Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Smith v. State

December 10, 1998

JEROME PETE SMITH
v.
STATE OF MISSISSIPPI



The opinion of the court was delivered by: Roberts, Justice

DATE OF JUDGMENT: 07/01/93

TRIAL JUDGE: HON. GRAY EVANS

COURT FROM WHICH APPEALED: LEFLORE COUNTY CIRCUIT COURT

NATURE OF THE CASE: CRIMINAL - DEATH PENALTY - DIRECT APPEAL

DISPOSITION: AFFIRMED IN PART; REVERSED AND REMANDED IN PART - 12/10/1998

EN BANC.

¶1. Jerome Pete Smith *fn1 , along with his older brother, Clyde Wendell Smith, was indicted by a Leflore County grand jury for the November 7, 1992, robbery-murder of Sidon Package Store owner, Johnny B. Smith *fn2 . Both Jerome and Clyde were found guilty of capital murder by a Leflore County jury and subsequently sentenced to death. It is from this judgment, entered on July 1, 1993, that Jerome *fn3 now appeals, asserting the following errors:

I. THE TRIAL COURT ERRED IN TELLING JURORS THAT JEROME SMITH WOULD BE ELIGIBLE FOR PAROLE IF SENTENCED TO LIFE IMPRISONMENT, IN RESPONSE TO A MID-DELIBERATIONS QUESTION FROM THE JURY, AND IN GIVING A JURY CHARGE AND ALLOWING CLOSING ARGUMENTS FROM THE PROSECUTOR AND CO-DEFENDANT WHICH HIGHLIGHTED JEROME'S PAROLE ELIGIBILITY AND MISLEADINGLY SUGGESTED HE MIGHT BE RELEASED IMMINENTLY IF NOT SENTENCED TO DIE.

II. ALTHOUGH HE FILED A PRETRIAL MOTION DEMANDING NOTICE OF AGGRAVATING CIRCUMSTANCES AND EVIDENCE, JEROME SMITH WAS NOT INFORMED, UNTIL THE BEGINNING OF THE PENALTY PHASE OF HIS TRIAL, THAT THE PROSECUTION WOULD BE RELYING ON THE PREVIOUS-VIOLENT FELONY AGGRAVATING FACTOR AND WOULD BE OFFERING PROOF OF TWO PRIOR AGGRAVATED ASSAULT CONVICTIONS.

A. THE DENIAL OF PRETRIAL NOTICE OF THE STATE'S INTENT TO INTRODUCE APPELLANT'S PRIOR AGGRAVATED ASSAULT CONVICTIONS VIOLATED MISSISSIPPI LAW.

B. THE DENIAL OF PRETRIAL NOTICE OF THE STATE'S INTENT TO INTRODUCE APPELLANT'S PRIOR AGGRAVATED ASSAULT CONVICTIONS VIOLATED THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

III. THE JURY'S DEATH-SENTENCING VERDICT WAS LEGALLY INADEQUATE BECAUSE THE JURORS FAILED TO FIND THAT JEROME SMITH HIMSELF KILLED, INTENDED TO KILL, ATTEMPTED TO KILL, OR CONTEMPLATED THAT LETHAL FORCE WOULD BE USED, AND BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT SUCH FINDINGS.

IV. THE CIRCUIT COURT'S INSTRUCTIONS TO THE JURY AT THE SENTENCING STAGE WERE FATALLY FLAWED.

A. THE LOWER COURT IMPROPERLY DEPRIVED JEROME OF HIS RIGHT TO FULL CONSIDERATION OF ALL STATUTORY MITIGATING FACTORS, WHEN IT CHARGED THE JURY ON THE MITIGATING CIRCUMSTANCE THAT CLYDE WAS A LESSER PARTICIPANT IN THE CRIME, BUT DID NOT GIVE THIS INSTRUCTION AS TO JEROME OR AN INSTRUCTION ON THE SUBSTANTIAL-DOMINATION MITIGATING FACTOR.

B. JUDGE EVANS ERRED IN REFUSING TO CHARGE THE JURY ON SPECIFIC NON-STATUTORY MITIGATING CIRCUMSTANCES.

C. BECAUSE ROBBERY WAS AN ELEMENT OF THE OFFENSE OF CAPITAL MURDER, ITS ADDITIONAL USE AS AN AGGRAVATING CIRCUMSTANCE WAS IMPERMISSIBLY DUPLICATIVE AND CONTRAVENED THE NARROWING REQUIREMENT OF THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

D. THE TRIAL JUDGE'S INSTRUCTIONS IMPROPERLY LED JURORS TO BELIEVE DEATH WAS THE APPROPRIATE SENTENCE IF AGGRAVATING AND MITIGATING CIRCUMSTANCES WERE IN EQUIPOISE.

V. THE PROSECUTOR ENGAGED IN MISCONDUCT BY MAKING NUMEROUS IMPROPER COMMENTS DURING HIS CLOSING ARGUMENT AT THE SENTENCING STAGE.

VI. THE DEATH PENALTY IS A DISPROPORTIONATE PUNISHMENT IN LIGHT OF THE GRAVE UNCERTAINTY AS TO WHETHER JEROME SMITH ACTUALLY KILLED THE VICTIM AND OTHER DISTINGUISHING FEATURES OF THIS CASE.

VII. THE TRIAL COURT ERRED IN PERMITTING JEROME SMITH TO VETO HIS ATTORNEYS' SEVERANCE MOTION, WHICH THE COURT HAD ALREADY GRANTED, AND ORDERING THAT HE BE TRIED JOINTLY WITH HIS CO-DEFENDANT ALTHOUGH SUCH A JOINT TRIAL WAS SEVERELY DAMAGING TO JEROME'S DEFENSE.

A. JEROME WAS ENTITLED TO BE TRIED SEPARATELY FROM HIS CO-DEFENDANT UNDER MISSISSIPPI AND FEDERAL LAW.

B. THE CIRCUIT COURT ERRED IN RESCINDING ITS SEVERANCE ORDER AND PERMITTING JEROME SMITH TO OVERRIDE HIS ATTORNEYS' DECISION TO OBTAIN A SEVERANCE, BECAUSE THIS DETERMINATION WAS ONE THAT TRIAL COUNSEL, AND NOT THE CLIENT, WAS AUTHORIZED TO MAKE.

VIII. JEROME SMITH'S FUNDAMENTAL RIGHT TO BE PRESENT AT ALL PROCEEDINGS IN THIS DEATH PENALTY CASE WAS VIOLATED WHEN THE VOIR DIRE AND DISMISSAL OF CERTAIN JURORS, A PROCEEDING INVOLVING THE COURT'S RESPONSE TO A MID-DELIBERATIONS QUESTION FROM THE JURY, AND A PRETRIAL HEARING AT WHICH HIS ORIGINAL ATTORNEY WAS REMOVED FROM THE CASE, ALL WERE CONDUCTED IN HIS ABSENCE.

IX. THE TRIAL COURT SHOULD HAVE EXCLUDED AS EVIDENCE ITEMS DISCOVERED BY LAW ENFORCEMENT OFFICIALS IN A WARRANTLESS SEARCH OF APPELLANTS' CAR, WHICH WAS NOT SUPPORTED BY PROBABLE CAUSE.

X. THE ASSISTANT DISTRICT ATTORNEY OFFERED IRRELEVANT, INFLAMMATORY, AND INADMISSIBLE OTHER-CRIMES EVIDENCE CONCERNING APPELLANTS' POSSESSION OF A SAWED-OFF SHOTGUN, THEIR COMMISSION OF AN UNSPECIFIED SEXUAL OFFENSE, AND THEIR USE OF ILLEGAL NARCOTICS.

