Prather, C.j., Sullivan And Pittman, P.jj., And Mills, J., Concur. McRAE, J., Concurs IN Result Only. Smith, J., Dissents With Separate Written Opinion Joined BY Roberts, J. Waller, J., Not Participating.
The opinion of the court was delivered by: Banks, Justice, For The Court:
DATE OF JUDGMENT: 08/11/94
TRIAL JUDGE: HON. JAMES E. THOMAS
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: JAMES L. DAVIS, III
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
DISTRICT ATTORNEY: CONO CARANNA
NATURE OF THE CASE: CRIMINAL - DEATH PENALTY (DIRECT APPEAL)
DISPOSITION CONVICTION AFFIRMED; SENTENCE OF DEATH VACATED;
¶1. Tracy Lee West was convicted of capital murder and sentenced to death in August, 1994. Although we find no merit in any of the issues raised with regard to his conviction, we reverse his death sentence because his jury was not instructed that it could sentence him to life without parole.
¶2. On December 15 or 16, 1992, Tracy West left Pulaski, Tennessee on a road trip along with two of his friends, Paul Rathe and Scott Cothren. West did not know where they were going, and did not bring along any extra clothes because he did not realize that they would be gone for awhile. They were riding in a car that Rathe had stolen from a truck driver who lived in Pulaski. They traveled to Alabama, where they robbed a convenience store and Cothren thereafter murdered the store clerk. On December 16, they then drove to Gulfport, Mississippi, where Cothren threatened to shoot Rathe and West if they did not rob another convenience store and kill the clerk. Rathe and West entered and robbed the cash drawer of the store. West then shot the clerk, Azra Garriga Kiker, and she died immediately.
¶3. Cothren, Rathe and West then proceeded to New Iberia, Louisiana, where they stopped to stay at the home of Mrs. Babineaux, who was the aunt of a friend of theirs. On December 20, Rathe and West were arrested in connection with a report that the car in which they were riding was stolen. Pursuant to these arrests, the law enforcement officers searched the Babineaux home and recovered a pistol that was later determined to be the weapon that killed Ms. Kiker. Cothren was arrested soon thereafter.
¶4. Cothren, Rathe and West were indicted for Ms. Kiker's murder on March 23, 1993. The prosecution elected to try West first, and his trial began in Gulfport on August 8, 1994. At trial, the evidence showed that West, at the urging of Cothren, had entered a convenience store, robbed the cash drawer, ordered Ms. Kiker to lie down on the floor, and then shot her in the back of the head after she asked him not to kill her. The gun misfired the first time, but West shot her twice. The next day, the jury found West guilty of capital murder. After the sentencing phase, the jury returned a sentence of death, finding the following three aggravating circumstances: (1) the offense was committed during the commission of an armed robbery; (2) the offense was committed for the purpose of avoiding a lawful arrest; and (3) the offense was especially heinous, atrocious or cruel.
¶5. West filed a Motion for Judgment Notwithstanding the Verdict, or in the Alternative, for a New Trial, on August 23. This motion along with its supplement raised a total of 44 assignments of error. The Motion was denied on November 21, 1994, and West's execution was set for December 16, 1994. West then appealed to this Court. We will address in this opinion only those matters that affect our Disposition or are likely to recur on retrial.
¶6. We first consider the propriety of West's death sentence, and next, the propriety of his conviction.
A. SENTENCING PHASE ISSUES
¶7. West first argues that the trial court committed reversible error in refusing his repeated requests to apply the amendments to Miss. Code Ann. §§ 97-3-21 and 99-19-101, and to instruct the sentencing jury that it could sentence him to life imprisonment without parole. Prior to the amendments, defendants who were convicted of capital murder could only be sentenced to either death or life with the possibility of parole. Section 97-3-21 was amended just prior to West's trial, and provided that "Every person who shall be convicted of capital murder shall be sentenced (a) to death; (b) to imprisonment for life in the State Penitentiary without parole; or (c) to imprisonment for life in the State Penitentiary with eligibility for parole as provided in Section 47-7-3(1)(f)." The amending act also provides that "[t]he provisions of this act shall apply to any case in which pre-trial, trial or resentencing proceedings take place after July 1, 1994." 1994 Miss. Laws, Ch. 566 § 5.
