Anthony Doss v. State of Mississippi
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 93-DP-00509-SCT
ANTHONY JOE DOSS
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
03/30/93
HON. JAMES C. SUMNER
GRENADA COUNTY CIRCUIT COURT
H. LEE BAILEY
OFFICE OF THE ATTORNEY GENERAL
BY: MARVIN L. WHITE, JR.
DOUG EVANS
CRIMINAL - DEATH PENALTY (DIRECT
APPEAL)
AFFIRMED - 5/23/96
6/6/96
12/22/97
EN BANC.
ROBERTS, JUSTICE, FOR THE COURT:
INTRODUCTION
¶1. The case before the Court today involves the capital murder conviction of Anthony Joe Doss
(hereinafter Doss) for the killing of Robert C. "Bert" Bell. Both the conviction and sentence were
appealed by Doss. However, after thoroughly reviewing the record, Doss has failed to present any
plain errors, or cumulative near errors to disturb his conviction and sentence. Accordingly, based
upon the analysis infra, affirmance of both the conviction and the sentence are warranted and
required by this Court.
STATEMENT OF THE CASE
¶2. The procedural history of this case began with the capital murder indictment of Anthony Joe Doss
on July 19, 1991, in Grenada County, Mississippi for killing Robert C. "Bert" Bell with malice
aforethought while engaged in the commission of the crime of armed robbery in violation of Miss.
Code Ann. Section 97-3-19(2)(e). Doss's trial was held in the Circuit Court of Grenada County,
Mississippi on March 29, 1993. Doss was ultimately convicted and sentenced to death.
¶3. After hearing arguments and reviewing evidence during the sentencing phase of the trial, the jury's
verdict of death was as follows:
"We, the jury, unanimously find beyond a reasonable doubt that the following facts existed at
the time of the commission of the capital murder:
(3) That the defendant, Anthony Doss, intended the killing of Robert C. "Bert" Bell take place
&
(4) That the defendant, Anthony Doss, contemplated that lethal force would be employed
during the commission of the crime of armed robbery."
"We, the jury, unanimously find that the aggravating circumstance(s) of:
1. The defendant, Anthony Doss, was previously convicted of another capital offense or of a
felony involving the use or threat of violence to the person.(1)
2. The capital murder of Robert C. "Bert" Bell was committed while the defendant was engaged
or was an accomplice in the commission of armed robbery.
3. The capital murder of Robert C. "Bert" Bell was committed for the purpose of avoiding or
preventing a lawful arrest.
[said circumstances] are 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, Anthony Doss, should suffer death.(2)
¶4. Doss's post-verdict motions for a J.N.O.V. and a new trial were denied on April 2, 1993. Doss
now appeals the conviction and the sentence. Naturally aggrieved to being sentenced to death, Doss
appeals to this Court requesting review of the following twenty-four issues.
GUILT PHASE ISSUES
I. ANTHONY DOSS WAS ENTITLED TO A LESSER INCLUDED OFFENSE
INSTRUCTION UNDER THE FEDERAL AND STATE CONSTITUTIONS AND
MISSISSIPPI LAW.
II. JURY INSTRUCTIONS NO.S-3 AND NO.S-4 AT THE GUILT PHASE RELIEVED
THE STATE OF THE BURDEN OF PROVING ALL THE ELEMENTS OF THE
CRIME WITH WHICH ANTHONY DOSS WAS CHARGED, THEREBY VIOLATING
THE UNITED STATES AND MISSISSIPPI CONSTITUTIONS AND MISSISSIPPI
LAW.
A. INSTRUCTION NO.S-3
B. INSTRUCTION NO.S-4
C. ACCOMPLICE LIABILITY
III. DURING THE SELECTION OF THE JURY THE TRIAL COURT
IMPERMISSIBLY INSTRUCTED THE JURY THAT A VALID STATUTORY
MITIGATING FACTOR IS IRRELEVANT AND IMMATERIAL, IN VIOLATION OF
MISSISSIPPI LAW AND THE UNITED STATES AND MISSISSIPPI
CONSTITUTIONS.
IV. THE TRIAL COURT, IN VIOLATION OF DOSS'S RIGHTS UNDER THE
UNITED STATES AND MISSISSIPPI CONSTITUTIONS, DISCOURAGED
POTENTIAL JURORS FROM DISCLOSING ANY PERSONAL RACIAL BIAS.
V. BECAUSE OF LEADING QUESTIONS BY THE TRIAL JUDGE DURING THE
SELECTION, DOSS'S RIGHTS UNDER THE UNITED STATES AND MISSISSIPPI
CONSTITUTIONS AND MISSISSIPPI LAW WERE VIOLATED.
VI. THE TRIAL COURT ERRED IN EXCUSING JURORS LUMAS AND MOORE
FOR CAUSE IN VIOLATION OF MISSISSIPPI LAW AND THE UNITED STATES
AND MISSISSIPPI CONSTITUTIONS.
VII. THE TRIAL COURT ERRED IN FAILING TO EXCUSE FOR CAUSE JUROR
SUSAN HONEYCUTT, IN VIOLATION OF MISSISSIPPI LAW AND THE UNITED
STATES AND MISSISSIPPI CONSTITUTIONS.
VIII. THE ADMISSION OF TEN GRUESOME PHOTOGRAPHS OF THE
DECEASED VIOLATED RULE 403 OF THE MISSISSIPPI RULES OF EVIDENCE
AND THE STATE AND FEDERAL CONSTITUTIONS.
IX. THE TRIAL COURT ERRED IN GIVING INSTRUCTION S-1 AT THE GUILT
PHASE WHICH CONSTRUCTIVELY AMENDED THE INDICTMENT BY FAILING
TO REQUIRE THAT THE JURY FIND THAT THE KILLING BE DONE WITH
MALICE AFORETHOUGHT WHERE THE INDICTMENT CHARGED KILLING
WITH MALICE AFORETHOUGHT, VIOLATING THE FEDERAL AND STATE
CONSTITUTIONS AND STATE LAW.
X. THE TRIAL COURT ERRED IN ALLOWING THE STATEMENT OF ANTHONY
DOSS INTO EVIDENCE, IN VIOLATION OF THE UNITED STATES AND
MISSISSIPPI CONSTITUTIONS AND MISSISSIPPI LAW.
XI. THE TRIAL COURT ERRED IN NOT REDACTING FROM THE TRANSCRIPT
OF THE TAPED CONFESSION THE PORTION DEALING WITH OTHER CRIMES
OF ANTHONY DOSS, IN VIOLATION OF DOSS'S RIGHTS UNDER THE FEDERAL
AND STATE CONSTITUTIONS AND STATE LAW.
SENTENCING PHASE ISSUES
XII. THE TRIAL COURT VIOLATED THE UNITED STATES AND MISSISSIPPI
CONSTITUTIONS AND MISSISSIPPI LAW IN SUBMITTING THE "AVOIDING
ARREST" AGGRAVATING CIRCUMSTANCE TO THE JURY.
XIII. THE TRIAL COURT ERRED IN SUBMITTING TO THE JURY THE
ROBBERY-MURDER AGGRAVATING CIRCUMSTANCE IN VIOLATION OF THE
UNITED STATES CONSTITUTION AND STATE LAW.
XIV. THE TRIAL COURT ERRED IN SUBMITTING TO THE JURY THE
AGGRAVATING CIRCUMSTANCE THAT DOSS HAD BEEN CONVICTED OF
ANOTHER CAPITAL OFFENSE, IN VIOLATION OF DOSS'S RIGHTS UNDER THE
UNITED STATES CONSTITUTION AND MISSISSIPPI LAW.
XV. IN NOT FULLY INFORMING THE JURY OF DOSS'S SENTENCE OF
IMPRISONMENT IMPOSED BY THE STATE OF TENNESSEE AND THE
RAMIFICATIONS OF A LIFE SENTENCE IN THIS CASE, THE TRIAL COURT
VIOLATED DOSS'S RIGHTS UNDER THE FEDERAL AND STATE
CONSTITUTIONS AND MISSISSIPPI LAW.
XVI. THE TRIAL COURT'S ANTI-SYMPATHY INSTRUCTION COUPLED WITH
DENIAL OF A MERCY INSTRUCTION VIOLATED THE UNITED STATES AND
MISSISSIPPI CONSTITUTIONS AND MISSISSIPPI LAW.
XVII. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S INSTRUCTION DS4 TELLING THE JURORS THAT THEY NEED NOT BE UNANIMOUS IN FINDING
MITIGATING CIRCUMSTANCES AND ALSO IN IMPROPERLY INSTRUCTING
THEM THAT THEY HAD TO BE UNANIMOUS BEFORE THEY COULD FIND A
MITIGATING CIRCUMSTANCE.
XVIII. THE TRIAL COURT ERRED IN INSTRUCTING THE JURY AT THE
SENTENCING THAT IT COULD CONSIDER "THE DETAILED CIRCUMSTANCES
OF THE OFFENSE."
XIX. THE TRIAL COURT ERRED IN INSTRUCTING THE JURY THAT IN ORDER
TO RETURN A SENTENCE OF LIFE IMPRISONMENT IT HAD TO FIND THAT
THE MITIGATING FACTORS OUTWEIGH THE AGGRAVATING
CIRCUMSTANCES.
XX. THE TRIAL COURT ERRED IN SUBMITTING TO THE JURY IN THE
SENTENCING PHASE OF THE TRIAL THE FORM OF THE VERDICT AS
CONTAINED IN SENTENCING INSTRUCTION C-1.
XXI. THE FINDINGS BY THE JURY AT THE SENTENCING PHASE WERE TOO
UNCERTAIN AND UNRELIABLE TO SUPPORT THE SENTENCE OF DEATH,
VIOLATING DOSS'S RIGHTS UNDER THE UNITED STATES AND MISSISSIPPI
CONSTITUTIONS AND MISSISSIPPI LAW.
XXII. THE IMPROPER CLOSING ARGUMENT BY THE PROSECUTOR
VIOLATED ANTHONY DOSS'S RIGHTS UNDER THE UNITED STATES AND
MISSISSIPPI CONSTITUTIONS AND MISSISSIPPI LAW.
XXIII. THE DEATH PENALTY IS DISPROPORTIONATE PUNISHMENT HERE
GIVEN THE CIRCUMSTANCES OF THE CRIME.
XXIV. THE AGGREGATE ERROR IN THIS CASE REQUIRES REVERSAL OF THE
CONVICTION AND DEATH SENTENCE.
STATEMENT OF THE FACTS
¶5. The facts of this case began on May 6, 1991, outside a small grocery store, Sparks Stop-N-Shop
(hereinafter Sparks), on Cadaretta Road in rural Grenada County, Mississippi. Anthony Joe Doss
(Doss), Robert McKinney James (hereinafter James), Frank Coffey (hereinafter Coffey), and Freddie
Bell (hereinafter Freddie)(3) were sitting outside Sparks grocery store at a picnic table when the
events giving rise to the subsequent murder began to unfold.(4)
¶6. James testified that a few minutes before the scene at the picnic table occurred, that they all went
into Sparks and bought some beer and potato chips.(5) They subsequently consumed the products
together outside Sparks when the crimes began to develop. According to James, Freddie spoke to the
group and stated that he needed some money to get to Memphis. Doss was the only one who
responded and stated that he was waiting for his sister to bring him a check so that he could go to
Chicago. Freddie, according to James, Coffey and Doss, responded that he could not wait and that he
needed money immediately. Therefore, according to all three of the other persons present, Freddie
asked the group to join him in robbing Sparks.
¶7. James and Coffey testified that they immediately told Freddie that they did not want anything to
do with robbing Sparks and would not join Freddie's plan. James and Coffey testified that Freddie
then pulled out two guns to be used in the robbery and gave one to Doss who accepted it.
Furthermore, according to James, Freddie told Doss before they entered Sparks that they should "go
in shooting" to complete the robbery effectively.
¶8. James testified that he did not hear Doss say anything in response to Freddie's statement that they
should "go in shooting." Coffey testified that when Freddie gave Doss the gun, Doss stated, "Let's
go. Let's go do it." Doss admits that he was given a .25 caliber gun outside the store by Freddie to
facilitate the robbery. Doss testified that (1) he knew that specific gun would not fire,(6) (2) that he
did not agree to hurt anyone, and (3) that he was forced at gunpoint by Freddie to be involved.(7)
Nevertheless, Doss admitted that he went into the store to rob it.
¶9. Once Freddie and Doss each had a gun and apparently had agreed to rob Sparks, James and
Coffey left them for Coffey's home nearby. According to Coffey and James, Doss and Freddie
entered the store and a few seconds later they heard gun shots coming from Sparks. James and
Coffey also heard the store clerk, "Bert" Bell hollering as the shots were fired. (8)
¶10. Exactly what happened during the commission of the robbery can naturally only be explained by
the robbers and Bell. Unfortunately, Bell is dead, Freddie did not testify, and Doss's stories change
over the course of time.(9) However, once the shooting ceased, Freddie and Doss ran from the store
and headed up the same road that James and Coffey were on, where Doss and Freddie met them.
James testified that Doss was given the .25 caliber gun before entering Sparks and that after the
robbery Freddie had the original .22, as well as the .38 which was taken from Sparks. According to
Coffey, Doss then said that he shot Bell in the neck and that it caused him to "hung lower" because
he had "emptied his gun into" Bell. Coffey testified that Freddie also admitted to shooting Bell, but
did not offer any further comments. James also testified that Doss admitted to shooting Bell.
¶11. After Doss and Freddie admitted to shooting Bell, Freddie said that he needed to go to
Memphis. However, before they left for Memphis, Freddie allegedly threatened to kill James, stating
that he did not want any witnesses. James testified that Doss then stepped in and prevented Freddie
from killing James.(10) James and Coffey confirmed that Doss and Freddie had stolen a pistol, a box
of shells, and a gray money bag from Sparks. James also confirmed, as did Doss himself, that Doss
admitted to unsuccessfully trying to open up the cash register.
¶12. Subsequently, Freddie, Doss and Coffey got Bernard Gladney to pick them up and take them to
Memphis leaving James in Grenada County. Coffey testified that he remembered Freddie wanting to
go back to Grenada County to shoot James so that there were no witnesses and that Doss said that
he "was ready to do it" too. Doss denied suggesting to Freddie that they should go back and shoot
James. Freddie, Doss and Coffey were arrested in Memphis shortly thereafter.(11)
¶13. Coffey was arrested and gave a Statement on May 9, 1991, in the Memphis police department
about the events of the Sparks shooting as did Freddie and Doss. Coffey admitted on crossexamination that he was being charged with accessory to murder, but had not yet been to trial.
Naturally then, Coffey was cross-examined to portray him as a government witness simply testifying
to cut a deal.
¶14. Among some of the evidence used by the State in this case was a Statement made by Doss at the
Memphis police station to Grenada County criminal investigator Buster Grantham (hereinafter
Grantham) and Bruce Patridge. It was during this investigation by Grantham that Doss, after signing
a Miranda Rights form, Stated that Coffey was the person who shot Bell with the .38. However,
Doss subsequently admitted on cross-examination that his Statement about Coffey being involved
was a complete fabrication. Doss contends that the Statement he gave at trial was the "truth" and that
the Memphis Statement, which he admitted was riddled with lies, was given because he was "scared"
and "knew they wouldn't believe me."(12) Doss admitted saying to Coffey and James that he shot Bell,
but testified that that was a lie, as well, so that Freddie would not hurt him. Accordingly, it appears
that the jury found Doss lacking in credibility from his admitted initial attempt to shift the blame for
the murder to another in order to exonerate himself.
¶15. The State's physical evidence included, among other things, the store owner's, James Shelby
Sparks, testimony that a .38 caliber gun was taken from the store during the robbery which was
matched to guns recovered following the arrests of the suspects.(13) Additionally, the State had
ballistics matches between the bullets retrieved from Bell's body and the .38 caliber gun. The State
also introduced evidence from the Mississippi Crime Laboratory matching the fingerprints from the
coke box behind the counter with those of Doss.
DISCUSSION OF ISSUES
GUILT PHASE ISSUES
I. ANTHONY DOSS WAS ENTITLED TO A LESSER INCLUDED OFFENSE
INSTRUCTION UNDER THE FEDERAL AND STATE CONSTITUTIONS AND
MISSISSIPPI LAW.
