Foster v. State

Decision Date28 April 1994
Docket NumberNo. 91-DP-00212,91-DP-00212
Citation639 So.2d 1263
PartiesRonald Chris FOSTER, a/k/a Ron Chris Foster v. STATE of Mississippi.
CourtMississippi Supreme Court

Michael R. Farrow, Farrow Dalrymple & Mitchell, Columbus, James B. Wright, Jr., Blackwell & White, Gulfport, James W. Craig, Jane Tucker Lambert, Jackson, for appellant.

Michael C. Moore, Atty. Gen., Marvin L. White, Jr., Asst. Atty. Gen., Charlene R. Pierce, Sp. Asst. Atty. Gen., Jackson, for appellee.

EN BANC.

SMITH, Justice, for the Court:

Ronald Chris Foster was indicted in the Circuit Court of Lowndes County, Mississippi, for the capital murder of George Shelton committed during the course of an armed robbery. The trial court granted Foster's change of venue motion and trial commenced on January 14, 1991, in Lauderdale County. Foster was seventeen years of age at the time of the crime. The jury convicted Foster on January 18, 1991, and following the sentencing hearing on that same date, imposed the death penalty. Foster has appealed to this Court and asserts twenty-six assignments of error.

ASSIGNMENTS OF ERROR

I.

THE DEATH PENALTY FOR JUVENILES WITHOUT ANY PRIOR CRIMINAL RECORD OR WITHOUT ANY PARTICULARIZED FINDINGS BEING MADE BEFORE BEING TRANSFERRED TO STAND TRIAL AS AN ADULT VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE 3, SECTION 28 OF THE MISSISSIPPI CONSTITUTION.

A. THE EIGHTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION PROHIBIT IMPOSING THE DEATH PENALTY ON A JUVENILE WHO HAS NOT PRIOR CRIMINAL RECORD OR WITHOUT ANY PARTICULARIZED FINDINGS HAVING BEEN MADE.

B. ARTICLE THREE, SECTION 28 OF THE MISSISSIPPI CONSTITUTION PROHIBITS IMPOSING THE DEATH PENALTY ON A JUVENILE WHO HAS NOT PRIOR CRIMINAL RECORD AND WHO HAS RECEIVED NO INDIVIDUALIZED CONSIDERATION.

II.

SECTIONS 43-21-151(1) AND 99-19-101 ARE UNCONSTITUTIONAL UNDER THE EIGHTH AND FOURTEENTH AMENDMENTS IN THAT THEY DO NOT SET A MINIMUM AGE BELOW WHICH A CHILD MAY NOT BE TRANSFERRED FROM YOUTH COURT TO CIRCUIT COURT FOR CRIMES PUNISHABLE BY LIFE IMPRISONMENT OR DEATH.

III.

THE TRIAL COURT ERRED IN REFUSING TO ALLOW THE DEFENDANT TO QUESTION THE VENIRE ABOUT WHETHER THEY WOULD AUTOMATICALLY VOTE IN FAVOR OF THE DEATH PENALTY IN VIOLATION OF THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND MISS.CODE ANN. SECTION 13-5-69.

IV.

THE TRIAL COURT'S AND THE PROSECUTOR'S USE OF AMBIGUOUS LANGUAGE DURING THE DEATH QUALIFICATION OF THE VENIRE WAS IN VIOLATIONS OF THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND RESULTED IN A JURY PREDISPOSED TOWARDS INFLICTION OF THE DEATH PENALTY.

V.

THE STATE INTENTIONALLY STRUCK BLACK PERSONS FROM THE JURY IN THIS CASE IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

VI.

THE TRIAL COURT ERRED IN ALLOWING THE STATEMENT OF THE DEFENDANT TO BE ADMITTED INTO EVIDENCE IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES AS WELL AS ARTICLE THREE, SECTIONS 14 AND 26 OF THE MISSISSIPPI CONSTITUTION.

VII.

THE TRIAL JUDGE'S REMARKS PERTAINING TO RELIGION WERE IN VIOLATION OF THE FIRST AMENDMENT'S

ESTABLISHMENT CLAUSE MADE APPLICABLE TO THE STATES BY THE FOURTEENTH AMENDMENT WHICH RESULTED IN AN UNFAIR TRIAL FOR RON CHRIS FOSTER.

