Wiley v. State

For the Court:

This capital murder case arises from an August, 1981, shooting/robbery in the Mineral Wells community of DeSoto County. The evidence reflects that J.B. Turner and his daughter were shot and robbed as they left Turner’s small convenience store in the early morning hours of August 22, 1981. Turner was killed; his daughter was blinded and received other serious injuries. The murder weapon (a sawed-off shotgun that was traced to the defendant, William Wiley) was found in the undergrowth behind the store. Wiley, age 27, was later arrested. Thereafter, he confessed to waiting in the parking lot for his victims to close the store and then shooting and robbing them. He also led the police to the place where he had discarded the money bag.

During the past fifteen years, Wiley has been sentenced to death three times for the capital murder of J.B. Turner. From his third death sentence, Wiley now appeals to this Court. Because the issues raised by Wiley are without merit, the sentence of the trial court is affirmed.

STATEMENT OF THE CASE

Wiley was originally tried, convicted, and sentenced to death in February 1982. On direct appeal, this Court affirmed Wiley’s conviction. However, the case was remanded for resentencing, due to comments by the prosecutor regarding the reviewability of the sentencing jury’s decision. See Wiley v. State, 449 So.2d 756 (Miss.1984) (Wiley I).

Wiley’s second sentencing trial was held in June, 1984. The jury again sentenced Wiley to death, and that decision was affirmed by this Court. Wiley v. State, 484 So.2d 339 (Miss.1986) (Wiley II), cert. denied Wiley v. Mississippi, 479 U.S. 906, 107 S.Ct. 304, 93 L.Ed.2d 278 (1986), overruled by Willie v. State, 585 So.2d 660 (Miss.1991).

Thereafter, Whey’s request for post-conviction relief was denied. Wiley v. State, 517 So.2d 1373 (Miss.1987) (Wiley III), cert, denied Wiley v. Mississippi 486 U.S. 1036,108 S.Ct. 2024, 100 L.Ed.2d 610 (1988). Whey then filed a petition for writ of habeas corpus in the U.S. District Court for the Northern District of Mississippi. Via an unpublished memorandum, that court denied Wiley’s petition.

Wiley next appealed to the U.S. Court of Appeals for the Fifth Circuit. That court held that Wiley’s death sentence was improper because the sentencing jury was incorrectly instructed regarding the “especially heinous, atrocious or cruel” aggravating circumstance, pursuant to the United States Supreme Court decisions in Clemons v. Mississippi 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), and Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). Wiley v. Puckett, 969 F.2d 86, 105-106 (5th Cir.1992) (Wiley IV). The Fifth Circuit instructed the District Court to issue a writ of habeas corpus unless the State of Mississippi initiated appropriate state court proceedings within a reasonable time. Id.

The State did not initiate such proceedings, and Wiley filed a motion and application for life sentence, or, in the alternative, for a new sentencing hearing. In October 1993, this Court ordered a new sentencing hearing for Wiley. Wiley v. State, 635 So.2d 802 (Miss.1993) ('Wiley V). In February 1995, Wiley was sentenced, once again, to death. From that judgment, he appeals, and raises the following issues:

I. WAS THE SENTENCE OF DEATH IMPOSED UNDER THE INFLUENCE OF PASSION, PREJUDICE AND/OR OTHER ARBITRARY FACTORS?

A. DID THE TRIAL JUDGE IMPROPERLY TELL THE VENI-RE ABOUT THE POSSIBILITY OF PAROLE?

B. DID THE PROSECUTOR MAKE AN IMPROPER COMMENT DURING CLOSING ARGUMENT?

C.DID THE TRIAL JUDGE ERR BY NOT GIVING A “DIMINISHED CAPACITY” INSTRUCTION TO THE JURY?

II. IS THE SENTENCE OF DEATH EXCESSIVE AND/OR DISPROPORTIONATE?

LEGAL ANALYSIS

I. WAS THE SENTENCE OF DEATH IMPOSED UNDER THE INFLUENCE OF PASSION, PREJUDICE AND/OR OTHER ARBITRARY FACTORS?

Wiley contends that the sentencing jury acted under the influence of passion, prejudice, and arbitrariness — in violation of Miss. Code Ann. § 99-19-105(3)(a). He raises three arguments: (A) that the trial judge improperly told the venire during voir dire about the possibility of parole should Wiley receive a life sentence; (B) that the prosecutor made an improper comment during closing arguments; and (C) that the trial judge incorrectly refused to give a “diminished capacity” instruction.

