Berry v. State

• Decision Date: 20 November 1997
• Docket Number: No. 93-DP-00059-SCT,93-DP-00059-SCT
• Citation: 703 So.2d 269
• Parties: Earl Wesley BERRY v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 269

703 So.2d 269

Earl Wesley BERRY v. STATE of Mississippi.

No. 93-DP-00059-SCT.

Supreme Court of Mississippi.

Nov. 20, 1997.

David O. Bell, Oxford, Charles R. Lewis, Jr., Louisville, for appellant.

Michael C. Moore, Attorney General, Marvin L. White, Jr., Asst. Atty. Gen., Jackson, for appellee.

En Banc.

Part One:

MILLS, Justice, for the Court:

¶1 On March 1, 1988, the Chickasaw County grand jury indicted Earl Wesley Berry for the kidnapping and murder of Mary Bounds in violation of Miss.Code Ann. § 97-3-19(2)(e). Berry was also charged with being an habitual offender in violation of Miss.Code Ann. § 99-19-81. He was tried and found guilty of capital murder and sentenced to death. On appeal, this Court affirmed the jury's verdict of guilty but vacated the death sentence and remanded for a new sentencing trial. Berry v. State, 575 So.2d 1 (Miss.1990), cert. denied, 500 U.S. 928, 111 S.Ct. 2042, 114 L.Ed.2d 126 (1991) (Berry I ).

¶2 The second sentencing trial commenced on February 17, 1992, in the Circuit Court of Chickasaw County; however, due to the nature and extent of pretrial publicity, a jury could not be empaneled. By order of the trial judge, venue was changed to the Circuit Court of Union County on March 17, 1992. The resentencing trial began on June 22, 1992, and on June 25, 1992, the jury again returned a sentence of death. The trial court denied Berry's motion for a new trial and judgment notwithstanding the verdict on December 21, 1992. Aggrieved with the jury's sentence, Berry filed his appeal to this Court assigning eighteen separate errors for our review. In this portion of the court's opinion we discuss the following issues which have been re-numbered for the sake of convenience.

I. LEGISLATIVE MANDATE AS TO WHAT FACTORS JUSTIFY IMPOSITION OF DEATH SENTENCE FLOUTED WHEN ARBITRARY FACTORS WERE RELIED ON TO ADVOCATE DEATH, VIOLATING BERRY'S RIGHTS UNDER STATE LAW AND EIGHTH AMENDMENT TO U.S. CONSTITUTION.

II. ADMISSION OF UNRELIABLE AND IRRELEVANT EVIDENCE VIOLATED BERRY'S RIGHT TO A FAIR TRIAL.

III. EIGHTH AND FOURTEENTH AMENDMENTS TO U.S. CONSTITUTION AND ARTICLE 3, § 28 OF STATE CONSTITUTION PROHIBIT IMPOSITION OF DEATH PENALTY WHERE SYSTEM PERMITS THIS UNIQUE PENALTY TO BE APPLIED IN A WANTON AND FREAKISH MANNER.

IV. PROSECUTORIAL MISCONDUCT IN TRIAL OF THIS CASE VIOLATED BERRY'S RIGHTS UNDER FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO U.S. CONSTITUTION AND ARTICLE 3, §§ 14, 26, AND 28 OF STATE CONSTITUTION OF 1890.

V. AGGRAVATING CIRCUMSTANCE "THAT THE CAPITAL OFFENSE WAS ESPECIALLY HEINOUS, ATROCIOUS, OR CRUEL" WAS SUBMITTED TO JURY IN MANNER VIOLATIVE OF STATE LAW AND EIGHTH AND FOURTEENTH AMENDMENTS TO U.S. CONSTITUTION.

VI. SUBMISSION OF "MURDER IN THE COURSE OF A KIDNAPING" OR "FELONY MURDER" AGGRAVATING CIRCUMSTANCE VIOLATED STATE LAW, STATE CONSTITUTIONAL PROHIBITION AGAINST DOUBLE JEOPARDY, AND FEDERAL CONSTITUTIONAL PROHIBITIONS AGAINST DOUBLE JEOPARDY AND CRUEL AND UNUSUAL PUNISHMENT.

VII. ERROR IN LIMITING CONSIDERATION OF MENTAL CAPACITY TO "SUBSTANTIAL IMPAIRMENT" AND IN DENYING REQUESTED CHARGE ON STATUTORY MITIGATING CIRCUMSTANCE OF "MENTAL OR EMOTIONAL DISTURBANCE."

VIII. ERROR IN REFUSING TO GIVE PEREMPTORY INSTRUCTIONS ON UNDISPUTED MITIGATING CIRCUMSTANCES.

IX. SENTENCING INSTRUCTIONS ERRONEOUS IN THAT THEY FAILED TO INFORM JURY THAT THEY NEED NOT BE UNANIMOUS IN FINDING MITIGATING CIRCUMSTANCES.

X. ERROR IN SUBMITTING "PRIOR VIOLENT FELONY" AGGRAVATOR TO JURY.

XI. DENIAL OF INSTRUCTIONS D-5, D-9, AND D-14 AND GRANTING OF STATE'S "SENTENCING INSTRUCTION 1" WAS ERROR UNDER STATE LAW AND EIGHTH AND FOURTEENTH AMENDMENTS.

XII. ERROR IN ADMITTING INTO EVIDENCE STATEMENT OF BERRY TAKEN IN VIOLATION OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS.

XIII. ERROR IN DENYING INDIVIDUAL SEQUESTERED VOIR DIRE.

XIV. CIRCUIT COURT VIOLATED SIXTH AND FOURTEENTH AMENDMENTS TO U.S. CONSTITUTION BY CHOOSING VENUE WHICH RESULTED IN SUBSTANTIAL REDUCTION OF PROPORTION OF AFRICAN-AMERICANS ON JURY VENIRE.

