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OCTOBER 16, 1985




I. Overview

The tensions inherent between the constitutionally vested rights of the press to be free and one criminally accused to a fair trial have troubled this and other states for years.

 On the one hand, we regard freedom of the press as essential to the security of our democratic society. At the same time our law vests in each person charged with a crime

 the right to be tried in the courtroom, not the newspaper, the right to have his or her guilt pronounced only by the jury, not the media. Our law has provided a mechanism for accommodation of these rights: the change of venue.

 Today we are presented the case of Larry Fisher, who has been convicted of capital murder and sentenced to die. In a very real sense Fisher's guilt was announced by the news media of Meridian, Mississippi, loudly and long before a Lauderdale County jury was ever impaneled to hear the case. By this he was denied his right to a fair trial before the trial began. In this context we regard that the trial judge abused his discretion in refusing Fisher's motion for a change of venue. We reverse and remand.

 II. The Case Below

 A. The Circumstantial Case For the Prosecution

 Melinda Gail Weathers, an eighteen year old high school senior, was reported missing on Wednesday night, May 4, 1983, when she failed to return home after a softball game at the Sammy Davidson Complex in Meridian, Mississippi. Sometime that night, after 9:00 p.m., her car was seen abandoned on the side of Highway 11/80 East several miles east of Meridian and facing her hometown of Russell, Mississippi, her supposed destination. When the car was found by law enforcement officers on Thursday morning of May 5, 1983, it had been moved on to the northbound side of Highway 45 Bypass.

 Four days later, on May 7, 1983, Melinda's body was discovered by a search party approximately 75 yards off Angel Road on an old logging trail. Angel Road is off Highway 45 and is about three miles north of where the car was found. Her body was naked except for the socks and tennis shoes on her feet and a green shop rag between her legs. Two autopsies determined that death was caused by asphyxia due to manual strangulation. Time of death was estimated to have been between the late evening hours of May 4 and early morning hours of May 5. The autopsy also determined that Melinda had had sexual contact with a male within a short time prior to her death.

 After the discovery of Melinda's body, law enforcement authorities theorized that the suspect might be the same individual about whom they had received reports from another female, Pat Rivers, who had been stopped and raped along Highway 11/80. The similar rape-murder of a second girl, Carol Formby, was only suspected at this time - Formby had disappeared prior to May 4 but her body was not discovered

 until June 9, four days after the arrest of the defendant. In any event, the office of the Lauderdale County Sheriff in conjunction with the Meridian police organized a decoy operation designed to attract a suspect whose mode of operation had been to stop lone female drivers along the highway, under one pretext or another, rape, and in at least two suspected instances, kill them.

 For a full month after Weathers disappeared and her body had been found, the perpetrator of the crime remained at large. In the early hours of Saturday morning, June 4, 1983, the decoy, who no doubt appeared to be a lone female, was driving on Highway 11/80 heading towards Russell. In fact, Detective Bobby House was concealed in the backseat, crouched down on the floor behind the driver's seat and out of view and a backup car with two other detectives, S. A. Thomas and L. B. Robbins, was followins the two at a discreet distance. A pickup truck approached from behind and flashed its headlights off and on. The decoy driver pulled over and stopped, the pickup truck pulled in behind and also stopped. The driver of the pickup got out and approached. As he reached the decoy driver Detective House sprang from the backseat and arrested the startled Larry Fisher *fn1 at which point the backup car arrived.

 After Fisher's arrest, a cursory search *fn2 was made of his truck, and the officers recovered several items: a homemade "for sale" sign, a multicolored towel, some pieces of hair, and a green mechanic rag. Other searches were conducted at his residence and place of employment but we are not told whether any items were recovered.

 On Sunday, June 5, another search was made at which time Detective S. A. Thomas discovered a gold Italian horn pendant, in the ashtray of Fisher's truck. The Crime Lab searched the truck on June 6 and a Marlboro cigarette box was taken from the front seat. *fn3 The search *fn4 by the Crime Lab personnel lasted for about two and a half hours, and included the dash area both visually with the aid of a flashlight and by reaching into any crevice under the dash by hand. *fn5 Another search was conducted on Tuesday, June 7, by Detectives Thomas, Robbins, House and Franklin. During this search, Detective Thomas inspected the area under the seat of the truck and found a small earring back. As Thomas explained it:

 . . . We came from the sheriff's office, and Deputy Ernest Jackson opened the truck door and we moved it out and opened the door. And I did a - squatted down to the ground and done a visual search before

 actually entering the vehicle. And at that time is when I saw the piece of metal [the earring back] under the seat between the - where the seat brackets to the floor and also the seat belt brackets to the floor and a rib in the design of the truck bottom.

