PRATHER, JUSTICE, FOR THE COURT:
Hezekiah Edwards was indicted for capital murder after the shooting death of a Jackson police officer. At the conclusion of the guilt-finding phase of the bifurcated trial, the jury returned a verdict of guilty. Thereafter, the jury also determined that there were two statutory aggravating circumstances which outweighed any mitigating circumstances. *fn1 Consequently, the jury found that the defendant should suffer the penalty of death. Finally, the lower court judge held that Edwards was an habitual criminal. *fn2 As a result of these determinations, the Circuit Court for the First Judicial District of Hinds County sentenced Edwards to the penalty of death.
On appeal, Edwards raises four (a) assignments of error as follows:
(1) The jury's verdict was against the overwhelming weight of the law and evidence on the issue of appellant's insanity.
(2) The appellant was denied due process and a fair trial by improper and prejudicial statements made by the District Attorney.
(3) The death penalty constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.
(4) The appellants' Eighth and Fourteenth Amendment rights were violated by the trial court's granting of statutory instruction (5)(h) contained in section 99-19-101 of the Mississippi Code Annotated (Supp. 1982).
On April 13, 1981, around 11:00 p.m., Officers Hickman and Brewer were called by radio to investigate an incident involving an armed man on Lynch Street. The officers then drove their patrol car up to the sidewalk on the 900 block of Lynch Street in front of Alexander's Cafe. When Officer Brewer stopped the car, the officers observed that one black male was sitting on a metal folding chair just inside the door at Alexander's Cafe. As the officers exited their car, the black male said: "I'm the night watchman. I'm just getting some air." Officer Hickman then replied: "Do you have a shotgun in there?" Immediately, the black male stood up as he picked up a shotgun and fired two (2) shots in rapid succession at Officer Hickman.
Both officers responded to the incident by shooting at the black male, injuring him in the shoulder. Meanwhile, Officers Paxton and Iles had arrived on the scene to aid Brewer and Hickman. While Paxton shut the cafe door, Brewer and Isles pulled Hickman into the front entrance of the Old Night Train Lounge.
Hezekiah Edwards walked out of Alexander's Cafe, with his hands raised and his shoulder bloodied. He stated "Police, don't shoot. The man doing all the shooting just went up through the loft." When the officers searched the cafe, no one else was found and there were no other exits from the cafe. Officer Brewer stated that Edwards was the man who shot Hickman.
Officer Hickman was found dead on arrival at the hospital. In the opinion of Dr. Michael G. Connor, a pathologist who performed the autopsy, the victim lost consciousness within a matter of seconds, and died no later than five (5) minutes after being shot. The autopsy revealed 286 pellet wounds to the hip region and upper back.
Following a motion filed by the State, the circuit court ordered Edwards to be transferred on April 19, 1981 to the Mississippi State Hospital at Whitfield. While there, he was subjected to a battery of psychological tests to resolve any questions concerning his capacity to stand trial and his criminal responsibility under the M'Naghten Rule. On November 10, 1981, the Court also ordered a psychiatrist at the University Medical Center to examine Edwards' mental condition. It was
the unanimous conclusion of all of these experts that, while he was definitely suffering several emotional disorders, Edwards knew right from wrong at the time of the murder. [The expert's testimony will be reviewed in detail in the discussion below].
The crucial issue to be resolved in this case is whether the jury verdict on the insanity issue *fn3 was against the weight of the evidence. For several years, our jurisdiction has chosen to apply the M'Naghten Rule as the basic step in resolving this issue. Laney v. State, 421 So. 2d 1216 (Miss. 1982); Harvey v. State, 207 So. 2d 108 (Miss. 1968); Cunningham v. State, 56 Miss. 269 (1879). The rule is stated as follows:
[T]o establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong. (R. Perkins, Criminal Law 859 (2d ed. 1969) (quoting from M'Naghten's Case, 10 Clark & F. 200, 210, 8 Eng. Rep. 718, 722 (1843)).
In applying this rule, there is a presumption that the accused is sane; and therefore, the burden is initially on the defendant to introduce evidence creating a reasonable doubt of his sanity. Herron v. State, 287 So. 2d 759 (Miss. 1974); Ford v. State, 73 Miss. 734, 19 So. 665 (1896). However, once the defendant has overcome this initial burden, it is the burden of the state to present sufficient evidence to prove the defendant's sanity beyond a reasonable doubt. Lias v. State, 362 So. 2d 198 (Miss. 1978); Myrick v. State, 290 So. 2d 259 (Miss. 1974). Expert witnesses are frequently used, as well as lay witnesses, to state their opinions of the accused's mental state with regard to the M'Naghten Rule. Such opinions must be based on personal knowledge, and the jury is not bound to accept the conclusions of any expert. Hollins v. State, 340 So. 2d 438 (Miss. 1976); Smith v. State, 245 So. 2d 583 (Miss. 1971).
In the instant case, there was a great variety of psychological and psychiatric evidence pertaining to Edwards' sanity, including past medical records. The records reflected the appellant's mental history from 1975 through August of 1980.
