Wilcher v. State, 94-DP-00760-SCT

Decision Date13 March 1997
Docket NumberNo. 94-DP-00760-SCT,94-DP-00760-SCT
Citation697 So.2d 1087
PartiesBobby Glen WILCHER a/k/a Bobby Glenn Wilcher v. STATE of Mississippi.
CourtMississippi Supreme Court

William T. May, Logan & May, Newton, for appellant.

Michael C. Moore, Attorney General, Marvin L. White, Jr., Leslie S. Lee and Jeffrey A.Klingfuss, Sp. Asst. Attys. Gen., Jackson, Ken Turner, District Attorney, Philadelphia, for appellee.

En Banc.

INTRODUCTION

PRATHER, Presiding Justice, for the Court:

This capital murder case is presently before this Court on direct appeal from a 1994 resentencing trial that resulted in Bobby Glenn Wilcher's second death sentence for the 1982 murder and robbery of Velma Odell Noblin, a fifty-two-year-old mother of six children.

The case arises out of the gruesome double murder and robbery of Velma Odell Noblin and Katie Belle Moore. The evidence reflects that Bobby Glenn Wilcher, age nineteen, met his two female victims at a Scott County bar on the night of March 5, 1982. When the bar closed at midnight, Wilcher persuaded the women to take him home. Under this pretext, he directed them down a deserted service road in the Bienville National Forest--where he robbed and brutally murdered the women by stabbing them a total of forty-six times.

Thereafter, Wilcher was stopped for speeding by the Forest Police Department between 1:00 and 2:00 a.m. He was alone and was driving victim Noblin's car. The victims' purses and one victim's brassiere were on the back seat. Wilcher was covered in blood; he had a bloody knife in his back pocket that had flesh on the blade. Wilcher explained his condition by telling the policeman that he had cut his thumb while skinning a possum. The officer followed Wilcher to the hospital, where Wilcher's wound was cleaned and covered with a band-aid. Another officer was called to the hospital to observe Wilcher, the knife, the car, the purses, and the brassiere.

The officers left the hospital on an emergency call. Wilcher went home. The next morning, he abandoned Noblin's car at an apartment complex. Wilcher also threw the victims' purses and the brassiere in a ditch. He was arrested later that day. The victims' jewelry was subsequently found in Wilcher's bedroom.

STATEMENT OF THE CASE

Wilcher was indicted March 11, 1982, in the Scott County Circuit Court for the capital murders of Velma Odell Noblin and Katie Belle Moore. He was tried separately for each murder, and was convicted and sentenced to death in both cases. In 1984, this Court affirmed both judgments of conviction for capital murder and both sentences of death. See Wilcher v. State, 448 So.2d 927 (Miss.1984) (as to capital murder of Noblin) (hereinafter Wilcher I ), cert denied, Wilcher v. Mississippi, 469 U.S. 873, 105 S.Ct. 231, 83 L.Ed.2d 160 (1984); Wilcher v. State, 455 So.2d 727 (Miss.1984) (as to capital murder of Moore) (hereinafter Wilcher II ).

Wilcher's subsequent motions for post-conviction relief in these cases were denied. Wilcher v. State, 479 So.2d 710 (Miss.1985) (hereinafter Wilcher III ). Thereafter, Wilcher filed for a writ of habeas corpus from the federal district court; his petition was denied. On appeal, the Fifth Circuit held that the death sentences were improper, because the juries were erroneously given an impermissibly vague "especially heinous, atrocious, or cruel" instruction--which instruction had previously been found unconstitutional in Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990). Wilcher v. Hargett, 978 F.2d 872 (5th Cir.1992) (hereinafter Wilcher IV ), cert. denied, Wilcher v. Hargett, 510 U.S. 829, 114 S.Ct. 96, 126 L.Ed.2d 63 (1993). The cases were remanded to this Court for reconsideration.

In October, 1993, this Court vacated the death sentences in the cases of both victims and remanded the cases to the Scott County Circuit Court for new sentencing hearings. See Wilcher v. State, 635 So.2d 789 (Miss.1993) (hereinafter Wilcher V ). The appeal sub judice arises from Wilcher's resentencing trial for the capital murder of Velma Odell Noblin, which was held in Rankin County in June, 1994, upon Wilcher's motion for change of venue. A jury, once again, sentenced Wilcher to death for Noblin's murder. Wilcher's motion for a new trial, or alternatively, for judgment notwithstanding the verdict (JNOV) was denied. Wilcher appeals, in forma pauperis, and raises the following issues for consideration by this Court:

I. WHETHER THE TRIAL COURT ERRED IN REFUSING TO MAKE A PRETRIAL RULING ON THE ADMISSIBILITY OF WILCHER'S ALLEGED PRIOR BAD ACTS?