A. DID THE TRIAL JUDGE IMPROPERLY TELL THE VENIRE ABOUT THE POSSIBILITY OF PAROLE?

Wiley first contends that the jury was improperly told about the possibility of parole, should he be sentenced to life in prison. The record reflects that the trial judge was repeatedly questioned by the veniremen during voir dire regarding. the possibility of parole in the event that a life sentence should be imposed. Wiley bases his argument on the following interactions with the venire during voir dire:

Q. [BY THE DISTRICT ATTORNEY:] But the point is under state law sentencing is individualized. Okay? You’ve got to hear the evidence, good and bad, about this man and what he did to Mr. Turner in August of 1981 before you can weigh it. There’s no automatic death.. There may be cases where the death penalty is not the proper punishment. There may be cases where it is. But in order to comply with state law, those elements have to be weighed by a jury. Okay?

Yes, Sir?

A. [Prospective Juror No. 32], Could you be a little more specific as to what process you’re going to go through to have us arrive at this decision?

He ‡ ‡ H* ♦ H*

[BY THE DISTRICT ATTORNEY:] We’re going to have to show you the proof. Otherwise, I don’t know how you could make a decision. Does that answer you?

A. Thank you.

Q. Yes, ma’am?

A. (Unidentified Prospective Juror) I have a question. Is this life with no parole or do they — will there be an opportunity for this jury to distinguish no parole as opposed to the death penalty?

THE COURT: The law says life in prison. The courts or the juries have absolutely nothing to do with parole laws. If the jury finds this person guilty, which has been done, if the jury sentences him to life, we don’t know whether it’s life with or without because that’s up to the executive department. When a jury speaks and when the Court sentences, we’re through with that part of it.

BY [THE DISTRICT ATTORNEY]:

Q. Ma’am, does that—

A. I didn’t know if there was an alternative of no parole.

A. (Unidentified Prospective Juror) So he could get out after 20 years?

THE COURT: I think the jury must — I can’t answer those type questions. I think the jury is just going to have to approach it as the prosecutor has been saying — take this, take this and weigh it and make your decision based upon the way you see the evidence, not upon some uncertainty unknown down the road which you have no control over and I have no control over and just call it the way you see it at the conclusion of the trial. That’s the only thing we can do. All those contingencies, I don’t know what the answers are, nor does anyone else.

I would go back just a minute. I think [the District Attorney] is about to wind down here. If you went back 20 or 30 years ago, the Legislature in Jackson determined what eases carried the death penalty. That didn’t make any allowance for local feelings or decisions. Now, if a certain offense falls within this category, then it’s up to the people in DeSoto County up here to determine whether that’s a vote death penalty case or a life in prison case. It individualizes rather than a big body like the Legislature trying to speak for the state as a whole. It gives the local people an opportunity to take into consideration the crimes and also take into consideration the defendant himself and everything that can be legally admissible about him where you can make the decision based upon all the evidence that can be made available to you rather than just having a category. I don’t know whether that helped you or not, but it will never be taken away from you. You will be the ultimate decision makers.

H« * H* H* * Hi

[BY THE DISTRICT ATTORNEY]: Anybody else having problems with the death penalty?

Yes, Ma’am?

A. [Prospective Juror] No. 183.

Q. [No. 183]?

A. I just have a question. If the jury decides — does not unanimously decide for the death penalty and life imprisonment is the decision, who — when is — when is it justified — when would it ever be decided that it would definitely be life without parole? I was under the impression that decision could be made in lieu of the death penalty. And what I’m understanding you to say is that the death penalty is not the choice — there is a possibility that he would be given life imprisonment with parole as a possibility. Is that what you’re saying?

THE COURT: That’s a possibility, yes.

PROSPECTIVE JUROR [No. 183]: But no jury has the right to say that it’s life without parole?

THE COURT: The current status of the law is I’ll instruct you as to exactly what the law says now, and that is if you prescribe death, that’s your decision; if you prescribe life in prison, that’s your decision. Those are the two options that I’ll be—

PROSPECTIVE JUROR [No. 183]: So that is an option?

THE COURT: Yes. It will be in clear black and white print just like I said it just then.

