Wilcher v. State

• Court: Mississippi Supreme Court
• Writing for the Court: PRATHER, Presiding Justice, for the Court
• Citation: Wilcher v. State, 697 So. 2d 1123 (Miss. 1997)
• Decision Date: 13 March 1997
• Docket Number: No. 94-DP-00761-SCT.,94-DP-00761-SCT.
• Parties: Bobby Glenn WILCHER v. STATE of Mississippi.

697 So.2d 1123

Bobby Glenn WILCHER v. STATE of Mississippi.

No. 94-DP-00761-SCT.

Supreme Court of Mississippi.

March 13, 1997.

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

Michael C. Moore, Attorney General, Marvin L. White, Jr., Leslie S. Lee, Jeffrey A. Klingfuss, Sp. Asst. Attorneys General, Jackson; Ken Turner, District Attorney, Philadelphia, for Appellee.

En Banc.

PRATHER, Presiding Justice, for the Court:

INTRODUCTION

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 Katie Belle Moore, age forty-five. 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 the women 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 some of the victims' clothing 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; this 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 Katie Belle Moore, which was held in Harrison County in July, 1994, upon Wilcher's motion for change of venue. A jury, once again, sentenced Wilcher to death for Moore'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 THE ADMISSION OF WILCHER'S STATEMENTS TO SHERIFF WARREN?

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

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

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

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

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

B. The Testimony of Wilcher's Family Members.

VI. WHETHER THE TRIAL COURT ERRED BY DENYING WILCHER'S MOTION TO CONSOLIDATE?

VII. WHETHER THE TRIAL COURT ERRED BY SENTENCING WILCHER BASED ON THE SAME CONDUCT USED TO CONDEMN HIM IN THE COMPANION CASE?

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

IX. 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?

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

A. The "Heinous, Atrocious, and Cruel" Comments.

B. The "Send a Message" 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:

XI. WHETHER THE DEATH SENTENCED 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 THE ADMISSION OF WILCHER'S STATEMENTS TO SHERIFF WARREN?

Wilcher gave two incriminating statements to the authorities. He now contends that they were inadmissible because they were taken in violation of his Sixth Amendment right to counsel. The standard of review for such claims is well-settled. "Determining whether a confession is admissible is a finding of fact which is not disturbed unless the trial judge applied an incorrect legal standard, committed manifest error, or the decision was contrary to the overwhelming weight of the evidence." Balfour v. State, 598 So.2d 731, 742 (Miss. 1992).

The record reflects that Sheriff Glen Warren served Wilcher with an arrest warrant the evening after the murders. Sheriff Warren and a deputy questioned Wilcher that night in the sheriff's office. Wilcher confessed to killing the women, taking the car, and later abandoning the car. Two days later, Wilcher's father led the authorities to the victims' jewelry, which was hidden in Wilcher's bedroom. Wilcher was questioned again, but he declined to give a statement at that time.

Three days later, Wilcher requested to meet with the sheriff. Wilcher then told the officers that he was ready to show them the location of the victims' purses and one victim's brassiere. The three men drove to the Good Hope community. Wilcher then led the officers to a ditch, where they found the purses and the brassiere.

On the trip back to Forest, Wilcher told the officers that he was going to tell them the truth about the murders, that the first statement he gave was not "all true." Upon returning to the sheriff's office, Wilcher made a second statement in which he confessed to robbing and killing the victims. Basically, Wilcher said that he killed Moore and Noblin because they would not give him their money. This statement was given at the same time or shortly after the trial court appointed Wilcher's attorney.

The record reflects that Wilcher had been advised of his rights and waived his rights on all occasions in which the authorities questioned him. The testimony also indicates that Wilcher did not ask for an attorney. This Court determined Wilcher's statements to be admissible when this case was considered on direct appeal in 1984. See Wilcher I, 448 So.2d at 933-34. The admissibility of Wilcher's incriminating statements is res adjudicata. See Jordan v. State, 518 So.2d 1186, 1189 (Miss. 1987).

However, Wilcher argued to the trial court that the 1986 United States Supreme Court decision in Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631, rendered the statements inadmissible at the 1994 resentencing hearing. The trial court overruled Wilcher's motion to suppress.

On appeal, Wilcher contends that (pursuant to the decision in Michigan v. Jackson) his Sixth Amendment right to counsel was violated when the authorities obtained a statement from him after counsel had been appointed for him. In Michigan v. Jackson, the United States Supreme Court held that "once the Sixth Amendment right to counsel has attached and has been invoked, any subsequent waiver during a police-initiated custodial interview is ineffective." McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 2207, 115 L.Ed.2d 158 (1991) (emphasis added).

Indeed, in 1992, the federal court thoroughly considered the application of Michigan v. Jackson to Wilcher's case and found that the trial judge properly admitted the inculpatory statements. See Wilcher IV, 978 F.2d 872 (5th Cir.1992), cert. denied, Wilcher v. Hargett, 510 U.S. 829, 114 S.Ct. 96, 126 L.Ed.2d 63 (1993). The Fifth Circuit's application of the law to the facts in this case is persuasive. That court held:

A defendant's Sixth Amendment right to counsel attaches upon the initiation of adversary proceedings. Michigan v. Jackson, 475 U.S. 625,

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