ZUCCARO, JUSTICE, FOR THE COURT:
Johnny Rufus Lanier was convicted of capital murder, and sentenced to death by lethal injection, by the Circuit Court of Covington County. Lanier appeals this verdict and sentence, assigning fourteen errors. After meticulous review of the record, we affirm as to the guilty verdict and reverse and remand for a new sentencing hearing.
In the early morning hours of December 28, 1985, the Meridian, Mississippi Police Department received a domestic disturbance call from Catherine Smith. Smith indicated that she had become embroiled in a quarrel with her live-in companion, Johnny Rufus Lanier, and that he shoved or pushed her out of her house.
As a result of Smith's call, the Meridian Police Department dispatched Officer Alma Walters to the scene. Upon arrival, Officer Walters was met by Ms. Smith who indicated that Lanier was in a bedroom in the house. Officer Walters and Ms. Smith went into the house where they found Lanier passed out on a bed. Officer Walters awakened Lanier and told him to step outside to get some fresh air. Once outside, Officer Walters and Lanier became involved in an argument, and a scuffle ensued, in which Lanier was able to get Walters' .357 magnum service revolver away from her.
Lanier marched Walters back into the house. Catherine Smith went to a telephone phone to call the police and advise them that Officer Walter was in trouble. Other neighbors who were witnesses to all or part of the incident also called the police. At this juncture two gunshots were heard inside of the house.
Responding to an officer in distress call, Officer K. D. Merchant was the first to arrive on the scene. As he approached the front door of the Smith house he yelled to see if Officer Walters was inside. Officer Walters screamed that Lanier had her gun and for Merchant not to enter the house. Almost immediately thereafter Merchant heard a gunshot within the house. He then radioed for backup and an ambulance. When other units arrived, Merchant and several officers entered the house. There they found Alma Walters' body lying face-up across a coffee table with her head on the corner of the couch. She had one gunshot wound to the head, and after a brief examination was determined to be dead. Her revolver was no where to be found, nor was Johnny Rufus Lanier.
Lanier had left the Smith house via the rear door. He traveled to his brother's residence in Meridian where Lanier told both his brother and his brother's girlfriend that he had just killed a police officer, that the police were after him, and that he needed someone to take him to his mother's house in Toomsuba, Mississippi. Lanier's brother agreed to transport Lanier to Toomsuba; however, en route they encountered a police roadblock and were taken into custody. A search of the automobile produced Officer Walters' service revolver with three" live "rounds and three empty cases in the cylinder.
An autopsy of Officer Walters, combined with an analysis of her revolver and its cartridges revealed that she had died from one" contact "shot to the head which entered behind the left ear and exited in front of the right ear. A" contact "shot is one in which the barrel of the weapon is placed against the skin.
Lanier was indicted, and after Lanier moved for a change of venue from Lauderdale County, tried and convicted of capital murder by the Circuit Court of Covington County. At the sentencing phase of the trial the jury found as aggravating circumstances that the murder was: 1) committed in order to avoid a lawful arrest; 2) committed to disrupt the exercise of the enforcement of laws; 3) especially heinous, atrocious and cruel; the mitigating circumstances were insufficient to outweigh the aggravating circumstances. Lanier was sentenced to death by lethal injection from which
he now appeals. We separate this opinion into three parts, to-wit: (I) Guilt/Innocence Phase; (II) Guilt/Innocence Phase and Sentencing Phase; and (III) Sentencing Phase.
A. DID THE RACIAL COMPOSITION OF INJURY VENIRE IN LANIER'S CASE VIOLATE HIS RIGHTS UNDER THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT AND THE IMPARTIAL JURY CLAUSE OF THE SIXTH AMENDMENT?
In the trial below, Lanier made a motion to quash the special venire called on the basis that the population of Covington County was at least forty percent black, and that only eight of the thirty-eight potential jurors remaining after the trial court excused jurors for cause were black. Appellant argues on appeal, as he did at trial, that the composition of the venire (twenty-one percent black) was a violation of the Sixth and Fourteenth Amendments of the United States Constitution.
In support of his motion to quash, Lanier called the Circuit Clerk of Covington County, Maxine Williamson, to testify as to the percentage of blacks residing in the County. Williamson testified as follows:
Q. Can you tell me what percentage of blacks are in Covington County?
A. My estimate was forty to sixty - forty-five. I'm not sure. I have no figures on it.
Q. Okay. Would forty-five be a fair estimate?
Appellant offered no further proof concerning this matter.
