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TONY WELLS WEST a/k/a SAMUEL TONY WELLS v. STATE OF MISSISSIPPI

JANUARY 23, 1985

TONY WELLS WEST a/k/a SAMUEL TONY WELLS
v.
STATE OF MISSISSIPPI



EN BANC.

WALKER, PRESIDING JUSTICE, FOR THE COURT:

Tony West was convicted of the capital murder of Kirby Phelps and sentenced to be executed. West was tried in the Circuit Court of Warren County. West appeals his conviction and sentence.

On December 13, 1982 West and Kenneth Avery Brock robbed and killed Dr. Charles Scudder and Joseph Odum in Trion, Chattoga County, Georgia. West and Brock took their victims' jeep and headed west along Interstate Highway 20. At a rest stop at Bovina, Warren County, Mississippi they stopped to get some sleep. They were out of money and needed new transportation which was less distinctive than a jeep with a star on each side. Kirby Phelps, a 26-year-old Navy lieutenant, had also picked the Bovina rest area to stop and sleep on his way from Jacksonville, Florida to his mother's

 home in Oklahoma City, Oklahoma.

 On the morning of December 15, 1982 West and Brock woke up and saw Phelps' car parked near them. They got out of the jeep and" jumped "Phelps who was asleep in his car. Brock held a gun on Phelps while West put handcuffs on him. The gun and handcuffs had been taken in the Georgia robbery. West then lead Phelps into the woods with the gun Brock had used. Brock unloaded the things from the jeep into Phelps' Toyota.

 West's version of what happened next was that he only intended to handcuff Phelps to a tree but that when West undid one of the handcuffs Phelps came at him and West panicked and shot him. Phelps was shot three times in the head - once in the chin, once in the back of the head and once behind the right ear.

 Phelps' body was found 200 yards in the woods behind the rest area later the same morning by two men who were searching for civil war relics. The jeep taken from Georgia was later found abandoned 12 miles south of Tallulah, Louisiana.

 Brock used Phelps' identification to pawn the car's stereo equipment and other things of value at a pawn shop in Austin, Texas.

 Brock and West split up, and West went to Chattanooga, Tennessee. On the evening of December 25, 1982 West voluntarily surrendered to local police authorities. At the time of his arrest West had on a suit and pair of shoes which were identified as belonging to Phelps.

 West was turned over to the sheriff of Chattooga County, Georgia. Chattooga County was where the deaths of Odum and Scudder occurred. West gave two statements to the Georgia authorities, one on December 25 and one on December 27, in which he admitted the facts as noted above.

 After being tried and convicted of the murders of Scudder and Odum in Georgia, West was turned over to Mississippi authorities for his trial in the death of Kirby Phelps. On September 26 the jury found West guilty as charged.

 The jury found the aggravating circumstances outweighed the mitigating circumstances and imposed the death penalty.

 This case must be reversed.

 The appellant makes thirteen assignments of error, two of which specifically relate to references to the murders which

 occurred in Georgia. The opening statement of the district attorney advised the jury that the appellant had participated in killing two people in Georgia. These killings occurred thirty-six or more hours prior to the killing in Mississippi. Portions of confessions by West were also allowed into evidence which referred to the Georgia killings and robbery.

 These two assignments of error will be considered first.

 THE LOWER COURT ERRED IN REFUSING TO GRANT A MISTRIAL BASED ON THE COMMENT OF THE STATE IN OPENING STATEMENTS; AND

 THE COURT ERRED IN ALLOWING TESTIMONY REGARDING CRIMES IN GEORGIA FOR WHICH HE WAS NOT ON TRIAL.

 It is a well settled rule that evidence of other crimes than the one for which the accused is being tried is inadmissible. Mason v. State, 429 So.2d 569 (Miss. 1983); Johnson v. State, 416 So.2d 383 (Miss. 1982); Gray v. State, 351 So.2d 1342 (Miss. 1977).

 There are exceptions to this rule. As stated in Blair v. State, 445 So.2d 1373, 1375 (Miss. 1984):

 In general, the prosecution is not allowed to show a defendant committed crimes other than the one for which he is on trial. However, . . . There are certain recognized exceptions to the rule. Proof of another crime is admissible where the offense charged and that offered to be proved are so connected as to constitute one transaction, where it is necessary to identify the defendant, where it is material to prove motive and there is an apparent relation or connection between the act proposed to be proved and that charged, where the accusation involves a series of criminal acts which must be proved to make out the offense, or where it is necessary to prove scienter or guilty knowledge.

 Johnson v. State, 416 So.2d 383, 386 (Miss. 1982), quoting Gray v. State, 351 So.2d 1342 (Miss. 1977).

 In Oates v. State, 421 So.2d 1025, 1029 (Miss. 1982), we implicitly extended this rationale to include statements made by the district attorney on opening statement.

 We hasten to say, however, that reference to a crime other than that charged in the indictment is not proper in all multi crime situations, but is limited to those closely connected by a sequence of events within a short time span and are so intertwined that one cannot be reasonably extricated from the other.

 The rationale of this rule is that the issue before the jury is singular and to allow other evidence would divert the jury's attention and prejudice the accused. As said in King v. State, 66 Miss. 502, 506, 6 So. 188, 189 (1889):

 The general rule is, that the issue on a criminal trial, shall be single, and that the testimony must be confined to the issue, and that on the trial of a person for one offense, the prosecution cannot aid the proof against him, by showing that he committed other offenses. Whart. Cr. Ev., 104; 1 Bish. Cr. Pro., 1120 et seq. The reason and justice of the rule is apparent, and its observance is necessary to prevent injustice and oppression in criminal prosecutions. Such evidence tends to divert the minds of the jury from the true issue, and to prejudice and mislead them, and while the accused may be able to meet a specific charge, he cannot be prepared to defend against all other charges that may be brought against him.

 In Neal v. State, 451 So.2d 743 (Miss. 1984) this Court held the evidence of two other murders admissible. The State felt that it had a legitimate interest in telling a coherent story of the murder of Amanda Joy Neal. The confession of Neal would have been incoherent unless the complete story were told. Amanda Joy Neal, it could be argued, was killed because she was an eyewitness to the killing of her father. The other victim was also an ...


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