Hill v. State

For the Court on Parts I, II, and III; BROOM, Presiding Justice, for the Court on Part IV.

Alvin Hill appeals from his conviction of capital murder and sentence of death in the Circuit Court of DeSoto County. We affirm.

The two most serious questions on this appeal concern the admission of the murder weapon into evidence as being violative of the “fruit of the poisonous tree” doctrine and the refusal of the trial judge to grant instructions requested by the defense in the sentencing phase. The former is discussed in Part II of this opinion, the latter in Part IV.

The remaining assignments of error are addressed in Part III.

I.

FACTS

On Friday, August 17, 1979, at approximately 6:30 p.m., reserve deputy sheriffs Donald Sutton and Mike Madden were patrolling Stateline Road in DeSoto County. They observed a disturbance at a car parked in a driveway and stopped to investigate. The problem was nothing more than a family quarrel, but while they were quieting the disturbance, they detected a foul odor. They walked towards the woods north of the road, from whence the odor came, and just inside the woods found the decomposed body of Robert Lee Watkins, whose truck had been hijacked. Watkins had been robbed and murdered on July 12, 1979.

At the time of his death Watkins was employed as a truck driver for American Freight Lines Trucking Company in Memphis.

Upon seeing the decomposed body, other law enforcement officers were summoned, and an investigation continued well into the night. Beside the remains Watkins’ wallet was found, containing his Tennessee driver’s license, his social security card, and a credit card bearing his name. The remains were identified by experts, and there is no question but that the human bones and remnants of rotting flesh the officers found were what was left of Watkins’ corpse.

On July 16, 1979, after the Watkins murder but prior to discovery of Watkins’ body, in Tunica County, Alvin Hill and one Sammy Lee Hampton hijacked and robbed a truck driver employed by the Nat Buring Packing Company. Hill was arrested and taken into custody for this crime by Tunica County Sheriff Hugh Monteith on July 20. The record does not reflect precisely when Hampton was arrested, but no doubt his arrest also took place on or about July 20.

FBI Agent Bobby G. Shanks questioned Hill in a Memphis police station on July 19 and 20 about the hijacking of the American Freight Lines truck. He testified he questioned Hill again July 25 in the DeSoto County jail. Present at these interrogations, in addition to Agent Shanks and Hill, were A.D. Gatewood of the Mississippi Highway Safety Patrol and Sheriff Mon-teith. According to Agent Shanks, he informed Hill on July 25 that Hampton had told him the previous day that Hill was involved in the hijacking of the American Freight Lines truck and the disappearance of the driver. According to Shanks, when he made this statement to Hill, he replied, “Sammy will get his.”

Ricky Wayne Ward was chief investigator for the DeSoto County sheriff’s office on' August 17, 1979, and some time that night informed Hill the body of Watkins had been found.

Ward next questioned Hill on the morning of August 18 in the Tunica County jail.

Shortly after 5:00 o’clock that afternoon, m the presence of Sheriff Monteith, DeSoto County Sheriff Denver Sowell, deputy Bobby Gene Biffle, and Ward, Hill confessed the robbery and murder of Watkins. The confession was made in the sheriff’s office in Tunica County.

According to Hill’s confession, one Gregory Tucker and another black male whose name he did not know participated in the hijacking and robbery, but Hill stated he was the person who shot Watkins. He stated Watkins was on his knees at the time, and the first shot was into the back of Watkins’ head. He believed he shot three times. (R. 175). When asked what he did with the murder weapon, Hill stated it was thrown into the Coldwater River from a highway bridge south of Hernando.

Two aspects of the confession need now be noted. First, it was later ruled an involuntary confession on a pre-trial motion to suppress, and was therefore inadmissible at trial. Second, Hill’s statement in the confession that the gun was thrown into the river was false. Later in the evening of Saturday, August 18, around 8:00 to 8:30, Ward returned to Hill’s jail cell, and Hill told him “Mr. Carter” of Memphis had the gun.

On Sunday, August 19, Sheriff Monteith ■telephoned the Memphis Police Department and informed officer Bobby S. Rust that a black male named Robert Carter had the pistol, and that he worked for either a Goodyear or B.F. Goodrich store on Union Avenue.

On Monday morning, August 20, officer Rust and Sergeant Priddy of the Memphis Police Department questioned Carter at a B.F. Goodrich store on Union Avenue; Carter told them he had loaned his pistol to a black male he knew only as “Rusty” (and who in fact was Hill). Carter took the officers to his apartment in Memphis and delivered the pistol to them. Carter was not implicated in either of Hill’s robberies, and never was charged with any offense. He testified as a witness for the state at Hill’s trial.

After recovering the weapon, the Memphis Police Department delivered it to Ward.

On October 5, 1979, the grand jury of DeSoto County indicted Hill, Tucker, and one Laverne Milam for capital murder of Watkins, in the commission of the crime of robbery, in violation of section 97-3-19(2)(e) of the Mississippi Code. Milam did not testify and the record does not reveal anything about him other than the fact that he was arrested in Flagstaff, Arizona, and returned to Memphis by the Memphis Police Department. Tucker pleaded guilty to manslaughter and testified as a witness for the state.

The circuit judge conducted a hearing on November 4, 1980, on the motion to suppress the confession, and ruled the confession had been given as a result of inducements by Ward, and was therefore inadmissible.

