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Edwards v. State

February 18, 1999

FRONTRAIL EDWARDS A/K/A FRONTRELL EDWARDS
v.
STATE OF MISSISSIPPI



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

DATE OF JUDGMENT: 02/27/97

TRIAL JUDGE: HON. ROBERT WALTER BAILEY

COURT FROM WHICH APPEALED: CLARKE COUNTY CIRCUIT COURT

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

DISPOSITION: REVERSED AND REMANDED - 02/18/99

STATEMENT OF THE CASE

¶1. The case sub judice is an appeal prosecuted from the Circuit Court of Lauderdale County, Mississippi, after a change of venue from Clarke County, Mississippi. Frontrail Edwards (hereinafter "Edwards") was indicted during the February 1996 term of the Circuit Court of Clarke County in a three count indictment: two counts for capital murder and one count for armed robbery. Count I of the indictment charged that on October 5, 1995, Edwards and Kelvin Jordan shot and killed Codera D. Bradley while engaged in the commission of an armed robbery, in violation of Miss. Code Ann. § 97-3-19(2)(e). Count II charged that on October 5, 1995, Edwards and Jordan shot and killed Tony Roberts while engaged in the commission of an armed robbery, in violation of Miss. Code Ann. § 97-3-19(2)(e). Count III of the indictment, the armed robbery count, charged that Edwards and Jordan took a 1992 Nissan belonging to Tony Roberts in violation of Miss. Code Ann. § 97-3-79. A jury was impaneled on February 24, 1997, and Edwards was put to trial on the indictment on February 25, 1997. Edwards was found guilty on all three counts on February 26, 1997.

¶2. Thereafter, the jury heard evidence and arguments in aggravation and mitigation of the sentence to be imposed. The jury returned a sentence of death for both capital murder counts on February 27, 1997. The jury's verdict reads as follows:

As to Count I We, the Jury, unanimously find from the evidence, beyond a reasonable doubt, that the following facts existed at the time of the commission of the Capital Murder under Count I;

That the Defendant intended that the killing of Cordera Bradley take place or; That the Defendant contemplated that lethal force would be employed.

Next, we, the Jury, unanimously find that the aggravating circumstances of:

The capital offense was committed while the Defendant was engaged in the crime of Robbery or was an accomplice to Robbery; The capital offense was committed for the purpose of avoiding arrest; The capital offense was especially heinous, atrocious or cruel.

Are sufficient to impose the death penalty and that there are insufficient mitigating circumstances to outweigh the aggravating circumstances and we unanimously find the defendant should suffer death under Count I.

/s/ Billy R. Goodman Foreman of the Jury

As to Count II

We, the Jury, unanimously find from the evidence, beyond a reasonable doubt that the following facts existed at the time of the commission of the Capital Murder under Count II;

That the Defendant intended that the killing of Tony Roberts take place or; That the Defendant contemplated that lethal force would be employed.

Next, we, the Jury, unanimously find that the aggravating circumstances of:

The capital offense was committed while the Defendant was engaged in the crime of Robbery or was an accomplice to Robbery; The capital offense was committed for the purpose of avoiding arrest; The capital offense was especially heinous, atrocious or cruel.

Are sufficient to impose the death penalty and that there are insufficient mitigating circumstances to outweigh the aggravating circumstances and we unanimously find the Defendant should suffer death under Count II.

/s/ Billy R. Goodman Foreman of the Jury

¶3. Edwards was sentenced to death by lethal injection and April 11, 1997, was set as the date for execution of the sentence. A Motion for Judgment Notwithstanding the Verdict and a Motion for New Trial were both filed on March 7, 1997. Both motions were overruled on April 30, 1997. The execution of the death sentence has been stayed pending appeal. Edwards awaits the outcome of this appeal in the Maximum Security Unit of the State Penitentiary at Parchman, Mississippi. Edwards has raised twenty-one (21)assignments of error for review by this Court. Issues I, III-B, V-A, VI-C, and XXI require reversal as to both guilt and sentence. Unfortunately, these errors are egregious in that they specifically contravene either statutory or established case law. Even though the record reflects overwhelming evidence of the defendant's guilt, the errors are such that this Court has no choice in its decision. Accordingly, this case is reversed and remanded as to both guilt and sentence.

