Davis v. State

For the Court:

This is an appeal from the Circuit Court of Tate County, wherein the appellant, Danny Ray Davis, was convicted of capital murder and sentenced to death.

On April 2,1985, the body of Ralph May, a retired resident of the Arkabutla community in Tate County, was found in a garbage dump near Coldwater. His death was caused by a single .25 caliber gunshot wound to the base of his head. Several passersby had noticed a man fleeing the site in apparent haste on a motorcycle. Investigation placed suspicion upon Danny Ray Davis. Local police, cooperating with the Tate County authorities, arrested Davis at his home in Memphis. Davis’ sister turned a .25 pistol over to the police. Tests by the Mississippi Crime Lab established that this weapon had killed Ralph May. A DeSoto County pawnbroker stated that he had sold the gun and ammunition to Davis.

Davis was indicted for capital murder and tried in the Circuit Court of Tate County. The jury found him guilty. In the penalty phase of the bifurcated trial, the jury found the following aggravating circumstances: (1) that the murder was committed during the commission of a crime, to-wit robbery; (2) that the murder was committed in order to prevent or avoid arrest; (3) that the murder was committed for pecuniary gain; (4) that the murder was especially heinous, atrocious or cruel and (5) the defendant had been previously convicted of a felony involving the use or threat of violence. The jury found that these outweighed any mitigating circumstances, and sentenced Danny Ray Davis to death.

We have carefully reviewed the assignments of error. Our discussion below concerns the ones we deem to have merit.

A pretrial motion for a change of venue having been made, the judge duly ordered a hearing. The state produced a number of witnesses attesting their belief that Davis could receive a fair trial in Tate County. After hearing the evidence from both sides, the trial judge announced himself satisfied that Davis could be fairly tried, and denied the defense motion.

One of the witnesses produced by the state at the change-of-venue hearing was Ben Delap, whose testimony would have attracted no particular notice but for an unusual later development: When, some four weeks later, voir dire was commenced for the trial proper, this same Delap was part of the venire. Oddly, neither the defense counsel nor the trial judge remembered him from the pretrial hearing. De-lap did not respond to voir dire questioning in such a way as to alarm anyone, and in the end he became a member of the petit jury panel.

Just before the opening statements, defense counsel suddenly realized where he had seen Delap before, whereon he made a motion for a mistrial, which the judge denied. Defense counsel then moved that the juror Delap be stricken and an alternate substituted. This motion was likewise overruled, even though there were three alternate jurors available.

As the state correctly points out, our rule is that failure to object to the jury before it is empaneled waives any right to complain of its composition. Pickett v. State, 443 So.2d 796 (Miss.1983); Watkins v. State, 262 So.2d 422 (Miss.1972); Holloway v. State, 242 So.2d 454 (Miss.1970). Today’s unusual circumstances present a compelling case that we recognize an exception to that technical rule. Besides, all that had been done was that the jury had been empaneled and sworn. The trial proper had not yet begun. Furthermore, this record leaves us without doubt that defense counsel acted promptly once he realized that juror Delap had been a witness at the venue hearing.

Turning to the merits, we accept that in a death penalty case, “we must be vigilant that the jury ... is infected by not the slightest taint or suggestion of bias or unfairness.” Fisher v. State, 481 So.2d 203, 216 (Miss.1985). We find more than a “suggestion” of unfairness in the presence on the jury panel of one who had previously served as a witness for the state in the same case. The unsuitability of such a person for that position is obvious. It gives the whole trial an appearance of impropriety.

The evidence of Davis’ guilt was strong. Nevertheless, even an obviously guilty criminal is entitled to a fair trial. Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751, 755 (1961); Coleman v. Kemp, 778 F.2d 1487, 1541 (11th Cir. 1985); Ferguson v. State, 507 So.2d 94, 97 (Miss.1987). A trial before a jury, one of whose members has been a witness for the prosecution in a pretrial hearing, is by definition, not a fair trial.

There is a second reason for reversal. During the penalty phase of the trial, the defense attempted to introduce as a mitigating circumstance, evidence that Davis’ prior conviction for assault had resulted in a prison sentence. The trial judge refused to admit the sentencing order.

The U.S. Constitution requires that defendants be given broad latitude in introducing evidence of mitigating circumstances. In a recent case, the Supreme Court remarked:

The sentencer cannot be precluded from considering as a mitigating factor, any aspect of a defendant’s character on record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. McClesky v. Kemp — U.S. -, 107 S.Ct. 1756, 1773, 95 L.Ed.2d 262, 286 (1987), quoting Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973, 990 (1978).

This Court has been similarly soliticous, holding that Mississippi allows “evidence of mitigating circumstances of an unlimited nature.” Leatherwood v. State, 435 So.2d 645, 650 (Miss.1983). The use of such evidence is limited by only one restriction— the evidence must be relevant. Eddings v. Oklahoma, 455 U.S. 104, 112, 102 S.Ct. 869, 875, 71 L.Ed.2d 1, 9 (1982); Washington v. State, 361 So.2d 61, 68 (Miss.1978).

While it is highly unusual for a defense counsel to cite the existence of another prison sentence as a mitigating factor (indeed, we have never heard of it being done before), we cannot say that it was irrelevant. It appears that the defense was trying to inform the jury that Davis would be subject to severe punishment even without the death penalty. While this argument might not have swayed the jury, we do not feel entitled to say they should not have heard it.

Because of these errors, the case must be reversed and remanded for a new trial.

REVERSED AND REMANDED.

ROY NOBLE LEE, P.J., and DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

WALKER, C.J., HAWKINS, P.J., and GRIFFIN, J., dissent.