A bifurcated trial of Hill for capital murder was begun November 17,1980, and concluded November 21.

Clarity of this opinion does not require a detail of the trial evidence. When necessary or appropriate, we will discuss relevant portions of the record under the various assignments of error.

One part of the trial proceedings, however, does deserve our scrutiny at this time. This involves the admission into evidence of the murder weapon, the pistol recovered from Carter.

When Sheriff Monteith was called as a witness by the state, the record reveals the following testimony relative to the source of his information about the murder weapon:

Q. Sheriff Monteith, in the course of your investigation, did you have occasion to interview Sammy Hampton?

A. I did.

Q. As a result of those interviews, did you at anytime inform officers of the Memphis Police Department where a possible gun could be found?

A. I did.

Q. Do you recall, Sheriff Monteith, who you gave that information to?

A. I gave it to a Sgt. Priddy of Major Crimes in Memphis, Tennessee. Sgt. Priddy.

Q. As a result of that information being given to Sgt. Priddy, do you know whether or not any weapon was recovered?

A. No, sir, I do not know whether — I passed the information on, and I do not know the results of that — what the outcome of that was.

(R. 818-819) (emphasis added).

The above testimony of Sheriff Monteith was admitted in open court without objection by defense counsel.

Later in the trial, the trial judge conducted a hearing in chambers prior to the introduction of the murder weapon before the jury. During that hearing, officer Rust related the receipt of the information about the pistol from Sheriff Monteith on Sunday, August 19, as above noted; that Sheriff Monteith did not give the source of the information; and that Rust did not know from whom Sheriff Monteith got his information. Rust then testified to obtaining a .357 Magnum (Ruger) revolver pistol from Carter the next day, also as above noted.

Officer J.E. Anderson and Sergeant R.E. Priddy of the Memphis Police Department corroborated the testimony of Rust as to the recovery of the weapon from Carter. Priddy further testified that Hampton had been previously arrested for the Tunica County robbery and that Hampton had supplied no information about the American Freight Lines hijacking. Priddy also testified that in their questioning of Milam, he had no knowledge of where the pistol came from.

Ward then testified he had received the pistol from the Memphis Police Department. Ward was not asked on direct examination and did not testify whether he had received any information about this gun from Hill.

On cross-examination of Ward, the following appears in the record:

Q. Rick, you did not participate in the recovery of this weapon?

A. No, I was contacted by the Memphis Police Department that they had custody of the weapon.

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Q. Did they ever tell you how they got information in reference to the recovery of this gun, what their source of information was?

A. No, sir.

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Q. Rick,’ what information did you receive on this gun?

A. Rust or Priddy one called me and told me that they had picked somebody up who had the gun that was used in the murder, and that the person had told them that they had loaned Hill this gun, and they wanted to know if we needed it in our case. I told them yes, and I asked them to return it — you know, give it to us for they (sic) trial, and they said yes. So, I went up and they took me over to the property room and assigned it over to me.

(R. 925-927).

Following the above testimony, the trial judge made a ruling. In so doing, he also had before him a transcript of the November 4 pre-trial hearing at which time he suppressed the confession. The circuit judge noted that in Hill’s confession he stated the gun was thrown into the Coldwa-ter River. The circuit judge then made the following statement:

The Defendant takes the very strong stand that this is — could only be or is in fact fruits of the poisonous tree, that the information could only have been provided to law enforcement officers from Defendant Hill. The testimony before the Court, however, and what I must consider and bound thereby...

At this point in his ruling the circuit judge was interrupted by defense counsel, who requested that the court hear Hill for limited purposes only as to the admissibility of the weapon. (R. 929-930).

Pertinent portions of Hill’s testimony in chambers are as follows:

Q. Alvin, you testified earlier, and the Court is acquainted with you. Would you tell the Court when and whom you told about the whereabouts of this gun in question?

A. I told Mr. Ward about it.

Q. When did you tell Mr. Ward about it? A. Well, it was the same day I gave my confession, but it was about 8:00 or 8:30 that night. He came back — I told him I throwed it in the Coldwa-ter River and he came back and said he couldn’t find it. He was saying that he wanted me to help him, to tell him where it was. So, I told him Mr. Carter had it.

Q. Was Sheriff Monteith at the jail at that time?

A. No, sir, he was gone home.

Q. Alvin, did you at anytime indicate the whereabouts or who owned this pistol to Sammy Hampton?

A. No, sir.

Q. Did you tell Sheriff Monteith?

A. No, sir.

Q. The only officer you told about it was Rick Ward.

A. Yes, sir, that’s right.

(R. 930-931).

Cross-examination of Hill elicited the following:

Q. Mr. Hill, have you discussed what we call the fruit of the poisonous tree doctrine with your lawyers?

A. No, sir.

Q. Have they not told you that any evidence that is recovered as a result of suppressed confessions would be inadmissible?

A. I don’t understand your words.

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Q. Now, did your lawyers tell you that anything else that was recovered after that confession couldn’t be introduced?

A. No, sir, they haven’t told me that.

Q. They haven’t told you that? Did you hear Sheriff Monteith say he got the information, yesterday, from Sammy Hampton?

A. I didn’t quite understand what he was saying about what gun he was talking about until now.

(R. 931-932).