¶4. Edwards raised the following issues for review by this Court:

I. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY OVERRULING THE DEFENSE COUNSEL'S OBJECTIONS TO THE ADMISSION BY THE PROSECUTION AT THE CAPITAL SENTENCING PHASE OF EVIDENCE THAT EDWARDS PREVIOUSLY WAS ARRESTED AND INCARCERATED FOR, BUT NOT CONVICTED OF, RAPE?

II. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY OVERRULING DEFENSE COUNSEL'S OBJECTIONS TO THE PROSECUTION'S ARGUMENTS THAT A LIFE SENTENCE WOULD BE AN "INJUSTICE" TO THE VICTIMS AND THEIR FAMILIES AND FRIENDS; AND BY PERMITTING THE INTRODUCTION OF OTHER "VICTIM IMPACT" ARGUMENTS AND EVIDENCE?

III. WHETHER THE TRIAL COURT'S JURY INSTRUCTIONS AT BOTH PHASES OF THE TRIAL WERE ERRONEOUS BECAUSE THEY DID NOT CONFORM TO THE INDICTMENTS OR TO THE RELEVANT STATUTORY PROVISIONS ENACTED BY THE LEGISLATURE?

IV. WHETHER THE TRIAL COURT ERRED IN DENYING EDWARDS' MOTION TO SUPPRESS?

V. WHETHER THE TRIAL COURT COMMITTED NUMEROUS REVERSIBLE ERRORS IN ITS EVIDENTIARY RULINGS AT THE SENTENCING PHASE OF THE TRIAL?

A. THE TRIAL COURT ERRED IN EXCLUDING TESTIMONY CONCERNING EDWARDS' TWO BROTHERS AND THEIR LIVES.

B. THE TRIAL COURT ERRED IN ADMITTING JEANNEANE HARRISON'S TESTIMONY CONCERNING THE DEFINITION AND SYMPTOMS OF OPPOSITIONAL DEFIANT DISORDER.

VI. WHETHER THE PROSECUTOR IN THIS CASE ENGAGED IN MISCONDUCT THAT REQUIRES REVERSAL?

A. STATE'S DESCRIPTION OF EDWARDS AS "EVIL" DURING OPENING STATEMENT WAS ERROR.

B. THE STATE IMPROPERLY BOLSTERED ITS CASE BY INTRODUCING EVIDENCE OUTSIDE OF THE RECORD.

C. STATE'S VERBAL ATTACK ON DEFENSE COUNSEL DURING CLOSING ARGUMENTS WAS ERROR.

D. THE STATE MISSTATED THE LAW.

VII. WHETHER THE TRIAL COURT COMMITTED NUMEROUS REVERSIBLE ERRORS IN ITS EVIDENTIARY RULINGS AT THE GUILT-INNOCENCE PHASE OF THE TRIAL?

A. INVESTIGATOR KUFEL'S TESTIMONY CONCERNING WHETHER HE BELIEVED EDWARDS' CONFESSION WAS TRUTHFUL WAS ERROR.

B. TRIAL COURT ERRED IN ALLOWING CHARLIE McCREE TO TESTIFY THAT HIS TESTIMONY AT JORDAN'S TRIAL WAS CONSISTENT WITH HIS TESTIMONY AT EDWARDS' TRIAL.

C. THE TRIAL COURT ERRED IN EXCLUDING THE TESTIMONY OF SHERIFF CROSS REGARDING WHETHER JORDAN WAS GOING TO PLEAD GUILTY TO ARSON AT ONE TIME.

D. THE TRIAL COURT ERRED IN EXCLUDING THE TESTIMONY OF MARK HOLLOWAY AND DETECTIVE KUFEL.

E. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ALLOWING DETECTIVE KUFEL TO TESTIFY THAT JORDAN TOLD THE POLICE THAT EDWARDS SHOT THE VICTIMS.

F. THE TRIAL COURT ERRED IN PERMITTING THE STATE TO QUESTION SHERIFF CROSS IN REBUTTAL ABOUT HOLLOWAY'S STATEMENT TO THE POLICE.

