Russell v. State

• Decision Date: 07 December 1995
• Docket Number: No. 93-DP-00418-SCT,93-DP-00418-SCT
• Citation: 670 So.2d 816
• Parties: Willie RUSSELL v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 816

670 So.2d 816

Willie RUSSELL v. STATE of Mississippi.

No. 93-DP-00418-SCT.

Supreme Court of Mississippi.

Dec. 7, 1995.

Rehearing Denied April 11, 1996.

W.S. Stuckey, Jr., Stuckey & Stuckey, Greenwood, Whitman D. Mounger, Greenwood, for Appellant.

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

En Banc.

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

Willie Russell ("Russell") was convicted of the capital murder of Argentra Cotton ("Cotton"), a Mississippi Department of Corrections Officer, on October 4, 1990, and sentenced to death by the same jury on October 5, 1990. On appeal to this Court, Russell's murder conviction was affirmed, but his death sentence was vacated and the case was remanded for resentencing. Russell v. State, 607 So.2d 1107 (Miss.1992). In March of 1993, after receiving a second sentencing hearing, a second jury once again sentenced Russell to death for Cotton's murder. Russell, aggrieved by this second jury's death sentence assigns as error the following:

I. THE TRIAL COURT ERRED IN GRANTING THE STATE'S CHALLENGE FOR CAUSE OF CHARLES BUTTS WHO SAID HE COULD VOTE FOR THE DEATH PENALTY.

II. THE TRIAL COURT ERRED IN FAILING TO EXCUSE PROSPECTIVE JUROR BOND WHO STATED THAT AT THE BEGINNING OF THE TRIAL HE WOULD BE LEANING TOWARD A DEATH SENTENCE.

III. THE COURT ERRED IN COERCING A VERDICT FROM THE JURY WHICH HAD RETURNED A DEFECTIVE VERDICT.

IV. THE TRIAL COURT'S COMMENTS TO THE JURY CONCERNING THE LENGTH OF DELIBERATIONS WAS UNDULY COERCIVE.

V. THE TRIAL COURT ERRED IN ALLOWING THE PREVIOUS TESTIMONY OF WITNESSES SMITH, WOMBER, AND HAWKINS TO BE READ TO THE JURY.

VI. THE TRIAL COURT ERRED IN ALLOWING EVIDENCE BEYOND THE ACTUAL CONVICTION TO BE ADMITTED TO PROVE THE PRIOR CONVICTIONS.

VII. THE TRIAL COURT ERRED IN PERMITTING PROOF OF A PRIOR ESCAPE WHERE IT WAS NOT PROVED THAT SUCH WAS A PRIOR CRIME OF VIOLENCE.

VIII. IT WAS ERROR FOR THE TRIAL COURT TO MODIFY ITS RULING PROHIBITING THE STATE FROM INTRODUCING EVIDENCE OTHER THAN THAT RELATING TO THE TWO AGGRAVATING CIRCUMSTANCES.

IX. IT WAS ERROR FOR THE TRIAL COURT TO PERMIT THE PROSECUTION TO PUT INTO EVIDENCE MATTERS BEYOND THE SCOPE OF THE TWO AGGRAVATING CIRCUMSTANCES.

X. THE TRIAL COURT ERRED IN NOT GRANTING A MISTRIAL AFTER THE PROSECUTION FLOUTED THE TRIAL COURT'S EARLIER RULING AND COMMENTED ON THE DEFENDANT'S FAILURE TO TESTIFY.

XI. THE TRIAL COURT ERRED IN ALLOWING THE STATE'S EXPERTS TO EXPRESS THEIR LEGAL OPINION THAT RUSSELL'S MENTAL DISORDER WAS AN INSUFFICIENT LEGAL EXCUSE FOR THE JURY TO FIND IT TO BE A MITIGATING FACTOR JUSTIFYING THE IMPOSITION OF A LIFE SENTENCE.

XII. THE COURT ERRED IN HOLDING THAT A MITIGATION WITNESS' TESTIMONY TO THE EFFECT THAT WILLIE RUSSELL WOULD NEVER KILL AGAIN OPENED THE DOOR TO THE PROSECUTION'S PROVING FUTURE DANGEROUSNESS.

XIII. IT WAS ERROR FOR THE TRIAL COURT TO INSTRUCT THE JURY THAT THEY "MAY CONSIDER THE DETAILED CIRCUMSTANCES OF THE OFFENSE FOR WHICH THE DEFENDANT WAS CONVICTED."

XIV. THE SENTENCING VERDICT INSTRUCTION WAS DEFECTIVE IN A MANNER WHICH VIOLATES STATE LAW AND THE EIGHTH AMENDMENT.

XV. THE DEATH SENTENCE SHOULD BE REVERSED DUE TO THE ACCUMULATION OF ERROR THAT OCCURRED AT SENTENCING.

STATEMENT OF THE FACTS

On July 18, 1989, while an inmate at the State Penitentiary in Parchman, 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 in which he was housed. Russell, armed with a "shank," (homemade knife) waited in ambush for Corrections Officer Cotton. Russell's patience was rewarded at approximately 6:50 p.m. when Officer Cotton entered Zone 3 in which Russell was hiding. Cotton, unaware of Russell's presence, attempted to lock the door between Zone 2 and Zone 3. While Cotton's back was turned, Russell rushed Cotton and proceeded to stab him with the shank.

