Smith v. State

• Decision Date: 11 August 1982
• Docket Number: No. 53564,53564
• Parties: Willie Albert SMITH v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 563

419 So.2d 563

Willie Albert SMITH v. STATE of Mississippi.

No. 53564.

Supreme Court of Mississippi.

Aug. 11, 1982.

As Modified on Denial of Rehearing

Sept. 22,

1982.

Minor F. Buchanan, Jackson, John E. Gregg, Raymond, for appellant.

Bill Allain, Atty. Gen. by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before the Court En Banc.

BROOM, Justice, for the Court:

Death penalty sentence resulted from the capital murder trial of Willie Albert Smith (defendant) in the Circuit Court of the First Judicial District of Hinds County, the Honorable William F. Coleman, Circuit Judge, presiding. The indictment charged that the defendant murdered Shirley Roberts while "engaged in the commission of the crime of robbery of said Shirley Roberts ..." On his appeal, the defendant (1) challenges several evidentiary rulings made by the trial court, (2) contends that the verdict and sentence were unsupported by the "weight of the evidence", and (3) asserts that Mississippi Code Annotated Secs. 97-3-21 and 99-19-101 (Supp.1981), are unconstitutional as violative of the Eighth and Fourteenth Amendments to the United States Constitution. We affirm.

Shirley Roberts, the murder victim, was the manager of Tote-Sum Store No. 6, situated on Robinson Street in the City of Jackson. She normally arrived to open the store about 5:15 A.M., but unfortunately on the morning of March 15, 1981, upon her arrival she was assaulted and abducted and subsequently murdered. Kenneth Thomas testified that, shortly after 5:00 on that morning, he was driving by the Tote-Sum in a car with James Wells. As they passed the Tote-Sum store, they saw a black man in the parking lot (later identified as the defendant) grab a white woman who struggled with him. Thomas's driving companion, James Wells, stated that he saw the defendant grab the woman and choke her, but, not wanting to become "involved", they drove on. A few minutes later they returned, at which time Jackson Police Department officer G. E. Otis was present. They related to Otis what they had seen a few minutes earlier. Officer Otis conducted a preliminary search and discovered in the parking area by the Tote-Sum store the following items: car keys, brass knucks, a twenty-dollar bill, a woman's (right) tennis shoe, and a pair of eyeglasses. Witness Thomas indicated in his testimony that Mrs. Roberts was about to unlock the store when the defendant grabbed her. Thomas last saw the woman at approximately the spot where the glasses, brass knucks and tennis shoe were found. At trial, Thomas testified that the next day he identified the defendant in a lineup as the person with whom the woman struggled outside the store. ¹ Thomas's testimony was substantially corroborated by that of his friend, James Wells.

Officer Otis testified that he was present at the store when Thomas and Wells arrived and related to him the incident they had seen transpire between the defendant and the woman (Mrs. Roberts) in the parking lot. He conducted a preliminary search at the exterior of the store and discovered the twenty-dollar bill, car keys, brass knucks, a woman's-type tennis shoe and eyeglasses. The officer determined that a car in the parking lot was that of Mrs. Shirley Roberts, but she was not on the premises. Then Officer Otis noticed a red Pinto traveling on Robinson Road which fit the description of the suspect's car given him by Thomas and Wells. A few minutes later he stopped the vehicle which was being driven by defendant Willie Albert Smith. During the process of stopping the defendant, Officer Otis saw the defendant put something under the right side of the front seat, which, upon investigation, was discovered to be a shoe: the mate to the one found at the parking lot. Otis observed mud and blood on the defendant's hands and arrested the defendant. The defendant told Otis that he had borrowed the red Pinto from one Edward Charles McDonald and directed the officer to McDonald's address. McDonald, in turn, directed them to an apartment off Henley Street where the defendant lived. During their investigation, the officers followed a "drag trail" from the house to a wooded area where they came to a ditch of water covered with leaves, from which a human foot protruded. The body in the water was later identified as that of the victim, Mrs. Shirley Roberts.

Cause of death, according to the testimony of Dr. Rodrigo Galvez, was manual strangulation or choking. He found scratches and abrasions about her knees, ankles, and on her right hip. There was a marking around her neck. Testifying in his own defense, the defendant denied that he had ever seen Mrs. Roberts or that he had anything to do with her death or any robbery. Additional facts will be stated as needed in this opinion.