Then, on re-direct:

Q. Alvin, will you explain what you mean by what gun Mr. Monteith was referring to?

A. Well, I thought yesterday Mr. Mon-teith was referring to the gun that was used on the meat truck.

Q. So, you’re telling the Court that Sheriff Monteith could have been referring to another weapon.

A. That’s what I though he was referring to.

Q. Who supplied that weapon?

A. Sammy and myself — about who told him about it?

Q. Where did — where did Sammy get the weapon and where did you get the weapon in Tunica County?

A. Well, I got it from — Sammy got it from Quincy, his next door neighbor.

Q. Who returned it?

A. Sammy.

(R. 933).

There was no rebuttal to Hill’s testimony. The state did not call either Ward or Mon-teith, and neither did the defense. Further, Hampton did not testify on this question. From the record, this Court can only assume Hampton was then in the state penitentiary.

The circuit judge then made his final ruling as to the admissibility of the murder weapon:

THE COURT: The testimony before the Court from Sheriff Monteith given at approximately 4:00 P.M. on November 18th, this being November 19th, and the Court quotes from its notes made in the testimony of Sheriff Monteith that he informed Officer Priddy of the Memphis P.D. where gun could be found after an interview with a person by the name of Hampton, and that he did not know the results of information passed on to the Memphis police officer. During this motion in Chambers, Defendant Hill was called upon to testify for the limited purposes of rebutting testimony of Sheriff Monteith and other officers who had testified primarily as to the recovery of this weapon from a Robert Carter in Memphis, Tennessee, and to the links in the chain establishing custody and control of the weapon since its recovery. The Court understood, and it is now a matter of record, from Defendant Hill that he gave information to Officer Ward about the whereabouts of this weapon out of the presence of Sheriff Monteith, which makes it apparent to the Court that the information passed on to Officer Priddy by Sheriff Monteith was developed by him from some source other than the Defendant, it being contended by Defendant that this information possibly was derived by the Sheriff from the Defendant after and subsequent to the confession which the Court has heretofore suppressed. The Court, therefore, is compelled to overrule the motion now before it in Chambers to suppress the introduction of this firearm because it was derived by statements of the Defendant subsequent to the suppressed confession. Gentlemen, I think the record is abundantly clear on that point, and I think all of you will have to agree that that’s what is in the record.

(R. 933-935).

The pistol was then admitted into evidence before the jury by the same witnesses.

This involved and lengthy trial proceeded, resulting in Hill being found guilty on the guilt phase of the capital murder trial, and thereafter the same jury on the sentencing phase reached a unanimous verdict that he should suffer death.

II.

DID THE TRIAL COURT ERR IN ADMITTING INTO EVIDENCE A GUN, OVER APPELLANT’S TIMELY OBJECTION, THE SAME BEING THE “FRUIT OF THE POISONOUS TREE”?

This Court has upon numerous occasions dealt with the admissibility of evidence procured as a direct result of the violation of a constitutionally protected right, under both the United States and Mississippi Constitutions. It is well settled and requires no citation of authority that evidence obtained as a result of either a warrantless , search or an illegal search warrant is inadmissible. Likewise, evidence obtained as a result of an illegal arrest is inadmissible. See Pollard v. State, 233 So.2d 792 (Miss.1970); and Terry v. State, 252 Miss. 479, 173 So.2d 889 (1965).

In Dover v. State, 227 So.2d 296 (Miss. 1969), the Sheriff of Quitman County obtained a confession from the accused on a Saturday. On the Monday following the sheriff again questioned the accused and learned the whereabouts of the victim’s shirt. Upon appeal, we held the confession was involuntary and therefore inadmissible. We also held that admission of the shirt into evidence was error, since it was a result of the illegally obtained confession. We stated:

We are of the opinion that the evidence appertaining to the shirt falls within the exception noted above and that if it is to be admitted in evidence,, it must be identified by evidence other than the involuntary confession or admissions subsequent thereto. The admission of a mentally retarded person, in our opinion, is governed by the same evidentiary rules as those applying to the confession. We conclude that the trial court committed reversible error in admitting the confession, as well as the admission concerning the shirt, into evidence.

Id. at 301.

The question before us is not the validity of this well recognized principle, but whether or not it was properly applied by the trial judge. On this point we have no Mississippi case, and must resort to cases in the United States courts which are also determinative.

On the record before us, there is no contradiction that Hill told Ward he got the gun from Carter, and this followed a confession which the trial judge ruled inadmissible. The record leaves a question whether the state procured the information about the gun from a totally independent source, Sammy Hampton.

Assuming the state has received information not only as a result of a violation of a constitutionally protected right, but also from a totally independent source, who has the burden of proving the information was derived from such totally independent source, and what is the degree of proof?

In Dover, supra, there was no question but that the information about the incriminating shirt came solely from the accused. In the instant case, we have two possible sources of information as to the location of the murder weapon.

In Silverthorne Lumber Company v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920), the Supreme Court, speaking through Justice Holmes, expanded the rule excluding evidence illegally seized to also reach information received from such tainted evidence. However, the Court also indicated that the evidence might be admissible if gained from an independent source. The Supreme Court stated:

The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the court, but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the government’s own wrong cannot be used by it in the way proposed.

Id. at 392, 40 S.Ct. at 183.

In Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939), the Supreme Court, speaking through Justice Frankfurter, first used the figure of speech “fruit of the poisonous tree.” Nardone involved evidence obtained as a result of illegal wire-tapping. The Court stated:

The burden is, of course, on the accused in the first instance to prove to the trial court’s satisfaction that the wire-tapping was unlawfully employed. Once that is established — as was plainly done here— the trial judge must give opportunity, however closely confined, to the accused to prove that a substantial portion of the case against him was a fruit of the poisonous tree. This leaves ample opportunity to the Government to convince the trial court that its proof had an independent origin.

Id. at 341, 60 S.Ct. at 268 (emphasis added).

In Nardone the Supreme Court also recognized that the claim of a connection between illegally obtained evidence and information claimed to be derived therefrom “may have become so attenuated as to dissipate the taint.” Id.

In Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), the Court put the question in a different way:

We need not hold that all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”

Id. at 487-88, 83 S.Ct. at 417 (citation omitted) (emphasis added).

Wong Sun held that not only was evidence acquired as a direct result of a violation of a constitutionally protected right excluded; indeed, if the trail of illegal conduct led to other evidence, such other indirect evidence would also be excluded unless it was shown such other evidence came from (1) an independent source, or (2) had become so attenuated as to dissipate the taint.

The above loose and rather general pronouncements of the Supreme Court have been delineated in a multitude of state and federal court decisions. It is to the 5th Circuit Court of Appeals, however, that we must resort.

The Court of Appeals for the 5th Circuit has held that once a defendant makes a showing of unconstitutional conduct by the government in securing its evidence, the burden shifts to the government to demonstrate by a preponderance of the evidence that one of the above two noted exceptions applies. See United States v. Tweel, 550 F.2d 297 (5th Cir.1977); United States v. De La Fuente, 548 F.2d 528 (5th Cir.1977); and United States v. Houltin, 525 F.2d 943 (5th Cir.1976).

We are not concerned in this case with the second noted exception, but whether the information about the location of the gun came from an independent source.

Hill testified he gave Ward information about the gun. This is uncontradicted.

On the other hand, if Hampton also gave Tunica County Sheriff Monteith information about the gun, this could very well be an independent source, and certainly “sufficiently distinguishable” from the information from Hill “to be purged of the primary taint”.

Regrettably, for all concerned — including this Court — the record is incomplete.

Let-us to go Wednesday afternoon, November 19, 1980, in the chambers of the circuit judge. The previous day he has heard Sheriff Monteith testify, and from that testimony (although perhaps not as clearly stated as it might have been), coupled with what the Memphis police officers testified, one could only conclude that Hampton told Sheriff Monteith about the Carter gun. Indeed, there seemed to be no question about it.

The circuit judge is then suddenly confronted with a startling second possibility. Hill had just testified that he told Ward that Carter had the gun.

At this intriguing, tantalizing moment, the well of information runs dry. While either Ward, Monteith, or Hampton — certainly two out of these three — could have cleared the air and removed all doubt in a few moments of testimony, none was called. Why?

The defense cogently argues that their hypothesis for the information concerning the location of the gun was correct. But, with the record before us, that is all it is. While we agree that the state arguably should have offered some rebuttal to Hill’s testimony in chambers, it chose not to do so, and rested on the testimony of Sheriff Mon-teith the previous day.

Conduct of defense counsel is puzzling. They did not recall Ward or Sheriff Mon-teith for further cross-examination. This failure might be understandable in the middle of this difficult and enormously burdensome trial. But, let us move further in the proceedings. Following trial, defense counsel made a motion for a new trial, and one of their strongest arguments was the admission of the gun into evidence. With ample time to prepare for the hearing on this motion, they did not subpoena Ward, Sheriff Monteith, or Hampton to testify, and no affidavit of any of these three was supplied the court.

On the testimony which was before the circuit judge and the record as made, no one could ever know which of these two hypotheses is correct. Argument from now until doomsday could never give the answer; from this record we are damned to an eternal suspense.

Under these circumstances we are not about to fault a beleaguered trial judge, nor can we say he abused his discretion in finding that the information about the gun came from an independent source. On the record before him at trial, and in the motion for a new trial, he had a right to believe the testimony of the officers, and we find no reversible error on this record in his having done so.

III.

(a) DID THE TRIAL COURT ERR IN REMOVING A PROSPECTIVE JUROR FOR CAUSE?

A prospective juror was excused for cause after stating he could not return a verdict imposing the death penalty. He had stated there were cases in which he might consider the death penalty, but not this case. No error was committed by the circuit judge in excusing this juror for cause. See Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); Irving v. State, 361 So.2d 1360 (Miss.1978), cert. denied, 441 U.S. 913, 99 S.Ct. 2014, 60 L.Ed.2d 386 (1979); and Armstrong v. State, 214 So.2d 589 (Miss.1968), cert. denied, 395 U.S. 965, 89 S.Ct. 2109, 23 L.Ed.2d 750 (1969).

(b) DID THE CIRCUIT JUDGE ERR IN DENYING THE DEFENSE REQUEST FOR FURTHER MENTAL EXAMINATION?

Several months prior to trial, upon motion of the defense for mental evaluation, Hill was sent to the Mississippi State Hospital in Whitfield, where the medical staff rendered an opinion that Hill was competent to stand trial. The motion for his examination did not claim he lacked the mental capacity to form a criminal intent, and was therefore not guilty because of insanity; rather, the motion was predicated on whether or not he was mentally incompetent to the extent that he could not assist his counsel and prepare for trial.

