Russell v. State

Decision Date12 August 1992
Docket NumberNo. 90-DP-1141,90-DP-1141
Citation607 So.2d 1107
PartiesWillie RUSSELL v. STATE of Mississippi.
CourtMississippi Supreme Court

W.S. Stuckey, Jr., Whitman D. Mounger, Greenwood, 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.

DAN M. LEE, Presiding Justice, for the Court:

On July 18, 1989, Parchman inmate Willie Russell stabbed Correction Officer Argentra Cotton, who subsequently died from the wounds. Russell was indicted as an habitual offender for the capital crime of killing a peace officer acting in his official capacity as a Correctional Officer of the Mississippi State Penitentiary in violation of Miss.Code Ann. Sec. 97-3-19(2)(a) (1972). On October 4, 1990, following a jury trial in which Russell testified in his own behalf as the only defense witness, Russell was found guilty of capital murder. On October 5, 1990, the jury sentenced Russell to death. We affirm as to the guilt phase and the conviction of murder. However, feeling bound by prior decisions of this Court as well as the United States Supreme Court, we vacate the sentence of death and remand for further proceedings.

FACTUAL BACKGROUND

On July 18, 1989, 6' 7", 247 pound Willie Russell was lawfully incarcerated in Parchman, housed in maximum security Unit 24-B, cell 46, located on the upper level near the stairs in Zone 3. Russell was in "C" custody status: close confinement. Corrections Officer Argentra Cotton--approximately 5' 10" or 6', 180 pounds--worked the 4:00 p.m. to 12:00 midnight third watch for 24-B on July 18, 1989; his partner was Officer Calvin Lee. The duties for the third watch were to shower, feed and, where necessary, medicate the inmates.

The food trays for the evening meal arrived after showering had been completed. Officer Lee stayed in the control tower to complete the shower log while Officer Cotton, with the help of designated inmates, began to distribute the trays to the inmates. While trays for half of the unit were being distributed without incident, Russell removed the 16" by 10" bottom air vent in his cell door, crawled through the space, and managed to secrete himself behind the stairwell pillar on the lower level of the unit. Russell was armed with a homemade knife known as a "shank."

At approximately 6:50 p.m., Officer Cotton and his inmate assistant entered the lower level of Zone 3 with the food trays. Officer Cotton was in the process of locking the door between Zones 2 and 3, unarmed and with his back turned towards Zone 3, when he was rushed from behind by Russell, who proceeded to stab him with the "shank." Officer Cotton turned, dropped his keys, and attempted to protect himself by fighting off Russell with a plastic food tray.

Officer Cotton backed up the stairwell swinging a plastic food tray back and forth in front of him for protection. Russell pursued Officer Cotton up the stairs, stabbed him in the back and, upon reaching the upper level, held Officer Cotton on the floor with his knee as he continued to stab him. At this point, Officer Lee drew Russell's attention away from Officer Cotton for a sufficient amount of time to allow Officer Cotton to successfully retreat into the guard control tower; Officer Lee followed, leaving Russell, covered with blood and still in possession of the "shank," standing on the stairs staring into the control tower.

Officer Cotton called for help and within minutes, assistance arrived. Upon arrival, none of the officers realized Officer Cotton was injured. An officer entered Zone 3, asked for, and received, the "shank" from Russell. Russell was then placed in restraints.

Officer Cotton had two major visible wounds each between 1 1/2" and 1 1/2"' in length--a stab wound along the left collar bone and another stab wound on the right chest directly below the right nipple; he had two minor wounds to the back. Officer Cotton was taken by ambulance to the Parchman emergency room and subsequently transferred to the Bolivar County Hospital where he expired as a result of internal hemorrhage.

GUILT PHASE
I.

Whether the lower court erred in overruling defendant's Motion for Individualized Sequestered Voir Dire after the Court's and Counsel's general voir dire in violation of the Sixth, Eight, and Fourteenth Amendments to the United States Constitution and Mississippi Code Annotated, Section 13-5-69 (1972).

Russell moved for individualized sequestered voir dire of all prospective jurors. His motion was denied; however, voir dire of panels of no more than 12 was granted.