¶8. As noted above, West's trial commenced on August 8, 1994. Thus, he repeatedly requested that the court apply these amendments to his case, and accordingly instruct the jury that they could consider both death and life without parole: in a pretrial motion, in several suggested jury instructions which were refused by the court, and on the record in several Discussions with the Judge directly. At one point, the court asked West directly whether he wanted to be tried and sentenced under the new statute, to which he responded affirmatively.
¶9. The trial court denied West's requests in a bench ruling in which he stated that he would not instruct the jury to consider all three sentencing options because West had been indicted, arraigned, and had his trial set before these amendments were enacted. He believed that he was acting within his discretion in denying West the benefit of the amendments. Thus, West was sentenced under the prior scheme, the options being either death or life with the possibility of parole.
¶10. West repeated his request that the jury be instructed about the possibility of life without parole during its deliberations when it sent a note to the court which asked "Does a life sentence allowed (sic) for parole when rendered by the jury or the state?" In response, the Judge wrote: "You have received all the instructions I am allowed to give." Finally, West raised the error in his Motion Notwithstanding the Verdict.
¶11. In this appeal, West argues that this ruling was reversible error for several reasons. First, he cites the unambiguous language of the Act which amended §§ 97-3-21 and 99-19-101, which states that these amendments were to apply to any case in which pre-trial, trial, or resentencing proceedings would occur after July 1, 1994. He further argues that statutory amendments are to be applied retroactively where their language indicates that the legislature intended them to apply retroactively. In support of this, West cites two civil cases, Mladinich v. Kohn, 186 So. 2d 481, 483 (Miss. 1966) and City of Clarksdale v. Mississippi Power and Light Company, 556 So. 2d 1056, 1058 (Miss. 1990).
¶12. West next argues that since West stated that he viewed the amendments as favorable to him, he was entitled to have them applied to his case. He cites State ex rel. Pittman v. Ladner, 512 So. 2d 1271, 1276 (Miss. 1987), and Miss. Code Ann. § 99-19-33. He also argues that the Eighth Amendment required the trial court to give West the benefit of the amendments since his was a capital case, and that any ambiguity about whether the statutes applied had to be resolved in favor of West, since he was a criminal defendant.
¶13. Finally, West argues that since other capital defendants who were similarly situated were allowed to receive the benefit of the amendments, the trial court's failure to do so in this case violated the Eighth Amendment's prohibition of arbitrary and capricious sentencing in capital cases.
¶14. This Court has repeatedly held that unless there is sufficient language to the contrary, the words of a statute are to be interpreted according to their usual and most common sense meaning, and that statutes will be given a practical application consistent with their wording, unless the application is inconsistent with the obvious intent of the legislature. Marx v. Broom, 632 So. 2d 1315, 1318 (Miss. 1994); State v. Lee, 196 Miss. 311, 17 So. 2d 277 (1944). Where the language is plain, this Court will interpret a statute as written. Mississippi State Dep't. of Human Servs. v. Forrest County Youth Court, 663 So. 2d 580, 581 (Miss. 1995).
¶15. In this case, the plain meaning of the language in § 97-3-21 indicates that the legislature intended any defendant whose pretrial, trial, or sentencing proceedings commenced after July 1, 1994 to have his sentencing juries instructed on the sentencing options of life, life without parole, or death. Contrary to the State's suggestion, there is no rational reason to conclude that the legislature, notwithstanding the clarity of this language, intended it to apply only to those defendants who had been charged after July 1, 1994, as were the amendments to § 47- 7-3, which were enacted at the same time. Indeed, it is precisely because the statutes were amended together that it makes more sense to conclude that the distinction included was intended. Section 97-3-21 expressly provides capital defendants whose pretrial, trial or resentencing proceedings occur after July 1, 1994 with the possibility of a sentence of life with eligibility for parole as provided in § 47-7- 3(1)(f); Section 47-7-3(1)(f) expressly eliminates that possibility of parole for any capital defendant who is "charged, tried, convicted, and sentenced to life imprisonment" after July 1, 1994 (emphasis added). When read in pari materia, the two statutes provide juries with the option of sentencing capital defendants to life without parole as long as any proceeding, from pretrial through resentencing, that follows the actual charge occurs after July 1, 1994. Simultaneously, the two statutes preclude the parole board from granting parole to any capital defendant who was charged after July 1, 1994.
