OF JUDGMENT: 06/19/2015
HARRISON COUNTY CIRCUIT COURT HON. ROGER T. CLARK TRIAL
ATTORNEYS: CROSBY PARKER, LISA COLLUMS, CHARLIE STEWART,
FRANK P. WITTMANN, IV, RICHARD JOEL SMITH, JR., ROBERT C.
STEWART, GLENN F. RISHEL, JR., ANGELA BLACKWELL, DANA
CHRISTENSEN, ALISON R. STEINER
ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER
BY: ALISON R. STEINER ANGELA BLACKWELL
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
LADONNA C. HOLLAND JASON L. DAVIS CAMERON BENTON
DISTRICT ATTORNEY: JOEL SMITH
On December 23, 2013, Abdur Rahim Ambrose, Stevie Ambrose,
and Orlander Dedeaux were indicted for capital murder of
Robert Trosclair with the underlying felony being kidnapping.
The trial court severed the case for separate
trials. Abdur Rahim Ambrose proceeded to trial,
which commenced on June 15, 2015. Following the culpability
phase of trial, a Harrison County jury found Abdur Rahim
Ambrose guilty of capital murder. Following the penalty phase
of trial, the jury imposed the death penalty. Ambrose
appeals, raising the following twelve assignments of error
I. WHETHER THE TRIAL COURT VIOLATED AMBROSE'S SIXTH AND
FOURTEENTH AMENDMENT RIGHTS TO CONFRONTATION AND TO PRESENT A
DEFENSE BY PREVENTING HIM FROM IMPEACHING PROSECUTION WITNESS
DEMETRIUS LEE WITH MATTERS CLEARLY PROBATIVE OF LEE'S
BIAS IN FAVOR OF THE STATE AND INTEREST IN PROVIDING
INCRIMINATING TESTIMONY AGAINST AMBROSE AND IN SUPPORT OF THE
STATE'S THEORY OF PROSECUTION.
II. WHETHER AMBROSE'S DEATH SENTENCE MUST BE VACATED AND
THIS MATTER REMANDED FOR ENTRY OF A SENTENCE LESS THAN DEATH
BECAUSE THE ONLY § 99-19-101(7) SENTENCING ELIGIBILITY
FACTOR FINDING BY THE JURY WAS THAT AMBROSE
"CONTEMPLATED THAT LETHAL FORCE WOULD BE EMPLOYED."
III. WHETHER THE TRIAL COURT REVERSIBLY ERRED IN TWO MATTERS
RELATING TO THE SEATING OR REMOVAL OF JURORS, AND IN
DENYING A MISTRIAL IN LIEU OF REPLACING THE REMOVED JUROR
WITH AN ALTERNATE.
IV. WHETHER THE JURY SELECTION PROCESS WAS ALSO
CONSTITUTIONALLY INFIRM IN OTHER RESPECTS AND REQUIRES
REVERSAL OF AMBROSE'S CONVICTION AND SENTENCE OF DEATH.
V. WHETHER AMBROSE'S SENTENCE MUST BE REVERSED BECAUSE OF
THE PROSECUTOR'S MISCONDUCT IN MAKING CONSTITUTIONALLY
IMPROPER AND PREJUDICIALLY INFLAMMATORY CLOSING ARGUMENTS AT
THE PENALTY PHASE OF THE TRIAL.
VI. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE EVIDENTIARY
VII. WHETHER THE TRIAL COURT CONSTITUTIONALLY ERRED BY
DENYING AMBROSE'S REQUESTS THAT EITHER THE INDICTMENT
ITSELF OR A BILL OF PARTICULARS, DESCR[I]BE[S] THE ALLEGED
CONDUCT BY THE DEFENDANT THAT CONSTITUTED THE KIDNAPPING
ELEMENT OF THE CAPITAL MURDER AND/OR THE STATUTORY SENTENCING
AGGRAVATOR ON WHICH THE JURY WAS INSTRUCTED AT THE PENALTY
VIII. WHETHER THE TRIAL COURT ERRED IN GRANTING THE
STATE'S REQUESTED ONE CONTINUOUS TRANSACTION INSTRUCTIONS
AT BOTH THE CULPABILITY AND SENTENCING PHASES.
IX. WHETHER THE TRIAL COURT'S ERRONEOUS SENTENCING PHASE
INSTRUCTIONS REQUIRE VACATION OF THE DEATH SENTENCE AND
REMAND FOR A NEW SENTENCING PROCEEDING.
X. WHETHER THE DEATH SENTENCE WAS IMPOSED IN VIOLATION OF THE
UNITED STATES CONSTITUTION.
XI. WHETHER THE DEATH SENTENCE IN THIS MATTER IS
CONSTITUTIONALLY A ND ST ATU T ORILY DISPROPORTIONATE.
XII. WHETHER THE CUMULATIVE EFFECT OF THE ERRORS IN THE TRIAL
COURT MANDATES REVERSAL OF THE VERDICT OF GUILT AND/OR THE
SENTENCE OF DEATH ENTERED PURSUANT TO IT.
BACKGROUND AND PROCEDURAL HISTORY
at "the Hill"
On the afternoon of April 7, 2013, Demetrius Lee returned
home from work between 3:00 and 4:00 p.m. Lee resided in the
DeLisle community at 7486 Lobouy Road, which is part of a
larger property commonly known as "the Hill." The
Hill is comprised of two houses and a mobile home. While Lee
was relaxing, someone knocked on his window, but he remained
inside. Twenty to thirty minutes later, Lee went outside and
saw Robert Trosclair, whom he knew from frequently being at
Lee testified that Trosclair was running and looked like he
had been in a fist fight, because he was shirtless and
bloody. Trosclair had a busted lip, blood coming out of his
nose, and blood on his chest. Ambrose, his brother Stevie
Ambrose,  and Orlander Dedeaux were following behind
Trosclair, taking turns hitting him. Stevie handed Lee a cell
phone and told him to record. Lee testified that he videoed
anywhere from a mere second to two minutes of the assault.
Trosclair was trying to get away and was not fighting back.
Ambrose kept asking Trosclair, "[W]here is my stuff, you
got some explaining to do" to which Trosclair responded,
"it was Terry." Ambrose, Stevie, and Dedeaux
continued taking turns hitting, kicking, and knocking down
Trosclair for thirty minutes to an hour.
Sometime during the assault, Donna Sims arrived at the Hill
to return a book bag to her grandson, who had been staying
with his mother Crystal Jameson at the Hill. When Sims
arrived, she saw someone lying on the ground. Although Sims
knew Trosclair, she was unable to recognize him because his
head was bloody and swollen. Sims saw Ambrose, Stevie, Lee,
and Dedeaux standing around Trosclair. Sims, whose grandson
is also Ambrose's nephew, had known Ambrose for years.
Sims told Ambrose and Stevie to stop assaulting Trosclair and
leave him alone. Ambrose responded that Trosclair had
"stolen stuff out of his car." Sims grabbed,
pushed, and pulled Ambrose and Stevie in an effort to stop
them, but she was unsuccessful. Sims begged them to stop, but
they continued hitting Trosclair. Lee also testified that
Sims had yelled for them to stop assaulting Trosclair. Sims
testified that Trosclair was not fighting back and was unable
to stand up other than partially sitting up at one point.
Sims testified that Lee was laughing and videoing the assault
with a phone.
After the beating had subsided, Ambrose got into a white
truck and told "them" to put Trosclair in the
truck. Sims recognized the truck because it belonged to her
daughter Crystal and her boyfriend Luke Turner, who is
Ambrose's brother. Sims approached Ambrose while he was in
the driver's seat of the truck. Sims spoke to Ambrose for
about five minutes. Meanwhile, Sims testified that
"they" had put Trosclair in the back of the truck
because he could not get up from the ground. Sims testified
that Lee helped load Trosclair into the back of the truck.
Lee denied helping load Trosclair in the back of the truck at
the Hill; rather, Lee testified that after the fighting had
stopped, Trosclair attempted to roll in the back of the
truck. Lee testified that someone then picked up his feet and
pushed him in the back of the truck. Lee got into the
passenger's seat of the truck and Ambrose drove away with
Trosclair in the back of the truck. Lee was under the
impression that Ambrose was going to take Trosclair home.
Stevie got into his car with Dedeaux and they followed the
Lee testified that, by the time Sims arrived at the Hill that
afternoon, most of the assault had subsided. Lee testified
that Sims was there about ten minutes before they left the
scene; however, Sims testified that the incident at the Hill
lasted thirty-five to forty-five minutes from the time she
arrived at the Hill to the time they left the scene.
at Fire Tower Road
Upon leaving the Hill, Lee described Ambrose's demeanor
as "mad, real mad." Lee soon realized Ambrose was
not taking Trosclair home, but he was too scared to say
anything. Instead, they went to an address about five minutes
away on Fire Tower Road where Jimmy Lawton lived. Lawton,
also known as "Turk," lived at 9042 Fire Tower Road
at the end of a long dirt driveway. Ambrose drove the truck
down the driveway and parked in front of a trailer next door
to Lawton, where Lashonda Jacobs lived. Ambrose parked, got
out of the truck, and went toward Lawton's house. Ambrose
walked to Lawton and spoke to him.
Meanwhile, Stevie got out of his car and pushed Trosclair out
of the back of the truck. Lee testified that Trosclair and
Stevie "squared off" as if to fight. Trosclair
"rushed" Stevie, pushing him away, and ran away
toward the main road in an effort to "get away."
Lee estimated that Trosclair made it about forty yards away.
Lee testified that Ambrose ran after Trosclair and caught
him. Ambrose grabbed Trosclair by the waistband of his shorts
and said, "you got some more explaining to do."
Trosclair responded, "man, I don't know what's
going on. It wasn't me. It was Terry." Ambrose
walked Trosclair back toward the truck.
Lee testified that the situation then "turned up a
level" and "got more heated." Trosclair ended
up on the ground and Ambrose, Stevie, and Dedeaux began
kicking him. Other than initially rushing Stevie to get away,
Trosclair did not fight back at all. During the assault, Lee
grabbed Ambrose and said "[w]e need to figure out who
Terry is" because Trosclair continued yelling the name
"Terry." Ambrose responded, "there ain't
Lee testified that Stevie hit Trosclair in the head with a
garden hose reel with "full force" as Trosclair was
lying down on the ground. Lee testified that Ambrose
retrieved a fully inflated car tire on a rim and hit
Trosclair in the head with it as Troscliar was lying on the
ground. Lee testified that Trosclair's head bounced off
the ground when Ambrose hit him with the tire. After
Trosclair was hit "two to three" times with the
tire, Lee testified that Trosclair "went to sleep"
and started "making a snoring sound."
Lawton, who witnessed portions of the assault in front of his
house, also testified. That evening, Lawton recalled that
Ambrose, whom he had known for about five years, arrived at
his house. Lawton saw him getting out of the driver's
side of the white truck. At the time, Ambrose regularly
stayed at the trailer next door to Lawton's house and
Ambrose would come to the house to get the trailer key.
Lashonda Jacobs also lived at the trailer next door to
Lawton's house. Lawton, assuming Ambrose was there to get
the key, went outside under the carport to meet Ambrose with
While under the carport, Lawton saw Dedeaux and Trosclair
sitting in the back of the truck with no commotion. As
Ambrose reached the carport, Lawton saw Trosclair take off
running up the driveway toward the main road. Lawton
testified that Dedeaux and Stevie ran after Trosclair first.
Lawton testified that when Trosclair had run about ten to
twenty-five yards, Ambrose also ran after him. Stevie and
Dedeaux caught Trosclair first and knocked him down. Ambrose
made it to Trosclair soon thereafter. Lawton testified that
Ambrose, Stevie, and Dedeaux started kicking and punching
Trosclair. Lawton went inside for a moment to get his phone
to call his next door neighbor Jacobs. Lawton then continued
observing from his window.
