WALKER, PRESIDING JUSTICE, FOR THE COURT ON PART I.
HAWKINS, JUSTICE, FOR THE COURT ON PART II.
The appellant, Earl Dycus, was indicted in the Circuit
Court of Yazoo County, Mississippi, for the capital murder of Rhonda McBride, a child sixteen months of age. A motion for change of venue was sustained and the case was transferred to the Circuit Court of the First Judicial District of Hinds County, Mississippi *fn1. Upon conclusion of the guilt-phase of the trial, the jury entered its unanimous verdict whereby Earl Dycus was found guilty of capital murder. Following the sentencing phase, the same jury unanimously found that the aggravating circumstances outweighed the mitigating circumstances and the appellant should suffer the penalty of death. Before this Court, the appellant initially assigns twenty-seven errors as grounds for appeal; however, he has specifically addressed ten errors in his brief. This Court finds those not briefed nor combined with those which are briefed to be waived by appellant.
On the morning of April 23, 1977, the residents of the Leroy McBride home on Ridge Road in Yazoo County, Mississippi, Leroy McBride, his wife, Martha, daughter, Rhonda, and Martha's sister, Mary Jackson, awoke later than usual. Earl Dycus had been living in the same home but had not been there for the two previous nights. Leroy left the house for his job at Johnson Cooling and Heating. Mary left the house at approximately 8:30 leaving Martha, who was wearing a housecoat, and Rhonda, the sixteen-month-old child, in a room located next to the kitchen.
Shortly before 9:00 a.m., David Kirk, a Yazoo City resident at that time, on his way into town observed smoke coming from the McBride home and could see flames flickering inside. He pulled across the driveway of the McBride home and observed a pickup truck, driven by appellant, as it was at the side of the house with the reverse lights on backing out away from the side of the house. The appellant's truck pulled to within fifteen feet of Kirk and stopped. Appellant got out and went over to Kirk's truck. Kirk reported the fire at approximately 8:56 a.m.
Robert Stewart, presently the assistant chief with the Yazoo City Fire department, and approximately eight firefighters arrived at the scene three to four minutes after receiving Kirk's call. The room on the right front of the house was fully in flames. Kenneth Woodard, Chief of the Fire Department, arrived on the scene at approximately 9:06 a.m. Vernon Stanley, deputy sheriff with the Yazoo County's sheriff's department, arrived shortly thereafter between 9:00 and 9:10 a.m. After the fire was extinguished, the men commenced to search the home for victims.
Stewart located the body of a young child (Rhonda McBride) in the closet of the room on the front right side of the house. Some clothes were lying over the child's body, its feet hanging
out from underneath them. Immediately afterwards, Stanley found the naked body of an adult female (Martha McBride, Rhonda's mother) in the same room where the child's body was located. The woman's body was lying face down and was underneath some bedsprings. Upon removing the springs from the body, some cloth material covering a portion of the victim's back was also removed. When the woman's body was rolled over, a blue-twisted towel with hair also twisted in it was found underneath her throat.
Chief Woodard testified that the fire began in the right corner of the front bedroom in the same area where the bed was located. It was his opinion the fire started on or around the bed. At approximately 11:00 a.m., he contacted the State Fire Marshall's office and requested that John Chamblee aid in the investigation of the fire.
Chamblee arrived at the scene shortly before noon on the same day. Following his investigation Chamblee determined the fire was not caused by gas nor was it an electrical fire. He further discounted the fact that it could have been originated with a lighted cigarette. In his testimony he stated, "The only other cause it could be, when we have no forms of energy at a particular location, is it had to be set or it had to have been started by someone or somebody in some manner."
Dr. Forest G. Bratley, testifying as an expert in the field of pathology, performed autopsies on both Rhonda and Martha. In determining the cause of death, blood samples were sent to the state crime lab for evaluation. Dr. Hume who at the time was a toxicologist and director of the Mississippi Crime Lab performed the laboratory tests on the blood samples sent by Dr. Bratley. (Motion was entered to prohibit Dr. Hume from testifying. Motion was overruled). The child's blood ran sixty-eight percent carboxyl hemoglobin saturation level, forty percent being considered a possible lethal level. Martha's carboxyl hemoglobin saturation was twenty-two percent, indicating a slow rate of breathing. With the results from Dr. Hume and his examination, Brantley's opinion as to Rhonda's cause of death was that it was brought about by asphyxiation. Martha died of a lack of oxygen and a combination of primarily fire with the addition of asphyxiation from the carbon monoxide. She burned to death. The difference in the carbon monoxide levels between Rhonda and Martha was that:
(1) Martha may have had some depression of her respiratory tract or respiratory center in her brain, she was not breathing deeply and regularly; and
(2) She died from the burns before she could have absorbed a large amount of carbon monoxide. Mr. Meredith Bass, (Motion
to exclude his testimony was overruled) a serologist, with the Mississippi State Crime Lab conducted a seriological examination of a cotton swab of a vaginal secretion taken from Martha's body. The results indicated there was a high amount of acid phosphatase and microscopic testing showed intact spermatoza indicating there had been some sexual relations with the victim.
