PRATHER, JUSTICE, FOR THE COURT.
James Mhoon, a sixteen year old, was indicted for the capital murder of William Denton Lawson in Grenada County. By reason of two prior burglary convictions, Mhoon was charged as an habitual offender pursuant to Miss. Code Ann. 99-19-81 (Supp.1982). Upon motion of the appellant, venue was changed to Attala County. Mhoon pled guilty to the capital murder charge and, following a sentencing hearing, a jury returned the death sentence. From this death sentence, Mhoon appeals assigning thirteen errors as grounds for reversal. For the reasons stated below, this Court agrees that reversible error occurred in the proceedings in the trial court. We reverse and remand for a new sentencing hearing.
The assigned errors which require discussion are as follows:
(1) Whether the appellant was deprived of his life by a fair and impartial jury.
(2) Whether the trial court erred in preventing the jury from being informed that a life sentence for Mhoon would be without parole in view of his habitual offender status while at the same time permitting the state to admit evidence of prior burglary convictions for impeachment purposes.
(3) Whether the testimony of co-indictee Wofford was obtained through coercion and therefore violated the appellant's right to a fundamentally fair, non-arbitrary sentencing proceeding.
(4) Whether the imposition of the death penalty on a youth who was sixteen at the time of the crime constitutes cruel and unusual punishment.
(5) Whether the trial court erred in permitting the introduction of incriminating statements made by the appellant in response to a question from a deputy sheriff/jailer.
(6) Whether the appellant's death sentence constitutes misapplication of the statutory provision that the offense committed was especially heinous, atrocious and cruel.
On November 9, 1982, around 9:00 o'clock p.m., 18 year-old Danny Ray Wofford and 16 year-old James Mhoon left Bruce, MS in an automobile to go to Calhoun City. On the way, Mhoon suggested to Wofford that they rob a store; Wofford agreed and fashioned two masks out of a croker sack. Mhoon and Wofford picked up two friends, brothers Keith and Leroy Gibson, at Denton Town near Calhoun City and proceeded to Grenada.
Upon arriving in Grenada, Wofford, Mhoon and the Gibson brothers went to a club called" The Rose. "Around 9:30 p. m. Mhoon and Wofford left the club, telling the Gibson brothers that they were going to see some girls. However, Wofford and Mhoon rode around Grenada searching for a store to rob. They eventually decided to hit" Lawson's Jiffy Mart "at the intersection of Hwy. 8 and 51.
Mhoon parked the car around the side of the store. Leaving their masks on the floorboard of the car, Wofford and Mhoon walked into the store with Wofford carrying a .22 caliber pistol.
William D. Lawson, his wife, Betty Lawson, and Charles Kenwright were inside the store, standing behind the counter. Wofford announced to them that this was a stickup, but the people didn't respond. Mhoon grabbed the gun from Wofford and repeated that this was a stickup. Mhoon told them to take the money out of the register. Mr. Lawson removed the money from the register and laid it on the counter. Wofford walked up to the counter, picked up the money and put it in his pocket.
At this point the facts become disputed. Appellant Mhoon testified at the hearing that, after Wofford retrieved the money from the counter, Wofford took the gun away from Mhoon and directed Mr. and Mrs. Lawson and Kenwright to go into the back room and to lay face down on the floor. According to Mhoon, Wofford shot Kenwright, and then shot Mrs. Lawson. Wofford then told Mhoon to take the gun and said" the best witness is a dead witness "and told Mhoon to shoot Mr. Lawson. Mhoon admitted shooting Mr. Lawson once in the head.
To the contrary, Wofford testified at the sentencing hearing that it was Mhoon who directed the trio to go into the storage room and to lay down. According to Wofford, Mhoon then shot Kenwright, Mr. Lawson and Mrs. Lawson. At the time of Mhoon's sentencing hearing, Wofford had pled guilty to the charge of murder of Mrs. Lawson and received a life sentence.
Wofford had also pled guilty to the murder of Charles Kenwright, Jr. and received a life sentence. In addition, Wofford was charged with the murder of William Lawson, but no plea had been entered to the charge and the case had been continued.
During the selection of the jury, the trial counsel objected to the excusal of jurors for cause under the announced rule of Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L.Ed.2d 776 (1968). Appellant assigns several errors regarding these factual occurrences. This Court does not address all of these assignments since a retrial is ordered.
Two facets in jury composition require discussion: (A.) whether the trial court erred in failing to excuse for cause venirepersons who were employed in law enforcement or related by blood or marriage to law enforcement officials and (B.) whether the failure to disclose by juror Cain that she was related by marriage to a former policeman violated the appellant's rights.
The first issue raised by this assignment is whether there is a constitutional violation of Article 3, Section 26 of the Mississippi Constitution which guarantees to an accused in all criminal prosecutions the right to a" trial by an impartial jury. . . . "Although the United States Constitution, Amendment VI, contains a similar guarantee, our decision today is grounded upon the independent and adequate remedies provided by the jurisprudence of this state. Adams v. State, 72 So.2d 211 (Miss. 1954) (Right to trial by impartial jury as guaranteed by Miss. Const. Section 26 is the foundation of our form of government); see also Cook v. State, 90 Miss. 137, 43 So. 618 (1907); Green v. State, 72 Miss. 522, 17 So. 381 (1895). The right to a fair and impartial trial is further secured to the citizens of this state by Art. 3, Section 14, Miss. Constitution which provides that" [N]o person shall be deprived of life . . . except by due process of law. "Brooks v. State, 209 Miss. 150, 46 So.2d 94 (1950).
The composition of the jury in this case reflects a most unique and novel group. According to the record, the jury pool in this case was comprised of a 26 person special venire (all of whom were considered for seats on the jury) and a
regular venire composed of 38 people (only 26 persons were considered for seats on the jury). After challenges for cause, both venires yielded the pool of 39 venirepersons: 12 of these 39 were either policemen or related by blood or marriage to a current or former police officer, although one of these 12 (Juror Cain) failed to reveal her police connection on voir dire.
Of the twelve jurors selected to serve, Officer Troy Steed, a policeman in uniform, served as foreman of this jury. Five other jurors were related by blood or marriage to law enforcement members as follows: (1) Deniece Moore's father-in-law was a retired highway patrolman and a former justice court judge for eight years, (2) Mrs. Hodges' nephew was currently a highway patrolman, (3) Mrs. Robertson's son was currently a justice court judge and a nephew was currently a highway patrolman, (4) Clancy Philley was another who was related but his response cannot be identified in the record as to whether his relative was a step brother or first cousin who was a policeman. Additionally (5) Mrs. Cain failed to respond that her brother-in-law had been a police officer some ten years before.
The defense counsel exhausted his peremptory challenges, and had none left to strike Policeman Steed or the other law enforcement related venirepersons. Mhoon's counsel moved to have these law enforcement-connected persons excused for cause, but this motion was denied by the court because each stated that the relationship would not influence their decision in this case and that they could render a fair decision based upon the evidence and the court instructions as to the law. This ruling by the trial court is assigned as error.
This assignment of error raises a novel issue which were it not for the inordinate abundance of law enforcement persons and their relatives on the jury list in this case would have little merit. Of the 39 venirepersons considered by the court and not excused for cause, 12 of them were either police officers or related by blood or marriage to current or former police officers. The statistical probability of this situation seems somewhat remote. The unlikelihood of this situation occurring is supported by the fact that there are no cases in Mississippi holding explicitly one way or the other as to whether policemen or blood/marriage relations of current or former police officers can be excused for cause. It would appear that the reason this issue has never ...