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02/13/98 JUSTIN UNDERWOOD v. STATE MISSISSIPPI

JUSTIN UNDERWOOD
v.
STATE OF MISSISSIPPI



DATE OF JUDGMENT: 05/25/95 TRIAL JUDGE: HON. JOHN B. TONEY COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT

NATURE OF THE CASE: CRIMINAL - DEATH PENALTY (DIRECT APPEAL) DISPOSITION AFFIRMED - 2/12/98 MOTION FOR REHEARING FILED: MANDATE ISSUED:

The opinion of the court was delivered by: Sullivan, Presiding Justice, For The Court:

EN BANC.

PART ONE: GUILT PHASE

¶1. Justin Underwood was indicted for capital murder by the grand jury for Madison County during the March Term of 1994. The indictment charged that Underwood had murdered Virginia Ann Harris on or about February 15, 1994, by shooting her with a pistol, during the course of kidnapping, in violation of Miss. Code Ann. § 97-3-19(2)(e). Underwood pleaded not guilty and proceeded to trial on May 22, 1995, in the Circuit Court of Madison County. The jury returned a verdict of guilty on the charge of capital murder on May 24. The sentencing phase of the trial was held on the following day, and the jury found that Underwood should be sentenced to death. Circuit Judge John B. Toney entered the final judgment of conviction and sentence on May 25, and ordered that Underwood be put to death by lethal injection on July 7, 1995. Following denial of his motion for judgment notwithstanding the verdict, or in the alternative for a new trial, Underwood perfected his appeal to this Court.

STATEMENT OF THE FACTS

¶2. On February 15, 1994, Lindsay Harris spoke with his wife, Virginia Ann Harris, before leaving their home in Flora to travel to his produce business at the Farmer's Market in Jackson. Mrs. Harris asked her husband to eat dinner in Jackson on his way home from work, because she planned to do some shopping in Jackson that day. Mr. Harris agreed, told his wife goodbye, and left for work at about 6:00 a.m. He worked from 6:30 a.m. until closing time at 4:00 p.m., when he loaded a delivery order in his truck and left for Flora at about 4:30 p.m.

¶3. When Mr. Harris arrived at his house, he saw his wife's car, a blue Lincoln Towncar, in the garage, but when he entered the home and called her name, there was no answer. He noticed that the lights and television were on in the den, and the curtains were drawn. Walking back to their bedroom, Mr. Harris saw that Mrs. Harris's makeup drawer was pulled open, the lights were on, and a makeup bottle was left upside down on the counter. Mr. Harris and his son Kyle both testified that it was unlike Mrs. Harris to leave the house in such a condition.

¶4. At about 5:00 p.m., Mr. Harris changed clothes and left to go feed his cattle. When he returned, Mrs. Harris still wasn't home. He showered and dressed for bed, and by 8:00 p.m. he was extremely worried about his wife. He started calling family and friends, but no one knew where she was. At midnight Mr. Harris called the police and reported Mrs. Harris as a missing person. At 12:30 or 1:00 a.m., Officer Ogden Wilson arrived at the Harris home and filled out a missing person report, which he forwarded to the sheriff's department.

¶5. At 1:30 a.m. Mr. Harris called his son Kyle and told him that Mrs. Harris was still missing. Kyle came over immediately, and the two conducted a search of the house and yard. On their way back into the house through the garage, Kyle noticed that the keys to Mrs. Harris's Lincoln were in the ignition. They also discovered Mrs. Harris's purse on the floor of the front passenger side of the car, which was not Mrs. Harris's custom. Kyle testified that his mother normally kept her purse on the seat beside her. There was no money in the purse, which was unusual for Mrs. Harris, who usually carried at least $40 with her at all times. The only unlocked car door was the driver's door, indicating that only one person had exited the car, because when the ignition was turned, all of the doors automatically locked. The front seat of the car was pushed back to its furthermost position, which was also out of character for Mrs. Harris. Mr. Harris testified that he was 5'9", and his feet didn't touch the pedals in Mrs. Harris's car with the seat that far back. Charles Scarborough, Master Sergeant Trooper with the Mississippi Highway Patrol, testified that he was 5'11" and would not be comfortable with the seat in that position. Mr. Harris also testified that he believed the Lincoln was parked in the garage differently than Mrs. Harris usually parked it. Nothing was missing from the house, other than possibly some cash from Mrs. Harris's purse. At this point, Mr. Harris and Kyle agreed that Mrs. Harris must have been kidnapped.

