IN THE SUPREME COURT OF MISSISSIPPI

NO. 2002-DP-01855-SCT

THONG LE

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 08/23/2002

TRIAL JUDGE: HON. JAMES W. BACKSTROM

COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: DAPHNE L. PATTISON

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: JUDY T. MARTIN

MELANIE KATHRYN DOTSON

DISTRICT ATTORNEY: KEITH MILLER

NATURE OF THE CASE: CRIMINAL - DEATH PENALTY - DIRECT

APPEAL

DISPOSITION: AFFIRMED - 03/03/2005

MOTION FOR REHEARING FILED: 03/16/2005; DENIED & OPINION MODIFIED

AT ¶ 143 - 04/28/2005

MANDATE ISSUED:

EN BANC.

DICKINSON, JUSTICE, FOR THE COURT:

¶1. On November 1, 2001, Ngan Tran (“Tran”) and Thong Le (“Le”) planned to rob the home

of Minh Heiu Thi Huynh (“Minh”), where she lived with her two d aughters, Thuy Hang Huynh

Nguyen (“Thuy”), age fift een, and Thanh Truc Huynh Nguyen (“Thanh”), age eleven. Armed

with a gun, the two men went to Minh’s home, knocked on the door, and were allowed in by

Thuy who was home with her sister. Tran and Le tied and gagged the girls and waited for Minh2

to return home. At some point, Tran briefly left the home to move the car, leaving Le with the

girls.

¶2. When Minh returned home, she was overpowered and hogti ed with electrical cord.

When Tran demanded money, she directed him to her purse. The victims were beaten and

strangled until they died. After attempting to sanitize the crime scene with bleach and water

for several hours, Tran and Le left with app roximately $1,300 and a bookbag containing some

household items.

¶3. When Le was later arrested and charged with the crimes, he was carrying s ome of the

money. He confessed to the robbery but maintained that he had no idea Tran planned to kill the

mother and the girls. He insisted he took no part in the murders. Prior to Le’s trial, Tran

committed suicide. Le was convicted of three counts of capital murder and sentenced to death,

and he now appeals, raising fifteen issues for our review.

ANALYSIS

1. Did the trial court err in overruling defendant’s motion

for individual sequestered voir dire and the defendant’s

motion for additional peremptory challenges?

Individual sequestered voir dire

¶4. Le filed a motion for individual sequestered vo ir dire on the issue of the death penalty.

At the hearing on Le’s motion, hi s counsel claimed the pretrial publicity surrounding his case,

coupled with additional publicity surrounding the his co-defendant’s suic i de, together with the

attitudes of the death penalty in general, justified individual sequestered voir dire. The State

disagreed, stating that individual voir dire should be allowed only in cases where the general

questioning of the jury demonstrates the need for individual questioning.3

¶5. In denying Le’s motion, the trial court stated:

I believe w e primarily would have individual voir dire from jurors who indicate

that they ha ve some knowledge of the facts of the case, and we wouldn’t want

them blurting ou

t what they heard, or their opinions about this particular case,

or whether the defendant should or shouldn’t get the death p enalty in this

particular case. So we would certainly allow or consider allowing upon request,

i ndividual voir dire along those lines on that issue. Generally we don’t allow

individual voir dire

as to the basic questions about the death penalty or their

belief, but if somebody begins to enter i nto an area that might be prejudicial,

then, of course, we can always stop them and do tha t on an individual basis. But

I think we’ll just wait on that until the time comes and see what responses we

get.

¶6. Le contends the denial of his motion was error, citing URCCC 3.05, w hich states that

“individual jurors may be examined only when proper to inquire as to answers given or for

other good cause allowed by the court.”

¶7. Prior to voir dire, the prospective jurors filled out a questionnaire. During voir dire,

Le’s counsel requested all prospective jurors to stand who responded in the question naire that

they believed a person convicted of murder should automati cally receive the death penalty.

Twelve stood. Noticing that some prospective jurors remained seated who he believed should

have stood up, Le’s counsel requested the trial court to individually voir dire those pro spective

jurors who answered the question in the affirmative in t he questionnaire, but did not stand in

response to his request. The trial court denied this request and instructed counsel to ask his

questions in public. Le’s counsel then asked the venire if any would vote for the death penalty

regardless of the circumstances if they found the defendant guilty of capital murder. Twentyone prospective ju

rors responded that they would. Le contends that this was an unusually large

number of prospective jurors predisposed to vote for the d eath penalty. He stated he could not

fre ely explore the matter in open court for fear of tainting the remaining prospective jurors.4

Le contends that

had the trial court allowed individual voir dire, defense counsel may have been

able to demonstrate to the court to strike some prospective jurors f or cause, leaving more

peremptory strikes for the defense.

¶8. The record reflects, however, that Le requested only three of the p rospective jurors in

question be stricken for cause. In fact, the record reflects that the trial court struck (for cause)

seven of the prospective jurors in question at the State’s request. The record further reflects

that all of the prospective jurors Le contends were “predisposed to the death penalt y” were

stricken as prospective jurors, either by the peremptory challenges or for cause.

¶9. Le cites Jones v. State , 461 So. 2d 686 (Miss. 1984), in support of his argument that

the trial court erred by not allowing individual voir dire. However, in J ones

, defense counsel

object ed to individual voir dire. This Court held that“it is well within the discretion of the trial

judge to allow individual voir dire in a proper case.” I d

. at 692. Our refusal to reverse a trial

judge for allowing individual voir dire is not authority for the proposition that we should

reverse a trial judge for refusing to allow it.

¶10. Le contends that “[t]he safer practice in situations involving possible prejudice is to

interrogate each juror separately and out of the presence of the other jurors, ” quoting from

United States v. Schrimsher

, 493 F.2d 848, 854 (5th C ir. 1974). In S chrimsher

, the trial

judge questioned the jury en masse regarding a newspaper article. Although the Fifth Circuit

stated that individual interrogation of each juror would be a s afer practice, it found that there

was no error in the trial court’s failure to do so. Id.5

¶11. The State tells us Le fails to demonstra te any question Le was prevented from asking

a single juror. Furthermore, at the conclusion of defense counsel’s questions, the following

took place:

THE COURT: Let me ask the attorneys to approach the bench briefly.

(BENCH DISCUSSION)

Are y’all satisfied with all the answers that were given on the death penalty?

MR. [DISTRICT ATTORNEY] MILLER: Sure.

THE COURT: Do you want me to ask anything else?

MR. MILLER: I’m fine.

THE COURT: Are you okay?

MR. [DEFENSE COUNSEL] CONANT: Yes, sir.

(END BENCH DISCUSSION)

¶12. The State contends that the individual voir dire issue on appeal is procedurall y barred

because Le’s counsel declined the trial court’s offer to ask any additional questions.

Alt ernatively, the State cites E dwards v. State

, 737 So. 2d 275 (Miss. 1999), for the

proposition that the denial of individual sequestered voir dire does not constitute error. In

Edwards

, the defendant claimed the trial court erred by denying his request for individual

sequestered voir dire under circumsta nces similar to those in the case sub judice. I d. at 307.

Quoting Rule 3.05 of the Mississippi Uniform Circuit and County Court Rules, this Court

stated “that the rule does not require more than what it states on its face,” and trial judges act

“within their discretion granted by the rule,” when th ey deny motions for individual sequestered

voir dire. Id. at 308 (citations omitted). This Court has also held:6

While the Court has stated that Rule [3.05] allows a circuit court, in its own

discretion, to utiliz

e individualized, sequestered voir dire, this Court further held

that Rule [3.05] does not require more than what is stat ed on its face. R ussell

v. State

, 607 So. 2d [1107], 1110. (internal citations omitted). In R ussell

, this

Court stated that

the “contention that he [Russell] should have been allowed to

individually voir dire jurors out of t he presence of the others is not supported

by the decision of the Court.

Russell , 607 So. 2d at 1110; White v. State , 532 So. 2d at 1218.

¶13. The State reminds us that “[a]n appellant must show actual h arm or prejudice before this

Court will reverse a trial court’s limitation on voir dire.” Morris v. State , 843 So. 2d 676, 678

(Miss. 2003) (citing Stevens

, 806 So. 2d at 1054). Furthermore, “this Court will treat with

deference a venire person’s assertions of impartiality.” Id.

¶14. We reaffirm

our holding in numerous cases, including S tevens v. State

, 806 So. 2d

1031, 1054-55 (Miss. 2001), and again state that the decision of whe ther to allow individual

sequestered jury voir dire should be left to the sound discretion of the trial court . The trial

court in the case sub judice allowed juror questionnaires and open voir dire. He further offered

the option o f small group voir dire, and he allowed many prospective jurors to approach the

bench to answer questions posed during voir dire. Finally, he offered Le’s counsel the

opportunity to have any additional questions put to the prospective jurors. We find no error

here.

Additional Peremptory Challenges

¶15. Prior to trial, based on the heightened sensitivity of a death penalty case and issues

related to the death penalty, Le’s counsel requested additional peremptory chall e nges. Le

contends that the denial of individual sequestered voir dire compelled him to use peremptory

strikes on some prospective jurors who s aid they would automatically impose the death7

penalty, and others who were not sure. Stated another way, Le contends that – had the trial

court allowed individual voir dire

– he might have been able to convince the court to strike

some of those jurors for cause, leaving him more peremptory strikes.

¶16. Le c laims he was forced to accept one prospective juror who was a victim of three

robb eries, another who was a brother-in-law of the Assistant Police Chief of Ocean Springs,

two others who heard something about the case in the news media, and still another who

received a strange phone call which left “T. Le” on the caller i.d. Citing M hoon v. State

, 464

So. 2d 77 (Miss. 1985), Le says this Cou r t has directed trial courts to consider affording

de fense counsel additional peremptory challenges in capital cases where the jury pool is

improp erly skewed in favor of death. In M hoon

, 6 out of 12 jurors were either involved in law

enforcement or were related by blood or marriage to law enfo rcement. Id. at 80. This Court

held that “in the normal case

- with a normal distribution of law enforcement officers and their

relative s in the jury pool - there is no reason why, if left unchallenged peremptorily, an officer

or an officer’s relative should not serve on a jury if otherwise qualified to follow the law and

the evidence.” Id . at 81 (citations omitted). This Court went on to conclude:

In this particular case, however, the sheer number of law enforcementconnected persons in the j ury pool, as well as persons selected as jurors, has

worked a great hardship on Mhoon. Given the statistical aberation in the jury

pool, the ju

dge could have done several things to ameliorate its prejudicial

effect: (1) he could have afforded counsel additional peremptory challenges, (2)

he could have increased the size of the available venire as well as affording

additional challenges, or (3) he could have sustained at least some of the

challenges for cause.

Id.1 During post-trial motions, the trial judge stated:

Okay. So I do not believe that there was any showing that additional peremptory

challenges would be needed and, in fact, the Defendant didn’t use all his challenges so

I’ll deny that request, that part of the motion.

8 ¶17. Because Le’s venire included only one potential juro r who was related to a law

enforcement officer, we do not find Mhoon helpful in resolving this case.

¶18. We are persuaded, however, by the fact that, in selecting the jury, Le did not exercise

all of his peremptory challenges. 1 Having left peremptory challenges on the table, Le can

hardly demonstrate prejudice for lack of additional peremptory challenges. We find this issue

to be without merit.

2. Did the trial court err in failing to quash the jury, because

it was not drawn from a fai r cross-section of the

community?

¶19. Le next contends that the jury panel d id not represent a fair cross-section of the

community because it did not include Asians. As to this issue, Le moved for additional

peremptory challenges or, in the alternative, to quash the jury panel. The trial court denied the

motion.

¶20. Ci rcuit Clerk Joe Martin testified that the pool of potential jurors in Jackson County

is taken from registered voters. Martin further testified that the special venire for Le’s case

was selected by computer, in accordance with the law, just like any other capital murder case.

Le contends that the county does not take into account the fact th at Asians do not vote, thus

effectively eliminating a significant faction of the community from service on juries.

¶21. In an attempt to support this argument, Le cites T aylor v. Louisiana

, 419 U.S. 522, 95

S.Ct. 692, 42 L.Ed. 2d 690 (1975), which held that an accused is to be afforded a fair trial by9

an impartial jury chosen f rom a “fair cross-section of the community.” However, in T aylor

,

the United States Supreme Court held:

It should also be emphasized that in holding th at petit juries must be drawn from

a source fairly representative of the community we impose no requirement that

petit juries actually chosen must mirror the community and reflect the various

distinctive groups in the population. Defendants are not entitled to a jury of any

particular composition, Fay v. New York

, 332 U.S . 261, 284, 67 S.Ct. 1613,

1625, 91 L.Ed. 2043 (947); Apodaca v. Oregon

, 406 U.S., at 413, 92 S.Ct., at

1634 (plurality opinion); but the jury wheels, pools of names, panels, or venires

from which j u ries are drawn must not systematically exclude distinctive groups

in the community and thereby fail to be reasonably representative thereof.

