BEFORE THE COURT EN BANC:
SULLIVAN, JUSTICE, FOR THE COURT:
James E. Billiot was indicted for the capital murder of Wallace J. Croll, Jr., by the grand jury of Hancock County, Mississippi. Billiot obtained a change of venue and was thereafter in a bifurcated trial found guilty and sentenced to death by a jury in the Circuit Court of Harrison County, Mississippi.
On Thanksgiving Day, November 26, 1981, Wallace Croll, Jr., Billiot's stepfather, was found bludgeoned to death in his home. Billiot's mother and Billiot's 14-year-old stepsister were also found in the home, killed in the same manner. The bodies were found by 12-year-old Stephen Croll, Chris Lee, and George Hebbler. Young Croll, Lee and Hebbler were returning from Picayune, Mississippi, on the morning of November 26, 1981, when they saw James Billiot driving Wallace Croll's car. They became suspicious and immediately went to Croll's Leetown community home. There they found the bodies, as well as an 8-pound sledge hammer lying near the deceased. On the floor, they also found Wallace Croll's wallet and several papers scattered about.
Bryan Strickland, a Leetown resident and acquaintance of Billiot's, testified that on November 7, 1981, while at the Living Waters Church of God in Picayune, Mississippi, James Billiot told Strickland that he was going to kill his mother and his stepfather. Leo Jones testified that on the morning of November 26, 1981, he saw Billiot hitchhiking and gave him a ride from Picayune to the Leetown community. Billiot did not want to be let out in front of the Croll house in Leetown but insisted on being let out by a field near the house.
When the bodies were found, an all-points bulletin was issued in Mississippi and Louisiana and two days later Billiot was arrested by the New Orleans police department. After a hearing he was extradited to Mississippi. On April 27, 1982, appellant filed the following motions: Motion to suppress evidence; motion to change venue; motion to conduct mental examination of defendant, and motion to conduct separate hearing on robbery charges.
During the July, 1982, term of the court a hearing was had on the motion for change of venue and the motion for psychiatric examination. The motion to change venue was denied and the motion for psychiatric examination was sustained.
In September, 1982, appellant filed several more
motions including a motion to prohibit jury dispersal, motion to request special venire, notice of insanity defense, motion for omnibus hearing and motion to suppress evidence. In October, 1982, the motion to suppress was overruled, after a full hearing. The motion for change of venue was sustained from Hancock County to adjacent Harrison County. Appellant objected to Harrison County as the site of the new venue but this objection was overruled. On November 15, 1982, appellant filed a motion for continuance. This motion was overruled and on November 29 and 30, 1982, the trial court overruled the motion for individual voir dire of the jury and a renewal motion for change of venue. After Billiot had undergone mental examination at the State Hospital at Whitfield, Mississippi, and had been determined competent to stand trial, the trial was conducted from November 29 - December 2, 1982. The sole defense was insanity.
With the exception of the expert testimony on the question of Billiot's sanity, the evidence adduced at the trial was largely uncontradicted.
Appellant's motions for judgment notwithstanding the verdict and for a new trial were denied and he perfected this appeal, and assigns as error the following, to-wit:
I. The court erred in denying appellant's attorneys a reasonable amount by way of expenses in order to conduct an investigation into the mood and attitude of the community toward appellant in furtherance of appellant's motion for change of venue.
II. The court erred in refusing the defendant a change of venue and/or a continuance.
III. The jury selection process under Section 97-3-19 (Capital murder statute) and Section 99-19-101 (Separate sentencing proceeding in capital cases) is unconstitutional. W. The state failed to provide the defendant a special venire.
V. Appellant's right to a fair and impartial trial was denied by the court by: (1) denying appellant's request for individual voir dire of the potential jurors; (2)
limiting appellant's voir dire of potential jurors; (3) refusing to excuse jurors for cause upon appellant's motion; (4) denying appellant additional peremptory challenges.
