DAN M. LEE, JUSTICE, FOR THE COURT:
This capital murder appeal arises out of the murder of a Rankin County man as his wife watched, horrified. The Defendant, sentenced to die, has presented a great number of challenges to the legality of his conviction and sentence. We have considered these with great care, and, for the reasons set forth below, reject them all. We affirm.
During the early morning hours of December 13, 1985, Lockett arose and, carrying a .32 caliber pistol and a .22 caliber rifle, walked through the woods to the home of Mr. and Mrs. John Calhoun in Rankin County. Longtime residents of the small Puckett community, the Calhouns lived with their two teenage sons a short distance from the home Lockett shared with his brother and sister.
Lockett crept up toward the back of the Calhoun house and waited until he saw John Calhoun and his two sons leave. He then walked to the carport and, believing that Calhoun would return soon, walked through the door into the house. On seeing Mrs. Calhoun seated watching television, Lockett grabbed her and forced her through the various rooms of the house, "looking for things."
Shortly thereafter Mr. Calhoun returned and drove his car into the driveway. Lockett hid behind the door and responded to Mrs. Calhoun's pleas for mercy with an order for her to "be quiet." As Mr. Calhoun walked through the front door, Lockett launched a volley of gunfire from the .32 pistol. Although Mr. Calhoun was struck by the first shot, Lockett fired 3-4 more times.
It was stipulated at trial that John Calhoun was killed, as his wife watched, by three .32 caliber gunshot wounds to the left chest, right chest and back. It was further stipulated that the bullets came from a gun matching the type seized in a later search of Lockett's bedroom.
Despite Mrs. Calhoun's pleas that he go ahead and kill her at the house rather than force her to leave with him, Lockett forced her to remove her dead husband's wallet, grabbed her and marched her to her car. He took the credit cards from John Calhoun's wallet and drove Mrs. Calhoun to a nearby abandoned egg house owned by Lockett's grandmother. Mrs. Calhoun was executed by Lockett's two rifle shots to her head. *fn1 The defense stipuled that Mrs. Calhoun's wounds were inflicted by a .22 caliber rifle of the type removed from the defendant's bedroom during the later search. Thereafter, Lockett stripped the Calhouns' car, hid the car parts in the egg house, and walked back through the woods to his house. Once there, he hid the guns and credit cards and went to sleep.
John Calhoun's body was found by his brother within an hour or two of the killing. An intensive investigation followed involving bloodhounds. Later that same day, officers found Mrs. Calhoun's body, the stashed car parts, and the abandoned car. Officers also recovered from the egg house a spiral composition book bearing the name of Carl Lockett. Further development of leads led authorities to obtain a warrant and search Lockett's room, a search which uncovered both murder weapons (which had been stolen in earlier community burglaries), John Calhoun's credit cards and a blank check bearing the Calhoun name.
Thereafter, Lockett was taken into custody. After waiving his rights at the Rankin County Sheriff's office, Lockett confessed. Subsequently, another waiver was made and Lockett tendered a complete tape-recorded account of the crime.
Lockett was indicted in the Circuit Court of Rankin County for the murder of John Calhoun. Following a change of venue, he was tried in Circuit Court in Pascagoula, Mississippi. On April 2, 1986, a jury convicted Lockett of the capital murder of John Calhoun and sentenced him to death. Lockett filed the usual post-trial motions, which were all denied. Lockett appeals assigning the following errors:
(1) The admission of evidence seized pursuant to an invalid warrant that was issued by a partial magistrate and was never served upon the occupant of the house searched, and pursuant to a warrantless arrest within his house, violated Lockett's rights under the Fourth Amendment.
(2) The confessions introduced against Lockett at trial were both involuntary and the fruit of the illegal search, seizure and arrest.
(3) When Lockett was brought into the courtroom before the jury in shackles, he was denied his right to due process.
(3A) The introduction throughout both phases of Lockett's trial of evidence and argument concerning a distinct crime of murder, and other crimes, deprived Lockett of his rights under the constitutions of this state and of the United States.
