BEFORE ROY NOBLE LEE, C.J., PRATHER AND SULLIVAN, JJ.
PRATHER, JUSTICE, FOR THE COURT:, FOR THE COURT:
This appeal involves the retrial of a capital murder case from Hinds County Circuit Court. Ray and Nell McWilliams were murdered at their home in Jackson. This twenty-year old, defendant Jimmy Michael (Jimbo) Stringer was indicted, along with others, for capital murder in both of their deaths. The conviction of (Jimbo) Stringer for the capital murder of Ray McWilliams was reported at 500 So. 2d 928 (1987) in which his capital murder conviction was affirmed, but his death sentence was vacated and a new sentencing hearing ordered. The instant appeal involves the indictment against Jimbo Stringer for the capital murder of Mrs. Nell McWilliams. At the first trial, Jimbo Stringer was convicted of capital murder, and upon presentation of evidence at the sentencing phase, the jury was unable to agree as to punishment. Therefore, the trial court, pursuant to Miss. Code Ann. 99-19-103 (Supp. 1988), imposed a sentence of imprisonment for life.
The merits of the first trial were previously before this Court in Stringer v. State, 491 So. 2d 837 (Miss. 1986). In that case, Stringer's conviction for capital murder was reversed and remanded for a retrial on both the guilt and sentencing phases. Id. at 841. Following the retrial, Stringer was again convicted and sentenced to life imprisonment, to run consecutively to a previous conviction for aggravated assault.
The defendant in this second trial moved to bar the State from seeking the death penalty on double jeopardy grounds since the first trial resulted in imposition of the life sentence. The trial court granted the motion and prohibited the State from seeking the death penalty. That issue, therefore, is not involved in this appeal.
Following this second conviction for Nell McWilliams' murder and the imposition of another life sentence, Stringer appeals the
verdict to this Court, citing as error the following:
(1) THE VERDICT IS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND CONTRARY TO LAW.
(2) THE LOWER COURT COMMITTED REVERSIBLE ERROR BY REFUSING TO ORDER JOHN MACK PARKER TO TESTIFY AS A WITNESS IN APPELLANT'S DEFENSE, THEREBY DEPRIVING APPELLANT OF A FUNDAMENTALLY FAIR AND RELIABLE TRIAL IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE U. S. CONSTITUTION.
(3) THE APPELLANT WAS DENIED A FAIR TRIAL BY THE INTRODUCTION OF HEARSAY AND IMPROPER BOLSTERING OF THE PROSECUTION'S WITNESSES.
(4) THE TRIAL COURT ERRED BY ADMITTING INTO EVIDENCE CERTAIN PHOTOGRAPHS THAT WERE OVERLY GRUESOME AND PREJUDICIAL AND SERVED NO LEGITIMATE EVIDENTIARY VALUE.
Since this factual situation has previously been before the Court in Stringer v. State, 491 So. 2d 837, (Jimbo Stringer's first trial on Nell McWilliams' murder), and 500 So. 2d 928 (Miss. 1987) (Jimbo Stringer's trial on Ray McWilliams' murder) a recitation of the facts will essentially mirror this Court's statement of the facts from those cases and is not repeated herein in detail, except as necessary to discuss the assignments of error.
Suffice it to say that on June 21, 1982, Ray McWilliams and his wife Nell were brutally murdered in their Jackson, Mississippi home. Arrested and charged with the murders were the appellant Jimmy Michael (Jimbo) Stringer, his father James R. Stringer, John Mack Parker, Mike Medders and Rhonda Brock. 491 So. 2d at 838. Whenever necessary, this opinion will refer to the appellant as "Jimbo" or "Jimbo Stringer" to avoid confusing him with his father.
At each of Jimbo Stringer's trials (including the case sub judice) the two principal witnesses were Mike Medders and Rhonda Brock. They testified at trial that they met with James Stringer on the day of June 21, 1982 to plan the events which were to transpire later that evening.
James Stringer was a gold, silver, and jewelry dealer who had previously done business with Ray McWilliams, who operated a similar business from his home on Cooper Road. Testimony revealed the elder Stringer was under the impression that McWilliams kept large sums of money in a safe in his home.
McWilliams did in fact have a large amount of money in the house, including over $2900.00 in his wallet and more than $29,000.00 in the safe.
The elder Stringer, Medders, Parker and Brock met early on the evening of June 21 at James Stringer's apartment. Although apparently not a participant in the original planning of the crime, Jimbo Stringer was invited to join the group once he dropped by his father's apartment, an invitation which he accepted. The five participants drove over to the McWilliams' residence and parked in the driveway. James Stringer and Rhonda Brock went to the front door. When McWilliams answered the door, he asked Stringer and Brock to sit and wait for a moment while he put on some pants, since he was clad only in his underwear at the time. Stringer told McWilliams that would not be necessary and pulled out his .357 Magnum pistol. The two men struggled for control of the gun, and in the process, the gun went off, firing into the wall. 491 So. 2d at 839.
