DAN LEE, JUSTICE FOR THE COURT:
On June 21, 1982, James Michael (Jimbo) Stringer, his father, James Stringer, Sr., John Mack Parker, Rhonda Brock, and Michael Medders entered the South Jackson home of Ray and Nell McWilliams, intending to rob and kill the couple. Ray McWilliams unexpectedly put up a fight; in the ensuing scuffle, McWilliams was shot and killed. Almost simultaneously, Jimbo Stringer put a shotgun to the back of Nell McWilliams' head, as she attempted to crawl away, and pulled the trigger. The blast tore away the top of Mrs. McWilliams' head, killing her instantly.
Jimbo Stringer was previously convicted of the capital murder of Nell McWilliams and was sentenced to life imprisonment. This appeal stems from his conviction of the capital murder of Ray McWilliams, for which he received the death penalty. We affirm his conviction, but reverse and remand only his sentence of death in this bifurcated proceeding.
We are loathe to reverse this sentence, for the ruthlessness and brutality of this crime cry out for the severest punishment permitted by law. Despite our reluctance to reverse, we are duty bound and sworn by oath to uphold the laws of the State of Mississippi. We are thus entrusted with the responsibility of ensuring that the criminal justice system of this state works to guarantee that every defendant brought before its tribunals receives a fair and impartial trial. To that end, we must instill in all officers of the trial courts a sense of their own responsibility in preserving our system of justice. To avoid abuse of that system, we admonish all prosecutors, trial judges, and other affected officials to follow the rules and provide a fundamentally fair hearing at the sentencing (death penalty) phase, or be prepared to "do it again."
We give the jury in a capital murder case the awesome responsibility to determine sentencing. The jury should deliberate on the death penalty in the same atmosphere of fairness and impartiality in which it would consider the verdict of guilt or innocence, taking into account only whether the statutory aggravating factors outweigh any mitigating circumstances. We have the ultimate faith that the jury will do exactly that, if it is not improperly influenced. However, when the jury imposes a penalty of
death on the basis of passion, prejudice, or matters extraneous to the issue before it, that penalty must be reversed because of the improper influence.
We vacate and remand the death penalty in this case because the prosecution improperly influenced the jury during the sentencing phase. The attorneys for the state committed no single error egregious enough, standing alone, to mandate reversal. However, the combination of argument and trial tactics by the prosecutors was sufficient to inflame and prejudice the jury in its deliberation on the death penalty. Specifically, the errors that we hold to merit reversal are:
1) The introduction into evidence of photographs of the body of Nell McWilliams. (Note that Jimbo Stringer was previously convicted of the murder of Nell McWilliams. Stringer v. State, No. 54,805 (decided February 27, 1985, not yet reported). This appeal stems from his trial for the murder of Ray McWilliams.)
2) The display to the jury, during closing argument, of color slides of the body of Nell McWilliams.
3) The state's attempt to prevent Stringer from calling John Mack Parker as a witness.
4) The prosecutor's questioning during voir dire, to get a commitment from the jury to exclude certain mitigating factors from its consideration of the death penalty and his subsequent reminder to the jury of that promise, under oath, during closing argument.
5) The "last chance" argument, to influence the jury to return the death penalty for the killing of Mrs. McWilliams.
6) The prosecution's comment on Stringer's failure to testify.
The heightened review which we give to death penalty cases requires us to consider the cumulative impact of all of these factors. We hold that their aggregate effect was to deny the defendant below a fundamentally fair trial on whether he should suffer the death penalty.
Our system of jurisprudence is the best yet developed
by mankind to try and punish criminal offenders. However, in order for it to work, all officers of the courts must recognize and carry out their responsibility to ensure a fair and complete trial for every criminal defendant and the state. That responsibility is not based upon some abstract principle, but evolves from our responsibility as public officials. We all owe a duty to the taxpayers of this state to give criminal defendants a full and complete trial the first time around. When this Court reverses and remands a case for a new trial, it not only diminishes public confidence in our system of justice, it also creates the additional expense of trying the defendant again. Far too many cases, like this one, are reversed for errors in prosecutorial conduct which are not difficult to anticipate or correct. It is with this in mind that we instruct on the law, so as not to encounter in the future the frustration of reversing cases because of errors which we have warned against before.
