Wilcher v. State

• Decision Date: 15 February 1984
• Docket Number: No. 54370,54370
• Citation: 448 So.2d 927
• Parties: Bobby Glen WILCHER v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 927

448 So.2d 927

Bobby Glen WILCHER v. STATE of Mississippi.

No. 54370.

Supreme Court of Mississippi.

Feb. 15, 1984.

As Modified on Denial of Rehearing

April 25,

1984.

Robert N. Brooks, James E. Smith, Jr., Carthage, for appellant.

Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, Dannye Hunter, Dist. Atty., Forest, for appellee.

EN BANC.

Part I, HAWKINS, Justice, for the Court:

GUILT PHASE

Bobby Glen Wilcher appeals from his conviction of the Capital Murder of Velma Odell Noblin and sentence of death. We affirm the guilt phase of the trial. We likewise affirm the sentencing phase.

The numerous issues raised on this appeal are discussed in order.

FACTS

Two Scott County ladies were brutally murdered on a dead-end rural road in a remote area of Scott County. They were requested by Wilcher to drive him to his parents home from a honky-tonk in Scott County and after he got into the car with them he persuaded them to drive to this area in the pretext of carrying him home.

On this appeal, the first point is:

CHANGE OF VENUE

The Defendant argues he was entitled to change of venue.

On May 11, 1982, a motion for a change of venue was filed, to which were attached nine (9) affidavits from residents of Scott County, each concluding with an opinion that the Defendant could not receive a fair trial in Scott County because of the notoriety, and that the murder victims were well-known, respected, and had many kinsmen in the county.

At a hearing on the motion, the state presented eleven (11) witnesses supporting the contention of the state that there had been no prejudgment of Defendant to the extent that a fair and impartial jury could not be impaneled. The circuit judge overruled the motion, but also stated he would review the question again when the special venire was examined.

On July 26, 1982, the Defendant filed another motion for a change of venue, again overruled. The circuit judge noted This Court has held the matter of granting the change of venue is within the sound discretion of the circuit judge, and there is no justification to reverse a circuit judge on such a ruling unless it "clearly appears" such discretion has been abused. Tubbs v. State, 402 So.2d 830 (Miss.1981); Myers v. State, 268 So.2d 353, p. 357 (1972); Gallego v. State, 222 Miss. 719, 77 So.2d 321 (1955); Shimniok v. State, 197 Miss. 179, 19 So.2d 760 (1944).

the prospective jurors "by and large" had formed no opinion on the guilt or innocence of the Defendant.

Upon the conflicting evidence of this case, we cannot state there was an abuse of discretion in overruling the motion.

AUTHORITY OF THE CIRCUIT COURT TO TRY THE CASE AT A SPECIAL

TERM

The Defendant was indicted at the regular March term of 1982 of the Circuit Court of Scott County. Following his arraignment the circuit judge announced to the attorneys that he anticipated calling a special term in the event the motion for a change of venue was overruled.

On July 1, 1982, the circuit judge entered an order calling for a special term of Circuit Court to convene July 26, 1982.

Upon appeal, the Defendant claims he was entitled to a "continuance" of his case until the next regular term in October, 1982. His argument, however, is premised upon the authority of the Circuit Court to try his case at the special term. The Circuit Court clearly had statutory authority to try this case at a special term. Miss.Code Ann. Sec. 9-1-1.

Defense counsel's citation of Gortney v. City of New Albany, 171 Miss. 896, 158 So. 921 (1935), is misplaced, where an entirely different question was presented to this Court.

In our modern day, with the added rules of criminal discovery, and complexity and difficulty of trial under present procedures, there will be many instances in rural counties when it will not only be desirable but indeed necessary for some cause to be tried at other times than a regular term of court.

AUTHORITY TO EXCUSE A JUROR OPPOSED TO THE DEATH PENALTY

One juror stated unequivocally he was opposed to the death penalty to the extent that it would prevent his making an impartial decision on the Defendant's guilt, that he would not even consider the court's instructions, and that under no circumstances would he vote for the death penalty.

The only authority the Defendant cites in support of his assignment the circuit judge erred in excusing this juror for cause is the United States Constitution, the Sixth and Fourteenth Amendments.

There is no merit in this assignment. See Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980); Witherspoon v. State, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); Armstrong v. State, 214 So.2d 589 (Miss.1968).

