court reviews

only cases in which the death penalty was imposed, it

should conclude that the death sentence is excessive and

disproportionate in this case. In Jordan v. State, 365

So.2d 1198, 1206, 1207 (Miss. 1978), decided November

22, 1978, this Court reviewed Mississippi cases to that

time for the purpose of determining whether or not the

sentence of death was excessive and disproportionate as

to Jordan. We now have reviewed those cases under

consideration by this Court since Jordan, supra, and

both reviews have convinced us that the death penalty

here is not excessive when the aggravating and mitigat-

ing circumstances are weighed against each other and

that infliction of the death penalty here will not be either

wanton or freakish and will be consistent and even-

handed with other death penalty cases previously af-

firmed by this Court. Therefore, we reject this assign-

ment of error.

Finding that there are no reversible errors in the rec-

ord, the judgment of the lower court is affirmed and

Wednesday, the 6th day of March, 1985, is fixed as the

23a

date for execution of the death penalty in the manner

provided by law.

AFFIRMED.

PATTERSON, C.J., WALKER, P.J., and HAWKINS,

DAN M. LEE, PRATHER, ROBERTSON, SULLIVAN

and ANDERSON, JJ., concur as to Parts I-VIII, and

Parts X-XI.

As to Part IX: PATTERSON, C.J., WALKER, P.W.,

and DAN M. LEE, and ANDERSON, JJ., concur.

ROBERTSON, HAWKINS, SULLIVAN and PRA-

THER, JJ., dissent.

ROBERTSON, Justice, concurring in part, dissenting

in part.

Though much dust remains to be settled in the increas-

ingly complex area of death penalty litigation, the ground

rules in one area have been made reasonably clear. At

the sentencing hearing, the convicted capital murderer

may offer almost anything which in his view might move

one or more jurors to vote against the penalty of death.

The point was most authoritatively put in Lockett v.

Ohio, 488 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973

(1978) :

The Eighth and Fourteenth Amendments require

that the sentencer, in all but the rarest kind of capi-

tal case, not be precluded from considering, as a

mitigating factor, any aspect of a defendant’s char-

acter or record and any of the circumstances of the

defense that the defendant offers as a basis for a

sentence less than death.

438 U.S. at 604, 98 S.Ct. at 2964-2965, 57 L.E.2d

at 990.

The rule was reaffirmed in Eddings v. Oklahoma, 455

U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) and in

numerous cases since then.

24a

The record refiects that at the sentencing hearing be-

low Jordan offered to prove that he had invented a unique

method of generating electricity from an alternative

energy source through the use of wind tunnels and that

he had entered into an agreement with the Tennessee

Valley Authority with respect to the development and use

of that invention. This was an invention developed by

Jordan since he has been incarcerated at the maximum

security unit at the Mississippi State Penitentiary. The

obvious purpose of the testimony was to show a positive

side of Jordan’s character, that he had made an im-

portant contribution to society and, presumably, that he

was capable of making further such contributions.

In the hands of skillful defense counsel, the point, of

course, could have been argued in various ways. That

Jordan had made the invention after he was in prison is

arguably evidence of a changed person who is committed

to seeking atonement for his crimes by doing good. That

Jordan was able to do this while incarcerated at the

maximum security unit at the Mississippi State Peni-

tentiary demonstrates that Jordan has the resourceful-

ness to make such beneficial contributions while confined,

that putting him back on the streets is unnecessary to

enable him to perform his acts of atonement.

The problem here is that the trial judge did not allow

the testimony.

I am confident that there is not a single member of

this court who, had he or she been sitting as the trial

judge in this case, would have precluded the offering of

the evidence in question. Because the trial judge was

correct on all other points and because this case has been

dragging on for so long,’ I do not think it unfair or in-

1 Originally, Jordan was indicted March 26, 1976, for a killing

that occurred January 13, 1976. He was prosecuted, convicted and

sentenced to death at a trial which ended July 21, 1976. His motion

for a new trial was sustained October 27, 1976, in view of Jackson

v. State, 337 So.2d 1242 (Miss.1976). At retrial Jordan was again

25a

accurate to suggest that the majority has succumbed to

the quite human temptation to sweep this error under

the rug and, if you will, cut a corner or two. I will try

briefly to demonstrate my point.

To begin with, the fact that Jordan has made his in-

vention since the commission of the crime and since his

incarceration certainly does not deprive the evidence of

admissibility. We have held repeatedly that bad things

that a capital defendant does after his crime may be

shown as aggravating circumstances. See, e.g., Tokman

v. State, 485 So.2d 664, 668 (Miss.1983) ; Jones v. State,

381 So.2d 983, 994 (Miss.1980). It certainly follows

that good things the defendant does after the commission

of his crime may be shown in mitigation.

Several of our sister states have considered whether

evidence that a defendant has attempted to rehabilitate

himself or be productive with his time while in prison is

a mitigating circumstance and each has held that such

evidence may be so considered. For example, Arizona

has read Lockett and Eddings to require consideration

by the sentencer of evidence that the defendant had done

a great deal of soul searching since the crime, had been

a model prisoner, had set positive new goals for himself

sentenced to death. His direct appeal to this Court affirmed his

sentence. Jordan v. State, 365 So.2d 1198, 1207 (Miss.1979) (re-

hearing denied without opinion). Petition for Writ of Certiorari

to the United States Supreme Court was denied. Jordan v. State,

444 U.S. 885, 100 S.Ct. 175, 62 L.E.2d 114 (1979). Jordan’s petition

to this Court for error corum nobis relief was denied. Jn re Jordan,

390 So.2d 584, 588 (Miss.1980). While state error corum nobis

proceedings were pending, Jordan filed a federal habeas corpus

action in the Southern District of Mississippi. When the District

Court denied relief without published opinion, appeal was taken

to the Fifth Circuit Court of Appeals where Jordan’s death sentence

was vacated. Jordan v. Watkins, 681 F.2d 1067, 1083, reh’g denied

sub nom. Jordan v. Thigpen, 688 F.2d 395, 396 (5th Cir.1982).

At the resentencing hearing on April 29, 1983, Jordan was again

sentenced to death. it is this sentence he appeals here.

26a

and had attempted to further his education while in-

earcerated. State v. Gretzler, 135 Ariz. 42, 58, 659 P.2d

1, 14 (1983); State v. Watson, 129 Ariz. 60, 63-64, 628

P.2d 943, 947 (1981).

South Carolina holds that a capital defendant’s be-

havior while in prison “is relevant because it does bear

upon a defendant’s character”. State v. Stewart, 320

S.E.2d 447, 450 (S.C.1984). Moreover, Florida has con-

strued Lockett to mean that

a person’s potential for rehabilitation is an element

of his character and therefore may not be excluded

from consideration as a possible mitigating factor.

Simmons v. State, 419 So.2d 316, 320 (Fla.1982)

Evidence of future dangerousness is relevant as an

aggravating circumstance, as we have held in Leather-

wood v. State, 485 So.2d 645, 652 (Miss.1983). Leather-

wood relies upon Jones v. State which states:

In our opinion, the legislature undoubtedly intended

a weighing of both at the time of sentencing so the

past behavorial patterns likely to affect the defend-

ant’s future behavior might be evaluated by the jury

in deciding whether the defendant will live or die.

We think there is no more justification for terminat-

ing consideration of the defendant’s criminal behav-

ior at the time of the offense than there is for ter-

minating consideration of favorable behavior at that

time.

—381 So.2d 983, 994 (Miss.1980) (Walker, J.);

see Reddix v. State, 381 So.2d 999, 1010 (Miss.

1980) (quoting Jones).

As Jones indicates, it surely follows that evidence of a

potential for doing good in the future is likewise relevant.

At trial Jordan attempted to offer the evidence of his

invention through a witness named Rhett Russell. One of

the inadequacies the majority finds in the proffered evi-

dence is the notion that Russell’s testimony “would have

27a

been hearsay and inadmissible’. For two reasons, the

point won’t wash. First, because the nature of the sen-

tencing hearing is unique, we are constitutionally pro-

hibited from a “mechanistic” enforcement of the hearsay

rule. Green v. Georgia, 442 U.S. 95, 97, 99 S.Ct. 2150,

2151-52, 60 L.Ed.2d 738, 741 (1979). Second, there is

nothing in the record from which the majority could

rationally conclude that Russell’s testimony would have

been hearsay. The proffer made by defense counsel was

that “Mr. Russell is familiar with all those details and

would testify about that’. Nothing in the record sug-

gests that the trial judge regarded Mr. Russell’s proffered

testimony as hearsay or rejected it on that basis.

Another red herring invoked by the majority is that

Jordan took the stand and testified at length on his own

behalf but did not attempt to describe the invention at

issue here. There are two altogether sufficient answers

here as well. First, we know of no rule of law under

which an error in refusal of admission of competent evi-

dence would be said to be cured by the fact that the

party had another, subsequent opportunity to offer the

same evidence and failed to do so. The majority cites

neither authority nor logic for its point and we suggest

that none may be found.

There is a more practical answer to the majority’s

point. Defense counsel offered the Russell testimony prior

to calling Jordan as a witness in his own behalf. In

spite of the majority’s speculations about hearsay, it is

clear from the record that the trial judge refused this

testimony on its merits; that is, he regarded the testi-

mony as objectionable on relevancy grounds, not form.

Defense counsel reasonably should have regarded that the

trial court had held that evidence of the invention was

inadmissible, period. Indeed, there is no other reasonable

interpretation of the state of things following the trial

court’s ruling on the Russell testimony. Seen in this light,

the majority can only be saying that trial counsel should

28a

be faulted for failing to continue to press a point of law

upon which the trial judge had already ruled. Although

it would not have been improper for defense counsel to

“try again”, no waiver attaches to the point when all

counsel does is show respect for the trial court and its

prior rulings. See Stong v. Freeman Truck Line, Inc.,

456 So.2d 698, 711 (Miss.1984) ; Jones v. State, 461 So.

2d 686, 702 (Miss.1984).

Our law is clear that, when a party seeks to offer testi-

mony and that testimony is rejected by the trial judge,

that party, if he wishes to preserve the point for appeal,

must place in the record the substance of what the ex-

cluded testimony would have been. See, e.g., Dazet v.

Bass, 254 So.2d 183, 187-188 (Miss.1971). This is for

the obvious purpose of enabling this Court on appeal to

consider whether the excluded testimony was of any real

consequence.

Our law is also clear that tie party may make his offer

of proof in one of two forms. First, he may call the wit-

ness outside the hearing of the jury and in question-and-

answer form present what the testimony would have been.

Alternatively, counsel may simply state for the record

that if the witness had been allowed to testify, he would

have stated such and such, setting forth the general out-

lines of the proffered testimony. We emphasize the avail-

ability of this latter procedure, for the majority appears

to fault Jordan for not making his proffer in question-

and-answer form.

We have repeatedly recognized that a wholly effective,

albeit alternative, method of preserving an exclusion of

evidence point for appeal is dictation into the record of

“a statement ... to indicate what was proposed to be

shown by the examination.” McGee v. State, 365 So.2d

302, 304 (Miss.1978) ; see also Bell v. State, 443 So.2d 16,

20 (Miss.1983); Martin v. Wadlington, 337 So.2d 706,

708 (Miss.1976); Kinney v. State, 336 So.2d 493, 495

({Miss.1976).

Aad et hia Obtain bt ie RNC ashi Atelier bh bo ts

roca sttles! talncdirentasend taal icin tte etchant ete

SEE nth ahh fs eset

29a

In Murray v. Payne, 487 So.2d 47 (Miss.1983), we

summed up the matter.

Al! we require is that the party offering the excluded

testimony make a clear record showing to us that

there ‘is substance to his point, that on reversal and

remand there is a substantial likelihood that he will

be able to offer evidence which may reasonably be ex-

pected to have an impact on the outcome of the case.

We do not require that the appealing party place in

the record the total and complete details of the prof-

ferec but excluded testimony. Nor do we require

certainty that exclusion of that testimony affected

the outcome of the first trial. 437 So.2d at 55.

In Murray we even expressed our preference for the

statement by counsel method of preserving the record,

referring to examination of the witness as “the more

cumbersome” method. 4387 So.2d at 55.

In the case at bar, the defense sought to call Rhett

Russell as a witness. A bench conference was held where-

upon the trial judge remarked

I was informed a little about what he would testify

to. And the State objected to it and I sustained it.

But I have offered the defense attorneys an oppor-

tunity to make a record on his testimony.

At this point, defense counsel stated for the record that:

If permitted to testify, Mr. Russell would testify

about a method for generating electricity from an

alternative energy source, as it is known; through

wind tunnels and things of that nature. Mr. Jordan

has been in contact with the Tennessee Valley Au-

thority over this invention and has entered into an

agreement with them about it. And Mr. Russell is

familiar with all those details and would testify

about that.