A. [Prospective Juror No. 182] Is that like a hole in the law? To me — I don’t know the circumstances of the case or what happened, and if I look at this case and see that I think this man would be a menace to society for the rest of his life and I don’t vote for the death penalty but life imprisonment, I would be inclined more to vote for the death penalty because I don’t know if he’s going to get out. Is this a—

THE COURT: What is your number ma’am?

PROSPECTIVE JUROR [No. 182]: Oh, I’m sorry, 182.

THE COURT: [No. 182], let me try to help you if I can. I don’t know whether I can or not.

PROSPECTIVE JUROR [No. 182]: That kind of bothers me.

THE COURT: I understand that, but you’re just exactly like I am and just like the lawyers on both sides. We have to take the law as we find it today, and we have to work with it as we find the law today.

PROSPECTIVE JUROR [No. 182]: So even if we vote for life imprisonment, we’re not guaranteed life in prison.

THE COURT: No, ma’am. You’ll be doing exactly what the law says. That’s what the law says. If there’s parole down the road somewhere, I don’t have any control of it. I can’t guess. I can’t second guess it nor can you.

PROSPECTIVE JUROR [No. 182]: Okay. That’s somebody else’s job.

THE COURT: The Legislature prescribes the punishment, and once we do that, our job ends, and I’m not a soothsayer; I don’t know what’s down the road nor do you. We’ll just follow the law as the Legislature and the Supreme Court tells us it is today and do the best we can.

BY [THE DISTRICT ATTORNEY]:

Q. Anybody else? Yes, sir?

PROSPECTIVE JUROR [No. 52]: No. 52_ In other words, what you’re saying, Your Honor, is that if given the choice of life imprisonment or the death penalty, if the jury went with life in prison, the defendant could get out tomorrow, he could be paroled tomorrow technically?

THE COURT: Well, not tomorrow.

PROSPECTIVE JUROR [No. 52]: Well, as soon as the trial is over, as soon as he goes back to jail?

THE COURT: Well, at some point in time, possibly yes, I don’t know. The sentencing statute says life in prison.

After the State concluded voir dire, and outside the presence of the jury, defense counsel moved to quash the jury panel and for a mistrial. Wiley contends that the jury pool was tainted because the trial judge informed them that there was a possibility of parole if Wiley were sentenced to life imprisonment.

Under the sentencing statute in effect at that time, jurors were forbidden to consider parole — except in habitual offender cases, where a sentence of life imprisonment would automatically be without possibility of parole. See Blue v. State, 674 So.2d 1184, 1195-96 (Miss.1996); Mackbee v. State, 575 So.2d 16, 40-41 (Miss.1990). The seminal ease on this issue is Walter Williams, Jr. v. State, 445 So.2d 798, 812-14 (Miss.1984) (hereinafter Williams). In Williams, this Court held that:

A jury should have no concern with the quantum of punishment because it subverts a proper determination of the sentencing issue.

Reference to the possibility of parole should the defendant not be sentenced to die are wholly out of place at the sentencing phase of a capital murder trial for two additional reasons.

First, such references inevitably have the effect of inviting the jury to second guess the Legislature. The Legislature has declared that persons sentenced to life imprisonment may under certain circumstances become eligible for parole. It is no more proper for the jury to concern itself with the wisdom of that legislative determination that it is for the jury to consider the Legislature’s judgment that death in the gas chamber be an authorized punishment for capital murder.

Second, parole is not automatic. No person sentenced to life imprisonment has any “right” to parole. Allowing argument or testimony regarding the possibility of the defendant some day being paroled is in effect inviting the jury to speculate how ten years in the future the parole board may exercise its legislatively granted discretionary authority. This would introduce into the sentencing proceedings an “arbitrary factor” proscribed by [Miss. Code Ann.] section 99-19-105(3)(a).

Williams, 445 So.2d at 813 (citations omitted). See also Jessie Derrell Williams v. State, 544 So.2d 782, 798 (Miss.1987); Cabello v. State, 471 So.2d 332, 346 (Miss.1985).

Most of the cases dealing with this issue have arisen in the context of closing arguments, jury instructions, or witness’s testimony. See, e.g., Griffin v. State, 557 So.2d 542, 553 (Miss.1990); Jessie Derrell Williams, 544 So.2d at 798; Williams, 445 So.2d at 813. The State argues that these cases should be distinguished, because the trial court in the ease sub judice:

... steadfastly maintained that the sentencing statute stated that life in prison was the punishment. He further told the jury not to speculate about what would be done in the future as that was not their concern in considering sentence. This situation is totally different than the prosecutor making an argument that a defendant should be given the death penalty because a sentence of life imprisonment would result in parole.

