Jordan, In re, 50551

• Decision Date: 19 November 1980
• Docket Number: No. 50551,50551
• Parties: In re Richard Gerald JORDAN.
• Court: Mississippi Supreme Court

Page 584

390 So.2d 584

In re Richard Gerald JORDAN.

No. 50551.

Supreme Court of Mississippi.

Nov. 19, 1980.

Earl L. Denham, Levi & Denham, Ocean Springs, Joseph P. Hudson, Lawyer & Hudson, Gulfport, for appellant.

Bill Allain, Atty. Gen., by Karen A. Gilfoy, Asst. Atty. Gen., Jackson, for appellee.

En Banc.

ON PETITION FOR WRIT OF ERROR CORAM NOBIS

BROOM, Justice, for the Court:

Murder while engaged in the offense of kidnapping is the offense for which the petitioner Richard Gerald Jordan was convicted and sentenced to death. Affirmance was ordered on his appeal. Jordan v. State, 365 So.2d 1198 (Miss.1978). Subsequently the United States Supreme Court denied Jordan's petition for writ of certiorari. Jordan v. Mississippi, 444 U.S. 885, 100 S.Ct. 175, 62 L.Ed.2d 114 (1979). Jordan then sought habeas corpus relief in the United States District Court for the Southern District of Mississippi. That court dismissed his petition without prejudice because he had failed to present all his claims to this Court.

Jordan argues that the trial court's refusal to instruct the jury that it could find him guilty of a lesser offense violated the Fifth, Eighth, or Fourteenth Amendments to the United States Constitution. Previously in Jackson v. State, 337 So.2d 1242, 1255 (Miss.1976), we held that instructions on the lesser included offense

(S)hould only be given after the trial court has carefully considered the evidence and is of the opinion that such an instruction is justified by the evidence.

Beck v. Alabama, --- U.S. ----, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). Careful review of the evidence in this case clearly reveals to us that any jury instruction concerning a lesser included offense was neither warranted upon the whole record nor justified by the evidence. No rational basis appears upon which the jury could have acquitted Jordan of the crime of murder while engaged in the crime of kidnapping or found him guilty of any lesser offense. He contends that the jury should have been instructed as to "both murder and kidnapping, in addition to capital murder." It is to be noted that the jury was clearly instructed that it (the jury) had the option of fixing Jordan's punishment at life imprisonment or death, the only two penalties for any murder in this jurisdiction. Quite differently, in Beck, supra, as the opinion of Mr. Justice Stevens states, the jury, under the Alabama statute, was given "the choice of either convicting the defendant of the capital crime, in which case it is required to impose the death penalty, or acquitting him...." Although the indictment charged murder "while engaged in the commission" of kidnapping, the indictment did not charge kidnapping and did not set forth any of the elements of such offense. Accordingly, a verdict of guilty of kidnapping would have been totally improper, and the argument under discussion lacks merit.

Also without merit is Jordan's argument that in the lower court there was "the lack of notice" to him of what aggravating circumstances could be used against him and that the jury was improperly instructed on aggravating circumstances. Pertinent here is Jackson, supra, at 1256, which sets forth guidelines for bifurcated trials in matters of this type; so that the first phase of the trial would be as to guilt, and the second phase would be as to his punishment. We stated in Jackson

At the sentencing hearing, the question to be decided by the jury is whether the defendant shall be sentenced to death or to life imprisonment. At this hearing, the State may elect to stand on the case made at the first hearing, if before the same jury, or may reintroduce any part of the evidence adduced at the first hearing which it considers to be relevant to the particular question of whether the defendant shall suffer death or be sentenced to life imprisonment. In addition thereto, an accused's prior record of criminal convictions, if any, may be proven as an additional aggravating circumstance whether the defendant testifies in his own behalf or not. At this hearing, the defendant may prove his lack of a prior criminal record as a mitigating circumstance and may also adduce proof of any other circumstance or combination of circumstances surrounding his life and character or the commission of the offense with which he is charged that would be reasonably relevant to the question of whether he should suffer death or be sentenced to life in prison.

Proof beyond a reasonable doubt of the statutory elements of the capital offense with which the accused is charged shall constitute sufficient circumstance to authorize imposition of the penalty of death unless the mitigating circumstances shown by the evidence outweigh the aggravating circumstances.

The jury shall not be required 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. However, before the jury may return a verdict that the defendant should suffer the penalty of death, they must unanimously find in writing that after weighing the mitigating circumstances and the aggravating circumstances one against the other that the mitigating circumstances do not outweigh the aggravating circumstances and that the defendant should suffer the penalty of death.

If the jury is unable to agree unanimously on a verdict at the sentencing hearing, the defendant shall be sentenced to life in prison.

We also hold that all convictions of persons where the penalty of death is imposed will be reviewed by this Court as preference cases in such a manner as to see that the death penalty was warranted under the facts of the case and that death sentences will not be wantonly or freakishly imposed but will only be inflicted in a consistent and evenhanded manner under like or similar circumstances.

Godfrey v. Georgia, --- U.S. ----, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) is not applicable here upon the facts. In Godfrey, the U. S. Supreme Court noted that the offenses committed by Godfrey "cannot be said to have reflected a consciousness materially more 'depraved' than that of any person guilty of murder. His victims were killed instantaneously. They were members of his family who were causing him extreme emotional trauma." (--- U.S. ----, ----, 100 S.Ct. 1759, 1767, 64 L.Ed.2d 398, 409). In the case before us, Jordan's victim was not instantly killed. He brought her from her home after deceitfully pretending that he represented...