IN THE SUPREME COURT OF MISSISSIPPI NO. 2015-DP-01159-SCT ABDUR RAHIM AMBROSE a/k/a ABDUR AMBROSE

v. STATE OF MISSISSIPPI

DATE OF JUDGMENT: 06/19/2015 TRIAL JUDGE: HON. ROGER T. CLARK TRIAL COURT ATTORNEYS: CROSBY PARKER LISA COLLUMS CHARLIE STEW ART FRANK P. W ITTMANN, IV RICHARD JOEL SMITH, JR. ROBERT C. STEW ART GLENN F. RISHEL, JR. ANGELA BLACKW ELL DANA CHRISTENSEN ALISON R. STEINER COURT FROM W HICH APPEALED: HARRISON COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: ALISON R. STEINER ANGELA BLACKW ELL ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LADONNA C. HOLLAND JASON L. DAVIS CAMERON BENTON DISTRICT ATTORNEY: JOEL SMITH NATURE OF THE CASE: CRIMINAL - DEATH PENALTY - DIRECT APPEAL DISPOSITION: AFFIRMED - 08/02/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. COLEMAN, JUSTICE, FOR THE COURT:¶1. On Decem ber 23, 2013, Abd u r R a h i m A m b r o s e, S tevie Am

b rose, and Orlander
D e d eaux were indicted f

or capital m

urder o f Robert Trosclair with the underly ing f e l o n y being kid n a p p i n g . T h e trial court severed the case f o r separate trials. 1 Abdur Rahim
Am brose proceeded to trial, w hich com m enced on J u ne 15, 2 015. Following t he culpability phase of trial, a H arrison County jury f ound Abdur Rahim Am

brose guilty of c a

pital m urder. Following the penalty phase of t rial, the jury im posed the death penalty

. Am brose appeals, raising the f

ollowing twelve assignm ents of error verbatim : I. W HETHER THE TRIAL COURT VIOLATED AMBROSE’S S IXTH A N D F O U R T E E N T H A M E N D M E N T R I G H T S T O CONFRONTATION AND TO P RESENT A DEFENSE BY PREVENTING HIM FROM IMPEACHING P ROSECUTION W ITNESS D E METRIUS LEE W ITH MATTERS CLEARLY PROBATIVE OF L EE’S BIAS I N FAVOR OF THE STATE AND INTEREST IN PROVIDING INCRIMINATING TESTIMONY A G A INST AMBROSE AND IN SUPPORT O F THE STATE’S THEORY OF PROSECUTION.
II. W H E T H E R A M B R O S E ’ S D E A T H S E N T E N C E M U S T B E VACATED AND THIS MATTER REMANDED FOR ENTRY O F A SENTENCE LESS THAN D EATH BEC A U S E THE O NLY § 99-19-101(7) S ENTENCING ELIGIBILITY FACTOR F INDING BY THE JURY W A S THAT AMBROSE “CONT E MPLATED THAT LETHAL FORCE W OULD BE EMPLOYED.”
III. W HETHER T H E TRIAL COURT REVERSIBLY ERRED IN TW O MATTERS RELATI N G TO THE S EATING O R REMOVAL OF JU[ ]RORS, A N D IN D ENYING A MISTRIAL IN LIEU OF REPLACING THE REMOVED JUROR W ITH AN ALTERNATE.

1 O n January 22, 2 015, Orlander Dedeaux pleaded guilty to second degree m urder and was sentenced to f

orty y ears, with ten y ears suspended. On January 8, 2016, af ter Am brose’s trial, Stevie Am

brose pleaded guilty to f

irst d egree m

urder and was sentenced to lif e in prison without the possibility

of parole. Neither Stevie nor D edeaux testif ied at Am brose’s trial.

2IV. WH E T H E R T H E J U R Y S E L E C T I O N P R O C E S S WA S A L S O CONSTI T U TIONALLY INFIRM IN OTHER RESPECTS AND R EQUIRES REVERSAL OF AMBROSE’S CONVICTION AN D SENTENCE OF DEATH.
V. WHETHER A M B R O S E ’ S S E N T E N C E M U S T B E R E V E R S E D BECAUSE OF THE PROSECUTOR’S MIS C O N D U CT IN M AKING CONSTITUTIONALLY IMPROPER AND PREJUDICIALLY INFLAMMATORY CLOSING A RGUMENTS AT THE PENALTY PHASE OF THE TRIAL.
VI. WH E T H E R T H E TRIAL COURT COM M I T T E D R E V E R S I B L E EVIDENTIARY ERROR.
VII. W HETHER THE T R IAL COURT C ONSTITUTIONALLY ERRED BY D ENYING A MBROSE’S REQUESTS THAT E ITHER THE INDICTMENT ITSELF OR A BILL OF PARTICU L A RS, D E S C R [ I ] B E [ S ] T H E A L L E G E D C O N D U C T B Y T H E D E F ENDANT T HAT C ONSTITUTE D T H E K I D N A P P I N G ELEMENT OF THE CAPITAL MURDER AND/OR THE STATUTORY SENTENCIN G AGGRAVATOR ON W HICH THE JURY W AS INSTRUCTED AT THE PENALTY PHASE.
VIII. W HETHER THE T RIAL C O U R T E R R E D I N G R A N T ING THE STATE’S REQUESTED ONE CONTINUOUS T RANSACTION I N S T R U C T I O N S A T B O T H T H E C U L P A B I L I T Y A N D SENTENCING PHASES.
IX. W HETHER THE T R I A L C OURT’S ERRONEOUS SENTENCING PHASE I NSTRUCTIONS REQUIRE V ACATION O F T HE DEATH SENTENCE AND REMAND FOR A NEW SENTENCING PROCEEDING.
X. W H E T H E R T H E D E A T H S E N T E N C E WA S I M P O S E D I N VIOLATION OF THE UNITED STATES CONSTITUTION.
XI. WH E T H E R T H E DEA T H S E N T E N C E I N T H I S M A T T E R I S C O N S T I T U T I O N A L L Y A N D S T A T U T O R I L Y DISPROPORTIONATE.
XII. W HETHER THE CUMULATIVE EFFECT O F T H E E R R O R S IN THE TRIAL COURT MANDATES REVERSAL OF T HE VERDICT

3OF G UILT AND/ O R THE SENTENCE OF DEATH ENTERED PURSUANT TO IT.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY Events at “the Hill ” ¶2. On the a f

ternoon of April 7, 2013, Dem etrius L ee returned hom e f rom work between 3:00 and 4:00 p.m . Lee resided in the DeLisle com m unity at 7486 Lobouy

Road, which is part of a larger property com m only known as “the Hill.” T he Hill is com prised of two houses and a m obile hom e. W hile Lee was relaxing, som e o ne k n o c ked o n his window, but he

rem ained inside. Twenty to t hirty m inutes later, L ee w ent outside and saw Robert Trosclair, whom he knew f

rom f requently being at the Hill. ¶3. L e e t e stif

i ed t hat Trosclair was running and looked like he had been in a f ist f ig h t , because he was shirtless and bloody

. Trosclair h ad a busted lip, blood com in g out of his

nose, a nd blood on his chest. Am brose, h is b rother Stevie Am brose, 2 and Orlander Dedeaux

were f ollowing behind Trosclair, taking turns hitting him . Stevie handed Lee a c ell phone and told him to record. L ee testif ied that he videoed any

where f rom a m ere second to two

m inutes of the assault. Trosclair w as try ing to get a w ay and was not f ighting back. Am

brose kept a sking Trosclair, “[ W ]here is m y stuf f , y o u got som e explain i n g to do” to which Trosclair r esponded, “it was Terry .” Am brose, Stevie, and Dedeaux continued t aking turns hitting, kicking, and knocking down Trosclair f or thirty m i nutes to an hour.

2 T h e C o u rt ref

ers to S tev ie A m

b ro s e a s “S t ev ie” to av o id co n f u sio n w i th th e d ef en d a n t A b d u r R ah im

A m b ro se. 4¶4. Som etim e during the assault, Donna Sim s a rrived at the Hill to return a book bag to

her grandson, who had been stay ing with his m other Cry stal J a m eson at the Hill. W hen S im s arrived, she saw som eone ly ing on the ground. Alth o u g h Sim s knew Trosclair, she was unable to recognize h im because his head was bloody a nd swollen. Sim s saw Am br o s e , Stevie, Lee, and Dedeaux standing around Trosclair. Sim s, w h o s e grandson is also
Am brose’s nephew, had known Am brose f o r y ears. ¶5. Sim s told A m

brose a nd Stevie to s t o p a s s a u l t i n g T r osclair and leave him alone.
Am brose r esponded t hat Trosclair had “stolen stuf f out of h is car.” Sim s g rabbed, pushed, and pul l e d A mb r o se and Stevie i n an ef f o rt to s top them , but she was unsuccessf ul. S im s begged them to stop, but they continued hitting Trosclair. L ee also testif ied that Sim s had
y elled f or them t o stop assaulting Trosclair. Sims t e s t i f i e d that Trosclair w as not f ighting back and was unable to stand up other than partially s itting up at one point. Sim s testif ied that Lee was laughing and videoing the assault with a phone. ¶6. Af ter the beating had subsided, Am brose got into a white truck and t old “ t hem ” to put Trosclair in the truck. Sim s r ecognized the truck because i t belonged to her daughter Cry stal and her b o y f

riend Luke Turner, who is Am brose’s brother. 3 S i m s approached Am brose while he was in the d

river’s seat of the truck. Sim s spoke to Am brose f or about f i ve m inutes. Meanwhile, Sim s testif

ied that “they ” had p ut Trosclair in the b ack of the truck because he could not g et up f

r om the ground. Sim s testif i ed that Lee helped load Trosclair into the back of t he truck. Lee denied helping load Trosclair in the b a c k of the truck at the Hill; rather,

3 L u k e is also th e f

ath er o f C ry stal Jam eso n ’s so n , w h o is A m b ro se’s n e p h ew . 5Lee testif

i ed that a f ter the f ighting had stopped, Trosclair attem pted to r oll in t he back of the truck. Lee testif

ied that som eone then picked u p his f eet a nd pushed him in the back of the truck. L ee got into the passenger’s seat of the truck and A m brose drove away with Trosclair in the b a c k o f t h e t ruck. Lee was under the im pression that Am

b rose was going to take Trosclair hom e . Stevie got into his car with Dedeaux and they f ollowed the truck. ¶7. Lee testif

ied that, by the tim e Sim s arrived at the Hill that a f t e r n o o n , mo s t o f t he assault had s ubsided. Lee t estif ied that Sim s was there a

b out ten m inutes bef

ore they lef

t the

scene; however, S im s testi f i e d t hat the incident at the Hill lasted thirty

- f ive to f orty -f ive

m inutes f rom the tim e she arrived at the Hill to the tim e they lef t the scene.
Events at Fire Tow er Road ¶8. Upon leaving the Hill, Lee described Am brose’s dem eanor as “m ad, real m ad.” Lee

soon r ealized A m

brose was not taking Trosclair hom e, but he was too s cared to say any thing. Instead, they went to a n address about f ive m inutes away on Fire Tower Road where Jim m y Lawton lived. Lawton, also known as “Turk,” lived at 9 042 Fire Tower Road at the end of

a long d irt driveway

. Am b rose drove the truck d own the d riveway and parked in f

ront of a trailer next d oor to Lawton, where Lashonda Jacobs lived. Am brose p arked, got out of the truck, and went toward Lawton’s house. Am b rose walked to Lawton and spoke to him

. ¶9. Meanwhile, Stevie g ot o u t of his car and pushed Trosclair out of t he back of the truck.
Lee t estif ied that Trosclair and Stevie “squared of f ” as if to f i ght. Trosclair “rushed” Stevie, pushing him away , and ran away to w a r d t h e ma i n r oad in an ef f ort t o “get away .” Lee estim ated that T rosclair m ade i t a bout f o rty y ards away . Lee testif ied that Am

brose ran af

ter

6T r o s c l a i r a nd caught him

. A m brose grabbed Trosclair by the waistband of his shorts a n d said, “y ou got som e m ore explaining to do.” Trosclair responded, “m an, I don’t know what’s going on. It wasn’t m e. It was Terry .” Am brose walked Trosclair back toward the truck. ¶10. L e e t e s t i f

i e d t hat the situation then “ turned up a level” a nd “got m ore h e a t e d

. ” Trosclair ended up on the ground and Am brose, Stevie, and D e d e aux began kicking him

. Other than initially rushing Stevie to get away , Trosclair did not f i ght back at all. D uring the assault, Lee grabbed Am brose and said “[ w ]e need t o f igure out who T e r r y i s ” because Trosclair continued y elling the nam e “Terry .” Am b rose responded, “there ain’t no Terry .” ¶11. L e e t e s t i f

i e d that Stevie hit Trosclair in the head with a garden hose r eel w ith “f u l l
f orce” as Trosclair was ly ing d own on the groun d

. L e e t e s t i f ied that Am

brose retrieved a f ully inf lated c ar tire on a r im and hit Trosclair in the head with it as Troscliar was ly ing on the ground. Lee testif

ied t hat Trosclair’s head bounced of f the ground w h e n A mbrose hit him w ith t he tire. Af

t er Trosclair w as hit “two to t hree” tim es w i th the tire, Lee testif ied that Trosclair “went to sleep” and started “m aking a snoring sound.” ¶12. Lawton, who wit n e s s e d portions of the assault in f ront of his house, also testif ied. That evening, Lawton recalled that Am b rose, whom he had known f or about f

i ve y ears, arrived at his house. L awton saw him getting out of the d river’s side of the w hite truck. At the tim e, Am

brose regularly stay ed at the trailer next door to Lawton’s house and Am brose would c o m e to the house to get t he trailer key

. L a sh o n d a Jaco b s also l iv ed a t th e trailer n ex t d o o r t o L aw to n ’s h o u se. Lawton, assum ing Am brose was there to get the key , went outside under the carport to m e et Am brose with the key

.

7¶13. W h ile under the carport, Lawton saw Dedeaux and Trosclair sitting in t he back of the truck with no com m o tion. As Am brose reached the carport, Lawton saw T rosclair take of f running up the driveway toward t he m ain road. L awton testif ied that Dedeaux and Stevie ran af ter Trosclair f

irst. L a wton testif

ied that when Trosclair had r un about ten t o t wenty -f

ive
y ards, Am

brose also ran af

ter him

. Stevie a nd Dedeaux caught Trosclair f irst and knocked him d own. Am

brose m ade it t o T r o sclair soon t hereaf ter. Lawton testif

i ed t hat Am

brose, Stevie, and Dedeaux started kickin g a n d p u nching Trosclair. Lawton went i nside f or a

m om ent to get h is phone to call his n e x t d o o r neighbor Jacobs. Lawton then continued observing f

r om his window. ¶14. L a w t o n t e s t if

i ed that Trosclair started stum bling b ack toward t he trailer. Lawto n testif i ed that Trosclair would walk f or a m o m e nt and then “one of them would hit him

and he would go a little m o r e a n d t h en he f ell again.” Lawton testif ied that Trosclair was not f ighting back. Lawton testif ied that Am

brose and Dedeaux hit Trosclair with the tire and the hose r eel. Lawton testif

i ed th a t “ [ t ] h e y picked u

p a tire and they picked up a [ hose reel]. They struck him with it m ore than twice, I know that f or sure.” L awton testif

ied t h a t he “kn[ e]w [ Dedeaux] picked it up once. And [ h e w a s] sure t he other one was [ Am brose].”
W h en asked if he was sure about which one h it h im with which object, Lawton responded:
Not

– I’m not really sure. I know one of them pick e d t h i s o ne up, the other one picked that o ne up. I’m just say i ng it w as, boom , and they pick som e thing else up, hit him

. And then the other one, Stevie, w as right t here with him

. He picked it up a nd hit him hissel f , y ou know. And [ Lee], the one he was there taking pictures with the cam era.

8¶15. On cross-exam ination, Lawton t estif ied t hat Am

brose hit Trosclair with the hose reel and the tire. Lawton also testif i ed that Stevie p icked u

p the hose reel and h it Trosclair with it. Lawton testif

ied that Trosclair was hit with the tire m ore t han two tim es. Lawton testif ied that Trosclair w as ly ing o n his side w hen h e was hit with the garden hose reel and the tire.
Af ter T rosclair was hit with these two objects, he r o l l e d o ver. During the assault, Lawton testif i ed that he then went to the b athroom f or f i f teen or twen t y mi n u t e s and c a m e back to the window and saw the truck and car leaving the s cene. Af ter the t wo vehicles l ef

t, Lawton
went outside and saw a t least three areas of blood i n t h e g r avel driveway

. Lawton also noticed that the hose reel and tire, which were used to strike Trosclair, w e r e l y ing on the ground. ¶16. Lee testif

ied that af

ter Trosclair had been k n o c k e d o u t i n f ront of Lawton’s house,
Am brose got i nto the t ruck. Stevie and Dedeaux tied Trosclair’s hands and bo d y w i t h a
y ellow ratchet tow strap and put him in t he back of the truck. W hen Trosclair was put in the back of the t ruck, his head was jerking back a nd f orth. 4 Lee testif

ied that he g ot in the truck with A m brose and they lef

t Lawton’s with Stevie and Dedeaux f o llowing i n S tevie’s car. Am brose d id not tell Lee where he was driving. Lee testif ied that Am

b rose turned of

f “som e littl e e n t r a n ce, and backed up. A nd then Stevie and Dedeaux pulled [ Trosclair] out the truck.” Stevie and Dedeaux dum ped Trosclair on the side of the road and they l ef t the scene. Lee testif ied that Trosclair was unable to m ove or talk.

4 Lee denied helping load T rosclair i n t he b ack of the truck. L ee also d en ied to u ch i n g T r o sclair d u rin g an y p art o f th e assau lt. L ee d en ied v i d e o i n g an y th in g at L aw to n ’s h o u se. 9¶17. Later that e vening, Law t o n t e s tif ied that Am

brose cam e to his h ouse with Jacobs.
L a w t o n s aid that Am

brose apologized about what had happened i n f r ont of his house.
Lawton said that Am

b rose asked f

or a shovel, but Lawton told him he d id not have one. The

next day , Lawton went o u tside and noticed that the a reas of blood were c overed up. Lawton also noticed that the garden hose reel and tire had been m o ved a n d t hrown in t h e bushes. Discovery and Investigation ¶18. The sam e evening, Bradley Holm es was driving hom e on Cunningham Road in Pass Christian around 7 :00 p.m . H olm es stopped his truck when he noticed what appeared to be

a body ly ing on t he side of the road. Holm es called 911, and w hen he was getting out of his truck, he realized it was an unconscious m an, later identif ied as Trosclair, ly ing f

a ce down between the white line of the road and the roadside ditch. Holm es t estif ied that Trosclair was

m aking a gargling, snor i ng s o und. Holm es testif ied Trosclair w as partially c lothed, with short pants a nd s ocks on. Holm es described t hat T rosclair was tied up w ith a y e l low ratchet strap, which was tightly tied around hi s wrists and loosely tired around h is back. Holm es described his head a s “very dirty , covered in d irt, b lack and blue, blood.” H olm es said that Trosclair’s ears h a d blood com ing out of them

. Holm es also observed stab wounds, cuts, and scrapes to Trosclair’s body

. ¶19. Deputy Carl Jam es of the Harrison County Sherif f ’s De p a r t me n t r e c e i ved a call at approxim a tely 7:00 p.m . with r egard to an assault victim who had been stabbed on Cunningham R oad j ust west of L obouy Road. Deputy Jam es was the f irst of f icer to respond

to the scene. Deputy J am es testif ied that Trosclair was wearing only a p air shorts a nd socks.

1 0Deputy Jam es testif ied that T rosclair h ad bruising, b lood, and abrasions on his f ace and his whole body

. Deputy Jam es observed blood on t he m iddle o f h is torso, including three stab wounds to the lower back. Deputy Jam es testif ied that Trosclair’s hands and waist were tied with a ratchet tow strap. Deputy Jam es tried to com m unicate with Trosclair, but he was unresponsive. Trosclair’s brea t h i n g was shallow and l abored w ith a gurgling sound

resem b ling a snore. ¶20. Trosclair was f

lown by helicopter to the University of S outh Alabam a M e d i c a l C enter, where he arrived intubated because he was unable t o b r e a t h e o n h is own and had signs of h e a d injuries. Trosclair was unresponsive, and the treating phy sician determ ined t h a t Trosclair h ad undergone som e brain injury and diagnosed him with a global severe cerebral

e dem a. B ecause of the swelling of Trosclair’s brain, i t h ad shif ted f our m illim eters to th e lef t. Trosclair also was diagnosed with a jaw f racture, nasal b one f

racture, and superf

icial lacerations on his f

l ank, m e aning t hat they did not e nter where his organs w ere. T he treating phy sician testif

i ed that the lacerations were not lif e threatening in and of t hem selves. Af ter perf orm ing tests to determ ine brain activity over the next two d a y s , t he treating p hy sician determ ined that Trosclair was clinically brain dead. ¶21. On April 9, 2013, Troslciar’s m other Vena Trosclair w e n t t o t h e p o l i ce station to report her son m issing because he had not been hom e and was not returning her calls. Law enf orcem ent o f

f icials advised V ena that an u nidentif ied m a le m atching h er son’s description

was at the University of South Alabam a Medical C e n t e r. Vena went to the hospital and

1 1identif

ied Trosclair, who wa s c o m atose and on l if e support. Trosclair never regained consciousness and died af ter he was rem oved f

rom lif e support. ¶22. On April 11, 2013, f orensic pathologist Dr. Frank K rolikowski perf

orm ed an autopsy of T rosclair. Dr. K

roli k o w ski f

ound Trosclair had suf

f ered f rom three stab wounds to his side, substantial am ounts of head tr a um a, m ultiple hem orrhages within his head,

st r a n g u l a tion, and s uperf icial abrasions in a num

b er o f dif f erent parts of his body

. Dr. Krolikowski testif

ied that the h em orrhages within Trosclair’s head could b e consistent with

m ultiple strikes t o the head. Dr. Krolikowski opined that all of Trosclair’s various traum as

were cum ulative and contributed to his d em ise. Dr. Krolikowski concluded that Trosclair’s

cause o f death was “ m u ltiple blunt traum a, m

ultiple stab wounds, and asphy xia by strangulation.” ¶23. During law enf

o r c e me n t ’ s i n v e stigation, Am brose a nd S tevie were d eveloped as suspects and a n arrest w arrant f or aggravated assault w as issued because Trosclair was still alive at the tim e, albeit in a com a. The charges were later upgraded af ter Troslcair died of his injuries. ¶24. At the Hill, investigators discovered t he w hite truck that had b een d riven by Am

brose. Investigators observed a r ed substance appearing to be bloo d i n s i d e the truck’s tailgate. Investigators discovered a leather belt and blue, torn up, t ank top shirt inside a trash can outside the m o bile hom e. Investigators discovered b lood stained g ravel in the c enter of the driveway in f

ront of Lawton’s hom e. Investigators also discovered the blood stained tire and

1 2garden h ose reel in a wooded area about t wenty -f ive y ards f

rom Lawton’s hom e near the driveway where blood was f

ound. ¶25. At trial, the State i n t r o d u c e d e v i d e n ce showing that Trosclair’s DNA m atched a

r e d d i s h brown s tain sam

ple collected f

rom t he interior of the truck bed near the tailgate.
Trosc lair’s DNA m atched a reddish brown stain sam ple consistent with the appearance of blood collected f

rom t he garden hose reel. Trosclair’s DNA m atched a reddish brown sam ple
f rom the tire rim

. Trosclair’s DNA m atched sam p les f rom reddish brown stained rocks f ound in the m iddle of the driveway n ear Lawton’s hom e. Trosclair’s DNA a l so m atched sam ples taken f rom the blue tank top f

ound in a trash can a t Lobouy R oad and the ratchet tow strap. Although DNA testing perf orm e d on the belt showed a m i xed prof ile f rom m ore tha n one person, Trosclair could not be excluded as being a contributor to the m ixture.
Am brose’s Version of Events ¶26. A m

b r o s e took the stand in his def ense. At the tim e, A m

brose had been d

riving th e white truck that h e had borrowed f rom Jam e s on because his car was broken down and parked in f ront o f h i s mo t h e r ’ s t railer at the Hill. On the m orning o f April 7, 2013, Am brose received a c a l l f

r o m Jam eson, who is Sim s’s d aughter. Am b rose learned t hat his car had been broken into. Am

brose went to the Hill to return the truck to Jam eson and to assess the dam age to his car. Am

brose arrived and saw that his car’s w indow had b een b roken out with

a b rick and t he trunk h a d been o pened. W hen Am brose opened the driver’s side of his car, he discovered that his prescription pills f or a back injury that had occurred at work had been

1 3taken. Am

brose also discovered that o ther drugs, a s peaker, and a n a m plif ier had b een taken
f rom the trunk of

the car. ¶27. Am

brose becam e upset and decided to drive around the DeLisle com m unity and ask if any one h ad seen som eone try i ng to sell a speaker and am p s o he could determ ine who had broken into his car. Am

brose p i cked up Dedeaux f rom his house, and they d

rove around the

com m unity looking f

or the stolen item s. W hile they w ere dri ving around, Stevie called.
Am brose learned t hat Trosclair w as at the Hill. Am brose had known Trosclair f o r m ore than

a decade, and they had g rown u p together. Am

brose described Trosclair as his “brother, best
f riend.” Am

brose and Trosclair were not actually related; on cross-exam ination, Am brose clarif i ed that Trosclair was his f riend. Am

b rose also conf

irm ed that he, his brother Stevie, Dedeaux, Lee, and Trosclair all were f riends. ¶28. W h en Am

brose returned to the Hill, Am b r o s e a p proached T rosclair and asked him about a dog ho u s e t h a t A m brose had asked Trosclair to build. Earlier t hat day , Trosclair claim ed he could not build i t because he was on his way to the hospital due to third degree burns h e had suf

f ered f r om working on a car radiator. Because A m brose saw that Trosclair did not have burns on his body , Am brose conf

ronted him

about the stolen item s. ¶29. Trosclair then adm i tted to breaking into Am b rose’s vehicle, b ut claime d h e did not break out the window. Am brose becam e angry when Trosclair adm itted to breaking into his

car. Trosclair claim ed that an individual nam ed T erry had broken o ut the window. Am brose did not k now an individua l nam ed Terry and the argum ent becam e heated. Am b rose and Trosclair “squared of

f ” and f ought f or “f our to f ive m inutes.”

1 4¶30. During the f ight, Am brose ripped of

f Trosclair’s blue tank t op. A mb r o s e punched Trosclair about f

ive or six tim es. Troslc a i r f ought back and struck Am brose with a f

ew blows. The only o ther individuals present at the tim e were Stevie and Dedeaux. Later, Lee

cam e outside and “blindsided” Trosclair, hitting h im f rom b ehind and knocking him down.
Am brose told Lee t hat h e d i d n ot need any help. Trosclair got up and he and Am brose continued to f

ight. Am b rose testif

ied that Dedeaux w as “actually the one with th e phone [ videoing].” ¶31. The f

ight subside d a n d A mb r o s e t o l d T r o sclair to take him to Terry

. Am brose testif i ed t hat Trosclair was “pretty beat up.” Am brose went toward the truck so they could
go to Terry ’s house. Am

brose claim e d that S im s pulled up as they w ere on their way to the truck. A m

brose denied that Sim s had pleaded f o r him to s top beating Trosclair because the
f i g h t already had ended. A m brose told “them to get on back of the truck and ta k e me t o whoever t his guy n a me d T e r r y is house [ sic].” Am brose testif

ied that Trosclair got in the back of the truck so they could get his bel o n g i n g s back. Am brose testif

ied that h e did not f orce Trosclair into the truck and T rosclair willingly got in the truck. Am brose told Trosclair that once he received his speakers, he “wasn’t going t o m ess with him any m o re.” Stevie
f ollowed Am

brose to “go get the stuf

f .” ¶32. Instead of going to w here Terry supposedly lived, as Am brose originally had planned, he rem em bered that he had purchased f our tires f rom Lawton f

or his other vehicle, which had a f lat tire. Even though Am brose was angry

about his belongings being stolen, he decided

to take a detour to Lawton’s. Am brose drove to Lawton’s house, w hich w as “right around

1 5the corner.” Am brose p u lled up and Lawton had the trailer key s in his hand, but Am brose advised Lawton that he was there just to get the tires. 5 ¶33. W h ile A mb r o s e a n d L a w t o n were talking, “ a com m otion

. . . was going on by the trailer a f ew f eet away , and [ Am

brose] saw people running.” Am brose testif

ied: “I didn’t really know what t he com m o tion was about, but when I saw people running, I instantly just

ran. I t ook of

f

. I did. I t ook of

f to see what the com m otion was about.” Am brose saw Lee, Dedeaux, and Stev i e s t r i k i ng Trosclair. Am brose caught up with them and began striking
T r o s c l a i r too. Am

brose adm itted that all of them w ere beating Trosclair af ter they cha s e d him down. Am

b rose also adm itted that “this whole thing [ was] about [ A m brose] b eing m ad

at [ Trosc l a i r ] because [ Am brose] believe[ ed] he [ had] broke[ en] into [ his] car.” Am brose

a d mi t t e d that was the reason every one was beating him at the t im e. Am brose testif

ied t h e beating lasted two m i nutes until A m brose learned that Terry was not i nvolved an d S tevie actually had broken into h is c ar. Am brose then f

ought Stevie f

or a bout three m inutes. W hen
Am brose and Stevie s tarted f

ighting, Am

brose testif

i ed that Trosclair was injured but got up and walked back toward Lawton’s house. ¶34. W h en Am

b rose was f

inished f i ghting w i th Stevie, h e s a w D edeaux strike Trosclair in t h e head with the tire. A f ter Dedeaux struck Trosclair w ith the tire, Trosclair just “laid there” a nd did not get up. Am brose testif

ied that he w as hurt by Stevie and j ust wanted to get away . Am

brose lef t the scene alone in Stevie’s car b ecause i t w as t he closest v ehicle to him

.

5 L aw to n w as called as a reb u ttal w itn ess an d d en i ed h av in g a co n v e r satio n w ith A m b r o se ab o u t th e tires th at d ay . 1 6¶35. Later that evening, Am brose returned to Lawton’s h o u s e w i t h J acobs. Am brose apologized to Lawton about the f ight that had occurred earlier that day . Am brose testif

ied that he and L a w t o n s p oke f or about three m inutes and he lef t. Am brose d enied asking
Lawton f or a shovel. Am

b rose denied intentionally killing T r osclair or m aking h i m go
any where against h is will. Am brose denied stabbing, s t r angling, or choking Trosclair.
Am brose denied striking Trosclair with the tire or hose reel. ¶36. Am

brose’s def

ense theory presented at trial was that he was c rim inally responsible as

an accom plice to the events i n question or, at m ost, guilty of a lesser hom icide than capital

m urder.
The Verdict ¶37. Following the culpability phase of t rial, the jury returned a verdict f i nding Am

brose guilty of capital m

urder. Af t e r a n approxim ately one hour cooling of f period, the penalty phase of t he trial com m e nced. The State reintroduced and incorporated b y r e f e rence all testim o ny , e vidence, and exhibits contained in the c u l p ability phase of t rial a n d rested. Amb r ose called several f am ily m em

bers and f

riends to the stand to serve as m itigation witnesses and then rested. ¶38. During a recess f

ollowing the c o n c l u s i o n of the m i tigation witnesses’ testim ony , a juror subm itted a n ote disclosing his personal relationship with Am brose’s f am ily

. Am

brose

m oved f or a m i strial. T he juror was called to the stand and questioned by counsel f or Am brose. The trial court denied the m o tion f o r a m i strial. Over Am

brose’s objection, the trial c ourt excused t he juror and replaced him w ith the f irst alternate j uror. The next day , the jury h eard closing argum ents and retired t o t he jury room to deliberate. T he jury returned a 1 7verdict f

inding that Am

brose s hould receive the d eath penalty

. T he trial court duly entered an order sentencing Am

b rose to death. ¶39. On June 25, 2 0 1 5 , A mb r o s e f iled a m otion f

or a new trial or, in the alternative, f or acquittal n otwithstanding t he v erdict. On Novem ber 24, 2015, the trial court held a hearing

on the m otion. On July 30, 2015, the trial court e ntered an order deny ing the m otion.
Am brose tim e ly appeals , r a i s i ng twelve assignm ents of error. I n addressing the issues, additional relevant f

acts and procedural history will be set out as necessary

. STANDARD OF REVIEW ¶40. The Court applies heightened scrutiny to c a pital m urder c onvictions w here a sentence of death has been im

posed. Keller v. State , 138 So. 3d 8 17, 835 (¶ 15) (Miss. 2014). The
Court repeatedly

has held t hat what m ay be harm less error in a case with less at stake m ay becom e reversible error when the penalty is death. I

d

. DISCUSSION
I. WHETHER THE TRIAL COURT ERRED BY E X C LUDING EVIDENCE OF DEMETRIUS LEE’S P RIOR NONA D J UDICATED BURGLARY AND ARMED ROBBERY ARREST. ¶41. Am

brose argues that the trial court unconstitutionally a nd prej u d i c i a l l y p r evented him
f rom conf ronting and im

peaching Lee with evidence highly probative of Lee’s bias in f avor

o f testif y ing in t he m anner desired by the State. Am brose argues that Lee, a n u n c h a r g e d coparticipant in the events leading to Trosclair’s death, was the m ost c rucial witness to the
State’s theory presented at trial. Am brose argues that at t he tim e Lee m a de his bargain with the State to be a witness rather than a def e ndant, the jury did not additionally learn that Lee also needed the State to r ef rain f rom s eeking revocation of probation f or a nonadjudicated 1 8sente n ce f

or burglary that he was serving at the tim e. Am brose also argues that Lee f aced

a s im ilar risk o f prosecution f or an unrelated arm ed robbery f or which he had b een arrested while he was being questioned as a suspect in the present m atter. A. Motion in Lim ine and Proffer ¶42. On June 5, 2015, the State f iled a m otion in limine to prohibit Am brose f r omcrossexam ining Lee a

bout his prior nonadjudicated b urglary and arm ed robbery arrest. The State asserted that on August 16, 2010, Lee had pleaded guilty to burglary

and was sentenced to f ive y ears of nonadjudicated p r obation. 6 Also, on April 10, 2013, Lee was arrested f or arm ed robbery , which ultim ately was no true billed by

a grand jury

. ¶43. On June 1 1, 2 015, prior to trial, the t rial c ourt held a h earing on t he State’s m otion in limine

. The State argued that the prior nona d j u d i c a t i on and arm ed r obbery arrest were inadmi s s i b l e u nder Mississippi Rule of Evidence 609 because neither was a f elony convic t i o n . The State represented that, at the tim e of the hearing, Lee still was on nonadjudicated probation. Am brose responded that b ecause the grand jury returned a no true bill f or Lee’s arm ed r obbery arrest, he sought to introduce the evidence as evidence of bias under Mississippi Rule of Evidence 616. ¶44. According to Am

b rose, a probation revocation h ad been f i led i n the burglary

m a tter and was heard s i x to t en m onths later. T he record i s silent a s to the b asis of the f iled

6 D u rin g a p r o f

f er o f f ered at trial, L ee testif

ied t h at h e w as sen ten ced to th ree y ears’ n o n ad j u d icated p ro b a tio n . 1 9revocation or its disposition. 7 A mb r o s e c l a im ed that at t he tim e L ee was interviewed by

investigators, he was f

a cing twenty -f

ive y ears f

or the burglary nonadjudication. 8 Am brose argued that Lee was not c harged w ith capital m urder, not charged with arm ed robbery , and did not have his probation revok e d e v e n t h o ugh evidence existed that he had violated “a couple o f term s o f his probation.” 9 The t rial c ourt granted the State’s m otion based on Mississippi Rule of

Evidence 609. ¶45. At trial, Am

brose cross-exam ined Lee. L ee adm itted giving two dif f erent stories to investigators on April 10, 2013, about the events leading to Trosclair’s death. Hours af ter
g i v i n g the f

irst version, Lee testif

ied that i nvestigators had a sked whether he wanted t o be

a capital m

urder d ef endant or a witness. Lee testif ied t hat h e chose to b e a w i t n e s s rather than a def endant and cooperated with investigators. The t rial court then g ranted Am brose’s request to m ake a prof

f er outside the presence of t he jury and allowed cross-exam ination with regard to Lee’s crim inal past. ¶46. The t estim ony of

f ered d uring the p r o f

f e r s h o w e d t h a t , a t the tim e of Trosclair’s

m urder on April 7, 2013, Lee was se r v i n g nonadjudicated probation f or burglary of a

7 T h e i n f o r m atio n su rro u n d in g L ee’s crim in al p ast is g l ean ed f ro m th e m o tio n in lim in e , L ee’s testim o n y d u r in g th e p ro f f e r, an d rep resen tatio n s m ad e b y co u n sel, b ecau se n o d o cu m en tatio n su ch as a n o tru e b i ll, n o n ad j u d icatio n sen ten ce, rev o catio n , o r o rd er is in th e reco rd

.

