DAN LEE, PRESIDING JUSTICE, FOR THE COURT:
On September 9, 1986, Robert S. Minnick was indicted by the Grand Jury of Clarke County, Mississippi, for two counts of capital murder, one for the murder of Lamar Lafferty while engaged in the crime of robbery, and the other for the murder of Donald Ellis Thomas while engaged in the crime of robbery. Minnick was also indicted as an habitual offender on both counts. Motion for change of venue was granted, and a bifurcated jury trial was held in Lowndes County on April 6, 7, 8 and 9, 1987. The jury returned a verdict of guilty as charged on both counts; after a sentencing hearing, the jury imposed the death sentence. Minnick appeals his conviction and sentence, assigning numerous errors. We affirm.
On April 26, 1986, around 3:30 p.m., Deputy Sheriff Johnny Hopson, Clarke County, arrived at the mobile home of Donald Ellis Thomas (Ellis) in response to a call from the Jasper County Sheriff's office. He observed a puddle of blood, a hat and some mail strewn across the yard. He also observed two young girls in the presence of a Jasper County Sheriff's deputy, Marty Thomas and Desiree (B. B.) Beech. He noticed drag marks starting at the east end of the mobile home that led across the back yard of the mobile home, which he followed to the edge of a gully running behind the mobile home. In the gully he found two bodies. At this point, he secured the premises and called Chief Investigator of the Clarke County Sheriff's Department, J. C. Denham.
Upon being called to investigate, Denham proceeded to interview Marty Thomas, Ellis Thomas' younger sister, and B. B. Beach. Marty and B. B. drove over to Ellis' mobile home between 2:00 and 2:30 on April 26, to play in the gully. Marty drove her older sister's red car. As they drove up the driveway, a white man met them. Marty described him as short, skinny, with a shaved head, blue shirt, tennis shoes, two rotten front teeth, and carrying a pistol. The man told her to hand him the keys,
get out of the car, and do as he said if they wanted to live. He marched them both to the back of the trailer, where they saw Ellis' truck, a big black man, and a body lying on the ground. Marty recognized the body as Lamar Lafferty. The black man carried a rifle or a shotgun. The white man took them inside the trailer through the back door, where they saw Brandon Lafferty, Lamar's two-year-old son, sitting on the couch. The white man made them lie on the floor in the den, on their stomachs, as he tied their hands and feet behind their backs with haystring. The black man came inside and began carrying guns out of the bedroom. The white man told them four or five times to tell the police that it was two black men or he'd come back and kill them. The white man then got a pitcher of tea from the refrigerator, while the black man continued to carry out guns. Then they left. Marty and B. B. cut through the haystring around their feet with their fingernails and found a knife from the kitchen to cut their hands loose. Looking out the window, they saw no one there, and saw that Ellis' truck was gone. They took Brandon, got in their car, and went to a friend's house, where Marty called the police. The Jasper County Sheriff's Office responded first: Marty told them that two black guys had tied them up. The Jasper County deputy sheriff determined that the incident occurred in Clarke County and called the Clarke County Sheriff's Department. He then took the girls with him to the mobile home and were met by Deputy Hopson. Marty again told Hopson that two black guys had tied them up. The girls were taken to their Uncle Marlin's house where Deputy Denham came to talk to them. When Marty found out that Ellis and Lamar were dead, she told Deputy Denham the truth - that a white man and a black man had tied them up. Upon taking Marty's and B. B.'s statements, Denham realized that the description of the two men fit the description of two escapees from Clarke County Jail, Robert Minnick and James" Monkey "Dyess, who escaped from the jail the evening before.
Denham was also able to interview Thaddis Pryor, who was turkey hunting on the morning of April 26 around the Beaver Dam community in Clarke County where his deer camp is located. On Sunday morning, April 27, having heard about the incident at the Thomas mobile home, Pryor contacted the Clarke County Sheriff's Department and related that he saw a white man and a black man on an oil lease road on foot. He approached the two men because he thought they were poachers on his camp property. He described the white man as short, skinny, pale, with a shaved head and two rotten front teeth. The black man was around six feet tall, 190 pounds, muscular build, with a short Afro. He talked to the two men for about ten minutes. Denham then met with Pryor who took him to the area where he had met Minnick and Dyess while turkey hunting. Denham was able to observe a boot print and a tennis shoe print in the area. Pryor's descriptions matched the ones given by the girls, as well as the descriptions of the two jail
The investigation pinpointed three shotguns, three rifles, a pistol, and ammunition that were taken from the trailer by Minnick and Dyess, as well as Thomas' silver Ford pickup truck. Several days after the incident, Lafferty's wallet and Thomas' checkbook were found lying along the road several miles from the Thomas trailer. Furthermore, time of the incident was established as occurring after 1:00 p.m. on April 26. Lamar Lafferty's father ate lunch with his son and then saw Lamar and Lamar's son, Brandon, leave with Ellis in Ellis' truck around 1:00 p.m. Also, Greg Thomas, Ellis' cousin and closest neighbor, heard gunshots coming from Ellis' mobile home about 2:30 p.m. Thirty seconds later he heard another sound like a muffled shot or dud firecracker, and five minutes after that he heard two more shots which sounded like they came from a small-calibre gun. Shortly thereafter, he saw Marty and B. B. drive by in a red car.
