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JOHN EARL BOOKER v. STATE OF MISSISSIPPI

MARCH 21, 1984

JOHN EARL BOOKER
v.
STATE OF MISSISSIPPI



EN BANC.

WALKER, PRESIDING JUSTICE, FOR THE COURT:

I.

This is an appeal from the Circuit Court of Tate County, wherein the appellant pled guilty to the charge of capital murder. After a trial to determine sentence, the jury rendered its unanimous verdict that the appellant should suffer the death penalty. Based upon this verdict, the trial judge sentenced Booker to death by lethal gas as provided in Mississippi Code Annotated section 99-19-51 (1972). It is from this verdict and sentence that Booker appeals and assigns the following as error:

 (1) The trial court erred in failing to suppress the statement of the appellant;

 (2) The trial court erred in failing to grant appellant's motion to quash the special venire panel;

 (3) The trial court erred in overruling defendant's objections to the prosecution's introduction of gruesome

 photographs;

 (4) The trial court erred in overruling appellant's objections to the testimony of the victim's widow;

 (5) The trial court erred in not granting the appellant's motion for judgment N.O.V. in that the verdict was contrary to the overwhelming weight of evidence; and

 (6) The court is urged to consider the closing argument herein pursuant to its ruling in the Howell case.

 (7) The jury's sentence of death was against the overwhelming weight of the evidence and the result of an unconstitutional weighing process.

 (8) The arbitrary and discriminatory imposition of the death penalty in this case violates the Eighth and Fourteenth Amendments.

 (9) The prosecutor improperly used all of his peremptory challenges to exclude all Blacks from the jury, in violation of appellant's constitutional rights.

 II.

 On the afternoon of March 11, 1981, Mr. O. M. Martin was found shot to death at his Charleston scrap iron business. Charleston Police Chief Jimmy Shows was dispatched to the scene. After arriving, he requested investigative assistance from the Tallahatchie County sheriff's department and the Mississippi Highway Patrol.

 Investigators A. D. Gatewood, Jay Clark, and Jimmy Dees responded to Chief Shows' request for assistance. They proceeded to Mr. Martin's scrap iron business, where they conducted an investigation and took photographs of the crime scene. Thereafter, one of the investigators proceeded to the hospital and took pictures of Mr. Martin's body.

 Through their investigation the officers learned that on the morning of March 11, 1981, John Earl Booker, the appellant, had helped load a truck at the scrap yard. On March 12, 1981, several of the officers went to Booker's home to question him. While there, investigator Clark obtained written consent to search the pickup Booker was driving. The consent form was signed by Booker and Cora Jones, Booker's girlfriend and owner of the pickup. A search of the pickup produced Booker's wallet, which contained $123.00 and a small bag of marijuana.

 Booker was then taken to the police station, where he was advised of his rights and then questioned by Chief Shows, Deputy Sheriff Doyel Morrow and Investigator Jimmy Dees. Throughout the questioning Booker denied any involvement in the crime but agreed to submit to a polygraph examination.

 Accompanied by Investigator Dees, Deputy Sheriff Morrow and Chief Shows, Booker traveled to Jackson on March 12 for a polygraph, which was given at the Mississippi Highway Patrol Administration Building. After the test, Booker was taken to a waiting room while the results were being analyzed. At this point he indicated to Deputy Sheriff Morrow that he would like to make a statement. Morrow then called for Dees, who came into the room and advised Booker of his constitutional rights. Booker indicated that he understood these rights and agreed to waive them.

 In his statement Booker confessed to killing Mr. Martin. In summary, he told the following story:

 Booker and two accomplices agreed to rob Martin's scrap iron business. When they arrived Mr. Martin was welding at the back of an old pickup truck. Booker pulled a nickel-plated .38 calibre pistol and shot Mr. Martin in the head. He then took Mr. Martin's wallet, which contained a little over $400.00. Booker gave his two accomplices $100.00 each and kept the remaining $200.00 for himself. Booker told the officers that Martin was shot so that there would be no witnesses to the robbery.

 After making the statement, Booker was placed under arrest and transported back to Charleston.

 Booker's two accomplices, Kermit Jones and Timothy Gardner, were also arrested. Shortly after their arrest, Lottie Jones, Kermit's sister, surrendered a brown paper bag to the police. The bag contained a .38 calibre pistol and a wallet belonging to Mr. O. M. Martin. Mrs. Jones informed the officers that the bag had been hidden outside of their house.

 On the defendant's motion, venue was changed from Tallahatchie to Tate County due to the publicity surrounding the case. Trial commenced on July 20, 1981 and the appellant changed his plea from not guilty to guilty. Consequently, the trial consisted of the sentencing phase only.

 On July 22, 1981 the jury returned its verdict, finding that the aggravating circumstances outweighed the mitigating circumstances and the defendant should receive the death penalty. In accordance with this verdict the trial judge sentenced Booker to be executed on September 11, 1981. This order was then stayed pending the outcome of this appeal.

