Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

JOHN EARL BOOKER v. STATE OF MISSISSIPPI

MAY 13, 1987

JOHN EARL BOOKER
v.
STATE OF MISSISSIPPI



EN BANC

WALKER, C.J., FOR THE COURT:

This case was previously before this Court in Booker v. State, 449 So. 2d 209 (Miss. 1984) wherein the appellant's conviction of capital murder, arising out of the death of Mr. O. M. Martin, and sentence of death were affirmed. His petition for rehearing was denied on April 18, 1984. Thereafter, the appellant petitioned the United States Supreme Court for a writ of certiorari. The petiton was denied October 1, 1984. However, on petition for rehearing the United States Supreme Court granted certiorari and entered its order on July 25, 1935, vacating the judgment of this Court and remanding the cause to us for further consideration in light of that Court's decision in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).

The facts are set out at length in Booker, supra, and is not necessary that we restate them here.

 The central issue on remand from the United States Supreme Court is whether the prosecutorial comments concerning appellate review made on voir dire and in closing argument

 constitute such error as to deprive the appellant of a fair trial in light of the United States Supreme Court's decision in Caldwell, supra. The following statements were made during voir dire:

 COUNSEL FOR DEFENDANT (Mr. McDowell): There is no such person. Okay. Is there anybody who does not understand that if the death penalty is recommended here that death is final, and there is no chance for a reversal or anything once that's been implemented? Do you understand the question? Do each of you understand that death is the ultimate penalty and that once it is carried out, there is no way to undo that decision?

 This statement prompted the prosecutor to object, citing automatic appellate review as his grounds:

 ASSISTANT DISTRICT ATTORNEY (Mr. Williams): Now, if the Court please, I object to that. There's an automatic appeal. I think that's highly misleading to this Jury panel.

 The objection was sustained by the Court.

 Thereafter, in closing argument the defense counsel raised the issue of appellate review by stating to the jury the following:

 We are asking you not to put the State of Mississippi, the families of both these parties, through all of these remaining suffering that are sure to come from indefinite appeals. Now, we know the stories of death penalties. It is one appeal after another. it uses State money again and again and again. You know it goes on and on and on. You know when the last time someone was executed in Mississippi.

 The State later replied in response as follows:

 Your decision is not a hard decision as Mr. McDowell would have you believe. You're not sentencing this man to die and his going to be taken out of here for public execution. Mr. McDowell knows that. Yours is not the final say. He mentioned the prolific appeals that follow. That's true. He mentioned the last execution in this State - 1968. So, your job is not to kill a person. Your job is to prescribe punishment, whether it is ever administered or not.

 On remand, the appellant contends defense counsel did not have an opportunity to object when the State first mentioned appellate review on voir dire. He further argues that as the prosecutorial comment occurred during the course of the prosecutor's objection that defendant obviously could not and did not need to lodge his own separate objection. He further argues that after the trial judge sustained the State's objection he ordered defense counsel to move on, foreclosing ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.