80a

This is a perfectly acceptable proffer, no doubt comparable

to many which we have held sufficient to preserve an evi-

dentiary exclusion point for consideration on appeal.

The bottom line holding of the majority is:

We are of the opinion that such testimony would

not be reasonably relevant to the question of whether

Jordan should suffer death or be sentenced to life

imprisonment.

No basis in fact, reason or legal authority is offered for

this conclusion. Why is evidence that Jordan may have

made a useful invention—and presumably, has the ability

to make more—not relevant to the question of whether he

should suffer death? We are simply not told.

It is with a certain amount of awe that any person

contemplates the matter of whether he should vote that

a fellow human being should die. What factors inform

the making of that-decision will no doubt differ from one

person to the next. Having been required to consider

more than half a hundred cases from across this state

wherein some juries have decided that capital murderers

should die and others on seemingly comparable facts have

decided that other capital murderers should live, I will

certainly not presume to know any authoritative check

list of just what goes through a juror’s mind when facing

this decision.

I can say with confidence, however, that there are not

just a few persons within our society who, faced as a

juror with a life or death determination, would regard it

as relevant that the defendant, since his crime and in-

carceration, had applied his wit and ingenuity and made

an invention that would benefit society. Not all of us are

without the capacity to see as proper the amelioration of

the harshness of the law in the face of genuine repent-

ence, pursuit of atonement and demonstrably responsible

behavior.

3la

What is most disturbing about the majority decision is

that it would, if carried to its logical extreme in the

future, operate as a matter of law to deprive society of

the benefits it could well derive from the continued life

of one convicted of capital murder. History has recorded

the names of numbers of persons who have in their youth

; committed heinous and atrocious crimes and, escaping

the hangman, gone on to lead productive and useful lives,

3 albeit behind bars. Nathan Leopold participated in the

thrill killing of little Bobby Franks in Chicago in the

early 1920s and, after he escaped the gallows largely

through the eloquence of Clarence Darrow, went on to

; make important humanitarian contributions in the fields

] of science and medicine. N. Leopold, Life plus 99 Years

; 305-38 (1958). Several decades ago there was popularized

the life of Robert Stroud, the birdman of Alcatraz, a con-

| victed murderer, who following reprieve made importance

contributions to avarian science. There have no doubt

been others. While most capital murderers do not have

such creative capacities in their character and person-

ality, there is no reason why we should arbitrarily deprive

society of the benefits of the continued life of those

who do.

| The point, in a nutshell, is this. One of the funda-

mental thrusts of the last ten years of death penalty

litigation has been establishment of the premise that the

awesome decision of life or death should be committed to

i the jury as a representative of the collective conscience of

the community. Through juries the contemporary values

of society are infused into the decision making process.

Gregg v. Georgia, 428 U.S. 153, 179-182, 96 S.Ct. 2909,

2928-29, 49 L.Ed.2d 859, 878-79 (1976); Woodson v.

; North Carolina, 428 U.S. 280, 295, 96 S.Ct. 2978, 2986-

; 87, 49 L.Ed.2d 944, 955-956 (1976). We have been quick

to reject efforts to infuse arbitrary factors into the sen-

tencing process, factors that would deflect from the jury

any substantial part of its awesome decision-making re-,

sponsibility in death penalty cases. Wiley v. State, 449

32a

So.2d 756, 761-763 (Miss.1984); Williams v. State, 445

So.2d 798, 810-814 (Miss.1984).

It is in the foregoing context that we recall the man-

date of Lockett and Eddings that the sentencing jury

not be precluded from considering, as a mitigating

factor, any aspect of the defendant’s character...

that the defendant offers as a basis for a sentence

less than death.

438 U.S. at 604, 98 S.Ct. at 2964-65, 57 L.Ed.2d at

990.

For this Court to hold as a matter of law that the making

of a socially useful invention-is not a relevant mitigating

circumstance is at absolute cross purposes with the force

of the logic of Gregg and Woodson and Lockett and Ed-

dings and all of the others. More important, it is, as we

perceive the present state of the law, constitutionally im-

permissible, with the unfortunate ultimate result that

this case is now destined to drag on even longer than

would have been the case had the majority been willing

to bite the bullet and correctly apply Lockett to the facts

at hand.

I concur in what has been said by the majority on all

other issues, I would hold, however, that the trial judge

impermissibly restricted Jordan in his presentation of

mitigating circumstances. I would reverse and remand

for a new hearing on the question of sentence where

Jordan’s rights under Lockett and Eddings would be fully

respected.

HAWKINS, PRATHER and SULLIVAN, join this

opinion.

HAWKINS, Justice, joining Justice ROBERTSON:

I am compelled to join Justice Robertson in what I

must view as unassailable reasoning.

‘

38a

Justice Robertson names men who significantly con-

tributed to humanity despite having previously committed

murder. Diffidently, I would add two more, David? and

Solomon.?

History repeatedly teaches us that humanity’s bene-

factors have not been limited to those mortals who never

committed serious transgressions or were totally sane.

The jury was entitled to hear this testimony.

1TI Samuel 11:14-17 (his lover’s husband).

2I Kings 2:22-25 (his half brother).

34a

IN THE SUPREME COURT OF MISSISSIPPI

DECISIONS HANDED DOWN JANUARY 30, 1985

* * s *

ROY NOBLE LEE, P.J.

XXX 55,493 Richard Gerald Jordan v. State; Circuit,

Harrison; Conviction of Capital Murder

and Sentence of Death Affirmed. Wednes-

day, March 6, 1985, Set for Execution of

the Death Penalty as Provided by Law.

Patterson, C.J., Walker, P.J., Hawkins,

Dan Lee, Prather, Robertson, Sullivan and

Anderson, JJ., Concur as to Parts [-VIII,

and Parts X-XI. As to Part IX: Patter-

son, C.J., Walker, P.J., Dan Lee and Ander-

son, JJ., Concur. Robertson, Hawkins, Sul-

livan and Prather, JJ., Dissent.

.o « + *

ONLY CASES MARKED “xX”

HAVE WRITTEN OPINIONS.

Respectfully submitted,

ROBERT E. WOMACK, Clerk

YVONNE P. BURNHAM, D. C.

A ne tl Ga a em Rs a

whens ite ence are

35a

IN THE SUPREME COURT OF MISSISSIPPI

No. 55,493

RICHARD GERALD JORDAN

¥.

STATE OF MISSISSIPPI

ORDER STAYING EXECUTION

The Court having considered the Motion for Stay of

Execution filed by the appellant, the date of execution

being set for Wednesday, March 6, 1985, and, finding

that the appellant has filed a Petition for Rehearing in

this Court;

IT IS, THEREFORE, ORDERED that the execution of

the apellant be stayed pending final disposition of said

Petition for Rehearing and further order of this Court.

SO ORDERED this the 4th day of March, 1985.

/s/ Roy Noble Lee

Roy NOBLE LEE

Presiding Justice

ATTEST

A TRUE Copy

This the 4th day of

March, 1985

ROBERT E. WOMACK, Clerk

SUPREME COURT OF MISSISSIPPI

By /s/ S. Brunt

SS ae ee Ee

36a

IN THE SUPREME COURT OF MISSISSIPPI

DECISIONS HANDED DOWN MARCH 138, 1985

* * * .

THE COURT SITTING EN BANC:

* * * +

55,493 Richard Gerald Jordan v. State; Circuit, Harri-

son; Petition for Rehearing Denied. As to Part

IX: Hawkins, Prather, Robertson and Sullivan,

JJ., Dissent.

* * * -

ONLY CASES MARKED “X”

HAVE WRITTEN OPINIONS

Respectfully submitted,

ROBERT E. WOMACK, Clerk

YVONNE P. BURNHAM, D. C.

37a

IN THE CIRCUIT COURT

OF HARRISON COUNTY, MISSISSIPPI

FIRST JUDICIAL DISTRICT

No. 18,807

STATE OF MISSISSIPPI,

Plaintiff

RICHARD GERALD JORDAN,

Defendant

[61] MOTION TO PRECLUDE CONSIDERATION

OF MISS. CODE ANN. § 99-19-101 (5) (h)

Comes now the defendant, Richard Gerald Jordan, by

his attorneys, and respectfully requests that the Court

enter an order preventing the state from relying in any

way on the aggravating circumstance that ‘“‘[t]he capital

offense was especially heinous, atrocious or cruel,” Miss.

Code Ann. § 99-19-101(5) (h) (Cum. Supp. 1982). This

motion is made pursuant to the Fifth, Eighth, and

Fourteenth Amendments to the Constitution of the United

States and pursuant to Miss. Code Ann. § 97-3-19, 99-19-

101 (Cum. Supp. 1982). In support of this motion,

defendant says the following:

1. Eighth Amendment. Under both the Eighth Amend-

ment and Mississippi law, a crime may be characterized

as “heinous, atrocious or cruel” only if it is a conscience-

less or pitiless crime that is unnecessarily torturous to

the victim.

38a

2. The undisputed evidence at the previous trials

showed that Mrs. Marter was killed instantaneously [62]

by a single gunshot wound in the head. The District At-

torney has, in the court-ordered discovery, indicated that

on this point he will present no witnesses or evidence not

presented at the previous trials. Therefore, the evidence

at this trial will show at most that Mrs. Marter was

killed instantaneously by a single gunshot wound in the

head.

3. As a matter of law, a crime resulting in instan-

taneous death by a single gunshot wound in the head is

not a conscienceless or pitiless crime that is unnecessarily

torturous to the victim.

4. Fifth Amendment. At the previous trial, the jury

did not find that the capital offense was especially

heinous, atrocious, or cruel. Under the double jeopardy

clause of the Fifth Amendment, the state has had one

fair opportunity to offer whatever proof it could assemble,

and it is not entitled to another.

5. Fourteenth Amendment. The due process clause of

the Fourteenth Amendment applies the Fifth and Eighth

Amendments, as described above, to the states. In addi-

tion, the due process clause requires reversal of a jury

verdict in a criminal case if no rational trier of fact

couid find the asserted fact beyond a reasonable doubt.

No rational trier of fact could find beyond a reasonable

doubt that defendant’s capital offense was a conscienceless

or pitiless crime that was unnecessarily torturous to the

victim. It would thus be prejudicial, unconstitutional,

and reversible error to submit this aggravating circum-

stance to the jury.

[63] Therefore, defendant respectfully requests that the

Court enter an order preventing the state from relying

on Miss. Code Ann. § 99-19-101(5) (h).

none al ied [Mist ted bi ae. Bieta

39a

Respectfully submitted,

/s/ Earl B. Stegall

EARL B. STEGALL

Post Office Box 1542

Gulfport, Mississippi 39501

/s/ Joseph P. Hudson

JOSEPH P. HUDSON

Lawyer & Hudson

Post Office Box 908

Gulfport, Mississippi 39501

Of Counsel:

TIMOTHY N. BLACK

JAMES T. KILBRETH III

Roy T. ENGLERT, JR.

Wilmer, Cutler & Pickering

1666 K Street, N.W.

Washington, D.C. 20006

CERTIFICATE

I, Joseph P. Hudson, attorney for Defendant, do hereby

certify that I have this day hand delivered a true and

correct copy of the above and foregoing Motion To Pre-

clude Consideration Of Miss. Code Ann. § 99-19-101(5)

(h) to the Honorable Albert Necaise, District Attorney,

Harrison County Courthouse, Gulfport, MS 39501.

This the 18th day of April, 1983.

/s/ Joseph P. Hudson

JOSEPH P. HUDSON

[Filed Apr. 13, 1983]

40a

IN THE CIRCUIT COURT

OF HARRISON COUNTY, MISSISSIPPI

FIRST JUDICIAL DISTRICT

No. 18,807

STATE OF MISSISSIPPI

versus

RICHARD GERALD JORDAN

Before THE HONORABLE DARWIN M. MAPLES, Circuit

Court Judge of Jackson County, Mississippi (this case

was transferred from Jackson County for trial on sen-

tencing phase).

* * * ~

THURSDAY

APRIL 28, 1983

+ * * *

[856] MR. LUCIUS BROWN was thereupon called to

the stand as a witness by counsel for the Defendant and,

having been first duly sworn, testified as follows in the

presence of the Jury:

DIRECT EXAMINATION

BY MR. HUDSON:

Would you state your name?

A Officer Lucius Brown.

Q Officer Brown, what is your address?

A Route 1, Box 278, Tutwiler, Mississippi.

Where are you employed, Officer Brown?

Mississippi Department of Corrections.

Q Where specifically do you work for the Mississippi

Department of Corrections?

4ila

A Maximum Security Unit. That’s Unit 17.

Q What is your age, p’ease?

A Thirty-eight (38).

Q Do you know the defendant, Richard Gerald Jor-

dan?

A Ido.

Q For what period of time have you worked for the

Mississippi Department of Corrections?

A It will be four years on May the 10th.