 On the day Melinda Gail Weathers disappeared she had on her class ring, her watch, a gold chain with her good luck charm - an Italian horn pendant - on it, and a pair of gold nugget earrings. When her body was discovered, it had the Seiko watch, the class ring and one earring *fn6 in the left ear. One of the earrings was easily sprung and would come off. Melinda's mother identified the Italian horn pendant found in the ashtray of Larry Fisher's truck as Melinda's.

 Ms. Pat Eddings, a forensic scientist at the Mississippi Crime Lab, conducted an examination on the back of the earring found on Melinda's body and the back of an earring found in Larry Fisher's truck by Detective Thomas and compared the two.

 She concluded:

 From the microscopic examinations and also from the elemental composition comparison work that I did, I did discover that both the earrings . . . were similar in size, in their design, in their construction, and in their elemental composition.

 As a part of the autopsy performed on May 7, Dr. John Davis examined the genital area and found a before death injury to the right of the clitoris of the victim's body. Dr. Leroy Riddick performed a subsequent autopsy with findings substantially the same except as to the external injury to the right of the clitoris. Whereas Dr. Davis identified this as a split, Dr. Leroy Riddick characterized this as "a little zone of discoloration, hyperemia or increased amount of blood flow." In his opinion, this was a before death injury.

 Dr. Davis noted the presence of spermatozoa in the vaginal washings taken from the body of Melinda Gail Winters. The presence of spermatozoa, of course, indicates sexual contact with a male. Dr. Riddick took specimen (vaginal swabs) from the vagina area. Both specimen were examined by Mr. Larry Turner of the Mississippi Crime Lab. Both specimen contained seminal fluid. Based on his findings, Turner could not exclude Mr. Fisher as the individual whose seminal fluid

 was found in the specimen taken from Melinda Gail Weathers. The effect of Turner's testimony was that the man with whom Melinda had had sexual contact could have been anyone of approximately 45 percent of the male population of the United States, and that Larry Fisher could not on the basis of the tests be excluded from that 45 percent.

 Pubic hair was recovered from the floor area of the passenger side of Larry Fisher's truck. This specimen was examined together with a known sample taken from the defendant and it was determined that they came from the same person, namely Larry Fisher. No pubic hair coming from the victim was found on Fisher or in his truck. Conversely, no pubic hair attributable to Fisher was found on Weathers or on the rag found on her body. Hair samples that were taken from the victim, Melinda Weathers, were compared with hair samples from the rag *fn7 found between her legs, these samples do match. These were her hairs, however, not Fishers'.

 At this point the evidentiary investigation of the case against Larry Fisher took an unexpected turn. On July 13, 1983, Fisher's truck - which had been sitting on the Sheriff's parking lot since June 4, 1983, was released to his mother, Mrs. Betty Ream. The truck was then taken to the parking lot of Nelson Hall Chevrolet, the former employer of her son. Mrs. Ream had intended to sell the truck to Hall, but they could not agree on a price. Sometime that afternoon the truck was test run by an employee by the name of Robert Mansour, who subsequently parked it by the back of the lot. Although the lot has a chain link fence, the gates to the lot were not locked. Sometime later that afternoon, Mansour got back into the truck with a Joe Canterbury who had informed him that Larry has a BMW radio in the truck. They played a cassette tape that was in the glove compartment. Joe Canterbury left and another employee, Paul Lundy, joined Mansour. Mansour asked Lundy if he thought "they searched everywhere" meaning whether the law enforcement officers conducted a thorough search. Paul Lundy then told him that he, Paul Lundy, "knew of a secret stash; that Larry Fisher had told him about." At this point, Mansour "stuck his hand up underneath the dash, and that's when [he] discovered a crush proof Marlboro cigarette box." This is the second Marlboro box. *fn8

 The second Marlboro box contained pieces of jewelry; one of these being the gold necklace that was later identified as belonging to Melinda and which she had been wearing on the day of her disappearance. The other pieces were identified as belonging to Carol Formby, another female who had disappeared under similar circumstances and whose body was found four days

 after Fisher's arrest. For obvious reasons, the Formby evidence was not presented to the jury below.

 Mansour took his find to his office at the Chevrolet dealership and called the sheriff's office. Detective David Franklin came to pick up the Marlboro box and its contents. In a statement first given to Detective Franklin, explaining how he discovered the box, Mansour said that the box fell out when he stepped on the emergency brake. Two days later, he changed his version of the story to reflect what he testified to both in the motion to suppress and in the guilt/innocence stage of the trial, the "secret stash" explanation.

