Evans v. State

• Decision Date: 03 November 1982
• Docket Number: No. 53754,53754
• Citation: 422 So.2d 737
• Parties: Connie Ray EVANS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 737

422 So.2d 737

Connie Ray EVANS v. STATE of Mississippi.

No. 53754.

Supreme Court of Mississippi.

Nov. 3, 1982.

Rehearing Denied Dec. 15, 1982.

Bell & Collins, James D. Bell, Jackson, for appellant.

Bill Allain, Atty. Gen. by Amy D. Whitten, Sp. Asst. Atty. Gen., Jackson, for appellee.

En banc.

ROY NOBLE LEE, Justice, for the Court:

Connie Ray Evans and Alfonso Artis were jointly indicted in the Circuit Court of the First Judicial District of Hinds County, Honorable William F. Coleman, presiding, on a charge of capital murder. Evans entered a plea of guilty to the charge and the trial proceeded on the sentencing phase. After hearing the evidence, the jury found Evans guilty and sentenced him to death. He has appealed and assigns ten (10) errors in the trial below.

FACTS

Connie Ray Evans was twenty-one (21) years of age at the time of the homicide. On the night of April 7, 1981, he and Alfonso Artis, age twenty-four (24), met at the Alamo Theater on Farish Street in the City of Jackson, Mississippi, and planned to rob R.J.'s Food Center on Lynch Street. They considered the fact that gunplay might be involved in the robbery. About 6:30 the following morning, Artis went to the house where Evans lived with his mother and stepfather, and they left together for the R.J. Food Center. Upon arrival there, they walked by the store on two occasions but did not enter because customers were present. After waiting approximately one-half hour, they began the robbery. Artis went inside with a gun while Evans waited outside and watched for trouble. Artis drew the gun on Arun Pahwa, the store attendant, and forced him at gunpoint to get on his knees behind the counter. Evans entered the store, received the gun from Artis, held it on Pahwa and guarded him while Artis checked the cash register. Artis could not open the cash drawer, and Pahwa was made to get up from the floor, open the cash register and then was forced to kneel again. Artis collected money from the cash register and then searched and emptied Pahwa's pockets and wallet.

Evans shot Pahwa in the head as he knelt motionless behind the counter and the two ran out the door. They had obtained approximately one hundred forty dollars ($140.00) in the robbery. Artis took off his shirt and wrapped the gun in it as they ran. Later, he gave the gun to Evans, who wiped away some of the fingerprints, and they hitchhiked to appellant's brother's house where Evans hid the gun behind a clock. They left there, caught a bus to the downtown area, and spent most of the money on new clothes. That night, they went to a movie, drank beer at a local club, then separated and went home. Evans told Artis that he shot Pahwa because "I was cold hearted."

The police were notified of the robbery and murder and went to the scene where they found the cash drawer open and Pahwa lying behind the counter in a pool of blood. The cause of death was a gunshot wound in the head. As a result of the police investigation, Artis was apprehended on the night of April 8, 1981, and Evans was arrested seventeen (17) days later on April 25, 1981. He stayed on the streets during this time and finally telephoned his mother and decided to give himself up. Evans gave a written confession to the crime. Artis pled guilty to charges of armed robbery and manslaughter and received a sentence of twenty (20) years, with fifteen (15) years suspended. He testified for the State on the trial.

LAW

I.

Did the trial court err in striking for cause a juror who was irrevocably committed to vote against the death penalty regardless of the facts and circumstances presented?

On voir dire examination, a female juror stated that she had conscientious scruples against the infliction of the death penalty; and that she had strong feelings about sending somebody to jail or giving them the death penalty. She said:

Q. I would assume that the lesser of the two would be to send someone to jail, so are you sure that you couldn't sentence someone to death?

A. I am positive.

Q. You are positive you couldn't return a verdict recommending the death penalty, is that correct?

A. Yes, sir.

The prospective juror qualified her feeling against the death penalty by saying that, if a person had killed several people she probably could vote for the death penalty. Also, she vacillated some when interrogated by the appellant's attorney. She responded further:

Q. I see. So a murder in the process of a robbery you could not vote for the death penalty under any circumstances, is that correct?

