BEFORE DAN LEE, P.J., PRATHER AND GRIFFIN, JJ.
PRATHER, JUSTICE, FOR THE COURT:
Leon Johnson, the defendant below, was tried on a capital murder indictment with an underlying crime of robbery and appeals his conviction of murder and life sentence in the Circuit Court of Lauderdale County. Venue was changed to Jackson County as a result of this Court's reversal of Johnson's conviction and death sentence on his first appeal. Johnson v. State, 476 So.2d 1195, 1198 (Miss. 1985) (hereinafter Johnson I). On this second appeal, three primary questions are raised: (1) discriminatory and unconstitutional jury selection by the State's exercise of peremptory challenges for the purpose of striking members of the defendant's race under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L.Ed.2d 69 (1986); (2) interpretation of new Mississippi Rule of Evidence 609, when the trial court puts a time limitation on impeachment evidence of former convictions; and (3) the denial of funds to employ an
independent fingerprint expert. However, Johnson assigns all of the following errors, most of which were previously assigned in Johnson I and rejected by this Court:
(1) The verdict of the jury as to guilty and sentence imposed is against the overwhelming weight of credible evidence, and there is insufficient evidence for the jury to base a finding of guilt and sentence beyond a reasonable doubt.
(2) The trial court erred in overruling the defendant's motion for directed verdict as to robbery.
(3) The trial court erred in denying the defendant's motion for directed verdict as to capital murder.
(4) The trial court erred in denying defendant's motion to strike and quash the unconstitutional Mississippi statutes providing for the imposition of the death penalty in the application of this case.
(5) The trial court erred in overruling the defendant's motion to impanel a separate jury for the guilt and punishment phases of the trial.
(6) The trial court erred in denying defendant's motion for funds to hire an investigator to aid in preparation of his defense, which denied the defendant due process of law.
(7) The trial court erred in denying the defendant's motion for funds to employ an independent fingerprint expert, which denied the defendant due process of law.
(8) The trial court erred in denying the defendant's motion to restrict prosecutorial strikes.
(9) The trial court erred in failing to sustain the object of the defendant to quash the petit jury panel because the jury selection process exercised by the State was discriminatory and unconstitutional.
(10) The trial court erred in allowing into evidence Exhibits 28 and 29, and the testimony of State's witness Larry Turner concerning the human blood contained on said exhibits.
(11) The trial court erred in overruling defendant's motion in limine relating to fingerprints lifted from the door facing of the Super Stop containing human blood.
(12) The trial court erred in overruling defendant's motion to suppress a suggestive line-up and pictures thereof in which the defendant was a participant.
(13) The trial court erred in overruling defendant's motion to suppress statements given by the defendant to law enforcement agencies.
(14) The trial court erred in overruling defendant's motion to suppress and exclude certain illegally seized items and clothes taken from the home of the defendant's grandfather.
(15) The trial court erred in overruling defendant's motion to suppress evidence of fingerprints taken of the defendant.
(16) The trial court erred in granting instructions, C-12, C-15, C-17, C-34, C-37, C-51, C-52, C-53, and refusing all other instructions where said instructions did not contain the two theory instruction as the State's case was based solely upon circumstantial evidence.
(17) The trial court erred in imposing a time limitation and limiting the evidence the defendant could offer in impeaching State's witnesses Tommy Hill and Jack Amison as to their prior convictions.
(18) The trial court erred in refusing instructions of the appellant instructing the jury to find the appellant not guilty of capital murder and refusing to instruct them to find appellant not guilty.
At the outset, several general observations need to be made. The evidence offered in the second trial was almost identical to that offered in the first. Furthermore, Johnson's assignments of error almost duplicate those in the first appeal.
The principles governing this situation may be drawn from West v. State, 519 So.2d 418, 424-25 (Miss. 1988), wherein this Court held that where a case has been reversed and remanded for a new trial, a trial de novo follows. Thus, on remand, where the defendant desires to introduce new evidence not considered at the first trial, the trial judge is required to permit a new evidentiary hearing. This is true even though the issue had been determined at the first trial, and this Court expressly affirmed the trial court's
ruling on the first appeal.
