Wilcher v. State, 1998-DR-01821-SCT.

• Court: United States State Supreme Court of Mississippi
• Citation: 863 So.2d 719
• Docket Number: No. 1998-DR-01821-SCT.,1998-DR-01821-SCT.
• Parties: Bobby Glen WILCHER a/k/a Bobby Glenn Wilcher v. STATE of Mississippi.
• Decision Date: 02 October 2003

863 So.2d 719

Bobby Glen WILCHER a/k/a Bobby Glenn Wilcher
v.
STATE of Mississippi

No. 1998-DR-01821-SCT.

Supreme Court of Mississippi.

October 2, 2003.

Rehearing Denied January 29, 2004.

863 So.2d 725

Robert M. Ryan, Jackson, Louwlynn Williams, and William Clayton, Batesville, attorneys for appellant

Office of the Attorney General by Marvin L. White, Jr., Charlene R. Pierce, Jo Anne McLeod, Jerrolyn M. Owens, attorneys for appellee.

EN BANC.

EASLEY, Justice, for the Court.

STATEMENT OF THE CASE

s 1. On March 11, 1982, Bobby Glen Wilcher (Wilcher) was indicted in the Circuit Court of Scott County, Mississippi, for the capital murders of Velma Odell Noblin (Noblin) and Katie Belle Moore (Moore). The indictment charged that Wilcher murdered these two women while attempting to rob Noblin and while he was engaged in the kidnaping of both women. Although these murders arose from a single incident, Wilcher was tried separately for these murders in Scott County in 1982. Circuit Court Judge Marcus D. Gordon was the trial judge in both cases. Wilcher was found guilty and sentenced to death pursuant to jury verdict in both cases in 1982.

s 2. This Court affirmed both capital murder convictions and sentences of death. Wilcher v. State, 448 So.2d 927 (Miss. 1984)¹ and Wilcher v. State, 455 So.2d 727 (Miss.1984)². The U.S. Supreme Court denied certiorari on October 1, 1984. Wilcher v. Mississippi, 469 U.S. 873, 105 S.Ct. 231, 83 L.Ed.2d 160 (1984). Wilcher's subsequent motions for post-conviction relief in these consolidated cases were denied on initial review. Wilcher v. State, 479 So.2d 710 (Miss.1985). The U.S. Supreme Court denied certiorari on March 31, 1986. Wilcher v. Mississippi, 475 U.S. 1098, 106 S.Ct. 1501, 89 L.Ed.2d 901 (1986).

s 3. Wilcher then filed two separate petitions for writ of habeas corpus in the U.S. District Court for the Southern District of Mississippi. Wilcher v. Cabana, No. J86-0313 and Wilcher v. Cabana, No. J86-0311 (S.D.Miss.). The district court consolidated the petitions on November 26,1986, and denied habeas relief on June 19, 1990. Wilcher filed a notice of appeal and an application for certificate of probable cause, and the certificate was granted on September 24, 1990.

s 4. The U.S. Court of Appeals for the Fifth Circuit held that the sentences should be vacated unless this Court reviewed the sentences under Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), because the use of the undefined "especially heinous" aggravating factor during the sentencing phases. The Fifth Circuit denied relief on all other claims raised by Wilcher. Wilcher v. Hargett, 978 F.2d 872 (5th Cir.), rehearing en banc denied, 981 F.2d 1254 (5th Cir.1992). Wilcher filed a petition for writ of certiorari with the U.S. Supreme Court challenging the Fifth Circuit's affirmance of the

863 So.2d 726

district court and the petition was denied on October 4, 1993. Wilcher v. Hargett, 510 U.S. 829, 114 S.Ct. 96, 126 L.Ed.2d 63 (1993)

s 5. This Court vacated both of Wilcher's death sentences and remanded for new sentencing proceedings. Wilcher v. State, 635 So.2d 789 (Miss.1993). Wilcher was sentenced to death on June 23, 1994, in Rankin County, after a change of venue, for the capital murder of Noblin. Wilcher was also sentenced to death on July 21, 1994, in Harrison County, after a change of venue, for the capital murder of Moore. Circuit Court Judge Gordon presided over both sentencing trials. Both sentences were affirmed by this Court on appeal. Wilcher v. State, 697 So.2d 1087 (Miss. 1997) (Wilcher I)³; and Wilcher v. State, 697 So.2d 1123 (Miss.1997) (Wilcher II)⁴ respectively. The U.S. Supreme Court denied certiorari on January 12, 1998. Wilcher v. Mississippi, 522 U.S. 1053, 118 S.Ct. 705, 139 L.Ed.2d 647, and rehearing, 522 U.S. 1154, 118 S.Ct. 1181, 140 L.Ed.2d 188 (1998).

s 6. Pursuant to the Mississippi Uniform Post-Conviction Collateral Relief Act, Miss.Code Ann. §§ 99-39-1 to -29 (Rev. 2000 & Supp.2003), Wilcher now files his post-conviction application for leave of this Court to proceed in the trial court regarding his capital murder conviction and death sentence for the murder of Moore. We deny the application.

FACTS

s 7. This Court's opinion on Wilcher's appeal contains the following facts:

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 Forestâ 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'

863 So.2d 727

jewelry was subsequently found in Wilcher's bedroom.

