ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:
This case involves the third time that Richard Gerald Jordan has been sentenced to death for the capital murder of Mrs. Edwina Marter. On July 21, 1976, he was found guilty of capital murder and was given the death penalty for the first time. That conviction was prior to procedures laid down in Jackson v. State, 337 So. 2d 1242 (Miss. 1976), providing for bifurcated trials in capital murder cases. The lower court granted a motion for new trial under the precedents established in Jackson and Jordan was tried, convicted and sentenced to death a second time. The conviction and sentence were affirmed in Jordan v. State, 365 So. 2d 1198 (Miss. 1978), petition for rehearing was denied by this Court, and Jordan petitioned the United States Supreme Court for writ of certiorari to the Mississippi Supreme Court, and certiorari was denied. Jordan v. Mississippi, 444 U.S. 885, 100 S. Ct. 175, 62 L.Ed.2d 114 (1979).
Subsequently, Jordan applied to this Court for leave to file a petition for writ of error coram nobis, which was denied. The Federal District Court denied habeas corpus relief, and, upon appeal of such denial, the United States Fifth Circuit Court of Appeals vacated the sentence and remanded for another sentencing hearing finding that there had been a violation of the Godfrey v. Georgia, 446 U.S. 420, 100 S. Ct. 1759, 64 L.Ed.2d 398 (1980) mandate, in that the instructions failed to channel the sentencers' discretion by clear and objective standards, and did not provide specific and detailed guidance. The State of Mississippi was denied rehearing in Jordan v. Thigpen, 688 F.2d 395 (5th Cir. 1982).
Jordan was tried again on the sentencing phase in the Circuit Court of Harrison County, and, for the third time, a jury imposed the death penalty upon him. He has appealed from that sentence and assigns eleven (11) errors in the trial below. The facts of the case are detailed in Jordan v. State, 365 So. 2d 1198 (Miss. 1978), and we will only briefly state them here.
On or about January 10, 1976, Jordan traded a shotgun for a .38-caliber revolver in Baton Rouge, Louisiana,
then drove to Gulfport, Mississippi, and registered at the Twin Star Motel under the name of" Jack Wilson. "In order to obtain money, he devised a scheme to kidnap the relative of a bank executive and demand a ransom. Still using the fictitious name of" Jack Wilson, "he called Gulf National Bank and expressed a desire to speak to the commercial loan officer, and was referred to a Mr. Marter, whose wife subsequently became Jordan's victim.
Jordan perused the Gulfport telephone directory and found that there was only one family by the name of Marter living in the city. He drove by the Marter residence, then stopped, rang the doorbell and was admitted into the home by Mrs. Marter, when he represented that his electrical company had received information of defective circuit breakers in the area, which he was investigating. *fn1 Thereupon, he kidnapped Mrs. Marter and took her to a sparsely settled wooded area in DeSoto National Park where he shot her in the head with the .38-caliber revolver and killed her. Jordan then demanded $25,000 from Mr. Marter without telling him that his wife had been slain. Mr. Marter obtained the ransom money, delivered it to a drop place as instructed by Jordan, who retrieved the ransom. He was followed by the police and was arrested within a relatively short while.
THE TRIAL COURT'S INSTRUCTIONS ON AGGRAVATING CIRCUMSTANCES WERE UNCONSTITUTIONALLY VAGUE AND PERMITTED THE JURY TO FIND AGGRAVATING CIRCUMSTANCES THAT WERE UNSUPPORTED BY THE RECORD AND THAT IMPERMISSIBLE OVERLAPPED WITH EACH OTHER AS WELL AS THE STATUTORY ELEMENTS OF CAPITAL MURDER.
Under this assignment of error, Jordan attacks three elements of aggravating circumstances submitted to the jury, viz, (1) especially heinous, atrocious and cruel, (2) for pecuniary gain, and (3) while engaged in the commission of the crime of kidnapping.