On the contrary, however, this Court distinguished factually Jones v. State, 517 So.2d 1295 (1987). In that case, the defendant incorporated a transcript of the suppression hearing at the first trial into the record of the second trial. The trial court correctly rejected the identical arguments on the same evidence at the second trial, this Court having decided the three specific issues in question adversely to the defendant. "The decision was based not upon the fact that the issues had been raised in a prior appeal, but because [the defendant's] arguments advancing the issues were supported by the evidence and law argued and rejected in the first appeal." West, 519 So.2d at 425.
Turning to the case before this Court, it is noted that the only change in the evidence of any significance in the second trial is Johnson's personally testifying and denying any part in the crime and asserting an alibi. Fifteen of his eighteen assignments of error were decided adversely to Johnson on the first appeal. Johnson has admitted this fact, merely stating that he "resubmits those . . . assignments of error, originally submitted, for further review." This Court holds the same to be res judicata and therefore does not address them again. West, supra.
The facts of this case are now quoted from Johnson I, with certain changes at the second trial noted afterwards:
On December 4, 1982, around 8:30 in the morning, the Super Stop convenience store located the corner of Eighth Street and 29th Avenue in the City of Meridian, was robbed and Mrs. Eileen Grogan, the attendant, was brutally murdered. Her body was discovered in the back room of the Super Stop, nude from the waist down with her bra and shirt pulled up under her chin. The victim's underclothes were never located. According to the pathologist, who examined the body, Mrs. Grogan had been struck on the head with a blunt object causing a depression fracture to the skull. She had experienced sexual intercourse at some undetermined period of time prior to her death. The cause of death was established as strangulation.
The Meridian Police Department received a call from a customer of the Super Stop, who had become suspicious, around 8:30 on the morning of the
homicide, indicating to the police that a black male had waited on him; that the person didn't know how to use the cash register; and that he didn't know the prices of some of the merchandise. The first officer to arrive at the scene was Carl Molony. When he entered the store, the black male took the officer's gun and shot Molony twice with it, seriously injuring him. Molony managed to radio to the police department for more assistance, which was immediately forthcoming. The store was surrounded, tear gas was thrown into it, the fire department was called, and a hole was cut through a wall into the back room where Mrs. Grogan's body was found. Officer Molony survived the gunshot wounds inflicted on him, but was unable to remember what occurred.
Naomi Shadow testified that she bought a coke in the Super Stop between 8:00 and 8:30 on the morning of December 4, 1982. Ms. Grogan was there at the time, and Ms. Shadow did not see anyone else in the store. Kevin Bartley testified he went into the store at about the same time and Mrs. Grogan waited on him. He did not see appellant in the store.
Herbert Smith entered the Super Stop prior to 8:30 that morning to buy beer for an elderly friend, who lived across the street. He identified appellant as the person who waited on him. Smith noticed that appellant had an orange Super Stop jacket draped over his right shoulder. There was blood on the jacket. When Smith paid for the beer, appellant stepped over to the cash register as if to open it, but didn't. He then stepped back and made the change out of a roll of money in his shirt pocket.
After leaving, Smith watched the Super Stop from a window at his friend's house across the street. He saw Officer Molony go in and look around, but could not see appellant. Molony then opened the door and stepped into a back room. A few seconds later, he came "flying out backwards" from that room, appellant came out behind him, Smith heard two shots fired, and appellant left.
Tommy Hill and his brother, Jack Amison,
stopped at the Super Stop and Hill went in. There was no one in the store at the time. A policeman came in looking around. Hill lost sight of him when he went behind the counter. He then heard a shot and saw a tall black man learning against the wall. While Hill was running out, he heard another shot. The gunman followed him out and said, "You haven't seen me, man." Hill described that person as wearing a gray pullover sweater and gray pants. He then identified appellant as the man with the gun. Hill is a local bootlegger with numerous convictions for liquor violations. He did not come forward with his information until the end of January, 1983. The murder occurred on December 4, 1982. There was a large reward being offered by that time. Jack Amison did not go in the Super Stop, but heard gunshots and saw his brother, Tommy Hill, run out followed by appellant. He also identified appellant.