II. WHETHER THE TRIAL COURT ERRED IN THE ADMISSION OF WILCHER'S STATEMENTS TO SHERIFF WARREN?

III. WHETHER THE STATEMENT ALLEGEDLY MADE BY WILCHER TO A JOURNALIST SHOULD HAVE BEEN SUPPRESSED?

IV. WHETHER THE MENTION OF PAROLE DURING VOIR DIRE SHOULD HAVE REQUIRED AN IMMEDIATE MISTRIAL?

V. WHETHER THE TRIAL COURT ERRED IN FAILING TO STRIKE FOR CAUSE PROPOSED JURORS WHO STATED THAT THEY COULD NOT CONSIDER MITIGATING EVIDENCE?

VI. WHETHER THE TRIAL COURT ERRED IN ADMITTING PSYCHOLOGICAL EXPERT TESTIMONY?

VII. WHETHER THE JURY'S SENTENCING DETERMINATIONS WERE CONTAMINATED BY KNOWLEDGE THAT WILCHER HAD PREVIOUSLY BEEN SENTENCED TO DEATH?

VIII. WHETHER THE TRIAL COURT ERRED BY REFUSING TO ALLOW CROSS-EXAMINATION OF SHERIFF WARREN ON HIS EXTORTION CONVICTION?

IX. WHETHER THE TRIAL COURT ERRED IN EXCLUDING MITIGATING EVIDENCE?

A. The Evidence on the Harshness of a Life Sentence.

B. The Testimony of Wilcher's Family Members.

X. WHETHER THE TRIAL COURT ERRED BY INSTRUCTING THE JURY THAT IT COULD CONSIDER WILCHER'S CONVICTION FOR THE MURDER OF THE SECOND VICTIM AS AN AGGRAVATING CIRCUMSTANCE?

XI. WHETHER THE TRIAL COURT ERRED BY REQUIRING THAT JURORS MAKE A UNANIMOUS DECISION?

XII. WHETHER THE TRIAL COURT ERRED BY SUBMITTING THE UNDERLYING FELONIES AS AGGRAVATING CIRCUMSTANCES AND SUBMITTING THE "ROBBERY" AND "KIDNAPPING" CHARGES AS TWO SEPARATE AGGRAVATING FACTORS?

A. Failure to Require a Finding of Both Underlying Felonies.

B. The Use of the Underlying Felony as an Aggravator.

C. The Underlying Felony Aggravator and Proportionality.

XIII. WHETHER THE TRIAL COURT ERRED IN SUBMITTING THE "ESPECIALLY HEINOUS, ATROCIOUS OR CRUEL" AGGRAVATING CIRCUMSTANCE?

XIV. WHETHER THE PROSECUTORS' CLOSING ARGUMENT CONSTITUTED REVERSIBLE ERROR?

A. The "Who is the State" Comments.

B. The "Send a Message" Comment.

C. The "Mad Dog" Comment.

This Court finds that the legal issues raised by Wilcher are without merit. For this reason, this Court must also make a determination on the following issue:

XV. WHETHER THE DEATH SENTENCE IMPOSED IN THIS CASE WAS PROPORTIONATE?

Having considered the crime and the defendant, this Court holds that the death sentence imposed in this case was neither disproportionate nor excessive. The judgment of the trial court sentencing Wilcher to death is affirmed.

ANALYSIS
I. WHETHER THE TRIAL COURT ERRED IN REFUSING TO MAKE A PRETRIAL RULING ON THE ADMISSIBILITY OF WILCHER'S ALLEGED PRIOR BAD ACTS?

Wilcher first argues that trial court erred by refusing to rule in limine on the admissibility of certain evidence of "prior bad acts," thereby impairing his exercise of his right to testify. The evidence at issue consisted of statements made by Wilcher to journalist Sid Salter and prison records of Wilcher's bad behavior in the penitentiary. This Court finds that Wilcher is procedurally barred from raising this issue because he failed to proffer his testimony. Furthermore, even if this Court were to consider the merits of Wilcher's argument, the trial court did not abuse its discretion by denying Wilcher's motion.

