The opinion of the court was delivered by: Pittman, Presiding Justice, For The Court:
DATE OF JUDGMENT: 01/27/93
TRIAL JUDGE: HON. JAMES C. SUMNER
COURT FROM WHICH APPEALED: GRENADA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: LELAND H. JONES
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
DISTRICT ATTORNEY: DOUG EVANS
NATURE OF THE CASE: CRIMINAL - DEATH PENALTY (DIRECT APPEAL)
MOTION FOR REHEARING FILED:
¶1. Frederick Bell, known as Freddie, was convicted in the Circuit Court of Grenada County of the capital murder of Robert C. "Bert" Bell and was sentenced to death. Now before us is his appeal of that conviction and sentence. We have carefully considered this appeal and the specific points raised in Bell's briefs, and have reviewed the record in the case for plain and cumulative errors which may have impacted on his right to a fair trial, the conviction and the sentence. We find none and affirm both the conviction and the sentence.
¶2. Frederick Bell and Anthony Joe Doss were indicted on July 19, 1991, for murdering Robert C. "Bert" Bell *fn1 with malice aforethought while in the commission of the crime of armed robbery, in violation of Miss. Code Ann. § 97-3-19(2)(e) on or about May 6, 1991. Following a trial, on January 26, 1993, the jury rendered its verdict as follows:
We, the jury, unanimously find from the evidence beyond a reasonable doubt that the following facts existed at the time of the commission of the capital murder:
1) That the defendant, Frederick Bell actually killed Robert C. "Bert" Bell.
2) That the defendant, Frederick Bell, attempted to kill Robert C. "Bert" Bell.
3) That the defendant, Frederick Bell, intended the killing of Robert C. "Bert" Bell take place.
4) That the defendant, Frederick Bell, contemplated that lethal force would be employed during the commission of the crime of armed robbery.
Next, We, the jury, unanimously find that the aggravating circumstances of:
1) Whether defendant, Frederick Bell, was previously convicted of another capital offense or of a felony involving the use or threat of violence to the person.
2) Whether the capital murder of Robert "Bert" Bell was committed while the defendant was engaged or was an accomplice in the commission of armed robbery.
3) The capital murder of Robert "Bert" Bell was committed for the purpose of avoiding or preventing a lawful arrest.
is/are sufficient to impose the death penalty and that there are insufficient mitigating circumstances to outweigh the aggravating circumstance(s), and we further find unanimously that the Defendant should suffer death.
¶3. Sparks' Stop-and-Go is a small grocery store on Cadaretta Road in rural Grenada County. Until the afternoon of May 6, 1991, Bert Bell worked in the store as a clerk. The State's presentation was to the effect that early that afternoon Frederick Bell, Anthony Joe Doss, Robert Kennedy James and Frank Coffey left Coffey's house for the short journey up to Sparks'. Testimony showed that the four of them entered Sparks'and purchased some chips and beer from Bert Bell. They went outside, sat on a picnic table, drank the beer and ate the chips. Bell talked of going to Memphis and said that he needed some money. As they talked, he announced he was going to rob the store and showed the group a .22 caliber pistol which he had in his possession. Doss also had a gun at this point, but, apparently, it would not fire. James and Coffey testified that they refused to take part in the action and departed the scene as Bell and Doss went in the store. A minute or so later, James and Coffey heard gunshots and hollering.
¶4. When Bell and Doss caught up with the other two, they showed them a .38 caliber pistol which they had taken from the store along with a box of bullets and a money bag. At this point, Bell threatened to kill James because he did not want any witnesses. Coffey and Doss stepped in to prevent this. Both James and Coffey testified that Bell said he shot Bert.
¶5. After the incident Bell, Doss and Coffey were taken to Memphis by Bernard Gladney. On the way to Memphis, Bell again said he wanted to kill James to prevent him from telling anyone about the Grenada murder. According to the criminal investigator in charge, two of the guns were recovered from the house where Bell was found in Memphis. The third was found in Gladney's vehicle.