XI. THE CIRCUIT JUDGE IMPROPERLY ADMITTED A SLEW OF HEARSAY STATEMENTS BY VARIOUS WITNESSES, INCLUDING A CRUCIAL STATEMENT BY THE CO-DEFENDANT CLYDE SMITH, WHICH IMPLICATED JEROME IN THIS OFFENSE AND AGGRAVATED THE CRIME.

XII. THE TRIAL COURT'S GUILT-STAGE INSTRUCTIONS WERE TAINTED BY SEVERAL FUNDAMENTAL FLAWS.

A. JUDGE EVANS' INSTRUCTION ON THE ROBBERY PRONG OF CAPITAL MURDER FAILED TO INFORM JURORS OF THE NECESSARY CAUSE-AND-EFFECT CONNECTION BETWEEN THE "PUTTING IN FEAR" AND THE "TAKING" ELEMENTS OF THIS OFFENSE.

B. JUDGE EVANS' CHARGE ON THE ELEMENTS OF CAPITAL MURDER IMPROPERLY AMENDED THE INDICTMENT BY OMITTING THE ELEMENT OF "MALICE AFORETHOUGHT".

C. THE COURT'S INVITATION TO THE JURORS TO FIND JEROME GUILTY OF CAPITAL MURDER ON THE BASIS OF ANY SINGLE ACT "CONNECTED WITH" THE CHARGED OFFENSE ERRONEOUSLY RELIEVED THE STATE OF ITS BURDEN OF PROOF.

XIII. SEVERAL PIECES OF EVIDENCE WERE ADMITTED ALTHOUGH THE STATE FAILED TO ESTABLISH A COMPLETE CHAIN OF CUSTODY.

XIV. THE CIRCUIT COURT SHOULD NOT HAVE ALLOWED THE STATE TO CALL JERRY SMITH BECAUSE THE PROSECUTOR HAD FAILED TO PROVIDE APPELLANT WITH PRETRIAL NOTICE OF THIS WITNESS.

XV. THE TRIAL JUDGE SHOULD HAVE EXCLUDED IDENTIFICATION TESTIMONY REGARDING JEROME SMITH AND A RED AND WHITE AUTOMOBILE, AS SUCH TESTIMONY WAS UNRELIABLE AND TAINTED BY SUGGESTIVE INFLUENCES.

XVI. THE PROSECUTOR'S SUMMATION AT THE GUILT-INNOCENCE STAGE INCLUDED A NUMBER OF IMPROPER COMMENTS.

A. MR. CROOK ARGUED FACTS THAT WERE IRRELEVANT AND NOT IN EVIDENCE WHEN HE URGED JURORS TO FIND JEROME SMITH GUILTY BECAUSE TED BUNDY WAS CONVICTED ON THE BASIS OF CIRCUMSTANTIAL BITE-MARK EVIDENCE, AND DISCUSSED HIS OWN DRIVING TIME FROM HOME TO THE COURTHOUSE IN AN EFFORT TO REBUT APPELLANTS' ALIBI DEFENSE.

B. THE PROSECUTOR IMPROPERLY FOCUSED JURORS' ATTENTION ON THE WORTH OF THE VICTIM AND THE DESIRES OF HIS FAMILY.

XVII.THE EVIDENCE WAS INSUFFICIENT TO PROVE THAT JEROME SMITH TOOK MONEY FROM THE VICTIM BY PUTTING HIM IN FEAR OF IMMEDIATE INJURY TO HIS PERSON, AND THUS WAS INSUFFICIENT TO ESTABLISH THE ROBBERY ELEMENT OF CAPITAL MURDER.

XVIII.THE JURY'S GUILTY VERDICT WAS LEGALLY INADEQUATE BECAUSE IT WAS NOT SIGNED BY THE JURY FOREPERSON.

XIX. THE TRIAL COURT IMPROPERLY REMOVED VENIRE MEMBER TERETHA TAYLOR BECAUSE SHE COULD NOT DEFINE "MITIGATING" AND "AGGRAVATING" CIRCUMSTANCES, ALTHOUGH SHE NEVER INDICATED WHAT HER VIEWS WERE ON THE DEATH PENALTY, LET ALONE THAT THEY WOULD IMPAIR HER FROM CONSIDERING A DEATH SENTENCE.

XX. THE PROSECUTOR'S SYSTEMATIC USE OF HIS PEREMPTORY CHALLENGES TO RID THE JURY OF BLACK VENIRE MEMBERS, TOGETHER WITH OTHER INDICIA OF RACIAL DISCRIMINATION, MANDATES THAT THIS CASE BE REMANDED TO THE CIRCUIT COURT TO REQUIRE THE ASSISTANT DISTRICT ATTORNEY TO PROVIDE CREDIBLE, RACE-NEUTRAL REASONS FOR THESE STRIKES.

XXI. JEROME SMITH'S RIGHT TO COUNSEL WAS VIOLATED WHEN THE TRIAL JUDGE REFUSED TO APPOINT THE ATTORNEY WHO HAD REPRESENTED HIM THROUGHOUT THE PRETRIAL STAGE, AND INSTEAD SUBSTITUTED NEW LAWYERS ONE MONTH BEFORE TRIAL.

XXII. IT WAS IMPROPER FOR THE TRIAL COURT TO PROVIDE THE PROSECUTOR WITH AN EX PARTE DISCOVERY ORDER, AND TO ALSO ENGAGE IN EX PARE COMMUNICATIONS WITH LAWYERS FROM THE STATE ATTORNEY GENERAL'S OFFICE.

XXIII. JEROME SMITH'S RIGHTS UNDER MISSISSIPPI AND FEDERAL LAW WERE VIOLATED WHEN THE STATE FAILED TO PROVIDE HIM WITH AN INITIAL APPEARANCE, A PRELIMINARY HEARING, OR ANY PRETRIAL JUDICIAL DETERMINATION THAT THERE WAS PROBABLE CAUSE TO CHARGE AND JAIL HIM IN THIS CASE, AND INSTEAD WAITED THREE MONTHS, UNTIL JEROME WAS INDICTED, TO VALIDATE HIS ARREST AND DETENTION.

¶2. We find no reversible error as to the guilt phase and affirm Jerome's conviction of capital murder. However, because the trial court improperly instructed the jury as to Jerome's parole eligibility, we reverse for resentencing.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶3. At approximately 9:00 p.m. or soon thereafter, on the night of November 7, 1992, Johnny B. Smith ("Johnny B."), was killed in the liquor store he owned in Sidon, Mississippi, as the result of three gunshot wounds. Taken from the store were a cash register and an extra cash drawer. Also missing was Johnny B.'s handgun which was either a .32 or .38 caliber weapon. The projectiles recovered from Johnny B.'s body and from the scene were consistent with those of a .38 caliber weapon. Steve Byrd, a forensic scientist at the Mississippi Crime Laboratory, testified that the type of bullets recovered, along with their markings, indicated that they were probably fired from a revolver and not a semi-automatic weapon. Found on the counter at the scene was a bottle of Seagram's gin in a brown paper bag. A latent fingerprint and palm print were lifted from the paper bag and identified as matching those of appellant, Jerome Pete Smith.

¶4. John Stewart and Lyndell Hunt testified that they were in Sidon and drove by the liquor store between 9:00 and 10:00 on the night of the murder and saw a red and white car parked between a tin two-story building and the post office, near the liquor store. They both stated that they saw two or three men next to the car, and one was carrying an object with a cord dangling from it. The witnesses testified that they thought it might have been a VCR, but they could not tell since they only saw the bottom of it. The State suggested that it was the cash register stolen from the liquor store. One of the men they saw near the car ducked under the steps of the building as if trying to hide. Mack Crigler, who was with Stewart and Hunt that night, did not notice a red and white car, but he did see the men with the object with the cord hanging from it.

