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WALTER WILLIAMS, JR. v. STATE OF MISSISSIPPI

JANUARY 18, 1984

WALTER WILLIAMS, JR.
v.
STATE OF MISSISSIPPI



EN BANC

PRATHER, JUSTICE, FOR THE COURT:

Walter Williams, Jr., was indicted for capital murder while engaged in the crime of robbery after the shooting death of a Jackson businessman. At the conclusion of the guilt-finding phase of the bifurcated trial, the jury returned a guilty verdict. The jury then determined that the only aggravating circumstance, i.e., that the crime was heinous, atrocious or cruel, outweighed any mitigating circumstances. As a result of that jury finding, the Circuit Court for the First Judicial District of Hinds County sentenced Williams to the death penalty. On appeal, the appellant raises seventeen assignments of error. We affirm the guilt phase; however, we reverse and remand for a new trial on the

sentence phase.

 FACTS

 Walter Williams is a black man in his thirties. His mental capabilities are described as being between the ranges of mentally retarded and dull-normal, with an intelligence quotient of 84. Since the age of nine, he worked intermittently for Venus Ainsworth at the Ainsworth Furniture Store in Jackson, performing odd jobs. Their relationship was described as good. Ainsworth loaned money to Williams when he needed it, and Williams worked out his debts at the store.

 On August 4, 1981, Williams borrowed an R G .38 caliber revolver from another Ainsworth employee who handled the store collections. That employee, Dwight Shows, described his pistol as being capable of holding six rounds of shells, but that it was only loaded with five shells when loaned to Williams. Williams allegedly borrowed the gun because an ex-girlfriend was annoying him.

 During the week prior to the killing, Williams worked two days for Ainsworth, but he had not been paid. The store procedure was to pay on Saturdays. On Saturday, August 15, 1981, Williams was living with a girlfriend, Mary Hutchinson and her two children. Two other over-night guests, Peggy Smith and Barbara Walters, were also present.

 At about 4:00 a. m., on August 15, Mary Hutchinson witnessed Walter Williams removing a pistol from underneath the mattress before leaving the house. She asked Williams for $5.00, but he stated that he had no money to give her; however, he was going to collect his check later that day. Williams returned home once, but left again about 6:00 a. m. in the direction of downtown Jackson.

 William Piggs, an acquaintance of Walter Williams, was in downtown Jackson, and in view of the rear entrance of the Ainsworth Furniture Store on that early morning. Hearing several gunshots, he looked toward the furniture store and saw Walter Williams at the rear entrance standing over Venus Ainsworth.

 Williams picked up something that looked like a briefcase and ran with a gun in his right hand. Relatives later revealed that Mr. Ainsworth, by habit, carried large amounts of cash money in a metal box and in his wallet to work every morning. Moreover, since Mr. Ainsworth had been shot and robbed twice before, he customarily carried a pistol for

 protection, along with a small pocketknife.

 The police arrived at the Ainsworth Furniture Store at about 6:34 a. m. finding Ainsworth dead near the rear entrance.

 Meanwhile, after the shooting, Williams first visited his mother's house at approximately 8:00 a. m. and left an R G .38 gun in the cedar chest at her home. Later, at about 8:15 a. m., he arrived at the home of his friends, James Lee Williams (no relation) and James Lee's mother, Rosie Williams. At this time he had with him a Smith and Wesson gun which he tried to sell to James Lee for $15.00. Williams decided not to sell the gun, but left it with James Lee for safekeeping.

 James Lee and another friend then drove Williams to the Jackson Mall. On the way Williams discussed buying a car for $500 to $600. Following this conversation, James Lee left Williams at the Mall. After making several purchases, the defendant took a cab home.

 At 10:00 a. m., Williams arrived back at his own residence. He had in his possession new clothing (black ankle boots, black hat, slacks and shirt, and underwear), which was purchased for a total sum of $105.00. In addition, he had about $45.00 in cash and a pocketknife. The police arrived at Williams' house just after his arrival, and Williams was asked to come to police headquarters for questioning.

 At police headquarters, Williams responded voluntarily as to his whereabouts between 6:00 a.m. to 6:30 a.m. that day. His story was that he had spent the night at his mother's home and had returned to his own home at about 7:00 a.m. that morning. When asked about the R G .38 caliber revolver that he borrowed from Shows, Williams responded that the pistol had been stolen by his nephew. Williams then authorized a search of his home by the police. The search, at about 11:40 a.m., resulted in the seizure of the new purchases of clothing, the pocketknife, and the $45.00 in cash. Moreover, Mary Hutchinson refuted Williams' statement that he had spent the night at his mother's home, stating that he had slept with her.