Wilcher II, 697 So.2d at 1126.

ISSUES

A. WHETHER WILCHER'S CONSTITUTIONAL RIGHTS TO CONFRONT A KEY WITNESS AND HIS RIGHT TO A FAIR AND IMPARTIAL HEARING AND DUE PROCESS UNDER THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS AND UNDER THE MISSISSIPPI CONSTITUTION WERE VIOLATED BY THE TRIAL COURT'S REFUSAL TO ALLOW CROSS-EXAMINATION OF SHERIFF WARREN ON HIS CONVICTION FOR EXTORTION.

B. WHETHER WILCHER WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL IN THE RESENTENCING TRIAL IN VIOLATION OF HIS RIGHT TO COMPETENT COUNSEL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS OF THE CONSTITUTION AND LAWS OF THE STATE OF MISSISSIPPI, AND HIS RIGHT TO HAVE EVIDENCE PRESENTED TO THE JURY UNDER THE EIGHTH AND FOURTEENTH AMENDMENTS.

C. WHETHER THE STATE'S INVOCATION OF HIGHER BIBLICAL LAW VIOLATES WILCHER'S RIGHTS UNDER THE EIGHTH AND FOURTEENTH AMENDMENTS, AND UNDER ARTICLE 3, SECTION 14 OF THE MISSISSIPPI CONSTITUTION AND DEFENSE COUNSEL WERE INEFFECTIVE FOR FAILING TO RAISE THIS ISSUE AT TRIAL.

D. WHETHER THE TRIAL COURT IMPROPERLY EXCUSED POTENTIAL JURORS IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS AND DEFENSE COUNSEL WERE INEFFECTIVE FOR FAILING TO RAISE THIS AT TRIAL AND ON DIRECT APPEAL.

E. WHETHER WILCHER WAS DEPRIVED OF HIS RIGHT TO A FAIR AND IMPARTIAL JURY UNDER THE SIXTH AND FOURTEENTH AMENDMENTS, AND UNDER ARTICLE 3, SECTIONS 14 AND 26 OF THE MISSISSIPPI CONSTITUTION BY JURORS' FAILURE TO REVEAL AUTOMATIC DEATH PENALTY TENDENCIES; DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE STATE'S UNCONSTITUTIONAL ARGUMENT.

F. WHETHER WILCHER'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO BE TRIED BY A FAIR AND IMPARTIAL JURY WERE VIOLATED BY THE JURY'S RELIANCE ON MATTERS NOT PRESENTED IN EVIDENCE.

G. WHETHER PROSECUTION'S USE OF SENTENCING INSTRUCTIONS S-1, S-2, AND S-4 WAS UNCONSTITUTIONAL AND DEFENSE COUNSEL WERE INEFFECTIVE FOR FAILING TO RAISE THIS AT TRIAL AND ON DIRECT APPEAL.

863 So.2d 728

H. WHETHER WILCHER'S FIFTH, EIGHTH AND/OR FOURTEENTH AMENDMENT RIGHTS HAVE BEEN VIOLATED BY THE LENGTH OF TIME ON MISSISSIPPI'S DEATH ROW AND THE MANY EXECUTION DATES THAT HAVE BEEN SET

I. WHETHER THE ACCUMULATION OF ERROR IN THIS CASE REQUIRES THAT THE DEATH SENTENCE BE SET ASIDE.

ANALYSIS

A. WHETHER WILCHER'S CONSTITUTIONAL RIGHTS TO CONFRONT A KEY WITNESS AND HIS RIGHT TO A FAIR AND IMPARTIAL HEARING AND DUE PROCESS UNDER THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS AND UNDER THE MISSISSIPPI CONSTITUTION WERE VIOLATED BY THE TRIAL COURT'S REFUSAL TO ALLOW CROSS-EXAMINATION OF SHERIFF WARREN ON HIS CONVICTION FOR EXTORTION.

s 8. Sheriff Glenn Warren took Wilcher's statements during the investigation of these crimes and testified in 1982 during the guilt phase. In a statement to Sheriff Warren, as Warren testified, Wilcher confessed to the murders of Moore and Noblin and to the robbery of Noblin. In 1989, Sheriff Warren was convicted of extortion in violation of the federal Hobbs Act. Shortly after this conviction and before Wilcher's resentencing trial, Sheriff Warren died. At Wilcher's resentencing in 1994, the trial judge allowed Sheriff Warren's 1982 testimony to be read into evidence, but he would not allow the defense to introduce evidence of the sheriff's 1989 extortion conviction for the purpose of impeachment. The trial court's decision was based on Sheriff Warren's guilty plea being entered in 1989, seven years after giving testimony against Wilcher in 1982. Wilcher asserts that the trial court violated his rights under the Sixth and Fourteenth Amendments of the U.S. Constitution and Article 3, Section 26, of the Mississippi Constitution and abused its discretion by denying him the ability to introduce Sheriff Warren's 1989 conviction for impeachment purposes.

s 9. The issue of whether the trial court abused its discretion in denying Wilcher's attempt to introduce Sheriff Warren's 1989 conviction into evidence was fully addressed by...