¶6. At 6:00 a.m. on February 16, the highway patrol, police, and sheriff's department were contacted, and detectives began arriving at the Harris home to take over the investigation. Sergeant Scarborough lifted fingerprints and fibers from Mrs. Harris's Lincoln and took pictures of the car. Only two latent prints of value were lifted from the car, and neither were matched with anyone, including the defendant, Justin Underwood. The fibers taken from Mrs. Harris's car similarly were not linked to anyone, including Underwood. Sergeant Judy Tucker with the Mississippi Highway Patrol Investigation Bureau was called to head up the investigation. Mr. Harris described to Sergeant Tucker the state of the house as he found it on the evening of February 15. He also showed her Mrs. Harris's pill box with two of five pills missing from her February 15 doses, her diet log book showing that she had consumed only two glasses of water on the morning of February 15, and a shopping list left on the kitchen counter of items that Mrs. Harris planned to buy in Jackson on February 15. Based upon the state of the house when Mr. Harris arrived home on February 15, Sergeant Tucker determined that Mrs. Harris had not left the house of her own free will.

¶7. Sergeant Tucker contacted her supervisors for further instructions, and a search of the area was organized, including an aerial search. The investigators discovered that Mrs. Harris had missed her 11:15 appointment at Jenny Craig Weight Loss Centre and her afternoon nail appointment at Mona's Nails in Jackson. Mona's had called the Harris home at 2:30 p.m. on February 15 with no response. With the help of Mrs. Harris's daughter-in-law, Lynette Harris, they determined that Mrs. Harris's red house shoes, blue robe, and a wide black belt were missing.

¶8. Around 4:40 p.m. in the afternoon on February 16, Webb Bozeman informed authorities that two of his employees had seen Mrs. Harris's car backed into a cattle gap on his property on old Highway 49, approximately 1.5 miles from the Harris home, between 9:00 and 10:00 a.m. on February 15. Testimony at trial placed Underwood's car, or one very similar to it, in a driveway near the Harris home on February 15 at approximately 10:00 or 10:30 a.m. Based upon the tip from Mr. Bozeman's employees, Sergeant Tucker and other law enforcement officers went to the cattle gap and began searching. At about 5:10, Officer Donny Spell found a black belt in a fire lane on the Bozeman property near Bozeman Lake. Continuing on around the lake shore, at about 5:20, Sergeant Tucker discovered Mrs. Harris's body, clothed in a blue pleated shirt, black knit pants, and red house shoes. Clumps of grass and weeds were clutched in her hands. Mrs. Harris only had foundation makeup on the right side of her face. At trial, Mr. Harris testified that in more than forty years of marriage, his wife had never left the house without having makeup on or without being properly dressed. After contacting the crime scene unit, Sergeant Tucker accompanied Dudley Bozeman to notify Mr. Harris and his family.

