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OCTOBER 26, 1988




Allen Nicolaou appeals from his conviction in the circuit court of Hancock County of capital murder and as a habitual offender, and sentence to life imprisonment without parole. We find most of his assignments of error of no merit. Because the circuit judge gave the jury, after it retired to reach a verdict, a definition of "malice aforethought" which we find confusing, we reverse and remand.


 Don L. Michael Anderson, a telephone employee and part-time deputy sheriff of Hancock County, was acting as dispatcher at an understaffed and undermanned jail on Saturday, October 27, 1984. He filled two shifts that day, eight-to-four, and four-to-midnight. He was also the only person on duty in the jail and sheriff's office that day. There were thirty-five prisoners in jail.

 At ten that night Larry Williams, a trusty, came to the intercom on the first floor, and called Anderson, notifying him that a prisoner in cell Number One on the second floor was not breathing. Cell Number One on the second floor housed two prisoners, the other two cells on the second floor housed ten men each.

 Deputy Sheriff Leo Ladner was then in the building, and Anderson called to him that he had to go upstairs. Anderson got the keys, and as he was going into the jail John Wilkerson of the Waveland Police Department was bringing a prisoner to jail. This prisoner was put in a cell, and then the three officers, Ladner, Wilkerson and Anderson went upstairs to cell

 Number One.

 The officers found Charles Alan Poole lying on the bottom bunk with blood all over his face. Anderson immediately telephoned the mobile medical service.

 Until summoned by Williams, Anderson had heard no disturbances during his duty hours that day.

 Poole, a man approximately five feet six inches in height and weighing 150 pounds, was dead. He had been arrested on the previous Friday night, October 19, after being identified as an armed robbery suspect.

 The external examination by John D. Rutherford, III, M.D., the pathologist, of Poole's corpse showed multiple abrasions on the neck and around the hands and feet, as well as an abrasion on the right forehead. Blood was clotted all over the face. The nose bridge was purple from a large hematoma and the right eye was black.

 There was evidence Poole had been tied or bound by the legs just above the ankles causing large areas of purple discoloration, as well as having been bound at the wrists, causing the hands to be purple. The pathologist was of the opinion the bones in the nose had been crushed. Blood exuded from both the nose and mouth.

 Dr. Rutherford's medical opinion was that the cause of Poole's death was asphyxiation, or suffocation, from obstruction of the upper airway from the bruising in the area of the vocal cords and fractured nose, that he had "drowned on his own blood." He found extensive hematomas at the back of the swallowing tube and inside the mouth, and another in the larynx area.

 The only person in the cell with Poole at the time of his death was the defendant Nicolaou.

 Nicolaou was indicted by the Hancock County grand jury on February 14, 1985, for capital murder committed while under two consecutive sentences of life imprisonment, in violation of Miss. Code Ann. 97-3-19 (2)(b), and as a habitual offender under Miss. Code. Ann. 99-19-81, and brought to trial on October 30.

 In addition to the facts as above set forth, Alvin Ladner, a criminal investigator with the sheriff's department, testified that when he was summoned to the jail that night, he noticed that Poole had been beaten, and blood was coming from

 the nostrils. Ladner described the marks about the neck, ankles and wrists as being "some sort of burn marks." He also noticed blood spots on the wall of the cell.

 Wilkerson testified that as he was taking Nicolaou downstairs that night, Nicolaou asked him if Poole was dead. Wilkerson replied that he thought so. Nicolaou then said that he had gone crazy and just couldn't stop, that Poole "wouldn't stop messing with me."

 Nathaniel Jones, a prisoner serving a 30-day jail sentence for fighting, also testified for the State. Jones testified that with the aid of a hand held pocket mirror he watched Nicolaou and Poole fight at various times during the day of the slaying. He said Poole was tied, untied, and tied again five to eight times, and that Poole was scared of Nicolaou. On direct examination Jones testified he "knew Poole was wearing jeans." Photographs in the record, however, show Poole, was wearing an orange jumpsuit.

 After the State rested, the defense first offered Harold Hiney, a deputy sheriff. He testified that he went to the cell at 9:00 p.m. and Nicolaou asked to be separated from Poole, who would not leave him alone, and would not stop getting into bed with him. Hiney also said the two of them had told him that Poole started the fight.

 Alvin DeGraw, a prisoner trusty, testified that when he carried lunch to this cell Poole was tied up, and that he suggested to Nicolaou that he untie him because his hands were tied too tightly, and that Nicolaou did untie him.

 Deputy Ladner was called by the defense and testified that when he saw Poole's corpse, it was not tied.

 Don Lee Coss, the officer who initially arrested Poole, testified that when he arrived at the jail at 9:45 p.m. it was noisy, and he could not remember if he heard anything unusual.

 George Burleson, the jailer, testified that he put Poole in Nicolaou's cell the morning of the killing so that Poole would not have to spend the weekend in "the hole." "The hole" was a cell where unruly prisoners were placed. When asked whether he said something to the effect of "let the best man win," when he put Poole in the cell with Nicolaou, he said he could not remember.

 James Koch, another prisoner, testified that after Poole was moved up to Nicolaou's cell, he heard hollering and screaming.

 Nicolaou took the stand in his own defense, and testified that in the week before the murder he had met Poole and that they had fought some. He said that the reason he tied Poole up was to keep him from rummaging through his personal property. He could not recall, however, what happened to cause the incident. He testified that the last thing he remembered was tying Poole up after supper.

 On October 22, 1984, Nicolaou had pleaded guilty to two murders, armed robbery, and two kidnappings, for which he had been sentenced to two terms of life imprisonment, 40 years on the armed robbery charge, and 30 years on each kidnapping charge. The kidnappings were committed in connection with and following the robbery of a convenience store.

 Following his trial Nicolaou was found guilty of capital murder. The circuit court then conducted the sentencing phase of his trial before the same jury, which was unable to agree upon his punishment.

 The court then conducted a sentencing hearing, and under Miss. Code Ann. 99-19-81 sentenced Nicolaou to ...

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