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Smith v. State

December 10, 1998


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







¶1. Clyde Wendell Smith, *fn1 along with his younger brother, Jerome Pete 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 Clyde and Jerome 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 Clyde *fn3 now appeals, presenting twenty-two separate issues for review by this Court.

¶2. Finding no reversible error, Clyde's conviction of capital murder and sentence of death is affirmed.


¶3. At approximately 9:00 p.m. or soon thereafter, on the night of November 7, 1992, Johnny B. Smith, was killed in the liquor store he owned in Sidon, Mississippi, as a result of three gunshot wounds. Taken from the store were a cash register and an extra cash drawer. Also missing was Johnny's handgun which was either a .32 or .38 caliber weapon. The projectiles recovered from Johnny'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 Clyde's co-defendant, Jerome.

¶4. John Stewart and Lyndell Hunt testified that they were in Sidon and drove by the liquor store between 9:00 and 10:00 p.m. 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 Clyde and Jerome 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 that was knocked off by a tree limb. 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 Clyde and Jerome 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. 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 still alive shortly before 9:00 p.m. on the night of his murder. His wife, Jeannette Smith, testified that she left Johnny 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 had been shot.

¶10. Peyton Crigler, Johnny's cousin, was at the liquor store visiting from 8:30 until about 10 minutes before 9:00. At approximately 9:15, Crigler drove back past the store and saw one person inside whom he took to be Johnny, 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 on when passed by the car.

¶11. Carolyn Pearce testified that around 2:00 a.m. on the morning after the murder, she was with Clyde and Jerome in a red and white car in Indianola. When she got into the car the brothers bought a twenty-dollar 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 changed seats as well as 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 naked.

¶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.

¶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 that 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, and that he was going to turn around and follow it and wait for Goad to arrive. 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 Clyde and Jerome run turned up a knife. Henry Bryant, the boyfriend of one of Clyde and Jerome's sisters, identified the knife as a hunting knife he had 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 Clyde and Jerome 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. Clyde and Jerome 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 Dorothy Smith ("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 a.m. the next morning when they showed up at her house on foot.

¶24. Clyde and Jerome's sister, Dot, testified that a little after 8:00 p.m. on November 7, 1992, she along with her mother went and picked up Clyde at Cassandra Jefferson's house and brought him back to their mother's house. She stated that Jerome was already at the house asleep. At approximately 8:45 p.m., 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 Clyde and Jerome entered her business sometime around 10:00 p.m. 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 Clyde and Jerome stayed at the lounge only for five or ten minutes before leaving again.

¶26. The authorities including 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. They then got information that the two were at their brother Elijah's apartment in Sunflower, Mississippi. Ricky Banks, the Leflore County Sheriff, along with members of the Sunflower Police Department, went to Elijah's apartment. Elijah told them that Clyde and Jerome were not there. However, when the police went in to search the apartment Clyde and Jerome were present and were placed under arrest and transported back to the Leflore County jail.



¶27. Clyde argues that venireperson Taylor was excused because of her "limited intelligence" in violation of the Sixth, Eighth and Fourteenth Amendments to the United States Constitution as well as similar provisions of Mississippi law. He points out that pursuant to Miss. Code Ann. § 13-5-1 (1972), there is no requisite intelligence level that must be met before a person can serve on a jury. Clyde cites to Spencer v. State, 615 So. 2d 688 (Fla. 1993), wherein the Supreme Court of Florida held as reversible error the trial Judge's sua sponte excusal of jurors for allegedly having low IQs. In reversing, the Court stated:

"There is no legal basis for excusing a juror based on the trial Judge's arbitrary evaluation of the juror's IQ. The fact that the juror was confused is no basis for excusing her in this manner. This type of sua sponte action by the trial Judge also has other ramifications in this instance since the juror in question was the only black juror on the jury panel at the time she was excused." Spencer, 615 So. 2d at 690.

¶28. Clyde also latches on to the fact that the trial court asked Taylor if she understood what mitigating and aggravating circumstances were, calling the questions a "modern day version of the discredited voter's `literary test'. . ." He argues that a number of jurisdictions have held it improper to ask veniremembers to define legal terms that would later be explained in jury instructions, let alone to excuse ones who are unable to do so.

¶29. The State points out that while defense counsel did object to Taylor's dismissal at one point during voir dire, counsel did not object when the trial court finally did excuse Taylor. For this reason, the State argues that the failure to make a contemporaneous objection bars Clyde from raising it for the first time on appeal. Cannaday v. State, 455 So. 2d 713, 718-19 (Miss. 1984). The State further argues that Taylor's uncertainty as to whether she could follow the law or whether she could vote to impose the death penalty was sufficient reason for the trial court to excuse her for cause.