¶6. There was no direct testimony concerning what actually went on in the store, although there was physical evidence offered by the State. The foregoing narrative is based principally on the testimonies of James and Coffey. Bell maintained at trial and in statements to investigators that he was in Memphis on the day of Bert's murder. There were no corroborating witnesses as to Bell's alibi, and in fact James' sister and Coffey's girlfriend testified that they saw Bell with the rest of the men in Grenada on the day of the tragedy.
¶7. James Shelby Sparks, who owned the grocery, testified that the .38 caliber gun, which was recovered following Bell's arrest in Memphis, a box of shells, and an old money bag were taken from the store during the robbery. The State also showed by ballistic evidence that bullets removed from Bert's body were fired from that gun. The remaining wounds were caused by bullets of a smaller caliber matching the characteristics of a .22. The criminal investigators could not match any of the fingerprints found in the store to Bell. THE ISSUES PRESENTED
¶8. In this appeal, Frederick Bell presents sixteen issues for consideration in reviewing the guilt phase of his trial and eleven as to the sentencing phase. Those issues, as stated by the appellant, are as follows.
I. THE VOIR DIRE WAS INADEQUATE TO REVEAL JUROR PREJUDICE WITH THE RESULT THAT BELL WAS DENIED A FAIR AND IMPARTIAL TRIAL AND SENTENCING JURY
A. The jury had disproportionate ties to the victim or law enforcement.
B. Use of leading questions
C. Juror self-assessments
D. Lack of individual voir dire
II. THE TRIAL JUDGE ERRONEOUSLY DENIED BELL'S CHALLENGES FOR CAUSE TO FIVE JURORS.
III. THE TRIAL COURT COMMITTED PLAIN CONSTITUTIONAL ERROR IN EXCUSING WOMEN FROM THE JURY SOLELY BECAUSE THEY HAD SMALL CHILDREN.
IV. THE COURT ERRED IN GIVING INSTRUCTIONS NO. S-2 AND S-3 WHICH ALLOWED BELL TO BE CONVICTED OF CAPITAL MURDER ON FACTS SHOWING ONLY THAT HE WAS AN ACCESSORY AFTER THE FACT.
V. BELL'S CONVICTION MUST BE REVERSED BECAUSE INSTRUCTION S-2 IMPROPERLY ASSUMES THAT A MURDER HAD BEEN COMMITTED.
VI. THE TRIAL COURT ERRED IN REFUSING DEFENDANT'S REQUESTED JURY INSTRUCTION DG-14 WHICH WOULD HAVE TOLD THE JURY TO CONSIDER THE EVIDENCE OF ROBERT JAMES WITH GREAT CARE AND CAUTION.
VII. THE TRIAL COURT ERRED IN REFUSING DEFENDANT'S REQUESTED JURY INSTRUCTIONS DG-12 AND DG-15 ON THE EFFECT OF IMPEACHED TESTIMONY AND DG-16 ON THE EFFECT OF A PRIOR INCONSISTENT STATEMENT.
VIII. THE COURT COMMITTED REVERSIBLE ERROR IN PROHIBITING BELL FROM IMPEACHING ACCOMPLICE FRANK COFFEY FOR BIAS WITH EVIDENCE THAT HE HAD RECEIVED LENIENT TREATMENT ON A MURDER CHARGE IN MEMPHIS.
IX. THE COURT ERRED IN ALLOWING EVIDENCE THAT THE PROSECUTOR TOLD COFFEY TO TELL THE TRUTH.
X. THE TRIAL COURT ERRED IN OVERRULING BELL'S OBJECTION TO EVIDENCE THAT HE WAS GUILTY OF ANOTHER OFFENSE.
XI. PROSECUTORIAL MISCONDUCT IN THE CLOSING ARGUMENT IN THE GUILT PHASE MANDATES REVERSAL.
A. Good character of the victim
D. Personal opinion and facts not in evidence
XII. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN OVERRULING BELL'S MOTION FOR AN EXPERT.
XIII. THE COURT ERRED IN OVERRULING BELL'S OBJECTION TO EXPERT TESTIMONY ABOUT THE POSITION OF THE DECEASED'S HANDS AT THE TIME A WOUND WAS RECEIVED.