Beginning chronologically, Edwards was first diagnosed by
Dr. James W. Doolos, a psychiatrist, and Dr. Andrew T. Pickens, the staff psychiatrist at the federal penitentiary at Springfield, Missouri. Dr. Pickens' diagnosis of the appellant on March 18, 1975 was "chronic paranoid schizophrenia in partial remission with prominent anxiety features." On June 15, 1976, Dr. Doolos also diagnosed Edwards as suffering from chronic paranoid schizophrenia. While under these doctors' care, Edwards was treated with such drugs as prolixin, cogentin and valium. Edwards was eventually discharged after treatment for two (2) years at the Springfield Medical Center as a chronic schizophrenic in partial remission with medication.
On June 24, 1976, the appellant was examined at the Mississippi State Hospital by Dr. Dave Davidson. His diagnosis was: "This patient with the diagnosis of paranoia schizophrenia does not appear grossly psychotic at the present time. . . . He's being given a prescription for stelazine ten milligrams twice a day. The prognosis is guarded."
Again in 1980, Doctors Deborah E. Rogers and Mary E. Brown diagnosed Edwards as a paranoid schizophrenic and he was committed to Whitfield pursuant to court order. Edwards had previously been committed to Whitfield in 1966, and he had two other family members who had also been committed there. While at Whitfield on the latter occasion, Dr. Billy Graham, a staff psychiatrist, diagnosed Edwards as suffering from schizophrenia, paranoid type. Dr. Graham treated the appellant with prolixin and also gave a guarded prognosis. Edwards was eventually discharged from Whitfield in 1980. Apparently, Edwards left the hospital without permission, but the staff made no effort to bring him back. There was no reason given for the discharge.
The following is an example of the type of feelings the appellant had while voluntarily committed in 1976:
A. Feels that people are out to get him. Tells the story that his brother raped his girl and when his son grew up, they came looking for him. He said his nephews did not - didn't know him from anybody else and he was afraid they might jump on him. He stays scared all the time.
Q. All right. And the attached history from the Federal Prison in Springfield, Missouri was that the inmates were out to kill him, was it not?
Several lay witnesses who knew Edwards also testified that he was indeed "off," "weird," or "crazy." Albert Hill was the individual who alerted others that Edwards was armed and shooting a rifle on Lynch Street. He testified that Edwards told him he was carrying a shotgun because: "Cuz, these niggers been messin over me and I gonna get them." The victim was white.
In contrast to the above evidence, the state offered four (4) expert witnesses who had recently examined the appellant. Each expert testified that in his opinion, Edwards knew the difference between right and wrong and appreciated the nature and quality of his actions at the time of the crime.
Dr. Charlton S. Stanley, a forensic psychologist, performed a battery of psychological examinations on Edwards at the Mississippi State Hospital at Whitfield. Stanley testified that Edwards was administered the Wechsler Adult Intelligence Test, which is a test of intelligence; the Rorschach Ink Blot Technique Test, which is a personality test; the Sentence Completion Form, which is a handwritten personality test; and the Human Figure Drawings Test. Dr. Stanley described appellant's behavior throughout the examination as uncooperative and oppositional. In other words, Edwards deliberately tried to mislead the examiners.
Stanley testified that the Wechsler test revealed Edwards' I. Q. to be 83, a score which is considered to be a little below average but not retarded. The Rorschach Ink Blot Test indicated that Edwards was guarded and cautious, impulsive, immature, self-centered, and an extremely angry and hostile man. In interpreting the results of the Sentence Completion Form, Dr. Stanley commented that the appellant's thoughts were clear and logical, and indicated no delusional beliefs. Stanley added that Edwards' sentences frequently directly contradicted each other, a further indication that Edwards was oppositional. The Human Figure Drawing Test suggested that Edwards identified with children more than adults, that he displayed temper tantrums, and that he was very suspicious.
In Dr. Stanley's opinion, Edwards had a personality disorder professionally known as anti-social type. In laymen's terms, the disorder is frequently called psychopath or criminal personality. Dr. Stanley stated that it was very difficult to be ruled legally insane under the M'Naghten Rule, *fn4 and concluded that Edwards was nowhere near legally insane. On cross-examination,
Stanley admitted that "a person can be legally sane under . . . the M'Naghten Rule and still be medically insane or suffering from grave emotional and debilitating disorders." Stanley added that he disagreed with the diagnosis from 1975 through 1980 that indicated paranoid schizophrenia. He stated that Edwards was not suffering from any delusions. Stanley concluded by commenting that even some paranoid schizophrenics can tell the difference between right and wrong.