The State would submit that this is not an error requiring reversal of this third death sentence. The trial court gave accurate information to the three prospective jurors who asked questions regarding parole eligibility, and those three jurors did not serve on the jury. The jury was never instructed to consider parole eligibility in determining the sentence to be imposed.

This Court is persuaded by the State’s reasoning, and finds that the case sub judice is factually distinguishable from Williams and its progeny; for this reason, the analysis expressed in those cases will not be extended to apply to this factual situation. See Williams, 445 So.2d at 813; Griffin, 557 So.2d 542; Jessie Derrell Williams, 544 So.2d 782; Cabello, 471 So.2d 332. The trial judge followed this Court’s instructions to not speculate on parole. He emphasized that the trial court and the jury had no control over parole. When further pressured by the veniremen for a more exact answer, the trial judge gave a truthful response. Moreover, at the close of the presentation of evidence, the trial judge properly instructed the jury regarding the options of life and death. The trial judge’s actions in this case did not constitute reversible error; therefore, Wiley’s claim on this point is without merit.

B. DID THE PROSECUTOR MAKE AN IMPROPER COMMENT DURING CLOSING ARGUMENT?

During closing arguments, the prosecutor commented that the jury did not know whether Wiley’s violent actions in this case were a “one-time thing”. Wiley argues that, by making these statements, the prosecutor implied that Wiley had a prior criminal record, and that such an implication was not supported by the record. The State argues that the comment was supported by the evidence, and that, furthermore, it was made in response to the following remark made during defense counsel’s closing argument:

[BY MR. JONES]: Ah the things we have established corroborate what I’m saying about this man not being a killer by instinct. But, again, he did kill. Add that up to him using bird shot. This was a onetime thing, as bad as it is, and I know it’s bad, but it’s not characteristic of this person.

As a general rule, “attorneys are to be given wide latitude in making their closing arguments.” Jimpson v. State, 532 So.2d 985, 991 (Mss.1988) (citing Johnson v. State, 477 So.2d 196, 209 (Miss.1985)); Shook v. State, 552 So.2d 841, 851 (Mss.1989). “Given the latitude afforded an attorney during closing argument, any allegedly improper prose-cutorial comment must be considered in context, considering the circumstances of the case, when deciding on their propriety.” Ballenger v. State, 667 So.2d 1242, 1270 (Miss.1995); Davis v. State 660 So.2d 1228, 1248 (Mss.1995).

The comment of the prosecutor that the jury could not know whether Wiley’s violent criminal activity was a “one-time” thing was supported by the evidence. The medical experts testified that,. if he were under the influence of alcohol, Wiley could perpetrate another violent crime. They further testified that Wiley had alcoholic tendencies, and that the success rate for recovering substance abusers was very low.

Moreover, the prosecutor’s comment rebutted the statement made by defense counsel that this violent crime was a “one-time thing”. It appears that given “the context in which the [prosecutor’s] statement was made, taken with the supporting evidence in the record, the statement did not amount to reversible error.” See Ballenger, 667 So.2d at 1271. Wiley’s argument to the contrary is without merit.

C. DID THE TRIAL JUDGE ERR BY NOT GIVING A “DIMINISHED CAPACITY” INSTRUCTION TO THE JURY?

Wiley also contends that the trial court erred by refusing to grant a “diminished capacity” instruction. The trial judge ruled that such an instruction was not supported by the evidence.

Diminished capacity or substantial impairment of “[t]he capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law” is a statutory mitigator under Miss. Code Ann. § 99 — 19—101(6)(f). Furthermore, Mss.Code Ann. § 99-19-103 provides, in pertinent part,, that “[t]he statutory instructions as determined by the trial judge to be warranted by the evidence shall be given in the charge and in writing to the jury for its deliberation.” Thus, Wiley was entitled to an instruction on the statutory mitigator of diminished capacity — if such an instruction had been supported by the evidence.