XIV. THE COURT ERRED IN DENYING BELL'S REQUEST TO INSTRUCT ON THE LESSER INCLUDED OFFENSE OF SIMPLE MURDER.
XV. THE COURT COMMITTED PLAIN ERROR IN GIVING INSTRUCTION S-1 AT THE GUILT PHASE WHICH CONSTRUCTIVELY AMENDED THE INDICTMENT.
XVI. THE ADMISSION OF GRUESOME PHOTOGRAPHS OF THE DECEASED DEPRIVED BELL OF A FAIR TRIAL.
XVII. THE TRIAL COURT COMMITTED PLAIN ERROR IN GRANTING SENTENCING PHASE INSTRUCTION S-1.
A. No evidence to support aggravator that the offense was committed after Bell had previously been convicted of another capital offense.
B. Instructing that the aggravating circumstance that the capital murder was committed during the course of a robbery could be found if the jury found Bell was an "accomplice in the commission of armed robbery."
C. Allowing the jury to consider the aggravating circumstance of "avoiding or preventing a lawful arrest" where the evidence did not support giving that aggravator.
D. Failure to define "avoiding or preventing a lawful arrest" as an aggravating circumstance.
E. S-1 is erroneous because it has a signature line only under the death option.
F. The instruction also allows for double-counting of the robbery aggravating circumstance.
G. S-1 should not have been granted because it fails to require the jury to make specific written findings of mitigating circumstances.
H. S-1 was erroneously granted because it tells the jury that the mitigating circumstances must outweigh the aggravating circumstances in order to imposea life sentence.
XVIII.BELL'S SENTENCE MUST BE REVERSED BECAUSE THE TRIAL JUDGE DENIED HIS REQUEST TO INSTRUCT THE JURY THAT THE STATE HAD THE BURDEN OF PROVING THAT THE AGGRAVATING CIRCUMSTANCES OUTWEIGHED THE MITIGATING.
XIX. THE JURY FINDINGS ON SENTENCE ARE TOO UNCERTAIN AND UNRELIABLE TO SUPPORT A DEATH SENTENCE.
XX. CUMULATIVE ERROR IN THE PROSECUTOR'S ARGUMENT IN THE SENTENCING PHASE REQUIRES REVERSAL.
XXI. THE TRIAL COURT COMMITTED REVERSIBLE ERROR AT THE SENTENCING PHASE IN ALLOWING TESTIMONY ABOUT BELL'S REPUTATION FOR PEACE AND VIOLENCE WHEN BELL HAD NOT PUT THAT REPUTATION AT ISSUE AND IN ALLOWING THE PROSECUTOR TO ARGUE THAT IT SHOULD BE USED AS AN AGGRAVATING CIRCUMSTANCE.
XXII. THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF THE DETAILS OF BELL'S PRIOR CONVICTION.
XXIII.THE COURT ERRED IN REFUSING BELL'S INSTRUCTIONS DS-6 AND DS-10 THAT TELL JURORS THEY NEED NOT BE UNANIMOUS IN FINDING MITIGATING CIRCUMSTANCES AND IN GIVING INSTRUCTIONS WHICH CREATED AN UNACCEPTABLE RISK THAT THE JURY BELIEVED ITS FINDINGS ON MITIGATION HAD TO BE UNANIMOUS.
XXIV. BELL'S SENTENCE MUST BE REVERSED BECAUSE THE JURY WAS INSTRUCTED THAT IT COULD CONSIDER NON-STATUTORY AGGRAVATING CIRCUMSTANCES.
XXV. THE TRIAL COURT'S ANTI-SYMPATHY INSTRUCTION COUPLED WITH THE DENIAL OF A MERCY INSTRUCTION VIOLATED BELL'S RIGHTS UNDER THE EIGHTH AND FOURTEEN AMENDMENTS TO THE UNITED STATES CONSTITUTION AND THE MISSISSIPPI CONSTITUTION.