¶16. This Court has "repeatedly held that the accused is entitled to have the jury instructed that it
may consider convicting him of a lesser offense only where there is in the record an evidentiary basis
therefor." McGowan v. State, 541 So. 2d 1027, 1028 (Miss. 1989); Lee v. State, 469 So. 2d 1225,
1230 (Miss. 1985). However, "[s]uch instructions should not be granted indiscriminately, nor on the
basis of pure speculation." McGowan v. State, 541 So. 2d 1027, 1028 (Miss. 1989); Mease v. State,
539 So. 2d 1324, 1329 (Miss. 1989). Also, "the accused is not entitled to the lesser offense
instruction where the evidence that proves the guilt of the lesser offense necessarily proves his guilt
of the principal charge." McGowan v. State, 541 So. 2d 1027, 1029 (Miss. 1989); Rowland v. State,
531 So. 2d 627, 631-32 (Miss. 1988).
¶17. As for this case however, the question under this issue is whether or not robbery is a lesserincluded offense to capital murder while using robbery as the underlying felony. Doss alleges that the
trial court erred because the jury was only given the choice of either convicting Doss of capital
murder for "unlawfully, willfully and feloniously killing Bert Bell . . . . while Doss was engaged in the
crime of armed robbery" or "acquittal."(14) Doss maintains that this Court in Abram v. State, 606 So.
2d 1015, 1035 (Miss. 1992) set forth that there should be "three plausible evidentiary" theories for
the jury to choose among. The additional theory, stated in dicta in Abram and omitted from
Instruction S-1, was that the jury also had the option to only convict Doss of armed robbery should
they find that he was completely unknowing as to any contemplated killings or completely unknowing
that lethal force would be used in the robbery.
¶18. Abrams did not involve a question of whether it was improper to exclude a mere armed robbery
instruction as one was given in Abram, but rather whether it was proper for the trial court to deny
Abram a simple malice aforethought murder instruction. Id. at 1035. The trial court, as did this
Court, found that the evidence did not warrant a simple malice aforethought murder instruction
because there was no evidence that Abram had the requisite specific intent to support the instruction.
Id. Therefore, this Court held that it was proper for the trial court to have refused the defense's
requested simple murder instruction. Id.
¶19. The State maintains that robbery is neither a lesser included offense nor a component to capital
murder, making this assignment of error without merit. Accordingly, the State contends that robbery
is not a lesser included offense as it is not a component of murder. Therefore, the denial of an
instruction regarding such does not constitute an error by the trial judge according to the State.
Based upon our case law, we agree.
¶20. This Court recently addressed essentially the identical argument in Ballenger v. State, 667 So.
2d 1242 (Miss. 1995). Ballenger Stated that the language from Abrams, which is quoted by Doss in
support of his argument that he was entitled to a pure robbery instruction alone in conjunction with
the other instructions, was mere dicta. Id. at 1254. The Ballenger court went further to state that the
principal in Cannaday v. State, 455 So. 2d 713, 724-25 (Miss. 1984), that the underlying felony in a
felony-murder case is not a lesser included offense, was not overruled by Abrams. Ballenger at
1254; Cf. Ross v. State, 603 So. 2d 857, 866 (Miss. 1992) and Hailey v. State, 537 So. 2d 411, 414
(Miss. 1988). Accordingly, the most recent restatement of the law in this State, regarding whether or
not the underlying felony in a felony-murder case is a lesser-included offense entitling the defendant
to a separate instruction, clearly states that a defendant is not entitled to such an instruction as the
language from previous cases used as the basis for such an argument has been held to be mere dicta.
Ballenger v. State, 667 So. 2d 1242, 1254 (Miss. 1995). Therefore, this issue is without merit.
II. JURY INSTRUCTIONS NO.S-3 AND NO.S-4 AT THE GUILT PHASE RELIEVED
THE State OF THE BURDEN OF PROVING ALL THE ELEMENTS OF THE CRIME
WITH WHICH ANTHONY DOSS WAS CHARGED, THEREBY VIOLATING THE
UNITED STATES AND MISSISSIPPI CONSTITUTIONS AND MISSISSIPPI LAW.
A. INSTRUCTION NO.S-3
B. INSTRUCTION NO.S-4
C. ACCOMPLICE LIABILITY
II A. Instruction No. S-3
¶21. Instruction No. S-3 which was given and alleged as error is as follows:
The Court instructs the jury that if two or more persons are engaged in the commission of a
felony, then the acts of each in the commission of such felony are binding upon all, and all are
equally responsible for the acts of each in the commission of such felony.
¶22. Doss alleges that the above instruction was erroneous because it could allow a reasonable juror
to conclude that the intent of Freddie Bell could be imputed to Doss since it lacked any aiding,
assisting or encouraging language for an accomplice. Therefore, Doss maintains that such an
instruction relieved the jury from having to also find that Doss had any such intent and because the
instruction did not define "engaged in the commission of a felony." According to Doss, to allow such
an instruction would permit "[D]oss to be convicted of capital murder without proof that he did or
intended to do anything."
¶23. The State's first defense to this assignment of error is that Doss is procedurally barred. Doss is
alleged as being barred because Doss objected at trial to the submission of both of these instructions
on the ground that they "[d]o not take into account the possibility of duress on the part of the
defendant." The State therefore argues, citing Conner v. State, 632 So. 2d 1239, 1255 (Miss. 1993),
that Doss's appellate attack of the instructions on the ground that they "relieved the State of the
burden of proving the element of intent" should be barred as it is different from that argued at trial.
¶24. Conner held that the defendant was procedurally barred from arguing a different ground on
appeal than that argued at trial. Conner v. State, 632 So. 2d 1239, 1255 (Miss. 1993). Citing
Stringer v. State, 279 So. 2d 156, 158 (Miss. 1973), the Conner Court stated that "[A]n objection
on one or more specific grounds constitutes a waiver of all other grounds." Id. Accordingly, the State
is correct in asserting the procedural bar on this issue as such is supported by the record.
¶25. The procedural bar aside, this Court's standard of review in looking at jury instructions was
stated in Hickombottom v. State, 409 So. 2d 1337, 1339 (Miss. 1982). The Hickombottom Court
stated:
In determining whether error lies in the granting or refusal of various instructions, the
instructions actually given must be read as a whole. When so read, if the instructions fairly
announce the law of the case and create no injustice, no reversible error will be found. Knight
v. State, 57 So. 2d 161 (Miss. 1952), and Norman v. State, 385 So. 2d 1298 (Miss. 1980).
Hickombottom v. State, 409 So. 2d 1337, 1339 (Miss. 1982).
¶26. Naturally then, the State contends that if the Court were to presume that an error was present in
the instruction, which it contends is not the case in light of Enmund v. Florida, 458 U.S. 782, 799
(1982), Mackbee v. State, 575 So. 2d 16, 34 (Miss. 1990) and Allman v. State, 571 So. 2d 244, 248
(Miss. 1990), that based upon our standard of review, the Court should nevertheless find that the jury
was properly instructed on the whole because the instruction was read in conjunction with instruction
S-1 and S-1-A. Doss contends in his reply brief that S-1 and S-1-A do not solve any deficiencies in S3 and S-4, but rather further confused the jury. This Court finds that the jury was properly instructed
and that the jury found the necessary Enmund factors which were based in fact sufficient to
determine Doss's culpability to warrant the guilt and sentence imposed upon him.
¶27. Doss additionally contends that this Court's holding in Hornburger v. State, 650 So. 2d 510,
514 (Miss. 1995), which found an instruction not requiring the State to prove that the defendant
committed all of the elements to be harmless error, is applicable, yet cannot be held as harmless error
in light of Hill v. State, 432 So. 2d 427, 446 (Miss. 1983) (Justice Robertson's concurring in part and
dissenting in part). ("What may be harmless error in a case with less at stake becomes reversible error
when the penalty is death." quoting Irving v. State, 361 So. 2d 1360, 1363 (Miss. 1978)).
¶28. The instruction in Hornburger is readily distinguishable from these instructions. The instruction
in Hornburger allowed the jury to find him guilty of burglary if it found that he had done any act
which was merely an element of burglary, without having to also find that he committed acts for all
elements of the crime. Hornburger v. State, 650 So. 2d at 514. The instructions in this case are not
analogous to the one held to be improper, yet harmless, in Hornburger.
¶29. This issue is procedurally barred and alternatively without merit.
II B. Instruction No. S-4
¶30. Instruction No. S-4 is alleged by Doss as being an erroneous instruction as well. It reads as
follows:
The Court instructs the jury that under the laws of the State of Mississippi anyone who aids,
assists and encourages in the commission of a crime is deemed a principle to that crime.
Therefore, if you find from the evidence in this case beyond a reasonable doubt that the
defendant, Anthony Doss, aided, assisted, and encouraged another in the felonious crime of
capital murder, then Anthony Doss is a principle to that crime.
¶31. Doss contends that this instruction was erroneous because it did not require that the
encouragement or aid of the accomplice be given at any particular time or place. Doss therefore
asserts that the vagueness of the instruction allowed the jury to convict him of capital murder if it
found that Doss offered encouragement to Bell either before or after the crime was committed even if
Doss did not participate in the robbery or the murder. Doss additionally contends that the instruction
allowed the jury to convict without having to find that Doss had the intent to commit the capital
murder.
¶32. This instruction is not specifically addressed in the State's brief. Rather, the State chose to
address all three subparts together, as opposed to individually. Instruction S-3 is alleged as being
void of defect because of Mackbee v. State, 575 So. 2d 16, 34 (Miss. 1990) and Allman v. State,
571 So. 2d 244, 248 (Miss. 1990), wherein the Court stated, respectively, that the term "without
authority of the law" properly instructed a jury on the element of felonious intent, and that
"feloniously" meant unlawfully with the intent to commit a felony-grade crime. Therefore, the State
asserts that Mackbee and Allman provide that the instructions were proper because they included the
requirement that the jury find that a felony or felonious crime occurred. We agree.
II. C. Accomplice Liability
¶33. Doss contends here that the jury was improperly instructed concerning accomplice liability under
the two aforementioned instructions because the jury was not required to find that Doss possessed
the mens rea or "community of intent" for the commission of the crime charged as required by
Welch v. State, 566 So. 2d 680, 685 (Miss. 1990).(15) Doss further asserts that said instructions were
mere "abstract statements of law" as prohibited by Kidd v. State, 258 So. 2d 423, 428 (Miss. 1972).
¶34. The State contends that Doss is procedurally barred from raising all three arguments under Issue
II. Conner v. State, 632 So. 2d 1239, 1255 (Miss. 1993) (an objection on one or more specific
grounds constitutes a waiver of all other grounds). The State asserts that Doss's appellate objection
to said instructions was waived because during trial the objection was because the instructions "do
not take into account the possibility of duress on the part of the defendant." Doss's failure to state the
'lack of intent' objection was thereby waived according to the State. Case law supports this position.
Alternately, this Court does not find that the jury was improperly instructed on the whole, rendering
this issue without merit.
III. DURING THE SELECTION OF THE JURY THE TRIAL COURT
IMPERMISSIBLY INSTRUCTED THE JURY THAT A VALID STATUTORY
MITIGATING FACTOR IS IRRELEVANT AND IMMATERIAL, IN VIOLATION OF
MISSISSIPPI LAW AND THE UNITED STATES AND MISSISSIPPI
CONSTITUTIONS.
¶35. Doss asserts here that the trial judge erred when he made the following comment during voir
dire:
BY MR. BAILEY: Is that it? All right. How many of you feel that age makes a difference as to
whether or not a person gets the death penalty? You can give it to a young person as well as
you could give it to an older person? Does anybody feel that it does make a difference?
BY A JUROR: You talking about an adult?
BY MR. BAILEY: I'm talking about someone that's around the age of 18 or 19 as opposed to
an older person up in the say 60's or 70's.
BY A JUROR: May I ask a question? Are you talking about someone that's able to be tried as
an adult?
BY MR. BAILEY: That's right. That's right.
BY A JUROR: What is the question, please?
BY MR. BAILEY: Does anybody --- would it make any difference to any of you the age of the
person? Could you give -- would you think twice about giving the death penalty to a person
who was young as opposed to a person who was middle-aged, or a person that was an older
person? Would age make any difference to any of you in giving the death penalty? Have I
confused all of you? Answer me.
BY THE COURT: I think that it just doesn't make any difference.
BY MR. BAILEY: Does it make any difference to any of you? If it makes a difference to any of
you, raise your hand. One hand. And sir your name?
BY JUROR JOE EDDIE LUMAS: Lumas.
¶36. Doss asserts that the above comment by the court was highly prejudicial, overrides Mississippi
law(16) and violates the requirements of the Eighth Amendment and Article 3, Section 28 of the
Mississippi Constitution. The comment by the judge is alleged by Doss as having made the jury
believe that a valid mitigating factor was irrelevant to their evaluation.
¶37. The State counters this argument by asserting that Doss is procedurally barred because a
contemporaneous objection was not made by Mr. Bailey. Foster v. State, 639 So. 2d 1263, 1270
(Miss. 1994). Ballenger v. State, 667 So. 2d 1242, 1251 (Miss. 1995) held that our familiar
contemporaneous objection rule does apply to jury selection procedures. See also, Cole v. State, 525
So. 2d 365, 369 (Miss. 1987). Likewise, this Court has held that the contemporaneous objection rule
also applies to comments by the trial judge. Foster v. State, 639 So. 2d 1263, 1286 (Miss. 1994);
See also, Cole v. State, 525 So. 2d 365, 369 (Miss. 1987). However, Doss replies that the
procedural bar and contemporaneous objection rule is inapplicable here as
The purpose of a contemporaneous objection is to give the trial judge the opportunity to
correct a trial error -- such as an improper argument by a prosecutor. Here, the trial judge
interrupted defense counsel to make his comment. Given that the trial judge had just made the
comment and obviously believed it to be correct, it would serve no purpose for defense counsel
to make an objection asking the trial judge to take back what he had just said.
¶38. However, we find that Doss is procedurally barred. The procedural bar aside, which is
supported by the record, the State asserts that the assigned error is meritless in light of the fact that
age was given as a mitigating factor during the sentencing phase.(17) Therefore, because jurors are
presumed to follow instructions, the judge's comment was rendered moot by the submission of the
jury instruction according to the State. Walker v. State, 473 So. 2d 435, 440 (Miss. 1985). We
agree. The submission of age as a mitigator was curative to any error that may have occurred from
the judge's comment. This issue is procedurally barred and alternatively, without merit.
IV. THE TRIAL COURT, IN VIOLATION OF DOSS'S RIGHTS UNDER THE
UNITED STATES AND MISSISSIPPI CONSTITUTIONS, DISCOURAGED
POTENTIAL JURORS FROM DISCLOSING ANY PERSONAL RACIAL BIAS.
¶39. Doss complains under this assignment of error that during voir dire the trial judge impermissibly
discouraged the jurors from disclosing any racial bias. The transcript reflects the following exchange
which is complained of by Doss under this alleged error:
BY THE COURT: . . . Members of the jury panel, I want to touch on something that is critical,
not just for me and not just for you, but for the State of Mississippi and this country. This is a
crime in which the defendant is black and the victim is white. . . . I would be naive if I did not
acknowledge that there is both a past and perhaps in someone's present, feelings that might
cause you to view the situation differently simply because the victim and the defendant in this
case are of different races. We certainly cannot have that here as a juror, and hopefully, the time
will come when that is never present in our daily lives; that we look at each individual for what
they are and make all of our decisions regarding that person, based upon that alone . . . In all
candor, is there any person here that would indicate to me -- and I know you're in a crowd, and
would not want to do that, but, certainly, you may speak to me in private if you have difficulty
with this -- is there anyone here who would judge this case any different simply because the
victim and the defendant in this case are of different races? I did not think so, and I do not think
that anyone will come back to me in private, and I commend you for that.
¶40. Doss asserts that the above statement by the trial court denied him his constitutional right to a
fair trial by an impartial jury in violation of Morgan v. Illinois, 112 S.Ct. 2222, 2229 (1992). Doss
concedes that the trial judge's inquiry was proper, yet contends that the effect was "completely
negated by the judge's statement discouraging the venire members from divulging such a prejudice."
The State asserts a procedural bar against Doss on this issue, which the record supports, as an
objection is nowhere to be found.
¶41. After reading the transcript in its entirety, it appears to this Court that the trial judge had the
best of intentions in trying to discover anyone on the venire that was not impartial, although the
manner in which the inquiry was done may have had a chilling effect.(18) Nevertheless, the record
reflects that there was no contemporaneous objection. We suggest today to the circuit judges of
Mississippi that such statements are not per se prejudicial, but recognize that they should avoid, if
possible, making these types of statements. Accordingly, this Court finds that this issue is
procedurally barred. Conner v. State, 632 So. 2d 1239, 1255 (Miss. 1993).
V. BECAUSE OF LEADING QUESTIONS BY THE TRIAL JUDGE DURING THE
SELECTION, DOSS'S RIGHTS UNDER THE UNITED STATES AND MISSISSIPPI
CONSTITUTIONS AND MISSISSIPPI LAW WERE VIOLATED.
