King v. State, 1998-DP-01134-SCT.

• Citation: 784 So.2d 884
• Decision Date: 19 April 2001
• Docket Number: No. 1998-DP-01134-SCT.,1998-DP-01134-SCT.
• Parties: Mack Arthur KING v. STATE of Mississippi.
• Court: United States State Supreme Court of Mississippi

784 So.2d 884

Mack Arthur KING v. STATE of Mississippi.

No. 1998-DP-01134-SCT.

Supreme Court of Mississippi.

April 19, 2001.

Attorneys for Appellant: Michael R. Farrow, Columbus, James E. Rocap, III, Washington, DC, Anthony J. Bellia, Jr., Buffalo, NY.

Attorneys for Appellee: Office of the Attorney General by Marvin L. White, Jr., Leslie S. Lee, Jackson, Jeffrey A. Klingfuss.

EN BANC.

MILLS, Justice, for the Court:

¶ 1. This case arises from Mack Arthur King's re-sentencing to death for the August 3, 1980, capital murder of Lela Patterson. For the reasons addressed below, we reverse the death sentence and remand for a new sentencing trial.

I.

¶ 2. Mack Arthur King was found guilty of capital murder and sentenced to death on December 5, 1980. On October 27, 1982, we affirmed both the conviction and the sentence. A timely petition for rehearing was filed and later denied by this Court on December 1, 1982. See King v. State, 421 So.2d 1009 (Miss.1982)

. The United States Supreme Court denied King's petition for writ of certiorari on May 2, 1983. See King v. Mississippi, 461 U.S. 919, 103 S.Ct. 1903, 77 L.Ed.2d 290 (1983). We denied his subsequent application for leave to file a petition for writ of error coram nobis in the Circuit Court of Lowndes County but later ordered that court to conduct a hearing regarding King's claim of ineffective assistance of counsel. See King v. Thigpen, 446 So.2d 600 (Miss.1984); King v. Thigpen, 441 So.2d 1365 (Miss.1983). The circuit court conducted a hearing on the matter and found that counsel had rendered effective assistance. We affirmed the trial court's denial of relief on February 18, 1987. See King v. State, 503 So.2d 271 (Miss.1987).

¶ 3. King then filed a petition for writ of habeas corpus with the United States District Court for the Northern District of Mississippi. The district court denied relief. See King v. Pressley, No. EC87-126-S-D. On August 25, 1993, the Fifth Circuit vacated the sentence of death and remanded the case with instructions to return to the state court for reconsideration of the sentence of death in light of Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990). See King v. Puckett, 1 F.3d 280 (5th Cir.1993)

. We vacated the sentence of death and remanded for a new sentencing trial. See King v. State, 656 So.2d 1168 (Miss.1995).

¶ 4. King was re-sentenced to death on April 9, 1998. His motion for new trial was denied on July 1, 1998. King now appeals that judgment.

II.

¶ 5. "On appeal to this Court, convictions of capital murder and sentences of death must be subjected to what has been labeled `heightened scrutiny.' Under this method of review, all bona fide doubts are to be resolved in favor of the accused because what may be harmless error in a case with less at stake becomes reversible error when the penalty is death." Balfour v. State, 598 So.2d 731, 739 (Miss.1992). With that standard in mind, we consider the issues raised. We address only those issues which require reversal or which deserve mention lest a problem recur on retrial.

III.

WHETHER THE LOWER COURT ERRED BY EXCLUDING ELIGIBLE JURORS WHO MAY OPPOSE THE DEATH PENALTY.

¶ 6. King asserts that the trial court erroneously excused several jurors from the jury venire who generally opposed the death penalty but vowed to follow the court's instructions and vote for death if warranted. Specifically, King argues that the trial court erroneously excused Louise Gray, Linda Fulton, and Tommy Clayborn.

¶ 7. In completing the attorney questionnaire, Gray answered "no" to the question, "Could you ever personally vote to impose the death penalty?." When asked during general voir dire whether she could personally "impose the death penalty," Gray again responded "no." The prosecutor asked whether she could impose the death penalty "even if the evidence warranted." She responded that she would have to hear some evidence first. The prosecutor asked, "Are you still saying you could not impose the death penalty?" Gray answered, "That's what I'm saying `cause I don't know anything about it." King argues that Gray then clearly stated that she would follow the court's instructions and could vote for a death sentence if warranted in this case.

¶ 8. The State moved to excuse Gray for cause. Defense counsel objected by arguing that general opposition to the death penalty is not enough to strike a person for cause. The trial court ruled stating, "She said on her—uh—thing she's opposed to the death penalty. She said out there she was opposed to the death penalty. I'm not going to let someone like that sit on the jury."