(4) The State's abuse of its peremptory challenges to exclude all the blacks from Lockett's jury deprived him of his right to a representative jury and to due process of law.
(5) The impartiality of the venire selected to try Lockett was reasonably questioned when it became apparent that there were many close associates of law enforcement on it.
(6) The charge of capital murder was unacceptably duplicitous, a fault uncured by the jury verdict.
(7) The submission to the jury of the aggravating circumstance alleging the commission of a murder in the course of a burglary, robbery and/or a kidnapping denied Lockett his constitutional rights.
(7A) The trial court erred in submitting to the jury the
aggravating circumstance of a murder committed while under sentence of imprisonment.
(8) The submission of the aggravating circumstance of heinous, atrocious and cruel denied Lockett his rights under the constitutions of this state and the United States.
(9) The submission of the aggravating circumstance of pecuniary gain constituted double jeopardy, and failed meaningfully to narrow the class of persons eligible for the death sentence.
(10) The instructions at the penalty phase deprived Lockett of his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Mississippi law.
(11) The prosecution committed misconduct that rendered Lockett's trial fundamentally unfair.
(13) The excusal of venireperson Crear without the showing of predisposition against the death penalty required in Fuselier v. State cannot be squared with Lockett's constitutional rights.
(14) The imposition of the death penalty upon a person who does not intend to commit murder violates the Eighth Amendment to the United States Constitution.
(15) The death sentence imposed upon Lockett is disproportionate and was the consequence of emotion and caprice.
THE ADMISSION OF EVIDENCE SEIZED PURSUANT TO AN INVALID SEARCH WARRANT THAT WAS ISSUED BY A PARTIAL MAGISTRATE AND WAS NEVER SERVED UPON THE OCCUPANT OF THE HOUSE SEARCHED, AND PURSUANT TO A WARRANTLESS ARREST WITHIN HIS HOUSE, VIOLATED LOCKETT'S RIGHTS UNDER THE FOURTH AMENDMENT.
Lockett first challenges the legality of the search warrant through which evidence was obtained and used against him. On the day following the incident, Officers Craft and McCrory and Investigator Burnham went to the Lockett home. When they arrived, Yancey Lockett, Carl's brother, refused to let them search the home. Officer McCrory then called Justice
Court Judge Billy Ray Brown and asked him to come to the scene and give them a search warrant. *fn2 When Judge Brown arrived at the scene, he swore in the officers and they supplied him with a written affidavit and oral statements to establish probable cause. Based on this information, Judge Brown issued a search warrant for the Lockett home.
Lockett challenges the legality of the warrant on several grounds, the first two being lack of a neutral and detached issuing magistrate and lack of probable cause. Additionally, Lockett argues the warrant was deficient in several material respects, including the scope of the search and formal service of the warrant. Each of Lockett's challenges will be addressed separately along with the pertinent facts.
A. Neutral and Detached Magistrate
Lockett challenges Justice Court Judge Brown's role as a neutral and detached magistrate, alleging that the judge participated in the investigation of the crime so as to be nothing more than a mere "rubber stamp" for the police. See McCommon v. State, 467 So.2d 940, 942 (Miss.1982), cert. den. 106 S.Ct. 393, 88 L.Ed.2d 345 (1985). Specifically, Lockett contends that Judge Brown remained on the scene for a long period, took Yancey in handcuffs to find Carl, appeared on television when he returned to the scene, and finally delivered Yancey to jail, driving in the convoy of law enforcement officers. Lockett contends that the aggregate effect of these actions made a biased issuing magistrate.