8 A t trial, A m

b r o se’s co u n sel rep resen ted th at L ee w as f a c in g tw elv e y ears at th e t im e o f th e in terv iew

. 9 T h e actu al term s o f L ee’s n o n ad j u d icatio n p ro b a t i o n are u n k n o w n . A m b ro se su g g ests th at L ee m ay h a v e v io lated a term b y asso ciatin g h im self w ith h a r m f u l o r d isrep u t a b l e c h a racters su ch as D ed eau x , w h o a lleg e d l y w as a co n v icted f elo n a t th e t im e an d o n p ro b atio n f

o r f elo n y p o ssessio n o f

a co n tro lled su b stan ce. 2 0dwelling. Lee acknowledged that he initially w as concerned about his p robation status while

being questioned by investigators about t he case s u b judice

. A f t e r Lee g ave his f

irst

statem ent, an i n vestigator asked Lee about an u nrelated, January 27, 2013, arm ed robbery f or which he had been identif ied as a suspect. Lee testif i ed that he was not worried about his probation being revoked as a result of being a suspect in t he arm e d r obbery because he was innocent of the arm ed robbery

. ¶47. Following the prof f er, the trial court e ntertained argum e nts f rom counsel. According

to Am brose, Lee had been arrested f or the unrelated arm ed robbery in A pril 2013 10 and had

rem ained in jail f

or eight m onths u ntil January 2014 w hen t he grand jury r eturned a no true bill on t h e c h a r g e . Am

brose urged that Lee’s crim inal p ast was adm issible as evidence of b i a s u n d e r Rule 616. The trial court retained its prior ruling and a lso f ound that Lee ’ s testim o ny Am

b rose sought to elicit had no relevance to the case sub j udice

. The trial court ref used to “allow questio n ing about a situation where [ Lee] could have been revoked on a pri o r [ n o n a d

j udication] by a n arrest which was presented to the [ g]rand [ j]ury and no true billed.” ¶48. On appeal, Am

brose acknowledges that the t rial court properly recognized that Rule
609 restricts im

peachm ent of a witness’s character f or t r u t h f ulness w ith p rior crim inal conduct t o o nly conduct that has resulted in a conviction. See M.R.E. 609. However,
Am brose a rgues t hat t he trial c ourt f ailed to recognize that Lee’s prior crim inal c o nduct went

10 A cco rd in g to A m

b ro se’s co u n sel, L e e “w en t t o j ail o n A p ril 7 th , 2 0 1 3 , r i g h t at m id n i g h t, an d h e d i d n ’t l eav e u n til Jan u ary . . . 2 0 1 4 .” The State represented that Lee was arrested on April 10, 2013, f or the arm ed robbery

.

2 1not m erely t o his general credibility , but t o a specif ic f actual basis f

or h is being biased in
f avor of t h e S t a te or h aving an interest in receiving a benef it or f orestalling harm f

rom prosecution. ¶49. Am

brose argues that the trial court erred by excluding tes t i mo n y t h a t L e e f a c e d unresolved crim inal charges, over which the prosecutor retained the power t o ex e r c i se f avorable or unf

avorable discretion. Am

brose argues t hat t he trial court’s error clearly was prejudicial b ecause Lee’s testim o ny was key to im plicating Am

brose f or kidnapping and designating him a s the lead participant i n the blows w ith the tire that resulted in Trosclair’s
f atal brain injuries. In response t o Am brose’s claim of p r e

j u d ice, the State a r gues that the jury heard evidence of Lee’s m otive and bias to testif y as a witness rather t han as a def endant charged with capital m

urder f or his involvem e nt in the events leading to Troslciar’s death. The State argues that a ny bias s tem m i ng f rom the deal was f

ully explored by def

ense counsel.
B. Applicable Law and Analy sis ¶50. The trial court generally is allowed w i d e d i s c r e t i o n c o n cerning the adm ission of evidence of

f ered to s uggest bi a s o n t h e p art of a w i tness against the def e ndant. Tillis v. State , 661 So. 2d 1139, 1142 (Miss. 1995). W e review t he trial c ourt’s ruling f or an abuse of discretion. Id

. “ W e w ill af f irm the trial c o u r t ’ s e x e rcise of d iscretion unless the ruling resulted i n prejudice to t he a ccused.” Antho n y v . S t a t e , 1 08 So. 3d 394, 397 (¶ 5) (Miss. 2013). ¶51. “The Conf

rontation Clause of the Sixth Am endm ent of t he U nited S tates Constitution provides, ‘In all crim inal prosecutions, the a c c u s e d shall enjoy the right to be conf ronted

2 2with the witnesses a gainst him .’” White v. State , 785 So. 2d 1059, 1062 ( ¶ 9) (Miss. 2001).

Likewise , “Article 3, Section 26, of the Mississippi Constitution grants a nd guarantees a crim inal def

endant the right to conf

ront witnesses against him

. ” Y oung v . State , 731 So. 2d 1145, 1151 (¶ 38) (Miss. 1999). “The r ight of conf r ontation extends to and i ncludes the right

to f ully cross-exam ine the witness on every m aterial p o i n t r e lating to the i ssue to be determ ined that would have a bearing o n the credibili t y o f the witness and the weight and worth of his testim ony .” Id

. ¶52. “W hether r ooted directly in the Due Process Clause of the Fourteenth Am endm ent or in the Com

pulsory Process or Conf rontation Clauses of the Sixth Am endm ent, the Constitution guarantees c rim inal def endants a m eaningf

u l opportunity to present a com plete def ense.” Holm e

s v . South Carolina , 5 47 U.S. 319, 324 (2006). “W h ile the Constitution thus prohibits t he exclusion o f def ense evidence u nder rules that serve no legitim ate purpose

or t hat are d i s p r o p ortionate to the ends that they are asserted t o prom ote, well-established rules of evidence perm it t rial j udges to exclude e vidence if its probative value is outweighed by c ertain other f

actors s u c h as unf

air prejudice, c onf

usion o f the issues, or potential to

m islead the jury .” Id

. at 3 26-27. (“Plainly ref

erring to rules of this ty

pe, we have stated that the Constitution perm its judges to e xclude evidence th a t i s r epetitive, only m arginally relevant or poses an undue risk of harassm ent, pr e j u d i c e, or conf

usion of the issues.”) (quotations om itted). ¶53. M i s s i s s i p p i R u l e o f E v i d e n c e 6 1 1 ( b ) a llows wide open c ross-exam i nation o f witnesses, and Rule 616 allows e vidence of bias f or the purpose of attacking t he credibility of a witness. McFarland v. State , 707 So. 2d 166, 176 ( ¶ 3 3) (Miss. 1997); see also Meeks 2 3v. State , 604 So. 2 d 748, 755 (Miss. 1999). For p urposes of attacking the credibi l ity of a

witness under Rule 616, evidence of b ias, prejudice, or interest of t he witness “includes interrogating t he witness’s belief or perception as to w hether the State could e x tend leniency
f or pending charges.” Anthony , 108 So. 3d at 397 (¶ 6). ¶54. At the tim e of trial, 11 Rule 616 provided: “For the purpose o f a ttacking t he credibility of a w i t n e s s , evidence of bias, prejudice, or interest of the witness f o r or a gainst any party
to the case is adm i ssible.” M.R.E. 616. However, “Rule 616 m ust be interpreted a s it relates

to other rules of evidence, particularly [ Rules] 1 04, 401 and 402.” Tillis v . State , 661 So. 2d 1139, 1 142 (Miss. 1995). “Rule 616 states the general rule of adm issibility of such evidence subject t o the trial court f inding, i n the exercise of its discretion under [ Rule] 104, that it is relevant, u nder [ Rules] 401 and 402, t o the specif ic f a cts in the c ase.” Id

. Rule 401 12 provided: “‘Relevant Evidence’ m eans evidence having any tendency to m ake the existence of any f act that is of consequence to t he determ ination of t h e a c t i o n mo r e probable or less probable than it would be without the evidence.” M.R.E. 401. Rule 402 13 provided: “All relevant e v i d e nce is adm issible, except as otherwise provided by t he Constitution of the

11 In 2 0 1 6 , th e lan g u ag e o f R u le 6 1 6 w as am en d ed as p art o f th e g en eral resty lin g o f th e ev id en ce ru les. R u le 6 1 6 n o w p r o v id es: “Ev i d ence of a witness’s b ias, prejudice, or interest

– f

or o r a gainst any party

– is a dm issible to a ttack the witness’s c r edibility .” M.R.E. 616.

12 In 2 0 1 6 , th e lan g u ag e o f R u le 4 0 1 w as am en d ed as p art o f th e g en eral resty lin g o f th e ev i d en ce ru les.

13 In 2 0 1 6 , th e lan g u ag e o f R u le 4 0 2 w as am en d ed as p art o f th e g en eral resty lin g o f th e ev i d en ce ru les. 2 4United States, the Constitution of the State of M ississippi, or by these rules. Evidence which

is not relevant is not adm issible.” M.R.E. 402. ¶55. Here, the trial c ourt ultim ately f ound the evidence of L ee’s crim inal past not relevant.
See M.R.E. 4 01, 402. H owever, the Court has em p hasized that a m aterial witness’s f avored

t r e a t me nt f

r om l aw enf

orcem ent authorities when the witness i s subject to prosecution is probative of the witness’s i nterest or bias and m a y be developed t hrough cross exam ination. See, e.g., Anthony , 108 So. 3d at 3 97-98 (¶¶ 5-7); McFarland v. State , 707 So. 2d at 176 (¶¶ 32-34); Suan , 511 So. 2d at 1 47-48 (Miss. 1987); Hall v . State , 511 So. 2d 144, 27-28 (Miss. 1985). ¶56. I n g e n e r a l , “one accused of a crim e has t h e r i g h t t o b r o a d a n d e x t e n s i v e

cross-exam ination of the witnesses against him , and especially is this so with respect to the principal prosecution witness.” S uan , 511 So. 2d at 148. The r ight is secured by our rules of evidence, nam ely Rule 611(b), and it i s a f unction of the C onf

r o n t a t i o n C l a uses of the
f ederal and state c onstitutions. Id

. “Evidence t hat a m aterial witness h as received f avored

treatm ent at t he hands of law enf orcem ent authorities, particularly where t hat witness is him self s u b

j e c t to prosecution, is probative of the witness’[ s] interest or bias and m ay be developed through c ross-exam ination or otherwise presented to the jury .” Id

. at 147–48. W e specif ical l y h ave held that “ [ a] leniency /im m unity agreem ent m ay be presented to the jury where su ch would tend to im peach or show bias in the testim ony o f a State’s witness.”
Barnes v. S

t a t e , 4 6 0 S o . 2 d 126, 131 (Miss. 1984). In the context of the State f ailing or ref using to d isclose witness leniency and im m unity agreem ents, “th e l a w i s clear that the im m unity deal m u st be disclosed to the def ense.” Barnes , 460 So. 2d at 131. 2 5¶57. The record f ails to s how that a leniency or im m unity agreem ent h ad been struck with
Lee and t he State in regard to t he nonadjudicated burglary or arm e d robbery a rrest. Indeed,
Am brose di d n o t a r g u e at the trial level or i n its initial brief on appeal that t he State had
f ailed or ref

used to disclose a leniency or im m unity deal to t he def

e nse in violation of our holding in Barnes

. Id

. The only actual leniency or i m m unity a g reem ent b etween the State and L ee dem onstrated in the record was the deal he had cut with investigators to serve a s a witness in the p r esent c ase rather t han be charged f or his involvem ent in the events leading

to Trosclair ’s m

urder. Evidence of the deal was disclosed at trial during Lee’s crossexam ination. ¶58. In d irect conf

l ict with a leniency or im mu n i t y d e a l , the record shows that the State actually pursued Lee’s arm ed r obbery charge, but t he grand j ury returned a no true bill. The record a lso suggests t hat the State sought r evocation of Lee’s nonadjudication, a lthough the basis of the revocation a nd ultim ate disposition are unclear. On appeal, the State argues that “presum ably , the [ trial] judge denied revocation.” In contrast, Am b rose claim s t

h a t , a l though the State f

il e d r e vocation proceedings, it “abandoned” the revocation o f Lee’s nonadjudication probation sentence. To the extent that A m brose is arguing f

or the f irst t im e that the State f

a iled o r r e f

u s e d to disclose a leniency or im m unity deal to Am

b rose, that
argum ent has been waived and sim ply is not supported by the record. See Hansen v. State , 592 So. 2d 114, 127 ( Miss. 1991) (holding that the Court m u st decide each c ase by the f acts shown in the record, not assertions in the b rief ); Evans v

. S t a te , 725 So. 2d 613, 632 (¶ 2) ( M i s s . 1997) (holding that i ssues that were not presented to the trial court theref or e a r e procedurally

barred, and error, if any , is waived). 2 6¶59. The State m aintains that Am brose’s entire argum ent h i n g es on the prem ise that the jury could have inferred t hat the State prom ised leniency by not seeking revocation of Lee’s probation and not charging him i n the arm ed robbery case, or that the charges were l everaged

over Lee in exchange f

o r his t es t i m ony . The State a rgues that the trial court properly excluded the evidence of Lee’s c rim inal past because b o t h charges a g ainst him had been resolved prior to Am

b rose’s trial; theref

ore, nothing existed f

or the State to leverage against
Lee to m ake him a biased witness in f avor of t he S t a t e . T h e S t a t e claim s that Lee had

com pleted his nonadjudicated probation at the tim e of trial and his testim ony . ¶60. However, a lthough it is unclear whether Lee’s probation s entence was three or f ive
y ears, the record shows that Lee was o n probation a t t h e tim e of trial because the State represented at the m otion in limine hearing that Lee was still on p robation. Regardless, it is undisputed t hat Lee was subject to revocation a t the tim e of his interview and f or som e t im e thereaf ter. Am brose is correct that, although Lee’s arm ed robbery c h arge was no true billed, he rem ained subject to have the arm ed robbery charge presented to the grand jury again. ¶61. In Suan , the def

endant sought to s how that a witness had been involved in crim inal activity but h ad n o t been prosecuted. Suan , 5 11 S o. 2d at 148. Specif ically , the def

endant sought to establish that the witness had a m otive f o r testif y ing f alsely , and t hat i f he did not testif y f alsely , he w ould be subject to parole r evocation proceedings a nd returned to prison.
Id . at 147. The Court noted that the witness’s “neck was on the line if he did not testif

y in

a m anner pleasing to the prosecution.” Id. a t 148. The C o u r t h e l d t h a t the trial c ourt had erred when it r ef

used to allow such cross-exam ination b ecause the witness was t he principal

2 7witne s s f

or the State, and because so m uch of the prosecution’s case turned upon his credibility

. Id

. ¶62. L i k e w i se, in M

cFarland , the def

endant a r gued t hat the trial c ourt h a d e r r e d b y

r e f u s i ng to allow def

ense counsel to question a witness f ully regarding any f

avora b l e
treatm ent by the State so as to dem onstrate t he w itness’s pos s i b l e b i a s i n t estif y ing f or the
State. McFarland , 707 So. 2 d at 176 (¶ 32). The Court recognized that def ense counsel m ay h ave had a colorable argum ent t hat he should have been perm itted to question t h e w i t n e s s regarding any f

avorable treatm ent b y t he State. Id

. at 176 ( ¶ 33). However, t he def ense f ailed to m a ke a prof

f er at trial or dem o n s t r ate o n appeal or at trial that the witness was subject to prosecution f

or the alleged crim inal c onduct. Id

. a t 176-77 (¶ 33). The Court held that a ny e rror w as not p roperly preserved f o r review because t he def endant f ailed at trial to

m ake a prof

f er or even argue that t h e w i tness r eceived f avorable treatm ent f

rom the State.
Id . at 177 (¶ 34). ¶63. In Hall v. Stat

e , 4 7 6 S o . 2 d 26, 27 ( Miss. 1985), the def endant Johnny Hall was indicted f or a rm e d robbery and sought to question a coindicted def endant (Dennis Sm art) and

a witness (Elizabeth Hughes) about the separate, unrelated crim inal charges pending against both of them at the tim e of the def endant’s trial. The trial court f orbade questioning Sm art and Hughes about their pending charges. Id

. at 27. The Court exam ined M ississippi Code Section 13-1-13, the controlling evidentiary statute at the tim e, which provided that “[ a]ny witness m ay be exam ined touching his interest i n the cause or his conviction o f any crim e.”
Id

. a t 2 7-28. The Court r ecognized t hat s uch questioning has been a llowed f or purposes of showing m otivation to testif y . Id

. at 28 (citing Rouse v. State , 65 So. 5 0 1 (Miss. 1914);

2 8Perry v. State , 64 S o. 4 66 (Miss. 1914)). The C ourt rejected the State’s argum e n t that the

existence of an im m

unity or leniency

agreem ent had not been def initely e stablished. Id

. at 28. The Court held: The circum stances o f this case s t r o n gly support the adm ission of such evidence. The state relied heavily on the testim o ny o f S mart and Hughes. Sm art a nd Hughes were brother and s i ster, and m ay have c olluded. S m art was charged with t he sam e crim e as Hall. Both Sm art and H u g h e s had c rim i nal charges pending against them at the tim e of the trial. Although there was no evidence o f a b a r g ain, they m ight well have believed that their testim ony in Hall’s case could som ehow af f ect t he disposition of their own. It would be naive to suppose that the absence of a f orm al agreem ent with the prosecution precluded such an e xpectation. Sm art and Hug h e s h a d a n “interest in the cause” (to use the statutory language), and f uller i n q u i r y i nto i t should have b e en allowed. W e believe that the trial judge’s decision o n th i s p o i n t prevented H all f

rom p resenting his def

ense ef f ectively , and thus deprived him of a f air trial. Accordingly , this case m ust b e reversed and rem anded f or a new trial.
Hall , 476 So. 2d at 28. ¶64. The State argues that, unlike Suan and McFarland , where the witnesses had not been prosecuted, the State actually pursued charges against L ee. However, Suan and McFarland lend support to Am

brose ’ s p o s i t i o n because Lee m ay have been subject to probation revocation proceedings f or a num ber of r easons, n o t j u s t h is arm ed robbery arrest, as
presum ed by the trial court. Although the j ur y h e a r d t h a t L e e chose t o be a witness rather than a def endant in t he present case, Am brose’s c hief argum e nt is t hat it did not h ear that Lee also had an additional reason to be a witness, i.e ., the possibility of probation revocation. ¶65. Aside f

rom the obvious distinction t hat the evidentiary statute controlled in Hall , the
State argues that H

all m ay be distinguished because Lee had no c h arges pending at the t im e of Am brose’s trial. The S tate argues that t he jury could not have inf erred t hat L ee was given

2 9leniency in exchange f or t estim o n y because the S tate sought revocation a nd presented the

arm ed robbery case to the g rand jury

. The S tate argues that t he charges were “f ully resolved by the tim e Lee testif

ied a t Am brose’s trial.” A s suggested by Am brose, certain term s of his revocation m ay h a ve included his arrest o r involvem ent in the case sub judice or his association with alleged convicted f elon Dedeaux. At the tim e h e was interviewed by investigators, Lee certainly was subject to prosecution. M oreover, the record shows that Lee continued to be s u

bject to prosecution through trial. The State adm itted that Lee was “still on non-adjudicated probation” at the m otion in limine hearing on June 11, 2015. ¶66. Here, Lee was a principal witness in the sense that he was an ey ewitness to nearly the entire sequence of

events leading to Trosclair’s death on April 7, 2013. W e explained in Suan : The im peachm ent sought here, however, was not of that s ort. H ere the d ef ense sought to show that E ddie Gram m er had been involved i n crim i nal activity but had not been prosecuted. T he point was that Gram m er’s neck was o n the l ine i f h e did not testif

y in a m anner pleasing to the p rosecution. This S u a n w a s entitled to show—or a t least to attem p t t o show. The Circuit Court erred when it ref used to allow s uch cross-exam i nation. Because Gramme r w a s the principal witness f

or t he State, and because so m uch of t he prosecution’s c ase turned upon his credibility , the error is of reversible proportions.
Suan , 511 So. 2d at 148. ¶67. In t he sam e way , L ee’s neck was on the line a t the tim e he was interviewed by police and through trial. Altho u g h L e e ’ s testim ony was not n ecessary to f inding Am

brose guilty of capital m

urder bey ond a reasonable doubt, as f urther explained b elow, we hold that, under the heightened scrutiny

standard of review, the trial court erred by excluding the evidence.

3 0By lim iting Am brose’s cross e xam ina t i o n o f Lee, t he trial court denied Am brose the opportunity

to f u lly challenge Lee’s credibility

. ¶68. Alternatively , the State argues that, even if the evidence was adm issible under Rule 616, it w as properly excluded under Rules 611(a) and 403. W hile the State m ay be correct that the e vidence m ay have been properly excluded u nder Rule 403, the trial court did base its decision to e xclude the e vidence on Rule 403. Here, the trial court e r roneously c oncluded that the e vidence of bias was not relevant, as we h ave held that sim ilar testim ony is probative of the witness’s interest or bias. See Anthony , 108 So. 3d at 397-98 (¶¶ 5-7); M cFarland , 707 So. 2d at 176 (¶¶ 32-34); Suan , 511 So. 2 d at 147-48 ( Miss. 1987); Hall , 476 So. 2d at 27-28. W e decline to conduct a Rule 403 balancing analy sis f or the f i rst tim e on appeal.
C. Harm less Error ¶69. The State argues that, even if cross-exam i nation regarding Lee’s crim inal past should have been perm itted, the trial cour t ’ s exclusion of the evidence was harm less bey ond a reasonable doubt. Am

brose argues t h a t, in light of his own t estim o ny , no overwhelm ing evidence of guilt exists to ren der harm less the trial court’s error i n restricting the im p eachm ent of

Lee. ¶70. “[ E]ven error s i n v o l v i n g a v i o l a t ion o f an accused’s constitutional r ights m ay be deem ed harm l ess bey ond a r e a s o n a b l e doubt where the weight o f the evidence against the accused is overwhelm ing.” Clark v. State , 891 So. 2d 1 36, 1 42 (¶ 29) (Miss. 2004). “The well-settled standard f

or dete r mi n ing whether a constitutional error i s harm less i s whether it appears ‘bey ond a r easonable doubt that the error com plained of did not contribute to the verdict obtained.’” Gillett v. State , 148 So. 3d 260, 266 ( Miss. 2014) (quoting Chapm an v. 3 1California , 386 U .S. 18, 23-24 (1967)). T he c onstitutionally i m proper denial of a def endant’s oppor

t u n i t y t o i m p each a witness f

or b ias, like other C onf

rontation Clause errors, is subject to harm less error analy s is under Chapm an . In Clark , we explained: The corr e c t i n q u iry is whether, assum i ng that the d am aging potential of the cross-exam ination w ere f

ully realized, a re v i e w i n g c o u r t m ight nonetheless say that the error w as h a rm less bey ond a reasonable d oubt. W hether such an error is harm less in a p articular case depends upon a host of f a c t ors, all readily accessible to r eviewing courts. T h ese f actors include the im

portance of the witness’[ s] t e s t i mo ny in the prosecution’s c ase, whether the testim ony was cum ulative, the presence or absence of evidence corroborati n g o r c o n t r a d i c t ing the testim ony of the witness o n m a t e r i al points, the extent o f cross-exam ination otherwise perm itted, and, of course, the overall strength of the prosecution’s case. Clark , 891 So. 2d at 142 (¶ 29) (quoting D elaware v. V an Arsdall , 475 U.S. 673, 684 (1986)). ¶71. The S t a t e a

r g u es that it p roved Am

brose was guilty bey ond a reasonable doubt without
Lee’s testim ony . W e agree. Am brose adm itted to f

ighting Trosclair at the Hill, driving h im

to Lawton’s house, chasing down Trosclair, a nd beating Trosclair a gain. At the Hill, S im s testif i ed t hat she saw Am

brose beating Trosclair, who was not f ighting back. Sim s testif

ied that she begged Am

brose to stop beating Trosclair, but he ref used. Sim s also testif

ied that
Am brose instructed Stevie, D edeaux, and Lee to put Trosclair in the t ruck bef ore they lef

t. Sim s testif

ied t hat they com

p lied with Am

brose’s instructions. Although A m brose claim ed Trosclair did not go any

where against his w ill, Am brose adm itted telling Trosclair that, once he received his speakers, he “wasn’t going to m ess with him any m ore.” ¶72. At Lawton’s house, Lawton testif i ed that he saw Trosclair try to run away , but Stevie, Dedeaux, and Am

b r ose chased him dow n . L a w t o n t estif ied that they began beating

3 2Trosclair. Lawton testif ied that Am

brose hit Trosclair with a f ully i n f l a t e d tire with rim

. Am brose a d mi tted that a ll of them w ere beating Trosclair a f ter they chased him down.
Am brose also a dm itted that the reason every one was beating Trosclair was because Am brose
was angry

about Trosclair breaking into his car. ¶73. A passing m otorist discover e d a n u n c o n s c i o us T r osclair on the side of the road nearby

. Trosclair had signif i cant injuries and was t ied up with a ratchet tow strap. W ithout
Lee’s t estim ony , Am

b rose’s guilt w as proven bey ond a reasonable doubt. Thus, w e conclude that the error excluding evidence of Lee’s crim inal past was harm less bey ond a reasonable doubt.
II. WHETHER THE SOLE FINDING BY THE JURY THAT AMBROSE “CONTEMPLATED THAT LETHAL FORCE WOULD BE EMPLOYED” U N D E R M I S S I S S I P P I C O D E S E C T I O N 9 9
- 1 9
- 1 0 1 ( 7 ) I S CONSTITUTIONALLY SUFFICIENT

. ¶74. Am

brose argues that his death sentence i s invalid because, by i tself , the Section 99- 19-101(7) sentence eligibility f actor f ound by t h e j u r y t h a t A m b r ose “contem

plated that lethal
f orce would be em

ploy ed” is constitutionally insuf f i cient under Enm und v. Fl o r i d a , 4 5 8
U.S. 782 (1982), and Tison v. Arizona , 481 U.S. 1 3 7 ( 1 9 8 7 ). The State responds that the jury ’s s ole f

i nding that Am

brose contem

plated that lethal f

orce w ould be em

ploy e d satisf

ies Section 99-19-101(7). The Court repeatedly has held the f

inding to be constitutional. ¶75. In E n m u n d , t h e U n i ted S tates S u p rem e C o u r t c o n c l u d e d : “B ecau se th e F lo rid a S u p rem e C o u rt af

f irm ed th e d e ath p en alty in t h i s case i n th e ab sen ce o f p ro o f t h a t E n m u n d k illed o r a ttem

p ted t o k ill, an d reg ard less o f w h e th er E n m u n d in ten d ed o r co n tem

p lated t h at lif e w o u ld b e tak en , w e rev erse t h e j u d g m e n t u p h o ld in g th e d eath p en alty an d rem an d f o r

3 3f

u rth er p ro ceed in g s n o t i n co n sisten t w ith t h i s o p in i o n .” E n m u n d , 4 5 8 U .S

. at 8 0 1

. “F o llo w in g E n m u n d v. F l o rid a , M ississip p i am en d e d i t s c a p i tal sen ten cin g sch em e to
req u ire th at a j u ry m

u st f in d th at th e d ef

en d an t actu ally k illed , attem p t ed t o k ill, in ten d ed t h at

a k illin g t ak e p lace, a n d /o r co n tem p lated th a t leth a l f

o r ce w o u l d b e em

p l o y e d i n o rd er to
retu rn an d im

p o se a sen ten ce o f d eath

. C h

. 4 2 9 , S en ate B ill N o . 2 6 9 9 , 1 9 8 3 G en eral L aw s

o f M ississip p i.” D ick erso n v. S t a te , 1 7 5 S o . 3 d 8 , 3 2 (¶ 7 9 ) ( M iss. 2 0 1 5 ) (citin g M iss. C o d e A n n . § 9 9 -1 9 -1 0 1 (7 )). ¶7 6

. In T

iso n , th e S u p r em e C o u rt h eld “th at m aj o r p a r ticip atio n in th e f

elo n y co m m itted ,

co m b in e d w ith reck less in d if f eren ce to h u m an lif

e , is s u f f i c i e n t t o satisf

y t h e E n m u n d

cu lp a b i lity req u irem en t.” T

i so n , 4 8 1 U .S

. at 1 5 8

. “ In Tison , the [ Suprem e ] Court n oted that
M i s s i s sippi had m odif

ied the capital m

urder sentencing schem e f ollowing Enm un d

. ”
Dickerson , 175 So. 3d at 32 (¶ 79) (citing Tison , 481 U.S. at 152, n.4). ¶77. Section 99-19-101(7) provides: (7) In order to return and i m pose a sentence of death the j u r y mu s t ma k e a written f inding of one or m ore of the f

ollowing: (a) The def

endant actually

killed; (b) The def

endant attem

pted to kill; (c) The def

endant intended that a killing take place; (d) The def

e ndant contem

plated t hat lethal f

o rce would be em ploy ed. Miss. Code Ann. § 99-19-101 (Rev. 2015).

3 4¶78. The jury was duly instructed in accordance with Section 99-19-101(7): “To return the

death penalty in t his case y ou m ust f irst unanim ously f

ind f rom the evidence b e y ond a reasonable doubt that o n e or m ore of t h e f o l l o w i ng f

a c ts existed: 1

. That the Def endant actually killed Robert Trosclair; 2. That the Def e ndant a ttem

p ted to kill Robert Trosclair; 3. That the D ef

e ndant intended t h e killing of R obert Trosclair take place; or, 4

. That the Def endant contem

plated that lethal f

orce would be em

ploy e d.” ¶79. Following the penalty phase of the trial, the jury

returned the verdict:
W e , the Jury , unanim ously f ind f rom the evidence bey ond a reasonable doubt that the f ollowing f

a c t s existed a t the tim e of t he com m ission o f the C apital Murder. Section A:
T h at the Def

endant contem

plated that lethal f

o rce would b e em ploy ed. Next we, the jury , unanim ously f ind that the aggravating circum stances of : 1. The C apital of

f ense was c om m itted w hen the Def endant was e ngaged in the com m ission of , or an a tt e mp t to com m it, or f

l i g ht af ter com m itting o r attem pting to com m it, a Kidnapping.
2. The C apital of

f ense was e specially heinous, atrocious or cruel. Exists b ey ond a reasonable doubt and is s uf f icient to im

pose the d e ath penalty and that there are insuf f icient m itigating circum stances to outweigh the aggravating circum s tances, and we f urther f ind unanim ously that the Def endant should s u f

f e r death. ¶80. W e have held t hat the State m ust prove only o ne of the f our f acts listed i n Section 99- 19-101(7). Stevens v. State , 806 S o. 2d 1031, 1053 (¶ 99) (Miss. 2001). Indeed, Section 99-

3 519-101(7) requires that only one of the f actors be f

ound to support a death sentence. Id. (citing Sm ith v. State , 729 So. 2d 1191, 1 218-19 (Miss. 1998); Bell v. State , 725 So. 2d 836,
860-61 (Miss. 1998)). W e also have held that “[ i]n com pliance with Enm und , Section 99- 19-101(7) of t he Mississippi Code requires the jury to f ind b ey ond a reasonable doubt at least

o n e o f t h e f

our enum erated scienter f actors bef ore im posing the death penalty

. ” Ronk v. State , 172 So. 3d 1112, 1145 (¶ 91) (Miss. 2015). ¶81. Recently , we addressed whether the s c i e n t e r p r o v i s i o n s o f Mississippi’s capital sentencing schem e are constitut i o n a l

. I n Evans v. State , 226 So. 3d 1, 39 (¶ 106) (Miss. 2017), the capital m

urder def endant argued that Section 99-19-101(7)(d), which requires that

t h e j u r y f

i nd the d ef

endant contem

plated that lethal f

orce would be em

ploy ed, is an unconstitutional basis f

or a person convicted of capital m urder to be sentenced t o death under
Enm und and Tison

. ¶82. In Evans , w e rejected the sam e constitutional argum e nt that Am brose m ak e s t oday and held that Section 99-19-101(7)(d)’s scienter provision was c onstitutional. Evans , 226
So. 3d a t 39 (¶ 106). Likewise, in Corrothers v. State , we held t hat S ection 99-19-101(7)(d)

was c onstitutional because the State m ust prove o nly one of the f o ur f a cts; it i s not necessary that the State prove intent where the victim actually was killed. Corrothers , 1 48 So. 3d at 322 (¶ 126). ¶83. As noted by the State, t he Court repeatedly h as hel d S e c tion 9 9-19-107(7)(d) to be constitutional in capital cases. See Evans v. S tate , 725 So. 2 d 613, 683-84 ( ¶ ¶ 311-316) (Miss. 1997) (holding that, in light of Enm u nd and Tison , a critical r eview of our ca p i t a l sentencing schem e reveals no constitutional i nf irm ities); see also Ronk

, 172 S o. 3 d at 1145 3 6(¶¶ 91-92); Cox v. State , 183 So. 3 d 36, 61 (¶ 91) (Miss. 2015); B atiste v. State , 121 So. 3d

808, 871-72 (¶¶ 177-178) (Miss. 2013); Knox v . State , 901 S o . 2 d 1 2 5 7 , 1 268 (¶¶ 38-39) (Miss. 2 0 05); Lockett v

. State , 517 So. 2d 1317, 1338 (Miss. 1987). Am brose a cknowledges that the Court h a s declined to declare Section 99-19-101(7)(d) unconstitutional on a num ber of o ccasions, but urges the Court to revisit its prior holdings because the constitutionality of

a sentence with the sole f

inding that the “def

endant contem

plated that lethal f

orce would be

em ploy e d” has never been squarely bef ore the Court. ¶84. Am

brose also q

uot e s t h e C o u r t in Dickerson : “Under Enm und and T i son , a def endant who participated i n the com m i ssion of a f elony , b ut did n ot actually kill or intend to kill the victim , cannot receive the death penalty .” D ickerson , 175 So. 3 d at 31-32 ( ¶ 79). However, the Dickerson Court, rely ing on Evans , c onf irm ed that S ection 9 9-19-101(7) was constitutional. I

d

. at 31-33 (¶¶ 78-79) (citing Evans , 725 So. 2d at 683 (¶¶ 311-316)). ¶85. Am

brose also recognizes that the Court has a f f irm ed a death sentence in which the trial court, sitting as the f

act f inder, m ade the sole f

inding that t he capital m

urder def endant had contem

p lated that lethal f

orce would be used. See B ishop v. State , 812 S o. 2d 934, 937 (¶¶ 1) (Miss. 2002). In addressing the suf f iciency of the evidence on appeal, we held, at a

m inim um , the def

endant had contem

plated that lethal f

orce would be u sed and had taken an active role in the killing. See i d

. at 948-49 (¶¶ 48-52) (“A jury c ould have easily f ound that Bishop k illed, intended to kill, or at least contem p lated t hat d eadly f

orce would be used.”). Although Am

brose does not raise a suf

f iciency of the evidence argum ent, the evidence here

was suf f icient t o satisf

y Enm und culpability , giv e n A mbrose’s m ajor participation of the kidnapping, com

bined with reckless indif

f erence to hum a n lif

e. 3 7¶86. In support of Am brose’s argum ent, he relies on Randall v. S tate , 8 06 So. 2d 185, 232-
234 (¶¶ 132-141) (Miss. 2001), in which the jury m ade the s ole f inding that Arm on Randall had contem

plated that lethal f

o r ce would be em

ploy ed. Rely i ng on White v. State , 532 So. 2d 1207 (Miss. 19 8 8 ) , R a ndall argued that the j ury ’s sole f i nding allowed him to be sentenced to death on nothing m ore than t o r t f o r s e e a b ility

. Randall , 806 So. 2 d at 232 (¶ 134). The Randall Court quoted what the Court wrote in White : W e are less than certain o f the precise dif f erence between Subsection (c), “the def endant intended that a killing t a k e place,” and Subsection (d), “the def endant contem

plated that lethal f

orce would be em

ploy ed.” Subsection ( c) has ref erence to the def

endant’s m ental purpose and design that som e one’s l if e be taken. But what of S ubsection (d)’s contem plation of lethal f

orce? The t wo surely a re not sy

nony m ous, although “contem

plate” is one sy

nony m f or intend. See Roget’s International Thesaurus § 6 5 3.7 (4th ed. 1 977). This alone exclude s the notion that Subsections ( c) a n d (d) describe t wo m utually exclusive categories of

culpability

. Caref ul attention to the King’s English, def initional and gram m a t ical, [ led] to the view that S ubsection ( c) is subsum ed in Subsection ( d ) , f or we cannot im a gine a case in which a def endant intended that a k illing take place but som ehow d id not contem plate use of letha l f

o r c e. In this sense, Subsection (c)’s “intended that a killing take p lace” is surplusage a nd m ay with prof it be set aside. But the converse is not necessarily so. O n e m a y contem plate lethal f o rce while stopping short of a def i nite plan or design to kill. I n a s e n s e , Subsection (d) d escribes a contin g e n t i n tent. W here, as a part of pre-crim e planning, a def

endant includes in his plans the substantial probability that f atal f orce will be e m

ploy ed, Subsection (d) is satisf ied. On the other hand, m ere tort f oreseeability

–an objective, r easonable m an a pproach–f

a l ls well short of what the statute requires.
Randall , 806 So. 2d at 232 (quoting White , 532 So. 2d at 1220-21). ¶87. In Rand

a l l , t he Court agreed with Randall’s argum ent “that because the jury f ound
‘contem plation’ alone, the language of White required the jury to f i nd that he had som e sort

o f ‘ p r e - c r i m e,’ ‘contingent intent,’ or plan that e stablishes a m ental state bey ond m ere