¶9. Mrs. Harris had been shot four times. Two of the bullets did not exit Mrs. Harris's body, and these were sent to the Mississippi Crime Lab for testing following the autopsy. One bullet traveled from her back through her right lung, diaphragm, and liver. A second bullet struck the right side of her back and penetrated her right lung. Dr. Steven Hayne, who performed the autopsy, testified that either of these first two gunshot wounds would have individually caused death due to extensive internal bleeding. A third bullet struck Mrs. Harris's left ear, went through the ear, struck and went through the left side of her neck, and struck her front right shoulder. Dr. Hayne testified that this gunshot would not have caused death by itself. The fourth bullet entered the front of Mrs. Harris's left arm and exited the inner arm. This gunshot wound was also nonlethal. All four of the gunshot wounds were distant, meaning that the shots were fired more than 1½ to 2 feet away, and they occurred at or about the same time. The angles of the gunshot wounds were consistent with Mrs. Harris being on her knees and the shooter standing behind her. Dr. Hayne testified that the manner of Mrs. Harris's death was homicide, and that it would have taken a minimum of fifteen to twenty minutes for Mrs. Harris to die from her wounds.

¶10. When Mrs. Harris's body was discovered, rigor mortis had set in, indicating that Mrs. Harris had been dead for at least two hours, but no more than forty eight hours. Fly larvae, or maggots, were in both of Mrs. Harris's ears, indicating that she had been dead for at least twelve to twenty four hours. Based upon Sergeant Tucker's testimony that the body was discovered at about 5:20 p.m. on February 16, and Mr. Harris's testimony that he saw his wife alive at about 6:00 a.m. on February 15, this evidence would place the time of death between approximately 6:00 a.m. on February 15, and 5:20 a.m. on February 16. One of the Harris's neighbors, Bill Richardson, testified that he heard three gunshots near Bozeman Lake around 10:15 or 10:20 a.m. on February 15.

¶11. In late January or February of 1994, Charlie Palmer, Justin Underwood's uncle, discovered that some items were missing from his home, including his pistol and some tools. Mr. Palmer spoke with Chief Deputy Hubert Roberts of the Madison County Sheriff's Department about the stolen items, but did not file an official report, because he thought that his ex-wife might have used the spare keys to enter his home. Mr. Palmer decided to check his nephew's home to find out if Underwood had taken the items. Underwood let his uncle search his car, a light yellow Oldsmobile Cutlass, in which Mr. Palmer found his tools and his pistol. On March 7 or 8, Mr. Palmer went to see Deputy Roberts again, and this time Deputy Roberts filled out a report on the items that Mr. Palmer had discovered were missing over the last month. Included in this report was the RG blue steel .32 caliber revolver, serial number 0207090, that Mr. Palmer had recovered. Although Mr. Palmer was somewhat confused about exactly when he noticed that his pistol was missing, he was certain that it was missing before March 7 or 8, when he gave this report to Deputy Roberts. The statement says that the pistol was missing in late January or early February.

¶12. When Mr. Palmer gave his statement to Deputy Roberts, he also turned over the pistol and the box of .32 caliber revolver bullets that he used with the gun to the deputy. Deputy Roberts then wrote down the gun's serial number and gave the pistol and bullets to Sergeant Tucker on March 8. No attempts were made to lift fingerprints from the gun, because it had already been handled by Charlie Palmer and Deputy Roberts before he handed it over to Sergeant Tucker. However, Steve Byrd, a forensic scientist specializing in firearms examinations at the crime lab, concluded from his examination that the bullets taken from Mrs. Harris's body were fired from Charlie Palmer's pistol. His Conclusion was corroborated by the findings of a second analyst who initialed Byrd's report.

¶13. On March 9, Deputy Roberts arrested Underwood for the burglary of Charlie Palmer's residence. Later that afternoon, Underwood gave his statement to Terry Barfield, an investigator with the Madison County Sheriff's Office, and W.H. Hathcock with the Mississippi Highway Patrol. In his statement, Underwood admitted to breaking into Charlie Palmer's home on February 5 and taking items, including the pistol that Charlie Palmer retrieved from Underwood's car on March 7.

