PRATHER, JUSTICE, FOR THE COURT:
This case represents the second appeal of the charge of capital murder against William Wiley. In 1984, this Court affirmed unanimously the guilt phase of William Wiley's trial for capital murder of J. B. Turner, while in the commission of robbery. Wiley v. State, 449 So.2d 756 (Miss. 1984).
This Court reversed the original death sentence because of improper remarks made by the prosecutor. Upon retrial of the sentencing phase, Wiley was again sentenced to die. From that decision Wiley brings this appeal and assigns the following twelve (12) errors:
(1) That the court erred in refusing to grant a change of venue;
(2) That the trial court erred by improperly excusing juror No. 41, Leroy Payne, under Witherspoon examination;
(3) That the court erred in sustaining the district attorney's objection to defense counsel's opening argument regarding the jury's sentencing options;
(4) That the court erred by admitting into evidence over defendant's objection State's exhibits S-6, S-8, S-9, S-10, S-23, and S-24;
(5) That the court erred by allowing, over defendant's objection, witness Holt to testify concerning the illegality of defendant's shotgun;
(6) That the court erred by allowing, over defendant's timely objection, witness Marie Turner to testify as to the character of her late husband, the victim;
(7) That the court erred by refusing to grant defendant's
jury instructions D-1, D-2 and D-3; and
(8) That the court erred in granting State's jury instruction C-3A, which includes aggravating circumstances which repeat one another.
(9) That the verdict of the jury was and is against the overwhelming weight of the evidence and contrary to law;
(10) That the sentence of death was imposed under the influence of passion, prejudice, and/or some other arbitrary factor;
(11) That the evidence does not support the jury's finding of one or more aggravating circumstances set forth in instructions of law given to the jury;
(12) That the sentence of death was and is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
During the early morning hours of August 22, 1981, J. B. Turner and his daughter, Patricia Harvey, were closing the small convenience store Mr. Turner operated from 7:00 a.m. until midnight in rural DeSoto County. After Mr. Turner had locked the front door, a waiting assailant stepped out from a hiding place near the southeast corner of the building and fired three shots from a .20-gauge, pump shotgun.
Mr. Turner, who was shot once in the back and once in the chest, died on the scene. Mrs. Harvey, who was struck about her head and upper chest, survived but was partially blinded. The assailant took a small money box that Mr. Turner had been carrying and fled. The money box contained $350 to $400.
During the ensuing days, friends and family members of Mr. Turner discovered several articles of evidence near the store. One such item was a .20-gauge, pump shotgun discovered in the weeds and bushes behind the store. A trace was conducted by the United States Treasury Department, Bureau of Alcohol, Tobacco, and Firearms who determined the owner of the shotgun to be William Wiley.
Several weeks later William Wiley was arrested in Memphis, Tennessee. Wiley confessed to the robbery and the murder, and he led law enforcement officers to the place where he threw away a money sack.
Wiley was first found guilty of aggravated assault on Mrs. Harvey and was sentenced to a thirty (30) year prison term. Then, in a bifurcated trial, Wiley was found guilty of capital murder and was sentenced by the jury to suffer the death penalty. Upon review of the murder conviction, this Court affirmed the guilt phase but reversed and remanded the sentencing phase for retrial. The Court found that the prosecutor committed reversible error in his closing argument to the jury when he commented on the reviewability of the death sentence by the State Supreme Court. Wiley v. State, 449 So.2d 756 (Miss. 1984).
The sentencing phase was retried and, the jury again unanimously agreed that Wiley should be given the death penalty. In conformity with Miss. Code Ann. 99-19-101 (Supp. 1984), the jury returned the following verdict:
"We the Jury, unanimously find that the evidence beyond a reasonable doubt that the following facts existed at the time of the commission of capital murder: That the Defendant actually killed J. B. Turner. That the Defendant intended that the killing of J. B. Turner take place. That the Defendant contemplated that lethal force would be employed. We the Jury, unanimously find that the aggravating circumstances of the capital offense as committed during the attempt to commit the crime of robbery; that the capital offense was committed for pecuniary gain; that the capital offense was especially heinous, atrocious and cruel, are sufficient to impose the death penalty, and there are insufficient mitigating circumstances to outweigh the aggravating circumstances and we unanimously find that the Defendant should suffer death.
