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JOHN BUFORD IRVING, III v. STATE OF MISSISSIPPI

AUGUST 24, 1983

JOHN BUFORD IRVING, III
v.
STATE OF MISSISSIPPI



EN BANC.

PATTERSON, CHIEF JUSTICE, FOR THE COURT:

John Buford Irving, III, was originally tried, convicted and sentenced to death in 1976 for the capital murder of store owner Gambrell Ray of Pontotoc County. Both conviction and sentence were affirmed by this Court in Irving v. State, 361 So. 2d 1360 (Miss. 1978), where the facts necessary to this opinion are stated. Subsequently the United States District Court for the Northern District of Mississippi vacated the death sentence because it was that court's opinion Irving received ineffective assistance of counsel. Pursuant to the district court's order, the state instituted resentencing proceedings,

and Irving was again sentenced to death. He appeals, citing the following as error:

 1. The trial court erred in granting State's instruction S-1;

 2. The trial court erred in refusing defendant's instructions D-3, D-4 and D-11;

 3. The sentence of death was excessive or disproportionate to the penalty in similar cases;

 4. The trial court erred in applying Miss. Code Ann. 99-19-101 (effective from and after April 13, 1977).

 Under his first assignment of error, Irving contends the granting of general sentencing instruction S-1 was error for two reasons. We address each of these separately.

 First, Irving argues the instruction improperly omitted definitions of the terms" robbery "and" pecuniary gain. "The part of S-1 pertinent to this argument appears below:

 Consider only the following elements of aggravation in determining whether the death penalty should be imposed:

 (1) Whether or not the capital murder was committed while the defendant, John Buford Irving, III, was engaged in the commission of the crime of robbery and was committed for pecuniary gain. (Emphasis ours.)

 Irving submits that by failing to define the emphasized terms the trial court neglected to channel the jury's discretion in arriving at sentence. We are of the opinion this argument fails in view of the posture of this case. In that the conviction by the first jury was not disturbed on appeal, the present sentencing jury was prohibited by the doctrine of res judicata from relitigating the issue of guilty. Rather, the second jury's function was to accept the first jury's finding that Irving was guilty of felony murder involving robbery and then to determine sentence. Thus the definition of robbery and pecuniary gain would have been pointless and possibly confusing to the sentencing jury. We therefore conclude that the trial court's refusal to define these terms was not error.

 Appellant also argues the trial court erred in combining pecuniary gain with robbery in the first circumstance. We have held these terms are not mutually exclusive. Smith v. State, 419

 So. 2d 563 (Miss. 1982); Voyles v. State, 362 So. 2d 1236 (Miss. 1978). Tokman v. State, No. 53, 676 (Miss., decided June 1, 1983, not yet reported), on facts similar to those in this case, upheld an instruction setting out robbery and pecuniary gain as separate aggravating circumstances. Thus while it would have been proper for the trial court to have separately listed these two aggravating circumstances, the court did not do so and the appellant now complains because of their being combined into one circumstance. We are of the opinion instruction S-1 had the same content found permissible in previous cases and this argument is without merit. Moreover, the combining of the terms into one circumstance could possibly have benefitted Irving by presenting the jury with only one aggravating circumstance where two separate ones would have been justified.

 Appellant's next attack on instruction S-1 involves the second aggravating circumstance, taken from Mississippi Code Annotated, 99-19-101 (5)(h) (1972)," that the murder was committed in an especially heinous, atrocious, or cruel manner. "He urges it was error for the court to omit definitions of these terms. This argument is meritless in view of Washington v. State, 361 So. 2d 61, 66 (Miss. 1978), wherein we stated:

 It is our considered opinion that the average jury in its sound discretion and judgment understands the generally accepted meaning of the words" especially heinous, atrocious or cruel "and is able to apply these words to different factual situations without further definition of these words.

 It is our opinion that these words are not unconstitutionally vague.

 See also Coleman v. State, 378 So. 2d 640 (Miss. 1979), and Tokman v. State, No. 53, 676 (Miss., decided June 1, 1983, not yet reported).

 Irving also argues that the evidence did not suggest the murder was" conscienceless or pitiless "or" unnecessarily torturous to the victim. "Coleman v. State, 378 So. 2d at 648, citing Spinkellink v. Wainwright, 578 F.2d 582, 611 (5th Cir. 1978). Irving relies heavily on the fact that Ray died instantly. While the great majority of death penalty cases affirmed by this Court involve some type of physical and/or mental torture to the victim, we have never specifically held that a finding of 99-19-101 (5)(h) must be supported by evidence of prolonged suffering. In Edwards v. State, 413 So. 2d 1007 (Miss. 1982), involving a robbery murder victim who died ...


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