Q How long have you been at the maximum security

unit?

A For the time that I was employed. Since May the

10th of ’79.

Q Was it on that date that you met this Defendant?

A Yes, it was.

Q What were the circumstances of your first [857]

meeting Gerald Jordan?

A The circumstances of my first meeting Gerald Jor-

dan was that Gerald Jordan—I came in contact with

Gerald Jordan when it was time to put them on the ex-

ercise yard, which is something we do every day. We put

them on the yard for a certain length of time. That’s

when I first met Gerald Jordan.

Q What are your job duties there at the maximum

security unit?

A My job duty there is to work on—well we are as-

signed to a certain tier. I am assigned to C tier, which

is death row. And my main job there is to make sure

that each inmate gets their meal, their medication, their

exercise that they should get, their writing material;

whatever is necessary that they need, I make sure that

they get it.

Q And you are the officer in charge on C tier?

A Yes, Iam.

Q How often do you come into contact with Gerald

Jordan?

A Every day, five days a week, except Wednesday

and Thursday. But the other days, I tome in contact

with him.

42a

Q What contact have you had with him as it relates

to the operation of C tier?

A Well, when I became the officer in charge of C

tier, a week later I went to Unit Administrator and dis-

cussed with him that I would like to have Gerald Jordan

for my hall man. At that time we discussed it, and we

chose Gerald Jordan to be a hall man. And the hall

man’s job is to make sure that each inmate gets his food

when we put it on the tier; make sure that each inmate

gets his pencil sharpened when he is supposed to; make

sure that they get [858] hot water for his coffee; make

sure that he keeps his tier clean. That’s his job there

where I’m working; the tier and windows in the cells.

Q Okay. And why was it you chose Gerald Jordan

for that position of hall man?

A Because he showed me he was interested and he

wanted to keep the tier clean. And I felt that he was

the man to be chose to do this job because he was inter-

ested in doing it. He had personal hygiene about him-

self. And I felt that he would be the right man for it.

Q Over what period of time did Gerald Jordan per-

form this job as hall man?

A Up until approximately the time he was moved

down here by Court Order.

Q How did he perform that job?

A He responded with a positive attitude. I had no

problems. Whenever you told him to do anything, he did

it. He didn’t refuse. He even volunteered to do some

work on his own, which was washing the walls and

everything. I had no problem out of him whatsoever.

He got along with the inmates well. When he got a

package in, he shared it with each inmate.

Q What type of package are we talking about?

A These are packages that their people send them.

They can get one once a month. Like food, candy, cookies,

potatoe chips, and stuff of that nature. And he shared

OD Ee Oa ge nk ec Mio rf 0 atte ee aw sete ny OS ne te a reeves

Fe A EON rea BAA tad

43a

it with each inmate when he got one in, and vice versa

with the other inmates.

Q Officer Brown, does the job of hall man require

your placing a degree of trust in the person selected?

[859] BY MR. OWEN: May it please the Court, we

object to this. First of all, this is three years after the

crime.

BY THE COURT: I sustain it.

BY MR. HUDSON: Your Honor, I think that it is

certainly a relevant matter to the defendant’s character;

how he has been, the process of rehabilitation.

BY THE COURT: Sustained.

BY MR. OWEN: That is not an issue, Judge.

BY THE COURT: I sustained it.

BY MR. HUDSON:

Q Has Gerald Jordan ever demonstrated any violent

tendencies?

A Not to my knowledge.

BY MR. OWEN: May it please the Court, we object

to that. How could he in maximum security.

BY THE COURT: Sustained.

BY MR. HUDSON:

Q@ Have you had occasion to observe the attitude of

this defendant?

A Yes, I have.

Q How would you characterize that attitude?

A Peaceful, well mannered person—

BY MR. NECAISE: We object to that as not being

a proper question, if the Court please.

BY THE COURT: Sustained.

[860]

BY MR. HUDSON:

Q Do you know the reputation of the Defendant for

peace and violence?

44a

BY MR. NECAISE: We object to that, if the Court

please.

BY THE COURT: Sustained. Now, you are talking

about in maximum security?

BY MR. HUDSON: Yes, sir.

BY MR.OWEN: They are all peaceful—

BY MR. STEGALL: —Judge, we are going to object

to that. That’s certainly not the case.

BY THE COURT: I have sustained the objection.

Let’s move on.

BY MR. HUDSON:

Q Do you know, Officer Brown, whether or not this

is a defendant that can be rehabilitated?

BY MR. NECAISE: We object to that, if the Court

please.

BY THE COURT: Sustained.

BY MR. HUDSON:

Q Is it true, Officer Brown, that other inmates in

M.S.U. frequently have fights on the yard?

A Yes.

Q Has Gerald Jordan ever been involved in any of

them?

BY MR. NECAISE: Objection.

BY THE COURT: Sustained.

[861] BY MR. HUDSON: We tender the witness.

CROSS EXAMINATION

BY MR. NECAISE:

Q Mr. Brown, you have been head of Tier C, which

is on M.S.U., which is death row.

BY MR. STEGALL: Judge, I’m going to object to

that, if it please the Court. May we approach the bench?

BY THE COURT: Sure.

(Whereupon a bench conference was held.)

}

;

‘

45a

BY MR. NECAISE:

@ On M.S.U. on the death row, each individual in-

mate convicted and sentenced to death has a separate

cell?

A That’s correct.

Q That’s about what; an 8’ by 10’?

A That’s correct.

Q They are all just lined up on one side, because you

have a row of windows right here which are outside;

and you have a cell here, here and right on down, just

like a row of rooms or stalls, or whatever you want to

call it?

A That’s correct.

Q All right. Of course, you have got a row of bars

here and then the wall out there; right?

A With the bars in front of each cell.

Q Then you have the bars on the cells right here?

A Correct.

Q And then you have got a sealed door back here

that opens up to go in to or on death row?

[862] A Correct.

Q So when you talk about letting Gerald Jordan be

the hall boy, he just walks from cell one to cell twenty-

eight, or whatever it is down there, a distance of about

four feet wide?

A That’s correct.

Q Any one of them can. You have what—about

thirty-three (33) inmates up there?

A Thirty-five (35) now.

Q Now, they don’t come out of that cell—that 8’ by

10’ cell unless—do they have a shower in there? I have

forgot.

A Yes, they do.

Q The shower is in there. So they don’t come out of

there unless they come down the hallway, out this one

door, and into about a 50 by 75 exercise yard with about

a 12 foot chainlink fence, with barb wire on it and

guards at the stations. And you don’t put them all out

there at one time, do you?

46a

A No, we don’t.

Q You have a routine where you take three or four

at a time out there?

A No. Thirteen (18).

Q You take thirteen at a time. Do they go every

other day?

A Every day.

Q Every day they get an hour of exercise?

A They get four hours.

Q Four hours a day now.

A They are required one hour, but we give them four

hours.

Q Now, you have been there since ’79?

[863] A That’s correct.

Q Didn’t you have some problems with death row

inmates about wanting television—

BY MR. STEGALL: May it please the Court, I’m

going to object—

BY MR. NECAISE: —TI didn’t finish my question.

BY MR. STEGALL: I’m sorry if you didn’t finish

your question.

BY MR. NECAISE:

Q@ Haven’t you had some problems with death row

inmates about the quality of the food, and taking their

pens and paper away from them, and their writing ma-

terial and so forth, and censoring their mail? Hadn’t

there been some problems with that?

BY MR. STEGALL: May it please the Court, I’m

going to object to that. That has nothing whatsoever to

do with this Defendant.

BY THE COURT: Overruled.

BY MR. NECAISE:

Q Haven’t you had that, Mr. Brown?

A Yes. But not with Jordan.

47a

Jordan was not involved in that?

No, he wasn’t; not to my knowledge.

Are you sure of that?

Positive.

Are you sure he-didn’t--have-anything to do with

To my knowledge.

To your knowledge?

Right.

[864] @Q Do you know everybody that was involved in

it?

A Well, I know quite a few. I know the ones that

was involved that got disciplined with R.V.R.’s, and I

issued some of those R.V.R.’s.

Q Now, of course, any of them are willing to get out

and do anything to get out and walk up and down the

hall and get some exercise and give out some plates?

A No. ‘

Q They don’t want to do that?

A Some of them don’t even want to get out.

Q Richard Gerald Jordan is one of the oldest ones in

length of time up there, isn’t he?

BY MR. STEGALL: May it please the Court, I’m

going to object to that.

BY THE COURT: Overruled.

>O> OPOPoO

BY MR. NECAISE:

Q Isn’t he? When you went there, he had been there

the longest of most of them there; there wasn’t but two

or three ahead of him?

BY MR. STEGALL: I’m going to object to that. This

witness couldn’t possibly—he said he had been there

since 1979 and the man had been there since that point

and time.

BY THE COURT: Overruled. Go ahead.

BY THE WITNESS: According to the roster that

we have there, no, he is not the longest one there.

48a

BY MR. NECAISE:

Q I did not say the longest. A man from [865] Jack-

son County is the longest.

BY MR. STEGALL: At this time, I’m going to object

to comments by counsel.

BY MR. NECAISE:

Q I’m just asking you, Jordan is among one of the

oldest on death row in the length of time there; since

1976?

A _ I wouldn’t know.

Q You wouldn’t know?

A No. Because I wasn’t there in ’76.

Q Well, when you got there. How many were there

in ’79 when you got there?

A I believe there was thirteen (13) if I’m not mis-

taken.

Q Thirteen. And there are now thirty-three (33)?

A Thirty-five (35).

Q Thirty-five. Okay. Of course, there is not much

trouble a death row inmate can give you with the type

security you all have there?

A Well, you can get problems from them now.. Some-

times we be short of manpower, and there is a time that

they can give you problems when you are not expecting

it.

Q Of course, you have got them all individually

locked, and you have got the cell doors that work where

you can open only one cell door at a time, don’t you?

A When you get ready to put them on the yard, that’s

a chance that they can give you a problem. Because when

you put them on the yard, you open the cell door and they

are going out there—all thirteen (13) of them, or what-

ever amount wants to go. That’s when they could give

you problems if they wanted to.

([866] Q The problem they could give you is if they

wanted to fight one another; they can’t get to you, can

they?

49a

A Oh, yes, because when we let them on the yard,

counsel, we have to be on the tier with them to keep

them from fighting among themselves in case they wanted

to do this. So when we let an inmate out of his cell,

there is an officer right there to escort him out to wher-

ever he is going.

Q But you are not armed when you go out on the

tiers?

A No.

Q So, ya'll are not worried about them giving you

that much trouble because you are not even armed?

A That’s correct.

BY MR. NECAISE: That’s all we have.

RE-DIRECT EXAMINATION

BY MR. HUDSON:

Q Officer Brown, the District Attorney has asked

you extensively about the conduct of this Defendant. You

indicated there had been trouble up at M.S.U. from time

to time.

A Yes.

Q Has Richard Jordan ever participated in any of

the trouble or problems?

A No.

Q He has been a good inmate?

A Yes.

Q Would you characterize his behavior as excellent?

BY MR. NECAISE: Object to that as being leading.

[867] BY THE COURT: Wasit?

BY THE WITNESS: Well, I wouldn’t classify him

as being excellent, but I would say that he is a man

that I feel wants to rehabilitate himself.

BY MR. NECAISE: We object to that, if the Court

please. It is unresponsive to the question.

BY THE COURT: Sustained.

BY MR. NECAISE: I would ask the Court to in-

struct the Jury to disregard that. It is an unresponsive

answer.

BY THE COURT: The Jury will disregard it.

50a

BY MR. HUDSON:

Q Now, Officer Brown, has Richard Jordan ever per-

formed services for the officers and other inmates that

he was not required to do?

A No.

Q Does he cut hair?

BY MR. NECAISE: Object to the leading, if the

Court please.

BY THE COURT: Don’t lead him.

BY MR. HUDSON: No further questions.

RE-CROSS EXAMINATION

BY MR. NECIASE:

Q Richard Gerald Jordan is one of your more intelli-

gent people up there, isn’t he?

A I wouldn’t say that.

Q Would you put him in the lower ten percent of the

people up there?

[868] A No, I wouldn’t.

BY MR. HUDSON: Your Honor, we cbject to that

question. We don’t know what the lower ten percent is.

BY MR. NECAISE:

Q How would you classify him in comparing him

with the other 35 death row inmates as far as intelli-

gence?

BY MR. HUDSON: Your Honor, the witness has al-

ready addressed the question as to what he thinks about

this question.

BY MR. NECAISE: He talked about his reputation.

I want to know about his intelligence.

BY MR. HUDSON: Judge, he has already answered

that question.

BY THE COURT: Overruied. How would you clas-

sify him?

BY THE WITNESS: Asa respectable inmate.

5la

BY THE COURT: I mean intelligence wise. Is he

among the more intellectual ones there?