Unsatisfied with the medical evaluation of the staff at Mississippi State Hospital, counsel made a motion for another examination to determine his sanity and competency to stand trial. The circuit judge overruled this motion. The circuit judge was under no obligation to locate another psychiatrist for the defense.

Moreover, if there is one thing clear from this record, Hill was competent to stand trial. Or, put another way, if he were mentally incompetent to answer questions and to fully assist his counsel, it would take an extraordinarily skilled psychiatrist to detect it.

Just prior to trial Hill was examined by a psychologist, who administered a test. Counsel did not offer this psychologist as a witness in either the guilt or sentencing phase of the trial. Nor was any evidence adduced from lay or expert witnesses either on the guilt or sentencing phase of Hill’s competency to stand trial or his mental ability.

In the motion for a new trial counsel offered the psychologist as a witness, who was of the opinion that the test revealed Hill had emotional problems which were “relatively great”; that he was prone to make “impulsive decisions, and was unable to control those impulses”; that he was unable to “profit by experiences he had had in life”; and that he was experiencing some “schizophrenic behavior” at the time of testing. (R. 1252-1253). He also stated no psychologist could make a determination based on a test. Finally, he was of the opinion that further testing and evaluation were needed.

On this record, no error was committed in overruling the motion for a new trial based on this claim.

(c) WERE PHOTOGRAPHS OF THE VICTIM’S REMAINS ADMISSIBLE?

The admission of photographs of the remains of Watkins was within the discretion of the circuit judge, and having probative value, no error was committed in offering them into evidence. See Tubbs v. State, 402 So.2d 830 (Miss.1981); Davis v. State, 376 So.2d 1079 (Miss.1979); Voyles v. State, 362 So.2d 1236 (Miss.1978), cert. denied, 441 U.S. 956, 99 S.Ct. 2184, 60 L.Ed.2d 1059 (1979); Irving v. State, supra; Brown v. State, 235 So.2d 458 (Miss.1970); Stokes v. State, 240 Miss. 453, 128 So.2d 341 (1961); and Price v. State, Miss., 54 So.2d 667, 669 (1951).

(d) DID THE TRIAL COURT ERR IN PERMITTING TESTIMONY THAT HILL ESCAPED FROM JAIL?

In August, 1979, while Hill was in the Tunica County jail, he escaped. Approximately four days later, he returned voluntarily.

The thrust of counsel’s argument is that Hill had not been indicted for the capital crime, and therefore evidence of his escape from jail was incompetent. Of course, the time of indictment is immaterial but even on the question of whether Hill was charged with, or was a suspect of this robbery at the time he escaped, there are two answers to this argument: (1) It is not clear from the record whether or not at the time Hill left the Tunica County jail the authorities had questioned him about the Watkins robbery and disappearance, but it would appear that they had. FBI Agent Shanks interviewed him in July about this hijacking; and (2) Whether the authorities knew or did not know of his guilt of the Watkins robbery and slaying, Hill knew it.

Flight is admissible on the issue of guilty knowledge. See United States v. Ballard, 423 F.2d 127 (5th Cir.1970); McClendon v. State, 387 So.2d 112 (Miss. 1980); and Ransom v. State, 149 Miss. 262, 115 So. 208 (1928).

(e)Two assignments of error can be jointly discussed:

WAS REVERSIBLE ERROR COMMITTED BY THE STATE’S REVEALING THE CONVICTION OF A CODEFEND-ANT OF MANSLAUGHTER?

WAS REVERSIBLE ERROR COMMITTED IN THE CLOSING ARGUMENT OF THE PROSECUTING ATTORNEY TO THE JURY THAT ITS VERDICT WAS NOT THE “LAST WORD”?

The state called the codefendant Gregory Tucker as a witness. During questioning of Tucker, the record reveals the following:

Q. What have you been convicted of?

A. Assault and larceny of a person in Tennessee, and manslaughter down here.

Q. Manslaughter down here in connection with what?

A. With this here case.

(R. 1013-1014).

No objection was made to either the questions or the answers. In fact, defense counsel cross-examined Tucker about the conviction, and asked him about being offered leniency. (R. 1043).

In closing argument, the prosecuting attorney made the following argument:

I knew that the attorneys would attempt to place a heavy burden on you. They would have you believe that you’re voting to kill the Defendant and that he’s going to be taken outdoors here in ten minutes and hung. That’s not so, and they know that’s not so, and that’s unfair. That’s totally unfair. They know your word is not the last word. They know that.

(R. 1190-1191) (emphasis added).

Again, there was no objection by defense counsel to this argument.

As to the state’s questioning of Tucker about his conviction of manslaughter, this constituted error. See Buckley v. State, 223 So.2d 524 (Miss.1969). The error was not as egregious as it would have been had Tucker been a witness for the defense, and the state had brought it out on cross-examination. See Warren v. State, 407 So.2d 100 (Miss.1981); and Henderson v. State, 403 So.2d 139 (Miss.1981). The state’s questioning of Tucker, a state witness, about his conviction of manslaughter was not altogether a one way street benefitting the state. This information enabled the jury to see that a radically different treatment had been extended by the state to Tucker than that proposed for Hill.

The defense sought mileage out of this concession in cross-examination.