¶16. We hold that these two statutes are not in conflict, and present no ambiguity about whether the legislature intended the amendment to § 97- 3-21 to apply to capital defendants whose charge predated July 1, 1994. Absent any ambiguity, this Court will of course interpret the statutes to mean what they plainly say. Contrary to the State's first argument, neither § 99-19-1 nor Byrd v. State, 143 So. 852 (1932) suggest otherwise. Section 99-19-1 provides that all laws prescribing punishment will continue to govern the penalties of all crimes committed under them, notwithstanding amendatory or repealing statutes, unless otherwise especially provided in such statutes. The amendment to § 97- 3-21 especially provides that it is to apply to crimes that were committed before its effective date. Thus, the proscriptions of § 99- 19-1 do not preclude the application of the amendments to West. Likewise, in Byrd we held that an amended statute that prescribed a lighter penalty than what had been the law at the time of the crime could not be retroactively applied where the amended statute did not specify that it was to apply retroactively. Byrd v. State, 143 So. 852.
¶17. Regardless of the unambiguous intentions of the statute, the amendment could not have been applied to West if doing so would have violated the constitutional prohibition on ex post facto laws, in that the amended statute prescribes an additional punishment, life without parole, that was not possible at the time that West committed his crime. We have held that amendments which are ameliorative or procedural do not violate the prohibition against ex post facto laws. Johnston v. State, 618 So. 2d 90, 95 (Miss. 1993). Thus, the initial inquiry in this case is whether the addition of the possibility of a sentence of life without parole ameliorates the previous sentencing scheme. *fn1
¶18. Although this Court has never explicitly held that the option of life without parole is ameliorating, we have held that a jury's awareness of the option may be a mitigating factor in capital cases. In Taylor v. State, 672 So. 2d 1246 (Miss. 1996), Taylor was convicted of capital murder, which he had committed while on parole from a life sentence for another murder. Because the trial court failed to conduct an habitual offender hearing prior to the capital sentencing proceeding, the jury never knew that Taylor was eligible for a sentence of life without parole. We held that because fundamental fairness requires that capital juries must have as much information as possible in front of them when making their sentencing determination, the trial court committed reversible error in failing to reveal to the jury that Taylor would be ineligible for parole if they returned a life sentence. We noted the ameliorative effect of the option of life without parole in capital cases: "Had the jury been aware of Taylor's habitual offender status [and his subsequent ineligibility for parole], they might have opted for a life sentence." Taylor, 672 So. 2d at 1273 (citing Turner v. State, 573 So. 2d 657 (Miss. 1990)).
¶19. It hardly needs restating that death penalty jurisprudence revolves around a theme that any quality of a life sentence is a favorable option to death, the final and ultimate sentence. See, e.g., Lockett v. Ohio, 438 U.S. 586, 604 (1978) (capital juries must be allowed to hear any evidence that would tend to support a sentence less than death); Zant v. Stephens, 462 U.S. 862, 884-85 (1983) (announcing the heightened need for reliability and due process in capital cases because death is a punishment different from and more severe than all others). Thus, life without parole is typically considered to be a more desirable punishment than death. Since death was an available punishment under both the pre- amended version of § 97-3-21 and the amended version, the option of life without parole arguably does not increase the punishment authorized under § 97-3-21 in the manner that is prohibited by the principles of the ex post facto clauses. It is axiomatic that for a law to be ex post facto it must increase the penalty by which a crime is punished or makes conduct criminal which theretofore was not criminal. Dobbert v. Florida, 432 U.S. 282, 294 (1977); California Dep't. of Corrections v. Morales, 514 U.S. 499, 506 n. 3 (1995).
¶20. We hold that the sentencing option of life without parole is ameliorating in our capital sentencing scheme. Moreover, it is fairly clear that in this case, the option would have been beneficial to West. After half an hour of deliberation, the jury sent out a note asking whether West would be eligible for parole if it gave him a life sentence. After the Judge replied that he would not give the jury any further elaboration on the meaning of a life sentence, it deliberated for almost two more hours before returning a sentence of death.