Lawton testified that Trosclair started stumbling back toward
the trailer. Lawton testified that Trosclair would walk for a
moment and then "one of them would hit him and he would
go a little more and then he fell again." Lawton
testified that Trosclair was not fighting back. Lawton
testified that Ambrose and Dedeaux hit Trosclair with the
tire and the hose reel. Lawton testified that "[t]hey
picked up a tire and they picked up a [hose reel]. They
struck him with it more than twice, I know that for
sure." Lawton testified that he "kn[e]w [Dedeaux]
picked it up once. And [he was] sure the other one was
[Ambrose]." When asked if he was sure about which one
hit him with which object, Lawton responded:
Not - I'm not really sure. I know one of them picked this
one up, the other one picked that one up. I'm just saying
it was, boom, and they pick something else up, hit him. And
then the other one, Stevie, was right there with him. He
picked it up and hit him hisself, you know. And [Lee], the
one he was there taking pictures with the camera.
On cross-examination, Lawton testified that Ambrose hit
Trosclair with the hose reel and the tire. Lawton also
testified that Stevie picked up the hose reel and hit
Trosclair with it. Lawton testified that Trosclair was hit
with the tire more than two times. Lawton testified that
Trosclair was lying on his side when he was hit with the
garden hose reel and the tire. After Trosclair was hit with
these two objects, he rolled over. During the assault, Lawton
testified that he then went to the bathroom for fifteen or
twenty minutes and came back to the window and saw the truck
and car leaving the scene. After the two vehicles left,
Lawton went outside and saw at least three areas of blood in
the gravel driveway. Lawton also noticed that the hose reel
and tire, which were used to strike Trosclair, were lying on
Lee testified that after Trosclair had been knocked out in
front of Lawton's house, Ambrose got into the truck.
Stevie and Dedeaux tied Trosclair's hands and body with a
yellow ratchet tow strap and put him in the back of the
truck. When Trosclair was put in the back of the truck, his
head was jerking back and forth. Lee testified that he got in
the truck with Ambrose and they left Lawton's with Stevie
and Dedeaux following in Stevie's car. Ambrose did not
tell Lee where he was driving. Lee testified that Ambrose
turned off "some little entrance, and backed up. And
then Stevie and Dedeaux pulled [Trosclair] out the
truck." Stevie and Dedeaux dumped Trosclair on the side
of the road and they left the scene. Lee testified that
Trosclair was unable to move or talk.
Later that evening, Lawton testified that Ambrose came to his
house with Jacobs. Lawton said that Ambrose apologized about
what had happened in front of his house. Lawton said that
Ambrose asked for a shovel, but Lawton told him he did not
have one. The next day, Lawton went outside and noticed that
the areas of blood were covered up. Lawton also noticed that
the garden hose reel and tire had been moved and thrown in
The same evening, Bradley Holmes was driving home on
Cunningham Road in Pass Christian around 7:00 p.m. Holmes
stopped his truck when he noticed what appeared to be a body
lying on the side of the road. Holmes called 911, and when he
was getting out of his truck, he realized it was an
unconscious man, later identified as Trosclair, lying face
down between the white line of the road and the roadside
ditch. Holmes testified that Trosclair was making a gargling,
snoring sound. Holmes testified Trosclair was partially
clothed, with short pants and socks on. Holmes described that
Trosclair was tied up with a yellow ratchet strap, which was
tightly tied around his wrists and loosely tired around his
back. Holmes described his head as "very dirty, covered
in dirt, black and blue, blood." Holmes said that
Trosclair's ears had blood coming out of them. Holmes
also observed stab wounds, cuts, and scrapes to
Deputy Carl James of the Harrison County Sheriff's
Department received a call at approximately 7:00 p.m. with
regard to an assault victim who had been stabbed on
Cunningham Road just west of Lobouy Road. Deputy James was
the first officer to respond to the scene. Deputy James
testified that Trosclair was wearing only a pair shorts and
socks. Deputy James testified that Trosclair had bruising,
blood, and abrasions on his face and his whole body. Deputy
James observed blood on the middle of his torso, including
three stab wounds to the lower back. Deputy James testified
that Trosclair's hands and waist were tied with a ratchet
tow strap. Deputy James tried to communicate with Trosclair,
but he was unresponsive. Trosclair's breathing was
shallow and labored with a gurgling sound resembling a snore.
Trosclair was flown by helicopter to the University of South
Alabama Medical Center, where he arrived intubated because he
was unable to breathe on his own and had signs of head
injuries. Trosclair was unresponsive, and the treating
physician determined that Trosclair had undergone some brain
injury and diagnosed him with a global severe cerebral edema.
Because of the swelling of Trosclair's brain, it had
shifted four millimeters to the left. Trosclair also was
diagnosed with a jaw fracture, nasal bone fracture, and
superficial lacerations on his flank, meaning that they did
not enter where his organs were. The treating physician
testified that the lacerations were not life threatening in
and of themselves. After performing tests to determine brain
activity over the next two days, the treating physician
determined that Trosclair was clinically brain dead.
On April 9, 2013, Troslciar's mother Vena Trosclair went
to the police station to report her son missing because he
had not been home and was not returning her calls. Law
enforcement officials advised Vena that an unidentified male
matching her son's description was at the University of
South Alabama Medical Center. Vena went to the hospital and
identified Trosclair, who was comatose and on life support.
Trosclair never regained consciousness and died after he was
removed from life support.
On April 11, 2013, forensic pathologist Dr. Frank Krolikowski
performed an autopsy of Trosclair. Dr. Krolikowski found
Trosclair had suffered from three stab wounds to his side,
substantial amounts of head trauma, multiple hemorrhages
within his head, strangulation, and superficial abrasions in
a number of different parts of his body. Dr. Krolikowski
testified that the hemorrhages within Trosclair's head
could be consistent with multiple strikes to the head. Dr.
Krolikowski opined that all of Trosclair's various
traumas were cumulative and contributed to his demise. Dr.
Krolikowski concluded that Trosclair's cause of death was
"multiple blunt trauma, multiple stab wounds, and
asphyxia by strangulation."
During law enforcement's investigation, Ambrose and
Stevie were developed as suspects and an arrest warrant for
aggravated assault was issued because Trosclair was still
alive at the time, albeit in a coma. The charges were later
upgraded after Troslcair died of his injuries.
At the Hill, investigators discovered the white truck that
had been driven by Ambrose. Investigators observed a red
substance appearing to be blood inside the truck's
tailgate. Investigators discovered a leather belt and blue,
torn up, tank top shirt inside a trash can outside the mobile
home. Investigators discovered blood stained gravel in the
center of the driveway in front of Lawton's home.
Investigators also discovered the blood stained tire and
garden hose reel in a wooded area about twenty-five yards
from Lawton's home near the driveway where blood was
At trial, the State introduced evidence showing that
Trosclair's DNA matched a reddish brown stain sample
collected from the interior of the truck bed near the
tailgate. Trosclair's DNA matched a reddish brown stain
sample consistent with the appearance of blood collected from
the garden hose reel. Trosclair's DNA matched a reddish
brown sample from the tire rim. Trosclair's DNA matched
samples from reddish brown stained rocks found in the middle
of the driveway near Lawton's home. Trosclair's DNA
also matched samples taken from the blue tank top found in a
trash can at Lobouy Road and the ratchet tow strap. Although
DNA testing performed on the belt showed a mixed profile from
more than one person, Trosclair could not be excluded as
being a contributor to the mixture.
Version of Events
Ambrose took the stand in his defense. At the time, Ambrose
had been driving the white truck that he had borrowed from
Jameson because his car was broken down and parked in front
of his mother's trailer at the Hill. On the morning of
April 7, 2013, Ambrose received a call from Jameson, who is
Sims's daughter. Ambrose learned that his car had been
broken into. Ambrose went to the Hill to return the truck to
Jameson and to assess the damage to his car. Ambrose arrived
and saw that his car's window had been broken out with a
brick and the trunk had been opened. When Ambrose opened the
driver's side of his car, he discovered that his
prescription pills for a back injury that had occurred at
work had been taken. Ambrose also discovered that other
drugs, a speaker, and an amplifier had been taken from the
trunk of the car.
Ambrose became upset and decided to drive around the DeLisle
community and ask if anyone had seen someone trying to sell a
speaker and amp so he could determine who had broken into his
car. Ambrose picked up Dedeaux from his house, and they drove
around the community looking for the stolen items. While they
were driving around, Stevie called. Ambrose learned that
Trosclair was at the Hill. Ambrose had known Trosclair for
more than a decade, and they had grown up together. Ambrose
described Trosclair as his "brother, best friend."
Ambrose and Trosclair were not actually related; on
cross-examination, Ambrose clarified that Trosclair was his
friend. Ambrose also confirmed that he, his brother Stevie,
Dedeaux, Lee, and Trosclair all were friends.
When Ambrose returned to the Hill, Ambrose approached
Trosclair and asked him about a dog house that Ambrose had
asked Trosclair to build. Earlier that day, Trosclair claimed
he could not build it because he was on his way to the
hospital due to third degree burns he had suffered from
working on a car radiator. Because Ambrose saw that Trosclair
did not have burns on his body, Ambrose confronted him about
the stolen items. ¶29. Trosclair then admitted to
breaking into Ambrose's vehicle, but claimed he did not
break out the window. Ambrose became angry when Trosclair
admitted to breaking into his car. Trosclair claimed that an
individual named Terry had broken out the window. Ambrose did
not know an individual named Terry and the argument became
heated. Ambrose and Trosclair "squared off" and
fought for "four to five minutes."
During the fight, Ambrose ripped off Trosclair's blue
tank top. Ambrose punched Trosclair about five or six times.
Troslcair fought back and struck Ambrose with a few blows.
The only other individuals present at the time were Stevie
and Dedeaux. Later, Lee came outside and
"blindsided" Trosclair, hitting him from behind and
knocking him down. Ambrose told Lee that he did not need any
help. Trosclair got up and he and Ambrose continued to fight.
Ambrose testified that Dedeaux was "actually the one
with the phone [videoing]."
The fight subsided and Ambrose told Trosclair to take him to
Terry. Ambrose testified that Trosclair was "pretty beat
up." Ambrose went toward the truck so they could go to
Terry's house. Ambrose claimed that Sims pulled up as
they were on their way to the truck. Ambrose denied that Sims
had pleaded for him to stop beating Trosclair because the
fight already had ended. Ambrose told "them to get on
back of the truck and take me to whoever this guy named Terry
is house [sic]." Ambrose testified that Trosclair got in
the back of the truck so they could get his belongings back.
Ambrose testified that he did not force Trosclair into the
truck and Trosclair willingly got in the truck. Ambrose told
Trosclair that once he received his speakers, he
"wasn't going to mess with him anymore." Stevie
followed Ambrose to "go get the stuff."
Instead of going to where Terry supposedly lived, as Ambrose
originally had planned, he remembered that he had purchased
four tires from Lawton for his other vehicle, which had a
flat tire. Even though Ambrose was angry about his belongings
being stolen, he decided to take a detour to Lawton's.
Ambrose drove to Lawton's house, which was "right
around the corner." Ambrose pulled up and Lawton had the
trailer keys in his hand, but Ambrose advised Lawton that he
was there just to get the tires.
While Ambrose and Lawton were talking, "a commotion . .
. was going on by the trailer a few feet away, and [Ambrose]
saw people running." Ambrose testified: "I
didn't really know what the commotion was about, but when
I saw people running, I instantly just ran. I took off. I
did. I took off to see what the commotion was about."
Ambrose saw Lee, Dedeaux, and Stevie striking Trosclair.
Ambrose caught up with them and began striking Trosclair too.