The State contends that these facts bear out that Judge Brown acted in a neutral and detached capacity. *fn3 Acknowledging that Brown met the officers at the scene, the state submits that the mere presence of the judge at Lockett's home does not per se taint issuance of a warrant. See Raines v. State, 288 S.E.2d 626, 628 (Ga.App.1982); U. S. v. Duncan, 420 F.2d 328 (5th Cir.1970). Further, the State argues that Brown's activities after issuing the warrant on the scene did not destroy his neutral capacity. Specifically, the State points to Judge Brown's testimony where he testified that after issuing the warrant, he backed his car away from the house and never entered the house nor observed any items recovered from the search. He did not conduct a formal inventory of the seized items until two days later. Brown also testified that while he sat in his car, Yancey asked if he could sit in the car with him. Brown then testified that once Yancey was in the car, Yancey told the judge he knew where Carl was. They drove to where Yancey had indicated, but failed to find Carl. Thereafter, Brown drove Yancey to the Sheriff's office and went home.
Under both federal and state constitutional guidelines, a central requirement for a valid search warrant is that it must be issued by a neutral and detached magistrate. Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326, 99 S.Ct. 2319, 2324, 60 L..Ed.2d 920, 928 (1979); Shadwick v. City of Tampa, 407 U.S. 345, 350, 92 S.Ct. 2119, 2123, 32 L.Ed.2d 783, 788 (1972); shireCoolidge v. New Hampshire, 403 U.S. 443, 449, 91 S.Ct. 2022, 2029, 29 L.Ed.2d 564, 573 (1971); Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436, 440 (1948); Annot., Requirement, Under Federal Constitution, That Person Issuing Warrant For Arrest or Search Be Neutral and Detached Magistrate - Supreme Court Cases, 32 L.Ed.2d 970 (1973 and Supp.1986); McCommon v. State, 467 So.2d 940, 942 (Miss.1985); Birchfield v. State, 412 So.2d 1181, 1183 (Miss. 1982). Certainly substantial involvement in the search is forbidden. See Lo-Ji, 442 U.S. at 328, 99 S.Ct. at 2325, 60 L.Ed.2d at 929-30; Thomason v. State, 251 S.E.2d 598, 599 (Ga.App.1978). However, a magistrate who goes to the scene, issues a warrant and remains there for some time does not abdicate his proper position. Pressel v. State, 292 S.E.2d 553, 556 (Ga. 1982); see also Rains, 288 S.E.2d at 628; LaFave Search and Seizure 4.2(d) (2d ed.1987).
The role of a justice court judge issuing a search warrant was addressed by a majority of this Court and expounded upon by three Justices in a concurrence in McCommon v. State, 467 So.2d 940, 942-45 (Miss.1985). The import of both of these opinions is that a justice court judge be just that - a judge. He should always be impartial, and not favor either law enforcement officials or the accused. The determining factor, then, is the magistrate's degree of involvement in the actual search. Here, nothing in the record indicates Judge Brown acted in a biased manner when he actually issued the search warrant. Instead, the record bears out the trial judge's determination that "Judge Brown was an objective, independent and detached magistrate throughout these proceedings," rendering the warrant only after "examining the affidavit, attached sheet, and hearing the oral testimony of the officers. . . ." Therefore, this Court rejects Lockett's argument.
B. Bias Due To Pecuniary Gain
Lockett also contends that since Judge Brown receives ten dollars for each affidavit he signs, and this amount is paid to the fund from which his salary is paid, his wealth is dependent upon how many affidavits he signs.
The state correctly points out that Miss. Code Ann.
25-3-36 (Supp.1986) sets a fixed salary for each Justice Court Judge. Moreover, Miss. Code Ann. 25-7-25 (Supp.1986) does not provide any collectible fee for the issuance of search warrants. Lockett's argument is without merit.
Lockett next challenges the warrant alleging that it lacks probable cause. Lockett's contention is simply that Judge Brown lacked sufficient facts to establish probable cause to issue the search warrant. Lockett emphasizes that according to Judge Brown's testimony, the written affidavit was the sole basis for issuing the warrant.
The state argues that the written affidavit coupled with the oral testimony by the officers was sufficient to establish a reasonable belief that a crime had been committed.