¶21. Although the State discourages this Court from inferring any conclusion that the jury would have given West life without parole had it been able to do so, the jury's question indicates at the least its contemplation of West's eligibility for parole. It requires no intellectual strain to conclude that the jury may well have sentenced West to life without parole, had it been instructed that such a sentence was possible.
¶22. Having held that the application of the amended capital sentencing statute ameliorates the stark options that were presented to pre- amendment juries, we find that its retroactive application (as expressly provided in the statute) does not give rise to an illegal ex post facto law. West was entitled to its application in his case, and the trial court's failure to do so constitutes reversible error.
¶23. Additionally, West is entitled to receive the benefit of the amended § 97-3-21 since he plainly waived any arguable ex post facto claim. It is clear, as demonstrated earlier in this opinion that the sentence in question is permitted by the statute as passed by the legislature. West's constitutional right to be free from an ex post facto sentence is subject to a knowing waiver. See, e.g., Stevenson v. State, 674 So. 2d 501, 506 (Miss. 1996).
¶24. West's waiver arose in the following colloquy with the trial court:
MR. DAVIS:Correct, your Honor.
MR. SMITH: Yes, Your Honor.
Your counsels have talked to you about this, I take it, Mr. West?
You understand exactly what we are talking about here?
State's position would be that if you are tried after July 1 and I held that you did come under the nonparolable or 20-year statute, that the jury, if they failed to agree on punishment or if they gave you a life sentence, they could do it without parole. Do you understand that?
And if you tried to renege on that later, of course the State's position would be that you couldn't renege, or if you did, they could come back and ask for a death sentence with the jury not being told that the sentence would be anything other than life if it is life. Do you understand that?
THE DEFENDANT: (Nods affirmatively.)
¶25. A similar waiver enabled Johnny Rufus Lanier, another of this State's capital defendants, to obtain a sentence of life without parole, notwithstanding the fact that his crime and conviction occurred prior to the provision of such a sentencing option. Lanier had first entered a plea agreement in which he agreed to be sentenced to life without parole in exchange for the State's foregoing any right to seek a death penalty. At the time of this deal, the law did not allow any sentence of life without parole for capital defendants. This Court reversed that sentence on the grounds that Lanier could not form a contract to obtain an otherwise illegal sentence. Lanier v. State, 635 So. 2d 813 (Miss. 1994).
¶26. Following that reversal, § 97-3-21 was amended to provide the option of life without parole to capital defendants. Lanier's sentencing Judge conducted a colloquy in which he asked Lanier repeatedly whether he wanted to waive any ex post facto rights that he might have in not being sentenced to life without parole. After finding that Lanier had waived his rights to both a sentencing trial and the avoidance of ex post facto applications, the court ordered Lanier to serve life without parole.
¶27. Several other capital defendants whose crimes were committed before the effective date of the amendment have received the amendment's benefit after waiving any ex post facto claims. See Woodward v. State, No. 95-DP-00144-SCT (this Court issues mandamus ordering trial Judge to accept waiver and apply amended statute, 9/11/95); State v. Dufour, 483 So. 2d 307 (1986) (Hinds County Circuit Court entered order finding defendant had waived ex post facto claim, 2/14/95); State v. Ware, 2076 (Madison County Circuit Court; jury instruction allowing return of life without parole, filed 12/6/94).
¶28. Thus, it appears that West's waiver of any ex post facto claims is a procedure that has been regularly applied in other cases. Indeed, the colloquy that was conducted by the trial Judge reflects a sufficient waiver: West told the court that he understood that he could not renege on his agreement to be exposed to the possibility of life without parole notwithstanding the fact that this sentence was not available at the time of his crime. He also told the Court that his attorneys had explained the meaning of this to him. Thus, even if he had a valid claim in light of his waiver of any ex post facto error, West was entitled to have the sentencing option of life without parole available to him. *fn3
¶29. The State has also argued that the trial court had the discretion to decline to apply the amendment, under Allen v. State, 440 So. 2d 544 (Miss. 1983) and § 99-19-33. Neither of these authorities, however, provide the trial Judge with that sort of discretion. First, § 99-19- 33, when read in its entirety, does not grant a Judge discretion in the manner urged by the State. The statute reads as follows:
If any statute shall provide a punishment of the same character, but of milder type, for an offense which was a crime under pre- existing law, then such milder punishment may be imposed by the court but no conviction, otherwise valid, shall be set aside and new trial granted merely because of an error of the court in fixing punishment. Such error shall only entitle the party injured to vacate or reverse the judgment as to the punishment, and the legal punishment shall then be imposed by another sentence based on the original conviction or plea of guilty.
