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SEPTEMBER 23, 1987





The Court considers this case today upon remand to the Supreme Court of Mississippi after the United States Supreme Court granted a petition for writ of certiorari. Richard Gerald Jordan, Petitioner v. Mississippi, 106 S.Ct.

 1942 (1986). The U. S. Supreme Court vacated the judgment imposing the death penalty upon Jordan and remanded to this Court for further consideration in the light of Skipper v. South Carolina, 476 U.S. ___, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986).

 Richard Gerald Jordan was first tried and found guilty on July 21, 1976, for the capital murder of Mrs. Edwina Marter. The conviction was prior to the decision in Jackson v. State, 337 So.2d 1242 (Miss. 1976), which provided guidelines and bifurcated trials in capital murder cases. The lower court granted a motion for new trial under the precedents of Jackson and Jordan was tried, convicted and sentenced to death a second time. The conviction and sentence were affirmed in Jordan v. State, 365 So. 2d 1198 (Miss. 1978). Subsequently, the United States Fifth Circuit Court of Appeals vacated the sentence on habeas corpus petition and remanded for another sentencing hearing, holding that under Godfrey v. Georgia, 446 So.2d 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), the instructions of the trial court failed to channel the sentencer's discretion by clear and objective standards and did not provide specific and detailed guidance.

 A new sentencing hearing was held by the Circuit Court of Harrison County, Mississippi, First Judicial District, and the jury imposed the death penalty on Jordan April 29, 1983, being the third time Jordan had been sentenced to death. That death sentence was affirmed by this Court January 30, 1985, and rehearing was denied March 13, 1985. Jordan v. State, 464 So.2d 475 (Miss. 1985). Appellant then filed a petition for writ of certiorari with the United States Supreme Court on May 13, 1985, citing three grounds for relief. One such ground was sustained and follows:

 1. Whether, in a capital sentencing proceeding, exclusion of virtually all evidence of a defendant's socially useful behavior while in prison and other mitigating evidence is consistent with Lockett v. Ohio, 438 U.S. 586 (1978), and the requirement of individualized sentencing.

 In Skipper, following the introduction by the State of evidence in aggravation of the offense, petitioner presented as mitigating evidence his own testimony and that of his former wife, his mother, his sister and his grandmother. Testimony, for the most part, concerned the difficult circumstances of his upbringing. Petitioner and his former wife, however, both testified briefly that petitioner had conducted himself well during the 7-1/2 months he spent in jail between his arrest and trial, and petitioner further testified that

 during a prior period of incarceration he had earned the equivalent of a high school diploma and that, if sentenced to life imprisonment rather than to death, he would behave himself in prison and would attempt to work so that he could contribute money to the support of his family. In addition, he sought to introduce testimony of two jailers and one regular visitor to the jail to the effect that petitioner had made a good adjustment during his time spent in jail. The South Carolina trial court ruled that under the decision of the South Carolina Supreme Court in State v. Koon, 278 S.C. 528, 298 S.E.2d 769 (1982), such evidence would be irrelevant and inadmissible.

 The U. S. Supreme Court stated the following:

 Accordingly, the only question before us is whether the exclusion from the sentencing hearing of the testimony petitioner proffered regarding his good behavior during the over seven months he spent in jail awaiting trial deprived petitioner of his right to place before the sentencer relevant evidence in mitigation of punishment. It can hardly be disputed that it did. The State does not contest that the witnesses petitioner attempted to place on the stand would have testified that petitioner had been a well-behaved and well-adjusted prisoner, nor does the State dispute that the jury could have drawn favorable inferences from this testimony regarding petitioner's character and his probable future conduct if sentenced to life in prison. Although it is true that any such inferences would not relate specifically to petitioner's culpability for the crime he committed, see Koon I, supra, at 536, 298 SE2d, at 774, there is no question but that such inferences would be" mitigating "in the sense that they might serve" as a basis for a sentence less than death. "Lockett, supra, at 604, 71 L Ed 2d 1, 102 S.Ct. 869. Consideration of a defendant's past conduct as indicative of his probable future behavior is an inevitable and not undesirable element of criminal sentencing:" any sentencing authority must predict a convicted person's probable future conduct when it engages in the process of determining what punishment to impose. "Jurek v. Texas, 428 US 262, 275, 49 L Ed 2d 929, 96 S.Ct. 2950 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). The Court has therefore held that evidence that a defendant would in the future pose a danger to the community if he were not executed

 may be treated as establishing an" aggravating factor "for purposes of capital sentencing, Jurek v. Texas, supra; see also Barefoot v. Estelle, 463 U.S. 880, 77 L Ed 2d 1090, 103 S.Ct. 3383 (1983). Likewise, evidence that the defendant would not pose a danger if spared (but incarcerated) must be considered potentially mitigating. Under Eddings, such evidence may not be excluded from the sentencer's consideration.

 476 U.S. at ___, 106 S.Ct. at 1771, 90 L.Ed.2d at 6-7. See also Dutton v. Brown, 812 F.2d 593, 600-602 (10th Cir. 1983).

 During the sentencing phase of the trial, Jordan introduced testimony in mitigation from sixteen (16) witnesses in addition to his own testimony. Of those sixteen people, six (6) were family members, five (5) were friends, three (3) were jail inmates and prison chaplains, a prison guard and a pathologist. They testified to his life during childhood and boyhood, as a husband and father, engaging in sports, as a church member. All of the testimony was favorable and praiseworthy of the appellant. Lucius Brown, a prison guard, testified that he had ...

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