BY THE WITNESS: Well, Your Honor, yes, he

would be.

BY MR. NECAISE:

Q So the more intelligent they are, the more oppor-

tunity they have to con somebody, don’t they?

BY MR. HUDSON: Your Honor, I’m going to object

to that.

BY THE COURT: Sustained.

[869] BY MR. HUDSON: I would ask that the Jury

be instructed to disregard it.

BY THE COURT: All right; is that all, Mr. Necaise?

BY MR. NECAISE: Did we get an answer?

BY THE COURT: I sustained it.

BY MR. HUDSON: Nothing further of this witness.

BY THE COURT: Is that all?

BY MR. NECAISE: Judge, what is this man’s badge

number? Does he have a badge number?

BY MR. HUDSON: I’m going to object to that. This

man is here pursuant to a subpoena.

BY MR. NECAISE: Well, we are entitled to get his

badge number.

BY THE COURT: Do you have badges up there? A

number?

BY THE WITNESS: Right; we do.

BY THE COURT: What is your number?

BY THE WITNESS: 1196.

BY THE COURT: All right, thank you. You may be

excused.

(The Witness Was Excused.)

- * * a

52a

IN THE CIRCUIT COURT

OF HARRISON COUNTY, MISSISSIPPI

FIRST JUDICIAL DISTRICT

No. 18,807

STATE OF MISSISSIPPI

versus

RICHARD GERALD JORDAN

Before THE HONORABLE DARWIN M. MAPLES, Circuit

Court Judge of Jackson County, Mississippi (this case

was transferred from Jackson County for trial on sen-

tencing phase).

* * * *

THURSDAY

APRIL 28, 1983

* * * *

[922] (Whereupon a bench conference was had, after

which the Jury was sent out and the following proceed-

ings were had in the absence of the Jury: )

BY THE COURT: Let the record show that Defense

Counsel has offered the Honorable Rhett Russell as a

witness. He had a conference here at the bench and I

was informed a little about what he would testify to.

And the State objected to it and I sustained it. But I

have offered the Defense Attorneys an opportunity to

make a record on his testimony.

BY MR. KILBRETH: Your Honor, if permitted to

testify, Mr. Russell would testify about a method for

generating electricity from an alternative energy source,

as it is known; through wind tunnels and things of that

nature. Mr. Jordan has been in contact with the Ten-

53a

nessee Valley Authority over this invention and has en-

tered into an agreement with them about it. And Mr.

Russell is familiar with all those details and would tes-

tify about that.

BY THE COURT: This is some thoughts and ideas

that have been developed by Mr. Jordan since he has

been in prison; is that right?

BY MR. KILBRETH: That is correct, Your Honor.

BY THE COURT: Okay. Thank you. Are you ready

[923] to proceed, gentlemen?

BY MR. HUDSON: Yes, sir.

* * * *

54a

IN THE CIRCUIT COURT

OF HARRISON COUNTY, MISSISSIPPI

FIRST JUDICIAL DISTRICT

No. 18,807

STATE OF MISSISSIPPI

versus

RICHARD GERALD JORDAN

[1184] SENTENCING INSTRUCTION NO. S-1

The defendant has been found guilty of the crime of

Capital Murder; you must now decide whether the de-

fendant will be sentenced to death or to life imprison-

ment. In reaching your decision, you may objectively

consider the detailed circumstances of the offense for

which the defendant was convicted, and the character

and record of the defendant himself.

To return the death penalty in this case you must first

unanimously find from the evidence beyond a reasonable

doubt that one or more of the following facts existed:

1. The defendant actually killed Edwina Marter;

2. That the defendant contemplated that lethal force

would be employed.

Next, to return the death penalty, you must find that

the mitigating cireumstances—those which tend to war-

rant the less severe penalty, life imprisonment—do not

whi st —"!

55a

outweigh the aggravating circumstances—those which

tend to warrant the death penalty.

Consider only the following ements «? aggravation in

determining whether the Geeth pemalt, shew! be im-

posed :

1. Whether or not the defendamt Riche: Serald

Jordan committed the Capital Murder whi. en-

gaged in the commission of the erame » Kidmap-

ping.

2. Whether or not the deferdant Richard Gerald

Jordan committed the Cap tal Murder ‘ an es-

pecially heinous, atrocious or <fywel mammer.

[1185] 3. Whether or not the defendant Niehwwu Gerald

Jordan committed the Capital Murder for peeani-

ary gain.

4. Whether or not the Defendant Richerd “erald

Jordan committed the Capital Murder for the

purpose of avoiding arrest.

You must unanimously find, beyond a reasonable doubt,

that one or more of the preceding aggravating circum-

stances exists in this case to return the death penalty.

If none of these aggravating circumstances are found to

exist, the death penalty may not be imposed, and you

shall write the following verdict on a sheet of paper:

“We, the jury, find the defendant should be sen-

tenced to life imprisonment.”

If one or more of these aggravating circumstances is

found to exist, then you must consider whether there

are mitigating circumstances which outweigh the ag-

gravating circumstances. Consider the following ele-

ments of mitigation in determining whether the death

penalty should be imposed:

1. The defendant has no significant history of prior

criminal activity.

56a

2. The age of the defendant at the time of the

crime.

3. Any other matter, any other aspect of the de-

fendant’s character or record, and any other cir-

cumstance of the offense brought you during the

trial of this cause which you, the jury, deem to

be mitigating on behalf of the defendant.

If you find from the evidence that one or more of the

preceding elements of mitigation exists, then you must

consider whether it (or they) outweigh(s) or over-

come(s) the aggravating circumstance(s) you previously

found. In the event that you find that the mitigating

circumstances do not outweigh or overcome the aggra-

vating circumstances you may impose the death sentence.

Should you find that the mitigating circumstances out-

weigh or overcome the aggravating circumstances, you

shall not impose the death sentence.

[1186] C.

The verdict you return must be written on a separate

sheet of paper by the foreman. Your verdict should be

written in one of the following forms:

(1) “We, the jury, unanimously find from the evi-

dence beyond a reasonable doubt that the fol-

lowing facts existed at the time of the commis-

sion of the capital murder: [List or itemize all

facts found, if any, from the list under section

A of this instruction which you unanimously

agree exist in this case beyond a reasonable

doubt]

Next,

(2)

(3)

57a

We, the jury, unanimously find that the ag-

gravated circumstance(s) of: [List or itemize

all of the aggravating circumstance(s) pre-

sented in section B of this instruction which

you unanimously agree exist in this case beyond

a reasonable doubt}

is/are sufficient to impose the death penalty and

that there are insufficient mitigating circum-

stances to outweigh the aggravating circum-

stance(s), and we unanimously find that the

defendant should suffer death.

Foreman of the Jury”

“We, the jury, find that the defendant should

be sentenced to life imprisonment.”

“We, the jury, are unable to agree unanimously

on punishment.”

[Filed April 29, 1983]

58a

IN THE CIRCUIT COURT

OF HARRISON COUNTY, MISSISSIPPI

FIRST JUDICIAL DISTRICT

No. 18,897

STATE OF MISSISSIPPI,

Plaintiff

versus

RICHARD GERALD JORDAN,

Defendant

[1218] INSTRUCTION D-32

The Court instructs the jury that you may not find

that the capital offense was especially heinous, atrocious,

or cruel if you find from the evidence that the victim

died a quick death without unnecessary pain and torture.

[Filed April 29, 1983]

59a

IN THE CIRCUIT COURT

OF HARRISON COUNTY, MISSISSIPPI

FIRST JUDICIAL DISTRICT

No. 18,807

STATE OF MISSISSIPPI

versus

RICHARD GERALD JORDAN

[1219] INSTRUCTION D-33

The Court instructs the jury that you may not find

that the capital offense was especially heinous, atrocious,

or cruel unless you find beyond a reasonable doubt that

the actual murder of Edwina Marter was accompanied

by acts of torture to Edwina Marter.

[Filed April 29, 1983]

60a

IN THE CIRCUIT COURT

OF HARRISON COUNTY, MISSISSIPPI

FIRST JUDICIAL DISTRICT

No. 18,807

STATE OF MISSISSIPPI

versus

RICHARD GERALD JORDAN

[1221] INSTRUCTION D-35

The Court instructs the jury that you may not find

that the capital offense was especially heinous, atrocious,

or cruel unless you find beyond a reasonable doubt that

the actual commission of the capital murder of Edwina |

Marter was accompanied by such additional acts as to set |

the crime apart from the norm of capital felonies—the

conscienceless or pitiless crime that is unnecessarily tor-

turous to the victim.

[Filed April 29, 1983]

6la

IN THE CIRCUIT COURT

OF HARRISON COUNTY, MISSISSIPPI

FIRST JUDICIAL DISTRICT

No. 18,807

STATE OF MISSISSIPPI

versus

RICHARD GERALD JORDAN

Before THE HONORABLE DARWIN M. MAPLES, Circuit

Court Judge of Jackson County, Mississippi (this case

was transferred from Jackson County for trial on sen-

tencing phase).

FRIDAY

APRIL 29, 1983

[1078] (Whereupon in the absence of the Jury, the fol-

lowing proceedings were had:)

* * * *

BY THE COURT: Okay, would you be looking at

this. This is the usual one. We will go with S-1 here.

State’s Instruction S-1; what do you say for the Defend-

ant?

BY MR. KILBRETH: We would object to S-1, Your

Honor. |

BY THE COURT: Okay. State your objections.

BY MR. KILBRETH: * * * [1079] Second, we don’t

believe that any evidence in this case demonstrates the

kind of torture to the victim as required for instructions

62a

with respect to heinous, atrocious and cruel. * * * Now,

with respect to each of those, Your Honor, if you do de-

cide that you are going to give those instructions for

each of those aggravating circumstances, we have some

alternative instructions which I will supply to the Court.

I believe they have been supplied to the District Attor-

ney. So, I suppose the thing to do, Your Honor, would

be to rule on whether you are going to give those.

BY THE COURT: I am going to give these aggra-

vating [1080] circumstances as listed in the State’s in-

struction.

BY MR. KILBRETH: In that event, Your Honor, we

would request that you give some additional instructions

with respect to each of those; * * * D-32 requires the

Jury to find that before they can find the murder was

especially heinous, atrocious or cruel that there was

torture as opposed to a quick death. D-33 is similar to

D-32. I won’t repeat it. * * * D-35 is similar to 32 and

33. * 2

[1081] BY THE COURT: All right. Defendant’s In-

structions 27 through 36 inclusive will be refused.

* * * *

[1086] BY THE COURT: * * * For the record, In-

structions D-1 through D-26 are refused.

* * * *

[1087] BY MR. KILBRETH: And I might add, Your

Honor, that the basis of all of these proposed instruc-

tions and objections to S-1 have been urged here and

have previously been reflected in other papers we have

filed.

BY THE COURT: They have.

BY MR. KILBRETH: Which we adopt again.

* * * *

63a

IN THE CIRCUIT COURT

OF HARRISON COUNTY, MISSISSIPPI

FIRST JUDICIAL DISTRICT

No. 18,807

STATE OF MISSISSIPPI

versus

RICHARD GERALD JORDAN

Before THE HONORABLE DARWIN M. MAPLES, Circuit

Court Judge of Jackson County, Mississippi (this case

was transferred from Jackson County for trial on sen-

tencing phase).

FRIDAY

APRIL 29, 1983

[1090] (Whereupon “gg closing arguments were made

to the Jury as follows:

BY THE COURS#®\?¥ hat do you say for the State?

BY MR. OWEN: May it please the Court, counsel

opposite, ladies and gentlemen of the Jury, as Your

Honor has told you, we have the opportunity to make our

summation or closing arguments. I will take approxi-

mately 30, 35 or maybe 40 minutes in which to argue

this case to you. So I ask that you, as best you can, give

me your attention during this period of time.

As Your Honor has already instructed you, Richard

Gerald Jordan has been found guiity of capital murder

by another Jury at another time. Through the entire

64a

procedure that we employed here, at another time and

another place we presented this case, and the Jury found

him guilty. We were required to do so as we went

through that process of convicting him of guilt. Now

the time comes for the sentencing, and we see Mr. Jordan

come up on the stand. Six years. He takes the stand

and he says, I’m a changed man; I didn’t mean to do

what I did. You finally got me convicted; now you got

me in the box; it’s getting close to the penalty stage;

I’m going to play on your sympathy, I’m going to play

on your mercy, I’m going to play on [1091] your bias.

I’m a changed man. I didn’t mean to do what I did.

It was an accident, and I’m sorry because I have found

the Lord.

BY MR. STEGALL: I’m going to object, Judge. And

I will state my reasons at a later time.

BY THE COURT: All right. Over uled.

BY MR. OWEN: That, ladies and gentlemen, is what

has occurred in this case since February and January of

1976. You heard his testimony. Very somber; very con-

concerned; very deliberate testimony given to you. You

also heard the tape recording of the night of January 12

and the morning of January 13, 1976, when he haunted,

harassed and ran that man right there around Harrison

County, Mississippi, wondering if his wife was still alive.