The Medical Examiner's report indicated that Thomas suffered a close contact gunshot wound to the middle of the forehead and a second wound on the right lower back from a distance of approximately 15 feet. Lafferty suffered two gunshot wounds to the head, both close contact wounds from a small-calibre gun. The Medical Examiner's opinion was that both men were alive when their wounds were inflicted and died within a few minutes.
Denham entered the information concerning the missing guns and missing silver Ford pickup truck into the computer on the NCIC network. The truck was recovered in Florida on May 6, 1986. Apparently, the truck had been stolen from New Orleans by Paul Stanley Ward because when the truck was recovered, they found parking tickets from New Orleans under the seat. (Ward was convicted in Clarke County for possession of a stolen truck.) Denham then requested assistance from the New Orleans Police Department; however, they were not able to locate Minnick or Dyess.
On August 22, 1986, Denham received information from the San Diego Police that they had arrested Minnick. Denham flew out, arriving late August 24. He interviewed Minnick on August 25. He first advised Minnick of his rights, but Minnick refused to sign a waiver of rights form. Minnick agreed to tell him about his and Dyess' escape from Clarke County jail, but Minnick then proceeded to tell him about events after the escape. According to Minnick as told to Deputy Denham, he and Dyess walked outside of Quitman south toward DeSoto in a wooded area. They came upon a turkey hunter and talked to him early the next morning, then continued on until they came to a clearing where the Thomas mobile home was located. They decided to go into the trailer to
find guns. As they were collecting the guns, a vehicle drove up with two men and a small child in it. Dyess jumped out of the mobile home and shot one of the men in the back with a shotgun, and then shot him in the head with a pistol. Dyess handed Minnick the pistol and told him to shoot the other man. Dyess held a shotgun on Minnick until he did so. They then put the child on the sofa in the mobile home, after which the two girls drove up. They tied the girls up in the mobile home. Minnick stated that he talked Dyess out of raping or hurting the girls. Dyess dragged the bodies of the two men into the gully. They left with $121 in cash, the guns, and the silver pickup truck. They drove to New Orleans where they sold the weapons and threw the pistol in the trash. They left New Orleans on a bus to Brownsville, Texas, and then crossed the border into Mexico. Minnick and Dyess got into a fight - Dyess beat him and tried to kill him - so Minnick hitchhiked to California where he changed his name, procuring a birth certificate and a drivers license in the name of David Prokaska.
Minnick waived extradition and Denham brought him back to Mississippi to stand trial. Before trial commenced, the state was able to recover two of the guns stolen from the Thomas mobile home through the FBI in New Orleans.
A. Minnick's Alleged Statement to Denham Should Have Been Suppressed.
At pretrial hearing on motions, Minnick presented a written motion to suppress the statement allegedly given by him to Deputy Denham in San Diego, California, on August 25, 1986. That motion asserted that the statements were not voluntary and that Minnick made no knowing and intelligent waiver of his right to counsel, and that he had requested assistance of counsel.
At the hearing on the motion to suppress, both Denham and Minnick testified. Also, Minnick introduced a report of an interview of Minnick by the FBI on August 23, 1986. The FBI report shows that Minnick was advised of his rights and that he refused to sign a waiver form. Minnick answered some questions, but then ceased to answer, saying," Come back Monday when I have a lawyer. "The FBI interviewers honored his request and ceased interrogation.
Deputy Denham testified that when he interviewed Minnick, he first read Minnick his Miranda rights, but Minnick refused to sign a waiver form. Denham then asked Minnick if he wanted to
talk about what happened. Minnick replied," It's been a long time since I've seen you. "Then Denham asked Minnick to tell about his escape from Clarke County Jail. Minnick agreed to do that much, and then, according to Denham, just proceeded to confess to the murders. Denham left the interview and wrote up his notes concerning what Minnick said. Minnick refused to sign Denham's handwritten account of their interview. Minnick later waived extradition, and Denham brought him back to Mississippi.