¶30. The trial court, as a general rule, may remove a juror when it is of the opinion that the juror can not decide the case competently or impartially, Pierre v. State, 607 So. 2d 43, 49 (Miss. 1992), or "'. . .for any reason personal to such person which would make his service as a juror oppressive, or in fact for any reason which to the Judge seems sufficient.'" Nixon v. State, 533 So. 2d 1078, 1085 (Miss. 1987) (quoting 47 Am. Jur. Jury § 121 (1969)). "This Court has also stated that a defendant does not have a vested right to any particular juror but only the right to be tried by a fair and impartial jury." Johnson v. State, 631 So. 2d 185, 191 (Miss. 1994) (citing Gilliard, 428 So. 2d at 581).

¶31. In the case sub judice the record shows that it is highly probable that Taylor would not have been able to adequately follow the trial court's instructions and would have probably been a disruptive force had she sat on the final jury panel. Taylor even stated that she did not believe she would be able to listen to the evidence and the jury instructions and make a determination of guilt or innocence. Taylor later stated that she did not understand exactly why she was there or what the death penalty is. Her answers to the Judge's and the attorneys' questions were confusing and she stated on several occasions that being there scared her. When all the individual voir dire of Taylor is taken together, the fact that the trial court asked her if she understood what mitigating and aggravating circumstances are is of little consequence. The trial court was clearly justified in excusing Taylor. This issue is therefore without merit.

¶32. Also, as pointed out by the State, although Clyde's attorney objected to Taylor's excusal at one point during voir dire, he did not object when the trial court actually dismissed her. Furthermore, as noted above, Clyde was not entitled to any particular juror, only to a fair and impartial jury. Johnson, 631 So. 2d at 191. Clyde made no objection at trial to the final composition of the jury panel. For these reasons, this issue is also deemed waived for the purposes of this appeal. Ballenger v. State, 667 So. 2d 1242, 1251 (Miss. 1995); Cole v. State, 525 So. 2d 365, 369 (Miss. 1987); Irving v. State, 498 So. 2d 305 (Miss. 1986).


¶33. Clyde takes issue, for the first time on appeal, with the trial court having conducted bench conferences with several prospective jurors during voir dire off the record and out of the hearing of the defendant and counsel. He maintains that the trial court had granted a pre-trial motion that the court reporter transcribe the entire proceedings, and that pursuant to Rule 10(b)(2) of the Mississippi Supreme Court Rules [now known as the Mississippi Rules of Appellate Procedure], which required that the entire trial be transcribed for the benefit of appellate review, it was the duty of the court reporter and the trial Judge to see to it that this was done. To support this contention, Clyde also cites to the following cases: Dobbs v. Zant, 506 U.S. 357 (1993); Gibson v. State, 580 So. 2d 739 (Miss. 1991); Suan v. State, 511 So. 2d 144, 147 (Miss. 1987); Dorrough v. State, 437 So. 2d 35, 37 (Miss. 1983).

¶34. Clyde also argues that he had the right to be present at all trial proceedings including these bench conferences during voir dire. To support his argument of reversible error, he cites to Strickland v. State, 477 So. 2d 1347 (Miss. 1985), in which this Court reversed a drug conviction where the trial court interrogated potential jurors in chambers outside the presence of the defendant or defense counsel.

¶35. The State argues that the instances complained of in the case at bar are factually distinguishable from Strickland in that the trial Judge interrogated the jurors at the bench and not in chambers and that counsel and defendant were present in the courtroom and failed to object. Nor was any objection raised to the empaneling of the jury on these or any other grounds; and therefore, the claim should be deemed waived and cannot be raised for the first time on appeal.

¶36. The record reveals that while qualifying the jury panel the trial Judge questioned potential jurors about statutory exclusions and exemptions. He then questioned the jurors about any hardships they would face by being sequestered for approximately a week. At this point juror Allan Goetzinger raised his hand, and after questioning on the record, the trial court excused him because he had a fifteen-year-old daughter at home with no one to stay with her. The trial Judge then made the following statement to counsel:

THE COURT: Gentlemen, do you wish me to tell you the reasons for these being excused? I'll either do so now or be glad to tell you at a later time.

To which counsel for both Clyde and Jerome replied:

MR. JONES: Be fine, Judge. At a later time.

MR. STUCKEY: A later time.

¶37. Thereafter, the trial court questioned several jurors off the record before excusing them and then informing counsel and the defendants of the reasons why they were excused. At no time during these proceeding did Clyde object to any of these potential jurors being excused or to the manner in which they were questioned. Nor did he ask the Judge that he be allowed to approach the bench during these conferences.