¶42. Doss concedes that a trial judge is responsible for conducting a significant portion of the voir
dire, Hansen v. State, 592 So. 2d 114, 128 (Miss. 1991), but nevertheless asserts that the trial judge
asked improper leading questions which led to Doss having a jury lacking in impartiality. This form of
questioning allegedly violated his rights under the Sixth and Eighth Amendments to the United States
Constitution, Article 3, Sections 26, and 28 of the Mississippi Constitution and principles of
Mississippi law relating to voir dire. The examples given by Doss are the following:
1st E.g., (Trial Court is conducting voir dire of all jurors who indicated that they knew the
victim or any of his family members.)
BY THE COURT: Okay. Anyone else now? Then going back to the next row, starting with
Mr. Layton. Anyone? All right, perhaps ya'll should start standing now. Mrs. Lundy?
BY JUROR JUDY M. (MRS. MITCHELL) LUNDY: Yes, sir. I didn't know Robert but I have
known Bobby and Mabry (victim's grandparents) for years.
BY THE COURT: All right. Again, you've known them, as you would so many people in this
community, having lived here all your life. Would it pose any problem for you here today? Is it
a close, personal friendship, or simply to know who they are, and certainly be friends with them,
but would it pose any problem?
BY JUROR LUNDY: Friends, but not real close friends.
BY THE COURT: All right friends. You know who they are but you don't see each other
frequently. I take it you're telling me you could be fair and impartial, and that you would not
[be] [sic] affected by it.
BY JUROR LUNDY: No, sir.
BY THE COURT: You're saying you would not be affected.
BY JUROR LUNDY: I would not be.
BY THE COURT: Thank you very much. Going on down that row, was there another hand?
Yes ma'am.
¶43. The other alleged leading question by the trial judge concerning pre-trial publicity is as follows:
2nd E.g., (The judge here was asking jurors about what they had heard about the case.)
BY THE COURT: Thank you very much. There was a hand all the way in the back. Yes,
ma'am. Ms. Spence?
BY JUROR BARBARA ANN SPENCE: My daughter asked Gene Bell about it, and I don't
know anything about it, as far as the particulars or anything, but I have heard some statements
from Mr. Bell.
BY THE COURT: And, by Mr. Bell, you mean Bobby Bell?
BY JUROR SPENCE: Bobby Bell.
BY THE COURT: All right. Would that statement have been made in a social setting, or where
would that statement have been made?
BY JUROR SPENCE: Made in front of some people at the softball park.
BY THE COURT: Again, at a softball field. Now, that would have been in a larger group or
just overheard, or something like that. Now, would that in any way have affected you here
today?
BY JUROR SPENCE: Not as far as my judgment about it.
BY THE COURT: No. You have formed no opinion, having heard that. Is that correct, Ms.
Spence?
BY JUROR SPENCE: No, sir, I have not.
BY THE COURT: Thank you very much. All right, yes, Mr. Smith? Mr. Smith, excuse me, but
you may have already indicated your problem because of your relationship. Thank you. As a
pastor. All right. Anyone else, now? So, that would leave the rest of you having heard about
this from the street talk and people, and that sort of thing, as you work; something like that
somebody may have brought it up. I take it for those of you who raised your hand, there's
nothing about what you've heard about it -- and, of course, when it occurred you may have
heard a lot of talk. But, it's been about two years, so it certainly has died down. No one is
affected by that I take it. Is that correct? All right, no one in this panel, then, is affected by
anything that they have heard, seen or read about this event.
¶44. The State contends that this alleged error is without merit and procedurally barred. The record
does not reflect a contemporaneous objection by defense counsel. There is also no basis asserted by
the defense that it was prohibited from asking any questions to determine juror disqualifications.
Accordingly, the State is correct in its position that this alleged error is procedurally barred and
without merit. Foster v. State, 639 So. 2d 1263, 1301 (Miss. 1994); Moawad v. State, 531 So. 2d
632, 635 (Miss. 1988).
VI. THE TRIAL COURT ERRED IN EXCUSING JURORS LUMAS AND MOORE
FOR CAUSE IN VIOLATION OF MISSISSIPPI LAW AND THE UNITED STATES
AND MISSISSIPPI CONSTITUTIONS.
¶45. Next, Doss contends that the trial judge erred in excusing veniremen Lumas and Moore for
cause. The following is what transpired creating the alleged violation by the trial judge.
BY THE COURT: . . . . Mr. Lumas, is that your position, then? That no amount of evidence,
makes no difference if the law authorizes it, you would not be able to vote for that.
BY JUROR LUMAS: I'm not sure, Your Honor.
BY THE COURT: All right. Then you're uncertain as to whether or not if you were a juror how
you might be affected by that. Is that correct?
BY JUROR LUMAS: That is correct.
BY THE COURT: All right, thank you very much. . . . All right, the next row, starting with
Mrs. Eva Moore. Yes, Ms. Moore?
BY JUROR MOORE: I'm not sure.
BY THE COURT: You are unsure as to whether or not you could do that is that correct?
BY JUROR MOORE: Yes, sir.
BY THE COURT: Both of you would -- is -- your position, Ms. Moore, is like the gentlemen
before you there, that is, you are unsure as to whether or not, once you were a juror, you could
abide by my instructions, even though the law authorized it and the evidence warranted it, is
that correct?
BY JUROR MOORE: Yes, sir.
BY THE COURT: All right, thank you very much.
¶46. The record is a little unclear about what transpired once counsel for both parties and the judge
convened in chambers. Doss alleges that the trial judge excused jurors Lumas and Moore for cause
sue sponte without first receiving a request by either party as purportedly required by Rule 5.06 of
the Mississippi Uniform Criminal Rules of Circuit Court, now Rule 10.01, Jury Selection, of the
Uniform Circuit and County Court Rules. After reading the record in its entirety, it appears that the
judge proceeded with the State's submitted list followed by the defendant's list. The following is the
transcript of the in-chamber jury selection proceedings.
BY THE COURT: Gentlemen, these are the ones I have marked off for cause. . . .
BY MR. EVANS: You skipped 3, Judge.
BY THE COURT: . . . . #51, Lumas; . . . . #63, Moore; #64, Moore; #65, Moore;. . . . Any
more for cause from the State?
....
BY THE COURT: All right, from the defendant for cause?
BY MR. BAILEY: Let's see, judge.
¶47. As the record reflects, and as pointed out by the State, Doss never made a contemporaneous
objection to either Lumas or Moore on this basis.(19) Accordingly, there is a procedural bar against
Doss on this issue. Foster v. State, 639 So. 2d 1263, 1301 (Miss. 1994).
¶48. The procedural bar aside, the merits of the issue are argued as follows.(20) Doss asserts that the
judge's sue sponte actions amounted to error by "unilaterally announcing that the jurors were being
excluded" in violation of Rule 5.06 of the Mississippi Uniform Criminal Rules of Circuit Court.(21)
However, it appears that the State first submitted a list followed by the defense and that the trial
judge was not acting sue sponte, although the record is a little vague.(22)
¶49. Doss asserts that the uncertainty displayed by jurors Lumas and Moore was not sufficient to
arise to the level required for cause under Morgan v. Illinois, 112 S. Ct. 2222, 2231 (1992) and
Wainwright v. Witt, 469 U.S. 810, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). The State counters by
pointing to Fuselier v. State, 468 So. 2d 45, 53-55 (Miss. 1985), wherein this Court adopted the
proper test under Wainwright, and more recently reiterated it in Hansen v. State, 592 So. 2d 114,
128 (Miss. 1991). Hansen, in discussing the substantive parameters of Witherspoon v. Illinois, 391
U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), noted that [in discussing the removal of venire
members]
exclusion is permissible though the juror's opposition is less than unequivocal, her vote against
death less than automatic. The Court may exclude the juror where it
is left with the definite impression that a prospective juror would be unable to faithfully and
impartially apply the law. Wainwright v. Witt, 469 U.S. 412, 424-25, 105 S.Ct. 844, 852-53,
83 L.Ed.2d 841, 851-52 (1985); Pinkney v. State, 538 So. 2d at 345.
Hansen, 592 So. 2d at 128.
¶50. The State therefore contends that the trial judge in this case was "left with the definite
impression that a prospective juror [jurors Lumas and Moore] would be unable to faithfully and
impartially apply the law." The Court notes that the record reflects the absence of a contemporaneous
objection which is required by Cannaday v. State, 455 So. 2d 713, 718-19 (Miss. 1984) for
preservation of a Wainwright or Witt issue for appeal.
¶51. In sum, Doss is procedurally barred. Foster v. State, 639 So. 2d 1263, 1301 (Miss. 1994).
Furthermore however, the merits of the claim must be denied based upon Hansen .
VII. THE TRIAL COURT ERRED IN FAILING TO EXCUSE FOR CAUSE JUROR
SUSAN HONEYCUTT, IN VIOLATION OF MISSISSIPPI LAW AND THE UNITED
STATES AND MISSISSIPPI CONSTITUTIONS.
¶52. Doss alleges that the trial court's denial of his challenge for cause request against juror Susan
Honeycutt (hereinafter Honeycutt) constitutes reversible error because of her familial relationship
with the prosecuting assistant district attorney, Kevin Horan (hereinafter Horan). Honeycutt came
forward during voir dire when the court asked if anyone was related by blood or marriage to either
the defendant's counsel or the attorneys for the State. She told the court that her father and Horan's
mother were first cousins. When asked of her relationship with Horan, she responded that she had
not seen Horan since they were children. When asked if her relationship with Horan would "make any
difference or pose any problem," Honeycutt responded, "I don't know as it would."
¶53. Defense counsel, Horan, and the trial judge, subsequently met in chambers to conduct the
parties' challenges. The State tendered its list for cause. The defense then tendered its list of
challenges for cause which sought to strike Honeycutt. The defense's request was denied once the
trial judge discovered that Horan had not seen Honeycutt in the year and a half that he lived there,
finding that there was not a strong relationship which might interfere with Honeycutt's judgment.
¶54. Peremptories began and the defense used its twelfth peremptory on juror #44. Honeycutt was
juror #45. The defense did not ask for additional peremptories and eventually Honeycutt sat on
Doss's jury.
¶55. Doss asserts that Honeycutt's response to the question of whether her familial relationship with
Horan would affect her judgement "indicated a lack of impartiality and bias" in violation of Billiot v.
State, 454 So. 2d 445, 457 (Miss. 1984) and more recently Chase v. State, 645 So. 2d 829, 844
(Miss. 1994). The State asserts that such a response does not indicate bias or inability to be impartial.
Additionally, citing Mettetal v. State, 615 So. 2d 600, 603 (Miss. 1993), the State contends that
Doss has failed to illustrate the requirement that the defendant had an incompetent juror in his jury
because of an erroneous ruling by the trial judge in failing to strike a juror that should have been
stricken. See also, Chisolm v. State, 529 So. 2d 635, 639 (Miss. 1988).
¶56. With regard to the parties' arguments, this Court Stated in Woodward v. State, 533 So. 2d 418,
424 (Miss. 1988) that:
Generally, a juror removed on a challenge for cause is one against whom a cause for challenge
exists that would likely affect his competency or his impartiality at trial. Billiot v. State, 454
So.2d 445, 457 (Miss.1984). Under Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83
L.Ed.2d 841 (1985), the U.S. Supreme Court held that deference must be paid to the trial judge
who sees and hears the juror and that the trial judge's determination that a juror is biased will
not be reversed where it is supported by the record.
"It is well founded that the trial judge has the discretion to excuse potential jurors for cause if
the court believes the juror could not try the case impartially." Burt v. State, 493 So.2d 1325,
1327 (Miss.1986). This Court will not lightly interfere with a finding of fact made by the trial
judge in a criminal case, and it will reverse only when it is satisfied that the trial court has erred
in holding a juror competent, when this Court is clearly of the opinion that he was not a
competent juror. Dennis v. State, 91 Miss. 221, 44 So. 825 (1907). See also Norris v. State,
490 So.2d 839 (Miss.1986); Weaver v. State, 497 So.2d 1089, 1094 (Miss.1986) (a physical
disability, such as deafness, is sufficient to support a challenge for cause).
¶57. At best, Honeycutt had a distant relationship with Horan. She had not seen him in the year and a
half that he had lived there and they were not currently involved in any manner with one another.
Additionally, they had not had a relationship since they were small children. When asked of her ability
to be impartial to sit in judgment of Doss unaffected by her distant familial relation with Horan, she
did not evidence any information to warrant her removal for cause. Therefore, the trial judge's denial
of Doss's request for a cause strike against Honeycutt was not an abuse of discretion in this case.
¶58. The Court finds that the trial judge in this case did not abuse his discretion regarding this issue.
The trial judge conducted the requisite inquiry for determining Honeycutt's competency and found
that she appeared to be able to sit in judgment unaffected by her familial relationship and correctly
apply the law. We find that although it may have made for a "cleaner" trial to have excused
Honeycutt from the jury, the facts support the trial judge's decision. Accordingly, this issue lacks
merit.
VIII. THE ADMISSION OF TEN GRUESOME PHOTOGRAPHS OF THE
DECEASED VIOLATED RULE 403 OF THE MISSISSIPPI RULES OF EVIDENCE
AND THE STATE AND FEDERAL CONSTITUTIONS.
¶59. This is a straightforward issue. Query?: Were the nine photographs admitted into evidence more
prejudicial than probative? See M.R.E. 403. Doss asserts that the photographs were more prejudicial
than probative in violation of M.R.E. 403, thus denying his right to a fair trial under the Fourteenth
Amendment of the United States Constitution and Article 3, Section 14 of the Mississippi
Constitution, in addition to being cumulative and duplicative. In response to the defense's objection
to the admission of the photographs for the aforementioned reasons, the trial judge ruled by stating:
The court has viewed the photographs prior to trial, and will admit them at this trial, finding
that the probative value outweighs any prejudicial value. Let the record reflect that the same
objection is noted for each of the numbers cited, and the same ruling is made.
¶60. The State asserted at trial, and now on appeal, that the admission of the photographs was
necessary to illustrate the "position of the body, wounds and relation to other fixtures in the store
where evidence was found." Naturally however, Doss contends that the photographs served no
purpose other than to inflame and prejudice the jury because the State's expert witness in forensic
pathology, Dr. Stephen Hayne, testified with separate transparencies to illustrate the location,
entrance and exit of the nine bullets.
¶61. In support of his position, Doss points to Sudduth v. State, 562 So. 2d 67, 70 (Miss. 1990)
wherein the court stated that "photographs of the victim should not ordinarily be admitted into
evidence where the killing is not contradicted or denied, and the corpus delicti and the identity of the
deceased have been established." However, the Sudduth Court concluded by stating that
photographs of the victim are nevertheless admissible if more probative than prejudicial. Id.
¶62. Doss also complains that the admission of slides of the same photographs which were admitted
was error, as the slides were cumulative and more prejudicial than probative. The State asserts that
Doss's ability to object to the slides was waived, and is thus procedurally barred, as there was no
contemporaneous objection at trial. The record supports the procedural bar regarding the admission
of the slides, leaving only the 403 inquiry of the photographs.
¶63. This Court's standard of review regarding the admission of photographic evidence during trial is
an abuse of discretion standard and the "discretion of the trial judge runs toward almost unlimited
admissibility regardless of the gruesomeness, repetitiveness, and extenuation of probative value."
Hart v. State, 637 So. 2d 1329, 1335 (Miss.1994) (quoting Williams v. State, 544 So. 2d 782, 785
(Miss. 1987); See also, Jenkins v. State, 607 So. 2d 1171, 1175 (Miss. 1992).
¶64. Jenkins involved the use of photographs and slides used to illustrate different wounds to the
body which this Court permitted to be entered into evidence. Westbrook v. State, 658 So. 2d 847,
849 (Miss. 1995) held that the photographs in that case had evidentiary value because they aided in
describing the circumstances of the murder and corpus delicti. Also, this Court has permitted
photographs when offered for the purpose of describing the body or clarifying witness testimony.
Ashley v. State, 423 So. 2d 1311, 1316 (Miss. 1982); Hughes v. State, 401 So. 2d 1100, 1106
(Miss. 1981).
¶65. Based upon the numerous cases in which the Court has permitted the introduction of
photographs in conjunction with the abuse of discretion standard afforded a trial judge in Mississippi,
and after reviewing the photographs, we find that the trial judge did not abuse his discretion in this
case, rendering this issue without merit.
IX. THE TRIAL COURT ERRED IN GIVING INSTRUCTION S-1 AT THE GUILT
PHASE WHICH CONSTRUCTIVELY AMENDED THE INDICTMENT BY FAILING
TO REQUIRE THAT THE JURY FIND THAT THE KILLING BE DONE WITH
MALICE AFORETHOUGHT WHERE THE INDICTMENT CHARGED KILLING
WITH MALICE AFORETHOUGHT, VIOLATING THE FEDERAL AND STATE
CONSTITUTIONS AND STATE LAW.
¶66. Doss asserts that the trial judge erred by allowing Instruction S-1 because it permitted the jury
to convict Doss without requiring the State to prove malice aforethought, as charged in the
indictment. The relevant court papers follow.