In Lee v. State, 435 So.2d 674, 676 (Miss.1983) this Court adopted the "totality of the circumstances" test for determining whether probable cause exists to issue a search warrant. This test was formulated by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548 (1983) as follows:
The task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
This Court has continually adhered to this standard since its adoption in Lee. *fn4
This Court's standard of review is to determine whether there was a substantial basis for the magistrate's determination of probable cause. Massachusetts v. Upton, 476 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984) Harper, 485 So.2d 1064 (Miss.1986). In so doing, we point out that written affidavits may be supplemented with sworn oral testimony of officers to establish probable cause. Hester v. State, 463 So.2d 1087, 1089 (Miss.1985); Lee v. State, 435 So.2d 674, 677 (Miss.1983); Read v. State, 430 So.2d 832, 834-35 (Miss.1983); Wilborn v. State, 394 So.2d 1355, 1357 (Miss.1981); Prueitt v. State, 261 So.2d 119, 123 (Miss.1972); see also Stringer v. State, 491 So.2d 837, 845 (Miss.1986)
(Robertson, J., concurring); Accord Drane v. State, 493 So.2d 294, 299 (Miss.1986).
Here, Judge Brown testified that after swearing in the officers, he based his probable cause determination on the written affidavit. Officers Craft and McCrory and Investigator Burnham testified that they were sworn in by Judge Brown, and that they provided him with oral statements in addition to the written affidavit to establish probable cause. The written affidavit read as follows:
I Ernest Burnham, Cecil McCrory and Hulon Craft respectfully request that a search warrant be issued to us on the following information. On 12-13-85 two murders were committed. Also an automobile belonging to the victims was stolen. The vehicle was recovered the same day but had been stripped of the radio, sun visors, speakers, jack, cassette tapes and maybe other items.
The following day, 12-14-85, these items were found in an old abandoned egg house. Also in the house, papers and books were found with people's names and addresses on them. One of the names on a book was Carl D. Lockett. We decided these people should be talked to. Hulon Craft knew Carl Lockett and took Sheriff Lloyd Jones to Lockett's home to talk to him and to see if the subject would give us permission to search the premises for two guns that could have been used in the killing, and find out why his belongings were in the egg house.
Upon arrival, Carl was not at home and his brother Yancey Lockett would not give permission to search the residence. Yancey said that he only occupied one room of the house and could not give permission to search.
Myself and Deputy Cecil McCrory went to the Lockett residence. I talked to Yancey and he advised me of the same thing that he told Sheriff Jones and Hulon Craft. Meanwhile I had told Cecil McCrory to radio the Sheriff's office and get
Judge Bill Ray Brown to come down, that we would need a search warrant.
After about 25 minutes Judge Brown arrived.
To get to the Lockett residence from Puckett, Mississippi, go north on Highway 18 a short distance and turn right on Warren Hill Road. Then go on up road to a white frame church building and turn left on Warren Hill Place. Then go .8 of a mile to brown and yellow frame house on right. The address is 194 Warren Hill Place, Brandon.
Additionally, Burnham gave Judge Brown oral statements consisting of facts known by him, Craft and McCrory which led them further to believe that they had probable cause to obtain a warrant to search Carl's home. These facts consisted of:
1. Matching footprints found at the scene where the car was found, near Lockett's home, and behind the Calhouns' home.
2. Bloodhounds searching the egg house where items from the Calhouns' car was found led in the direction of Carl's home.
3. Confidential information about burglaries in the area linked to Carl.
4. Guns of the type used in the murder of the Calhouns had been stolen in several house burglaries in the area.
5. Carl's past record (Texas conviction and use of marijuana).
6. Egg house in which items from Calhoun's car were found was owned by Carl's grandmother.
7. Mrs. Calhoun's body was found in a chicken house owned by Carl's grandmother, which was located near both the Calhoun
We hold that the affidavit and the facts established a "substantial basis" for Judge Brown's determination that probable cause existed. We find Lockett's argument without merit. D. Scope of The Search Warrant
Lockett next contends that the searching officers went beyond the scope of the warrant when they searched for additional evidence after finding the guns in his bedroom. Specifically, Lockett argues that the officers found the guns early in the search and then "rummaged about" for further evidence. Lockett points to the discovery of credit cards found behind a wall plaque, contending that it was unreasonable to believe that guns could be found in such a place.
