The opinion of the court was delivered by: Smith, Justice
DATE OF JUDGMENT: 10/3/96
TRIAL JUDGE: HON. GRAY EVANS
COURT FROM WHICH APPEALED: LEFLORE COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - DEATH PENALTY - DIRECT APPEAL
DISPOSITION: REVERSED AND REMANDED - 2/25/99
MOTION FOR REHEARING FILED:
¶1. Terry Ray Smith was indicted by the Grand Jury of the Circuit Court of Leflore County and convicted of the capital murder of Theodore Thompson during the commission of an arson, the murder of Laura Wells and the murder of Darren Wells on February 16, 1995. This case comes to this Court on appeal by Smith where Smith was convicted of Count I-Capital Murder, Count II - Murder, and Count III - Murder. Smith received the death penalty by a jury for Count I.
¶2. It is from this judgment and sentence that Smith brings this appeal. Smith raises the following assignments of error:
I. WHETHER THE PROSECUTOR USED PEREMPTORY CHALLENGES IN A RACIALLY DISCRIMINATORY WAY IN VIOLATION OF THE FEDERAL AND STATE CONSTITUTIONS AND STATE LAW.
II. WHETHER THE STATE VIOLATED RULE 4.06
III. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ADMITTING ILLEGAL TESTIMONY AND EVIDENCE.
IV. WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO PRECLUDE ADMISSION OF GRUESOME AND HIGHLY PREJUDICIAL COLOR PHOTOGRAPHS OF THE DECEASED AND IN ALLOWING THE SAME TO BE ADMITTED AS EVIDENCE DURING THE GUILT AND SENTENCING PHASES OF TRIAL.
V. WHETHER THE TRIAL COURT ERRED IN ALLOWING TESTIMONY OF THE CHILD WITNESS.
VI. WHETHER THE TRIAL COURT ERRED BY ALLOWING THE STATE TO LEAD THE CHILD WITNESS.
VII. WHETHER THE TRIAL COURT ERRED BY ADMITTING THE HEARSAY TESTIMONY OF THE CHILD WITNESS.
VIII.WHETHER THE ACTION OF THE TRIAL COURT IN LEAVING THE BENCH AND CONSULTING THE VICTIM'S SON IN THE PRESENCE OF THE JURY WAS PREJUDICIAL AND INFLAMMATORY AND DENIED THE APPELLANT A FAIR TRIAL.
IX. WHETHER THE TRIAL COURT ERRED IN LIMITING CROSS-EXAMINATION OF THE JAILHOUSE CONFESSION WITNESS.
X. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GRANT CIRCUMSTANTIAL EVIDENCE INSTRUCTIONS.
XI. WHETHER THE TRIAL COURT ERRED IN ITS REFUSAL OF JURY INSTRUCTIONS D-14, D-15, D-18, D-12, D-20 & D-29 DURING THE GUILT PHASE OF THE TRIAL.
XII. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING JURY INSTRUCTIONS C-CR-3 AND REFUSING JURY INSTRUCTIONS D-11, D-12 & D-13 WHICH ALLOWED THE JURY TO CONSIDER THE LESSER INCLUDED OFFENSE.
XIII.WHETHER THE STATE VIOLATED RULE 609, MISSISSIPPI RULES OF EVIDENCE AND THE TRIAL COURT ERRED IN ALLOWING EVIDENCE OF AN EIGHTEEN (18) YEAR OLD CONVICTION OF UTTERING FORGERY DURING THE SENTENCING PHASE.
XIV. WHETHER APPELLANT WAS DEPRIVED OF HIS RIGHT TO PRESENT RELEVANT MITIGATION EVIDENCE BY THE TRIAL COURT'S ERRONEOUS EVIDENTIARY RULING.
XV. WHETHER THE TRIAL COURT ERRED IN ITS PARTIAL DENIAL OF APPELLANT'S MOTION FOR COOLING OFF PERIOD BETWEEN CONCLUSION OF GUILT-INNOCENCE PHASE AND BEGINNING OF POSSIBLE SENTENCE PHASE OF APPELLANT'S CAPITAL MURDER TRIAL.
