Holly v. State, No. 93-DP-00263-SCT

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtMcRAE; DAN M. LEE
Citation671 So.2d 32
Docket NumberNo. 93-DP-00263-SCT
Decision Date08 February 1996
PartiesWilliam Joseph HOLLY v. STATE of Mississippi.

Page 32

671 So.2d 32
William Joseph HOLLY
v.
STATE of Mississippi.
No. 93-DP-00263-SCT.
Supreme Court of Mississippi.
Feb. 8, 1996.

Page 34

Appeal No. 6336 from Judgment dated March 3, 1993, James C. Sumner, Ruling Judge, Grenada County Circuit Court.

Leland H. Jones, III, Greenwood, for appellant.

Michael C. Moore, Attorney General, Jackson, Marvin L. White, Jr., Assistant Attorney General, Jackson, for appellee.

EN BANC.

McRAE, Justice, for the Court:

William Joseph Holly was convicted of capital murder, kidnapping and grand larceny by a jury of the Grenada County Circuit Court on March 3, 1993 for the July 12, 1992 slaying of David Norwood, Jr., a Grenada cab driver. After his motion for a new trial was denied, the record in Holly's appeal to this Court was filed on August 12, 1993, with an additional supplement being filed in December of 1994. Holly's brief was filed with this Court on January 26, 1995, and the State's brief, six months later, on July 31, 1995. The briefs and record were validated by the Clerk on August 21, 1995 for this Court's consideration. Having considered carefully the record before us as well as the arguments presented on Holly's behalf, we affirm the jury's verdict and sentence on the kidnapping and capital murder charges. However, since Holly was convicted of capital murder with armed robbery as an underlying offense, we find that conviction on the grand larceny charge, under the circumstances of this case, constitutes double jeopardy which prohibits multiple punishments for the same offense. Therefore, we reverse and vacate Holly's conviction for grand larceny.

FACTS

On July 12, 1992, seventeen-year-old William Holly, along with Tommy G. Benefield and Waylon Kendall, were involved in efforts to assist Holly in his professed plan to move from Grenada County to Chicago, Illinois. Holly prevailed upon Benefield to call Neely's Cab Company in Grenada to summon a cab to the local train station. At some point later, taxi driver David Norwood appeared. Holly and his friends, armed with guns supplied by Holly, entered the taxi, and according to the undisputed evidence, Holly ordered Norwood at gunpoint to drive to a secluded area. Norwood was ordered out of the car and into the woods.

Holly admitted robbing Norwood of cash and his car. On cross-examination, he also admitted to stealing money orders, but on re-direct, stated that he had not done so. He further stated that he did not obtain the money orders from the person of David Norwood, but that they were on the dashboard of the cab and already had the names of the recipients on them, i.e. "South Central Bell" and "Fast-Way." Kendall, however, testified that Holly ordered Norwood to put his wallet on top of the car and further, that Holly extracted Norwood's license from the wallet, as well as cash and money orders that had been in his pocket and in the cab.

After Holly pocketed the wallet, cash and money orders from the top of the cab, he directed Norwood to march into the woods, ostensibly for the purpose of disorienting him. Kendall testified that Holly told Norwood to walk ahead of them, and when he said "go," to start running. According to Kendall, once Norwood had taken about two steps, Holly pulled the shotgun trigger and shot him.

Norwood was shot at close range in the back and in the left temple. Although Holly admitted shooting Norwood and Kendall testified that he saw him pull the trigger, Holly initially claimed that the shotgun first discharged

Page 35

accidentally when he tripped over a tree root. He then testified that after he fired the first shot, he shot Norwood again, because "[l]ike I said, I panicked, and plus I didn't want to see the man suffer." Holly shouted, "Adios, amigo," after shooting him the second time. On cross-examination, however, Holly further stated that he had told authorities in Illinois that he had blown out his victim's heart and lungs, knowing exactly what he had hit.

Benefield testified that Holly ordered them back into the cab upon returning from the woods. They left the scene of the crime in Norwood's cab. Traveling down Highway 7 toward Coffeeville, Mississippi, the cab broke down. The trio hitched a ride to Coffeeville, and at one point were stopped by police who questioned the driver about Norwood. Once in Coffeeville, about five or six hours after the shooting, Kendall parted ways with Holly and Benefield, ran to his uncle's house and called police to report the murder. Holly and Benefield then stole a Yalobusha County, Mississippi school bus and drove to Illinois. Their journey ended with a gun battle in a Decatur, Illinois parking lot, after the two attempted to abduct a woman and her van.