Id. at 702. Similarly, this Court has held:

The Sixth Amendment to the Constitution of the United States manda tes that all

defendants receive a

trial by an impartial jury. In B ritt v. State

, 520 So.2d 1377

(Miss. 1988), Appellant claimed that he was denied a fair trial as there was not

a cross-section of his community pr esent in the seated jury. Appellant also

alleged that the State systematically e xcluded men as jurors. This Court held

that “[a]lthough the defendant does have a right to be tried by a jury whose

members were selected pursuant to a nondiscriminatory criteria,

. . . t he Sixth

Ame ndment . . . has never been held to require that petit juries actually chosen

mus t mirror the community and reflect the various distinctive group of the

pop ulation.” B ritt

, 520 So.2d at 1379 (citing Taylor v. Louisiana

, 419 U.S.

522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975).

Furthe rmore, in L anier v. State

, 533 So.2d 473 (Miss.1988), this Court

outlined the elements necessary to establish a prima facie violation of the fair

cross-section requirement for an impartial jury:

1) the group alleged

to be excluded is a “distinctive” group in

the community;

2) the representation of this group in venires from which

juries are selected is not fair and reasonab le in relation to

the number of such persons in the community; and

3) this under representation is due to systematic exclus i on of

the group in the jury selection process.10

Lanier

, 533 So.2d at 477 (quoting Duren v. Missouri

, 439 U.S . 357, 364, 99

S.Ct. 664, 668, 58 L. Ed.2d 579 (1979)).

Simon v. State , 688 So. 2d 791, 806 (Miss. 1997).

¶22. Given Martin’s testimony that the potential jurors in Le’s case were selected by

computer, we fail to see how Asians are excluded from the jury pool, oth er than the fact that

some Asians do not wish to vote and, therefore, willfully exclude themselves from the voter

roll. We find this issue to be without merit.

3. Did the trial court err in overruling the defendant’s

Batson objection?

¶23. Le next contends that, for racially motivated reasons, the State struck all African

Americans from the venire. Le properly raised a Batson objection to the strikes.

¶24. A prosecutor’s racially motivated use of peremptory challenges is a clear violation of

a cri minal defendant’s rights under the Eighth and Fourteenth Amendments to the United States

Constitution. B atson v. Kentucky

, 476 U.S. 79, 106 S.Ct. 1 712, 90 L.Ed.2d 69 (1986). Such

discriminatory use of peremptory strikes requires reversal. C onerly v. S tate , 544 So. 2d 1370,

1373 (Miss. 1989).

¶25. A defendant who suspects the prosecutor has engaged in such conduct must make what

has become known as a “ Batson Challenge.”

The appropriate procedure to be followed for a

“ Batson Challenge” is set out by this Court in Stewart v . State , 662 So. 2d 552, 557-58 (Miss.

1995), as follows:

1. The party objecting to the peremptory challenge must first ma ke a prima

facie showin

g that race was the criteria for the exercise of the

peremptory challenge.11

2. If this initial showing is successful, the party desiring to e xercise the

challenge has the burden to offe r a race-neutral explanation for striking

the potential juror.

3. The trial court must then determine whether the objecting party has met

their burden to prove there has been purposeful discriminat ion in the

exercise of peremptory challenges.

See also Stevens , 806 So. 2d at 1046.

¶26. Where a prosecutor’s race-neutral reasons for a strike are ac cepted by the trial court,

our standard of review of the trial court’s decision is as follows:

This Cour t accords great deference to the trial court in determining whether the

offe red explanation under the unique circumstances of the case is truly a raceneutral re ason. S tewart

, 662 So. 2d at 558. This Court will not reverse a trial

judge’s factual finding on this issue ‘unless they a p pear clearly erroneous or

against the overwhelming weight of the evide nce.’ Id. (quoting Lockett v. State

,

517 So. 2d 1346, 1350 (Miss. 1987). One of the reasons for this is because the

demeanor of

the attorney using the strike is often the best evidence on the issue

of race-neutrality. I

d. at 559 (citing Hernandez v. New York

, 500 U.S. 352,

365, 111 S. Ct. 1859, 114 L.Ed.2d 395 (1991)).

Finley v. State , 725 So. 2d 226, 240 (Miss. 1998).

¶27. Le correctly cites Chisolm v. St ate , 529 So. 2d 635, 639 (Miss. 1988), for the

proposition that a race-neutral reason offered can serve as a masks for a true discriminatory

purpose. However, C

hisolm further holds that “it is incumbent upon [the defendant] to c ome

forward with proof when given the opportunity for rebuttal.” Id.

¶28. In the case sub judice, seven of the Sta te’s peremptory challenges were used to strike

African-Americans. The State offered the following race-neutral reasons for the strikes:

Juror Number 5

¶29. According to the pr osecutor, juror number 5 asked very unusual and simplistic

questions and appeared to lack understanding. The prosecutor cited P erry v. State

, 637 So. 2d12

871, 874 (Miss. 19 94), in which this Court held that a lack of understanding is a race-neutral,

non-prejudicial reason for a peremptory strike. Specifically, juror number 5 asked: “I have a

solution [sic] about murder and capital murder. I don’t understand the difference in those two.”

Later, during the defense’s voir dire, h e asked: “Sir, going back to your introduction, you said

the word - what was that word you said, ‘object’? What exactly is the meaning of ‘object’?”

¶30. The State submits that it was reasonable for the pro secutor to conclude that either juror

number 5 would have had considerable difficulty following and understanding the course of the

tri al, and/or he was trying to get dismissed from jury duty. The State further contends that the

trial judge was attentive to this matter wh en the trial court stated that, based upon the court’s

observation of juror number 5 and his responses, he “was completely uninformed as to what

he was here about.”

The trial court stated, “I got the impression that he was completely

uninformed as to what he was here about, so I would say

- - I’ll deny that Bat son challenge and

say that that’s a sufficient race neutr al reason to strike the person.” In P erry

, this Court

affi rmed the juror’s lack of understanding as a race-neutral reason for the strike, “a fact

specifically found by the trial judge.” Perry

, 637 So. 2d at 874. We reaffirm that holding here.

Juror Number 7

¶31. According to the prosecutor, juror number 7 – an African-American schoolteacher

–

was struck because

[s]he was a teacher and she said that she f elt like it was more important for her

– and quite frankly, I agree with her – she felt like it was more important for her

to be teaching

the first week of school than to be a juror here, and I felt like she

wouldn’t be concentrating on what she was doing, and would pretty much resent

that fact that she was here.13

¶32. Defense counsel stated he believed those comments were accurate, and the trial court

denied the Batson challenge believing that it was a sufficie nt race-neutral reason. Le argues

on appea l, however, that race neutral reasons must be related to the case, C hisolm

, 529 So. 2d

at 638, and that employment had nothing to do w ith the case. During voir dire, the trial court

questioned the potential jurors regarding hardships:

JUROR NUMBER 7: I am a teacher, also, and I would have to make

arrang ements. I have 120 students that I have to see off during the day, and I

would have to make arrangements for a sub folder, or notes or whatever to give

to my students, and I also need medication.

THE COURT: Well , do you think all of that could be accomplished and you

could serve, or are you saying that you couldn’t do that?

JUROR NUMBER 7: I think I would b e better serving my class if I was in class,

since we’re just starting school.

¶33. The State further points out that it initially moved to strike juror 7 for cause. In

discussing juror number 7, the prosecutor stated:

MR. MILLER (for the State): She was a school teacher, I think. She had a

problem with sequestration, sa id she would best be serving her class in the

classroom. She knows one of the defense witnesses, not that that really means

anything, but she did say that she had a serious problem with sequestration, does

not want to serve, and feels like she could better serve her class.

THE COURT: What do you say on that?

MR. CONANT (for the defense): I don’ t believe that qualifies for cause, Your

Honor.

THE COURT: I don’t either. She did indicate she didn’t want to serve, but she

said she could get a substitute if necessary, I believ e, so I’ll deny that request for

cause.

¶34. Subsequently, the Circuit Clerk stated to the trial judge:

MR. JOE MARTIN: No. 7 wanted to be [excused], also.14

THE COURT: What?

MR. JOE MARTIN: The teacher.

THE COURT: What? About having to teach?

MR. JOE MARTIN: She didn’t want to be here, Judge.

THE COURT: Well, I know that. A lot of them don’t want to be here. I don’t

particularly want to be here myself.

MR. JOE MARTIN: I know. She said she had a problem with her school.

MR. SAUCIER: I think the main thing was the beginning of school. Not that

they’re in school, but it’s the first week of school.

MR. MILLER: Are you talking about No. 7, Joe?

MR. JOE MARTIN: Yeah, She came to me, also.

¶35. Furthermore, during voir dire, juror number 7 stated that she knew a witness for the

defense: “I know Curtis Cotten pretty well. He’s a friend of ours.”

¶36. The State exerci

sed one of its peremptory challenges to strike juror number 7. When

a defendant contends that the reasons for the strike offered by the State are pretextual, “[i]t is

incumbent upon a defendant claiming that proffered reasons are pretextual to rai se the

argument before the trial court.” M ack v. State , 650 So. 2d 1289, 1297 (Miss. 1994).

Defense co u nsel failed to challenge the employment-related reasons for the strike as

pretextual. The only response from defense counsel regarding the teacher’s problems at

school was that he believed those comments were accurate.

¶37. Le points out that the State struck African-American jurors for the stated reasons, but

did not strike white jurors who had much more compelling reasons to be struck. However, the

issue before us is whether the race-neutral reasons offered were sufficient; not whether there15

was another juror with more compelling reasons for a peremptory strike. Furthermore,

defense counsel did not raise this issue to the trial court and is therefore procedurally barred

from raising it here.

¶38. Notwithstanding the procedural bar, the State contends that during the course of jury

selection, the State expressed the following race-neutral reasons for striking juror n umber 7:

1) she had serious problem with sequestr ation; 2) she did not want to serve; 3) she felt she

should be serving in the classroom; 4) she would not be concentr ating on the trial; 5) she would

resent the fa ct that she was on the jury and 6) she knew the defense witness. As authority for

its position, the State cites Manning v. State

, 735 So. 2d 323, 340 (Miss. 1999) (“A juror’s

reluctance to serve or preoccupation with matters outside the courtroom is a valid race-neutral

reason for purposes of Batson ”); Brewer v. State

, 725 So. 2d 106, 122 (Miss. 1998) (The fact

that the juror “had attempted to get off jury duty from the start” is a race-neutral reason.);

Woodward v. State

, 726 So. 2d 524, 531 (Miss. 1997) (“A prosecutor ma y sense by a juror’s

demeanor that he is hostile to being in court and this fear that the juror might respond

negatively to the prosecution simply because t he government was responsible for calling him

to jury duty. ”); Walker v. State , 671 So. 2d 581, 628 (Miss. 1995) (“Jurors should not be

forced to serve when they ex pressly state they do not want to.”) and M inor v. State

, 831 So.

2d 1116, 1122 (Miss. 2002) (The fact that a “prospec tive juror . . . knew a potential witness”

is a race-neutral reason.).

¶39. Defense counsel failed to raise the pretextual issue at trial, and t he trial court accepted

the State’s reasons as race-neutral. Applying the appropriate standard of review, we are unable

to find that the trial court’s decision was clearly erroneous.16

Juror Number 18

¶40. The prosecutor stated he recognized juror number 18 right away as a juror who sat on

a p revious jury which returned a “not guilty” verdict in a criminal rape case. Defense counsel

responded by stating that the juror did respond that he ha d been on a criminal jury but he

indicated that it would not affect his ability to sit on this one. The trial court held: “I believe

that would be a

-- I’ll deny the B atson challenge. I think that would be a race neutral reason to

strike him.”

¶41. T he State cites Brewer v. State

, 725 So. 2d 106, 123 (Miss. 1998); Harper v . State

,

635 So. 2d 864, 868 (Miss. 1994); and Ratliff v. State

, 740 So. 2d 359, 360 ( Miss. Ct. App.

1999), as authority for the proposition that a potential juror’s previously service on a jury that

did not convict is a valid race-neutral reason. Furthermore, the State cites W alker v. State

,

815 So. 2d 1209, 1215 (Miss. 2002) and Davis v. State

, 767 So. 2d 986, 995 (Miss. 2000),

in support of its argument that a prosecutor’s distrust of a juror is a race-neutral reason.