¶38. This same issue was addressed in Chase v. State, 645 So. 2d 829, 845 (Miss. 1994). In that case, the trial court excused two prospective jurors after off-the-record Discussions. Unlike the case at bar, the trial court apparently did not inform the attorneys as to the reasons for their excusal. Chase argued that "this action violated his right to be present during the impaneling of the jury." Id. at 845. The Chase Court rejected the argument, stating:

As has been the case in other assignments of error, there was no objection raised at the time of the alleged error. Chase also failed to object to the jurors prior to the jury being impaneled and indicated to the court that he had no objection to the selection of the jury. Since no objection was made, the issue is not properly preserved for review by this Court.

As noted by the State, another independent basis for rejecting Chase's argument is the failure to preserve an adequate record. In Hansen v. State, 592 So. 2d 114, 127 (Miss. 1991), this Court stated: "It is elementary that a party seeking reversal of the judgment of a trial court must present this court with a record adequate to show that an error of reversible proportions has been committed and that the point has been procedurally preserved." Chase, 645 So. 2d at 845.

¶39. As was the situation in Chase, Clyde offered no objection to the actions of the trial Judge that he now asserts to be reversible error. In fact, defense counsel stated on-the-record that it was alright for the trial court to give the reasons for excusing the prospective jurors at a later time. Furthermore, Clyde made no objection to the final jury panel, nor did he raise this issue in his motion for a new trial. For these reasons, this issue has not been properly preserved for review by this Court.


¶40. Clyde asserts a Batson claim for the first time on appeal. The final jury panel of fourteen included nine white and three black jurors and two white alternates. Clyde argues that the final jury makeup bore little demographic resemblance to the community or to the special venire. He maintains that the State systematically used its peremptory challenges to strike black venire persons in violation of the Fourteenth Amendment to the United States Constitution and Article 3 of the Mississippi Constitution without providing sufficient race-neutral reasons for the strikes as required by Batson v. Kentucky, 476 U.S. 79 (1986). The State used eleven of its thirteen peremptory challenges against black venirepersons. Clyde concedes that no objection was made in the trial court, but argues that the circumstances of the case warrant a remand to the circuit court for a Batson hearing nonetheless.

¶41. In the death penalty case Conner v. State, 632 So. 2d 1239, 1264 (Miss. 1993), the appellant complained that the State intentionally struck blacks and women from the jury. The Court refused to address the issue since Conner did not object in the lower court, stating, "[t]his Court has often held that a party waives any and all claims regarding the composition of his jury if he fails to raise an objection before the jury is sworn." Id. at 1264. See also Mack v. State, 650 So. 2d 1289, 1297 (Miss. 1994); Shaw v. State, 540 So. 2d 26, 27 (Miss. 1989); Thomas v. State, 517 So. 2d 1285, 1287 (Miss. 1987); Pickett v. State, 443 So. 2d 796, 799 (Miss. 1983).

¶42. In the case at bar, Clyde made no objection in the trial court to any of the State's peremptory strikes, he never asked that the State articulate race-neutral reasons for those strikes, nor did he object to the final composition of the jury. For these reasons, this issue is deemed waived for the purposes of this appeal. Furthermore, it should be noted that three blacks did sit on the final jury panel, and during jury selection these three names were put before the State at a time when it still had peremptory challenges remaining which could have been used to strike them from the jury panel.



¶43. The attorneys for both Clyde and Jerome filed motions for severance which were granted by the trial court. At a subsequent pre-trial hearing the trial court was informed that, against the advice of their attorneys, both Clyde and Jerome desired to be tried together. After Clyde and Jerome had been thoroughly questioned on the matter, the trial court rescinded the earlier order of severance allowing the brothers to be tried jointly. The trial Judge indicated at that time that upon conviction the brothers would be given the option of having the sentencing phase heard separately.

¶44. Clyde now argues that the trial court committed reversible error in allowing him to override the advice of his attorney and in rescinding the order of severance. He contends that whether to ask for a severance is a tactical decision over which the defense attorney and not the defendant has the ultimate control. Furthermore, he argues that under Mississippi law, a defendant in a capital case has an absolute right to a separate trial from that of a co-defendant. To support his argument Clyde cites to Rule 4.04 of the Uniform Criminal Rules of Circuit Court Practice, which provides that "[t]he granting or refusing of severances of defendants in cases not involving the death penalty shall be in the discretion of the trial Judge." Clyde states that there is no reported case under Mississippi's modern capital punishment statute involving a multi-defendant trial.

¶45. He argues that in non-capital cases the refusal to grant a severance is reversible error if it prejudices the defendant at trial, citing, Duckworth v. State, 477 So. 2d 935, 937 (Miss. 1985) and Price v. State, 336 So. 2d 1311, 1312 (Miss. 1976). Clyde maintains that such prejudice occurred in the case at bar because only Jerome was identified in a photographic lineup and his presence in the courtroom caused State's witness Kevin Smith to identify him as well. He also argues that he was prejudiced during the sentencing phase when Jerome's attorneys argued that he, Clyde, was more deserving of the death penalty.