From that decision, William Wiley perfects this appeal.
Did the trial court err in refusing to grant a change of venue?
Prior to the trial of this case, Wiley sought, by motion, a change of venue. A hearing was held on that motion with the defendant presenting two witnesses and trial counsel, plus ten newspaper clippings.
Wallace Anderson, an Olive Branch attorney, testified
that the case had been highly publicized and that it had been the subject of local community gossip. Mr. Anderson further testified that the general community feeling was that there was no sufficient punishment for what William Wiley had done. Mr. Anderson concluded by stating his opinion that William Wiley could not receive a fair and impartial trial in DeSoto County.
Lucious Edwards, a Hernando attorney, testified that he had read numerous local newspaper articles discussing the Wiley case and, based on those articles, his opinion was that Wiley could not receive a fair trial in DeSoto County.
The district attorney then elicited testimony from all five of the DeSoto County supervisors. Each supervisor testified that Wiley could receive a fair trial in DeSoto County.
In addition to the elicited testimony, Wiley introduced ten newspaper clippings from the DeSoto Times and the Commercial Appeal. With the exception of the letter to the editor authored by Pat Freeman, each article appears to this Court to be a fair, accurate, responsible account of the news it purports to convey.
After each side had made its summation, the trial judge took the matter under advisement pending voir dire of the potential jury. Upon completion of the voir dire, the defendant renewed his motion for a change of venue. The motion was denied.
Recent decisions of this Court have reminded the public that, `when it is doubtful that a fair and impartial jury can be obtained in the county where a homicide has been committed, an accused on trial for his life" is but asking for his rights when he requests a change of venue ".' Fisher v. State, No. 56,050, slip op. at 21 (Miss. Oct. 16, 1985); Johnson v. State, 476 So.2d 1195 (Miss. 1985); Eddins v. State, 110 Miss. 780, 70 So. 898 (1916).
" [A] motion for change of venue ordinarily should be where, under the totality of the circumstances it appears reasonably likely that, in the absence of such relief, the accused's right to a fair trial may be lost. "Fisher v. State, No. 56,050 slip op. at 29.
This Court has often held that the decision regarding a change of venue in a criminal proceeding is committed to the sound discretion of the trial judge. Winters v. State, 473 So.2d 452 (Miss. 1985); Cabello v. State, 471 So.2d 332
(Miss. 1985). However, Fisher demonstrated that the venue question is in the sound discretion, not the unfettered discretion, of the trial judge.
The question now to be answered is whether the trial judge abused his sound discretion in refusing to grant the defendant's change of venue motion. This Court holds that he did not. The defendant introduced three witnesses to testify that he would not receive a fair trial in DeSoto County, while the district attorney introduced five witnesses to the contrary. The number of witnesses introduced is not always indicative of the quality of a claim. But the trial judge found after voir dire of the jury that the panel represented a cross-section of the county and that, based upon the prospective juror's responses a fair jury could be drawn. In addition, the record does not reflect a saturation of media coverage as evidenced in Fisher and Johnson or that Wiley was tried in the newspaper before his trial.
For the aforementioned reasons, this Court holds that the trial judge did not abuse his sound discretion in refusing to grant the defendant's change of venue motion.
Did the trial court err by excusing juror No. 41, Leroy Payne?
During the voir dire of prospective juror Leroy Payne, Mr. Payne answered numerous times that he would not consider the death penalty in the present case or any other case. Only after the defense attorney described a hypothetical situation in which Mr. Payne's family would be killed by a burglar did Mr. Payne show signs that he would even consider the death penalty. When the district attorney was allowed to re-examine the prospective juror, Mr. Payne reaffirmed his conviction that he would not impose the death penalty.
Before Mr. Payne was excused, the following discussion took place:
THE COURT: Mr. Payne, I'm going to excuse you. I feel like that you made a fair expression of your feelings and I wish it had been a little more certain and a little more definite, but - obviously, you'd never be permitted to serve on a Jury of somebody who's harmed a member of your family. Do you tell me again that you're just opposed to the death penalty?
JUROR (Mr. Payne): Yes, sir.