¶42. We recognize that the potential juror assured the court that his previous jury service

would not affect his ability to sit on this jury. However, such assurances are more relevant to

challenges for cause. The State provided a race-neutral reason and we find the trial court did

not err in denying defense counsel’s Batson challenge for juror number 18.

Juror Number 19

¶43. The race-neutral reason off ered by the prosecution for juror number 19 was that the

juror did not complete the last two pages of the potential juror quest ionnaire, which pages

containe d the questions the prosecutor considered the most critical. Defense counsel stated

that the omitted information could ha ve been supplied during voir dire, and the juror made no17

statements or comments which supplied a reason he could not sit on this jury. The prosecutor

responded that he was unable to question the juror about this during voir dire because he was

handed the questio nnaire immediately before he began questioning, and did not get a chance

to carefully review the responses until after voir d ire questions were completed. The trial

court stated,

I would think that woul d be a race neutral reason, so I would deny the B atson

challenge . And the party didn’t complete the part of the death penalty, and I

believe included in that are some of other things about trials or criminal matters,

so I think that would be a race neutral reason.

¶44. The trial court specifically found that the juror did not complete th e questionnaire and

tha t it was the portion of the questionnaire regarding death penalty and trial and criminal

matters. The State cites G ary v. State , 760 So. 2d 743, 749 (Miss. 2000), for its contention

that the ‘failure to complete the jury ques tionnaire” is a race-neutral reason. We agree and find

that the trial court did not err in denyi ng defense counsel’s B atson challenge as to juror

number 18.

Juror Number 35, 36 and 37

¶45. The prosecution stated juror number 35 was struck because she st ated, both in the

questionnaire and when questioned during voir dire, that she was against the death penalty. The

following transpired regarding juror number 35:

THE COURT: What do you say on that?

MR. CONANT: I’m trying to see that she commented on that, Your Honor.

MR. SAUCIER (for the State): I’ll show the Court the - -18

THE COURT: She first said she would automatically - - This was somewhat

confusing. I think at first she said she would automatically impose the death

penalty, and then she said she didn’t believe in the death penalty.

MR. SAUCIER: That’s exactly what she said, and also, it follows correctly with

her form, saying that she was generally opposed to the death penalty.

THE COURT: It says she would automatically impose th e death penalty in one

place, and generally oppose it.

MR. SAUCIER: It wa s very confusing. The whole time I was trying to figure out

what she was saying.

MR. CONANT: I don’t have anything to add.

THE COURT: I believe that would be a sufficien t race neutral reason to strike

the person. I’ll deny the Batson challenge on her.

¶46. Defense counsel offered no rebuttal to th e race-neutral reason given by the prosecution.

In Gary v. State , 760 So. 2d at 748, this Court held:

the record clearly illustrates that [defens e] counsel offered no

rebuttal to the Sta te’s explanations for its peremptory strikes. In

Bush v. State

, 585 So. 2d 1262 (Miss. 1991), we stated that if a

raci ally neutral explanation is offered the defendant can rebut the

explanation. I

d. at 126 8. If the defendant makes no rebuttal, the

tria l judge must base his decision only on the explanations given

by the State. Id.

We find the trial court did not err in denying this challenge.

¶47. The prosecution stated juror number 36 was struck because she stated in her

questionnaire that she was str ongly opposed to the death penalty and would always vote for life.

Defense counsel responde d that, when he specifically questioned her about her answer on the

questionnaire, she stated it would not affect her decision in this case. The trial court stated,

“Well, she said strongly opposed. In my heart of heart, I strongly believe not to take a life for

a life, so I think that’s a sufficient race neutral reason to strike her, and I’ll deny the B atson19

challenge on her .” We agree and find the trial court did not err in accepting this race-neutral

reason.

¶48. The prosecution stated juror n umber 37 was struck by the State because he stated that,

because of the Ten Commandments, he was strongly opposed to the dea th penalty. Defense

counsel did not challenge the State’s reason for the strike. The trial judge stated that the juror

“also said he would vote against the death penalty regardless of the circumstances. He would

vote for the death pena lty - - would not vote for the death penalty regardless of the

circumstances.”

¶49. Jurors numbe

r 35, 36 and 37 were all struck based on their views on the death penalty.

In holding that a prospective juror’s opinion on the death penalty is a race-neutral reason for

a peremptory challenge, this Court has stated:

We have held that a pros pective juror’s views on the death penalty do not make

one a member of a disti

nctive class protected by B atson v. Kentucky

, 476 U.S.

79, 106 S.Ct. 1712, 90 L.Ed2d 69 (1 986), and its progeny. [Citations omitted].

Therefore, the State was not prohibited from exercising perempto ry challenges

to strike jurors based on their beliefs concerning the death penalty.

Jordan v. State

, 786 So. 2d 987, 1028-29 (Miss. 2001). S ee also Berry v. State

, 802 So. 2d

1 033, 1042 (Miss. 2001) (“A challenge by the State based upon a juror’s views on the death

penalty is an acceptable race neutral reason.”).

¶50. F inally, the State points out that defense counsel failed to assert any pretext regarding

its peremptory challenge of jurors 7, 18, 35, 36, and 37 and failed to refute the race-neutral

reasons offered by the State as to juror number 5. Therefore, says the State, this issue is

procedurally barred. We agree. However, even if the issue were not procedurally barred,20

we are unable to find the trial court erred in accepting the race-neutral reasons offered by the

State for the strikes of the seven African-American jurors . We therefore find no merit to this

assignment of error.

4. Did the trial court err in overruling the defendant’s

motion to suppress his statement to law enforcement?

¶51. On Novem

ber 3, 2001, Sergeant Joseph W. Nicholson (“Nicholson”) arrested and

interrogated Le. During the interrogation, Nicholson questioned Le as follows:

NICHOL SON: And the story that you are telling me is what you’re going to have

to live with the rest of your life? What’s your religion?

LE: Buddhist.

NICHOLSON: You’re a Buddist, ain’t you? You believe in God, don’t you?

LE: Yes sir.

NICHOLSON: And you believe in reincarnation, don’t you?

LE: Yes, sir.

NICHOLSON: You believe in the souls of human individuals, don’t you?

LE: Yes, sir.

NICHOLSON:

And you believe that there is three souls that was taken tonight,

don’t you?

LE: Yes, sir.

NICHOLSON:

And you believe that none of their souls are complete, none of

their souls are complete cause you have one of their souls, don’t you?

LE: No response.

NICHOLSON: Don’t you.

LE: I do not sir.21

NICHOLSON: You have one of their souls, you do and you know their life is not

complete until you give them that soul bac k and you’ve got the burden to carry

your soul and their soul and you can’t carry that dee p in you heart can you, Look

at me, Look at me, Son, you can’t carry that deep in your heart?

LE: (Inaudible)

NICHOLSON: It’s the difference between right and wrong, That’s all it is.

LE: I know what’s right and what’s wrong.

NICHOLSON: It’s the difference between facing your fears.

LE: I know what’s right and what’s wrong.

NICHOLSON: You know what’s right and what’s wrong?

LE: When we left out yesterday . . .

NICHOLSON: T

ying up three women is wrong, son. Tying up three women and

killing them is wrong.

LE: I told you I didn’t.

¶52. During t

he interrogation, Le confessed to his involvement in the robbery and admitted

that he “tied both sisters up” and that he “hit the back of the head” of the mother with his fist.

Le later filed a pre-trial motion to suppress the confession, claiming that: (1) based on his age,

his inexperience with the justice system, his limited skill with the English language and the

manner in which the rights were read to him, under the totality of the circumsta nces, he did not

knowingly and intentionally waive his constitutional rights, and (2) the police induced

admissions by taking advantage of his religious beliefs when telling Le that the souls of the

victims wou

ld never be free unless he confessed. This, Le contends, made the statement

involuntary.2 Mike Ezell is a law enforcement officer who was involved in the investigation of the crime and

the interrogation of Le.

22 ¶53. At the hearing on Le’s motion to s uppress, Nicholson, Mike Ezell 2 and Le testified. In

denying Le’s motion, the trial court stated:

All right. The Court would find that the evidence presented, shows beyond a

reasonable doubt that the statement made by the defendant was freely and

intelligently and voluntary made without any improper inducement. There were

no

-- The Court does not f ind that there were any promises of salvation or

redemption. Basically the officer was getting to the point, or asking him about

did he know

- - did he understa nd right from wrong, and he indicated that he did.

The ev idence further shows that the defendant reads, speaks and understands

English well. He was born in the United States, although from a Vietnamese

family. He still went to English-speaking schools to the tenth grade, and in his

testimony today spoke English fluently, and indicated that he understood English

well and read English well, and as I said before, went to the tenth grade. So there

was no

- - the Court finds there was no improper inducement made, and that his

statement was a volunta

ry statement; that he understood his rights, and that he

made a voluntary waiver of his constitution al rights; that the proper Marijuana

(sic) [Miranda] Warnings were given to him. He initialed each and every one of

thos e and signed his name, which he signed the name that he uses, Tony. So I’m

going to deny the motion.

¶54. During t

he trial when the State moved to introduce the statement, Le renewed his

objection, and the trial court overruled the objection.

¶55. Where a trial judge find s at a preliminary hearing that a confession is admissible, “the

defendant/appellant has a heavy burden in attempting to reverse that decision on appeal.”

Evans v. State

, 725 So. 2d 613, 634 (Miss. 1997) (citations omitted). “Determining whether

a co n fession is admissible is a finding of fact which is not disturbed ‘unless the trial judge

applied an incorrect legal standard, committ e d manifest error, or the decision was contrary to

the overwhelming weight of the evidence.’” S now v . State , 800 So. 2d 472, 495-96 (Miss.3 Nicholson testified that Le was read his Miranda rights when he was physically arrested and

again when he signed the Rights form.

23 2001) (quoting Lee v. St

ate , 631 So. 2d 824, 826 (Miss. 1994) (quoting B alfour v. State

, 598

So. 2d 731, 742 (Miss. 1992)).

A. Did Le Waive His Constitutional Right to Remain Silent?

¶56. Le contends that his age, inexperience with the justice syst em, and limited skill with the

En glish language and culture, together with the manner in which his rights were read to him;

and considering the totality of the circumstances test, pr e vented him from knowingly and

intelligently waiving his constitutional right to remain s ilent. Le is correct in asserting that,

“[w]hen determining volun tariness, the court must look at the ‘totality of the circumstances’

surrounding the statement.” J ones v. State

, 841 So. 2d 115, 130 (Miss. 200 3 ). Le, who was

nineteen years old at the time of the questioning, also points out that youth can be a facto r to

consider under the totality of the circumstances test. M ill er v. State , 243 So. 2d 558, 559

(Miss. 1971).

¶57. In Puckett v. State , 737 So. 2d 322, 350 (Miss. 1999), this Court held:

The purpose of M

iranda is to protect the defendant’s Fifth Amendment r ight

against self-incrimination by affording him the right to remain silent. However,

if the defendant does not take advantage of his right to remain silent, any

statements he voluntarily makes can and will be used against him in a court of

law.

. . . Accordingly, when a defendant does not heed these warnings and invoke

his right to sil

e nce, but voluntarily makes statements, it is not error for the

prosecution to use these statements at trial against the defendant.

¶58. Le was given his Miranda warnings on two separate occasio ns. 3 At the hearing on the

pre-trial motion, Le testified on direct examination that he thoug ht that the police had told him

“something about getting a lawyer,” but that Le did not understand that it was his constitutional24

right at the time. Le further testified that he had signed a release of his rights form, but that

he had signed it without looking at the statement. However, Le also stated that “if [he] did sign

it, [he] pro bably glanced through it.” Le testified that he could read English. Le further

testified that he signed the release while being questioned by the police, who told Le to initial

the form. Le stated that he did so, but “didn’t look” at it. On cross-examination, Le testified

that he had heard the Miranda warnings many time s on television, but stated that if he had

understood his constitutional right to remain silent, he would not have answered the police

officer’s quest

ions. The State questioned Le about what it was he did not understand about his

rights, and Le answered that h e “just felt like . . . [he] had to answer [the officer’s] questions.”

Le admitted that his Mir anda r ights had been given to him twice, and that he had signed the

release form.

¶59. Le contends that he did not understand his rights because of the cultural barriers and

because, “in the shrimping community on the Gulf Coast, the Vietnamese can live their lives

s eparate from the American community, separate in speech, separate in religion, and sepa rate

in culture.”

However, after observing Le and hearing his testimony, the trial judge concluded

that Le knowingly, intelligently and voluntarily waived his right to remain silent. We find that

the trial court did not apply an incorrect legal standard, did not commit ma n ifest error, and his

decision was not contrary to the overwhelming weight of the evidence. S now

, 800 S o. 2d at

495-96. Thus, this issue has no merit.