¶30. Although the language seems to suggest discretion in stating that the lighter sentence may be imposed by the court, the subsequent sentence states that a Judge's failure to impose the lighter sentence is error. Moreover, such error entitles the party injured to a vacation or reversal of the punishment portion of the judgment. Thus, it appears that the use of "may" in the first sentence in fact intends to convey "shall," for there can be no discretion to decline to apply an amendatory provision if declining to do so results in reversible error. This Court has held that while permissive language of a statute is presumably interpreted in its ordinary sense, it will be interpreted as mandatory where the context compels such a construction. Leflore Bank & Trust Co. v. Leflore County, 202 Miss. 552, 558, 32 So. 2d 744, 746 (1947). Thus, a harmonized reading of § 99-19-33 compels this Court to construe "may" as "shall." *fn4
¶31. Furthermore, the State's reliance on Allen v. State, 440 So. 2d 544 (Miss. 1983) is of no avail. Allen is the only case which interprets § 99-19-33 to afford trial Judges the discretion to apply the pre- amended statute. That holding, that trial courts had discretion to enforce a pre-amended version of a statute, was expressly overruled in State ex rel. Pittman v. Ladner, 512 So. 2d 1271, 1277 (Miss. 1987), in which this Court held:
West quite clearly regarded the amended version of § 97-3-21 to be more favorable to him, since he moved on so many different occasions to have it applied to him. Thus, under Ladner, the trial court had no discretion to decline to apply the amendment, and thus his failure to do so was error. *fn5
¶32. Because we find that Miss. Code Ann. § 97-3-21 clearly and lawfully directed capital defendants whose pre-trial, trial or resentencing proceedings take place after July 1, 1994 to have their sentencing juries given the option of life without parole in addition to life with the possibility of parole and death, we hold that the trial court's failure to give West's jury that option to be reversible error. We accordingly vacate West's death sentence.
¶33. West also argues that his sentence must be reversed because the jury's finding that his offense was especially heinous, atrocious, and cruel was against the overwhelming weight of the evidence and was not sufficiently limited through the trial court's instruction. West unsuccessfully moved prior to trial to preclude the State from arguing that this offense was especially heinous, atrocious, or cruel. West further objected to the State's instructions on this aggravating factor, arguing that the instructions were vague, overbroad, and unsupported by the evidence.
¶34. The relevant instruction read as follows:
The Court instructs the Jury that an especially heinous, atrocious or cruel capital offense is one accompanied by such additional acts as to set the crime apart from the norm of capital murders -- the conscienceless or pitiless crime which is unnecessarily tortuous [sic] to the victim.
¶35. West argues that this instruction fails to meaningfully narrow that class of murders that could fall within its scope in accordance with the Eighth and Fourteenth Amendments to the federal Constitution. This Court has held that the proper instruction is as follows:
What is intended to be included are those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies -- the conscienceless or pitiless crime which is unnecessarily torturous to the victim.
Carr v. State, 655 So. 2d 824, 851 (Miss. 1995) (quoting Coleman v. State, 378 So. 2d 640, 648 (Miss. 1979)). Since the instruction given to West's jury instruction is identical to this model in all relevant aspects, this argument is without merit.
¶36. West also objected on the grounds that the evidence did not warrant the instruction. West had told the police that "As [the victim] laid down there I was trying to shoot the gun and stuff and I never could get it to shoot, I cocked it and I finally got it to shoot and then I cocked it, shot the second shot but I didn't cock the empty shell out there." He also stated that Ms. Kiker said, "Please don't kill me, I got one kid," as she lay face down on the floor.