Indeed, “[i]nstruetions should be given only if they are applicable to the facts .developed in the case.” Williams, 445 So.2d at 814. In the case sub judice, doctors testified that Wiley is borderline mentally retarded; there was also evidence of his poor performance in school. Furthermore, there was ample evidence of Wiley’s alcohol addiction, which, according to one doctor, caused Wiley to have “a diminished cerebral activity, cerebral ability” at the time of the crime. Based on this evidence, Wiley argues that he was entitled to an instruction on the statutory mitigator of diminished capacity.

This Court holds that the diminished capacity instruction was not supported by the evidence in this case; therefore, Wiley was not entitled to such an instruction. See In re Hill 460 So.2d 792, 799 (Mss.1984); Williams, 445 So.2d 798 at 814; see also Carr v. State, 655 So.2d 824 (Miss.1995). In Hill, a somewhat factually similar case, the defendant also argued that the jury should have been given a diminished capacity. This Court held:

At trial a guidance counsellor from Hill’s high school testified that his IQ was about 70, that he was a slow learner, and scored low on achievement tests. She also stated that he had had a car accident in which a friend was killed in 1972. In that car accident Hill sustained a head injury. Thereafter he returned to school and excelled in carpentry work. He went on to graduate and got a college football scholarship. Hill’s high school coach testified that after the accident Hill seemed withdrawn. On the basis of this evidence, we find that there was nothing presented which would have warranted an instruction on Hill’s capacity to “appreciate the criminality of his conduct” as required by the statute at the time the murder took place. There is no merit to this assignment of error.

Hill, 460 So.2d at 799.

As in Hill, Wiley had a low IQ and trouble in school. He also had suffered a head trauma and had lost someone close to him (his grandfather). Like Hill, Wiley had thereafter been a productive member of society. Furthermore, there is no evidence that any of these problems caused either of these defendants to suffer diminished capacity at the time of the crime. The difference between Wiley and Hill is that Wiley became addicted to alcohol and drugs. The only evidence of Wiley’s alleged diminished capacity at the time of the crime is the doctor’s testimony that Wiley’s substance abuse problem caused Wiley to suffer “a diminished cerebral activity, cerebral ability” at the time of the crime. However, there is no evidence that Wiley was substantially impaired in his capacity to appreciate the criminality of his conduct and to conform his conduct to the requirements of the law.

Because the evidence did not support a diminished capacity instruction, the trial judge did not commit reversible error by refusing Wiley’s instruction on this statutory mitigator. Wiley’s argument to the contrary is without merit.

II. IS THE SENTENCE OF DEATH EXCESSIVE AND/OR DISPROPORTIONATE?

Finally, Wiley argues that the death sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. The State argues that the issue of proportionality was decided by this Court in Wiley II, which involved the direct appeal from Wiley’s second sentencing hearing. In Wiley II, the appellant based his proportionality argument on the decision in Coleman v. State, 378 So.2d 640 (Miss.1979). This Court distinguished Coleman and ruled that the death penalty was not disproportionate in Wiley’s case:

Coleman was sixteen years old, as opposed to Wiley’s twenty-six years. The victim in Coleman fired first, while Wiley ambushed his victim without warning. Coleman robbed an unoccupied house, while Wiley lay in wait with a loaded shotgun. The facts distinguish these two eases.

Under the statutory duty of Miss.Code Ann. § 99-19-105 (Supp.1985), this Court must determine whether the sentence imposed here is excessive or disproportionate to the penalty imposed in similar cases since Jackson v. State, 337 So.2d 1242 (Miss.1976). This comparison is made from cases in which the death sentence was imposed and was reviewed on appeal by this Court.

In making this individualized comparison, this Court considers the crime and the defendant. Cabello v. State, 471 So.2d at 332; Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). In so doing, the comparison leads this Court to conclude that the death sentence upon this defendant is not excessive or disproportionate. Our review reveals nothing that would justify treating this defendant differently from any other defendants given the death penalty since Jackson v. State, nor leads this Court to conclude that the defendant should receive a life sentence.

Wiley II, 484 So.2d at 354-55.

Wiley “concedes that this issue was addressed in [his] second death sentence appeal.” However, Wiley argues that no mitigating evidence was presented at either of his first two sentencing hearings, and that, as a result, “the Mississippi Supreme Court was unable to properly consider the peculiar facts of this case and, perhaps more significant, the character of this defendant.”