¶67. The January 1991 indictment charged:
That Frederick Bell and Anthony Doss, late of Grenada County, Mississippi, on or about May
6, 1991, in the county and State aforesaid and within the jurisdiction of this Court, did
unlawfully, wilfully, feloniously and of their malice aforethought, then and there, kill and murder
Robert C. Bell, a human being, when engaged in the commission of the crime of armed robbery,
in violation of MCA §97-3-19(2)(e), as amended, against the peace and dignity of the State of
Mississippi.
¶68. Instruction No. S-1 instructed the jury as follows:
The defendant, Anthony Doss, has been charged by indictment with the crime of capital murder.
If you find from the evidence beyond a reasonable doubt in this case that
(1) On or about May 6, 1991, the defendant, Anthony Doss, did unlawfully, wilfully and
feloniously kill Robert C. "Bert" Bell and
(2) said killing was done while the defendant, Anthony Doss, was engaged in the crime of
armed robbery,
then you shall find the defendant guilty of capital murder.
If the State has failed to prove any one or more of the above elements beyond a reasonable
doubt, then you shall find the defendant not guilty.
¶69. Doss contends that S-1 constructively and unconstitutionally amended the indictment because it
broadened the elements of the offense, allowing Doss to be convicted on a ground not alleged by the
grand jury, which violated Doss's rights under the Fifth, Sixth, and Fourteenth Amendments and
Article 3, Sections 14 and 26 of the Mississippi Constitution and United States v. Miller, 471 U.S.
130, 105 S.Ct. 1811, 85 L.Ed.2d 99 (1985). He requests a reversal on this basis.
¶70. The State responds to this alleged error by asserting that the indictment was not amended to
instruct the jury on malice. Rather, the State asserts that Doss was properly indicted under § 97-319(2)(e) and was properly instructed on the elements of capital murder under S-1 with adequate
notice. The State also contends that Doss waived the ground for the alleged error here because he
objected to S-1 at trial on the basis that "there's been no proof presented that the defendant, Anthony
Doss, did any overt act to kill Robert C. Bell," which is a different ground than that used on appeal.
Conner v. State, 632 So. 2d 1239, 1255 (Miss. 1993) (an objection on one or more specific grounds
constitutes a waiver of all other grounds).
¶71. The record does reflect the ground argued by the State, which is inconsistent with the basis of
Doss's appeal on this issue. Therefore, Doss is procedurally barred under Conner.
¶72. The State alleges another procedural bar on this issue pursuant to Ross v. State, 603 So. 2d 857,
860-61 (Miss 1992), for failure by Doss to challenge the indictment pre-trial, at trial, or in post-trial
motions. This Court stated in Ross that Ross's failure to allege grounds at the trial level which were
raised in his appeal did not warrant consideration by this Court. Id. Therefore, the State's alternative
procedural bar has merit as well. Nevertheless, the State briefs the merits of the issue.
¶73. The State addresses the merits by citing Griffin v. State, 557 So. 2d 542, 549 (Miss. 1990).
Griffin held that with regards to § 97-3-12(2)(e), that "[t]here is nothing about this statute which
requires any intent to kill when a person is slain during the course of a robbery." Id. Berry v. State,
575 So. 2d 1, 13 (Miss. 1990), is offered by the State for the proposition that Doss's argument here is
analogous to the one rejected by the Court in Berry. The Berry case involved a defendant indicted
for an intentional murder, and yet the jury was not given an instruction on intent, which according to
Berry, meant that the State had failed to prove the defendant guilty of the intentional offense for
which he was indicted, requiring reversal of his conviction. Id. The Court held this issue to be
procedurally barred, but addressed the substantive issue, finding that it lacked merit as well because it
was sufficient to give the defendant fair notice of the crime charged. Id. By analogy, the State
contends that the indictment in this case gave Doss adequate notice, rendering said issue without
merit in addition to being procedurally barred, as was the issue in Berry. We agree. Accordingly, the
Court finds Doss's argument twice procedurally barred and alternatively without merit.
X. THE TRIAL COURT ERRED IN ALLOWING THE STATEMENT OF ANTHONY
DOSS INTO EVIDENCE, IN VIOLATION OF THE UNITED STATES AND
MISSISSIPPI CONSTITUTIONS AND MISSISSIPPI LAW.
¶74. Doss contends that the trial court erred here by admitting into evidence his Statement made to
Grenada County law enforcement officers while he was in the custody of the Memphis, Tennessee
police for an unrelated murder charge. Said statement was the subject of a pre-trial suppression
motion which was argued by both parties in chambers. During the suppression hearing, the trial court
heard testimony from the interviewing officer, James "Buster" Grantham, Anthony Doss himself, and
Bruce Patridge, the other interviewing officer.
¶75. The bottom line from the pre-trial hearing was that there were people on opposite sides of the
table testifying to exactly opposite stories about the same event. Doss complained that the statement
he gave was the result of being denied his request to have his attorney present, gas chamber threats,
promises of leniency, and thus that his statement was not freely, voluntarily and knowingly made. In
support of his position that the police had committed such acts before the "official" interview began,
Doss points to the fact that the written statement notes that the interview began at 5:31p.m. and that
the audio taped interview did not begin until 6:00 p.m.
¶76. The interviewing officers testified about the events of the interview and testified to the exact
opposite of Doss. That is, they testified that Doss signed a waiver of rights form prior to being
questioned, that they did not make any threats or promises, and that he did not ask for his attorney.
When asked what occurred during the first twenty-nine minutes, Officer Patridge and Officer
Grantham did not recall the tape recorder being turned on and off, and just could not remember
exactly what happened other than "about it being down here, and where it happened, and going to
Memphis, and all this before the tape started."
¶77. After hearing all of the above-mentioned testimony, the trial court made the following pre-trial
ruling:
The Court having heard the evidence on the motion, which is a motion to suppress the
statement, finds that the evidence, as it usually is on these motions, is directly in conflict
between the officers who took it and the person who gave it. But, the Court, as the finder of
fact on this motion, having heard the evidence on this case and the -- reviewing the same, and
weighing the same, finds that the statement so given was given by the defendant Doss after he
had been fully advised of his rights, as provided in the Miranda case; that the statement was
knowingly given, and freely and voluntarily given without threat or reward, or promise of
reward, and that the same is admissible. The motion to suppress is overruled.
¶78. Doss maintains that, based upon the totality of the circumstances test from Miller v. State, 243
So. 2d 558, 559 (Miss. 1971)(23), his statement was involuntary and thus inadmissible. The State
asserts that Doss's statement was not a confession within the ordinary sense of the word because
Doss originally denied shooting anyone, denied knowing that someone might get shot, and denied
that he even had a gun. Doss subsequently admitted during trial that the latter fact was a lie. The
State maintains that Doss has merely recited law and facts and has failed to present any argument
about what induced him to make the statement.
¶79. This Court, in Willie v. State, 585 So. 2d 660, 668 (Miss. 1991), was confronted with almost
the exact identical argument as Doss's which was rejected and Miller found to be inapplicable. Willie
tried to use Miller in the same manner as Doss, but this Court found the argument unpersuasive
because Willie actually denied the charges subsequent to the alleged inducement. Id. Doss's statement
was a denial for the most part as well(24) because he alleged that he was merely present and that
another person, whom Doss eventually admitted during the trial was not at all involved, was the
trigger man in the robbery of Sparks. Therefore, Doss's use of Miller is inapplicable in light of Willie.
As was stated in Willie and as appears to be the case here, the defendant's statement was "not overly
influenced by the alleged promises of leniency or benefit." Willie, 585 So. 2d at 668.
¶80. As urged by the State in their brief, the Willie Court stated that:
Once the evidence indisputably showed that the sheriffs told Willie that it would be best or
better for him to tell the truth, the trial court should have determined whether these statements
were mere exhortations to tell the truth or were inducements or implied promises of leniency.
See Layne v. State, 542 So. 2d 237, 240 (Miss. 1989); Willie, 585 So. 2d at 668.
¶81. The State contends that there was no indisputable fact that Doss ever received an inducement
because there were consistent conflicting stories as to whether the statements were ever made.
Therefore, according to the State, the trial court did not have to go the next step and determine if this
was or was not an inducement under Willie and Layne. Doss's argument is without merit as the trial
court's pre-trial suppression ruling is supported in the record by substantial credible evidence in this
case. Therefore, Doss's request for reversal on this basis is denied as there was no abuse of discretion
by the trial court.
XI. THE TRIAL COURT ERRED IN NOT REDACTING FROM THE TRANSCRIPT
OF THE TAPED CONFESSION THE PORTION DEALING WITH OTHER CRIMES
OF ANTHONY DOSS, IN VIOLATION OF DOSS'S RIGHTS UNDER THE FEDERAL
AND STATE CONSTITUTIONS AND STATE LAW.
¶82. According to Doss, the issue here is that the trial court erred during the trial by admitting into
evidence his antecedent police station statement, and in admitting State's exhibit 61A into evidence
because they both contained a question and an answer about another murder in Memphis in which
Doss was suspected of having been involved. In other words, Doss asserts that the transcript and
exhibit should have been edited to exclude such information of his involvement in another crime.
¶83. Failure to do so allegedly violated Doss's rights to a fair trial as guaranteed by Mississippi law,
Article Three, Section 14, of the Mississippi Constitution and the Fourteenth Amendment to the
United States Constitution because of the prejudicial effect of admitting into evidence a reference to
another crime. Doss offers the following authorities: Davis v. State, 431 So. 2d 468, 470-471 (Miss.
1983) ("As a general rule, testimony in a criminal trial should be confined to the charge for which an
accused is on trial and the prosecution should not be allowed to aid the proof against the accused by
showing he committed other offenses . . . [However] . . . There are certain recognized exceptions to
the rule."(25) Citations omitted. Accord, Gray v. State, 351 So. 2d 1342 (Miss. 1977) and Anderson
v. State, 171 Miss. 41, 47, 156 So. 645, 646 (1934).
¶84. The Q&A complained as follows:
Q: (BUSTER GRANTHAM) That gun that they used to shoot this guy up here in Memphis
[sic] that the same gun that come [sic] out of the store [Sparks]?
A: (ANTHONY DOSS) I couldn't be for sure, but its similar to it.
Q: (BUSTER GRANTHAM) Do you believe it's the same gun? Did ya'll get anymore guns
after ya'll left the store [Sparks]?
A: (ANTHONY DOSS) No, sir.
¶85. The State asserts a procedural bar under Conner v. State, 632 So. 2d 1239, 1255 (Miss. 1993)
against Doss on this issue. The State concedes that Doss objected during trial to the admission of the
aforementioned information, but points to the fact that the basis for the objection was the same as
was used during the suppression hearing; i.e., voluntariness, not lack of redacting. The record
supports the State's contention here.
¶86. The State also asserts an additional procedural bar pursuant to Berry v. State, 575 So. 2d 1, 9
(Miss. 1990), for lack of a contemporaneous objection, and thereby failing to present to the trial
court the need for redaction of the statement. As asserted by the State, "[a] trial judge cannot be put
in error on a matter which was not presented to him for decision." Holland v. State, 587 So. 2d 848,
868 n.18 quoting Ponder v. State, 335 So. 2d 885, 886 (Miss. 1976) (citations omitted).
Accordingly, the State asserts that this alleged error lacks merit for this additional reason as well.
¶87. We find that the issue is twice procedurally barred. The basis of the overruled objection during
the pre-trial suppression hearing and the basis of the trial objection was voluntariness, not a request
for redacting due to the possible implication of Doss in another crime. Doss's argument is also barred
because the trial judge was not presented with a request to redact the statement during the post-trial
motions. This alleged error is barred.
SENTENCING PHASE ISSUES
XII. THE TRIAL COURT VIOLATED THE UNITED STATES AND MISSISSIPPI
CONSTITUTIONS AND MISSISSIPPI LAW IN SUBMITTING THE "AVOIDING
ARREST" AGGRAVATING CIRCUMSTANCE TO THE JURY.(26)
¶88. Doss argues (1) that the evidence did not support the giving of sentencing instruction No. C-1
setting forth the aggravating circumstance that the murder was committed for the purpose of
avoiding arrest and (2) that no accompanying limiting instruction was given.
¶89. The State asserts that this Court, in Chase v. State, 645 So. 2d 829, 858 (Miss. 1994), held that
a limiting instruction on this type of aggravator is not necessary. Chase clearly does dispose of this
portion of Doss's argument, rendering it without merit. See Evans v. Thigpen, 631 F.Supp. 274, 283
(S.D.Miss.1986), aff'd 809 F.2d 239 (5th Cir.1987); Gray v. Lucas, 677 F.2d 1086, 1109-1110 (5th
Cir. 1982).
¶90. The State next asserts that the evidence supported the instruction. It points to the following
facts. (1) Doss admittedly went into the store with a gun to rob it. (2) Freddie had said before
entering the store that they were "going to go in shooting." (3) Doss supposedly said "Let's go. Let's
go do it" immediately before entering Sparks. (4) Bell hollered as he was shot and had several shots
through his hands indicating that he was neither armed nor posed a threat to the robbers' escape. (5)
According to Coffey, once Doss was on his way to Memphis, Doss was ready to go back and kill
James to eliminate a possible witness. And finally, (6) Doss admitted that he went to Memphis so that
he would not get caught.(27)
¶91. Doss responds in his reply brief with the argument that all of the above-mentioned facts exist in
any felony-murder case and that there are no "substantial reasons" to support the aggravating
circumstance in this case. We find Doss's argument unpersuasive as the aforementioned facts,
particularly #4 and #6, support the giving of the instruction. This argument is without merit.
XIII. THE TRIAL COURT ERRED IN SUBMITTING TO THE JURY THE
ROBBERY-MURDER AGGRAVATING CIRCUMSTANCE IN VIOLATION OF THE
UNITED STATES CONSTITUTION AND STATE LAW.
¶92. Doss argues under this assignment of error that the Mississippi capital murder statute is
defective in that it does not genuinely narrow the class of defendants and is, therefore,
constitutionally infirm. Doss additionally argues that the robbery aggravating factor duplicates the
element of capital murder and is, therefore, constitutionally infirm on this basis as well. The State
addresses the merits of the first ground, but asserts that the duplicative ground is procedurally barred.
Doss objected to the second aggravator(28) of C-1 on the basis that it was unconstitutionally vague
and lacked reliability.
¶93. The State contends that the use of the robbery aggravator is not constitutionally infirm as it does
genuinely narrow the class of defendants, and cites Minnick v. State, 551 So. 2d 77, 96-97 (Miss.
1988), reversed on other grounds, 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990)
interpreting Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 555, 98 L.Ed.2d 568, 583 (1988).
The Minnick Court found that Lowenfield "held that the fact that the sole aggravating circumstance
found by the jury in its penalty decision was identical to an element of the underlying offense did not
violate the Eighth Amendment." Id. Notably, the jury in this case unanimously found other
aggravating factors in addition to the robbery aggravating factor.
¶94. Doss relies primarily upon Arave v. Creech, 507 U.S. 463, 113 S.Ct. 1534, 123 L.Ed.2d 188,
200 (1993), for the proposition that the Mississippi statute permitting the use of robbery as a
mitigating circumstance is over broad and does not genuinely narrow the class of persons on whom
the death penalty is imposed. Arave noted that, "[i]f the sentencer fairly could conclude that an
aggravating circumstance applies to every defendant eligible for the death penalty, the circumstance is
constitutionally infirm." Id. Therefore, Doss asserts that the robbery aggravating circumstance does
not "genuinely narrow" because robbery-murder standing alone, is not a crime for which the death
penalty is proportionate punishment, and so it thereby violates the Eight Amendment and Article 3,
Section 28 of the Mississippi Constitution.
¶95. Doss's argument under this alleged error has been held without merit in several cases. Ladner v.
State, 584 So. 2d 743, 762 (Miss. 1991)(29); Minnick v. State, 551 So. 2d 77, 96-97 (Miss. 1989),
reversed on other grounds, 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990); Pinkney v. State,
538 So. 2d 329, 358-59 (Miss. 1988), vacated on other grounds, 494 U.S. 1075, 110 S.Ct. 1800,
108 L.Ed.2d 931 (1990); Jones v. State, 517 So. 2d 1295, 1300 (Miss. 1987), vacated on other
grounds.(30) Ladner explicitly rejected this stacking argument by once again referring to Lowenfield
wherein the United States Supreme Court found that it was permissible. 108 S.Ct. at 552-55, 98
L.Ed.2d at 579-83. Accordingly, the trial court will not be held in error on this issue.
XIV. THE TRIAL COURT ERRED IN SUBMITTING TO THE JURY THE
AGGRAVATING CIRCUMSTANCE THAT DOSS HAD BEEN CONVICTED OF
ANOTHER CAPITAL OFFENSE, IN VIOLATION OF DOSS'S RIGHTS UNDER THE
UNITED STATES CONSTITUTION AND MISSISSIPPI LAW.