¶5. Jerry Smith, the victim's brother as well as a deputy with the Leflore County Sheriff's Department, testified on rebuttal that he was on duty in Sidon on the night of the murder. He and Deputy J.B. Henry were patrolling the area in Henry's patrol car when they drove past the tin building and post office. Deputy Smith saw a red car parked near the buildings. He stated that he noticed that the car had small double windows and a burned place near the exhaust. He also noticed a spot on the ground where the car was leaking transmission fluid. Deputy Smith testified that he saw two people sitting in the car, and as the patrol car passed by they slid down in their seats. After passing the car, the deputies crossed the railroad track and went back to the sheriff's office where Deputy Smith dropped off Deputy Henry and went out again. He then received the call that there had been a shooting.

¶6. At trial, Deputy Smith identified a picture of the car Jerome and Clyde had been in the night of the murder as the car he saw parked near the liquor store. He stated that he had also personally examined and identified the car when it was in the custody of the sheriff's office. On cross-examination, Deputy Smith stated that when he passed the car the night of the robbery, although he saw the burned spot near the exhaust, he did not notice the reflective butterfly emblem on the back of the car.

¶7. Kevin Smith, the victim's thirteen year old son, was at his father's store just minutes and perhaps seconds before the robbery and murder. His father had called him to come get his jeep which was parked in front of the store. Kevin testified that as he was leaving the store and walking toward the jeep he saw two black men run toward the store. The men were wearing dark clothes and coats and one had on a cap. Kevin identified a cap recovered by the police outside the store after the murder as the one he had seen one of the men wearing that night. Kevin stated that the two men came within five or six feet of him as he was getting in the jeep. One of the men went into the store, and the other stayed outside. Kevin then left in the jeep.

¶8. At trial, Kevin identified Jerome and Clyde as the men he saw that night. In a photographic lineup several days after the shooting, Kevin picked out a picture of Jerome as possibly being one of the men he saw that night, and as the one he saw going into the store. He did not pick out Clyde's picture, and in fact, he picked out that of another man. Jimmy Tindall, Chief Deputy for the Leflore County Sheriff's Department, conducted the photographic lineup. He testified that although Kevin did not pick out Clyde's picture, Kevin stated that if he saw him in person he would probably be able to identify him.

¶9. Witnesses place Johnny B. still alive shortly before 9:00 p.m., on the night of his murder. His wife, Jeannette Smith, testified that she left Johnny B. alone at the store around 8:00 that night. A neighbor knocked on her door some time around 9:00 or 9:15 to tell her Johnny B. had been shot.

¶10. Peyton Crigler, Johnny B.'s cousin, was at the liquor store visiting from 8:30 until about 10 minutes before 9:00 p.m. At approximately 9:15 p.m. Crigler drove back past the store and saw one person inside who he took to be Johnny B., although he could not really tell who it was. Crigler then drove down a gravel road that connects with Highway 49. He stated that he was going approximately 30 miles per hour when a car came up behind him and passed him. Tommy Peoples found the broken cash register from the liquor store the next morning on the side of Highway 49, south of Sidon about three miles from the gravel road that Crigler was traveling when passed by the car.

¶11. Carolyn Pearce testified that around 2:00 a.m. on the morning after the murder, she was with Jerome and Clyde in a red and white car in Indianola. When she got into the car the brothers bought a $20 rock of crack cocaine. She testified that Clyde told her if she was nice to them they would come back and buy $300 or $400 more. She saw Clyde with a lot of loose bills.

¶12. Pearce stated that they started driving toward the outskirts of town so she grabbed the steering wheel. Jerome then pulled out what Pearce described as a "big silver revolver" and began hitting her arm with it. At some point Clyde got into the back seat with her and pulled out a knife and held it to her throat. Then Jerome and Clyde exchanged seats and weapons. The brothers made her take off her clothes and get out of the car naked. Clyde threw her clothes in the street. Outside the presence of the jury, Pearce stated that both men raped her before putting her out of the car.

¶13. J.D. Roseman, Isola Chief of Police, was a patrolman at the time of the murder. Sometime between 3:15 and 3:30 a.m. after the robbery and murder, Roseman was on patrol when he spotted a red and white automobile leaving Gresham Service Station in Isola. Roseman went to the service station to see if anything was wrong.

¶14. Roseman then followed the car and noticed that it was weaving some. He stopped the vehicle and turned his spotlight on the car. Roseman walked up to the car and shined his flashlight so that he could see the driver and the front seat passenger. He asked the driver, who he recognized as Clyde Smith, to step out of the car. He recognized the passenger as Jerome Smith. Roseman noticed the two seemed nervous, and he asked Clyde what they were doing at the service station. Clyde stated that the car was running hot and they were trying to get some water. Roseman told Clyde that if he would follow him to the fire station they could get some water. Clyde declined, stating that he thought they would make it.

¶15. After talking with Clyde for a few minutes, Roseman decided to let him go. Clyde got back in the car, but when he cranked it, it went dead. Roseman shined his flashlight on the temperature gauge and saw that it read normal. Roseman stated that the car did not smell hot either. Clyde cranked the car again and pulled away.

¶16. Roseman stated that the car the brothers were in was a 1972 white-on-red Ford Elite. After allowing the brothers to leave, he thought he remembered the town of Sunflower running the car's description and license plate earlier. Sunflower advised him that it had no problems with the vehicle. Roseman then advised the Humphreys County Sheriff's Department to keep an eye out for the vehicle because the brothers were acting suspicious. He ran the license plate and learned it was registered to Clyde and Jerome's sister, Dorothy Smith ("Dot").

¶17. Roseman then got a radio call from the Inverness Police Department that two black males in a red car had picked up a woman "and was trying to mess with her". Roseman also received a radio call from Tim Goad, a Humphreys County deputy sheriff, who stated that there had been radio traffic from Greenwood that a red and white vehicle was believed to be involved in a robbery and murder in Sidon. Roseman advised Goad that he had just stopped a vehicle matching that description, and he would try to locate the car again.

¶18. Eventually, Roseman met the vehicle going very slowly on Old Highway 49. He radioed Deputy Goad and told him where he had located the vehicle. He stated he was going to turn around and follow it until Goad arrived. Roseman then turned around and began following the vehicle with his lights off so he would not be seen. The vehicle pulled over to the side of the road and stopped. Roseman also stopped about 75 to 100 yards behind the car and waited for Goad to arrive. He was not aware that the brothers had exited the vehicle and were walking down the road.

¶19. Deputy Goad testified that before he got to the location he saw two men who he recognized as Clyde and Jerome Smith, walking down the road about 50 to 75 yards from their car. Before he realized who he had seen, Goad had already passed them. By the time he turned around the brothers had run into a cotton field. Goad and Roseman searched for the men for several minutes, but could not find them.

¶20. While Roseman continued to search, Goad approached the now abandoned vehicle. Goad testified that he shined his flashlight on the inside of the car to see if the keys were still in it. When he did not see the keys, he shined his flashlight on the floorboards. On the back floorboard on the driver's side, he saw a sawed-off .410, single-shot shotgun. He confiscated the shotgun at that time. Goad also found a set of keys stuck in between the fold of the passenger seat. These keys were later identified as fitting the lock on the Sidon Liquor Store where the robbery and murder had earlier taken place.

¶21. Another search of the vehicle by Horace Miller, an investigator with the Mississippi Highway Patrol, turned up a black and white bandanna and a receipt from the Indianola Burger King that showed a purchase at 1:34 a.m. on November 8, 1992. A search of the field where Goad saw Jerome and Clyde run turned up a knife. Henry Bryant, the boyfriend of one of Jerome and Clyde's sisters, identified the knife as a hunting knife he loaned to Clyde a week before the murder. Carolyn Pearce also identified the knife as the one Clyde had pulled on her.

