The opinion of the court was delivered by: Prather, Chief Justice,
DATE OF JUDGMENT: 08/15/96
TRIAL JUDGE: HON. MICHAEL RAY EUBANKS COURT FROM WHICH APPEALED: LAMAR COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - DEATH PENALTY - DIRECT APPEAL
DISPOSITION: REVERSED AND REMANDED - 1/14/1999
¶1. This case arises from the October 30, 1993, murders of Bennie Brown, Sr., and Natasha Cole. It is alleged that Danny Porter (a.k.a. Danny Soul) and his roommate, Carlos Stewart, were hired by Herman Saunders (a.k.a. Robert "Tricky Mickey" Marsh) to kill Brown. It is further alleged, that, immediately after Brown's murder, Stewart returned to the scene alone and killed Cole, because she had recognized him. Porter was acquitted of Cole's murder, and this appeal involves only Count II of the indictment, the capital murder of Brown.
¶2. This Court finds that Porter's Sixth Amendment right to counsel was violated by a police-initiated interrogation, which resulted in Porter's confession, and which occurred two days after Porter asserted his right to counsel at an initial appearance. For this reason, the confession, made without the benefit of counsel, should have been suppressed. Therefore, this case is reversed and remanded to the trial court for proceedings consistent with this opinion.
¶3. In addition, two other issues are addressed to provide guidance on remand: (1) the granting of a sentencing instruction on the statutory aggravator "that the defendant knowingly created a great risk to many persons", and, (2) the communications from the Attorney General's Office made during the sentencing phase of the trial.
¶4. This Court's consideration of the instruction on the aggravating circumstance of knowingly creating a risk to many persons is procedurally barred, because no contemporaneous objection was raised. Nonetheless, should similar evidence be introduced on remand, the instruction should not be given. That is, the evidence presented was insufficient to support such an instruction.
¶5. Furthermore, the input of the Attorney General's Office during the sentencing phase of this trial warrants a Discussion on the propriety of such communications. The exact circumstances of the communication from the Attorney General's Office are unclear from the record. This Court recognizes that the Attorney General's Office is an important resource for prosecutors throughout this State. However, if any party is allowed to make arguments before a trial Judge on behalf of the prosecution, the arguments must be made in the presence and hearing of defense counsel. Moreover, defense counsel must be given an opportunity to respond. The proscription against ex parte communications is a fundamental tenet of our judicial system. Ex parte communications from the Attorney General's Office, or any other source, are unacceptable, and are to be avoided.
¶6. Thus, this case is reversed and remanded for proceedings consistent with this opinion. The other issues raised by Porter are procedurally barred, without merit, and/or moot, and will not be addressed.
II. STATEMENT OF THE CASE
¶7. On February 25, 1994, Danny Porter was indicted as an habitual offender for Count I, conspiracy to commit capital murder. However, this charge was later dismissed. Porter was also indicted as an habitual offender for Count II, the capital murder of Bennie Brown, Sr., and, Count III, the capital murder of Natasha D. Cole, under Miss. Code Ann. § 97-3-19 (2) (d), which defines murder for hire as capital murder.
¶8. On August 14, 1996, the jury convicted Porter of the capital murder of Bennie Brown, Sr., and acquitted Porter of the capital murder of Natasha Cole. The sentencing phase of the trial began, and, on August 15, 1996, the jury rendered its verdict -- that Porter should suffer death for the capital murder of Brown.
¶9. On November 19, 1996, the trial Judge denied Porter's motion for judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. Porter appeals, in forma pauperis, and raises the following issues for consideration by this Court:
A. Whether the trial court erred in overruling the appellant's motion to quash and allowing the State to make a substantive amendment to the indictment?
B. Whether the trial court erred in overruling the appellant's motion to suppress the statement taken by Lieutenant Sammy Pickens?
C. Whether the trial court erred in overruling the appellant's motion for appointment of an independent psychologist?
D. Whether the trial court erred in overruling the appellant's motion to quash the jury panel after the court allowed open Discussion between the State's attorney and potential jurors concerning their feelings on the death penalty?
E. Whether the trial court erred in admitting the videotape from the security camera installed in Junior Food mart, Exhibit #14?
F. Whether the prosecutor engaged in misconduct during closing arguments?
G. Whether the trial court erred in admitting the criminal record of Herman Saunders into evidence?
H. Whether the trial court erred in allowing Dr. Chris Lott's rebuttal testimony?
I. Whether the trial court committed reversible error by incorrectly explaining to the appellant his right of elocution?
J. Whether the trial court erred in submitting to the jury the aggravating circumstance instruction that the appellant knowingly created a great risk to many persons?
K. Whether the trial court erred in refusing appellant's proposed Instruction D-3?
L. Whether the trial court erred in refusing appellant's ...