B. Religious Comments

¶60. Le contends that N icholson improperly used his religious beliefs to coerce him into

making incriminating admissions. Citing J ohnson v. State

, 107 M iss. 196, 209, 65 So. 218,25

219 (1914), Le tells us such use of religion and spirituality in the interrogation room is

condemned by this Court. It is true that a confession was obtained from Johnson, at least

par tially by offering him the hope of salvation, and that this Court found the confession to be

involuntary. However, there were significant factual differences in Johnson which make

impossible any

meaningful comparison to the case before us today. In J ohnson

, this Court

described it as follows:

Appellant was friendless, and a stranger in the city. He was charged with the

gravest offense known to the law and imprisoned ther e for. He was ill and in a

nervous and weak physical condition. He was under fear of mob violence. In

this condition

, he was visited three times within 24hours by a strong man, one

who was experienced in obtaining confessions, and who visited him onl y to

secure his confession. The very words used in the effort to obtain the

confession were enough, under the circumstances, to put appellant, already sick

and excited, in nervous dread.

Johnson v. State , 65 So. at 219-20. In analyzing whether Johnson’s confession was coerced,

this Court stated:

It is necessary to look at all the surrounding [circumstances] of the person

making the confession in order to determine whether it is rendered inad m issible

be cause it resulted from fear or threat or the undue influence of a person, even

though one not in authority, operating upo n the mind of the person confessing.

Even the acts of

third persons may amount to a threat excluding confession,

though no objectionable words are spoken.

Id . at 219.

¶61. In the case sub judice, Le had already confessed to the robbery and to the fact that the

killings occurred during the course of the robbery, before any me ntion of his religion.

Furthermore, we do not find in the record any admissions in response to the religious line of

questioning. To the contrary, Le continued to deny killing anyone.26

¶62. Le argues that the religious comments le d him to admit important details which could

matter a great deal to a jury deciding whether to impose a sen tenced to death. Even if true,

however, Le must further demonstrate that the religious discussion constituted impermissible

coercion.

¶63. In Welch v. Butler

, 835 F.2d 92 (5th Cir. 1988), Welch made a statement, in a taped

conversation with his wife, that he was concerned that God would n ever forgive him for

committing murder. I

d. at 93. During later questioning at the police station, Welch and a

police officer “discus sed forgiveness and salvation and prayed together for about three hours.

During this time, Welch made incriminating statements.” I d. at 93. At trial, Welch objected

to t he admission into evidence of these statements, claiming they were coerced. I d. at 95. In

reviewing the issue, the Fifth Circuit stated:

To hold that the inculpatory statements were made voluntarily, “we must

conclude that he made

an independent and informed choice of his own free will,

possessing the capability to do so, his will not being overborne by the pressures

and circumstances swirling around him. The burden of proving facts which

would lead to an opposite conclusion is on the [defendant]” J urek v. Estelle

, 623 F.2d 929, 937 (5th Cir. 1980) (en banc).

There can be n

o doubt that Welch’s confession was not the product of will

overb orne by the police. One does not have to be devout to accept the fact that

Welch wa s concerned about his salvation and about divine forgiveness.

H owever, this concern existed before his conversations with Easley. At most,

the police set up a situation that allowed Welch to focus for som e time on those

concerns with a fellow Christ ian in the hope that his desire to be saved would

lead him to confess. What coercion that existed was sacred, not profane.

835 F. 2d at 93.

¶64. In carefully reviewing the record, we cannot find any error in the trial court’s decision

to allow into evidence the statements made by Le.27

5., and 6. Did the trial court err in overruling the defendant’s objection

to the admissibility of opinion testimony by Grant Granham and

defendant’s motion for mistrial regarding forensic test result s?

¶65. Le claims that Grant Graham wa s not qualified to give expert testimony and, even if he

was, his testimony should have been excluded because of a discovery violation.

¶66. On July 19, 2000 , the trial court entered an order requiring the State to produce to the

defense all expert o pinions. The witness list provided to Le’s counsel stated in pertinent part:

Enclosed is an updated witness list of may call witnesses:

1) Grant Gra

ham - Gulf Coast Mississippi Crime Lab was a crime scene

tec hnician; will explain the three enclosed diagrams; will identify crime scene

photos.

¶67. Rule 9.04 of the Uniform Circuit and County Court Rules states in pertinent part:

[T]he prosecution must disclose to each defendant or the defen dant’s attorney,

and permit the defendant or defendant’s attorney to inspect, copy, test, and

photograph u

pon written request and without the necessity of court order the

following which is in the possession, custody, or control of the State, the

existence of which is known or by the exercise of due diligence may become

known to the prosecution:

Any reports, statements, or opinions of experts, written, recorded or otherwise

preserved, made in connect ion with the particular case and the substance of any

oral statement made by any such expert.

¶68. Graham testified at trial that based on blood stain patterns and other evidence, the

vict i ms had suffered blunt force trauma. He based his opinion, at least in part, on blood stain

patterns. This led to a motion for mistrial which was denied. Graham also offered testimony

about two vehicles obtained by the Sheriff’s office. Information about the blood stain patterns

and the two vehicles was included in a report authored by Graham and provided to the Sheriff,

but not provided to Le’s counsel.4 After returning from lunch at 1:30 p.m., the jury listened to thirteen minutes of testimony, and

was then returned to the jury room at 1:43 p.m., where they remained for almost an hour.

28 ¶69. According to Graham, one of the vehicles contained a white, plastic gallon jug which

contained an unknown clear liquid. Graham then offered an opinion as to how one could

remove fingerpr

ints from a crime scene. Le’s counsel objected, claiming the liquid was not

identified, and further claiming he was not told in discovery of the two vehicles.

¶70. In response to Le’s objectio ns regarding alleged discovery violations, the prosecutor

stated to the court:

Judge, he got everything that’s in discovery. There’s a list of where the items

were found, the search warrant, cons ent to search, everything. He needs to look

at his discovery.

¶71. Graham then gratuitously informed the cour t: “I did include the information in my

repo rt, as well.” The trial judge then overruled the objection, and questioning resumed until

the court released the jury for lunch at 12: 00 p.m. When everyone returned from lunch at 1:30

p.m., and with the jury in the jury room, Le’s counsel revisited the issue of Graham ’s report.

He told the court:

Well, I don’t have a repor t from Mr. Graham at all. He mentioned on the stand

that he had provided a report to the District Att orney’s office. Unless his report

was his diagrams only, I haven’t received anything like that.

¶72. Without ruling on the objection, t he trial judge allowed Le’s counsel to cross examine

Graham, who testified he sent his report to the Sheriff’s department on March 5, 2002. After

allowing the prosecutor to complete redirect examin ation, the court sent the jury back to the

jury roo m

4 to allow counsel to discuss Graham’s report. During the discussion, Le’s counsel29

requested a mistrial

, based upon the State’s “violation of discovery.” The court allowed Le’s

counsel thirty minutes to review the report, after which he renewed the motion for a mistrial.

¶73. In denying the motion for mistria l, the court stated that Le had not shown prejudice.

However, the trial court allowed Le’s counsel to cross-exa mine Graham outside the presence

of the jury to explore the issue.

¶74. Le now raises the issue with this Court, claiming that b oth the expert testimony and the

discovery violation require reversal of his conviction. As support for his position, Le cites

Ramos v. State , 710 So. 2d 380, 386 (Miss. 1998), which states:

In Hertz v. State , 489 So. 2d 1386 (Miss. 1986), we admonished the

prosecuting attorneys that they ‘should make available to attorneys for

defendants all . . . material[s] . . . and let the defense attorneys determine

whether or not the material is useful in the defense of the case. We direct the

attention of trial judges to this problem and suggest that they dil igently

implement this suggestion in order to dispense with costly erro rs which might

cause reversal of the case, Barnes v. Stat e , 460 So. 2d 126 (Miss. 1984);

Harris v. State

, 4 46 So. 2d 585 (Miss. 1984); M orris v. State

, 436 So. 2d 1381

(Miss. 1983).’ I

d. at 1388 (e mphasis added). In D otson v. State

, 593 So. 2d 7

(Miss. 1991), this Court reproved, ‘Now, we take this opport unity to reinforce

that which we stated in H ertz with a simple message to the bench and ba r. Read

Hertz ! Apply Hertz !’ Id. at 12 (Emphasis added).

Ramos , 710 So. 2d at 385-86.

¶75. Le also cites A cevedo v. State

, 467 So. 2d 220, 224 (Miss. 1985), in support of his

contention that cross-examination of an expert is insufficient to correct the error, since his

counsel had no notice or reasonable opportunity to prepare for an effectiv e cross-examination.

Furthermore, citing Harrison v. State , 635 So. 2d 894 (Miss. 1994), Le contends that the trial

court’s failure to grant a continuance was reversible error. In H arrison

, it was found that the5 Box v. State , 437 So. 2d 19 (Miss. 1983), which set forth suggested guidelines when trial

courts are faced with a Rule 9.06 discovery violation. These guidelines are now found in Rule 9.06 (I).

30 trial court did no t comply with the requirements of B ox. 5 I d. at 900. The defendant had filed

a motion pursuant to Rule 4.06, as well as a motion to compel the State to come forward with

the evidence. I

d. at 898. “The State responded only by providing a copy of Dr. McGarry’s

autopsy report, which did not state any opinion as to the instruments that caused the victim’s

injuries.” Id. During trial, Dr. McGarry testified as to his opinions on possible causes of

certain injuries, the victim was consc ious when certain injuries were inflicted and the victim

was raped. I

d. The defense counsel made a discovery violation objection which was overruled.

Additionally, the trial court refuse d denied counsel’s attempt to invoke the requirements of

Box

. Id. at 899. As a result, this Court found reversible error. Id. at 900.

¶76. Le contends that had Graham’s opinions been produced prior to trial, his counsel could

have evaluated the opinions with the assistance of a forensic expert. Rule 9.04 (I) of the

Uniform Circuit and County Court Rules provides in pertinent part:

If du ring the course of trial, the prosecution attempts to introduce evidence

which has not been timely disclosed to the defense as required by these rules,

and the defense objects to the introduc tion for that reason, the court shall act as

follows:

1. Grant the defense a reasonable opportunity to interview the newly discovered

witness, to examine the ne wly produced documents, photographs or other

evidence; and

2. If, after such opportunity, the defense claims unfair surprise or undue

prejudice and seeks a continuance or mistrial, the court shall, in the interest of

justice and absent unusual circumstances, exclude the evidence or grant a

continuance for a period of time reasonably necessary for the defense to meet

the non-disclosed evidence or grant a mistrial.31

3. The court shall not be required to grant either a continuance or mistrial for

such a discovery violation if the prosecution withdraws its efforts to introduce

such evidence.

¶77. Furthermore, as discussed supr a , the rules require the State to produce to the defense

any opinions and reports rendered by experts. “To give expert testimony, the witness must be

qualified and tendered as an expert. If the expert witness has not been first tendered as an

expert, the expert opinion should not be allowed.” W alk er v. State , 740 So. 2d 873, 882

(Miss. 1999). However, in the case sub judice, Graham was not tendered as an expert witness.

Nevertheless, he was allowed to provide an opinion that the injuries to the victims were the

result of blunt force trauma. Specifically, he testified that at the crime scene, he observed that

in the room where Thuy’s body was found, t he bed skirt showed blood-stain patterns which

w e re consistent with blunt-force trauma. Graham further testified that he found a fire

extinguisher at the crime scene.

¶78. Giving Le the bene fit of every doubt, the most that can be said of Graham’s “expert”

testimony is that he provided cumulative evidence that the victim s suffered blunt force trauma,

a conclusion which hardly required expert evaluation. The photographs introduced into

evidence require little imagination regarding whether the victims suffered blunt force injuries.

Thei r heads were bashed in. Even if expert testimony was necessary to establish the fact, the

State called another witness, Dr. McGarry, who testified that one of the victims had a massive

head injur y to the back of her head. Dr. McGarry explained that the victim’s scalp had been

broken open, her head was caved in and her skull w as driven into her brain, and that she had

bruises around her face and a fractured jaw. Dr. McGarry testified that these injuries were the

result of the beating or pounding of her head with some kind of heavy object.32

¶79. Furthermore, since Le admitted that al l three victims were beaten, including blows to

the head with a fire extinguisher, he can hardly claim p rejudice from surprise testimony, expert

or not , which established nothing more than an opinion of blunt force injuries to the victims.