We would urge trial judges, prosecutors, and defense attorneys to read and carefully consider this opinion. Our solemn duty is to guarantee a fundamentally fair trial to the state of Mississippi and all criminal defendants. We intend to abide by our duty, which will be made easier if all adhere to the spirit of the following language:
The fair way is the safe way, and the safe way is the best way, in every criminal prosecution. The history of criminal jurisprudence and practice demonstrates generally that if every one prosecuted for crime were fairly and fully conceded all to which he is entitled, and if all doubtful advantages to the state were declined, and if adventurous forays into dangerous and unknown fields were shunned, and if the beaten paths were heedfully followed, there would be secured as many convictions of the guilty, and such convictions would be succeeded by few or no reversals.
Hill v. State, 72 Miss. 527, 534-5, 17 So. 375, 377 (1895).
On November 28, 1983, Jimbo was tried for the murder of Mr. Ray McWilliams. He was convicted of that murder and received the death penalty on December 1, 1983. He now appeals that conviction, and assigns eighteen (18) errors to the court below, which will be dealt with separately in this opinion.
On June 21, 1982, Ray and Nell McWilliams were found shot to death in their south Jackson home. McWilliams was in the business of buying gold and silver jewelry. James Stringer, who was in the same business, was questioned about the case on June 22, 1982; however, no arrests were made until after July 2, 1982. On that date, Rhonda Brock made a statement to the Kosciusko police regarding the case. That statement implicated Jimbo Stringer, James Stringer, Sr., and Brock's then traveling companion, Mike Medders, in the murder. After Jackson police who were investigating the murders realized that Brock's statement was inconsistent with the physical evidence, she was again questioned, on July 3, 1982. At that time she was placed in custody and gave another statement which was consistent with physical evidence and implicated her former lover, John Mack Parker. Mike Medders was also arrested, and he subsequently gave a statement to the police. Both Brock and Medders were originally charged with capital murder; however, the state agreed to accept guilty pleas to manslaughter in return for their cooperation in testifying against the other participants in the crime.
Brock and Medders testified at Jimbo's trial, and, while their stories disagreed in some small details, they were essentially the same. According to them, Brock, Medders, James Stringer, and John Mack Parker met on June 21, 1982, at the apartment of James Stringer's girlfriend. The purpose of the meeting was to plan the robbery and murder of the McWilliamses. James Stringer knew that Ray McWilliams kept a safe in his house with sums of money and jewelry in it. The plan was to tie up the McWilliamses, get the combination to the safe, and then murder the couple. During this planning, James Stringer called his son, Jimbo, and asked him to bring some bullets over. Jimbo later arrived with the bullets and a shotgun. When he arrived, his father asked him if he would like to come along with them, and he agreed.
Later that evening, the five drove to the McWilliamses' home. As they had planned, Rhonda Brock gained entry to the home by posing as a potential seller of gold and silver. Ray McWilliams admitted her into his house; James Stringer entered it with her. Stringer and McWilliams began to struggle, and a shot went off during that time. Then Parker, Jimbo, and Medders entered the home. Jimbo went further into the house with his shotgun, pointed it at the floor and shot. Parker told Mr. McWilliams "You are a dead man," and, after that, another shot went off. As they were leaving the house, Mr. Stringer asked Jimbo if Mrs. McWilliams
was dead, and he said that she was. The robbery plan was aborted because apparently someone noticed that McWilliams' neighbor, whom they knew to be a policeman, was coming across the backyard to investigate the shots. The five jumped back into their car and fled the scene.
According to testimony from the pathologist, Mr. McWilliams died from a wound to his face, and his other wounds were consistent with a struggle over a gun. According to Dr. Galvez, his death came very quickly. Mrs. McWilliams was killed by a shotgun blast to the back of her head. Apparently she was in a crawling or crouching position at the time she was shot, and the top of her head was blown off by the shotgun blast.
Jimbo Stringer was found guilty of the capital murder of Ray McWilliams. During the sentencing phase, he presented evidence from several of his relatives, who testified to the influence which his father had over him. Relatives and neighbors testified that Jimbo was a model child, but that he was terrified of his father, and under his father's dominion and control.
The state introduced evidence of Jimbo's prior convictions of aggravated assault and capital murder. After the testimony regarding Jimbo's character, the state put on additional evidence of prior convictions, which were several convictions for various misdemeanors.
