West v. State
| Citation | 519 So.2d 418 |
| Decision Date | 13 January 1988 |
| Docket Number | No. DP-61,DP-61 |
| Parties | Samuel Tony WEST, a/k/a Tony Wells West v. STATE of Mississippi. |
| Court | United States State Supreme Court of Mississippi |
William B. Kirksey, Kirksey & DeLaughter, Jackson, for appellant.
Edwin Lloyd Pittman, Atty. Gen. by Marvin L. White, Jr., Asst. Atty. Gen., and Donald G. Barlow and Felicia C. Adams, Sp. Asst. Attys. Gen., Jackson, for appellee.
EN BANC.
Samuel Tony West has appealed from a conviction of capital murder and judgment imposing the death penalty, entered in the Circuit Court of Warren County, Honorable John E. Ellis, presiding, and assigns ten (10) errors in the trial below. We reverse and remand the case for a new trial on both the guilt phase and the sentencing phase.
This is the second appearance of this case before the Mississippi Supreme Court. After the first trial and imposition of the death penalty, this Court reversed and remanded the case to the lower court because the State presented evidence of two murders committed in Georgia previous to the robbery/murder of Kirby Phelps in Warren County, Mississippi, and the introduction at the sentence phase of Georgia convictions, which recited that West had been found guilty of capital murder and sentenced to be executed. See West v. State, 463 So.2d 1048 (Miss.1985). The facts of the homicide are reported in West v. State, supra, and we relate only such facts as will render a coherent understanding of the case presently before us.
On December 13-14, 1982, Tony West and Kenneth Avery Brock drove from Chattooga County, Georgia, on Interstate Highway 20 west through Alabama into Mississippi and Warren County. They stopped at Bovina, Warren County, in a rest area and went to sleep. The next morning on December 15, 1982, West and Brock awakened and saw a brown Toyota automobile parked nearby. Inside was 26-year-old Navy Lt. Kirby Phelps, who also had stopped at the Bovina rest area and was asleep.
West and Brock were out of money and needed different transportation from the jeep in which they were traveling. They went to the Toyota, awakened Phelps, and, at gunpoint, handcuffed him with cuffs taken in Georgia. While Brock searched the Toyota for valuables, West took Phelps and, with the pistol pointed at him, walked two hundred to three hundred yards into woods adjoining the rest area. During that time, West shot Phelps three times in the head, killing him, and left his body in the wooded area. Later that day, Civil War relic hunters discovered Phelps' body and reported it to the Warren County sheriff.
West and Brock drove on Interstate 20 into Louisiana, where they abandoned the jeep, but continued in the stolen Toyota to Austin, Texas. There they pawned the stereo system, a camera and cassette tapes found in the automobile. They parted ways, and West drove the Toyota eastward back to his hometown of Chattanooga, Tennessee, and, on December 25, 1982, voluntarily surrendered to police. 1
Facts
A.
Appellant contends that the trial judge was actively involved in the case on behalf of the prosecution, conducted by District Attorney Frank Campbell, and that the appellant did not receive a fair trial because of the aggressive assistance of the trial judge on behalf of the prosecution. We set out a sample of the record in considering this assigned error.
CROSS-EXAMINATION OF APPELLANT IN THE PRESENCE OF THE JURY, DURING THE SENTENCING PHASE:
Q. All right. Do you affirm or do you deny that you told that to Sheriff McConnell on December the 25th of 1982?
A. I am saying that I am telling the truth. I walked him in the woods. Me and him had conversation while we was walking.
BY MR. CAMPBELL: The Court's indulgence just one second.
(Whereupon a brief pause was had.)
Q. Every shot you ever fired at Kirby Phelps, he was facing you.
BY MR. DeLAUGHTER: Objection, Your Honor.
BY MR. CAMPBELL: (Interposing) Not being able to--
BY MR. DeLAUGHTER: (Continuing) No, I object to any question I deem proper and the Court can rule on it, Mr. Campbell.
BY THE COURT: The objection is overruled.
BY MR. DeLAUGHTER: I haven't even stated my grounds, Your Honor. You don't want to hear my grounds?
Q. And where did that happen?
Q. Okay. I know, but where?
BY MR. DeLAUGHTER: Your Honor, we object.
Q. When were you given or supposedly given this LSD?
The following excerpts occurred at the bench or while the jury was out of the courtroom.
BY MR. DeLAUGHTER: Your Honor.
* * * BY THE COURT [to the District Attorney]: But what I told them, I have never had this kind of testimony come in before. They could only offer him as an expert. They have left some [sic] authority on my desk that I haven't reviewed yet. You might want to call the Attorney General's Office and see if they can find some authority and, you know, as far as pro or con to the issue of him qualifying as an expert during the noon hour.
BY MR. DeLAUGHTER: Your Honor.
BY THE COURT: I know the answers because the answers are in West I. The reason he didn't go to--they were out of money, they were out of gas.
BY MR. DeLAUGHTER: Your Honor.
BY THE COURT: You have got all of the statements as to why they are needing somebody to rob. But, robbery goes into the principle [sic] aspect of it. Why do they want to get rid of the jeep they were in instead of just getting as money and going.
BY MR. DeLAUGHTER: Your Honor.
BY MR. DeLAUGHTER: Your Honor.
BY THE COURT: Now, wait just a minute. The defendants have brought in, they have had the fellow examined once in Georgia, before he went to trial. He has been examined here by the psychiatrist on three different times. Twice in the last week and they keep coming up with something is wrong with him. And, he has got to have, something was wrong with his mind, I want a course of conduct to the trial. They are wanting me to muffle, muzzle the district attorney from going into matters that you have the right on cross examination. But, you can't walk around closing. You have got to ask them in a way that it has some relations to the part of the trial that the jury is now passing on.
BY MR. DeLAUGHTER: Your Honor, for the record, we object.
BY MR. CAMPBELL: Wait, I have--
BY MR. DeLAUGHTER: (Interposing) We object to the extensive instructions from the Court to the district attorney as to how to proceed with his cross examination.
BY THE COURT: Well, I am explaining to him because if it comes floppy flop I have got to sustain your objections.
(R. 906, 917-18, 932, 479-80, 868-69, 953-54)
We have carefully examined the eight-volume record and find that there are thirty (30) instances where the trial judge improperly, or unnecessarily, interjected himself into the proceedings. Of those thirty instances, twenty are of the type which may be characterized as coaching the district attorney. 2 On nine occasions, the trial judge posed questions to witnesses where the district attorney's questions were ineffective. The questions by the trial judge generally served to strengthen the prosecution's case.
During closing argument for the prosecution, on two occasions, the appellant objected to portions of ...
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