G. THE TRIAL COURT ERRED IN ADMITTING PHOTOGRAPHS OF THE VICTIMS BEFORE THEIR DEATHS.

H. THE TRIAL COURT ERRED IN ADMITTING PHOTOGRAPHS INTO EVIDENCE WHICH SERVED ONLY TO PREJUDICE AND INFLAME THE JURY.

I. THE TRIAL COURT ERRED IN ADMITTING PHOTOGRAPHS INTO EVIDENCE WHICH SERVED ONLY TO PREJUDICE AND INFLAME THE JURY.

VIII.WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ERRONEOUSLY INSTRUCTING THE JURY DURING THE PROCEEDINGS?

A. ARMED ROBBERY INSTRUCTION

B. CAPITAL MURDER INSTRUCTION

C. SENTENCING INSTRUCTIONS

IX. WHETHER THE TRIAL COURT ERRED IN PERMITTING DEFENSE COUNSEL TO WAIVE EDWARDS' RIGHT TO BE PRESENT AT THE SUPPRESSION HEARING?

X. WHETHER MISSISSIPPI'S CAPITAL PUNISHMENT SCHEME IS UNCONSTITUTIONAL AS APPLIED TO THIS CASE AND ON ITS FACE?

XI. WHETHER EDWARDS WAS DENIED A FAIR TRIAL BEFORE AN IMPARTIAL JURY; AND WHETHER THE TRIAL COURT ERRED IN DENYING EDWARDS' REQUEST FOR INDIVIDUAL, SEQUESTERED VOIR DIRE?

XII. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ALLOWING THE PROSECUTION TO OBTAIN PLEDGES FROM THE PROSPECTIVE JURORS TO CONVICT EDWARDS AND SENTENCE HIM TO DEATH AND BY PRECLUDING THE DEFENSE FROM ASKING PERMISSIBLE QUESTIONS DURING VOIR DIRE?

XIII.WHETHER THE TRIAL COURT ERRED IN FAILING TO GRANT EDWARDS' CHALLENGES FOR CAUSE?

XIV. WHETHER THE TRIAL COURT ERRED IN REFUSING EDWARDS' PROPOSED LESSER-INCLUDED OFFENSE INSTRUCTION ON THE CODERA BRADLEY MURDER?

XV. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE STATE TO REFER TO, AND PRESENT EVIDENCE OF, ALLEGED ADMISSIONS BY EDWARDS PRIOR TO PROVING CORPUS DELICTI?

XVI. WHETHER THE TRIAL COURT ERRED IN GIVING PROSECUTION'S SENTENCING INSTRUCTIONS CS-1, CS-2, CS-3, AND CS-4?

A. SENTENCING INSTRUCTIONS CS-2 AND CS-3.

B. SENTENCING INSTRUCTION CS-1

C. SENTENCING INSTRUCTION CS-4

XVII.WHETHER THE TRIAL COURT ERRED IN REFUSING EDWARDS' PROPOSED SENTENCING INSTRUCTIONS?

A. INSTRUCTION D-S7

B. INSTRUCTION D-S1

C. INSTRUCTION D-S10

D. INSTRUCTION D-S3

E. INSTRUCTION D-S4

F. INSTRUCTION D-S2

XVIII.WHETHER THE TRIAL COURT ERRED IN FINDING THAT THE PROSECUTION STATED RACE-NEUTRAL REASONS FOR USING PEREMPTORY CHALLENGES ON HALF OF THE AFRICAN-AMERICANS IN THE JURY VENIRE?

XIX. WHETHER THE TRIAL COURT ERRED IN DISMISSING PROSPECTIVE JURORS ON THE GROUNDS THAT THEY WERE ILLITERATE?

XX. WHETHER THIS COURT MUST REMAND FOR A NEW CAPITAL SENTENCING PROCEEDING BECAUSE THERE IS AT LEAST ONE INVALID AGGRAVATING CIRCUMSTANCE IN THE CASE SUB JUDICE; MOREOVER, WHETHER CAPITAL PUNISHMENT IS A DISPROPORTIONATE PENALTY UNDER THE FACTS OF THIS CASE?

XXI. WHETHER THE ERRORS TAKEN TOGETHER ARE CAUSE FOR REVERSAL?

STATEMENT OF THE FACTS

¶5. On the evening of Thursday, October 5, 1993, Tony Roberts went to visit his two year old son, Codera Bradley, in Pachuta, Mississippi. Tony dropped by between 5:00 and 5:30 p.m. He stayed until around 8:30-8:45 p.m. Codera began crying to be with his father. Codera's mother called to the house and said that the baby could go with Tony. Her family paged Tony and he came back to pick up the baby. He left the house for the second time around 9:00 p.m. with Codera.