In view of the fact that no objection was made, that Tucker was cross-examined about his plea and conviction, and the defense at least three times in closing argument compared the treatment and punishment of Tucker as opposed to that being sought for Hill (R. 1075-1076), defense counsel’s complaint at this stage appears directed towards a trial strategy in which they were participants. What this amounts to is a trial strategy counsel aided and abetted, and now seek to criticize.

. Moreover, counsel did not even see fit to assign this error in their motion for a new trial. If defense counsel did consider that their client was done an injustice in this respect, we cannot understand their failure to mention it in their motion for a new trial.

The argument made by the prosecuting attorney to the jury that their verdict was not the “last word” was clearly erroneous and would ordinarily be considered highly prejudicial.

In the usual case the jury merely determines guilt or innocence, and the circuit judge determines the sentence. In a capital murder case the jury also determines the sentence.

Any argument by the state which distorts or minimizes this solemn obligation and responsibility of the jury is serious error. Every attorney knows the jury verdict is indeed the last word on a factual dispute. Neither the circuit judge nor this Court is authorized to set aside a jury verdict on conflicting evidence, or a disputed factual issue. Moreover, in a death penalty case a jury should never be given false comfort that any decision they make will, or can be, corrected.

In Howell v. State, 411 So.2d 772 (Miss. 1982), which was not a death penalty case, we condemned a “last word” argument.

A prosecutor making this sort of argument is asking for a mistrial.

In this case, however, there was no objection made to this argument. We have consistently held that contemporaneous objection must be made to improper argument by the state, and unless such objection is made, any claimed error for such improper argument will not be considered on appeal. See Coleman v. State, 378 So.2d 640 (Miss. 1979); Thomas v. State, 358 So.2d 1311 (Miss.1978); Griffin v. State, 292 So.2d 159 (Miss.1974); Myers v. State, 268 So.2d 353 (Miss.1972); Peterson v. State, 242 So.2d 420 (Miss.1970); Ford v. State, 227 So.2d 454 (Miss.1969); Showers v. State, 227 So.2d 452 (Miss.1969); and Coburn v. State, 250 Miss. 684, 168 So.2d 123 (1964). It need also be noted that this holding has applied to death penalty cases, as well as other criminal and civil cases.

There is even further foundation for application of this well settled rule in such a case as this, where, not only was there no objection made at trial, but even in the motion for a new trial counsel still did not consider this argument as error. The motion for a new trial was filed December 12,1980, over two weeks after the trial was concluded, and a hearing was held on this motion January 6,1981. The record reveals Hill was represented by alert, avid, and thorough defense counsel. We can only conclude counsel did not consider this argument prejudicial, and Hill is bound thereby.

For these reasons, we will not consider either of these two assignments of error on this appeal.

(f) WAS ERROR COMMITTED IN THE INTRODUCTION OF A COMPUTER PRINT-OUT OF A SHIPMENT OF GOODS?

Wayne Hopper was shipping manager of the J.I. Case Company’s Memphis branch office. He testified Franz Tractor Company of Bradenton, Florida, was one of their dealers. He was handed a box containing a carburetor, numbered A39568, and testified it was a part of a shipment being returned by the Franz Tractor Company. This shipment was on the American Freight Lines truck hijacked and robbed July 12, 1979, and was not received by J.I. Case Company.

Following admission of the above testimony without objection, Hopper was handed a computer print-out of a list of parts being returned by Franz Tractor Company to J.I. Case Company at its Memphis address, on which was listed a carburetor of the same number as the carburetor offered into evidence. The carburetor above noted had been found in Hill’s apartment. Hopper testified the computer print-out listed the carburetor and the computer print-out was admitted into evidence with objection.

Following cross-examination counsel objected to the admission of the computer print-out, and cited King v. State ex rel. Murdock Acceptance Corp., 222 So.2d 393 (Miss.1969). The trial judge overruled the objection.

The trial judge committed no error in overruling the objection, even if it had been timely made. Although Hopper had nothing to do with its preparation, the computer print-out was part of business records with which Hopper came in daily contact and was familiar with, and upon which he and his company relied. His testimony was sufficient for a prima facie showing of accuracy, and. there being no contradictory proof offered, it was competent evidence. The weight and credibility of this evidence was for the jury. Id.

(g) WAS REVERSIBLE ERROR COMMITTED IN REFUSING INSTRUCTIONS AUTHORIZING CONVICTIONS OR LESSER OFFENSES?

Instructions D-9 and D-10 would have authorized the jury to convict Hill of murder or manslaughter. Instruction D-8-A gives the form of verdict for such lesser included offenses.

The circuit judge refused these instructions. No error was committed by the trial judge’s refusal to grant these instructions.

The testimony of Gregory Tucker made out a case of a planned and pre-conceived robbery by Hill, Milam, and himself, in which Hill was leader and chief actor.

After hijacking the truck, Hill marched Watkins off into the edge of the woods where his body was later found, and shot him in the back of the head. Tucker heard several shots. As Hill was taking Watkins from the truck to the woods, Tucker heard Watkins begging for his life.