I ask each one of you is that the same voice, same man

who came up before you yesterday and told you he was

sorry. You heard that tape. A cold, caleulated—not a

confused, not a misguided or misled young man. You

heard that tape. Ladies and gentlemen of the Jury, you

are going to hear the argument from both sides. You are

going to hear the statement of counsel opposite about the

duty and responsibility of the District Attorney’s Office

to prosecute and see that the death penalty is imposed.

But I tell you as I stand here, I am not a member of the

District Attorney’s Office. I’m a Special Prosecutor; I

haven’t been assigned to nor affiliated with the District

Attorney’s Office in seven (7) years. I am not a propo-

Wena .

65a

nent of the death penalty in every case. I have never

advocated that, and I [1092] don’t advocate that to you

today. But what I tell you is that there are cases that exist

that warrant the imposition of the death penalty. And I

have never in my eleven (11) years of practive ever seen a

case so atrocious, so cruel and inhumane, that justifies

the death penalty as this particular case does. Now, what

you have got to do in this case—and sometimes it is very

hard to do that—you have got to separate your mind

from your heart. You have got to employ and you have

got to use common sense. Because sometimes we become

moved by our fellow man when he makes retribution;

when he repents. You say, well, maybe this is really

sincere. And we tend to forget about, and we put aside

what happened January the 12th and January the 13th.

We tend to forget about what was going through Edwina

Marter’s mind because she is not here to tell you about it.

We forget about what was going through Chuck Marter’s

mind. All of this atrocious effect of this crime, we tend

to forget about. I-wish I could bring Edwina Marter here

to sit up here and take the same stand that Richard

Gerald Jordan did because I know you would have a

different viewpoint after you heard her testimony. But

I can’t do that. What I’m asking you to do is to go back

to that time, January of ’76, and consider the evidence.

Look at how this case went down. This plan started—

and there is no question about it; he admits it. He comes

up here and takes the stand and says, all right, I admit

it. What else is he going to do? Find a way out. —I can

say it is accidentai. As illogical, unreasonable, [1093]

forensically unsound as it may be, I can still say I have

got a way out; it was an accident. This plan started in

Louisiana. He tells you he was going to work offshore,

and he is going to bring a sportscoat with him to go out

on the rigs. I don’t know about you ladies of the Jury,

but you men can use your common sense; you know about

that. You don’t take a sportscoat and a tie to go to

work on the rigs offshore. Then you are going to go to

a pawn shop and you are going to trade in a shotgun for

66a

a .38, when you have got two at home, just so you can

have that extra gun. He planned this case from the

minute he walked into that pawn shop until the time he

got to Gulfport. He was formulating his plan. He knew

exactly what he was going to do. He got his map, he got

his General Electric folder, he had his gun, he had his

cartridges. He went to a very remote area of Harrison

County where he was going to take Mrs. Marter, or who-

ever the victim was going to be. He found Chuck Marter.

And what is so terrifying about this case—it just happened

to be Chuck, because that was the name given to him.

You talking about random murder—I mean that’s like

putting a bunch of names in a hat, and picking out a

name, and saying this is my victim. Sunday, January the

11th, Chuck and Edwina had no idea what was in store

for them Monday. Just sitting there; just waiting to be

struck. And this thing formulated for two days. And

that’s what makes it atrocious, ladies and gentlemen of

the Jury. This is not a situation where you have a person

coming in and who robs a bank on the spur of the

moment; [1094] pulls out a gun and fires point blank and

kills someone. That would be an impulsive reaction. This

is a cold, calculated and designed plan that formulated

in the mind of a very intelligent, a very smart individual.

Smart enough to know how to bring down a plan; how

to effect a kidnapping. He talks about a situation where

there was low exposure; minimal exposure, minimal risk.

True; it was minimal risk—for him. You see, in a kid-

napping you have got one witness. In an armed robbery,

you might have five, ten, fifteen to a hundred people.

But in a kidnapping, a well planned and well thought out

and well designed plan, ladies and gentlemen, you have

got one witness there. That was Edwina Marter. His

concern for that child, I will submit to you, does not relate

to his great humanitarian desire to protect that child. I

will give him this benefit. I don’t believe he could have

killed that child. And that’s why little Kevin stayed at

home. Because he would have been faced with the problem

67a

of either having to kill Kevin and then Edwina, or kill

Edwina and let Kevin see his mother die. He left the

child at home. When Edwina walked out of that house,

she knew that was it. That’s why she didn’t insist that

the child go with her. Because she knew that within a

short period of time she would probably die. And when

he took her out of that house—let me tell you something

—he was going to kill her. There was no doubt in his

mind what he was going to do. This talk about the con-

cern for the weather, about wearing a coat so she wouldn’t

get cold—oh, yes, she put a coat on. I submit to {1095}

you that coat was part of the device to be used to tie

her up; to bring it down behind her back. Because, see,

you don’t give somebody a coat and let them go out in

house slippers for a stay in the woods. That’s where his

little theory sorta comes apart. Because that’s what she

had on; house slippers. This was all just so well planned.

Ladies and gentlemen, I have been living in Harrison

County all of my life. And you know how difficult it is

to find these roads out here north of the county. Can

you imagine somebody coming into Harrison County for

a day and a half, who can find Turan Road and map it

out for somebody just like that. In his confession—in his

statement—he talked about Canal Road, Old Highway 49,

Pass Road. He talked about going north on 49, going

down this other road, going over a creek. Now, is that

somebody who just happens to find the area? He studied

that area. That was part of his plan. He knew exactly

what he was going to do. He was going to take Mrs.

Marter. When he got her in the car, he knew what he

was going to do; no question, he was going to kill her.

He had to. He had no choice; he could not leave a wit-

ness. This is where you have got to use your common

sense; you have got to use it. When he took Edwina out

to that remote area—a man who has spent all this time

planning it. He had notebooks, manilla folders; he had a

coat, he had a gun, he had cartridges, he had a map of

the City of Biloxi, a map of the City of Gulfport. He

68a

knew exactly what he was going to do. He changed his

name; used a fictitious name. He [1096] got the name

of Gulf National Bank out of the phone directory;

matched it to the residential number of Chuck Marter.

He had all of this so well planned. And then he forgot

a rope? —Left his rope at home. —Going to use a tie;

going to tie her up with a tie. There wasn’t a rope;

there was never any intentions of using a rope. He was

going to kill her. If you believe, and if you want this

case to go down in history as this Jury accepting a prop-

osition that Richard Gerald Jordan, without any design

or without any intent, just pulled this gun out and as it

went off like that it accidentally struck Edwina Marter

in the back of the head, and went out above her eye. If

you want this case to go down in history like that, then

you buy it. Do you believe that at 30 feet, or 10 yards,

that he just pulled this gun out and fired it and ac-

cidentally struck her in the back of the head, and it

came out at the top of her left eye? That’s what your

verdict will be if you give him life. See, ladies and

gentlemen of the Jury, these pictures tell a lot. I will get

to Dr. Sampson’s testimony in a minute. These pictures

tell a lot; the position of her head, the position of her

hands. And if you will recall, when I had Dr. Sampson

on the stand and I put Miss LeShieur down here on the

floor on her knees and I asked him this question; I said,

if Mrs. Marter was shot in this position, what would

happen to her. He said her face would go straight to

the ground and her hands out by her side. Exactly, ex-

actly the way it happened in this case; with a kleenex

by her hand. Use your common sense. If you were

[1097] running through the woods and you are shot with

a .88 projectile, are you going to land face down w ith

your hands by your side? You are either going to roll,

or stumble, or fall on your side or your back; you are

not going to fall in an execution style position. And I

don’t care what Mr. Jordan says, there is no way that

he accidentally pulled this gun and struck her in the back

69a

of the head at a range of ten yards or thirty feet and

that coincidentally she fell face down, stopped in her

tracks with her hands beside her; no blood in front of

her, with all the blood concentrated around her mid

waist to right knee. That’s where the common sense

comes in. That, ladies and gentlemen, is what Dr. Samp-

sen said. I didn’t put him on the stand; they did. He

told me, among other things, that that would be the posi-

tion of her body if she were struck while on her knees.

He aiso said on Direct Examination, “I cannot tell how

far she would have been; maybe 4 feet, maybe 50 feet.”

Assuming she was four feet, that still supports our

theory. You don’t go running through the woods, and

somebody pulls a gun out and fires a .38 projectile at

you, and you land in that position. You have seen these

pictures of this gun. You have got one fired cartridge, a

live one, and a fired one. Now, they can put the blame

on old Freddie Ladner. We know that one killed Edwina.

We know that one wasn’t fired. And we know Freddie

fired that one. You can decide what happened out there.

All I’m going to do is suggest to you. I tell you she was

on her knees just like that picture indicates. He fired

that [1098] shot. She hit the ground. He cocked it; he

wanted to make sure that his victim was dead. He

looked at her. He felt her pulse, realized that she was

dead, released it. Freddie Ladner took it out of the

water; he fired it. That’s what I submit to you happened.

That, ladies and gentlemen, is what makes this case

atrocious. Another thing that is bothering me, and has

bothered me since 1976—and I have never had to face

this problem until Mr. Jordan took the stand. He makes

it sound like we ought to apologize to him because Edwina

took off running. Didn’t she have the right to run? I

mean, why was she out in the woods to begin with? She

had the right to run. She was under no obligation to

stand there and be murdered. Even if we accept this

theory as true— He wants to tell you well, she ran and

it was an accident; sorry. Like she shouldn’t have run.

70a

You have got to look at this case in terms of what oc-

curred in January of ’76; not today, ladies and gentle-

men. It didn’t happen today; it didn’t happen yesterday.

It happened in January of ’76. He says greed. Yes, it

was greed. “I wanted money.” See, this is an open con-

fession, strictly employed to draw your sympathy. And

it is very effective; very effective. Ladies and gentlemen

of the Jury, here is a man that I submit to you executed

a woman and then made his first ransom demand—be-

cause he was confused. He wasn’t confused on that tape

that you heard when he talked to Chuck Marter. He made

hat first ransom demand long after Edwina Marter was

dead. He made a second ransom demand, and he made a

third ransom [1099] demand. And then he talks how he

didn’t want to injure anybody and he was concerned

about her safety, and they were going down Old Highway

49 at 90 miles and hour and he knocks Larkin Smith off

in the ditch. He could have killed two more people there.

“Oh, I was concerned; I didn’t know who it was. He

pointed a gun at me.” He knocks their car off in the

ditch. Two more could have been killed. So what, you

know; it was an accident. I was confused.

Ladies and gentlemen of the Jury, you cannot buy

that kind of story. You cannot let this type of crime

go on in Harrison County, Mississippi. It’s as simple as

that. Three more ransom demand calls after she was

dead. And then to think that the night after she was

killed, he casually goes into the Norwood Village Cinema

and catches a show. I assume he ate some popcorn and

had some coke, and watches a show like nothing had

happened. Mr. Marter was at home, up all night, won-

dering about the whereabouts of his wife; the children

wondering about their mother; law enforcement officers,

Federal Bureau of Investigation, Harrison County Sher-

iff's Department, Gulfport Police Department, Bureau

of Narcotics, all running up and down the highways

trying to find this lady before it was too late. And Mr.

fla

Jordan is sitting in the Norwood Village Cinema. Then

the next day, to show how concerned he was about it,

he gets him a Reader’s Digest. And I assume he em-

ployed the crossword puzzle game and reads the Reader’s

Digest. Then he comes into this courtroom seven years

later and says “if there [1100] was anything I could do

to bring Edwina Marter back, I would bring her back.”

Sure he would. If she was here today, we wouldn’t have

a trial. This case was for pecuniary gain. There was

only one way to affect it; that was to kill Edwina. And

if he had made it past Mr. Tollison’s roadblock, he could

have got to the Twin Star Motel, stayed out for a couple

of nights, gone back to Louisiana, and we would never

have seen him. And do you think that if we hadn’t cap-

tured him and he had gone back to Louisiana that he

would have walked into the courtroom here, ladies and

gentlemen, and said, “hey, I’m a changed man; I’m the

one that killed Edwina Marter. I want ya’ll to prose-

cute me.” Do you believe that would have happened?

Do you believe he would have done that; turned himself

in? That he would have walked in and said, “here, I give

myself up”; do you believe that? Ladies and gentlemen

of the Jury, there is no need talking about all the evidence

because it is now admitted. It was admitted yesterday.

He said, I did everything you said I did; I killed her—

accidentally. It was all for money. I did all these things;

I used a fictitious name; I got Chuck’s name out of the

phone book; I found out where he lived. It looked like

he had a nice house. He was a man with money, or

access to money. I did all that. Everything is true until

we get out in the woods. -—-And you know, I told her

not to run. She ran and I was just going to fire a shot

over her head to warn her, and low and behold I hit her

in the back of the head. The projectile went through

[1101] the brain, went through the cranial cavity, frac-

tured the entire cranial cavity and exited with such

power and velocity that we never found the iead shell.