¶46. The State suggests that this issue is one of first impression in this State. It is the State's contention that the record shows that Clyde was fully aware of the consequences of being tried with Jerome and still he made that decision. The State maintains that Clyde cannot now complain of a decision or tactic that he personally asserted at trial, and he should be barred from raising this claim on appeal. ¶47. Miss. Code Ann. § 99-15-47 (1994) provides for severance as follows:

"Any of several persons jointly indicted for a felony may be tried separately on making application therefor, in capital cases, before the drawing of any special venire which is summoned to appear on the day the case is set for trial and in other cases, before arraignment." (emphasis added).

Nothing in this statute requires that persons jointly indicted for capital murder where the State intends to seek the death penalty must be tried separately. The statute only provides that co-indictees may be tried separately, at the trial court's discretion, when a motion for severance is timely filed. It is Rule 4.04 of the Uniform Criminal Rules of Circuit Court Practice which takes this discretion away from the trial court in cases involving the death penalty. Rule 4.04 reads:

The granting or refusing of severances of defendants in cases not involving the death penalty shall be in the discretion of the trial Judge.

The court may, on motion of the state or defendant, grant a severanceof offenses whenever:

(1) If before trial it is deemed appropriate to promote a fair determination of the defendant's guilt or innocence of each offense; or

(2) If during trial, upon the consent of the defendant, it is deemed necessary to achieve a fair determination of the defendant's guilt or innocence of each offense.

¶48. This rule does not say that there must be a severance in all cases involving the death penalty, only that if a motion for severance is filed, the trial court has no discretion and instead must grant the requested severance. The Rule does not require the trial court to sua sponte grant a severance where there has been no motion for severance filed, especially when the defendant wishes to be tried together with his co-defendant. Clyde provides no authority to support his contention that the trial court should have refused his knowing, informed, and voluntary request to be tried jointly with his brother Jerome. The only Mississippi case found wherein the trial court severed the trials of jointly indicted defendants against the wishes of one of those defendants involves an instance not where both co-defendants were asking to be tried jointly, but where one of the co-defendants was unavailable to stand trial, so instead of continuing the trial as to both defendants, there was a severance. See Thompson v. State, 231 Miss. 624, 97 So. 2d 227 (1957).

¶49. Clyde goes on to make the argument that whether to obtain a severance was a tactical and strategic decision that his attorneys had the right to make and the trial court should not have allowed him to override his attorneys' decision. The problem with this argument is that the trial court did not "allow" Clyde to override his attorneys' decision; rather, the record suggests that his attorneys acceded to Clyde's decision, albeit against their better judgment. Therefore, no absolute right to severance was impinged upon by the trial court. None of the cases cited by Clyde involve a factual situation such as this. Most of the cases he cites involve ineffective assistance of counsel claims wherein the defendant's attorney made certain strategic decisions against the defendant's wishes, such as which witnesses to call.

¶50. The case cited by Clyde which is most closely related factually to the case at bar is Blanco v. Singletary, 943 F.2d 1477 (11th Cir. 1991), wherein the defendant and defense counsel openly disagreed over whether to call two witnesses, and the trial court allowed the defendant and not his attorney to make that decision. The Eleventh Circuit ruled that "[t]he decision as to which witnesses to call is an aspect of trial tactics that is normally entrusted to counsel" and "the trial court overreached its authority" in allowing the defendant to override his lawyer's decision. Id. at 1495. Again, this case is distinguishable from the case sub judice. Here, Clyde's attorneys, although clearly apprehensive about Clyde and Jerome being tried together, did not openly oppose the decision. Instead, they informed the trial court that Clyde wanted the order of severance rescinded. While Clyde's attorneys did state on-the-record that they had thoroughly discussed the matter with Clyde and had advised him against requesting a joint trial, they did not try to discourage the trial court from rescinding the order of severance per the Smith brothers' request.

¶51. Clyde is correct in his argument that a defendant in a capital case has an absolute right to a separate trial from that of a co-defendant, as per Rule 4.04. However, this right, as any other fundamental and absolute right, can be waived. The Supreme Court has held that "although the defendant 'may conduct his own defense ultimately to his own detriment, his choice must be honored. . ..'" Dunn v. State, 693 So. 2d 1333, 1340 (Miss. 1997) (quoting Godinez v. Moran, 509 U.S. 389, 399-400 (1993)). "This Court in Metcalf [v. State, 629 So. 2d 558 (Miss. 1993),] wrote of its displeasure of defendants who would use their right to refuse counsel in an attempt to play a 'cat and mouse' game with the court, or as some strategy to place the trial Judge in a position where 'in moving along the business of the court, the Judge appears to be arbitrarily depriving the defendant of Counsel.'" Dunn, 693 So. 2d at 1342 (citations ommitted). The case at bar presents the Court once again with a situation where a defendant attempts to manipulate the judicial process. Clyde raises as error his decision to act against the advice of his attorneys by demanding the motion for severance be withdrawn.