Counsel now argues the robbery took place before the murder. Of course, the record reveals the murder took place during the execution of the robbery. Furthermore, as we stated in Pickle v. State, 345 So.2d 623, (Miss.1977):

If the crime of capital murder could not be sustained unless the homicide occurred during the actual attack upon a victim or during the actual burglary, kidnapping, arson or robbery, such could be an inducement for an assailant to kill his victim after the commission of the first crime in order to silence her/him as a witness. The rules stated in the foregoing cases is the more reasonable, and we hold that where the two crimes are connected in a chain of events and occur as part of the res gestae, the crime of capital murder is sustained

Id. at 626-27.

We find no merit in this assignment of error.

(h) DID THE CIRCUIT JUDGE ERR IN OVERRULING HILL’S MOTION FOR A DIRECTED VERDICT, AND A MOTION FOR A NEW TRIAL?

The testimony of Tucker, corroborated by law enforcement officers finding the carburetor in Hill’s apartment, Hill’s renting of the U-Haul truck which was used in the robbery and returned by him the next day, and the testimony of the law enforcement officers and expert witnesses that the body found in the woods was that of Watkins, lead us to conclude this assignment of error has no merit whatever.

(i) WAS ERROR COMMITTED IN ALLOWING INTO EVIDENCE DURING THE SENTENCING PHASE OF THE TRIAL TESTIMONY AND EVIDENCE PREVIOUSLY INTRODUCED IN THE GUILT PHASE?

During the sentencing phase of the trial the state requested, and was permitted by the trial court, to have the jury consider all previous testimony and evidence adduced on the guilt phase. The trial judge permitted this, and no error was committed in doing so. See In re Jordan, 390 So.2d 584, 585 (Miss.1980); Irving v. State, supra, at 1367 n. 1; and Jackson v. State, 337 So.2d 1242, 1256 (Miss.1976).

Again, this is a point which counsel for the first time argues on appeal.

IV.

BROOM, Presiding Justice,

for the Court:

Argument of appellant is that reversible error was made by the trial court when it failed to grant the following sentencing instruction requested by the defense:

Instruction D-2:

Ladies and gentlemen of the jury, I charge you that you need not find any mitigating circumstance in order to return a sentence of life imprisonment. A life sentence may be returned regardless of the evidence.

The appellant contends that this refusal had the effect of denying the jury the right to sentence him according to their feelings of mercy. He maintains that the jury was left with the impression that they were bound to return a verdict that the appellant should suffer the death penalty if they found that aggravating circumstances outweighed the mitigating circumstances from the evidence presented. According to him, this would be tantamount to a mandatory application of the death penalty and contrary to the mandate of individualized consideration handed down by the United States Supreme Court in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).

We do not agree that the jury in the case in question was under any impression that they had no choice but to impose the death penalty. Their verdict was as follows:

We, the Jury, unanimously find that the aggravating circumstances ... outweigh the mitigating circumstances and are sufficient to impose the death penalty, and that there are insufficient mitigating circumstances to outweigh the aggravating circumstances .. .

In Jordan v. State, 365 So.2d 1198 (Miss. 1978), the defense was denied an instruction very similar to the one in question here:

The Court instructs the jury that you do not have to find any mitigating circumstances in order to return a verdict that the accused should be sentenced to life in prison.

Id. at 1205.

We considered the requested instruction along with the other instructions which were granted and stated:

Here, Jordan relies on Jackson v. State, which held:

The jury shall not be required to make a special finding of any mitigating circumstances in order to return a verdict that the accused should be sentenced to life in prison. However, before the jury may return a verdict that the defendant should suffer the penalty of death, they must unanimously find in writing that after weighing the mitigating circumstances and the aggravating circumstances one against the other that the mitigating circumstances do not outweigh he aggravating circumstances and that the defendant should suffer the penalty of death. (Emphasis added).

We note the great difference in not requiring the jury to find any mitigating circumstances in order to return a verdict of life imprisonment as opposed to not requiring the jury to “make a special finding of any mitigating circumstance in order to return a verdict that the accused should be sentenced to life in prison.” (337 So.2d at 1256). If there were any merit to Jordan’s contention here, and if instruction D-13 be considered as correct, the jury resolved the issue by finding:

We unanimously find that after weighing the mitigating circumstances and the aggravating circumstances, one against the other, that the mitigating circumstances do not outweigh the aggravating circumstances, and that the Defendant should suffer the penalty of Death.

Upon these facts, there is no reversible error in the refusal to grant instruction D-13.

Id. at 1205.

The jury in this case, just as the jury in Jordan, unanimously found that the aggravating circumstances outweighed the mitigating circumstances and that the death penalty should be imposed. Their verdict is set out in language which shows that they had come to the conclusion that the aggravating circumstances justified the death penalty’s imposition and not that they had no other choice but to impose it. Based upon our holding in Jordan, we find no reversible error in the lower court’s refusal to grant instruction D-2.

Hill also complains of the refusal of the circuit judge to grant sentencing instruction D-5 which instructed the jury that unless they believed beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating circumstances, they should return a verdict of life imprisonment.

The answer to this contention is that the sentencing statutes, Mississippi Code Annotated §§ 99-19-101 and 99-19-103 (Supp. 1981), make no such requirement in the sentencing phase of the trial. This very contention was made in Gray v. Lucas, 677 F.2d 1086 (5th Cir.1982), and rejected by the Court of Appeals for the Fifth Circuit in the following language:

Ninth, Gray argues that the jury should be required to find beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating circumstances before it can impose the death penalty. This states the rule too strongly. While Mississippi requires that jurors find the existence of each aggravating circumstance beyond a reasonable doubt, the jury may return the death penalty if the aggravating circumstances are not outweighed by the mitigating circumstances. This allocation of proof accords with the capital sentencing procedures which the Court has upheld as facially valid. See Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). We therefore reject Gray’s claim.