VIII.

THE "PECUNIARY GAIN" AGGRAVATING CIRCUMSTANCE WAS APPLIED IN A VAGUE AND OVERBROAD CIRCUMSTANCE WAS APPLIED IN A VAGUE AND OVERBROAD MANNER IN VIOLATION OF MISSISSIPPI LAW AND THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

IX.

THE TRIAL COURT ERRED IN REFUSING TO GRANT DEFENDANT'S JURY INSTRUCTIONS AT THE SENTENCING PHASE WHICH WOULD HAVE PROPERLY DIRECTED THE JURY'S DISCRETION IN DETERMINING WHETHER TO IMPOSE THE DEATH PENALTY.

X.

THE STATE'S SENTENCING INSTRUCTION ALLOWING SENTENCER TO CONSIDER EVIDENCE PRESENTED DURING THE GUILT PHASE ARE INCORRECT STATEMENTS OF LAW AND VIOLATE THE EIGHT AND FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION.

XI.

THE JURY'S SENTENCING DETERMINATION WAS IMPROPERLY PREDICATED ON THE PERSONAL CHARACTERISTICS OF THE VICTIM IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS AND ARTICLE THREE, SECTION 28 OF THE MISSISSIPPI CONSTITUTION.

XII.

THE OTHER CRIMES/BAD EVIDENCE AND ARGUMENT VIOLATED RON CHRIS FOSTER'S RIGHTS UNDER MISSISSIPPI LAW AND THE EIGHTH AND FOURTEENTH AMENDMENTS.

XIII.

THE MITIGATING CIRCUMSTANCE THAT THE DEFENDANT HAS NO SIGNIFICANT HISTORY OF PRIOR CRIMINAL ACTIVITY WAS APPLIED IN AN UNCONSTITUTIONAL MANNER.

XIV.

INTRODUCTION OF INFLAMMATORY PHOTOS OF THE VICTIM WITHOUT EVIDENTIARY PURPOSE OR PROBATIVE VALUE VIOLATED DEFENDANT'S RIGHTS PURSUANT TO MISSISSIPPI LAW AND THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.

XV.

THE PROSECUTOR'S REQUEST OF JURORS DURING INDIVIDUAL VOIR DIRE TO GIVE CIRCUMSTANCES UNDER WHICH THEY WOULD VOTE TO INFLICT THE DEATH PENALTY VIOLATED THE DEFENDANT'S RIGHTS UNDER MISSISSIPPI LAW AND THE UNITED STATES CONSTITUTION.

XVI.

THE PROSECUTOR'S PLEA BARGAIN WITH VINCENT HARRIS WHICH WAS CONDITIONAL UPON HIS TESTIFYING VIOLATED DEFENDANT'S RIGHTS UNDER MISSISSIPPI LAW AND THE UNITED STATES CONSTITUTION.

XVII.

THE REMARKS OF THE JUDGE TO THE VENIRE THAT THIS WAS A NOTORIOUS

CASE WAS IMPROPER AND RESULTED IN AN UNFAIR TRIAL FOR DEFENDANT IN VIOLATION OF MISSISSIPPI LAW AND THE UNITED STATES CONSTITUTION.

XVIII.

THE TESTIMONY OF THE STATE'S PATHOLOGY WITNESS WAS IMPROPER AND RESULTED IN AN UNFAIR TRIAL FOR DEFENDANT IN VIOLATION OF MISSISSIPPI LAW AND THE UNITED STATES CONSTITUTION.

XIX.

THE PROSECUTOR'S REFERENCE TO DEFENDANT'S ATTEMPT TO KEEP OUT EVIDENCE WAS IMPROPER AND RESULTED IN AN UNFAIR TRIAL FOR DEFENDANT IN VIOLATION OF MISSISSIPPI LAW AND THE UNITED STATES CONSTITUTION.

XX.

THE PROSECUTOR'S REMARK TO THE JURY THAT THE TESTIMONY OF VINCENT HARRIS WAS "CORROBORATED IN EVERY PARTICULAR" WAS AN IMPROPER BOLSTERING THE OTHER TESTIMONY IN VIOLATION OF MISSISSIPPI LAW AND THE UNITED STATES CONSTITUTION.

XXI.

