West v. State

• Decision Date: 25 June 1998
• Docket Number: No. 94-DP-01200-SCT,94-DP-01200-SCT
• Citation: 725 So.2d 872
• Parties: Tracy Lee WEST v. STATE of Mississippi.
• Court: Mississippi Supreme Court

725 So.2d 872

Tracy Lee WEST v. STATE of Mississippi.

No. 94-DP-01200-SCT

Supreme Court of Mississippi.

June 25, 1998.

Rehearing Denied September 24, 1998.

James L. Davis, III, Donald Smith, Gulfport, John Holdridge, New Orleans, LA, for Appellant.

Office of the Attorney General by Leslie Staehle Lee, for Appellee.

EN BANC.

BANKS, Justice, FOR THE COURT:

¶ 1. Tracy Lee West was convicted of capital murder and sentenced to death in August, 1994. Although we find no merit in any of the issues raised with regard to his conviction, we reverse his death sentence because his jury was not instructed that it could sentence him to life without parole.

I.

¶ 2. On December 15 or 16, 1992, Tracy West left Pulaski, Tennessee on a road trip along with two of his friends, Paul Rathe and Scott Cothren. West did not know where they were going, and did not bring along any extra clothes because he did not realize that they would be gone for awhile. They were riding in a car that Rathe had stolen from a truck driver who lived in Pulaski. They traveled to Alabama, where they robbed a convenience store and Cothren thereafter murdered the store clerk. On December 16, they then drove to Gulfport, Mississippi, where Cothren threatened to shoot Rathe and West if they did not rob another convenience store and kill the clerk. Rathe and West entered and robbed the cash drawer of the store. West then shot the clerk, Azra Garriga Kiker, and she died immediately.

¶ 3. Cothren, Rathe and West then proceeded to New Iberia, Louisiana, where they stopped to stay at the home of Mrs. Babineaux, who was the aunt of a friend of theirs. On December 20, Rathe and West were arrested in connection with a report that the car in which they were riding was stolen. Pursuant to these arrests, the law enforcement officers searched the Babineaux home and recovered a pistol that was later determined to be the weapon that killed Ms. Kiker. Cothren was arrested soon thereafter.

¶ 4. Cothren, Rathe and West were indicted for Ms. Kiker's murder on March 23, 1993. The prosecution elected to try West first, and his trial began in Gulfport on August 8, 1994. At trial, the evidence showed that West, at the urging of Cothren, had entered a convenience store, robbed the cash drawer, ordered Ms. Kiker to lie down on the floor, and then shot her in the back of the head after she asked him not to kill her. The gun misfired the first time, but West shot her twice. The next day, the jury found West guilty of capital murder. After the sentencing phase, the jury returned a sentence of death, finding the following three aggravating circumstances: (1) the offense was committed during the commission of an armed robbery; (2) the offense was committed for the purpose of avoiding a lawful arrest; and (3) the offense was especially heinous, atrocious or cruel.

¶ 5. West filed a Motion for Judgment Notwithstanding the Verdict, or in the Alternative, for a New Trial, on August 23. This motion along with its supplement raised a total of 44 assignments of error. The Motion was denied on November 21, 1994, and West's execution was set for December 16, 1994. West then appealed to this Court. We will address in this opinion only those matters that affect our disposition or are likely to recur on retrial.

¶ 6. We first consider the propriety of West's death sentence, and next, the propriety of his conviction.

II.

A. SENTENCING PHASE ISSUES

i.

¶ 7. West first argues that the trial court committed reversible error in refusing his repeated requests to apply the amendments to Miss.Code Ann. §§ 97-3-21 and XX-XX-XXX, and to instruct the sentencing jury that it could sentence him to life imprisonment without parole. Prior to the amendments, defendants who were convicted of capital murder could only be sentenced to either death or life with the possibility of parole. Section 97-3-21 was amended just prior to West's trial, and provided that "Every person who shall be convicted of capital murder shall be sentenced (a) to death; (b) to imprisonment for life in the State Penitentiary without parole; or (c) to imprisonment for life in the State Penitentiary with eligibility for parole as provided in Section 47-7-3(1)(f)." The amending act also provides that "[t]he provisions of this act shall apply to any case in which pre-trial, trial or resentencing proceedings take place after July 1, 1994." 1994 Miss. Laws, Ch. 566 § 5.