 Gary Church, the owner of the Cycle Center, testified that on or around May 24 or 25, 1983, some three weeks after the Weathers murder, Fisher had shown him a necklace. Fisher was interested in knowing its value and whether anybody might be interested in buying it. The witness was then shown the necklace that was found in the second Marlboro box. He identified it as being the same as the one Fisher showed to him. Melinda's mother had identified this necklace as belonging to the victim and the same one she wore on the day of her disappearance.

 Daniel Stanford also identified the "Marlboro" necklace as the one Larry attempted to sell to him. On cross-examination he could differentiate between Larry's necklace and Melinda's necklace which is the Marlboro necklace but could not tell the difference between Mrs. Ream's (Larry's mother) necklace and Melinda's necklace. *fn9

 B. The Defense

 Larry Fisher took the stand in his own defense. He was an auto mechanic employed at Nelson Hall Chevrolet, the site of the discovery of the (second) Marlboro box containing the jewelry. As a working man, his routine on weekdays was to go to work at about 7:15 in the morning, get off work at about 5:30 and go home. He visited bars and other night spots on Fridays and Saturdays. Some days, during the week, he might do odd jobs for friends.

 On May 4, 1983, he did some work for Gary Church at the Cycle Center until about a little after 9:00 p.m. when he left and went home to retire for the night. He got home around 10:00 p.m. Dirty with sawdust, he took a shower, watched T.V. and went to bed. He did not leave the house again until the next day when he left for work, as usual, in the morning.

 He owns a white courier pickup truck; smokes Marlboro

 cigarettes in the crush proof box; does not have a secret stash in his truck and does not read the papers. His truck does not have bright lights because its dimmer switch is broken; the horn does not work and the locks on the door can be opened from the inside. Because of defects on the driver side door, it is even easier to open the passenger door than the driver door.

 One time while cleaning his truck he found a pendant similar to the one in evidence and he put it in the ashtray. He goes out on dates in his truck and he has dated a few girls in his time but not Melinda. He does not know her. He had a "For Sale" sign with his telephone number on it in his truck.

 On the night of June 4, he was bar hopping with a friend. At one of the stops he met a friend named Ron and a girl by the name of Linda Butler. Later that evening after dropping off his friend he went to another bar and saw a female who looked like Linda getting onto a car. He yelled out her name, but the female apparently did not hear as she got into her car and backed out and drove towards the highway. Still thinking that she did not hear him yell out her name, he followed her into the highway flashing his lights off and on in an attempt to signal her. When she did not stop, he slowed down and was about to make a turn when he saw the brake lights come on on the car. That was when he drove up to her car. He yelled "Linda" while leaning out of the window. That was when, according to Fisher, the officer walked up to him still in his truck and arrested him. He was interrogated and he told them he thought the girl was Linda. At the time he did not know any other information about her and was therefore unable to offer any more definite particulars.

 When law enforcement officers found the pendant, he told them that he did not know who it belonged to. They told him that it belonged to Melinda and he denied it because he did not know any girl by that name.

 During the course of his work he had come by a cap and, of course, he uses rags that are generally used by mechanics. He had tried to sell his necklace to Gary Church in March, two months before the murder. On cross-examination, Fisher was asked whether he had flashed his lights and pulled over Pat Rivers and Marsha Pigot. He denied this. He also denied pulling over Melinda, raping her, taking a necklace from her, and strangling her. Fisher admitted that he had previously been convicted in Georgia of rape, kidnapping and robbery by intimidation.

 The crux of Fisher's defense was an alibi. On the

 evening of May 4, he was assisting Gary Church and Daniel Stanford in some remodeling work at the Cycle Shop, next door to Nelson Hall Chevrolet, Fisher's place of employment. However, this was largely destroyed when Gary Church testified that Larry worked at the Cycle Center on the 2nd of May instead of the 4th as he (Church) had previously told an investigator. The prior out of court statement was admitted into the record. The witness explained the inconsistency in the date by tendering for identification a purchase receipt for the materials used in the remodeling work.

 Further testimony that destroyed Fisher's alibi was elicited from Daniel Stanford. Like Church, Stanford had originally made a statement to the effect that he was with Fisher on the night of May 4, 1983, in connection with the remodeling of the Cycle Shop. At trial Stanford said this occurred on May 2, not May 4. The combined testimony of Church and Stanford left Fisher without an independent witness to corroborate his alibi.