The jury sentenced Jimbo Stringer to death. In returning that sentence, the jury found the following aggravated circumstances: that the murder was committed while the defendant was engaged in an attempt to commit robbery, that it was committed for pecuniary gain, that it was committed for the purpose of avoiding or preventing the detection and arrest of Jimbo, his father, and others, and that the murder was especially cruel. The jury found that those circumstances outweighed any mitigating circumstances.
I. DID THE CAPITAL MURDER INSTRUCTION FAIL TO ADEQUATELY INFORM THE JURORS OF THE ELEMENTS OF THE CRIME?
Jimbo Stringer alleges that the court's instruction on capital murder failed to define the crime of attempted robbery, including the intent element. He also alleges that that defect was not cured by the court's instruction on aiding and abetting. However, no objection was made at trial to this instruction. Thus, any alleged error is barred on appeal. Gray v. State, 472 So.2d 409, 416 (Miss. 1985), cert. gr. Gray v. Mississippi, ___ U.S. ___, 106 S. Ct.
1182, 89 L.Ed.2d 299 (1986).
II. WAS THE INSTRUCTION ON AIDING AND ABETTING VAGUE, ERRONEOUS, AND OVERBROAD, AND DID IT VIOLATE THE BAN AGAINST DOUBLE JEOPARDY UNDER THE MISSISSIPPI AND UNITED STATES CONSTITUTIONS?
Stringer argues on this assignment that the instruction was not limited to the defendant's acts prior to the commission of the capital murder which actually contributed to it; therefore, the jury could have convicted him under this instruction on the killing of Mrs. McWilliams. When this instruction was proposed during the trial, counsel for the defendant did object to the instruction. He stated that it was vague and abstract, and asked that it be modified to specify that the acts alleged had to lead to the murder of Mr. McWilliams. The court agreed to the modification, and, after that, the instruction was accepted by the defense without objection. Thus, the very problem which the appellant alleges here was cured at trial. Furthermore, since the instruction was then accepted without objection, Stringer is procedurally barred by Gray from raising it as error on appeal.
III. DID THE LIMITED CROSS-EXAMINATION OF MICHAEL MEDDERS VIOLATE THE APPELLANT'S RIGHTS PURSUANT TO STATE LAW AND THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION?
During Medders' testimony, a discrepancy developed as to whether the robbery was actually planned on Sunday or Monday. In order to impeach Medders' testimony, counsel for the defendant attempted to get into evidence a statement which Medders had given to his attorney. At that point, Medders asserted his attorney-client privilege, in order to prevent introduction of the statement. Defense counsel then argued that the privilege had been waived, because Medders had given a statement to the police. The court allowed Medders to claim the privilege. On appeal, Stringer argues that this was error, because he was not allowed the opportunity to impeach Medders on his inconsistent statement. This assignment is without merit. The defense was attempting to impeach Medders on a collateral matter. In Williams v. State, 73 Miss. 820, 19 So. 826 (1896), this Court held that a witness may only be impeached on a statement which embodies "A fact substantive in its nature and relevant to the issue made in the case." 73 Miss. at 824, 19 So. at 827.
The question is whether Jimbo Stringer should have
been allowed to prove that Medders had once said that the planning occurred on Sunday, rather than Monday, as part of his central case to prove his innocence. Clearly, the issue of whether the crime was planned on Sunday or Monday has no bearing on the guilt or innocence of Jimbo Stringer. Thus, the matter is collateral.
IV. WAS JIMBO STRINGER'S RIGHT TO A FAIR TRIAL DENIED BY THE ADMISSION OF PHOTOGRAPHS OF MRS. McWILLIAMS, WHICH WERE IRRELEVANT, PREJUDICIAL, AND INFLAMMATORY?
Over the objection of defense counsel, the state introduced pictures of Mrs. McWilliams. The initial introduction was of three photographs of Mrs. McWilliams' body, as it appeared at the scene of the murder. These were introduced during the testimony of L. E. Davis, of the Jackson police, who was the McWilliamses' neighbor, and discovered the bodies. The angle of the body in those photographs has the head pointed away from the camera, and, thus, does not fully show the extent of Mrs. McWilliams' wounds. Prior to the testimony of Dr. Galvez, the state introduced slides of Mrs. McWilliams' body. The two slides admitted appear to be essentially shot from the same angle as the photographs. Both the slides and the photographs, while not showing the extent of the wound to Mrs. McWilliams' head, do clearly show fragments of her skull and brain on the floor and on the wall.