THE DISTRICT ATTORNEY'S COMMENTS ON RON CHRIS FOSTER NOT TESTIFYING VIOLATED THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE THREE, SECTION 25 OF THE MISSISSIPPI CONSTITUTION.

XXII.

THE JUDGE'S ASSISTANCE TO THE DISTRICT ATTORNEY ON SEVERAL OCCASIONS WAS IMPROPER AND RESULTED IN AN UNFAIR TRIAL FOR DEFENDANT IN VIOLATION OF MISSISSIPPI LAW AND THE UNITED STATES CONSTITUTION.

XXIII.

THE INDICTMENT CHARGED DEFENDANT WITH ARMED ROBBERY BUT THE INSTRUCTION TO THE JURY SET OUT A CHARGE OF ROBBERY WHICH VIOLATED DEFENDANT'S RIGHTS UNDER MISSISSIPPI LAW AND THE UNITED STATES CONSTITUTION.

XXIV.

THE JURY DID NOT LIST THE MITIGATING FACTORS WHICH IT FOUND TO BE PRESENT WHICH VIOLATED THE DEFENDANT'S RIGHTS SECURED UNDER MISSISSIPPI LAW AND THE UNITED STATES CONSTITUTION.

XXV.

THE CUMULATIVE ERROR IN THIS CASE REQUIRES THE SENTENCE TO BE REVERSED.

XXVI.

THE DEATH SENTENCE IS DISPROPORTIONATE IN THIS CASE.

In reviewing these assignments we note that Foster failed to raise many of these issues in the lower court or bring them to the court's attention by appropriate timely objection. This Court has repeatedly held that "[i]f no contemporaneous objection is made, the error, if any, is waived. This rule's applicability is not diminished in a capital case." Cole v. State, 525 So.2d 365, 369 (Miss.1987), cert. denied 488 U.S. 934, 109 S.Ct. 330, 102 L.Ed.2d 348 (1988); Irving v. State, 498 So.2d 305 (Miss.1986), cert. denied, 481 U.S. 1042, 107 S.Ct. 1986, 95 L.Ed.2d 826 (1987); Johnson v. State, 477 So.2d 196 (Miss.1985), cert. denied, 476 U.S. 1109, 106 S.Ct. 1958, 90 L.Ed.2d 366 (1986); In re Hill, 460 So.2d 792 (Miss.1984); Hill v. State, 432 So.2d 427 (Miss.1983), cert. denied, 464 U.S. 977, 104 S.Ct. 414, 78 L.Ed.2d 352 (1983).

Although this Court need not look further after finding a procedural bar, this Court also, alternatively, may review the merits of the underlying claim knowing that any subsequent review will stand on the bar alone. The Fifth Circuit Court of Appeals has addressed this issue in Sawyers v. Collins, 986 F.2d 1493, 1499 (5th Cir.1993), stating:

"On application for the writ of habeas corpus, federal courts will not review a state court's holding on a federal law claim ... if that holding rests upon a state law ground which is both independent of the merits of the federal claim and adequate to support the state court's judgment." Harris v. Reed, 489 U.S. 255, 260-63, 109 S.Ct. 1038, 1042-43, 103 L.Ed.2d 308, 315-18 (1989).

Consequently, "[w]hen a state-law default prevents the state court from reaching the merits of a federal claim, that claim can ordinarily not be reviewed in federal court." Ylst v. Nunnemaker, 501 U.S. 797, 801, 111 S.Ct. 2590, 2593, 115 L.Ed.2d 706 (1991) (citing Wainwright v. Sykes, 433 U.S. 72, 87-88, 97 S.Ct. 2497, 2506-07, 53 L.Ed.2d 594 (1977); Murray v. Carrier, 477 U.S. 478, 485-92, 106 S.Ct. 2639, 2643-48, 91 L.Ed.2d 397 (1986). Furthermore, where a state court finds that a federal claim is procedurally barred, but goes on to reach the merits of that claim in the alternative, the state court's reliance on the procedural default still constitutes an independent and adequate state ground which bars federal habeas review.

Further, the United States Supreme Court in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), stated:

The mere existence of a basis for a state procedural bar does not deprive this Court of jurisdiction; the state court must actually have relied on the procedural bar as an independent basis for its disposition of the case ...

If the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds, we, of course, will not undertake to review the decision ...

An examination of the decision below reveals that it contains no clear or express indication that "separate,...

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