The procedure for conducting voir dire in criminal cases is governed by Rule 5.02 of the Uniform Criminal Rules of Circuit Court Practice which provides, in part, that "[i]ndividual jurors may be examined only when proper to inquire as to answers given or for other good cause allowed by the court." Under this rule, "voir dire examination of jurors shall be directed to the entire venire with questions addressed to individual members only upon good cause and so as to inquire into juror answers. This practice has been upheld by our case law." Billiot v. State, 454 So.2d 445, 456 (Miss.1984). This Court recently addressed this subject in Hansen v. State, 592 So.2d 114, 126 (Miss.1991): We do not read Rule 5.02 as prohibiting a circuit court from utilizing individualized, sequestered voir dire. In its discretion, the court may allow it. Jones v. State, 461 So.2d 686, 692 (Miss.1984). We have held, however, that Rule 5.02 does not require more than by its terms it requires. White v. State, 532 So.2d 1207, 1218 (Miss.1988); Lutes v. State, 517 So.2d 541, 547 (Miss.1987); West v. State, 463 So.2d 1048, 1054 (Miss.1985); see Gilliard v. State, 462 So.2d 710, 714 (Miss.1985).

Russell was afforded individual voir dire, but not sequestered individual voir dire. As Russell correctly notes, his "contention that he should have been allowed to individually voir dire jurors out of the presence of the others is not supported by the decisions of this Court." White v. State, 532 So.2d 1207, 1218 (Miss.1988). Accordingly, the trial court acted within its discretion in denying Russell's motion for sequestered individual voir dire. This assignment is without merit.

II.

Whether the lower court erred in failing to declare a mistrial based upon the State's abuse of its peremptory challenges to exclude blacks from Russell's jury thereby depriving Russell of his right to a representative jury and to due process of law.

Russell, a black man, was tried by a jury consisting of nine whites, two blacks, and one Oriental. In selecting the jury, the State used 11 of its challenges: 9 challenges against blacks, 2 challenges against whites; the defense used 10 of its challenges: 9 against whites and 1 against a black. Russell challenged the State's use of nine peremptory challenges against members of the black race, alleging its challenges constituted an impermissible practice under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The State articulated reasons for all its challenges. The trial court found the State's reasons to be racially neutral and overruled the Batson Motion.

In examining this assignment of error [w]e give "great deference" to the trial court's findings of fact on this issue. [citation omitted]. As long as the trial court was within its authority when it determined that the State articulated a "neutral, non-race based explanation," we will not reverse. [citation omitted].

Willie v. State, 585 So.2d 660, 672 (Miss.1991). We have carefully examined each of the reasons given by the State and find that the trial court was within its authority in declaring each reason to be racially neutral. This assignment is without merit.

III.

Whether the "death qualification" of the jury denied Russell an impartial jury from a cross-section of the community or asked for a promise of a particular verdict to be returned.

The State's core voir dire questions followed the same pattern with each panel: Do you favor capital punishment or are you opposed to it? Even though you don't favor capital punishment, could you weigh the aggravated circumstances against the mitigating circumstances? If you found the aggravated circumstances outweighed the mitigating circumstances could you vote to impose the death sentence? Would you look for a lesser crime to find him guilty of or not guilty, even though the State proved him guilty of capital murder, in order not to have to face the question of death sentence?

Russell has worded this issue and framed this argument to address questions presented to the jury panel as a whole. However, Russell only directs this Court's attention to specific State voir dire questions asked of two prospective jurors, only one of whom was dismissed for cause.

The United States Supreme Court "clarified the standard for determining whether prospective jurors may be excluded for cause based on their views on capital punishment," otherwise known as the Witherspoon rule, in Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985):

[The proper standard] is whether the juror's views would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." We note that, in addition to dispensing with Witherspoon's reference to "automatic" decision making, this standard likewise does not require that a juror's bias be proved with "unmistakable clarity." This is because determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism.... [M]any veniremen simply cannot be asked enough questions to reach the point where their bias has been made "unmistakably clear"; these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings.... [T]here will be...

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