The case of Davis v. Zant, 721 F.2d 1478, 1482 (11th Cir. 1983) gives a concise statement of the applicable law pertaining to this assignment of error:
The prima facie tests for an equal protection claim and a fair-cross-section claim are almost identical. In Castaneda v. Partida, 430 U.S. 482, 494, 97 S. Ct. 1272, 1280, 51 L.Ed.2d 498 (1977),
the Supreme Court summarized the requirements for proving an equal protection violation:
The first step is to establish that the group is one that is a recognizable, distinct class, . . . . Next, the degree of under representation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors [over a significant period of time] *. . . . Finally, . . . [a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination] * raised by the statistical showing.
In Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 668, 58 L.Ed.2d 579 (1979), the elements of a prima facie violation of the fair-cross-section requirement were set out:
[T]he defendant must show (1) that the group alleged to be excluded is a" distinctive "group in the community; (2) [that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this under representation is due to systematic exclusion of the group in the jury-selection process.] * (emphasis added)
Even the most elementary analysis of Lanier's evidence, when measured against the above tests leads us to the conclusion, and we so hold, that the evidence offered by Lanier was totally insufficient to support his claim. There simply was no proof that Covington County's method of drawing veniremen was discriminatory. As the party claiming systematic discrimination in jury selection practices bears the burden of proof, Page v. State, 369 So.2d 757 (Miss.1979), the assignment of error is without merit.
B. DID THE PROSECUTORS' FAILURE TO PROVIDE DEFENSE COUNSEL WITH DETECTIVE JOHN NELSON'S NOTES IN DISCOVERY AND THEIR USE OF THE NOTES AT APPELLANT'S TRIAL VIOLATE MISS. UNIF. CRIM. R. CIR. CT. PRAC. 4.06 (a)(2) AND CONSTITUTE REVERSIBLE ERROR?
Following his arrest, Lanier was taken to the Meridian Police Station where he was interrogated. There he provided a verbal statement to Detective John Nelson concerning the shooting of Officer Walters. Lanier, however, refused to sign a typewritten copy of the statement. Pursuant to a discovery request made by appellant prior to trial, the State provided Lanier with a copy of the typewritten statement. In the lower court, Detective Nelson testified as to the interrogation and as to the oral statement made by Lanier in the early morning hours of December 28, 1985. As a part of his testimony, Nelson utilized his" follow-up notes "made immediately after the interrogation of Lanier. The notes contained Nelson's observations as to the manner in which Lanier conducted himself during the questioning, particularly the way in which appellant bragged that he had beaten Walters with her nightstick when they were scuffling outside of the Smith house. Nelson's notes were never provided to appellant under his discovery request concerning statements that he had made. Lanier complains on appeal that the State's failure to provide the notes in discovery amounts to reversible error.
During the direct examination of Nelson, the State moved the court to have the notes marked for identification; the request was granted. Questioning of Nelson was resumed, wherein defense counsel made the following statement:
Your Honor, while Mr. Wright is questioning the witness could we see the exhibit that's been marked?
I don't have a copy of the notes. (Mr. Wright shows item to opposing counsel.)
Questioning of the witness began anew. (id.) As can be seen, counsel for appellant never objected to the State's use of Nelson's notes." Where the state seeks to offer into evidence that which it ought to have disclosed
pursuant to a discovery request but didn't, it is first incumbent upon the defendant to make timely objection. "Nixon v. State, ___ So.2d ___, No. DP-65 (Miss. Nov. 25, 1987) quoting Box v. State, 437 So.2d 19, 23-24 (Miss.1983) (concurring opinion); see also Griffin v. State, 504 So.2d 168 (Miss.1987); Gray v. State, 487 So.2d 1304 (Miss.1986). As no timely objection was made to the introduction of Detective Nelson's notes, appellant's point is meritless.
C. DID THE TRIAL COURT ERR IN REFUSING TO INSTRUCT THE JURY THAT JOHNNY LANIER'S INTOXICATION AND DRUG USE COULD BE CONSIDERED IN DETERMINING WHETHER HE POSSESSED A SPECIFIC INTENT TO KILL THE VICTIM?