VI. The court erred in overruling defendant's motion to suppress the statements of the defendant.
VII. The court erred in allowing Dr. Henry A. Maggio to testify on the issue of insanity.
VIII. The court erred in permitting the introduction of full color photographs of the victim and of the murder weapon as neither had any probative value but served only to inflame and prejudice the jury.
IX. The court erred in refusing defendant's instructions on the insanity issue.
X. The court erred in denying appellant's instruction D-9.
XI. The court failed to give clear instructions as to the state's burden of proof of the underlying felony and such error was fatal to the verdict.
XII. The court erred in overruling appellant's motion for a directed verdict at the close of the state's case and in overruling appellant's request for a peremptory instruction at the close of the trial.
XIII. The verdict of the jury was against the overwhelming weight of the evidence.
XIV. Verdict of the jury finding appellant guilty of capital murder was against the overwhelming weight of credible evidence.
XV. The imposition of the death penalty is cruel and unusual punishment per se.
XVI. Section 99-19-101 (5) (h) is
unconstitutionally vague, ambiguous and overbroad in violation of the due process clause of the fifth and fourteenth amendments of the United States Constitution and of Section Fourteen of the Mississippi Constitution and of the prohibition against cruel and inhuman punishment of the eighth and fourteenth amendments of the United States Constitution and of Section twenty-eight of the Mississippi Constitution.
XVII. Section 99-19-101 (5) (d) is unconstitutional as it violates the due process clause of the fifth and fourteenth amendments of the United States Constitution and of Section fourteen of the Mississippi Constitution, the double jeopardy clause of the fifth and fourteenth amendments of the United States Constitution and of Section twenty-two of the Mississippi Constitution, and the prohibition against cruel and unusual punishment of the eighth and fourteenth amendment of the United States Constitution and of Section twenty-eight of the Mississippi Constitution.
XVIII. Sentencing instruction given by the court was improper by directing the jury to find as an aggravating circumstance that the murder was especially heinous, atrocious or cruel.
XIX. Sentencing instruction given by the court was misleading in that the jury believed it must impose death if any mitigating circumstances failed to outweigh the aggravating circumstances.
XX. The evidence does not support the jury's finding of a statutory aggravating circumstance which outweighed any mitigating circumstances.
THE COURT ERRED IN DENYING APPELLANT'S ATTORNEYS A REASONABLE AMOUNT BY WAY OF EXPENSES IN ORDER TO CONDUCT AN INVESTIGATION INTO THE MOOD AND ATTITUDE OF THE COMMUNITY TOWARD
APPELLANT IN FURTHERANCE OF APPELLANT'S MOTION FOR CHANGE OF VENUE.
Billiot, through his attorneys, requested the court to allow a reasonable expense for the retention of an investigator to interview citizens in order to ascertain the mood of the community and its predisposition of his case. This motion was denied by the court.
It is contended that the failure to allow such expenses violated Mississippi Code Annotated 99-15-17 as well as equal protection and effective assistance of counsel under United States Constitutional provisions.
Mississippi Code Annotated 99-15-15 (1972) requires the appointment of counsel for indigent defendants charged with certain crimes, and Mississippi Code Annotated 99-15-17 (Supp. 1983), allows for reimbursement to counsel so appointed for" actual expenses ". The statute does not define what" actual expenses "contemplates.
In Bright v. State, 293 So.2d 818 (Miss. 1974), this Court held that the state was not required to furnish an indigent defendant expenses for an independent chemist and noted that the right to expert witnesses for defendant at the expense of the state has generally been denied. Id. at 822. In Davis v. State, 374 So.2d 1293 (Miss. 1979), we concluded that the denial of an indigent defendant's request for expenses to hire a handwriting expert violated neither the United States nor the Mississippi Constitution, and we further said that the determination of whether to provide an expert shall be made on a case-by-case basis:
We do not enter this field of inquiry to make the determination that the state owes to the indigent the duty of providing an expert as a part of due process to which the defendant is entitled, for, as stated in the Watson case, supra, the decision should be on a case by case basis, and, unlike the Bradford case, supra, the guilt or innocence of the defendant was scarcely, if at all, dependent on the state's expert witness, and also for reasons next to be noticed.
