King v. State

For the Court:

¶ 1. This case arises from Mack Arthur King’s re-sentencing to death for the August 3, 1980, capital murder of Lela Patterson. For the reasons addressed below, we reverse the death sentence and remand for a new sentencing trial.

I.

¶ 2. Mack Arthur King was found guilty of capital murder and sentenced to death on December 5, 1980. On October 27, 1982, we affirmed both the conviction and the sentence. A timely petition for rehearing was filed and later denied by this Court on December 1, 1982. See King v. State, 421 So.2d 1009 (Miss.1982). The United States Supreme Court denied King’s petition for writ of certiorari on May 2, 1983. See King v. Mississippi, 461 U.S. 919, 103 S.Ct. 1903, 77 L.Ed.2d 290 (1983). We denied his subsequent application for leave to file a petition for writ of error coram nobis in the Circuit Court of Lowndes County but later ordered that court to conduct a hearing regarding King’s claim of ineffective assistance of counsel. See King v. Thigpen, 446 So.2d 600 (Miss.1984); King v. Thigpen, 441 So.2d 1365 (Miss.1983). The circuit court conducted a hearing on the matter and found that counsel had rendered effective assistance. We affirmed the trial court’s denial of relief on February 18, 1987. See King v. State, 503 So.2d 271 (Miss.1987).

¶ 3. King then filed a petition for writ of habeas corpus with the United States District Court for the Northern District of Mississippi. The district court denied relief. See King v. Pressley, No. EC87-126-S-D. On August 25, 1993, the Fifth Circuit vacated the sentence of death and remanded the case with instructions to return to the state court for reconsideration of the sentence of death in light of Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990). See King v. Puckett, 1 F.3d 280 (5th Cir.1993). We vacated the sentence of death and remanded for a new sentencing trial. See King v. State, 656 So.2d 1168 (Miss.1995).

¶ 4. King was re-sentenced to death on April 9, 1998. His motion for new trial was denied on July 1, 1998. King now appeals that judgment.

II.

¶ 5. “On appeal to this Court, convictions of capital murder and sentences of death must be subjected to what has been labeled ‘heightened scrutiny.’ Under this method of review, all bona fide doubts are to be resolved in favor of the accused because what may be harmless error in a case with less at stake becomes reversible error when the penalty is death.” Balfour v. State, 598 So.2d 731, 739 (Miss.1992). With that standard in mind, we consider the issues raised. We address only those issues which require reversal or which deserve mention lest a problem recur on retrial.

III.

WHETHER THE LOWER COURT ERRED BY EXCLUDING ELIGIBLE JURORS WHO MAY OPPOSE THE DEATH PENALTY.

¶ 6. King asserts that the trial court erroneously excused several jurors from the jury venire who generally opposed the death penalty but vowed to follow the court’s instructions and vote for death if warranted. Specifically, King argues that the trial court erroneously excused Louise Gray, Linda Fulton, and Tommy Clayborn.

¶ 7. In completing the attorney questionnaire, Gray answered “no” to the question, “Could you ever personally vote to impose the death penalty?.” When asked during general voir dire whether she could personally “impose the death penalty,” Gray again responded “no.” The prosecutor asked whether she could impose the death penalty “even if the evidence warranted.” She responded that she would have to hear some evidence first. The prosecutor asked, “Are you still saying you could not impose the death penalty?” Gray answered, “That’s what I’m saying ‘cause I don’t know anything about it.” King argues that Gray then clearly stated that she would follow the court’s instructions and could vote for a death sentence if warranted in this case.

¶ 8. The State moved to excuse Gray for cause. Defense counsel objected by arguing that general opposition to the death penalty is not enough to strike a person for cause. The trial court ruled stating, “She said on her — uh—thing she’s opposed to the death penalty. She said out there she was opposed to the death penalty. I’m not going to let someone like that sit on the jury.”

¶ 9. Fulton also contradicted her initial negative response to the question about her ability to vote for the death penalty. Regarding this response, the prosecutor asked Fulton during voir dire, “Is that still your feeling today?” She answered, “I can’t say right now. I don’t know.” She later stated that, depending on the facts of the case, she “probably could” personally impose the death penalty. Fulton stated that she did not know what changed her mind. When asked if she could follow the instructions given by the court, she responded “Yeah, I can follow the instructions, sure.” The trial judge stated that he was “trying to get a jury to be here and be fair and impartial to both sides” before he struck Fulton for cause.

