JAMES L. ROBERTS, Jr., Justice, for the Court
s 1. Jerome Pete Smith1, along with his older brother, Clyde Wendell Smith, was indicted by a Leflore County grand jury for the November 7, 1992, robbery-murder of Sidon Package Store owner, Johnny B. Smith2. Both Jerome and Clyde were found guilty of capital murder by a Leflore County jury and subsequently sentenced to death. It is from this judgment, entered on July 1, 1993, that Jerome3 now appeals, asserting the following errors:
I. THE TRIAL COURT ERRED IN TELLING JURORS THAT JEROME SMITH WOULD BE ELIGIBLE FOR PAROLE IF SENTENCED TO LIFE IMPRISONMENT, IN RESPONSE TO A MID-DELIBERATIONS QUESTION FROM THE JURY, AND IN GIVING A JURY CHARGE AND ALLOWING CLOSING ARGUMENTS FROM THE PROSECUTOR AND CODEFENDANT WHICH HIGHLIGHTED JEROME'S PAROLE ELIGIBILITY AND MISLEADINGLY SUGGESTED HE MIGHT BE RELEASED IMMINENTLY IF NOT SENTENCED TO DIE.
II. ALTHOUGH HE FILED A PRETRIAL MOTION DEMANDING NOTICE OF AGGRAVATING CIRCUMSTANCES AND EVIDENCE, JEROME SMITH WAS NOT INFORMED, UNTIL THE BEGINNING OF THE PENALTY PHASE OF HIS TRIAL, THAT THE PROSECUTION WOULD BE RELYING ON THE PREVIOUS-VIOLENT FELONY AGGRAVATING FACTOR AND WOULD BE OFFERING PROOF OF TWO PRIOR AGGRAVATED ASSAULT CONVICTIONS.
A. THE DENIAL OF PRETRIAL NOTICE OF THE STATE'S INTENT TO INTRODUCE APPELLANT'S PRIOR AGGRAVATED ASSAULT CONVICTIONS VIOLATED MISSISSIPPI LAW.
B. THE DENIAL OF PRETRIAL NOTICE OF THE STATE'S INTENT TO INTRODUCE APPELLANT'S PRIOR AGGRAVATED ASSAULT CONVICTIONS VIOLATED THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.
III. THE JURY'S DEATH-SENTENCING VERDICT WAS LEGALLY INADEQUATE BECAUSE THE JURORS FAILED TO FIND THAT JEROME SMITH HIMSELF KILLED, INTENDED TO KILL, ATTEMPTED TO KILL, OR CONTEMPLATED THAT LETHAL FORCE WOULD BE USED, AND BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT SUCH FINDINGS.
IV. THE CIRCUIT COURT'S INSTRUCTIONS TO THE JURY AT THE SENTENCING STAGE WERE FATALLY FLAWED.
A. THE LOWER COURT IMPROPERLY DEPRIVED JEROME OF HIS RIGHT TO FULL CONSIDERATION OF ALL STATUTORY MITIGATING FACTORS, WHEN IT CHARGED THE JURY ON THE MITIGATING CIRCUMSTANCE THAT CLYDE WAS A LESSER PARTICIPANT IN THE CRIME, BUT DID NOT GIVE THIS INSTRUCTION AS TO JEROME OR AN INSTRUCTION ON THE SUBSTANTIAL-DOMINATION MITIGATING FACTOR.
B. JUDGE EVANS ERRED IN REFUSING TO CHARGE THE JURY ON SPECIFIC NONSTATUTORY MITIGATING CIRCUMSTANCES.
C. BECAUSE ROBBERY WAS AN ELEMENT OF THE OFFENSE OF CAPITAL MURDER, ITS ADDITIONAL USE AS AN AGGRAVATING CIRCUMSTANCE WAS IMPERMISSIBLY
DUPLICATIVE AND CONTRAVENED THE NARROWING REQUIREMENT OF THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
D. THE TRIAL JUDGE'S INSTRUCTIONS IMPROPERLY LED JURORS TO BELIEVE DEATH WAS THE APPROPRIATE SENTENCE IF AGGRAVATING AND MITIGATING CIRCUMSTANCES WERE IN EQUIPOISE.
V. THE PROSECUTOR ENGAGED IN MISCONDUCT BY MAKING NUMEROUS IMPROPER COMMENTS DURING HIS CLOSING ARGUMENT AT THE SENTENCING STAGE.
VI. THE DEATH PENALTY IS A DISPROPORTIONATE PUNISHMENT IN LIGHT OF THE GRAVE UNCERTAINTY AS TO WHETHER JEROME SMITH ACTUALLY KILLED THE VICTIM AND OTHER DISTINGUISHING FEATURES OF THIS CASE.