3 8f

oreseeability or reckless indif f erence to hum a n lif

e.” Id

. at 233 (¶ 1 35). T he C ourt held that “[ b]ecause the instruction f ailed to properly instruct the jury on t he m ental state r equired, this instruction was erroneously given.” Id

. ¶88. The R andall Court’s reliance on W h i t e w a s m i splaced. First, the White Court was addressing whether the evidence was legally insuf f i cient to support a sentence of death, not

w h e t h er a sole S ection 9 9-19-101(7)(d) f inding w as constitutional. White , 532 So

. 2 d a t 1219-20. Second, t he White Court unequivocally said: “ More precisely , this s entence of death m ay be upheld only if we have bef ore us a r e c o r d w h ich contains evidence legally suf f i cient that the jury m ay have f ound that W illie Lee W hite, Jr., killed, attem pted to kill, intended that a killing take place, o r contemplated that l ethal force would be employed .” Id

. at 1219 (em

phasis added). ¶89. I n d e e d , “ o n l y o n e of Subsection (7)’s f acts m ust be f ound.” I d

. at 1220. “More specif ically , there is no e v i d e n ce that W h ite m ade any attem pt to kill Lewis, or that he contemplated that lethal force would be used .” Id . at 1221 (em phasis added). The White
Court continued: “ Because n othing in the record legitim ately suggests that W hite killed or

contem plated any p hy sical harm to Lewis, the death verdict dies.” Id . at 1221. The Court conclu d e d : “ In the present state of the record, w e hold that the evidence was legally insuf f icient to enable a rational trier of f a ct to f ind bey ond a reasonable doubt t hat W illie Lee
W h ite, Jr., killed, attem

pted to k ill, i ntended that a killing take place, or contem plated that lethal f o rce would be em

ploy ed.” Id . at 1222. ¶90. To the extent that R andall , purportedly rely ing on White , holds that a sole f inding that

a c a p i t al def

endant contem

plated that lethal f

orce would be e m

ploy ed i s insuf

f icient, it i s 3 9wrongly decided. White issues no such h olding; rather, White s tands f or the p roposition that

a death verdict m ay be upheld i f the legally suf f icient evidence s u

pports a f inding that the def endant contem

plated that lethal f

orce would be used. Id . at 1221. ¶91. Even though Randall ’s reliance on White is m isplaced, Randall is distinguishable in

som e s ignif

icant way s. The S t ate argues that Randall is dif f e rent because there was no evidence that Randall h a d participated in the killing, and pr o o f o f h is participation in the underly ing robbery appeared t o be no m ore than his possession of a gun and p resence at the

scene. See Randall , 806 So. 2d at 233-34 (¶¶ 136-141). The Stat e argues that the stark dif f erence is Am

bros e ’ s l e v e l of involvem ent in both the k idnapping and the killing. The
State also points out that i n Randall , the Court held t hat the evidence to support a f inding that Randall contem

plated t hat lethal f

o rce would b e em

ploy ed was l egally insuf

f icient, whereas here, Am brose does not c hallenge the legal suf f iciency of the evidence on the jury ’s f inding.
See id

. at 234 (¶ 141) ( “The m ere possession of a gun when there is no evidence that there

was a plan to kill, although suf f icient under t he f

e lony -m urder statute, d oes not establish that there was a “substantial probability that f atal f orce will be em

ploy ed.”). ¶92. The Court’s decision in A b r a m v . S t a t e i s s o me what a t odds with Randall

. See
Abram v. State , 606 So. 2d 1015, 1041-42 (Miss. 1992), overruled on other grounds by
Foster v. State , 961 So. 2d 670 (Miss. 2007) ( a jury ’ s single statutory f inding under Section 99-19-101(7) that the capital def e ndant contem

plated that lethal f

o r c e would be em

ploy ed is adequate if supported by s uf f icient evidence). In Abram , we looked to the White Court f or guidance and wrote:

4 0In the f ederal context, there is little doubt that the evidence here is suf f icient to satisf y the Enm und culpability requirem e n t g iven Abram ’s “m ajor participation in the f

elony c o m m i tted, com

bined with [ the supportable f i nding] of r eckless indif

f e rence t o hum an lif

e.” Tison v. Arizona , 481 U.S. 137, 158, 107 S. Ct. 1676, 1688, 95 L. Ed. 2d 127, 145 (1987). However, a s noted in Tison , and af f irm ed in M

innick v. State , 551 So. 2d 77, 98 (Miss.1988), reversed on other grounds [ by ] 4 98 U .S. 146, 1 11 S. Ct. 486, 112 L. Ed. 2d 489 (1990), Mississipp i by s tatute requires m o re i n the f elony -m urder scenario than m ajor p articipation and reckless i ndif f erence to the value of hum a n lif

e. [ T ison ,] 4 8 1 U

. S

. at 154, n.10, 107 S. Ct. at 1686, n.10, 95 L. Ed. 2d at 142, n.10. And obviously , “m ere t ort f oreseeability

—an objective, reasonable m an approach—f alls well s h o r t o f what the statute requires.” White v. State , 532 So. 2d 1207, 1221 (Miss.1988).
Abram , 606 So. 2d at 1041-42. ¶93. The Abram Court explained: The circuit court was right to conclu d e t h a t som ething m ore than a “possibility ” is required. But the [ trial] court went t oo f ar in the other direction when it concluded t hat t here are only three tests under Enm u nd , and that under § 99–19–101(7), subsections (c) and (d) are conju n c t i v e . The court at t im es appeared to zero i n on t he p recise m eaning of subsection (d) by restricting its application to those killings which a r e a “ necessary or probable r esult of the initial f elony .” But the c ircuit court ultim ately ap p l i e d a m o re restricted interpretation of § 99–19–101(7)(d) by requiring proof of actual intent to kill, an interpretation which f

or all practical purposes blurs any distinction between subsections (c) and (d) of § 99–19–101(7).
Abram , 606 So. 2d at 1042. ¶94. The Abram C ourt noted t hat we h ave articulated at least som e dif f ere n c e b e t ween subsection s ( c ) and (d). Id

. However, in Abram , we u nequivocally rejected the idea that “there m u st be proof in either case of an actual intent or def inite plan or design to kill.” Id

. The Abram Court held t hat the trial court erred i n its interpretation and application of Section 99-19-101(7)(d) to the f

acts of the case because the j ury ’s f inding that Abram contem plated

t h e use o f lethal f

orce was within the perm i ssible range of law and e vidence. Id

. at 104 3

. 4 1However, the Court cautioned that, on rem a nd, absent new adm i ssible evidence suf f iciently im p licating Abram , a f

inding under Section 9 9

- 1 9

- 1 0 1(70(d) would not be justif ied. Id

. Thus, although the Abram C ourt’s deci s i o n addressed the suf f iciency of t he evidence, it properly held that a sole f i nding under Section 99-19-101(7)(d) would b e justif ied if supported by

suf f icient evidence. Id

. ¶95. Again, Am

brose does not c hallenge t he suf f i ciency of the evidence. To the extent he does, the argum e nt i s without m erit. For t he f oregoing reasons, we reaf f irm t he well settled principle that a sole f

inding under Section 99-19-101(7)(d) is constitutional.
III. WHETHER THE TRI A L C O U R T E R R E D IN THE SEATING OR REMOVAL OF CERTAIN JURORS

. ¶96. Am

brose argues that the trial court reversibly erred b y (1) seating Juror Gary Garner,

an adm ittedly biased juror who served in both phases o f trial; (2) and im properly rem oved
Juror Jef f rey J e nkins, an u nbiased juror, and replaced him with an alternate at the conclusion of the penalty

phase evidence.
A. Juror Gary Garner ¶97. During voir dire, the trial court asked w hether any juro r s o r t h e i r f am ily m em

bers currently or have b e en in the past connected with law enf orcem ent. Eleven potential jurors answered in the af

f i rm ative, including Garner. The entire exchange between Garner and the trial court is set out below:
THE COURT: Mr. Garner?
MR. GARNER: Yes. THE COURT: There y ou are.

4 2MR. GARNER: My son is a supervisor with Biloxi PD.
THE COURT: Is he now?
MR. GARNER: Now, y es, Sir.
THE COURT: O k a y . Y o u ’ v e g o t a r e a l c lose co n n e c t i o n w i t h l a w

enf o rcem ent. Does he discuss cas e s w ith y ou and his job?
MR. GARNER: There are som e things t hat h e a nd I discuss as his pastor

that we have discussed, and there are s ituations t hat I am aware of that he is involved in, y es. THE COURT: Okay

. W ould the f act that y ou take an interest in his job, and he is active in l aw e nf orcem ent at this t im e, w ould that cause y ou m ay

be to lean toward the law enf orcem ent side of this case?
MR. GARNER: Yes, sir. I’m actively involved in his lif

e, not his work.
THE COURT: Not his work, okay . Good. Thank y ou. MR. GARNER: Yes, sir. ¶98. Am

brose did not f

ollow up with G arner o n the issue of bias. Garner was accepted by
Am brose without a challenge f or cause or exercising a perem ptory strike and w as seated on the jury

. ¶99. A m

b r o s e a r g u es that G arner’s response to t he q uestion asking whether he wo u l d

m ay b e lean toward the l aw enf o rcem ent side of the case was an adm ission that he was biased.
Am brose relies on Brown v. State , 164 So. 3d 1 046 ( Miss. C t. App. 2014), in support of his
argum ent. Am

brose’s reliance o n Brown is m isplaced f or two reasons. First, the bias was unequivocal because the juror stated “it would b e hard to be im partial.” Brown , 164 So. 3d

at 1048 (¶¶ 3-4). S econd, the issue was addr e s s e d w i t h in the c o ntext of a claim f or

4 3constitutional inef f ective assistance of c ounsel f or f ailing to challenge the allegedly biased juror. I d . at 1051 (¶ 12). ¶100. Am

brose urges t he Court t o review the issue f or plain e rror because his f undam ental right to a f

air trial by an im

p artial jury has been violated. “As a rule, the Suprem e Court only addresses issues on plain error review when the error of the trial court has i m p acted upon a f undam ental right of the def endant.” Dora v. State , 986 So. 2d 917, 9 24 (¶ 17) (Miss. 2008). “The right to a f

air trial by an im

partial jury is f

undam ental a nd esse n t i a l t o our f orm of
governm ent. It is a r ight guaranteed by both the f ederal and state constitutions.” Carr v. State , 655 So. 2d 8 2 4, 840 (Miss. 1995). “Pl a i n - e r r o r review i s properly u tilized f or ‘correcting obvious instances of injustice or m isapplied law.’” A rm stead v . State , 196 So. 3d 913, 916 (¶ 11) (Miss. 2016). “To determ i n e i f p l a i n error has occurred, we m ust determ ine if the trial c ourt has deviated f rom a legal rule, whether the error i s plain, clear or obvious, and whether the error has prejudiced the outcom e of the trial. Id

. ¶101. In Archer v

. S t a t e , 9 8 6 S o . 2 d 9 5 1, 958 (¶ 27) (Miss. 2 008), the Court, without discussing whether plain error re v i e w was em ploy ed, addressed the def endant’s a rgum ent that a ju r or should have been rem oved by the trial court sua sponte during voir dire due to the juror’s relationship with the victim a nd h er circum stance as a victim herself

. First, the
Court held that the issue w as procedurally barred by t he f ailure t o o b

j e c t t o t he potential juror’s com

petence to sit bef

ore the jury was em

paneled. Id

. at 958 (¶ 28). Next, the Court held t hat in lim ited circum stanc e s , the Court will set aside the p rocedural bar and reverse when it is clear that a j uror disqualif ied under M ississippi Code S e c t i o n 13-5-67 was not

rem oved bef

ore the jury retired t o consider its verdict. I d

. The C ourt went on to address the 4 4substantive argum ents advanced b y t he d ef endant, h olding that the def e ndant’s claim was without m erit a nd the trial court did not err by not sua sponte rem oving the juror. I d

. at 959 (¶ 959). ¶102. I n A r c h e r , w e a l s o held that “[ a] party who chooses not t o c h a l l e n g e a j u r o r
perem ptorily w hen he h as u nused challenges m a y n ot thereaf ter seek to put the trial court in

error because the c ourt declined to perm it the juror to be challenged f or cause.” Archer , 986
So. 2d at 957-58 (¶ 26); see also Hansen v . S tate , 592 So. 2d 114, 129 (Miss. 1991). “To h old o therwise would allow the def endant to invite e rror and l ater take advantage of it o n appeal.” Archer , 986 So. 2d at 957-58 (¶ 26) (citing Hansen , 592 So. 2d 129–30). ¶103. Here, we d ecline t o em ploy plain error r eview because Am b rose had used only f

our
perem ptory strikes at the tim e Garner was t en d e red and Am brose accepted him

. At the

c onclusion of jury s election, Am brose had f

our unused perem

ptory challenges. T h u s , t h e trial court’s f

ai l u r e t o r e move Garner does not constitute r eversible error u nder the well settled rule that a party who chooses not to challenge a juror perem p t o r i l y w h en he has unused challenges m ay not t h e r e a f ter seek t o put the trial court in error b ecause the court declined to perm i t the juror to be challenged f o r cause. A rcher , 986 So. 2 d a t 957 (¶ 26). ¶104. E v en assum i ng that G arner’s response m ay be construed a s dem o nstrating bias, the Eighth Cir c u it Court of Appeals 1 4 has addressed a nearly identical scenario with the sam e

14 A m b ro se relies o n a d i f

f eren t E ig h th C ircu i t o p i n i o n i n J o h n so n v. A rm o n tro u t , 9 6 1 F

. 2 d 7 4 8 , 7 5 5 -5 6 (8 th C i r. 1 9 9 2 ) (h o ld in g h arm less erro r an a l y sis d o e s n o t ap p ly in an in ef f ectiv e assistan c e o f co u n sel claim f o r f a ilu re to ch allen g e a j u ro r f o r cau se b e cau se th e p resen ce o f a b iased j u r y i s n o less a f u n d am en tal stru ctu r al d ef ect th an th e p r esen ce o f a b iased j u d g e). A m

b r o se’s relian ce o n th e A rm o n tro u t o p in io n is m i sp l aced b ecau se (1 ) th e claim w a s f

o r in ef f ectiv e assistan c e o f co u n sel, an d (2 ) th e case t u rn ed o n w h eth er h arm less 4 5procedural posture. In United States v. Johnson , 688 F.3d 4 94, 500-01 (8th Cir. 2012), the

Court was f

a c e d w i t h the issue of whether “whether t he em p aneling o f Juror S.R., who adm itted t h e r e ‘ m ight be a possibility ’ she would f ind law enf

orcem ent of

f icers m ore credible than other witnesses, violated Johnson’s S i xth Am endm ent r ight to be tried b y an im partial jury [ .]” The Court of A ppeals declined to em plo y p l a in error review on appeal when reviewing a scenario i n which the def endant f ailed to o bject to the seating of a juror during voir d ire when the basis f

or t he objection was then known. Id

. at 500. T he Court of Appeals

wrote that the “f

ailu r e t o o b

j e c t a t the tim e the jury i s em paneled operates as a c onclusive waiver if the basis o f the objection i s k n o w n o r might have been known or discovered through t he exercise of reasonable diligence.” Id

. at 501. The reasoning f o r t he rule is sim ple: “if a def

endant is a llowed to f

orego challenges f

or-cause to a

biased juror and then allowed to have t he conviction reversed on appeal because of that juror’s service, that would be equivalent to allowing the def endant to plant an error and grow a risk-f ree trial.” Id . at 501-02. ¶105. Here, on a

ppeal, Am

brose argues that Garner was biased based solely on h is response when asked if his r elationship with his policem an son would cause h i m t o “m ay be lean toward the law enf

orcem ent side of this case.” Undoubtedly , the basis f or the objection that
Am brose now advances was known during v oir dire. W e f ollow t he guidance of the Court of A ppeals in Johnson and decline to em ploy plain error review. Am brose waived his right

to challenge the seating of allegedly biased Juror Garner by not challenging him during voir

erro r an aly sis ap p lied

. 4 6dire, because t he b a sis f or the objection was t h e n k n o w n. See Johnson , 688 F.3d at 500 (holding that by f

ailing to object to the seating of the a l legedly biased juror d uring voir dire, the def e ndant intentionally

relinquished or abandoned a known right). ¶106. A s t o the m erits, the State argues that it is “painf ully o b v i o u s ” t h a t G a r n e r ’ s substantive answer to the question of whether his rel a t ionship would cause h im to lean toward the law enf

orcem ent side of the c ase was “no” even though he led in with “y es, sir.” The State also argues t hat the trial court’s f ollowup statem e nt, “Not his work, okay

. Good. Thank y ou[ ,]” conf

irm s that the trial court understood Garner t o be answering the question in t he negative. Furtherm ore, the State points out h ow Garner responded to the trial court’s f ollow up s t a t e me n t w ith “Yes, sir,” which was not a n actual response t o a question. The
State argues that t he record dem onstrates that neither t he trial court n or Am brose p erceived
G a r n e r ’ s response as dem onstrating bias. T he State’s interpretation of the record is persuasive, and t h u s , w e cannot s ay that evidence of bias is plain and obvious, based on a reading of

the entire exchange in context.
B. Juror Jeffrey Jenkins ¶107. Am

b r o s e argues that the trial court reversibly erred at the conclusion of the penalty phase e vidence w hen i t rem oved Juror Jef f rey Jenkins, who asserted his lack of bias, and then

com pounded the error by replacing him with an alternate rather than gra n t i ng a m istrial. During jury selection, Jenkins responded that h e knew Am brose’s u ncle, Mark T urner. The exchange was as f

ollows:
MR. JENKINS: Yes, s ir. In ref erence , w h e n she was m e ntioning Mark Turner, I also k now him by Pastor Turner, but I know him

. 4 7THE COURT: I see. Okay , would the f a c t t h a t y o ur pastor is going to testif y in this case cause y ou to autom atically lean toward the side that he testif

ies f o r?
MR. JENKINS: He is not m y pa s t o r , y our Honor. N o, sir. His nephew

and m e were real good f

riends when we were y oung. THE COURT: Okay . W ould that have any ef f ect on y o u?
MR. JENKINS: No, sir. W hen s he m entio n e d t h a t I was like t hat is the

sam e pastor. I just want to be truthf ul. That’s all. ¶108. Jenkins ultim ately w as seated on the jury without a challenge f or c ause lodged by

the
State or Am

brose. Jenkins r em a ined o n the j ury throu g h t h e c u l pability phase of trial, returned a guilty verdict, and heard the testim ony presented during the p enalty phase. During

t h e p e n a l t y phase, Am

brose called several f

am ily m e m

bers and f

riends to testif

y on hi s behalf

. ¶109. During a recess f

ollowing the conclusion of the m itigation witnesses’ testim ony , but bef ore the jury

was instructed, a j uror subm itted a note disclosing his personal relationship with A m brose’s f am ily

. The note read: “I cannot sit on the p enalty phase of the trial due to

m y p ersonal relationship with the def endant’s f am ily

. Jef

f rey Jenkins.” Am

brose suggested

to the trial court that counsel “should voir dire him , f ind out what his relationship is, and it

m ay be that it doesn’t am ount to any thing.” Then Am

brose m oved f

or a m i strial o n the basis that the juror h ad m isinf

o rm ed the trial court and he s hould n ot have been on the j ury at all. The trial court brought in Jenkins and allowed voir dire. Jenkins gave the f ollowing testim o ny :

4 8Q. Mr. Jenkins, y ou s ent o ut a note stating that y o u could not sit in on the punishm e nt phase of this trial because y ou’re related to som e o ne. Is that true?
A. No, m y personal r e lationship is with the def endant’s f a t her’s side of the f am ily

. Q. Personal relationship with the def endant’s f a ther’s side of t he f

am ily ?
A. Yes. Q. Are y o u

talking about W illie Dedeaux or Mark Turner?
A. Mark Turner. Q. Okay . Do y ou know the def endant?
A. Af t er the testim ony , I knew him when he was a y oung child. Because when I f irs t w e r e in the Jury pool when y ou asked did any body know Mark Jackson–not Mark Jackson, Mark Turner, I raised m y h and, said I knew him as Pastor Turner. I’m good f riends with his nephew. So I didn’t realize u ntil the penalty p hase when they cam e up and m entioned Luke Turner I realized at that tim e that at the tim e when h is f ather was killed I was stay ing -- I was still good f r iends with his cousins Sam and Jonathan. And I rem em ber Rahim as a y oung child when he c a me through. I say he was around two or thr e e , y o u know, so m a n y y ears ago, he would com e by

and visit his grandm other. Q. So at the tim e that w e were doing the voir dire when y ou were sitting out f r ont and we were picking Jurors –
A. Yes, sir. Q. -- y ou didn’t realize that y ou were related to Rahim in som e way ?
A. I’m not related to him

. I d i d n ’ t r e a l i z e w h o Rahim ’s f ather was. Rahim ’s f

a t h e r ’ s last nam e is Turner. W hen y ou asked did I know Mark Turner, I raised m y hand, said y es, I do k now Mark Turner. But I didn’t realize until w e cam e up to the penalty ph a s e a n d they m e ntioned that his f

ather was Luke Turner, at that tim e I’m like, I know Luke. And when Mark cam e up and I realized that t hey were brothers, because at t he tim e w hen y ou was asking the jury pool, y o u never asked

4 9was Mark and Luke brothers. If y o u would hav e s a i d t hat, I w ould have said y es, sir. Q. You knew Luke Turner, Junior?
A. I knew Luke, too. Q. How old are y ou?
A. I’m

44. Q. Okay

. W ell, y ou were very y oung when y ou knew L uke T urner, senior, weren’t y ou?
A. I w as very y oung. B ut as I s tated, I was good f riends with his -- which is the de f e ndant’s cousin, would be with Jonathan, Rahim and Sam Turner. A nd I’m still good f r iends w i t h them today

. But I was very y oung, y es, but I happened to be, if he w a s two, I happened to be twelve at that tim e. Q. W ell, do y ou think y ou can’t be f air and im

partial in this?
A. In the penalty

phase? Q. Yeah –
A. I don’t f

eel c om f ortable. I can b e f

air and im p artial, as I stated. I still stand by m

y original verdict. But as f ar as what the p enalty phase, I just wanted to m ake i t be known and be tru t h f u l that I knew the f

am ily

. A n d , y o u k n ow, I have been with m y Jurors f or the last t hree or f

o ur day s , and I just w anted t o b e t r u t h f u l to the court to say , hey , I know Mark Turner. I knew the def endant as h e c am e along. B ut, y o ur H o n o r , I didn’t want to be, like, I was hiding som e ty pe of secre t , because I d on’t f

eel com f ortable sitting in t h e r e , a n d I got this backgroun d , unf

air background to say I know this m an. So I just wanted to be h onest. As I stated, when I did i n the beginning, I just wanted to be h o n e s t , s a y , hey , I k now him

. I don’t w ant it to c om e back either way , because if I didn’t m ake this be known, y ou know, to m e it gives the def

endant an unf

air advantage because I got a personal relationship with M ark, Ms. Bernice, Jonathan, S am , Sherrell. I know the whole f

am ily . Like I said, y our Honor, we stay – Q. You didn’t recognize the nam e Rahim ? 5 0A. No. I knew a lot of -- I know a lot of dif

f erent people with Q. Am

brose?
A. No, I d on’t know Am brose. Like I said, I know a lot of dif f e rent people with Masonic nam es, because his c o usin W ajida, t h e y got Masonic nam es. I didn’t recognize Rahim

. I haven’t seen him since he was two. Q. W ell, y ou don’t think y o u could be f air a n d im partial in deciding what his punishm ent should be?
A. I m e an, y eah, I can be f air and im partial. But a s m y note s aid, I didn’t f eel com f ortable going into that situation without advising the court and t h e j u dge and things like that. I didn’t f eel com f ortable to go in t hat situation with m y jurors to keep this secret that I knew the def endant, and I knew Mark. I m ean, y o u c an ask m e hist o ry about the f am ily , I know it. Q. Have y ou discussed this with any jurors?
A. No. So none of

the other Jurors know about this?
A. I me an, I discussed with them that I was c o m ing out b e c a u s e o f my personal relationship. And I told t he f orem an that I need t o w rite a n ote advising the j ury that I k now the def

en d a n t

. I d on’t know the def e ndant, but I know the def endant’s im m e diate f

am ily

. Q. So y ou told the other jury m em b ers about that, at least som e of them ?
A. Yeah. I wrote the note. They knew why

I was com ing out, y es. Q. You say

they , who are y ou talking about?
A. I me an, we were all in the r oom . T hey knew the r e a s o n w h y I w a s stepping out because I wrote the note. Q. The other thirteen people in there know why y ou’re in here now?
A. Yes, sir. ¶110. T h e t r i a l c o u r t t h e n h e a r d a r g um ents f or and against the grant of a m is t r i a l

. Am brose’s counsel s p o k e to the concern a b out Jenkins’s possible i nf luence on the other 5 1jurors and what Jen k ins m ay h ave told the other jurors about Am brose’s f am ily

. The trial

court ask e d w hat prejudice Am brose would suf

f er i f the juror w as r em oved. Am brose’s counsel responded that “W e don’t know. W e don’t h ave any f i rm inf orm ation one way or the other regarding this m an. Quite f rankly , part of our team thinks he is a positive inf luence. And others a re uncertain, and y ou know it’s one of those deals.” The t rial court denied the

m otion f or a m istrial and then heard f rom counsel whether Jenkins should b e rem oved and replaced with an alternate. ¶111. The State argued t hat Jenkins should be rem oved b ecause he h a d i n d i c a ted that his personal relationship with Am brose’s f am ily would g ive A m

brose an unf

a ir adv a n tage. Am brose’s counsel responded, “I can’t deny what he s aid, y our H onor. He did, in f act, say that. I w ould like to see h im stay o n the jury .” The trial court determ ined that, based on the

n o t e a n d J enkins’s t estim o n y that c ontinuing to serve would be an unf air advantage to Am brose, Jenkins should be rem oved f rom the jury

. Jenkins was r em oved and replaced with the f irst alternate Juror Glen Turner. ¶112. The s t a n d a r d o f r e v i e w f or the denial of a m i strial i s a b use of discretion. Hutto v. State , 227 So. 3d 963, 984 (¶ 66) (Miss. 2017). “A trial judge need declare a m i strial only when there is an error in t he proceedings resulting i n substantial and irreparable prejudice to the def e n dant’s case.” I

d

. Am brose argues that t he Court should em ploy a d e novo standard of review because the denial of the m i strial violated the Constitution. ¶113. This Court disagrees with Am brose’s p roposed s t a n d a r d of review b ecause neither

case c ited by Am

brose em ploy s a de novo standard of review to the p resent scenario. As discussed m ore f

ully below, the Court addressed a nearly identical issu e r ecently and held 5 2that the trial court’s decision to dism iss a juror f or good cause and substitute a n alternate is reviewed f

or an abuse of discretion. See E vans , 226 So. 3d at 25 ( ¶ 55). Moreover, the
Court held that a def

endant m u st show actual prejudice f r om the exclusion and substitution.
Id . Thus, we review the trial court’s decision f or an abuse of

discretion. ¶114. Am

brose a bandons the exact g rounds f or a m istrial he initially m ade to t he trial court,
i.e. , Jenkins m ay

have im p roperly inf luenced the jury . To the extent that Am brose reurges the argum ent, the t rial court did n ot abuse its discretion in deny ing the m otion f or the m istrial based o n Jenkins’s testim ony and as evidenced by Am b rose’s c ounsel’s uncertain response
to t he trial court’s i nquiry as to what prejudice Am brose would s uf

f er i f Jenkins was rem oved
f rom the jury

. ¶115. In Am

brose’s m o t ion f

or a new trial or, alternatively , f or a c quittal notwithstanding the verdict, A m

brose a rgued that the trial c ourt had erred by rem oving Jenkins and replacing h im with the f irst alternate juror in v iolation of Mississippi Code Section 13-5-67. On appeal,
Am brose advances the sam e argum ent he advanced in his post trial m o tion. ¶116. Section 13-5-67 provides, i n relevant part: “An a l ternate juror w ho does not replace

a r egular juror shall be discharged at the tim e the jury retires to consider its verdict.” Miss. Code Ann. § 13-5-67 (Rev. 2012). 15 Am brose argues that, under the plain language of the statute, Turner s hould have been discharged and should not have been available to replace Jenkins. Am

brose argues that o nce deliberations have com m e nced, n o replacem ent of a juror

15 S ectio n 1 3 -5 -6 7 also p ro v id es, in p art: “A ltern a te j u ro rs in th e o rd er in w h ich th ey are called sh all rep lace j u ro r s w h o , p rio r to th e tim e th e j u ry retires to co n sid er its v erd ict, b eco m e u n ab l e o r d isq u alif i ed to p erf

o rm th eir d u t ies.” M iss. C o d e A n n . § 1 3

- 5 -6 7

. 5 3w i t h an alternate is perm itted. In support, Am brose relies on B alfour v. State , 5 9 8 S o . 2 d 731, 754 (Miss. 1992) (holding that it was error f or the trial court to excuse a juror af ter the jury had retired to deliberate a sentencing verdict), and Folk v. State , 576 So. 2d 1243, 1251-
52 (Miss. 1991) ( holding the tr i a l c o u r t erred b y substituting an alternate juror af ter the alternate juror had been dism issed f rom jury ser v ice a n d af ter t he jury had been in deliberations f

or alm ost two hours). ¶117. Am

brose contends t hat, f

or purposes of a death penalty case governed by Mississippi Code Section 99-19-101(1), the discharge of alt e r n a tes occurs when t he jury retires to deliberate guilt during the culpability phase. ¶118. Section 99-19-101(1) provides, in part: (1) Upon conviction or adjudication of g uilt of a def endant of capital m

urder o r other capital of

f ense, the court shall conduct a separate sen t e n c i n g proceeding to determ ine whether the def e ndant should b e s entenced t o d eath, lif e im prisonm ent without e l i g i b ility f or parole, or lif

e im prisonm e nt. The proceeding shall be conducted by th e t r i a l judge bef ore the trial jury a s soon as practicable. If

, through im

possibility or inability , the trial j ury is unable to reconvene f

o r a hearing o n the issue o f penalty , having d eterm i ned the guilt of the a c c u sed, the trial judge m ay sum m on a jury to determ ine the i ssue of the im p osition of

the penalty

. Miss. Code Ann. § 99-19-101 (Rev. 2015). ¶119. Am

brose argues that the statute m andates that the trial jury hears the sentencing p hase, and if thr o u g h im

p ossibility or inability the trial jury is unable to reconvene, the only statutory s olution available is to sum m on a j u ry to act. Am b rose argues that the Court narrowly construes the capital s entencing s tatutes. See B ell v. State , 1 60 So. 3d 188 (Miss. 2015). Am

brose argues that a m istrial is the only option if a juror cannot continue serving

once guilt delibera t i o n s c o m m ence, s ince a unanim ous twelve p erson j ury is required to 5 4return a valid verdict under Mississippi’s C o nstitution, caselaw, a nd the Unif orm Rules of County and Circuit Court Practice in ef f ect at the tim e. Am

brose also argues that the f ailure

to grant a m i s t rial v iolated his Fourteenth Am endm ent r ight d ue to “state p rocedural shortcom i ngs” af

f ecting his “substantial and legitim ate expectation[ s].” ¶120. Alternatively , Am brose argues that the trial court abused its discretion by rem oving and r eplacing Juror Jenkins b ecause there was no evidence Jenkins was u nable t o continue

to perf orm his duties f

or any reason, incl u d i n g bias. A m b rose argues that the record was “devoid of evidence” that Jenkins had “lied under oath or withheld inf orm a tion” a nd he had assured t hat he was c apable of being a f air a n d im partial j uror. Am

brose argues that the trial

court has “no license to rem ove jurors and r eplace them with alternates willy n illy .” Jenkins

was not rem oved “willy nilly ;” rather, the note and Jenkins’s own testim ony provided good

c a u s e t o r e mo v e h im f

rom the jury

. See Shaw v. State , 540 So. 2d 26, 28 (Miss. 1989) (holding that the dism issal of a j uror f or good c ause and his replacem ent with an alternate is within the sound discretion of the trial judge). ¶121. The State a rgues that A m brose is procedurally b ar r e d b e c ause a n objection on one
g r o u n d w a i v es all o ther grounds on appeal. See Rubenstein v. State , 941 So. 2d 735, 760 (¶87) (Miss. 2006)). Although Am brose did not raise the statutory argum e nt at tr ial, he raised the argum ent in his post t rial m otion. “On n um erous occasions, th[ e] Court, has held that an objection on one ground waives rem a ining grounds f or purposes of

appeal and that the f ailure to raise an issue i n the trial court requires this Court to im pose a procedural bar

on appeal. Notwithstanding [ an appel l a n t ’ s] f ailure to raise [ a] specif

ic ground bef

ore the

5 5trial court, th[ e] Court m ay , alternatively , consider the m erits of t he argum ent.” Evans , 725

So. 2d at 638 (¶ 48). ¶122. Af ter Am brose f iled his initial brief

, t he Court h anded down E vans v . S tate , 226 So. 3d 1, 24-25 (¶¶ 53-55) (Miss. 201 7 ) , a d d r essing the precise a rgum ent Am brose now advances. In Evans , the capital m urder def e ndant T im othy Evans argued that his state and
f ederal r ights to a f

air trial by a q u a l i f

i e d jury a n d the state c o nstitutional and statutory guarantees of j ury sentencing in d eath penalty cases were violated by the departure of Juror Tany a Ladner and the seating of an alternate juror, Larry L ind, during the s entencing phase.
Id. at 24 (¶ 53). ¶123. Af ter guilt phase deliberations, but prio r t o t h e s e ntencing phase, Juror Ladner was excused u pon learning that her son had suf f ered an i njury requiring em ergency s urgery . Id

. Alternate Juror Lind h a d heard all the e vidence as an a l ternate, but had not participated in guilt p hase deliberations. I d

. The trial court r eplaced L adner with Alternate Juror Lind, who joined the jury

and participated in the sentencing phase deliberations. Id

. ¶124. On appeal, Evans argued that the seating of Juror Lind v iolated S ection 99-19-101(1).
Id . at 24-25 (¶¶ 54-55). The Court recognized Section 13-5-67 is applicable to capital and noncapital cases. Id

. at 2 4-25 ( ¶ 55). The Court wrote tha t “ [ s ] u b s titution of an alternate juror is proper if done bef ore the jury retires f

or deliberations.” Id

. (citing Folk , 576 So. 2d

at 1251). The Court a lso wrote that a “substitution of an alternate during jury deliberations is im proper.” E vans , 226 So. 3d at 25 (citing Folk , 576 So. 2d at 1 252; Balfour , 598 So. 2d at 753).