XV. ERROR IN EXCUSING A JUROR FOR CAUSE IN VIOLATION OF STATE LAW AND SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO U.S. CONSTITUTION.

XVI. DEATH PENALTY IS DISPROPORTIONATE PUNISHMENT HERE GIVEN THE CIRCUMSTANCES OF THE CRIME AND CHARACTER AND HISTORY OF DEFENDANT.

XVII. AGGREGATE ERROR IN THIS CASE REQUIRES BERRY'S DEATH SENTENCE BE VACATED.

¶3 The following facts were delineated as set forth in Berry:

Mary Bounds was reported missing around midnight, Sunday, November 29, 1987. Authorities located her automobile in Houston, near the Baptist Church. Blood was spattered around the driver's door of the car, and Mary Bound's earrings were found near the car Tuesday morning. Cecil Woodard, Jr., found a pair of woman's shoes by the side of a road Monday morning. On learning that a woman was missing, he directed authorities to the place where he found them. Nearby, authorities discovered Mary Bounds' body.

We know details of the murder only from Earl Berry's own statements, corroborated by the physical evidence. Earl Berry, after leaving a friend's apartment, drove through Houston, Mississippi, at approximately 7:00 p.m., Sunday, November 29, 1987. He saw Mary Bounds near the Baptist Church, and approached her. As Berry reached for her, she screamed, he hit her and forced her into his car, after which he left town.

The first time Berry stopped, he took Mary Bounds into the woods, lifted her over a fence, and ordered her to lie down, intent on raping her. For reasons unknown, he did not actually commit the rape, but took his victim back to his car, telling her they would return to town. Once in the car, Berry drove, not into town, but south and turned off once again into another wooded area. Mary Bounds begged, for what, Berry could not say. Berry beat her with his fist and forearm, after which he carried her over a fence and deeper into the woods. At one point she was forced to the ground and he lay over her as a car approached. He carried her deeper into the woods, where he left her.

Berry drove south, eventually arriving at his grandmother's house, disposing of a mismatched pair of tennis shoes he was wearing on the way. On arrival he burned his bloodied clothes, then cleaned the blood from his car with a towel which he threw into the pond near the house.

A blue pajama top and dish towel were found in the pond behind Berry's house. Berry's knuckles were skinned when he was arrested. The mismatched tennis shoes were located with Berry's assistance. Mary Bounds' body bore wounds consistent with a beating, and her legs were badly scratched. She died of head injuries from blows.

Berry, 575 So.2d at 4.

I. LEGISLATIVE MANDATE AS TO WHAT FACTORS JUSTIFY IMPOSITION OF DEATH SENTENCE FLOUTED WHEN ARBITRARY FACTORS WERE RELIED ON TO

ADVOCATE DEATH, VIOLATING BERRY'S RIGHTS UNDER STATE LAW AND EIGHTH AMENDMENT TO U.S. CONSTITUTION.

¶4 During trial the prosecutor called Gena Watson, Mary Bounds' daughter, as a witness. The prosecutor questioned Watson about some of the victim's personal characteristics and background. He asked Watson about her parents' marriage and their jobs. Later, he introduced into evidence a photograph of Mr. and Mrs. Bounds. The prosecutor went on to introduce photographs of Mrs. Bounds' car at the First Baptist Church in Houston, as well as, photographs of the church itself. He elicited from Watson how long her mother had been a member of the church and the activities in which she participated. Watson was asked to identify a pair of earrings and shoes as belonging to her mother and was also quizzed about visits her mother made to Ella Springer, Watson's grandmother.

¶5 Berry argues that this type of evidence is impermissible because it could result in the death sentence being imposed wholly for arbitrary reasons not related to the crime, in contravention of the Eighth and Fourteenth Amendments to the Constitution of the United States. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). He further advances this argument by claiming that Mississippi's sentencing scheme in capital cases comports with the Furman principle through the operation of this State's aggravating circumstances statute, Miss.Code Ann. § 99-19-101. According to Berry, aggravating circumstances allow a jury to select death row inmates in a regulated manner, thereby avoiding the arbitrary imposition of death sentences as prohibited by Furman; therefore, the State is limited to introducing evidence that is relevant only to the eight statutory aggravating circumstances of Miss.Code Ann. § 99-19-101(5).

¶6 In Balfour v. State, 598 So.2d 731, 747-48 (Miss.1992), and Coleman v. State, 378 So.2d 640, 648 (Miss.1979), we limited evidence in the sentencing phase of a capital case to that which is relevant to statutory aggravating circumstances under § 99-19-101(5). Despite this fact, the State contends that this evidence is fully permissible as victim character evidence and victim impact evidence under United States Supreme Court precedent and precedent of this Court. The State relies on Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991); Conner v. State, 632 So.2d 1239 (Miss.1993), cert. denied, 513 U.S. 927, 115 S.Ct. 314, 130 L.Ed.2d 276 (1994); Jenkins v. State, 607 So.2d 1171 (Miss.1992); and Hansen v. State, 592 So.2d 114 (Miss.1991), cert. denied, 504 U.S. 921, 112 S.Ct. 1970, 118 L.Ed.2d 570 (1992), post-conviction relief granted on other grounds, 649 So.2d 1256 (Miss.1994), in support of its contention.

¶7 In Payne, the United States Supreme Court announced that the Eighth Amendment did not bar a State's choice to permit the admission of victim character and impact evidence, nor did it bar prosecutorial argument on those matters. Payne, 501 U.S. at 827, 111 S.Ct. at 2609. This Court, however, has been hesitant to embrace the full constitutional panoply afforded by Payne. Several of our recent cases reflect Payne's impact on...