You know—I’m sorry.

72a

But, you know, the most revealing testimony to me

was Reverend Padgett’s. That’s the minister up at the

Penitentiary. When I asked him the question on Cross

Examination, “Reverend, a lot of these inmates find the

Lord when they are up there, don’t they?” “Yes.” They

subscribe to your ministry; they become involved in your

ministry, and they find the Lord. “And when they get

out, they do the same thing again.” “Yes. A lot of them

don’t but some of them do.” Do you remember when I

asked him that question? They all tend to find the

Lord. And that’s good. But when you find the Lord for

a defense, then that’s when you separate it from the

true ministry. I don’t think you ought to have to kill

somebody to find the Lord. But when you come in the

courtroom and you say, “I have found the Lord and

that’s why you ought to give me life imprisonment”,

then that is wrong. See, ladies and gentlemen, what

makes this case so difficult is that we have got a lady

who has been dead for seven years, as the evidence shows;

brutally and atrociously murdered. And you have got

to consider that; the way she was murdered; the way

she was taken from her house. I mean, there is nothing

Edwina Marter, or Chuck, or anybody else could have

done; there is no way to have defended this, unless she

had said, no, I’m not going to let you in the house; I

don’t believe you are a General Electric [1102] Repre-

sentative. But you didn’t know Edwina Marter, so you

couldn’t appreciate the kind of person she was. She

trusted him. See, he wouldn’t have gone there if Chuck

was there. He wouldn’t have pulled the stunt when

Chuck was there because Chuck would have defended

himself and defended his wife. But to wait until Chuck

leaves, and then he walks in that house and says, I’m a

General Electric Representative; I want to check your

defective circuit breakers. Zero, lady; come with me,

I’ve got you. What was going through her mind? With

that little baby in the back bedroom, what was going

through her mind? And then seven years later we come

73a

into the penalty stage right when we get down to many

many years of effective prosecution. Many many years

we have worked on this case waiting for this very min-

ute, and I’ll de dadgum it, if he doesn’t take the witness

stand and say “I’m sorry”; “I’m sorry that I did it, and

I think I ought to have life imprisonment.” See, because

when I was a little boy I wasn’t a bad fellow. Well, I’m

sure that’s true. But he has committed a most serious,

atrocious and heinous crime known to mankind. He did

it for pecuniary gain, he did it in the commission of a

kidnapping, and he did it to avoid arrest. Any one of

those aggravating circumstances you could use. They are

all applicable. And now he says, I don’t deserve the

death penalty because I’m not that kind of guy any

more; I deserve a second chance, so to speak.

You know, so often, ladies and gentlemen, when you

look at a case like this where the facts are so [1103]

overwhelming, and the nature of the case is so tragic,

you tend to say to yourself, well, what about the rights

of the victim. You have seen this ordeal we have gone

through for three days. It was the same thing when we

tried it; seven, eight or nine days of trial. He is repre-

sented by counsel over there; he’s got one on one side,

and one on the other; one sitting here, and one back

there. A doctor came in and testified for him. He got

all of the Constitutional Rights afforded him; all these

rights he got. And what did Edwina Marter get? A

.38 projectile in the back of the head; two children with-

out a mother; a husband without a wife; a bank in an

uproar; and the entire county distraught over what has

happened to our society. Let me tell you something, ladies

and gentlemen. You have an awesome responsibility.

But when you took your seat and you said if the facts

warranted it you would impose a death penalty, we

accepted what you said as true. And we assumed that

if you told us if the facts warranted it, you would im-

pose a death penalty, that you would do it without hesi-

tation. What other facts could exist in this case to

74a

warrant the death penalty? When you plan to kill some-

one, when you plan to kidnap them; what else could

you have done to make this case more atrocious? I had

considered going over some of the evidence with you,

but I don’t think that would serve any useful purpose

because it has all been admitted, except for what hap-

pened out there. And to think that we have got to spend

days here arguing about whether or not she was running

or standing [1104] still, when he had no businss taking

her out there in the first place. But that’s the way our

legal system is. He is afforded that right. He has a

right to counsel; he has the right to make us prove she

was on her knees, or standing still, and—“if I can maybe

slip in some legal technicality, if I can employ some type

of legal gymnastics, see, and I can get the Jury to be-

lieve that she was running and it was an accident, boy,

I’m free; iow, I have won it under the texture and the

auspices of the Constitution.” What about Edwina?

“Well, she is dead and we can’t bring her back; let’s

take care of Richard Gerald Jordan. Let’s take care of

him.” I feel strongly about this case. And I’m not

going to sit here as an officer of the Court and lie to you

about the facts in this case. They speak the truth. You

can disregard what I say. But I tell you, each and

every one of you, that you have a duty and a job con-

sistent with the oath that you took when it was admin-

istered to you—to impose the death penalty when the

facts and circumstances are warranted. And they are

warranted here. Justice demands it. Edwina Marter

demands it, and those two kids demand it. You talking

about society; Kevin is now ten (10). He was three (3)

when his mother died. The oldest son is seventeen (17).

They are the ones who are going to look back and see

what justice iss My momma was shot down in the woods

with a .38, and her murderer got life imprisonment.

—Cause momma was taken from the house, see.

BY MR. STEGALL: We are going to object to that

[1105] sort of argument.

75a

BY THE COURT. Overruled.

BY MR. OWEN: Dr. Sampson’s testimony was, in

my opinion, the most cogent and the most effective testi-

mony for the State of Mississippi in the pursuit of our

contention that the death penalty ought to be imposed.

When he told me exactly what condition Edwina Marter’s

body would have ended up in if she had been on her

knees when the shot was fired, and he said, face down;

hands to her side. It is even more convincing that I

was right in what I’m telling you here. And when he

told me it was highly improbable that Richard Gerald

Jordan could have pulled this gun from his waistband,

shot indiscriminately and arbitrarily at a distance of 30

feet and just coincidentally struck her in the back of the

head—he said, that’s improbable. See what you are faced

with here, and where we have somewhat of a disadvan-

tage. You had the opportunity to hear Mr. Jordan make

his plea. As I told you, I can’t bring Edwina back. I

ean only make her plea for her. You cannvut be guided

by this 11th hour sympathy and bias, or prejudice or

whatever you want to call it, that is taking place on

this witness stand seven (7) years later. It is the facts

as they existed on January the 12th. And, I will tell

you this: You can accept it, you can disregard it, or

do what you want with it. He is an intelligent man;

Richard Gerald Jordan is. And I don’t believe what he

had to say about what occurred on that cold day out

there in terms of an [1106] accident, nor do I believe

that he is so sorry for what he did. He became sorry

when the death penalty was facing him. Do you think

he could have took the stand and said, “I’m not sorry;

I’m glad I did it; that was part of my plan.” What

would ya’ll have done? He is a smart man. If he had

given you that kind of testimony; if he had said, I’m not

sorry, I meant to do it, he would have lost you just like

that. So, he employed what he knew; religion. He

brought in Reverend Powell. And Reverend Powell said,

yes, Richard Jordan is a very intelligent, deliberate,

logical, intense, very intelligent man. Sure he is. Then,

76a

of course, the good Sister testified. I assume that she

is a member of the Catholic religion. But so are Mr.

Necaise and myself. And we don’t happen to share the

same belief that the Sister does. She doesn’t believe in

the death penalty. And that’s fine. But, see, ya’il told

me you did. And I expect you to help us bring to a

conclusion this seven years that we have been in pursuit

of this case to try to bring justice for what happened

to this little lady.

They are going to get up here and tell you about cap-

ital punishment, and etcetera, and that Richard Gerald

Jordan is a changed man. They are going to spend time

talking about what I said. That’s fine. But you just

remember one thing: We are looking for justice and for

what is right and what is wrong. And what was done

to this lady in the manner that it was done demands,

warrants, justifies imposition of the death penalty. Any-

thing less [1107] than thet is a victory for Richard Jor-

dan. He stands up; he smiles at everybody; everything

is fine. I implore you, ladies and gentlemen, to use your

good common sense. Everyone of you are good, law abid-

ing, Christian citizens. I know you are not going to be

led down that path for some kind of confusion that we

saw in this courtroom. Listen to their argument; listen

to every word they have got to say. But I’m telling you,

you have a duty and a responsibility—an awesome respon-

sibility, but you have got to stand on it just like Judge

Maples said in his instructions. Regardless of the con-

sequences, you must follow the law; follow the evidence.

Regardless of the consequences. And I ask you to do

that.

Thank you.

(CLOSING ARGUMENT BY MR. STEGALL FOR

DEFENDANT:)

BY MR. STEGALL: May it please the Court, Mr.

Owen, Mr. Necaise, Miss LeShieur, ladies and gentlemen

77a

of the Jury, it never fails when I come dowr. to this

point I am always scared. I always feel like I have a

lot of weight on me, obviously, at this point.

BY THE COURT: Excuse me, just a minute, Mr.

Stegall.

BY MR. STEGALL: Yes, sir. Do you want to take

that break now?

BY THE COURT: We will take a five minute recess,

ladies and gentlemen. You can go to your room for just

a minute.

[1108] (In the absence of the Jury, the following mo-

tion was made:)

BY MR. KILBRETH: Your Honor, we object to the

earlier portions of Mr. Owen’s argument on two grounds.

One was, I believe, his reference to the fact that Mr.

Jordan did not take the stand in the earlier trial, which

is in clear violation. It is well settled authority that the

prosecution cannot refer to the fact that the Defendant

did not take the stand. That would be applicable here,

as well. And, in addition, he made some—in our view—

references to improper aggravating circumstances. I

can enumerate all those if you would like me to list

them, Your Honor.

BY THE COURT: Go ahead and list them.

BY MR. KILBRETH: I think it was several times

he made reference to the fact that this was the 11th hour

of his taking the stand; he didn’t do it seven years ago.

I think that’s a big problem, Your Honor. It is a seri-

ous Constitutional violation, and we would move for a

mistrial on that ground alone. In addition, I think there

are some other references to what might be considered

as aggravating that are clearly not proper. I won’t list

all of those. I think they are obvious. I move for a mis-

trial on that ground, as well.

BY THE COURT: Overruled.

* aa * *

78a

IN THE CIRCUIT COURT

OF HARRISON COUNTY, MISSISSIPPI

FIRST JUDICIAL DISTRICT

No. 18,807

STATE OF MISSISSIPPI

versus

RICHARD GERALD JORDAN

Before THE HONORABLE DARWIN M. MAPLES, Circuit

Court Judge of Jackson County, Mississippi (this case

was transferred from Jackson County for trial on sen-

tencing phase).

FRIDAY

APRIL 29, 1983

[1157] (Whereupon the Jury retired at approximately

2:20 o’clock p.m., and in the absence of the Jury the

following proceedings were had:)

BY THE COURT: You wanted to make a motion?

BY MR. KILBRETH: Yes. First, we would move

for [1158] a mistrial again on the basis of the District

Attorney’s final closing arguments.

BY THE COURT: Overruled.

79a

IN THE CIRCUIT COURT

OF HARRISON COUNTY, MISSISSIPPI

FIRST JUDICIAL DISTRICT

No. 18,807

STATE OF MISSISSIPPI,

Plaintiff,

Vv.

RICHARD GERALD JORDAN,

Defendant.

[1236] MOTION FOR NEW TRIAL

COMES NOW the defendant, Richard Gerald Jordan,

by and through his attorneys, and moves this Court to

grant a new trial pursuant to Rule 5.16 of the Mississippi

Criminal Rules. This motion should be granted because,

among other reasons, the interests of justice require it,

the verdict is contrary to law and the weight of the evi-

dence, the Court admitted illegal testimony and excluded

competent and legal testimony, and the Court misdirected

the jury in several material matters of law and failed to

instruct the jury properly upon all questions of law nec-

essary for their guidance. In particular, defendant as-

serts as grounds for his motion:

[1237] VI.

That the Court erred in overruling defendant’s motion

to preclude consideration of Miss. Code Ann. § 99-19-

101(5) (h).

* * * *

80a

[1240] XXVII.

That the Court erred in allowing the prosecution to

refer to defendant’s previous death sentence.

XXVIII.

That the Court erred in excluding the testimony of

Rhett Russell.

XXIX.

That the Court erred in excluding testimony about the

circumstances of other capital murders in which life sen-

tences rather than death were imposed.

XXX.

That the Court erred in denying each of defendant’s

thirty-six proposed instructions.

XXXI.

That the Court erred in granting State’s Instruction

S-1 without modification, in that:

+ * * aa

[1241] 4. Instruction S-1 improperly included three ag-

gravating circumstances not supported by the evi-

dence.