5 6¶125. The E vans Court reviewed the trial court’s d ecision to dism i ss a juror f or good cause and substitute an alternate f o r an abuse of

discretion. Evans , 226 S o. 3d at 25. The Court

wrote that the def

endant m u st s how actual prejudice f rom the exclusion and substitution. Id

. The E vans Court held: Considering the f

act that Section 13–5–67 allows the substitution o f alternate jurors in capital cases, the trial court’s s u b s t i t u tion of Lind at t he s e ntencing phase did n ot vi o l a t e Section 99–19–101. R ather than discharging the alternate jurors af

ter the guilt phase ended, the t r i al court perm itted them to rem ain through the sentencing phase in case substitution w as n ecessary . A s an altern a t e j u ror, Lind did not participate i n deliberations with the twelve-m em

ber panel, which undoubtedly would h a v e been im proper. See Luster v. State , 515 So. 2d 1177, 1180 ( Miss. 1987). However, when the trial court dism i ssed T any a Ladner, the trial cou r t substituted Lind f or the sentencing-phase jury trial and deliberations, leaving the jury co mp o s e d of twelve jurors who had heard all of the evidence prese n t e d

. A p urpose of selecting alternate j urors is so they are available to “ f ill the gap created by som e contingency .” Walls v. State , 371 So. 2d 411, 4 13 (Miss. 1979). W e discern no error.
Evans , 226 So. 3d at 25 (¶ 56). ¶126. In Am

brose’s reply brief

, he argues that Evans w as wrongly decide d a n d urges the
Court t o revisit the h o lding. W e decline t o disturb the h olding. According to the r easoning in Evans , the trial c ourt did not violate Sections 99-19-101(1) a nd 13-5-67 by replacing Juror Jenkins with Alternate J uror Turner af ter the c u lpability phase had concluded, but bef ore the penalty p hase deliberations had begun. W e f ollow the guidance of Evans and hold that the trial court did not abuse its discretion by rem ov i n g J u r o r Jenkins and replacing him with Alternate Juror Turner, who had heard all of the evidence presented. ¶127. W e l ikewise r eject Am b ros e ’ s a l t e r n a t i v e a r g u me n t t hat J enkins’s rem oval was im p roper because he had testif ied that he could rem ain f

air and im partial. The trial court did

5 7not abuse its discretion by rem oving Juror Jenk i n s f or good cause based on the note and Jenkins’s testim ony that i n his own estim ate, rem aining on t he jury would give Am brose an “unf air advantage,” an adm ission also acknowledged b y Am b r o s e ’ s c o unsel at trial. See
Shaw , 540 So. 2d at 28. F inally , Am brose also f

ails t o show any a c tual prejudice by the trial
court’s ruling o n the m otion f or a m istrial or on the rem oval a nd replacem ent of the juror.
See Hutto , 227 So. 3d at 984 (¶ 66); Evans , 226 So. 3d at 25 (¶ 55).
IV. W H E T H E R T H E J U R Y S E L E C T I O N P R O C E S S W A S CONSTITUTIONALLY INFIRM

. ¶128. First, Am

brose argues that, in violation of Morgan v . Illinois , 504 U.S. 719 (1992), the trial court denied h is request that the trial court excuse o r, a t m inim um , allow individual voir dire of venire m em bers whose general v oir dire r e s p onses suggested t hey were disqualif i ed in their a

bility to c onsider im

posi t i o n of a sentence other than death. Second,
A m b rose argues that in violation of Witherspoon v. Illinois , 391 U.S. 5 10 (1968), a n d Wainwright v. W

itt , 469 U .S. 412, 424 (1985), the trial court unco n s titutionally excused three jurors who h ad scruples against the death penalty

. Third, and alternatively , Am brose argues that any

death qualif

ication whatsoever is unconstitutional.
A. Individual Voir Dire ¶129. Am

brose ar g u e s t h a t t h e t rial court erroneously ref u sed individual voir dire of all prospective jurors who i ndicated in general v oir d ire that they would im pose a death sentence only o n the basis of

having f ound the def

endant guilty

. ¶130. “The Constitution

. . . does not dictate a catechis m f o r v o i r d ire, but only that the def endant be af

f orded an im

partial jury

. Even so, p art of the guarantee of a def endant’s right

5 8to an im

partial jury is an adequate voir dire to identif y u nqualif

ied jurors.” Mo r

gan , 504
U.S. at 7 29. “ Voir dire play s a critical f unction in assuring the crim inal def endant that his constitutional right t o an im partial jury will be honored. I d

. The trial court’s responsibility

to rem ove prospective jurors who will not be a ble to f ollow the t rial court’s instructions im p artially and e valuate the evidence cannot be f ulf illed without an adequate voir dire. Id

. at 729-30. ¶131. “In general, voir d ire is presum ed suf f icient to e n s u r e a f

a i r and im

partial jury

. To

overcom e the presum

ption, a party m

ust present evidence indicating that the jury was not f air and was partial and m

ust show that prejudice r esulted f rom the circuit co u r t ’ s h a ndling of voir dire.” Keller v. State , 138 So. 3d 817, 843 (¶ 47) (Miss. 2014). “Voir dire of a jury is conducted under the supervision of the court, and a great deal m ust, of necessity , be lef

t to its sound discretion.” Pitchford v. State , 45 So. 3d 216, 229 (¶ 43) (Miss. 2010). Likewise, whether to al l o w i n d ividual sequestered jury voir dire is w ithin the d iscretion of the trial

court. Stevens v

. S tate , 806 So. 2d 1031, 1055 (¶ 112) ( Miss. 2001). As such, t he standard of review in exam ining the conduct of voir dire is abuse of discretion. Howell v. State , 860
So. 2d 704, 727 (¶ 75) (Miss. 2003). An”abuse of discretio n w i l l only be f ound where a def endant shows clear prejudice r esulting f rom undue lack of constraint on the prosecution or undue constraint of the def ense.” Id

. ¶132. “ Morgan provides that a ‘juror who will autom atically vote f or the death penalty

in
every case will f

ail in good f

a ith to consider the e vidence of aggravating an d mi t i g a ting circum stances as the instructions r equire him t o d o.’” Batiste v . State , 121 So. 3 d 808, 851 (¶ 95) (Miss. 2013) (quoting Morgan , 504 U.S. at 729). “Indeed, because such a juror has 5 9already f

orm ed an o p i n i o n on the m e rits, the presence or absence of either aggravating or

m itigating circum stances i s entirely irrelevant to such a juror.” Keller , 1 38 So. 3d at 846 (¶ 60) (citing Morgan , 504 U.S. at 729). “Based on the requirem ent of im partiality em

bodied in the Due Process Clause of the Fourteenth A m endm ent, a capital def endant m ay challenge
f or cause any prospec t ive juror who m aintains such views. If e ven one s uch juror is

em paneled and the death s e n t e n c e is i m posed, the State is disentitled t o execute the
sentence.” Batiste , 121 So. 3d at 851 (¶ 95) (quoting Morgan , 504 U.S. at 729). ¶133. During voir dire, Am brose’s counsel posed two questions with respect to voting
f or the death penalty

. First, Am brose’s counsel asked:
So let m e ask y o u this, I want y ou to assum e som e f acts. I want y ou to assum e that there’s som e evidence been presented and it’s proven b ey ond a r easonable doubt in y our m ind that these f acts exist, that the d ef

endant killed som eone, he intended to kill h i m, h e d i d n ’ t have any good cause to k ill him , it wasn’t in self -def ense, he wasn’t insane, there was n othing wrong with him , h e just did i t. If that were the case, h ow m any of y ou would vote to i m pose the d e a t h penalty , raise y our cards? ¶134. Forty -six m em

bers of the venire responded to t he question in the af f irm ative. Af

ter recording the m em

bers of the venire who had responded af f irm atively , Am

brose’s counsel posed a f ollow-up question: Now, I asked y ou that question, a n d I , didn’t m e ntion any thing about m itigating cir c u m s t ances, did I? Mitigating circum stances are f actors in the background, record and lif e of the def

endant if he is f

ound guilt y o f c a p i t al m urder. Those things are adm issible to t e l l t h e j ury a little bit about the def endant, give y ou som e idea of what kind o f p erson he is, and to also let y ou u n d e r s t a n d t hat he is a h um an being and that what y ou’re try ing to do, what y ou’re d eterm ining is whether t his person is -- this hum an being is so m uch of an of f ense to the c om m

unity of other h um an beings that we have t o elim inate him , we ha v e t o get rid o f him

. W ould y ou a t least consider the m itigating circum stances? Those of y ou who would -- y ou don’t care about m itigating circum stanc es, y ou don’t care what k ind of lif e he’s had, what kind of 6 0problem s he’s had, what kind of things that have developed and m o lded him into the person t hat he i s, y ou don’t care a bout any of that. If that’s true, raise y our card, if

y ou don’t care. ¶135. Of the f

orty

- s i x potential jurors who had answered the f irst question af

f irm atively , nine answered the f

ollow-up question af

f irm atively . Am

brose’s counsel r ecorded the nine potential j urors’ num

b e rs. Af t er a brief f

ollow u p, the trial court called f

or a recess to allow
f or individual voir dire. The potential jurors who i n d icated that they h ad conscientious scruples against the death penalty were identif

ied and the f

ollowing exchange o ccurred: MR. RISHEL [ D ef

ense]: Ye s , s i r . I w o u l d l i k e t o b r i n g b a c k e v e r y b ody that said t hey would autom atical ly vote against the death penalty

af ter they – THE COURT: Is that would autom atically vote – MR. RISHEL: Y e s , s i r . Y o u a s k e d t h e m i f t h e y w o u l d autom atically v ote f

or t he d eath penalty , and they all sit there nobody

say s a ny thing. But w hen y ou say y ou have actually convicted t his guy o f capital m urder, would y ou vote f

or the death penalty

. So they are, in f

a ct, autom atically voting. If the guy is f ound guilty of capital m

urder, they ’re going to vote f or the death penalty

. That’s as a utom atic as it gets. MR. SMITH [ State]: I agr e e i f y ou’re talking about t he nine that af ter y ou explained y our q

uestion t o t hem , and the ones when y o u said I didn’t m ention m itigating f actors, who w ould not at l east consider m itigating f actors. Those nine a re t he ones autom atic d eath. I assum e t hat’s who y ou’re talking about, not the 75 16 that raised their card the f irst tim e.

16 B ased o n th e reco rd an d p arties’ rep resen tatio n s o n ap p e al, th e n u m b er o f m em

b ers w h o r aised th eir card in resp o n se to th e f irst q u estio n w as f

o rty -six , n o t sev en ty -f

iv e. 6 1MR. RISHEL: W ell, I w ould argue that they a re autom atic death people. That t hey ’re going to autom atically vote f or the death penalty

if they – THE COURT: We l l , t h e p r o b l e m w i t h that i s t h a t y o u d i d n ’ t e x p l a in to them the procedures, the m itigating f actors a n d -- all they were a s k ed if they w ould just autom atically vote against the death penalty

. So I agree with Mr. Sm ith, and I have no p roblem bringing those last nine in that- -
MR. RISHEL: Y e a h , w e ’ l l t a l k a b o u t t h e l a s t n i n e . I t h i n k they ’re going t o vote f

o r t h e death penalty no m atter what y ou say

or do. ¶136. The trial court allowed individual voir d ire of the nine potential j urors who h ad raised their cards to the second question. None of the n ine venire m em bers s erved on the jury

. 17 ¶137. Of the r em aining t h i r t y - s even v enire m em b ers who h ad answered the f irst question af f irm atively , f

ive ultim a tely served on the j ury , including First A lternate Juror Turner, who

was seated during the p enalty pha s e a s discussed above, and Second Alternate Juror Mary Bourdin. The o ther three who served on the jury were Don Martin, Dorothy W ells, and Doug Schloem er. ¶138. On appeal, Am

brose m aintains t hat he should have been allowed to individually voir dire all f orty -six v enire m em

bers had a lso answered the f irst question af

f irm atively , not just the rem aining nine venire m em bers who had also answered t he second question af f irm atively

. The State responds that, based on the exchange, Am brose f ailed to preserve

17 F o u r w ere ex cu s ed f

o r cau se b ecau se t h ey s tated th ey co u ld n o t co n sid e r m itig atin g ev id e n c e . T w o w ere ex cu sed f o r cau se b ased o n seq u e stratio n issu es. O n e w as p erem p to rily stru ck

. T h e rem ain in g tw o w e re n o t seated b ecau s e th e j u ry w as s elected b ef o re t h ey w ere ten d e red

. 6 2his argum ent because he did not specif ically ask to individually voir dire all f orty -six venire

m em bers. Am brose’s counsel did advance an argum e n t , albeit unsuccessf ul, that all f

orty -six venire m em

bers who answered t he f irst question would autom atically vote f or t h e death penalty . Am

brose properly

preserved the issue f

or appeal. ¶139. A s t o t he m erits, the State argues that Am brose was perm itted to and did f o l l o w u p
to the f irst question during general voir dire. The State also argues that Am brose’s f ailure

to c hallenge f

or cause o r use a perem

ptory strike on any of the jurors he alleges were seated i n v i o l ation of Morgan , renders his claim procedurally barred or, at m inim um , void o f prejudice. ¶140. The Court’s de c i s i o n i n F o s t er v. State , 639 So. 2d 1263, 1272-73 (Miss. 1994), guides our analy sis. In Foster , capital m urder def endant Ronald Foster argued that the trial

court prevented him f

rom asking whether m em bers of the venire autom atically

would vote
f or the death penalty if they f o und Foster guilty

of capital m u rder. W e held:
W e f i nd t hat Foster was not denied the opportunity , and in f act did question the venire m em

bers about their views on the death penalty and whether it should be im posed in the event of a m urder convict i o n . T h e f

act that counsel f

or Foster chose not to rephrase his question to inquire w hether the venire persons wou l d a u t o m atically im

pose the death penalty if Foster w as convicted is no ground f or reversal under the dif

f ering f acts of Morgan

. Foster , 639 So. 2 d at 1275. W e explained that Foster’s counsel had the opportunity to choose and f

orm his own questions, and by gauging responses f rom the venire, could f

reely rephrase or ask f

ollow-up questions where the responses were insuf f icient or indicated the jurors were conf

used. Id

. a t 1275. W e determ ined that the record did not support Foster’s

6 3claim t hat his counsel w as denied any opportunity to question the v enire in a m a nner of his

own choosing. Id

. ¶141. S im ilarly , Am

brose’s counsel had the opportunity to c h o o s e a n d f o r m h i s o w n questions, and by gauging responses f rom the venire, could f

reely rephrase or ask f

ollow up questions. Am

brose’s counsel conf

essed in his f

ollow-up question that his f irst question did

not m ention any

thing about m itigating circum stances. In the context of jury instructions, we have stated t hat “sentencing juries m ust be able to give m eaningf ul consideration and ef

f ect
to all m itigating evidence that m ight provide a basis f o r ref using to im

pose the d eath penalty

o n a particular individual.” E vans , 2 26 So. 3d at 20 (¶ 39) (citing Abdul-K a b i r v . Quarterm an , 550 U.S. 233, 246 (2007)). ¶142. Only nine venire m em b ers answ e r e d t h a t t h e y w o u l d n o t c o n s i d e r m itigating circum stances. Thus, the trial court did not abuse i ts discretion by not allowing individual voir dire of the rem a ining venire m em bers who af

f irm a t i v e l y a nswered that they would consider m itigati n g c i r c um stances. To the extent t hat Am brose argues that the rem aining juro r s d id not s tate that they would give “m eaningf u l consideration and ef

f ect to all

m itigating evidence,” the argum ent is without m e rit because no such question was asked by
Am brose’s counsel, nor did the trial c ourt prevent Am b r o s e ’s counsel f

rom rephrasing or posing such a f

o llow-up question. See Howell , 860 So. 2d a t 727 (¶ 75) (“A jury selection procedure which gives the def endant a f air o pportunity to ask questions of individual jurors which m ay

enable the def

e ndant to determ ine his right to challenge that juror is proper.”). ¶143. Moreover, Am

brose f ails t o show how he w as prejudiced by the trial court’s decision.
S e e i d

. a t 727-28 (¶ 76). He was not prevented f rom rephrasing or posing f ollow-up 6 4questions in general voir dire, nor did Am brose exercise a perem

ptory strike f o r any of the
f ive of the rem aining thirty

- seven venire me m bers who a ctually served o n the jury , even though he had perem

p tory strikes rem aining. See Evans , 725 So. 2d at 652 (explaining that the appellant has the power to cure substantially any error so long as he has rem a ining unused
perem ptory challenges); see a l

so Galloway v. State , 122 S o. 3d 614, 645 (¶ 87) (Miss. 2013) (“A def endant cannot c om

plain on appeal of alleged errors invited o r induced by h im self .”). The precise issue now raised with respect to the f ive jurors seated obviously was known at trial based on the venire’s responses during voir dire, and Am brose chose not to exercise a
perem ptory strike on the venire m em bers. W e d iscern no prejudice.
B. Jurors With Scruples Against the Death Penalty ¶144. Am

brose a rgues that the t rial court erroneously excused three prospective jurors with scruples against t he death penalty who were not disqualif ied u n d e r Witherspoon and Wainwright

. ¶145. The Court gives def e rence to the trial court’s decision to e x clude a juror f or cause, and

we will not disturb the t rial court’s decision unless there was an abuse of discretion. Batiste , 121 S o. 3d at 850 (¶ 91). The trial court “does not com m it reversible error by e xcusing f or

cause a prospective juror who gave contradictory r esponses, wavered on their position, and generally appeared conf

used r egarding the death penalty issue.” Bennett v. State , 933 So. 2d 930, 942 (¶ 31) (Miss. 2006). ¶146. In Witherspoon , the S uprem e Court held that “a s e ntence of death cannot be carried

out if the jury t hat i m

posed or recom m ended it was chosen by excluding venirem en f or cause sim p l y b e cause they voiced general objections t o the d eath penalty o r expressed 6 5conscientious or religious scr u p l e s a gainst its inf l iction.” Witherspoon , 391 U

. S. at 522. Witherspoon a nd i ts progeny stand f or the “general proposit i on that a juror m ay not be challenged f

or cause b ased on his views about capital punishm ent unless those views would prevent or substantially im pair t h e p erf

orm ance of his d

uties as a juror in accordance with his instr u c t i o n s a n d his oath.” Moffett v. State , 49 So. 3 d 1 073, 1 094 (¶ 61) (Miss. 2010) (quoting Adam s v. Texas , 4 48 U.S. 38, 4 5 (1980)). T h eref ore, the proper standard f or determ ining when a p rospective juror m ay be excluded f or cause because of his o r her views

on capital punishm ent is w hether the juror’s views would “prevent or substantially im pair the perf orm ance of [ her] duties a s a juror in accordance with [ her] instructions and [ her] oath.”
Wilcher v. State , 8 6 3 So. 2 d 776, 813–14 (¶ 116) (Miss. 2 003) (quotin g Wainwright , 469 U.S. at 424). ¶147. In W

ainwright , the Suprem e Court clarif ied Witherspoon , holding that t he standard “does not require that a j uror’s bias be proved with unm istakable c larity .” Moffett , 49 So. 3d at 1094 (¶ 61) (quoting Wainwright , 469 U.S. at 424). The Suprem e Court explained: This is because de t erm inations o f juror bias c annot be reduced to question-and-answer sessions which obtain r esults i n the m anner of a catechism

. W hat com m o n sense should have realized experience h as proved: m any venirem e n sim

ply cannot be asked enough questions to reach the point where their bias has been m ade “unm is t a k ably clear”; t hese venirem en m ay not know how they will react when f a ced with im

posing the death sentence, or m ay b e unable to articulate, or m ay wish to hide their true f eelings despite this lack of clarity in the printed record, however, there will be s ituations where the trial judge is lef

t with the def

inite im pression that a p rospective juror would be unable to f

aithf ully and im partially apply the law. Wainwright , 469 U.S. at 424-26 (explaining why def erence m u st be paid to the trial judge who sees and hears the juror).

6 6¶148. “[ A] juror who i n no c ase w ould vote f or capital punishm e n t, regardless of his or her instructions, i s n o t a n im

partial juror a nd m

ust be rem oved f

or c a use.” Pitchford v. State , 4 5 S o . 3 d 216, 229 ( ¶ 38) (Miss. 2010) ( quoting Morgan , 504 U.S. at 728). Howev e r , “[ v]enire m em

bers ma y be jurors even if they have rem aining scruples about the death
p e n a l t y , s o l o ng as t he i ndividuals a gree t o f ollow t he law and consider the sentence in accordance therewith.” Cox , 183 So. 3d at 51 (¶ 50). ¶149. The individual voir dire of the three venire m e m

bers in question is set out below:
i. Venire Mem ber Allison Meleones
THE COURT: All right. Ma’am , y o u were one of the ones who held up

y our c ard when I asked if a ny one had any conscientious scruples or other f

eelings a gainst t h e death p enalty

. Is that correct?
MS. MELEONES: Uh-huh.
THE COURT: And are y ou telling the court and these lawy ers that y ou

don’t believe in the death penalty ?
MS. MELEONES: I just don’t know i f I c o uld ac t u a l l y g o t hrough with it.

I don’t know if I could live with th a t on m y m ind. I don’t know. I haven’t really given i t a l ot of thou ght bef o re this. N ow, I m ean, I ju s t d on’t know the circum stances. May

be.
THE COURT: W el l , i f t h e e v i d e n c e p r o v e d s o me one to b e guilty of capital m urder, and t he law allowed the death penalty as one of the penalties, do y ou think y ou could vote f or it?
MS. MELEONES: No. THE COURT: Are y ou telling the lawy ers and me t h a t y o u c o u l d not

vote f or the death penalty

under any

circum s tances?
MS. MELEONES: Um , I -- i t’s j u s t h a r d t o s a y i f I d o n ’ t know the case.

Like, I’m a teacher, so I see a lot of kids that m a y b e they 6 7could have gone a dif f erent w a y i f they h ad dif f erent p a rents or m ade dif

f erent choices. It’s hard to think som ebody could be def

ined by just one m istake. I don’t know. I don’t know any

details on the case. May

be.
THE COURT: W ell, let m e ask y o u this, if y ou f ollowed the law t hat t he court gives y ou, could y ou c onsider the death penalty f or som eone -- I m ean, not knowin g t h e circum stances, obviously y ou don’t know the circum stances. And don’t worry , there is nothing w r ong. I f y ou have y our o wn f eelings, y ou have y our f

eelings. So nobody is going to criticize y ou. W e ’re just here to try to f in d o u t exactly how e very one f

eels i n r eg a r d to this issue. And I guess what I’m try i ng to f

ind out is r egardless of t he proof and the e vidence t hat i s b rought o ut d uring the course of the trial, are y ou telling m e t hat y ou w on’t vote f or the death penalty ?
MS. MELEONES: I don’t think I would. I don’t think I would.
THE COURT: All right. State?
MR. SMITH: A n d j u s t to echo what the j u d g e i s s a y i n g , n o b o d y i s

try ing to get y ou to say that y o u would v ote f or the death penalty

. E very

body has their own belief

s about t hat. But do y ou think that if given the choice between voting f or the death penalty or voting f or lif e i n p rison as a juror that y o u would ever vote f or the death penalty ?
MS. MELEONES: Probably not. I would probably

choose lif

e in prison.
MR. SMITH: No questions, judge.
MR. RISHEL: You say probably not. W hy w ould y ou s ay probably not?

W hy n ot just say no, I’m not voting f o r the d eath penalty ever. I’m not t elling y ou what to say , but what is it that is sticking in y our m i nd keeping y ou f rom m aking a f

ull com m itm ent?
MS. MELEONES: To be honest, I h a v e n ’ t g i v e n a w h o l e l o t o f t h o ught

about the death penalty or how I f elt about it. I’ve only been a registered v oter f

or two m onths, and t h i s i s my f irst jury duty , so I really don’t know how I f eel about it 6 8100 percent. I f eel like that is not som ething that I agree with.
MR. RISHEL: So w hen y ou say p r o b a b l y , y o u d o n ’ t r e a l l y know, do y ou? You hav e t o wait until y ou know what happened, don’t y ou?
MS. MELEONES: Yes.
MR. RISHEL: Once y ou f ound out w hat happened y ou m i ght be a ble to v ote f or the d eath penalty if y ou thought it was appropriate, would that be true?
MS. MELEONES: May be. I don’ t p r o b a b l y n o t

. I c a n ’ t say any thing else besides probably

not. MR. RISHEL: All right. W ell, okay . That’s all I have, judge.
ii. Venire Mem ber Caroly n Ow en MR. SMITH: M a ’ a m, y o u stated e arlier t h a t y o u h a d c o n s c i e n t i o u s

scruples against the death penalty ?
MS. OW EN : Yes.
MR. SMITH: W ould those views im pair or hurt y our ability t o serve as a juror in this case because the death penalty is a possible sentence?
MS. OW EN: I d on’t f eel like I would have any trouble listening to the case to determ ine guilt o r innocence, but when it com es to punishm e nt I wo u l d def initely have issues with the death penalty

. MR. SMITH: A l t h o u g h y o u s a i d t h a t y o u think y ou would alway s i f

y ou got to that sentencing phase, that y ou would alway s vote f or lif e as a sentence instead of death?
MS. OW EN: I would probably be very h a r d p u s h ed to consider f a irly the dea t h p enalty

. It’s just, I ’m a Christian, and it’s som ething that I ’m having a dif f icult tim e wrapping m

y head around.

6 9MR. SMITH: No questions, y our Honor.

THE COURT: All right. Mr. Rishel?
MR. RISHEL: Ma’am , ar e y o u s a y i n g t h a t i f d u r i ng the phase where

y ou’re considering innocence or guilt that y o u c ould v ote f or the guilty even though it m ay lead to a death penalty ?
MS. OW EN: Yes. I think I could judge guilt or innocence, y es. MR. RISHEL: So y ou could vote guilty even though it m ay result in the

death penalty ?
MS. OW EN: Yes. MR. RISHEL: Could y ou?
MS. OW EN: Y e s . I c o u l d v o t e i n n o c e n t o r g u i l t y b a s e d o n t h e

evidence.
MR. RISHEL: Thank y ou, m a’am

. THE COURT: W ell, let m e ask y o u this, in other w ords, M r. Rishel w as

say ing y ou could v ote guilty e v en if it leads to the death penalty , but i f y ou w ere on the jury t h a t voted f or the death penalty

then what would y our – MS. OW EN: I would not vote f or the death penalty

. THE COURT: You would not under any circum s tances?
MS. OW EN: None that I could think of , no, sir.
iii. Venire Mem ber Susan Quillen THE COURT: O k a y . M s . Q u i l l e n , w e j u s t w a n t t o a s k y o u a f e w q u estions. You w ere one o f the ones who raised y o u r card when I asked if a n y o n e was o pposed to the death penalty or h a d s c ruples against the death penalty

. Y ou raised y our card, is that correct? MS. QUILLEN: Yes, sir.

7 0THE COURT: All right. W ould y ou explain to m e and the lawy ers y our f eelings i n r egard to the death penalty

. And nobody is going to criticize y ou one way or the other. W e’re not here to do that. W e just want to f ind out how y ou f

eel.
MS. QUILLEN: I f

eel like if I said som e body w as guilty and they got the death penalty I would f

eel like I d id t hat t o them , y ou know. I’m not sure I c ould sleep at night knowing I put som ebody to death. I have three children of m y own, and I think that would be hard f or m e to deal with.
THE COURT: So y ou’re telling us that y ou t hink that y our f eelings with regard to the dea t h penalty m ight cause y ou som e problem s even deliberating the guilt of the def endant? MS. QUILLEN: I do. I do.
THE COURT: Yes, m a’am

. MS. QUILLEN: I h ave been s i t t i n g there debating b etween the two, y ou

know, can I do this, how would I f eel, a nd I just t hink it would be hard.
THE COURT: W ell, let m e ask y ou this, if y ou were sitting on the jury and t he state convicted a person of c a p ital m u rder, the e v idence showed that he or she was guilty of capi t a l m u rder, are y ou telli ng m e that when y o u go into the penalty p hase where there are options of either death or l i f e without parole, t hat y ou would alway s v ote f or l if e without parole?
MS. QUILLEN: More than likely , I would. I just couldn’t put som e b ody

to death. That would be too hard f or m e. THE COURT: All right. Thank y ou, m a’am . Mr. Sm ith?
MR. SMITH: No questions. Thank y ou f or y o ur honesty

. THE COURT: Mr. Rishel?
MR. RISHEL: Ma’am , I’m a little conf used. Y ou said m o re than likely

.

7 1MS. QUILLEN: Y e a h. No, I m ean, honestly I don’t know h o w I w o u l d f eel af ter sitting o n a jury listening to the evidence, but I just think it woul d hurt m e knowing I put som ebody to death.
MR. RISHEL: Okay

. Let m e ask y ou t his, do y ou think y o u could vote

whether a person is g uilty or n ot guilty of capital m urder? MS. QUILLEN: Uh-huh.
MR. RISHEL: I f t h e s t a t e p r o v e d b e y o n d a reasonable doubt in y o ur

m i nd that the person w a s guilty , would y ou vote f or t hat person to be f

ound guilty ? MS. QUILLEN: I could vote f or him to be f

o und guilty , y es. MR. RISHEL: So then the question is can y ou vote -- can y ou consider

the two choices as f

ar as punishm ent is concerned, death and lif e without p a r o l e ? Are y o u telling the court y ou would never consider lif

e w ithout parole -- I m ean death? You would alway s go with lif e without? MS. QUILLEN: I think so, y es. MR. RISHEL: You think so or y ou know so? MS. QUILLEN: I k

now so. I don’t t hink I could sleep at n ight with t hat on m y m ind. I m ean, I would f eel like I d i d it to them , which basically I did. Yeah, no, I don’t think I would be com f ortable with that.
MR. RISHEL: Okay . It’s alway s a hard thing to do. MS. QUILLEN: It is. It’s a very hard thing. ¶150. Over the o b

jection of Am

brose, the trial court excused M eleones, Owen, and Quillen
f or cause. ¶151. Again, the t est f

or determ ining when a prospective juror’s views on the d eath penalty justif y h er rem oval is w hether the trial court f inds that t he juror’s vie w s w ould p revent or

7 2subst a n t i a l l y im pair the perf

orm ance of her d

uties in accordance with the instructions and oath and the trial court is lef t with the im

pression that a prospective juror would be unable

to f a ithf ully and im

partially apply the l aw. K ing v . State , 784 So. 2d 8 84, 892-92 (¶ 39) (Miss. 2001). “To m eet th[ e] t e s t , the prospective juror’s response can be less than unequivocal.” I

d

. ¶152. The Court has af

f irm ed the exclusion of jurors who “repeatedly switched positions,” “gave wavering responses,” o r “exhibited a n obvio u s c o n f usion concerning the issue.” Moffett , 49 So. 3d at 1094 (¶ 62) (citing King v. State , 960 So. 2d 413, 435 (Miss. 2007)); King , 784 So. 2d at 888. W e have held that “[ i]t goes without say i ng that a potential juror who cannot give a straight answer would be unlikely to f ollow the law.” King , 784 So. 2d

at 888. W e also have held t hat “[ a] juror’ s p o s ition on the death penalty m ust be

unm istakably clear, or a trial judge m ay properly rem ove the juror f or cause i n a c a p i tal
case.” Moffett , 49 So. 3 d at 1094 (¶¶ 62-63) (holding t h a t none of t he three prospective jurors provided a n u nm istakably c lear and consistent answer r egarding whether his or her views on the death penalty would prevent or s u b s t antially im pair the perf

orm ance of their duties in accordance with the jury instructions and oath). ¶153. Here, the record shows that the trial c ourt had suf f icient bases f

or excluding the three venire m emb e r s, given their responses to q uestioning as to w hether their p ersonal belief s regarding capital punishm e nt would prevent or substantially im pair them f

rom c arry ing out their duties as jurors. ¶154. Owen a f

f irm atively stated that she would n ot vote f or t he death penalty and she could

not think of any circum stances in which she would. Quillen stated that she “just couldn’t put 7 3som ebody to d eath. That w ould b e t o o hard f or m e.” Quillen also stated she thought she would alway s vote f

or l if e without parole, and when asked whether she “thinks so” or “knows so,” she answered that she knew so. Quillen explained: “I d on’t think I c ould sleep

at night with that on m y m ind. I m ean, I would f eel like I did it t o t hem , which b asically I did. Yeah, no, I don’t think I would be com f ortable with that.” ¶155. Meleones was asked initially if she thought she could vote f or the death penalty f

or

som eone c onvicted of capital m urder, to which she responded, “No.” W hen asked whether she c ould vote f

or the death penalty under a ny circum stances, Meleones responded t h a t “m ay be,” because she did not know any details on t he case. Meleones was a sked whether she could ever vote f

or the death penalty , given the choice b etween the death p enalty or lif e in prison, to which s he responded, “Probably not. I would probably choose lif

e in prison.” Meleones also stated: “I f eel like [ the death p enalty ] is not som e thing that I a g r e e with.” Meleones was asked “[ o ] nce y ou f ound out what h appened, y ou m ight be able to vote f or the death penalty if y ou thought that was appropriate, would that b e true? ” Meleones responded, “May be. I don’t – probably

not. I can’t say

any thing else besides probably not.” ¶156. Am

brose argues t hat it was reversible error to strike M eleones based o n our holding in Fuselier v. State , 468 So. 2d 45, 55 (Miss. 1985):
As st a t e d b y the United States S uprem e Court in Adam s v. Texas , “Neither nervousness, e m o tional involvem ent, nor inability to deny o r conf i rm a ny ef f ect whatsoever is equivalent to an unwillingness or inability on the part of the jurors to f

ollow the court’s instructions and obey their oaths, regardless of their f eelings about the death penalty .” Adam s , 448 U.S. at 50, 100 S. Ct. at 2529, 65 L. Ed. 2d at 593. Absent a clear showing that the prospective juror would be unable t o f

ollow the court’s i nstructions and obey the j u r or’s oath, that juror’s f

eelings regarding t he death penalty do not c onstitute grounds f or

7 4a c hallenge and the granting of such a challenge is reversible error. Wainright

v. Witt , supra , Adam s v. Texas , supra . Fuselier , 468 S o. 2d at 55. However, the Fuselier Court noted that “there was n o indication
f rom [ the] jurors’ c om m e nts that the y w ould b e prevented o r substantially im paired in the perf orm ance o f their duties as jurors, n or that they would be able to d ecide the f acts im p artially and conscientiously

apply the law. Id . at 54. ¶157. Given t he def

erence to the trial court, which obs e r v e d t h e t h r e e p o t ential jurors’ dem eanors, we cannot say the trial court abused its discretion in excluding Owen, Quillen, and M eleones. See Wainwright , 46 9 U

. S

. a t 4 26 (“[ D]ef erence m u st be paid to the trial judge who sees and hears the juror.”). The trial court did not abuse its discretion because it
very well m a y have thought t hat the jurors would b e unlikely to f ollow the law because they were unable to give a straight answer. See King , 784 So. 2d at 888.
C. Death Qualification ¶158. Alternatively , Am brose claim s that any death qualif ication of t he jury

at all violates the Sixth and Fourteenth Am endm ents and Mississippi’s capital sentencing statute because it allowed the State to rem ove potential jurors based solely on t heir opposition to the death penalty and n o t on their ability to f ollow the process prescribed by Section 99-19-101(2).
Am brose cites Adam s v. Texas , 448 U.S. 38 ( 1980), in support of his position. A dam s , 448
U.S. at 48 (stating that “if prospective j u r o r s a r e barred f rom jury service because of their views about capital punishm e nt on any broader basis t han inability to f ollow the l aw or abide by their oaths, the death sentence cannot be carried out.”)).