Minnick also testified at the suppression hearing that he was arrested in Lemon Grove, California, by local police on August 22, beat up and carried to San Diego County Jail where he was put in a holding cell. He claimed he was not read his rights until the FBI interviewed him. He refused to talk with the FBI without an attorney.
After the FBI interview, but before Denham arrived to interview him, Minnick stated that he spoke to an attorney who told him not to speak to anyone else about any of the charges against him. When Denham arrived at the jail, the jailers told Minnick that he would have to go down and talk to Denham. Denham read him his rights again, and Minnick refused to sign the waiver form. Minnick agreed to tell him about the escape from Clarke County Jail, and that is all he agreed to tell him. However, when questioned further about what he told Denham about the robbery and killings, Minnick refused to testify further, invoking his Fifth Amendment right against self-incrimination.
Minnick's motion to suppress the statements was overruled by the trial judge, who found that Minnick had knowingly and intelligently waived his rights. Denham could testify as to the confession, but his written notes could not be introduced into evidence. Minnick renewed his motion to suppress at trial, which was again overruled.
On appeal, Minnick argues that the confession was taken in violation of his Fifth and Sixth Amendment rights to counsel.
1. Fifth Amendment Right to Counsel
Minnick argues that, under Edwards v. Arizona, 451 U.S. 477 (1981), Denham's initiation of the interview on Monday, August 25, violated his Fifth Amendment right to counsel under Miranda v. Arizona, 384 U.S. 436 (1966), since Minnick invoked his right to counsel under Miranda during the FBI interview on August 23.
In Edwards v. Arizona, 451 U.S. 477 (1981), the United States Supreme Court held:
When an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights [footnote omitted]. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.
Id. at 484-85. While it is true that Minnick invoked his Fifth Amendment right to counsel, it is also true, by his own admission, that Minnick was provided an attorney who advised him not to speak to anyone else about any charges against him. *fn1 In this kind of situation, the Edwards bright-line rule as to initiation does not apply. The key phrase in Edwards which applies here is" until counsel has been made available to him. "Id. at 485. Since counsel was made available to Minnick, his Fifth Amendment right to counsel was satisfied. Therefore, this aspect of Minnick's argument is without merit.
2. The Sixth Amendment Right to Counsel.
Minnick argues further that his Sixth Amendment right to counsel under Mississippi law had attached by the time of the Denham interview since warrants for his arrest had issued; the state does not dispute this. See, e. g., Livingston v. State, 519 So.2d 1218, 1221 (Miss. 1988). The state, however, argues that Minnick knowingly and intelligently waived his right to counsel when he gave the statements to Denham. In Cannaday v. State, 455 So.2d 713 (Miss. 1984), this Court stated:
However, the Sixth Amendment right to counsel has broader ramifications [than the right to counsel under Miranda]. The accused's right to counsel, once that right has attached, is a broad guarantee that the accused" need not stand alone against the state at any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial. "United States v. Wade, 388 U.S. 218, 226, 87 S. Ct. 1926, 1932, 18 L.Ed.2d 1149 (1967).
Id. at 722. Cannaday went on to say," once this right has attached in a criminal case interrogation may not commence without the express waiver by the defendant of the right to counsel, "citing Massiah v. United States, 377 U.S. 201 (1964).
Id. See also Page v. State, 495 So.2d 436, 440 (Miss. 1986). The precise question before us, then, is whether or not Minnick expressly waived his Sixth Amendment right to counsel when he spoke with Denham.
The standard for determining whether or not a defendant has waived his Sixth Amendment right to counsel was set out in Brewer v. Williams, 430 U.S. 387 (1977). The proper standard to be applied in determining the question of waiver as a matter of constitutional law is" that it [is] incumbent upon the state to prove `an intentional relinquishment or abandonment of a known right or privilege.\rquote "Id. at 404. The right to counsel" does not depend upon a request by the defendant "and" courts indulge in every reasonable presumption against waiver. "Id. But the Brewer opinion makes clear that a defendant can, without notice to counsel, waive his Sixth Amendment right to counsel. Id. at 405.
Applying this standard to Minnick's situation, the record supports the trial judge's finding that Minnick knew he had the right to counsel as evidenced by the fact that he had previously invoked it. There is also evidence from the record - from Minnick's own testimony at the suppression hearing - that he spoke to an attorney before Denham interviewed him, and that the attorney told him not to talk to anyone.
Denham, by Minnick's own account, warned Minnick again that he need not speak to him in the absence of counsel. Minnick then testified, however, that he refused to sign a waiver of rights form, apparently believing that a waiver of rights form must be signed for any waiver to be valid. The U. S. Supreme Court has rejected this" per se rule "argument in North Carolina v. Butler, 441 U.S. 369 (1979), when it stated:
An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to establish waiver.