¶ 8. As noted above, West's trial commenced on August 8, 1994. Thus, he repeatedly requested that the court apply these amendments to his case, and accordingly instruct the jury that they could consider both death and life without parole: in a pretrial motion, in several suggested jury instructions which were refused by the court, and on the record in several discussions with the judge directly. At one point, the court asked West directly whether he wanted to be tried and sentenced under the new statute, to which he responded affirmatively.

¶ 9. The trial court denied West's requests in a bench ruling in which he stated that he would not instruct the jury to consider all three sentencing options because West had been indicted, arraigned, and had his trial set before these amendments were enacted. He believed that he was acting within his discretion in denying West the benefit of the amendments. Thus, West was sentenced under the prior scheme, the options being either death or life with the possibility of parole.

¶ 10. West repeated his request that the jury be instructed about the possibility of life without parole during its deliberations when it sent a note to the court which asked "Does a life sentence allowed (sic) for parole when rendered by the jury or the state?" In response, the judge wrote: "You have received all the instructions I am allowed to give." Finally, West raised the error in his Motion Notwithstanding the Verdict.

¶ 11. In this appeal, West argues that this ruling was reversible error for several reasons. First, he cites the unambiguous language of the Act which amended §§ 97-3-21 and XX-XX-XXX, which states that these amendments were to apply to any case in which pre-trial, trial, or resentencing proceedings would occur after July 1, 1994. He further argues that statutory amendments are to be applied retroactively where their language indicates that the legislature intended them to apply retroactively. In support of this, West cites two civil cases, Mladinich v. Kohn, 186 So.2d 481, 483 (Miss. 1966) and City of Clarksdale v. Mississippi Power and Light Company, 556 So.2d 1056, 1058 (Miss.1990).

¶ 12. West next argues that since West stated that he viewed the amendments as favorable to him, he was entitled to have them applied to his case. He cites State ex rel. Pittman v. Ladner, 512 So.2d 1271, 1276 (Miss.1987), and Miss.Code Ann. § 99-19-33. He also argues that the Eighth Amendment required the trial court to give West the benefit of the amendments since his was a capital case, and that any ambiguity about whether the statutes applied had to be resolved in favor of West, since he was a criminal defendant.

¶ 13. Finally, West argues that since other capital defendants who were similarly situated were allowed to receive the benefit of the amendments, the trial court's failure to do so in this case violated the Eighth Amendment's prohibition of arbitrary and capricious sentencing in capital cases.

¶ 14. This Court has repeatedly held that unless there is sufficient language to the contrary, the words of a statute are to be interpreted according to their usual and most common sense meaning, and that statutes will be given a practical application consistent with their wording, unless the application is inconsistent with the obvious intent of the legislature. Marx v. Broom, 632 So.2d 1315, 1318 (Miss.1994); State v. Lee, 196 Miss. 311, 17 So.2d 277 (1944). Where the language is plain, this Court will interpret a statute as written. Mississippi State Dep't. of Human Servs. v. Forrest County Youth Court, 663 So.2d 580, 581 (1995).

¶ 15. In this case, the plain meaning of the language in § 97-3-21 indicates that the legislature intended any defendant whose pretrial, trial, or sentencing proceedings commenced after July 1, 1994 to have his sentencing juries instructed on the sentencing options of life, life without parole, or death. Contrary to the State's suggestion, there is no rational reason to conclude that the legislature, notwithstanding the clarity of this language, intended it to apply only to those defendants who had been charged after July 1, 1994, as were the amendments to § 47-7-3, which were enacted at the same time. Indeed, it is precisely because the statutes were amended together that it makes more sense to conclude that the distinction included was intended. Section 97-3-21 expressly provides capital defendants whose pretrial, trial or resentencing proceedings occur after July 1, 1994 with the possibility of a sentence of life with eligibility for parole as provided in § 47-7-3(1)(f); Section 47-7-3(1)(f) expressly eliminates that possibility of parole for any capital defendant who is "charged, tried, convicted, and sentenced to life imprisonment" after July 1, 1994 (emphasis added). When read in pari materia, the two statutes provide juries with the option of sentencing capital defendants to life without parole as long as any proceeding, from pretrial through resentencing, that follows the actual charge occurs after July 1, 1994. Simultaneously, the two statutes preclude the parole board from granting parole to any capital defendant who was charged after July 1, 1994.

¶ 16. We hold that these two statutes are not in conflict, and present no ambiguity about whether the legislature intended the amendment to § 97-3-21 to apply to capital defendants whose charge predated July 1, 1994. Absent any ambiguity, this Court will of course interpret the statutes to mean what they plainly say. Contrary to the State's first argument,...