Ambrose admitted that all of them were beating Trosclair
after they chased him down. Ambrose also admitted that
"this whole thing [was] about [Ambrose] being mad at
[Trosclair] because [Ambrose] believe[ed] he [had] broke[en]
into [his] car." Ambrose admitted that was the reason
everyone was beating him at the time. Ambrose testified the
beating lasted two minutes until Ambrose learned that Terry
was not involved and Stevie actually had broken into his car.
Ambrose then fought Stevie for about three minutes. When
Ambrose and Stevie started fighting, Ambrose testified that
Trosclair was injured but got up and walked back toward
When Ambrose was finished fighting with Stevie, he saw
Dedeaux strike Trosclair in the head with the tire. After
Dedeaux struck Trosclair with the tire, Trosclair just
"laid there" and did not get up. Ambrose testified
that he was hurt by Stevie and just wanted to get away.
Ambrose left the scene alone in Stevie's car because it
was the closest vehicle to him.
Later that evening, Ambrose returned to Lawton's house
with Jacobs. Ambrose apologized to Lawton about the fight
that had occurred earlier that day. Ambrose testified that he
and Lawton spoke for about three minutes and he left. Ambrose
denied asking Lawton for a shovel. Ambrose denied
intentionally killing Trosclair or making him go anywhere
against his will. Ambrose denied stabbing, strangling, or
choking Trosclair. Ambrose denied striking Trosclair with the
tire or hose reel.
Ambrose's defense theory presented at trial was that he
was criminally responsible as an accomplice to the events in
question or, at most, guilty of a lesser homicide than
Following the culpability phase of trial, the jury returned a
verdict finding Ambrose guilty of capital murder. After an
approximately one hour cooling off period, the penalty phase
of the trial commenced. The State reintroduced and
incorporated by reference all testimony, evidence, and
exhibits contained in the culpability phase of trial and
rested. Ambrose called several family members and friends to
the stand to serve as mitigation witnesses and then rested.
During a recess following the conclusion of the mitigation
witnesses' testimony, a juror submitted a note disclosing
his personal relationship with Ambrose's family. Ambrose
moved for a mistrial. The juror was called to the stand and
questioned by counsel for Ambrose. The trial court denied the
motion for a mistrial. Over Ambrose's objection, the
trial court excused the juror and replaced him with the first
alternate juror. The next day, the jury heard closing
arguments and retired to the jury room to deliberate. The
jury returned a verdict finding that Ambrose should receive
the death penalty. The trial court duly entered an order
sentencing Ambrose to death.
On June 25, 2015, Ambrose filed a motion for a new trial or,
in the alternative, for acquittal notwithstanding the
verdict. On November 24, 2015, the trial court held a hearing
on the motion. On July 30, 2015, the trial court entered an
order denying the motion. Ambrose timely appeals, raising
twelve assignments of error. In addressing the issues,
additional relevant facts and procedural history will be set
out as necessary.
The Court applies heightened scrutiny to capital murder
convictions where a sentence of death has been imposed.
Keller v. State, 138 So.3d 817, 835 (¶ 15)
(Miss. 2014). The Court repeatedly has held that what may be
harmless error in a case with less at stake may become
reversible error when the penalty is death. Id.
WHETHER THE TRIAL COURT ERRED BY EXCLUDING EVIDENCE
OF DEMETRIUS LEE'S PRIOR NONADJUDICATED BURGLARY AND
ARMED ROBBERY ARREST.
Ambrose argues that the trial court unconstitutionally and
prejudicially prevented him from confronting and impeaching
Lee with evidence highly probative of Lee's bias in favor
of testifying in the manner desired by the State. Ambrose
argues that Lee, an uncharged coparticipant in the events
leading to Trosclair's death, was the most crucial
witness to the State's theory presented at trial. Ambrose
argues that at the time Lee made his bargain with the State
to be a witness rather than a defendant, the jury did not
additionally learn that Lee also needed the State to refrain
from seeking revocation of probation for a nonadjudicated
sentence for burglary that he was serving at the time.
Ambrose also argues that Lee faced a similar risk of
prosecution for an unrelated armed robbery for which he had
been arrested while he was being questioned as a suspect in
the present matter.
Motion in Limine and Proffer
On June 5, 2015, the State filed a motion in limine
to prohibit Ambrose from cross-examining Lee about his prior
nonadjudicated burglary and armed robbery arrest. The State
asserted that on August 16, 2010, Lee had pleaded guilty to
burglary and was sentenced to five years of nonadjudicated
probation. Also, on April 10, 2013, Lee was arrested
for armed robbery, which ultimately was no true billed by a
On June 11, 2015, prior to trial, the trial court held a
hearing on the State's motion in limine. The
State argued that the prior nonadjudication and armed robbery
arrest were inadmissible under Mississippi Rule of Evidence
609 because neither was a felony conviction. The State
represented that, at the time of the hearing, Lee still was
on nonadjudicated probation. Ambrose responded that because
the grand jury returned a no true bill for Lee's armed
robbery arrest, he sought to introduce the evidence as
evidence of bias under Mississippi Rule of Evidence 616.
According to Ambrose, a probation revocation had been filed
in the burglary matter and was heard six to ten months later.
The record is silent as to the basis of the filed revocation
or its disposition. Ambrose claimed that at the time Lee was
interviewed by investigators, he was facing twenty-five years
for the burglary nonadjudication. Ambrose argued that Lee was
not charged with capital murder, not charged with armed
robbery, and did not have his probation revoked even though
evidence existed that he had violated "a couple of terms
of his probation." The trial court granted the State's
motion based on Mississippi Rule of Evidence 609.
At trial, Ambrose cross-examined Lee. Lee admitted giving two
different stories to investigators on April 10, 2013, about
the events leading to Trosclair's death. Hours after
giving the first version, Lee testified that investigators
had asked whether he wanted to be a capital murder defendant
or a witness. Lee testified that he chose to be a witness
rather than a defendant and cooperated with investigators.
The trial court then granted Ambrose's request to make a
proffer outside the presence of the jury and allowed
cross-examination with regard to Lee's criminal past.
The testimony offered during the proffer showed that, at the
time of Trosclair's murder on April 7, 2013, Lee was
serving nonadjudicated probation for burglary of a dwelling.
Lee acknowledged that he initially was concerned about his
probation status while being questioned by investigators
about the case sub judice. After Lee gave his first
statement, an investigator asked Lee about an unrelated,
January 27, 2013, armed robbery for which he had been
identified as a suspect. Lee testified that he was not
worried about his probation being revoked as a result of
being a suspect in the armed robbery because he was innocent
of the armed robbery.
Following the proffer, the trial court entertained arguments
from counsel. According to Ambrose, Lee had been arrested for
the unrelated armed robbery in April 2013 and had
remained in jail for eight months until January 2014 when the
grand jury returned a no true bill on the charge. Ambrose
urged that Lee's criminal past was admissible as evidence
of bias under Rule 616. The trial court retained its prior
ruling and also found that Lee's testimony Ambrose sought
to elicit had no relevance to the case sub judice.
The trial court refused to "allow questioning about a
situation where [Lee] could have been revoked on a prior
[nonadjudication] by an arrest which was presented to the
[g]rand [j]ury and no true billed."
On appeal, Ambrose acknowledges that the trial court properly
recognized that Rule 609 restricts impeachment of a
witness's character for truthfulness with prior criminal
conduct to only conduct that has resulted in a conviction.
See M.R.E. 609. However, Ambrose argues that the
trial court failed to recognize that Lee's prior criminal
conduct went not merely to his general credibility, but to a
specific factual basis for his being biased in favor of the
State or having an interest in receiving a benefit or
forestalling harm from prosecution.
Ambrose argues that the trial court erred by excluding
testimony that Lee faced unresolved criminal charges, over
which the prosecutor retained the power to exercise favorable
or unfavorable discretion. Ambrose argues that the trial
court's error clearly was prejudicial because Lee's
testimony was key to implicating Ambrose for kidnapping and
designating him as the lead participant in the blows with the
tire that resulted in Trosclair's fatal brain injuries.
In response to Ambrose's claim of prejudice, the State
argues that the jury heard evidence of Lee's motive and
bias to testify as a witness rather than as a defendant
charged with capital murder for his involvement in the events
leading to Troslciar's death. The State argues that any
bias stemming from the deal was fully explored by defense
Applicable Law and Analysis
The trial court generally is allowed wide discretion
concerning the admission of evidence offered to suggest bias
on the part of a witness against the defendant. Tillis v.
State, 661 So.2d 1139, 1142 (Miss. 1995). We review the
trial court's ruling for an abuse of discretion.
Id. "We will affirm the trial court's
exercise of discretion unless the ruling resulted in
prejudice to the accused." Anthony v. State,
108 So.3d 394, 397 (¶ 5) (Miss. 2013).
"The Confrontation Clause of the Sixth Amendment of the
United States Constitution provides, 'In all criminal
prosecutions, the accused shall enjoy the right to be
confronted with the witnesses against him.'"
White v. State, 785 So.2d 1059, 1062 (¶ 9)
(Miss. 2001). Likewise, "Article 3, Section 26, of the
Mississippi Constitution grants and guarantees a criminal
defendant the right to confront witnesses against him."
Young v. State, 731 So.2d 1145, 1151 (¶ 38)
(Miss. 1999). "The right of confrontation extends to and
includes the right to fully cross-examine the witness on
every material point relating to the issue to be determined
that would have a bearing on the credibility of the witness
and the weight and worth of his testimony." Id.
"Whether rooted directly in the Due Process Clause of
the Fourteenth Amendment or in the Compulsory Process or
Confrontation Clauses of the Sixth Amendment, the
Constitution guarantees criminal defendants a meaningful
opportunity to present a complete defense." Holmes
v. South Carolina, 547 U.S. 319, 324 (2006). "While
the Constitution thus prohibits the exclusion of defense
evidence under rules that serve no legitimate purpose or that
are disproportionate to the ends that they are asserted to
promote, well-established rules of evidence permit trial
judges to exclude evidence if its probative value is
outweighed by certain other factors such as unfair prejudice,
confusion of the issues, or potential to mislead the
jury." Id. at 326-27. ("Plainly referring
to rules of this type, we have stated that the Constitution
permits judges to exclude evidence that is repetitive, only
marginally relevant or poses an undue risk of harassment,
prejudice, or confusion of the issues.") (quotations
Mississippi Rule of Evidence 611(b) allows wide open
cross-examination of witnesses, and Rule 616 allows evidence
of bias for the purpose of attacking the credibility of a
witness. McFarland v. State, 707 So.2d 166, 176
(¶ 33) (Miss. 1997); see also Meeks v.
State, 604 So.2d 748, 755 (Miss. 1999). For purposes of
attacking the credibility of a witness under Rule 616,
evidence of bias, prejudice, or interest of the witness
"includes interrogating the witness's belief or
perception as to whether the State could extend leniency for
pending charges." Anthony, 108 So.3d at 397
At the time of trial,  Rule 616 provided: "For the
purpose of attacking the credibility of a witness, evidence
of bias, prejudice, or interest of the witness for or against
any party to the case is admissible." M.R.E. 616.
However, "Rule 616 must be interpreted as it relates to
other rules of evidence, particularly [Rules] 104, 401 and
402." Tillis v. State, 661 So.2d 1139, 1142
(Miss. 1995). "Rule 616 states the general rule of
admissibility of such evidence subject to the trial court
finding, in the exercise of its discretion under [Rule] 104,
that it is relevant, under [Rules] 401 and 402, to the
specific facts in the case." Id. Rule
Evidence' means evidence having any tendency to make the
existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence." M.R.E. 401. Rule
402 provided: "All relevant evidence is
admissible, except as otherwise provided by the Constitution
of the United States, the Constitution of the State of
Mississippi, or by these rules. Evidence which is not
relevant is not admissible." M.R.E. 402.
Here, the trial court ultimately found the evidence of
Lee's criminal past not relevant. See M.R.E.