¶6. On the same evening, Edwards and his friend, Jordan, walked to a truck stop in Pachuta. According to Edwards, Jordan asked if he wanted to "jack" someone. Tony and his son, Codera, drove up in his green Nissan to get some gas. When Tony went to pay for the gas, Edwards asked him for a ride. Tony agreed to give the two men a ride and pulled his son into his lap. Jordan had an old .25 caliber pistol. Jordan gave Edwards the .22 pistol at the truck stop. Edwards got in the back of the car and Jordan got into the front passenger seat. They drove down Highway 11 to Barnett and asked Tony to pull over. When Jordan opened his door, Edwards shot Tony behind the right ear in the head. Tony asked what was happening and Jordan ordered him out of the car. Tony told Edwards and Jordan that they could have the car. (Edwards later told investigators Jordan shot at Tony on the highway, and that he also shot at Tony again). They saw a car coming and Jordan helped Edwards get Tony up and put him into the trunk of the car. Jordan then drove to a side road and removed Tony from the trunk of the vehicle. Jordan found a .380 handgun between the seats in the car which he used to shoot Tony again. They then drug Tony into some high weeds. Edwards then took the little boy to where they had taken Tony. According to Edwards, Codera got down over his father and Jordan shot him in the head.

¶7. Edwards and Jordan then returned to Edwards' trailer and got the radio, phone, amps and speakers out of the car, along with a plastic bucket of car care products. They retrieved some gas from the home of Edwards' mother and took the car to a sand pit and burned it. They returned home, looked over the stuff and went to sleep. They later sold the equipment to someone from Arkansas.

¶8. Mark Holloway testified that sometime on Saturday, he and Tracey Nicholson went to Edwards' trailer in search of Holloway's pager. In the far back bedroom of the trailer, they saw pieces of electronic equipment (a car stereo, speakers, etc.). In fact, Holloway stated that Edwards tried to sell him some of the sound equipment and told Holloway about the events that had occurred.

¶9. At Edwards' trial, Sheriff Cross of Jasper County testified that on Thursday, October 5, law enforcement officials in Jasper County, Mississippi, received missing persons reports on Tony and his infant son, Codera. On Sunday, October 8, the Jasper County Sheriff's Department received a call about a burned vehicle in a dirt pit located in the Rose Hill area. The tag from the car indicated it belonged to Tony. Upon inspection, Sheriff Cross noticed that the radio speakers had been removed from the car. A second phone call was made to Deputy Reynolds' wife with information that there were some items, such as a stereo, speakers, car phone and pagers, at Edwards' house. Based on this phone call a warrant was obtained to search Edwards' trailer. It was later discovered that this call came from Holloway.

¶10. Sheriff Cross further testified that on Monday, October 9, during the search of the area outside of the trailer, one of the officers found a tan pail containing car products, .380 cartridges, a .25 pistol and a shimmy cloth. The bucket and accompanying products were identified as products similar to those which Tony had kept in his vehicle. These items were seized and Edwards was arrested on October 10, 1995. Edwards subsequently confessed his involvement in the murders to Sheriff Cross.

¶11. After the statements had been obtained from Edwards and Jordan, Jordan took law enforcement officers to the site in Clarke County where the bodies of Tony and Codera were located. The bodies were found lying next to each other. The front pockets of Tony's pants were turned inside out. Dr. Hayne testified at Edwards' trial that Codera was shot once in the back of the head with the bullet exiting above the upper lip. Dr. Hayne further stated Tony suffered two gunshot wounds: one wound entered below the right eye and exited through the left eye; the other entered the left temple above the left ear and exited from the right ear. The latter wound was lethal.

¶12. Sheriff Cross testified that officers recovered a .38 pistol from the pond. This weapon was believed to be thrown into the pond by Jordan. In addition, they recovered the .22 pistol from Edwards' mother. Steve Boyd, a forensic scientist specializing in firearms evidence examination, and Melissa Schoene, a forensic scientist, both testified at Edwards' trial. They both stated that a projectile was found in the ground under a pool of blood where Edwards stated Tony was pulled from the trunk in the lumberyard where he was later found. This projectile was fired from the .380 pistol. Two cartridge casings which were also found at the scene bore class characteristics of the .380. Two fragments of a bullet were also found at the scene which were determined to be the most common ammunition for a .22 caliber pistol.