¶14. The next day, March 10, Underwood gave another statement to Officer Barfield and Investigator Larry Saxton in which he admitted to killing Mrs. Harris by shooting her at Bozeman Lake. However, he stated that Mrs. Harris had asked him to kill her because her husband had given her AIDS. Both parties stipulated at trial that Mrs. Harris never had AIDS or HIV. Evidence was presented at trial showing that Mrs. Harris was taking amitriptyline, a medication commonly prescribed for depression. However, Mrs. Harris had undergone a radical mastectomy, so it wouldn't be unusual for her doctor to prescribe an antidepressant. Dr. George Allard, Mrs. Harris's primary care physician testified that amitriptyline could also be prescribed for an intestinal tract problem, which would be consistent with Mrs. Harris's medical history.

¶15. According to Underwood's March 10 statement made to Officers Barfield and Saxton, Mrs. Harris saw Underwood drive by on February 15 and waved for him to come to her house. Mrs. Harris knew Underwood, because he had done some yard work for her. When he came into the house, Underwood said that Mrs. Harris asked if he had a gun, so he went and got it out of his car, and she offered him money to kill her. Underwood stated that she drove them to the cattle gap, where they got out of the car and walked to the lake, stopping periodically for Mrs. Harris to catch her breath. He said that Mrs. Harris got down on her knees and started praying, so Underwood got down on his knees, and then Mrs. Harris said, "Do it." Underwood got up, closed his eyes, and shot the pistol six times. The pistol was the same one that he had taken from Charlie Palmer's house. Then he left Mrs. Harris lying on the ground, drove her car back to her house, and left in his own car.

¶16. After presenting the foregoing evidence, the State rested its case. The defense rested without calling any witnesses. Following closing arguments and jury instructions, the jury convicted Underwood of capital murder. At the close of the sentencing phase, the jury found that Underwood should be sentenced to death.

STATEMENT OF THE LAW

I.

THE TRIAL COURT ERRED IN REFUSING TO QUASH THE INDICTMENT ON THE GROUND THAT JUSTIN UNDERWOOD IS AT THIS TIME AND WAS AT THE TIME OF THE COMMISSION OF THE OFFENSE SUFFERING FROM INSANITY.

¶17. On May 18, 1994, Underwood filed his Motion for Appointment of Psychiatrist, alleging that Underwood exhibited signs of mental incompetency. In the motion, Underwood requested a mental examination to determine whether he was competent to stand trial and whether at the time of the crime he possessed the mental capacity to distinguish right from wrong. The State filed a motion on July 15, 1994, requesting that the trial court order a psychiatric evaluation of Underwood at Whitfield. That same day, Circuit Court Judge R.L. Goza ordered that Underwood be examined at Whitfield to determine whether he was competent to stand trial. On April 5, 1995, Underwood filed his Motion to Quash Indictment based upon insanity and his Motion for Separate Trial on Issues of Criminal Responsibility and Innocence. In the second motion, Underwood requested that a separate trial be held before the trial on guilt for Underwood to assert his insanity defense. Judge Toney heard arguments on these two motions and Underwood's Motion for Appointment of Psychiatrist at a pre-trial hearing on April 5.

¶18. The April 5 hearing transcript reveals that Underwood was examined by Dr. Lott at Whitfield. According to Dr. Lott's report, Underwood was able to assist his attorney, knew right from wrong and was capable of standing trial. As of April 5, 1995, Underwood had not been examined by any other psychiatrist. Judge Toney determined that Underwood's Motion for Appointment of Psychiatrist should be granted and ordered that Underwood be evaluated by a psychiatrist at the Region 8 Mental Health Center of Madison County. The Judge decided to hold his decision on the motion for a separate trial in abeyance until a later time, and he decided to make his decision on Underwood's motion to quash the indictment after his decision on the separate trial issue. Although no orders on these two motions appear in the record, apparently Judge Toney decided to deny both motions. There is no mention of any further evaluation by a second psychiatrist or any other evidence regarding Underwood's mental capacity in the record before this Court. Underwood did not raise the issue of his mental capacity in his Motion for Judgment Notwithstanding the Verdict Or, In the Alternative, Motion for New Trial.

