West v. State

• Court: Mississippi Supreme Court
• Writing for the Court: Before McRAE, P.J., DIAZ and EASLEY, JJ.
• Citation: West v. State, 820 So.2d 668 (Miss. 2001)
• Decision Date: 25 October 2001
• Docket Number: No. 1999-KA-01706-SCT.,1999-KA-01706-SCT.
• Parties: Tracy Lee WEST v. STATE of Mississippi.

820 So.2d 668

Tracy Lee WEST v. STATE of Mississippi.

No. 1999-KA-01706-SCT.

Supreme Court of Mississippi.

October 25, 2001.

Jim Davis, Attorney for Appellant.

Office of the Attorney General, by Dewitt T. Allred, III, Attorneys for Appellee.

Before McRAE, P.J., DIAZ and EASLEY, JJ.

EASLEY, J., for the Court:

¶ 1. Tracy Lee West ("West"), is back on appeal before this Court after his prior appeal was remanded to the trial court with instruction to provide sentencing options in a capital case. West had previously been found guilty of capital murder and sentenced to death by the jury. West v. State, 725 So.2d 872, 895 (Miss.1998). The conviction for capital murder was affirmed by this Court, only the sentencing was remanded for a rehearing. In May 1999, the Harrison County Circuit Court held a trial on resentencing only. On May 27, 1999, the jury returned a verdict of life without parole. From this sentence West appeals to this Court.

FACTS

¶ 2. West was indicted in the Circuit Court of Harrison County for the murder of Azra Garriga Kiker, a convenience store clerk, during a robbery which occurred on or about December 16, 1992. West was indicted for the murder on March 23, 1993. This case was first appealed to this Court on the original conviction for capital murder and the sentence of a death penalty. This Court upheld the conviction for capital murder, but it overturned the sentence of death and remanded the case on the sentencing phase only. Id. This Court remanded the case for resentencing pursuant to Miss.Code Ann. § 97-3-21 on the basis that the jury should have been instructed on the sentencing options of life, life without parole or death. West v. State, 725 So.2d at 895.

STATEMENT OF ISSUES

I. Did the court err in allowing the prior testimony of the Defendant, Tracy West, to be introduced to the jury, particularly the testimony regarding other bad acts?

II. Did the court erred in its ruling on removing jurors for cause during the remanded sentencing phase?

III. Did the errors committed at sentencing, if not individually, cumulatively require reversal?

LEGAL ANALYSIS

I.

¶ 3. West alleges that the introduction of his previous testimony from the first trial constituted the introduction of other bad acts and affected his substantial right not to testify. West argues that, although a sentencing hearing is not a complete trial as to all the issues, it is still a trial, and as such, the defendant should be accorded all the constitutional protections he is entitled at any trial, including the right not to testify. However, this issue is without merit.

¶ 4. West had testified at the first trial that on or about December 15 or 16, 1992, he and two friends, Paul Rathe and Scott Cothren, left Pulaski, Tennessee, in a car that Rathe had stolen from a truck driver in Pulaski. West v. State, 725 So.2d at 876. They traveled to Alabama in the stolen car. Id. In Alabama, they robbed a convenience store, and Cothren murdered the store clerk. They then drove to Gulfport, Mississippi. Id. According to West's testimony, Cothren forced Rathe and West to rob another convenience store and kill the clerk. Id. Rathe and West robbed the convenience store's cash drawer. Id. West shot the clerk, Azra Garriga Kiker, two times in the back of the head. Id.

¶ 5. West contends that admitting the prior testimony from the first trial into evidence by reading the transcript to the jury at the sentencing phase forced West to take the witness stand and testify. West specifically addressed the admission of the testimony concerning the murder in Alabama at the sentencing phase.

¶ 6. The State introduced evidence and exhibits from the previous proceedings at the 1999 sentencing rehearing. The State introduced West's entire testimony which was read into the record for the jury at the resentencing.

¶ 7. West, citing Lockett v. State, 459 So.2d 246, 253 (Miss.1984), argues that under Mississippi law it is well settled that proof of other crimes is inadmissible except where:

(1) the offense charged and that offered to be proved is so connected as to constitute one transaction, or

(2) where it is necessary to identify the defendant, or

(3) where it is material to prove motive and there is an apparent connection or relation between the act proposed to be proved and that charged, or

(4) where the accusation involves a series of criminal acts which must be proved to make out the offense, or

(5) where it is necessary to prove scienter or guilty knowledge.