7 5¶159. Neither the United States Suprem e Court n or t he Mississippi Suprem e Court has held

that the death q

u alif ication process is unconstitutional per se. “The best way to ensure that a prospective juror would not autom a tically vote f or the death penalty is to ask.” Morgan , 504 U.S. a t 729 n.3. “Any juror who states that h e or she will autom atically v ote f or the death penalty without regard t o the m itigating evidence is annou n cing an i ntention not to f ollow the instructions to consider the m itigating evidence and to decide if it is suf f icient to preclude im

p osition of t he d eath penalty

. ” Morgan , 504 U.S. at 738. In com p arison, “a juror who in no case w ould vote f or capital punishm ent, regardless of h is or her instructions, is not

an im partial j uror and m

ust be r e m oved f

or cause.” Pitchford , 45 So. 3 d a t 2 2 9 ( ¶ 38) (quoting Morgan , 504 U.S. at 728). Am brose’s alternative argum ent is without m erit.
V. WHETHER THE S T A T E ENGAGED IN PROSECUTORIAL MISCONDUCT DURING CLOSING ARGUMENTS. ¶160. Am

brose argues that two instances of prosecutorial m isconduct occurred during the rebuttal portion o f the prosecutor’s sentencing phase closing s t a t e me n ts. Specif ically , Am brose a lleges that the S tate m ade an im proper golden rule argum ent and an im proper “inthe-box” argum ent. Because no objection was ma d e to t he alleged im proper s tatem ents, Am brose urges the Court t o review the statem ents f or plain error. The State responds that the statem ents were neither im proper nor inf

l am m atory , so reversal under p lain error review is not warranted. ¶161. W e have held t hat “the p lain-error d octrine is applied t o closing argum ents only when the substance of the statem ent is out o f bounds f or closing argum e n ts.” Boyd v. State , 977
So. 2d 329, 337 (¶ 34) (Miss. 2008); see also Minor v. State , 831 So. 2d 1116, 1123 (¶¶ 22-

7 623) (Miss. 2002). Moreover, the “plain error doctrine h as been construed to i nclude any thing

t h a t s e riously af

f ects the f airness, integrity or public reputation o f judicial proceedings.” Boyd , 977 So. 2d at 338. W e also have held that a def endant could not be prejudiced by
unnecessary and inappropriate prosecutor s t a t em ents w hen the evidence presented was insurm ountable. Franklin v. State , 136 So. 3d 1021, 1032 (¶ 40) (Miss. 2014). ¶162. Norm ally , “[ t]he standard of review that appellat e c o u r t s mu s t a p p l y t o l awy er

m isconduct during opening sta t e me n t s o r closing a rgum ents is whether t he natural and probable ef

f ect of the im

p roper argum ent is to create unjust p rejudice against t he accused so

as to result in a d ecision inf l uenced by the prejudice s o created.” Jackson v. State , 174 So. 3d 232, 236 (¶ 9) (Miss. 2015); see also Sheppard v . State , 777 So. 2d 659, 661 (¶ 7) (Miss. 2000). “Even when a prosecutor has m ade an im perm issible com m ent, this Court requires

a showing of prejudice to warrant r eversal.” Outerbridge v. State , 9 47 So. 2d 279, 286 (¶ 23) (Miss. 2006). ¶163. However, be c a u s e Am brose did not object t o the alleged im proper statem ents, the assignm ent of error has been waived and his argum ents are barred procedurally o n appeal.
See Evans , 226 So. 3d at 31 (¶ 78); Jackson , 174 So. 3d a t 236 (¶ 1 1); O’Connor v. State , 120 So. 3d 390, 400 (¶ 27) (Miss. 2013). ¶164. In Walker v. State , 913 So. 2d 198 (Miss. 2005), the capital m urder def endant argued that “[ a ]lthough no o bjection was r aised during the argum ent, under th[ e] Court’s heightened level of scrutiny of death penalty cases, they will be reviewed.” Id

. at 238 (¶ 147) (noting that we have relaxed the contem p oraneous objection rule and applie d t h e p l a in error rule, which allows an appellate court t o address an i ssue not raised at trial if the record shows that 7 7error d id occur and the substantive rights of the accused were violated). The Court “ref used”

to consider the issue of prosecutorial m isconduct because “on num erous occas i o n s [ t h e Court] has ref

used t o consider t he issue of prosecutorial m isconduct where the d ef e ndant did not raise it at trial.” Id . at 238 (¶¶ 148-49). ¶165. In O’Connor , we wrote that “[ w]e repeatedly have provided that, though the f ailure

to o bject contem

poraneously generally waives a claim of prosecutorial m isconduct during closing argume n t , w e will r eview such a claim if the prosecutor’s statem ent was so inf lam m atory that t he trial j udge should have objected on h is own m otion.” O’Connor , 120
So. 3d a t 399 (¶ 26). W e explained the purpose f or a pply ing the “ so inf

l am m atory ” standard of review in cases where no contem poraneous objection is lodged:
W e hold t hat the proper inquiry is not w hether the language “tracks” language f ound to b e m isconduct, f or such a s t andard would require the Court prem aturely to consider the m erits of t he c l a i m to resolve a so-called “threshold” q

uestion. Moreover, such a standard essentially would negate the requirem ent of co n t e mp o raneous objecting d uring c l osing argum ent—if we will review, in the absence of a contem poraneous objection, any claim that a statem ent during closing argum ent was im proper so long as it “t racks” language f

ound t o b e m isconduct, then the f a ilure t o contem

poraneously object would never operate as a w aiver. Accordingly , to resolve the conf usion c reated by Spicer [ v. S

tate , 921 So. 2d 292 (Miss. 2 006)], w e now declare t hat t he “ so inf lam m atory ” s tandard i s the proper threshold inquiry f or appellate review of claim s of prosecutorial m isconduct during closing argum ent. O’Connor , 120 So. 3d at 400–01 (¶ 29). ¶166. In J

ackson , the Court noted that “even without the def endant atto r n e y ’ s o b

j ection, ‘unwarranted and im

proper rem a rks of a district attorney w ould warrant reversal where there

was “m ost extrem e and intolerable abuse of his privilege.’” Jackson , 174 So. 3d at 236 (¶ 11) (quoting Randall v. S t a t e , 8 0 6 So. 2d 185, 221 (¶ 101) (Miss. 2001)). Thus, we have

7 8held t hat “in extrem e cases, a f ailure to objec t t o q u e s t i ons which were violative of a constitutional right w ill not a ct as procedural bar to consideration.” Jackson , 1 74 So. 3d at 237 (¶ 13). Recently in E vans , we applied the so inf lam m atory standard of review because the def endant’s f

ailure to o b

ject during t he prosecutor’s closing argum ents o p e rated as a procedural bar on appeal. Id

. The application of the so i nf lam m atory standard is in accord with the Court’s concern that “the f ailure to contem

poraneously o bject would never operate as a waiver.” S

e e O’Connor , 120 So. 3d at 401 (¶ 29). ¶167. B a s e d o n t h e f

o r e g o i ng, the Court reviews whether the all e g e d p r o s e c u t o r i a l

m isconduct was so inf

lam m a tory that the t rial court should have intervened on its own. Evans , 226 S o. 3d a t 31 (¶ 78); O’Connor , 120 S o. 3d at 400-01 (¶ 29). “Attorney s generally

are af f orded wide latitude in arguing their cases t o the jury .” Ronk v. State , 1 72 So. 3d 1112,
1137 (¶ 6 0) (Miss. 2015). “Any allegedly im proper prosecutor i a l c o m ment m ust be considered i n context, considering the circum stances of the case, when deciding on their propriety .” Id

. A. Golden Rule Argum ent ¶168. “[ A] golden-rule a rgum ent, which asks the jurors to put them selves in the p lace of one of parties, is im

perm issible.” Evans , 226 So. 3d at 31 (¶ 79). ¶169. A m

b r o s e c l a i ms t h a t t h e f

ollowing portion of the closing statem ent m ade by th e prosecutor d

u r i n g t he penalty phase in r ebuttal constituted an im proper golden rule argum ent: I thought about how w hen y ou’re a child 18 and y ou run–and y ou’re play ing a gam e of chase that adrenaline that hits y o u w h e n y ou hear the f oot steps b e h ind y o u, and y ou realize that whoever i s chasing y ou is getting c los e a n d the y ’ r e going to catch y ou or that dream when y ou w ake up in the m iddle of the night and som ebody

is chasing y ou, and the p anic and f ear o f that person 7 9actually catching y ou. I wonder if Robert was having t he s a m e f e e l i n g s a n d the sam e t houg hts a t that m om ent when he realized he was not going t o get away f rom t his m an and his m en, the panic and f e ar of that m o m ent as he heard the f

oot steps getting closer. And then the very last m om ent in his l if

e a s h e l a i d on that ground, e y es looking u p at the def

endant’s ey es and at t h e def endant’s m en, and l ooking at all of t hose ey es back at him knowing that he knew t hat

- - Robert knew t hey had already inf licted all of this p unishm ent on him , and bef

ore they hit him with those item s what mu s t h a v e gone t hrough Robert Trosclair’s m ind? W hy ? W hy ? And the panic that he m ust have f elt when he realized that he would no longer be on this earth at age 30. ¶170. T h e S t a t e a r g u e s t h a t i t d i d n o t explicitly or im plicitly ask t he jurors to place them selves i n the shoes of T rosclair. Moreover, the State argues that the c o m m ents were in
response to Am

b rose’s counsel’s rem arks “m inim izing [ Trosclair’s] kidnapping.” At one point, Am

brose’s counsel posed the f ollowing question to the jury : “Is the k idnapping so

s e v e re that the m ere f

act that he was taken f

rom one place to another would create a circum stance where he should be given a d e a t h p e n a l ty as o pposed to lif e without? ” The
State points out that w e have stated that “[ i]n order to m ake an appropriate assessm ent, the reviewing court m

ust not only weigh the im pact of the p rosecutor’ s r e m ark, but m ust also take into account def

ense counsel’s opening salvo.” Rubenstein v. State , 941 S o . 2 d 735, 778 (¶ 188) (Miss. 2006). ¶171. Am

brose argues that the prosecuto r ’ s c o m me nts are sim ilar to the im proper golden rule argum ents m ade by t he p rosecutor in Hollim an v State , 79 So. 3d 496 (Miss. 2011). In
Evans , we distinguished H ollim an and rejected a sim ilar golden rule argum e n t that Am brose advances today

. Id . at 31 (¶¶ 76-79). W e held: “Attorney s are to be given wide latitude in m aking their closing argum ents.” Jim pson v. State , 532 So. 2d 9 85, 991 (Miss. 1988). But a g o l d e n - rule argum ent, which asks the jurors to p ut them se l v es in the place of one of parties, is i m

p e rm issible. Hollim a n v. State , 79 So. 3d 496, 500 (Miss. 2011).

8 0Evans argues that the prosecutor’s speculation a bout the thoughts that m ight have gone through Holling’s m ind im properly invited the jury me m bers to place them selves in Holling’s position. He contends t hat the argum ent was the e q u i v alent of the im

p roper argum ent in Hollim an . B ut in Hollim an , thi s Court r eversed because the prosecutor, over objectio n , r e peatedly asked the jurors to im agine how they would f eel if a l oaded shotgun w ere pointed in their f aces. Id . at 499–500. Thus, in Hollim an , the prosecutor explicitly violated the prohibition on golden-rule argum ents by repeatedly asking the jurors to put them selves in the p l ace of the victim

. W hile the prosecutor’s a rgum ent in the instant case approaches a golden-rule violation, t he a rgum ent was not so inf lam m atory a s to have r equired intervention by the trial court. Thus, no plain error occurred.
Evans , 226 So. 3d at 31-32 (¶ 79). ¶172. W e have held that the “m en t a l a n g u i sh and phy sical torture s uf f ered b y t he victim prior to death, and the vulnerability of the victim are f actors which should be considered in determ ining whether t he capital o f f ense was especially heinous, atrocious, and cruel.” Ronk , 172 So. 3d at 1 143 (¶ 83). Here, the prosecutor’s statem e nts were not so inf lam m atory as to have required intervention by the trial court.
B. In-the-Box Argum ent ¶173. “It is an im

proper inf l uence to put the jury in a ‘box’ by voir d ire tactics which extract

a p rom ise, prior to trial, to ignore evidence f avorable to the def

endant.” Keller , 138 So. 3d

at 859 ( ¶ 106) (quoting Stringer v. State , 500 So. 2d 928 , 938–39 (Miss. 1986)). Such a
p r o m i s e o r pledge prevents the jurors f rom considering all f

actors relative to the verdict.
Keller , 138 So. 3d at 859 (¶ 106). ¶174. Am

brose argues t hat t he State had gotten a com m itm ent f rom the jury during voir dire with respect solely to i ts deliberations and decision m aking at the culpability phase. Am brose

8 1adm its the prosecutor’s f ollowing statem ents were not im prope r a t t h e tim e because the prosecutor did not ask the jury to return any

particular verdict:
I a l so ask that y ou don’t c o mp rom ise o r com e t o a lesser verdict based on sy m pathy alone, because a t tim e s in these ty p e s o f cases som e m ay try to appeal to y o u r sy

m pathy or to y our b ias in asking f or a specif

ic or f or a lesser verdict. If y o u c an agree that we s hould base our d e cision solely on the evidence and the law as given to y ou by t he judge, please i ndicate s o by r aising y our card. Thank y ou. As the judge also told y ou, y our job as j urors will be to judge the f a c ts of the case. You get to decide the proof of w hat happened back o n April 7th, 2013. Your job is not to judge the def endant as a person. Your job is only to judge the actions t h a t h e t o ok o n April 7 th, 2 013. Is there a ny body here w h o just doesn’t t h i n k t h at they can do that, they don’t t hink that they can sit in judgm ent of the actions of another hum an being? If y ou don’t think y ou can do that, let us know. Thank y ou. ¶175. In light of the prosecutor’s statem ent during voir dire, however, Am b rose claim s that the prosecutor’s f

ollowing r e buttal statem e nt m ade during the penalty phase constituted an im p roper “in-the-box” argum ent: Of ten tim es in this process the def endant will place witnesses on the witness stand. Then they c om e bef ore y ou and t hey ask y ou f or sy m p athy

. Ladies and gentlem en, in t hese last f

e w m inutes I want to boil it down f or y ou. W hat the def endant is asking y o u t o tell him by y our verdict today is t hat what h e did to Robert Trosclair, what they did out there t h a t d a y was bad, but not that bad. He wants y ou t o tell h im that the way that Robert Trosclair died at the age of 30 was just not bad enough. That’s what he w ants y ou to t e l l h i m b y y o ur verdict today

. In Jury selection we all prom ised and raised our cards. I know that seem s probably like a long tim e a go, but we prom ised that we woul d n o t m a k e o ur decision b a sed on sy

m pathy

. A d i f

f i c u lt childhood cannot e xcuse what this def endant did to Robert Trosclair. A dif f icult childhood does not excuse what happened on April 7 t h, 2013. Your job as jurors has been a tough one, and I know it’s been a l ong week, and y ou’ve been ripped f rom y our f

a m ilies and y our personal lives. You h ad to listen to two day s of pretty graphic a wf ul testim ony , and y ou had to s ee som e pretty bad pictures a nd photographs. A nd y esterday y ou saw the nine witnesses. 8 2¶176. A m

b r o s e a r g u e s t h a t t h e p r o s e c u t o r ’ s c o mme n t r e g a r din g s y mp a t h y w a s unconstitutionally im

proper b e c a u s e e l iciting s y m pathy f o r the def endant of ten is the only

m itigating evidence p resented. Am brose argues that his entire m itigation case consisted of testim o ny by f

am ily and f

riends who knew a nd loved him , a n d it was expressly designed to elicit the s y

m pathy of the jury t o spare h i m f r o m t h e death penalty

. Am brose claim s the prosecutor “m isrepresented to the jury the nature of the com m itm ent it had m ade with respect
to sy m pathy ” and it was a “direct m isstatem ent of the law concerning their right to consider it at sentencing. ” A m

brose c laim s the statem ent was sim ilar to the statem ents condem ned in Stringer v. State , 500 So. 2d 928, 938 (Miss. 1986). ¶177. In S

tringer , the capital m

urder def endant argued that the prosecutor im properly asked the jury to prom ise not to consider certain m itigation f actors. Stringer , 500 So. 2d at 938. During voir dire, t he prosecutor asked whether there was any one who w ould base his or her decision on sy

m pathy

. Id

. In closing argum e n t d u r i ng the penalty phase, the prosecutor stated: Each one of y o u said under oath–I can vote f or the death penalty in the proper case. W ill it m a tter that he’s y oung? W ill he have to have k illed m ore t han one person? W i ll he have to h ave pulled the trigger him self on this m urder? Can y ou still d o it? Can y o u do it b a s e d o n t h e testim ony of the two people that y ou convicted him o n? And every single one o f y ou said y es–on y o ur oath–I can do that. If

y ou hadn’t y ou wouldn’t be here.
If one of y ou–if one of y ou looks f

or an excuse and say s–I’m not gonna vote f or the death penalty a nd I ’ m not gonna give y ou a reason–just as Mr. Kelley said y ou c an do–then y ou can keep f rom giving this person the death penalty

. Y ou c a n f o rget w hat y ou promised me. You can f orget what y ou said under oath Monday

. Stringer , 500 So. 2d at 938 (em phasis added).

8 3¶178. We s t a t e d that “[ i]t is reversible error t o ask a j uror during voir dire to c o mmi t t o

returning a particular verdict.” Id

. W e said that the prosecutor had “characterized the jurors’ negative responses to his voi r d ire as a prom ise, under oath, to return the death penalty in [ the] case.” Id . W e held:
W h en com

bined with the question regarding Stringer’s involvem ent in the crim e and the question a

bout sy m pathy , the jurors could have had the m istaken im p ression that they

had pledged to ignore the only m itigating f actors which he could present in his def ense. Those f

actors were his relatively

m i nor role in the killing of Mr. McW illiam s , a n d h i s u nique personal characteristics which would i nvoke sy

m pathy : his age, h is high s c h o o l record, his troubled hom e lif e, and the dom ination by his f ather. It is an im

proper i nf luence to put the jury in a “box” by voir dire tactics which extract a prom ise, prior to trial, to ignore evidence f

avorable to the def

enda n t

. T h i s prom i se or pledge prevents the jurors f

rom considering all f

actors relative to the verdict. T he jurors a re then called upon during closing argum ent to f ulf ill that prom i se, and the ef f e ct–whether calculated or not– i s t o sham e or c oerce the jury into rejecting f

actors which would tend to m itigate against the death penalty

. W e c h a r g e the jury i n a c apital m urder case to n arrow a nd distinguish the ca s e s deserving of the death p e nalty f rom t hose which do not warrant such an extrem e punishm ent. This awesom e responsibility dem ands the f reedom and f lexibility to consider all relevant f actors. A verdict returned on t he basis of any thing less cannot s t a nd. W hen com b ined with other tactics used b y the prosecution during t h e s e ntencing phase, we hold that the cum ulative ef f ect was to deny

Jim bo Stringer a f

undam entally

f air trial at the penalty

phase.
Id . at 938–39. ¶179. The State argues t hat the p rosecutor’s ref erence to sy

m pathy was m erely

a response
to Am brose’s c ounsel’s plea f

or m ercy . See R ubenstein , 941 So. 2 d at 778-79)). The State also argues that it is perm itted to f airly com m ent on or even disparage m itigation evidence of f ered by the def

ense. See Holland v. State , 705 So. 2d 307, 335 ( ¶ 93) (Miss. 1997). Also, the State argues that the prosecutor’s statem ents in Stringer are not com parable to the

8 4statem ents m ade i n the p resent c ase. T he S t ate cites Goff v. State , 14 So. 3d 625, 653 (¶ 112)

(Miss. 2009), in support of its position. In Goff

, we wrote:
It is reversible e rror to ask a juror d u r i n g v o i r dire to com m it to returning a particular v erdict. [ S

tringer , 500 So. 2d] at 938; s ee also West v. State , 485 So. 2d 681 (Miss. 1985); Murphy v. State , 2 4 6 S o . 2d 920 (Miss. 1971). H ere, however, the prosecutor did not ask the j urors f or a prom ise to convict, nor did he ask the j urors to ignore any piece of evidence; rather, he asked the jurors to listen to the e vidence and return a verdict based upon the evidence presented at trial. Goff , 1 4 So. 3d at 653 (¶ 112). “In order f or t here to be per se error, the questions m ust be

a direct request f

or a prom ise f

or a specif

i c v erdict.” Sim m ons v. State , 805 So. 2d 452, 505 (¶ 149) (Miss. 2001). ¶180. The S tate also points out that, f ollowing t h e a l l e g e d i m

p r o p e r com m ent, the prosecutor also stated to the jury : Ladies and gentlem e n, a s y ou go back i nto that Jury r oom , I subm it to y ou t hat the law in the State of Mississippi allows y ou to r eturn a verdict that im poses the highest penalty

. The oath that y ou took as jurors, it did not require y ou to give the death penalty . It does not. ¶181. Here, the p rosecutor d id not ask the jurors f or a prom ise to im

pose the death penalty ; rather, t h e p r o s e c u t o r rem inded t he jurors that the o ath they took a s jurors did not require them to im

pose the death penalty

. Although the prosecutor’s statem ent could be c onstrued

as asking the jurors to ignore sy m pathy o r m ercy , the prosecutor’s stat e me n t c a n n o t be construed as asking the jurors to ignore the m itigation f actors in toto

. ¶182. The j ury w as instructed as t o the m itigation f actors to be considered. “It is presum ed that jurors f

ollow the instructions of the court.” K eller , 138 S o. 3d at 845 (¶ 54). The jury

was instructed that it “should co n s i d e r and weigh any aggravating and m itigating

8 5circum stances

. . . b u t y ou are c autioned not to be sway ed by m ere sentim ent, conjecture,

sy m p athy , passion, prejudice, public opini o n , o r p u b lic f eeling.” In light of the jury instructions, the Court does not conclude the statem ents a t issue were so inf lam m atory that the trial court s h ould have i ntervened when the trial court s im ilarly had just i n s t r u cted the jury not to be sway ed by

sy m p athy

. VI. WHETHER THE TRIAL COURT COMMITTED REVER S IBLE EVIDENTIARY ERROR. ¶183. Am

brose argues that the trial court com m i tted several reversible evidentiary errors. “A trial judge e njoy s a great deal of discretion as to the relevancy a n d a d mi s sibility of evidence. Unless the judge abuses this discretion so as to be prejudicial to t he accused, the
Court will not reverse this ruling.” Corrothers v. S tate , 148 S o. 3d 278, 3 10 (¶ 7 6) (Miss. 2014) (citing Jefferson v. State , 818 So. 2d 1099, 1 1 04 (Miss. 2002) (quoting Fisher v. State , 690 So. 2d 268, 274 (Miss. 1996))).
A. Photos of Trosclair (Ex hibits S-5, S-6, S-7, S-8, S-9) ¶184. Am

brose argues that the adm ission of p hotos o f Trosclair was unduly inf l am m atory and unnecessary to e stablishing a ny f act at issue. At trial, f

ive photographs of Trosclair were adm itted into evidence. Prior to trial, A m brose had objected to the photos of Trosclair. The trial court f

ound that the photos were adm i ssible. Exhibit s S -5 and S-6 w ere taken by an investigator at the hospital while Trosclair was co ma t o s e and on lif e support on April 8,
2013. E xhibits S-7, S-8, and S-9 w ere autopsy photos o f Trosclair t aken o n April 11, 2013. ¶185. Exhibit S-5 shows m ultiple scr a t c h t y

p e i n j u r i e s t o T r osclair’s arm with an IV. Exhibit S-6 shows i njuries to Trosclair’s head and f ace and lif

e support equipm e nt. Exhibit

8 6S-7 s hows stab wounds to Trosclair’s lef t s ide that t he treating p hy sician h ad characterized

as superf i cial and non lif

e -threatening. E xhibit S -8 shows Trosclair’s head and f ace. Exhibit S-9 is a close up of Trosclair’s ey es with his ey elids held open by clips. ¶186. “ [ T]he adm issibility of photographs rests w ithin the s ound discre t i o n o f t h e t r i a l
court.” Manix v

. State , 895 So. 2 d 167, 177–78 (¶ 30) (Miss. 2005). “The decision of the trial judge will be upheld unless there has been a n abuse of discretion, which is a standard
very d i f f icult to m eet.” Id . at 178 (¶ 30). The adm ission of photos of a deceased is within the sound discretion and i s proper so long as t he photos serve som e usef ul, evidentiary
purpose. Bennett v. State , 933 So. 2d 9 30, 946 (¶ 53) (Miss. 2006). “ P hotographs that aid in describing the circum stances of the killing, the location of the body a n d c a use of death,

or that supplem ent or clarif y a witness’s testim ony have evidentiary value and a re adm issible bef ore a jury .” Id

. ¶187. “The discretion of a trial judge to adm it photos in crim inal cases, runs toward alm ost unl i m i t e d adm issibility r egardless of gruesom eness, r epetitiveness, a n d the extenuation of probative value.” Bennett , 933 So. 2d a t 946 (¶ 53). “The trial judge’s discretion is nearly unlim i ted, no m a tter t he gruesom eness or e x tent of probative value.” King v. State , 83 So. 3d 376, 378 (¶ 7) (Miss. 2 0 1 2 )

. “ Only s om e probative value is needed to support a [ trial] judge’s adm ission of a gruesom e photograph.” Id

. at 378 (¶ 7). “A p h o t o graph has a

m eaningf ul evidentiary p urpose when it: (1) a i ds in describing the circum stances of the killing; (2) describes the location of the body or cause o f d e a t h ; o r (3) s upplem ents or clarif i es witness testim o n y .” I d

.

8 7¶188. Photographs of bodies m ay be adm itted into evidence in crim i nal c a s e s w h e r e they

have probative v a lue and where they are not so gruesom e or u sed in such a way as to be overly prejudicial or inf

lam m atory

. King , 83 So. 3d 378 (¶ 9). In B onds v . S tate , 138 So. 3d 914, 920-921 (¶¶ 15-16) (Miss. 2014), w e h eld that a c l ose up f ull color photograph of the shooting v ictim ’s r otting, m aggot inf ested, and disf

i g u r e d s k u l l and f

ace w as f

ar m ore prejudical than probative. The Bonds Court also held that, while trial courts do have wide d i s cretion to adm it photographs, there are m eaningf ul lim i ts, and they are def ine d b y weighing the probative value of the photograph against the prejudicial e f f ect a nd potential to inf lam e and arouse the passions of the jury

. I

d . at 920-21 (¶ 16). ¶189. Although Bonds h ad not been handed down by t he tim e o f t he trial court’s ruling, the record does not show t hat the trial court believed its discretion had no m eaningf ul lim its. The trial court heard argum ents f rom counsel i n regard t o the photographs’ p robativ e v alue, prejudicial ef

f ect, and p o t e n t i a l t o inf

lam e and arouse the p assions of the jury

. Af ter considering the argum ents m ade by counsel, t he trial court noted that, while it considered the photographs “ gruesom e ,” i t determ ined that the p hotographs were adm issible because they would assist the pathologist in explaining his opinions on the cause of death. 18 ¶190. The photographs at issue had probative value and a m eaningf ul evidentiary

purpose. Exhibits S-5 and S-6 were of f ered to a id in describing Tro s cliar’s injuries and the circum stances of his f

atal b eating. Exhibits S-7, S -8, and S-9 were of f e red to assist the

18 A lth o u g h th e trial c o u rt d eterm in ed th at o n e o f th e p h o to s, an au to p sy p h o to g rap h o f T ro sclair’s o p en s c a l p , w a s ad m issib le to assist th e p ath o lo g ist, th e S tate c h o se n o t to o f f er t h e p h o to g r a

p h in to ev id en ce at trial, c itin g th e trial c o u rt’s “co n cern r e g a rd in g th e p h o to g rap h s o f

th e o p e n scalp o f

th e v ictim .”

8 8pathologist, Dr. Krolikowski, in giving his opinion as to the cause of Trosclair’s death, which

he concluded was “m

u l t i p l e blunt traum a, m ultiple sharp wounds, and asphy xia by strangulation.” Dr. Krolikowski identif ied the stab wounds in Exhibit S-7 and opined that the blood loss f

rom the w ounds contributed to Troscliar’s dem ise. Exhibit S-8 assisted Dr. Krolikowski in his t estim ony d escribing the blunt f orce traum a t o Trosclair’s head. Exhibit S-9, the close up photograph of Trosclair’s e y es, assisted Dr. Krolikowski in describing how he f orm e d his opinion that Trosclair had been strangled. ¶191. T h e p h o t o graphs sim ply do not reach the level o f the extr e me l y g r u e s o me a n d prejudicial photograph described in B o n d s . W e cannot s a y the trial c ourt abused its di s c r e t i o n in adm i tting the photographs because the photographs had probative v alue and they were not so gruesom e or used in such a way as to b e o verly prejudicial o r inf lam m atory

. King , 83 So. 2d at 378 (¶ 9).
B. Puncture Wounds to Trosclair’s Side ¶192. Am

brose argues that a dm ission of evidence f rom several witnesses in regard to their observations o f non lif

e-threatening s tab w ounds t o Trosclair’s side were i rrelevant and highly i nf lam m atory

. A m

brose did not object to the introduction of such testim ony at trial.
Because A m

brose did not r aise a contem poraneous objection to the adm ission of stab wound evidenc e , his a rgum ent is procedurally barred. Ronk , 172 So. 3d a t 1 134 (¶ 51). “If no
contem poraneous objection i s m ade, the error, if a ny , is w aived. T h[ e] r ule is n ot dim inished in a capita l c a s e . ” Id

. Am brose acknowledges h is f ailure to object to the stab wound evidence and urges the Court to consider the issue under the plain error doctrine.

8 9¶193. “Under the plain-error d octrine, w e c a n r e c o g n i z e o b v i ous e r ror which was not properly raised by the def

e ndant and which af

f ects a def endant’s f undam ental, substantive right.” Conners v. State , 9 2 S o . 3 d 6 76, 682 ( ¶ 15) (Miss. 2012). “For the p lain-error doctrine to apply , there m u st h a ve been an error that resulted in a m anif est m iscarriage of justice o r seriously a f

f ects the f airness, integrity or public repu t a t i o n o f j udicial proceedings.”
Id

. ¶194. Am

brose argues that the S tate did not of f er any knif

e into evidence and did not adduce
any testim ony that Am

brose, Stevi e , o r D e deaux stabbed Trosclair during the assault.
Am brose claim s evidence of the stab wounds was p roof of a crim e distinct f rom t hat alleged in the indictm ent. See Palm er v. State , 939 So. 2d 792, 795 (Miss. 2006) (holding that proof of a c rim e distinct f

rom that alleged in an indictm e n t is not adm issible against an accused). However, it wa s u n d i s p u ted t hat Trosclair had suf f ered puncture wounds to his side. Moreover, the record does not suggest that another crim e d istinct f rom capital m

u rder with the underly ing f

elony of k idnapping had occurred. Am bros e ’s issue with t he evidence essentially is that n o one adm itted to stabbing Trosclair or witnessed Trosclair being stabbed during the events leading to Trosclair’s death. ¶195. A reasonable juror could conclude f rom t he evidence that T r o s c l a i r w a s s t abbed durin g t h e l e n g t h y f

atal beating that he endured. “It i s within the jury ’s province to draw reasonable inf

erences f rom f acts based on e xperience and com m on sense.” Howell v. State , 860 S o. 2d 704, 739 (¶ 125 (Miss. 2003); see also Flowers v. State , 240 S o. 3d 1082, 1111 (¶ 6 3) (Miss. 2017) (holding that a reasonable juror could conclude f r om evidence that the def endant had a m otive to rob his f orm er workplace and f

o ur of i ts em

ploy ees). 9 0¶196. A t t r i a l , L e e t e stif ied that, a f

ter t he b eating at Lawton’s house , T r o s c l a i r w a s unresponsive and was d

u m ped o n the side of the road with his hands a nd waist t ied with a ratchet tow strap. H olm es discovered T rosclair ly ing unconscious on t he s ide of the road tied with the ratchet tow strap. Holm es im m ediately observed Troscliar’s stab wounds. Holm es testif i ed that when Trosclair was rolled over, he “could see like the blood pouring out.” A law enf orcem ent o f

f icial also observed the stab wounds upon his a rrival. Trosclair’s treating phy sician and the pathologist also conf i rm e d the presence of

puncture wounds. ¶197. The a dm ission of the e v i d e n c e o f T rosclair’s s tab w ounds does not constitute plain

error. The evidence was particul a r l y r e l evant because Dr. Krolikowski opined that Trosclair’s d eath w a s c a

u s e d b y “m

ultiple blunt traum a , m

ultiple sharp w ounds, and asphy xia by strangulation.” D r. Krolikowski opined that the causes of d eath worked in com bination

as an aggregate t o cause Trosclair’s death. Although the treating p hy sician t estif ied that the stab wounds were superf

icial and not lif

e threatening in and of them selves, Dr. Krolikowski opined that the stab wounds contributed to Trosclair’s de a t h

. B a s e d on the evidence presented at trial, a reasonable juror could inf er f rom the evidence that Trosclair was stabbed during the course of the beating a n d k i d n apping. Am brose’s argum ent i s without m erit.
C. 911 Call ¶198. On April 7, 2013, around 7:00 p.m ., Holm es discovered Trosclair ly ing on the side of the road as he was traveling hom e and im m ediately called 911. Prior to trial, the t rial court denied Am

brose’s m otion to suppress Holm es’s 911 call. The trial court f ound that the 911 call was m ore probative t han p rejudicial to the i ssues and s hould be adm itted into evidence under Mississippi Rule of E vidence 403. The t rial c ourt also f ound that Holm es’s statem ents 9 1with regard to Trosclair’s injuries qualif ied as a lay opinion under R ule 701 and a s a present

sense im p r e s s i on exception to hearsay under Rule 803(1). Over the def ense’s renewed objection, Holm es’s 911 call was play ed f or the jury

at trial. ¶199. Am

brose argues that the evidence im properly bolstered Holm es’s testim ony when his credibility had not been attacked. Am b rose relies s o lely on White v. State , 616 So. 2d 304 (Miss. 1 993), i n support of his p osition. The State distinguishes White , in which the Court held that testim ony was adm itted im properly as a p r i o r c o n s i s t ent statem ent under Mississippi Rule of Evidence 801(d)(1)(B) b ecause the credibility of the declarant witness had not been attacked. White , 616 So. 2d at 308. The State correc t l y notes that the 911 call was not adm itted as a prior consistent statem ent, so White is inapplicable. Finally , White does not pertain to the adm ission of a 911 c all into e v idence. W e have held that t he trial court has not abused its discretion in adm itting 911 calls. S ee Dickerson v

. State , 175 So. 3 d 8, 20–21 (¶¶ 37-40) (Miss. 2015); Corrothers , 148 So. 3d at 310–11 (¶¶ 78-81). W e agree with the State that A m brose f ails to cite any authority ho l d i ng that a 911 c a ll is inadm i ssible because it im p roperly b olsters the declarant w itness’s testim ony . S ee Batiste , 121 S o. 3 d at 861 (¶ 134) (appellant’s f

ailure to cite relevant authori t y o b v i a t es the appellate c ourt’s obligation to review such issues). ¶200. Am

brose also take s i s s u e w i t h Holm es’s statem ents that Trosclair was “internally bleeding,” and that h e had been “tortured.” 19 Here, the trial c o u r t f ound that Holm es’s

19 A m b r o se a lso m en tio n s th at th e 9 1 1 o p erato r’s statem en ts reactin g to H o lm es’s o w n s tatem en ts co n stitu t ed h e arsay . A m b r o se raises t h e issu e f

o r th e f irst tim e o n ap p eal, an d w i th o u t citatio n s to an y au th o rity in su p p o rt o f h is p o s itio n . T o t h e ex ten t th a t A m b ro se is raisin g a n arg u m e n t, th e a rg u m en t is p ro ced u rally b arred an d w aiv e d

. B a tiste , 1 2 1 S o . 3 d 9 2statem ents in regard to Trosclair’s injuries qualif ied as a lay opinion under Mississippi Rule of Evidence 701. Am

b rose does n ot cite any relevant authority that the trial court’s f inding was an abuse of

discretion. See id

. ¶201. Am

brose argues that the e xcited u tterance exception to the hearsay rule does not apply

as the State had argued at the m otion hearing t hat because Holm e s w a s n ot a victim of the crim e, his utterances did not f a ll under the exception. Although the State argued at trial that the e xcited utterance hearsay exception applied to t he 911 call, t he trial court actually f ound that the 911 call qua l i f

ied as a present sense im

pression exception to the hearsay rule. As such, Am b rose’s argum e nt is m isplaced. ¶202. U n d e r M i s s i s sippi R ule of Evidence 8 03(1), a “present s e n s e i mp r e s s i o n ” i s “statem ent describing o r e xplaining an ev e n t o r c o ndition m ade w hile the declarant was perceiving the event or condition or im m ediately t hereaf ter.” Clark v. State , 693 So. 2d 927,
932 (Miss. 19 9 7 ) ( a f

f irm ing a trial court’s f

i nding that statem ents m ade by the 911 caller while t alking to the operator perceived the e v ent, described what was happening to her, and were suf f i ciently contem poraneous to f

it within the exception). ¶203. Am

brose argues t hat the 9 1 1 c a l l did nothing but add inf lam m atory em otion and im p roperly i ncite the j ury . “Under Rule 403, evidence which is deem ed adm issible m ay still be excluded if its probative value is substantially outweighed by

the danger of

its resultant unf air prejudice.” B atiste , 121 So. 3d at 8 63 (¶ 143). “Rule 403 is an ultim ate f ilter through

at 8 6 1 ( ¶ 1 3 4 ) ( “T h e ap p ellan t’s f ailu re to cite relev a n t au th o rity o b v iates th e ap p ellate co u rt’s o b lig atio n to rev iew su ch issu es.”).

9 3which all otherwise adm issible ev i d e n c e m u st pass.” Id

. “The trial court has broad

discretion under Rule 403.” Id

. ¶204. Here, the trial c ourt f o und that the probative value of the 9 11 call was not outweighed by the danger o f unf

air prejudice under Rule 403. H o l m es testif ied at t rial as to his observations of Trosclair on the side of the road and was s u bject to c ross exam ination with regard to his 911 c all. The adm ission of the evidence d id not constitute an abu s e of discretion so as to be prejudicial to Am brose. See Corrothers , 148 So. 3d at 310 (¶ 76).
D. Autopsy Evidence of the Presence of Cocaine in Trosclair’s Sy stem ¶205. Prior to trial, the State f iled a m otion in limine to preclude Am brose f rom m entioning that Trosclair’s t o x i c o l ogy r esults f rom the autopsy s howed that h e had tested positive f or benzoy lecgonine, a cocaine m etabolite. In support o f the m otion, the State argued that only

a d e f ense of a self

-def ense would perm it such evidence. The State also a r gued that there was uncertainty about whether T rosclair used drugs in g eneral and what m otivated the car break in. Am brose opposed the m otion, a r g u ing that the preclusion would im pede his right to present a def

ense because he had a right to s how t hat T rosclai r h a d a d rug problem that

m otivated him to b reak into Am brose’s car. However, at the hearing, w hen asked what witness would testif

y in s upport of the theory , Am b rose’s counsel stated that h e d i d n ot know, but he suspected that one or several of the State’s witnesses would t estif y a s such. The trial court granted the m otion in l imine , but r e s e r v e d t o Am brose the right to approach the bench and revisit the issue i f one of t he witnesses said som e thing during the course of the trial that concerned him

or if he wished to cross exam ine a witness in that regard.