Id. at 373. The Butler opinion went on to point out that while courts must presume that a defendant did not waive his rights," in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated. "Id.
Minnick, again by his own admission, did not tell Denham he wished to have a lawyer present before he spoke to Denham. Minnick replied to Denham's request to talk about what happened by saying," It's been a long time since I've seen you, "after which the two of them talked about various folks back in
Mississippi. Denham then asked Minnick if he would at least talk about how he escaped from Clarke County Jail. By Minnick's own account, he agreed to speak with Denham about the escape - a conscious decision to talk about the escape in the absence of counsel. *fn2 From Minnick's own words and actions, Minnick clearly relinquished his known right to counsel and responded to Denham's request.
From that point on, the evidence indicates, from Denham's testimony, that Minnick continued, freely and voluntarily, to talk about events after the jail escape. This evidence went virtually unrebutted because Minnick, when questioned about whether or not he voluntarily continued to talk about events after the jail escape, refused to testify further, invoking his Fifth Amendment right against self-incrimination. *fn3
Under this factual scenario, it is evident that Minnick was aware of his rights, had been advised by an attorney prior to the conversation with Denham, was aware that he did not have to make any statements or answer any questions, and that he made a conscious decision to relinquish his Sixth Amendment right to counsel. The trial judge so found, and under our often-articulated scope of review, this Court will not disturb a trial judge's findings at a suppression hearing unless manifestly in error, or contrary to the overwhelming weight of the evidence. See Merrill v. State, 482 So.2d 1147, 1151 (Miss. 1986). Frost v. State, 483 So.2d 1345, 1350 (Miss. 1986); Wiley v. State, 465 So.2d 316, 320 (Miss. 1985); Neal v. State, 451 So.2d 743, 756 (Miss. 1984).
In so holding, we note that had Minnick at any point during his interview with Denham elected to have assistance of counsel before speaking further, the waiver would have immediately been dissolved. See Patterson v. Illinois, ___ U.S. ___, ___, 108 S. Ct. 2389, 2395, 101 L.Ed.2d 261, 272 (1988), n. 5. However, there is no evidence on the record that Minnick made any such request during Denham's interview. Therefore, we find no error in the lower court admitting the testimony as to Minnick's oral confession at trial. This assignment of error is without merit.
B. The Court Erred in Overruling Minnick's Motion to Prohibit" Death Qualification "of Jury Prior to Guilt Phase.
Minnick filed a motion to prohibit" death qualification "prior to the guilt phase, which was overruled at pre-trial hearing on motions. Minnick argues that the defendant is prejudiced by being required to voir dire the jury on their feelings about the death penalty because jurors who could not vote to impose the death penalty are excluded, resulting in an
unfair cross section of the community. In Cole v. State, 525 So.2d 365, 374 (Miss. 1987), this Court rejected this argument, as has the United States Supreme Court in Lockhart v. McCree, 476 U.S. 162 (1986). This assignment, therefore, is without error.
C. The Court Erred in Improperly Instructing the Jury as to Burden of Proof.
At the end of the first day of trial, the trial judge gave the jury instructions as to their sequestration - that they must stay together, not talk to anyone about the case, not watch tv, not read the newspapers, etc. He summed up by reminding the jury that their" decision must be based upon and controlled by the greater believable evidence in this courtroom and nowhere else. "Minnick complains that the judge stated the wrong burden of proof. The distinction, however, is that the judge was not formally instructing the jury on the law, but rather on their conduct while being sequestered. Minnick makes no showing that this isolated remark prejudiced the jury. He made no contemporaneous objection to the remark, and cites no authority for his proposition. Therefore, this Court need not consider this assignment of error. May v. State, 524 So.2d 957, 967 (Miss. 1988); Ramseur v. State, 368 So.2d 842 (Miss. 1978).