¶ 10. Clayborn stated on his questionnaire that he agreed with the death penalty. He marked “no,” however, to the question, “Could you ever personally vote to impose the death penalty?” During questioning by the prosecution during voir dire, Clayborn again stated that he could not impose the death penalty but recanted when questioned by defense counsel. WThen questioned once more by the prosecution, Clayborn returned to his original position and stated that he could not impose the death penalty. The trial judge excused him for cause.

¶ 11. The test for determining when a prospective juror’s views on the death penalty justify his removal is whether the trial court finds that the “juror’s views would prevent or substantially impair the performance of his duties in accordance with his instructions and his oath” thus leaving the trial court “with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law.” Wainwright v. Witt, 469 U.S. 412, 424-26, 105 S.Ct. 844, 852-53, 83 L.Ed.2d 841, 851-52 (1985). If the judge is concerned with the response given, he must further determine whether the potential juror could follow the law as instructed even if the juror expressed a general disapproval of the death penalty. “This is why deference must be paid to the trial judge who sees and hears the juror.” Id.

¶ 12. We have long held that it is the trial judge’s domain to judge matters regarding credibility of a witness including prospective jurors. Harris v. State, 527 So.2d 647, 649 (Miss.1988). The circuit judge, as he must, has wide discretion in determining whether to excuse any prospective juror, including one challenged for cause. Mississippi Winn-Dixie Supermarkets v. Hughes, 247 Miss. 575, 156 So.2d 734, 738 (1963). However, it is reversible error if one juror is erroneously excused from the jury on the basis of his view on the death penalty. Gray v. Mis sissippi, 481 U.S. 648, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987).

¶ 13. In the case sub judice, the trial judge excluded each of the three potential jurors because of his or her contradictory responses to the questions regarding the death penalty. In Dufour v. State, 453 So.2d 337, 341-44 (Miss.1984), certain potential jurors were excluded who gave contradictory responses, wavered on their position, and generally appeared confused regarding the death penalty issue. We found no reversible error in the trial court’s excluding the potential jurors for cause. Id. at 345.

¶ 14. The record establishes that the court excluded Gray because she repeatedly switched positions as to whether she supported or opposed the death penalty. The judge obviously had ample opportunity to observe this juror, and her apparent confusion was sufficient reason for dismissal. In striking Fulton, the judge articulated that he was “trying to get a jury to be here and be fair and impartial to both sides.” A logical reading of the transcript indicates that because Fulton had given different answers at different points, the trial judge found she would not be fair and impartial and, therefore, would not be able to follow the law. It goes without saying that a potential juror who cannot give a straight answer would be very unlikely to follow the law. Finally, we find no abuse of discretion in the court’s excusing Clay-born for cause. Clayborn continually wavered on his stance regarding the death penalty and exhibited an obvious confusion concerning the issue. Given this potential juror’s equivocal stance on the issue, we find that the trial court did not . abuse its discretion in striking him for cause.

IV.

WHETHER THE TRIAL COURT ERRED IN DENYING KING FUNDS TO RETAIN AN EXPERT PATHOLOGIST.

¶ 15. King argues that he was deprived of due process of law in violation of the United States and Mississippi Constitutions when the trial court denied him the expert assistance of a pathologist. The State used pathologist testimony to support its argument that this crime was “especially heinous, atrocious or cruel.”

¶ 16. The State called an expert, Dr. Ben Martin, who testified that Patterson was conscious when she was killed. Dr. Martin testified to specific procedures used to show how he came to his conclusion that Patterson was conscious. Dr. Martin further testified that Patterson’s head injuries were the result of multiple blows to the head. King was denied his own expert to rebut this testimony.

¶ 17. A defendant is entitled to an expert to rebut expert opinion on “crucial elements.” Ake v. Oklahoma, 470 U.S. 68, 77, 105 S.Ct. 1087, 1093, 84 L.Ed.2d 53 (1985). A fundamental question to be answered, however, is whether King has shown a “substantial need” for expert assistance. “Mississippi case law states expert assistance should be granted upon a showing of substantial need.” Holland v. State, 705 So.2d 307, 333 (Miss.1997) (quoting Butler v. State, 608 So.2d 314, 321 (Miss.1992)). “ ‘Undeveloped assertions’ of helpfulness to the defense are insufficient to show that need.” Id. (quoting Hansen v. State, 592 So.2d 114, 125 (Miss.1991)).

¶ 18. The crucial issue here was whether the crime was heinous, atrocious, or cruel. Thus, whether Patterson was conscious during the strangulation and drowning becomes a significant question. Certainly, this is a “crucial issue” within the meaning we have given that term. However, King can show no substantial need for his own expert witness since, upon cross-examination, Dr. Martin testified that Patterson may have been unconscious during the strangulation and drowning. Dr. Martin’s testimony directly rebutted the State’s argument and aided King in his defense. Consequently, King suffered no prejudice by not having a pathologist testify on his behalf. The error, if present, was harmless.

y.