XXVI. THE TRIAL COURT COMMITTED PLAIN ERROR IN NOT INSTRUCTING ON WHAT THE EFFECT OF BELL'S TENNESSEE SENTENCE WOULD BE IF THE JURY SENTENCED HIM TO LIFE.
XXVII.THE DEATH PENALTY IS DISPROPORTIONATE IN THIS CASE.
I. ADEQUACY OF THE VOIR DIRE
¶9. Bell urges that the voir dire of the jury at his trial was so flawed as to be meaningless and that as a result the jury was excessively weighted in favor of the prosecution by the presence of jurors with ties to the deceased and to law enforcement so as to deprive him of the protection guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. Specifically, he points out that eight of the twelve jurors either had relatives in law enforcement or had ties of family or friendship with the deceased or with his family. He argues that this was at least in part due to the trial Judge's conduct in examining the panel with leading questions suggesting to the jurors the proper answers, his failure to conduct meaningful individual examination of the panel members, and his reliance upon the members' self-assessment of their ability to give Bell a fair trial.
¶10. We cannot today know how the trial Judge would have conducted his voir dire if Bell had objected or raised these issues before him, because the defense gave him no opportunity to consider them. No objection was made as to the manner of the Judge's questioning or to his decisions on challenges for cause. When the panel was tendered to the defense after the State's challenges for cause, six of the eight were acknowledged as acceptable. The last two were accepted after Bell had exhausted his challenges, but no request for additional challenges was made. Following trial, his post-trial motions raised no questions as to the voir dire procedures. We have held and hold today that a party who fails to object to the jury's composition before it is empaneled waives any right to complain thereafter. Hunter v. State, 684 So. 2d 625, 631 (Miss. 1996); Myers v. State, 565 So. 2d 554, 557 (Miss. 1990); Pickett v. State, 443 So. 2d 796, 799 (Miss. 1983). In the present case, any flaws in the Judge's examination of the panel are mitigated by the leeway allowed defense counsel in his phase of the voir dire.
¶11. Having said this, we have also examined the record of the voir dire by the trial court as to possible plain error, and although we cannot say that the manner of examining the jury panel was desirable, its defects do not rise to the level of fundamental constitutional error. We do note, however, that trial Judges should exercise caution in performing their profound duty to select fair, impartial and competent juries. Words coming from the Judge bear special weight with those citizens who are asked to try the facts of cases, both civil and criminal. Care should be taken that the nuances imbedded in the Judges' questions do not suggest that there is only one proper answer, and that questions are asked in a way that would not cause one, from fear or embarrassment, to give anything less than frank, honest answers. Questions such as "Do you know of any reason that you cannot be fair," are of little help, as they require an uncommon self diagnosis. In Fisher v. State, 481 So. 2d 203, 222 (Miss. 1985), we censured "accepting at face value the assurances of the jurors impaneled that they could ignore what they had read and heard..." The voir dire in this case was extremely poor, however, counsel for the defendant acquiesced in the voir dire and further counsel for the defense was unfettered in his own voir dire.
¶12. Bell did, prior to voir dire, move for an individual, sequestered voir dire of the panel. He presented no argument or cause supporting this motion, and it was denied. As we said in Hansen v. State, 592 So. 2d 114, 126 (Miss. 1991), cert. denied, 504 U.S. 921(1992), and in Ballenger v. State, 667 So. 2d 1242, 1249 (Miss. 1995), cert. denied, 116 S. Ct. 2565, 135 L.Ed. 2d 1082 (1996), this is a matter within the sound discretion of the trial Judge. While not requiring the use of sequestered voir dire, Rule 5.02 of the Uniform Criminal Rules of Circuit Court Practice does, within the court's discretion, allow it, but only on good cause shown. II. THE DENIAL OF CHALLENGES FOR CAUSE
¶13. Bell next complains that five jurors, as to whom the Judge denied challenges for cause, should have been excused because of their relationships to the victim, to other jurors, or to law enforcement. Because they were not, he was compelled to use five of his peremptory challenges to exclude them, thus, the argument goes, being deprived of a full twelve peremptory challenges to be used on the remaining panel. He is particularly aggrieved by the trial court's reliance on these jurors' self-assessments of their ability to be fair and unbiased. In summary, the Judge's voir dire of these went as follows.