¶96. Doss again attacks the use of an aggravating circumstance which the jury unanimously found to
exist beyond a reasonable doubt. The meat of Doss's argument here is that the jury was improperly
instructed on the aggravating circumstance that he had "previously been convicted of another capital
offense or of a felony involving the use or threat of violence to the person." Doss points to State's
Exhibit S-1 which discloses that Doss previously pled guilty to second degree murder in Tennessee.
Therefore, because Doss pled guilty to a non-capital crime and was not convicted of a capital crime,
(31) the jury was improperly instructed. Doss, citing Wilcher v. State, 635 So. 2d 789, 790-791
(Miss. 1993), additionally argues that the error cannot be held harmless because the jury found this to
be an aggravating circumstance. ("Miss. Code Ann. § 99-19-101 (Supp.1993) prevents this Court
from performing either reweighing or harmless error analysis as a matter of State law.")(32)
¶97. The State points to the use of or in instruction C-1, and the fact that Doss objected at trial to the
instruction on the basis of double jeopardy, not because the instruction was not supported by the
evidence. Therefore, the State asserts a procedural bar pursuant to Chase v. State, 645 So. 2d at
859.(33) Without waiving the procedural bar, the State addresses the merits of the aggravator's
language although the record supports the bar.
¶98. The State argues that the aggravator's language should be read as a whole and not as a series of
disjunctive phrases. Shell v. State, 554 So. 2d 887, 906 (Miss. 1989), reversed on other grounds,
498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990), is offered as its authority. Specifically, the State
brings attention to the following language from Shell.
Only one crime -- the murder of Mrs. Johnson while in the commission of a robbery -- was
considered by the jury. The list of aggravating circumstances applies only to this one crime. The
issue for the jury to determine was whether the aggravating circumstances as a whole applied to
the murder of Mrs. Johnson, a question answered in the affirmative.
Id. (34)
¶99. Therefore, the State asserts that this assignment of error is without merit because the
aggravator's language is to be looked at as a whole. The State also brings to the Court's attention the
fact that Doss does not and cannot argue that second-degree murder is not a violent crime against a
person because it is naturally inherently violent. Finally, the State points out that Doss did not object
to the introduction of the conviction at the sentence phase, and that it was not referred to as a capital
conviction when introduced into evidence.
¶100. This issue is procedurally barred and without merit because of Chase and Shell respectively.
XV. IN NOT FULLY INFORMING THE JURY OF DOSS'S SENTENCE OF
IMPRISONMENT IMPOSED BY THE State OF TENNESSEE AND THE
RAMIFICATIONS OF A LIFE SENTENCE IN THIS CASE, THE TRIAL COURT
VIOLATED DOSS'S RIGHTS UNDER THE FEDERAL AND STATE
CONSTITUTIONS AND MISSISSIPPI LAW.
¶101. Doss asserts that the trial court erred because it did not inform the jury, when requested, if they
could sentence Doss to life without parole.(35) Twenty minutes later the jury returned the death
sentence. Doss contends that such a request indicated the jury's desire to give a sentence less than
death. Furthermore, according to Doss, had the jury been informed of the effect of his twenty-fiveyear sentence in Tennessee for second-degree murder on his eligibility for parole, then the jury could
have decided a sentence other than death.(36)
¶102. In support of his position, Doss cites Turner v. State, 573 So. 2d 657, 674 (Miss. 1990) for
the proposition that a jury is always entitled to have before it "all possible relevant information about
the individual whose fate it must determine." See Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950,
2958, 49 L.Ed.2d 929, 941 (1976). The State asserts that Turner is inapplicable because Turner
dealt with an habitual offender being sentenced, not a defendant who is indicted and tried as a non-
habitual. Doss additionally cites Mackbee v. State, 575 So. 2d at 39-41 for the proposition that
Doss's jury was impermissibly denied relevant information during the sentencing phase. Mackbee was
also an habitual offender case decided just seven days after Turner.
¶103. In lieu of Turner, the State submits that Williams v. State, 445 So. 2d 798, 813 (Miss. 1984)
is the applicable rule for non-habitual offenders. Williams noted that references to probation during a
sentencing phase of a capital murder trial are inappropriate because it would cause the jury to second
guess the legislature and because parole is not automatic. Id. Accordingly, the State asserts that
Turner should not be extended to involve non-habitual offenders. We agree and so hold.
¶104. In explaining the Turner decision, the Mackbee Court commented that the reason for the
general rule prohibiting the introduction of information about parole is that it "necessarily invites a
high degree of speculation and conjecture." Mackbee, 575 So. 2d at 40. As the Mackbee Court
noted, "We have recognized repeatedly the speculative nature of parole in other contexts." Mackbee,
575 So. 2d at 40. However, "[t]here is one notably and empirically demonstrable exception to this
premise. Persons sentenced as habitual offenders under Miss. Code Ann. § 99-19-83 (Supp.1990) are
not eligible for parole. The point has been routinely observed in our reports. . . ."(citations omitted).
Mackbee, 575 So. 2d at 40-41. Such information was not proscribed in Turner and Mackbee
because there were habitual offenders involved. Therefore, the Court clearly states today that our
jurisprudential history which generally denies the introduction of information into a criminal trial
about parole when a non-habitual is involved, shall remain undisturbed when defendants are not
indicted and tried as habitual offenders. Accordingly, this issue is without merit in light of Mackbee
because Doss was not indicted and tried as an habitual offender.
XVI. THE TRIAL COURT'S ANTI-SYMPATHY INSTRUCTION COUPLED WITH
DENIAL OF A MERCY INSTRUCTION VIOLATED THE UNITED STATES AND
MISSISSIPPI CONSTITUTIONS AND MISSISSIPPI LAW.
¶105. Doss alleges error by the trial court for failing to give instructions D-59, and instruction D-S24. They are as follows:
D-59
The Court instructs the jury that although at the guilt and innocence phase of the trial, you were
instructed that you were not to be swayed by sympathy, at this phase of the trial you are bound
by law and your oath as jurors to consider mitigating factors. Mitigating factors are facts that,
while they do not justify or excuse the crime, nevertheless in fairness and sympathy and mercy
to Anthony Doss, must be considered by you as extenuating or reducing the degree of his blame
or punishment. You may not, however, be swayed by prejudice or public opinion.
D-S-24
.....
You may find that a sentence of death is inappropriate even if there is only a single mitigating
circumstance and multiple aggravating circumstances. You may also find that death is not
warranted even though there are one or more aggravating circumstances and not a single
mitigating circumstance. You are not required to find any mitigating circumstance in order to
return a sentence of life imprisonment. Nor does the finding of an aggravating circumstance
require that you return a sentence of death. You as a juror always have the option to sentence
the defendant to life imprisonment, whatever findings you make.
¶106. Doss contends that the denial of these instructions denied him due process under Hicks v.
Oklahoma, 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980). Doss further asserts that the
refusal of said instructions violated the Eighth and Fourteenth Amendments to the United States
Constitution and Article 3, Section 14 and 28, of the Mississippi Constitution. The State disagrees.
¶107. The State asserts yet another procedural bar against Doss for failing to object as required by
Willie v. State, 585 So. 2d 660, 677 (Miss. 1991); See Cole v. State, 525 So. 2d 365, 369 (Miss.
1987); Shelton v. State, 445 So. 2d 844, 846 (Miss. 1984). Furthermore, the State argues that these
instructions are mercy instructions to which this Court has repeatedly held that a defendant is not
entitled. This Court has explicitly held that a "defendant has no right to a mercy instruction." Ladner
v. State, 584 So. 2d 743, 761 (Miss. 1991) (citations omitted); See also Foster v. State, 639 So. 2d
1263, 1300-01 (Miss. 1994).
¶108. The first instruction is clearly a mercy instruction. The Court has clearly held that a defendant
is not entitled to such. Ladner v. State, 584 So. 2d 743, 761 (Miss. 1991) (citations omitted).
Accordingly, the first instruction under this issue is without merit in addition to being procedurally
barred.
¶109. The second instruction is not a mercy instruction explicitly, but has an effect of mercy.
However, the second instruction is not much different than the weighing language from other
instructions such as C-1 which was given. Accordingly, the denial of this instruction under this issue
is without merit as well in addition to being procedurally barred.
XVII. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S INSTRUCTION DS4 TELLING THE JURORS THAT THEY NEED NOT BE UNANIMOUS IN FINDING
MITIGATING CIRCUMSTANCES AND ALSO IN IMPROPERLY INSTRUCTING
THEM THAT THEY HAD TO BE UNANIMOUS BEFORE THEY COULD FIND A
MITIGATING CIRCUMSTANCE.
¶110. The focus of Doss's argument here is that because the jury was not explicitly instructed that
they did not have to be unanimous regarding mitigating factors, and because the jury was instructed
that they had to be unanimous in (1) finding aggravating circumstances and (2) to return a verdict and
(3) to impose a sentence of death, that the trial court erred in denying instruction D-S-4 which said
mitigating factors did not have to also be found unanimously.
¶111. The State asserts a procedural bar here which is supported by the record. Additionally, the
State points out that the Court in Shell v. State, 554 So. 2d 887, 905 (Miss. 1989), reversed on other
grounds, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990), rejected a similar argument. The Shell
Court held an identical claim without merit despite the fact that unanimous did appear in the
aggravating portions of the instructions. Shell v. State, 554 So. 2d at 905. The Shell Court reasoned
that although the instructions instructed the jury to find aggravating circumstances unanimously, such
language did not restrict the jury's ability to consider the appropriateness of the death penalty. Id.
Accordingly, this issue is without merit in addition to being procedurally barred.
XVIII. THE TRIAL COURT ERRED IN INSTRUCTING THE JURY AT THE
SENTENCING THAT IT COULD CONSIDER "THE DETAILED CIRCUMSTANCES
OF THE OFFENSE."
¶112. The portion of Instruction C-1 which Doss contends erroneously allowed the jury to consider
the 'detailed circumstances of the offense' is as follows:
C-1.
You have found the defendant, Anthony Doss, guilty of the crime of capital murder. You must
now decide whether the defendant will be sentenced to death or life imprisonment for the
capital murder of Robert C. "Bert" Bell. In reaching your decision, you may objectively
consider the detailed circumstances of the offense for which the defendant was convicted, and
the character and record of the defendant himself. You should consider and weigh any
aggravating and mitigating circumstances, as set forth later in this instruction, but you are
cautioned not to be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public
opinion or public feeling.
¶113. To allow the jury to be instructed to consider evidence other than that related to aggravating
and mitigating circumstances purportedly violates Mississippi case precedent and statutory law.
Stringer v. State, 500 So. 2d 928, 941 (Miss. 1986)(37); Miss. Code Ann. § 99-19-101 (Supp. 1994).
¶114. The State asserts another procedural bar against Doss on this issue which is again supported by
the record. Nevertheless, the State addresses the merits and offers the rationale of Tuilaepa v.
California, 114 S.Ct. 2630, 129 L.Ed.2d 750, 762, 62 USLW 4720 (1994) for adoption by the
Court on this issue. The United States Supreme Court Stated:
. . . . [T]he sentencer should consider the circumstances of the crime in deciding whether to
impose the death penalty. See, e.g., Woodson [v. North Carolina, 428 U.S. 280,] 304, 49
L.Ed.2d 944 (1976) ("consideration of. . . . the circumstances of the particular offense [is] a
constitutionally indispensable part of the process of inflicting the penalty of death"). We would
be hard pressed to invalidate a jury instruction that implements what we have said the law
requires.
Tuilaepa, 129 L.Ed.2d at 762.
¶115. Traditionally, the Court has limited evidence during the sentencing phase to relevant evidence
necessary to demonstrate one of the aggravating or mitigating circumstances. Coleman v. State, 378
So. 2d 640, 648 (Miss. 1979). Nevertheless, Miss. Code Ann. §99-19-101(1) instructs the trial court
to allow the presentation of "any matter that the court deems relevant to the sentence, and shall
include matters relating to any of the aggravating or mitigating circumstances." To say that a jury
could not also consider the detailed circumstances of the offense would defy logic and reason as well
as the explicit language of §99-19-101(1). Accordingly, the Court finds this issue is without merit
and against Tuilaepa.
XIX. THE TRIAL COURT ERRED IN INSTRUCTING THE JURY THAT IN ORDER
TO RETURN A SENTENCE OF LIFE IMPRISONMENT IT HAD TO FIND THAT
THE MITIGATING FACTORS OUTWEIGH THE AGGRAVATING
CIRCUMSTANCES.
¶116. Doss contends that the trial court erred in submitting the following language to the jury in
instruction C-1.
To return a death penalty you must find that the mitigating circumstances -- those which tend to
warrant the less severe penalty of life imprisonment -- do not outweigh the aggravating
circumstances -- those which tend to warrant the death penalty.
....
If one or more of the above aggravating circumstances is found to exist, then you must consider
whether there are mitigating circumstances which outweigh the aggravating circumstance(s).
....
If you find the evidence that one or more of the preceding elements of mitigation exist, then you
must consider whether it (or they) outweigh(s) or overcome(s) the aggravating circumstance(s)
you previously found. In the event that you find that the mitigating circumstance(s) do not
outweigh or overcome the aggravating circumstance(s), you may impose the death sentence.
Should you find that the mitigating circumstance(s) outweigh(s) or overcome(s) the aggravating
circumstance(s) you shall not impose the death sentence.
¶117. Doss alleges that the above instructions are improper because they state that the jury must find
that the mitigating circumstances outweigh the aggravating circumstances in order to not impose the
death penalty. The State argues yet another procedural bar which is supported by the record. Foster,
supra; Chase, supra; Cole, supra. Without waiving the procedural bar, the State offers Conner v.
State, 632 So. 2d 1239, 1278 (Miss. 1993) for the proposition that the Court has settled and rejected
this very argument.
¶118. In Conner, it was "argued that a proper instruction would permit imposition of the death
penalty only where the jury finds that aggravating circumstances outweigh mitigating circumstances,
not vice versa." Id. The Conner Court held that:
This argument was thoroughly weighed and found wanting in Shell v. State, 554 So. 2d 887,
904 (Miss. 1989),reversed on other grounds, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990);
See also Jordan v. State, 365 So. 2d 1198, 1206 (Miss. 1978), cert. denied, 444 U.S. 885, 100
S.Ct. 175, 62 L.Ed.2d 114 (1979)(38); Gray v. Lucas, 677 F.2d 1086, 1105-06 (Miss. 1986).
Conner, 632 So. 2d at 1278.
¶119. Accordingly, Doss's argument is without merit in addition to being procedurally barred.
XX. THE TRIAL COURT ERRED IN SUBMITTING TO THE JURY IN THE
SENTENCING PHASE OF THE TRIAL THE FORM OF THE VERDICT AS
CONTAINED IN SENTENCING INSTRUCTION C-1.
¶120. Doss complains that the trial court erred by submitting sentencing instruction C-1 and denying
instruction D-S-3(39) because of this Court's language from Jenkins v. State, 607 So. 2d 1171, 1180
(Miss. 1992). The Jenkins court reversed that case on other grounds, but noted that instruction C-1S-A in that case should have been revised to more clearly instruct the jury. Id. The problem with the
sentencing phase instruction was that it had the different verdict options on different pages which did
not all contain a space for the jury foreman's signature. Id. Such is not the case here.
¶121. In this case, instruction C-1 is made up of six pages. The sentencing form is two pages.
Instruction C-1 has all three sentencing options on one page. The jury appears to have been clearly
instructed and understanding of their instructions as page one of the sentencing form is filled out
perfectly as instructed by C-1. Page two reflects that the jury circled the plural option regarding the
balancing of mitigating and aggravating circumstances to reflect that the aggravators outweighed the
mitigators. Therefore, the jury correctly, and without any apparent confusion, completed the form
used in this case.
¶122. The State asserts that Doss is once again procedurally barred, which is supported by the
record. Additionally, the State asserts that Jenkins is inapplicable and that the jury was adequately
and clearly informed. Jenkins is inapplicable under this Court's understanding as well. Accordingly,
this issue is without merit and procedurally barred.
XXI. THE FINDINGS BY THE JURY AT THE SENTENCING PHASE WERE TOO
UNCERTAIN AND UNRELIABLE TO SUPPORT THE SENTENCE OF DEATH,
VIOLATING DOSS'S RIGHTS UNDER THE UNITED STATES AND MISSISSIPPI
CONSTITUTIONS AND MISSISSIPPI LAW.
¶123. This assignment of error is similar to Issue II, supra. Doss contends that erroneous instructions
on accomplice liability which allegedly omitted the requirement of proof of intent make the jury's two
findings of fact to impose the death penalty an uncertain and unreliable basis to support the death
penalty. In other words, the allegedly "erroneous" guilt phase instructions so confused the jury from
having to find "individualized consideration"(40)of Doss's culpability that one cannot be certain that
the jury understood the Enmund findings required at the sentencing phase. The allegedly erroneous
instructions were S-3 and S-4 which are presented in full under Issue II.