¶ 8. West alleges that during the sentencing phase of a death penalty case that the State is only entitled to offer evidence that is relevant to the statutory aggravating circumstances. Miss.Code Ann. § 99-19-101(1) provides that at the sentencing hearing "evidence may be presented as to any matter that the court deems relevant to sentence, and shall include matters relating to any of the aggravating or mitigating circumstances." (emphasis added). The statute does not limit the evidence that can be presented at the sentencing phase to evidence relevant to the aggravating circumstances.

¶ 9. West cited as authority Walker v. State, 740 So.2d 873 (Miss.1999), to support his position. In Walker, this Court stated that, "during the sentencing phase of a death penalty case, the State is limited to offering evidence that is relevant to one of the aggravating circumstances included in [§ 99-19-101]". Id. at 886.

¶ 10. The case sub judice and the case of Walker have one vital distinction. In Walker, the guilt phase and the sentencing phase were tried to the same jury which had heard all the previous testimony at trial. In the case at hand, there are two different juries, one for the guilt phase and one for the sentence phase due to the remand for resentencing only. This Court in Walker was addressing additional evidence presented for the first time at the sentencing phase of a trial. Assuming arguendo that this case had not been sent back on remand for resentencing, the same jury which heard the West's testimony in the guilty phase of the trial would also be deciding the sentence to be imposed during the sentencing phase.

¶ 11. In Jackson v. State, 337 So.2d 1242, 1256 (Miss.1976) this Court stated as follows:

[A]t [the sentencing] hearing, the State may elect to stand on the case made at the first hearing, if before the same jury, or may reintroduce any part of the evidence adduced at the first hearing which it constitutes to be relevant to the particular question of whether the defendant shall suffer death or be sentenced to life imprisonment.

In addition thereto, an accused's prior record of criminal convictions, if any, may be proven as an additional aggravating circumstance whether the defendant testifies in his own behalf or not. At [the] hearing, the defendant may prove his lack of a prior criminal record as a mitigating circumstance and may also adduce proof of any other circumstance or combination of circumstances surrounding his life and character or the commission of the offense with which he is charged that would be reasonably relevant to the question of whether he should suffer death or be sentenced to life in prison.

(emphasis added).

¶ 12. In Holland v. State, 705 So.2d 307, 327 (Miss.1997) (citing Jackson v. State, 337 So.2d 1242 (Miss.1976)), this Court specially addressed the situation where the sentencing hearing has a different jury than that of the first hearing during guilt phase. Mississippi allows the State to stand on its conviction at resentencing or reintroduce the evidence from the guilt phase. Id.

¶ 13. West's argument that the testimony should not have been introduced at the sentencing phase does not stand up to scrutiny. To hold so would prevent the same jury from being able to decide both guilt and the sentence to be imposed. We find that West waived his constitutional right to remain silent when he testified at the first trial. West should have known that his testimony may be heard and considered by the same jurors who would deliberate at his guilt and his sentence regardless of whether he testified again at the sentencing phase. If the trial had not been bifurcated due to the remand for resentencing, the same jury that heard the evidence presented during the guilt phase would have also served as jurors on the sentencing phase.

¶ 14. West also raised the point that even if this Court should refuse to exclude the prior testimony that the references to the murder in Alabama should have been excised from the testimony. In support of his position, West cites Rose v. State, 556 So.2d 728, 730-31 (Miss.1990), stating that the admission of evidence of unrelated crimes was reversible error. In the case sub judice, this Court on the first appeal did not disturb the admission of the evidence of the Alabama murder during West's testimony at trial. Therefore, We find that the evidence of the Alabama murder should remain undisturbed and intact when presented from the guilty phase into the sentencing phase of the trial. In Holland, 705 So.2d at 332, the defendant in that case was not allowed to relitigate an issue in the sentencing phase decided against him at the guilt phase of the original trial.

¶ 15. Therefore, West's first assignment of error is without merit.

II.

¶ 16. West alleges that during voir dire the trial court erred in removing two jurors challenged for cause.

¶ 17. The Mississippi Constitution guarantees every person the right to trial by an impartial jury. Miss. Const. art. 3, § 26. In Billiot v. State, 454 So.2d 445, 457 (Miss.1984), this Court stated that, "[g]enerally a juror who may be removed on a challenge for cause is one against whom a cause for challenge exits that would likely effect his competency or his impartiality at trial." The determination of whether a juror is fair or impartial is a judicial question, and it will not be set aside except where there is a finding that the determination clearly appears to be wrong. Carr v....