The first argument made by the defendant is that the trial court "committed reversible error by admitting (sic) the prosecution to introduce the criminal record of another as being that of the defendant's ...." On direct examination, the defendant gave testimony pertaining to his prior criminal record, and during his cross-examination he was queried about prior convictions of disorderly conduct and resisting arrest, which he denied. In rebuttal, the state called the keeper of the Jackson Municipal Court records, Mr. Gladney, who testified that a Willie Albert Smith had been convicted for disorderly conduct and resisting arrest. On cross-examination, Gladney stated that according to his records Willie Albert Smith would be twenty years old at the time of trial of this cause, and had lived at 118 Bonair in Jackson, and had a social security number of 426-21-4009. The defendant testified that he was twenty-three years old at the trial date, had never lived at the mentioned address, and had a different social security number from the one produced by Gladney. He contends that the conviction record of disorderly conduct and resisting arrest was in fact the record of another person and that its use constituted reversible error.

We note that first to bring up the subject of the defendant's past criminal record was his own counsel, who asked the defendant about two prior convictions which he acknowledged. Then counsel made no objection to Officer Gladney's testimony, and at no time during the trial was there any attempt on the part of the defense to have the testimony excluded. Our general rule is that reversible error cannot be predicated upon the trial court's failure to exclude evidence as to which there has been no timely objection or motion to exclude. Black v. State, 308 So.2d 79 (Miss.1975). Nevertheless, we have here considered the argument. We point out that when one gives data to arresting officers or to a court clerk, the content may be true and accurate, or may be false and misleading. Of course, the jurors were allowed to hear all of the evidence concerning the names and identification and other data in question which raised a question of credibility for them to consider. In the jury's evaluation of the defendant's credibility, the decision as to the weight to be accorded this evidence was within the sole province of the jury's role as fact trier. Defense counsel's election to bring up the subject of the past criminal record cannot be charged to the prosecution or the trial court. Defense counsel's further election not to object to the portion of the arrest record brought out by Officer Gladney may have been a trial strategy decision to gain the jury's sympathy by attempting to put the prosecution in the unfavorable light of unfairly using the criminal record of another defendant. Reversible error cannot be predicated upon this aspect of the case.

The next argument advanced by the defendant is his contention that Mississippi Code Annotated Secs. 97-3-21 and 99-19-101 (Supp.1981) "are unconstitutional and violative of the Eighth and Fourteenth Amendments to the United States Constitution." He says that Sec. 97-3-21 "is unconstitutional in that it does not allow the jury to sentence a defendant to life imprisonment without parole." The following is asserted in his brief:

[T]he only instances in which one may be sentenced to life without parole are: (1) Sec. 99-19-107, Mississippi Code of 1972, which states that in the event the death penalty is held unconstitutional, the person shall be sentenced to life without parole; (2) Sec. 99-19-81 and 83 of said Code which are commonly called the habitual offender act, and (3) if one is convicted of armed robbery and given life, then Sec. 47-7-3(d) of said Code would prevent his release or make his sentence life without parole.

He contends that because of the different sentencing options available under our present statutory scheme "and the absence of life without parole the imposition of the death penalty denies equal protection of the law and amounts to cruel and unusual punishment in view of the available options." He says that under the present law execution is the only means by which a jury can be sure that the defendant will not be released and again return to society. He takes the position that regardless of how a jury might view an individual case, death is the only means to prevent the defendant from ever being released again. Further, he asserts "that the death penalty is per se cruel and unusual punishment" ... and "that the absence of the alternative form of sentencing ... denies equal protection of the law ..."

According to our prior decisions, the legislature's prerogative is to define crimes and set the punishment for offenders. Peterson v. State, 268 So.2d 335 (Miss.1972). Also, we have held in a number of instances that the death penalty is not per se unconstitutional. Bullock v. State, 391 So.2d 601 (Miss.1980); Washington v. State, 361 So.2d 61 (Miss.1978). Similar issues were before the Court in Capler v. State, 237 So.2d 445 (Miss.1970), wherein we stated:

Viewing the statute as here construed, the fact that a jury could impose life...