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BOBBY GLEN WILCHER v. STATE OF MISSISSIPPI

JULY 11, 1984

BOBBY GLEN WILCHER
v.
STATE OF MISSISSIPPI



EN BANC

DAN LEE, JUSTICE, FOR THE COURT:

On March 11, 1982 the appellant, Bobby Glen Wilcher, was indicted for the capital murders of Velma Odell Noblin and Katie Bell Moore. The indictments charged that he murdered these two ladies while he was robbing or attempting to rob Velma Odell Noblin and while he was engaged in the crime of kidnapping her and Katie Bell Moore. He was tried separately for these murders, though they arose from a single incident. This appeals stems from a capital murder conviction for the killing of Katie Bell Moore. Wilcher has previously been tried for the capital murder of Velma Odell Noblin. He was found guilty of that charge and sentenced to death. That conviction and sentence have been affirmed by this Court in Wilcher v. State, No. 54,370, decided February 15, 1984 (not yet reported). The petition for rehearing in that cause has been denied. In the instant appeal Wilcher assigns the following errors:

1. The trial Court erred in not sustaining Appellant's plea of former or double jeopardy.

 2. The Trial Court erred in overruling the Appellant's motions for continuance.

 3. The Trial Court erred in allowing the death qualification voir dire question.

 4. The Trial Court erred in refusing to allow the defendant to cross examine Gene Wilcher, when called as a witness for the State.

 5. The trial Court erred in admitting into evidence the watch, rings and necklace of Velma Odell Noblin for the reason that they were the fruits of an illegal search.

 6. The Trial Court erred in admitting into evidence, over objection of counsel, Appellant's oral and written statements and the fruits thereof.

 7. The Trial Court erred in granting Instruction S-1 and S-7 and erred in refusing Instruction D-2 during the guilt phase.

 8. The Trial Court erred in refusing Instructions D-17 and D-37 during the guilt phase.

 9. The Trial Court erred in refusing Instructions D-43 and D-44 during the guilt phase.

 10. The Trial Court erred in granting Instructions S-1, and S-2, and in refusing D-15, during the sentencing phase.

 11. The Trial Court erred in refusing Instruction D-11 during the sentencing phase.

 12. The Trial Court erred in entering its supplemental judgment of September 23, 1982.

 FACTS

 It would serve no purpose to detail the violent manner in which Wilcher claimed his victims lives. For purposes of this appeal it is sufficient to state that Wilcher met Mrs. Noblin and Ms. Moore in a Scott County bar. When the bar closed for the evening he persuaded them to give him a ride home during which he guided them to a deserted forest service road in the Bienville National Forest where

 he stabbed them to death.

 DISCUSSION OF POINTS RAISED ON APPEAL

 A number of Wilcher's assignments of error in this appeal are identical to those made in his appeal from his capital murder conviction in relation to the death of Velma Odell Noblin. Because those assignments deal with the exact same factual circumstances, our opinion in that cause disposes of those issues. For that reason they will be discussed first.

 ADMISSIBILITY OF THE JEWELRY FOUND IN WILCHER'S ROOM

 Wilcher contends that a search of his room conducted by Deputy Otis Kelly and Constable Albert Harkey at the invitation of Wilcher's father constituted a illegal search and seizure in violation of the Fourth and Fourteenth Amendments. Wilcher contends that although he lived in his father's house, his father had no authority to allow the warrantless search of his bedroom. In our prior opinion we held that Wilcher did not have exclusive dominion and control over his room and that his father was authorized to enter it at anytime and permit anyone else to so enter. We held that the jewelry was therefore admissible. That holding controls our opinion here. Wilcher v. State, No. 54,370, decided February 15, 1984 (not yet reported).

 ADMISSIBILITY OF THE CONFESSIONS

 Again, these are the same confessions ruled admissible in the first Wilcher trial. Because Wilcher is unable to assign any new reason as to why the confessions should be inadmissible, we defer to our holding in the prior Wilcher decision. Wilcher v. State, No. 54,370, decided February 15, 1984 (not yet reported).

 THE TRIAL COURT'S REFUSAL TO ALLOW A CONTINUANCE

 Prior to trial, on August 6, 1982, the defense filed a motion for continuance until the October, 1982 term. That motion challenged the circuit judge's authority to set this case for trial at a special term. This issue was also raised in the appeal from Wilcher's first trial which was also tried at a special term prior to the October, 1982 term. In addressing that issue we held that 9-1-1 of the Mississippi Code Annotated (1972) gave the circuit judge clear statutory authority to try this case at a special term. We find no valid reason preventing us from adopting that holding in this case also. Therefore, this assignment

 of error is without merit. Wilcher v. State, No. 54,370, decided February 15, 1984 (not yet reported).

 THE KIDNAPPING CHARGE

 Wilcher contends that the trial court erred in granting Instructions S-1 and S-7 and in refusing Instruction D-2, all of which dealt with Wilcher's cuplability on the charge of kidnapping, one of the underlying felonies charged in the indictment. This issue was also addressed in the opinion affirming Wilcher's death sentence in connection with the capital murder of Velma Odell Noblin. Wilcher contends that the proof was insufficient to show that he had kidnapped the two ladies and that they had voluntarily accompanied him to the woods. In our previous opinion we recognized that the crime of kidnapping may be accomplished by trickery and deceit and that a jury issue had been made on whether Wilcher had tricked the ladies into being secretly confined against their will. The elements of kidnapping having been sufficiently shown in this trial also, we find no reason to hold differently here. Therefore, this assignment of error is without merit. Wilcher v. State, No. 54,370, decided February 15, 1984 (not yet reported).