677 F.2d at 1107.

We, therefore, find no merit in this assignment.

Finally, Hill complains of the lower court’s refusal to grant instruction D-l which authorizes the jury to consider any other circumstances surrounding his life that would be reasonably relevant to the question of his sentence. Since the court stated substantially the same thing as state’s instruction 3-A, the defense instruction was not necessary. See, e.g., Jones v. State, 381 So.2d 983 (Miss.1980), cert. denied, 449 U.S. 1003, 101 S.Ct. 543, 66 L.Ed.2d 300 (1980).

We have reviewed the record and compared it with all of our decisions subsequent to Jackson v. State, 337 So.2d 1242 (Miss.1976), involving the death penalty. Some have been affirmed and some reversed. After such comparison, we conclude that the death penalty here is not excessive in the light of the aggravating and mitigating circumstances. We further find that the infliction of the death penalty on Alvin Hill is not disproportionate, wanton or freakish when compared to cases involving similar crimes, the facts surrounding them and the defendants.

We also find that the sentence of death was not imposed under the influence of passion prejudice or any other arbitrary factors, and that the evidence overwhelmingly supports the jury’s finding of statutory aggravating circumstances in that the capital murder was committed while the defendant was engaged in the commission of robbery; that the capital offense was committed for pecuniary gain; that the defendant was previously convicted of a felony involving the use or threat of violence to the person; and that the capital offense was especially heinous, atrocious or cruel. The execution of Hill will be consistent and evenhanded in the light of all post Jackson death penalty cases considered by this Court.

The judgment of the lower court is affirmed and Wednesday, June 15,1983, is set as the date for execution of the sentence and infliction of the death penalty in the manner provided by law.

AFFIRMED.

All Justices concur as to guilt phase.

As to Part IV: HAWKINS, J., and PATTERSON, C.J., dissent.

As to Part IV: ROBERTSON, J., joins Section I only.

ROBERTSON, J., and PATTERSON, C.J., concur in part and dissent in part.

. Whether Sammy Hampton in fact told Agent Shanks that Hill was involved in the American Freight Lines robbery was not corroborated. Hampton was not involved in any way in the hijacking of the American Freight Lines truck, or robbery and murder of Watkins. He and Hill both pleaded guilty to the robbery of the meat packing company truck and driver, and were sentenced to the penitentiary by the Circuit Court of Tunica County. Hill was sentenced on September 6, 1979, to a term of 20 years.

Hill admitted saying, “Sammy will get his,” but said he was referring to the Tunica County hijacking. He also testified the response was to a statement by Agent Shanks that Sammy was “trying to make it easy on hisself and why don’t you make it easy on yourself, and I just stated Sammy would get his. That’s what I said.” (R. 780).

In any event, the record discloses no other benefit derived from Shanks’ questioning of Hill these three days than this one statement; no confession or incriminating admission was made.

The significance of Hampton’s non-involvement in the American Freight Lines hijacking, and the robbery and murder of Watkins, will be borne out further in this opinion. It is also clear from the testimony of Agent Shanks that during the questioning of Hill in July, 1979, the authorities did not know Watkins had in fact been killed. They only knew he had disappeared.

Hampton did not testify in this case, and was not listed as a prospective witness for the state in any pretrial discovery proceedings.

. It would appear from the record that Hill’s attorneys were unaware Hill had again been questioned by Ward on Saturday night following the confession, when he relented and told Ward the truth about the gun. This last conversation was never mentioned by Hill or Ward in the hearing on the pre-trial motion to suppress the confession. The first mention in the record of this conversation was Hill’s testimony in chambers when defense counsel objected to the introduction of the gun into evidence. (R. 931).

. The beginning of 'this exclusionary rule in the United States courts is found in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), which held that articles obtained as a result of a warrantless search were inadmissible in evidence. This case changed the common law rule that all competent evidence, notwithstanding its unlawful acquisition, was admissible. Beginning with Tucker v. State, 128 Miss. 211, 90 So. 845 (1922), this Court adopted the same exclusionary rule, predicated at the time, however, upon Article 23 of the Mississippi Constitution.

. Some state courts and other federal circuit courts have engrafted another exception to the “fruit of the poisonous tree” doctrine: inevitable discovery. This exception would also allow introduction of indirect evidence if it were shown that such evidence inevitably would have been discovered from an independent source. The Court of Appeals of the 5th Circuit has rejected such exception, however. See United States v. Houltin, 525 F.2d 943 (5th Cir.1976).

. Further in this opinion we will discuss the prosecution’s statement to the jury that their verdict was not the “last word”, an argument we do not condone. Ruefully, we are constrained to use this language and remind the state that with all the post-conviction proceedings available to an accused in both our state and federal courts, this opinion may not be the last word on the above assignment of error.

. If counsel had thought the psychologist’s evaluation of some benefit, it would have been relevant and proper to have him testify on the sentencing phase. See Miss.Code Ann. § 99-19-101(6)(b), (f) (Supp.1981).

. The schizophrenic testing, according to the psychologist, indicated a “possible problem”. (R. 1254).