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IN RE: CONNIE RAY EVANS

NOVEMBER 30, 1983

IN RE: CONNIE RAY EVANS




ON APPLICATION FOR LEAVE TO FILE PETITION FOR WRIT OF ERROR CORAM NOBIS

EN BANC.

ROY NOBLE LEE, JUSTICE, FOR THE COURT:

Connie Ray Evans was convicted in the Circuit Court

 of the First Judicial District of Hinds County, Mississippi, and sentenced to suffer death, according to the law of the State of Mississippi. That judgment and sentence were affirmed by a unanimous decision of the Mississippi Supreme Court on November 3, 1982, and petition for rehearing was denied December 15, 1982. Evans v. State, 422 So.2d 737 (Miss. 1982). The facts recited in the opinion reflect that during the evening hours of April 8, 1981, Evans and his accomplice met and made plans to rob R. J. Food Store located on Lynch Street in Jackson, Mississippi. Evans stated to his accomplice that they might have to kill the storekeeper during the robbery. The next day, Evans and the accomplice robbed the store and clerk of approximately $400.00, and, in the process, Evans shot and killed the clerk.

 A petition for a writ of certiorari to the Supreme Court of Mississippi was filed in the United States Supreme Court and that court denied the petition on May 16, 1983. Petition for rehearing was filed and also was denied. Application for Leave to File Petition for Writ of Error Coram Nobis was filed on July 1, 1983, setting out eighteen (18) grounds for relief, each of which we address hereinafter.

 Unlawful Application of Statutory Aggravating Factors

 A. The State's Use in Petitioner's Case of the Statutory Provisions that the Murder was "Especially Heinous, Atrocious and Cruel."

 This ground was presented to the Court on direct appeal from Evans' conviction and sentence and was resolved by the Court in the following response:

 In the case sub judice, the victim was forced to kneel on the floor behind the counter with a .38-caliber revolver pointing at his head, he was made to stand up at gunpoint and open the cash register, and again was forced to kneel on the floor with the revolver still pointing at his head. He was physically assaulted by one of the robbers emptying his pockets, all occurring over a short period of time. From those facts, the jury could consider mental torture and aggravation which the victim probably underwent, and to determine whether or not the murder under all the facts and circumstances was especially heinous, atrocious or cruel. Even though it may be said that the facts of the homicide do not pass constitutional muster on the aggravating circumstances of being especially heinous, atrocious or cruel,

 three (3) other aggravating circumstances were proved by overwhelming evidence. [Evans v. State, 422 So.2d 743].

 Thus, the matter having been fully and finally litigated on direct appeal, it is res adjudicata, may not be relitigated in a coram nobis proceeding, and is procedurally barred.

 We note that Evans argues on this point in his petition that "Moreover, as expressly acknowledged by this Court in its review of petitioners's case on direct appeal, there was wholly insufficient evidence to support the jury's reliance upon this aggravating circumstance in imposing a death sentence on petitioner." The argument is displaced. The response clearly sets out that the aggravating circumstance of being especially heinous, atrocious or cruel was property submitted for the consideration of the jury and for its determination. The phrase "Even though it may be said that the facts of the homicide do not pass constitutional muster on the aggravating circumstance of being especially heinous, atrocious or cruel, . . ." is a different way of saying "Assuming arguendo, . . ." or "Even though it may be argued, . . ." or "For the sake of argument, . . ."

 B. The State's Use in Petitioner's Case of the Statutory Provision that Petitioner's Offense was Committed for the Purpose of "avoiding . . . lawful arrest" as an Aggravating Circumstance

 This contention was not alleged as error and presented on direct appeal. The issue may not now be raised for the first time on this application for leave to file the petition for writ of error coram nobis, and it is procedurally barred. Smith v. State, 434 So.2d 212 (Miss. 1983); Edwards v. ...


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