¶80. In Walker v. State

, 740 So. 2d 873, facing a similar issue raised o n appeal, this Court

held the testimony of a sheriff to be expert testimony because it was based on bloodstains and

the position of the victim’s body. However, “[t]he error was, in the end, harmless because

there was other testimony to the same effect.” I d. at 882. The cumulative evidence in W alker

pales in comparison to the cumulative evidence here. We find Le’s assignment of error

regarding Graham’s expert opinion of blunt force trauma is without merit.

¶81. We tu

rn now to Le’s objection to Graham’s report based on an alleged violation of

discovery rules. To begin, we shall review part of Graham’s testimony, a portion of which has

already been discussed supra

. Graham testified that he had examined two vehicles, and had

found in one of them a plastic gallon jug containing clear liquid. Defense counsel objected,

alleging that the defense had not received any information in discovery about the examination

of the vehicles. The trial court overruled the objection, and defense counsel requested time

to review Graham’s report. After Le’s counsel’s was allowed a thirty minute review of the

report (discussed supra ), the defense moved for a m istrial. Defense counsel claimed that

Graham’s report revealed that at the time Graham observed the crime scene, three cars were

in the victims’ drivew ay, and that had defense counsel known this, he would have questioned

an earlier witness abo ut the cars. The prosecution responded that the cars were visible in the

photographs of the crime scene, and that Le mentioned one of these cars in his statement.33

¶82. The trial court then properly focused on whether the defendant suffered any prejudice

as a result of the alleged discovery violation. The trial court stated that defense counsel had

not shown any prejudice. The trial court also stated that the defense would be given an

opportunity to question Graham about the re port outside the presence of the jury, and that the

defense would be allowed to recall for further examination the earlier witness who counsel

claimed he would have questioned about the cars.

¶83. The purp ose of Rule 9.04 is to avoid ambush or unfair surprise to either party at trial.

Hunt v. State

, 687 So. 2d 1154, 1164 (Miss. 1996). Furthermore, Mississippi Rule of

Evidence 103(a) provides that “[error may not be predicated upon a ruling which admits or

excludes evidence unless a substantial right of the party is affected.”

¶84. We agree with the trial court. Le did not demonstrate that previously undisclosed

evidence introduced at trial affected his substantial rights. Neither the jury nor Le learned

anything material from Graham or his report. Therefore, Le suffered no prejudice, and this

assignment of error is without merit.

Five-gallon bucket of liquid

¶85. Graham also testif ied about a five-gallon bucket of liquid found at the crime scene. He

stated that it could have been used to attempt to destroy fingerprints, or other evidence. As in

the case of blunt force trauma discussed supra

, Graham’s testimony regarding the bucket of

liquid which might have been u sed to clean up or destroy evidence, was cumulative of other

evidence. According to Le’s own testimony, he admitted to the police that the bucket, water

and bleach were used to sanitiz e the crime scene. Thus, Graham’s testimony regarding the34

bucket of liquid was cumul ative. Additionally, the issue is procedurally barred because Le

offered no contemporaneous objection regarding Graham’s alleged expe rt testimony about the

bucket and liquid.

¶86. We find the trial court summed up the issue nicely during the hearing on post trial

motions:

It seems to me that there wasn’t any opinion evidence, expert evidence presented

through this witness that impacted in any way the defense of this, of the

Defendant in this case . What any opinions he gave would appear to me to be not

expert opinions, but opinions that any person could give. And if it was anything

that he gav

e an opinion about, it was cumulative of other evidence that was

introduced. So I don’t see that there was any prejudice to the Defendant in this

case.

We agree.

7. Did the court err in overruling defendant’s motion for mistrial when

the defendant wa s made aware that evidence was known to the State to

rebut a showing on the part of the defendant that he exhibited a character

for peacefulness?

¶87. During the guilt phase of the trial, one of the prosecutors informed Le’s counsel that

the State had recently received unverified information “about Mr. Le having gang involvement

and activity with drugs.”

If the information could be verified, the State intended to use it to

rebut any evidence Le might present as to his c haracter for peacefulness. The prosecutor

informed the court that an invest igator was contacting an inmate at the Harrison County jail to

get verification. Le’s counsel stated that he was unaware of any such information, and would

need to be informe d before starting Le’s case-in-chief. The court agreed to take the matter up

when the State rested in the guilt phase of the trial.35

¶88. When the State rested, the court instructed the prosecutor to attempt to get the

requested information regarding Le’s possible gang and drug involvement. Following the

recess, the prosecutor admitted that he did not have credible evidence of the gang activity. As

to drug activity, the trial court held: “I don’t believe that selling drugs, while it is certainly a

seri ous crime and is a crime, I don’t think that goes - - would go to the issue of peace or

violence.”

¶89. Le now raises the issue, claiming he was entitled to a mistrial because the prosecutor

did not produce the information. However, the record reflects that Le never requested a

mistrial on this point. Therefore, this issue is procedurally barred. Furthermore, Le has not

shown any violation of the rules or misconduct regarding this issue. It therefore has no merit.

8. Did the Court err in reversing its previous Order and in subsequently

holding that information concerning the defend a nt’s alleged, unrelated

past i n volvement with inmate Bob Cunningham in trading guns for drugs

could be used for impeachment as to the defendant’s character for

peacefulness?

¶90. During the guilt phase of the tr ial, the prosecutor informed Le’s counsel and the trial

court that the State had obtained new i nformation from a federal inmate named Bob

Cunningham, who had made a statement to the FBI regarding drug d ealings and the sales of guns

to Le for a gang war. The State intended to offer Cunningham as a rebuttal witness to any

evidence presented by Le of his character for peacefulness. After hearing the proffered

testimony outside the presence of the jury, the court ruled that the testimony was not

admissible during the guilt phase but that it may be admissible during the sentencing phase.36

¶91. Cunningham was never called as a witne ss in the trial. Nevertheless, citing H icks on

v. State

, 697 So. 2d 391 (Miss. 1997), Le claims the trial court com m itted reversible error

by not conducting a ba lancing test on Cunningham’s proposed testimony. According to H icks

on

, “the trial court must make an on the record determination that the probative value of

admitting the evidence outweighs it prejudicial effect on the party.” Le argues that, even

though Cunningham was not called, the threat that he might b e called was prejudicial. Le

claims he changed his plans to testify as to his character during the guilt phase, and call his

mother to testify as to his character for peacefulness during the sentencing phase.

¶92. As stated, the trial court had ruled the testimony inadmissible in the guilt phase. Thus,

the th reat of Cunningham’s testimony did not prevent Le from testifying during the guilt phase.

Furthermore, the trial court did not rule the testimony admissible during the sentencing phase,

but rather deferred his ruling. Le claims he was entitled to an immediate ruling, and that the

trial cour t should not have deferred the decision. This, Le claims, left him in “limbo,” chilling

his right to testify and to present evidence on his behalf. The record reflects, however, that

before the jury was brought in for the sentencing phase, the trial court questioned the State and

the defense about any matters that needed to be taken up outside the jury’s presence. The State

informed the court that Cunningham was a possi ble witness for rebuttal purposes only. The

trial court then stated that it would explain to the jury that this was the sentencing phase of the

trial, and that the State would have an opportunity to make an opening statement, and then they

would proceed with any other evidence.37

¶93. When the court asked Le’s counsel if he was ready to proceed, he did not object to, nor

request a ruling on the admissibility of, Cunningham’s proposed testimony. Instead, he

informed the court that he was ready to go forward. Cunningham did not testify. Le did not

proffer any proposed testimony from himself or his moth er. In Rushing v. State , 711 So. 2d

450 (Miss. 1998), this Court stated:

We ‘cannot decide an issue based on assertions in the briefs alone; rather, issues

must be proven by the record.’ M edina [v. State]

, 688 So. 2d [727], 732 [(Mis s

. 1996)]. In W

elcher v. State

, 697 So. 2d 1087, 10 95 (Miss. 1997), where the

defendant claimed that he was denied the opportunity to testify becaus e the

j udge declined to make a blanket ruling on his motion in liming regarding the

admissibility of prior bad acts, we further found that the assignmen t of error was

procedurally barred because of Welcher’s failure to make a proffer of the

testimony he would have presented.

***

While

. . . the content of the defendant’s testimony may be of little assistance

to the trial court in making a decision on admissibility, the requirement of a

proffer serves two purposes. It provides a modicum of assurance that the

re quested ruling is not purely advisory and, most importantly, it provides a basis

for this court’s harmless error analysis. [ Welcher, 697 So. 2d at 1095].

***

As we further

stated in H

eidelberg v. State

, 584 So. 2d 393, 395 (Miss. 1991),

a defendant must preserve for the record ‘substantial and detailed evide nce’ of

what he would have testified since . . . ‘if a defendant in fact has nothing of

substance to say in his own defense, we are hardly likely to give the time of day

to his suggestion that his right of allocation was chilled by the foreknowledge

that the prosecution would present his prior conviction.’

Rushing , 711 So. 2d at 456.38

¶94. We therefore hold this issue is procedural ly barred. Furthermore, “[procedural bar

notwithstanding, we cannot hold the circuit court in error for failing to rule on the

admiss ibility of any prior bad acts or previous convictions until the State seeks to introduce

such evidence.” Id. ( citing Welcher

, 697 So. 2d at 1095). For the reasons stated, this issue

is without merit.

9. Did the Court err in overruling defendant’s motion to preclude

admission of the statement made by the deceased co-d efendant, Nan Than?

¶95. Before Than committed suicide, he made certain statements to law enforcement which

the State intended to use against L e. Le objected, claiming use of the statement would violate

his constitutional rig

ht to confront the deceased witness. However, the trial court was

informed that Le, himself, inten ded to introduce certain statements allegedly made by Than to

inmates. After hearing argument and considering the matter, the trial court stated:

[If you offer the testimony of someone under the hears a y exception, that this

w itness is now deceased and of course unavailable to testify. If you offer

testimony of his statement as to what he may ha ve said to these inmates, then I

believe the defense

- - I mean, I believe the State, in rebuttal to that -- defense

of that, could offer the statement that the co-def endant made to law

enforcement. Now, I haven’t looked at that statement. It may be that some of

it would have to b e redacted. I don’t know that it would or not, and I don’t know

exactly how that could be done, but I believe th ey would be entitled to put forth

any evidence that would impeach what was said to these other witnesses.

¶96. After Le offered int o evidence alleged statements of Than to other inmates, the State

m oved to introduce, in rebuttal, a tape recording and transcript of Than’s statement to law

enforcement. After reviewing the transcript, the trial court ruled the statement was admissible,6 The limiting instruction was as follows:

Let me give this instruction to the jury on this tape. This is the tape taken by the officers

from Mr. Than who was the co-defendant in the case. And it is admitted for the limited

purpose on the issue of the credibility of Mr. Than in regard to his other statements that

have been testified about. It should not be considered by you as evidence on the issue of

the guilty or innocence of the defendant. It just goes to the issue of the credibility of the

previous comments that were made by Than.

39 and that the c ourt would provide a limiting instruction 6 to the jury, advising that the statement

was being admitted for the limited purpose of weighing the c redibility of Than’s statements to

the inmates.

¶97. Le now tells us that the trial court violated his co nstitutional right to confront Than, and

further that the statement was hearsay which did not fall within any hearsay exception. Le cites

Lee v. Illinois , 476 U.S. 530, 541, 106 S.C. 2056, 90 LED.2d 514, 526 (1986), and

Williamson v. United States

, 512 U. S. 594, 114 S.C. 2431, 129 LED.2d 476 (1994), in

support of his position. However, the statements in issue in those cases were not offered in

rebuttal, which distinguishes them from the case sub judice. We find better counsel from

Jordan v. State

, 728 So. 2d 1088 (Miss. 1998), in which this Court considered and rejected

the same arg

ument presented by Le. In J ordan

, the defense called a goalmouth, Charlie

McCree, who testified about an alleged statement made by Fontrell Edwards, who was

unavailable at trial. In rebuttal, the State called the Sheriff to testify as to a statement Edwards

made to law enforcement shortly after his arrest. Finding no error in the decision of the trial

court in Jordan to admit the statement, this Court held:40 Jordan asserts the testimony of Sheriff Cross consisted of inadmis sable

hearsay which should have been excluded by the trial judge. He further claims

the admission of Cross's testimony violated his right to confrontati on under

both the United States and M ississippi Constitutions. We disagree. The

testimony of Sheriff Cro ss was properly admitted to impeach the credibility of

Frontrell Edwards pursuant to Miss. R. Evid. 806 , which provides in pertinent

part:

When a hearsay statement, or a s tatement defined in rule

801(d)(2), ©, (D), or (E), has been admitted in evidence, the

credibility of the declarant may be attacked, and if attacked may

b e supported, by any evidence which would be admissi ble for

those purposes if the declarant had testified as a witness.