The record reflects that prior to shooting Officer Walters, Lanier had consumed vast quantities of alcohol and drugs. On this basis, defense counsel requested that the jury be instructed to consider Johnny Lanier's intoxication in determining whether he had the specific intent to commit capital murder. The trial court refused to so instruct the jury on the basis that the requested instructions were not the law in this jurisdiction. Indeed, this Court has stated that voluntary intoxication is not a defense to a specific intent crime, such as murder. Lee v. State, 403 So.2d 132 (Miss.1981). The rule, more particularly, has been set forth that," if a person when sober, is capable of distinguishing right and wrong and voluntarily intoxicates or drugs himself to the extent that he does not know or understand his actions, e.g., steals, robs, or murders, he is responsible and he may be convicted and sentenced for the crime. "Smith v. State, 445 So.2d 227, 231 (Miss.1984); see also McDaniel v. State, 356 So.2d 1151 (Miss.1978). The lower court acted properly under this well-settled line of authority.
Lanier further argues that, although the trial court never directly instructed the jury that intoxication would negate specific intent, the State did when in argument it told the jury:
" You heard all about drugs. Sin ain't sin when good folks take a little pill, smoke a little marijuana. `I really didn't intend to kill that police officer.' I don't buy that and I don't believe you do. A man doesn't take pills and take dope and drink whiskey and not be accountable for what he does. That's just an excuse. "
In this context it should be noted that the record is replete
with instances where appellant sought to have the jury give weight to the fact that he was intoxicated and on drugs on the night in question. Consequently, the State, in making the above remark, was doing no more than addressing issues previously raised by Lanier, which he may not, on appeal, complain about. Davis v. State, 472 So.2d 428 (Miss.1985). Consequently, Lanier's argument is without legal foundation.
D. WAS IT MANIFESTLY AGAINST THE WEIGHT OF THE EVIDENCE FOR THE JURY TO CONCLUDE THAT JOHNNY LANIER INTENDED TO KILL OFFICER WALTERS?
Appellant argues that he should have been granted a new trial due to the fact that his conviction for capital murder was against the weight of the evidence presented in the lower court. Concerning weight of the evidence questions in criminal prosecutions, this Court's often cited rule is that once the jury has returned a verdict of guilty all of the evidence, including that presented by the defendant, must be considered in the light most favorable to the State, and that the State must be given the benefit of all favorable inferences that reasonably may be drawn from the evidence presented. May v. State, 460 So.2d 778 (Miss.1984); Glass v. State, 278 So.2d 384 (Miss.1973). Once the jury has returned a verdict of guilty, the defendant may be discharged only if, given the evidence taken in light most favorable to the verdict, no reasonable, hypothetical juror could find beyond a reasonable doubt that the defendant was guilty. Parker v. State, 484 So.2d 1033 (Miss.1986) citing Pearson v. State, 428 So.2d 1361 (Miss.1983).
In the present case, as previously discussed under the FACTS portion of this opinion, Officer Walters was called to the Smith house on a domestic disturbance call. She entered the house with Catherine Smith, where Lanier was found in one of the bedrooms. After awaking Lanier, Lanier and Officer Walters went outside where a fight ensued. Lanier told Ms. Smith, while beating Walters, that" I'm going to kill that bitch. "Smith fled the scene. Neighbors observed Lanier march Walters back into the house and two shots were heard. Officer K. D. Merchant arrived on the scene and approached the front door of the house, yelling for Walters. Walters replied that Lanier had her gun and for him not to enter, where upon Merchant heard one shot. When backup units arrived, the house was entered, and Walters' body was found with one wound to the left side of the head.
Later, on the date in question, appellant appeared at his brother's house and told his brother and his brother's
girlfriend that he had just killed a police officer. While attempting to flee to Meridian, Lanier and his brother were stopped at a roadblock. Officer Walters' service revolver was found in the automobile in which appellant was traveling.
An autopsy of Walters' body revealed that she died from a" contact "wound entering directly behind the left ear and exiting in front of the right ear. As Walters was right handed this would negate Lanier's testimony and argument that the revolver discharged during a struggle, or that the wound was self-inflicted. A forensic study of Walters' .357 magnum revolver, and its three empty cases revealed that it was this weapon that fired the fatal round. Further, a trace metal detection test done on Lanier's hand revealed the outline of a revolver.
Considering the above evidence in a light most favorable to the jury's guilty verdict, Parker, supra; Pearson, supra, the lower court correctly refused to grant a new trial. The assignment of error is meritless.
II. GUILT/INNOCENCE PHASE AND SENTENCING PHASE
A. WAS JOHNNY LANIER DENIED THE ASSISTANCE OF AN INDEPENDENT PSYCHIATRIC EXPERT AT THE GUILT/ INNOCENCE AND SENTENCING PHASES OF HIS TRIAL IN VIOLATION OF HIS SIXTH, EIGHTH AND FOURTEENTH AMENDMENT RIGHTS?