XXXII.

That the Court erred in overruling defendant’s motion

for a mistrial based on the prosecution’s comment in

closing argument on defendant’s exercise of his Fifth

Amendment right not to testify at the conviction stage

of his earlier trial.

XXXIV.

That the Court erred in overruling defendant’s motion

for a mistrial based on the prosecution’s reference to non-

statutory aggravating circumstances in its closing argu-

ment.

8la

[1242] Defendant reserves the right to cite additional

reasons in support of this motion.

Respectfully submitted,

/s/ Earl B. Stegall

EARL B. STEGALL

Post Office Box 1542

Gulfport, Mississippi 39501

/3/ Joseph P. Hudson

JOSEPH P. HUDSON

LAWYER & HUDSON

Post Office Box 908

Gulfport, Mississippi 39501

Of Counsel:

TIMOTHY N. BLACK

JAMES T. KILBRETH III

Roy T. ENGLERT, JR.

WILMER, CUTLER & PICKERING

1666 K Street, N.W.

Washington, D.C. 20006

[Filed May 13, 1983]

82a

IN THE CIRCUIT COURT

OF HARRISON COUNTY, MISSISSIPPI

FIRST JUDICIAL DISTRICT

CAPITAL MURDER

Number 18,807

STATE OF MISSISSIPPI

versus

RICHARD GERALD JORDAN

ORDER OVERRULING MOTION FOR NEW TRIAL

This day this cause came on to be heard on Motion of

the Defendant Motion For New Trial, and the Court,

having heard the said Motion and having considered the

same, is of the opinion that the Motion is not well taken

and should be overruled. It is therefore,

ORDERED AND ADJUDGED that the Motion For

New Tria! be and the same is hereby overruled.

ORDERED this the 13th day of May, 1983.

/s/ Darwin M. Maples

Circuit Court Judge

[Filed May 13, 1983]

88a

IN THE SUPREME COURT

OF THE STATE OF MISSISSIPPI

No. 55-493

RICHARD GERALD JORDAN,

Appellant,

Vv.

STATE OF MISSISSIPPI,

Appellee.

BRIEF FOR APPELLANT

Counsel for Appellant:

JOSEPH P. HUDSON

Lawyer and Hudson

Post Office Box 908

Gulfport, Mississippi 39501

EARL B. STEGALL

Post Office Box 1542

Gulfport, Mississippi 39501

Of Counsel:

TIMOTHY N. BLACK

PHILIP D. ANKER

SAONE B. CROCKER

Wilmer, Cutler & Pickering

1666 K Street, N.W.

Washington, D.C. 20006

Dated: June 14, 1984

* * _- *

84a

ARGUMENT

I. THE TRIAL COURT’S INSTRUCTIONS ON

AGGRAVATING CIRCUMSTANCES WERE

UNCONSTITUTIONALLY VAGUE AND PER-

MITTED THE JURY TO FIND AGGRAVAT-

ING CIRCUMSTANCES THAT WERE UNSUP-

PORTED BY THE RECORD AND THAT IM-

PERMISSIBLY OVERLAPPED WITH EACH

OTHER AS WELL AS WITH THE STATU-

TORY ELEMENTS OF CAPITAL MURDER.

Despite objections by defense counsel, the trial court

instructed the jury that it could consider as aggravating

circumstances whether Mr. Jordan committed the capital

murder (1) “in an especially heinous, atrocious or cruel

manner,” (2) “for pecuniary gain,” and (3) “while en-

gaged in the commission of the crime of kidnapping.” *

As demonstrated below, none of these instructions was

proper.

1. Especially heinous, atrocious and cruel.

In Godfrey v. Georgia, 446 U.S. 420 (1980), the

United States Supreme Court reversed a capital sentence

which had been imposed based upon a similar statutory

aggravating circumstance—an “outrageously or wantonly

vile, horrible and inhuman” murder. The Supreme Court

held that, in the absence of a limiting instruction, the

vague statutory language failed to channel jury discre-

tion properly:

“There is nothing in these few words, standing

alone, that implies any inherent restraint on the ar-

bitrary and capricious infliction of the death sen-

tence. A person of ordinary sensibility could fairly

characterize almost every murder as ‘outrageously or

2 The court also instructed the jury on the aggravating circum-

stance whether the murder was committed in order to avoid arrest.

The jury, however, did not find this circumstance.

85a

wantonly vile, horrible and inhuman.’ ... [T]he

trial judge’s sentencing instructions . . . gave the

jury no guidance concerning the meaning of any of

[the aggravating circumstance’s] terms. In fact, the

jury’s interpretation of [the aggravating circum-

stance] can only be the subject of sheer speculation.”

Id. at 428-29.

The same is true in this case. Any murder could be

deemed “especially heinous, atrocious or cruel.” This

Court has therefore held that this factor must be limited

to “the conscienceless or pitiless crime which is unneces-

sarily torturous to the victim,” Colesnan v. State, 378

So. 2d 640, 648 (Miss. 1979) (citation omitted), and the

United States Court of Appeals for the Fifth Circuit has

upheld the constitutionality of this aggravating factor

only because of this limiting construction. Gray v. Lucas,

677 F.2d 1086, 1105 (5th Cir. 1982), cert. denied, 103

S. Ct. 1886 (1983). Yet the trial court refused to give

a limiting instruction proposed by the defendant that

would have stated verbatim the Coleman definition for

this factor.* Indeed, it provided the jury no guidance

whatsoever on how to interpret the open-ended statutory

language. Even if one assumes that it was proper to

3 Where no effort has been made to narrow the potentially bound-

less meaning of this aggravating circumstance, it has been held

unconstitutionally vague. See Proffit v. Wainwright, 685 F.2d 1227,

1263-66 (llth Cir. 1982), cert. denied, 104 S. Ct. 508 (1983);

People v. Superior Court, 31 Crim. L. Rep. (BNA) 2325 (Cal. Sup.

Ct. July 1, 1982); State v. Sonnier, 402 So. 2d 650 (La. 1981),

cert. denied, 103 S. Ct. 3571 (1983).

* (Defense Instruction D-35; [A. Appendix A]). The defense

also proposed two other limiting instructions which were refused:

that the jury could not find the murder especially heinous, atrocious

or cruel (1) if it found that “the victim died a quick death with-

out unnecessary pain and torture” or (2) unless it found that the

murder “was accompanied by acts of torture.” (Defense Instruc-

tions D-32, D-33; [A. Appendix A]}).

86a

submit this factor to the jury at all, it was clear con-

stitutional error to fail to give such guidance.

This Court, in a five-to-four decision, recently held

that the failure to provide such a limiting instruction did

not require reversal. Edwards v. State, 441 So. 2d 84

(Miss. 1983). Edwards, however, is distinguishable in

two significant respects. First, in explaining why Godfrey

was not controlling, the majority in Edwards stressed

that, had the jury been given the limiting instruction, it

would have found the murder “unnecessarily torturous.” °

The evidence was “undisputed” that Edwards “deliber-

ately” shot his victim, who remained conscious long

enough to fire back six rounds. Here, by contrast, there

was substantial evidence that the murder was uninten-

tional, and, as was true in Godfrey, the evidence was

undisputed that the victim died immediately. In short,

had the jury been properly instructed, it is highly un-

likely that it would have found this aggravating circum-

stance.

5 The jury here should not have been instructed that it could

consider this aggravating factor, cf. Williams v. State, 445 So. 2d

798, 814 (Miss. 1984), and this Court should hold that the finding

is unsupported by the evidence. The Florida Supreme Court, whose

limiting construction of this aggravating factor is identical to that

adopted by this Court, has repeatedly held this factor inapplicable

to murders, such as this one, in which the victim dies immediately.

See, e.g., Simmons v. State, 419 So. 2d 316, 319 (Fla. 1982) ; Odom

v. State, 403 So. 2d 936, 942 (Fla. 1981); Williams v. State, 386

So. 2d 538, 542-45 (Fla. 1980); Riley v. State, 366 So. 2d 19, 21

(Fla. 1979).

6 There is some language in the opinion suggesting that as long

as the jury could have found the murder “unnecessarily torturous,”

the failure to instruct the jury that it had to make this finding

in order to find the aggravating circumstance does not require

reversal. This suggestion, if intended, it is respectfully submitted,

is in error. That the jury could have made the proper finding does

not mean it would have. Only when constitutional error is harm-

less beyond a reasonable doubt may it be ignored. Chapman v.

California, 386 U.S. 18, 24 (1967).

87a

Second, the Edwards majority viewed the finding of

this aggravating factor as harmless error, because the

jury found other aggravating circumstances, which were

supported by the record, and there were no mitigating

factors. In the present case, however, there were sub-

stantial mitigating circumstances, both statutory and

non-statutory.?. The error cannot be deemed harmless

since there is no way to know if the jury would still

have found the mitigating circumstances “insufficient”

to outweigh any remaining aggravating factors.*®

* * o *

IV. DEFENSE COUNSEL WAS IMPERMISSIBLY

RESTRICTED IN THE PRESENTATION OF

MITIGATING EVIDENCE.

Throughout the trial, defense counsel was precluded

from presenting mitigating evidence. The trial court

sustained numerous objections by the prosecution to the

testimony of several character witnesses offered in miti-

gation. Indeed, one witness was precluded, without ex-

planation by the court, from testifying at all. As set

forth in the proffer, that witness, Rhett Russell, would

have testified about an invention—in which the Tennes-

see Valley Authority had expressed interest—that Mr.

Jordan made while in prison for generating electricity

from alternative energy sources such as wind tunnels.

(A. 29; Tr. 922).

Similarly, the testimony of numerous witnesses was

substantially truncated. Lucius Brown, a guard at the

7 For example, Mr. Jordan had no prior criminal record and had

been a loving husband and father. Moreover, as demonstrated

below, the finding of the other two aggravating circumstances can-

not be upheld.

8 See, e.g., Elledge v. State, 346 So. 2d 998, 1003 (Fla. 1977).

The United States Supreme Court upheld Florida’s harmless

error rule last term, emphasizing that it applies only when there

are no mitigating circumstances. Barclay v. Florida, 103 S. Ct.

3418, 3426 (1983).

88a

prison where Mr. Jordan is incarcerated, was completely

hampered from testifying about Mr. Jordan’s coopera-

tive attitude as an inmate. The prosecution voiced re-

peated objections, which the court uniformly sustained.

(A. 24-26; Tr. 858-60). The effect was as if Mr. Brown

was precluded from taking the stand altogether, as hap-

pened with Mr. Russell. Again, the court gave no reason

for excluding this mitigating evidence despite defense

counsel’s plea that “it is certainly a relevant matter to

the defendant’s character; how he has been, the process

of rehabilitation.” (A. 24; Tr. 859).

The testimony of Shirley Thames, Mr. Jordan’s first

cousin, was also substantially restricted. Mrs. Thames

atempted to testify about Mr. Jordan’s family life but

the court—again without explanation—sustained objec-

tions to questions concerning Mr. Jordan’s relationship

with his wife. (A. 22-23; Tr. 847, 848-49). The trial

judge also severely limited the testimony of Robert

Jordan, the defendant’s brother. The witness, for exam-

ple, was not allowed to explain at all his testimony that

the defendant had a good reputation for peacefulness.

(A. 20-21; Tr. 833-34).

The United States Supreme Court has made it abun-

dantly clear that restrictions on the presentation of mit-

igating evidence, such as those in this trial, are consti-

tutionally impermissible in a capital case. Thus, in

Lockett v. Ohio, 488 U.S. 586 (1978) the Supreme Court

set aside a death sentence because the state had pre-

vented the sentencer from considering mitigating evi-

dence. The Court held:

“T]he Eighth and Fourteenth Amendments require

that the sentencer, in all but the rarest kind of cap-

ital case, not be precluded from considering, as a

mitigating factor, any aspect of a defendant’s char-

acter or record and any of the circumstances of the

offense that the defendant proffers as a basis for a

89a

sentence less than death.” Jd. at 604 (citations omit-

ted) (emphasis added in part).

The Court reaffirmed the Lockett rule in Eddings v.

Oklahoma, 455 U.S. 104 (1982), reversing a death sen-

tence imposed in a trial in which the sentencer’s consid-

eration of mitigating evidence had been restricted. The

Court explained in both Eddings and Lockett that a cap-

ital defendant’s right to present whatever mitigating

character evidence he proffers is an indispensable part

of the constitutional requirement of individualized sen-

tencing, “ensur[ing] the reliability, under Eighth

Amendment standards, of the determination that death

is the appropriate punishment in a specific case.’” Lock-

ett, 438 U.S. at 601 (quoting Woodson v. North Caro-

lina, 428 U.S. 280, 305 (1976) ).28

This Court has also recognized this principle. Thus,

in Jackson v. State, 337 So. 2d 1242 (Miss. 1976), this

Court stated that such a defendant may

“adduce proof of any other circumstance or com-

bination of circumstances surrounding his life and

character or the commission of the offense with

which he is charged that would be reasonably rele-

vant to the question of whether he should suffer

death or be sentenced to life in prison.” Jd. at 1256.