 Mrs. Betty Ream, the mother of Larry Fisher, further corroborated her son's testimony about the 4th of May, to-wit:

 He was dirty, he had sawdust on him, he had his shop clothes on . . . This was shortly before 10:00 p.m. He had a saw that he had borrowed from my husband. He went to bed very early during the week because he had to get up and go to work at 7:30.

 Fisher's stepfather testified that Larry used his skill saw and he remembered one night when he returned it and he went out to check it. However, he could not remember the date.

 C. Proceedings Below

 On December 1, 1983, Larry R. Fisher, Defendant below and Appellant here, was formally charged with the capital murder of Melinda Gail Weathers while he was engaged in the crimes of rape and robbery, contrary to Miss. Code Ann. 97-3-19 (2)(e) (Supp. 1984). Fisher entered a plea of not guilty to all charges.

 On January 20, 1984, Fisher filed a motion for change of venue. That motion was called for hearing on February 2, 1984, at the conclusion of which the trial judge announced that he would withhold his ruling, pending voir dire examination of the prospective jurors called for the trial of the case.

 On the morning of April 16, 1984, the case was called for trial on its merits in the Circuit Court of Lauderdale County, Mississippi. At the conclusion of voir dire examination of the prospective jurors, the trial judge announced that Fisher's motion for change of venue was finally overruled.

 Thereafter, the trial proceeded until on April 20, 1984, the jury returned a unanimous verdict that Fisher was guilty as charged in the indictment.

 In due course thereafter, Fisher was put to trial on the question of sentence. On April 21, 1984, the jury unanimously found three aggravating circumstances to-wit:

 (1) The capital offense was committed for pecuniary gain;

 (2) the capital offense was especially heinous, atrocious or cruel; and

 (3) the defendant was previously convicted of a felony involving use or threat of violence to a person.

 The jury further found that these aggravating circumstances

 are sufficient to impose the death penalty and that there are insufficient mitigating circumstances, and we unanimously find that the defendant should suffer death.

 From this conviction and sentence, Fisher appeals.

 III. Heightened Scrutiny On Appeal of Death Penalty Cases

 As a part of the organic law of this state, there is a principle that on appeal convictions of capital murder and sentences of death will be subjected to heightened scrutiny. As stated in Irving v. State, 361 So. 2d 1360 (Miss. 1978),

 We recognize that thoroughness and intensity of review are heightened in cases where the death penalty has been imposed. [citation omitted] What may be harmless error in a case with less at stake becomes reversible error when the penalty is death.

 361 So. 2d at 1363; Jones v. State, 461 So. 2d 686, 690

 (Miss. 1984); Billiot v. State, 454 So. 2d 445, 455 (Miss. 1984); Neal v. State, 451 So. 2d 743, 750 (Miss. 1984); Williams v. State, 445 So. 2d 798, 810-11 (Miss. 1984); Laney v. State, 421 So. 2d 1216, 1217 (Miss. 1982).

 This principle requires that trial errors be considered not necessarily individually but for their cumulative effect. Russell v. State, 185 Miss. 464, 469, 189 So. 90, 91 (1939). Bona fide doubts are resolved in favor of the accused. Gambrell v. State, 92 Miss. 728, 736, 46 So. 138, 139 (1908).

 While there may be legitimate differences of opinion as to just when and how "heightened scrutiny" works in death penalty cases, it would seem clear that this approach is most needed and most applicable in cases resting upon circumstantial evidence and where the matter of whether the defendant is guilty at all is by no means free of all doubt. As the facts suggest, this is an appropriate case for heightened scrutiny.

 IV. Sufficiency of The Evidence

 A. General Considerations

 The gravamen of Fisher's assignments of error numbers 1, 2 and 7 is that the State's evidence was legally insufficient to establish certain elements of the crime of capital murder, particularly the underlying felonies of rape and robbery. Fisher correctly notes that, before a conviction of any crime may stand, there must be in the record evidence sufficient to establish each element of the crime. Edwards v. State, 469 So. 2d 68, 70 (Miss. 1985); Watson v. State, 465 So. 2d 1025, 1031 (Miss. 1985); Neal v. State, 451 So. 2d 743, 757 (Miss. 1984).

 The statute under which Larry Fisher has been indicted, tried and convicted is found in Miss. Code Ann. 97-3-19(2)(e) (Supp. 1984). There, this state has declared that:

 The killing of a human being without the authority of law by any means or in any manner shall be capital ...

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