In support of his contention, Wilcher cites Settles v. State, 584 So.2d 1260, 1264 (Miss.1991). The defendant in Settles had previously been convicted of other crimes. Settles sought and was denied a ruling that those prior convictions could not be introduced for impeachment purposes. Based on that ruling, Settles claimed that he did not take the stand to testify in his own defense. Settles, 584 So.2d at 1262. This Court reiterated its ruling in McInnis v. State, 527 So.2d 84, 87 (Miss.1988) that "the grant or denial of a hearing to determine in advance the admissibility of a prior criminal conviction for impeachment purposes is discretionary." Settles, 584 So.2d at 1265. Nonetheless, the court also admonished

the bench and bar that there are sound reasons that dictate a serious consideration of applications for preliminary rulings. We strongly encourage that such rulings be made and that the trial courts defer ruling only in those rare circumstances In the instant case, there was an abuse of discretion. The trial court refused to consider the prior convictions in summary fashion stating only that it was not fair that the prosecutor be compelled to disclose whether he intended to use prior convictions. Settles, of course, was seeking no such disclosure. He sought only a determination whether the law as applied to the facts in his case would permit the use of certain facets of or all of his criminal history. The least to which he was entitled was exclusion of those convictions which are not permitted for impeachment under our rules.

where the delay is absolutely necessary to a fair presentation of the issue.

Id.

Settles can be distinguished from the case at hand. Settles, as do most of the cases on this issue, involved a prior conviction being offered for impeachment purposes. See also Hansen v. State, 592 So.2d 114, 130-31 (Miss.1991). Wilcher involves prior bad acts, for which he was not convicted. M.R.E. 404(b) provides that:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

However, when those "other crimes, wrongs, or acts"...

To continue reading

Request your trial
131 cases
  • Stevens v. State, No. 2000-DP-00507-SCT.
    • United States
    • Mississippi Supreme Court
    • September 13, 2001
    ...708 So.2d 18 (Miss. 1998). Holland v. State, 705 So.2d 307 (Miss. 1997). Wells v. State, 698 So.2d 497 (Miss.1997). Wilcher v. State, 697 So.2d 1087 (Miss. 1997). Wiley v. State, 691 So.2d 959 (Miss.1997). Brown v. State, 690 So.2d 276 (Miss.1996). Simon v. State, 688 So.2d 791 (Miss.1997).......
  • Bennett v. State, No. 2003-DP-00765-SCT.
    • United States
    • Mississippi Supreme Court
    • May 11, 2006
    ...708 So.2d 18 (Miss. 1998). Holland v. State, 705 So.2d 307 (Miss. 1997). Wells v. State, 698 So.2d 497 (Miss.1997). Wilcher v. State, 697 So.2d 1087 (Miss. 1997). Wiley v. State, 691 So.2d 959 (Miss. 1997). Brown v. State, 690 So.2d 276 (Miss. 1996). Simon v. State, 688 So.2d 791 (Miss. 199......
  • Brawner v. State, No. 2002-DP-00615-SCT.
    • United States
    • Mississippi Supreme Court
    • April 29, 2004
    ...708 So.2d 18 (Miss. 1998). Holland v. State, 705 So.2d 307 (Miss. 1997). Wells v. State, 698 So.2d 497 (Miss.1997). Wilcher v. State, 697 So.2d 1087 (Miss. 1997). Wiley v. State, 691 So.2d 959 (Miss. 1997). Brown v. State, 690 So.2d 276 (Miss. 1996). Simon v. State, 688 So.2d 791 (Miss. 199......
  • Walker v. State
    • United States
    • Mississippi Supreme Court
    • March 31, 2005
    ...State, 708 So.2d 18 (Miss.1998). Holland v. State, 705 So.2d 307 (Miss.1997). Wells v. State, 698 So.2d 497 (Miss.1997). Wilcher v. State, 697 So.2d 1087 (Miss.1997). Wiley v. State, 691 So.2d 959 (Miss.1997). Brown v. State, 690 So.2d 276 (Miss.1996). Simon v. State, 688 So.2d 791 (Miss.19......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT