ON PETITION FOR REHEARING
SULLIVAN, JUSTICE, FOR THE COURT:
On the Petition for Rehearing, the appellant, Jessie Derrell Williams, argues (1) that this Court committed significant errors of law and fact in its resolution of Part VI of the original opinion; and (2) that the court failed to address appellant's Assignment of Error VII which asserted reversible error due to the State's closing argument on the sentencing phase of his trial.
The court hereby denies appellant's Petition for Rehearing as to Assignment of Error VI, however, finding that appellant's Assignment of Error VII was inadvertently omitted from the original opinion, the court does grant appellant's Petition for Rehearing for the purpose of disposing of this assignment of error only.
DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN OVERRULING WILLIAMS' MOTION FOR A MISTRIAL MADE FOLLOWING COMMENTS BY THE DISTRICT ATTORNEY DURING CLOSING ARGUMENT?
This issue arises out of the closing arguments made during the sentencing phase of the trial and Williams now contends that the district attorney improperly commented on the possibility of parole and appellate review of death sentences.
The comments by both defense counsel and the district attorney have been included in toto. Defense counsel's comments are included because on appeal the prosecution claims that the comments by the State were invited by defense counsel.
BY MR. GAUTIER: You will be reminded of these little doubts that you have. They will grow. You will be reminded of the situation. You will see things in the newspapers. Time will pass. A couple of years, maybe three; it won't be much . . . it won't be any longer than that, maybe less . . . maybe less than three. You will read in the paper about the District Attorney saying, "Don't worry, Governor." Some new attorney for Jessie Williams will have gone to the Governor and asked for a pardon, clemency and you will hear about the District Attorney saying, "Don't worry, Governor. It's not in your hands. The jury made the choice. They chose. Don't worry about it. They made the choice." That's what we read last summer. That's what we read last summer when there was an execution here. And the same District Attorney who will stand up here and tell you that you have no responsibility for this told the Governor, "Don't worry about it. The jury made the choice." Last summer was a different case . . . a lot worse case, a much worse case.
BY MR. MOORE: Now, Judge -
BY MR. GAUTIER: But the District Attorney's attitude about the death penalty is -
BY MR. MOORE: Excuse me, Mr. Gautier.
BY MR. GAUTIER: Are you making an objection?
BY MR. GAUTIER: Go ahead.
BY MR. MOORE: Judge, I want to make sure that the record is complete that since he has brought the case of Jimmy Lee Gray before the jury, that if I have to on my
closing argument, I can go in and compare the facts of the two cases.
BY MR. GAUTIER: I didn't mention any names, Judge.
BY THE COURT: Continue your argument.
BY MR. GAUTIER: (Continuing Closing Argument) Last summer's case, the case of Jimmy Lee Gray, involved a three or four year old child who was raped and sodomized, and I think orally raped also; I'm not sure. A little kid (inaudible), a small child -
BY THE COURT: Speak up loudly and clearly.
BY MR. GAUTIER: A small child . . . a three or four year old child, by a man who had already previously been convicted of murder. It was a worse case. But as I'm saying, the District Attorney's position on who is responsible hasn't changed and won't change. So don't let him stand up here and tell you that you don't have to do some serious thinking and carry some responsibility. Jessie may be a scum, but he can't die unless you decide he has got to. He can't be executed.
BY MR. MOORE: . . . I find myself somewhat restrained by the law to mention certain things, but what we call opening the door has just happened.
The thing that scares me about these type cases more than anything else, the one thing that really brings horror to me, it brings horror to each and every one of you and the citizens that you represent here today, it scares me to think what happens when a man is allowed to continue a criminal career. It appalls me to think what our justice system has done. In 1973, that man sitting right there was sentenced to ten (10) years in the penitentiary. In June of 1973, he went to jail. If he had served ten (10)
years in the penitentiary, on June of 1983, he would have still been in jail. And in January of 1983, Karon Pierce would not have been tortured and killed by his knife.
Now, Mr. Gautier wants you to give him sympathy and mercy. Mr. Gautier talks about the case this summer where a little girl was killed and it took seven (7) years to get the death penalty. Seven years. Every court in the land, he went through. Fifty-eight (58) judges, they went through . . . to make sure that every single little right of the coddled criminal was taken care of. Why did Jimmy Lee Gray kill again? Kill again? Because they let him out of jail on a life sentence. They paroled him onto the streets so he could commit the crime again.
What did their psychiatrist tell you about him? He has the internal readiness. Dr. Brown, right there. . . had the internal readiness to commit crimes when put in that favoring situation. That man right there will do it again. If you give him life in the penitentiary, there is a chance, as you have seen and and as he has opened the door to tell you, that he will do it again. Do you want a good reason to give him the death penalty? I know of no other reason that I could think of, or that you could think of.
BY MR. GAUTIER: We're going to object, may it please the Court, and ask to make a motion.
BY THE COURT: Send the jury out.
BY MR. GAUTIER: Comes the Defendant and moves the Court to declare a mistrial for the reason . . . I would like to state my reason . . . that the District Attorney has said that my client, if sentenced to the penitentiary, will be released sometime . . . if sentenced to the penitentiary for a life sentence, will be paroled and released, and this is highly improper. I have talked about life sentences. I have not said at any time, send him up there to spend his entire life. I have said give him a life sentence. Time
after time, I have been careful to say "life sentence." Not send him up there for every day of his life, but give him a life sentence. He has mentioned the possibility of parole. Prior to that, another case was discussed. The District Attorney got into that case further, but as he well knows, that was an Arizona case where the parole took place. Now, he has taken that case to decide that they parole people out of Mississippi and started talking about parole in this case . . . and that's grounds for a mistrial.
BY THE COURT: Alright, Mr. Gautier, let me say this, that I think that it was a serious mistake for you to ever mention the Jimmy Lee Gray case. However, you have chosen to mention that case, and I find it difficult, once you open the door, to restrain the State. I have no doubt that as time goes on, should this case result in a death penalty. I have no doubt that one of the many judges who will review this case will find many, many reasons to consider whether or not your client received a fair trial. But this Court does not believe that defense attorneys should be allowed to interject improper argument before a jury and then, once opening that door for the State to take up that challenge and continue that argument, that they should then be restrained. If this be error, it will be pointed out to me in years to come. Your motion is overruled. (Emphasis added).
Williams contends that the possibility of his being paroled is irrelevant to a proper sentencing determination. Mississippi Code Annotated, 99-19-101 (1972), as Amended. Williams further argues that the statute which provides for parole eligibility is not properly the subject of juror deliberation, citing Williams v. State, 445 So. 2d 798, 813 (Miss. 1984), and Johnson v. State, 416 So.2d 383, 392 (Miss. 1982). Mississippi Code Annotated, 99-19-105 (3)(a) (1972), as Amended, proscribes arbitrary factors in capital sentencing, but the argument here is that parole is discretionary.
However, the juror consideration of the possibility of parole is purely speculative, and therefore, an introduction of an
arbitrary factor into the sentencing process.
The district attorney did make an argument that the possibility of release on parole was a reason for imposing the death penalty when he stated:
That man right there will do it again. If you give him life in the penitentiary, there is a chance, as you have seen and as he has opened the door to tell you, that he will do it again. Do you want a good reason to give him the death penalty? I know of no other reason that I could think of, or that you could think of.
Williams argues that this is an appeal to the jurors to disregard the sentencing guidelines of the statute and to rely instead upon factors which are ...