ADMISSIBILITY OF CONFESSIONS AND TANGIBLE EVIDENCE

BACKGROUND

Around 10:00 o'clock in the morning of Saturday, March 6, 1982, Bobby Easterling made an affidavit before Robert G. Wilkerson, a justice court judge of Scott County, charging that Bobby Wilcher did unlawfully "take and carry away 1--.38 cal. Colt with Guard over the Hammer". Judge Wilkerson then issued a warrant for the arrest of Wilcher on a charge of "Larceny", and delivered it to Mike Bennett, a deputy sheriff of that county. Bennett had other official duties at the time, and took the warrant to the sheriff's office, notifying the personnel there that "if anybody saw him, to pick him up". No one else executed the warrant, and later in the day Bennett upon inquiry learned the location of the Gene Wilcher home, and went there and arrested Wilcher around 3:00 p.m. En route to the jail, Wilcher asked Bennett Almost simultaneously to their arrival at the jail, two girls and a boy came into the sheriff's office and reported seeing two bodies. Bennett took Wilcher to a cell and went to the location of the bodies.

what "larceny was", and Bennett told him he did not know. When Wilcher was brought to jail, Bennett handed him a copy of the warrant.

It so happened in the early morning hours of that March 6, Bobby Wilcher was stopped for speeding by a police officer. He was driving a car belonging to one of the victims. The officer observed two (2) women's purses on the front seat and a black bra on the back seat. Wilcher told the officer that he was hurrying to the hospital for treatment of a cut finger and requested that the officer escort him. Wilcher was covered with blood. The officer followed but radioed another policeman to meet him at the hospital. Upon arrival at the emergency room at 2:00 a.m., Wilcher gave the officers a blood-covered knife. This knife was kept by the hospital security guard until turned over to police the evening of March 6. Wilcher's nicked thumb was treated with a band-aid and he was released. After receiving this information implicating Wilcher, Glen L. Warren, sheriff of that county, and Otis Kelly, a deputy, took Wilcher from the jail to the sheriff's office shortly after 7:00 p.m. that Saturday evening. Wilcher was given the conventional Miranda warnings, which were read to him on a form and signed by him at 7:19 p.m. Wilcher declined to make any statement at the time.

Wilcher requested to see his parents, and the officers took him to the Gene Wilcher home. They stood in another room while Wilcher talked with his parents a short while, and then returned with Wilcher to the sheriff's office.

Wilcher was then presented with another Miranda warning which was read to him, and signed by him at 9:14 p.m. He then gave a statement which was written by Sheriff Warren and signed by Wilcher. This statement admitted killing both the victims with a knife.

The sheriff wanted to question him further shortly after 10:00 p.m. that evening. Another Miranda warning was given and Wilcher signed another standard form at 10:22 p.m., but declined to make any further statement.

Wilcher was nineteen years of age, married with one child, and separated from his wife. He moved from Louisiana into the home of his parents in the latter part of February, 1982, and had been living there about a week and a half before March 5. The residence was under the control of the father, Gene Wilcher. No rent was charged Wilcher by his father, and he was provided a bedroom occupied only by himself. There was no lock on the bedroom door, however, and other than the fact that only Wilcher slept in the bedroom, there was nothing about the room setting it separate and apart from the Gene Wilcher household.

Gene Wilcher telephoned the sheriff's office on Monday, March 8, for permission to talk with his son. Otis Kelly answered the telephone and while they were waiting for a response to this request, a conversation was had between Kelly and Gene Wilcher. In that conversation it developed that in the house there was some tangible property of importance to the law enforcement officers. ¹

Upon the invitation of Gene Wilcher, Kelly and Albert Harkey, a constable of that county, went to the Gene Wilcher home. Gene Wilcher escorted them to the bedroom, pointed to a styrofoam container on The officers took the container, and in it were a watch, two rings and a necklace belonging to the murdered victim Velma Odell Noblin.

the top of a chest-of-drawers, and said, "It's in here."

After retrieving this jewelry, Warren and Kelly again attempted to talk with Wilcher that evening in the sheriff's office. At 8:54 p.m. Wilcher was again read the standard Miranda form, which he signed, but he declined to give any further statement to the officers.

On Thursday following, March 11, Warren and Kelly questioned Wilcher again, and again he was given a standard Miranda form beforehand. Upon this occasion, however, the sheriff did not read the form aloud to Wilcher, but Wilcher read it himself and signed it. Following this, he accompanied the officers, and at Wilcher's direction, they drove several miles out into rural Scott County onto a county unpaved road. At a certain point Wilcher pointed to a certain location in a ditch, and the sheriff got out and...