9 4¶206. On appeal, rather than arguing how the toxicology report w as relevant, Am br o s e r e l i es

on Richardson v. State , 147 So. 3d 8 38, 841 (Miss. 2014), arg u i n g that the autopsy test results are not lim ited to cases of self def ense and that they were a dm i ssible to show any other pertinent trait or character of the victim

of the c rim e. Richardson , 147 So. 3d at 841 ( M i ss. 2014) (citing M.R.E. 404(a)(2) and 404(b)). However, Richardson involved a def ense of self

-def ense and did n o t involve a toxicology report of the victim

. See id

. Even

so, in the case sub judice , the trial court granted the State’s m otion in limine because it f ound that Am brose’s reason f

or of f ering the results was based o n “pure speculation.” Even though
Am brose had f

ailed to dem onstrate the relevance of the t oxicology r eport at the m otion in limine hearing, the trial court assured t hat Am brose would have the o pportunity to r evisit the issue in the course of

the trial. ¶207. Am

brose also claim s that a decedent’s contribution to his own dem ise is a statutory

m itigating f

actor of whic h a c a p i tal d ef endant has a right t o adduce e vidence, and if he adduces such evidence, to rely u pon in m itigation if he so desires. See Miss. Code Ann. § 99-19-101(6)(c) (Rev. 2015) (“The victim was a participant in the def endant’s c o n d u c t or consented to the act.”). Surely A m brose is not suggesting that T r osclair participated in or consented to his own m

urder b ecause he m ay have stolen speakers or drugs f rom Am brose’s

car. W e decline to hold that Trosclair participated in a nd consented to being k illed because autopsy results revealed that he tested positive f or cocaine. ¶208. Again, “[ t]he adm issibility of evidence r ests within the discretion of the trial court, and reversal is appropriate only when a trial court com m its an abuse of discretion resulting in prejudice to the accused.” R oss v. State , 954 So. 2d 9 68, 992 (¶ 4 4 ) ( M iss. 2007). 9 5Relevance is a threshold requirem ent of adm issibility

. M.R.E. 4 02. “Evidence i s relevant

if it has any tendency to m ake the e xistence of any f a ct th a t i s of consequence to the determ ination of the action m ore or less probabl e t han it would be without the evidence.”
Ross , 954 So. 2d at 992-93 (¶ 44) (citing M.R.E. 401). ¶209. W e cannot say the trial court abused its d iscretion in excluding the evidence, resulting in prejudice to the def

ense. The trial court f

ound the basis on which Am brose s ought to of

f er the toxicology results was “pure speculation” and granted t he State’s m otion i n limine , while also reserving to Am

brose the right to revisit the issue i n trial. Despite the t r i a l c o u r t’s ruling, Am

brose’s theory that he sought to prove through t he victim ’ s toxicology results was indeed presented to the j ury , i.e ., t h a t T r o s c l air had broken into his car and that drugs had been taken. As such, even assum ing the trial court abused its discretion, Am brose’s claim that he was denied his r ight to present a def ense on the issue sim

p ly i s not supported by the record. See, e.g., Newell v . State , 49 So. 3d 66, 73 (Miss. 2010) (“W e will not r everse the

t r i a l court’s evidentiary ruling unless the error a d versely a f f ects a substantial rig h t o f a party .).
VII. WHETHER THE I NDICTMENT WAS LEGALLY S UFFICIENT AND WHETHER THE T RIAL COURT ERRED BY D E N Y I NG AMBROSE’S REQUEST FOR A BILL OF PARTICULARS. ¶210. Prior to trial, Am

brose f iled a m otion t o quash t he i ndictm ent f or f a ilure to include the elem ents of the underly ing charge of kidnapping and a m otion to require the State to subm it

a bill of particulars stating what acts by Am brose constituted a kidnapping. The trial court denied both m o tions b ased on H arrell v. State , 134 So. 3d 266 (Miss. 2 014), B a tiste v. State ,

9 6121 So. 3 d 808 (Miss. 2013), Keen v. St a t e , 164 So. 3d 1039 (Miss. Ct. App. 2014), and Tapper v. State , 47 So. 3d 95 (Miss. 2010). ¶211. On appeal, A m

brose argues that the t r i a l c o u r t erred by f a iling either to q

uash the indictm ent f

or f ailing to l ist the elem ents of the underly i ng f elony of kidnapping or f

ailing

to require the State to provide a bill o f particulars describing the conduct b y A m b rose that constituted kidnapping. ¶212. Am

brose argues that the f

ailure to specif

y the conduct constituting kidnapping in the indictm ent o r in a bill of particulars violated his rights under the Sixth, Eighth, and Fourteenth Am endm ents of t he United States Constitution and Article 3, Sections 14, 26, and 28 of the Mississippi Constitution. ¶213. Am

brose a c k n o w l e d g e s t h a t t h e C o u r t a n d t he Mississippi Court o f Appeals repeatedly have rejected claim s like those he advances today under the present assignm ent of error. However, he r equests t hat the Court r evisit the issue and reverse h is s entence. See Gray , 887 So. 2d at 166 ( ¶ 17); Batiste , 121 So. 3d at 836 (¶ 43); Carson , 212 So. 3d at 31-
32 (¶¶ 34 -36). In s hort, we hold that Am brose’s indictm e nt wa s l e gally suf f icient and he was not entitled to bill of particulars. ¶214. In Carson , we wrote: The suf f iciency of an i ndictm ent is a question of l aw, and t heref ore i s reviewed de novo. Berry v. S

tate , 996 So. 2d 782, 785–86 (¶ 8 ) (Miss. 2008) (quoting Quang Thanh Tran v. State , 962 So. 2d 1 237, 1240 (Miss. 2007)). “So long as a f air reading of t he i ndictm ent, taken as a whole, clearly descri b e s t h e nature and cause of t he c harge against t he accused, the i ndictm ent is legally suf f i c i e n t.” Farris v. State , 764 So. 2d 411, 421 (¶ 28) (Miss. 2000) (citing Harrison v

. State , 7 22 So. 2d 681, 687 (Miss. 1998)). Carson correctly cites Burks v. State , 770 So. 2d 9 6 0 , 963 (¶ 12) ( Miss. 2000), f o r the proposition that where the identity of the victim is an essential elem e n t of t he crim e 9 7charged, the indictm e nt indeed m ust state the nam e. A f

ailure to do so “or a m aterial varia n c e b e t w een statem ent and proof is f atal, but an im m a terial variance i s not.” Id

. ( quoting Hughes v. State , 207 Miss. 594, 603, 42 So. 2d 805, 807 (1949)).
Carson , 212 So. 3d at 31 (¶ 34). ¶215. Am

brose’s indictm ent reads as f ollows:
ABDUR RAHIM AMBROSE, STEVIE C R E O N AMBROSE, SR. AND ORLANDER PATRICK DEDEAUX, II in the First Judicial Dist r i c t of Harrison Coun t y , M ississippi, on or about A pril 7, 2 013 d id then and there willf ully , unlawf

ully , f e loniously and w ith or w ithout desi g n to e f f ect d eath, kill and m

u rder Robert Trosclair, a hum an being , w i thout authority o f law, while in the c om m ission of the crim e and f elony of K i dnapping, as def ined by Section 9 7

- 3 -53, M iss. Code of 1972, (as am ended), c o ntrary to Section 97-3-19(2)(e), Miss. C ode of 1972, (as a me n ded), and against the peace and dignity of the State of

Mississippi. ¶216. T h e S t a te p o ints to the f ollowing analy sis in Batiste , in which t he Court rejected a sim ilar argum e nt to that Am brose advances today : Batiste’s indictm ent place d h i m o n notice that the capitalizing crim e was robbery

. Secti o n 9 7–3–19(2)(e) states that “the killing o f a hum a n being without the authority of law by a ny m ann e r o r in any m eans shall b e capital m u r d e r . . . when done with or without a ny design to ef f ect death, b y any person engaged in the com m ission of t he crim e o f

. . . robbe r y . . . .” M iss. Code Ann. § 97–3–19(2)(e) (Rev. 2006)

. B e c a use Batiste’s indictm ent charged him with capital m urder predicated on robbery , the State suf f iciently narrowed B a t i ste’s conduct to a level of egregiousness suf f icient to support im p osition of the death penalty

. See Rom ano , 512 U.S. at 7 , 1 14 S. Ct. at 2009. T h e particular item stolen i n the r obbery is im m ater i a l

. T h i s issue is without m erit.
Batiste , 121 So. 3d at 838 (¶ 50). ¶217. “In capital-m

u r d e r c a s e s , unless the underly ing f elony is burglary , the underly ing
f elony that elevates the c rim e to c apital m urder m ust be identif

ied i n t h e indictm ent along with the section and subsection of the statute under which the def e ndant is b eing charged.”

9 8Batiste , 121 So. 3d at 836 (¶ 43) (Miss. 2013). “N o f u r ther detail is required.” Id

. As in
Batiste , Am

brose’s indictm ent provided that t he f e lony underly ing his capital m urder charge

was kidnapping a nd stated the Code section def i ning the crim e of kidnapping. S ee id

. at 835- 36 (¶¶ 40-43). ¶218. Am

brose argues that his ind i c t m e n t w a s i n s u f f i cient to protect him f

rom double jeopardy in the e vent o f a subsequent a ttem pt to prosecute him

. Am brose claim s that he could not invoke a double j eopardy claim i n the event the State elected t o t r y h i m f o r a fr e e s tanding kidnapping of Trosclair that purportedly w as not connected to the ca p i t a l m u r d e r charge. The State argues that Am brose f ails to e xplain how h is i ndictm ent was insuf f icient

so as to prevent him

f rom pleading double jeopardy if the State sought to prosecute him in the f uture f or t he sam e crim e. W e agree. H e r e , A mb r o s e was charged with o ne count of capital m urder predicated on kidnapping, occurring o n April 7, 2013. Nothing would prevent Am brose f rom pleading double j eopardy if the State sought to prosecute him i n the f uture f or the kidnapping. Am

brose’s argum ent is without m erit. ¶219. A m

b r o s e a r g u e s t h a t the indictm ent d id not provide him notice of exactly wh a t conduct during a several hours p eriod of interaction with Trosclair m ade Am brose guilty of the underly ing f

elony of kidnapping. As a result, A m brose argues he could not ensure that the State me t i t s b u r d e n to establish f or the j ury bey ond a reasonable doubt the crim e of capital m urder predicated on kidnapping, or obtain the requisite jury unanim ity f or any verdict of conviction or sentence of death. ¶220. W e rejected the sam e argum ent in Fulgham v. State , 212 S o. 3 d 22 ( Miss. 2016). In Fulgham , the capital m

urder def endant Kristi Fulgham argued that the jury should have been

9 9instr u c t ed that i t m ust agree unanim ously on which item was taken with regard to the underly ing f

elony o f robbery

. Id

. at 323 ( ¶ 19). W e wrote that the jury was p roperly instructed that one of the elem ents of robbery is t aking, s tealing, a n d c a r ry ing a w ay som e “personal property

of another.” Id . at 326 (¶ 28). W e held: The f acts necessary to prove this elem ent can be shown by a lternative f a c t patterns, but still l ead to the conclusion that there w as but one of f e nse—that of robbery

. W e a re satisf ied that this jury was perf ectly c apable of sif

t ing through the evidence p resented a nd was able to di s c a r d any f actually insuf f icient t heories. W e f

ind that there was suf

f icient evidence to support the taking of the wallet and its c ontents. By its verdict, t welve jurors unanim ously agreed that Fulgham had r obbed Joey of person a l p r o p erty

. If we were to accept Fulgham ’s position as em bodi e d in instruction D–48, it could lead to an absurd res u lt. For e xam ple, while all twelve jurors m ight agree t hat Fulgham had killed Joey and had stolen som e o f his personal property , a c q u ittal would be required if six believed s h e had stolen h is m oney a n d t h e other six believed sh e h a d s t o l e n t he C PU. W e f ind this argum ent to be without m erit. Fulgham , 46 So. 3d 326 (¶ 28). The F u l g h a m Court’s analy sis likewise a pplies to the present case, where Trosclair’s kidnapping m ay be s hown by alternative f act patterns based

o n the evidence presented at trial. As in Fulgham , the jury did not have to agree unanim ously o n which f

a cts constituted the k idnapping, so long as t he jury f o und that the State had proved each elem ent of kidnapping bey o nd a reasonable doubt. ¶221. Am

brose also argues that the death sentence m ust be set aside because the crim e of conviction was not n arrowed s uf f iciently to perm it t he im

position of the death penalty

. W e rejected a sim ilar argum ent in B atiste : Batiste argues that, w ithout notice of t he specif i c i tem that is t he subject of the robbery , the State f

ailed to narrow his conduct t o a level of egregiousness t hat could support the im

p o s i t ion of the death penalty

. Under the Eighth Am endm ent, states m

ust ensure that the death penalty is appropr iate a nd not random ly im

posed. Rom a no v

. O k l a hom a , 512 U .S. 1, 7, 114 S. Ct. 2004, 1 0 02009, 129 L

. E d

. 2 d 1 (1994). “To pass constitutional m uster, a capital sentencing schem e m

u s t ‘genuinely narrow the class of persons eligible f or the death penalty and m

ust reasonably justif

y t he im position of a m ore severe sentence on the def

endant com

pared to others f

ound gu i lty of m

u rder.’” Id

. (quoting Lowenfield v. Phelps , 484 U.S. 231, 1 08 S. Ct. 546, 98 L

. Ed. 2d 5 68 ( 1 9 8 8 ) ). To a ccom

p lish t his narrowing, the “State m u st establish rational criteria that narrow the decisionm aker’s judgm ent as t o w h e t her the circum stances of a particular def endant’s case m eet t he threshold.” R om a no , 512 U.S. at 7, 114 S. Ct. at 2009.
Our capital-m

urder statute narrows the class of m urders to th o s e w i th additiona l egregious characteristics. Miss. Code A nn. § 97–3–19(2)(a)–(h) (Rev. 2006). B atiste ’ s i n d ictm ent placed him on notice that the capitalizing crim e w as r obbery

. Section 97–3–19(2)(e) states t hat “ the killing of a hum an b e i n g w i t h o u t the authority of law by any m anner or in any m eans shall b e capital m urder

. . . w h e n d o n e with or without a ny design t o e f f ect death, by any person engaged in the com m ission of the crim e of

. . . robbery

. . . .” M iss. Code Ann. § 97–3–19(2)(e) (Re v . 2 0 0 6). Because Batiste’s indictm ent charged him with capital m urder predicated on robbery , the State suf f iciently narrowed B atiste’s conduct to a level o f e gre g i o u sness suf f icient to support im p osition of the dea t h p enalty

. S ee R om ano , 512 U .S. at 7 , 114 S. Ct. at 2009. The particular item stolen in the robbery is im m a terial. T h is issue is without m erit.
Batiste , 121 So. 3d at 838 (¶¶ 49-50). ¶222. Likewise, A m

brose’s indictm ent ch a r g e d h i m w i t h c a p i t a l m urder predicated on kidnapping occurring on A pril 7, 2 0 13; thus, the State suf f iciently narrowed Am

brose’s conduct to a level of egregiousness suf f icient to support im

p osition of the d eath penalty

. Id

. ¶223. As to the bill o f particulars argum ent, the State argues that Mississippi law has long recognized t hat crim inal def e ndants are not e ntitled to a bill o f p articulars, as the indictm ent is the f orm al docum ent which places the def endant on notice of the charge against him

. See
Westbrooks v. State , 2 5 So. 491, 492 (Miss. 1899); Sanders v. State , 105 So. 523, 525 (Miss. 1925); State v. McClendon , 168 So. 2d 737, 737-38 (Miss. 1964)). W e agree.

1 0 1VIII. W HETHER THE T RIAL COURT ERRED BY GRANTING THE ST A T E ’ S

REQUESTED ONE CONTINUOUS TRANSACTION INSTRUCTIONS

. ¶224. A m

b r o s e a r g u e s t h a t the trial court e rred by granting the S tate’s requ e s t e d o n e continuous transaction instructions at both t he culpability and sentencing p hases. Am brose acknowledges that the Court has rejected the sam e argum ent he m akes today , but he urges the Court to revisit the issue and overrule caselaw in which h is a rgum ent has b een rejected. ¶225. “Mississippi f

o llows the o ne-continuous-transaction r ule f or determ ining whether the

e v i d ence establishes the requisite nexus between the killing and the underly ing f e l o n y t o constitute capital m

u rder.” Batiste , 121 So. 3 d at 831 ( ¶ 3 3 ) ( M i ss. 2013). During the culpability phase, the trial court granted t he State’s request to give Inst r u c tion S-3. Instruction S-3, a one continuous transaction instruction, was given to the jury and provided: The Court instructs the J u ry that a killing occurring w hile engaged in the com m ission of a kidnapping includes the actions of the def endant leading up to the kidnapping, the occurrence of t he kidnapping, and the a f term ath of the kidnapping. ¶226. In Ronk , we reaf

f irm ed the propriety

of the one continuous transaction instruction: Ronk argued a t trial that he could not be convicted of capital m u rder because Craite’s death did not occur while Ronk was “engaged in t he com m ission” of an arson. At the conclusion of the trial, over Ronk’s objection, the t rial court a c c e p t e d t h e S t a t e ’ s i n s t r u c t i o n S

– 1 0 1 , w h i c h d e f i n e d t h e one-continuous-transaction doctrine a p plicable to f elony -m urder cases. The instruction provided, in relevant part: “[ A] killing occurring while engaged in t h e com m i ssion of an arson includes the actions o f the def endant lea d i n g u p to t he arson, the arson and the f light f rom the scene of the a rson.” On appeal, Ronk a rgues that t he trial c ourt erred in giving i nstruction S–101 because the evidence does not s upport a f inding that Craite died “as a result of the arson.”
W e f ind th a t the trial court did not err in instructing the jury on the one-continuo u s-transaction doctrine, which was adopted by this Court to def ine the requisite causal nexus between a killing and the underly ing f e lony in a capital f

elony -m urder case. Fisher v. State , 481 So. 2d 203, 212 (Miss.

1 0 21985). This Court r epeatedly has approved of instructions i n f e lony -m urder cases with language i dentical to instruction S–101. See Batiste v. State , 121 S o . 3 d 808, 8 3 2–33 (Miss. 2013); Fulgham v. State , 46 So. 3d 315, 328

– 2 9 (Miss. 2010). Thus, instruction S–101 was a co r r ect statem ent of the law governing capital f

elony -m urder cases.
Ronk , 172 So. 3d at 1129 ( ¶¶ 31-32); see a lso Duplantis v . State , 708 So. 2d 1327, 1342-43 (¶¶ 68-70) (Miss. 1998). ¶227. Recently , in Evans , we wrote: Evans contends that t he one-continuous-transaction d octrine imp e r missibly allows a f elony

- m urder conviction based on m e re tem poral proxim ity between a hom icide and one o f the f elonies listed in t h e c a pital-m urder statute, violating the Sixth and Fourteenth Am endm ents.
In Turner v. S

tate , the Court explained t h at the one-continuous-transaction doctrine a pplies to f elony -m urder cases and def

ines the causal nexus required between the killing and the underly i ng f elony

. Turner , 732 So. 2d 9 37, 9 50 (Miss. 1999). The Court held that “a k illing occurring while engag ed in the com m i s s ion of one of the enum erated f elonies includes the actions of the def endant leading up to the f elony , the attem

pted f elony , a n d f

light f r om the scene of t he f

elony .” Id

. “In other words, ‘ where the two crim es [ e.g., m urder a n d r o b b e r y ] are connected in a chain of e v ents and occur as part of t he res gestae , the crim e of

capital m urder is sustained.’” Gillett v. State , 56 So. 3d 469, 492 (Miss. 2010) (quoting Pickle v . State , 345 So.2d 623, 627 (Miss. 1977)).
Evans , 226 So. 3d at 35 (¶¶ 90-91). ¶228. W e likewise hold that Am brose’s argum ent is without m erit.
IX . WHETHER THE TRIAL COURT ERRED B Y G I V I N G OR REFUSING CERTAIN SENTENCING PHASE INSTRUCTIONS

. ¶229. Am

brose argues that t he trial court’s erroneous sentencing phase instructions require vacation of the death sentence and rem and f or a new sentencing proceeding.
A. Whether a ggravating circum stances w ere legally a nd/or factually supported

.

1 0 3¶230. Here, the jury was instructed to c o n s ider two statutory aggravating circum stances, i.e .,

( 1 ) t hat t he capital of

f ense was com m i tted when t he def endant was engaged in the

com m ission of

, or an attem

pt to com m it, or f

light af ter com m itting, or attem

pting to com m it

a k idnapp i ng; and (2) that t he capital of f ense was especially heinous, atrocious, or cruel. The jury f ound both aggravating circum stances existed bey ond a reasonable doubt.
i. The Underly ing Kidnapping as an Aggravating Circum stance ¶231. Am

br o s e a r g u e s t h a t t h e aggravating circum s tance that the capital of f ense was

com m itted when the def

endant was engaged in the com m ission of , or an attem

pt to com m it,

or f light af ter com m itting or attem pting t o c o mm it a kidnapping is unconstitutionally duplicative of the e lem ents of the underly ing of f e n s e . In support, Am

brose relies on the Suprem e Court’s decisions in Ring v. Arizona , 536 U.S. 584 (2002), and Apprendi v. New Jersey , 530 U.S. 466, 482 (2000). As acknowledged b y Am brose, however, the Court “has repeatedly held that evidence of the underly ing crim e ca n properly be used both to elevate the crim e to capital m

urder and as an aggravating circum stance.” Ross v. State , 954 So. 2d 968, 1010–11 (¶ 106) (Miss. 2007); s ee also Galloway v. State , 122 So. 3d 614, 680 (¶ 238) (Miss. 2013) (rejecting the f am iliar “stacking” argum ent). Moreover, the Suprem e C ourt has held the use of an underly ing f elony as an aggravator is c o nstitutional. Ross , 954 So. 2d at 1011 (¶ 106) (citing Lowenfield v. Phelps , 484 U.S. 2 31, 233 (1986)). Am brose’s a rgum ent is without m erit.

ii. The Heinous, Atrocious, or Cruel Aggravating Circum stance

1 0 4¶232. Next, A m brose a rgues that the heinous, atrocious, or cruel aggravating circum stance instruction should not have been given because the evidence was insuf f icient to support it. Specif ically , Am

brose argues that the aggravator should n o t h a ve been given because no evidence w as presented that Am brose or any other of the assailants had m utilated Trosclair. ¶233. “To uphold the subm ission of the [ heinous, atrocious, or cruel] aggravator, there m ust be evidence that the of

f ense in question “was accom panied by s u ch additional acts as to set the crim e a

part f rom the n orm of capital f

elonie—the conscienceless or p itiless crim e which is unnecessarily torturous to the victim .” Hutto v. S tate , 227 So. 3d 963, 991 (¶ 98) (Miss. 2017). W e have held that the num ber of wounds and the f

act that death w as not im m ediate, but prolonged, all m ay be considered as evidence supporting a jury ’s f inding of the heinous, atrocious, or cruel a ggravator. Id

. “Additional f actors t hat m ay be c onsidered u nder the [ heinous, atrocious, o r cruel] aggravator include w hether the def e ndant inf

licted phy sical pain bef ore death , t he m ental anguish a nd phy sical torture suf f ered by the victim prior to death, and the vulnerability of the victim .” Id

. ¶234. Here, Trosclair w as f a tally be a t e n f

o r a p p r o x i ma tely two h ours at two dif f erent locations by three people who purported to b e his f riends. T rosclair’s f

a tal injuries included three stab wounds, su b s t a n t ial head traum a, and strangulation. Trosclair’s head and body

were covered in abrasions. E vidence showed that Trosclair had t ried to escape, but he was caught by Am

brose, Stevie, and Dedeaux. Evidence showed that, af ter they caught him , a def enseless Trosclair was beaten with a f ully inf lated tire with r im and a garden hose reel until he was unresponsive. Af ter the beating, an unconscious Trosclair w as tied up w i t h a ratchet tow strap and dum p ed o n t h e s i de of the r oad. The a g gravating circum stance was

1 0 5supported by t h e evidence. See H u tto , 227 So. 3d at 991 ( ¶¶ 98-102) (holding that suf f icient evidence supported the subm ission of t he heinous, atrocious, or cruel a ggravator w here the victim was beaten to death). Am brose’s argum ent is without m erit.
B. Whether the trial court erred by refusing Am brose’s proposed instructions D-2 and D-9. ¶235. Am

brose argues that instructions D-2 and D-9 should not have been ref used because the Mississippi capital sentencing statute, which perm its a jury to m ake f actual f indings justif y ing a death sentence in t he absence of proof bey ond a reasonable doubt, violates the Sixth Am endm ent. Stated another way , A mb r ose argues that neither the s tatute nor the instructions given during the penalty phase required the jury to m ake its statutory weighing of f indings b ey ond a reasonable doubt. In s upport, Am brose relies on H

urst v. F lorida , 136 S. Ct. 616, 611 (2016). ¶236. In R onk , we set o ut t he standard of review when considering the t rial court’s decisions on jury instructions:
“It is well s e t t led that jury instructions generally are within t he discretion of the trial court, so the standard of review f o r t h e d e n i a l o f jury instructions is abuse of discretion.” Newell v. State , 49 S o . 3 d 6 6, 73 (Miss. 2010) (citing Davis v. State , 18 So. 3d 842, 847 ( Miss. 2009) (internal citations om itted)). W h en c onsidering whether error lies in g ranting or ref using a jury instruction, the instructions actually given m ust be read as a whole and in c ontext. R uffin v. State , 9 92 So. 2d 1 165, 1176 (Miss. 2008) (citations om itted). No reversible error exists if the instructions f airly , though not perf

e ctly , announce the law of the case and create no injustice. Rubenstein v. State , 941 S o. 2d 735, 784–785 (Miss. 2006) (citations om i tted). “ A def endant is entitled to have jury instructions given which present hi s t heory of the c a se[ ;] however, this entitlem ent is l im i t ed in that the court m a y r ef use an instruction which incorrectly s tates the law, is covered f airly elsewhere in the instructions, or is without f o u n dation in the evidence.” Agnew v. State , 7 83 So. 2d 699, 7 02 (Miss. 2001) (c i t a t i o n s o m itted). “In hom icide cases, the trial court should instruct t he jury about a d ef endant’s theories of d ef

ense, justif

ication, or 1 0 6excuse that are supported by the evidence, n o m atter how m eager or unlikely

[ .]” Manuel v. State , 667 So. 2d 590, 593 (Miss. 1995).
Ronk , 172 So. 3d at 1125 (¶ 20). ¶237. In the case sub judice , proposed instruction D-2 read: The Court in s t r u c t s the jury that each individual j uror m ust d ecide f

or them selves w hether the death penalty or l i f e im prisonm ent without p arole is an a p p r opriate punishm ent f o r ABDUR RAHIM AMBROSE. Even if m itigating circum stances do not outweigh aggravating circum stances, t he law perm its y ou to im

pose a sentence of lif

e im prisonm ent without the possibility of parole. Only if y ou unanim ously agree bey ond a reasonable doubt that dea t h i s the appropriate punishm ent m ay y ou im pose a sentence of

death.
You should indicate y our f indings in the jury v erdict f orm which y ou will have with y ou in the deliberation room

. ¶238. The t rial court ref used Am brose’s proposed i nstruction D-2 f ollow i n g t h e Court’s holding in Ronk

. In R onk , t he Court held that the trial court did not a buse its discretion in ref using a nearly identical instruction. Ronk , 1 72 So. 3 d at 1 139-40 (¶¶ 69-70). The Court characterized sim ilarly worded instructions as im proper m e r cy

instructions. Id

. at 1140 (¶ 70). The Court also held that the substa n c e o f R onk’s proposed instruction was covered appropria t e l y b y another instruction inf orm i ng the jury o f its duty to “apply y our reasoned judgm ent as to whether the situation calls f or l if e im prisonm ent without parole or whether it requires the im

position of death.” Id

. Likewise, h ere, the jury was i nstructed that it “m ust apply y our reasoned judgm ent as t o whether this situation calls f or lif e i m prisonm ent without parole or whether it re q u i r e s t h e i m position of death, in l ight of the t otality of the circum stances present.” Under Ronk , the trial court did not abuse its discretion in ref using instruction D-2. See a l

so T horson v. State , 8 95 So. 2d 8 5, 107-08 (¶¶ 50-51) (Miss. 2004).

1 0 7¶239. Proposed instruction D-9 read:

The Court instructs the j u r y b e f ore ABDUR RAHIM AMBROSE c an be sentenced to d eath, the aggravat i ng circum stances m ust be proven to y ou bey ond a reasonable doubt. It m ust a lso be proven to y ou bey ond a r easonable doub t that t he m itigating circum s tances do n ot outweigh the aggravating circum stances. Finally , it m ust also b e p r o v e n t o y ou bey ond a r easonable doubt that d e ath i s t he appropriate punishm e n t f or ABDUR RAHIM AMBROSE. If upon review o f the evidence, a ny one of y ou has any reasonable doubt as to any of th e s e ma t t e r s, the jury m ust i nf orm the Court, in writing, t hat y ou are unable to agree unanim ously on punishm ent. ¶240. The trial court r e f u s e d A mb r o s e ’ s p r oposed i nstruction D-9 because it was f airly covered by i nstruction S-14A given to the j ur y . T h e State argues t hat the f irst sentence of proposed instruction D-9 was covered in instruction S-14A. ¶241. Instruction S-14A provided, in part, that “y ou m u s t u n a n i m o u s l y f

ind, bey ond a reasonable doubt, that the preceding aggravating circum stances exist in this case to r eturn the death penalty

. ” I nstruction S-14A also provided, i n part, that “[ i]f one o r m ore of the above aggravating circum stances is f ound to exist bey ond a reasonable d oubt , t h en each of y ou

m ust consider whether there are m itigating circum stances which outweigh the aggravating circum stances.” ¶242. The State argues t hat in Thorson v. State , 895 So. 2d 85, 110-11 (¶ ¶ 5 8

- 6 0) (Miss. 2004), the Court af

f irm ed the t rial court’s ref

usal o f a nearly identical i nstruction. The State also argues that Am

b rose’s reliance on Hurst is m isplaced because i t involved Florida’s capital sentencing schem e, which was deem ed unconstitutional because it perm itted a trial judge, rather than a jury , t o f ind the existence of an aggravating circum stance to warrant the

1 0 8death p e n a lty

. In Evans , we recently explained the applicability of Hurst with r espect to

Am brose’s argum ent: Although Evans argues that Hu r s t b r o a d e n e d t

he a p plicability of

Apprendi and Ring , Hurst m erely applied Ring to F l o r ida’s sentencing schem e. Hurst clearly applied R ing ’s holding that “capital def endants are e ntitled to a jury determ ination of any f

act on which the legislature conditions an i ncrease in the m axim um punishm ent.” Hurst , 136 S. Ct. at 620 (quoting Hurst , 147 So. 3d at 445). The Hu r s t d e cision did n ot r est upon or even a ddress the b e y ond-a-reasonable-doubt standard. Theref ore, under Brown , this issue i s without m erit.
Evans , 226 So. 3d at 3 8 (¶ 103) (rely ing on B r o w n v . S t a t e , 8 90 So. 2d 901, 921 (Miss. 2004) ( holding that the bey ond a reaso n a b l e d o ubt requirem ent d oes not apply to the determ ina t i on t hat t he aggravating circum stances outweigh the totality of the m itigating circum stances)). ¶243. U n der Thorson and Evans , the trial court did not abuse i ts discre t i o n i n r e f u s i n g proposed instruction D-9. See Thorson , 895 S o. 2d a t 1 10-111 (¶¶ 58-60); Evans , 226 So. 3d at 38-39 (¶¶ 102-104).
C. Whether the t rial court erred b y r e f u s i n g p r oposed instruction D -4

. ¶244. Am

brose argues that the jurors were insuf f iciently instructed on m itigation o r on their individualized right and duty t o d e c ide the sentence as individuals, including their right to decide against a death s entence f or reasons of m ercy or sy

m pathy

. Am

brose sought to have the jury instruc t e d i n accord with his argum ent through proposed instructions, p articularly D-4, which read: The Court instructs the jury that a m itigating circum stance is any f act relating to A BDUR RAHIM AMBROSE’s character or h istory , or any as p ect of the crim e itself

, w hich m ay be considered extenuating o r reducing the m oral culpability o f the killing or m aking ABDUR RAHIM A MB R O S E l ess 1 0 9deserving o f the extrem e punishm ent of death. Mitigating circum stances are

those circum st a n c es that tend t o justif y the penalty of lif

e i m prisonm ent without the possibility

of parole as opposed to death. ¶245. The trial court ref

used Am brose’s p roposed instruction D

- 4

. The State argues that instruction D-4 instruction was f airly covered e lsewhere. Instruction S-14 inf orm e d the jury that m itigating circum stances are “those which tend to warrant the less severe penalty of lif e i mp r isonm ent w ithout parole[ .]” Instruction S-14A listed the m itigating circum stanc e s , which included “[ a ]ny o ther m atter, any o ther aspect o f t he Def endant’s c haracter or record, and any other c ircum stance o f the of f ense brought to y ou during the trial o f this case which
y o u , t h e J u ry , deem to be m itigating on behalf of the Def endant. Instruction S-14A also provided:
If y ou individually f

ind f rom t h e e vidence that one o r m o re of the preceding elem e nts of m itigation exists, t hen y ou m ust consider whether they outweigh or overcom e the aggravating circum stances y ou previously f ound. In the event that y ou f

ind that t h e mi tigating circum stances do not outweigh the aggravating circum stances, y ou m ay im pose the death sentence. Should y ou f ind that the m itigating circum stances outweigh or overcom e the aggravating circum stances, y ou shall not im pose the death sentence. ¶246. Am

brose recog n i z e s t h a t t h e Court previously has rejected the sam e argum ent he advances under the present assignm ent of error in Batiste

. 20 See Batiste , 121 So. 3d at 867 (¶ 157) (reaf

f i r m ing that capital def

endants are not entitled t o a m ercy instruction); see also
Thorson , 895 So. 2d at 1 08 (¶ 51) ( h o l d i ng that an instruction that was nothing m ore than

20 U n d er th e assig n m en t o f erro r, A m b ro se also tak es issu e w ith th e ref u sal o f D -7 , w h ich in s tru cted th e j u r

y th at a d ecisio n to af

f o rd A m b ro se m e rcy an d th ereb y sen ten ce h im to lif e im p riso n m e n t w ith o u t th e p o ssib ility o f p aro l e w o u l d n o t v io late th e law s o f M ississip p i o r t h eir o a t h a s j u ro rs. T h e in stru ctio n w as ref u sed p ro p erly as an im

p ro p er m ercy in stru ctio n u n d er B a tiste , 1 2 1 S o . 3 d at 8 6 7 (¶ 1 5 7 ). 1 1 0a m ercy instruction was ref used properly b y t he trial court). The Court agrees w ith the State that the substance of

the instruction was f

a irly covered elsewhere. ¶247. Am

brose also u rges the Court to revisit the equipoise issue decided in Batiste , i.e ., that the sent e n cing schem e purports to perm it a d eath sentence when t he m itigation and aggravation ar e i n equipoise. In Batiste , the Court rejected the sam e argum ent Am brose repeats today

. See Batiste , 121 So. 3d at 866-67 ( ¶¶ 155-157) (holding that t he death penalty

m ay be im

posed when the State has proved bey ond a r e a s o n a b l e doubt t hat the m itigation circum stances do n o t o u t weigh the aggravating circum stances, including where the aggravating circum stances and m itigating circum stances are in equipoise). ¶248. Finally , Am

brose urges the Court to revisit the constitutionality of Section 99-19-101,

nam ely that the j ury m

ust f ind that m itigation o utweighs aggravation in t he w eighing process because in all other respects t he burden is f irm ly o n the State to establish b ey ond a r easonable doubt every

thing that is required to im pose a death sentence. A s im ilar argum ent was raised and rejected in E vans . See Evans , 226 So. 3d at 38 (¶ 102) (where Evans a r g u e d that the

statute is unconstitutional because it a llows the jury to im pose a d eath sentence by f inding that suf f i cient a ggravating circum stances e xist and t hat there are insuf f icient m itigating circum stances to outweigh the aggravating circum s tances without prescribing the burden of proof ). As in Evans , Am

brose’s argum ent is without m erit.
D. Whether the trial court erred by refusing proposed instructions D-1 and D-3. ¶249. Am

brose argues t hat the trial court erred by ref using proposed instructions D-1 and D-3, that a ccurately inf

orm ed the jury that the c o nsequence of d isagreem ent was not a new

1 1 1trial on sentencing, but a f inal disposition of the sentencing issue and def ined w h a t a “ n o parole” sentence actually entailed. ¶250. Proposed instruction D-1 read: Th e C o u r t i nstructs the j ury that should y ou be unable to agree unanim ously on punishm e nt and inf

orm the Court that y ou are unab l e to agree, then the Judge shall sentence the Def e n d a nt, ABDUR RAHIM AMBROSE, to l if e im p risonm ent without parole or hope of early release. ¶251. The trial court denied Am brose’s proposed i nstruction D-1. The State argues that the instruction was c um

ulative of and f

airly covered by

instruction S-14A. See Ronk , 172 So. 2d at 1141-43 (¶¶ 74-76) (holding t hat the trial court did not err in ref u sing proposed instruction inf

orm ing the jury that the trial court would sentence the c apital m urder def endant

to lif e i m prisonm ent without p a role if the jury was unable t o agree unanim ously on punishm ent). In Ronk , the jury was given the option, just like the jury here, of returning a verdict stating, “ W e, the Jury , are unable to agree unanim ously on punishm ent.” Id

. at 1142 (¶ 76) . Under Ronk , the trial court did not abuse its discretion in ref using the instruction. ¶252. Proposed instruction D-3 read: The C ourt instructs the jury that if y ou choose to sentence ABDUR RAHIM AMBROSE to lif

e im prisonm ent without parole, then h e shall never be el i gible f or parole. Furtherm ore, his l if e sentence without the possibility of parole shall not be reduced or suspended. ¶253. The t rial court denied A m brose’s proposed instruction D-3. Am brose acknowledges that the C ourt has on several occasions declined to require either of the ref used instructions, but has af f irm ed a judgm ent where D-1 was given. See Cox , 183 So. 3d at 57, and Keller , 138 So. 3 d 817. W e again decline to accept t he argum ent a d vanced by Am brose. See Ronk , 172 S o . 3 d at 1141 (¶ 73) (“by giving only t he sentencing o ptions of death or lif e 1 1 2im

p risonm ent without t he possibility of parole, the trial judge properly g ave the jury all the instructions that were needed”); see also Flowers v. State , 842 So. 2d 531, 557 (¶ 78) (Miss. 2003).
X . WHETHER T HE DEATH SENTENCE WAS IMPOSED I N VIOLATION OF THE UNITED STATES CONSTITUTION

. ¶254. Am

brose acknowledges that the positions under the present assignm ent of error have

not been adopted b y a m ajority of the United States Suprem e Court or t h e M i s s i ssippi Suprem e Court; h owever, he urges the Court to revisit his argum e nts and ov e r r u l e a n y precedent to the contrary

. The Suprem e Court h as “tim e a n d a gain reaf f i r me d t h a t capital punishm ent is not per se unconstitutional.” Glossip v. G r oss , 135 S

. Ct. 2 726, 2739 (2015).
A. Whether the failure to include m ens rea fa c t o rs or aggravating circum stances in th e indictm ent renders the death sentence unconstitutional

. ¶255. A m

b r o s e a r g u e s t h a t t h e f a i l ure to include mens r ea f actors or agg r a v a t i n g circum stances in the i ndictm ent renders the sentence unconstitutional and requires that it be vacated. The Court rece ntly addressed whether the f a ilure to include aggravating circum stances in the indictm ent renders a death sentence unconstitutional. Evans , 226 So. 3d at 26 (¶ 105). W e held that it does not. Id

. ¶256. In Goff

, J o s e p h G o f

f a r g ued that his death s entence m ust be vacated because the indictm ent f

ailed to include a statutory aggravating f actor or the mens rea s tandard required
f or capital m

urder. Goff

, 14 So. 3d at 665 (¶ 173). W e h e l d that Gof f ’s argum ent was without m erit because when he was charged with capital m urder, he was put on notice that th e d e a t h penalty m ight result, w hat aggravating f actors m ight be u sed, and the mens rea

1 1 3standard t hat was r e q u i red. Goff , 14 So. 3d at 665 (¶ 1 77). In Goff , we explained “that Apprendi a n d R i n g address issues wholly distinct f rom the present one, and in f act do not address indictm ents at all.” Goff , 14 So. 3d at 665 (¶ 174). W e a l so explained that “our death penalty statute clearly states the only aggravating circum stances which m ay be relied upon by the prosecution in seeking the ultim ate punishm e n t. Id . at 665 (¶ 176). ¶257. As in Goff

, when Am

brose was charged with capital m urder, he was put o n n otice that the death penalty m ight result, what aggravating f a c tors m ight b e used, a n d t h e mens rea standard that was required. Goff , 14 So. 3d at 665 (¶ 177).
B. Whether the M i ssissippi’s statutory death penalty schem e is unconstitutional for piecem eal reasons. ¶258. Am

brose argues that the M ississippi capital sentencing s chem e is unconstitutional f or piecem eal reasons. ¶259. Am

brose argues that Section 99-19-105 is unconstitutional on its f ace a nd as applied by the C ourt b e c a u s e i t f ails to provide f

or adequate or m eaningf

ul appellate review. W e rejected the sam e arg u m ent in E vans , holding that our statutory schem e p rovides f or

m eaningf ul appellate review. Evans , 226 So. 3d at 40 (¶ 107); see also B atiste , 121 So. 3d at 872 (¶¶ 179-180). ¶260. Am

brose argues that the death penalty schem e i s being applied in a discrim inatory and irrational m anner against m ales, poor persons, and def endants accused o f killing white victim s. W e have held that the death penalty is not b eing a p p l i e d i n a discrim inatory and irrational m anner. Evans , 226 S o. 3 d 3 9 ( ¶ 1 07); Batiste , 121 S o. 3 d a t 8 7 2 ( ¶ 181);
Corrothers , 148 So. 3d at 322-23 (¶¶ 127).