VII. THE TRIAL COURT ERRED IN PERMITTING JEROME SMITH TO VETO HIS ATTORNEYS' SEVERANCE MOTION, WHICH THE COURT HAD ALREADY GRANTED, AND ORDERING THAT HE BE TRIED JOINTLY WITH HIS CODEFENDANT ALTHOUGH SUCH A JOINT TRIAL WAS SEVERELY DAMAGING TO JEROME'S DEFENSE.
A. JEROME WAS ENTITLED TO BE TRIED SEPARATELY FROM HIS CODEFENDANT UNDER MISSISSIPPI AND FEDERAL LAW.
B. THE CIRCUIT COURT ERRED IN RESCINDING ITS SEVERANCE ORDER AND PERMITTING JEROME SMITH TO OVERRIDE HIS ATTORNEYS' DECISION TO OBTAIN A SEVERANCE, BECAUSE THIS DETERMINATION WAS ONE THAT TRIAL COUNSEL, AND NOT THE CLIENT, WAS AUTHORIZED TO MAKE.
VIII. JEROME SMITH'S FUNDAMENTAL RIGHT TO BE PRESENT AT ALL PROCEEDINGS IN THIS DEATH PENALTY CASE WAS VIOLATED WHEN THE VOIR DIRE AND DISMISSAL OF CERTAIN JURORS, A PROCEEDING INVOLVING THE COURT'S RESPONSE TO A MID-DELIBERATIONS QUESTION FROM THE JURY, AND A PRETRIAL HEARING AT WHICH HIS ORIGINAL ATTORNEY WAS REMOVED FROM THE CASE, ALL WERE CONDUCTED IN HIS ABSENCE.
IX. THE TRIAL COURT SHOULD HAVE EXCLUDED AS EVIDENCE ITEMS DISCOVERED BY LAW ENFORCEMENT OFFICIALS IN A WARRANTLESS SEARCH OF APPELLANTS' CAR, WHICH WAS NOT SUPPORTED BY PROBABLE CAUSE.
X. THE ASSISTANT DISTRICT ATTORNEY OFFERED IRRELEVANT, INFLAMMATORY, AND INADMISSIBLE OTHER-CRIMES EVIDENCE CONCERNING APPELLANTS' POSSESSION OF A SAWED-OFF SHOTGUN, THEIR COMMISSION OF AN UNSPECIFIED SEXUAL OFFENSE, AND THEIR USE OF ILLEGAL NARCOTICS.
XI. THE CIRCUIT JUDGE IMPROPERLY ADMITTED A SLEW OF HEARSAY STATEMENTS BY VARIOUS WITNESSES, INCLUDING A CRUCIAL STATEMENT BY THE CODEFENDANT CLYDE SMITH, WHICH IMPLICATED JEROME IN THIS OFFENSE AND AGGRAVATED THE CRIME.
XII. THE TRIAL COURT'S GUILTSTAGE INSTRUCTIONS WERE TAINTED BY SEVERAL FUNDAMENTAL FLAWS.
A. JUDGE EVANS' INSTRUCTION ON THE ROBBERY PRONG OF CAPITAL MURDER FAILED TO INFORM JURORS OF THE NECESSARY CAUSE-AND-EFFECT
CONNECTION BETWEEN THE "PUTTING IN FEAR" AND THE "TAKING" ELEMENTS OF THIS OFFENSE.
B. JUDGE EVANS' CHARGE ON THE ELEMENTS OF CAPITAL MURDER IMPROPERLY AMENDED THE INDICTMENT BY OMITTING THE ELEMENT OF "MALICE AFORETHOUGHT".
C. THE COURT'S INVITATION TO THE JURORS TO FIND JEROME GUILTY OF CAPITAL MURDER ON THE BASIS OF ANY SINGLE ACT "CONNECTED WITH" THE CHARGED OFFENSE ERRONEOUSLY RELIEVED THE STATE OF ITS BURDEN OF PROOF.
XIII. SEVERAL PIECES OF EVIDENCE WERE ADMITTED ALTHOUGH THE STATE FAILED TO ESTABLISH A COMPLETE CHAIN OF CUSTODY.
XIV. THE CIRCUIT COURT SHOULD NOT HAVE ALLOWED THE STATE TO CALL JERRY SMITH BECAUSE THE PROSECUTOR HAD FAILED TO PROVIDE APPELLANT WITH PRETRIAL NOTICE OF THIS WITNESS.
XV. THE TRIAL JUDGE SHOULD HAVE EXCLUDED IDENTIFICATION TESTIMONY REGARDING JEROME SMITH AND A RED AND WHITE AUTOMOBILE, AS SUCH TESTIMONY WAS UNRELIABLE AND TAINTED BY SUGGESTIVE INFLUENCES.
