The opinion of the court was delivered by: Pittman, Presiding Justice
DATE OF JUDGMENT: 01/27/93
TRIAL JUDGE: HON. JAMES C. SUMNER
COURT FROM WHICH APPEALED: GRENADA COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - DEATH PENALTY (DIRECT APPEAL)
DISPOSITION: AFFIRMED - 6/25/98
¶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, where he stated that he could put the relationship out of his mind and try the case on the facts and the law, we found no error in failing to excuse him for cause.
¶17. We find no abuse of discretion in this regard.
III. THE EXCLUSION OF JURORS WITH SMALL CHILDREN
¶18. Bell asserts that the trial court committed error in excusing two jurors, Ringo and Saulters, for cause, because they were in charge of small children. Bell argues that this violated his right to a fair trial and violated the Fourteenth Amendment's Equal Protection clause by excluding women from jury service merely because of their gender. See J.E.B. v. Alabama, 511 U.S. 127 (1994) (wherein the United States Supreme Court extended Batson, holding that discrimination on the basis of gender violates the Equal Protection Clause). As further support for this position, he cites Duren v. Missouri, 439 U.S. 357 (1979), in which the Supreme Court declared unconstitutional on Sixth Amendment "fair cross-section" grounds, a Missouri statute granting women who so requested an automatic exemption from jury service. He argues the exclusion of Ringo and Saulters was automatic without any regard to whether the women's domestic responsibilities would preclude them from being fair jurors.
¶19. The record does not support Bell's complaints as to these jurors. First, it is noted that at the time that they were excused, no objection was made. Further, they were examined and excused in a context of the court's effort to determine which jurors had outside demands sufficient to constitute a serious distraction from their duties and which would make sequestration or long hours an undue burden. Juror Ringo was a grandmother who regularly kept her daughter's small children. The daughter would be required to miss work if she was not available. Juror Saulters, along with some other jurors, were excused not merely because they had children, but because their inability to make arrangements for the care of those children was such as to hamper their ability to give the case sufficient attention. She stated that she had two small children and if she was not home her husband would have to miss work to care for them. This was complicated by the fact that her husband had out-of-town business appointments the following two days. This is clearly neither a gender-based exclusion nor the deprivation of a fair cross-section of the community under Duren; it simply was not an unreasoned, automatic exclusion of women with families. There was no error in the exclusion of these jurors.
IV. INSTRUCTIONS S-2 AND S-3
¶20. The jury received the following instructions, which Bell would have us find allowed the jury to convict him as a principal in disregard of his defense that, at most, he was an accessory after the fact. Instruction S-2 reads:
The Court instructs the jury that each person present at the time, and consenting to and encouraging the commission of a crime, and knowingly, willfully and feloniously doing any act which is an element of the crime or immediately connected with it, or leading to its commission, is as much a principal as if he had with his own hand committed the whole offense; and if you believe from the evidence, beyond a reasonable doubt, that the defendant, Frederick Bell did willfully, knowingly, unlawfully and feloniously do any act which is an element of the crime of capital murder or immediately connected with it, or leading to its commission, then and in that event, you should find the defendant guilty as charged. [emphasis added].
The court instructs the jury that if two or more persons are engaged in the commission of a felony, then the acts of each in the commission of such felony are binding upon all and all are equally responsible for the acts of each in the commission of such felony.
¶21. Bell does not argue that instruction S-3 is an incorrect statement of the law, nor did he object to it at trial. He reasons that the use of the phrase "immediately connected with" [the crime], in the second clause of S-2, allows the jury, upon finding that he hid the guns used to shoot Bert, to convict him as a principal in a capital murder, and that this problem is compounded when S-2 is read with S-3. This, he argues, deprives him of his alternate theory of how Bert lost his life and the benefit of his testimony, contrary to the testimony of Coffey and James, that Doss brought the guns to Memphis and that he [Bell] had not been in Grenada on the day of the shooting, or for several days prior to the shooting, but simply cooperated in hiding the guns.
¶22. Bell failed to make a timely objection to S-2, and under our holdings in Nicholson on behalf of Gollott v. State, 672 So. 2d 744, 752 (Miss. 1996), and Lockett v. State, 517 So. 2d 1317, 1332-33, (Miss. 1987); cert. denied, 487 U.S. 1210 (1988), we are not bound to consider this assignment. Alternatively, we note that all instructions charging the jury must be read together, and S-2 cannot be read without regard to others, specifically S-1, which requires the jury, in order to convict Bell of capital murder, to find that Bell did unlawfully, willfully and feloniously kill Bert, while engaged in the crime of armed robbery. The instruction then directs that "if the State has failed to prove any one or more of the above elements beyond a reasonable doubt, then you shall find the defendant not guilty."
