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DECEMBER 14, 1988




Noah Wheeler was indicted by the Grand Jury of Forrest County for capital murder in the death of Jackie Dole Sherrill, a Hattiesburg police officer. A change of venue having been granted, he was tried in the Circuit Court of

Rankin County and found guilty. After the sentencing phase of the bifurcated trial, the jury imposed the sentence of death.

 On the afternoon of December 31, 1984, Hattiesburg police received a report of child neglect at a certain address in Hattiesburg. Detective Jackie Dole Sherrill proceeded to that address with a warrant for the arrest of Noah Wheeler. A social worker drove with her in the same car. Three other police officers, in separate cars, also went there. Officer Sherrill went around to the back of the house. Officers Tony Davis and Steve Reid, who were dressed in police uniforms and Officer John Barnes, who was dressed in civilian clothes, went to the front door. The officers spoke to Noah Wheeler through the screen door and told him they had a warrant for his arrest. Wheeler responded with hostility. The officers attempted to enter the house and a struggle began between them and Wheeler. During the struggle one of the officer's guns somehow came out of its holster and Wheeler began to fight the officers for it. Two random shots were fired, whereupon Officer Sherrill came around to the front porch to see if everything was all right. At this juncture, a third shot was fired which hit Officer Sherrill in the chest, inflicting a wound which apparently caused death within seconds. Wheeler was finally subdued and taken to a hospital for treatment of injuries he suffered while resisting arrest.

 After the sentencing phase of the trial, the jury made written findings that Noah Wheeler (1) actually killed Officer Sherrill, (2) attempted to kill Officer Sherrill, and (3) contemplated that lethal force would be employed. They also made written findings of the following aggravating circumstances beyond a reasonable doubt: (1) Wheeler knowingly created a great risk of death to many persons, (2) the capital offense was committed for purpose of avoiding or preventing a lawful arrest or effecting escape from custody; (3) the capital offense was committed to disrupt or hinder the lawful exercise of a governmental function of the enforcement of law. They further found that these aggravating factors outweighed any mitigating circumstances (which were not enumerated), and unanimously found that Wheeler should suffer death. The trial judge entered the sentence accordingly.

 On appeal, Wheeler has adduced numerous assignments of error. Because we find one of them dispositive, we need not address them all. This appeal turns on whether the death sentence is supported by the evidence in the record. We hold that it is not, and thus we reverse as to that sentence.

 Mississippi Code Annotated, section 99-17-20 (Supp. 1978), states in part:

 No person shall be tried for capital murder, or any other crime punishable by death as provided by law, unless such offense was specifically cited in the indictment returned against the accused by setting forth the section and subsection number of the code defining the offense. . . . (Emphasis added).

 In the present case, the indictment states that Noah Wheeler" did unlawfully, wilfully and feloniously, with malice aforethought, kill and murder a human being, to-wit: Jackie Sherrill, and said Jackie Sherrill being then and there a police officer of the Hattiesburg Police Department, Hattiesburg, Mississippi, while the said Jackie Sherrill was acting in her official capacity as a police officer with the Hattiesburg Police Department, City of Hattiesburg, Mississippi, the said Noah Wheeler well knowing that the said Jackie Sherrill was a police officer in violation of Section 97-3-19 (2)(a) of the Mississippi Code of 1972, as amended, against the peace and dignity of the State of Mississippi. "(Emphasis added)

 The section and subsection cited in the indictment state, in pertinent part:

 (2) The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases:

 (a) Murder which is perpetrated by killing a peace officer or fireman while such officer or fireman is acting in his official capacity or by reason of an act performed in his official capacity, and with knowledge that the victim was a peace officer or fireman.

 There is no dispute about Jackie Sherrill's objective status. She was clearly a police officer who was killed in the line of duty. Nor is there any reasonable doubt that Noah Wheeler fired the fatal shot. The applicability of our capital murder statute to this tragedy must be determined by the requirement that the accused act" with knowledge that the victim was a peace officer. . . . "As a practical matter, this

 question depends upon whether or not Noah Wheeler saw Jackie Sherrill at the time he fired the fatal shot or, at anytime before, or had a sufficient sight of her to realize that she was a police officer.

 At no time did Noah Wheeler admit that he had seen Jackie Sherrill before the shooting. At trial, he consistently denied it. The evidence to the contrary is, to say the least, less than overwhelming. It is clear from the record that he could not have seen Officer Sherrill until immediately before the shooting, since upon her arrival at the house she had gone immediately to the rear and did not emerge until she heard the noise of the struggle outside.

 Officer Reid testified only that he saw the pistol pointed at Officer Sherrill immediately before the shot was fired. He did not see in which direction Wheeler was looking at the time. Officer Barnes gave no testimony as to the direction in which the gun was pointing at the fatal instant. He testified only that he saw the pistol pointed in the direction of Officer Sherrill immediately before the shot was fired. Officer Tony Davis said that before the fatal shot was fired, Wheeler's head was turned to the right," looking right at her. "However, on cross examination he wavered, admitting he did not know with certainty that Wheeler had seen her. Such was the only direct testimony on the crucial issue. The state argues that in addition to this, the jury had before it the evidence of certain impromptu statements allegedly made by Wheeler at the hospital. However, two of these statements cannot resolve the issue. Wheeler was said to have stated he had" popped her twice "and wondered whether she was still alive. He is also alleged to have asked a deputy," Cowboy, I shot that white girl. Is she dead yet? "However, it is undisputed that by the time Wheeler was taken from the scene of the tragedy, he was aware that Officer Sherrill had been shot. Therefore, these statements, even accepted as true, do not indicate any guilty knowledge of Officer Sherrill's status before the shot was fired. The only statement falling into that category was his alleged statement to the deputy that God had told Wheeler that it was the white girl's time to die and he" took her out. "Even so, it must be remembered that Officer Sherrill was in civilian clothes during the incident. If the conviction for capital murder is to survive, there must be such evidence as to warrant the jury in believing beyond a reasonable doubt that Wheeler saw Officer Sherrill and realized that she was a police officer and not just a" white girl. "There simply is no such evidence in this record. The closest approach to it is the testimony that Officer Sherrill was wearing her badge and a holstered pistol. There was no

 unequivocal testimony that Wheeler saw either item in the mere seconds when she was visible to him. As to the pistol, even if he had seen it, it would not have supplied the necessary scienter; it is commonly known that in our society police are not the only people who carry firearms. As for the badge, there is certainly at least a reasonable doubt that Wheeler (who, be it remembered, was rolling around on the ground in a fight with three other men) saw and recognized so small an object.

 In short, we are persuaded that this is one of those rare instances in which a jury verdict must be set aside for want of sufficient evidence to support it.

 We do not, however, find it necessary to reverse this case in toto. The evidence was not enough to convict Wheeler of capital murder, but it was more than sufficient to support a conviction for simple murder. Subsection (1) of ...

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