A. (Juror nodded)

* * *

Q. No question in your mind about that? You could not follow the law if the law was that you are to consider the death penalty and you decide on whether or not it's a bad enough case, and you couldn't even consider it if it was just one person killed?

A. If someone killed someone else, like I said, out of fear because they had robbed a store, no.

Q. I'm not asking you in self-defense or anything like that. Self-defense we wouldn't be here. He wouldn't have pled guilty.

A. (Juror nodded negatively).

Q. Your answer is still no, you could not consider it?

A. (Juror nodded negatively).

Q. Under any circumstances?

A. (Juror nodded).

The principle involved here was stated in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). It has been followed many times, and recently in Edwards v. State, 413 So.2d 1007 (Miss.1982), where the Court said:

First argument made relates to the exclusion of juror Hibler on the ground of "conscientious scruples" against the death penalty. Juror Hibler was asked by the circuit judge if she could follow the testimony and instructions of the court although the "verdict could result in the death penalty"; juror Hibler said, "I couldn't."

Upon this state of juror Hibler's voir dire examination, she was excused and the defendant urges reversible error under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Having categorically stated that she couldn't follow the testimony and instructions of the court, we think that the juror was correctly excluded. The fact that upon questioning by defense counsel, Hibler stated she would try to be a "fair" juror did not qualify her in this case. Similar argument was made in Edwards v. State, supra, n. 1, but there the sentence was life imprisonment whereas here the sentence is death. Thus, the two cases are not precisely analogous. For an excellent explanation of the proper method of bringing the death penalty to the attention of the special venire in capital cases, see Armstrong v. State, 214 So.2d 589 (Miss.1968). .

See also Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1969); Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969); Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970).

In Irving v. State, 361 So.2d 1360 (Miss.1978), we said:

Following Witherspoon, this Court considered the procedure to be employed by trial judges in Myers v. State, 254 So.2d 891 (Miss.1971). That procedure follows:

" 'The proper method of bringing the death penalty to the attention of the special veniremen is for the trial judge to inform them that they have been summoned as veniremen in a capital case and that a verdict of guilty could result in the infliction of the death penalty. The judge should then ask We are of the opinion that there is no merit in the first assignment.

them if any member of the panel has any conscientious scruples against the infliction of the death penalty, when the law authorizes it, in proper cases, and where the testimony warrants it. If there are those who say that they are opposed to the death penalty, the trial judge should then go further and ask those veniremen, who have answered in the affirmative, whether or not they could, nevertheless, follow the testimony and the instructions of the court and return a verdict of guilty although that verdict could result in the death penalty, if they, being the judges of the weight and worth of the evidence, were convinced of the guilt of the defendant and the circumstances warranted such a verdict. Those who say that they could follow the evidence and the instructions of the court should be retained, and those who cannot follow the instructions of the court should be released. The mere fact that a venireman is opposed to the death penalty does not disqualify him as a juryman, if he can do his duty as a citizen and juror and follow the instructions of the court, and where he is convinced of the defendant's guilt he can convict him although the verdict of the jury may result in the death penalty's being inflicted upon the defendant.' (Emphasis added). Armstrong v. State, Miss., 214 So.2d 589, at 593." 254 So.2d at 893-894. [361 So.2d at 1360].

II.

Did the lower court err in admitting evidence of appellant's non-violent criminal record as proof that the capital murder was "committed by a person under sentence of imprisonment," pursuant to Mississippi Code Annotated Sec. 99-19-101(5)(a) (Supp.1982)?

The appellant contends that when an accused receives a suspended sentence for a non-violent crime, such sentence may not be subsequently used in a capital murder trial to prove that, as an aggravating circumstance, the murder was "committed by one under sentence of imprisonment." He relies upon Peek v. State, 395 So.2d 492 (Fla.1980), wherein the Florida Supreme Court held that a defendant's probationary status was not a sentence of imprisonment, which would support Subsection (5)(a) of the statute. However, in Peek the death sentence was upheld on appeal in spite of the court's determination that a probated sentence had been erroneously included as an aggravating circumstance. The Florida Court said:

Thus, we have two clearly valid aggravating circumstances, one contested but valid aggravating circumstance, and no mitigating circumstances. We find that the trial court's improper consideration of the...