¶23. An aiding and abetting instruction, in the form complained of here, was most recently approved in Carr v. State, 655 So. 2d 824, 833 (Miss. 1995), cert. denied 116 S. Ct. 782, 133 L.Ed. 2d 733 (1996). In Carr we pointed out that the instruction sufficiently instructed the jury of the element of intent and that "when read in the context of the jury charge as a whole, [this instruction] correctly placed the burden on the State to prove beyond a reasonable doubt every element of the underlying felonies with which Carr was charged." Id. at 833. The instruction was also approved in Simmons v. State, 568 So. 2d 1192, 1203-1204 (Miss. 1990).
V. FURTHER OF INSTRUCTION S-2
¶24. Bell also complains that instruction S-2 is defective in that it invites the jury to assume rather than to find that a capital murder had been committed. It simply does not do so. Bell asks us to apply the decision reached in Wilson v. State, 592 So. 2d 993 (Miss. 1991), which holds that it was improper for the jury to be instructed that an accessory before the fact should be found guilty if he had "willfully, unlawfully and feloniously and knowingly arrange[d] for or counsel[ed] or command[ed] another to sell cocaine . . ." Id. at 997. But Wilson is not applicable. There the Court noted that neither in the instruction complained of nor "in any of the instructions submitted to the jury" was the jury informed that they had to find that the crime was committed as well as finding that Wilson counseled or commanded the commission of the crime. Id. at 997-98. Here, Bell is prosecuted as a principal present at the crime, and instruction S-1, after defining the elements, explicitly enjoins that he be found not guilty if the State has failed to prove any one or the elements beyond a reasonable doubt. VI. BELL'S INFORMANT/ACCOMPLICE INSTRUCTION DG-14
¶25. This instruction reads:
The Court instructs the jury that the law looks with suspicion and distrust on the testimony of an alleged informant, and requires the jury to weigh same with great care and caution and suspicion. You should weigh the testimony from alleged informant, Robert James, and passing on what weight, if any, you should give this testimony, you should weigh it with great care and caution, and look upon it with distrust and suspicion.
¶26. Bell asserts that the refusal of this instruction is error because James was present at the scene and possibly participated; he was an informer who had incentive to lie or the police might charge him with capital murder; and his trial testimony differed from a previous statement and from that of Frank Coffey, who was charged as an accomplice.
¶27. He relies on Ferrill v. State, 643 So. 2d 501 (Miss. 1994), and McGee v. State, 608 So. 2d 1129 (Miss. 1992), in which we found reversible error where the trial court refused an instruction on effect of impeachment of witness by his own prior inconsistent statement. But here, no significant prior inconsistent statement by James is called to our attention, nor do we find one. It is true that Frank Coffey had given a statement inconsistent with that of James, but this instruction does not address such an event. Bell suggests that James's pre-trial statement that one of the guns used had black tape on its grip and his courtroom testimony describing the tape as gray is an inconsistency sufficient to justify a cautionary instruction. We do not consider such natural variations in repeated descriptions to be inconsistencies sufficient to justify a cautionary instruction beyond those general instructions given.
¶28. Ferrill was also reversed on the failure of the trial Judge to grant an accomplice cautionary instruction. However, James, in the case sub judice, was not charged as an accomplice, nor was there any evidence offered that he should have been so charged.
VII. INSTRUCTIONS DG-12, DG-15 AND DG-16, MORE OF IMPEACHMENT AND INCONSISTENT STATEMENTS
¶29. In addition, Bell asked for two instructions, DG-12 and DG-15, advising the jury that they were the sole Judges of the credibility of witnesses and advising them that inconsistencies within statements of a witness or between those of different witnesses may cause the jury to discredit a witness's testimony. He also sought and was denied DG-16 which addresses impeachment in an abstract way and instructs the jury that it may disregard impeached testimony. Much of his argument in this area is concerned with the ability to warn the jury of the dangers in relying on the testimony of Frank Coffey. Furthermore, the jury was advised by way of the court's charge, that they were the sole Judges of the credibility of the testimony and supporting evidence, by instruction DG-11 that reasonable doubt of guilt may be based on conflicts in the evidence or the credibility of witnesses, and by DG-13 that the testimony of Frank Coffey as that of an accomplice should be viewed with suspicion. The trial Judge is under no obligation to grant redundant instructions. Davis v. State, 568 So. 2d 277, 280-81 (Miss. 1990). Indeed, to do so can only create confusion and make it more difficult for the jury to understand the charge. When the instructions are read as a whole, as indeed they must be, we find no error in the refusal of these specific requested instructions.