¶22. Bryant went on to testify about a conversation he had with Jerome and Clyde on the day of the murder. He stated that the brothers were at his house that Saturday afternoon when Clyde mentioned that he was broke and needed some money. Bryant testified that Clyde said that all you had to do was find a place without many police and you could get away with something. Bryant also stated that Jerome had a shiny revolver with him that day, but he did not know what type of gun it was.

¶23. Jerome and Clyde presented an alibi defense. Clyde's girlfriend, Cassandra Jefferson, testified that Clyde was at her house in Belzoni all day until about 8:30 p.m. when he left with Jerome, their sister Dot, and their mother. Jefferson testified that Clyde and Jerome returned to her house at approximately 9:30 p.m. Shortly thereafter, the two left in Dot's red and white car. Jefferson did not see either of the brothers again until around 8:30 or 9:00 the next morning when they showed up at her house on foot.

¶24. Jerome and Dot, testified that a little after 8:00 p.m. on November 7, 1992, she and her mother picked up Clyde at Cassandra Jefferson's house and brought him back to their mother's house. Dot stated that Jerome was already at the house asleep. At approximately 8:45, Clyde and Jerome left in her car, a 1975 white-on-red Ford Elite. She did not see the two again until the next morning.

¶25. Yvonne Stewart, the owner of the Isola Lounge in Isola, Mississippi, testified that Jerome and Clyde entered her business sometime around 10:00 on the night of November 7, 1992. Stewart testified that she knew the time to be close to 10:00 p.m., because when the brothers came in she was on the way out to walk next door to the grocery store to buy ice. The grocery store closed at 10:00 p.m., and when she got there the doors were locked, but she could still see the owners inside counting money. Stewart stated that Jerome and Clyde stayed at the lounge only for five or ten minutes before again leaving.

¶26. The authorities, which consisted of the sheriff's departments of Leflore, Sunflower, Humphreys and Holmes Counties, the Mississippi Highway Patrol, and the police departments of Greenwood, Belzoni and Itta Bena, started searching for Clyde and Jerome before daylight on Sunday, November 8, 1992. A K-9 unit and the Highway Patrol helicopter were able to follow the tracks from where the brothers went in to the cotton field until they reached the town of Belzoni. By noon the police had obtained warrants for Clyde and Jerome. Later, they received information that the two were at their brother Elijah's apartment in Sunflower. Ricky Banks, the Leflore County Sheriff, along with members of the Sunflower Police Department, went to Elijah's apartment. Elijah told them that Jerome and Clyde were not there. However, when the police went in to search the apartment, Jerome and Clyde were present, placed under arrest, and transported back to the Leflore County jail.

DISCUSSION

I. THE TRIAL COURT ERRED IN TELLING JURORS THAT JEROME SMITH WOULD BE ELIGIBLE FOR PAROLE IF SENTENCED TO LIFE IMPRISONMENT, IN RESPONSE TO A MID-DELIBERATIONS QUESTION FROM THE JURY, AND IN GIVING A JURY CHARGE AND ALLOWING CLOSING ARGUMENTS FROM THE PROSECUTOR AND CO-DEFENDANT WHICH HIGHLIGHTED JEROME'S PAROLE ELIGIBILITY AND MISLEADINGLY SUGGESTED HE MIGHT BE RELEASED IMMINENTLY IF NOT SENTENCED TO DIE.

¶27. After approximately three hours of penalty phase deliberations the jury sent out a note which read:

The jury is aware that Clyde Smith has been sentenced in the past with life without parole.

Our question is, if we sentence Jerome Smith to a life sentence, will he be eligible for parole?

Over Jerome's objections, the trial Judge returned the note to the jury with a written answer which read:

Jerome Smith will be eligible to be considered for parole.

Gray Evans, Circuit Judge

Subsequently, the jury returned a verdict sentencing Jerome to death.

¶28. Jerome argues that by informing the jury that if given a life sentence he would be eligible to be considered for parole, the trial court committed reversible error. Jerome maintains that the trial court's actions were exacerbated by comments made during sentencing phase closing argument by both Clyde's attorney and the prosecutor. According to Jerome, the jury instructions and comments by Clyde's attorneys focused the jury's attention on Jerome's potential for parole. The comments were to the effect that because of his previous life-without-parole sentences Clyde would not be eligible for parole.

¶29. During closing arguments, Clyde's attorneys tried to convince the jury that Clyde was less deserving of the death penalty than Jerome. At one point Clyde's counsel argued:

There is another difference in these two defendants. This man, Clyde, Sunday, the day before this trial started was serving four life sentences without parole, and I can tell you regardless of what you heard on T.V. about how people serve a year and a half for raping somebody on the average, or whatever statistics they come up with, I can tell you and the law will tell you and this Court will tell you, he will never see the outside of a prison cell until he dies in prison. Now that's before we got here. That's the case and it's still the case, and sentence by life from you won't affect it. It won't lessen it, it won't override it, it won't take the place of it. Those sentences are there and he will serve that time, and he never will get out. There's the difference between these two people right there.

At another point, Clyde's attorney told the jury:

He will never get to pay his debt so he can put it behind him. He can't do five years and get out and say to himself, "It was a bad mistake but I paid for it, now I can move along." He can never pay for it.

¶30. Jerome also takes issue with the following statement made by the prosecutor in the rebuttal portion of the State's closing argument:

And he's not--they are not going to be able to seek forgiveness and they're not going to be able to pay their debt to society and do the things that people with freedom can do. What did they do, ladies and gentlemen, after they took this man's life? Is this what we want them to be able to do at some point after they say, "Oh, we have been forgiven," to around, to drink whiskey, smoke marijuana, buy cocaine, mess with women. That's what they were doing.

Jerome argues that these statements, especially the trial court's answer to the jury's mid-deliberations question concerning Jerome's parole eligibility, were clear violations of this state's case law.

¶31. This Court has repeatedly held that except in habitual offender cases, where a life sentence would automatically mean life-without-parole, the parole issue should not be considered by the sentencing jury. Blue v. State, 674 So. 2d 1184, 1194-96 (Miss. 1996); Mackbee v. State, 575 So. 2d 16, 40-41 (Miss. 1990); Williams v. State, 544 So. 2d 782, 798 (Miss. 1987); Cabello v. State, 471 So. 2d 332, 346 (Miss. 1985). In this state's original case on this issue, Williams v. State, 445 So. 2d 798, 812-14 (Miss. 1984), this Court held that:

"A jury should have no concern with the quantum of punishment because it subverts a proper determination of the sentencing issue.

Reference to the possibility of parole should the defendant not be sentenced to die are wholly out of place at the sentencing phase of a capital murder trial for two additional reasons.

First, such references inevitably have the effect of inviting the jury to second guess the Legislature. The Legislature has declared that persons sentenced to life imprisonment may under certain circumstances become eligible for parole. Mississippi Code Annotated Section 47-7-3(1) (Supp. 1982). It is no more proper for the jury to concern itself with the wisdom of that legislative determination than it is for the jury to consider the Legislature's judgment that death in the gas chamber be an authorized punishment for capital murder. Johnson v. State, 416 So. 2d 383, 392 (Miss. 1982).

Second, parole is not automatic. No person sentenced to life imprisonment has any "right" to parole. Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 11, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668, 677 (1979); Davis v. State, 429 So. 2d 262, 263 (Miss. 1983). Allowing argument or testimony regarding the possibility of the defendant some day being paroled is in effect inviting the jury to speculate how ten years in the future the parole board may exercise its legislatively granted discretionary authority. This would introduce into the sentencing proceedings an "arbitrary factor" proscribed by Section 99-19-105(3)(a)." Williams, 445 So. 2d at 813 (emphasis in original).

¶32. This Court has reaffirmed this holding on several occasions. See Blue v. State, 674 So. 2d 1184, 1194-96 (Miss. 1996); Mackbee v. State, 575 So. 2d 16, 40-41 (Miss. 1990); William v. State, 544 So. 2d 782, 798 (Miss. 1987); Cabello v. State, 471 So. 2d 332, 346 (Miss. 1985).