¶52. Because Clyde requested a joint trial, he essentially voluntarily made a knowing and informed waiver of his right to a separate trial, and he cannot now complain that his request was granted. This issue is without merit as to the guilt phase.

¶53. This likewise applies to the trial court's decision to allow the sentencing phase to be tried jointly. When it came time for the sentencing phase, the trial court stated that since the exact same aggravating circumstances applied to both Clyde and Jerome, there would be no need for separate sentencing hearings for each brother. Clyde offered no objection to this, and in fact stated he wanted a joint sentencing hearing. Prior to the commencement of the sentencing hearing, the following statements were placed on the record:

MR. STUCKEY: Once again, Your Honor, for and on behalf of Clyde Smith, we have discussed the pros and cons of a joint sentence hearing, and feel that it is in the best interest of Clyde Smith to have separate sentence hearings. We discussed that many times over the last month or so and in particularly the last few days and more in particularly last night because there are some differences between he and his brother that perhaps would work against him at trial if it was a joint sentencing trial, so once again, it is against our better judgment that we conduct a joint sentencing trial. However, as I understand it, Clyde Smith is still of the opinion and desire to have a joint sentencing trial, and I wanted to ask him that on the record so we can make sure that [sic] where we are.

Clyde, do you still desire and demand a joint sentencing trial?


¶54. Since Clyde affirmatively asked for a joint sentencing hearing, and there was no objection made when the trial court ruled that the sentencing hearing would not be severed, this issue is waived for the purposes of this appeal. 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); Moawad v. State, 531 So. 2d 632, 635 (Miss. 1988).

¶55. The non-severance of Clyde's trial from Jerome's did not result in prejudice to Clyde based on the overwhelming evidence in the record before this Court. This issue contains no reversible error.


¶56. Clyde contends that there was insufficient probable cause for the warrantless search of the abandoned red and white automobile which belonged to Clyde and Jerome's sister; and therefore, the keys to the victim's store, the bandanna, and the sawed-off shotgun found pursuant to that warrantless search should not have been admitted into evidence.

¶57. A suppression hearing was held on this issue prior to trial at which the officers involved in the search testified. The State asserts that the totality of the circumstances support the trial court's finding that the officers had sufficient probable cause to search the car without first obtaining a warrant.

¶58. There has long been an automobile exception to the warrant requirement where probable cause exists. See McNeal v. State, 617 So. 2d 999 (Miss. 1993); Barry v. State, 406 So. 2d 45, 47 (Miss. 1981); Hall v. State, 288 So. 2d 850, 851 (Miss. 1974). Furthermore, "'[a]ny information obtained by means of the eye where no trespass has been committed in aid thereof is not illegally obtained.'" Franklin v. State, 587 So. 2d 905, 907 (Miss. 1991) (quoting Patterson v. State, 413 So. 2d 1036, 1038 (Miss. 1982)). In the case sub judice, the trial court found probable cause did in fact exist at the time the officer searched the car the Smith brothers abandoned on the side of the road. This Court must apply the substantial evidence/clearly erroneous standard in determining if there was substantial basis for such a Conclusion on behalf of the trial court. McNeal, 617 So. 2d at 1007; Rooks v. State, 529 So. 2d 546, 554 (Miss. 1988); Hansen v. State, 592 So. 2d 114, 126 (Miss. 1991). See also Illinois v. Gates, 462 U.S. 213, 238-39 (1983).

¶59. In the case sub judice, there is more than substantial evidence to support the trial court's finding of probable cause. The officers had just received information that a car fitting the description of the subject car was believed to have been involved in a robbery and murder, and Office Roseman had also received information that two black males in a red and white car "had picked up a young lady and was trying to mess with her." Officer Roseman, who had earlier stopped the brothers, also stated that they were acting suspiciously. Furthermore, when Officer Goad passed the brothers in his patrol car as they were walking away from the red and white car, Clyde and Jerome ran off the road and across a field. And finally, when Officer Goad shined his flashlight in the car looking to see if the keys were in it, he saw the sawed-off shotgun in plain view on the back floorboard. Taking all of this into consideration, we find there was sufficient evidence to support the trial court's finding that the officers had sufficient probable cause to conduct a warrantless search of the vehicle. This issue is without merit.




