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MARCH 29, 1989




Today's appellant, together with an accomplice, developed a rather sordid plan of robbery and when the drunken victim did not cooperate, stabbed him repeatedly with his knife. Convicted of capital murder, appellant presents questions regarding the legal sufficiency of the evidence against him, the admissibility of his confession, the trial judge's interrogation of a witness and the correctness of a jury instruction regarding the offense charged in the indictment. We have carefully reviewed each point, find them without legal merit, and affirm.


 Robert Brent Layne was born May 31, 1966. In February of 1986 he was living in the Maison d'Orleans Apartments in Biloxi, Mississippi, and working at Ward's Restaurant. In the early evening hours of Monday, February 3, 1986, Layne went to visit his friend, Alan Dickinson, who lived with his girlfriend, Suzanne Sekul. Layne and Dickinson played cards

 and drank beer from 7:00 p.m. until 10:00 p.m. They then left the apartment, driving in Dickinson's car to a cocktail lounge known as Le Bistro. The clientele of Le Bistro is composed primarily of homosexual men and the establishment has a reputation of being a" gay bar ". Layne and Dickinson planned to represent themselves as male prostitutes, allow themselves to be" picked up "by a homosexual man, and then, when the opportunity presented itself, rob that person.

 Soon after their arrival at Le Bistro, Layne and Dickinson spotted George Edwards and approached him as he left the bar. Edwards invited them back to his apartment. Layne rode with Edwards while Dickinson followed in his car. Edwards, 40 years of age, worked as the maitre d' at the White Pillars Restaurant in Biloxi. Though a rather large man, Edwards appeared to be a" easy mark "to Layne and Dickinson as he was heavily intoxicated.

 After arriving at Edwards' apartment, the two sat down, conversed with their intended victim, listened to music and drank more beer. After approximately thirty minutes Layne maneuvered to a position behind Edwards and struck him over the head with a plaster figurine. Stunned, Edwards staggered a few feet and lay down upon the living room couch. He appeared to fall asleep.

 Layne stood watch over the apparently unconscious Edwards while Dickinson rifled the bedroom looking for valuables. Dickinson returned to the living room, his pockets bulging with watches and other trinkets, and the two started to leave. Edwards, however, awoke and attempted to prevent Layne's escape. A scuffle ensued and Layne stabbed Edwards approximately a dozen times. Layne fled, leaving George Edwards to bleed to death on the floor of his living room.

 After leaving Edwards' apartment, Layne discovered that Dickinson had left without him, so he returned on foot to Dickinson's apartment. After he arrived, the two inventoried the watches and jewelry taken from Edwards' bedroom. In sum, Dickinson had taken $19.00 in cash, two or three watches, a half-dozen men's and women's rings, some cigarette lighters and a small automatic pistol.

 On April 9, 1986, Robert Brent Layne was indicted by a Harrison County Grand Jury for the capital murder of George Edwards. The case was called for trial on June 23, 1986, and in due course the jury found Layne guilty as charged. Sentence was set by the jury at life imprisonment.

 Layne now appeals to this Court.


 Layne argues that the Circuit Court erred when it refused to grant his motion for a directed verdict made at the close of the prosecution's evidence, and the subsequent renewals of that motion made in the form of his request for a peremptory instruction and post-trial motion for judgment of acquittal notwithstanding the verdict. He cites the familiar Weathersby rule. See Weathersby v. State, 165 Miss. 207, 209, 147 So. 481, 482 (1933). Weathersby, of course, is nothing more than a particularized version of our general standards according to which courts must decide whether in a criminal prosecution the accused is entitled to a judgment of acquittal as a matter of law. Harveston v. State, 493 So. 2d 365, 370-71 (Miss. 1986).

 The evidence in this case creates little doubt but that the jury could reasonably have found that Layne murdered Edwards with a knife while engaged in the commission of the crime of robbery. See Miss. Code Ann. 97-3-19 (2)(e) (Supp. 1988); Smith v. State, 530 So. 2d 155, 157 (Miss. 1988); Jackson v. State, 527 So. 2d 654, 658 (Miss. 1988); Burge v. State, 472 So. 2d 392, 395 (Miss. 1985); Fairley v. State, 467 So. 2d 894, 902 (Miss. 1985); Fairchild v. State, 459 So. 2d 793, 798 (Miss. 1984); Berry v. State, 455 So. 2d 774, 776 (Miss. 1984).

 The assignment of error is denied.


 Layne argues that the Circuit Court erred when it denied his motion to suppress the written statement he gave to Biloxi Police officers.

 Layne was apprehended at approximately 3:20 a.m. on the morning of February 5, 1986. He was read his Miranda rights *fn1 at that time. Some two hours later, and after he had been informed of his rights at least two more times, Layne gave a recorded statement to Inspector Rodney McGilvary and Det. Dan Russell of the Biloxi Police Department. At trial a transcription of this taped statement was admitted into evidence over Layne's objection.

 At the pre-trial suppression hearing, Patrolman Gerald Forbes, who transported Layne to the police station, stated that in his brief conversations with the defendant he advised Layne that the best policy would be to tell the truth. Forbes stated that Layne admitted to him that, although he had been present when Edwards was killed, the stabbing was actually perpetrated by someone named" Scottie ".

 Det. Russell testified that he administered the standard Miranda warnings to Layne at the time that he was arrested. In addition, Russell was present when Layne executed his Waiver of Rights form and when Layne made his recorded statement to the authorities. Russell testified that the only promise that was given to Layne while he was in police custody was that if he were to be cooperative with the investigation, the district attorney would be informed of this fact.

 Layne testified at the suppression hearing. He claimed that he was not informed that the recorded statement could be used against him and he thought that his conversations with the police were" off the record ".

 The determination whether a confession was freely and voluntarily given is the function of the Circuit Court, sitting as fact-finder. The court must determine whether the accused has been adequately warned, and whether, under the totality of the circumstances, he has voluntarily and intelligently waived his privilege against self-incrimination. Jones v. State, 461 So. 2d 686, 696-97 (Miss. 1984); Edwards v. Arizona, 451 U.S. 477, 486, 101 S. Ct. 1880, 1885, 68 L.Ed.2d 378, 387 (1981). Where the defendant claims that the confession was a result of police coercion or promise of leniency, and therefore involuntary, the prosecution has the burden of proving all facts relevant to admissibility beyond a reasonable doubt. Pinkney v. ...

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