 Arcola Williams, the defendant's mother, was also visited by the police, and she consented to a search of her home. The search resulted in the seizure of the R G .38 caliber revolver and some ammunition from the cedar chest. After this search, the police decided to question Williams a second time. This time, Williams was asked to explain the

 new purchases of clothing and the cash. His response revealed that a woman had given him $35.00 and that he had sold aluminum cans for an additional $17.00. The cash for the clothing purchase was not fully accounted for.

 Williams then decided to provide a statement that detailed his presence at Ainsworth's store while having an argument with Mr. Ainsworth about competing with the store in the sale of used appliances. Ainsworth was said to have pulled a gun on Williams as the discussion continued. According to this statement, Ainsworth demanded that Williams return the pistol that was borrowed from Shows. Williams refused, but added that he would give it back to Shows. Upon that refusal, Ainsworth allegedly threatened to call the police and became very upset. Williams stated: "Mr. Ainsworth's hands were shaking and he reached up and he pulled the hammer back on his pistol which he was holding on him." Williams then admitted that he immediately pulled out the Dwight Shows pistol, shot Ainsworth one time, and then fled. However, he denied any robbery of Ainsworth's knife, gun or money.

 A subsequent story by Williams led to the recovery of Ainsworth's pistol at James Lee Williams' home. The denial by Williams of any robbery has, however, persistently been maintained.

 Turning now to the investigation of the victim immediately after the shooting, the police found Ainsworth's body face down near the rear door of the store. Ainsworth's right pants pocket was turned inside out. Although Williams told the police in one statement that Ainsworth had pulled his Smith and Wesson pistol out of his right pocket, the police actually found a set of keys in Ainsworth's right hand. The back side of Ainsworth's trousers, socks, and shoes, evidenced dust particles. Furthermore, one of Williams' statements added the fact that, after shooting Ainsworth once, Ainsworth had attempted to catch Williams' trouser leg.

 Dr. Rodrigo Galvez performed the autopsy on Ainsworth. He observed four gunshot wounds on the victim's body - one in the top of the head, one in the back of the head, one in the left temple, and one in the chest. A fifth bullet was found in the wall by the doorway to the furniture store. Dr. Galvez expressed the opinion that Ainsworth could have lived no longer than fifteen minutes after suffering from such severe wounds, and he concluded that the cause of Ainsworth's death was the gunshot wounds to either the back of the head or the temple.

 A ballistics expert testified that none of the bullets in Ainsworth's body or in the wall could have come from Ainsworth's Smith and Wesson gun; instead, all the bullets were positively matched with the pistol that Williams borrowed from Shows.

 Defendant assigns as error the following:

 THE PRETRIAL PHASE

 I. The indictment is void for failing to allege the statutory aggravating circumstances.

 II. The trial court erroneously excluded juror Odom in violation of the requirements of the United States Supreme Court for selecting jurors in death penalty cases.

 THE GUILT/INNOCENCE PHASE

 III. Appellant's conviction must be reversed because of the variance between the proof and the indictment with regard to the ownership of the property.

 IV. Conduct of the District Attorney constitute reversible error in the examination of witness Barfield.

 V. & VI. The trial court erred in granting State's Instruction Numbers 1 and 2.

 VII. The trial court erred in the guilt phase in refusing Defendant's circumstantial evidence instruction.

 VIII. Improper comments by the prosecutor in closing argument on the guilt/innocence phase.

 IX. The verdict of the jury in the guilt phase is against the overwhelming weight of the evidence and is not supported by the evidence.

 The assigned errors from the sentencing phase will be addressed later.

 LAW

 THE PRETRIAL PHASE

 I.

 In his first assignment of error, the appellant contends that the indictment should have informed him of

 the aggravating circumstances intended to be relied upon by the state so that a defense could be more adequately prepared. We note that, under section 99-19-101 (5) of the Mississippi Code Annotated (Supp. 1982), no more than eight listed aggravating circumstances may be potentially introduced against a defendant found guilty of murder.