1 1 4¶261. A m

b r o s e a r g u e s t h a t M i s s i ssippi’s d eath penalty s t atutes a re unconstitutionally overbroad and vague, both f acially and a s interpreted by the Court, and as applied to him in
perm itting the j ury to consider imp o s i n g the death penalty based on the aggravating circum stance that the m

urder was “especially atrocious, heinous or cruel.” We previously have rejected the sam e argum ent. See C orrothers , 148 So. 3 d at 323 (¶ 128) (holding that the “especially h einous, atrocious, o r cruel” provisi o n of Section 99-19-101(5) is not so vague and overbroad as to violate the United States Constitution). ¶262. Am

brose argues that the Mississippi’s capital sentencing schem e unconstitutionally allows the j ury t o a p p l y the death penalty f or f elony m urder, b ut n ot f

or cases of sim

ple

m urder. W e previously have rejected the sam e argum ent. See Corrothers , 148 So. 3d at 323 (¶ 129).
C. Whether M ississippi’s capital statutory schem e perm itting t he im position o f a death sentence violates the Eighth A m e n dm ent in toto . ¶263. Am

brose a lso c hallenges the M i s s i s s i p p i ’ s d e a t h p e n a l t y in toto , arguing that it violates the Eighth Am endm ent. The Uni t e d States Suprem e Court repeatedly has reaf f irm ed that capital punishm ent is not per s e unconstitutional. Glossip , 135 S. C t. at 2739. Likewise,

we r ecently reaf

f irm e d our holding that M ississippi’s death p enalty schem e is not unconstitutional in part o r in toto

. Evans , 2 26 S o. 3d at 25 ( ¶ 100) (citing Corrothers , 148
So. 3d at 3 22

- 3 2 ; Batiste , 121 So. 3d at 872; Brown v. State , 890 So. 2 d 901, 921 (Miss. 2004); Walker v. State , 863 S o. 2d 1, 28-30 (Miss. 2013); Puckett v . S tate , 737 S o. 2d 322, 363-64 (Miss. 1999)). As such, Am brose’s argum ent is without m erit.

1 1 5X I. WHETHER THE DEATH SENTENCE IN T HIS MATTER IS

CONSTITUTIONALLY AND STATUTORILY DISPROPORTIONATE. ¶264. Under Section 99-19-105(3)(c), we m ust c onsider w h e t her the sentence of death is excessive or disproportionate to the penalty im posed in sim ilar cases, considering both the crim e and the def

e ndant. Miss. Code Ann. § 99-19-105(3)(c) (Rev. 2015). ¶265. A m

b r o s e a r g u e s t h a t h i s d e a th sentence is const i t u t i o n a l l y a n d s t a t u t o r i l y disproportionate f

o r a com b i nation of two circum stances. First, Am brose a rgues that he was sentenced to death w ith the j ury ’s sole f inding under Sec t ion 99-19-107(7) that he
“contem plated that lethal f

orce would be em

ploy e d.” Am

brose c ontends that c onsequently , the jury declined to f

ind that Am

brose killed, attem

pted to kill or i ntended t o kill Trosclair. Second, Am

brose argues that t he codef endants Stevie and Dedeaux, w ho were identif ied as

em ploy i ng l ethal f

orce by ey ewitnesses, did not receive a d eath sentence. In support of his
argum ent, Am

brose relies on Randall v. State , 806 So. 2d 1 85, 234 (¶ 143) (Miss. 2011) where the Court held: Randall rem inds us of Bullock v. State , 525 So. 2d 7 6 4 , 770 ( Miss. 1987) where we said that “ Our p oint is this: when y ou review all of the other capital cases decided since B ullock , no capital def en d a n t h a s had a death sentence af f irm e d in t h i s state where the sole f inding was that he contem p lated lethal f orce. . . . .” Although t he State cites t o a whole host of cases to show that the death sentence was not disproportionate, Ra n d a l l correctly asserts that all of the cases relied o n by the State involve a def e ndant who was (1) f

ound to have killed, attem

pted to kill and/or intended to kill, (2) was at least the “instigator” or m asterm ind o f t he crim e, and/or (3) the co-def endant was also sentenced to death or was not subject to s e n t e n c i n g by a jury

. W hile the co-def endants testif ied that Randall and Stokes both pointed g uns at Daniels, there is no proof as to who actually killed him

. The jury specif i call y d e c lined to f

ind t hat Randall killed or a ttem

pted to kill Daniels. Additionally , Stokes only received lif e in p rison and t he other co-def endants entered into p lea agreem e nts which spa r e d t h e i r lives. Because the only f act, as f ound by the jury , w a s t hat Randall “ contem

plated” lethal f

orce, the death sentence was disproportionate 1 1 6based on the f indings of

f act as determ ined by

the jury

. However, on retrial, other f acts m ay be developed suf

f icient to support a death sentence.
Randall , 8 06 So. 2d a t 234 (¶ 143). Am brose argues that in c ases where Randall has been distinguished, the jury f

ound that the capital m

u rder def endant actually had killed or intended

to kill. See J

ordan v. State , 918 S o. 2d 636, 659 (Miss. 2 005); Le v. State , 913 So. 2d 913,
946 (Miss. 2 00 5 ) , o v e r r uled on other grounds by Bonds v. State , 138 S o. 3d 914 (Miss. 2014); Byrom v. State , 927 So. 2 d 709, 728 (Miss. 2006). Am brose m aintains that Randall is indistinguishable f

r om the present case. ¶266. W e disagree. R andall is distinguishable. Here, e v idence showed t hat Am brose was the i nstigator of the e vents leading to Trosclai r ’ s d e a t h

. Sim s begged Am brose to stop beating a def

enseless Trosclair, but he ref u s e d

. S im s also p leaded f or Am brose to take Trosclair hom e af

ter the assault at th e H i l l , b ut A m brose did not. Am

brose adm itted to telling Trosclair t hat onc e h e received his “ stuf f , ” he was not going t o “m ess with h im
any m ore. Am

brose adm itted to driving T rosclair to Lawton’s house. A m b rose a d m itted that the reason they assaulted T rosclair at Lawton’s house w as b ecause Am b rose believed Trosclair had stolen his belongings out of his truck. Lee and Lawton testif ied that Am

brose prevented Trosclair’s escape. Lee and Lawton testif i ed that Am

brose struck Trosclair with

a f u l ly i nf lated tire with rim

. Lee testif ied t hat Am

brose d rove an unconscious Troslcai r
away f rom Lawton’s hom e, w here he was dum ped on the s ide of the r o a d

. A p a s sing

m otorist discovered Trosclair, who was tied up with a ratchet tow strap, unresponsive, ly ing on the side of

the road.

1 1 7¶267. Af

ter a f ull review of the record a n d a f t e r c o n s i dering all of the aggravating and

m itigating circum stances presented at trial, and af ter a com parison with the circ u ms tances of other capital cases, we co n c l u d e the death penalty is not disproportionate or excessive.
X II. W H E T H E R THE CUMULAT I V E E F F E C T O F T H E E R R O R S I N T H E T R I A L COURT M ANDATES REVERSAL OF THE VERDICT OF GUILT AND/OR THE SENTENCE OF DEATH ENTERED PURSUANT TO IT. ¶268. Under the p resent assignm e nt of error, Am brose incorporates every f a c tual and legal
argum ent raised in the previous sections. Am b r o s e a r g u e s that, based on his f oregoing
argum ents, the present case contains cum u lative error warranting reversal of the conviction and sentence. ¶269. “Under t he cum

ulative-error doctrine, e v e n i f a n y specif ic error is insuf

f icient f or reversal, we m ay reverse if the cum ulative ef f ect of all t he errors deprived the def endant of

a f undam entally f

air trial.” Corrothers v. S

t ate , 148 So. 3d 278, 324–25 (¶ 134) (Miss. 2014) (citing Ross v. State , 954 So. 2d 968, 1018 (¶ 138) (Miss. 2007)). ¶270. Because w e hold that only one error exists, as explained in Section I, a l beit harm less bey ond a reasonable doubt, we hold that no cum ulative error exists.
CONCLUSION ¶271. W e af

f irm Am brose’s conviction and sentence. ¶272. AFFIRMED.
W A L L E R , C . J . , R

ANDOLPH, P.J., MAX WELL, BEAM A N D C H A M B E R L I N , J J., CONCUR. KITCHENS, P.J., DISSENTS W ITH SEPARATE WRITTEN OPINION JOINED BY KING AND ISHEE, JJ. KITCHENS, PRESIDING JUSTICE, DISSENTING:

1 1 8¶273. “[ T]he penalty of death is dif f erent in kind f

r om any other punishm ent im posed under

our sy s tem of crim inal justice.” Pruett v. State , 574 So. 2d 1342, 1 345 (Miss. 1 990) (citation

om itted). This Court a f

f ords “heightened scrutiny on a ppeal” to cases in which the def endant is under a s e ntence of death, m e aning that “procedural niceties give way to t he search f or substantial j ustice, all because death undeniably is dif f erent.” Hansen v

. S tate , 592 So. 2d
1 1 4 , 1 4 2 (Miss. 1991). “ [ W ]hat m ay be harm less error in a case w ith less at sta k e [ ma y becom e] reversible error when the penalty is death.” Fulgham v. S tate , 46 So. 3 d 315, 322 (Miss. 2 010) (quoting B i s h o p v. State , 8 12 So. 2d 9 34, 938 (Miss. 2002)). Apply ing heightened scrutiny to d eath-penalty cases, we resolve “ all doubts

. . . i n f avor of the accused.” Cham berlin v. State , 9 8 9 So. 2d 320, 330 (Miss. 2008) (citing Lynch v. State , 951
So. 2d 549, 555 (Miss. 2007)) (em phasis added). W ith respect, I dissent, because six errors require reversal of

Abdur Rahim

Am brose’s conviction and sentence.
1. The t ria l c o urt’s refusal t o allow Am brose the opportunity to confront the State’s inform ant w as not harm less error. ¶274. Dem e trius Lee participated in the April 10, 2013 , k i l l i n g o f Robert T rosclair, f or which A m

brose w as c o n v i c t e d a nd sentenced to death. The jury l earned that the State had given Lee the choice either to b e a def endant or a witness in the capital m u rder case. But the jury n ever w a s i nf

orm ed t hat, at the tim e Lee t estif ied in Am

brose’s capital m

urder prosecution, Lee’s involvem ent in the capital m urder had placed him in peril of revocation of a t hree-y ear, non-adjudicated f elony probation s entence f or b u r glary o f a dwelling. Nor did it learn that Lee was, at the tim e he testif ied a g ainst Am

brose, i n peril of prosecution f or

an unrelated arm ed r obbery

. The m ajority acknowledges the trial court’s error: “ [ b]y lim iting

1 1 9Am

brose’s cross exam i nation o f Lee, the trial c ourt denied Am brose the opportunity to f

ully challeng e Lee’s c redibility .” Maj. Op. ¶ 67. Nevertheless, the m ajority concludes that, because the State p r oved Am brose’s guilt b ey ond a reasonable doubt without Lee’s testim o ny , the error was harm less. W ith respect, the trial court’s f ailure t o allow cross

exam ination of Lee on his agreem ent with the State deprived Am brose o f the argum ent that he was a m ere accom

pli c e . Accordingly , I cannot join the m ajority ’s f inding of harm less

error. ¶275. W e have said that “[ w]hat m ay be harm less error in a case with less a t stake [ m ay becom e] r eversible e r r o r w hen the penalty is death.” Fulgham , 46 So. 3d at 322 (quoting Bishop , 812 So. 2d at 938). It is the State’s burden t o prove, bey ond a reasonable doubt, that the error was harm less bey ond a reasonable doubt. Gillett v. State , 148 So. 3d 260, 266-67 (Miss. 2014) (citing Chapm an v. California , 3 86 U.S. 24, 8 7 S . Ct. 824, 17 L. Ed. 2d 705 (1967)). This Court “m

ust be able to say ‘bey ond a r e a s o n a ble doubt t hat the error

com plained of did not contribute to the verdict obtained.’” Gillett , 148 So. 3d at 2 67 (quoting Chapm a n , 386 U.S. at 23-24). W e have held that a n error did not contribute to the verdict when “whatever [ the jury ] dec i d e d was a ncillary to t he overwhelm ing evidence of [ the def endant’s] guilt.” Moffett v. State , 49 So. 3d 1073, 1100 (Miss. 2010). ¶276. Am

brose’s theory

of def e nse was that he had not been the instigator of the beatings and kidn a pping which l ed u ltim ately to Trosclair’s death, but that he had been a m ere

accom plice. The State theorized, however, that A m brose had been the instigator of the acts which caused Trosclair’s death. And Lee’s testim ony was consistent with the State’s theory

. The m ajority outlines the “overwhelm i ng evidence” of Am brose’s guilt as f

ollows: Am

brose 1 2 0adm itted f

ighting and participating in the beating o f Trosclair because Trosclair had broken into his (Am

brose’s) car, Am

brose “instructed Stevie, Dedeaux, a nd Lee to p ut Trosclair in the truck b ef

o re they lef

t.” Maj. O p. ¶ 71. W h i l e “ Am b rose c laim ed T rosclair d id not go
any where against his will, A m bro s e adm i tted telling Trosclair that o nce h e received his speakers [ the speakers Am br o s e t h o u g ht Trosclair had stolen f rom him ] , he ‘ wasn’t going

to m e ss with him any

m ore.’” M aj. Op. ¶ 71. But the only witness t estim ony c ontradicting
Am brose’s t estim o n y that Trosclair willingly lef t “the Hill” c a m e f

rom Lee. And Lee was the only witness w h o c laim ed to have seen Am b rose restraining Trosclair with the tow strap, driving Trosclair f

rom Jim m y Lawton’s house, and l eaving Trosclair on the side of the road. ¶277. L e e ’ s t e s t i mo n y w a s crucial to t he State’s theory that Am brose h ad kidnap p e d Trosclair, the underly ing f e lony supporting Am

brose’s capital m

u rder c onviction. See Miss. Code Ann. § 97-3-19(2)(e) (Rev. 2014) (“The killing of a hum an b eing without the authority of law by any m e ans or in any m anner shall be capital m urder

. . . [ w ]hen done with or without any design t o ef

f ect death, by any person engaged in t he com m ission of the crim e of

. . . kidnapping

. . . .”).W hile d i sturbing, various witnesses’ observations of Am b rose beating Trosclair did not, standing a lone, support A m brose’s c apital m

urder conviction. The testim o ny of Lee was not m ere ly ancillary t o the overwhelm i ng e vidence of guilt. Lee’s testim o ny was indispensable to prove the f elony underly ing the c apital m urder, that Am

brose kidnapped Trosclair. Yet the jury w as not told of t he considerable leverage the State wielded

over L ee’s testim ony . It is im p ossible to say to what e x tent Am b rose w as prejudiced by the trial court’s ref

usal to a llow cross exam ination, but it cannot be said to have been harm less bey ond a reasonable doubt. Heightened scrutiny requires reversal. 1 2 12. Amb r o s e ’s d eath sentence should be vacated and rem anded because the j ury found only that A m brose “ contem p lated t hat lethal force w ould be em ploy e d.” ¶278. Mississippi Co d e S e c t i o n 9 9

- 1 9

- 1 0 1(7) ( Rev. 2015) requires t he j ury to “m ake a written f i nding of one or m ore of t he f ollowing: (a) [ t ]he def

endant actually killed; (b) [ t]he def endant attem

pted t o kill; ( c ) [ t ] h e d e f

endant intended that a killing take p lace; (d) [ t]he def endant contem

plated that lethal f

orce would b e e m

ploy ed.” Presiding Justice D ickinson took the position that, because the United States Suprem e Court, in Tison v. A r i z o n a , approved only the f

irst three categories, “the f ourth category

is hopelessly

at odds with the United States Suprem e Court’s m inim u m requirem ents f

or the d eath penal t y . . . .” Cox v. State , 183 So. 3d 36, 64-65 (Miss. 2015) (Dickinson, P.J., concurring i n p art and in result).
I n C o x , Presiding Justice D ickinson concurred in part and in result with this Cour t ’ s im p osition of a death sentence because the jury h ad n ot applied t he f ourth statutory f

actor in sentencing the def

endant to d eath. Id. at 65. In the p resent case, however, the jury sentenced
Am brose to death based on its sole f inding that Am

b r o s e “contem

plated that l ethal f

orce would be em

ploy ed.” The jury ’s f

inding does not com

port with the m i nim

um requirem ents

ar t i c u l a ted by t he U nited States Suprem e Court. Accordingly , this C ourt should vacate Am brose’s sentence. ¶279. The United States Suprem e Court specif i cally lim ited capital m

u rder death sentence eligibility to p ersons who “actually killed, attem pted to kill, or i ntended to kill.” Tison v. Arizona , 481 U.S. 1 37, 149-50, 107 S. Ct. 1676, 95 L. Ed. 2d 127 (1987) (citing Enm und

v. Florida , 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982)). W hile the Court held that “m ajor participation in t he f elony com m itted, com

bined with r eckless indif f eren c e to 1 2 2hum an l i f

e” would suf

f ice t o support a death sentence, i t criticized the Arizona Suprem e Court’s attem

pt “to ref orm ulate ‘ intent to kill’ as a species of f oreseeability .” Tison , 481 U.S.

at 158, 150. The Arizona Suprem e Court had h eld t h a t “ [ i ]ntend [ sic] to kill includes the situation in which the def endant intended, contem

plated, o r anticipated tha t l e t h al f orce would or m i ght be used o r t hat lif e would or m ight be taken in accom p lishing the underly ing
f elony .” Tison , 481 U.S. at 150 ( q uoting State v. Tison , 69 0 P

. 2 d 7 55, 757 ( Ariz. 1984)). The United S t a t e s S u p r em e Court held that “[ t]his d ef inition o f intent i s broader than that described by

the E nm und Court” and reasoned: Participants i n violent f elonies l ike arm ed robbe r i e s can f requently “anticipat[ e] that lethal f orce . . . m ight b e u sed

. . . i n a c c om plishing the underly ing f

e lony .” Enm

u nd him self m a y well have so anticipated. Indeed, the possibility of bloodshed is inherent in the c o m mi s s i on o f any violent f e lony and this p ossibility is g enerally f oreseeable and f

oreseen; it is one principal reason that f

elons arm them selves.
Tison , 481 U.S. at 150-51 (quoting Tison , 690 P. 2d at 757). ¶280. Presiding Jus t i c e Dickinson opined that “[ o]ur capital-m urder s t atute has not been

am ended to m eet t he Tison Court’s requirem ents. Our s tatute’s language that a llows a death

sentence f

or those wh o “ c o n t e m

plated that lethal f

orce would be em

ploy ed,” m irrors language that the United States S uprem e Court repudiated in Tison .” Cox , 183 So. 3d at 65.
“In m y view,” Presiding Justice Dickinson continued, “ a jury cannot constitutionally im pose

a death sentence when it m erely f inds that the de f

e n d a n t ‘ contem

plated’ the use of lethal
f orce.” Id. Yet, P residing Justice Dickinson concluded that t h e “ c o n s t i t

u t i o n a l i n f irm ity could

n o t have af

f ected [ the def

endant’s] sentence,” because “the j ury f ound that Cox actually killed.” Id.

1 2 3¶281. In, i n n o n e o f the cases cited by the m ajority and the State did this Court af f irm a death sentence in a case in w hich the jury f ound solely that the def

e ndant “contem

plated that lethal f orce would be em

ploy e d.” See Evans v. S

t a t e , 226 So. 3d 1, 12 (Miss. 2017), cert. denied , No. 17-7245 (June 28, 2018) (“The jury f ound bey ond a r easonable doubt that Evans actually had killed [ decedent].”); Dickerson v. State , 175 So. 3d 8, 33 ( Miss. 2015), cert. denied , 136 S. Ct. 1713, 194 L. Ed. 2d 813 (2016) ( “[ T]he jury f ound that Dickerson actually killed [ d ecendent].”); R onk v . State , 172 So. 3d 1 112, 1145 ( Miss. 2015) (“[ T ]he j ury f ound . . . [ that] the Def

e ndant actually

killed [ decedent].”); Corrothers v. State , 1 48 So. 3d 278,
322 ( Miss. 2014) ( The jury f ound that victim

actually was killed); Batiste v. State , 121 So. 3d 808, 872 (Miss. 2013) (“[ T]he jury f ound that all f

our f actors were present in this case.”);
K n o x v . S t a te , 901 So. 2d 1257, 1268 (Miss. 2005) (“The jury f o und that Knox actua l l y killed [ decedent].”). ¶282. T h i s Court h eld in Dickerson that, “[ u]nder Enm u nd and Tison , a def e n d a n t w h o participated in the com m ission of a f elony , b u t did not actually kill or intend t o kill the victim , c annot receive the death penalty .” Dickerson , 175 So. 3d at 31. Yet, despite the jury ’s f inding that Dickerson actually had killed the decedent, the m ajority relies on the Dickerson
Cou r t ’ s c o n fi r m a t i o n o f t

h e c o n s t i t u t ionality o f Section 99-19-101(7) to c onclude that Section 99-19-101(7) is constitutional as a pplied in this case. The m ajority ’ s ef f ort to upend what it recognized a s binding a

uthority f rom the United States Suprem e Co u r t i n Dickerson f ails.
In t his c ase, Am

brose “participated in the com m ission of a f elony , ” b ut the jury did not f ind

t hat he “actually kill[ ed] or intend[ ed] to kill the victim .” Dickerson , 175 So. 3d a t 3 1

. Accordingly , Am

brose “cannot receive the death penalty .” I d. 1 2 4¶283. In another case, this Court reversed a death sentence because “ the j ury did not f ind bey ond a reasonable doubt t h a t Randall killed [ decedent], that Randall attem pted to kill [ decedent], or that R andall intended that a killing take place.” Randall v. State , 806 So. 2d 185, 234 (Miss. 2001). In a case ref erenced in Randall , this Court expressed concerns sim ilar

to those expressed by the United States S uprem e Court in Tison about the breadth of Section 99-19-101(7)(d):
One m ay contem

plate lethal f

orce while s topping s hort of a def inite p lan or design to kill. I n a sense, Subsection (d) describes a contingent intent. W here, as a part of pre-crim e planning, a def endant includes in his plans t he substantial probability that f atal f orce will be e m

ploy ed, S ubsec t i o n ( d ) is satisf ied. On the other hand, m ere tort f oreseeability

—an o b jective, r easonable m an approach—f

a lls well short of

what the statute requires.
White v. State , 532 So. 2d 1207, 1221 (Miss. 1988). In White , this Court r eversed and rendered t he death sentence b ecause “ the evidence concerning the events bef ore a nd af ter the robbery of

f ers no indication w hich robber ki l l ed [ decedent], or that any of the three

contem plated i n advance that lethal f orce would b e em

ploy ed.” Id. at 1223, 1 221. T he Court continued: “ [ b]ecause nothing i n the record legitim atel y suggests that W hite killed or
contem plated any

phy sical harm

to [ d ecedent], the death verdict dies.” Id. at 1221. ¶284. In attem

pting to distinguish White , the m a j ority avers that “the W

h i t e C o u r t was addressing whether the evidence was legally insuf f icient to support a sentence of death, not whether a sole Section 99-19-101(7)(d) f inding was constitutional.” Maj. Op. ¶ 88. But this Court observed in White that:
Our h olding, though predicated on the statute, is n onetheless consistent with Enm und and its latest interpretation. Tison v. Arizona , 481 U.S. 137, 107 S. Ct. 1676, 95 L. Ed. 2d 127 (1987). Supporting the C ourt’s rem and in Tison is the requirem ent t hat p roof be addressed c o n c e rning t he s tate of m ind of the 1 2 5actors w here the only prim ary proof of culpability relates t o com m ission of the

underly ing f

elony

. Tison v. Arizona , 481 U .S. 137, 107 S. Ct. 1676, 95 L. Ed. 2d 127 (1987). This holding is wholly consistent with our holding today that a death sentence be supported by proof

. Yet the m ajority contends that “ W hite stands f

or t he proposition that a death verdict m ay be upheld if the l egally suf

f icient evidence supports a f inding that the def

e ndant contem

plated that lethal f

orce would be used.” Maj. Op. ¶ 90. The W hite Court observed that, to the extent Section 9 9 -19-101(7)(d) is interp r e t e d to m ean “m ere tort f oreseeability

—an objective, reasonable m an approach,” such interpretation “ f a lls well short of what the statute requires” because “one m ay contem plate lethal f

orce while stopping s hort of a def i nite plan or design to kill.” White , 532 So. 2d at 1221. White does not say what the m ajority im putes to it. ¶285. And A bram v

. State of f ers no f urther support to the m ajority ’s position. In that case: Abram ’s c o n f

e s sion reveals that he willingly and knowingly accom panied Herm an B arnes to the Quick Stop with the specif ic, actual intent t o com m it a robbery

. He was perf

ectly aware of t h e f

a ct that Barnes brought a l ong a shotgun with shells which Barnes state d w a s n e eded “f or security

. ” On location, Abram watched as Barnes e ntered the store with t he loaded s hotgun, then entered the s t o r e him self at Barnes’[ s] request. Af ter the f act, Abram claim s he never intended f o r any one to be killed.
Abram v. State , 606 So. 2d 1015, 1043 (Miss. 1992), overruled on other grounds by Foster

v. S tate , 961 So. 2d 670 (Miss. 2007)). This Court, accordingly , held that a “ f air-m inded and rational jury , drawing on these f acts and any r easonable inf erences arising theref

rom , could have concluded b e y ond a reasonable doubt that A bram ‘included in his plans the s u bstantial probability ’ that the loaded shotgun would be used as an instrum ent of lethal f o rce ‘to insure the robbery ’s s uccess.’” A bram , 606 So. 2d at 1043 ( quoting White , 532 So. 2d at 1221-22).

1 2 6¶286. And while the Abram Court m ay have criticized the circuit court’s holding that proof

m ust exist “of an a ctual o r d e f inite plan or design to kill,” since Abram , this Court since has held that: “[ u]nder Enm und and Tison , a def e ndant w h o p articipated in the c om m ission of

a f elony , but did not actually kill or intend to kill t h e v i c t i m , cannot receive t he death penalty .” Dickerson , 175 So. 3d at 31. ¶287. Accordingly , because t he jury f oun d o n l y t h at Am

brose “contem

plated that lethal
f orce would be em

p loy ed,” Am

brose’s death sentence should be vacated.
3b. The trial court com m itted reversible error by seating an alternate juror during the sentencing phase. ¶288. Am

brose’s death sentence also s hould b e v a cated because the trial court seated an

a l t e r n a t e j uror f

or the sentencing phase who had not participated i n t he guilt phas e deliberations, an error which tainted the penalty p hase jury a nd violated M ississ i p p i C o d e Section 99-19-101(1) (Rev. 2015). During sentencing phase t estim o ny , Juror Jef f rey Jenkins disclosed, in the f

orm of a note, h is personal relationship w ith Am brose’s f am i ly

. Am

brose’s counsel m oved f

or a m istrial, arguing t h a t t h e j u ry potentially had been corrupted by what Jenkins had told other jurors about Am brose’s f am ily

. But, instead of granting a m istrial, the trial court rem oved J enkins f r om the sentencing phase jury and replaced h im with the f irst alternate juror, Glen Turner. ¶289. Mississippi’s capital sentencing statute requires that:
U p on conviction o r adjudication of guilt o f a def endant of capital m

urd e r o r other capital of

f e nse, the court shall conduct a separate sentencing proceeding t o determ ine whether the def endant should be sentenced to death, lif e im p risonm ent without eligibility f o r p a r ole, or l if

e im prisonm ent. The proceeding shall be conducted by the trial judge bef

ore the trial jury a s soon as practicable. If

, through i m

possibility or inability , the trial jury is unable to 1 2 7reconvene f o r a hearing o n the issue o f penalty , having d eterm i ned the guilt of the accused, the trial judge m ay sum m on a jury to determ ine the issue of the im p osition of

the penalty

. M i s s . Code Ann. § 99-19-101(1) (Rev. 2015) (em phasis added). In Evans , this C o u r t considered a case in which a j uror, “af ter guilt-phase deliberations, but prior t o the s e ntencing phase

. . . w as excused upon learning that her son had suf f ered an injury requiring em ergency
surgery ” and was replaced with an alternate juror. Evans , 226 So. 3d at 24. ¶290. I a greed with Evans’s argum ent that the trial c o u r t c o mmitted reversible error by seating the alternate juror in violation of Mississippi’s capital sentencing statute. Evans , 226
So. 3d at 51 (Kitchens, J., dissenting). Because “the substitution of a n a lternate juror occurred af

ter t he com

pletion of the guilt phase deliberations, but bef ore the com m encem ent of sentencin g p h a s e deliberations,” I wrote, “the newly seated alternate juror lacked the benef it of having p articipated in the guilt phase deliberations, a characteristic shared by the other eleven s e n t e n c i ng phase jurors.” Id. at 52. T he statute provides that “[ i]f , through im p ossibility or inability , the t r i a l j ury is unable t o r econvene f or a h earing on t he issue of penalty , h aving determ ined the guilt of the a c c u s e d, t he trial j udge m ay sum m on a jury to determ ine the i ssue of the i m p o sition of the penalty .” M iss. Code Ann. § 9 9-19-101(1) (Rev. 2015). Because the trial court excused one o f the jurors, I c o n t i n u e d , the jury was “unable

to reconvene,” and the t rial court w a s lef t with “no choice but t o sum m on another jury to determ ine the penalty .” E vans , 226 So. 3d at 52 (Kitchens, J., dissenting). ¶291. The m ajority concluded here that “Am brose f ails t o show any actual p rejudice by the trial court’s ruling on the m otion f or a m istrial o r on the rem oval a n d replacem ent o f the juror.” Maj. Op. ¶ 127. But “[ t]he trial court’s seating of an alternate juror f or the s e ntencing 1 2 8phase who had not participated i n g u ilt phase deliberations w ith the other eleven jurors

tainted the sentencing p hase jury and violated Section 99-19-101.” Evans , 226 So. 3d at 52 (Kitchens, J., dissenting). And, as in Evans , the t rial court’s f ailure to adhere to Section 99-
19-101 violated Am

brose’s r ight to due process of l aw under the Fourteenth Am endm ent to the U nited States Constitution and Article 3 , Section 1 4, of the Mississippi C onstitution. Id.
W i th respect, I would vacate Am b rose’s sentence.
4b1. The trial court com m itted reversible error b y ex cusing a venireperson w ho w as not disqualified and w ho should h ave been allow ed to serve. ¶292. Venirepers o n A l l i s o n M e l e o n e s , w h en asked whether she believed i n the death penalty , responded: “I j ust don’t know if I c ould actually g o through with it. I don’t know if
I c o u l d l i v e with t hat on m y m ind. I don’t k now. I haven’t really given it a l ot of thought bef ore t his. Now I m ean, I just don’t know the circum stances. M ay be.” W hen asked whether she would choose d e ath or lif e in prison if given the choice, Meleones s a i d , “ I would probably choose lif

e in prison.” The exam ination continued as f ollows:
MR. RISHEL: You s ay probably not. W hy would y ou say probably not?

[ W ] h y n o t j ust say no, I’m not voting f or the death penalty ever. I’m n ot telling y ou what to say , but what is it t hat is sticking i n y our m ind keeping y o u f r om m aking a f ull com m itm ent? ”
MS. MELEONES: T o b e h o n e s t , I haven’t given a w hole lot of t houg h t

about the death penalty or how I f elt a b out i t

. I’ve only b e e n a registered voter f or t wo m onths, and t his i s my f irst jury duty , so I really d on’t know how I f eel about it 100 percent. I f

eel like that is not som ething that I agree with.