On July 31, 1992, Holly was indicted for capital murder, kidnapping, and grand larceny. He was tried by a jury in the Circuit Court of Grenada County on March 2 and 3, 1993, and found guilty on all three charges. The jury specifically found that Holly murdered David Norwood, Jr. with a shotgun while in the commission of armed robbery in violation of Miss.Code Ann. § 97-3-19(2)(e)(1994). The jury subsequently sentenced Holly to death based on the following two aggravating circumstances which existed at the time of the murder: the capital murder of James David Norwood, Jr. was committed while the defendant was engaged, or was an accomplice, in the commission of an armed robbery, and Holly was previously convicted of another capital offense or of a felony involving the use or threat of violence to the person. Judgment sentencing Holly to death was entered on March 3, 1993. Holly's motion for a new trial was denied on March 9, 1993. Holly raises sixteen issues to this Court on appeal. We find that all but one of these issues are either procedurally barred or without merit.

DISCUSSION OF THE LAW

I. WHETHER THE PROSECUTION IMPROPERLY COMMENTED ON THE DEFENDANT'S FAILURE TO TESTIFY IN THE SENTENCING PHASE

"In all criminal prosecutions the accused shall ... not be compelled to give evidence against himself." Mississippi Constitution of 1890, art. III, § 26. The United States Constitution grants the same right when it states that "No person ... shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. This right is violated by a direct statement regarding the defendant's decision not to testify, or a comment which could reasonably be construed by a jury to be a comment about the defendant's failure to testify. Griffin v. State, 557 So.2d 542, 552 (Miss.1990); Jimpson v. State, 532 So.2d 985, 991 (Miss.1988); Livingston v. State, 525 So.2d 1300, 1305-08 (Miss.1988).

Holly testified in the guilt phase of the trial; however, he did not take the witness stand in the sentencing phase. The testimony during the guilt phase was stipulated by both counsels to be used in the sentencing phase. During closing argument at the sentencing phase, the prosecution made several comments regarding Holly's testimony, demeanor, and lack of remorse at trial. No contemporaneous objection was made; however, after the jury began deliberations, Holly moved for a mistrial on the basis that the prosecution commented directly on his failure to testify at trial. His motion was subsequently denied. On appeal, Holly argues that the prosecution improperly commented on his failure to testify in violation of the Fifth and Fourteenth Amendments to the United States Constitution, as well as art. III, § 26 of the Mississippi Constitution.

The State maintains that Holly is procedurally barred from raising this claim on appeal since he failed to move for a mistrial during the closing argument, waiting instead until the jury retired for deliberations. A contemporaneous objection to improper argument

Page 36

during trial is required to preserve the issue for appeal. Foster v. State, 639 So.2d 1263, 1290 (Miss.1994) (plurality); see also Whigham v. State, 611 So.2d 988, 995 (Miss.1992) (procedural bar applies unless error involves serious violation of constitutional right). We find that the defense failed to contemporaneously object and is therefore procedurally barred.

Alternatively, this assignment of error is without merit. Although Holly chose not to testify during the sentencing portion of the trial, the record shows that he testified during the guilt phase of the trial. All of the testimony introduced by the defense, including that of the defendant, was then carried over to the sentencing phase pursuant to motions from both sides who stipulated to its use. See Hill v. State, 432 So.2d 427, 441 (Miss.1983) (there is no error in permitting jury to consider during sentencing phase all previous evidence introduced at guilt phase).

"The prosecution is always free to discuss at length the testimony of the State's witnesses and why they are credible." Whigham, 611 So.2d at 995. Nor is a prosecuting attorney prevented from commenting on the appearance of the defendant as it existed during his testimony. Reed v. State, 197 So.2d 811, 815 (Miss.1967); see also Knox v. State, 502 So.2d 672, 675 (Miss.1987) (prosecution may comment on demeanor of defendant who personally subjects victim to extensive cross-examination).

It is apparent that each of the comments made by the prosecution were either arguments related to the credibility of the defendant's testimony and his demeanor, or in rebuttal to the arguments made by defense counsel during the sentencing phase. Holly placed his credibility before the jury by testifying during the guilt phase of the trial, and then stipulated to its use in the sentencing phase. See generally Jordan v. State, 464 So.2d 475, 482 (Miss.1985) (once defendant testifies to merits, prosecution is free to comment upon defendant's failure to explain the facts in evidence). The comments made by the prosecution, when read in context of Holly's testimony at trial, concerned his credibility and demeanor. While we hold that this error is procedurally barred, we also...