 III.

 A.

 In his first assignment of error the appellant urges that the trial court erred in failing to suppress the confession he gave to Deputy Sheriff Morrow and Investigator Jimmy Dees. The appellant contends that the officers threatened to beat him if he didn't talk and, therefore, the confession is not voluntary.

 The procedure for admitting a confession in the face of a challenge that it is involuntary was set forth in Agee v. State, 185 So.2d 671 (Miss. 1966):

 The State has the burden of proving the voluntariness of a confession. This burden is met by the testimony of an officer, or other person having knowledge of the facts, that the confession was voluntarily made without any threats, coercion, or offer of reward. This makes out a prima facie case for the State on the question of voluntariness. Lee v. State, 236 Miss. 716, 112 So.2d 254 (1959). When objection is made to the introduction of the confession, the accused is entitled to a preliminary hearing on the question of the admissibility of the confession. This hearing is conducted in the absence of the jury. Lee v. State, supra, is also authority for the proposition that when, after the State has made out a prima facie case as to the voluntariness of the confession, the accused offers testimony that violence, threats of violence, or offers of reward induced the confession, then the State must offer all the officers who were present when the accused was questioned and when the confession was signed, or give an adequate reason for the absence of any such witness. See also Holmes v. State, 211 Miss. 436, 51 So.2d 755 (1951).

 185 So.2d 673.

 A hearing was conducted outside the jury's presence and the appellant testified that he gave a confession only because the officers threatened to take him into a room and make him talk. The State then called Investigator Dees and Deputy Sheriff Morrow, the two officers who were present when the confession was given. Both testified that the appellant was in no way threatened or coerced and that he gave the confession after twice being advised of his Miranda rights. At the conclusion of the hearing the trial judge held that Booker's statement was free and voluntarily given. Based upon this finding, he ruled that it would be admitted into evidence.

 The procedure followed by the trial court comports completely with the requirements set forth in Agee, supra. Although the trial judge made no specific finding that the appellant was not beaten, such is to be inferred from his holding that the confession was voluntarily given. This Court has held many times that whether a confession was voluntarily given is a question of fact for the trial court's determination. Where there is substantial and believable evidence supporting his decision, it will not be overturned. See Harrigill v. State, 381 So.2d 619 (Miss. 1980); Curry v. State, 328 So.2d 328 (Miss. 1976); Clemons v. State, 316 So.2d 252 (Miss. 1975). We are unable to say that the trial court's ruling was contrary to the evidence. Accordingly, his finding will not be disturbed.

 B.

 The appellant next contends that the trial court erred in failing to grant his motion to quash the special venire panel.

 On May 18, 1981 the appellant filed a motion for a special venire. The trial judge sustained the motion and ordered the Clerk of Tate County to draw 150 names from the jury wheel. He also directed the Clerk to give defense counsel notice of the time and date of the drawing so that he could be present to observe the drawing if he desired. After the names were drawn, only 67 were statutorily qualified to serve on the special venire.

 Three allegations are made under this assignment of error. First, the appellant contends that the remaining number, 67, was not broad enough to legally constitute a special venire. We note that the appellant cites no authority for this contention, which is clearly without merit. Mississippi Code Annotated section 13-5-77 (1972)

 provides:

 When any person charged with a capital crime, or with the crime of manslaughter, shall have been arraigned and the plea of not guilty entered, it shall be the duty of the court, upon the demand of the accused or the district attorney, to cause to be drawn, in open court, from the jury-box as many names as the judge in his discretion may direct, not to be less than forty, and it shall be the duty of the clerk to issue a special venire facias, commanding the sheriff to summon the persons whose names are so drawn, to attend the court on a particular day to be named in the writ. In case the special venire be exhausted without a jury being impaneled from those summoned and in attendance, the court shall proceed to make up the jury for the trial of the case from the regular panel and tales jurors who may have been summoned for the day. If, after exhausting said regular panel and tales jurors, a competent jury be not obtained, the court shall direct the sheriff to summon forthwith as many tales jurors as shall be sufficient to complete the jury.

 In the event that there should be no such box, or the same should be mislaid, or the names therein have been exhausted, then the court may order a special venire facias to be issued by the clerk, directing the sheriff to summon as many jurors as may be necessary, not less than forty, and, after exhausting the same, to impanel the jury as hereinbefore directed. The slips containing the names of all jurors drawn or summoned on a special venire, and not impaneled on the jury, shall be returned to the box from which they were drawn immediately after the jury shall be impaneled. If the special venire be not demanded, the jury shall be composed of the regular venire for the week and as many talesmen and bystanders as may be required, to be summoned under the order of the court.

 In directing the Clerk to draw 150 names, the trial judge complied with the statutory requirement of ordering that not less than 40 names be drawn for the special venire. That

 the defendant was not prejudiced is further evidenced by the fact that the jury was seated without the special venire being exhausted.