Juror Burns' husband was a retired Washington County police officer, and she had, in the past, worked with the victim's mother for about six months. She told the court she did not think this would affect her ability to be impartial. The judge asked her what she meant by "didn't think," and she responded that she was certain she could Judge the case on the evidence presented.
Juror Cook stated that her father had been a deputy sheriff in Grenada three or four years prior to trial. In addition, her mother was also on the panel. The Judge stated that he would not allow both of them to sit on the jury but would not dismiss her because her father had been a deputy several years ago.
Juror Haley had a business relationship with the father for about six months prior to voir dire. While doing business, the father told him he knew Haley had been selected to be on the panel and that was good, because "we need good jurors." The Judge ruled that the remark was made in the course of business, and Haley gave strong, vigorous answers that their relationship was only one of business.
Juror Leverette's wife knew who the victim's mother was through work, and he also went to church with the victim. The juror told the Judge this would not affect him. However, during Bell's voir dire of the jurors, Leverette stated that he did send a card to the victim's family. The Judge denied the challenge for cause stating, "[t]he sending of a card is an expression of sympathy as a member of the church, . . . and I don't think it does indicate that he has any feelings about this case."
Juror Sheffield owned an auto-parts business where the victim's father had done some business over the past twenty- five years. They had occasionally attended the same dove shoots, though not traveling to them together. He stated that he was not uncertain about his ability to be fair and impartial. The Judge denied the challenge for cause, because the business was one where the victim's father only occasionally came in to purchase parts, and the two had never done anything together socially, except, perhaps, be at dove shoots to which they were both invited.
¶14. The circuit Judge has wide discretion in determining whether to excuse prospective jurors, including those challenged for cause. Scott v. Ball, 595 So. 2d 848, 849 (Miss. 1992); Burt v. State, 493 So. 2d 1325, 1327 (Miss. 1986). The Judge will be reversed only upon a finding of an abuse of that discretion. Berry v. State, 575 So. 2d 1, 9 (Miss. 1990). Bell would have the two jurors who were related to former law enforcement officers disqualified for that fact alone. However, as enunciated in Mhoon v. State, 464 So. 2d 77, 81 (Miss. 1985), "there is no reason why an officer or an officer's relative should not serve on a jury if otherwise qualified to follow the law and the evidence." See also Cook v. State, 242 Miss. 29, 134 So. 2d 151 (1961). In Mhoon, the Court reversed the conviction based not on the fact that someone with law enforcement ties sat on the jury, but rather on the disproportionate part that such connections played in the jury composition. Five of the jurors there had such connections, and the jury foreman was a uniformed officer while sitting, a circumstance which the Court described as "unique" and "novel." Id. at 82. Mhoon endorsed the practice of allowing additional peremptory challenges to the defense. In the present case, Bell did not request additional challenges.
¶15. As to Jurors Burns, Haley, Leverette and Sheffield, they each disclosed acquaintances and business relationships with relatives of the deceased. However, each of them declared, under oath, that their relationships would not prevent them from following the court's instructions and applying it fairly to the facts of the case. While the Judge's voir dire may not have probed as deeply as Bell thinks the questions should have into these jurors' ability to try the case fairly, Bell, of course, had the opportunity to pursue any questions through his attorney's examination of the jurors. He did not choose to do so.
¶16. Mere acquaintance or even family relationships with parties or those related to parties is not sufficient to require that a juror be excused for cause. In American Creosote Works of La. v. Harp, 215 Miss. 5, 60 So. 2d 514 (1952), we declined to reverse the trial Judge who failed to exclude a juror who indicated that he lived in the same community with a party and was a member of the same church and lodge, but who stated under oath that these facts would not influence his verdict. In Rush v. State, 278 So. 2d 456 (Miss. 1973), although a prospective juror knew the defendant and had obtained a judgment against him, ...