If the declarant, Frontrell Edwards, had testified as a witnes s for the

defense, the State would then b e permitted to cross examine Edwards or call

another witness to the stand to attac k Edwards’ credibility . However, since

Edwa rds was unavailable as a witness, the defense was allowed to introduce

hearsay statements into evidence through the testimony of Charlie McCree.

Miss. R. Evid. 804(b)(3). In accordance with Rule 806, the trial judge then

allowed the State to call Sheriff Cross in order to attack the credibility of the

declarant as if the declarant had testified as to the prior statements. We find no

error by the lower court in this respect.

Jordan asserts the admission of Edwards’ statements by way of Sheriff

Cross violates his constitu tional right to confront the witness against him. The

Confro ntation Clause of the Sixth Amendment of the United States Constitution

provides, “In all criminal prosecutions, the accused shall enjoy the right . . .to

be confronted with the witnesses against him.” Article 3, Section 26 of the

Mississippi Constitution contains an almost identical pr ovision. In L anier v.

State

, 533 So.2d 473 (Miss.1988) we relied on the United States Supreme

Court's interpretation of the confrontation clause, stating the purpose of the

confrontation clause is fulfillment of the “ ‘mission

. . . to advan ce the accuracy

of the truth determining process

. . .by assuring that the t rier of fact has a

satisfactory basis for evaluating the trust of a prior sta tement.’ ” L anier

, 533

So.2d at 488 (quoting L aFave and Israel Criminal procedure § 23.3(d) at 877-78

( 1985) (quoting California v. Green

, 399 U.S. 149, 90 S.Ct. 1930, 2 6 L.Ed.2d

489 (1970)). Counsel for the defendant was aware that Frontrell Edwards was

unavailable as a witness, but nevertheless placed Charlie McCree on the witness

stand to introduce stateme nts made by Edwards which favored the defendant. It

is rationally inconsistent and constitutionall y wanting for defense counsel to41

now argue that the subsequent introduction of Edwards' statements which

disfavored the defendant was in violation of the defendant's right to confront

Edwards through the defense opened the door with Charlie McCree's te stimony.

We find no error due to lack of cross-examination under the facts presented.

Jordan , 728 So. 2d at 1096-97.

¶98. We recognize that Craw ford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d

177 (2004), prohibits the introduction of te stimonial out-of-court statements under the

Confrontation Clause, unless the defendant had prior opportunity for cross-examination.

However

, Crawford is distinguishable from the case sub judice for two reasons. First, unlike

the statement in Crawford

, Tran’s statement was offered by the State only in rebuttal. In his

case-in-chief, Le called witnesses to testify about Tran’s statements. In doing so, Le opened

the door for the Sta te to call a rebuttal witness to contradict the defense witnesses’ testimony

about Tran’s statements. Secondly, in the case sub judice, the trial court gave a limiting

instruction to the jury which explained that Tran’s statement to law enforcement was not to be

considered in determining Le’s guilt or innocence, but was only to be co nsidered for limited

purposes of determining the credibility of Tran’s statements.

¶99. Le further contends that, even if such statements are allowed for impeachment purposes,

the prosecutor used the statement under guise of impeachment.

¶100. It is true that this Court has held “a prosecutor may not use prior statements of a witness

‘under guise of

impeachment for the p rimary purpose of placing before the jury substantive

evidence which is not otherwise admissible.’” H arrison v. State

, 534 So. 2d 175, 178 (Miss.

1998) (citing U nited States v. Livingston

, 816 F.2d 184, 192 (5th Cir. 1987)). However, we42

find no merit to thi s argument. Le presents nothing which indicates the prosecutor’s purpose

was different from that stated to the court. Had Le not placed into evidence the statements of

the in mates, the State would not have been allowed to use Tran’s statement to law enforcement.

¶101. For the reasons stated, we find no merit to this assignment of error.

10. Is the sentence of death excessive or disproportionate to the penalty

imposed in similar cases considering both the crime and the defendant?

¶102. Le contends that his death sentence was disproportion ate, and that the evidence was

insufficient for a jury to f ind that he intended a killing take place. Le further contends that

Mississippi’s death penalty statute is unconstitutional as applied to felony capital murder, and

that hi s conviction was in violation of the Eighth and Fourteenth Amendments to the

Constitution of the United States.

Whether the Statute is Unconstitutional

¶103. Le argues that

– even though in Grayson v. S tate , 806 So. 2d 241, 252 (Miss. 2001),

this Court held Miss. Code Ann. § 97-3-19(2)(e) constitutional l y sound

– nevertheless,

Mississippi’s current jurisprudence eq uates felony participation with the level of culpability

required to impose the death penalty. Thus, Le argues, simply contemplating that lethal force

will be used in the commission of a felony does not rise to the same level of culpability as that

required by the United States Constitution and Eig hth Amendment jurisprudence. Citing

Enmund v. Florida

, 458 U.S. 781, 797, 102 S.Ct. 3368, 3376, 73 L. Ed. 2d 1140 (1982) and

Tison v. Arizona

, 481 U.S. 137 (198 7), Le says the Eighth Amendment does not permit the43

imposition of the death penalty on a person who only aids and abets the commission of a

felony, but who does not himself, kill, attempt to kill, or intend that a killing take place, or

intend that lethal force will be employed.

¶104. To address Le’s argument, we first turn to the statutes which pe rmit capital punishment.

Miss. Code Ann. § 97-3-19(2)(e) (Rev. 2000) provides:

(2) The killing of a human being without the authority of law by any means or in

any manner shall be capital murder in the following cases:

(e) When done with

or without any design to effect death, by any person engaged in the

commission of the crime of rape, burglary, kidnaping, arson, robbery, . . .

Miss. Code Ann. § 99-19-101(5)(d) (Rev. 2000) provides:

Aggravating circumstances shall be limited to the following:

(d) The capital offense was committed while the d efendant was engaged, or was

an accomplice, in the commission of, or an attempt to commit, or flight after

committing or attempting to commit, a ny robbery, rape, arson, burglary,

kidnaping, . . .

Miss. Code Ann. § 99-19-101(7) (Rev. 2000) provides:

In order to return and imp ose a sentence of death the jury must make a written

finding of one or more of the following:

(a) The defendant actually killed;

(b) The defendant attempted to kill;

© The defendant intended that a killing take place;

(d) The defendant contemplated that lethal force would be employed.

¶105. Contrary to Le’s argument, this Court has upheld the constitutionality of Miss. Code

Ann. § 99-19-101. Grayson , 806 So. 2d at 252 ( c iting Holland v. State

, 705 So. 2d 307, 320

(Miss. 1997)). Le contends, however, that this Court fails to apply the rule announced in

Enmund

, and clarified in Tison

, as it applies to felony capital murder . In E nmund

, the United44

States Supreme Court held that the Eighth Amendment does not permit the imposition of the

death penalty on one “who aids and abets a felony in the cou rse of which a murder is committed

by others but who does not himself kill, attempt to kill, or intend that a killing tak e place or that

lethal force will be employed.” Enmund , 458 U.S. at 797.

¶106. In Tison

, the United States Supreme Co urt addressed a death penalty decision by the

Arizona Supreme Court. The T ison Court discussed the Ed mund intent requirement, stating:

[T]h e Arizona Supreme Court attempted to reformulate “attempt to kill” as a

species of foreseeability. The Arizona Supreme Court wrote: “Intend [sic] to

kil l includes the situation in which the defendant intended, contemplated, or

an ticipated that lethal force would or might be used or that life would or might

be taken in accomplishing the underlying fe lony.” 142 Ariz, at 456, 690 P.2d,

at 757.

This definition of intent is broader than that describe d by the E nmund Court.

Partici pants in violent felonies like armed robberies can frequently ‘anticipat[e]

that lethal force . . . might be used . . . in accomplishing the underlying felony.’

Enmund himself may well have so anticipated. Indeed, the possibility of

bloodshed is inherent i n the commission of any violent felony and this

possibility is generally foreseeable and foreseen; it is one principal reason that

felons arm themselves. The Arizona Supreme Court’s attempted reformation

of intent to kill amounts to little more than a restatement of the felony-murder

rule itself. Petitioners do not fall within the ‘intent to kill’ category of felony

murderers for which Enmund explicitly finds the death penalty permissible

under the Eighth Amendment.

Tison

, 481 U.S. at 150-51. The Supreme Court concluded: “We will not attempt to precisely

delineate the particula r types of conduct and states of mind warranting imposition of the death

penalty here. Rather, we simply hold that major participation in the felony committed,

combined wit

h reckless indifference to human life, is sufficient to satisfy the E nmund

culpability requirement.” Id. at 158.45

¶107. We do not find that Tison’s restrictiv e language insulates Le from the death penalty.

This Court has repeatedly held that

Missis sippi’s capital sentencing scheme, as a whole, is constitutional.

Woodward v. State

, 726 So. 2d at 528. S ee Lockett v. State , 614 So. 2d 888,

897 (Miss. 1992); Coleman v. State , 378 So. 2d 640, 647 (Miss. 1979);

Washington v. State , 361 So. 2d 61, 65 (Miss. 1978).

In support of his position that the death p enalty is unconstitutional,

Stevens cites the United States Supreme Court case Tison v. Arizona

, 481 U.S

. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987). The Court in T ison held that a

defendant must “knowingly engage in criminal activities known to carry a grave

r isk of death.” T

ison v. Arizona

, 481 U.S. at 157-58, 107 S.Ct. at 1687-88.

However, Tis on addressed an Arizona statute which allowed capital punishment

for reckless disregard for life. Id.

This is not the situation i n the case sub judice. First, reckless disregard

for human life is not an aspect of Mississippi’s capital sentencing scheme. S ee

Miss. Code Ann. § 97-3-19 (2000).

* * *

In Mississippi, the capital punishment state Miss. Code An n. § 99-19-

107(a)-(d) provides that in order to return and impose a sentence of death, the

jury must make a written finding of one or more of the following factors:

(a) The defendant actually killed;

(b) The defendant attempted to kill;

© The defendant intended that a killing take place;

(d) The defendant contemplated that lethal force would be employed.

Miss. Code Ann. § 99-19-107(a)-(d)(2000).

The State m

ust only prove one of the four facts. It is not necessary that

the State prove intent where the victim was actually k illed. Lockett v. State , 517

So. 2d 1317, 1338 (Mis s. 1987); Jordan v. State , 464 So. 2d 475, 479-

80(Miss. 1985); Williams v. State

, 445 So. 2d 798, 807 (Miss. 1984). Miss.

Code Ann. § 99-19-101(7) only requires that one of the factors be fo und to46

support a death sentence. S mith v . State , 729 So. 2d 1191, 1218-19 (Miss.

1998); Bell v. State , 725 So. 2d 836, 860-61 (Mis.. 1998).

We find that Steven’s argument regarding the unco nstitutionality of

Mississippi’s capital sentencing scheme is wholly without merit.

Stevens v. State , 806 So. 2d at 1052-53.

¶108. This Court also held in Evans v. State , 725 So. 2d 613, 684 (Miss. 1997):

Mississippi require s more than simple felony murder to sentence a defendant

to death. Miss. Code Ann. § 99-19-101 allows a jury to consider as an

aggravating circumstance the fact that a murder was comm itted while the

defendant was engaged in the commission of felony. However, after E nmund

and the amendments to our sentencing scheme, that fact alone is insufficient to

impose the death penalty. Rather, a jury must find that the defendant actually

killed, attempted to kill, intended that a killing take place, or contemplated that

lethal force would be employed in order to impose a death sentence. Our

sentencing scheme, consiste nt with T ison

, allows a jury to consider as a

mitigating circumstance that t he defendant was an accomplice whose

participation was relatively minor.

In light of Enmund and Tison

, a critical review of our capital sentencing sc heme

reveals no constitutional infirmities.

¶109. Le’s argu

ment that he was guilty of nothing more than contemplation of lethal force is

without merit. Le’s jury found more than that one E nmund factor. In fact, the jury found

beyond a reasonable doubt that Le: (1) attempted to kill; (2) intended the killing; and (3)

contemplated that lethal force would be employed against Th anh and Minh. In addition, the jury

found beyond a reasonable doubt that Le: (1) intended the killing and (2) contemplated that

lethal force would be employed against Thuy. Therefore, the jury found more than

contemplation that lethal force would be employed with regard to all three murders.

Limiting Instruction47

¶110. Le contends a limiting instruction should have been given, advising the jury that

contemplation

– without more

– was insufficient to fin d that he intended a killing to take place.

