ROY NOBLE LEE, JUSTICE, FOR THE COURT:
William Wiley was indicted and tried in the Circuit Court of DeSoto County, Honorable Andrew C. Baker, presiding, on a charge of capital murder. In a bifurcated trial, he was found guilty of capital murder and was sentenced by the jury to suffer the death penalty. He has appealed to this Court, assigning seven (7) errors in the trial below.
J. B. Turner operated a small convenience store in rural DeSoto County, Mississippi, usually keeping the store open from 7 a.m. until 12 p.m. Shortly after closing the store on August 21, 1981, Mr. Turner and his daughter were outside the store when they were both shot at close range with a .20-gauge shotgun. Mr. Turner was shot once in the chest and once in the back with small shotgun pellets and
his daughter, Mrs. Patricia Harvey, was shot about the head and upper chest, but survived.
Mr. Turner had a money sack in which he carried $350 to $400. The money was taken by the assailant. Deputy Sheriff B. A. Herron arrived at the scene shortly after the shooting. Mr. Turner was lying near the building on his back, face up, and was dead. Mrs. Harvey was in a sitting position nearby, bleeding about the face and was blinded and seriously injured. Subsequently, an investigation at the scene disclosed three spent .20-gauge shotgun shells and one unfired, live round. A green army fatigue cap was discovered near the scene. Four days later, a .20-gauge pump shotgun was found by Max Wallace, a personal friend of the victim, in the weeds and bushes behind the convenience store. He did not remove the shotgun, but summoned officers from the sheriff's office who took possession of the gun.
Two and one-half weeks later, William Wiley was arrested in Memphis, Tennessee. He confessed to the robbery and murder. Wiley led officers to a place where he threw away the money bag after taking the money from it. He then took them to an old Pontiac automobile near his girlfriend's house and showed them where he kept the shotgun hidden prior to the robbery-murder.
Were comments of the trial judge during the cross-examination of B. A. Herron prejudicial?
During the cross-examination of Deputy Sheriff B. A. Herron, the appellant's attorney interrogated him as to whether or not it was normal procedure to tape the interrogation of someone suspected of committing a crime. Mr. Herron had recorded the interrogation of appellant. Five pages of the record were consumed in the cross-examination on that particular point and questions were asked him as to whether or not he remembered testifying a week previous in another case that he taped the interrogation of a defendant. His answers were" probably no "and that" he did not remember. "Finally, the district attorney objected and the following colloquy ensued:
Q. That is not what I'm asking you. I'm asking you what you told the Jury, made up of people just like this, last week, under questioning by Mr. Kelly?
Q. You don't remember back last week? You remember the questioning. Is that correct?
A. I remember he asked a similar question.
Q. Well, you just got through stating that you remembered the question. Do you remember the question or not?
A. Well, he asked about a tape recorder, but I don't remember what I answered.
Q. Do you remember him asking you if it was your normal procedure to tape record interrogation of a person who was suspected of a crime? Do you remember him asking you that?
Q. You remember the question. Is that correct?
A. Yes, sir. He asked me that question.
Q. But, you don't remember your own answer. Is that correct?
A. I don't normally do it.
Q. I'm not asking you that. I'm asking you whether you know ...