401, 402. However, the Court has emphasized that a material
witness's favored treatment from law enforcement
authorities when the witness is subject to prosecution is
probative of the witness's interest or bias and may be
developed through cross examination. See, e.g.,
Anthony, 108 So.3d at 397-98 (¶¶ 5-7);
McFarland v. State, 707 So.2d at 176 (¶¶
32-34); Suan, 511 So.2d at 147-48 (Miss. 1987);
Hall v. State, 511 So.2d 144, 27-28 (Miss. 1985).
In general, "one accused of a crime has the right to
broad and extensive cross-examination of the witnesses
against him, and especially is this so with respect to the
principal prosecution witness." Suan, 511 So.2d
at 148. The right is secured by our rules of evidence, namely
Rule 611(b), and it is a function of the Confrontation
Clauses of the federal and state constitutions. Id.
"Evidence that a material witness has received favored
treatment at the hands of law enforcement authorities,
particularly where that witness is himself subject to
prosecution, is probative of the witness'[s] interest or
bias and may be developed through cross-examination or
otherwise presented to the jury." Id. at
147-48. We specifically have held that "[a]
leniency/immunity agreement may be presented to the jury
where such would tend to impeach or show bias in the
testimony of a State's witness." Barnes v.
State, 460 So.2d 126, 131 (Miss. 1984). In the context
of the State failing or refusing to disclose witness leniency
and immunity agreements, "the law is clear that the
immunity deal must be disclosed to the defense."
Barnes, 460 So.2d at 131.
The record fails to show that a leniency or immunity
agreement had been struck with Lee and the State in regard to
the nonadjudicated burglary or armed robbery arrest. Indeed,
Ambrose did not argue at the trial level or in its initial
brief on appeal that the State had failed or refused to
disclose a leniency or immunity deal to the defense in
violation of our holding in Barnes. Id. The
only actual leniency or immunity agreement between the State
and Lee demonstrated in the record was the deal he had cut
with investigators to serve as a witness in the present case
rather than be charged for his involvement in the events
leading to Trosclair's murder. Evidence of the deal was
disclosed at trial during Lee's cross-examination.
In direct conflict with a leniency or immunity deal, the
record shows that the State actually pursued Lee's armed
robbery charge, but the grand jury returned a no true bill.
The record also suggests that the State sought revocation of
Lee's nonadjudication, although the basis of the
revocation and ultimate disposition are unclear. On appeal,
the State argues that "presumably, the [trial] judge
denied revocation." In contrast, Ambrose claims that,
although the State filed revocation proceedings, it
"abandoned" the revocation of Lee's
nonadjudication probation sentence. To the extent that
Ambrose is arguing for the first time that the State failed
or refused to disclose a leniency or immunity deal to
Ambrose, that argument has been waived and simply is not
supported by the record. See Hansen v. State, 592
So.2d 114, 127 (Miss. 1991) (holding that the Court must
decide each case by the facts shown in the record, not
assertions in the brief); Evans v. State, 725 So.2d
613, 632 (¶ 2) (Miss. 1997) (holding that issues that
were not presented to the trial court therefore are
procedurally barred, and error, if any, is waived).
The State maintains that Ambrose's entire argument hinges
on the premise that the jury could have inferred
that the State promised leniency by not seeking revocation of
Lee's probation and not charging him in the armed robbery
case, or that the charges were leveraged over Lee in exchange
for his testimony. The State argues that the trial court
properly excluded the evidence of Lee's criminal past
because both charges against him had been resolved prior to
Ambrose's trial; therefore, nothing existed for the State
to leverage against Lee to make him a biased witness in favor
of the State. The State claims that Lee had completed his
nonadjudicated probation at the time of trial and his
However, although it is unclear whether Lee's probation
sentence was three or five years, the record shows that Lee
was on probation at the time of trial because the State
represented at the motion in limine hearing that Lee
was still on probation. Regardless, it is undisputed that Lee
was subject to revocation at the time of his interview and
for some time thereafter. Ambrose is correct that, although
Lee's armed robbery charge was no true billed, he
remained subject to have the armed robbery charge presented
to the grand jury again.
In Suan, the defendant sought to show that a witness
had been involved in criminal activity but had not been
prosecuted. Suan, 511 So.2d at 148. Specifically,
the defendant sought to establish that the witness had a
motive for testifying falsely, and that if he did not testify
falsely, he would be subject to parole revocation proceedings
and returned to prison. Id. at 147. The Court noted
that the witness's "neck was on the line if he did
not testify in a manner pleasing to the prosecution."
Id. at 148. The Court held that the trial court had
erred when it refused to allow such cross-examination because
the witness was the principal witness for the State, and
because so much of the prosecution's case turned upon his
Likewise, in McFarland, the defendant argued that
the trial court had erred by refusing to allow defense
counsel to question a witness fully regarding any favorable
treatment by the State so as to demonstrate the witness's
possible bias in testifying for the State.
McFarland, 707 So.2d at 176 (¶ 32). The Court
recognized that defense counsel may have had a colorable
argument that he should have been permitted to question the
witness regarding any favorable treatment by the State.
Id. at 176 (¶ 33). However, the defense failed
to make a proffer at trial or demonstrate on appeal or at
trial that the witness was subject to prosecution for the
alleged criminal conduct. Id. at 176-77 (¶ 33).
The Court held that any error was not properly preserved for
review because the defendant failed at trial to make a
proffer or even argue that the witness received favorable
treatment from the State. Id. at 177 (¶ 34).
In Hall v. State, 476 So.2d 26, 27 (Miss. 1985), the
defendant Johnny Hall was indicted for armed robbery and
sought to question a coindicted defendant (Dennis Smart) and
a witness (Elizabeth Hughes) about the separate, unrelated
criminal charges pending against both of them at the time of
the defendant's trial. The trial court forbade
questioning Smart and Hughes about their pending charges.
Id. at 27. The Court examined Mississippi Code
Section 13-1-13, the controlling evidentiary statute at the
time, which provided that "[a]ny witness may be examined
touching his interest in the cause or his conviction of any
crime." Id. at 27-28. The Court recognized that
such questioning has been allowed for purposes of showing
motivation to testify. Id. at 28 (citing Rouse
v. State, 65 So. 501 (Miss. 1914); Perry v.
State, 64 So. 466 (Miss. 1914)). The Court rejected the
State's argument that the existence of an immunity or
leniency agreement had not been definitely established.
Id. at 28. The Court held:
The circumstances of this case strongly support the admission
of such evidence. The state relied heavily on the testimony
of Smart and Hughes. Smart and Hughes were brother and
sister, and may have colluded. Smart was charged with the
same crime as Hall. Both Smart and Hughes had criminal
charges pending against them at the time of the trial.
Although there was no evidence of a bargain, they might well
have believed that their testimony in Hall's case could
somehow affect the disposition of their own. It would be
naive to suppose that the absence of a formal agreement with
the prosecution precluded such an expectation. Smart and
Hughes had an "interest in the cause" (to use the
statutory language), and fuller inquiry into it should have
been allowed. We believe that the trial judge's decision
on this point prevented Hall from presenting his defense
effectively, and thus deprived him of a fair trial.
Accordingly, this case must be reversed and remanded for a
Hall, 476 So.2d at 28.
The State argues that, unlike Suan and
McFarland, where the witnesses had not been
prosecuted, the State actually pursued charges against Lee.
However, Suan and McFarland lend support to
Ambrose's position because Lee may have been subject to
probation revocation proceedings for a number of reasons, not
just his armed robbery arrest, as presumed by the trial
court. Although the jury heard that Lee chose to be a witness
rather than a defendant in the present case, Ambrose's
chief argument is that it did not hear that Lee also had an
additional reason to be a witness, i.e.,
the possibility of probation revocation.
Aside from the obvious distinction that the evidentiary
statute controlled in Hall, the State argues that
Hall may be distinguished because Lee had no charges
pending at the time of Ambrose's trial. The State argues
that the jury could not have inferred that Lee was given
leniency in exchange for testimony because the State sought
revocation and presented the armed robbery case to the grand
jury. The State argues that the charges were "fully
resolved by the time Lee testified at Ambrose's
trial." As suggested by Ambrose, certain terms of his
revocation may have included his arrest or involvement in the
case sub judice or his association with alleged
convicted felon Dedeaux. At the time he was interviewed by
investigators, Lee certainly was subject to prosecution.
Moreover, the record shows that Lee continued to be subject
to prosecution through trial. The State admitted that Lee was
"still on non-adjudicated probation" at the motion
in limine hearing on June 11, 2015.
Here, Lee was a principal witness in the sense that he was an
eyewitness to nearly the entire sequence of events leading to
Trosclair's death on April 7, 2013. We explained in
The impeachment sought here, however, was not of that sort.
Here the defense sought to show that Eddie Grammer had been
involved in criminal activity but had not been prosecuted.
The point was that Grammer's neck was on the line if he
did not testify in a manner pleasing to the prosecution. This
Suan was entitled to show-or at least to attempt to show. The
Circuit Court erred when it refused to allow such
cross-examination. Because Grammer was the principal witness
for the State, and because so much of the prosecution's
case turned upon his credibility, the error is of reversible
Suan, 511 So.2d at 148.
In the same way, Lee's neck was on the line at the time
he was interviewed by police and through trial. Although
Lee's testimony was not necessary to finding Ambrose
guilty of capital murder beyond a reasonable doubt, as
further explained below, we hold that, under the heightened
scrutiny standard of review, the trial court erred by
excluding the evidence. By limiting Ambrose's cross
examination of Lee, the trial court denied Ambrose the
opportunity to fully challenge Lee's credibility.
Alternatively, the State argues that, even if the evidence
was admissible under Rule 616, it was properly excluded under
Rules 611(a) and 403. While the State may be correct that the
evidence may have been properly excluded under Rule 403, the
trial court did base its decision to exclude the evidence on
Rule 403. Here, the trial court erroneously concluded that
the evidence of bias was not relevant, as we have held that
similar testimony is probative of the witness's interest
or bias. See Anthony, 108 So.3d at 397-98
(¶¶ 5-7); McFarland, 707 So.2d at 176
(¶¶ 32-34); Suan, 511 So.2d at 147-48
(Miss. 1987); Hall, 476 So.2d at 27-28. We decline
to conduct a Rule 403 balancing analysis for the first time
The State argues that, even if cross-examination regarding
Lee's criminal past should have been permitted, the trial
court's exclusion of the evidence was harmless beyond a
reasonable doubt. Ambrose argues that, in light of his own
testimony, no overwhelming evidence of guilt exists to render
harmless the trial court's error in restricting the
impeachment of Lee.
"[E]ven errors involving a violation of an accused's
constitutional rights may be deemed harmless beyond a
reasonable doubt where the weight of the evidence against the
accused is overwhelming." Clark v. State, 891
So.2d 136, 142 (¶ 29) (Miss. 2004). "The
well-settled standard for determining whether a
constitutional error is harmless is whether it appears
'beyond a reasonable doubt that the error complained of
did not contribute to the verdict obtained.'"
Gillett v. State, 148 So.3d 260, 266 (Miss. 2014)
(quoting Chapman v. California, 386 U.S. 18, 23-24
(1967)). The constitutionally improper denial of a
defendant's opportunity to impeach a witness for bias,
like other Confrontation Clause errors, is subject to
harmless error analysis under Chapman. In
Clark, we explained:
The correct inquiry is whether, assuming that the damaging
potential of the cross-examination were fully realized, a
reviewing court might nonetheless say that the error was
harmless beyond a reasonable doubt. Whether such an error is
harmless in a particular case depends upon a host of factors,
all readily accessible to reviewing courts. These factors
include the importance of the witness'[s] testimony in
the prosecution's case, whether the testimony was
cumulative, the presence or absence of evidence corroborating
or contradicting the testimony of the witness on material
points, the extent of cross-examination otherwise permitted,
and, of course, the overall strength of the prosecution's
Clark, 891 So.2d at 142 (¶ 29) (quoting
Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)).