Id. at 1297. And finally, in Bullock v. State, 391 So.2d 601 (Miss. 1980), this Court denied funds to employ a criminal investigator where,
The appellant did not outline any specific
costs for such an investigator, and did not indicate to the court in any specific terms as to the purpose and value of such an individual to the defense.
Id. at 607. The purpose of the request for expenses to hire an investigator was to show the disposition of the community which ultimately was shown by other means. However, at no time did appellant outline any specific cost for the investigation. When we apply the case-by-case approach employed by Davis v. State, supra, to the facts on this record, we find that the denial by the trial court of reasonable expenses to conduct the investigation violated neither Billiot's constitutional nor statutory rights. Appellant's first assignment of error is without merit.
THE COURT ERRED IN REFUSING THE DEFENDANT A CHANGE OF VENUE AND/OR A CONTINUANCE.
Appellant's motion for change of venue was not accompanied by the two supporting affidavits as required by statute. Nevertheless, a hearing on the motion was conducted. The motion was initially overruled but the trial court reserved a final ruling until after voir dire of the jury. Prior to the beginning of the trial, the trial court moved venue to adjacent Harrison County, to which appellant again objected. After voir dire and impaneling of the jury, the motion was finally overruled.
The trial court would have been correct in withholding its ruling on the motion for change of venue based on the failure to provide the two statutory affidavits. However, there is ample authority in our jurisprudence that once the trial court proceeds to a hearing on the motion and takes evidence that this Court may review his findings on appeal. Gentry v. State, 416 So.2d 650 (Miss. 1982); Gilliard v. State, 428 So.2d 576 (Miss. 1983); Fabian v. State, 267 So.2d 294 (Miss. 1972); Wilson v. State, 234 So.2d 303 (Miss. 1970). This is particularly true in light of Mississippi Code Annotated 99-19-105, Irving v. State, 361 So.2d 1360 (Miss. 1978), and Laney v. State, 421 So.2d 1216 (Miss. 1982), which require heightened review in capital cases.
The rule has become well established that,
" The granting of a change of venue is a matter so largely in discretion [sic] of the trial
court that a judgment of conviction will not be reversed on appeal on the ground that a change of venue was refused, unless it clearly appears that trial [sic] court abused its discretion. "
Parks v. State, 267 So.2d 302, 304 (Miss. 1972), quoting Dalton v. State, 141 Miss. 841, 846, 105 So. 784, 785 (1925). See also, Daumer v. State, 381 So.2d 1014 (Miss. 1980); Saucier v. State, 328 So.2d 355 (Miss. 1976).
This Court has further expounded upon the requirements of Mississippi Code Annotated 99-15-35 (1972). For instance, in Tubbs v. State, 402 So.2d 830 (Miss. 1981), the Court quoted Shelton v. State, 156 Miss. 612, 620, 126 So. 390, 393 (1930),
Where the testimony is to the effect that the people of the county have not prejudged the defendant's case, and that there is no prejudice against the accused, and the voir dire examination of the prospective jurors shows that a fair proportion of the jurors of the county are qualified for service in the case, it is not error for the trial judge to overrule a motion for a change of venue.
402 So.2d at 837. And, in Parks v. State, supra, this Court, noting that the trial judge had developed evidence the majority of which indicated that the defendant could receive a fair trial, stated,
The trial judge in the case at bar had the opportunity to view the prospective jurors, watch their demeanor and form an opinion as to whether or not a fair trial could be given in the county. While it is true the appellant introduced affidavits of a number of people who testified that they did not believe a fair trial was possible, Stokes v. State, 240 Miss. 453, 128 So.2d 341 (1961) in quoting from Shelton v. State, 156 Miss. 612, 126 So. 390 (1930), states as follows:
The court must look to all the attendant facts and circumstances and should not
and will not reverse a trial judge in the exercise of his discretion if a fair proportion of the jurors examined can give the defendant a fair trial. (240 Miss. at 465, 128 So.2d at 344). It is our opinion that the trial judge did not abuse his discretion; therefore, we will not overrule his decision.