Officer Cotton, surprised by Russell's attack, attempted to escape by using a plastic food tray to repulse Russell's assault. Nonetheless, Russell followed Cotton, stabbed him in the back, and then held Cotton down with his knee and continued to stab him. During the attack, Russell's attention was momentarily drawn away by another guard allowing Cotton the opportunity to retreat into the guard control tower. Upon reaching the safety of the guard tower, Officer Cotton called for and received medical help. Cotton was first taken to the Parchman emergency room and subsequently transferred to the Bolivar County Hospital where he died as a result of internal bleeding. Russell, 607 So.2d at 1109-10.

Subsequently, Russell was indicted and convicted for killing a peace officer acting in his official capacity as a Correctional Officer of the Mississippi State Penitentiary in violation of Miss.Code Ann. § 97-3-19(2)(a). At trial, Russell took the stand and testified that he stabbed Officer Cotton because Cotton had taken twenty dollars from him in order to buy yeast for Russell. Evidently, Russell was going to use the yeast to make an alcoholic drink. However, according to Russell's testimony, Cotton never delivered the yeast, nor did he return Russell's twenty dollars.

The jury, after hearing overwhelming evidence as to Russell's guilt, returned a guilty verdict. After finding Russell guilty of capital murder, the jury sentenced Russell to death. On appeal, this Court affirmed the jury's determination of Russell's guilt, but reversed his death sentence as Russell, indicted as a habitual offender, was not allowed a habitual offender hearing before the penalty phase of his trial. See Turner v. State, 573 So.2d 657 (Miss.1990).

On Russell's resentencing, the venire and subsequent sentencing jury were drawn from Montgomery County Mississippi. However, for security reasons and the ease and convenience of transporting witnesses into court from Parchman, the trial was held in Sunflower County.

The second jury, after hearing evidence of the murder and all of the evidence that would tend to establish mitigating factors and aggravating factors, sentenced Russell to death. Specifically, the jury found the following aggravating factors: (1) The capital offense was committed by a person under a sentence of imprisonment; and (2) The Defendant was previously convicted of another capital offense or of a felony involving the use or threat of violence to the person. Likewise, the jury found that there were "insufficient mitigating circumstance [sic] to outweigh the aggravating circumstance(s)."

DISCUSSION

I. THE TRIAL COURT ERRED IN GRANTING THE STATE'S CHALLENGE FOR CAUSE OF CHARLES BUTTS WHO SAID HE COULD VOTE FOR THE DEATH PENALTY.

During death qualification of Russell's capital murder resentencing jury, the trial judge excused veniremember Charles Butts ("Butts") for cause. Russell contends that In the case at bar, the jury selection began with a 186-person venire. During the initial proceedings, the trial judge excused those veniremembers who were ill or those who had to take care of sick family members. Next, the trial judge excused those members of the venire over the age of sixty-five who chose to exercise their statutory right not to serve on the jury. See Miss.Code Ann. §§ 13-5-23 and 13-5-25. The venire list also indicates that there were some veniremembers who either lived out of the county or out of the state, or the authorities were unable to locate. Ultimately, 77 veniremembers were excused during these initial proceedings.

Butts was eligible to serve on his jury under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and that the trial judge erroneously struck Butts. On appeal, Russell contends that the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and the United States Supreme Court's opinion in Gray v. Mississippi, 481 U.S. 648, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987), dictates the reversal of his death sentence.

Next, the trial judge sought to determine if any of the remaining veniremembers were not qualified to serve on Russell's jury, i.e., veniremember not a registered voter or landowner in Montgomery County, veniremember previously convicted of a felony, veniremember not twenty-one years of age, veniremember a common gambler or habitual drunk, veniremember convicted of unlawful sale of intoxicating beverages within five years and, veniremember with a case pending in Sunflower County Circuit Court at time of Russell's resentencing. Through this process six veniremembers were disqualified from jury service.

The trial judge proceeded to determine whether any of the remaining veniremembers chose to claim an exemption from jury duty as provided by Mississippi law. Four additional veniremembers chose not to serve because of exemptions, i.e., three were over sixty-five and one was the sole proprietor of a business that could not afford to be closed for several days.

Veniremembers were next asked to present any personal excuses they might have for not serving on Russell's jury. After hearing all of the reasons proffered, the trial judge excused eight veniremembers. Out of the 186 people called for Russell's venire, 95 were excused for various statutory and personal reasons and 91 were left for jury qualification.

The trial judge began the actual voir dire process by asking the veniremembers various general questions about the case and its participants. The veniremembers were then tendered to the State and then to Russell. At this time, none of the jurors were questioned as to their views regarding the death penalty. However, some veniremembers, of their own volition, did offer their views on capital punishment. After both sides had asked their questions, the veniremembers were allowed to leave the courtroom so that the parties could request certain excusals for cause. Eight of the State's requests were granted and nine of Russell's were...