VIII. EXCLUSION OF COFFEY'S CONVICTION
¶30. The testimony of Frank Coffey was crucial to the prosecution. He placed Bell at the scene, reported statements of Bell that they intended to rob the store, and, most importantly, said that Bell told him that he shot Bert. In order to impeach Coffey's testimony, Bell offered evidence that Coffey was not only indicted as an accessory after the fact of Bert's death, but that he had been indicted in Memphis of solicitation to commit murder of another party. In fact, Bell and Coffey had both pled guilty to the Memphis crime, and, prior to the Grenada County trial, Coffey had been sentenced to three years in prison, and Bell to twenty-five. The trial Judge declined to allow evidence as to either Coffey's or Bell's complicity or conviction in that murder. In excluding the evidence of Coffey's conviction, the Judge exercised his discretion under Miss. R. Evid. 609(a), which allows discretionary admission of prior convictions for the purpose of impeaching the credibility of witnesses. Prior to admitting such evidence, the Judge must determine that the probative value of the evidence outweighs its prejudicial effect. While it cannot be said that in this case the circuit Judge articulated the factors outlined in Peterson v. State, 518 So. 2d 632 (Miss. 1987), it is clear on the record that the probative value and the prejudicial effect of the evidence was considered. In the colloquy, the Judge noted the fact that Coffey was also indicted as an accessory in the present crime, and that such fact would be available in an attack on his credibility. Furthermore, the Judge made specific references to Peterson and to the necessity of finding, before allowing the conviction before the jury, that the probative value outweighed any prejudice. We further note that the party seeking to have the conviction admitted for impeachment has the burden of persuasion.
¶31. Here the Judge faced a particularly difficult choice, for if he allowed evidence of Coffey's Memphis conviction while excluding that of Bell, the jury would have seen that conviction in an unreal light. Finally, as observed above, the jury was instructed that Coffey's testimony in particular was to be viewed with suspicion. Had he decided to allow both convictions, there is no doubt that Bell would have been seriously prejudiced. Considering all these circumstances, we find that no error was committed by the exclusion of the fact that Coffey had been convicted of the Memphis crime.
IX. COFFEY BOLSTERED ON REBUTTAL
¶32. Bell next argues that the trial court erroneously overruled Bell's objection to the prosecutor's question about "the only thing" that the prosecutor asked Coffey to do in court and Coffey's response that the prosecutor told him to "tell the truth." Bell claims that this was hearsay and it had the effect of improperly bolstering Coffey's testimony by throwing the integrity of the State behind it. The prosecution asked this question on redirect examination of Coffey, and the record indicates that it was asked in direct reaction to interrogation by defense counsel on cross-examination, suggesting that there was some type of deal between the witness and the district attorney's office. Under the circumstances, this was proper redirect on a matter brought out by defense counsel on cross. Jackson v. State, 551 So. 2d 132, 144-45 (Miss. 1989) (in view of the nature of cross-examination, the circuit court was within its discretionary authority in allowing the disputed redirect).
X. EVIDENCE OF OTHER CRIMES COMMITTED BY BELL
¶33. Robert James testified to his encounter with Doss and Bell immediately following the incident. At the time of the robbery of Sparks'Stop-and-Go and the killing of Bert Bell, James and Coffey were within earshot. Doss and Bell caught up with them only two or three minutes after the shots were fired. Over Bell's objection, James testified that Bell then pointed the gun, which was stolen from the store, at James and made the statement that they [Doss and Bell] did not need any witnesses. Then, in the same conversation, Doss and Coffey convinced Bell that James would not talk about the incident and that it was not necessary to kill him. *fn2 James said further that as they walked on down the road, Bell described the shooting, demonstrating in detail the entry points of the bullets which he shot at Bert. This testimony was significant in that it constituted independent confirmation of the physical and forensic evidence. James explained that his reason for not going to Memphis with the others was the threat on his life made by Bell.