 Several jurisdictions have considered this question, and the consensus is that the indictment does not have to inform the accused of the aggravating circumstances intended to be relied upon by the prosecution. See, e.g., Federal: Spinkellink v. Wainwright, 578 F.2d 582 (5th. Cir. 1978), cert. denied, 440 U.S. 976, 99 S. Ct. 1548, 59 L.Ed.2d 796 (1979); Mitchell v. Hopper, 538 F. Supp. 77 (S. D. Ga. 1982); Florida: Sireci v. State, 399 So.2d 964 (Fla. 1981), cert. denied, 102 S. Ct. 2257 (1982), reh. denied, 102 S. Ct. 3500 (1982); Georgia: Goodwin v. Hopper, 243 Ga. 193, 253 S.E.2d 156 (1979), cert. denied, 442 U.S. 947, 99 S. Ct. 2896, 61 L.Ed.2d 319 (1979); Missouri: State v. Trimble, 638 S.W.2d 726 (Mo. 1982); Texas: Amanda v. State, 640 S.W.2d 766 (Tex. App. 1982). However, some states do have statutes which require such notice. See, e.g., Wilson v. State, 371 So.2d 932 (Ala. Cr. App. 1978), aff'd, 371 So.2d 943 (Ala. 1979), vacated, 448 U.S. 903, 100 S. Ct. 3042, 65 L.Ed.2d 1133 (1980), on remand, 405 So.2d 696 (Ala. 1981). In Mississippi, we have no such statutory requirement.

 The major purpose of an indictment is to furnish the accused such a description of the charges against him as will enable him to adequately prepare his defense. Westmoreland v. State, 246 So.2d 487 (Miss. 1971); Woods v. State, 200 Miss. 527, 27 So.2d 895 (1946). Thus, all that is required in this regard is a concise and clear statement of the elements of the crime charged. Love v. State, 211 Miss. 606, 52 So.2d 470 (1951). Nothing more is required.

 We believe that the fact that our capital murder statute lists and defines to some degree the possible aggravating circumstances surely refutes the appellant's contention that he had inadequate notice. Anytime an individual is charged with murder, he is put on notice that the death penalty may result. And, our death penalty statute clearly states the only aggravating circumstances which may be relied upon by the prosecution in seeking the ultimate punishment. In our opinion, Williams received adequate notice. *fn1

 II.

 The appellant's next contention is that the trial judge erred in sustaining the state's challenge of potential juror Odom for cause because Odom expressed reservations about the death penalty. In Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L.Ed.2d 776 (1968), the United States Supreme Court clearly set forth the criteria upon which a challenge for cause of this nature may be sustained. A sentence of death cannot be executed if the jury was chosen by excluding potential jurors for cause simply because they voiced general objections or conscientious scruples against the death penalty. Instead, the state is permitted to exclude potential jurors only if (1) they would automatically vote against capital punishment without regard to the law and the evidence, or (2) their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt. 391 U.S. at 522-23, 88 S. Ct. at 1776, 20 L.Ed.2d at 784.

 During voir dire, Ms. Odom specifically stated that her ability to determine guilt or innocence would be affected by her personal attitude toward the death penalty. Furthermore, she added that she was opposed to the death penalty under any circumstances. These remarks clearly justified the sustaining of the challenge for cause.

 THE GUILT PHASE

 III.

 In his next assignment of error, Williams contends that there was a fatal variance between the proof and the indictment as to the ownership of the stolen property. While the indictment alleged that the defendant stole the personal property of "Venus Ainsworth d/b/a Ainsworth Furniture Company," the proof established that the property belonged in part to the corporation, Ainsworth Furniture Company, Inc., and in part to Venus Ainsworth, individually.

 Our review of the record shows that defense counsel simply allowed the introduction of the evidence in question without any objection. We have consistently followed the rule that a specific and contemporaneous objection is required to permit consideration on appeal of any issue involving a variance between the proof and the indictment. See, e.g., Banks v. State, 394 So.2d 875 (Miss. 1981); Lay v. State, 310 So.2d 908 (Miss. 1975); Ellis v. State, 254 So.2d 902 (Miss. 1971); Pieratt v. State, 235 So.2d 923 (Miss. 1970). The reasons for this rule are obvious, and its application is necessary even in death penalty cases. Accordingly, we are barred from addressing this issue on its merits.

 IV.

 Williams next asserts that a mistrial should have been granted when a prosecution witness testified about the appellant's decision to remain silent during a police interrogation. According to Officer T. C. Barfield's testimony, the appellant's response to an inquiry concerning the police's seizure of Shows' gun was that "he wanted to see his attorney" and that "he had nothing further to say."

 Defense counsel's immediate objection was based solely on the ground that the testimony involving the appellant's request for an attorney was inadmissible evidence and prejudicial. That objection was also followed by a motion for mistrial, and an alternative request for an instruction directing the jury to disregard the same remark. However, there was never any objection at trial regarding the remark that Williams "had nothing further to say."

 We are required to consider only that portion of the assignment of error which is related to the specific objection made in the court below. Tokman v. State, ___ So.2d ___ (Miss. 1983). Accordingly, defense counsel's inaction concerning the "nothing further to say" testimony renders inappropriate our consideration of that issue on the merits. The specific ground or grounds for an objection must be pointed out to the lower court so that timely remedial action, if necessary ...


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