Ricky Walters drove by the Super Stop that morning and saw an empty police car and a white truck. (Hill and Amison were driving a white truck), but no people. He kept driving down the street and a "kind of faded brown like" Torino pulled out in front of him. About that time, the rest of the police arrived on the scene.
Mitsi Harris worked in a sporting goods store down the street from the Super Stop at the time of the murder on December 4, 1982. She was looking out the window and saw a yellow car pull in the parking lot. A black male about 6' tall and wearing dark pants and a dark shirt got out and walked toward the Super Stop. She identified him as Johnson. Ms. Harris looked into the parking lot and saw that the car was a yellow Torino with Alabama plates. About 10 minutes later, several black males came running back by the window, but she was not sure if the first man was with them.
Danny Brown, deputy sheriff, Choctaw County, Alabama, testified that on the morning of December 4, 1985, the sheriff's office received a call from the Meridian Police Department to be on the lookout for a yellow and black Torino with Alabama plates. He observed such a vehicle about 9:30, after stationing himself on the highway coming from Mississippi. He did not stop the car, however, because he recognized it as belonging to Fred
Johnson (father of appellant) whom he knew well.
Officers searched the Johnson home on December 21, 1982. Appellant, his father, Fred Johnson, grandfather, Amos Johnson, and his grandmother, all lived together. Taken in the search were a pair of gray wool pants, a grayish black knit pullover velour-type shirt, a pair of jeans, and two belts. These clothes were on a hanger inside a cleaning bag.
George Reese, a local schoolteacher, testified that he met appellant on the street the night of December 3, 1982, and they slept in Reese's car that night. Appellant gave him his address and Reese gave appellant a false address. The address note was introduced in evidence. He also gave appellant $5.00. They woke up around daylight. Reese said that appellant was wearing a steel grayish-blue velour pullover sweater shirt and gray pants. He did not know appellant prior to that night. Although he claimed to have given appellant the money out of sympathy, it was indicated, during cross-examination, that the money was for sexual favors.
Larry Turner, a forensic serologist with the Mississippi Crime Lab, determined from the semen recovered from the vaginal tract of Mrs. Grogan that it came from a person with Type B blood, secretor status. Appellant was found to be a Type AB, secretor status.
Thirteen (13) latent fingerprints were lifted from the Super Stop and sent to the Mississippi Crime Lab. Only eight (8) of them were identified. One was identified by Ron Smith of the Mississippi Crime Lab to be appellant's fingerprint. It was found on a door facing inside the Super Stop. Smith testified that a red substance found on the print was blood, but he was unable to determine the type. Due to the manner the blood was on the ridges of the fingerprints, he was able to determine that the blood had been on appellant's hand when he touched the door facing, rather than the blood having been on the door facing when appellant put his hand on it. However, Smith was not able to determine when the print was made.
Appellant's defense was an alibi. He did not
refute that he was in Meridian on the night of December 3, 1982, but introduced evidence that he was at home in bed on the morning of December 4. . . .
Appellant's father, Fred Johnson, and grandparents testified that appellant was asleep at home early on the morning of December 4. Fred Johnson testified that he went to the town of Butler, Alabama, in the Torino car that morning. He left home between 8:30 a.m. and 9:00 a.m. Beatrice Phillips testified she rode with him and they left her house between 8:00 and 9:30.
In addition to other shopping, Fred Johnson purchased some vodka for another person. His receipt from the liquor store indicated that he bought it at 10:15 on the morning of December 4. . . .
Christopher Chapman testified for the defense that he was a customer in the Super Stop on the morning of December 4; that a black male with a mole over his left eye and a gold earring waited on him; and that appellant was not that man. On cross-examination, he also said that ...