¶60. In this issue, Clyde complains of the introduction of "other crimes" evidence by the State, namely, evidence of an assault on Carolyn Pearce with both a gun and a knife; that Clyde had in his possession a knife both before and after the murder; and, that a sawed-off shotgun was found in the red and white automobile "abandoned" by Clyde and Jerome. He also maintains that he was improperly restricted in his cross-examination of Carolyn Pearce.

¶61. The State maintains that all of these claims are either barred or totally without merit.

¶62. Clyde asserts that the trial court committed reversible error in allowing Carolyn Pearce to testify that the Smith brothers assaulted her with both a knife and a pistol. He takes exception to both the testimony of the assault and to the introduction of the knife into evidence. Clyde argues that there was never any allegation that a knife was used by the person or persons who murdered Johnny Smith, but rather all the testimony indicated that he died from multiple gunshot wounds consistent with a .38 caliber weapon. It is his contention that since no pistol was ever recovered, there was no connection made between the gun Carolyn Pearce saw and the murder weapon. Therefore, he argues, the introduction of an assault on Carolyn Pearce by the Smith brothers was error as it meets none of the exceptions to the exclusion of other crimes evidence under Rule 404 (b) of the Mississippi Rule of Evidence.

¶63. At no point during the trial did Clyde object to the introduction of testimony concerning the knife or the revolver, or to the introduction of the knife into evidence. Accordingly, this claim has been waived and may not be raised for the first time on appeal. "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).

¶64. This issue also fails on the merits. Clyde gives no reason why the testimony concerning the knife and revolver or the introduction of the knife itself was error, other than to say no connection was ever made between them and the murder. Apparently, this is a relevancy argument. The testimony concerning both was extremely relevant, the knife to show that Clyde was armed on the night of the murder, but especially that concerning the revolver. According to testimony, the projectiles recovered from Johnny Smith's body and the liquor store were consistent with a .38 caliber revolver. Therefore, the testimony of Henry Bryant and Carolyn Pearce was relevant to show that Jerome, and at one point Clyde, was in possession of a revolver both a few hours before and a few hours after the murder.

¶65. Next in this issue, Clyde argues that the testimony of Carolyn Pearce that the Smith brothers assaulted her was inadmissible other crimes evidence. The only testimony of any assault was when Pearce testified that Jerome hit her on the wrist with a big silver revolver, that Clyde put a knife to her throat, and that after he and Jerome exchanged weapons Clyde pulled the gun on her and made her take her clothes off and get out of the car. *fn6 During this testimony, Carolyn identified the knife recovered by the police in the field near the brothers' abandoned car and the knife was placed into evidence.

¶66. Clyde correctly points out that, as a general rule, evidence of a crime other than the one for which the accused is being tried is not admissible. Ladner v. State, 584 So. 2d 743, 758 (Miss.), cert. denied, 502 U.S. 1015 (1991); Rose v. State, 556 So. 2d 728 (Miss. 1990). There are exceptions. M.R.E. 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

¶67. In accordance with Rule 404(b), this Court has consistently held the admission of evidence of unrelated crimes for the purpose of showing the accused acted in conformity therewith to be reversible error. Parker v. State, 606 So. 2d 1132, 1136 (Miss. 1992) (citing Rose, 556 So. 2d at 731; Houston v. State, 531 So. 2d 598, 605 (Miss. 1988)). That was not the purpose for the introduction of such evidence in the case at bar. As the State argues in its brief, any testimony concerning an assault was allowed to explain how Pearce was able to identify the knife and revolver. The reason for such testimony was to show that Clyde and Jerome were in possession of a knife and a revolver (the possible murder weapon) shortly after the murder. This testimony corroborates that of Henry Bryant that the brothers were in possession of a knife and revolver prior to the murder.

¶68. The testimony was therefore admissible under Rule 404(b) as to opportunity, preparation, plan, knowledge, and identity. It also passes muster under Rule 403 as being more probative than prejudicial. This issue is without merit.


¶69. Clyde contends his constitutional right to confrontation was violated when the trial court refused to allow him to cross-examine Carolyn Pearce with regard to the fact that she was a prostitute and cocaine addict. He argues that as a result of this ruling, neither defendant chose to cross-examine Pearce, therefore, it was not conveyed to the jury that Pearce was not a credible witness.

¶70. Clyde misrepresents the trial court's ruling on this matter. The trial court never told the defense they could not question Pearce concerning these issues. The record reflects what actually transpired:

MR. CROOK: Okay. That's--what about an assault? They forced her to go from one place that she was wanting-- Judge, she's a hooker is what she is.

THE COURT: I understand that.