Prior to trial, appellant requested and received a psychiatric examination and evaluation to determine his mental condition. The trial court ordered Lanier to be admitted to the Mississippi State Hospital at Whitfield so that his sanity with regard to his ability to assist in his defense at trial as well as his sanity at the time of the charged offense could be determined. As a result of his examination at Whitfield, a diagnostic report was filed with the court which provided as follows:
Mr. Lanier is a thirty year old man admitted 3/26/86 by order of your court. He is charged with capital murder in the shooting death of a police woman on 12/28/85. Evaluation was requested concerning his competency to stand trial and sanity at the time of the alleged crime.
Mr. Lanier's evaluation has been completed. He has been interviewed on several occasions and has also undergone psychological testing. We also reviewed the records provided to us by his attorney,
including the arrest report and Mr. Lanier's voluntary statement following the crime. The collected information was reviewed this morning in a formal staff conference and Mr. Lanier was examined by several staff members, including two [psychiatrists, a neurologist, and two clinical psychologists.] * It was the staff's unanimous opinion that [he is competent to stand trial at this time.] * He understands the nature of the charge against him and the possible consequence should he be convicted. He can give a relevant account of the circumstances surrounding the crime and he would be [able to assist his attorney in preparing a defense.] * With regard to criminal responsibility, it was the staff's unanimous opinion that he knew [the difference between right and wrong in relation to his actions at the time of the crime.] *
We have seen [no evidence of a major mental disorder] * in this man. He does have a long history of alcohol and drug abuse, and was under the influence of both at the time of the shooting. (emphasis added)
In reading the above report it is noteworthy that it was the unanimous opinion of five medical professionals that Lanier was sane at the time of the charged offense and that he was competent to stand trial and assist in his defense.
Following the completion of the Whitfield evaluation, and prior to trial, Lanier made a" Motion For Private Psychiatric Examination, "seeking to be" examined by a privately employed psychologist or psychiatrist at the expense of the State of Mississippi. "This motion was denied. Appellant's argument at trial, and now on appeal, is based upon the United States Supreme Court's decision in Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L.Ed.2d 53 (1985).
The issue considered in Ake was, when must an indigent defendant be provided with the assistance of a psychiatrist. In answering this question, the Court held as follows:
We therefore hold that when a defendant demonstrates to the trial judge that [his sanity at the time of the offense is to be a significant factor at trial,] * the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation,
and presentation of the defense. [This is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own.] * Our concern is that the indigent defendant have access to a competent psychiatrist for the purpose we have discussed, and as in the case of the provision of counsel we leave to the States the decision on how to implement this right. (emphasis added)
470 U.S. at 83, 105 S. Ct. at 1097, 84 L.Ed.2d at 66. Based upon the above rule the capital murder conviction of Ake was reversed.
A review of the facts upon which the Ake decision was based reveals that Ake, prior to trial, was examined in a state facility and found to be a psychotic. Ake was further diagnosed as having chronic paranoid schizophrenia, and as a result he was a danger to society. On this basis, it was determined that Ake was not competent to stand trial. However, through the use of an antipsychotic drug, Thorazine, his condition was stabilized so that the State could proceed with the prosecution of Ake. It should especially be noted that no determination was made concerning Ake's sanity at the time of the charged offense. The case sub judice presents a different situation in that Lanier was found, after a battery of psychiatric tests, to have been sane at the time of the charged offense and was competent to aid in his defense. As previously seen, this was the unanimous determination of not one, but five medical professionals.
Lanier contends that a privately employed psychiatrist should have been provided due to his having hallucinations in the past and acting in a weird manner. In this regard, Ake mandates that a psychiatrist should be provided when sanity will become a" significant factor "at trial. Id. The Whitfield report provides ample facts upon which the lower court could determine that Lanier's sanity would not be a" significant factor ". This Court has long held that a trial court's determination as to the need for a psychiatrist's assistance in a criminal defense will not be overturned unless there has been an abuse of discretion. Glenn v. State, 439 So.2d 678, 680 (Miss.1983); Pilcher v. State, 296 So.2d 682, 688 (Miss.1974). Under the facts of this case the trial court did not abuse its discretion.
Finally, Ake recognizes that an indigent criminal defendant does not have a constitutional right to a psychiatrist of his personal liking or to receive funds to
hire his own; rather he has a right only to a competent one. 470 U.S. at 83, 105 S. Ct. at 1097, 84 L.Ed.2d at 66. As Lanier received an evaluation by five medical professionals, including two psychiatrists, the assignment of error is without merit.