This Court acted on the Jackson principle in Coleman v.

State, 387 So. 2d 640 (Miss. 1979), where it found that

the defendant’s right to introduce mitigating evidence

had been improperly restricted because the judge had

*8 The Supreme Court has on a number of other occasions re-

versed death sentences based on restrictions on the presentation or

consideration of mitigating evidence. See Green v. Georgia, 442

U.S. 95 (1979) ; Bishop v. Arizona, 489 U.S. 810 (1978) ; Adams v.

Ohio, 439 U.S. 811 (1978) ; Nabozny v. Ohio, 489 U.S. 811 (1978) ;

Bell v. Ohio, 438 U.S. 637 (1978). Green, like this case, involved

judicial rulings excluding mitigating testimony.

90a

instructed the jury to consider only one mitigating cir-

cumstance.”

These decisions are controlling here. There can be no

doubt that the excluded mitigating evidence was relevant

to whether Mr. Jordan should receive life or death. A

defendant’s treatment of his family, his willingness and

ability to contribute significantly te society following his

crime, his behavior in prison, and his history of peace-

fulness bear directly on a central aspect of any sen-

tencing proceeding: whether the defendant can be re-

habilitated and become a productive member of society.*°

* * * *

29 See also Leatherwood v. State, 485 So. 2d 645, 661 (Miss. 1982)

(“Constitutionally, a state may not limit the circumstances or

factors that may be considered in mitigation of punishment at the

sentencing phase of a capital murder trial”) (Robertson, J., dis-

senting); Washington v. State, 361 So. 2d 61, 68 (Miss. 1978)

(“[i]t is erystal clear from our holding in Jackson that this Court

is committed to the ‘individualized consideration of mitigating

factors’ in each case, and that the only limitation placed on the

introduction of evidence of mitigating circumstances is that it must

be reasonably relevant”) (emphasis in original), cert. denied, 441

U.S. 916 (1979).

30 Thus, the Supreme Court’s direction in Lockett that “[n]oth-

ing in this opinion limits the traditional authority of a court to

exclude, as irrelevant, evidence not bearing on the defendant’s

character, prior record, or the circumstances of his offense,” 438

U.S. at 604 n.12, is inapposite here. Cf. Williams v. State, 445

So. 2d 798 (Miss. 1984) (court may exclude evidence concerning

the character of other defendants convicted of capital murder) ;

Shriner v. Wainwright, 715 F.2d 1452 (11th Cir. 1983) (state may

constitutionally preclude defendant from presenting evidence con-

cerning the horror of electrocution, because this evidence does not

reflect on the particular defendant but rather on the propriety of

the death penalty generally).

9la

Vill. THE PROSECUTOR’S CLOSING ARGUMENT

INCLUDED NUMEROUS REFERENCES TO

THE DEFENDANT’S PRIOR EXERCISE OF

HIS FIFTH AMENDMENT RIGHT NOT TO

TESTIFY AS WELL AS OTHER HIGHLY IM-

PROPER AND PREJUDICIAL REMARKS:

During closing argument, the prosecution repeatedly

referred to the fact that Mr. Jordan had elected not to

take the stand in his prior trials. Indeed, the prosecutor

caade this one of the focal points of his summation, by

stating in the first substantive paragraph of his initial

closing argument:

“Through the entire procedure that we employed

here, at another time and another place we presented

this case, and the Jury found him guilty. We were

required to do so as we went through that process

of convicting him of guilt. Now the time comes for

the sentencing, and we see Mr. Jordan come up

on the stand. Six years. He takes the stand and he

says, I’m a changed man; I didn’t mean to do what

I did. You finally got me convicted; now you got

me in the box; it’s getting close to the penalty stage;

I’m going to play on your sympathy, I’m going to

play on your mercy, I’m going to play on your bias.

I’m a changed man. J didn’t mean to do what I did.

It was an accident, and I’m sorry because I have

found the Lord.” (A. 36; Tr. 1090-91).

Defense counsel immediately objected and moved for a

mistrial. The court overruled the objection, denied the

motion, and failed to give any curative instruction, even

though the prosecutor referred to the defendant’s prior

silence at two other points in his remarks.™

54 Thus, the prosecutcr commented :

“Another thing that is bothering me, and has bothered me

since 1976—and J have never had to face this problem until

Mr. Jordan took the stand. He makes it sound like we ought

92a

Both the United States Supreme Court and this Court

have made clear that such comments by the prosecution

on the defendant’s decision not to testify are constitu-

tionally impermissible. In Griffin v. Caiifornia, 380 U.S.

609 (1965), the United States Supreme Court held that

any comment on an accused’s silence violates the de-

fendant’s Fifth Amendment privilege against self-in-

crimination. The Court therefore reversed the defend-

ant’s murder conviction and capital sentence because, as

in the present case, the prosecutor had mentioned in

closing argument the defendant’s failure to take the

stand. Similarly, in Williams v. State, 445 So. 2d 798

(Miss. 1984), this Court vacated a death sentence be-

cause of prosecutorial misconduct including improper

comment on the defendant’s failure to offer sworn testi-

mony.”

The sentence in this case as well must be vacated. The

references to Mr. Jordan’s failure to testify at his prior

trials were nighly prejudicial: they called into question

the sincerity of Mr. Jordan’s claim of an accidental hom-

icide and remorse over the killing, critical issues in the

sentencing proceeding.

The prosecutor’s improper comments were not limited

to remarks concerning the defendant’s prior failure to

to apologize to him because Edwina took off running. Didn’t

she have the right to run?” (A. 36-37; Tr. 1098).

At a subsequent point in his argument, the prosecutor reinforced

his earlier remarks:

“And then seven years later we come into the penalty stage

right when we get down to many many years of effective prose-

cution. Many many years we have worked on this case waiting

for this very minute, and I'll be dadgwm it, if he doesn’t take

the witness stand and say ‘I’m sorry’, ‘I’m sorry that I did it,

and I think I ought to have life imprisonment.’” (A. 37; Tr.

1102).

55 See also Miss. Code Ann. § 18-1-9 (1972) (failure of defendant

to testify shal! not be commented on by counsel).

93a

testify. His closing argument was filled with emotion-

ally charged rhetoric aud personal opinions, which had

little, if anything, to do with the evidence presented at

trial.°°

Early in his argument, for example, the prosecutor

argued that his personal views should be given weight:

“You are going to hear the statement of counsel

opposite about the duty and responsibility of the

District Attorney’s Office to prosecute and see that

the death penalty is imposed.” But I tell you as I

stand here, I am not a member of the District At-

torney’s Office. I’m a Special Prosecutor; I haven’t

been assigned to nor affiliated with the District At-

torney’s Office in seven (7) years. I am not a pro-

ponent of the death penalty in every case. I have

never advocated that, and I don’t advocate that to

you today. But what I tell you is that there are

cases that exist that warrant the imposition of the

death penalty. And I have never in my eleven (11)

years of practice ever seen a case so atrocious, so

cruel and inhumane, that justifies the death pen-

alty as this particular case does.” (A. 36; Tr. 1091-

92).

These remarks were completely inconsistent with two

basic tenets of permissible closing argument: that coun-

sel refrain from providing personal opinion and from

referring to events outside the record. See, e.g., ABA

Standards for Criminal Justice, Stds. 3-5.8 to 3-5.9 (2d

ed. 1980) .**

56 Perhaps the most telling comment about the prosecution’s

closing argument was made by Special Prosecutor Owen himself.

He told the jury that he saw no need to review the evidence pre-

sented, the precise purpose of closing argument. (A. 38; Tr. 1103).

57 Defense counsel made no such statement.

58 It is precisely because the opinions of counsel are likely to be

given great weight by the jury that they are prohibited. See Vess,

94a

The prosecutor invited the jury to be swayed by the

state of our “society” generally and denigrated the de-

fendant for insisting upon his constitutional rights:

“You have seen this ordeal we have gone through

for three days. It was the same thing when we

tried it; seven, eight or nine days of trial. He is

represented by counsel over there; he’s got one on

one side, and one on the other; one sitting here, and

one back there. A doctor came in and testified for

him. He got all of the Constitutional Rights af-

forded him; all these rights he got. And what did

Edwina Marter get? A .38 projectile in the back

of the head; two children without a mother; a hus-

band without a wife; a bank in an uproar; and

the entire county distraught over what has hap-

pened te our society... . And to think that we have

got to snend days here arguing about whether or

not she was running or standing still, when he had

no business taking her out there in the first place.

But that’s the way our legal system is. He is af-

forded that right. He has a right to counsel; he has

the right to make us prove she was on her knees, or

standing still, and—‘if I can maybe slip in some

_ legal technicality, if I can employ some type of legal

gymnastics, see, and I can get the Jury to believe

that she was running and it was an accident, boy,

I’m free; low, I have won it under the texture

and the auspices of the Constitution.’” (A. 38; Tr.

1103-04).

These emotionally charged remarks, which asked the jury

to punish the defendant because of the problems of

“society” and for asserting his constitutional rights, alone

Walking a Tightrope: A Survey of Limitations on the Prosecutor’s

Closing Argument, 64 J. Crim. L. & Criminology 22, 28 (1973).

For instance, the jury in this case had no basis for questioning the

prosecutor’s assertion that none of the cases he had seen in practice

involved crimes as terrible as this one.

95a

mandate reversal.* The prosecutor, however, continued

his appeal to emotion by insisting that the jury focus on

the effect its verdict would have on society and the

victim’s family:

“Justice demands [the death penalty]. Edwina

Marter demands it, and those two kids demand it.

You [talk] about society; Kevin is now ten (10).

He was three (3) when his mother died. The oldest

son is seventeen (17). They are the ones who are

going to look back and see what justice is. My mom-

ma was shot down in the woods with a .38, and her

murderer got life imprisonment. —Cause momma

was taken from the house, see.” (A. 38; Tr.

1104).

The prosecutor’s remarks require reversal. This was

not a proceeding to determine guilt or innocence in which

prosecutorial misconduct can be brushed aside because of

overwhelming evidence of guilt. Instead, the jury here

was required to make the highly subjective determination

of whether a defendant’s crime was so egregious, when

59 See United States v. Hughes, 389 F.2d 535 (2d Cir. 1968)

(reversing conviction based on prosecutor’s comment that defendant

was particularly “vicious because . . . he demanded his full con-

stitutional rights”).

69 In his rebuttal argument, the prosecutor also suggested that

the jury consider how Mrs. Marter’s children would view the legal

system if the defendant received a life sentence. (A. 40; Tr. 1154.)

It has long been held improper for the prosecutor to refer to the

victim or the victim’s family. See Vess, supra, at 50 & n.233 (1973).

Nor was the prosecutorial misconduct confined to the closing argu-

ment. Throughout the trial the prosecutor seized on opportunities

to make inflammatory remarks, as in his cross-examination of the

prison guard, Lucius Brown. On at least six occasions during that

examination, the prosecutor—over defense objections and a motion

for a mistrial—emphasized that Mr. Jordan had previously been

sentenced to death and had been on death row for as long as nearly

any inmate. (A. 26-28; Tr. 861-69).

96a

balanced with the mitigating circumstances, that he

should not be allowed to live. Under the decisions of the

United States Supreme Court and this court, the jury’s

consideration should have been confined to the relevant

facts concerning the offense and the defendant. Mr.

Jordan presented substantial mitigating evidence. There

is simply no way to know what conclusion the jury

would have reached if it had not been improperly in-

fluenced by the prosecutor’s comments.

This Court, as well as others, has recognized that

prosecutorial misconduct in the sentencing phase of a

capital case must be scrutinized with particular care.

Twice this year this Court has vacated capital sentences

because of such misconduct. Williams v. State, supra;

Wiley v. State, No. 54,642 (Miss. Jan. 4, 1984). The

principle, which this Court has followed, has been stated

thus:

“The prosecutor’s actions at the sentencing phase of

this trial are viewed differently. At the sentencing

phase of trial, the jury must not be influenced by

any arbitrary factors. A prosecutor may not incite

the passions of a jury when a person’s life hangs in

the balance.” *

Because the prosecutor did exactly that in this case, the

death sentence must be vacated.

* a * *

61 Brooks v. Francis, 716 F.2d 780, 788 (ilth Cir. 1983); see

also Hance v. Zant, 696 F.2d 940, 951-53 (11th Cir. 1983). In both

Brooks and Hance, the Eleventh Circuit vacated a capital sentence

because the prosecutor’s closing argument denied the defendant a

fundamentally fair trial. As in the present case, the prosecutor

in Brooks and Hance made highly emotional appeals for the jury

to consider the effect its verdict would have on society generally.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.