709 So.2d 369 (Miss. 1996), 93-DP-00509, Doss v. State

Docket Nº93-DP-00509-SCT.
Citation709 So.2d 369
Party NameAnthony Joe DOSS v. STATE of Mississippi.
Case DateMay 23, 1996
CourtSupreme Court of Mississippi

Page 369

709 So.2d 369 (Miss. 1996)

Anthony Joe DOSS

v.

STATE of Mississippi.

No. 93-DP-00509-SCT.

Supreme Court of Mississippi.

May 23, 1996

As Modified Dec. 15, 1997.

Rehearing Denied Dec. 15, 1997.

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H. Lee Bailey, Jr., Bailey & Bailey, Winona, for appellant.

Michael C. Moore, Attorney General, Marvin L. White, Jr., Assistant Attorney General, Jeffrey A. Klingfuss, Sp. Asst. Attorney General, Jackson, for appellee.

En Banc.

JAMES L. ROBERTS, Jr., 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.

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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

  1. ANTHONY DOSS WAS ENTITLED TO A LESSER INCLUDED OFFENSE INSTRUCTION UNDER THE FEDERAL AND STATE CONSTITUTIONS AND MISSISSIPPI LAW.

  2. 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.

    1. INSTRUCTION NO. S-3

    2. INSTRUCTION NO. S-4

    3. ACCOMPLICE LIABILITY

  3. 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.

  4. 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.

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  5. 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.

  6. THE TRIAL COURT ERRED IN EXCUSING JURORS LUMAS AND MOORE FOR CAUSE IN VIOLATION OF MISSISSIPPI LAW AND THE UNITED STATES AND MISSISSIPPI CONSTITUTIONS.

  7. 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.

  8. THE ADMISSION OF TEN GRUESOME PHOTOGRAPHS OF THE DECEASED VIOLATED RULE 403 OF THE MISSISSIPPI RULES OF EVIDENCE AND THE STATE AND FEDERAL CONSTITUTIONS.

  9. 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.

  10. 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.

  11. 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

  12. THE TRIAL COURT VIOLATED THE UNITED STATES AND MISSISSIPPI CONSTITUTIONS AND MISSISSIPPI LAW IN SUBMITTING THE "AVOIDING ARREST" AGGRAVATING CIRCUMSTANCE TO THE JURY.

  13. THE TRIAL COURT ERRED IN SUBMITTING TO THE JURY THE ROBBERY-MURDER AGGRAVATING CIRCUMSTANCE IN VIOLATION OF THE UNITED STATES CONSTITUTION AND STATE LAW.

  14. 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.

  15. 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.

  16. THE TRIAL COURT'S ANTI-SYMPATHY INSTRUCTION COUPLED WITH DENIAL OF A MERCY INSTRUCTION VIOLATED THE UNITED STATES AND MISSISSIPPI CONSTITUTIONS AND MISSISSIPPI LAW.

  17. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S INSTRUCTION D-S4 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.

  18. THE TRIAL COURT ERRED IN INSTRUCTING THE JURY AT THE

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    SENTENCING THAT IT COULD CONSIDER "THE DETAILED CIRCUMSTANCES OF THE OFFENSE."

  19. 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.

  20. 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.

  21. 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.

  22. THE IMPROPER CLOSING ARGUMENT BY THE PROSECUTOR VIOLATED ANTHONY DOSS'S RIGHTS UNDER THE UNITED STATES AND MISSISSIPPI CONSTITUTIONS AND MISSISSIPPI LAW.

  23. THE DEATH PENALTY IS DISPROPORTIONATE PUNISHMENT HERE GIVEN THE CIRCUMSTANCES OF THE CRIME.

  24. 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

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    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...

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