BEFORE DAN LEE, PRATHER AND ROBERTSON.
DAN LEE, PRESIDING JUSTICE, FOR THE COURT:
Marvin Edward Hoover was convicted in the Circuit Court of Leflore County, Mississippi of capital murder of Rankin County Deputy Sheriff Travis O. Biddle. The jury did not impose the death penalty, but returned a verdict of life. Hoover was sentenced to life without parole under the recidivism statute, MCA 99-19-81. We affirm.
On the morning of February 6, 1986 Rankin County Deputy Sheriff T. O. Biddle began transporting Marvin Edward Hoover, Stephen Sutherland and Marty Hitt from the Rankin County Jail in Brandon, Mississippi to the Mississippi Department of Corrections at Parchman, Mississippi in Sunflower County. Hitt sat in the front passenger seat beside the driver, Deputy Biddle; Sutherland sat in the back seat directly behind Hitt, and Hoover sat in the back seat directly behind Deputy Biddle. All three passengers were restrained: Hitt in chains with handcuffs, Sutherland and Hoover in leather restraints with handcuffs.
Hoover and Sutherland cut through their leather restraints with a razor blade at some point during the trip. When they reached Mississippi Highway 8 near Minter City, Leflore County, Mississippi, 3.4 miles west of U.S. Highway 49E, Hoover, still handcuffed, reached over the back seat and began to choke Deputy Biddle with the handcuff chain. Sutherland reached into the front seat and took Deputy Biddle's gun. Thereafter, Deputy Biddle was shot three times with his own service revolver, dragged from the car and left in a ditch along the road, dead. Sutherland, Hoover and Hitt left the scene in Deputy Biddle's patrol car and were captured a few hours later.
On February 21, 1986, Marvin Edward Hoover and Stephen A. Sutherland were jointly indicted under 99-19-81 and 97-3-19 (2) (a), respectively, as habitual offenders for the capital murder of Deputy Biddle. The State asked for the death penalty.
Sutherland was tried, convicted and sentenced to life in August, 1986. His conviction and sentence were upheld by this Court on January 25, 1989. Sutherland v. State, 537 So. 2d 1360 (Miss. 1989).
Marvin Edward Hoover was tried and convicted of capital murder on December 4, 1989. Following the bifurcated sentencing hearing on December 5, 1986, the jury returned a verdict of life. Hoover was adjudicated an habitual offender under MCA 99-19-81 and sentenced to life without parole on December 15, 1989. Feeling aggrieved with the outcome, he appealed and assigned as error the following:
I. The Trial Court Erred in Holding a Second Sentencing Hearing and Sentencing the Appellant to Life Without Parole When the Sentencing Jury had Previously Sentenced the Appellant to Life.
II. The Trial Court Erred in Allowing the State to Present Evidence and Contend to the Jury that the Appellant Fired any of the Shots that Killed the Victim when the State had Previously Contended in the Trial of the Appellant's Co-indictee that he had Fired All of the Shots.
III. The Trial Court Erred in Refusing the Appellant's Offer into Evidence of the Previous Argument of the State in the Trial of the Appellant's Co-indictee that said Co-indictee had Fired all of the Shots that Killed the victim.
The essence of this assignment of error is whether the jury in the bifurcated trial on the charge of capital murder had the sole authority to sentence Hoover as a recidivist. Hoover contends that it does. He argues three grounds in support of this contention, each of which is addressed below. At the outset we note that this issue deals with separate and distinct procedures. After careful reading of the record and application of the law, we find no merit in any of these arguments.
Hoover's first argument in support of this assignment of error is that the enactment of 99-19-101, which established the
bifurcated procedure in capital cases wherein" the jury shall set the sentence ", eliminated the necessity of the sentencing procedure under the recidivism statute, 99-19-81, and Rule 6.04 of the Uniform Criminal Rules of Circuit Court Practice, when an indictment charges both capital murder and habitual status and a trial is conducted. He argues that conducting both procedures" can not be done, and should not be done, "" is a complete violation of all sense of fairness and justice, "and" violates a plain reading of the above statute and rule. "
A plain reading of Rule 5.13 of the Uniform Criminal Rules of Circuit Court Practice, together with the statute, 99-19-101, reveals no language providing that the jury in the guilt/sentencing phases of a bifurcated trial is to decide the issue of recidivism when a defendant is tried as an habitual offender on a charge of capital murder. Likewise, a plain reading of the habitual offender statute applicable in this case, 99-19-81 and Rule 6.04 reveals no such language. Therefore, we find that there is no merit to this argument and it is rejected.
Hoover next argues that 99-19-101 provides that only the jury in a bifurcated capital trial has the authority to sentence a defendant as an habitual offender when the indictment charges both capital murder and habitual status. His argument is not that the jury should be told that the defendant may receive life without parole at a separate hearing, but that the jury, as the sole authority to sentence, should be told of all their choices, i.e. death, life, or life without parole. Essentially Hoover is arguing that the jury should determine whether the defendant is an habitual offender and should be sentenced as such by the jury.
Hoover cites Williams v. State, 445 So. 2d 798 (Miss. 1984) and Mhoon v. State, 464 So. 2d 77 (Miss. 1985), as support of this argument. Reliance on these cases is unfounded.
Williams involved the imposition of the death penalty in a case in which the defendant had not been indicted as, nor tried as, an habitual offender. While Williams makes it clear that only the jury has the power to impose a sentence of death, Id. at 811, it has nothing to do with whether the jury has the sole authority to impose a sentence of life without parole under the habitual statute.
Mhoon involved a defendant who was indicted as an habitual offender and pleaded guilty to the underlying offense. The sentencing jury imposed the death penalty. Id. at 78. During the sentencing hearing conducted as a result of the guilty plea, the trial court prohibited" defense counsel from presenting testimony speculatively as to whether Mhoon could be sentenced as a
recidivist to life without parole. "Id. at 83. Finding no error on this point, this Court held that the habitual status of the defendant" was a matter legally just as speculative as whether he might some day be paroled "and therefore, could not be argued to the jury Id. This court did not specifically address the issue of whether ...