WHETHER THE TRIAL COURT ERRED IN INSTRUCTING THE JURY THAT SYMPATHY COULD HAVE “NO PART” IN THE CASE.

¶ 19. King contends that the trial court erred in instructing the jury that sympathy could have no part in the case. King notes that even before the parties presented their cases, the trial court instructed the jury venire:

Jurors must be as free as humanly possible from bias, prejudice or sympathy. None of these have any part in any of your deliberations. You must be free-must not be biased, you must not be prejudiced, you’re not-must not consider sympathy as part of the case.

Further, King notes that in closing argument, defense counsel asked the jury for “understanding,” “compassion,” and “mercy.” The trial court cut off this line of argument in a bench conference and said, “You can’t ask for sympathy in any way.” After closing argument, King notes that immediately before the jury deliberated, the trial court instructed the jury:

I thought I heard one of them say go back there and have sympathy. You remember when we started I instructed you that what the attorneys said was not evidence. The evidence you have to base your decision on has come from this stand and the exhibits offered and received into evidence and I told you that — uh—bias or prejudice or sympathy have no part in your deliberations. You recall that? (Panel responds affirmatively.)

¶ 20. We have repeatedly held that under the Eighth Amendment to the U.S. Constitution, “a jury may not be instructed to disregard, in toto, sympathy” in a capital case. Pinkney v. State, 538 So.2d 329, 351 (Miss.1988), vacated and remanded on other grounds, 494 U.S. 1075, 110 S.Ct. 1800, 108 L.Ed.2d 931 (1990). King insists that no two instructions could have more clearly instructed the jury to disregard sympathy in toto than “[y]ou ... must not consider sympathy as part of this case” and “sympathy [can] have no part in your deliberations.”

¶ 21. In Blue v. State, 674 So.2d 1184, 1225 (Miss.1996), we approved an instruction which read in pertinent part as follows:

[Y]ou are cautioned not to be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling.

“[B]ecause the instruction does not inform the jury that it must disregard in toto sympathy ... the instruction is a proper statement of the law.” Id. While we have approved this type of general instruction admonishing the jury not to be swayed by “sympathy” unrelated to the evidence, we have guarded against any undue emphasis of the anti-sympathy admonition so as not to fetter unduly reasoned consideration of factors offered as mitigating. See Willie v. State, 585 So.2d 660, 677 (Miss.1991). We do this in full recognition of the fact that the line between a rational and an emotional response is often dim.

¶ 22. Miss.Code Ann. § 99-19-101(1) provides in pertinent part: “The state and the defendant and/or his counsel shall be permitted to present arguments for or against the sentence of death.” Clearly, it is appropriate for the defense to ask for mercy or sympathy in the sentencing phase. It is equally appropriate for the state to further its goal of deterrence by arguing to “send a message” in the sentencing phase. Both of these arguments are recognized as legitimate considerations to be had by those who argue “for or against” the death penalty. In Humphrey v. State, 759 So.2d 368, 374 (Miss.2000), we allowed the prosecution to present a “send a message” argument to the jury during the sentencing phase of a bifurcated capital trial. We based our decision on Wells v. State, 698 So.2d 497, 513 (Miss.1997), where we chose “not to fault the prosecution for arguing that the ‘message’ conveyed by a death penalty verdict would be different than that urged by the defense.” We stated, “To do so would be disingenuous given the inescapable reality that deterrence is, in fact, an established goal of imposing the death penalty, which goal necessarily entails, to some extent, sending a message.”

¶ 23. We today follow the above-cited statute and hold that in closing argument during the sentencing phase each side may argue its respective position on the death penalty. Of course, neither side may ever argue these positions during the guilt phase; for a conviction or an acquittal must be based solely on law and fact. It should be noted further that neither side is entitled to a jury instruction regarding mercy or deterrence. To the extent that our holding is contrary to previous case law on the subject, those cases are expressly overruled.

¶ 24. A jury’s willingness to sympathize or to send a message is developed through the broad range of human experience that jurors bring to the proceedings. The belief that jurors could erase the natural human considerations that underlie their decisions would be naive. To insist that they do so would be futile and, according to the law of this state, erroneous.