¶19. Underwood now argues on appeal to this Court that the trial court committed reversible error by denying his motion to quash the indictment based upon mental incompetence due to insanity. He asserts that he did not appreciate the nature or seriousness of the charges against him, lacked the requisite level of intent, and was unable to offer meaningful assistance to his defense counsel. Underwood cites no cases in support of his argument, merely asserting that failing to quash the indictment violated his Fifth, Eighth, and Fourteenth Amendment rights under the United States Constitution.

¶20. The State argues that we need not consider this issue due to Underwood's failure to cite supporting authority. They also claim that this issue is waived, because Underwood did not raise mental incompetence as an issue in his motion for a new trial, because no testimony on Underwood's alleged mental problems was offered at trial, and generally because the record is insufficient to respond properly to Underwood's claim.

¶21. Underwood's brief allots only two short paragraphs of argument in support of this assignment of error. He cites no authority in support of his argument. We have held that "issues unsupported and not argued are abandoned and need not be considered." Thibodeaux v. State, 652 So.2d 153, 155 (Miss. 1995) (citing Pate v. State, 419 So.2d 1324, 1325- 26 (Miss. 1982)).

¶22. The State is incorrect in asserting that Underwood has failed to preserve this issue on appeal due to his failure to include the issue in his motion for a new trial. Where an assignment of error is evidenced in the pleadings and transcript, it is not necessary to make a motion for a new trial based upon that error. Jackson v. State, 423 So.2d 129, 131 (Miss. 1982). Here, Underwood preserved this issue for appeal by timely filing his motion to quash the indictment based upon insanity and by arguing that motion before the trial Judge.

It is elementary that a party seeking reversal of the judgment of a trial court must present this Court with a record adequate to show that an error of reversible proportions has been committed and that the point has been procedurally preserved.

(citations omitted)

Queen v. Queen, 551 So.2d 197, 199 (Miss. 1989). This Court "must decide each case by the facts shown in the record, not assertions in the brief. . . ." Burney v. State, 515 So.2d 1154, 1160 (Miss. 1987) (quoting Mason v. State, 440 So.2d 318, 319 (Miss. 1983)). The burden falls upon an appellant to ensure the record contains "sufficient evidence to support his assignments of error on appeal." Burney, 515 So.2d at 1160 (quoting Robinson v. State, 345 So.2d 1044, 1045 (Miss. 1977)).

Hansen v. State, 592 So.2d 114, 127 (Miss. 1991).

¶23. Aside from any procedural bar, Underwood's claim is not persuasive. Rule 4.08 of the Uniform Criminal Rules of Circuit Court Practice was in effect at the time of the April 5 hearing on Underwood's competency motions. Rule 4.08 states in pertinent part:

(1) Inability to Stand Trial. If before or during trial the court, of its own motion or upon motion of counsel, has reasonable ground to believe that the defendant is insane, the court shall order the defendant to submit to a mental examination by some competent psychiatrist selected by the court in accordance with Miss. Code Ann. § 99-13-11 (1972). If the examination determines that the defendant is sane, the court shall proceed to trial.

U.C.R.C.C.P. 4.08 (emphasis added). Under this rule, a trial court is obligated to order a competency hearing "whenever a reasonable question of the defendant's capacity arises." Howard v. State, 697 So.2d 415, 422 (Miss. 1997) (citing Conner v. State, 632 So.2d 1239, 1248 (Miss. 1993); Pate v. Robinson, 383 U.S. 375 (1966)). "The determination of what is 'reasonable,' of course, rests largely within the discretion of the trial Judge. He sees the evidence first hand; he observes the demeanor and behavior of the defendant." Conner, 632 So.2d at 1248.

In any criminal action in the circuit court in which the mental condition of a person indicted for a felony is in question, the court or Judge in vacation on motion duly made by the defendant, the district attorney or on the motion of the court or Judge, may order such person to submit to a mental examination by a competent psychiatrist selected by the court to determine his ability to make a defense; provided, however, any cost or expense in connection with such mental examination shall be paid by the county in which such criminal action is pending.