¶124. The State asserts another procedural bar pursuant to Foster, Chase, Cole, and Conner, supra.
Doss alleges that he objected to the second aggravator in C-1, but the record discloses otherwise.
The following is the objection made by Doss to C-1:
BY MR. BAILEY: I object to C-1 because the jury may not be instructed to disregard
sympathy in the sentencing, citing Pinkney v. State. We object to sentencing instruction, C-1,
page 2 of the instruction for 2 reasons: 1, there was a failure to prove each aggravating
circumstance beyond a reasonable doubt, and 2, we object to the constitutionality of the
aggravating circumstances as to vagueness and its reliability. And then, more specifically, the
first aggravating circumstance that he's been convicted of another capital offense, we object,
stating that double jeopardy clause bars subsequent prosecution, if to establish an essential
element of the offense charges in the prosecution, the State can prove the conduct that
constituted an offense for which the defendant has already been prosecuted. As to number 3,
avoiding or preventing a lawful arrest, we object, stating that this circumstance was not clearly
supported by the evidence, and you must have a separate limiting instruction. Okay.
BY THE COURT: No. C-1 is GIVEN.(41)
¶125. The record reflects that the jury found two Enmund factors of specific intent. Doss relies upon
Abram v. State, 606 So. 2d 1015, 1042 (Miss. 1992), for the proposition that a death sentence
requires more than accomplice liability.(42) Abram discussed at length the differences between §9919-107(c), intending that a killing take place, and §99-19-107(d), contemplating that lethal force
would be employed. Abram was only found to have contemplated that lethal force would be used,
which this Court held was sufficient to meet the Enmund culpability requirement. Abram v. State,
606 So. 2d 1015, 1042-3 (Miss. 1992). The jury found that Doss was guilty of §99-19-107(c),
intending that a killing take place, and §99-19-107(d), contemplating that lethal force would be
employed. Therefore, the Enmund test was met and Doss's reliance upon Abramis misplaced and
without merit. The record reflects that there was a reliable verdict and sentence in addition to there
being a procedural bar.
XXII. THE IMPROPER CLOSING ARGUMENT BY THE PROSECUTOR
VIOLATED ANTHONY DOSS'S RIGHTS UNDER THE UNITED STATES AND
MISSISSIPPI CONSTITUTIONS AND MISSISSIPPI LAW.
¶126. Doss complains that the prosecutor improperly argued against the consideration of mitigating
evidence, discussed the victim, argued the defendant's lack of remorse, invoked the authority of the
Bible, interjected his personal opinion, and argued non-statutory aggravating factors and facts not in
evidence. Said violations allegedly deprived Doss of his rights under the Eighth and Fourteenth
Amendments of the United States Constitution and Article 3, Sections 14 and 28 of the Mississippi
Constitution. The following are the portions of the closing argument alleged to have been improper
and constituting reversible error.(43)
E.g., of misstatements.(44)
We've got a case where no care was placed on human life. Now, if -- even if we hadn't had the
second murder that day, I think it still would have been a case that justified the death penalty. . .
.
Now, this is a case where two lives were taken. Opposing counsel says there is something good
in this person right here. Well, what are we going to do? Are we going to balance? Does it take
two lives, does it take twenty lives? How many lives does he have to take before justice is
done?
....
E.g., of arguing against the consideration of mitigating evidence.(45)
The mitigating circumstances, such as the age of the defendant at the time of the crime, loving
and caring child to his mother, grew up in a poverty environment -- there's a list of them here
for you to look at. How can those have any bearing on a person taking somebody else's life? I
submit to you that there's not one mitigating circumstance on here that has anything to do with
a murder case; that has anything to do with why you shouldn't follow the law and give this
death penalty on this particular case. Now, there are a lot of people that grow up in poverty.
But, that doesn't give them the right to go out and kill somebody. There are a lot of people that
grow up with one parent. That doesn't give them the right to go out and murder somebody.
And that 's what their [sic] asking you to do, is consider these two factors and try to say they
outweigh the fact that two people were killed that day; they outweigh the fact that the capital
murder of Robert C. "Bert" Bell was committed during the commission of a robbery; they
outweigh the fact that the capital murder was committed to keep them from being caught. They
can't even come close.
....
E.g., of arguing about defendant's lack of remorse.
Now, if -- even if we hadn't had the second murder that day, I think it still would be a case that
justified the death penalty without any question, but that even more so shows that there was no
remorse, no feeling of guilt or sorrow for taking a human life.
....
E.g., of Doss's propensity for future danger.
The death penalty is there for a reason. It's for people like this that don't need to be out in our
society, because they're a danger to all of us. Somebody who doesn't care who they kill. Now
this just happened -- somebody, I think the defense attorney mentioned this, about somebody
being at the wrong place at the wrong time? This could have been anywhere, anybody. This
could have been anybody working in a store or any business, because they just decided they
wanted to go in and rob and kill. It didn't matter to them who was killed. They didn't even know
Bert Bell. They didn't care . . . We cannot have people walking the streets that have no more
regard for human life than that.
....
E.g., of arguing facts not in evidence.(46)
The plan to start with was, "We're going to go in, we're going to take what we want, and we're
going to kill Bert Bell.", just like they killed the person in Memphis . . . It didn't matter to them
who was killed. They didn't even know Bert Bell. They didn't care.
....
E.g., of prosecutor's inappropriate use of the Bible.(47)
[The defense] wants to argue that the Bible says you shouldn't give death. That's not what the
Bible says. To start with, God decreed capital punishment as the penalty for murder when he
said in Genesis 9:6, "Whosoever sheddeth man's blood, by man shall his blood be shed. For in
His image, in the image of God, made He man.". . . . So, don't be held back by the death
penalty. All through it, the Bible justifies the death penalty.
E.g., of prosecutor stating personal opinion.
That's why I think this is definitely the case where we should ask for the death penalty, and you
should give the death penalty. . . . And that's another reason that I think the death penalty is the
only appropriate penalty in this case.
¶127. The State correctly asserts a procedural bar to this issue on all counts because the record
reflects that there was not one objection by Doss during the entire closing argument. Without
waiving the procedural bar, the State offers Berry v. State, 575 So. 2d 1, 9 (Miss. 1990), for its
authority that the State's comments did not exceed the limits of permissible argument. We agree on
both points and find this issue without merit in addition to clearly being procedurally barred.
XXIII. THE DEATH PENALTY IS DISPROPORTIONATE PUNISHMENT HERE
GIVEN THE CIRCUMSTANCES OF THE CRIME.
¶128. Doss primarily draws the Court's attention to two cases in support of his proportionality
argument. He contends that given the failure of the jury to find that Doss killed or attempted to kill
Bert Bell, that the sentence of death is excessive. The cases relied upon for his issue here are Bullock
v. State, 391 So. 2d 601 (Miss. 1980) and Reddix v. State, 381 So. 2d 999 (Miss. 1980)(48). Bullock
and Reddix are offered for the proposition that a death sentence is disproportionate against a nontrigger defendant involved in a capital murder case.(49)
¶129. The State contends that Doss's reliance upon Bullock and Reddix is misplaced because the
language relied upon did not garner a majority of votes. The original opinion from Bullock is offered
against Doss for what Bullock really stands for.
In the case at bar [Bullock], there is no record of the aggravating circumstances and mitigating
circumstances in the trial of Tucker, and it is not possible to determine what circumstances
influenced the jury in its life verdict. The law is well settled in this State that any person who is
present, aiding and abetting another in the commission of a crime, is equally guilty with the
principal offender. Jones [James] v. State, 307 So. 2d 549 (Miss. 1975); Bass v. State, 231 So.
2d 495 (Miss. 1970); McBroom v. State, 217 Miss. 338, 64 So. 2d 144 (1953).
Bullock, 391 So. 2d at 614.
¶130. In light of the restatement in Bullock about accomplice liability, coupled with the fact that
Doss's jury found two of the four required statutory findings for a death sentence under § 99-19101(7) and Enmund, the State submits that Doss correctly received the death sentence as supported
by case precedent and the jury's findings. We agree that the sentence is not disproportionate to Doss's
involvement in the crime in this case. Accordingly, this issue is without merit. See Davis v. State, 660
So. 2d 1228 (Miss. 1995).
XXIV. THE AGGREGATE ERROR IN THIS CASE REQUIRES REVERSAL OF THE
CONVICTION AND DEATH SENTENCE.
¶131. Finally, Doss argues that because of the cumulative effect of the errors by the State and trial
judge, that his conviction and sentence should be reversed. See, e.g., Jenkins v. State, 607 So. 2d
1171, 1183-84 (Miss. 1992); Hansen v. State, 592 So. 2d 114, 153 (Miss. 1991). The State asserts
that there are no near errors, much less actual errors and that even if the Court were to find near
errors, that such would not result in a denial to Doss of a fair trial when looked at on the whole under
Williams v. State, 445 So. 2d 798, 814 (Miss. 1984).
¶132. Doss argues that the cumulative effect of these alleged errors deprived him of a fair trial and
therefore his conviction should be reversed and his death sentence should be vacated. Most of Doss's
assigned errors are subject to a procedural bar as well as alternatively being without merit. These
assignments of error, taken alone or cumulatively, do not warrant a reversal of Doss's conviction and
death sentence. "Where there is no reversible error in any part, . . . . there is no reversible error to the
whole." McFee v. State, 511 So. 2d 130, 136 (Miss. 1987). This Court has held that a murder
conviction or a death sentence can still not warrant a reversal where the cumulative effect of alleged
errors, if any, was procedurally barred. Davis v. State, 660 So.2d 1228, 1256 (Miss. 1995).
Therefore, this assignment of error is without merit.
CONCLUSION
¶133. Mississippi Code Ann. Section 99-19-105(3) (Supp. 1985) requires this Court to conduct
certain specific inquiries in addition to the assignment of errors by the appellant. As § 99-19-105(3)
states, we are required to determine:
(a) Whether the sentence of death was imposed under the influence of passion, prejudice or any
other arbitrary factor;
(b) Whether the evidence supports the jury's or judge's findings of a statutory aggravating
circumstance as enumerated in Section 99-19-101; and
(c) Whether the sentence of death is excessive or disproportionate to the penalty imposed in
similar cases, considering both the crime and the defendant.
¶134. Ever since Jackson v. State , 337 So. 2d 1242 (Miss. 1976), this Court has upheld the
imposition of the death penalty in the cases listed in the appendix. After carefully reviewing other
similar cases listed in the appendix and comparing them with Doss's case, we find that the conviction
and sentence are appropriate. Furthermore, in specifically fulfilling this Court's statutory requirements
of § 99-19-105(3), we find that the sentence of death in this case was not imposed under the
influence of passion, prejudice or any other arbitrary factor; that the evidence supports the jury's and
judge's findings of the statutory aggravating circumstances as enumerated in Section 99-19-101; and
finally, after considering the crime and Doss particularly, that the sentence of death is not excessive
or disproportionate to other cases in which the same sentence has been imposed.
¶135. Doss has failed to present any plain errors, or cumulative near errors to disturb his conviction
and sentence. Doss's conviction and sentence were properly decided by the jury. Additionally, the §
99-19-105(3) inquiry appears to fail to illuminate any error either. Accordingly, based upon the
previous analysis, we affirm both the conviction and the sentence.
¶136. CONVICTION OF CAPITAL MURDER AND SENTENCE OF DEATH AFFIRMED.
EXECUTION DATE TO BE SET WITHIN SIXTY DAYS OF FINAL DISPOSITION OF
THIS CASE PURSUANT TO MISS. CODE ANN. § 99-19-105 (7) (1972) AND M.R.A.P. 41(a)
.
LEE, C.J., PITTMAN, SMITH AND MILLS, JJ., CONCUR. PRATHER, P.J., DISSENTS
WITH SEPARATE WRITTEN OPINION JOINED BY SULLIVAN, P.J., AND BANKS, J.
SULLIVAN, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
McRAE, J. BANKS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
SULLIVAN, P.J. McRAE, J., DISSENTS WITH SEPARATE WRITTEN OPINION.
PRATHER, PRESIDING JUSTICE, DISSENTING:
¶137. Anthony Doss assigns as error that the death penalty is disproportionate punishment in this
case given the circumstances of this crime. There were two co-defendants in this crime, Freddie Bell
and Anthony Doss, who were indicted and tried separately for capital murder. At sentencing, the jury
was instructed to consider the four Enmund factors, which were codified in Miss. Code Ann. § 9919-101 (7)(a-d) (Supp. 1994), to determine on the facts of this case whether Doss actually killed,
attempted to kill, intended that a killing take place, and/or contemplated the use of lethal force. The
sentencing jury only found that Anthony Doss intended to kill and contemplated the use of lethal
force. The jury did not find that he killed or that he attempted to kill the store clerk; on this basis,
Doss contends that the death penalty is excessive and disproportionate.
¶138. In Enmund v. Florida, 458 US 782, 797 (1982), the United States Supreme Court ruled that
the Eighth Amendment to the United States Constitution forbids the imposition of the death penalty
on a person who aids and abets a felony in the course of which a murder is committed by others, but
who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be
employed. Additionally, this Court is statutorily required to determine "whether the sentence of death
is excessive or disproportionate to the penalty imposed in similar cases, considering the crime and the
defendant." Miss. Code Ann. § 99-19-105 (3)(c) (Supp. 1994). This charge has been interpreted to
mean that this Court must determine whether the sentence imposed here is excessive or
disproportionate to the penalty imposed in similar cases since Jackson v. State, 337 So. 2d 1242
(Miss. 1976). Blue v. State, No. 93-DP-00534-SCT, slip op. at 54 (Miss. Feb. 15, 1996).
¶139. Doss argues to this Court that there is a compounding of error in this trial which requires that
the death penalty be vacated and a life imprisonment sentence be ordered. Doss contends that the trial
court granted an allegedly erroneous instruction on accomplice liability at the guilt phase which
instruction omitted the requirement of proof of intent. The trial court, over objection of the
defendant, submitted Instructions S-3 and S-4 as follows.
¶140. Instruction S-3 stated:
The Court instructs the jury that if two or more persons are engaged in the commission of a
felony, then the acts of each in the commission of the felony are binding upon all, and all are
equally responsible for the acts of each in the commission of such felony.
¶141. Instruction No. S-4 stated:
The Court instructs the jury that under the laws of the State of Mississippi anyone who aids,
assists and encourages in the commission of a crime is deemed a principle (sic) to that crime.
Therefore, if you find from the evidence in this case beyond a reasonable doubt that the
Defendant, Anthony Doss, aided, assisted and encouraged another in the felonious crime of
capital murder, then Anthony Doss is a principle (sic) to that crime.
¶142. Doss objected to the granting of S-3 on the basis that it did not require proof of his mens rea
for the commission of the crimes for which he was charged, that is, murder and the underlying crime
of robbery. Fisher v. State, 481 So. 2d 203, 212 (Miss 1985). Doss refers this Court to the recent
case of Welch v. State, 566 So. 2d 680 (Miss. 1990), wherein this Court stated:
To be convicted as an accessory the defendant must possess the mens rea for the commission of
the crime. The precise state of mind of the defendant has great significance in determining the
degree of his guilt. An accomplice may be convicted of accomplice liability only for those
crimes as to which he personally has the requisite mental state. He must have a "community of
intent" for the commission of the crime.
Welch, 566 So. 2d at 684.
¶143. Other states have reached the same conclusion. In Tomlin v. State, 591 So. 2d 550 (Ala.
Crim.App. 1991), the Alabama Court of Criminal Appeals reversed a capital offense, holding that the
trial court failed to instruct the jury properly on the issue of intent, stating:
Under the accomplice liability doctrine, a nontriggerman accomplice may be convicted of the
capital offense of double murder only if he had the particularized intent that both victims be
killed. In addition, '[t]o affirm a finding of a 'particularized intent to kill' the jury must be
properly charged on the intent to kill issue.
Tomlin, 591 So. 2d at 557 (citations omitted).
¶144. Doss now asserts that because of the allegedly erroneous instruction on accomplice liability at
the guilt phase, which omitted the requirement of proof of intent, the jury's findings at the sentencing
phase are too uncertain and unreliable to support the sentence of death. The constitutional
requirement is set out in Reddix v. Thigpen, 728 F. 2d 705, 709 (5th Cir. 1984), which states:
At the close of the presentation of evidence in the guilt phase of Reddix's trial, the state trial
court instructed the jury regarding the law in Mississippi of accomplice responsibility, which
allows any participant in the crime during which the killing occurs to be liable as a principal.
....A reasonable juror carefully heeding these instructions fairly could conclude that Jones's
intent to commit murder may be imputed to Reddix. That imputation is exactly what Enmund
and the eighth amendment prohibit in death penalty cases.