¶33. The State argues that the case at bar can be factually distinguished from these prior cases. First, the State argues that the court did not instruct the jury that if Jerome was not given the death penalty he would be eligible for parole, rather he informed them that Jerome would only be eligible to be "considered" for parole. Furthermore, the State argues, that as an habitual offender Clyde had every right to inform the jury that a life sentence would mean life-without-parole. See Mackbee, supra; Turner v. State, 573 So. 2d 657 (Miss. 1990). According to the State, after hearing this the jury would naturally be curious as to Jerome's parole eligibility, and had the trial court not answered the question the jury would have been left to speculate. The State suggests that since it has been held that informing a jury of parole eligibility is not constitutionally violative, Caldwell v. Mississippi, 472 U.S. 320 (1985), that under the circumstances of this case, where the brothers asked to be tried together, an exception should be made. The State further argues that any error in giving the instruction in this case was harmless beyond a reasonable doubt. Hansen v. State, 592 So. 2d 114 (Miss. 1991).

¶34. The State is correct in its assertion that Clyde had a constitutional right to inform the jury that he was an habitual offender and would not be entitled to parole eligibility if given a life sentence. However, this Court has not extended this right to defendants who are not habitual offenders. Regardless of the fact that the brothers were tried together, we decline to make an exception to our previous rulings here. Under this Court's prior rulings in Williams and its progeny, the trial court's actions in this case were in error and require a reversal of the sentence of death.

II. ALTHOUGH HE FILED A PRETRIAL MOTION DEMANDING NOTICE OF AGGRAVATING CIRCUMSTANCES AND EVIDENCE, JEROME SMITH WAS NOT INFORMED, UNTIL THE BEGINNING OF THE PENALTY PHASE OF HIS TRIAL, THAT THE PROSECUTION WOULD BE RELYING ON THE PREVIOUS-VIOLENT FELONY AGGRAVATING FACTOR AND WOULD BE OFFERING PROOF OF TWO PRIOR AGGRAVATED ASSAULT CONVICTIONS.

A. THE DENIAL OF PRETRIAL NOTICE OF THE STATE'S INTENT TO INTRODUCE APPELLANT'S PRIOR AGGRAVATED ASSAULT CONVICTIONS VIOLATED MISSISSIPPI LAW.

B. THE DENIAL OF PRETRIAL NOTICE OF THE STATE'S INTENT TO INTRODUCE APPELLANT'S PRIOR AGGRAVATED ASSAULT CONVICTIONS VIOLATED THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

¶35. In this issue, Jerome argues at length that the State committed reversible error in failing to provide him with pre-trial notice that it would be relying on the prior violent felony aggravating circumstance, or that it would present evidence concerning his prior aggravated assault convictions to support that aggravating circumstance, even though appellant filed a pre-trial motion demanding such notice. Jerome argues that such lack of notice prevented his attorneys from being prepared to challenge these convictions and from presenting evidence of "Jerome's peripheral role in, and Clyde's principal responsibility for, the incident that gave rise to these aggravated assault convictions".

¶36. Jerome has offered no Mississippi case as authority that a capital defendant is entitled to pretrial notice that the State will rely on the prior violent felony aggravating factor and notice of the specific convictions that will be offered to prove this factor. The majority of Jerome's authority espouses only the requirement that Mississippi law requires a defendant, who is to be tried as an habitual offender or pursuant to some other sentence-enhancement statute, to be given notice in the indictment of the previous convictions that will be relied upon by the State to support the sentence enhancement. See Lacy v. State, 629 So. 2d 591, 595 (Miss. 1993); Benson v. State, 551 So. 2d 188, 195-96 (Miss. 1989).

¶37. This Court in Williams v. State, 445 So. 2d 798 (Miss. 1984), held that a capital murder indictment need not inform the defendant as to which aggravating factors the prosecution might rely on in seeking the death penalty. The Court in Williams held that:

"The major purpose of an indictment is to furnish the accused such a description of the charges against him as will enable him to adequately prepare his defense. Westmoreland v. State, 246 So. 2d 487 (Miss. 1971); Woods v. State, 200 Miss. 527, 27 So. 2d 895 (1946). Thus, all that is required in this regard is a concise and clear statement of the elements of the crime charged. Love v. State, 211 Miss. 606, 52 So. 2d 470 (1951). Nothing more is required.

We believe that the fact that our capital murder statute lists and defines to some degree the possible aggravating circumstances surely refutes the appellant's contention that he had inadequate notice. Anytime an individual is charged with murder, he is put on notice that the death penalty may result. And, our death penalty statute clearly states the only aggravating circumstances which may be relied upon by the prosecution in seeking the ultimate punishment. In our opinion, Williams received adequate notice." Williams, 445 So. 2d at 804-05 (footnote omitted).

The Williams Court also rejected comparisons to the habitual offender statutes and Unif. Crim. R. Cir. Ct. P. 6.04. See Williams, 445 So. 2d at 805, n.1. ¶38. However, this Court finds that Jerome was given pretrial notice that the State intended to rely on the prior-violent-felony aggravating circumstance. On June 10, 1993, the State filed two documents with the circuit clerk's office, each entitled "Notice of Aggravating Circumstances". The style of one document read "State of Mississippi v. Jerome Pete Smith" while the other was styled "State of Mississippi v. Clyde Wendell Smith". Although there was one filed for each of the brothers, the body of both documents read, "Comes now the State of Mississippi and gives the Defendant, Clyde Wendell Smith, notice . . ." This was an apparent clerical error, and one Jerome's attorneys tried to take advantage of at trial. Prior to the sentencing phase, the following colloquy took place:

MR. JONES: Your Honor, before we get to that with respect to Jerome Smith there was a motion for and it was granted with respect to and there was a notice of aggravating circumstances presented by the district attorney's office that didn't say anything about Jerome Pete Smith, talked about Clyde Smith, so there were--there was no notice of aggravating circumstances as to--

THE COURT: Well, Mr. Jones, that's a noble try. I think that puts you on notice sufficiently.

The Court holds that the trial court was correct in finding that Jerome had adequate notice. Two documents were filed, one styled "State v. Jerome Pete Smith", and even though the body contained Clyde's name, the aggravators listed in the documents were not exactly the same. Clyde had the additional aggravator of "the capital offense was committed by a person under a sentence of imprisonment". Jerome's attorney should have known or at least inquired as to whether the name Clyde in the body of the document was in error. There was sufficient time prior to trial to investigate the matter. This Court finds this issue to be without merit.

III. THE JURY'S DEATH-SENTENCING VERDICT WAS LEGALLY INADEQUATE BECAUSE THE JURORS FAILED TO FIND THAT JEROME SMITH HIMSELF KILLED, INTENDED TO KILL, ATTEMPTED TO KILL, OR CONTEMPLATED THAT LETHAL FORCE WOULD BE USED, AND BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT SUCH FINDINGS.

¶39. In this issue, Jerome correctly states that Miss. Code Ann. § 99-19-101(7) (1994) forbids a jury from imposing a death sentence, unless it makes a written finding that "the defendant actually killed", "the defendant attempted to kill", "the defendant intended that a killing take place", or "the defendant contemplated that lethal force would be employed". The United States Supreme Court in Enmund v. Florida, 458 U.S. 782 (1982), held that such a finding is also required by the Eighth Amendment to the United States Constitution.

¶40. In the case sub judice, when the jury returned the separate verdicts at the Conclusion of the sentencing phase, the Enmund findings, with respect to Jerome, read as follows:

We, the jury, as to Jerome Pete Smith, 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 defendants actually killed Johnny Smith;

2) that the defendants intended the killing of Johnny Smith take place; and

3) that the defendants contemplated that lethal force be employed. (emphasis added).