 DOUBLE JEOPARDY

 This is the first of Wilcher's assignments of error which is not disposed of by our holding in the first Wilcher appeal.

 Wilcher's argument asserting that he has been subjected to double jeopardy involves two separate assertions which are not well distinguished within his brief. The first is that the state should be barred by the proscription against double jeopardy from using the same underlying felonies to constitute capital murder in both cases. As will be recalled, both indictments charged Wilcher with murder while in the course of robbing Velma Odell Noblin and kidnapping Mrs. Noblin and Ms. Moore. Therefore, under both indictments all three underlying felonies are required to be proven. Wilcher contends that by having found him guilty of the three underlying felonies in his trial for the murder of Mrs. Noblin, he may not again be prosecuted for those underlying felonies in his trial for the murder of Ms. Moore.

 In the case of Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L.Ed.2d 469 (1970), the United States Supreme Court addressed the issue of double jeopardy. The Court there held that the doctrine of collateral estoppel was

 embodied in the guarantee against double jeopardy and that once an issue of ultimate fact has been determined by valid and final judgment that issue cannot again be litigated between the parties in any future lawsuit. In Ashe, the defendant was accused of robbing several members of a poker game. He was first tried for the robbery of one poker player and was found not guilty. Following that verdict the state shored up the holes in its case and indicted him for the robbery of a second poker player whose money was taken in the same holdup. This time Ashe was found guilty. The United States Supreme Court reversed his conviction and held that the verdict of not guilty in the first trial decided the ultimate fact that Ashe had not been involved in the robbery. The Court specifically held that question:" Is not whether he could have received a total of six punishments if he had been convicted in a single trial of robbing six victims. It is simply whether, after a jury determined by its verdict that the petitioner was not one of the robbers, the state could constitutionally hale him before a new jury to litigate that issue again. "397 U.S. at 446, 90 S. Ct. at 1189, 25 L.Ed.2d at 477. In a concurring opinion authored by Justice Brennan, it was noted that" collateral estoppel would not prevent multiple prosecutions when the first trial ends in a verdict of guilty. "Footnote 13 to Justice Brennan's concurrence. 397 U.S. at 459, 90 S. Ct. at 1202, 25 L.Ed.2d at 484. From a reading of the Ashe decision, it is clear that the proscription against double jeopardy was intended to prevent abuse of the criminal process in the form of multiple or vexatious prosecutions for a single offense. The Ashe court held that the double jeopardy proscription was applicable for the charges which arose from a single transaction.

 In Maycock v. Reed, 328 So. 2d 349 (Miss.1976), this Court affirmed the denial of a writ of habeas corpus where the appellant asserted that his four convictions were the result of a single transaction. In that case, Maycock was indicted four times for the following crimes: (1) the September 9, 1973 sale of marijuana to Dempsey Newman. (2) The September 9, 1973 sale of marijuana to James K. Anthony. (3) The September 9, 1973 sale of 150 tablets of LSD to Dempsey Newman. (4) The September 9, 1973 sale of 50 tablets of LSD to James K. Anthony. In addressing the question of whether these offenses constituted a single transaction as they occurred at one time, we held:

 We find no merit in appellant's contention that the circuit court was in error in failing to hold that the

 " one transaction rule "applies. It is contended that the four indictments for separate crimes grew out of the same facts and circumstances. At the most all that the proof in the record shows on this issue is that there were four separate transactions on the same occasion, which of course, does not come within the one transaction rule announced in Laughter v. State, 241 So. 2d 641 (Miss. 1971). We pointed out in Wolf v. State, 281 So. 2d 445 (Miss. 1973) that an accused may not be prosecuted for two offenses when both arise ouf of the same transaction, where one is necessarily incident to the other. But where, as here, the same transaction gives rise to separate and distinct offenses, prosecution for one will not bar prosecution for the other.

 328 So. 2d at 352.

 In the instant case Wilcher was not being retried for a crime which grew out of the same transaction. The murder of Ms. Moore was distinct from the murder of Mrs. Noblin. The fact that the underlying felonies were the same is simply part of the circumstance of each separate murder. It is a factor which the legislature has determined distinguishes a simple murder from one of those exceptional cases in which the defendant should be put to death. Certainly those underlying felonies were matters which the state was required to prove in order to obtain a capital murder conviction; however, they constituted only a portion of the two distinct crimes. The state was also required to prove the ultimate fact that the murder then under trial occurred during the course of those felonies. Of course, had the first jury determined that Wilcher was not guilty of the underlying felonies the state may logically have been barred from prosecuting that claim in the second trial. That was not the case here. As pointed out in Justice Brennan's concurrence in Ashe v. Swenson, supra, a verdict of guilty does not bar a trial for a separate distinct crime.

 Wilcher's next argument regarding being subjected to double jeopardy is that by the use of the same aggravating circumstances in the second trial as those used in the first, his death sentence is excessive or disportionate. This argument makes little sense. What could be more proportionate than a death sentence which is returned under an identical fact situation to another. They are exactly

 proportionate. Also, we have compared this case to those death sentences that we have affirmed since Bell v. State, 360 So. 2d 1206 (Miss. 1978) and find that Wilcher's sentence of death is ...


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