A. Especially heinous, atrocious and cruel.
The record indicates that Jordan entered the home of Mrs. Marter when only she and her small child, who was asleep, were in the home. He forced her to leave her home, refused to permit her to arrange for the care of the child or take the child with her, then forced her to an isolated place. The record reflects that she was frightened during this time and inferences are that he shot her in the back of the head at a time when she was on her knees. Regardless of her position at
the time of the murder, if she was running or trying to get away from him, that indicates how terrified she was at the time he killed her. We think these facts constituted a question for the jury as to whether the killing was especially heinous, atrocious and cruel, and as said by the Fifth Circuit in Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir. 1978),
Again, we feel that the meaning of such terms is a matter of common knowledge, so that an ordinary man would not have to guess at what was intended. It is our interpretation that heinous means extremely wicked or shockingly evil; that atrocious means outrageously wicked and vile; and, that cruel means designed to inflict a high degree of pain with utter indifference to, or even employment of the suffering of others. What is intended to be included are of those capital crimes where the actual commission of additional acts as to set the crime apart from the norm of capital felonies - the conscienceless or pitiless crime which is unnecessarily torturous to the victim.
We have decided this question adversely to Jordan's position in Edwards v. State, 441 So. 2d 84 (Miss. 1983), and in every case where the question has been raised since Edwards.
Jordan contends that it was improper to allow the jury to consider both kidnapping and pecuniary gain because they are elements of the same offense, and there was a doubling of aggravating circumstances. This question has been decided adversely to Jordan in Irving v. State, 441 So. 2d 846 (Miss. 1983); Tokman v. State, 435 So. 2d 664 (Miss. 1983); Hill v. State, 432 So. 2d 427 (Miss. 1983); Gilliard v. State, 428 So. 2d 576 (Miss. 1983); and Smith v. State, 419 So. 2d 563 (Miss. 1982). In Henry v. Wainwright, 721 F.2d 990 (5th Cir. 1983), the Fifth Circuit Court of Appeals rejected the same constitutional arguments, holding that resolution of the issue was a question of state law.
C. While Engaged in the Commission of the Crime of Kidnapping.
Argument on this issue parallels Jordan's argument on Section B, next preceding. We answer that question as hereinabove, viz, this Court has decided it adversely to
Jordan in Billiot v. State, 454 So. 2d 445 (Miss. 1984); Wilcher v. State, 448 So. 2d 927 (Miss. 1984); and Leatherwood v. State, 435 So. 2d 645 (Miss. 1983).
THE DEFENDANT WAS SENTENCED TO DIE UNDER INSTRUCTIONS THAT UNCONSTITUTIONALLY SHIFTED THE BURDEN OF PROOF TO THE DEFENSE AND THAT FAILED TO INFORM THE JURY OF ITS DISCRETION TO EXERCISE MERCY.
THE TRIAL COURT'S INSTRUCTIONS IMPROPERLY PERMITTED THE JURY TO SENTENCE DEFENDANT TO DEATH WITHOUT MAKING THE ESSENTIAL FINDING THAT HE INTENDED TO KILL, IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS.
Under Assignment II above, Jordan argues that the sentencing instructions were improper because they did not require the State to prove that the aggravating circumstances outweigh the mitigating circumstances beyond a reasonable doubt, and that they did not advise the jury that it had the authority to exercise mercy and return a life sentence regardless of its findings. These arguments are not new and have been presented to this Court previously. In Gray v. Lucas, 677 F.2d 1086 (5th Cir. 1982), the Court addressed the same proposition raised here and resolved the question against Jordan's position. See also Billiot v. State, 454 So. 2d 445 (Miss. 1984); Wilcher v. State, 448 So. 2d 927 (Miss. 1984); and Hill v. State, 432 So. 2d 427 (Miss. 1983).
As to the second part of the present assignment, it is beyond peradventure that instructions must be read and considered as a whole in analyzing whether they should be granted or denied. We have carefully considered Instruction S-1 and are of the opinion that it clearly and adequately charged the jury in such manner that the jury's discretion was channeled and guided. On the other hand, we are of the opinion that the proffered instruction by appellant would have removed such channeling and probably would have authorized the return of a verdict outside the scope of evidence, which could result in an uneven and prejudicial capital punishment. Therefore, we are of the opinion that the jury was properly instructed under this question. See Irving v. State, 441 So.2d 846 (Miss. 1983); Hill v. State, 432 So. 2d 427 (Miss. 1983); and Bullock v. State, 391 So. 2d 601 (Miss. 1980).