During the closing argument for the state, at the guilt phase, the record indicates the following:
But they left a witness. And who took care of that? There he sits. There he sits. And how did he do it?
(Mr. Davis changing slides)
There it is. It's not my handiwork. It's not anything you did. That's his handiwork. He had to go back to do it. And how did he do it? What did Dr. Galvez say? Down on her hands and knees probably trying to crawl behind a table to hide? She wasn't standing up. Why didn't she shoot her in the back while she was standing up? That's his handiwork - his handiwork. [emphasis added]
Again, during the closing argument in the sentencing phase, reference was made to the murder of Mrs. McWilliams. The record indicates that Mr. Davis turned the projector
on during his argument. After discussing the appearance of Mr. McWilliams following the murder, Mr. Davis said the following:
And then we get to this defendant's handiwork. We get to what he did. Is there a drop of mitigation in that? Any fact or circumstance arising out of the case that you find to be mitigating. Do you find anything mitigating about that?
Clearly, then, the slides depicting the body of Mrs. McWilliams, as it appeared after the murders, were shown to the jury during closing argument for the state, both in the guilt phase and the sentencing phase. The state defends this presentation by stating that it portrayed Stringer's role as the "silencer." Counsel for the state urges that the photographs were necessary to prove the element of capital murder that Jimbo Stringer killed Mrs. McWilliams to prevent her from identifying the killers of Mr. McWilliams. Further, the state would argue that it was within the trial court's discretion to admit the photographs and slides.
It has long been the position of this Court that photographs of bodies may be admitted into evidence where they have probative value, and where they are not so gruesome as to be overly prejudicial and inflammatory. Johnson v. State, 476 So.2d 1195, 1206 (Miss. 1985); Cabello v. State, 471 So.2d 332 (Miss. 1985).
The pictures of Mrs. McWilliams are not overly gruesome. The question in this case is primarily only of relevance - were the photographs of Mrs. McWilliams' body necessary to establish the guilt of Jimbo Stringer in the murder of Mr. McWilliams? Certainly, the state, in order to connect Jimbo with the murder of Mr. McWilliams, had to show that he participated in the murder in some way. The testimony showed that Stringer was not the "trigger man" in the murder of Mr. McWilliams, nor was he involved in the struggle. The state's position was that his primary involvement in the crime was as the "silencer" of Mrs. McWilliams. However, Jimbo's role could have been established without the admission of the photographs.
The photographs of Mrs. McWilliams were used in evidence during the testimony of the officer who found the bodies and during the testimony of the pathologist. However, slides of her body were also shown during closing argument in both the guilt phase and the sentencing phase. In West Virginia v. Clawson, 270 S.E.2d 659 (W.V. 1980), the court
found that the trial judge had abused his discretion in allowing the admission of gruesome photographs of two murder victims. In determining whether the admission of the photographs was harmless error, the court noted that the photographs had been used during closing argument. The court held that this precluded the error from being harmless, since where such photographs are shown to the jury during closing argument, "their impact on the jury is such that it will become so incensed and inflamed at the horrible conditions depicted that it will not be able to objectively decide the issue of the defendant's guilt." Id. at 674.
While the introduction of these pictures, in itself, did not constitute reversible error, the pictures must have had a highly inflammatory effect on the jury. First, the pictures were part of an overall scheme to, in effect, try Jimbo Stringer for the murders of both Ray McWilliams and Nell McWilliams. The prosecution introduced extensive evidence about both murders. During closing argument in the sentencing phase, the district attorney reminded the jury that Stringer did not receive the death penalty in his trial for the murder of Mrs. McWilliams, and emphasized that:
[T]his is my last chance. This is the state of Mississippi's last chance. This is the relatives of the McWilliams last chance for retribution.
Thus, the state used these photographs in an attempt to get a "second bite of the apple" in its quest for the death penalty for the murder of Nell McWilliams.
Second, the prosecution could not be content with merely introducing the photographs of Nell McWilliams into evidence, but displayed them to the jury during closing argument as part of its "slide show." We deplore this practice. As the West Virginia court noted in Clawson, the effect is to take the pictures far beyond their evidentiary value and use them as a tool to inflame the jury. While our death penalty statute mandates consideration of any factor which may mitigate against the sentence of death, it limits the aggravating circumstances which would warrant the imposition of the death penalty. It is the jury's duty to weigh the permissible aggravating circumstances against any mitigating factors to determine whether the defendant deserves to suffer the death penalty. Just as a lack of evidence taints this process, so does the admission of irrelevant or inflammatory evidence. Color slides of the body of another victim, projected on a screen during
closing argument, are an unnecessary dramatic effect that can only be intended to inflame and prejudice the jury. A sentence of death returned after such an unnecessary and gruesome display must be suspect. We hold that this tactic, combined with others, so prejudiced the jury that Jimbo Stringer did not receive a fair sentencing trial.