D. The Court Erred in Allowing Testimony of Marlon Lafferty.
The state offered the testimony of Marlon Lafferty, Lamar's father. The first time the state advised Minnick that it planned to use Lafferty as a witness was the first day of trial, the day before Lafferty was offered as a witness, in violation of Rule 4.06, Unif.Crim.R.Cir.C.Prac. Minnick cites Box v. State, 437 So.2d 19 (Miss. 1983), for the proposition that Lafferty's testimony should have been excluded. The guidelines set out in the concurrence in Box (Robertson, J.), 437 So.2d at 22, have been applied by this Court in subsequent cases. See, e. g., Shaw v. State, 521 So.2d 1278 (Miss. 1987); Cole v. State, 525 So.2d 365, 367 (Miss. 1987); Griffin v. State, 504 So.2d 186, 195 (Miss. 1987). Under the Box procedure, defense counsel must first make timely objection, to which the trial court should respond by giving defense counsel a reasonable opportunity to interview the witness. Box, 437 So.2d at 23. In the instant case, Minnick's counsel objected and the trial court allowed him a recess to interview Lafferty. If after the interview the defendant thinks he has been subjected to unfair surprise and that he will be prejudiced by the evidence, the defendant must move for a continuance. Id. Minnick's counsel did not move for a continuance, but merely renewed his objection, which the trial court overruled. Since the defendant did not move for a continuance, the trial court did not err in admitting the
evidence. Furthermore, Minnick was not prejudiced by the testimony. Lafferty's testimony was brief and concise on one issue - establishing that his son and Thomas were killed sometime after 1:00 p.m., since he had seen them both at lunchtime. Therefore, this assignment of error is without merit.
E. The Court Erred in Failing to Sustain the Defense Challenge for Cause for Juror No. 28.
Minnick contends that Juror No. 28, Kenny Vickery, should have been stricken for cause because Vickery stated during voir dire that in order for him not to impose the death penalty, Minnick would have to prove beyond a reasonable doubt that he should not be executed. The court overruled the challenge for cause as to Vickery; defense counsel then used his twelfth peremptory challenge to remove Vickery. However, defense counsel made no more challenges for cause and requested no more peremptory challenges.
This Court has held that" the general rule is that failure to excuse for cause is error when appellant has exhausted his peremptory challenges. "Billiot v. State, 454 So.2d 445, 457 (Miss. 1984). See also Johnson v. State, 512 So.2d 1246, 1255 (Miss. 1987); Gilliard v. State, 428 So.2d 576, 580 (Miss. 1983); Rush v. State, 278 So.2d 456, 458 (Miss. 1973); Chapman v. Carlson, 240 So.2d 263, 268 (Miss. 1970). Billiot went on to say," Appellant did not thereafter ask for any more challenges either for cause or peremptory. Therefore, there was no reversible error. "Billiot, 454 So.2d at 457. Since defense counsel had not exhausted his peremptory challenges and did not challenge anyone else for cause, or ask for more peremptory challenges, this assignment of error is without merit.
F. The Court Erred in Admitting Photos of the Dead Bodies.
Before trial, Minnick made a motion to prohibit the introduction of photos of the dead bodies on the grounds of irrelevancy and prejudice. The lower court reserved ruling until trial, at which time the motion was overruled. The state argued at pre-trial hearing that it wished to use the photos to establish corpus delicti.
This Court recently, in Boyd v. State, 523 So.2d 1037 (Miss. 1988), stated," If photographs are relevant, the mere fact that they are unpleasant or gruesome is no bar to their admission into evidence. "Id. at 1040. Furthermore, Boyd went on to state that the admission of photographs is within the sound discretion of the trial judge and his decision will be upheld by this Court unless there is an abuse of discretion. Id. Under M.R.E. 403, the trial judge may exclude relevant evidence if its probative
value is outweighed by its prejudicial effect. The photos admitted in the instant case were not particularly gruesome, though they were realistic; they were few in number; they tended to corroborate the investigative officers' testimony about where and how the bodies were found. They also tended to illustrate the medical examiner's testimony as to cause of death. The trial judge did not abuse his discretion in allowing the photographs into evidence. See, e.g., Williams v. State (No. DP-56, decided October 7, 1987, not yet reported); Alford v. State, 508 So.2d 1039, 1041 (Miss. 1987); Johnson v. State, 476 So.2d 1195, 1206 (Miss. 1985). Therefore, this assignment of error is without merit.
G. The Court Erred in Not Granting a Continuance Based on the Untimely Disclosure of the Blymier Evidence by the State.
Ten days before trial, the state informed Minnick's counsel that they had uncovered a material witness, James Blymier, who would testify that he bought two guns from Dyess and Minnick in New Orleans in May of 1986 (the guns were identified by serial number as two of the guns taken from the Thomas mobile home), and would identify Minnick in court. Blymier would also testify that he previously knew Dyess as one of his employees. The state became aware of this witness only the day before it notified defense counsel. Minnick filed a motion for continuance in order that defense counsel could interview Blymier. The trial judge denied the motion for continuance, but did state that as soon as Blymier was available in Mississippi, the state was to allow defense counsel an opportunity to interview him. Blymier showed up the day he was to testify, and the lower court gave defense counsel a recess during trial to interview Blymier. After the ...