DISCUSSION OF THE ISSUES

I. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY OVERRULING THE DEFENSE COUNSEL'S OBJECTIONS TO THE ADMISSION BY THE PROSECUTION AT THE CAPITAL SENTENCING PHASE OF EVIDENCE THAT EDWARDS PREVIOUSLY WAS ARRESTED AND INCARCERATED FOR, BUT NOT CONVICTED OF, RAPE?

¶13. Edwards' first assignment of error claims the trial Judge erred in allowing the prosecution, on cross-examination in the sentencing phase, to refer to Edwards' previous arrest for rape, even though there was no conviction. He asserts that this violates Mississippi Rules of Evidence and Miss. Code Ann. § 99-19-101 (5), as evidence of bad acts is not one of the eight enumerated aggravating factors admissible in a capital sentencing trial.

¶14. During direct examination Edwards' mother testified she had a lot of problems with Edwards as he was growing up. She stated that to discipline Edwards she tied him up, whipped him with switches and extension cords. She also stated that Edwards was in jail in Bay Springs and then later transferred to East Mississippi. Edwards' mother testified that he was evaluated in East Mississippi State Hospital. Through this witness, defense counsel elicited testimony to infer that Edwards' upbringing was the reason he was sitting in front of the jury being tried for capital murder.

¶15. On cross-examination, the State sought to discredit this testimony. Edwards' mother was asked whether she was aware that her son had been arrested for rape and incarcerated for a short time as result of the arrest. The prosecutor did state that the charges were dropped and that Edwards was not convicted. Edwards' mother testified she did not know how much time he had spent in jail or other detention facility. ¶16. The prosecution has no right to introduce evidence of wrongs and bad acts to prove Edwards' character or to show he acted in conformity therewith, unless it is competent rebuttal evidence in the face of the showing of Edwards's good character made on direct examination of this witness. Hansen v. State, 592 So. 2d 114,148 (Miss. 1991) (citing Simpson v. State, 497 So. 2d 424, 428-29 (Miss. 1984); Winters v. State, 449 So. 2d 766, 771 (Miss. 1986)). M.R.E. 404(b) provides that:

"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."

¶17. The State questioned Edwards' mother about a prior bad act, an arrest for rape, for which Edwards was not convicted. On direct examination, Edwards' mother did not testify that Edwards' character was good, that he had never raped anyone, that he had never been incarcerated, or that the prospect of a prolonged period of incarceration would change him for the better. Consequently, her direct examination testimony in no way opened the door to the State to ask this improper and prejudicial question. Nicholson v. State, 704 So. 2d 81, 87 (Miss. 1997). The State should not have questioned Edwards' mother on rebuttal as to specific acts, as there was no testimony of good character in direct.

¶18. The questioning about Edwards' arrest for rape clearly violated the rule that testimony in a criminal trial should be confined to the charge for which the accused is on trial. Tucker v. State, 403 So.2d 1274, 1275 (Miss.1981). This evidence was incompetent and inflammatory in character and thus, carries with it a presumption of prejudice. Edwards was tried and sentenced by the jury under Miss. Code Ann. § 99-19-101 (Supp.1984). This statute is distinctive, for in a capital murder case the jury is not only the fact finder of guilt or innocence, but it also has the power to return a sentence of death upon a verdict of guilty. Parker v. State, 367 So.2d 456, 458 (Miss.1979). In light of the fact that the imposition of death for capital murder is within the sole province of the jury, it cannot be said that the introduction of this inflammatory testimony regarding a prior arrest for rape had no harmful effect. Irving v. State, 618 So. 2d 58, 59 (Miss. 1992); Clemons v. State, 593 So. 2d 1004, 1006 (Miss. 1992). As a result, Edwards was not afforded the fundamental right to a fair trial in this case. Therefore, the admission of evidence of an arrest for rape over the objection of Edwards constituted reversible error.

