Irving v. State

Decision Date24 August 1983
Docket NumberNo. 54358,54358
PartiesJohn Buford IRVING, III v. STATE of Mississippi.
CourtMississippi Supreme Court

Ford & Ford and James O. Ford, Tupelo, for appellant.

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

EN BANC.

PATTERSON, Chief Justice, for the Court:

John Buford Irving, III, was originally tried, convicted and sentenced to death in 1976 for the capital murder of store owner Gambrell Ray of Pontotoc County. Both conviction and sentence were affirmed by this Court in Irving v. State, 361 So.2d 1360 (Miss.1978), where the facts necessary to this opinion are stated. Subsequently the United States District Court for the Northern District of Mississippi vacated the death sentence because it was that court's opinion Irving received ineffective assistance of counsel. Pursuant to the district court's

order, the state instituted resentencing proceedings, and Irving was again sentenced to death. He appeals, citing the following as error:

1. The trial court erred in granting State's instruction S-1;

2. The trial court erred in refusing defendant's instructions D-3, D-4 and D-11;

3. The sentence of death was excessive or disproportionate to the penalty in similar cases;

4. The trial court erred in applying Miss.Code Ann. Sec. 99-19-101 (effective from and after April 13, 1977).

Under his first assignment of error, Irving contends the granting of general sentencing instruction S-1 was error for two reasons. We address each of these separately.

First, Irving argues the instruction improperly omitted definitions of the terms "robbery" and "pecuniary gain." The part of S-1 pertinent to this argument appears below:

Consider only the following elements of aggravation in determining whether the death penalty should be imposed:

(1) Whether or not the capital murder was committed while the defendant, John Buford Irving, III, was engaged in the commission of the crime of robbery and was committed for pecuniary gain. (Emphasis ours.)

Irving submits that by failing to define the emphasized terms the trial court neglected to channel the jury's discretion in arriving at sentence. We are of the opinion this argument fails in view of the posture of this case. In that the conviction by the first jury was not disturbed on appeal, the present sentencing jury was prohibited by the doctrine of res judicata from relitigating the issue of guilty. Rather, the second jury's function was to accept the first jury's finding that Irving was guilty of felony-murder involving robbery and then to determine sentence. Thus the definition of robbery and pecuniary gain would have been pointless and possibly confusing to the sentencing jury. We therefore conclude that the trial court's refusal to define these terms was not error.

Appellant also argues the trial court erred in combining pecuniary gain with robbery in the first circumstance. We have held these terms are not mutually exclusive. Smith v. State, 419 So.2d 563 (Miss.1982); Voyles v. State, 362 So.2d 1236 (Miss.1978). Tokman v. State, 435 So.2d 664 (Miss.1983), on facts similar to those in this case, upheld an instruction setting out robbery and pecuniary gain as separate aggravating circumstances. Thus while it would have been proper for the trial court to have separately listed these two aggravating circumstances, the court did not do so and the appellant now complains because of their being combined into one circumstance. We are of the opinion instruction S-1 had the same content found permissible in previous cases and this argument is without merit. Moreover, the combining of the terms into one circumstance could possibly have benefitted Irving by presenting the jury with only one aggravating circumstance where two separate ones would have been justified.

Appellant's next attack on instruction S-1 involves the second aggravating circumstance, taken from Mississippi Code Annotated, Sec. 99-19-101(5)(h) (1972), "that the murder was committed in an especially heinous, atrocious, or cruel manner." He urges it was error for the court to omit definitions of these terms. This argument is meritless in view of Washington v. State, 361 So.2d 61, 66 (Miss.1978), wherein we stated:

It is our considered opinion that the average jury in its sound discretion and judgment understands the generally accepted meaning of the words "especially heinous, atrocious or cruel" and is able to apply these words to different factual situations without further definition of these words.

It is our opinion that these words are not unconstitutionally vague.

See also Coleman v. State, 378 So.2d 640 (Miss.1979), and Tokman v. State, 435 So.2d 664 (Miss.1983).