Mitigating evidence similar to that presented at the third sentencing phase was elicited through cross-examination of the State’s witnesses at his second sentencing hearing. See Wiley III, 517 So.2d at 1379. Apparently, however, the evidence of Wiley’s alleged mental impairment was not before the jury at his second sentencing hearing. See Wiley IV, 969 F.2d at 98-100. Therefore, this Court reconsiders the proportionality of Wiley’s death sentence in this case.

A review of other eases indicates that, considering the crime and the defendant, the death penalty in this case was proportionate. See Cabello v. State, 471 So.2d 382, 350 (Miss.1985) (death sentence was proportionate where defendant strangled and robbed business owner); Evans v. State, 422 So.2d 737, 739 (Miss.1982) (death penalty was proportionate where defendant waited 30 minutes for business to be free of customers before robbing and shooting store attendant); Booker v. State, 449 So.2d 209, 222 (Miss.1984) (death penalty was proportionate where defendant shot and robbed business owner); Conner v. State, 632 So.2d 1239, 1265 (Miss.1993) (death sentence was proportionate where defendant had intelligence quotient “on the low side of ‘average’ ”, evidence was contradictory as to whether defendant was schizophrenic amnesiac); Lanier v. State, 533 So.2d 473, 492 (Miss.1988) (death sentence was proportionate where defendant was mildly mentally retarded, suffered hallucinations, and had been institutionalized twice for alcoholism and drug abuse). Neal v. State, 451 So.2d 743, 763 (Miss.1984) (death sentence was proportionate where defendant had troubled childhood and was institutionalized at age 10 due to family and learning difficulties and was severely retarded with mental ability of 8-year-old child). Therefore, Wiley’s claim that the death sentence is disproportionate in this ease is without merit.

CONCLUSION

This Court finds that Wiley’s death sentence was not imposed under the influence of passion, prejudice, or other arbitrary factors. Furthermore, the death sentence rendered in this case was not disproportionate in comparison to other cases and defendants. Therefore, the judgment and sentence of the trial court is affirmed.

CONVICTION OF CAPITAL MURDER AND SENTENCE OF DEATH AFFIRMED. EXECUTION DATE TO BE SET WITHIN SIXTY DAYS OF FINAL DISPOSITION OF THIS CASE PURSUANT TO MISS. CODE ANN. § 99-19-105(7) (SUPP.1996) AND M.R.A.P. 41(a).

DAN LEE, C.J., and PITTMAN, JAMES L. ROBERTS, Jr., SMITH and MILLS, JJ., concur.

SULLIVAN, P.J., dissents with separate written opinion joined by BANKS and McRAE, JJ.

APPENDIX

DEATH CASES AFFIRMED BY THIS COURT

Jackson v. State, 684 So.2d 1213 (Miss.1996).

Williams v. State, 684 So.2d 1179 (Miss.1996).

Davis v. State, 684 So.2d 643 (Miss.1996).

Taylor v. State, 682 So.2d 359 (Miss.1996).

Brown v. State, 682 So.2d 340 (Miss.1996).

Blue v. State, 674 So.2d 1184 (Miss.1996).

Holly v. State, 671 So.2d 32 (Miss.1996).

Walker v. State, 671 So.2d 581(Miss.1995).

Russell v. State, 670 So.2d 816 (Miss.1995).

Ballenger v. State, 667 So.2d 1242 (Miss.1995).

Davis v. State, 660 So.2d 1228 (Miss.1995).

Carr v. State, 655 So.2d 824 (Miss.1995).

Mack v. State, 650 So.2d 1289 (Miss.1994).

Chase v. State, 645 So.2d 829 (Miss.1994).

Foster v. State, 639 So.2d 1263 (Miss.1994).

Conner v. State, 632 So.2d 1239 (Miss.1993).

Hansen v. State, 592 So.2d 114 (Miss.1991).

Shell v. State, 554 So.2d 887 (Miss.1989), Shell v. Mississippi, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990) reversing, in part, and remanding, Shell v. State, 595 So.2d 1323 (Miss.1992) remanding for new sentencing hearing.

Davis v. State, 551 So.2d 165 (Miss.1989).

Minnick v. State, 551 So.2d 77 (Miss.1989).

Pinkney v. State, 538 So.2d 329 (Miss.1989), Pinkney v. Mississippi, 494 U.S. 1075, 110 S.Ct. 1800, 108 L.Ed.2d 931 (1990) vacating and remanding Pinkney v. State, 602 So.2d 1177 (Miss.1992) remanding for new sentencing hearing.

Clemons v. State, 535 So.2d 1354 (Miss.1988), Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990) vacating and remanding, Clemons v. State, 593 So.2d 1004 (Miss.1992) remanding for new sentencing hearing.

Woodward v. State, 533 So.2d 418 (Miss.1988).

Nixon v. State, 533 So.2d 1078 (Miss.1987).

Cole v. State, 525 So.2d 365 (Miss.1987).

Lockett v. State, 517 So.2d 1346 (Miss.1987).

Lockett v. State, 517 So.2d 1317 (Miss.1987).

Faraga v. State, 514 So.2d 295 (Miss.1987).

Jones v. State, 517 So.2d 1295 (Miss.1987), Jones v. Mississippi, 487 U.S. 1230, 108 S.Ct. 2891, 101 L.Ed.2d 925 (1988) vacating and remanding, Jones v. State, 602 So.2d 1170 (Miss.1992) remanding for new sentencing hearing.

Wiley v. State, 484 So.2d 339 (Miss.1986).

Johnson v. State, 477 So.2d 196 (Miss.1985).

Gray v. State, 472 So.2d 409 (Miss.1985).

Cabello v. State, 471 So.2d 332 (Miss.1985).

Jordan v. State, 464 So.2d 475 (Miss.1985).

Wilcher v. State, 455 So.2d 727 (Miss.1984).

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

Stringer v. State, 454 So.2d 468 (Miss.1984).

Dufour v. State, 453 So.2d 337 (Miss.1984).

Neal v. State, 451 So.2d 743 (Miss.1984).

Booker v. State, 449 So.2d 209 (Miss.1984).

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

Caldwell v. State, 443 So.2d 806 (Miss.1983).

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

Tokman v. State, 435 So.2d 664 (Miss.1983).

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

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

Pruett v. State, 431 So.2d 1101 (Miss.1983).

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

Evans v. State, 422 So.2d 737 (Miss.1982).

King v. State, 421 So.2d 1009 (Miss.1982).

Wheat v. State, 420 So.2d 229 (Miss.1982).

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

Johnson v. State, 416 So.2d 383 (Miss.1982).

Edwards v. State, 413 So.2d 1007 (Miss.1982).

Bullock v. State, 391 So.2d 601 (Miss.1980).

Reddix v. State, 381 So.2d 999 (Miss.1980).

Jones v. State, 381 So.2d 983 (Miss.1980).

Culberson v. State, 379 So.2d 499 (Miss.1979).

Gray v. State, 375 So.2d 994 (Miss.1979).

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

Voyles v. State, 362 So.2d 1236 (Miss.1978).

Irving v. State, 361 So.2d 1360 (Miss.1978).

Washington v. State, 361 So.2d 61 (Miss.1978).

Bell v. State, 360 So.2d 1206 (Miss.1978).

DEATH CASES REVERSED AS TO GUILT PHASE

Hunter v. State, 684 So.2d 625 (Miss.1996).

Lanier v. State, 684 So.2d 93 (Miss.1996).

Giles v. State, 650 So.2d 846 (Miss.1995).

Duplantis v. State, 644 So.2d 1235 (Miss.1994).

Harrison v. State, 635 So.2d 894 (Miss.1994).

Butler v. State, 608 So.2d 314 (Miss.1992).

Jenkins v. State, 607 So.2d 1171 (Miss.1992).

Abram v. State, 606 So.2d 1015 (Miss.1992).

Balfour v. State, 598 So.2d 731 (Miss.1992).

Griffin v. State, 557 So.2d 542 (Miss.1990).

Bevill v. State, 556 So.2d 699 (Miss.1990).

West v. State, 553 So.2d 8 (Miss.1989).

Leatherwood v. State, 548 So.2d 389 (Miss.1989).

Mease v. State, 539 So.2d 1324 (Miss.1989).

Houston v. State, 531 So.2d 598 (Miss.1988).

West v. State, 519 So.2d 418 (Miss.1988).

Davis v. State, 512 So.2d 1291 (Miss.1987).

Williamson v. State, 512 So.2d 868 (Miss.1987).

Foster v. State, 508 So.2d 1111 (Miss.1987).

Smith v. State, 499 So.2d 750 (Miss.1986).

West v. State, 485 So.2d 681 (Miss.1985).

Fisher v. State, 481 So.2d 203 (Miss.1985).