¶19. Edwards also argues that the admission of this prior arrest was prohibited, since it was not relevant to any of the statutory aggravating factors. Aggravating circumstances are to be limited to the eight factors enumerated in Miss.Code Ann. § 99-19-101(5) (Supp.1991). Lester v. State, 692 So. 2d 755, 800 (Miss. 1997). "[T]he state is limited to offering evidence that is relevant to one of the aggravating circumstances included in § 99-19-101." Stringer v. State, 500 So.2d 928, 941 (Miss.1986); See Coleman v. State, 378 So. 2d 640, 648 (Miss.1979). The statutory mandate of § 99-19-101(5) can be no clearer. The eight statutory factors do not include arrests or incarcerations; instead only felony convictions involving the use or threat of violence are admissible. Miss. Code Ann. § 99-19-101(5)(b) (Supp. 1998). Therefore, as a matter of law, the trial court erred when it allowed the prosecutor to repeatedly explore the appellant's prior arrest for rape. Under current law, no other finding is possible, and this issue requires reversal and remand for a new trial on sentencing.

II. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY OVERRULING DEFENSE COUNSEL'S OBJECTIONS TO THE PROSECUTION'S ARGUMENTS THAT A LIFE SENTENCE WOULD BE AN "INJUSTICE" TO THE VICTIMS AND THEIR FAMILIES AND FRIENDS; AND BY PERMITTING THE INTRODUCTION OF OTHER "VICTIM IMPACT" ARGUMENTS AND EVIDENCE?

¶20. Edwards' second assignment of error alleges that the trial court improperly allowed victim impact testimony in violation of the Eighth and Fourteenth Amendments, the Mississippi Constitution and Miss. Code Ann. § 99-19-101. During the sentencing phase of the trial, the State noted in its closing that inJustice would be hard to bear by the family and friends of the victim. The State also asked the rhetorical question of whether it was Justice if Edwards was able to sit in jail reading, sleeping and watching television.

¶21. "Victim impact statements are those which describe the victim's personal characteristics, the emotional effect of the crimes on the victim's family, and the family's opinions of the crimes and the defendant." Wells v. State, 698 So. 2d 497, 512 (Miss.1997). In Payne v. Tennessee, 501 U.S. 808 (1991), the United States Supreme Court held that the Eighth Amendment does not bar victim impact evidence and prosecutorial argument during the penalty phase of a capital trial. Conner v. State, 632 So. 2d 1239, 1276-77 (Miss.1993); Jenkins v. State, 607 So. 2d 1171, 1183 (Miss.1992); Hansen, 592 So. 2d at 146-47. This Court, however, has been hesitant to embrace the full constitutional holding afforded by Payne. In Hansen, which was decided shortly after Payne, we stated that "Payne, of course, is properly phrased in terms of the constitutionally permissible, not the mandatory, and in prudence, we should await another day to explore the full reach of our rediscovered freedom." Hansen, 592 So. 2d at 146-47. In light of Hansen and Payne, this Court later noted that victim character and impact evidence are proper when it is "necessary to a development of the case and [the] true characteristics of the victim and could not serve in any way to incite the jury." Jenkins v. State, 607 So. 2d at 1183 (finding that evidence that victim was a mother, that she was a wife of four years, and that she was shy and did not like to wear dresses because they exposed her legs was relevant). See also Mack v. State, 650 So. 2d 1289, 1324-25 (Miss. 1994).

¶22. In the case sub judice, the statements made by the State in closing do not appear to go beyond the guidelines concerning the admission of victim impact statements set out under our recent case law. Mack, 650 So. 2d at 1325; Wells, 698 So. 2d at 512-13. These statements appear to have some probative value and, when measured against the evidence as a whole, it is fair to say that this evidence was not so inflammatory that it prejudiced Edwards. However, this Court emphasizes that on retrial all are instructed to abide by the holdings of Payne and recent Mississippi case law.

III. WHETHER THE TRIAL COURT'S JURY INSTRUCTIONS AT BOTH PHASES OF THE TRIAL WERE ERRONEOUS BECAUSE THEY DID NOT CONFORM TO THE INDICTMENTS OR TO THE RELEVANT STATUTORY PROVISIONS ENACTED BY THE LEGISLATURE?