The State argues that it proved Ambrose was guilty beyond a
reasonable doubt without Lee's testimony. We agree.
Ambrose admitted to fighting Trosclair at the Hill, driving
him to Lawton's house, chasing down Trosclair, and
beating Trosclair again. At the Hill, Sims testified that she
saw Ambrose beating Trosclair, who was not fighting back.
Sims testified that she begged Ambrose to stop beating
Trosclair, but he refused. Sims also testified that Ambrose
instructed Stevie, Dedeaux, and Lee to put Trosclair in the
truck before they left. Sims testified that they complied
with Ambrose's instructions. Although Ambrose claimed
Trosclair did not go anywhere against his will, Ambrose
admitted telling Trosclair that, once he received his
speakers, he "wasn't going to mess with him
At Lawton's house, Lawton testified that he saw Trosclair
try to run away, but Stevie, Dedeaux, and Ambrose chased him
down. Lawton testified that they began beating Trosclair.
Lawton testified that Ambrose hit Trosclair with a fully
inflated tire with rim. Ambrose admitted that all of them
were beating Trosclair after they chased him down. Ambrose
also admitted that the reason everyone was beating Trosclair
was because Ambrose was angry about Trosclair breaking into
A passing motorist discovered an unconscious Trosclair on the
side of the road nearby. Trosclair had significant injuries
and was tied up with a ratchet tow strap. Without Lee's
testimony, Ambrose's guilt was proven beyond a reasonable
doubt. Thus, we conclude that the error excluding evidence of
Lee's criminal past was harmless beyond a reasonable
WHETHER THE SOLE FINDING BY THE JURY THAT AMBROSE
"CONTEMPLATED THAT LETHAL FORCE WOULD BE EMPLOYED"
UNDER MISSISSIPPI CODE SECTION 99-19-101(7) IS
Ambrose argues that his death sentence is invalid because, by
itself, the Section 99-19-101(7) sentence eligibility factor
found by the jury that Ambrose "contemplated that lethal
force would be employed" is constitutionally
insufficient under Enmund v. Florida, 458 U.S. 782
(1982), and Tison v. Arizona, 481 U.S. 137 (1987).
The State responds that the jury's sole finding that
Ambrose contemplated that lethal force would be employed
satisfies Section 99-19-101(7). The Court repeatedly has held
the finding to be constitutional.
In Enmund, the United States Supreme Court
concluded: "Because the Florida Supreme Court affirmed
the death penalty in this case in the absence of proof that
Enmund killed or attempted to kill, and regardless of whether
Enmund intended or contemplated that life would be taken, we
reverse the judgment upholding the death penalty and remand
for further proceedings not inconsistent with this
opinion." Enmund, 458 U.S. at 801.
"Following Enmund v. Florida, Mississippi
amended its capital sentencing scheme to require that a jury
must find that the defendant actually killed, attempted to
kill, intended that a killing take place, and/or contemplated
that lethal force would be employed in order to return and
impose a sentence of death. Ch. 429, Senate Bill No. 2699,
1983 General Laws of Mississippi." Dickerson v.
State, 175 So.3d 8, 32 (¶ 79) (Miss. 2015) (citing
Miss. Code Ann. § 99-19-101(7)).
In Tison, the Supreme Court held "that major
participation in the felony committed, combined with reckless
indifference to human life, is sufficient to satisfy the
Enmund culpability requirement." T
ison, 481 U.S. at 158. "In Tison, the
[Supreme] Court noted that Mississippi had modified the
capital murder sentencing scheme following
Enmund." Dickerson, 175 So.3d at 32
(¶ 79) (citing Tison, 481 U.S. at 152, n.4).
Section 99-19-101(7) provides:
(7) In order to return and impose a sentence of death the
jury must make a written finding of one or more of the
(a) The defendant actually killed;
(b) The defendant attempted to kill;
(c) The defendant intended that a killing take place;
(d) The defendant contemplated that lethal force would be
Miss. Code Ann. § 99-19-101 (Rev. 2015).
The jury was duly instructed in accordance with Section
99-19-101(7): "To return the death penalty in this case
you must first unanimously find from the evidence beyond a
reasonable doubt that one or more of the following facts
existed: 1. That the Defendant actually killed Robert
Trosclair; 2. That the Defendant attempted to kill Robert
Trosclair; 3. That the Defendant intended the killing of
Robert Trosclair take place; or, 4. That the Defendant
contemplated that lethal force would be employed."
Following the penalty phase of the trial, the jury returned
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.
That the Defendant contemplated that lethal force would be
we, the jury, unanimously find that the aggravating
1. The Capital offense was committed when the Defendant was
engaged in the commission of, or an attempt to commit, or
flight after committing or attempting to commit, a
2. The Capital offense was especially heinous, atrocious or
Exists beyond a reasonable doubt and is sufficient to impose
the death penalty and that there are insufficient mitigating
circumstances to outweigh the aggravating circumstances, and
we further find unanimously that the Defendant should suffer
We have held that the State must prove only one of the four
facts listed in Section 99-19-101(7). Stevens v.
State, 806 So.2d 1031, 1053 (¶ 99) (Miss. 2001).
Indeed, Section 99- 19-101(7) requires that only one of the
factors be found to support a death sentence. Id.
(citing Smith v. State, 729 So.2d 1191, 1218-19
(Miss. 1998); Bell v. State, 725 So.2d 836, 860-61
(Miss. 1998)). We also have held that "[i]n compliance
with Enmund, Section 99-19-101(7) of the Mississippi
Code requires the jury to find beyond a reasonable doubt at
least one of the four enumerated scienter factors before
imposing the death penalty." Ronk v. State, 172
So.3d 1112, 1145 (¶ 91) (Miss. 2015).
Recently, we addressed whether the scienter provisions of
Mississippi's capital sentencing scheme are
constitutional. In Evans v. State, 226 So.3d 1, 39
(¶ 106) (Miss. 2017), the capital murder defendant
argued that Section 99-19-101(7)(d), which requires that the
jury find the defendant contemplated that lethal force would
be employed, is an unconstitutional basis for a person
convicted of capital murder to be sentenced to death under
Enmund and Tison.
In Evans, we rejected the same constitutional
argument that Ambrose makes today and held that Section
99-19-101(7)(d)'s scienter provision was constitutional.
Evans, 226 So.3d at 39 (¶ 106). Likewise, in
Corrothers v. State, we held that Section
99-19-101(7)(d) was constitutional because the State must
prove only one of the four facts; it is not necessary that
the State prove intent where the victim actually was killed.
Corrothers, 148 So.3d at 322 (¶ 126).
As noted by the State, the Court repeatedly has held Section
99-19-107(7)(d) to be constitutional in capital cases.
See Evans v. State, 725 So.2d 613, 683-84
(¶¶ 311-316) (Miss. 1997) (holding that, in light
of Enmund and Tison, a critical review of
our capital sentencing scheme reveals no constitutional
infirmities); see also Ronk, 172 So.3d at 1145
(¶¶ 91-92); Cox v. State, 183 So.3d 36, 61
(¶ 91) (Miss. 2015); Batiste v. State, 121
So.3d 808, 871-72 (¶¶ 177-178) (Miss. 2013);
Knox v. State, 901 So.2d 1257, 1268 (¶¶
38-39) (Miss. 2005); Lockett v. State, 517 So.2d
1317, 1338 (Miss. 1987). Ambrose acknowledges that the Court
has declined to declare Section 99-19-101(7)(d)
unconstitutional on a number of occasions, but urges the
Court to revisit its prior holdings because the
constitutionality of a sentence with the sole finding that
the "defendant contemplated that lethal force would be
employed" has never been squarely before the Court.
Ambrose also quotes the Court in Dickerson:
"Under Enmund and Tison, a defendant
who participated in the commission of a felony, but did not
actually kill or intend to kill the victim, cannot receive
the death penalty." Dickerson, 175 So.3d at
31-32 (¶ 79). However, the Dickerson Court,
relying on Evans, confirmed that Section
99-19-101(7) was constitutional. Id. at 31-33
(¶¶ 78-79) (citing Evans, 725 So.2d at 683
(¶¶ 311-316)). ¶85. Ambrose also recognizes
that the Court has affirmed a death sentence in which the
trial court, sitting as the fact finder, made the sole
finding that the capital murder defendant had contemplated
that lethal force would be used. See Bishop v.
State, 812 So.2d 934, 937 (¶¶ 1) (Miss. 2002).
In addressing the sufficiency of the evidence on appeal, we
held, at a minimum, the defendant had contemplated that
lethal force would be used and had taken an active role in
the killing. See id. at 948-49 (¶¶ 48-52)
("A jury could have easily found that Bishop killed,
intended to kill, or at least contemplated that deadly force
would be used."). Although Ambrose does not raise a
sufficiency of the evidence argument, the evidence here was
sufficient to satisfy Enmund culpability, given
Ambrose's major participation of the kidnapping, combined
with reckless indifference to human life.
In support of Ambrose's argument, he relies on
Randall v. State, 806 So.2d 185, 232-234
(¶¶ 132-141) (Miss. 2001), in which the jury made
the sole finding that Armon Randall had contemplated that
lethal force would be employed. Relying on White v.
State, 532 So.2d 1207 (Miss. 1988), Randall argued that
the jury's sole finding allowed him to be sentenced to
death on nothing more than tort forseeability.
Randall, 806 So.2d at 232 (¶ 134). The
Randall Court quoted what the Court wrote in
We are less than certain of the precise difference between
Subsection (c), "the defendant intended that a killing
take place," and Subsection (d), "the defendant
contemplated that lethal force would be employed."
Subsection (c) has reference to the defendant's mental
purpose and design that someone's life be taken. But what
of Subsection (d)'s contemplation of lethal force? The
two surely are not synonymous, although
"contemplate" is one synonym for intend.
See Roget's International Thesaurus
§ 653.7 (4th ed. 1977). This alone excludes the notion
that Subsections (c) and (d) describe two mutually exclusive
categories of culpability.
Careful attention to the King's English, definitional and
grammatical, [led] to the view that Subsection (c) is
subsumed in Subsection (d), for we cannot imagine a case in
which a defendant intended that a killing take place but
somehow did not contemplate use of lethal force. In this
sense, Subsection (c)'s "intended that a killing
take place" is surplusage and may with profit be set
aside. But the converse is not necessarily so. One may
contemplate lethal force while stopping short of a definite
plan or design to kill. In a sense, Subsection (d) describes
a contingent intent. Where, as a part of pre-crime planning,
a defendant includes in his plans the substantial probability
that fatal force will be employed, Subsection (d) is
satisfied. On the other hand, mere tort foreseeability-an
objective, reasonable man approach-falls well short of what
the statute requires.
Randall, 806 So.2d at 232 (quoting White,
532 So.2d at 1220-21).
In Randall, the Court agreed with Randall's
argument "that because the jury found
'contemplation' alone, the language of White
required the jury to find that he had some sort of
'pre-crime,' 'contingent intent,' or plan
that establishes a mental state beyond mere foreseeability or
reckless indifference to human life." Id. at
233 (¶ 135). The Court held that "[b]ecause the
instruction failed to properly instruct the jury on the
mental state required, this instruction was erroneously
The Randall Court's reliance on White
was misplaced. First, the White Court was addressing
whether the evidence was legally insufficient to support a
sentence of death, not whether a sole Section 99-19-101(7)(d)
finding was constitutional. White, 532 So.2d at
1219-20. Second, the White Court unequivocally said:
"More precisely, this sentence of death may be upheld
only if we have before us a record which contains evidence
legally sufficient that the jury may have found that Willie
Lee White, Jr., killed, attempted to kill, intended that a
killing take place, or contemplated that lethal force
would be employed." Id. at 1219 (emphasis
Indeed, "only one of Subsection (7)'s facts must be
found." Id. at 1220. "More specifically,
there is no evidence that White made any attempt to kill
Lewis, or that he contemplated that lethal force would be
used." Id. at 1221 (emphasis added). The
White Court continued: "Because nothing in the
record legitimately suggests that White killed or
contemplated any physical harm to Lewis, the death verdict
dies." Id. at 1221. The Court concluded:
"In the present state of the record, we hold that the
evidence was legally insufficient to enable a rational trier
of fact to find beyond a reasonable doubt that Willie Lee
White, Jr., killed, attempted to kill, intended that a
killing take place, or contemplated that lethal force would
be employed." Id. at 1222.