¶34. Coffey then testified confirming Bell's statements on the same occasion claiming credit for the shooting and adding detail as to Bell's claimed positions in the store and attempt to open the cash register. He likewise, over Bell's objection, confirmed Bell's statement made to James that he did not want any witnesses as well as his assurance to Bell that James would not talk. He then told of how they were driven to Memphis and of a conversation in which Bell said that he wanted to go back and shoot James. Again, Coffey, this time joined by Bernard Gladney, the driver, reassured Bell. Finally, he testified that Bell, on a later occasion, had threatened to kill him, Coffey, if he testified. No objection was made to the latter statement.
¶35. On appeal, Bell argues that the statements regarding the threats on James' life were highly prejudicial, and that their admission into evidence was error. Whether or not prejudicial, they were certainly and seriously damaging to his defense, as they were no doubt meant to be. His argument is based largely on the injunction of Miss. R. Evid. 404 against the use of character evidence and evidence of other crimes or wrongs, except under specific circumstances set out in the rule. Rule 404(a) has no application here since this evidence was admitted not as character evidence indicative of a propensity to commit murder, but directly as evidence of the crime charged. His threats upon the life of James, or more accurately, his musings and debates over whether or not to kill James, were made in the midst of describing the killing of Bert and while displaying the weapon used. They show a great deal of concern immediately following the crime of his vulnerability to punishment for the crime charged in this case. On study of the record, we cannot see how these important details could have been related in a sanitized version of James' and Coffey's testimony, nor do we see any obligation on the State to do so.
¶36. Bell argues correctly that evidence of unrelated crimes or bad acts is not admissible to show that his actions in the commission of the crime charged are in conformity with his actions in the unrelated crimes. Ballenger, 667 So. 2d at 1256-57; Duplantis v. State, 644 So. 2d 1235, 1247-48 (Miss. 1994), cert. denied 514 U.S. 1123 (1995); Lesley v. State, 606 So. 2d 1084, 1089-90 (Miss. 1992). But bad acts or crimes which are intimately connected with the crime charged as to be necessary to the telling of a complete and clear story are admissible. Ballenger, loc. cit.; Brown v. State, 483 So. 2d 328, 330 (Miss. 1986). Furthermore, Ballenger and Duplantis stand for the oftrepeated rule that even where the evidence of such acts is otherwise admissible, the probative value of the evidence must be weighed against its possible prejudicial effect. But where the bad conduct is so closely intertwined with the crime charged and has a direct relationship to the escape, as it does here, there is no error in allowing the jury to hear it.
¶37. Finally, on this point, Bell argues that if the threats to James and Coffey were not admitted as propensity evidence, they were used and argued as such by the State in closing argument. In fact, they were not. They were used specifically for the purpose of showing that Bell feared punishment. At one point, the prosecutor did say that, "[t]here wouldn't have been near as much evidence if this person over here [Bell] thought these people were going to testify, because he's definitely capable of killing them." This is a legitimate use of the evidence to show his fear of retribution. If anything, the prosecutor is using the killing of Bert to show that the threat upon James and Coffey was real -not that the threats were evidence of a propensity to kill Bert. There is no error in this argument.
XI. FURTHER OF THE STATE'S ARGUMENT - GUILT PHASE
¶38. Bell maintains that the prosecutor misused closing argument by improperly arguing the good character of the victim, threats made by Bell to James, lack of remorse, personal opinion and facts not in evidence. Unless any such improper argument is so egregious as to rise to the level of a fundamental denial of a constitutionally-mandated fair trial, and we do not so find, the arguments are all procedurally barred, for at no time did Bell make a contemporaneous objection to any of them. Chase v. State, 645 So. 2d 829, 854 (Miss. 1994), cert. denied 515 U.S. 1123 (1995). Nevertheless, we will review the specific claims. A. Good character of the victim
¶39. The prosecutor said that Sparks'Stop-and-Go was: a place he [Bert] intended, according to James Sparks, to buy from James Sparks'and take that store over one day. That would be his store. Apparently, an industrious young man, 21 years of age, thinking that maybe he was going to be able to own his own store. I commend him for that.
Bert Bell's life is now reduced to approximately 50 exhibits. That's what his life is all about today. . . . And, Bert Bell didn't have a prayer. He did not have a prayer. He was going to die that day. There's no doubt about it. He didn't have a chance.
¶40. An impassioned argument is not in itself an improper argument. Furthermore, the prosecutor, as any other counsel, is free to recall and comment on testimony offered in evidence and to draw inferences.
[The prosecutor] may comment upon any facts introduced into evidence. He may draw whatever deductions seem to him proper from these facts, so long as he does not use violent and abusive language, and even in many cases invectives may be justified and even called for, as pointed out by ...