Le cites Randall v. S tate , 806 So. 2d 185 (Miss. 2002), in support of this argument. In

Randall

, this Court reversed the trial cou r t because the additional limiting instruction was not

given to the jury. R andall

, 806 So. 2d at 233. However, in R andall the jury did not f ind that

Randall killed , attempted to kill or intended that a killing take place. I d. at 234. Thus, R andall

is distinguishable from the facts before us. The State argues that R andall is further

distinguished from the case sub judice beca use there was sufficient evidence to support the

jury verdict, and because the jury found more than the contemplation of lethal force.

¶111. In Simmons v. State , 869 So. 2d 995, 1007 (Miss. 2004), this Court stated:

The Court has also found the death penalty not to be proportionate for an aider

and abetter who is not the actual killer in several other cases. S mith v. State

,

729 So. 2d 1191 (Miss. 1991); Ballenger v. State

, 667 So. 2d 1242 (Miss.

1999); Carr v. State

, 655 So. 2d 824 (Miss. 1995); A bram v. State

, 606 So. 2d

1015 (Miss. 1992); Leatherwood v. State , 435 So. 2d 645 (Miss. 1983).

Simmons also cites Randall v. State , 806 So. 2d 185 (Miss. 2001),

where this Court found that, where there was no proof as to who actually killed

the victim, and the oth

er co-defendant received sentences of less than death, and

the ju ry only found that Randall contemplated that lethal force would be used

and nothing else, then the death sentence was disproportionate. While

Simmons’s cas e does have similarities to R andall

, [sic] the case at bar, as this

Court noted on direct appeal, the jury found that Simmon s intended the killing

of Jeffery Wolfe to take place, in addition to finding that Sim mons

contemplated that lethal force would be employed. This Court specifically

found that und er these circumstances the death penalty was not disproportionate.

¶112. Le’s jury found that he intended the killings to take place. Our standard of review of a

jury’s findings is as follows:48

On appeal, ‘we review the evidence and reasonable inferences w hich may be

drawn therefrom in the light most consistent with the verdict. We have no

authority to disturb the [jury] verdict short o f a conclusion on our part that upon

the evidence, taken in the light most favorable to the verdict, no rational trier of

fact could have found th at fact at issue beyond a reasonable doubt.” W hite v.

State

, 532 So. 2d 1207, 1220 (Miss. 1988). This is the guide for testing the

legal sufficiency of the evidence to support a finding under §99-1 9-101(7)

. .

.

Smith v. State , 729 So. 2d 1191, 1218 (Miss. 1998).

¶113. Furthermore, Le admitted, among other things, the following:

. he knew Tran was armed with a gun

. he inflicted injuries on the victims

. he helped hogtie the victims

. he covered the mother’s head with a bag and tried to choke her

. he was in the house with the victims for approximately 4 hours

. he and Tran used bleach and water to attempt to clean up the crime scene.

¶114. Furthermore, the State contends the jury could h ave inferred from the evidence that

more than one person would have been nec essary to hogtie and kill all three victims, that

something would have to be done to the victims because they knew Tran’s face very well and

that if he tried to kill one of the victims that he intended for all of them to be killed.

¶115. Additionally, we note that Le did not request a limi ting instruction at trial and,

therefore, is procedurally barred from raising the issue now. We find, however, that even if

no procedural bar existed, this issue is without merit.

Disproportionate Sentencing49

¶116. As stated supra

, the capital murder statutes are constitutional and do not violate the

Eighth or Fourteenth Amendments to the United States Constitution. The jury was properly

instructed as to the law and returned a verdict of guilty on all three counts of capital murder.

Therefore, we cannot say that the sentence of death was disproportionate.

Miss. Code Ann. § 99-19-105(3)

¶117. Under Miss. Code Ann. § 99-19-105(3), this Court is required to exam ine the following

factors with regard to a sentence of death:

(a) Whether the sentence o f death was imposed under the influence of passion,

prejudice or any other arbitrary factor;

(b) Whether the evidence supports the jury’s or judge’s find ing of a statutory

aggravating circumstance as enumerated in Section 99-19-101;

© Whether the s entence of death is excessive or disproportionate to the penalty

imposed in similar cases, considering both the crime and the defendant; and

(d) Shou ld one or more of the aggravating circumstances be found invalid on

a ppeal, the Mississippi Supreme Court shall determine whether the remaining

aggravating circumsta

nces are outweighed by the mitigating circumstances or

whether the in

clusion of any invalid circumstance was harmless error, or both.

¶118. Le has not presented any evidence that his s entence was imposed under the influence

of passion, prejudice, or any other arbitrary factor, and there is no evidence in the record that

Le’s sentence was imposed under such influen ces. With regard to the finding of the statutory

aggravating circumstance, the evidence supports the finding that Le committed the offense

while committing a robbery. Finally, as discussed supra, and considering the crime and the

defendan t, the sentence of death is not disproportionate to the penalty imposed in similar

cases. (See attached Appendix).

11. Did the Court err in refusing instructions submitted by the defense?50

¶119. Wishing the jury to consider his alleged p eaceful character, Le proposed three jury

instructions which provided:

D-14

The Court instructs the Jury that good character may in itself create a reasonable

doubt, when otherwise no such doubt would exist. If in the judgment of the jury,

the evidence of good character raised a reasonable doubt against any evidence

introduced by the prosecut ion, you have the right to entertain such doubt, and the

Defendant should have the benefit of it.

D-15

The Court instructs the Jury tha t in case of doubt, Thong Le’s previous good

reputation for peacefulness should turn the scale in his favor.

D-16

The Court inst

ructs the Jury that the word “willful” as used in these instructions

of law means “in

tentional.” This word is further defined to mean “intending the

result which actually comes to pass”.

¶120. Our standard

of review of alleged error in a trial court’s denial of proposed jury

instructions is, as follows:

Jury ins t ructions are to be read together and taken as a whole with no one

instruction taken out of context. A defendant is entitled to have jury instructions

given which present his theory of th e case, however, this entitlement is limited

in that the court may refuse an instruction which incorr ectly states the law, is

covered fairly elsewhere in t he instructions, or is without foundation in the

evidence. H

umphrey v. State

, 759 So. 2d 368, 380 (Miss. 2000) (citing H eidel

v. State , 587 So. 2d 835, 842 (Miss. 1991)).

Austin v. State , 784 So. 2d 186, 193 (Miss. 2001).

¶121. In refusing proposed jury instruction D-14, the trial court stated:51

THE COURT: I’ll refuse this. The evidence of good character should go to the

jury without any intimation of the Court of its value. That’s just like any other

factor. That’s Lampkin v. State , 59 So. 2d 335.

¶122. After refusing proposed D-14, the trial cour t immediately considered Le’s proposed

jury instruction D-15. The following exchange took place:

MR. MILLER: Sam

e thing, Judge, incorrect statement of the law; that is,

previous good reputation for peacefulness should turn the scale in its favor.

THE COURT: I’ll refuse that.

¶123. Le contends that denying the instruction of p eacefulness hindered the defense because

it prevented the jury from knowing that the d efendant’s peacefulness was something that could

be considered when evaluating his guilt. However, this Court stated in Lampkin :

Evidence of good character of the accused should go to the j ury as any other

fact , and its influence in the determination of a case should be left to the jury,

without any intimation of the court of i ts value. The court should not tell the

jury that satisfactory evidence of the good characte r of the accused is or is not

sufficient to raise a reaso nable doubt of his guilt. The jury is to have the

evidence as an aid to estimate to the other evi dence, and by the light of the

whole to reach a verdict.

Lampkin v. State , 59 So. 2d 335 (Miss. 1952) (citations omitted).

¶124. When the trial court next discussed Le’s proposed jury i nstruction D-16, the State

offered the following objection:

THE COURT: All right. D-16?

MR. MILLER: I object. I think it’s improper to say that he intends the result

which actually comes to pass is not true. If Mr. Nicholson and I decide to come

to your house and rob you, and I kill you, but he’s there particip ating in the

robbery, we’re both guilty of capital murder. He does not have to intend at that

point in time that we’re going to kill you. That’s the whole thing behind a capital

murder. It doesn’t require any intent whatsoever.52

THE COURT: It doesn’t require

- It’s with or without design to effect death, I

think.

MR. MILLER: That’s exactly right. You don’t have to have intent. That’s the

separation of capital murder from regular murder.

MR. CONANT: I would just say then that he may be improperly indicted because

the indictment says willfully caused the deaths. And the definition of “willful”

comes right

out of Blacks Law Dictionary. It’s, you know, Black letter law. The

indictment does not read that he’s charged as having willfully committed these

crimes.

THE COURT: Let me look at those instructions again.

MR. MILLER: The law is without the intent.

MR. CONANT : You’re correct that the law says with or without. I’m talking

about where he started.

THE COURT: Let’s just

pass that for a minute and I’ll look at that a little more.

***

MR. MILLER: On that willful, if he’ll look a t the indictments, the indictments

say, willfully, unlawfully and feloniously without authority of law, and with or

without any design to effect the dea th. And that’s exactly why you don’t get an

instruction like that in a capital murder case.

T HE COURT: Let me just take a minute. Let me have the given instructions. Al

right. D-16, willfully I think is a correct statement of the law and I’ll give it.

MR. MILLER: Judge, I think it’s improper. I mean, you’re going to confuse the

jury. It does not have to be - He does not have to intend the result which actually

comes to pass.

THE COURT: Well, S-3(B) says, willfully, unlawfully. and feloniously.

MR. MILLER: I know it does, but you’re adding something - a burden to the

State that’s not there in the law. It’s with or without deliberate design. They

don’t have to have a deliberate design to kill. That’s the whole thing. You don’t

have to intend to kill anybody. If you did, then you’re going back to the regular53

murder statute. The whole thing behind the felony murder, or capital murder is

you don’t have to intend to kill anybody. I commit a sexual battery and

somebody dies, well, I didn’t intend to kill her, but if she dies, that’s capital

murder. You might as well just direct a verdict on the capital murder charge and

go for murder if you’re going to give this.

THE COURT: I think really I’m going to refuse it. After looking at it, D-16, and

looking at the indictment, I think the indictment clearly sets forth the elements,

a nd so I think it would just be something that might be confusing to the jury. I’m

going to refuse it.

¶125. Le contends that by denying the willfulness instruction, the tri al court prevented the jury

from understanding the meaning of the word in the context of capital murder. The State points

out that the jury was properly instructed o n the degree of intent necessary for a conviction.

Jury Instruction 2 (S-3b) provided:

The Defendant, Thong Le, has been c harged in the indictment in Count I with the

crime of Capital Murder for having killed Minh Hieu Thi Huynh during the

commission of the crime of Robbery.

If you find that from the evidence in this case beyond a reasonable doubt:

(1) The incident in this case occurred on or about November 2, 2001, in Jackson

County, Mississippi.

(2) Minh Hieu Thi Huynh, was a living human being;

(3) The Defendant did wilfully, unlawfully, and feloniously, with or without

deliberate design by his own act or by acting in concert with or aiding and

abetting another, did kill, without authority of law, Minh Hieu Thi Huynh; and

(4) That the killing of Minh Hieu Thi Huynh occurred while the Defendant was

engaged in the commission of the crime of Robbery;

then you shall find the Defendant, Thong Le guilty of Capital Murder.

If the State has failed to prove any one or more of the above elements beyond

a reasonable doubt, t

hen you shall find the defendant not guilty of Capital

Murder.54

¶126. Instruction S-4b and S-5b are the same as S-3b, except S-4b addresses the death of Thuy

Hang Hugnh Nguyen, and S-5b addresses the death of Thanh Truc Huynh Nguyen.

¶127. We find these instructions properly informed the jury of the elements of capital

murder. They closely track the language of the applicable statutes, they were not confusing,

and they defined the crimes for which Le was charged.

¶128. Viewing the jury instructions as a whole, we find the ju ry was properly instructed as to

the elements of capital murder, including the element of intent. We therefore find no merit

to this assignment of error.

12. Was the defendant denied effective assistance of counsel as a result of

defense counsel’s failure to call any witnesses during the penalty phase of

the trial.

¶129. During the penalty phase of the trial, Le’s counsel called no witnesses. In imposing the

death penalty, the jury found that “there are insufficient mitigating circumst ances to outweigh

the aggravating circumstances.” As a result, Lee now asserts that he was denied effective

assistance of counsel.

¶130. We are instructed by Strickland v. Washington

, 466 U.S. 6 68, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984), to reverse a conviction where defense counsel’s performance was

deficient, and the deficiency prejudiced the defense such that there is a reasonab l e probability

that, but for the errors of the defense counsel, the outcome of the trial would have been

different.