The day of the fire appellant was arrested and taken to the sheriff's office in Yazoo County. Elizabeth Dycus, Martha's sister, who was separated from appellant and in the process of obtaining a divorce from him, went to the sheriff's office for the purpose of talking with him to "find out some answers to some questions I had." The sheriff directed her to a back room and told her she could find out anything she wanted to know there. The appellant was located in that room. This room was one of two small offices which were connected by a door. The door was open and any conversation between appellant and Elizabeth could have been overheard by those in the outer office. At the time, approximately five to seven people were in the outer office. Elizabeth asked appellant, "What did he do that to Martha and Rhonda for" and he responded, "Because you wouldn't come back to me." As both were leaving the room and going into the outer office she asked appellant "What if the kids and I would have been there," to which to responded, "Well, you would have been laying right beside them."
Jimmy Dale Voyles (objection to his testifying was overruled) while a prisoner in the maximum security unit at the Parchman Penitentiary became acquainted with the appellant. During their conversations, Voyles asked the appellant what he was in for. The appellant advised him he had to go back to court. Voyles then asked what he had to go back to court for and appellant responded, "He had raped a lady and strangled her, tied a baby up in a blanket, put it in a closet and set the bed linen afire." They discussed the case on two or three different occasions, each time appellant related the same information. Appellant also informed Voyles ". . . they couldn't convict him. That they weren't smart enough to catch him." At the time Voyles was a hall man, for which he was given certain privileges, such as being allowed to visit his family without being behind bars, in an open area. Voyles was under the supervision of Lt. Vanlandingham and although he often reported other inmates' conversations to his supervisor when necessary to keep trouble down in the unit, he did not relay the conversations he had with the appellant. He did inform a Mr. Gusack, an investigator with the district attorney's office of Dycus comments, when Gusack came to Parchman in August of 1978 to interview Voyles regarding any conversations he may have had with the appellant.
The appellant did not testify nor offer any witnesses in his behalf during the guilt phase of the trial.
After deliberating for one-half hour, the jury rendered its verdict: "We, the Jury, find the Defendant, Earl Dycus, guilty of capital murder."
The appellant contends that the corpus delicti of arson was not shown aliunde the extra judicial admissions, declarations, or confessions.
This Court adheres to the rule that in a case of arson the fact that a building or property has burned is insufficient in and of itself to prove the corpus delicti of the crime. There must be proof of criminal agency in causing the burning. See Rayborn v. State, 115 Miss. 730, 76 So. 639 (1917); Barron v. State, 111 Miss. 231, 71 So. 374 (1916).
The rule in this regard announced in Poole v. State, 246 Miss. 442, 150 So. 2d 429 (1963) is as follows:
The definition of corpus delicti literally is "body or substance of the crime," meaning that a crime has actually been committed, having as a compound fact (1) the existence of a certain act or result forming the basis of the criminal charge, and (2) the existence of criminal agency as the cause of this act or result. The identity of the accused is not an element of the corpus delicti. Every element, criminal charge, and criminal agency must be proved beyond a reasonable doubt; extra judicial admissions, declarations or confessions of accused are not of themselves sufficient to establish the corpus delicti. In cases where there is evidence and also a confession, the rule is as follows: "In order for the corpus delicti to be established by evidence aliunde the confessions, it is not necessary that the proof aliunde should show the crime or corpus delicti beyond a reasonable doubt, but it is sufficient to show it by a preponderance of the evidence or by evidence amounting to a probability, and that the confessions will be received, and, if the confessions coupled with the proof of the corpus delicti aliunde show the corpus delicti beyond a reasonable doubt, it is sufficient." Since corpus delicti in the trial of a criminal case is one of the main elements in the state making out a prima facie case, it is best to see the application to each case whether of common law or statutory charge.
Pitts v. State, 43 Miss. 472; Spears v. State, 46 So. 166, 92 Miss. 613; Sam v. State, 33 Miss. 347; Stringfellow v. State, 26 Miss. 157; Brown v. State, 32 Miss. 433; Pope v. State, 131 So. 264, 158 Miss. 794. See McElroy's Mississippi Evidence, sec. 22, Corpus Delicti; Underhill's Criminal Evidence, sec. 403, Proof of Corpus Delicti. (246 Miss. at 446-47).
The Court further went on to state in Poole:
Where accused confesses, corroborative proof will be held sufficient which satisfies the mind that it is real and not an imaginary crime for which accused has confessed. A jury may find that the defendant is the guilty party on proof much less than ordinarily essential. (246 Miss. at 447). In such cases as stated above all that is necessary aliunde the confession is a sufficient showing of a probability that a real crime has been committed and not an imaginary one, and a confession may be used to prove this fact beyond a reasonable doubt by direct or circumstantial evidence and the accused criminal agency can be established by the confession alone. Allen v. State, 230 Miss. 740, 93 So. 2d 844; Jones v. State, 228 Miss. 458, 88 So. 2d 91; Barnes v. State, 199 Miss. 86, 23 So. 2d 405. (246 Miss. at 447-48).
In the case now before us, the following was proved:
(1) David Kirk, who reported the fire, and as he drove up to the house, observed Dycus in a pickup truck located at the side of the house with the reverse lights on backing out away from the side of the burning house.
(2) John Chamblee, deputy fire marshal with the State Fire Marshal's office, eliminated gas, electricity or an act of God as the cause of the fire of the McBride home. He eliminated any theory of fire arising from an electrical short as the wiring connecting the wall receptacles at the place of origin of the fire and in the other rooms had no sign of beading or the wires welding together indicative of an electrical short. He further found no indication of an electrical short at the switchbox. Eliminating those forms of energy as a cause of fire, he testified the only other cause it could have been would to have been set or started by someone or ...