THE COURT: You can't think of a situation outside of your family where you would vote for the death penalty or even give it serious consideration?
JUROR (Mr. Payne): No, sir.
Wiley contends the excusal of the potential juror was improper in light of Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L.Ed.2d 776 (1968), because the potential juror admitted he would consider the death penalty in at least one circumstance - if his wife and three children were killed by a burglar.
The State contends the Witherspoon standard is no longer the appropriate federal standard for exclusion, having been supplanted by the more liberal standard recently enunciated in Wainwright v. Witt, 469 U.S. ___, 105 S. Ct. 844, 83 L.Ed.2d 841 (1985). But the State adheres to the position that Payne was properly excluded under both the Witt criteria and the Witherspoon test.
The U.S. Supreme Court re-examined the Witherspoon standard in Adams v. Texas, 448 U.S. 38, 100 S. Ct. 2521, 65 L.Ed.2d 581 (1980) and concluded:
[A] juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. The State may insist, however, that jurors will consider and decide the facts impartially and conscientiously apply the law as charged by the court.
448 U.S. at 45, 100 S. Ct. at 2526, 65 L.Ed.2d at 589.
The U.S. Supreme Court recently reaffirmed the Adams standard in Wainwright v. Witt, in which Justice Rehnquist wrote:
We therefore take this opportunity to clarify our decision in Witherspoon, and to reaffirm the above-quoted standard from Adams as the proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment.
105 S. Ct. at 582, 83 L.Ed.2d at 851.
Additionally, this Court recently commented on the Adams standard in saying," Although the United States Supreme Court has refined the Witherspoon decision in Adams, the issue remains the ability of the prospective juror to follow the instructions and the jurors oath. "Gray v. State, 472 So.2d 409, 421 (Miss. 1985).
The record indicates that Payne would have been substantially impaired in the performance of his duties as a juror in accordance with his instructions and his oath. For that reason, this Court concludes that it was not error to exclude Mr. Payne for cause.
Did the court err in sustaining the district attorney's objection to defense counsel's opening statement regarding the jury's sentencing options?
During the opening statement of Mr. Franks, the defense counsel, the following exchange took place:
COUNSEL FOR DEFENDANT (Mr. Franks):
You do not have the choice of letting William Wiley go. You do not have that option. You can sentence him to one or the other of the two most severe penalties that we have under our system of law in the State of Mississippi. You can sentence him to life at Parchman, Mississippi. . . (Emphasis added).
DISTRICT ATTORNEY (Mr. Williams): Objection, Your Honor. Now, that is not what. . . .
COUNSEL FOR DEFENDANT (Mr. Franks): I'd like to be heard in Chambers on that.
DISTRICT ATTORNEY (Mr. Williams): . . . That is not an accurate statement of the law.
DISTRICT ATTORNEY (Mr. Williams): Yes, sir. Your Honor, in the Defendant's opening statement and I will have to paraphrase, Mr. Franks informed the Jury that the Jury had two options, both of which
are the most severe penalties for a violation of the criminal law. Number One being the death penalty and Number Two being to sentence the Defendant to spend his life in the penitentiary. This is a mis-statement. As Mr. Franks well knows, that life when used in the context of a sentencing order in a capital murder case means that the Defendant is eligible for parole after ten years. It is clearly an effort to mis-lead the Jury and have them believe that should they impose life imprisonment as punishment in this case, the Defendant would spend the rest of his natural life in Parchman in the penitentiary. It's an effort to take and [sic] unfair advantage. . .
THE COURT: Let the record show that the Court sustains the objection and directs Counsel for Defendant not to further make reference with any language which would lead the Jury to believe that a life sentence would effectively remove Wiley from society forever by giving him life in prison.
The Court will instruct the Jury upon returning to the bench that the only alternative they have, if they can reach a verdict at all, will be the death penalty or life imprisonment, and direct the attorneys to address themselves in that context.
(The following proceedings were held in open Court. The Defendant was present and seated at counsel table with his attorney. The jury was in the Jury Box.)
THE COURT: Ladies and Gentlemen of the Jury, I'll again instruct you at this time, the Jury reached a verdict in this case and the two options the Jury will have will be the death penalty or life imprisonment. If the Jury got any other interpretations on the statements made a moment ago, those ...