MR. CROOK: And a [crack] addict, and of course they're going totear her up on that, but that's, you know--

THE COURT: Well, now, if they open the door about her being a hooker, they done opened the damn door for all sorts of things. That's up to them.

MR. STUCKEY: I think we understand that, Judge.

MR. GANDY: We understand.

THE COURT: That's up to them whether they want to do that or not.

¶71. As the record shows, the trial Judge did not limit Clyde's right to cross-examine Pearce, he merely pointed out that it probably would not have been in Clyde's best interest to bring out her profession, as it could possibly open the door to testimony concerning the rape which the trial court took pains to keep out of evidence. For the most part it was the prosecutor asking the trial Judge what was admissible, and at no time did the defense make an objection concerning a confrontation clause violation. This issue is therefore without merit and procedurally barred. Ballenger, 667 So. 2d at 1259; Foster, 639 So. 2d at 1270; Mitchell, 609 So. 2d at 422; Moawad, 531 So. 2d at 635.


¶72. On direct examination, State's witness Deputy Tim Goad testified that a .410 sawed-off shotgun was taken from the car driven by the Smith brothers. The defense objected and the shotgun itself was not introduced into evidence. Clyde argues here that the testimony was error under Rule 404(b) of the Mississippi Rules of Evidence since there was no evidence that the shotgun had any connection with the crime for which the defendants were on trial and the possession of the shotgun itself was a crime.

¶73. During direct examination Deputy Tim Goad testified as follows:

A. I approached the vehicle and shined my flashlight on the inside of the car seeing if the keys were in it, anything like that. The keys were not in the car in the ignition. I shined in the black [sic] floorboard and saw a sawed-off .410, single-shot shotgun laying [sic] in the back floorboard on the driver's side.

Q. All right. And did you take that shotgun into custody?

A. Yes, sir, I did.

At this point, Clyde objected on the grounds of relevancy as to any testimony concerning the shotgun or to its introduction into evidence. After a bench conference out of the presence of the jury, the trial court sustained the objection. The only other mention of the shotgun was a casual reference later during Deputy Goad's direct testimony, where he stated, "These are the keys I found stuck down in the seat on the red and white Ford same time I recovered the shotgun." Clyde made no objection to this statement.

¶74. It should first be pointed out that the trial court sustained Clyde's objection as to the testimony and introduction of the sawed-off shotgun. Foster v. State, 639 So. 2d at 1282, is instructive on this issue. In that case an accessory to the murder for which Foster was being tried commented while testifying that he and Foster had stolen a pizza in the past, a clear reference to another bad act or crime. On appeal, Foster argued that the comments were prejudicial and constituted reversible error. This Court rejected the argument stating:

"Foster neither requested that the trial court admonish the jury to disregard the testimony, nor requested a mistrial. His only objection was sustained. We are of the opinion that any error created by Harris' unresponsive remark was effectively cured when the trial Judge sustained Foster's objection." Foster, 639 So.2d at 1282.

See also Walker v. State, 671 So.2d 581 (Miss. 1995). A similar scenario exists here. Deputy Goad made an improper comment, and Clyde's objection was sustained, but he "neither requested that the trial court admonish the jury to disregard the testimony, nor requested a mistrial." Foster, 639 So.2d at 1282. We find this issue to be without merit.

¶75. Furthermore, on appeal Clyde argues that Deputy Goad's testimony is reversible as inadmissible other crimes evidence since it is illegal to possess a sawed-off shotgun. At trial Clyde only objected to the testimony on the ground of relevancy. "'The assertion on appeal of grounds for an objection which was not the assertion at trial is not an issue properly preserved on appeal.'" Ballenger, 667 So. 2d at 1256 (quoting Haddox v. State, 636 So. 2d 1229,1240 (Miss. 1994)); See also Baine v. State, 606 So. 2d 1076 (Miss. 1992); M.R.E. 103. Therefore, this issue is both procedurally barred and without merit.


¶76. During its case-in-chief the State attempted to call Jerry Smith, a Leflore County deputy and the victim's brother, as a witness. The defense objected because it had not been previously notified that he might be a witness or of the nature of his testimony. A bench conference was held out of the presence of the jury and the trial court allowed the State to make a record as to what Deputy Smith's testimony would be if allowed to testify. The trial court concluded that it would be error to allow Deputy Smith to testify since his name had not been provided to the defense during discovery as a possible witness for the State.

¶77. Pursuant to the decision of the trial Judge, Deputy Smith did not testify during the State's case-in-chief. However, the trial court allowed the State to call Deputy Smith as a rebuttal witness after Clyde put on several witnesses in an attempt to establish an alibi defense. On rebuttal, Deputy Smith testified that as he was patrolling Sidon on the night of the murder, he saw a red and white car with a rusted spot near the exhaust pipe and a transmission leak parked near the scene of the crime shortly before the shooting. Deputy Smith stated that he later identified the car he saw that night as being the same one Clyde and Jerome abandoned on the side of the road and which was later impounded. At trial he also identified a picture of the car driven by the Smith brothers that night as the same one he saw near the scene of the murder.