Dr. Robert L. McKinley, Jr., a psychiatrist, examined Edwards along with Stanley and Dr. Guild, another psychiatrist, at Whitfield. His diagnosis was "paranoid personality with anti-social features and alcohol abuse." Dr. McKinley stated that Edwards definitely knew right from wrong, and he totally disagreed with all former diagnoses that Edwards was schizophrenic. He defined paranoid schizophrenia as a mental illness in which a person has delusions or false beliefs that are patently absurd. McKinley added that many paranoid schizophrenics still know right from wrong. On cross-examination, McKinley acknowledged that Edwards had a long history of hallucinations that people were out to get him. He also admitted that it was a medical probability that the defendant had an automatic remission (without the aid of drugs), and that such a remission could have possibly occurred after the shooting incident and before the psychological examination.
Dr. Donald C. Guild diagnosed the appellant as suffering no psychosis, but that the appellant had a paranoid personality with antisocial features. In other words, Edwards was not suffering from any major mental illness. He defined antisocial features as a repeated conflict with the law, and having no conscience. In Dr. Guild's opinion, Edwards' ("the man doing all the shooting just went up through the loft") statement indicated that he knew that there had been a shooting, that he knew the police were looking for the man who had committed the act, and that he knew to blame someone else. Guild added that placing the blame on someone else indicated an understanding of right and wrong.
Dr. Garfield Tourney, a professor of psychiatry at the University Medical Center, conducted his own individual psychiatric examination and evaluation of Edwards as a result of a court order. His diagnosis of Edwards, conducted on November 12, 1981, was as follows: "alcohol abuse, long standing and chronic; personality disorder - difficulty in getting along with people; probably dull normal to borderline intelligence." On cross-examination, Tourney admitted that, in making the above diagnosis, he was not aware of the appellants' past medical history.
In resolving this dispute, we note that the defendant's medical history indicates that he may be suffering from schizophrenia, but none of the experts treating Edwards from 1975-1980 were concerned with determining his legal sanity under the M'Naghten Rule. In fact, several of the state's expert witnesses indicated that schizophrenics could still tell right from wrong. Moreover, four experts testified that Edwards could distinguish right from wrong when he murdered Hickman. In light of this evidence, it is difficult to challenge the jury's conclusion that Edwards was criminally M'Naghten responsible. We therefore find no error in this first assignment.
The next assignment of error contends that the appellant was denied a fair trial as a result of allegedly improper closing remarks made by the district attorney during the sentencing phase. The district attorney's remarks were as follows:
And that's what your job is today. To decide whether or not this man can shoot a police officer in the back with two loads of shotgun shells and go up there for life imprisonment. And believe me, Mr. Stanfield nor I neither one knows what that means. He said to you that it meant - he said to you in this language: "Life imprisonment is the only answer. Let's send him up there and let him stay up there forever." But he didn't tell you that we're going to do that -
BY MR. STANFIELD: Your Honor, we object to this argument.
BY MR. PETERS: All he said was that's the answer. And maybe it is if that were so, but we don't know that that's so.
The doctors have said that the only way to cure this type of person is to get them out of society permanently and Mr. Stanfield has not told you that putting him in life imprisonment is going to keep him up there permanently, even though he
would have you to believe that by saying that's the only answer.
BY MR. STANFIELD: I'd like a continuing objection, Your Honor, to this line of argument.
In Clemons v. State, 320 So. 2d 368 (Miss. 1975), our Court provided a lengthy discussion for guidance in resolving closing argument issues. The Court stated:
So long as counsel in his address to the jury keeps fairly within the evidence and the issues involved, wide latitude of discussion is allowed; but, when he departs entirely from the evidence in his argument, or makes statements intended solely to excite the passions or prejudices of the jury, or makes inflammatory and damaging statements of fact not found in the evidence, the trial judge should intervene to prevent an unfair argument. Moreover, this Court will not withhold a reversal where such statements are so inflammatory [in the judgment of this Court] as to influence the verdict of the jury, and thus prevent a fair trial. [Emphasis added]. Id. at 371-72].
According to the capital murder sentencing statute, section 99-19-101 of the Mississippi Code Annotated (Supp. 1982), the decision of whether to sentence the defendant to death is based on a weighing of aggravating and mitigating factors. There is absolutely no valid reason for suggesting to the jury that the defendant will one day be free. However, the analysis does not end there. As suggested by the State's brief, the defendant's counsel invited the district attorney's remarks. During closing, Mr. Stanfield argued:
He admits to being 70, 80 or 90 years of age, but we know that generically, he is 59 years of age. We know from the American Standard Tables - Mortality Tables that his life expectancy will run approximately another eleven years and we know that life imprisonment will never
let him see the outside free world again.
It is an old principle that an attorney who invites error cannot complain of it, Wood v. State, 324 So. 2d 251 (Miss. 1976); Jackson v. State, 131 So. 411 (1931); Ransom v. State, 149 Miss. 262, 115 So. 208 (1928), and this principle negates any merit that the appellant's contention may have had.
The appellant's third contention is that the death penalty constitutes a per se constitutional violation under any circumstances. This contention is obviously without merit, and needs no further comment. Roberts v. Louisiana, 428 U.S. 325, 96 S. Ct. 3001, 49 L.Ed.2d 974 (1976); Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 ...