¶41. Jerome argues that inasmuch as the verdict contained the word "defendants" and not "defendant" that the jury failed to make an individual finding that Jerome personally either killed, intended to kill, or contemplated the use of lethal force, and therefore, the resulting death sentence violated the Eighth and Fourteenth Amendments, as well as the holding in Enmund v. Florida, 458 U.S. 782 (1982), and the laws of this state. Jerome argues that when the jury used the word "defendants" it meant to convey that these findings applied to one or the other of the two defendants, but not necessarily both. Jerome maintains that since the jury used the word "defendants" there was no individualized finding as to his culpability, and therefore the sentence should be reversed.

¶42. The State first argues a procedural bar. The jury's verdict was copied directly from this sentencing instruction. Neither Jerome nor Clyde objected to Instruction S-1, to the form of the verdict at trial, or in their motions for new trial. Accordingly, the State argues that this claim has been waived and cannot be raised for the first time on appeal. Ballenger v. State, 667 So. 2d 1244, 1259 (Miss. 1995); Foster v. State, 639 So. 2d 1263, 1270 (Miss. 1994); Mitchell v. State, 609 So. 2d 416, 422 (Miss. 1992); Moawad v. State, 531 So. 2d 632, 635 (Miss. 1988).

¶43. Jerome cites to Pinkton v. State, 481 So. 2d 306 (Miss. 1985), to support his argument that because of the jury's use of the plural "defendants" there was no individualized finding as to his culpability as required by Miss. Code Ann. § 99-19-101(7) (1994). In Pinkton, the defendant pled guilty to capital murder, the killing having occurred during an attempted armed robbery. A sentencing trial was then held, and the death penalty imposed. The jury failed to make a separate finding of culpability as required under Miss. Code Ann. § 99-19-101(7), but instead "embarked directly upon the framing of findings relating to the aggravating circumstances". Pinkton, 481 So. 2d at 309.

¶44. The question presented to this Court was "whether such an explicit finding is indispensable or whether it can be implied from the other findings or from the plea of guilty in the guilt phase". Id. In answering the question, the Court stated that its decision was to be controlled by the statute and not by federal constitutional considerations, and that the statute was not ambiguous. "A separate, explicit and written jury finding in accordance with the subsection is indispensable to the valid imposition of the death penalty." Id. at 310.

¶45. The State in Pinkton argued alternatively that Pinkton was procedurally barred from raising the issue on appeal, since there was no contemporaneous objection to the Judge's failure to instruct the jury on the requirement for a § 99-19-101(7) finding. This Court found the argument without merit, stating:

Although a more complete instruction might have prevented the jury's omission, that omission is nonetheless an event legally distinct from the Judge's failure to instruct. The jury's obligation in this matter, is after all, independently imposed by the statute without reference to any action by the Judge. Once this is understood, the state's argument immediately faLls. Pinkton could raise no objection to the jury's dereliction until after its verdict was rendered, and then it was too late. Id. at 310.

¶46. The case at bar differs from Pinkton in that the jury was instructed to return separate written findings as required by § 99-19-101(7) for both Jerome and Clyde, and it did so. The only real issue that must be resolved is whether the jury's use of the plural "defendants" somehow made the finding invalid.

¶47. A somewhat similar argument, as Jerome makes here, was made in Conner v. State, 632 So. 2d 1239, 1277 (Miss. 1993). There Conner sought reversal because in listing the aggravating circumstances in its written verdict, the jury included the word "whether" before each aggravating factor listed. Conner argued "that the jury's use of the word `whether' at the beginning of each clause indicate[d] that the jury merely `parroted' the jury instruction and failed to engage in the mandatory fact-finding process". Conner, 632 So. 2d at 1277. This Court, in rejecting Conner's argument, stated:

Conner doomed this assignment of error before he ever raised it by failing to object to the verdict's form at trial. But, even if the objection were preserved, it has not merit. No one can reasonably conclude, on grounds that the word "whether" repeatedly appears in the verdict, that the jury did not fulfil its fact-finding duties. The verdict would certainly win no grammar award, but its meaning is perfectly clear. The jury found that all five aggravating circumstances existed and that the aggravating circumstances carried more weight than did mitigating circumstances. Id. (internal citations omitted).

¶48. A similar argument can be made here. Sentencing Instruction S-1 informed the jury that it was to return separate verdicts for Jerome and Clyde. S-1 read in part:

The verdict you return must be written on a separate sheet of paper signed by the foreman. Your verdict should be written in one of the following forms:

1. We, the Jury, as to Jerome Pete Smith, unanimously find from the evidence beyond a reasonable doubt that the following facts existed at the time of the commission of the capital murder: (List or itemize all facts found, if any, from the list under Section A of this instruction which you unanimously agree exist in this case beyond a reasonable doubt.)

Section A of the instruction read as follows:

To return the death penalty in this case you must first unanimously find from the evidence beyond a reasonable doubt that one or more of the following facts existed:

1. That the Defendants actually killed Johnny Smith; or

2. That the Defendants intended the killing of Johnny Smith takeplace; or

3. That the Defendants contemplated that lethal force would be employed.

¶49. The plural "Defendants" was used in S-1 because one instruction was submitted for both defendants. The jury when writing the separate verdicts for Jerome and Clyde copied the wording as it was written in the instruction. This does not mean that the jury did not make an individualized finding as to each defendant. What it does show is that the jury determined that each of the three factors applied equally to both Jerome and Clyde. The jury clearly intended these factors to apply to Jerome as it prefaced this section of its verdict with the words "as to Jerome Pete Smith".

¶50. Jerome goes on to argue that aside from the allegedly fatal flaw in the jury's verdict, there was insufficient evidence, as a matter of law, to demonstrate beyond a reasonable doubt Jerome's culpability under § 99-19-101(7) and Enmund.

¶51. This Court's standard of review of a jury's findings under Enmund and Miss. Code Ann. § 99-19-101(7) was set out in Abram v. State, 606 So. 2d 1015, 1041-42 (Miss. 1992), as follows:

On appeal, "we review the evidence and all reasonable inferences which may be drawn therefrom in the light most consistent with the verdict. We have no authority to disturb the [jury] verdict short of a Conclusion on our part that upon the evidence, taken in the light most favorable to the verdict, no rational trier of fact could have found the fact at issue beyond a reasonable doubt." White v. State, 532 So. 2d 1207, 1220 (Miss. 1988). This is the guide for testing the legal sufficiency of the evidence to support a finding under §99-19-101(7). . . .

¶52. The question that must be answered here is whether there was sufficient evidence presented at trial to support, as to Jerome, a finding that he killed, intended a killing to take place, or contemplated that lethal force would be used. "Mississippi by statute requires more in the felony-murder scenario than major participation and reckless indifference to the value of human life." Abram, 606 So. 2d at 1042. See also Carr v. State, 655 So. 2d 824, 839 (Miss. 1995). The phrase "contemplation that lethal force will be used" has been defined as "[w]here, as a part of the pre-crime planning, a defendant includes in his plans the substantial probability that fatal force will be employed. . ." Abram, 606 So. 2d at 1043 (quoting White, 532 So. 2d at 1220-21).

¶53. The record reveals that while Clyde was more than likely the instigator of the robbery in this case, Jerome was a major participant. Henry Bryant, the boyfriend of Dot, testified that on the day of the robbery and murder, the brothers were at his house. He testified that Clyde made the comment that he was broke and needed money. During the conversation, Bryant stated to Clyde that it was hard to rob someone and get away with it. According to Bryant, Clyde responded by saying that if you go to a small town with few police then you can get away with it. The robbery and murder in the case before this Court, fit the scenario perfectly, with the exception being that the brothers got caught. Bryant went on to testify that Jerome had in his possession on the day of the murder a shiny silver revolver and Clyde had a hunting knife. Carolyn Pearce also testified that the brothers were carrying the aforementioned weapons following the murder.