XVI. THE PROSECUTOR'S SUMMATION AT THE GUILT-INNOCENCE STAGE INCLUDED A NUMBER OF IMPROPER COMMENTS.
A. MR. CROOK ARGUED FACTS THAT WERE IRRELEVANT AND NOT IN EVIDENCE WHEN HE URGED JURORS TO FIND JEROME SMITH GUILTY BECAUSE TED BUNDY WAS CONVICTED ON THE BASIS OF CIRCUMSTANTIAL BITE-MARK EVIDENCE, AND DISCUSSED HIS OWN DRIVING TIME FROM HOME TO THE COURTHOUSE IN AN EFFORT TO REBUT APPELLANTS' ALIBI DEFENSE.
B. THE PROSECUTOR IMPROPERLY FOCUSED JURORS' ATTENTION ON THE WORTH OF THE VICTIM AND THE DESIRES OF HIS FAMILY.
XVII. THE EVIDENCE WAS INSUFFICIENT TO PROVE THAT JEROME SMITH TOOK MONEY FROM THE VICTIM BY PUTTING HIM IN FEAR OF IMMEDIATE INJURY TO HIS PERSON, AND THUS WAS INSUFFICIENT TO ESTABLISH THE ROBBERY ELEMENT OF CAPITAL MURDER.
XVIII. THE JURY'S GUILTY VERDICT WAS LEGALLY INADEQUATE BECAUSE IT WAS NOT SIGNED BY THE JURY FOREPERSON.
XIX. THE TRIAL COURT IMPROPERLY REMOVED VENIRE MEMBER TERETHA TAYLOR BECAUSE SHE COULD NOT DEFINE "MITIGATING" AND "AGGRAVATING" CIRCUMSTANCES, ALTHOUGH SHE NEVER INDICATED WHAT HER VIEWS WERE ON THE DEATH PENALTY, LET ALONE THAT THEY WOULD IMPAIR HER FROM CONSIDERING A DEATH SENTENCE.
XX. THE PROSECUTOR'S SYSTEMATIC USE OF HIS PEREMPTORY CHALLENGES TO RID THE JURY OF BLACK VENIRE MEMBERS, TOGETHER WITH OTHER INDICIA OF RACIAL DISCRIMINATION, MANDATES THAT THIS CASE BE REMANDED TO THE CIRCUIT COURT TO REQUIRE THE ASSISTANT DISTRICT ATTORNEY TO PROVIDE CREDIBLE, RACE-NEUTRAL REASONS FOR THESE STRIKES.
XXI. JEROME SMITH'S RIGHT TO COUNSEL WAS VIOLATED WHEN THE TRIAL JUDGE REFUSED TO APPOINT THE ATTORNEY WHO HAD REPRESENTED HIM THROUGHOUT THE PRETRIAL
STAGE, AND INSTEAD SUBSTITUTED NEW LAWYERS ONE MONTH BEFORE TRIAL.
XXII. IT WAS IMPROPER FOR THE TRIAL COURT TO PROVIDE THE PROSECUTOR WITH AN EX PARTE DISCOVERY ORDER, AND TO ALSO ENGAGE IN EX PARE COMMUNICATIONS WITH LAWYERS FROM THE STATE ATTORNEY GENERAL'S OFFICE.
XXIII. JEROME SMITH'S RIGHTS UNDER MISSISSIPPI AND FEDERAL LAW WERE VIOLATED WHEN THE STATE FAILED TO PROVIDE HIM WITH AN INITIAL APPEARANCE, A PRELIMINARY HEARING, OR ANY PRETRIAL JUDICIAL DETERMINATION THAT THERE WAS PROBABLE CAUSE TO CHARGE AND JAIL HIM IN THIS CASE, AND INSTEAD WAITED THREE MONTHS, UNTIL JEROME WAS INDICTED, TO VALIDATE HIS ARREST AND DETENTION.
s 2. We find no reversible error as to the guilt phase and affirm Jerome's conviction of capital murder. However, because the trial court improperly instructed the jury as to Jerome's parole eligibility, we reverse for resentencing.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
s 3. At approximately 9:00 p.m. or soon thereafter, on the night of November 7, 1992, Johnny B. Smith ("Johnny B."), was killed in the liquor store he owned in Sidon, Mississippi, as the result of three gunshot wounds. Taken from the store were a cash register and an extra cash drawer. Also missing was Johnny B.'s handgun which was either a .32 or .38 caliber weapon. The projectiles recovered from Johnny B.'s body and from the scene were consistent with those of a .38 caliber weapon. Steve Byrd, a forensic scientist at the Mississippi Crime Laboratory, testified that the type of bullets recovered, along with their markings, indicated that they were probably fired from a revolver and not a semi-automatic weapon. Found on the counter at the scene was a bottle of Seagram's gin in a brown paper bag. A latent fingerprint and palm print were lifted from the paper bag and identified as matching those of appellant, Jerome Pete Smith.
s 4. John Stewart and Lyndell Hunt testified that they were in Sidon and drove by the liquor store between 9:00 and 10:00 on the night of the murder and saw a red and white car parked between a tin two-story building and the post office, near the liquor store. They both stated that they saw two or three...