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136 practice notes
  • Flowers v. State, NO. 2010–DP–01348–SCT
    • United States
    • United States State Supreme Court of Mississippi
    • November 2, 2017
    ..., 682 So.2d 359 (Miss. 1996). Brown v. State , 682 So.2d 340 (Miss. 1996). Blue v. State , 674 So.2d 1184 (Miss. 1996). Holly v. State , 671 So.2d 32 (Miss. 1996). Walker v. State , 671 So.2d 581 (Miss. 1995). Russell v. State , 670 So.2d 816 (Miss. 1995). Ballenger v. State , 667 So.2d 124......
  • Hutto v. State, NO. 2014-DP-00177-SCT.
    • United States
    • Mississippi Supreme Court
    • May 11, 2017
    ...State, 682 So.2d 359 (Miss. 1996). Brown v. State, 682 So.2d 340 (Miss. 1996). Blue v. State, 674 So.2d 1184 (Miss. 1996). Holly v. State, 671 So.2d 32 (Miss. 1996). Walker v. State, 671 So.2d 581 (Miss. 1995). Russell v. State, 670 So.2d 816 (Miss. 1995). Ballenger v. State, 667 So.2d 1242......
  • Brown v. State, No. 94-DP-00248-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • August 15, 1996
    ...DEATH CASES AFFIRMED BY THIS COURT Blue v. State, 674 So.2d 1184 (Miss.1996). Jackson v. State, 672 So.2d 468 (Miss.1996). Holly v. State, 671 So.2d 32 Walker v. State, 671 So.2d 581 (Miss.1995). Russell v. State, 670 So.2d 816 (Miss.1995). Ballenger v. State, 667 So.2d 1242 (Miss.1995). Da......
  • Loden v. State, No. 2002-DP-00282-SCT.
    • United States
    • Mississippi Supreme Court
    • October 4, 2007
    ...State, 682 So.2d 359 (Miss. 1996). Brown v. State, 682 So.2d 340 (Miss. 1996). Blue v. State, 674 So.2d 1184 (Miss. 1996). Holly v. State, 671 So.2d 32 (Miss.1996). Walker v. State, 671 So.2d 581(Miss.1995). Russell v. State, 670 So.2d 816 (Miss. 1995). Ballenger v. State, 667 So.2d 1242 (M......
  • Request a trial to view additional results
136 cases
  • Flowers v. State, NO. 2010–DP–01348–SCT
    • United States
    • United States State Supreme Court of Mississippi
    • November 2, 2017
    ..., 682 So.2d 359 (Miss. 1996). Brown v. State , 682 So.2d 340 (Miss. 1996). Blue v. State , 674 So.2d 1184 (Miss. 1996). Holly v. State , 671 So.2d 32 (Miss. 1996). Walker v. State , 671 So.2d 581 (Miss. 1995). Russell v. State , 670 So.2d 816 (Miss. 1995). Ballenger v. State , 667 So.2d 124......
  • Hutto v. State, NO. 2014-DP-00177-SCT.
    • United States
    • Mississippi Supreme Court
    • May 11, 2017
    ...State, 682 So.2d 359 (Miss. 1996). Brown v. State, 682 So.2d 340 (Miss. 1996). Blue v. State, 674 So.2d 1184 (Miss. 1996). Holly v. State, 671 So.2d 32 (Miss. 1996). Walker v. State, 671 So.2d 581 (Miss. 1995). Russell v. State, 670 So.2d 816 (Miss. 1995). Ballenger v. State, 667 So.2d 1242......
  • Brown v. State, No. 94-DP-00248-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • August 15, 1996
    ...DEATH CASES AFFIRMED BY THIS COURT Blue v. State, 674 So.2d 1184 (Miss.1996). Jackson v. State, 672 So.2d 468 (Miss.1996). Holly v. State, 671 So.2d 32 Walker v. State, 671 So.2d 581 (Miss.1995). Russell v. State, 670 So.2d 816 (Miss.1995). Ballenger v. State, 667 So.2d 1242 (Miss.1995). Da......
  • Loden v. State, No. 2002-DP-00282-SCT.
    • United States
    • Mississippi Supreme Court
    • October 4, 2007
    ...State, 682 So.2d 359 (Miss. 1996). Brown v. State, 682 So.2d 340 (Miss. 1996). Blue v. State, 674 So.2d 1184 (Miss. 1996). Holly v. State, 671 So.2d 32 (Miss.1996). Walker v. State, 671 So.2d 581(Miss.1995). Russell v. State, 670 So.2d 816 (Miss. 1995). Ballenger v. State, 667 So.2d 1242 (M......
  • Request a trial to view additional results

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