¶145. In Cabana v. Bullock, 474 U.S. 376 (1986) (overruled on other grounds in Pope v. Williams,
481 U.S. 497 (1987)), the United States Supreme Court addressed whether an accused's culpability
for murder was sufficient under the Eighth Amendment to warrant a death sentence. The Court
acknowledged that the defendant was entitled to have his guilt determined by a jury, but held that the
decision of whether a particular punishment is appropriate was not one that required a jury
determination. Enmund did impose a 'substantive limitation on sentencing,' but it did not impose any
particular form of procedure upon the states. The Bullock case, supra, was remanded to the
Mississippi Court to determine whether Bullock was subject to the death penalty as one who has
killed, attempted to kill, or intended that a killing take place or that lethal force be used.
¶146. On remand, this Court held that the decision of whether a particular punishment is appropriate
in a given case is not one that we have ever required to be made by a jury. Bullock v. State 525 So.
2d 764, 767 (Miss. 1987). "Moreover, the decision whether a sentence is so disproportionate as to
violate the Eighth Amendment .... has long been viewed as one that a trial judge or an appellate court
is fully competent to make." Id.
¶147. In Reddix v. State, 547 So. 2d 792 (Miss. 1989), this Court found that the death sentence was
disproportionate in light of the appellant's age (18 years), mental illness and mild retardation. Reddix
was not the actual killer, although he was present at the scene. Similarly, in Bullock v. State, 525 So.
2d 764 (Miss. 1987), this Court found Bullock's death sentence disproportionate on facts virtually
indistinguishable from those in Reddix. In Bullock, the actual killer had received a life sentence, and
the only Enmund factor found by the jury was that the Bullock contemplated that lethal force would
be used. On the other hand, this Court has affirmed the death penalty for nontrigger defendants
where the facts indicated that that the defendant was the instigator, the planner or the mastermind
who directed the death. Stringer v. State, 454 So. 2d 468 (Miss. 1984); Ballenger v. State, 667 So.
2d 1242 (Miss. 1995).
¶148. In this case Anthony Doss, a nineteen year old at the time of the crime, was not found to have
been the triggerman or one who attempted to kill. Because he did not inflict the lethal blows, I would
find the death penalty disproportionate, vacate the death penalty and impose a life sentence.
SULLIVAN, P.J., AND BANKS, J., JOIN THIS OPINION.
SULLIVAN, PRESIDING JUSTICE, DISSENTING:
¶149. I concur with Presiding Justice Prather's dissent but write separately to state that I would also
reverse on error number three.
¶150. In error number three Doss asserts that the trial court erred in making a comment in front of
the jury during voir dire. He states that following a question made by the defense the trial court
improperly interjected its opinion that the age of the defendant should not be considered by the jury
in mitigation. Mississippi Code Annotated § 99-19-101(6)(g) specifically sets forth that the age of the
defendant is a proper factor for the jury to consider in mitigation.
¶151. The majority holds that because the defense counsel failed to object contemporaneously to the
prejudicial comment the issue is procedurally barred. This Court must ask itself "What is the very
purpose of the contemporaneous objection rule?" Is not the primary function of the contemporaneous
objection rule to alert the trial judge to possible error so that the judge may consider the issue
intelligently and take any corrective actions necessary to avoid injustice? A contemporaneous
objection gives the trial court the opportunity to correct errors, but what if the judge created the
error himself? This Court has addressed this issue before. "The great danger, particularly in a criminal
case, is that the weight and dignity of the court accompanies each question or comment, although not
so intended by the judge, and are very likely to be interpreted by the jury as the court's approval . . .
thus diverting the jurors' attention from their responsibility of deciding the case from the evidence. . .
." Thompson v. State, 468 So. 2d 852, 854 (Miss. 1985). "There can be no doubt the statute and
cases enjoin comment by a judge upon the evidence because the very position of a judge during trial
makes each comment unusually susceptible of influencing a juror or the jury." Hannah v. State, 336
So. 2d 1317, 1321 (Miss. 1976).
It is a tribute to our judicial system that the words and actions of trial judges have great weight
with trial juries. They observe closely the judge's actions and weigh carefully his words, and are
greatly influenced by what they think are his reactions. It is impossible to ascertain the weight
and influence of the testimony of the trial judge with the jurors. The jurors are subordinate to
the judge. He has large control over them. . . . It is the supreme duty of a trial judge, in so far as
it is humanly possible, to hold the scales of justice evenly balanced between the litigants. As a
witness, regardless how careful and conscientious he may be, he necessarily takes on the
appearance of a partisan, endeavoring to uphold by his testimony one side against the other, and
to some extent at least detracts from the dignity and impartiality of his office.
West v. State, 519 So. 2d 418, 422 (Miss. 1988) (quoting Brashier v. State, 197 Miss. 237, 242-43,
20 So. 2d 65, 66-67 (1944)).
The officers of a court, and especially the judge, . . . because of the attributes of [his] office[] . .
. unconsciously exert[s] tremendous influence in the trial of a case, and [he] should be astutely
careful so that unintentionally the jurors are not improperly influenced by [his] words and
actions.
Stallworth v. State, 310 So. 2d 900, 902 (Miss. 1975) (quoting Roberson v. State, 185 So. 2d 667,
670 (Miss. 1966)).
[W]e do point out that comment upon the evidence by a trial judge in the presence of the jury is
hazardous to affirmance on appeal. See Green v. State, 97 Miss. 834, 53 So. 415 (1910),
wherein this Court stated: It is a matter of common knowledge that jurors, as well as officers in
attendance upon court, are very susceptible to the influence of the judge . . . and jurors watch
closely his conduct, and give attention to his language, that they may, if possible, ascertain his
leaning to one side or the other, which, if known, often largely influences their verdict. He
cannot be too careful and guarded in language and conduct in the presence of the jury, to avoid
prejudice to either party. 21 Encyc. P. & P. 994, 995, and notes. The court will not stop to
inquire whether the jury was actually influenced by the conduct of the judge. All the authorities
hold that if they were exposed to improper influences, which might have produced the verdict,
the presumption of law is against its purity; and testimony will not be heard to rebut this
presumption. It is a conclusive presumption.
Shore v. State, 287 So. 2d 766, 769 (Miss. 1974).
¶152. Even though a civil case, the language contained in Nichols v. Munn, 565 So. 2d 1132 (Miss.
1990), is helpful to clarify this point. In Nichols this Court said that an attorney is not held to the
same degree of diligence in making an objection to a judge's comments that he is in making other
objections, since a judge interjects himself into a trial by his own volition. See also Wirtz v. Switzer,
586 So.2d 775, 782 (Miss. 1991).
We have recognized the danger that a trial judge generates by indicating or showing his
attention to certain matters in the trial which may communicate to the jury the impression that
such evidence or testimony is important or unimportant, and the very position of a judge during
trial makes each comment unusually susceptible of influencing a juror or the jury.
Wirtz, 586 So. 2d at 783 (quoting West v. State, 519 So. 2d 418, 423 (Miss. 1988)) (citing Shelton
v. Puckett, 483 So. 2d 354 (Miss. 1986); Hannah v. State, 336 So. 2d 1317 (Miss. 1976), cert.
denied, 429 U.S. 1101 (1977); Thompson v. State, 468 So. 2d 852 (Miss. 1985); Stubbs v. State,
441 So. 2d 1386 (Miss. 1983); Fulgham v. State, 386 So. 2d 1099 (Miss. 1980); Myers v. State, 99
Miss. 263, 54 So. 849 (1911)). A trial judge should not in any way "inadvertently communicate to
the jury his opinion regarding the value or credibility" of a mitigating factor. Shelton v. Puckett, 483
So. 2d 354, 357 (Miss. 1986); Wirtz, 586 So. 2d at 783.
The circuit judge injecting himself into a trial, however, does so by his own deliberative intent,
and he is at least supposed to know better. He should not need to be told by trial counsel that
he has exceeded propriety or deviated from probity. We therefore need not hold trial counsel to
precisely the same degree of diligence. . . .
Nichols, 565 So. 2d at 1137.
¶153. The State argues that even if we waive the procedural bar, the judge's comment was directed at
the prosecution and not the jury. I do not feel it is at all clear that the judge was directing his
comments to the prosecution, and even if he was, it does not matter. Here the judge stated that he did
not think it (presumably the age of the defendant) makes any difference. The jury was present and
prejudiced by such a remark coming from the judge.
¶154. In People v. Mays, 544 N.E.2d 1264 (Ill. App. Ct. 1989), the Illinois court stated why it does
not apply the contemporaneous objection rule to an attorney when the judge makes an improper
comment.
The making of an objection to questions or comments by a judge poses a practical problem for
the trial lawyer. It can prove embarrassing to the lawyer, but, more importantly, assuming that
most juries view most judges with some degree of respect, and accord to them a knowledge of
law somewhat superior to that of the attorneys practicing before the judge, the lawyer who
objects to a comment or question by the judge may find himself viewed with considerable
suspicion and skepticism by the very group whom he is trying to convert to his client's view of
the facts, thereby perhaps irreparably damaging his client's interests. If he fails to object, he
may, on appeal, be faced, as defendant here is, with the claim that his failure to act has
precluded consideration of the error, and it is not always a sufficient answer to this situation to
say that the objection can be made and ruling secured outside the hearing of the jury. It is
particularly incumbent upon the trial judge to exercise a higher degree of care in his comments
regarding, or interrogations of, witnesses before a jury in order to avoid influencing the jurors
to any extent, and we therefore hold that a less rigid application of the rule requiring timely and
proper objection and preservation of rulings thereon should prevail where the basis for the
objection is the conduct of the trial judge than is otherwise required.
Mays, 544 N.E.2d at 1271 (quoting People v. Sprinkle, 189 N.E.2d 295, 297 (Ill. 1963)). That
Court's reasoning is applicable in the case here.
¶155. In Nichols this Court held that when the circuit court judge was clearly wrong in the manner in
which he injected himself into the lawsuit plain error was committed and we required reversal.
Nichols, 565 So. 2d at 1137 (citing Travelers Indem. Co. v. Rawson, 222 So. 2d 131, 136-37 (Miss
1969); Young v. Anderson, 249 Miss. 539, 163 So. 2d 253 (1964); Sivley v. Sivley, 96 Miss. 137,
51 So. 457 (1910)).
¶156. I am as equally unpersuaded in reviewing the majority's argument that the impermissible
comment made by the judge was subsequently cured by the submission of a written instruction as to
mitigating circumstances. I cannot visualize any real curing effect the later given jury's instruction had
on this unfortunate comment.
¶157. By making the statement that the age mitigating factor does not make any difference the judge
"rang the bell." The judge made no comment to correct this gross misstatement of the law and he
allowed this impermissible statement to hang above the jury throughout the trial of the defendant.
Much later the court gave the jury an instruction giving the mitigating factor of age. This is a case
where the prejudicial effect of what the jury heard could not be eradicated by a later written
instruction. By its very nature when a judge makes an inappropriate comment, the possibility for
harm is magnified. Since the advent of television we have become a society of the spoken word, not
the written word. What the jury heard from the judge's mouth far over shadows what it may have
read from his hand.
¶158. To cure such error the trial judge must do more than provide a cursory instruction to the jury
merely to consider age as a mitigating circumstance. The court's remark was an intimation that the
particular mitigator was inadmissible or an indication that it was unworthy of consideration. I would
conclude that the comment of the trial judge which intimated the bias of the court with respect to the
weight of a mitigating factor cannot be corrected by subsequent instruction and was prejudicially
fatal.
McRAE, J., JOINS THIS OPINION.
BANKS, JUSTICE, DISSENTING:
¶159. I join the opinion of Presiding Justice Prather. I write to also note my adherence to the views
expressed in Blue v. State, No. 93-DP-00534-SCT (Miss. 1996), regarding the failure to give a
requested instruction directing individual consideration of mitigating factors. Those views apply
equally to this case.
SULLIVAN, P.J., JOINS THIS OPINION.
McRAE, JUSTICE, DISSENTING:
¶160. Although I do not join in concurrence with Justice Prather, I agree with Justice Sullivan to the
extent he concludes that the comments made by the trial judge in regard to age as a mitigating factor
were prejudicial and constituted reversible error.
APPENDIX
DEATH CASES AFFIRMED BY THIS COURT
Holly v. State, No. 93-DP-00263-SCT (Miss. Feb. 8, 1996).
Russell v. State, No. 93-DP-00418-SCT (Miss. Dec. 7, 1995).
Walker v. State, No. 92-DP-00568-SCT (Miss. Oct. 12, 1995).
Ballenger v. State, 667 So. 2d 1242 (Miss. 1995).
Davis v. State, 660 So. 2d 1228 (Miss. 1995).
Carr v. State, 655 So. 2d 824 (Miss. 1995).
Mack v. State, 650 So. 2d 1289 (Miss. 1994).
Chase v. State, 645 So. 2d 829 (Miss. 1994).
Foster v. State, 639 So. 2d 1263 (Miss. 1994).
Conner v. State, 632 So. 2d 1239 (Miss. 1993).
Hansen v. State, 592 So. 2d 114 (Miss. 1991).
*Shell v. State, 554 So. 2d 887 (Miss. 1989), Shell v. Mississippi, 498 U.S. 1 (1990) reversing, in
part, and remanding, Shell v. State, 595 So. 2d 1323 (Miss. 1992) remanding for new sentencing
hearing.
Davis v. State, 551 So. 2d 165 (Miss. 1989).
Minnick v. State, 551 So. 2d 77 (Miss. 1989).
*Pinkney v. State, 538 So. 2d 329 (Miss. 1989), Pinkney v. Mississippi, 494 U.S. 1075 (1990)
vacating and remanding Pinkney v. State, 602 So. 2d 1177 (Miss. 1992) remanding for new
sentencing hearing.
*Clemons v. State, 535 So. 2d 1354 (Miss. 1988), Clemons v. Mississippi, 494 U.S. 738 (1990)
vacating and remanding, Clemons v. State, 593 So. 2d 1004 (Miss. 1992) remanding for new
sentencing hearing.
Woodward v. State, 533 So. 2d 418 (Miss. 1988).
Nixon v. State, 533 So. 2d 1078 (Miss. 1987).
Cole v. State, 525 So. 2d 365 (Miss. 1987).
Lockett v. State, 517 So. 2d 1346 (Miss. 1987).
Lockett v. State, 517 So. 2d 1317 (Miss. 1987).
Faraga v. State, 514 So. 2d 295 (Miss. 1987).
*Jones v. State, 517 So. 2d 1295 (Miss. 1987), Jones v. Mississippi, 487 U.S. 1230 (1988) vacating
and remanding, Jones v. State, 602 So. 2d 1170 (Miss. 1992) remanding for new sentencing hearing.
Wiley v. State, 484 So. 2d 339 (Miss. 1986).
Johnson v. State, 477 So. 2d 196 (Miss. 1985).
Gray v. State, 472 So. 2d 409 (Miss. 1985).
Cabello v. State, 471 So. 2d 332 (Miss. 1985).
Jordan v. State, 464 So. 2d 475 (Miss. 1985).
Wilcher v. State, 455 So. 2d 727 (Miss. 1984).
Billiot v. State, 454 So. 2d 445 (Miss. 1984).
Stringer v. State, 454 So. 2d 468 (Miss. 1984).
Dufour v. State, 453 So. 2d 337 (Miss. 1984).
Neal v. State, 451 So. 2d 743 (Miss. 1984).
Booker v. State, 449 So. 2d 209 (Miss. 1984).
Wilcher v. State, 448 So. 2d 927 (Miss. 1984).
Caldwell v. State, 443 So. 2d 806 (Miss. 1983).
Irving v. State, 441 So. 2d 846 (Miss. 1983).
Tokman v. State, 435 So. 2d 664 (Miss. 1983).
Leatherwood v. State, 435 So. 2d 645 (Miss. 1983).
Hill v. State, 432 So. 2d 427 (Miss. 1983).
Pruett v. State, 431 So. 2d 1101 (Miss. 1983).
Gilliard v. State, 428 So. 2d 576 (Miss. 1983).
Evans v. State, 422 So. 2d 737 (Miss. 1982).
King v. State, 421 So. 2d 1009 (Miss. 1982).
Wheat v. State, 420 So. 2d 229 (Miss. 1982).
Smith v. State, 419 So. 2d 563 (Miss. 1982).
Johnson v. State, 416 So. 2d 383 (Miss.1982).
Edwards v. State, 413 So. 2d 1007 (Miss. 1982).
Bullock v. State, 391 So. 2d 601 (Miss. 1980).
Reddix v. State, 381 So. 2d 999 (Miss. 1980).
Jones v. State, 381 So. 2d 983 (Miss. 1980).
Culberson v. State, 379 So. 2d 499 (Miss. 1979).
Gray v. State, 375 So. 2d 994 (Miss. 1979).
Jordan v. State, 365 So. 2d 1198 (Miss. 1978).