Under Assignment III, Jordan argues that the trial court erred in permitting the jury to sentence defendant to
death without first requiring them to find that he intended to kill in violation of the United State Supreme Court's decision in Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L.Ed.2d 1140 (1982). Those courts which have been faced with this question have universally found that the death penalty is permissible where one of the four following conditions exists: (1) where the defendant actually kills, (2) where the defendant attempts to kill, (3) where the defendant intends that a killing take place, or (4) where the defendant contemplated that lethal force would be employed. See Reddix v. Thigpen, 728 F.2d 705 (5th Cir. 1984); Drake v. Francis, 727 F.2d 990 (11th Cir. 1984); Skillern v. Estelle, 720 F.2d 839 (5th Cir. 1983); Henry v. Wainwright, 721 F.2d 990 (5th Cir. 1983); Stephens v. Kemp, 721 F.2d 1300 (11th Cir. 1983); Stanley v. Zant, 697 F.2d 955 (11th Cir. 1983); Ross v. Hopper, 716 F.2d 1528 (11th Cir. 1983); Clark v. Louisiana State Penitentiary, 697 F.2d 699 (5th Cir. 1983); Bell v. Watkins, 692 F.2d 999 (5th Cir. 1982); Irving v. State, 441 So. 2d 846 (Miss. 1983); and Leatherwood v. State, 435 So. 2d 645 (Miss. 1983).
In the case at bar the jury found that Jordan killed, and also that Jordan contemplated lethal force be employed.
Therefore, we are of the opinion that there is no merit in this contention.
THE TRIAL COURT ERRONEOUSLY ADMITTED A TAPE RECORDED STATEMENT ELICITED FROM DEFENDANT IN THE ABSENCE OF APPOINTED COUNSEL.
Jordan requested an attorney prior to his preliminary hearing or arraignment, but after formal charges had been filed against him. The trial judge agreed that Jordan should have an attorney prior to his preliminary hearing, and sent him out with a bailiff. Shortly thereafter, Jordan was questioned by the police without counsel, the police not knowing that counsel had been appointed. Statements were made which were tape recorded and introduced into evidence at the trial over defense objections. Appellant argues that the statements should have been suppressed by the trial court at the resentencing hearing and at the Federal habeas corpus proceeding.
In Jordan v. State, 365 So. 2d 1198 (Miss. 1978), the Court, citing Brewer v. Williams, 430 U.S. 387, 97 S. Ct. 1232, 51 L.Ed.2d 424 (1977), stated:
[T]he United States Supreme Court made it clear that an accused can voluntarily, knowingly and intelligently waive his right to counsel at an interrogation which occurs after counsel has been appointed, provided the prosecution has adequately carried its heavy burden to show that the waiver was knowingly and intelligently made. 365 So. 2d at 1202.
The argument under this assignment was raised and the question was addressed in Jordan's petition for writ of habeas corpus. In passing on the question, the United States Court of Appeals in Jordan v. Watkins, 681 F.2d 1067, 1075 (5th Cir. 1982) said:
Appellant also argues that his right to counsel under the sixth and fourteenth amendments was violated by his interrogation in the absence of counsel after adversary proceedings had commenced. It is undisputed that adversary proceedings had commenced when the authorities elicited the recorded confession." [O]nce adversary proceedings have commenced against an individual, he has the right to legal representation when the government interrogates him. "Brewer v. Williams, 430 U.S.
387, 401, 97 S. Ct. 1232, 1240, 51 L.Ed.2d 424, 438 (1977). This does not mean that at that stage an accused cannot waive his rights under the sixth and fourteenth amendments. Id., 430 U.S. at 405-406, 97 S. Ct. at 1243, 51 L.Ed. at 441. Rather, it is" encumbent upon the [prosecution] to prove an intentional relinquishment of a known right or privilege. "Id., 430 U.S. at 404, 97 S. Ct. at 1242, 51 L.Ed. at 439. Based on the facts and ...