ROY NOBLE LEE, CHIEF JUSTICE, FOR THE COURT:
Samuel Tony West has appealed from a conviction of capital murder and judgment imposing the death penalty, entered in the Circuit Court of Warren County, Honorable John E. Ellis, presiding, and assigns ten (10) errors in the trial below. We reverse and remand the case for a new trial on both the guilt phase and the sentencing phase.
This is the second appearance of this case before the Mississippi Supreme Court. After the first trial and imposition of the death penalty, this Court reversed and remanded the case to the lower court because the State presented evidence of two murders committed in Georgia previous to the robbery/murder of Kirby Phelps in Warren County, Mississippi, and the introduction at the sentence phase of Georgia convictions, which recited that West had been found guilty of capital murder and sentenced to be executed. See West v. State, 463 So. 2d 1048 (Miss. 1985). The facts of the homicide are reported in West v. State, supra, and we relate only such facts as will render a coherent understanding of the case presently before us.
On December 13-14, 1982, Tony West and Kenneth Avery Brock drove from Chattooga County, Georgia, on Interstate Highway 20 west through Alabama into Mississippi and Warren County. They stopped at Bovina, Warren County, in a rest area and went to sleep. The next morning on December 15, 1982, West and Brock awakened and saw a brown Toyota automobile parked nearby. Inside was 26-year-old Navy Lt. Kirby Phelps, who also had stopped at the Bovina rest area and was asleep.
West and Brock were out of money and needed different transportation from the jeep in which they were traveling. They went to the Toyota, awakened Phelps, and, at gunpoint, handcuffed him with cuffs taken in Georgia. While Brock searched the Toyota for valuables, West took Phelps and, with the pistol pointed at him, walked two hundred to three hundred yards into woods adjoining the rest area. During that time, West shot Phelps three times in the head, killing him, and left his body in the wooded area. Later that day, Civil War relic hunters discovered Phelps' body and reported it to the Warren County sheriff.
West and Brock drove on Interstate 20 into Louisiana, where they abandoned the jeep, but continued in the stolen Toyota to Austin, Texas. There they pawned the stereo system, a camera and cassette tapes found in the automobile. They parted ways, and West drove the Toyota eastward back to his hometown of Chattanooga, Tennessee, and, on December 25, 1982, voluntarily surrendered to police. *fn1
THE INVOLVEMENT OF THE TRIAL JUDGE IN THE CASE FOR THE PROSECUTION.
Appellant contends that the trial judge was actively involved in the case on behalf of the prosecution, conducted by District Attorney Frank Campbell, and that the appellant did not receive a fair trial because of the aggressive assistance of the trial judge on behalf of the prosecution. We set out a sample of the record in considering this assigned error.
CROSS-EXAMINATION OF APPELLANT IN THE PRESENCE OF THE JURY, DURING THE SENTENCING PHASE:
Q. All right. Do you affirm or do you deny
that you told that to Sheriff McConnell on December the 25th of 1982?
A. I am saying that I am telling the truth. I walked him in the woods. Me and him had conversation while we was walking.
BY MR. CAMPBELL: The Court's indulgence just one second.
(Whereupon a brief pause was had.)
BY THE COURT: What was the extent of the conversation you had? Were you in front of him, beside him or behind him?
BY THE WITNESS: I guess at this time -
BY MR. KIRKSEY: (Interposing) Your Honor, I believe the witness has already answered that in his direct examination from counsel.
BY MR. DeLAUGHTER: Your Honor, we further object to the Court conducting an examination of the witness in the presence of the jury. The district attorney is -
BY THE COURT: (Interposing) Well, he is leaving something blank here. He said he had conversation -
Q. Every shot you ever fired at Kirby Phelps, he was facing you.
BY MR. DeLAUGHTER: Objection, Your Honor.
BY MR. CAMPBELL: (Interposing) Not being able to -
BY MR. DeLAUGHTER: (Continuing) No, I object to any question I deem proper and the Court can rule on it, Mr. Campbell.
BY THE COURT: The objection is overruled.
BY MR. DeLAUGHTER: I haven't even stated my grounds, Your Honor. You don't want to hear my grounds?
BY THE COURT: He is on cross examination. Would you approach the bench and assign your grounds. Approach the bench and assign your grounds.
BY MR. KIRKSEY: Approach the bench and assign your grounds.
BY THE COURT: But I don't want speaking that would guide a witness on how to give an answer. So state your grounds -
Q. And where did that happen?
Q. Okay. I know, but where?
BY MR. DeLAUGHTER: Your Honor, we object.
BY THE COURT: Ask him where or when? It could have been two hours earlier.
Q. Okay. When and where and from whom were you -
BY THE COURT: Not when, where and whom just to when is all.
Q. When were you given or supposedly ...