V. WAS THE INTRODUCTION OF COPIES OF THE PLEA BARGAINING AGREEMENTS WITH THE COINDICTEES AND THE STATE'S CLOSING ARGUMENT VOUCHING FOR THEIR CREDIBILITY VIOLATIVE OF THE APPELLANT'S RIGHT TO CONFRONT WITNESSES AGAINST HIM, AND DID IT DENY HIM DUE PROCESS AND FUNDAMENTAL FAIRNESS?
After Rhonda Brock testified as to her version of the events which occurred on June 21, 1982, she was extensively cross-examined. The cross-examination covered her relationship with Parker and Medders, her prior employment with an escort service in New Orleans, the inconsistencies between the first and second statements which she made, her prior testimony in the case, and whether she had been arrested and indicted since the crime. During redirect, when counsel for the state began to question Brock about the agreement she had with the state, counsel for the defendant objected. With the exception of deleting a reference in the agreement to a polygraph test, the court overruled the objection, and allowed admission of the agreement. Mike Medders' statement was admitted into evidence during his direct examination.
During closing argument, Mr. Davis, counsel for the state, stated that Medders and Brock had testified truthfully. The objection to that statement was overruled, on the basis that Medders and Brock had testified that their statements were true. Mr. Davis went on to point out to the jury that the court reporter was taking down everything that Medders and Brock said. Later, during Mr. Peters' closing argument, he made the following statement:
If you had the entire Jackson police department to determine whether or not you were lying, if you had the entire district attorney's office to determine whether you were lying, and the best you can do is - as one of them says, they were going to use the bandana to wipe off the finger prints and the other one doesn't, and the best you can do is they were five feet into the house instead of a foot inside the door, then would you believe that person? When legal minds, when courts, when police, when investigators had not been able
to find you in a lie, then would you believe that person?
The appellant argues that this was improper vouching, making the prosecutor a witness against him. The state argues that counsel for the appellant failed to object at trial; however, the record shows that the attorney made an objection to the reference in closing argument that Medders and Brock were testifying truthfully, and later interposed a continuing objection on that ground. Thus, the assigned error was preserved for appeal.
In Cabello v. State, 471 So.2d 332 (Miss. 1985), this Court allowed admission of the agreement to remand the defendant's son's case to the youth court. One of the factors allowing disclosure was that "Defense counsel used the agreement to attack Rico's credibility on cross-examination. Thus the offer by the state and its acceptance by Rico, with its potential for truthfulness or falsehood in his testimony, was placed before the jury for their resolution." Id. at 341. In Cabello, the prosecutor informed the jury of the agreement before the direct testimony of the witness. During cross-examination, defense counsel used the agreement to attempt to impeach the witness's testimony. In this case, the jury was not informed of the agreement between Brock and the state until after her cross-examination. It was not brought out in cross-examination, thus, defense counsel could not have used it to impeach her testimony. At the end of Brock's cross-examination, defense counsel asked her "You have not been indicted, have you? A. No, sir. Q., I guess you know who prosecutes, don't you, Miss Brock? A. Yes, sir." During redirect, counsel for the state noted that question and answer, and then asked Miss Brock about the agreement between her and the state.
This case does not fall squarely under Cabello, because defense counsel did not use the plea bargain agreement in his cross-examination. However, the agreement, as admitted into evidence, does not contain any improper vouching for the witness. It is merely evidence of an agreement between the witness and the state that she will testify truthfully, and, in the event that the state ascertains that she did not testify truthfully, she will be subject to prosecution for perjury. Given the fact that Miss Brock's credibility was attacked during cross-examination, introduction of the agreement showing that she had an incentive to testify truthfully was not improper. The introduction of Medder's statement may be viewed under the same rationale, since it was inevitable that his credibility would also be tested
during cross-examination, as indeed it was.