A. ¶23. Edwards contends his conviction and sentence must be reversed because the instructions given, C-7, C-8 and C-11, did not comport with the indictments against him. These three instructions read as follows: Jury Instruction C-7

The Court instructs the Jury that should you find from the evidence in this case, beyond a reasonable doubt:

1. On or about the 5th day of October, 1995, in Clarke County, Mississippi;

2. The Defendant, Fontrell Edwards, along or with Kelvin Jordan, did, with or without a design to effect death, kill Codera Bradley, a human being,

3. While engaged in the crime of robbery;

then it is your sworn duty to find the Defendant guilty of Capital Murder under Count I.

Should the State fail to prove any one or more of these essential elements beyond a reasonable doubt, then you shall find the Defendant not guilty of Capital Murder under Count I.

Jury Instruction C-8

The Court instructs the Jury that should you find from the evidence in this case, beyond a reasonable doubt:

1. On or about the 5th day of October, 1995, in Clarke County, Mississippi;

2. The Defendant, Fontrell Edwards, along or with Kelvin Jordan, did, with or without a design to effect death, kill Tony Roberts, a human being,

3. While engaged in the crime of robbery;

then it is your sworn duty to find the Defendant guilty of Capital Murder under Count II.

Should the State fail to prove any one or more of these essential elements beyond a reasonable doubt, then you shall find the Defendant not guilty of Capital Murder under Count II.

Instruction C-11

The Court instructs the Jury that in order for the Defendant to be convicted of Capital Murder, you must find beyond a reasonable doubt that the killing was done during the commission of a robbery. Robbery is the taking of the personal property of another by force or threat of force from the person or presence of the victim(s).

¶24. Edwards argues instructions C-7, C-8 and C-11 were at substantive variance with the indictments charging him with capital murder while engaged in armed robbery. He further asserts instructions C-7, C-8 and C-11 did not contain the elements set forth in Miss. Code Ann. §§ 97-3-19(2)(e), 97-3-73 and 97-3-79.

¶25. Edwards' indictment read that:

Frontrell Edwards . . . did . . . on or about the 5th of October, A.D., 1995, did wilfully, unlawfully and feloniously take or attempt to one (1) 1992 Nissan, take the personal property of tony Roberts, from the person or presence of Tony Roberts, against his will by violence to his person by the use of a deadly weapon, a pistol, by putting the said Tony Roberts in fear of immediate injury to his person in violation of Mississippi Code Annotated Section 97-3-79 (1972) . . . .

Although jury instructions C-7, C-8 and C-11 term the underlying felony as "robbery," the elements contained in instruction C-9 were clearly those comprising the crime of armed robbery. Instruction C-9 read:

The Court instructs the Jury that should you find from the evidence in this case, beyond a reasonable doubt that:

1. On or about the 5th day of October, 1995, in Clarke County, Mississippi;

2. The Defendant, Fontrell Edwards, did, along with Kelvin Jordan, take or attempt to take the property of Tony Roberts from Tony Roberts' person or presence, against his will;

3. By violence or the threat of violence through the exhibition of a firearm; then it is your sworn duty to find the Defendant guilty of Robbery by Use of a Firearm under Count III.

Despite the omission of the word 'armed' from this instruction, and instructions C-7, C-8 and C-11, there is no doubt that the jury was adequately instructed on the elements of that offense. Foster v. State, 639 So. 2d 1263, 1291-92 (Miss. 1994). Further, the jury was required to and did find Edwards guilty beyond a reasonable doubt of all the elements contained in the indictment. Edwards cites no authority for his proposition that reversible error exists where the proper elements of the crime charged are presented to the jury, although the labeling of the crime as it appears in the indictment and the instructions is not identical in all respects. Foster, 639 So. 2d at 1292. We find no such authority and thus find this point to be lacking in merit.

B.

¶26. The indictment for murder brought against Edwards stated that: Frontrell Edwards and Kevin Jordan in said County and State on or about the 5th day of October, A.D., 1995, did wilfully, unlawfully, feloniously and knowingly kill Codera D. Bradley [and Tony Roberts], a human being, by shooting him to death with a pistol, without authority of law, while engaged in the crime of armed robbery under MCA § 97-3-79 in violation of Section 97-3-19(2)(e) Mississippi Code Annotated as amended (1972) . . . .

¶27. The indictment clearly stated that Edwards was indicted for the offense contained within Miss. Code Ann. § 97-3-19(2)(e) (1994) which provides:

(2) The killing of a human being without the authority of law by any means or in any manner shall be capital ...


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