¶54. The description of the weapon in Jerome's possession on the day of the murder was that he was carrying a revolver. The State's forensics expert testified that the projectiles recovered from the victim's body and the scene of the crime were consistent with having been fired from a .38 caliber revolver. Furthermore, Kevin Smith, the victim's son, identified Jerome in a photographic lineup several days after the murder as the man he saw enter the store shortly before the shooting occurred. Jerome's fingerprint and palm print were also found on a paper bag containing a bottle of liquor sitting on the store's counter.

¶55. This Court holds that a fair-minded juror could make a reasonable inference from these facts that Jerome, who entered the store armed with a revolver intent on robbery, actually killed, intended that a killing take place, or at the very least, contemplated the use of lethal force. We, therefore, find this issue is without merit.

IV. THE CIRCUIT COURT'S INSTRUCTIONS TO THE JURY AT THE SENTENCING STAGE WERE FATALLY FLAWED.

A. THE LOWER COURT IMPROPERLY DEPRIVED JEROME OF HIS RIGHT TO FULL CONSIDERATION OF ALL STATUTORY MITIGATING FACTORS, WHEN IT CHARGED THE JURY ON THE MITIGATING CIRCUMSTANCE THAT CLYDE WAS A LESSER PARTICIPANT IN THE CRIME, BUT DID NOT GIVE THIS INSTRUCTION AS TO JEROME OR AN INSTRUCTION ON THE SUBSTANTIAL-DOMINATION MITIGATING FACTOR.

¶56. Jerome argues that his attorneys sought a sentencing phase instruction that would have told jurors to consider the statutory mitigating factors of whether appellant "acted under extreme duress or under the substantial domination of another person" and whether Jerome "was an accomplice in the capital offense committed by another person and his participation was relatively minor". Jerome states that the trial court refused to give these charges to the jury. Jerome argues that there was sufficient evidence from which a reasonable juror might have determined that both of these mitigating factors applied to Jerome.

¶57. This issue is without merit. Although Jerome did submit an unnumbered instruction to the trial court concerning these two mitigating factors, the record shows that the word "withdrawn" was written across the first page of the instruction. Jerome may not object for a failure to instruct the jury on these mitigating factors when he withdrew the submitted instruction.

¶58. There was no record of any mention of mitigating factors by Jerome's attorneys. In fact, the only mention of either of these two mitigating factors was the following comment by Clyde's attorney:

MR. STUCKEY: Well, Judge, aren't our mitigating circumstances exactly the same? I don't think it's going to create much of a problem. The age, accomplice one, and the no. 4, the general catch-all phrase. We ain't got any proof about strain, duress, and all that garbage. We're going to have to take that out.

There was no objection at this time by Jerome, nor did he ever ask the trial court to instruct the jury on these mitigating factors. The trial court had no duty to instruct the jury sua sponte. Conner v. State, 632 So. 2d 1239, 1254 (Miss. 1993).

B. JUDGE EVANS ERRED IN REFUSING TO CHARGE THE JURY ON SPECIFIC NON-STATUTORY MITIGATING CIRCUMSTANCES.

¶59. Jerome argues that at the sentencing phase, the trial court erred in not instructing the jury as to certain specific non-statutory mitigating factors concerning Jerome. These mitigating factors were set out in the same instruction discussed above that was marked withdrawn.

¶60. The only mention of these factors by Jerome's attorney at trial was during a Discussion of what evidence could be presented at the sentencing phase. When these mitigating factors were mentioned, the trial court, after consulting Miss. Code Ann. § 99-19-101, stated that Jerome could present evidence and argue to the jury any mitigating factors that he wanted, but unless they were statutory mitigators they would not be listed in the jury instruction. Instead, the trial court gave the jury the general catch-all instruction which read:

Consider the following elements of mitigation in determining whether the death penalty should not be imposed:

3. Any other matter, any other aspect of the Defendants, Clyde Wendell Smith's or Jerome Pete Smith's, character or record, and any other circumstance of the offense brought to you during the trial of this cause which you, the Jury, deem to be mitigating on behalf of the Defendants, Clyde Wendell Smith or Jerome Pete Smith. And any other mitigating circumstances which you the jury wich [sic] to consider even though they are not set forth above.

¶61. "This Court long has accepted the use of a 'catch-all' to encompass any mitigating circumstances not specifically enumerated under Miss. Code Ann. § 99-19-101(6)." Jackson v. State, 684 So. 2d 1213, 1238 (Miss. 1996); Carr v. State, 655 So. 2d 824, 854 (Miss. 1995); Neal v. State, 451 So. 2d 743, 760-61 (Miss. 1984); Gray v. State, 375 So. 2d 994, 1003-1004 (Miss. 1979). Accordingly, Jerome cannot complain that he was not afforded the opportunity to instruct the jury to consider his impoverished and traumatic childhood as mitigating factors.

C. BECAUSE ROBBERY WAS AN ELEMENT OF THE OFFENSE OF CAPITAL MURDER, ITS ADDITIONAL USE AS AN AGGRAVATING CIRCUMSTANCE WAS IMPERMISSIBLY DUPLICATIVE AND CONTRAVENED THE NARROWING REQUIREMENT OF THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

¶62. Jerome asserts that the trial court erred in allowing the State to use the aggravating circumstance of a murder committed during the course of an armed robbery. He argues that the use of the "felony-murder" aggravating circumstance in a felony-murder case is impermissibly duplicative, and in violation of the narrowing requirement of the Eight Amendment to the United States Constitution. Jerome cites to State v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992); Engberg v. Meyer, 820 P. 2d 70, 87 (Wyo. 1991); Furman v. Georgia, 408 U.S. 238 (1972); and Arave v. Creech, 507 U.S. 463 (1993).

¶63. This so-called "doubling up" argument, which states that the use of the robbery aggravating circumstance in a robbery-murder case, does not genuinely narrow the class of defendants eligible for the death penalty, has consistently been rejected by this Court. See Ballenger, 667 So. 2d at 1260-61; Pinkney v. State, 538 So. 2d 329, 358-59 (Miss. 1988), vacated on other grounds, 494 U.S. 1075 (1990); Jones v. State, 517 So. 2d 1295, 1300 (Miss. 1987), vacated on other grounds, 487 U.S. 1230 (1988) overruled on other grounds by Willie v. State, 585 So. 2d 660 (Miss. 1991). In Ballenger, the Court stated, "[t]he `narrowing' of the class of death eligible offenders has been done legislatively in Mississippi under Miss. Code Ann. § 97-3-19(2) (1972 & Supp. 1994)." Ballenger, 667 So. 2d at 1261. See also Lowenfield v. Phelps, 484 U.S. 231 (1988). This issue is without merit.

D. THE TRIAL JUDGE'S INSTRUCTIONS IMPROPERLY LED JURORS TO BELIEVE DEATH WAS THE APPROPRIATE SENTENCE IF AGGRAVATING AND MITIGATING CIRCUMSTANCES WERE IN EQUIPOISE.

¶64. Jerome takes exception to the following language in sentencing instruction S-1:

"If you find from the evidence that one or more of the preceding elements of mitigation exists, then you must consider whether it (or they) outweigh(s) or overcome(s) the aggravating circumstance(s) you previously found. In the event that you find that the mitigating circumstance(s) do not outweigh or overcome the aggravating circumstance(s), you may impose the death sentence. Should you find that the mitigating circumstance(s) outweigh or overcome the aggravating circumstance(s), you shall not impose the death sentence." Jerome, citing White v. State, 589 A.2d 969, 973 (Md. 1991), People v. Young, 814 P. 2d 834, 839 (Colo. 1991), and Jackson v. Dugger, 837 F. 2d 1469, 1473-74 (11th Cir. 1988), argues that this language "improperly created a presumption in favor of death, in that a death sentence would result if the jurors found the aggravating and mitigating factors to be in equipoise".