Voyles v. State, 362 So. 2d 1236 (Miss. 1978).
Irving v. State, 361 So. 2d 1360 (Miss. 1978).
Washington v. State, 361 So. 2d 6l (Miss. 1978).
Bell v. State, 360 So. 2d 1206 (Miss. 1978).
* Case was originally affirmed in this Court but on remand from U. S. Supreme Court,case was
remanded by this Court for a new sentencing hearing.
DEATH CASES REVERSED AS TO GUILT PHASE
AND SENTENCE PHASE
Giles v. State, 650 So. 2d 846 (Miss. 1995)
Duplantis v. State, 644 So. 2d 1235 (Miss. 1994)
Harrison v. State, 635 So. 2d 894 (Miss. 1994)
Butler v. State, 608 So. 2d 314 (Miss. 1992).
Jenkins v. State, 607 So. 2d 1171 (Miss. 1992).
Abram v. State, 606 So. 2d 1015 (Miss. 1992).
Balfour v. State, 598 So. 2d 731 (Miss. 1992).
Griffin v. State, 557 So. 2d 542 (Miss. 1990).
Bevill v. State, 556 So. 2d 699 (Miss. 1990).
West v. State, 553 So. 2d 8 (Miss. 1989).
Leatherwood v. State, 548 So. 2d 389 (Miss. 1989).
Mease v. State, 539 So. 2d 1324 (Miss. 1989).
Houston v. State, 531 So. 2d 598 (Miss. 1988).
West v. State, 519 So. 2d 418 (Miss. 1988).
Davis v. State, 512 So. 2d 129l (Miss. 1987).
Williamson v. State, 512 So. 2d 868 (Miss. 1987).
Foster v. State, 508 So. 2d 1111 (Miss. 1987).
Smith v. State, 499 So. 2d 750 (Miss. 1986).
West v. State, 485 So. 2d 681 (Miss. 1985).
Fisher v. State, 481 So. 2d 203 (Miss. 1985).
Johnson v. State, 476 So. 2d 1195 (Miss. 1985).
Fuselier v. State, 468 So. 2d 45 (Miss. 1985).
West v. State, 463 So. 2d 1048 (Miss. 1985).
Jones v. State, 461 So. 2d 686 (Miss. 1984).
Moffett v. State, 456 So. 2d 714 (Miss. 1984).
Lanier v. State, 450 So. 2d 69 (Miss. 1984).
Laney v. State, 421 So. 2d 1216 (Miss. 1982).
DEATH CASES REVERSED
AS TO PUNISHMENT AND REMANDED
FOR RESENTENCING TO LIFE IMPRISONMENT
Reddix v. State, 547 So. 2d 792 (Miss. 1989).
Wheeler v. State, 536 So. 2d 1341 (Miss. 1988).
White v. State, 532 So. 2d 1207 (Miss. 1988).
Bullock v. State, 525 So. 2d 764 (Miss. 1987).
Edwards v. State, 441 So. 2d 84 (Miss. l983).
Dycus v. State, 440 So. 2d 246 (Miss. 1983).
Coleman v. State, 378 So. 2d 640 (Miss. 1979).
DEATH CASES REVERSED AS TO
PUNISHMENT AND REMANDED FOR A NEW TRIAL
ON SENTENCING PHASE ONLY
Taylor v. State, No. 90-DP-01346-SCT (Miss. Sept. 28, 1995).
*Shell v. State, 554 So. 2d 887 (Miss. 1989), Shell v. Mississippi, 498 U.S. 1 (1990) reversing, in
part, and remanding, Shell v. State 595 So. 2d 1323 (Miss. 1992) remanding for new sentencing
hearing.
*Pinkney v. State, 538 So. 2d 329 (Miss. 1989), Pinkney v. Mississippi, 494 U.S. 1075 (1990)
vacating and remanding, Pinkney v. State, 602 So. 2d 1177 (Miss. 1992) remanding for new
sentencing hearing.
*Clemons v. State, 535 So. 2d 1354 (Miss. 1988), Clemons v. Mississippi, 494 U.S. 738 (1990)
vacating and remanding, Clemons v. State, 593 So. 2d 1004 (Miss. 1992) remanding for new
sentencing hearing.
*Jones v. State, 517 So. 2d 1295 (Miss. 1987), Jones v. Mississippi, 487 U.S. 1230 (1988) vacating
and remanding, Jones v. State, 602 So. 2d 1170 (Miss. 1992) remanding for new sentencing hearing.
Russell v. State, 607 So. 2d 1107 (Miss. 1992).
Holland v. State, 587 So. 2d 848 (Miss. 1991).
Willie v. State, 585 So. 2d 660 (Miss. 1991).
Ladner v. State, 584 So. 2d 743 (Miss. 1991).
Mackbee v. State, 575 So. 2d 16 (Miss. 1990).
Berry v. State, 575 So. 2d 1 (Miss. 1990).
Turner v. State, 573 So. 2d 657 (Miss. 1990).
State v. Tokman, 564 So. 2d 1339 (Miss. 1990).
Johnson v. State, 547 So. 2d 59 (Miss. 1989).
Williams v. State, 544 So. 2d 782 (Miss. 1989).
Lanier v. State, 533 So. 2d 473 (Miss. 1988).
Stringer v. State, 500 So. 2d 928 (Miss. 1986).
Pinkton v. State, 481 So. 2d 306 (Miss. 1985).
Mhoon v. State, 464 So. 2d 77 (Miss. 1985).
Cannaday v. State, 455 So. 2d 713 (Miss. 1984).
Wiley v. State, 449 So. 2d 756 (Miss. 1984).
Williams v. State, 445 So. 2d 798 (Miss. 1984).
* Case was originally affirmed in this Court but on remand from U. S. Supreme Court, case was
remanded by this Court for a new sentencing hearing.
1. Doss previously pled guilty to second degree murder in Memphis Tennessee for killing Tommy
White on May 6, 1991, in Shelby County Tennessee. This murder occurred hours later on the same
day as the offense charged in this case.
2. The foregoing is the first choice the jury had available. The other two choices were (1) "We, the
jury, find that the defendant should be sentenced to life imprisonment."
(2) "We, the jury, are unable to agree unanimously on punishment."
3. Freddie was tried in a separate trial for the same offense as Doss. "Freddie" is used for the purpose
of this opinion, as opposed to Bell, because the last name of the victim was Bell as well; Robert C.
"Bert" Bell. There is no relation. Coffey was a witness in Freddie's trial.
4. James, and Coffey, testified as State witnesses in Doss's trial during the guilt phase. Coffey also
testified during the sentencing phase of Doss's trial. Doss testified in his own behalf during the guilt
phase only.
5. James testified that they did not go behind the counter at that time and touch the coke box. The
significance is that following Bell's death, Doss's prints were found on the coke box which is behind
the counter where Bell, the cash register, .38 caliber with shells, and money bag were located.
6. All three guns were successfully test-fired during the pre-trial ballistics testing. However, Doss was
still permitted to use this as a mitigating factor during the sentencing phase. The State forensic
scientist, John Michael Allen of the Mississippi Crime Laboratory, matched five of the nine bullet
holes in the victim to the .38 caliber pistol. Three of the remaining four shots retrieved from the body
were matched to the point of leading Allen to the position that they were very similar but that there
simply were not enough reproducible characteristics to make a 100% match as was done with the
.38.
7. Doss was allowed to use the "extreme duress or substantial domination" mitigating factor.
8. The State's forensic pathologist witness, Dr. Stephen Hayne, testified that Bell had three shots in
and through his hands from apparently trying to deflect bullets.
9. Doss's police station statement and in-court testimony are very different.
10. Doss used this act as a mitigating factor during the sentencing phase.
11. Gladney, Doss, Coffey and Freddie were all indicted in Tennessee in July 1991 for robbing and
killing Tommy White.
12. Doss's cross-examination also revealed that he never told the police that Freddie threatened him
or that he was scared until his in-court testimony. Additionally, Doss admitted that he went to
Memphis so that he would not get caught.
13. The .22 and .38 caliber pistols were recovered from Freddie's house and the .25 caliber was
recovered from Bernard Gladney's car.
14. Doss had two refused instructions, D-9 and D-10, which instructed the jury that it should
deliberate on the issue of the lesser crime of robbery alone should they find that the State failed to
prove all of the elements of murder. Instruction S-1-A is the submitted instruction on the elements of
armed robbery which the jury used. Instruction C-1 instructed the jury to consider all of the
instructions as a whole.
15. However, the sentencing form in the record reflects that the jury unanimously found (1) that Doss
intended that the killing take place and (2) that lethal force was contemplated during the robbery.
Therefore, the jury found mens rea.
16. The comment by the judge is alleged to override Mississippi law because Miss. Code Ann.
Section 99-19-101(6)(g) specifically sets forth age as a mitigating factor.
17. Sentencing Instruction C-1 lists age as the first mitigating factor.
18. We take notice of the fact that no one spoke up when generally most would have, regardless of
the fact that these were judge's statements, because capital murder is involved.
19. The Court Papers also disclose that this issue was not raised by Doss in his motion for acquittal
notwithstanding the verdict and in the alternative for a new trial.
20. Doss relies upon the 5.06/10.01 argument used infra.
21. Former Rule 5.06 of the Mississippi Uniform Criminal Rules of Circuit Court has subsequently
been changed. Former Rule 5.06 is now Rule 10.01, Jury Selection, of the Uniform Circuit and
County Court Rules. The change in the rule was adopted effective May 1, 1995. The language of
former Rule 5.06 relied upon by Doss has been amended.
22. It is the absence in the record of what was said by whom before the cause strikes began that
creates the vagueness.
23. The Miller Court reversed and remanded a grand larceny conviction where the sheriff told the
young unsuspecting black defendant that he was better off by telling the truth. This was held by the
Court to be an impermissible method of inducement under the circumstances. Such a statement by the
sheriff was found by this Court to make Miller's confession involuntary. Miller v. State, 243 So. 2d
558, 559 (Miss. 1971). However, this Court has also found similar types of statements by a sheriff to
be "mere exhortations to tell the truth" and not implied promises where the defendant has been more
familiar with the justice system and the officers involved. Willie v. State, 585 So. 2d 660, 668 (Miss.
1991).
24. Doss denied that he knew shooting was going to take place, but admitted that he went into the
store to rob it.
25. Davis was superseded by Rule as stated in Williams v. State, 595 So. 2d 1299, 1308 (Miss.
1992). Williams recognized the "relaxation" of Davis.
26. Issue XII is also addressed in Doss's Reply Brief. However, it only addresses the sufficiency of
the evidence regarding the submission of the instruction; not the lack of an accompanying limiting
instruction.
27. Facts 2, 3, and 5 were denied by Doss during trial.
28. C-1's second aggravator reads as follows. "The capital murder of Robert C. "Bert" Bell was
committed while the defendant was engaged or was an accomplice, in the commission of armed
robbery."
29. The Court in Willie v. State, 585 So. 2d 660, 680-681 (Miss. 1991) modified the Ladner holding
and overruled the Wiley progeny cases permitting the use of robbery and pecuniary gain as
aggravators together to prohibit the conjunctive use of these aggravators. However, this is not the
argument made by Doss here as pecuniary gain was not used as an aggravator.
30. The Court's prior holding on 'heinous, atrocious, and cruel' aggravators in Pinkney v. State, 538
So. 2d 329 (Miss. 1988) was vacated by the United States Supreme Court in 494 U.S. 1075, 110
S.Ct. 1800, 108 L.Ed.2d 931 (1990) and remanded to this Court which decided and remanded the
matter for resentencing in 602 So. 2d 1177 (Miss. 1992).
31. State v. McKinney, 603 S.W.2d 755, 758 (Tenn.Cr.App. 1980) holds that second degree murder
is a non-capital felony.
32. Doss contends that should the Court find that this aggravator was impermissibly submitted to the
jury, that the case would have to be reversed because some jurors may have found different
aggravators thereby violating his constitutional right to a unanimous jury verdict under United States
v. Ford, 872 F.2d 1231, 1237 (6th Cir. 1989). However, this argument is without weight in light of
the sentencing form which states that the jurors unanimously found all three of the listed aggravators.
33. Chase provided a quote from Cole v. State, 525 So. 2d 365, 369 (Miss. 1987) wherein this Court
stated: "If no contemporaneous objection is made, the error, if any, is waived. This rule is not
diminished in a capital case." Cole has subsequently had his case remanded for resentencing by this
Court when it granted his PCR request because of the use of the "heinous, atrocious and cruel"
aggravator which was used in his trial without a limiting instruction. See 666 So. 2d 767 (Miss.
1995).
34. The Shell Court was looking at the disjunctive language of "heinous, atrocious or cruel."
35. During sentencing deliberations, the jury sent a note to the trial judge asking him if they had the
option of sentencing Doss to life without parole. The judge responded that it had given them "all the
instructions I can give you."
36. However, Doss was sentenced under the pre-1994 version of § 99-19-101 which did not provide
for life without parole.
37. The Stringer holding used by Doss comes from Coleman v. State, 378 So. 2d 640, 648 (Miss.
1979), wherein, the Court held that "[i]n the sentencing phase of the capital murder trial, the State is
limited to offering evidence that is relevant to one of the aggravating circumstances included in § 9919-101." Stringer actually involved the introduction of prior non-violent misdemeanor convictions to
impeach his testimony regarding a mitigating circumstance which the Court held to be proper; not the
permitting of the jury to consider the detailed circumstances of the crime convicted. Stringer, 500
So. 2d at 941.
38. See Jordan v. State, 518 So. 2d 1186 (Miss. 1987) for disposition in light of Jordan v.
Mississippi, 476 U.S. 1101, 106 S.Ct. 1942, 90 L.Ed.2d 352 (1986) with regard to the exclusion of
mitigating evidence.
39. D-S3 used boxes for the jury to check.
40. The "individualized consideration" language comes from Enmund wherein the United States
Supreme Court held that the proper inquiry by a jury should be upon the particular defendant's
culpability and not that of those who committed the robbery and shot the victims. Enmund is quite
distinguishable from this case in that Doss was found to have "intended the killing take place" and
"contemplated that lethal force would be used" whereas Enmund's jury did not find that he killed or
attempted to kill or any proof that Enmund had any culpable mental State. Enmund v. Florida, 458
U.S. 782, 798 (1982); See Tison v. Arizona, 107 S.Ct. 1676, 1683-84 (1987).
41. As can be seen from this excerpt, Doss did not object on the ground that C-1 did not require the
jury to find Doss's particularized intent.
42. Such is a difficult argument today in light of Ballenger v. State, 1995 WL 560011 (Miss.). This
Court, 9-0, upheld the death sentence against Ballenger where she was the instigator accomplice, but
not the "trigger-person." Basic felony-murder jurisprudence does not require that a defendant be the
trigger-person to be found guilty of capital murder when a death occurs during the commission of a
felony.
43. Doss contends that the improper statements by the prosecutor can not be held harmless because
this is a death penalty case. Irving v. State, 361 So. 2d 1360, 1363 (Miss. 1978).
44. This is alleged as a prejudicial misstatement by Doss because it is true that Doss was only tried
for one murder in this case. Doss had already pled guilty to second-degree murder in Tennessee.
Therefore, while it is true that this was not a case where two lives were taken for which Doss was
being tried, the other murder was an aggravator which could in some interpretation make this a case
of two lives having been taken.
45. This Court upheld a procedural bar against Ballenger on this very claim. 1995 WL 560011, *33;
See also Hansen , 592 So. 2d at 140; Cole v. State, 525 So. 2d 365, 369 (Miss. 1987).
46. The Court finds that this excerpt does not contain any facts not in evidence except possibly the
"we're going to kill Bert Bell" portion. There was evidence that the jury could have inferred such
from, but not any explicit testimony that Doss had formed the specific intent to kill Bell particularly
before entering the store.
47. Doss used the Bible to argue that God did not support the death penalty.
48. Reddix was subsequently granted Habeas Corpus by Reddix v. Thigpen, 554 F.Supp. 1212
(S.D.Miss., Jan 20, 1983) which was affirmed in part and reversed in part and remanded byReddix v.
Thigpen, 728 F.2d 705 (5th Cir.(Miss.)) (1984). The 728 F.2d 705 decision was based upon the fact
that the State had failed to prove that Reddix had the criminal intent to commit the murder or the
requisite Enmund intent to be sentenced to death. Request for a rehearing of this decision and
certiorari were denied respectively. Reddix v. Thigpen, 732 F.2d 494 (5th Cir.(Miss. 1984)) and
Thigpen v. Reddix, 469 U.S. 990, 105 S.Ct. 397, 83 L.Ed.2d 331 (1984). Such is not the case with
Doss as two Enmund factors were found by the jury.
49. The Court very recently affirmed a death sentence against an instigator non-trigger defendant in
Ballenger v. State, 667 So. 2d 1242 (Miss.1995).
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