¶ 9. Fulton also contradicted her initial negative response to the question about her ability to vote for the death penalty. Regarding this response, the prosecutor asked Fulton during voir dire, "Is that still your feeling today?" She answered, "I can't say right now. I don't know." She later stated that, depending on the facts of the case, she "probably could" personally impose the death penalty. Fulton stated that she did not know what changed her mind. When asked if she could follow the instructions given by the court, she responded "Yeah, I can follow the instructions, sure." The trial judge stated that he was "trying to get a jury to be here and be fair and impartial to both sides" before he struck Fulton for cause.

¶ 10. Clayborn stated on his questionnaire that he agreed with the death penalty. He marked "no," however, to the question, "Could you ever personally vote to impose the death penalty?" During questioning by the prosecution during voir dire, Clayborn again stated that he could not impose the death penalty but recanted when questioned by defense counsel. When questioned once more by the prosecution, Clayborn returned to his original position and stated that he could not impose the death penalty. The trial judge excused him for cause.

¶ 11. The test for determining when a prospective juror's views on the death penalty justify his removal is whether the trial court finds that the "juror's views would prevent or substantially impair the performance of his duties in accordance with his instructions and his oath" thus leaving the trial court "with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law." Wainwright v. Witt, 469 U.S. 412, 424-26, 105 S.Ct. 844, 852-53, 83 L.Ed.2d 841, 851-52 (1985). If the judge is concerned with the response given, he must further determine whether the potential juror could follow the law as instructed even if the juror expressed a general disapproval of the death penalty. "This is why deference must be paid to the trial judge who sees and hears the juror." Id.

¶ 12. We have long held that it is the trial judge's domain to judge matters regarding credibility of a witness including prospective jurors. Harris v. State, 527 So.2d 647, 649 (Miss.1988). The circuit judge, as he must, has wide discretion in determining whether to excuse any prospective juror, including one challenged for cause. Mississippi Winn-Dixie Supermarkets v. Hughes, 247 Miss. 575, 156 So.2d 734, 738 (1963). However, it is reversible error if one juror is erroneously excused from the jury on the basis of his view on the death penalty. Gray v. Mississippi, 481 U.S. 648, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987).

¶ 13. In the case sub judice, the trial judge excluded each of the three potential jurors because of his or her contradictory responses to the questions regarding the death penalty. In Dufour v. State, 453 So.2d 337, 341-44 (Miss.1984), certain potential jurors were excluded who gave contradictory responses, wavered on their position, and generally appeared confused regarding the death penalty issue. We found no reversible error in the trial court's excluding the potential jurors for cause. Id. at 345.

¶ 14. The record establishes that the court excluded Gray because she repeatedly switched positions as to whether she supported or opposed the death penalty. The judge obviously had ample opportunity to observe this juror, and her apparent confusion was sufficient reason for dismissal. In striking Fulton, the judge articulated that he was "trying to get a jury to be here and be fair and impartial to both sides." A logical reading of the transcript indicates that because Fulton had given different answers at different points, the trial judge found she would not be fair and impartial and, therefore, would not be able to follow the law. It goes without saying that a potential juror who cannot give a straight answer would be very unlikely to follow the law. Finally, we find no abuse of discretion in the court's excusing Clayborn for cause. Clayborn continually wavered on his stance regarding the death penalty and exhibited an obvious confusion concerning the issue. Given this potential juror's equivocal stance on the issue, we find that the trial court did not abuse its discretion in striking him for cause.

IV.

WHETHER THE TRIAL COURT ERRED IN DENYING KING FUNDS TO RETAIN AN EXPERT PATHOLOGIST.

¶ 15. King argues that he was deprived of due process of law in violation of the United States and Mississippi Constitutions when the trial court denied him the expert assistance of a pathologist. The State used pathologist testimony to support its argument that this crime was "especially heinous, atrocious or cruel."

¶ 16. The State called an expert, Dr. Ben Martin, who testified that Patterson was conscious when she was killed. Dr. Martin testified to specific procedures used to show how he came to his conclusion that Patterson was conscious. Dr. Martin further testified that Patterson's head injuries were the result of multiple blows to the head. King was denied his own expert to rebut this testimony.

¶ 17. A defendant is entitled to an expert to rebut expert opinion on "crucial elements." Ake v. Oklahoma, 470 U.S. 68, 77, 105 S.Ct. 1087, 1093, 84 L.Ed.2d 53 (1985). A fundamental...