The State first contends that Lockett waived his right to argue this claim on appeal because he failed to raise it at trial. Further, the State argues that there is no evidence, contrary to Lockett's contention, that the guns were found early in the search, and that the officers had no way of knowing how many guns Lockett had in his possession. Therefore, the right to search was not extinguished by discovery of the two guns. The question then becomes whether or not the items outside the description of the warrant were seized during the course of a lawful search. Garland v. Maggio, 717 F.2d 199 (5th Cir.1983) stands for the proposition that where an officer possesses a warrant to search for specified objects and during that search comes across other incriminating articles, those articles are seizable despite their absence from the warrant. Further, "property which has a sufficient nexus to the crime being investigated may be seized at the time officers are properly executing a warrant authorizing a search for other items." Id. at 206, United States v. Kane, 450 F.2d 77, 85 (5th Cir.1971).
The search warrant described the items sought as the guns that was [sic] used in the murder of Mr. and Mrs. John Calhoun.
Early in our criminal jurisprudence, we required strict adherence to the constitutional principle that a search warrant must specifically designate the place to be searched and the person or thing to be seized. Miss. Const. Art. III, 23 (1890); Fatimo v. State, 134 Miss. 179, 98 So. 537 (1924), Cofer v. State, 152 Miss. 761, 118 So. 613 (1928). However, the long-standing exception to this general rule is that if the searching officers are lawfully on the premises with a
valid search warrant, and they find contraband in plain view, then seizure of the contraband is lawful. Hall v. State, 455 So.2d 1303, 1307 (Miss.1984); Issacks v. State, 350 So.2d 1340, 1344 (Miss.1977); Prueitt v. State, 261 So.2d 119, 124-25 (Miss.1972); Williams v. State, 216 Miss. 158, 168, 61 So.2d 793, 797 (1953); Cofer, 152 Miss. at 770, 118 So. at 615; see also Caldwell v. State, 194 So.2d 878, 881 (Miss.1967) (incriminating box found in plain view outside trailer pursuant to specific provision in warrant authorizing seizure of contraband in addition to property described was lawfully seizable); Reynolds v. State, 136 Miss. 329, 345, 101 So. 485, 487 (1924) (officers who were legally in residence pursuant to warrant authorizing search for intoxicating liquors and saw still, could legally seize still). Indeed, the Cofer Court recognized this exception. See Cofer, 152 Miss. at 770, 118 So. at 615.
In two cases, this Court has gone beyond the aforementioned exception, holding that where officers are lawfully on the premises, "articles of evidence connected with another offense are subject to seizure although not described in the search warrant." Salisbury v. State, 293 So.2d 434, 437 (Miss.1974); Gann v. State, 234 So.2d 627, 628-29 (Miss.1970). Finally, in interpreting Section 23, this Court has held "descriptions in a search warrant need not be positively specific and definite, but are sufficient if the places and things to be searched are designated in such a manner that the officer making the search may locate them with reasonable certainty." Cole v. State, 237 So.2d 443, 445 (Miss. 1970).
The identical specificity requirement for search warrants in Miss. Const. 23 is found in the Fourth Amendment to our Federal Constitution. See Maryland v. Garrison, 480 U.S. ___, 107 S.Ct. 1013, 1017, 94 L.Ed.2d 72, 80 (1987); U.S. Const. Amend.IV. However, strict application of the specificity requirement in the Federal Constitution has been softened by the plain view exception recognized by the United States Supreme Court. See Texas v. Brown, 460 U.S. 730, 736-37, 103 S.Ct. 1535, 1540, 75 L.Ed.2d 502, 510 (1983) (plurality); Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S.Ct. 2022, 2937, 29 L.Ed.2d 564, 582 (1971) (plurality); Annot., Validity of Seizure Under Fourth Amendment "Plain View" Doctrine Supreme Court Cases, 75 L.Ed.2d 1018 (1985). In addition to the plain view exception, "property which has a sufficient nexus to the crime being investigated may be seized at the time officers are properly executing a warrant authorizing a search for other items." Garland v. Maggio, 717 F.2d 199, 206 (5th Cir.1983); United States v. Kane, 450 F.2d 77, 85 (5th Cir.1971); United States v. Gentry, 642 F.2d 385, 387 (10th
The search warrant in the instant case provided that searching officers were to search for "guns . . . used in the murder of Mr. and Mrs. John Calhoun." But, if the officers were lawfully on the premises, which they were, then any contraband found in plain view could lawfully be seized. In the course of searching for the guns the officers were entitled to make reasonable inspection of places where the guns may have been hidden. A wall plaque may well conceal a space within a wall where such items may be hidden.