¶24. In Conner, this Court held that the trial court did not manifestly err in failing to hold a competency hearing for a schizophrenic defendant who was being treated with medication, even though the defendant had exhibited suicidal behavior and appeared confused during part of the court proceedings. Conner, 632 So.2d at 1247-51. We relied on the defendant's psychiatric examination, which revealed that he was competent to stand trial, and the lack of evidence in the record that the defendant was unable to assist his attorney or lacked understanding or appreciation of the proceedings and their significance. Id. at 1251. "The Court must assume that the trial court objectively considered all the facts and circumstances, including those which are not available to this Court, which bore upon Conner's competence to stand trial." Id. In Greenlee v. State, 437 So.2d 1010 (Miss. 1983), we found that the trial court was not even required to order a second psychiatric evaluation after the first evaluation revealed that the defendant was competent to stand trial. Greenlee, 437 So.2d at 1012.

¶25. In this case, Judge Toney, upon motions by both the defendant and the State, ordered that Underwood undergo a psychiatric examination. Dr. Lott at Whitfield determined that Underwood was competent to stand trial. However, Judge Toney further ordered that Underwood be examined by another psychiatrist at the Region 8 Mental Health Center of Madison County. The results of that examination do not appear in the record before this Court, but the Judge determined that Underwood's trial should proceed. Even if the second psychiatrist's report revealed evidence of Underwood having mental problems, the trial Judge was not unreasonable in refusing to quash the indictment where Underwood apparently failed to bring those findings to the attention of the court. Based upon the record before us, it appears that Underwood did not follow up on any claims of mental incompetency. With no evidence in the record of Underwood being mentally incompetent and only Dr. Lott's report before him declaring Underwood capable of standing trial, Judge Toney did not abuse his discretion by proceeding to trial. By ordering the two psychiatric examinations and reviewing Dr. Lott's report, Judge Toney satisfied the requirements under Rule 4.08 and § 99-13-11. This issue is without merit.

II.

THE PROSECUTION'S STRIKES FOR CAUSE OF JURORS BASED SOLELY UPON THEIR VIEWS ON CAPITAL PUNISHMENT SYSTEMATICALLY EXCLUDED BLACKS FROM THE JURY AND VIOLATED JUSTIN UNDERWOOD'S RIGHT TO A FAIR TRIAL.

¶26. Underwood next argues that the State's systematic exclusion of blacks due to their opposition to capital punishment denied him of his rights to due process and equal protection. He claims that the challenges for cause on the basis of anti-death penalty views resulted in exclusion of blacks from the jury. He does not complain about the exclusion of any particular juror, only making a general objection to all of the jurors excused for cause on this basis. Underwood also asserts that a "death qualified" jury is incapable of rendering an impartial verdict.

¶27. On April 5, 1995, Underwood filed his Motion to Strike the Death Qualification Voir Dire Question and to Limit Disqualification for Particular Views on Punishment. Judge Toney ruled that pursuant to Witherspoon v. Illinois, 391 U.S. 510 (1968), the State would be allowed to ask potential jurors if they had any "conscientious scruples" against the death penalty, but decided that those jurors would also be asked if they could set aside their views and follow the law. Jurors who stated that they would be able to set aside their personal opinions and follow the Judge's instructions would be allowed to remain.

¶28. At the close of voir dire, on the State's motion and over Underwood's continuing objection, the trial court excused ten jurors for cause based upon their views opposing the death penalty. All ten of those jurors stated during individual voir dire that they would not be able to follow the law if that meant considering the death penalty during sentencing. Their stance did not stop at the level of a mere general objection to the death penalty. Underwood does not argue that these jurors would have been fair and impartial, but that their removal resulted in diminishing the number of black jurors left on the venire. The record reflects that two of these ten jurors were white; the race of the other eight is not identified. This may imply that all of the other eights jurors excused were black, but Underwood again fails to ensure that the record contains sufficient evidence to support his assignment of error. Hansen, 592 So.2d at 127. However, the race of the excused jurors is immaterial in light of the law governing this issue.