1 2 9MR. RISHEL: S o w h e n y o u say probably , y ou don’t reall y k n o w , d o y ou? You have t o wait until y ou know w hat h a p p e ned, don’t y ou?
MS. MELEONES: Yes.
MR. RISHEL: Once y ou f ound out w hat happened y ou m ight be able to v ote f or the d eath penalty if y ou thought it was appropriate, would that be true?
MS. MELEONES: May be. I don’t—probably not. I can’t say any thing else besides probably

not. ¶293. In Witherspoon v. Illinois , the U nited S t a t e s Suprem e Court reversed a d eath sentence because the State had “swept f r om the jury all who e xpressed conscie n t i o u s o r religious scruples against capi t a l p u nishm ent and all w ho opposed it in principle.” Witherspoon v. Illinois , 3 91 U.S. 510, 520-21, 88 S. Ct. 1770, 20 L. Ed. 2 d 7 76 (1968). The nation’s high
C o u rt h eld “that a s entence of d eath cannot be c arried out if the jury that im p o s e d o r

recom m ended it was chosen b y excluding venirem en f o r cause sim

ply because t hey voiced general objections to the death penalty or expressed conscientiou s o r r eligious scruples against its inf

liction.” Id. at 521-22. In W itherspoon , the trial court had struck a j uror who, sim ilar to Venireperson Meleones, stated that “she w ould not ‘like to be responsible f or . . . deciding som ebody

should be put to death.’” Id. at 515. ¶294. In Wainwright v. Witt , the United States Suprem e Court clarif ied that: That standard is w hether t he juror’s views would “ pr e v e n t o r substantially im p air the pe r f

o r mance o f his d

uties as a juror i n a ccordance w ith his instruction s and his oath.” W e note that, in addition to dispensing with Witherspoon ’s ref

erence to “autom a tic ” d ecisionm aking, this standard likewise does not r eq u ire that a juror’s bias be proved with “unm istakable clarity .” This is because d eterm inations of juror bias cannot b e r e duced to question-and- a n swer s essions w hich obtain results i n the m anner of a catechism

. W h at com m on s ense should have realized experience has proved: 1 3 0m any venirem e n sim ply c annot be asked enough q uestions to reach the point where their b i a s has b e en m ade “unm istakably clear”; t hese venirem en m ay not know how they will react when f a ced with im

posing the death sentence, or m ay be unable to articulate, or m ay wish to hide their true f eelings. Despite t h i s l ack of clarity in the printed record, h owever, there will b e situatio n s where the trial judge is l ef t with the d ef

inite im pression t hat a prospective juror would be unable to f

a ithf ully and im partially apply the law. Wainwright v. Witt , 469 U.S. 412, 424-26, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985). ¶295. In Fusilier v. State , this Court reiterated the f am iliar standard:
As stated by the United S tates Suprem e Court in Adam s [ v. Texas ], “Neither nervousness, e m o tional involvem ent, nor inability to deny o r c onf irm any ef f ect whatsoever i s equivalent to an unwillingness o r inability on the p art of the jurors to f

ollow the court’s instructions and obey t heir oaths, regardless of their f eelings about the death penalty .” Adam s [ v. Texas ], 448 U.S. [ 38, ]50, 100 S. Ct. [ 2 521, ] 2 5 2 9 , 6 5 L

. Ed. 2d [ 581, ]593 [ (1980)]. Absent a clear showing that the prospective juror would be u nable to f ollow the court’s instructions and obey the juror’s oath, that j uror’s f eelings regarding t he death penalty do not consti t u t e g rounds f or a challenge and the granting o f such a challenge is reversible error. . . .
Fusilier v. State , 468 So. 2d 4 5 , 55 (Miss. 1 985). This Court ultim ately reversed the def endant’s conviction and death sentence, in part, because “the f ailure t o f ully develop any voir d i r e regarding [ the v enireperson] rendered her d ism issal f or c ause error.” Id. The venireperson had s tated “ that s he could b e a f air and i m p artial j uror,” but stood u

p when the district attorney asked whether any venireperson “just could not vote [ f or] the death penalty

no m atter what the f

acts or what the circum s tances are? ” Id. at 54. ¶296. In this case, the trial court ask e d V e n i r e p e r s o n Meleones, “if the e vidence proved

som eone to be guilty

of capital m

u rder and the law allowed the death penalty

as one of the penalties, do y ou t hink y ou c o u l d vote f o r it? ” (Em

phasis added.) Venireperson M eleones

1 3 1replied, “[ n]o.” T he trial c ourt continued: “Are y ou telling the lawy ers and m e that y ou could

not vote f or the death penalty

under any

circum stances? ” Venireperson Meleones said: [ U]m , I

. . . it’s just hard to say if I don’t know the case. Like, I ’m a teacher, so I see a lot of

kids that m ay

be they could have gone a dif

f erent way if they had dif f erent parents or m ade dif f e r ent c hoices. It’s h a r d t o think som e body could be def

ined by just one m istake. I don’t know. I d on’t know any details on the case. May

be. It cannot be said that the line of questioning em

p loy ed by the trial court and the lawy ers in this c ase created a “def

i nite im pression that a prospective juror would be unable to f aithf ully and im partially apply the law.” Venireperson Meleones’s answers were equivocal, to be sure, but it does not appear that the trial court or the lawy ers asked her whether she could f ollow the trial court’s instructions a nd obey the juror’s oath. She w as asked only whether, if the law allowed f or t he im position of the death penalty , she would vote in support of its em ploy m ent

or whether, if presented with lif e im prisonm ent or death as sentencing possibilities, she would choose death. ¶297. A s i n Fusilier , Venireperson Meleones’s ability t o set aside h er cons c i e n t i o u s s c r u p l e s about the death penalty

and to apply

the law as instructed by

the judge and in obedience to the juror’s o ath was not f leshed out adequately on voir dire

. Fai l u r e to apply the correct standard f or determ i ning whether a venireperson’s conscientious scruples a gainst the death penalty disqualif

ies him or her f

rom serving o n a jury in a capital case am ounts t o reversible

error. 7. The indictm ent charging Am brose w ith capital m urder w as f atally defective because it fai led t o allege conduct by the defendant t hat constituted kidnapping.

1 3 2¶298. “In all crim inal prosecutions, the accused shall enjoy the right

. . . to be inf orm ed of the n ature and cause of the accusation.” U. S

. C o n st. am end. VI (em phasis added). Mississippi’s counterpart to the Sixth Am endm ent to t he U n ited States Constitution guarantees that, “[ i]n all crim inal prosecutions the accused shall have a right

. . . to dem and the nature and cause of the a ccusation.” Miss. C onst. a r t

. 3 , § 26 ( em phasis added). At the tim e of Am

brose’s trial, Unif

orm Rule of Circuit and County Court Practice 7.06 a pplied. 21
Rule 7.06 required that “[ t]he indictm ent upon w h ich t he def endant is to be tried shall be a plain, concise and def

i nite written statem ent of the essential f acts constituting t h e of

f ense charged and shall f

ully notif y the def endant of the natur e a n d cause of the accusation.”
URCCC 7.06. This C ourt requires an indictm ent to contain: “(1) the essential elem ents of the of f ense charged, (2) suf

f icient f acts to f air l y inf o rm the def

endant of the charge against which he m

ust def end, and (3) suf

f icient f acts to enable him t o plead double jeopardy in the

event of a f

uture prosecution f

o r the sam e of

f ense.” Gilm er v

. State , 955 So. 2d 829, 836-37 (Miss. 2007) ( citing H

am ling v. U

nited States , 418 U.S. 8 7, 117, 94 S. Ct. 2 887, 41 L. Ed. 2d 590 (1974)). ¶299. Am

brose’s indictm ent alleged that:
ABDUR RAHIM AMBROSE

. . . in the F i r s t J udicial D istrict of Harrison County , Mississippi, on or about A pril 7, 2013[ ,] did then and there w illf ully , unlawf u lly , f eloniously and with or without design to ef f e ct deat h , k i ll and m urder Robert Trosclair, a hum an being, without a uthority of law, while in the com m ission of the crim e and f elony of Kidnapping, as def ined by Section 9 7- 3-53, Miss. C o d e o f 1972, (as am ended), contrary to S ection 97-3-19(2)(e),

21 U n if o r m R u le o f C ir cu it an d C o u n ty C o u rt P ractice 7 .0 6 w as rep laced b y M ississip p i R u le o f

C rim in al P ro ced u re 1 4 .1 (a) o n Ju ly 1 , 2 0 1 7

. S

ee M .R .C r.P

. 1 4 .1 (a). 1 3 3Miss. Code o f 1 9 7 2 , ( as am ended), and a g ainst the p eace a nd dignity of the

State of Mississippi.
I respectf u lly dissent because, while the f e l ony c rim e o f kidnapping and the a pplicable code section were ref

erenced in Am

brose’s indictm ent, Am

brose’s indictm ent d id not contain “a plain, concise and def

i n i t e written statem ent of the essential f acts constituting t he of

f ense charged” nor did it “f

ully n otif y [ him ] of the n ature and cause of the accusation.” URCCC
7.06. Am brose’s indictm ent did not contain “the e ssential e l em ents of the of f ense charged,

. . . s uf f icient f acts to f airly inf orm the def

e n d a n t o f t h e charge against which he m ust def end, and

. . . s uf

f icient f acts to enable him to plea d d o u b l e jeopardy in the event of a f uture prosecution f

or the sam e of

f ense.” Gilm er

, 955 So. 2d at 836-37 (citing Ham ling , 418
U.S. at 117). The glaring om ission of elem e n ts of or f acts c onstituting the underly i ng f elony crim e o f kidnapping f

alls woef u lly short of w h a t i s required by the f ederal and state constitutions and this Court’s rules and case law. ¶300. In Fulgham v. S

t a t e , I o b s erved in a special concurrence that ref erence to a statute “inf orm s the accused of the nature of the accusation; but it d oes not inf orm him or her of the

cause , i.e., ‘ y o u com m itted a robbery [ t he cause] , and here’s what robbery y ou com m itted [ the cause].’” Fulgham v . State , 46 So. 3d 3 1 5 , 3 4 4 ( M i s s. 2 010) (Kitchens, J., specially concurring 22 ) (em

p h asis i n original). I wrote t hat “[ t ]he indictm ent u nder w hich Fulgham was charged did not provide her an accurate description of the charge against h e r so she could

2 2 I w ro te a s p ecial co n cu rren ce b ecau s e, w h ile F u lg h am ’s in d ictm en t w a s in su f f icien t, th e issu e h ad n o t b e en raised o n ap p eal an d “F u lg h am ’s ap p e l late co u n sel w as th e sam e as h e r trial c o u n s el, so sh e w ill h av e an o p p o rtu n ity (sh o u ld s h e so d esire) to raise th e issu es in a p ro p erly f

i led p etitio n f

o r p o st-co n v i ctio n relief

.” F u lg h a m , 4 6 S o . 3 d 3 1 5

. 1 3 4adequately prepare h er def e nse . ” I d . I n t h a t c a s e , F u l g h a m ’s i ndictm ent incorporated, without
f urther com m ent, the word “[ r]obbery ” and incorrectly cited “Section 9 7-3-19(e),” by which the State presum ably intended Section 97-3-19(2)(e). Id. As I observed, “Fulgham was never put on notice of what personal p r o p e r ty s he was alleged to have t aken, or f rom whom the property was taken, or that the property was taken ‘by f orce or threat of f

orce,’” the elem ents of robbery

. F

ulgham , 46 So. 3d at 344 (Kitchens, J., specially concurring) ( quoting Crocker

v. State , 272 So. 2 d 664, 665 (Miss. 1973) )

. “ Indeed, w ere Fulgham charged with robbery alone, the indictm ent would f a ll woef ully short.” Fulgham , 46 So. 3d at 344 (Kitchens, J., specially concurring). ¶301. Here, Am

b rose w a s c h a r g e d with capital m urder which occurred in the course of a kidnapping. The elem ents of and punishm ent f

o r kidnapping are outlined as f ollows: Any person w ho, witho u t l a w f u l a u t h o r i t y a n d w i th o r w ithout intent to secretly conf

ine, shall f

orcibly seize and c o n f

ine any o ther person, or shall inveigle or kidnap a ny other person with i ntent t o cause such person to be conf ined or im

prisoned ag a i n s t h i s o r her will,

. . . upon conviction, shall be im p risoned f

or l if e in the custody of the Departm e n t of Corrections if the punishm e nt is so f

ixed by the jury in its verdict. If the j ury f a ils to a gree on f ixing the penalty at im

prisonm ent f

or lif e, the court shall f

ix t he p enalty at not less than one (1) y e ar nor m ore t h a n thirty (30) y ears i n the custody of the Departm ent of

Corrections. Miss. Code Ann. § 97-3-53 (Rev. 2014). W hile Am brose’s indictm ent f

or c apital m

urder incorporated Section 97-3-53 by ref erence, as in F

ulgham , it i nf

orm ed A m

brose only of the

nature of the accusation, i.e., that Am brose had com m i tted a k idnapping, not the cause of the accusation, i.e., the precise kidnappin g of which Am brose was b eing accused. B ecause no specif ic act constituting k idnapping was alleged by the State, it was im possible f or Am brose to prepare an adequate def ense. 1 3 5¶302. Unlike in Fulgham , Am brose raised the insuf

f iciency of the indict me n t b e f o r e the trial court in the f

orm “Motion to Require the State to Subm it a Bill o f Particulars Regarding the C harge Against the Def endant,” in which Am

brose argued that “the indictm ent does not allege what acts the def

endant allegedly c om m itted th a t w ould constitute kidnapping.” He reiterates those argum ents on appeal. ¶303. Am

brose’s indictm e nt is sim ilar to the indictm ent accusing Robert Carson of capital

m urder with the underly ing of f ense of robbery : ROBERT CARSON, a/k/a “BAY B AY,” on or about the 30th day o f A p r i l , 2012, i n the county a f

o resaid and within the jurisdiction of this C ourt, did, without authority of law and with or without any design t o ef f ect death , k i l l and m urder Jose Gurrola Ortiz, a hum an b eing, while the s a i d R O B ERT CARSON, a/k/a “BAY BAY” was then and there engaged i n the c o m m ission of the crim e of a robbery , in violation of Miss. Code A nn. § 97–3–73 (1972, as am ended), a nd in violation of Miss. Code Ann. § 9 7–3–19(2)(e) (1972, as am ended)[ .]
Carson v. State , 212 So. 3d 22, 37 ( Miss. 2016) (Kitchens, J ., dissenting). The C a r s o n

m ajority overruled R owland v. State , 98 S o. 3d 1032, 1039 (Miss. 2012), in which t his Court had held that a capital m

urder i ndictm ent that “ o m its the nam e of the victim of the underly ing crim e (robbery in Rowland ) ‘does not contain suf

f icient f acts to f airly inf orm the def

endant of the charge against which he m ust def end and to enable him

to plead d ouble jeopardy ’

. . . .” Carson , 212 So. 3d at 36-37 (Kitchens, J., dissenting). ¶304. The R o w l

a n d C o u r t s aid that “[ w]e specif ically have p rovided t hat ‘an indictm ent

m ust state the nam e of the victim of an of f ense where that is an element of t he offense , and

a f ailure to state it, or a m a terial variance b e t w e e n statem ent a nd proof is f atal, but an

1 3 6im m aterial variance is not.’” Rowland , 98 So. 3 d a t 1039 (quoting Burks v. State , 770 So.

2d 960, 963 (Miss. 2012) (em phasis in Rowland

)). The Court continued:
A capital-m

u rder indictm e nt that f

ails to identif

y the victim of the underly ing crim e d oes n ot contain s uf f icient f a cts to f airly i n f o r m t he def

endant of the charge against which h e m ust def end and t o enable him t o p l e a d d ouble jeopardy in t he event that he is separately punished or later prosecuted f or the underly ing f

e lony ; in other words, the i dentity o f the victim of the underly ing f elony is an elem ent of the of f ense of capital m

u rder that m

ust be stated in the capital-m urder indictm ent. Rowland , 98 So. 3d at 1039. Startlingly , this a naly sis evaporated in Carson

. Yet, “f or double jeopardy p urposes, the f

acts alleged m

ust be suf f icient t o distinguish the c harged crim e f rom other crim es.” C

arson , 212 So. 3d at 40 (Kitchens, J., d issenting) ( citing G oforth v. State , 70 So. 3d 174, 189 (Miss. 2011)). ¶305. In Carson , I wrote that “ [ b]ecause Carson’s i ndictm ent did not n am e t he victim , his indictm ent was f

atally def ective,” since “[ i]t did not contain suf f icient f acts to inf o rm Carson f airly of t he nature of t he charge and to enable him to plead double jeopardy in the event of

a later prosecution f

or the underly ing crime.” C arson , 212 So. 3d at 41-42 (Kitchens, J., dissenting). I also observed that: The f act that Carson’s indictm ent identif ies the victim of the underly ing crim e b y n am ing the h o m icide v ictim does not aid the S tate. The victim o f t h e underly ing crim e in a capital m urder c ase i s not alway s the person who was killed. For exam

p l e, i n Rowland , Rowland was convicted o f the capital m urder of Jam es Cam

pbell whi l e i n t h e com m ission of the arm ed robbery of a dif f erent p erson, Pat Bolton. Rowland , 98 So.3d at 1 033. He also was convicted o f the capital m u rder of Paul Hughes while i n the com m ission of the arm ed robbery of O.B. Singleton. Id. It would be a logical f allacy to assum e that identif

y ing the hom icide victim also i dentif ies the victim of the underly ing crim e. Carson , 212 So. 3d at 41 n.10 (Kitchens, J., dissenting).

1 3 7¶306. H e r e , t h e m a j o rity sim

ply say s “[ n]othing w ould prevent Am brose f rom pleading double jeopardy if the State sought to prosecute him in the f uture f o r the kidnapping.” Maj. Op. ¶ 218. But nothing in the indictm ent inf orm ed Am

brose of the particular kidnapping f or which h e h a d been accused; m ore im p ortantly , while Trosclair’s nam e is ref e renced in the capital m urder portion of the indictm ent, the indictm e n t does not inf orm Am brose that he had been accused of kidnapping T r osclair. In other w ords, the State later could b ring k idnapping charges against Am

brose, alleging that Am

brose ki d n a p p ed Trosclair or any one else, and
Am brose would be unable to prevent the State f r om doing so on double jeopardy grounds.
He c ould not say that the State was precluded on double jeopardy grounds f rom prosecuting him f or the particular kidnapping alleged in his capital m urder indictm ent. ¶307. And the m ajority ’s reliance on Batiste is m isplaced. As I observed i n Carson , Batiste “held that an indictm e nt f or capital m

urder with the u nderly ing f elony of robbery need not list the items t a k e n i n t he robbery .” Carson , 212 S o. 3d at 41 (Kitchens, J., dissenting).
Batiste did not address “a capital m urder indictm ent’s f

ailure to identif

y the v i c t i m o f the underly ing crim e, and B atiste sim ply relied on Goff

[ v. S tate , 14 So. 3 d 625 (Miss. 2009),] without citing the later-decided Rowland , indicating that the Court sim p ly f ailed to consider it.” Id. ¶308. The m aj o r i t y ’ s “we a ll k now what the State m eant” approach blatantly v iolates the Sixth Am endm ent to the United States Constitution and Article 3 , S e c t i on 26, of the Mississippi Constitution. I would reverse Am brose’s conviction and d ism iss the indictm ent. 12. Cum ulative error requires reversal.

1 3 8¶309. “The question under all cases is whether the c um ulative ef f ect of all errors com m itted during the trial deprived the def endant of a f undam entally

f air and im

partial trial.” Walker

v. State , 913 So. 2 d 198, 249 (Miss. 2005) (citation om itted). Recognizing t hat A m brose “is

not entitled to a perf

ect trial, only a f

air trial,” W

alker , 913 So. 2d at 249 (citations om itted), the m ultitude o f errors w hich occurred during Am brose’s trial deprived him of a f undam entally f

air and im p artial trial. I would reverse Am brose’s capital m

urder conviction and death sentence under the doctrine of cum ulative error. KING AND ISHEE, JJ., JOIN THIS OPINION.

1 3 9APPENDIX

DEATH CASES AFFIRMED BY THIS COURT

Curtis Giovanni Flowers v . State , 2 40 S o. 3d 1082 (Miss. 2017), following remand from U.S. Supreme Court in 136 S. Ct. 2157, 195 L. Ed. 2d 817 (2016). Tim othy Nelson Evans v. State , 226 So. 3d 1 (Miss. 2017).
Jam es Cobb Hutto III v. State , 227 So. 3d 963 (Miss. 2017). David Cox v. State ,183 So. 3d 36 (Miss. 2015).
David Dickerson v. State , 175 So. 3d 8 (Miss. 2015).
Tim othy Robert Ronk v. State , 172 So. 3d 1112 (Miss. 2015).
Curtis Giovanni Flowers v. State , 1 58 So. 3d 1009 (Miss. 2014) ( on rem a n d), vacated a n d remanded o n c ertiorari by U .S. Supreme Court i n 136 S. Ct. 2157, 195 L. Ed. 2 d 817(2016).
Caleb Corrothers v. State , 148 So. 3d 278 (Miss. 2014), leave to seek PCR granted in part and denied in part (Feb. 2, 2017), r ehearing denied (May 11, 2017).
Jason Lee Keller v

. State , 138 So. 3 d 8 17 (Miss. 2 014), leave t o s eek PCR granted in part and denied in part ( May 25, 2017). Leslie Galloway III v. State , 122 So. 3d 614 (Miss. 2013). Bobby Batiste v. S

tate , 121 So 3d 808 ( Miss. 2 013), granted leave to seek P CR (Jan. 21, 2016). Roger Lee Gillett v. State , 56 So. 3d 469 (Miss. 2010). Moffett v. State , 49 So. 3d 1073 (Miss. 2010). Pitchford v. State , 45 So. 3d 216 (Miss. 2010). Goff v. State , 14 So. 3d 625 (Miss. 2009).

1 4 0Wilson v. State , 21 So. 3d 572 (Miss. 2009).

Cham berlin v. State , 989 So. 2d 320 (Miss. 2008).
Loden v. State , 971 So. 2d 548 (Miss. 2007). King v. State , 960 So. 2d 413 (Miss. 2007).
Bennett v. State , 9 3 3 So. 2d 930 (Miss. 2006).
Havard v. State , 928 So. 2d 771 (Miss. 2006). Spicer v. State , 921 So. 2d 292 (Miss. 2006). Hodges v. State , 912 So. 2d 730 (Miss. 2005). Walker v. State , 913 So. 2d 198 (Miss. 2005).
Le v. State , 913 So. 2d 913 (Miss. 2 005), granted leave to seek second PCR , 2013- DR-00327-SCT (Feb. 23, 2016). Brown v. State , 890 So. 2d 901 (Miss. 2004).
Powers v. State , 883 So. 2d 20 (Miss. 2004)
Branch v. State , 882 So. 2d 36 (Miss. 2004).
Scott v. State , 878 So. 2d 933 (Miss. 2004). Lynch v. State , 877 So. 2d 1254 (Miss. 2004). Dycus v. State , 875 So. 2d 140 (Miss. 2004). Byrom v. State , 863 So. 2d 836 (Miss. 2003).
Howell v. State , 860 So. 2d 704 (Miss. 2003).
Howard v. State , 853 So. 2d 781 (Miss. 2003).
Walker v. State , 815 So. 2d 1209 (Miss. 2002). *f ollowing rem a nd. Bishop v. State

, 812 So. 2d 934 (Miss. 2002).

1 4 1Stevens v. State , 806 So. 2d 1031 (Miss. 2002).

Grayson v. State , 806 So. 2d 241 (Miss. 2002).
Knox v. State , 805 So. 2d 527 (Miss. 2002).
Sim m ons v. State , 805 So. 2d 452 (Miss. 2002). Berry v. State , 802 So. 2d 1033 (Miss. 2001).
Snow v. State , 800 So. 2d 472 (Miss. 2001).
Mitchell v. State , 792 So. 2d 192 (Miss. 2001).
Puckett v. State , 788 So. 2d 752 (Miss. 2001). * f ollowing rem and.
Goodin v. State , 787 So. 2d 639 (Miss. 2001).
Jordan v. State , 786 So. 2d 987 (Miss. 2001). Manning v. State , 765 So. 2d 516 (Miss. 2000). *f ollowing rem and. Eskridge v. State , 765 So. 2d 508 (Miss. 2000). McGilberry v. State , 741 So. 2d 894 (Miss. 1999) . Puckett v. State , 737 So. 2d 322 (Miss. 1999). *rem anded f or B atson hearing. Manning v. State , 7 35 So. 2d 323 (Miss. 1999). *rem a nded f or Batson h earing. Hughes v. State , 735 So. 2d 238 (Miss. 1999).
Turner v. State , 732 So. 2d 937 (Miss. 1999).
Sm ith v. State , 7 29 So. 2d 1191 (Miss. 1998).
Burns v. State , 729 So. 2d 203 (Miss. 1998).
Jordan v. State , 728 So. 2d 1088 (Miss. 1998). Gray v. State , 728 So. 2d 36 (Miss. 1998). Manning v. State , 726 So. 2d 1152 (Miss. 1998). 1 4 2Woodward v. State , 726 So. 2d 524 (Miss. 1997).

Bell v . State , 725 So. 2d 836 (Miss. 1998), post-conviction relief granted in part and denied in part , 725 So. 2d 836 (Miss. 2011). Evans v. State , 725 So. 2d 613 (Miss. 1997).
Brewer v. State , 725 So. 2d 106 (Miss. 1998). Crawford v. State , 716 So. 2d 1028 (Miss. 1998).
Doss v. State , 709 So. 2d 369 (Miss. 1996).
Underwood v. 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).
Sim on v. State , 688 So. 2d 791 (Miss.1997).
Jackson v. State , 684 So. 2d 1213 (Miss. 1996).
William s v. State , 684 So. 2d 1179 (Miss. 1996).
Davis v. State , 684 So. 2d 643 (Miss. 1996). Taylor v. State , 682 So. 2d. 359 (Miss. 1996).
Brown v. State , 682 So. 2d 340 (Miss. 1996).
Blue v. State , 674 So. 2d 1184 (Miss. 1996). Holly v. State , 671 So. 2d 32 (Miss. 1996).
Walker v. State , 671 So. 2d 581 (Miss. 1995).

1 4 3Russell v. State , 670 So. 2d 816 (Miss. 1995).

Ballenger v. State , 667 So. 2d 1242 (Miss. 1995).
Davis v. State , 660 So. 2d 1228 (Miss. 1995).
Carr v. State , 655 So. 2d 824 (Miss. 1995).
Mack v. State , 650 So. 2d 1289 (Miss. 1994).
Chase v. State , 645 So. 2d 829 (Miss. 1994).
Foster v. State , 639 So. 2d 1263 (Miss. 1994).
Conner v. State , 632 So. 2d 1239 (Miss. 1993).
Hansen v. State , 592 So. 2d 114 (Miss. 1991).

* Shell v. State , 554 So. 2d 887 (Miss. 1989); Shell v. Mississippi , 498 U.S. 1 (1990) reversing, in part, a nd rem anding; Shell v. State , 595 So. 2d 1323 (Miss. 1992) rem anding f or new sentencing hearing.
Davis v. State , 551 So. 2d 165 (Miss. 1989).
Minnick v. State , 551 So. 2d 77 (Miss. 1989). *Pinkney v

. State , 538 So. 2d 329 ( M i s s . 1 9 8 9 ); Pinkney v. Mississippi , 494 U.S. 1075 ( 1990) vacating and rem anding; Pinkney v . St a t e , 6 0 2 So. 2d 1 177 (Miss. 1992) rem anding f

or new sentencing hearing.
*Clem ons v. State , 535 S o. 2d 1354 (Miss. 1988); C lem ons v. Mississippi , 494 U.S. 738 (1990) vacating and rem anding; Clem o ns v. State , 5 9 3 S o . 2d 1004 (Miss. 1992) rem anding f

or new sentencing hearing.
Woodward v. State , 533 So. 2d 418 (Miss. 1988).
Nixon v. State , 533 So. 2d 1078 (Miss. 1987).
Cole v. State , 525 So. 2d 365 (Miss. 1987).
Lockett v. State , 517 So. 2d 1346 (Miss. 1987).
Lockett v. State , 517 So. 2d 1317 (Miss. 1987). 1 4 4Faraga v. State , 514 So. 2d 295 (Miss. 1987).

*Jones v. S

tate , 517 So. 2d 1295 (Miss. 1987); Jones v. Mississippi , 4 87 U .S. 1230 (1988) vacating and rem anding; Jones v. S tate , 602 S o. 2d 1170 ( Miss. 1992) r em anding f or new sentencing hearing. Wiley v. State , 484 So. 2d 339 (Miss. 1986).
Johnson v. State , 477 So. 2d 196 (Miss. 1985). Gray v. State , 472 So. 2d 409 (Miss. 1985).
Cabello v. State , 471 So. 2d 332 (Miss. 1985).
Jordan v. State , 464 So. 2d 475 (Miss. 1985).
Wilcher v. State , 455 So. 2d 727 (Miss. 1984).
Billiot v. State , 454 So. 2d 445 (Miss. 1984). Stringer v. State , 454 So. 2d 468 (Miss. 1984). Dufour v. State , 453 So. 2d 337 (Miss. 1984).
Neal v. State , 451 So. 2d 743 (Miss. 1984).
Booker v. State , 449 So. 2d 209 (Miss. 1984).
Wilcher v. State , 448 So. 2d 927 (Miss. 1984).
Caldwell v. State , 443 So. 2d 806 (Miss. 1983). Irving v. State , 441 So. 2d 846 (Miss. 1983).
Tokm an v. State , 435 So. 2d 664 (Miss. 1983).
Leatherwood v. State , 435 So. 2d 645 (Miss. 1983).
Hill v. State , 432 So. 2d 427 (Miss. 1983).
Pruett v. State , 431 So. 2d 1101 (Miss. 1983).
Gilliard v. State , 428 So. 2d 576 (Miss. 1983). 1 4 5Evans v. State , 422 So. 2d 737 (Miss. 1982).

King v. State , 421 So. 2d 1009 (Miss. 1982).
Wheat v. State , 420 So. 2d 229 (Miss. 1982).
Sm ith v. State , 419 So. 2d 563 (Miss. 1982).
Johnson v. State , 416 So. 2d 383 (Miss.1982).
Edwards v. State , 413 So. 2d 1007 (Miss. 1982).
Bullock v. State , 391 So. 2d 601 (Miss. 1980).
Reddix v. State , 381 So. 2d 999 (Miss. 1980). Jones v. State , 381 So. 2d 983 (Miss. 1980).
Culberson v. State , 379 So. 2d 499 (Miss. 1979). Gray v. State , 375 So. 2d 994 (Miss. 1979).
Jordan v. State , 365 So. 2d 1198 (Miss. 1978).
V oyles v. State , 362 So. 2d 1236 (Miss. 1978). Irving v. State , 361 So. 2d 1360 (Miss. 1978). Washington v. State , 361 So. 2d 6l (Miss. 1978).
Bell v. State , 360 So. 2d 1206 (Miss. 1978). *Case was originally af

f irm ed in t his C ourt but on rem a nd f r om U. S

. Suprem e Court, case was rem anded by

this Court f

or a new sentencing hearing.

1 4 6DEATH CASES REVERSED AS TO GUILT PHASE A ND SENTENCING PHASE Justin Barrett Blakeney v. State , 236 So. 3d 11 (Miss. 2017). S h e r w o o d B r o w n v

. S t a t e , 2 0 17-DR-00206=SCT ( Oct. 2 6, 2017) ( o r d e r g r a n t i n g p o s t

conviction relief a nd v acating u nderly ing convictions a n d sentences and r em anded to the DeSoto County

Circuit Court f

or a new trial). Erik Wayne Hollie v. State , 174 So. 3d 824 (Miss. 2015). Manning v

. State , 158 So. 3d 302 (Miss. 2015) (reversing denial of post-conviction relief )

. Byrom v. State , 2014-DR-00230-SCT (April 3, 2014) (order). Ross v. State , 9 5 4 So. 2d 968 (Miss. 2007). Flowers v. State , 9 4 7 So. 2d 910 (Miss. 2006). Flowers v. State , 842 So. 2d 531 (Miss. 2003). Randall v. State , 806 So. 2d 185 (Miss. 2002). Flowers v. State , 773 So. 2d 309 (Miss. 2000). Edwards v. State , 737 So. 2d 275 (Miss. 1999). Sm ith v. State , 733 So. 2d 793 (Miss. 1999).
Porter v. State , 732 So. 2d 899 (Miss. 1999). Kolberg v. State , 704 So. 2d 1307 (Miss. 1997).
Snelson v. State , 704 So. 2d 452 (Miss. 1997).
Fusilier v. State , 702 So. 2d 388 (Miss. 1997).
Howard v. State , 701 So. 2d 274 (Miss. 1997).
Lester v. State , 692 So. 2d 755 (Miss. 1997).
Hunter v. State , 684 So. 2d 625 (Miss. 1996).
1 4 7Lanier v. State , 684 So. 2d 93 (Miss. 1996).

Giles v. State , 650 So. 2d 846 (Miss. 1995). Duplantis v. State , 644 So. 2d 1235 (Miss. 1994).
Harrison v. State , 635 So. 2d 894 (Miss. 1994).
Butler v. State , 608 So. 2d 314 (Miss. 1992).
Jenkins v. State , 607 So. 2d 1171 (Miss. 1992).
Abram v. State , 606 So. 2d 1015 (Miss. 1992). Balfour v. State , 598 So. 2d 731 (Miss. 1992). Griffin v. State , 557 So. 2d 542 (Miss. 1990).
Bevill v. State , 556 So. 2d 699 (Miss. 1990).
West v. State , 553 So. 2d 8 (Miss. 1989).
Leatherwood v. State , 548 So. 2d 389 (Miss. 1989).
Mease v. State , 539 So. 2d 1324 (Miss. 1989).
Houston v. State , 531 So. 2d 598 (Miss. 1988).
West v. State , 519 So. 2d 418 (Miss. 1988).
Davis v. State , 512 So. 2d 129l (Miss. 1987).
William son v. State , 512 So. 2d 868 (Miss. 1987).
Foster v. State , 508 So. 2d 1111 (Miss. 1987).
Sm ith v. State , 499 So. 2d 750 (Miss. 1986).
West v. State , 485 So. 2d 681 (Miss. 1985).
Fisher v. State , 481 So. 2d 203 (Miss. 1985).
Johnson v. State , 476 So. 2d 1195 (Miss. 1985). 1 4 8Fuselier v. State , 468 So. 2d 45 (Miss. 1985).

West v. State , 463 So. 2d 1048 (Miss. 1985).
Jones v. State , 461 So. 2d 686 (Miss. 1984). Moffett v. State , 456 So. 2d 714 (Miss. 1984).
Lanier v. State , 450 So. 2d 69 (Miss. 1984). Laney v. State , 421 So. 2d 1216 (Miss. 1982).

1 4 9DEATH CASES REVERSED AS TO PUNISHMENT AND REMANDED FOR RESENTENCING TO LIFE IMPRISONMENT Bell v. State , 160 So. 3d 188 (Miss. 2016).
Reddix v. State , 547 So. 2d 792 (Miss. 1989).
Wheeler v. State , 536 So. 2d 1341 (Miss. 1988).
White v. State , 532 So. 2d 1207 (Miss. 1988).
Bullock v. State , 525 So. 2d 764 (Miss. 1987).
Edwards v. State , 441 So. 2d 84 (Miss. l983). Dycus v. State , 440 So. 2d 246 (Miss. 1983).
Colem an v. State , 378 So. 2d 640 (Miss. 1979).

1 5 0DEATH CASES REVERSED AS TO P UNISHMENT AND REMANDED FOR A NEW TRIAL

ON SENTENCING PHASE ONLY
Fulgham v. State , 4 6 So. 3d 315 (Miss. 2010).
Rubenstein v. State , 941 So. 2d 735 (Miss. 2006). King v. State , 784 So. 2d 884 (Miss. 2001).
Walker v. State , 740 So. 2d 873 (Miss. 1999).
Watts v. State , 7 33 So. 2d 214 (Miss. 1999).
West v. State , 725 So. 2d 872 (Miss. 1998).
Sm ith v. State , 724 So. 2d 280 (Miss. 1998). Berry v. State , 703 So. 2d 269 (Miss. 1997).
Booker v. State , 699 So. 2d 132 (Miss. 1997). Taylor v. State , 672 So. 2d 1246 (Miss. 1996).
*Shell v. State , 554 So. 2d 887 (Miss. 1989); Shell v. M ississippi , 498 U.S. 1 (1990) reversing, in p art, and remanding ; Shell v. State 595 So. 2d 1323 (Miss. 1992) remanding for new sentencing hearing.

* Pinkney v

. State , 5 3 8 S o . 2 d 329 (Miss. 1989); Pinkney v. Mississippi, 494 U.S. 1075 (1990) v acating and remanding ; Pinkney v. State , 602 So. 2 d 1177 (Miss. 1992) remanding for new sentencing hearing.
*Clem ons v. State , 535 So. 2d 1354 ( Miss. 1988); Clem ons v . Mississippi , 494 U.S. 738 (1990) vacating and remandi n g ; Clem ons v . State , 5 93 So. 2d 1004 (Miss. 1992) remanding for new sentencing hearing

. *Jones v. S

tate , 517 So. 2d 1295 (Miss. 1987); Jones v. Mississippi , 487 U.S. 1230 (1988) vacating and remanding ; Jones v. State , 602 So. 2d 1170 (Miss. 1992) r e manding for new sentencing hearing. Russell v. State , 607 So. 2d 1107 (Miss. 1992).

1 5 1Holland v. State , 587 So. 2d 848 (Miss. 1991).

Willie v. State , 585 So. 2d 660 (Miss. 1991).
Ladner v. State , 584 So. 2d 743 (Miss. 1991).
Mackbee v. State , 575 So. 2d 16 (Miss. 1990). Berry v. State , 575 So. 2d 1 (Miss. 1990). Turner v. State , 573 So. 2d 657 (Miss. 1990).
State v. Tokm an , 564 So. 2d 1339 (Miss. 1990).
Johnson v. State , 547 So. 2d 59 (Miss. 1989).
William s v. State , 544 So. 2d 782 (Miss. 1989); sentence aff'd, 684 So. 2d 1179 (1996).
Lanier v. State , 533 So. 2d 473 (Miss. 1988). Stringer v. State , 500 So. 2d 928 (Miss. 1986).
Pinkton v. State , 481 So. 2d 306 (Miss. 1985).
Mhoon v. State , 464 So. 2d 77 (Miss. 1985). Cannaday v. State , 455 So. 2d 713 (Miss. 1984). Wiley v . State , 449 So. 2 d 756 (Miss. 1984); aff’d , W i ley v. State , 4 84 So. 2d 339 (Miss. 1986); cert. denied, Wiley v. Mississippi , 479 U.S. 1036 ( 1988); resen t e n c i n g o r d e red , Wiley v. S tate , 635 So. 2d 802 (Miss. 1993) following writ of habeas corpus issued pursuant to Wiley v. Puckett , 969 So. 2d 86, 105-106 (5th Cir. 1992); resentencing affirmed.
William s v. S

tate , 4 45 So. 2d 798 (Miss. 1984). Case was originally affirmed in this Court but on remand

from U. S

. Supreme Court, case was r emanded b y t his C o urt for a new sentencing hearing. (Revised July

9, 2018, MJE.)

1 5 2