We hold that the officers were lawfully on the premises, that they had the authority to take such reasonable actions as looking behind a wall plaque, and that the credit cards were lawfully seized.
E. Was The Warrant Served On Yancey?
Lockett next urges that Yancey was never served with the warrant for the guns. Instead, he argues that Yancey was served with a warrant for marijuana. Lockett points to Yancey's testimony to establish this claim. Yancey testified that he received the marijuana warrant, not the gun warrant. Lockett also points to the fact that defense counsel had never seen the gun warrant prior to trial as evidence that the marijuana warrant had been the only one issued to Yancey. Finally, Lockett argues that the trial court was even uncertain whether the correct warrant had been issued.
The state simply points to the return on the gun warrant as solid evidence that the warrant was issued to Yancey. Further, the state argues that even if the correct warrant was not served on Yancey, that fact alone would not invalidate the search.
When Judge Brown arrived on the scene, he gave Officer Craft a warrant for marijuana. Officer Craft indicated to Judge Brown that he needed a warrant for stolen goods, not marijuana, and gave the marijuana warrant back to Brown. Brown then issued a warrant for stolen property (guns). Judge Brown testified that he issued the gun warrant to the officers. Indeed, the return on the gun warrant clearly indicates the warrant was served on Yancey. The officers testified that they served the warrant on Yancey as well. As indicated by the trial judge
. . . the testimony of the officers and Officer Craft's return establishes that the warrant was properly served prior to
The return coupled with the officers' testimony refutes Yancey's testimony that he was served with the marijuana warrant instead of the gun warrant. Indeed, this is a matter of conflicting testimony, coupled with clear documentary evidence, and it does not appear that the trial judge's holding based on such evidence was manifestly wrong.
F. Was Warrantless Arrest In House Illegal?
Lockett contends that the officers should have obtained a warrant for his arrest before arresting him in his home. In support of this proposition, he cites Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), contending the Supreme Court held that in the absence of exigent circumstances the authority to make a warrantless arrest dissolves on the threshold of the home.
The state argues that Payton forbids the warrantless entry into a suspect's home for the purpose of effecting an arrest as opposed to the warrantless arrest of the suspect. Further, the state cites Hanner v. State, 465 So.2d 306 (Miss.1985) for the proposition that an officer may make an arrest for a felony on probable cause based on a two prong determination that (1) a felony has been committed and (2) there is reason to believe the person named in the warrant or suspected by the officer committed the felony.
Miss.Unif.Crim.R.Cir.Ct.Prac. 1.02 provides guidelines warrantless arrests. The rule provides, in pertinent part, that
An officer may arrest any person without a warrant under the following circumstances: . . . (3) When the officer has reasonable grounds to believe a felony has been committed and the person proposed to be arrested committed it.
Miss.Unif.Crim.R.Cir.Ct.Prac. 1.02. Recently in Jones v. State, 481 So.2d 798, 800-01 (Miss.1985), this Court applied Rule 1.02 and noted that Mississippi case law supported the rule. See Jones, 481 So.2d at 800 (cases cited therein). Further, the Court cited Swanier v. State, 473 So.2d 180 (Miss.1985) as recognizing the appropriate inquiry for determining whether officers have reasonable grounds or probable cause justifying a warrantless arrest:
The existence of "probable cause" or
"reasonable grounds" justifying an arrest without a warrant is determined by factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The determination depends upon the ...