To the extent that Randall, purportedly relying on
White, holds that a sole finding that a capital
defendant contemplated that lethal force would be employed is
insufficient, it is wrongly decided. White issues no
such holding; rather, White stands for the
proposition that a death verdict may be upheld if the legally
sufficient evidence supports a finding that the defendant
contemplated that lethal force would be used. Id. at
Even though Randall's reliance on White
is misplaced, Randall is distinguishable in some
significant ways. The State argues that Randall is
different because there was no evidence that Randall had
participated in the killing, and proof of his participation
in the underlying robbery appeared to be no more than his
possession of a gun and presence at the scene. See
Randall, 806 So.2d at 233-34 (¶¶ 136-141). The
State argues that the stark difference is Ambrose's level
of involvement in both the kidnapping and the killing. The
State also points out that in Randall, the Court
held that the evidence to support a finding that Randall
contemplated that lethal force would be employed was legally
insufficient, whereas here, Ambrose does not challenge the
legal sufficiency of the evidence on the jury's finding.
See id. at 234 (¶ 141) ("The mere
possession of a gun when there is no evidence that there was
a plan to kill, although sufficient under the felony-murder
statute, does not establish that there was a
"substantial probability that fatal force will be
The Court's decision in Abram v. State is
somewhat at odds with Randall. See Abram v.
State, 606 So.2d 1015, 1041-42 (Miss. 1992),
overruled on other grounds by Foster v. State, 961
So.2d 670 (Miss. 2007) (a jury's single statutory finding
under Section 99-19-101(7) that the capital defendant
contemplated that lethal force would be employed is adequate
if supported by sufficient evidence). In Abram, we
looked to the White Court for guidance and wrote:
In the federal context, there is little doubt that the
evidence here is sufficient to satisfy the Enmund
culpability requirement given Abram's "major
participation in the felony committed, combined with [the
supportable finding] of reckless indifference to human
life." Tison v. Arizona, 481 U.S. 137, 158, 107
S.Ct. 1676, 1688, 95 L.Ed.2d 127, 145 (1987).
However, as noted in Tison, and affirmed in
Minnick v. State, 551 So.2d 77, 98 (Miss.1988),
reversed on other grounds [by] 498 U.S.
146, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990), Mississippi by
statute requires more in the felony-murder scenario than
major participation and reckless indifference to the value of
human life. [Tison, ] 481 U.S. at 154, n.10, 107
S.Ct. at 1686, n.10, 95 L.Ed.2d at 142, n.10. And obviously,
"mere tort foreseeability-an objective, reasonable man
approach-falls well short of what the statute requires."
White v. State, 532 So.2d 1207, 1221 (Miss.1988).
Abram, 606 So.2d at 1041-42.
The Abram Court explained:
The circuit court was right to conclude that something more
than a "possibility" is required. But the [trial]
court went too far in the other direction when it concluded
that there are only three tests under Enmund, and
that under § 99-19-101(7), subsections (c) and (d) are
conjunctive. The court at times appeared to zero in on the
precise meaning of subsection (d) by restricting its
application to those killings which are a "necessary or
probable result of the initial felony." But the circuit
court ultimately applied a more restricted interpretation of
§ 99-19-101(7)(d) by requiring proof of actual intent to
kill, an interpretation which for all practical purposes
blurs any distinction between subsections (c) and (d) of
Abram, 606 So.2d at 1042.
The Abram Court noted that we have articulated at
least some difference between subsections (c) and (d).
Id. However, in Abram, we unequivocally
rejected the idea that "there must be proof in either
case of an actual intent or definite plan or design to
kill." Id. The Abram Court held that
the trial court erred in its interpretation and application
of Section 99-19-101(7)(d) to the facts of the case because
the jury's finding that Abram contemplated the use of
lethal force was within the permissible range of law and
evidence. Id. at 1043. However, the Court cautioned
that, on remand, absent new admissible evidence sufficiently
implicating Abram, a finding under Section 99-19-101(70(d)
would not be justified. Id. Thus, although the
Abram Court's decision addressed the sufficiency
of the evidence, it properly held that a sole finding under
Section 99-19-101(7)(d) would be justified if supported by
sufficient evidence. Id.
Again, Ambrose does not challenge the sufficiency of the
evidence. To the extent he does, the argument is without
merit. For the foregoing reasons, we reaffirm the well
settled principle that a sole finding under Section
99-19-101(7)(d) is constitutional.
WHETHER THE TRIAL COURT ERRED IN THE SEATING OR
REMOVAL OF CERTAIN JURORS.
Ambrose argues that the trial court reversibly erred by (1)
seating Juror Gary Garner, an admittedly biased juror who
served in both phases of trial; (2) and improperly removed
Juror Jeffrey Jenkins, an unbiased juror, and replaced him
with an alternate at the conclusion of the penalty phase
Juror Gary Garner
During voir dire, the trial court asked whether any jurors or
their family members currently or have been in the past
connected with law enforcement. Eleven potential jurors
answered in the affirmative, including Garner. The entire
exchange between Garner and the trial court is set out below:
THE COURT: Mr. Garner?
MR. GARNER: Yes.
THE COURT: There you are.
MR. GARNER: My son is a supervisor with Biloxi PD.
THE COURT: Is he now?
MR. GARNER: Now, yes, Sir.
THE COURT: Okay. You've got a real close connection with
law enforcement. Does he discuss cases with you and his job?
MR. GARNER: There are some things that he and I discuss as
his pastor that we have discussed, and there are situations
that I am aware of that he is involved in, yes.
THE COURT: Okay. Would the fact that you take an interest in
his job, and he is active in law enforcement at this time,
would that cause you maybe to lean toward the law enforcement
side of this case?
MR. GARNER: Yes, sir. I'm actively involved in his life,
not his work.
THE COURT: Not his work, okay. Good. Thank you.
MR. GARNER: Yes, sir.
Ambrose did not follow up with Garner on the issue of bias.
Garner was accepted by Ambrose without a challenge for cause
or exercising a peremptory strike and was seated on the jury.
Ambrose argues that Garner's response to the question
asking whether he would maybe lean toward the law enforcement
side of the case was an admission that he was biased. Ambrose
relies on Brown v. State, 164 So.3d 1046 (Miss. Ct.
App. 2014), in support of his argument. Ambrose's
reliance on Brown is misplaced for two reasons.
First, the bias was unequivocal because the juror stated
"it would be hard to be impartial." Brown,
164 So.3d at 1048 (¶¶ 3-4). Second, the issue was
addressed within the context of a claim for constitutional
ineffective assistance of counsel for failing to challenge
the allegedly biased juror. Id. at 1051 (¶ 12).
Ambrose urges the Court to review the issue for plain error
because his fundamental right to a fair trial by an impartial
jury has been violated. "As a rule, the Supreme Court
only addresses issues on plain error review when the error of
the trial court has impacted upon a fundamental right of the
defendant." Dora v. State, 986 So.2d 917, 924
(¶ 17) (Miss. 2008). "The right to a fair trial by
an impartial jury is fundamental and essential to our form of
government. It is a right guaranteed by both the federal and
state constitutions." Carr v. State, 655 So.2d
824, 840 (Miss. 1995). "Plain-error review is properly
utilized for 'correcting obvious instances of injustice
or misapplied law.'" Armstead v. State, 196
So.3d 913, 916 (¶ 11) (Miss. 2016). "To determine
if plain error has occurred, we must determine if the trial
court has deviated from a legal rule, whether the error is
plain, clear or obvious, and whether the error has prejudiced
the outcome of the trial. Id.
In Archer v. State, 986 So.2d 951, 958 (¶ 27)
(Miss. 2008), the Court, without discussing whether plain
error review was employed, addressed the defendant's
argument that a juror should have been removed by the trial
court sua sponte during voir dire due to the
juror's relationship with the victim and her circumstance
as a victim herself. First, the Court held that the issue was
procedurally barred by the failure to object to the potential
juror's competence to sit before the jury was empaneled.
Id. at 958 (¶ 28). Next, the Court held that in
limited circumstances, the Court will set aside the
procedural bar and reverse when it is clear that a juror
disqualified under Mississippi Code Section 13-5-67 was not
removed before the jury retired to consider its verdict.
Id. The Court went on to address the substantive
arguments advanced by the defendant, holding that the
defendant's claim was without merit and the trial court
did not err by not sua sponte removing the juror.
Id. at 959 (¶ 959).
In Archer, we also held that "[a] party who
chooses not to challenge a juror peremptorily when he has
unused challenges may not thereafter seek to put the trial
court in error because the court declined to permit the juror
to be challenged for cause." Archer, 986 So.2d
at 957-58 (¶ 26); see also Hansen v. State, 592
So.2d 114, 129 (Miss. 1991). "To hold otherwise would
allow the defendant to invite error and later take advantage
of it on appeal." Archer, 986 So.2d at 957-58
(¶ 26) (citing Hansen, 592 So.2d 129-30).
Here, we decline to employ plain error review because Ambrose
had used only four peremptory strikes at the time Garner was
tendered and Ambrose accepted him. At the conclusion of jury
selection, Ambrose had four unused peremptory challenges.
Thus, the trial court's failure to remove Garner does not
constitute reversible error under the well settled rule that
a party who chooses not to challenge a juror peremptorily
when he has unused challenges may not thereafter seek to put
the trial court in error because the court declined to permit
the juror to be challenged for cause. Archer, 986
So.2d at 957 (¶ 26).
Even assuming that Garner's response may be construed as
demonstrating bias, the Eighth Circuit Court of
Appeals has addressed a nearly identical
scenario with the same procedural posture. In United
States v. Johnson, 688 F.3d 494, 500-01 (8th Cir. 2012),
the Court was faced with the issue of whether "whether
the empaneling of Juror S.R., who admitted there 'might
be a possibility' she would find law enforcement officers
more credible than other witnesses, violated Johnson's
Sixth Amendment right to be tried by an impartial
jury[.]" The Court of Appeals declined to employ plain
error review on appeal when reviewing a scenario in which the
defendant failed to object to the seating of a juror during
voir dire when the basis for the objection was then known.
Id. at 500. The Court of Appeals wrote that the
"failure to object at the time the jury is empaneled
operates as a conclusive waiver if the basis of the objection
is known or might have been known or discovered through the
exercise of reasonable diligence." Id. at 501.
The reasoning for the rule is simple: "if a defendant is
allowed to forego challenges for-cause to a biased juror and
then allowed to have the conviction reversed on appeal
because of that juror's service, that would be equivalent
to allowing the defendant to plant an error and grow a
risk-free trial." Id. at 501-02.
Here, on appeal, Ambrose argues that Garner was biased based
solely on his response when asked if his relationship with
his policeman son would cause him to "maybe lean toward
the law enforcement side of this case." Undoubtedly, the
basis for the objection that Ambrose now advances was known
during voir dire. We follow the guidance of the Court of
Appeals in Johnson and decline to employ plain error
review. Ambrose waived his right to challenge the seating of
allegedly biased Juror Garner by not challenging him during
voir dire, because the basis for the objection was then
known. See Johnson, 688 F.3d at 500 (holding that by
failing to object to the seating of the allegedly biased
juror during voir dire, the defendant intentionally
relinquished or abandoned a known right).