Finally, in deciding whether the trial judge has so abused his discretion" this Court will look to the completed trial including the voir dire examination of the jurors to ascertain if the defendants have received a fair and impartial trial. "Franklin v. State, 189 Miss. 142, 158-59, 196 So. 787, 789 (1940); Stevenson v. State, 325 So.2d 113, 118 (Miss. 1975).
The record reflects that the trial court gave two reasons for the move to Harrison County. One, that it would be" far more convenient to try the matter in Harrison County "where there is a continuous court term as opposed to the 10-week term in Hancock County. Two, it was felt by the trial court that 12 jurors could be selected from the larger Harrison County. The trial court reserved ruling until the jury was selected.
On November 15, 1982, a hearing was conducted on the motion for continuance which was filed because of, among other things, the Biloxi jail fire. Appellant contends that this fire, along with the John Hinckley acquittal on the grounds of insanity, would make it impossible to receive a fair trial. This motion was denied.
That the trial court might better have moved the trial further away from Hancock County is not the issue before us. The question is, Did the trial court's refusal to grant another change of venue from Harrison County deprive this defendant of the right to have his case fairly and impartially tried and uninfluenced by the preponderant sentiment of the community? Upon a review of the entire record of this proceeding, we cannot say that the trial court abused his discretion in refusing to grant an additional change of venue from Harrison County. Billiot was not" flung to the lions ". The second assignment of error is without merit.
THE JURY SELECTION PROCESS UNDER SECTION 97-3-19 (CAPITAL MURDER STATUTE) AND SECTION 99-19-101 (SEPARATE SENTENCING PROCEEDING IN CAPITAL CASES) IS UNCONSTITUTIONAL.
Appellant complains that the same jury heard both the guilt and sentencing phases of this trial, and that this jury was" death qualified. "Appellant did not raise this objection in the trial court and has waived his right to object on appeal, notwithstanding the constitutional nature of the claim. Stringer v. State, 279 So.2d 156, 159 (Miss. 1973). In Engle v. Isaac, 456 U.S. 107, 133-34, 102 S. Ct. 1558, 1574, 71 L.Ed.2d 783, 804 (1982), the United States Supreme Court stated,
We have long recognized, however, that the Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not insure that defense counsel will recognize and raise every conceivable constitutional claim.
Notwithstanding this waiver, under heightened review we will address the merits of this assignment.
The practice of impaneling only one jury for both phases" if practical "was mandated by Jackson v. State, 337 So.2d 1242, 1256 (Miss. 1976). See also, Tubbs v. State, 402 So.2d 830 (Miss. 1981), and Bell v. Watkins, 381 So.2d 118, 119, 133 (Miss. 1980).
The same argument was presented to this Court in Culberson v. State, 379 So.2d 499 (Miss. 1979), and there we held that the trial court's retention of the same jury to try both the guilt and the sentence phase was" preferred "as well as permissible, and said further,
However, we do note that a challenge for cause may be properly sustained when a prospective juror indicates that he will automatically vote against the imposition of capital punishment without regard to any evidence that might be developed. Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L.Ed.2d-776 (1968); Spinkellink v. Wainwright, 578 F.2d 582, 592-93 (5th Cir. 1978). Conversely, he may be accepted as a juror
if in spite of his nonbelief in capital punishment he can put such belief aside and follow the law and evidence in accord with his oath to render a true verdict.
Id. at 508. Unlike Culberson, supra, here we have a lengthy transcript of the voir dire.
We reaffirm our previous decisions that the jury selection process under Mississippi Code Annotated 97-3-19 (Supp. 1983) and 99-19-101 (Supp. 1983), are ...