 The appellant secondly alleges that he was entitled to a jury containing members of his own race. However, this question is not properly preserved for appellate review as the record does not disclose the race of the jurors. But even if this question was properly before the Court, it would still fail. "Proportional representation of the races on a jury is not required. What is required is that county officials must see to it that jurys are in fact and in good faith selected without regard to race." (Dorsey v. State, 243 So.2d 550, 552 (Miss. 1971)). In this case there is no allegation that the jury list did not reasonably reflect a cross-section of the community. This is all that the law requires; it does not guarantee the appellant a jury with members of his own race.

 Finally, the appellant alleges under this assignment that the trial court erred in excluding for cause 16 members of the panel who were opposed to the death penalty. This same argument was presented in Irving v. State, 361 So.2d 1360 (Miss. 1978), wherein the Court stated:

 In Witherspoon, the United States Supreme Court held:

 "Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction." 391 U.S. at 521-522, 88 S. Ct. at 1776-1777, 20 L.Ed.2d at 784-785.

 Following Witherspoon, this Court considered the procedure to be employed by trial judges in Myers v. State, 254 So.2d 891 (Miss. 1971). That procedure follows:

 "`The proper method of bringing the death penalty to the attention of the special veniremen is for the trial judge to inform them that they have been summoned as veniremen in a capital case and that a verdict of guilty could

 result in the infliction of the death penalty. The judge should then ask them if any member of the panel has any conscientious scruples against the infliction of the death penalty, when the law authorizes it, in proper cases, and where the testimony warrants it. If there are those who say that they are opposed to the death penalty, the trial judge should then go further and ask those veniremen, who have answered in the affirmative, whether or not they could, nevertheless, follow the testimony and the instructions of the court and return a verdict of guilty although that verdict could result in the death penalty, if they, being the judges of the weight and worth of the evidence, were convinced of the guilt of the defendant and the circumstances warranted such a verdict. Those who say that they could follow the evidence and the instructions of the court should be retained, and those who cannot follow the instructions of the court should be released. The mere fact that a venireman is opposed to the death penalty does not disqualify him as a juryman, if he can do his duty as a citizen and juror and follow the instructions of the court, and where he is convinced of the defendant's guilt he can convict him although the verdict of the jury may result in the death penalty's being inflicted upon the defendant' (Emphasis added). Armstrong v. State, Miss., 214 So.2d 589, at 593." 254 So.2d at 893-894.

 361 So.2d 1368-69.

 This procedure was followed by the court below. All 16 who were excluded indicated that they would not follow the law if it meant imposing the death penalty. In Stevenson v. State, 325 So.2d 113 (Miss. 1975) this Court held that exclusion of veniremen "who would not follow the evidence and instructions of the court, and return a verdict of guilty even though they were convinced beyond a reasonable doubt of the guilt of the defendant" does not violate a defendant's Sixth Amendment Right to a representative jury,

 noting: "Such persons are not competent jurors in a capital case and the court should exclude such persons." 325 So.2d 119. Therefore, no error was committed in excluding the 16 veniremen.

 C.

 The appellant next contends that the trial court erred in overruling his objections to the prosecution's introduction of gruesome photographs.

 Two sets of photographs were questioned under this assignment. The first set consists of five photographs depicting the crime scene. Each shot shows a dark spot on the ground, presumably blood. A review of these pictures reveals that they are not gruesome or likely to arouse the emotions of the jurors. Consequently, the trial court properly overruled the appellant's objections.

 The second set consists of two photographs which graphically show the condition of the victim after he was shot. Similar photographs were introduced in Coleman v. State, 378 So.2d 640 (Miss. 1979), wherein the Court stated:

 The two pictures complained of were color photographs showing where the shotgun pellets hit the victim on the right side of his head, his lower right arm, and on the left side of his chest.

 The trial court's ruling was that the state was entitled to introduce these two pictures to support its burden of proving that the offense was "especially heinous, atrocious or cruel" . The trial court also granted a jury instruction, over defense objections, that the jury could consider the aggravating circumstance that the offense was especially heinous, atrocious or cruel.

 The admission of the two pictures on this basis was not error, as they had some probative value along this line of reasoning.

 378 So.2d 648-49.

 As in Coleman, the photographs in the instant case have probative value on the question of whether the killing was done in a heinous, atrocious, or cruel manner. These pictures also show how the appellant shot the victim in the

 head as he turned toward him. It is reasonable to infer that he did this to keep from being identified. The appellant could just have easily knocked Mr. Martin in the head and spared his life, but chose instead to kill him.

 In Voyles v. State, 362 So.2d 1236 (Miss. 1978), it was noted that:

 This Court has held that in considering the competency, relevancy and materiality of photographs, it is within the sound discretion of the trial judge to determine whether or not the photographs have a legitimate evidentiary purpose. Irving v. State, 228 So.2d 266 (Miss. 1969); Martin v. State, 217 Miss. ...


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