XVI. WHETHER THE PROSECUTOR'S IMPROPER COMMENTS AND MISCONDUCT DEPRIVED APPELLANT OF A FAIR TRIAL.
XVII.WHETHER THE TRIAL COURT ERRED IN INSTRUCTING THE JURY IN SUCH A WAY AS TO RELIEVE THE STATE OF ITS BURDEN OF PROVING THAT THE AGGRAVATING CIRCUMSTANCES OUTWEIGH THE MITIGATING CIRCUMSTANCES AND PEREMPTORILY INSTRUCTING THE JURY TO FIND ARSON AS AN AGGRAVATING CIRCUMSTANCE.
XVIII.WHETHER THE GRANTING OF SENTENCING INSTRUCTION C-S-1 IN CONJUNCTION WITH REFUSAL TO GRANT SENTENCING INSTRUCTION D-32 ACTED AS A LIMIT ON THE PRESENTATION OF MITIGATION EVIDENCE IN VIOLATION OF THE STATE AND FEDERAL CONSTITUTIONS.
XIX. WHETHER THE TRIAL COURT ERRED IN SUBMITTING THE "ESPECIALLY HEINOUS, ATROCIOUS OR CRUEL" AGGRAVATING CIRCUMSTANCE.
XX. WHETHER SENTENCING INSTRUCTION C-S-1 WAS DEFECTIVE IN A MANNER WHICH VIOLATES STATE LAW AND THE EIGHTH AMENDMENT.
XXI. WHETHER THE TRIAL COURT VIOLATED THE EIGHTH AMENDMENT AND STATE LAW BY INSTRUCTING THE JURY TO DISREGARD SYMPATHY OR MERCY IN REACHING ITS SENTENCING DECISION.
XXII.WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT'S PEREMPTORY INSTRUCTIONS, MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT (JNOV) OR IN THE ALTERNATIVE FOR A NEW TRIAL.
XXIII.WHETHER THE VERDICT IS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.
XXIV.WHETHER THE TRIAL COURT ERRED IN ITS DENIAL OF APPELLANT'S MOTION TO DECLARE MISS. CODE ANN. SECTION 97-3-19(2)(E) UNCONSTITUTIONAL; OR, IN THE ALTERNATIVE, TO PRECLUDE THE PROSECUTION FROM RELYING ON MISS. CODE ANN. SECTION 99-19-101(50)(D) AS AN AGGRAVATING CIRCUMSTANCE AT APPELLANT'S CAPITAL SENTENCING TRIAL.
XXV. WHETHER THE DEATH SENTENCE IS DISPROPORTIONATE IN THIS CASE CONSIDERING THE UNIQUE CHARACTERISTICS.
XXVI.WHETHER THE AGGREGATE ERROR IN THIS CASE REQUIRES REVERSAL OF THE CONVICTION AND DEATH SENTENCE.
¶3. This Court, after extensive examination of the record and all issues raised by Smith, finds that Issues VI, VII and IX warrant Discussion. We hold that Issues VII and IX are meritorious and therefore we reverse the circuit court's judgment and remand for a new trial.
¶4. On February 16, 1995, the apartment of Darren and Laura Wells was burned by fire. The apartment was located in Leflore County, Mississippi. Darren Wells' body was found on the outside in his truck with a gunshot wound to the back of the neck. There were notable bruises and minor cuts which indicated that Darren had been in a struggle with someone. The bodies of Laura Wells and one of her children, Theodore Thompson Wells ("Teddy") were found inside the charred remains of the apartment. Laura died from a gunshot wound to the head. Teddy died from smoke inhalation. Two other children, T. J. Rogers and Devin, survived the fire. The fire was started by kerosene from a broken lamp.
¶5. Terry Ray Smith had previously lived with the Wellses until a dispute occurred around December 24, 1994 when Smith was escorted from the apartment by Deputy Art Langley. According to Deputy Langley, Smith ...