¶65. The State argues another procedural bar because Jerome failed to bring the issue before the trial court. Such a procedural bar is supported by the record. "A trial Judge will not be found in error on a matter not presented to him for decision." Jones v. State, 606 So. 2d 1051, 1058 (Miss. 1992) (citing Crenshaw v. State, 520 So. 2d 131, 134 (Miss. 1988). See also Ballenger, 667 So. 2d at 1259; Foster v. State, 639 So. 2d 1263, 1270 (Miss. 1994); Mitchell v. State, 609 So. 2d 416, 422 (Miss. 1992).

¶66. Not only is this issue procedurally barred, it is without merit as well, as identical arguments have been consistently rejected by this Court. In Davis v. State, 660 So. 2d 1228 (Miss. 1995), the Court held:

"Davis' second contention is foreclosed by this Court's recent decision in Conner v. State, 632 So. 2d 1239 (Miss. 1993); cert. denied, . . ., 115 S. Ct. 314, 130 L. Ed. 2d 276 (1994). Conner, like Davis, argued "that a proper instruction would permit imposition of the death penalty only where the jury finds that aggravating circumstances outweigh mitigating circumstances, not vice versa". Conner, 632 So. 2d at 1278. See also Shell v. State, 554 So. 2d 887, 904 (Miss. 1989), rev'd on other grounds, 498 U.S. 1, 111 S. Ct. 313, 112 L. Ed. 2d 1 (1990); Jordan v. State, 365 So. 2d 1198, 1206 (Miss. 1978), cert. denied, 444 U.S. 885, 100 S. Ct. 175, 62 L. Ed. 2d 114 (1979); Gray v. Lucas, 677 F. 2d 1086, 1105-06 (5th Cir. 1982), cert. denied, 461 U.S. 910, 103 S. Ct. 1886, 76 L. Ed. 2d 815 (1983). We rejected this argument in Conner, and today, we find no reason to vary from our holding in Conner. Accordingly, Davis merits no relief on this issue." Davis, 660 So. 2d at 1245. See also Doss v. State, No. 93-DP-00509-SCT, 1997 WL 770606 (Miss. Dec. 15, 1997) (Identical language complained about here found to be acceptable.)

¶67. The sentencing instruction complained of in the case at bar does not create a presumption of death nor does it require the sentencing jury to return a verdict of death if mitigating and aggravating factor are equipoise. This Court finds this issue lacking merit.

V. THE PROSECUTOR ENGAGED IN MISCONDUCT BY MAKING NUMEROUS IMPROPER COMMENTS DURING HIS CLOSING ARGUMENT AT THE SENTENCING STAGE.

¶68. Jerome takes issue with several statements made by the prosecution during its sentencing phase closing argument. He contends that the comments were improper and highly prejudicial, and when considered as a whole, require reversal.

¶69. Once again, the record reveals no objection by the defense to any of these statements. As was recently reiterated by this Court in Davis v. State, 660 So. 2d 1228 (Miss. 1995), "[a] contemporaneous objection must be made to allegedly erroneous comments made during closing argument or the point is waived." Id. at 1251 (citing Foster v. State, 639 So. 2d at 1289; Gray v. State, 487 So. 2d 1304 (Miss. 1986); Shavers v. State, 455 So. 2d 1299 (Miss. 1984)).

¶70. Not only was this issue not preserved for appeal, it is also without merit. First, Jerome contends that the prosecutor spoke of the importance of the sentence on the victim's family, suggesting that these survivors desired the death sentence be imposed. The record does not bear out this contention. Nowhere does the prosecutor encourage the jury to impose the death penalty because it is important to the victim's survivors. Instead, the prosecutor points out to the jury that the case involves real people, not just exhibits. Given the wide latitude generally afforded counsel in closing argument, taken together with the failure to object, this claim must fail. See Hansen v. State, 592 So. 2d 114, 139-40 (Miss. 1991); Johnson v. State, 416 So. 2d 383, 392 (Miss. 1982); Gray v. State, 351 So. 2d 1342, 1346-47 (Miss. 1977).

¶71. Next, Jerome argues that the prosecutor misinformed the jury as to the law by telling it that since it had already returned a guilt phase verdict of capital murder against Jerome, that it necessarily included the death-penalty culpability findings that he actually killed, intended to kill, attempted to kill, or contemplated lethal force would be used. Again, Jerome misstates the prosecutor's comments. Instead, the prosecutor stated that by returning a guilty verdict against both Jerome and Clyde, the jury had already determined that at least one of the two brothers had such culpability. Again, given the wide latitude generally given counsel in closing argument, taken together with the failure to object, this claim must fail. Hansen, 592 So. 2d at 139-40.

¶72. Next, Jerome argues that the assistant district attorney commented to the jury that he had personal knowledge of the seriousness of Jerome's prior convictions. Again, Jerome misrepresents the prosecutor's comment. At one point during closing argument the prosecutor asked the jury to consider the level of Jerome's previous convictions and the level of the offense for which he was now being tried. He then stated, "Please consider the level of the offense. I beg you to do that. Capital murder. This is not a pair of brass knuckles, some street person. I tried the case, and it wasn't a street person." In making this comment the prosecutor is clearly referring to the case at bar and not Jerome's previous convictions. As previously stated, given the wide latitude generally given counsel in closing argument, taken together with the failure to object, this claim must fail. Hansen, 592 So. 2d at 139-40.

¶73. Jerome contends that he was highly prejudiced by arguments of the prosecutor of the special heinousness of the murder. The alleged prejudicial arguments that the victim was shot in the back while fleeing from his assailant after having been struck by another bullet is not supported by the record. Instead, the prosecutor set out a possible scenario in an attempt to rebut arguments made during closing arguments by the defense that this was not a "bad" murder. As previously stated, given the wide latitude generally given counsel in closing argument, taken together with the failure to object, this claim must fail. Hansen, 592 So. 2d at 139-40.

¶74. Lastly, Jerome contends that the prosecutor improperly urged the jury to determine one defendant's punishment in part based on the sentence it imposed on the other. Again, Jerome completely misstates the record. During the State's rebuttal closing arguments at the sentencing phase, the prosecutor made the following comment which, in his brief, Jerome takes the single phrase, "something less than" out of context:

And somehow or another there is a difference between planning and doing. I don't understand that, that he went on to say that there's a difference in a degree of meanness and that Clyde somehow or another deserves less punishment than Pete. Is he saying that if you for some reason or another decide that Pete should not suffer the death penalty that Clyde should get something less than that? No, that doesn't wash. No, ma'am.

¶75. In making this comment, the prosecutor is telling the jury it can give Clyde the death penalty, even if it decides to give Jerome life imprisonment. The prosecutor does not, as Jerome suggests, tell the jury that since Jerome was the probable triggerman, that if Jerome does not get the death penalty, neither can Clyde.

¶76. None of these comments to which Jerome now complains were so prejudicial, either individually or cumulatively, as to require reversal. Accordingly, this Court finds this issue to be both waived for failure to make a contemporaneous objection and without merit.

VI. THE DEATH PENALTY IS A DISPROPORTIONATE PUNISHMENT IN LIGHT OF THE GRAVE UNCERTAINTY AS TO WHETHER JEROME SMITH ACTUALLY KILLED THE VICTIM AND OTHER DISTINGUISHING FEATURES OF THIS CASE.

¶77. In this issue, Jerome maintains that his sentence of death is "disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant". Miss. Code Ann. § 99-19-105 (3)(c) (1994). Jerome cites Reddix v. State, 547 So. 2d 792, 795 (Miss. 1989) and Bullock v. State, 525 So. 2d 764, 770 (Miss. 1987), to argue, inter alia, that since it was not ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.