Johnson v. State, 476 So.2d 1195 (Miss.1985).

Fuselier v. State, 468 So.2d 45 (Miss.1985).

West v. State, 463 So.2d 1048 (Miss.1985).

Jones v. State, 461 So.2d 686 (Miss.1984).

Moffett v. State, 456 So.2d 714 (Miss.1984).

Lanier v. State, 450 So.2d 69 (Miss.1984).

Laney v. State, 421 So.2d 1216 (Miss.1982).

DEATH CASES REVERSED AS TO PUNISHMENT AND REMANDED FOR RESENTENCING TO LIFE IMPRISONMENT

Reddix v. State, 547 So.2d 792 (Miss.1989).

Wheeler v. State, 536 So.2d 1341 (Miss.1988).

White v. State, 532 So.2d 1207 (Miss.1988).

Bullock v. State, 525 So.2d 764 (Miss.1987).

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

Dycus v. State, 440 So.2d 246 (Miss.1983).

Coleman v. State, 378 So.2d 640 (Miss.1979).

DEATH CASES REVERSED AS TO PUNISHMENT AND REMANDED FOR A NEW TRIAL ON SENTENCING PHASE ONLY

Taylor v. State, 672 So.2d 1246 (Miss.1996).

Shell v. State, 554 So.2d 887 (Miss.1989), Shell v. Mississippi, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990) reversing, in part, and remanding, Shell v. State 595 So.2d 1323 (Miss.1992) remanding for new sentencing hearing.

Pinkney v. State, 538 So.2d 329 (Miss.1989),Pinkney v. Mississippi, 494 U.S. 1075, 110 S.Ct. 1800, 108 L.Ed.2d 931 (1990) vacating and remanding, Pinkney v. State, 602 So.2d 1177 (Miss.1992) remanding for new sentencing hearing.

Clemons v. State, 535 So.2d 1354 (Miss. 1988), Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441,108 L.Ed.2d 725 (1990) vacating and remanding, Clemons v. State, 593 So.2d 1004 (Miss.1992) remanding for new sentencing hearing.

Jones v. State, 517 So.2d 1295 (Miss. 1987), Jones v. Mississippi, 487 U.S. 1230, 108 S.Ct. 2891,101 L.Ed.2d 925 (1988) vacating and remanding, Jones v. State, 602 So.2d 1170 (Miss.1992) remanding for new sentencing hearing.

Russell v. State, 607 So.2d 1107 (Miss.1992).

Holland v. State, 587 So.2d 848 (Miss.1991).

Willie v. State, 585 So.2d 660 (Miss.1991).

Ladner v. State, 584 So.2d 743 (Miss.1991).

Mackbee v. State, 575 So.2d 16 (Miss.1990).

Berry v. State, 575 So.2d 1 (Miss.1990).

Turner v. State, 573 So.2d 657 (Miss.1990).

State v. Tokman, 564 So.2d 1339 (Miss.1990).

Johnson v. State, 547 So.2d 59 (Miss.1989).

Williams v. State, 544 So.2d 782 (Miss.1989); sentence aff'd. 669 So.2d 44 (Miss.1996)

Lanier v. State, 533 So.2d 473 (Miss.1988).

Stringer v. State, 500 So.2d 928 (Miss.1986).

Pinkton v. State, 481 So.2d 306 (Miss.1985).

Mhoon v. State, 464 So.2d 77 (Miss.1985).

Cannaday v. State, 455 So.2d 713 (Miss.1984).

Wiley v. State, 449 So.2d 756 (Miss.1984).

Williams v. State, 445 So.2d 798 (Miss.1984).

. Miss.Code Ann. § 99-19-105(3)(a) provides that, in capital murder cases, this Court should determine whether "the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor.”

. The sentencing statute in effect at that time provided that a capital murder sentencing jury could sentence the defendant to life or death. That statute has subsequently been amended to provide that a sentencing jury may consider life, life without parole, or death. See Miss.Code Ann. § 97-3-19, as amended in 1994.

Case was originally affirmed in this Court but on remand from U.S. Supreme Court, case was remanded by this Court for a new sentencing hearing.

Case was originally affirmed in this Court but on remand from U.S. Supreme Court, case was remanded by this Court for a new sentencing hearing.

Case was originally affirmed in this Court but on remand from U.S. Supreme Court, case was remanded by this Court for a new sentencing hearing.