The closing argument of the prosecutors comes much closer to improper vouching. In United States v. Roberts, 618 F.2d 530 (9th Cir. 1980), the Court reversed a conviction where, during closing argument, the prosecutor said that a police officer was monitoring a government witness' testimony for truthfulness. The court held that "The suggestion is that the prosecutor is forcing the truth from his witness and the unspoken message is that the prosecutor knows what the truth is and is assuring its revelation. Conveying this message explicitly is improper vouching." Id. at 536. In this case, the prosecutors noted that the court reporter was taking down everything that was testified. They also noted that the entire police department and the district attorney's office was available to determine whether the witness was lying. However, the unspoken message in these arguments was not so much that the prosecutor knew what the truth was, but that, if the witnesses were caught in an inconsistency, the district attorney's office would investigate to see if they were lying. Thus, there was no improper vouching in this case.
VI. DID THE PROSECUTOR SYSTEMATICALLY AND INTENTIONALLY ENGAGE IN CONDUCT WHICH EFFECTIVELY DEPRIVED JIMBO STRINGER OF THE USE AT TRIAL OF THE TESTIMONY OF JOHN MACK PARKER, WHO WAS AN EYEWITNESS TO THE CRIME?
Before trial, counsel for the defendant filed a writ of habeas corpus to produce John Mack Parker as a witness for Jimbo Stringer. The state answered that Parker's perjury conviction, which resulted from testimony that he gave during a prior trial, prevented him from testifying. The court held a hearing on the issue, where counsel for the defense argued that the perjury statute was unconstitutional as it applied to Jimbo Stringer, and that the indictment of perjury was void. The state argued that Stringer had no standing to assert those issues, since he was not convicted of perjury. The court took the matter under advisement. During the presentation of the defense's case, the court advised the attorneys that it would allow Parker to testify. Counsel for the defendant made the following response: "We talked about that and considered it for some three or four hours and finally came to the decision that we did not want to call him." Jimbo Stringer now argues that the failure to call Parker was induced by the perjury conviction, which rendered him unsuitable as a witness.
The right to examine Parker was not withheld by the court, but was precluded by the decision of the
defendant's attorneys. Thus, Jimbo Stringer is procedurally barred from raising this issue on appeal. If that were not the case, this assigned error might well mandate the reversal of this case. The prosecution's maneuverings were obviously intended to prevent Stringer from exercising his fundamental right to call witnesses on his behalf. We hope that this situation will not arise in the future.
VII. WAS THE APPELLANT'S SENTENCE OF DEATH FOR THE KILLING OF RAY McWILLIAMS DISPROPORTIONATE CONSIDERING HIS MINOR ROLE IN THE CRIME AND THE OVERWHELMING MITIGATING CIRCUMSTANCES?
Miss. Code Ann. 99-19-105 (Supp. 1985) requires this Court to review the imposition of the death penalty with regard to whether the sentence was proportionate to the penalty imposed in similar cases. The Court is required to consider both the crime and the defendant. Because we reverse the death penalty in this case on other grounds, it is not necessary to consider this assignment of error.
VIII. WAS THE SENTENCING HEARING FOR JIMMY STRINGER FOLLOWING HIS CONVICTION FOR THE MURDER OF MR. McWILLIAMS A VIOLATION OF THE DOUBLE JEOPARDY AND DUE PROCESS PROVISIONS OF THE MISSISSIPPI AND UNITED STATES CONSTITUTIONS?
After his conviction for the murder of Mrs. McWilliams, Jimbo Stringer received a sentence of life imprisonment, as the jury could not agree on a punishment. He now argues that that verdict precludes him from receiving the death sentence for the murder of Mr. McWilliams. According to Stringer, the verdict in the first case means that the jury did not find that the death penalty was appropriate for the killing of Mrs. McWilliams. He has assumed that the jury in the second case based its death penalty on the murder of Mrs. McWilliams, which was his primary participation in the murder of Mr. McWilliams. This assumption is based on the "rational jury test" of Ashe v. Swenson, 397 U.S. 436 90 S. Ct. 1189, 25 L.Ed.2d 469 (1970) and Sanders v. State, 429 So.2d 245 (Miss. 1983). He asserts that the finding of the first jury that the death sentence was not mandated for the killing of Mrs. McWilliams is a factual finding that may not be relitigated in his second trial. Thus, his claim is not so much under the double jeopardy provision as under a theory of collateral estoppel.
Where the jury does not impose the death penalty, it is not required to enumerate its factual findings. Therefore, a failure to ...