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Ambrose v. State

Supreme Court of Mississippi, En Banc

August 2, 2018

ABDUR RAHIM AMBROSE a/k/a ABDUR AMBROSE
v.
STATE OF MISSISSIPPI

          DATE OF JUDGMENT: 06/19/2015

          HARRISON COUNTY CIRCUIT COURT HON. ROGER T. CLARK TRIAL JUDGE.

          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

          COLEMAN, JUSTICE.

         ¶1. 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.[1] 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 verbatim:

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 JU[]RORS, 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 ERROR.
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 PHASE.
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.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         Events at "the Hill"

         ¶2. 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 the Hill.

         ¶3. 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, [2] 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.

         ¶4. 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.

         ¶5. 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.

         ¶6. 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.[3] 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 truck.

         ¶7. 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.

         Events at Fire Tower Road

         ¶8. 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.

         ¶9. 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.

         ¶10. 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 no Terry."

         ¶11. 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."

         ¶12. 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 the key.

         ¶13. 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.

         ¶14. 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.

         ¶15. 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 the ground.

         ¶16. 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.[4] 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.

         ¶17. 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 bushes.

         Discovery and Investigation

         ¶18. 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 Trosclair's body.

         ¶19. 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.

         ¶20. 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.

         ¶21. 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.

         ¶22. 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."

         ¶23. 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.

         ¶24. 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 found.

         ¶25. 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.

         Ambrose's Version of Events

         ¶26. 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.

         ¶27. 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.

         ¶28. 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."

         ¶30. 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]."

         ¶31. 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."

         ¶32. 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.[5]

         ¶33. 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 Lawton's house.

         ¶34. 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.

         ¶35. 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.

         ¶36. 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 capital murder.

         The Verdict

         ¶37. 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.

         ¶38. 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.

         ¶39. 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.

         STANDARD OF REVIEW

         ¶40. 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.

         DISCUSSION

         I. WHETHER THE TRIAL COURT ERRED BY EXCLUDING EVIDENCE OF DEMETRIUS LEE'S PRIOR NONADJUDICATED BURGLARY AND ARMED ROBBERY ARREST.

         ¶41. 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.

         A. Motion in Limine and Proffer

         ¶42. 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.[6] Also, on April 10, 2013, Lee was arrested for armed robbery, which ultimately was no true billed by a grand jury.

         ¶43. 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.

         ¶44. 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.[7] Ambrose claimed that at the time Lee was interviewed by investigators, he was facing twenty-five years for the burglary nonadjudication.[8] 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."[9] The trial court granted the State's motion based on Mississippi Rule of Evidence 609.

         ¶45. 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.

         ¶46. 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.

         ¶47. 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[10] 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."

         ¶48. 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.

         ¶49. 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 counsel.

         B. Applicable Law and Analysis

         ¶50. 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).

         ¶51. "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.

         ¶52. "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 omitted).

         ¶53. 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 (¶ 6).

         ¶54. At the time of trial, [11] 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 401[12]provided: "'Relevant 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[13] 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.

         ¶55. 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).

         ¶56. 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.

         ¶57. 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.

         ¶58. 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).

         ¶59. 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 testimony.

         ¶60. 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.

         ¶61. 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 credibility. Id.

         ¶62. 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).

         ¶63. 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 new trial.

Hall, 476 So.2d at 28.

         ¶64. 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.

         ¶65. 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.

         ¶66. 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 Suan:

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 proportions.

Suan, 511 So.2d at 148.

         ¶67. 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.

         ¶68. 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 on appeal.

         C. Harmless Error

         ¶69. 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.

         ¶70. "[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 case.

Clark, 891 So.2d at 142 (¶ 29) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)).

         ¶71. 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 anymore."

         ¶72. 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 his car.

         ¶73. 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 doubt.

         II. 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 CONSTITUTIONALLY SUFFICIENT.

         ¶74. 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.

         ¶75. 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)).

         ¶76. 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).

         ¶77. 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 following:
(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 employed.

Miss. Code Ann. § 99-19-101 (Rev. 2015).

         ¶78. 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."

         ¶79. Following the penalty phase of the trial, the jury returned the verdict:

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.
Section A:
That the Defendant contemplated that lethal force would be employed.

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

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 Kidnapping.
2. The Capital offense was especially heinous, atrocious or cruel.
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 death.

         ¶80. 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).

         ¶81. 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.

         ¶82. 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).

         ¶83. 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.

         ¶84. 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.

         ¶86. 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 White:

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).

         ¶87. 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 given." Id.

         ¶88. 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 added).

         ¶89. 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.

         ¶90. 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 1221.

         ¶91. 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 employed.").

         ¶92. 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.

         ¶93. 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 § 99-19-101(7).

Abram, 606 So.2d at 1042.

         ¶94. 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.

         ¶95. 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.

         III. WHETHER THE TRIAL COURT ERRED IN THE SEATING OR REMOVAL OF CERTAIN JURORS.

         ¶96. 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 evidence.

         A. Juror Gary Garner

         ¶97. 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.

         ¶98. 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.

         ¶99. 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).

         ¶100. 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.

         ¶101. 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).

         ¶102. 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).

         ¶103. 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).

         ¶104. Even assuming that Garner's response may be construed as demonstrating bias, the Eighth Circuit Court of Appeals[14] 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.

         ¶105. 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).

         ¶106. 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.

         B. Juror Jeffrey Jenkins

         ¶107. 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 him.
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 all.

         ¶108. 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.

         ¶109. 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 following testimony:

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?
A. Yes.
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 grandmother.
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 yes, sir.
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 that time.
Q. Well, do you think you can't be fair and impartial in this?
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 with
Q. Ambrose?
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, yes.
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 here now?
A. Yes, sir.

         ¶110. 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.

         ¶111. 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.

         ¶112. 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.

         ¶113. 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.

         ¶114. 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.

         ¶115. 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.

         ¶116. 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).[15] 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 hours).

         ¶117. 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).

         ¶119. 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 legitimate expectation[s]."

         ¶120. 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).

         ¶121. 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).

         ¶122. 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).

         ¶123. 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. Id.

         ¶124. 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).

         ¶125. 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).

         ¶126. 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.

         ¶127. 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).

         IV. WHETHER THE JURY SELECTION PROCESS WAS CONSTITUTIONALLY INFIRM.

         ¶128. 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 unconstitutional.

         A. Individual Voir Dire

         ¶129. 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.

         ¶130. "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.

         ¶131. "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.

         ¶132. "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).

         ¶133. 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?

         ¶134. 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.

         ¶135. 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[16] 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, ...

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