¶78. On appeal Clyde argues that the testimony of Deputy Smith was not proper rebuttal evidence of the alibi defense, but rather just an attempt to get around the discovery violation of Rule 4.06 of the Uniform Criminal Rules of Circuit Court Practice. *fn7

¶79. The State argues that Deputy Smith's testimony was proper rebuttal evidence, and that pursuant to Rule 4.07 of the Uniform Criminal Rules of Circuit Court Practice *fn8 the State is not required to give notice of its rebuttal witnesses unless it demands in writing the names of the defense's alibi witnesses. The State maintains that since it made no such request for the names of Clyde's alibi witnesses it had no duty to give notice of its rebuttal witnesses.

¶80. The law is clear that the State has no duty to provide the defense with the names of possible rebuttal witnesses unless the State has requested notice of alibi defense. Deal v. State, 589 So. 2d 1257, 1259 (Miss. 1991). See also Unif.Crim.R.Cir.Ct.Prac. 4.07. Such was the case here. The fact that the State first tried to put Deputy Smith on the stand during its case-in-chief has no bearing on this rule since the trial court properly refused to allow his testimony at that time.

¶81. It is a different question entirely whether Deputy Smith's testimony was proper rebuttal. Clyde suggests that it was not. We disagree. Clyde and Jerome presented a two-pronged alibi defense. First, they offered witnesses who placed the brothers in Belzoni at the approximate time the shooting occurred in Sidon. Second, they had another witness who placed them in Isola approximately an hour after the murder, the theory being they would not have had time to commit the murder in Sidon and still be able get to Isola by the time they were seen there.

¶82. The testimony of Deputy Smith was appropriate rebuttal evidence to this testimony. It was uncontroverted that Clyde and Jerome were driving their sister's red and white Ford car on the night of the murder. Deputy Smith, in contradiction of the alibi testimony, stated that he saw a red and white car parked near the Sidon Liquor Store minutes before the robbery and murder. Deputy Smith identified photographs of the car the Smith brothers were driving on the night of the murder as the same car he had seen parked near the scene. He also testified that he identified the car in person after it had been impounded by the authorities.

¶83. "The determination of whether evidence is properly admitted as rebuttal evidence is within the trial court's discretion." Powell v. State, 662 So. 2d 1095, 1099 (Miss. 1995) (citing Wakefield v. Puckett, 584 So. 2d 1266, 1268 (Miss. 1991)). The trial Judge did not abuse this discretion in allowing Deputy Smith to testify in rebuttal after refusing to allow him to testify during the State's case-in-chief.


¶84. Here, Clyde takes issue with several portions of the trial court's guilt phase instruction C-CR-3. Instruction C-CR-3 reads in pertinent part as follows:

The Court instructs the Jury that each person present at the time and consenting to and encouraging the commission of a crime, and knowingly, wilfully 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 principal as if he had, with his own hand, committed the whole offense.

If you believe from the evidence beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence, that on the day testified about, the Defendant, Clyde Wendell Smith, either individually or acting in concert with one other or others, did unlawfully, wilfully and feloniously kill and murder Johnny B. Smith, a human being, at a time when Clyde Wendell Smith was engaged in the commission of the crime of Armed Robbery by unlawfully, wilfully and feloniously putting Johnny B. Smith in fear of immediate injury to his person by the exhibition of a firearm, a deadly weapon, and by taking money belonging to Johnny B. Smith from his person or from his presence and against his will, then it is your sworn duty to find Clyde Wendell Smith guilty of Capital Murder.


¶85. First, Clyde contends that the jury was improperly instructed on the elements of robbery. He maintains the instruction failed to inform the jury that armed robbery may be established by proof that the defendant took property by violence to the victim's person, and instead only mentioned the "putting in fear" element of robbery. He claims that although the instruction noted the "putting in fear" element of robbery, it neglected to explain "that the state, in order to prove the elements of robbery, must show that `[i]f putting in fear is relied upon, it must be the fear under duress of which the owner parts with possession.'" Jones v. State, 567 So. 2d 1189, 1192 (Miss. 1990) (quoting Crocker v. State, 272 So. 2d 664, 665 (Miss. 1973)).

ΒΆ86. It is Clyde's contention that the evidence clearly showed that the victim died within seconds of being shot, and that only after the shooting did the assailant or assailants remove the cash register and spare cash drawer from the store. He argues that since the evidence showed that victim was already dead before anything was taken from the store ...

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