¶37. West presently argues that no rational juror could have concluded from the evidence that Ms. Kiker's murder was conscienceless, pitiless, or unnecessarily torturous. In particular, he urges that the fact that West did not intend the gun to misfire precludes holding him accountable for the torture that Ms. Kiker underwent while she lay on the floor. He cites two cases in support of this. In Walton v. Arizona, 497 U.S. 639, 654 (1990), the Supreme Court approved a sentencing scheme whereby the heinous, atrocious, and cruel aggravator was limited to those situations where the suffering of the victim was intended by or foreseeable to the killer. Likewise, the high Court in Lewis v. Jeffers, 497 U.S. 764 (1990), upheld a state court's finding that the evidence rationally supported the finding that the murder was heinous, atrocious, or cruel where the evidence indicated that the defendant had both relished the crime and inflicted gratuitous violence to the victim. Notably, neither of these cases hold that a defendant must have specifically intended the lingering death in order to constitutionally support a finding that the killing was especially heinous, atrocious, or cruel.
¶38. This Court has never held that a torturous or lingering death must have been intended by or foreseeable to the killer in order to come within the meaning of especially heinous, atrocious, or cruel. In Hansen v. State, 592 So. 2d 114, 152 (Miss. 1991), however, we held that barbarity sufficient to satisfy this aggravating circumstance can be demonstrated where the defendant inflicted physical or mental pain before death, or where a lingering or torturous death was suffered by the victim. Id. (citing Pinkney v. State, 538 So. 2d 329, 357 (Miss. 1988)).
¶39. In this record, however, such barbarity is not in evidence. Regardless of whether West is required to have intended the torture, there is no evidence in the record that Ms. Kiker heard the gun misfire, or that there was any considerable length of time between the misfire and the shot that killed her. The only evidence that she was suffering mental torture was the fact that she asked West to spare her life while she lay on the floor. Nothing in our caselaw, however, suggests that this is enough to elevate a murder into an especially heinous, atrocious, or cruel one. In Evans v. State, 422 So. 2d 737, 743 (Miss. 1982) this Court stated that a homicide in which the victim was forced to kneel on the floor at gunpoint while his pockets were emptied and shot a short period later would not constitutionally suffice for the aggravating factor of "especially heinous, atrocious or cruel." Following the pre-Clemons formula, the Court nevertheless affirmed the sentence on the grounds that the three other aggravating factors had been proved by overwhelming evidence. Likewise, in Jordan v. State, 464 So. 2d 475, 478 (Miss. 1985), vacated on other grounds, 476 U.S. 1101 (1996), this Court found that where the victim had been abducted and shot in the back of the head while on her knees, the aggravator was supported only by the fact that she had been running, trying to get away from him, and thus was frightened.
¶40. No similar evidence was presented in this case to support an added finding that Ms. Kiker suffered mental torture sufficient to distinguish this murder from the norm of capital felonies. Taylor v. State, 672 So. 2d 1246, 1276 (Miss. 1996). Although all murder is surely cruel, we must be especially diligent in our distinction of the most conscienceless and pitiless murders from the trauma that tragically attends them all. The facts of this case do not, in the context of our caselaw on this aggravating factor, appear to support the "heinous, atrocious, and cruel" instruction. The only clear evidence of mental torture in this case is the fact that she begged West not to kill her. It troubles us that the trial court found that this fact alone "set the crime apart from the norm of capital felonies -- the conscienceless or pitiless crime which is unnecessarily torturous to the victim." Carr v. State, 655 So. 2d 824, 851 (Miss. 1995). Although we will not rule on the issue, since it may not recur at retrial, we do strongly question whether the "heinous, atrocious, and cruel" instruction was warranted on the evidence that appeared in this record.
¶41. West also argues that the court erred in instructing the jury that the offense was committed for the purpose of avoiding unlawful arrest. This assignment of error is without merit. There was evidence in the record which, if taken in the light most favorable to the verdict, demonstrated that the killing was committed to extinguish witnesses. In his confession to the police, West stated that he had shot Ms. Kiker because Cothren did not want any witnesses left behind. Furthermore, West testified during the guilt phase that "[Scott Cothren] said he was going to shoot us if -- if we didn't shoot the woman in there ...