B. DID THE STATE'S MISCONDUCT DURING THE GUILT/ INNOCENCE AND SENTENCING PHASES OF JOHNNY LANIER'S TRIAL VIOLATE HIS SIXTH, EIGHTH AND FOURTEENTH ANENDMENT RIGHTS?
1. DID THE STATE IMPROPERLY INTERJECT RACIAL CONSIDERATIONS INTO THE JURY'S DELIBERATIONS?
Appellant contends that the State, through a series of comments interjected racial considerations into the trial below, and as such Lanier's verdict and sentence should be reversed as being the product of prejudice. Appellant first points to the following remarks, by the prosecution, which he contends are evidence of the interjection of racial prejudice into the sentencing phase:
She was just doing her duty by answering a call. [Let's tell it like it is.] * [We had a - this is a white officer acting in a black neighborhood.] * She goes out to help them and [that used to not be the way it was.] * Let's just tell it like it is. She went out there to do her job and her duty and she gets her brains blown out. (emphasis added)
I want to describe to you and I want to tell you that I think you've heard her testimony because she left the evidence for you and for the law enforcement to find. Contact shot in her head, magnum ports and she went further. She had the courage to give up her life for her fellow officer." Don't come in. He's got my gun. He's got my gun. "Don't you think that she deserves some kind of justice. That's courage to give up your life for a fellow hunan being." Don't come in. He's got my gun. He's got my gun. "
[It's not a law of the jungle] * or survival of the fittest - if it was we wouldn't need police officers and that man would be running his country, [people like him.] * (emphasis added)
Appellant asserts that the underlined portions of the above
statements evince the racial prejudice placed before the jury by the State. However, when read in the proper context the above statements simply describe how a police officer, on duty, and answering a call, was cruelly killed, and that the only reason for law enforcement to exist is to prevent such conduct. Only the super sensitive would construe the above remarks as an attempt by the prosecutor to inflame the passion and prejudice of the jury against Lanier. See Craft v. State, 226 Miss. 426, 84 So.2d 531 (1956).
Next, appellant contends that the prosecutor erred in continuously repeating to the jury that when Lanier would answer questions asked by the police on the night of Walters' shooting that Lanier would answer with," You Dig. "Further appellant makes the far-fetched argument that he was prejudiced by the State referring to him simply as" Lanier "instead of" Mr. Lanier. "In both instances if there were any error it was harmless error. See Carleton v. State, 425 So.2d 1036 (Miss.1983); Forrest v. State, 335 So.2d 900 (Miss.1976). The record is replete with instances of the prosecutor referring to appellant as" Mr. Lanier. "The contention is meritless.
2. DID THE STATE'S NUMEROUS REFERENCES TO ALMA WALTERS' PERSONAL QUALITIES AND THE SUFFERING OF HER FAMILY UNFAIRLY PREJUDICE THE JURY IN VIOLATION OF LANIER'S EIGHTH AND FOURTEENTH AMENDMENT RIGHTS?
During the course of the sentencing phase, the prosecutor made several remarks about Officer Walters' personal life and her family's loss. Appellant argues that because the State focused the jury's attention on an arbitrary factor, sympathy, i.e. a" victim impact "statement, that the sentencing phase of the trial below must be reversed. Booth v. Maryland, ___ U.S. ___, 107 S. Ct. 2529, 96 L.Ed.2d 440 (1987).
During cross-examination of Lanier's mother the following questions were posed by the State:
Q. Did you know that she [the victim] had a mother? Did you know that?
Q. You knew that she had a mother sitting right out here. Did you know that?
Q. Did you know that Alma Walters had a brother?
Q. And, you knew she was active in her church, didn't you?
Q. And - but you knew that she had loved ones, too, didn't you?
No objection was made by defense counsel to this line of questioning. Further, during closing argument the prosecutor remarked," think of the family of Alma Walters, how they've suffered, what kind of a loss they've taken. Lets not forget them. The friends of this woman, police woman. Think about that. "Defense counsel quickly objected on the basis that the suffering of the victim's family was irrelevant to the sentencing phase of the trial, and the lower court sustained counsel's objection. Previously, the trial judge had refused to allow Officer Walters' mother to testify on the same basis; lack of relevancy.
As can be seen above defense counsel objected to the prosecutor's statements now in question in only one instance and the trial court sustained the objection. Thus, it is presumed that the jury disregarded the prosecutor's statement in summation. See Johnson v. State, 475 So.2d 1136 (Miss.1985); Hubbard v. State, 437 So.2d 430 (Miss.1983). As to the questioning of Lanier's mother about Walters' family and personal life, no objection was made, and as ...