Irving also argues that the evidence did not suggest the murder was "conscienceless or pitiless" or "unnecessarily torturous to the victim." Coleman v. State, 378 So.2d at 648, citing Spinkellink v. Wainwright, 578 F.2d 582, 611 (5th Cir.1978). Irving relies heavily on the fact that Ray died instantly. While the great majority of death penalty cases affirmed by this Court involve some type of physical and/or mental torture to the victim, we have never specifically held that a finding of Sec. 99-19-101(5)(h) must be supported by evidence of prolonged suffering. In Edwards v. State, 413 So.2d 1007 (Miss.1982), involving a robbery murder victim who died within fewer than thirty minutes of a single shotgun wound to the chest, we held the death penalty was not excessive, stating "A more calloused and unjustifiable killing could hardly be imagined." 413 So.2d at 1013.

The evidence in this case reveals the victim died instantly of a single shotgun wound to the neck. Doubtless Ray was in fear of his life from the time he saw the gun pointed at him until he was shot a few seconds later. We observe the other cases in characterizing Irving have focused on other elements besides torture or suffering, such as the fact that the killing was "totally senseless" and committed upon a hapless unarmed victim, Coleman v. State, 378 So.2d at 650. The record shows Irving had known Ray for many years, that Irving used this familiarity to gain admittance into the store after hours and then shot Ray for a small amount of money. Because of these facts and considering that the present case depicts a killing no less heinous than those in Edwards and Gilliard v. State, 428 So.2d 576 (Miss.1983), it was not error for the court to include Sec. 99-19-101(5)(h) in instruction S-1.

Appellant next argues that the trial court erred in refusing to grant instructions D-3, D-4 and D-11.

Instruction D-3 states, "I charge you that mitigating circumstances are those which do not constitute a justification or excuse for the offense in question, but which, in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability or blame." We have held there is no reversible error where the instructions read as a whole fairly announce the law of the case and create no injustice. Norman v. State, 385 So.2d 1298, 1303 (Miss.1980). See also Barr v. State, 359 So.2d 334 (Miss.1978). Nor is a trial court required to grant cumulative or repetitious instructions. Ragan v. State, 318 So.2d 879 (Miss.1975).

The trial court granted instruction S-1 which defined mitigating circumstances as "those which tend to warrant the less severe penalty." Further, the enumeration within S-1 of the particular circumstances which the jury was allowed to consider reinforced this definition:

(1) Whether the defendant has a significant history of prior criminal activity.

(2) The defendant's age at the time of the capital murder.

(3) Whether the defendant was an accomplice to the capital murder committed by another person and the defendant's participation was relatively minor.

(4) Any other matter, any other aspect of the defendant's character or record, and any other circumstances of the offense brought before you during the trial of this cause which you, the Jury, deem to be mitigating on behalf of the defendant.

Thus we are of the opinion that S-1 contained the substance repeated in D-3 and that it was therefore properly denied.

Instruction D-11 would have informed the jury that they might recommend mercy regardless of the weight of the aggravating and mitigating circumstances. Directly in point is Jordan v. State, 365 So.2d 1198 (Miss.1978), in which appellant relied on the following language from Jackson v. State, 337 So.2d 1242, 1256 (Miss.1976), "The jury shall not be required to make a special finding of any mitigating circumstances in order to return a verdict that the accused should be sentenced to life in prison." In Jordan we considered this language and stated We note the great difference in not requiring the jury to find any mitigating circumstances in order to return a verdict of life imprisonment as opposed to not requiring the jury to "make a special finding of any mitigating circumstance in order to return a verdict that the accused should be sentenced to life in prison."

365 So.2d at 1205.

We find no authority requiring the trial court to grant an instruction such as D-11. Moreover, Bullock v. State, 391 So.2d 601, 610 (Miss.1980), held that the "mercy instruction" was properly denied as conflicting with the court's instruction to weigh the mitigating circumstances against the aggravating circumstances. However, compare Tokman v. State, wherein we approved the granting of such instruction. It therefore appears that the "mercy instruction" is not mandated, but will be approved if granted by the trial court largely because it is not prejudicial to a defendant.

Instruction D-4 would have required the jury to specifically consider the eight mitigating circumstances enumerated as follows:

(a) The defendant has no record of criminal convictions for crimes involving force or violence to persons;

(b) The youth of the defendant at the time of the crime;

(c) The...

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