As to the merits, the State argues that it is "painfully
obvious" that Garner's substantive answer to the
question of whether his relationship would cause him to lean
toward the law enforcement side of the case was
"no" even though he led in with "yes,
sir." The State also argues that the trial court's
followup statement, "Not his work, okay. Good. Thank
you[, ]" confirms that the trial court understood Garner
to be answering the question in the negative. Furthermore,
the State points out how Garner responded to the trial
court's follow up statement with "Yes, sir,"
which was not an actual response to a question. The State
argues that the record demonstrates that neither the trial
court nor Ambrose perceived Garner's response as
demonstrating bias. The State's interpretation of the
record is persuasive, and thus, we cannot say that evidence
of bias is plain and obvious, based on a reading of the
entire exchange in context.
Juror Jeffrey Jenkins
Ambrose argues that the trial court reversibly erred at the
conclusion of the penalty phase evidence when it removed
Juror Jeffrey Jenkins, who asserted his lack of bias, and
then compounded the error by replacing him with an alternate
rather than granting a mistrial. During jury selection,
Jenkins responded that he knew Ambrose's uncle, Mark
Turner. The exchange was as follows:
MR. JENKINS: Yes, sir. In reference, when she was mentioning
Mark Turner, I also know him by Pastor Turner, but I know
THE COURT: I see. Okay, would the fact that your pastor is
going to testify in this case cause you to automatically lean
toward the side that he testifies for?
MR. JENKINS: He is not my pastor, your Honor. No, sir. His
nephew and me were real good friends when we were young.
THE COURT: Okay. Would that have any effect on you?
MR. JENKINS: No, sir. When she mentioned that I was like that
is the same pastor. I just want to be truthful. That's
Jenkins ultimately was seated on the jury without a challenge
for cause lodged by the State or Ambrose. Jenkins remained on
the jury through the culpability phase of trial, returned a
guilty verdict, and heard the testimony presented during the
penalty phase. During the penalty phase, Ambrose called
several family members and friends to testify on his behalf.
During a recess following the conclusion of the mitigation
witnesses' testimony, but before the jury was instructed,
a juror submitted a note disclosing his personal relationship
with Ambrose's family. The note read: "I cannot sit
on the penalty phase of the trial due to my personal
relationship with the defendant's family. Jeffrey
Jenkins." Ambrose suggested to the trial court that
counsel "should voir dire him, find out what his
relationship is, and it may be that it doesn't amount to
anything." Then Ambrose moved for a mistrial on the
basis that the juror had misinformed the trial court and he
should not have been on the jury at all. The trial court
brought in Jenkins and allowed voir dire. Jenkins gave the
Q. Mr. Jenkins, you sent out a note stating that you could
not sit in on the punishment phase of this trial because
you're related to someone. Is that true?
A. No, my personal relationship is with the defendant's
father's side of the family.
Q. Personal relationship with the defendant's
father's side of the family?
Q. Are you talking about Willie Dedeaux or Mark Turner?
A. Mark Turner.
Q. Okay. Do you know the defendant?
A. After the testimony, I knew him when he was a young child.
Because when I first were in the Jury pool when you asked did
anybody know Mark Jackson-not Mark Jackson, Mark Turner, I
raised my hand, said I knew him as Pastor Turner. I'm
good friends with his nephew. So I didn't realize until
the penalty phase when they came up and mentioned Luke Turner
I realized at that time that at the time when his father was
killed I was staying -- I was still good friends with his
cousins Sam and Jonathan. And I remember Rahim as a young
child when he came through. I say he was around two or three,
you know, so many years ago, he would come by and visit his
Q. So at the time that we were doing the voir dire when you
were sitting out front and we were picking Jurors -
A. Yes, sir.
Q. -- you didn't realize that you were related to Rahim
in some way?
A. I'm not related to him. I didn't realize who
Rahim's father was. Rahim's father's last name is
Turner. When you asked did I know Mark Turner, I raised my
hand, said yes, I do know Mark Turner. But I didn't
realize until we came up to the penalty phase and they
mentioned that his father was Luke Turner, at that time
I'm like, I know Luke. And when Mark came up and I
realized that they were brothers, because at the time when
you was asking the jury pool, you never asked was Mark and
Luke brothers. If you would have said that, I would have said
Q. You knew Luke Turner, Junior?
A. I knew Luke, too.
Q. How old are you?
A. I'm 44.
Q. Okay. Well, you were very young when you knew Luke Turner,
senior, weren't you?
A. I was very young. But as I stated, I was good friends with
his - which is the defendant's cousin, would be with
Jonathan, Rahim and Sam Turner. And I'm still good
friends with them today. But I was very young, yes, but I
happened to be, if he was two, I happened to be twelve at
Q. Well, do you think you can't be fair and impartial in
A. In the penalty phase?
Q. Yeah -
A. I don't feel comfortable. I can be fair and impartial,
as I stated. I still stand by my original verdict. But as far
as what the penalty phase, I just wanted to make it be known
and be truthful that I knew the family. And, you know, I have
been with my Jurors for the last three or four days, and I
just wanted to be truthful to the court to say, hey, I know
Mark Turner. I knew the defendant as he came along. But, your
Honor, I didn't want to be, like, I was hiding some type
of secret, because I don't feel comfortable sitting in
there, and I got this background, unfair background to say I
know this man. So I just wanted to be honest. As I stated,
when I did in the beginning, I just wanted to be honest, say,
hey, I know him. I don't want it to come back either way,
because if I didn't make this be known, you know, to me
it gives the defendant an unfair advantage because I got a
personal relationship with Mark, Ms. Bernice, Jonathan, Sam,
Sherrell. I know the whole family. Like I said, your Honor,
we stay -
Q. You didn't recognize the name Rahim?
A. No. I knew a lot of -- I know a lot of different people
A. No, I don't know Ambrose. Like I said, I know a lot of
different people with Masonic names, because his cousin
Wajida, they got Masonic names. I didn't recognize Rahim.
I haven't seen him since he was two.
Q. Well, you don't think you could be fair and impartial
in deciding what his punishment should be?
A. I mean, yeah, I can be fair and impartial. But as my note
said, I didn't feel comfortable going into that situation
without advising the court and the judge and things like
that. I didn't feel comfortable to go in that situation
with my jurors to keep this secret that I knew the defendant,
and I knew Mark. I mean, you can ask me history about the
family, I know it.
Q. Have you discussed this with any jurors?
A. No. So none of the other Jurors know about this?
A. I mean, I discussed with them that I was coming out
because of my personal relationship. And I told the foreman
that I need to write a note advising the jury that I know the
defendant. I don't know the defendant, but I know the
defendant's immediate family.
Q. So you told the other jury members about that, at least
some of them?
A. Yeah. I wrote the note. They knew why I was coming out,
Q. You say they, who are you talking about?
A. I mean, we were all in the room. They knew the reason why
I was stepping out because I wrote the note.
Q. The other thirteen people in there know why you're in
A. Yes, sir.
The trial court then heard arguments for and against the
grant of a mistrial. Ambrose's counsel spoke to the
concern about Jenkins's possible influence on the other
jurors and what Jenkins may have told the other jurors about
Ambrose's family. The trial court asked what prejudice
Ambrose would suffer if the juror was removed. Ambrose's
counsel responded that "We don't know. We don't
have any firm information one way or the other regarding this
man. Quite frankly, part of our team thinks he is a positive
influence. And others are uncertain, and you know it's
one of those deals." The trial court denied the motion
for a mistrial and then heard from counsel whether Jenkins
should be removed and replaced with an alternate.
The State argued that Jenkins should be removed because he
had indicated that his personal relationship with
Ambrose's family would give Ambrose an unfair advantage.
Ambrose's counsel responded, "I can't deny what
he said, your Honor. He did, in fact, say that. I would like
to see him stay on the jury." The trial court determined
that, based on the note and Jenkins's testimony that
continuing to serve would be an unfair advantage to Ambrose,
Jenkins should be removed from the jury. Jenkins was removed
and replaced with the first alternate Juror Glen Turner.
The standard of review for the denial of a mistrial is abuse
of discretion. Hutto v. State, 227 So.3d 963, 984
(¶ 66) (Miss. 2017). "A trial judge need declare a
mistrial only when there is an error in the proceedings
resulting in substantial and irreparable prejudice to the
defendant's case." Id. Ambrose argues that
the Court should employ a de novo standard of review
because the denial of the mistrial violated the Constitution.
This Court disagrees with Ambrose's proposed standard of
review because neither case cited by Ambrose employs a de
novo standard of review to the present scenario. As
discussed more fully below, the Court addressed a nearly
identical issue recently and held that the trial court's
decision to dismiss a juror for good cause and substitute an
alternate is reviewed for an abuse of discretion. See
Evans, 226 So.3d at 25 (¶ 55). Moreover, the Court
held that a defendant must show actual prejudice from the
exclusion and substitution. Id. Thus, we review the
trial court's decision for an abuse of discretion.
Ambrose abandons the exact grounds for a mistrial he
initially made to the trial court, i.e., Jenkins may
have improperly influenced the jury. To the extent that
Ambrose reurges the argument, the trial court did not abuse
its discretion in denying the motion for the mistrial based
on Jenkins's testimony and as evidenced by Ambrose's
counsel's uncertain response to the trial court's
inquiry as to what prejudice Ambrose would suffer if Jenkins
was removed from the jury.
In Ambrose's motion for a new trial or, alternatively,
for acquittal notwithstanding the verdict, Ambrose argued
that the trial court had erred by removing Jenkins and
replacing him with the first alternate juror in violation of
Mississippi Code Section 13-5-67. On appeal, Ambrose advances
the same argument he advanced in his post trial motion.
Section 13-5-67 provides, in relevant part: "An
alternate juror who does not replace a regular juror shall be
discharged at the time the jury retires to consider its
verdict." Miss. Code Ann. § 13-5-67 (Rev.
2012). Ambrose argues that, under the plain
language of the statute, Turner should have been discharged
and should not have been available to replace Jenkins.
Ambrose argues that once deliberations have commenced, no
replacement of a juror with an alternate is permitted. In
support, Ambrose relies on Balfour v. State, 598
So.2d 731, 754 (Miss. 1992) (holding that it was error for
the trial court to excuse a juror after the jury had retired
to deliberate a sentencing verdict), and Folk v.
State, 576 So.2d 1243, 1251-52 (Miss. 1991) (holding the
trial court erred by substituting an alternate juror after
the alternate juror had been dismissed from jury service and
after the jury had been in deliberations for almost two
Ambrose contends that, for purposes of a death penalty case
governed by Mississippi Code Section 99-19-101(1), the
discharge of alternates occurs when the jury retires to
deliberate guilt during the culpability phase. ¶118.
Section 99-19-101(1) provides, in part:
(1) Upon conviction or adjudication of guilt of a defendant
of capital murder or other capital offense, the court shall
conduct a separate sentencing proceeding to determine whether
the defendant should be sentenced to death, life imprisonment
without eligibility for parole, or life imprisonment. The
proceeding shall be conducted by the trial judge before the
trial jury as soon as practicable. If, through impossibility
or inability, the trial jury is unable to reconvene for a
hearing on the issue of penalty, having determined the guilt
of the accused, the trial judge may summon a jury to
determine the issue of the imposition of the penalty.
Miss. Code Ann. § 99-19-101 (Rev. 2015).
Ambrose argues that the statute mandates that the trial jury
hears the sentencing phase, and if through impossibility or
inability the trial jury is unable to reconvene, the only
statutory solution available is to summon a jury to act.