¶29. In Witherspoon, 391 U.S. at 522, the United States Supreme Court held that "a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction." Characterizing Illinois's sentencing scheme, the Court stated, "In its quest for a jury capable of imposing the death penalty, the State produced a jury uncommonly willing to condemn a man to die." Id. at 520-21. The Supreme Court clarified its Witherspoon decision in Wainwright v. Witt, 469 U.S. 412 (1985), adopted by this Court in Fuselier v. State, 468 So.2d 45, 53-55 (Miss. 1985). Reaffirming its decision in Adams v. Texas, 448 U.S. 38 (1980), the Court set out the standard for determining when it is proper to exclude a juror for cause based upon his views on the death penalty. "That standard is whether the juror's views would 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" Wainwright, 469 U.S. at 424 (quoting Adams, 448 U.S. at 45).

The state of this case law leaves trial courts with the difficult task of distinguishing between prospective jurors whose opposition to capital punishment will not allow them to apply the law or view the facts impartially and jurors who, though opposed to capital punishment, will nevertheless conscientiously apply the law to the facts adduced at trial.

Id. at 421. "eference must be paid to the trial Judge who sees and hears the juror." Id. at 426.

¶30. At first glance this issue may appear to be controlled by Batson v. Kentucky, 476 U.S. 79 (1986). In Batson, the United States Supreme Court held that peremptory challenges could not be used to purposefully exclude members of the jury based solely upon their race. Batson, 476 U.S. at 89. However, Batson only applies to peremptory challenges, not challenges for cause. Because challenges for cause by nature must be made based upon a race-neutral reason, they are not subject to the Batson inquiry. Furthermore, we have previously held that opposition to the death penalty is a race-neutral reason for purposes of Batson. Mack v. State, 650 So.2d 1289, 1300 (Miss. 1994).

¶31. Although he does not cite Batson directly, Underwood's argument combines the reasoning in Batson, Witherspoon, and Wainwright. We have previously addressed a very similar issue in Pinkney v. State, 538 So.2d 329, 346-47 (Miss. 1988), vacated on other grounds by Pinkney v. Mississippi, 494 U.S. 1075 (1990). Pinkney argued that the prosecution used Witherspoon challenges for cause in violation of Batson to further the elimination of blacks from the jury. Pinkney, 538 So.2d at 346. This Court held:

The challenges for cause are to be examined under the Witherspoon cases and peremptory challenges are to be examined under Batson. If each of the challenges are found to be constitutionally sound, then the combination is also sound. A successful Witherspoon challenge against a black juror is not relevant, because ". . . a defendant has no right to a petit jury composed in whole or in part of persons of his own race."

Id. at 346-47 (quoting Batson, 476 U.S. at 85 (quoting Strauder v. West Virginia, 100 U.S. 303, 305 (1879))).

¶32. Applying this reasoning to the current case, Underwood's argument fails. The State's challenges for cause were all proper under the standard set out in Wainwright. The race of those jurors, therefore, is not relevant. We give deference to the trial Judge's decision to excuse the ten jurors for cause, and do not find merit in this assignment of error.

III.

THE TRIAL COURT ERRED IN ADMITTING THE INVOLUNTARY CONFESSION OF JUSTIN UNDERWOOD INTO EVIDENCE IN VIOLATION OF THE FIFTH AND SIXTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

ΒΆ33. In his third assignment of error, Underwood complains about the admission into evidence of two statements which he made to police on March 9 and 10, 1994. Underwood argues that the statements were not made voluntarily and should have been suppressed at trial. He takes issue with the fact that Officer Barfield transcribed the statements instead of having Underwood write out his own confessions, and points to the errors in the dates of the ...


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