¶ 25. The line we have carefully established has been breached. The error is all the more harmful as it occurred at the close of oral argument just before the jury retired to deliberate and after the State had ample opportunity in closing to respond to the defendant’s arguments. The court’s decision to single out one aspect of its prior instructions took on an adversary tone which may have placed the judge on the side of the prosecution in the eyes of the jury. This is improper. “We have made clear that we will not hesitate to reverse where the trial judge displays partiality, becomes an advocate, or, in any significant way, conveys to the jury the impression that he has sided with the prosecution.” Layne v. State, 542 So.2d 237, 242 (Miss.1989). We have also recognized that “[i]t is a matter of common knowledge that jurors ... are very susceptible to the influence of the judge ... jurors watch his conduct and give attention to his language, that they may, if possible, ascertain his leaning to one side or the other, which, if known, often largely influences them verdict.” Thompson v. State, 468 So.2d 852, 854 (Miss.1985). For the foregoing reasons, we find that the trial court’s statements constitute reversible error.

YI.

WHETHER THE TRIAL COURT ERRED IN INSTRUCTING THE JURY ON THE AGGRAVATING “HEINOUS, ATROCIOUS OR CRUEL.”

¶ 26. King contends that the trial court erred once again in instructing the jury on the aggravator “especially heinous, atrocious or cruel.” King contends that the trial court’s instruction on the “heinous, atrocious or cruel” (“HAC”) aggravator was unconstitutionally vague. He notes that the U.S. Supreme Court explained that “channeling and limiting of the sen-tencer’s discretion in imposing the death penalty is a fundamental constitutional requirement for sufficiently minimizing the risk of wholly arbitrary and capricious action.” Maynard v. Cartwright, 486 U.S. 356, 362, 108 S.Ct. 1853, 1858, 100 L.Ed.2d 372 (1988). King insists that the HAC aggravator is unconstitutional because it fails “adequately to inform juries what they must find to impose the death penalty.” Id. at 361-62, 108 S.Ct. 1853.

¶ 27. This Court has approved the following “exact narrowing instruction on the HAC aggravator”:

The Court instructs the jury that in considering whether the capital offense was especially heinous, atrocious or cruel; heinous means extremely wicked or shockingly evil; atrocious means outrageously wicked and vile; and cruel means designed to inflict a high degree of pain with indifference to, or even enjoyment of the suffering of others.

Am especially heinous, atrocious or cruel capital offense is one accompanied by such additional acts as to set the crime apart from the norm of capital murders — the conscienceless or pitiless crime which is unnecessarily torturous to the victim. If you find from the evidence beyond a reasonable doubt that the defendant utilized a method of killing which caused serious mutilation, that there was dismemberment of the body prior to death, that the defendant inflicted physical or mental pain before death, that there was mental torture and aggravation before death, or that a fingering or torturous death was suffered by the victim, then you may find this aggravating circumstance.

Edwards v. State, 737 So.2d 275, 315 (Miss.1999).

¶ 28. The instruction this Court has approved requires, at a minimum, that the offense be a “conscienceless or pitiless crime which is unnecessarily torturous to the victim.” Id. The instruction the trial court approved is different in that it uses the disjunction “or” rather than “and” or “which is” to precede “unnecessarily torturous.” The effect is to simply substitute the words “conscienceless, pitiless, or unnecessarily torturous” for the words “heinous, atrocious or cruel.”

¶ 29. King argues that if “an ordinary person could honestly believe that every unjustified, intentional taking of human fife is ‘especially heinous’,” so too could an ordinary person believe that every unjustified, intentional taking of human fife is “conscienceless” or “pitiless.” King insists that the words “conscienceless” or “pitiless” no more limit a jury’s discretion than the words, “heinous, atrocious or cruel.” With no limiting effect on the jury’s discretion, King argues, the trial court’s instruction is unconstitutionally vague.

¶ 30. The State contends that while the language here is somewhat different than that usually given the jury, this is still an acceptable definition of this aggravating circumstance. The State argues that there is no magic language that is required to define this aggravating circumstance.

¶ 31. The definition which we have previously established as an acceptable instruction is certainly not the only acceptable instruction. It remains, however, the only definition which we have approved and which has explicitly been found to pass constitutional muster. Whether the instruction used in the case sub judice is acceptable in fight of the previously-approved instruction is a close call. Departing from the tried and true trail is fraught with danger. Therefore, on remand, the precise language of the previously-approved instruction should be used.

VII.

¶ 32. For the aforementioned reasons, the death sentence imposed by the judgment of the Lowndes County Circuit Court is reversed, and this case is remanded to that court for a new sentencing trial consistent with this opinion.

¶ 33. REVERSED AND REMANDED.

PITTMAN, C.J., WALLER, COBB and DIAZ, JJ., concur.

McRAE, P.J., concurs in result only.

BANKS, P.J., concurs with separate written opinion.

SMITH, J., dissents with separate written opinion.

EASLEY, J., not participating.