Ambrose argues that the Court narrowly construes the capital
sentencing statutes. See Bell v. State, 160 So.3d
188 (Miss. 2015). Ambrose argues that a mistrial is the only
option if a juror cannot continue serving once guilt
deliberations commence, since a unanimous twelve person jury
is required to return a valid verdict under Mississippi's
Constitution, caselaw, and the Uniform Rules of County and
Circuit Court Practice in effect at the time. Ambrose also
argues that the failure to grant a mistrial violated his
Fourteenth Amendment right due to "state procedural
shortcomings" affecting his "substantial and
Alternatively, Ambrose argues that the trial court abused its
discretion by removing and replacing Juror Jenkins because
there was no evidence Jenkins was unable to continue to
perform his duties for any reason, including bias. Ambrose
argues that the record was "devoid of evidence"
that Jenkins had "lied under oath or withheld
information" and he had assured that he was capable of
being a fair and impartial juror. Ambrose argues that the
trial court has "no license to remove jurors and replace
them with alternates willy nilly." Jenkins was not
removed "willy nilly;" rather, the note and
Jenkins's own testimony provided good cause to remove him
from the jury. See Shaw v. State, 540 So.2d 26, 28
(Miss. 1989) (holding that the dismissal of a juror for good
cause and his replacement with an alternate is within the
sound discretion of the trial judge).
The State argues that Ambrose is procedurally barred because
an objection on one ground waives all other grounds on
appeal. See Rubenstein v. State, 941 So.2d 735, 760
(¶87) (Miss. 2006)). Although Ambrose did not raise the
statutory argument at trial, he raised the argument in his
post trial motion. "On numerous occasions, th[e] Court,
has held that an objection on one ground waives remaining
grounds for purposes of appeal and that the failure to raise
an issue in the trial court requires this Court to impose a
procedural bar on appeal. Notwithstanding [an
appellant's] failure to raise [a] specific ground before
the trial court, th[e] Court may, alternatively, consider the
merits of the argument." Evans, 725 So.2d at
638 (¶ 48).
After Ambrose filed his initial brief, the Court handed down
Evans v. State, 226 So.3d 1, 24-25 (¶¶
53-55) (Miss. 2017), addressing the precise argument Ambrose
now advances. In Evans, the capital murder defendant
Timothy Evans argued that his state and federal rights to a
fair trial by a qualified jury and the state constitutional
and statutory guarantees of jury sentencing in death penalty
cases were violated by the departure of Juror Tanya Ladner
and the seating of an alternate juror, Larry Lind, during the
sentencing phase. Id. at 24 (¶ 53).
After guilt phase deliberations, but prior to the sentencing
phase, Juror Ladner was excused upon learning that her son
had suffered an injury requiring emergency surgery.
Id. Alternate Juror Lind had heard all the evidence
as an alternate, but had not participated in guilt phase
deliberations. Id. The trial court replaced Ladner
with Alternate Juror Lind, who joined the jury and
participated in the sentencing phase deliberations.
On appeal, Evans argued that the seating of Juror Lind
violated Section 99-19-101(1). Id. at 24-25
(¶¶ 54-55). The Court recognized Section 13-5-67 is
applicable to capital and noncapital cases. Id. at
24-25 (¶ 55). The Court wrote that "[s]ubstitution
of an alternate juror is proper if done before the jury
retires for deliberations." Id. (citing
Folk, 576 So.2d at 1251). The Court also wrote that
a "substitution of an alternate during jury
deliberations is improper." Evans, 226 So.3d at
25 (citing Folk, 576 So.2d at 1252;
Balfour, 598 So.2d at 753).
The Evans Court reviewed the trial court's
decision to dismiss a juror for good cause and substitute an
alternate for an abuse of discretion. Evans, 226
So.3d at 25. The Court wrote that the defendant must show
actual prejudice from the exclusion and substitution.
Id. The Evans Court held:
Considering the fact that Section 13-5-67 allows the
substitution of alternate jurors in capital cases, the trial
court's substitution of Lind at the sentencing phase did
not violate Section 99-19-101. Rather than discharging the
alternate jurors after the guilt phase ended, the trial court
permitted them to remain through the sentencing phase in case
substitution was necessary. As an alternate juror, Lind did
not participate in deliberations with the twelve-member
panel, which undoubtedly would have been improper. See
Luster v. State, 515 So.2d 1177, 1180 (Miss. 1987).
However, when the trial court dismissed Tanya Ladner, the
trial court substituted Lind for the sentencing-phase jury
trial and deliberations, leaving the jury composed of twelve
jurors who had heard all of the evidence presented. A purpose
of selecting alternate jurors is so they are available to
"fill the gap created by some contingency."
Walls v. State, 371 So.2d 411, 413 (Miss. 1979). We
discern no error.
Evans, 226 So.3d at 25 (¶ 56).
In Ambrose's reply brief, he argues that Evans
was wrongly decided and urges the Court to revisit the
holding. We decline to disturb the holding. According to the
reasoning in Evans, the trial court did not violate
Sections 99-19-101(1) and 13-5-67 by replacing Juror Jenkins
with Alternate Juror Turner after the culpability phase had
concluded, but before the penalty phase deliberations had
begun. We follow the guidance of Evans and hold that
the trial court did not abuse its discretion by removing
Juror Jenkins and replacing him with Alternate Juror Turner,
who had heard all of the evidence presented.
We likewise reject Ambrose's alternative argument that
Jenkins's removal was improper because he had testified
that he could remain fair and impartial. The trial court did
not abuse its discretion by removing Juror Jenkins for good
cause based on the note and Jenkins's testimony that in
his own estimate, remaining on the jury would give Ambrose an
"unfair advantage," an admission also acknowledged
by Ambrose's counsel at trial. See
Shaw, 540 So.2d at 28. Finally, Ambrose also fails
to show any actual prejudice by the trial court's ruling
on the motion for a mistrial or on the removal and
replacement of the juror. See Hutto, 227 So.3d at
984 (¶ 66); Evans, 226 So.3d at 25 (¶ 55).
PROCESS WAS CONSTITUTIONALLY INFIRM.
First, Ambrose argues that, in violation of Morgan v.
Illinois, 504 U.S. 719 (1992), the trial court denied
his request that the trial court excuse or, at minimum, allow
individual voir dire of venire members whose general voir
dire responses suggested they were disqualified in their
ability to consider imposition of a sentence other than
death. Second, Ambrose argues that in violation of
Witherspoon v. Illinois, 391 U.S. 510 (1968), and
Wainwright v. Witt, 469 U.S. 412, 424 (1985), the
trial court unconstitutionally excused three jurors who had
scruples against the death penalty. Third, and alternatively,
Ambrose argues that any death qualification whatsoever is
Individual Voir Dire
Ambrose argues that the trial court erroneously refused
individual voir dire of all prospective jurors who indicated
in general voir dire that they would impose a death sentence
only on the basis of having found the defendant guilty.
"The Constitution . . . does not dictate a catechism for
voir dire, but only that the defendant be afforded an
impartial jury. Even so, part of the guarantee of a
defendant's right to an impartial jury is an adequate
voir dire to identify unqualified jurors."
Morgan, 504 U.S. at 729. "Voir dire plays a
critical function in assuring the criminal defendant that his
constitutional right to an impartial jury will be honored.
Id. The trial court's responsibility to remove
prospective jurors who will not be able to follow the trial
court's instructions impartially and evaluate the
evidence cannot be fulfilled without an adequate voir dire.
Id. at 729-30.
"In general, voir dire is presumed sufficient to ensure
a fair and impartial jury. To overcome the presumption, a
party must present evidence indicating that the jury was not
fair and was partial and must show that prejudice resulted
from the circuit court's handling of voir dire."
Keller v. State, 138 So.3d 817, 843 (¶ 47)
(Miss. 2014). "Voir dire of a jury is conducted under
the supervision of the court, and a great deal must, of
necessity, be left to its sound discretion."
Pitchford v. State, 45 So.3d 216, 229 (¶ 43)
(Miss. 2010). Likewise, whether to allow individual
sequestered jury voir dire is within the discretion of the
trial court. Stevens v. State, 806 So.2d 1031, 1055
(¶ 112) (Miss. 2001). As such, the standard of review in
examining the conduct of voir dire is abuse of discretion.
Howell v. State, 860 So.2d 704, 727 (¶ 75)
(Miss. 2003). An"abuse of discretion will only be found
where a defendant shows clear prejudice resulting from undue
lack of constraint on the prosecution or undue constraint of
the defense." Id.
"Morgan provides that a 'juror who will
automatically vote for the death penalty in every case will
fail in good faith to consider the evidence of aggravating
and mitigating circumstances as the instructions require him
to do.'" Batiste v. State, 121 So.3d 808,
851 (¶ 95) (Miss. 2013) (quoting Morgan, 504
U.S. at 729). "Indeed, because such a juror has already
formed an opinion on the merits, the presence or absence of
either aggravating or mitigating circumstances is entirely
irrelevant to such a juror." Keller, 138 So.3d
at 846 (¶ 60) (citing Morgan, 504 U.S. at 729).
"Based on the requirement of impartiality embodied in
the Due Process Clause of the Fourteenth Amendment, a capital
defendant may challenge for cause any prospective juror who
maintains such views. If even one such juror is empaneled and
the death sentence is imposed, the State is disentitled to
execute the sentence." Batiste, 121 So.3d at
851 (¶ 95) (quoting Morgan, 504 U.S. at 729).
During voir dire, Ambrose's counsel posed two questions
with respect to voting for the death penalty. First,
Ambrose's counsel asked:
So let me ask you this, I want you to assume some facts. I
want you to assume that there's some evidence been
presented and it's proven beyond a reasonable doubt in
your mind that these facts exist, that the defendant killed
someone, he intended to kill him, he didn't have any good
cause to kill him, it wasn't in self-defense, he
wasn't insane, there was nothing wrong with him, he just
did it. If that were the case, how many of you would vote to
impose the death penalty, raise your cards?
Forty-six members of the venire responded to the question in
the affirmative. After recording the members of the venire
who had responded affirmatively, Ambrose's counsel posed
a follow-up question:
Now, I asked you that question, and I, didn't mention
anything about mitigating circumstances, did I? Mitigating
circumstances are factors in the background, record and life
of the defendant if he is found guilty of capital murder.
Those things are admissible to tell the jury a little bit
about the defendant, give you some idea of what kind of
person he is, and to also let you understand that he is a
human being and that what you're trying to do, what
you're determining is whether this person is -- this
human being is so much of an offense to the community of
other human beings that we have to eliminate him, we have to
get rid of him. Would you at least consider the mitigating
circumstances? Those of you who would -- you don't care
about mitigating circumstances, you don't care what kind
of life he's had, what kind of problems he's had,
what kind of things that have developed and molded him into
the person that he is, you don't care about any of that.
If that's true, raise your card, if you don't care.
Of the forty-six potential jurors who had answered the first
question affirmatively, nine answered the follow-up question
affirmatively. Ambrose's counsel recorded the nine
potential jurors' numbers. After a brief follow up, the
trial court called for a recess to allow for individual voir
dire. The potential jurors who indicated that they had
conscientious scruples against the death penalty were
identified and the following exchange occurred:
MR. RISHEL [Defense]: Yes, sir. I would like to bring back
everybody that said they would automatically vote against the
death penalty after they -
THE COURT: Is that would automatically vote -
MR. RISHEL: Yes, sir. You asked them if they would
automatically vote for the death penalty, and they all sit
there nobody says anything. But when you say you have
actually convicted this guy of capital murder, would you vote
for the death penalty. So they are, in fact, automatically
voting. If the guy is found guilty of capital murder,
they're going to vote for the death penalty. That's
as automatic as it gets.
MR. SMITH [State]: I agree if you're talking about the
nine that after you explained your question to them, and the
ones when you said I didn't mention mitigating factors,
who would not at least consider mitigating factors. Those
nine are the ones automatic death. I assume that's who
you're talking about, not the 75 that raised their card
the first time.
MR. RISHEL: Well, I would argue that they are automatic death
people. That they're going to automatically vote for the
death penalty if they -
THE COURT: Well, the problem with that is that you didn't
explain to them the procedures, the mitigating factors and --
all they were asked if they would just automatically vote
against the death penalty. So I agree with Mr. Smith, ...