At some point during this struggle, Jimbo Stringer, Parker and Medders entered the residence through the front door. According to Medders and Brock, Parker then shot and killed Ray McWilliams. Based on testimony from Medders, Brock and Dr. Rodrigo Galvez, the forensic pathologist who performed the autopsy on Mrs. McWilliams, she was kneeling or attempting to crawl away from the scene when Jimbo Stringer placed his shotgun to the back of her head (he was the only person carrying a shotgun) and fired, killing her instantly. Id. at 839.
Fearful of being discovered due to the loud noises, the group hurriedly left the premises, and in the process, Medders and Brock claim that Jimbo Stringer dropped one of the black gloves he was wearing. Each of the participants in the crime was eventually arrested.
Following this Court's reversal of Jimbo Stringer's conviction, he was retried on May 26-29, 1987. Stringer did not testify at either the first or second trial. On retrial, he was again convicted and received a life sentence.
II. WAS THE VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE
Under Stringer's first assignment of error, he claims the verdict in the case was against the overwhelming weight of the evidence. This Court disagrees. In this Court's opinion reversing Stringer's first conviction the following language appears:
Suffice it to say that there was substantial evidence in the record from which the jury could have concluded that Jimbo Stringer shot and killed Nellie S. McWilliams while he was engaged with the others in an attempt to rob Birty Ray McWilliams.
Stringer v. State, 491 So. 2d 837, 839 (Miss. 1986) (Emphasis added). The evidence presented on retrial was essentially the same as that offered at the original trial.
The principal witnesses for the State were Mike Medders and Rhonda Brock, two of Stringer's associates in the commission of this crime. Although both witnesses admitted to alcohol and drug abuse during the time frame surrounding the murders, and Brock also admitted to having worked as a prostitute in the past, the jury obviously found their testimony credible. It is the jury's function to assess the credibility of each witness that testifies at trial. Davis v. State, 510 So. 2d 794, 796 (Miss. 1987); Harveston v. State, 493 So. 2d 365, 370 (Miss. 1986).
Officer Lou Davis of the Jackson Police Department and a neighbor of the McWilliams', testified that he heard two gunshots and the sound of a shotgun blast at approximately 9:15 p.m., which is the time frame in which the murders occurred. It has already been noted that Jimbo Stringer was the only person who was carrying a shotgun during the commission of this brutal crime. There was also testimony from James Skinner, who had sold Jimbo Stringer a special-order shotgun in 1980.
Dr. Rodrigo Galvez, a forensic pathologist, testified about the nature of the shot that killed Mrs. McWilliams, namely that it had been fired at a downward angle, as if Mrs. McWilliams was kneeling or crawling when she was murdered. He based these conclusions on the pattern of brain tissue on the walls and floor, and by the portion of Mrs. McWilliams' head that had been blown away. His testimony in that regard corroborated the stories of Medders and Brock.
This Court's standard of review when the sufficiency of the evidence is challenged is both familiar and stringent:
Where such a point is presented to this Court on appeal, we must, with respect to each element of the offense, consider all of the evidence - not just the evidence which supports the State's case - in the light most favorable to the State. Williams v. State, 463 So. 2d 1064, 1067 (Miss. 1985); May v. State, 460 So. 2d 778, 781 (Miss. 1984); Callahan v. State, 419 So. 2d 165, 174 (Miss. 1982); Sadler v. State, 407 So. 2d 95, 97 (Miss. 1981). The credible evidence which is
consistent with the verdict must be accepted as true. Spikes v. State 302 So. 2d 250, 251 (Miss. 1974) We may reverse only where with respect to one or more elements of the offense charged, the evidence so considered is such that reasonable and fairminded jurors could only find the accused not guilty. Cook v. State, 467 So. 2d 203, 208-09 (Miss. 1985); Bullock v. State, 447 So. 2d 1284, 1286-87 (Miss. 1984); Dickerson v. State, 441 So. 2d 536, 538-40 (Miss. 1983). Matters regarding the weight and credibility to be accorded evidence are to be resolved by the jury. Neal v. State, 451 So. 2d 743, 758 (Miss. 1984); Gathright v. State, 380 So. 2d 1276,
1278 (Miss. 1980). Davis v. State, 510 So. 2d 794, 796 (Miss. 1987) (quoting Fisher v. State, 481 So. 2d 203, 212 [Miss. 1985])
Having examined the abundance of evidence in this case against Jimbo Stringer, this Court is of the opinion that it cannot be said that the verdict was against the overwhelming weight of the evidence. ...