¶131. Le points out that on August 20, 2002, defense counsel se rved the prosecutor with a

subpoena to appear as a witness in the sentencing phase of the trial regarding a conversation55

that took place in which the pro secutor informed the defense counsel that the father and

husband of the victims returned to Vietnam and did not want to com e back to actively pursue

the death penalty. However, the prosecutor advised the Court that this information was

hearsay, but that it could be brou ght in through an FBI agent. The defense counsel failed to call

the agent to testify in sentencing.

¶132. The record shows that prior to opening statements, the State informe d the trial court

that the defense h

ad subpoenaed the prosecutor who was trying Le’s case. The District

Attorney explained

to the Court that he had told defense counsel during plea negotiations that

the victims’ husband and father had left the United S tates and gone to Vietnam, and that he did

not wish to return to pursue the death penalty. The prosecutor stated that this was “hearsay,”

and that he had never spoken with the victims’ husband and father. The prosecutor further

stated that another witness had advised the State that an FBI agent had spoken with the victims’

family member and that he was neither for or against the death penalty. The prosecutor argued

that the defense could question the other witness about the wishes of the victims’ family.

Defense counsel responded that the other witness had never made these st atements to the

defense, and that the prosecutor had made the st atement about the wishes of the victims’ family

as a representative of the State, that the District Attorney would be called to testify in that

capacity in the sentencing phase. The trial judge held that the defense could elicit testimony

about th e victims’ family’s wishes through another witness, and that there was no reason for

the District Attorney to be called.56

¶133. Then, during the opening statement of the sentencing phase, the State made the

following statement, in pertinent part:

Now, you may say, well, why don’t we have family members. You notice there

are just not any out there, beca use they’re either dead or back in Vietnam. It’s

not because we wouldn’t want to. The situation we have here is we’re going to

rest o n what we’ve presented to you, ladies and gentlemen. So when I stand up

and ask to reintroduce all the evidence, you will understand why.

¶134. Le’s counsel was fully aware of the statement made by the father and husband of the

victims. He chose not to introduce the statements, presumably for reasons of trial strategy.

In any case, regar dless of his counsel’s reason, we find no prejudice to Le for failure of his

counsel to make the jury aware that the father and hu sband of the victims went back to Vietnam,

and did not want to testify.

¶135. Le contends that his trial counsel did not offer even a scintilla of evidence du ring the

penalty phase, and the failure to do so made it appear to the jury that there was nothing good

that could be said about the defendan t. He contends that both he and his mother were readily

available to testify.

¶136. The record demonstrates that the trial judge spo ke to Le about his right to testify on his

own behalf. The record shows that the trial judge explained to Le that he had the right to

testify, but that he was not required to do so, and that it was his choice whether or not to

testif y

. The trial judge explained to Le that if he chose not to testify, the State could not use

the fact that he did not testify against him i n any way. The trial judge also informed Le that if

he did choose to testify, the State wo u ld be allowed to cross-examine him. Le stated that he

understood all of this, and then stated that his choice was that he would not testify on his own57

behalf. Le further stated that he had discussed this choice with his attorney, and that he

understood his rights.

¶137. The record clearly demonstrate s that Le’s failure to testify on his own behalf was his

choice. The trial court carefully questioned Le to be sure he understood his right to testify,

or refrain from taking the stand. In light of Le’s decision not to testify, his counsel had no

ability to call him as a witness. Thus, on this point, we find no error.

¶138. Le claims that his counsel failed to proper ly investigate and pursue witnesses or

evidence for the p enalty phase. However, Le provides us little help in evaluating this claim.

This Court has previously stated:

W here petitioner has given this Court such a sketchy outline of the investigation

performed by counsel without any way of knowing counsels’ impressions or the

reasons behind counsels’ decisions, we are left with the presumption that

counsel had this evidence, r eviewed this evidence, and considered it, as a matter

of strategy, that it

was in his client’s best interest not to bring it out.

Notwi thstanding, we do not find that the evidence mentioned, even if it all had

been presented at sentencing was of a nature, in its entirety, to cast a ny doubt as

to the propriety of the jury’s verdict and, a s a result, this claim fails. S ee

Woodward , 843 So. 2d at 7.

Crawford v. State

, 867 So. 2d 196, 218 (Miss. 2003 ), citing H olly v. State

, 716 So.2d 979,

990-91 (Miss. 1998).

¶139. This Court has also held:

The standard for determining if a defendant received eff e ctive assistance of

counsel is well settled. “The benchmark for judging any claim of

ineffectiveness [of counsel] must be whether counsel’s conduct so un dermined

the proper functioning of th e adversarial process that the trial cannot be relied

on as having produced a just result.” S trickland v. Washington

, 466 U.S. 668,

686, 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). A defendant must demonstrate

that his counsel’s performance was deficient and that the deficiency prejudiced58

the defense of t

he case. I

d. at 687, 104 S.Ct. 2052. “Unless a defendant makes

both showings, it cannot be said that th e conviction or death sentence resulted

from a breakdown in the adversary process that renders the resu lt unreliable.”

Stringer v. State

, 454 So . 2d 468, 477 (Miss. 1984) (citing S trickland v.

Washington

, 466 U.S. at 687, 104 S .Ct. 2052). The focus of the inquiry must

be whether counsel’s assistan ce was reasonable considering all the

circumstances. Id.

Burns v. State , 813 So. 2d 668, 673 (Miss. 2001).

¶140. Le sums up his claim by stating that, for failing to present mitiga tion evidence at the

sentencing phase, including the statement made by the father and husband, the t estimony of his

mother and his own testimony, his counsel was ineffective. Le specifically states:

Clearly, the jury should have heard this testimon y. A strategic choice cannot be

supported by a complete failure to call any witnesses particularly those who

stand readily available in the courthouse to mitigate against t he death penalty.

The failure surely made it appear to the jury that there was in fact nothing good

that could be said about the defendant even by his mother.

Le generally relies on Jones v. Thigpen , 788 F.2d 1101, 1103 (5th Cir. 1986) which held:

Defense counsel either neglected or ignored criti cal matters of mitigation at the

point when the jury was to decide whether to sentence Jones to death. We agree

with the district judge that this fail ure was professionally unreasonable, and that

it was prejudicial to the defendant in that there is a reasonable probability that

had this evidence been presented, the jury wo uld have concluded that death was

not warranted.

¶141. We find Le’s case to be wholly distinguishable from J ones

, which involved failure to

present the mitigat

ing factors of age and mental disabilities, which the Fifth Circuit

characterized as follows:

He presente d no proof to the jury of these mitigating factors of age and mental

disability. He presented no mitigating circumstances at all. When the

prosecution rested, he rested.7 Wiggins showed that defense counsel had failed to discover and present that he had

“experienced severe privation and abuse while in the custody of his alcoholic, absentee mother and

physical torment, sexual molestation, and repeated rape while in foster care.” Additionally, Wiggins had

been homeless and was of diminished mental capacity. The Wiggins Court held that this was the kind

of personal history that is relevant to assessing a defendant’s moral culpability. 539 U.S. at 513 (citing

Penry v. Lynaugh , 492 U.S. 302, 319, 109 S.Ct. 2934, 106 L.Ed.2d 256).

59 At the habeas hearing in the federal district court, a clinical psyc hologist who

h ad examined Jones testified that his full I.Q. was less than 41, that he was

emotionally disturbed, that he was severely limited in his capacity to think and

did not understand what was happening around him. The ps ychologist and

psychiatrist testifying for the State agreed that he was mentally retarded,

although they thought his capacity exceeded the measure of his test results.

Id.

¶142. We acknowledge the United States Supreme Court’s decision in W iggins v. Smith , 539

U. S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), in which defense counsel’s decision not

to expand investigation of the d efendant’s life history beyond the presentence investigation

report and department of social services records was held to c onstitute ineffective assistance

of counsel. In W

iggins

, t he petitioner presented powerful mitigating evidence that defense

counsel had failed to discover and present at his trial. I d. at 512, 2531. 7 In light of the nature

and e xtent of this evidence, the Supreme Court held there was a reasonable probability that a

competent attorney would have presente d this evidence and that a jury would have returned with

a different sentence. Id. at 513. However, W iggins is distingui shable from the case sub judice.

Here, Le has not shown what mitigating evidence his attorney failed to present at his

sentencing. Le merely states that his trial counsel should have called himself and his mother

to testify. Additionally, Le argues that his counsel was ineffective in failing to call an FBI8 Le also points out that juror number 11's caller I.D showed a call from “T. Le.”

60 agent that would have te stified about the victims’ family’s decision not to pursue the death

penalty against Le.

¶143. Le has not shown that his trial counsel was ineffective. Le’s attorney demonstrated that

his failure to call Le and his mother was a st rategic decision. Had defense counsel called Le

or Le’s moth

er to testify, he would have opened the door for harmful testimony about Le’s

alleged gang and drug activity. As for the failure to call the FBI agent, Le has not provided any

specific information with regard to the FBI agent or what his or her testimony would have been.

Without some demonstration that this testimony would have been admissible, we cannot say

that there is a reasonable probability that the outcome of Le’s trial would have been different.

¶144. Le failed to de monstrate ineffective assistance of counsel under the S trickland

analysis; that is, he has fa iled to demonstrate that, had his counsel called the witnesses, there

is a reasonable probability that the jury the outcome would have bee n different. Therefore, this

issue is without merit.

13. Was the defendant denied effective assistance of counsel as a result of

defense counsel’s failure to use peremptory challenges?

¶145. Le’s counsel used eleven of his twelve peremptory ch allenges. Le says the twelfth

strike should have been used to remove juror number 23, who was the victim of three

robberies, or juror number 39, who was the brother-in-law of the Assistant Police Chief in

Ocean Springs, or jurors 11 or 23, who both claim they heard something ab out the case in news

media. 861

¶146. Le cites Triplett v. State

, 666 So . 2d 1356 (Miss. 1995), in which this Court reversed,

citing numerous acts of ineffective assistance of counsel, including t he failure to pursue

challenges. Le then generally alleges that he was prejudiced, and that there is a reasonable

probability that the conduct affected the outcome of the trial.

¶147. In Triplett

, the defense counsel failed “to perform any act basic to the defense of the

accu sed.” Id. at 1361

. In fact, it was found that the trial counsel’s “failure to challenge a single

prospective juror

. . . strongly suggest[ed] no preparation in the selection of the jury.” I d

. at

1361-62.

¶148. Le’s counsel c onducted an extensive voir dire. He challenged certain jurors for cause,

and successfully defended some of the State’s challeng es for cause. Additionally, Le’s

counsel raised and argued a Batson challenge, and exercised eleven per emptory challenges on

the regular ju

ry panel and all peremptory challenges available for the alternate jurors. He

mo ved to quash the venire and repeatedly moved for additional peremptory challenges and

individual, sequestered voir dire. We find this defense to be in stark contrast to the defense

in Triplett

.

¶149. Each of the jurors Le claims should have been struck stated in voir dire that they could

be fair and impartial. Juror number 23, June Seymour, was questioned about the fact that she

had heard about the murders on the news, and the fact that she lived near the scene of the crime.

Seymour testified that she could be fair and impartial and that this would not have a n y bearing

or effect on her decision in t he case. Seymour was also questioned about the fact that she had62

been the victim of

several robberies that involved violence. Seymour again testified that this

would not have an effect on her decision-making ability as a juror because such events were

“a fact of life.”

Juror 39, George Short, testified that his brother-in-law was an assistant police

chief. When questioned, Short stated that this would have no bearing on his decision in this

case if called as a juror. Juror Number 11, Tanya Cossey, testified that several days after she

filled out her p aperwork related to jury duty in the instant case, she saw a call from a residence

in D’Iberville under the name “T. Le.” Cossey stated that she did not speak to the caller, but

simply saw th

e name on her caller I.D., and contacted the D.A.’s office. Cossey further stated

that no one in the D.A.’s office had discussed the case wi th her in any way. Cossey testified

that she thought that this w as a coincidence, and that it would not have any affect on her

decision-making ability as a juror. Cossey also stated that she had heard about the murders a

day or two after they occurred, but nothing she had heard would influence her decision in the

case if called as juror.

¶150. In Wilcher v. State

, 863 So. 2d 719 (Miss. 2003), this C ourt was faced with the same

is sue. Wilcher raised ineffective assistance of counsel because his attorney did not use all of

his peremptory challenges

despite three of the selected jurors being related to someon e who was either in

law enforcement or an Assistant U.S. Attorney and an alternate juror selected

wa s a former federal prosecutor who had previously prosecuted a capital murder

case in California.

Id. at 755. This Court held:

The Fifth Circuit Court of Appeals considers an attorney ’s actions during voir

dire to be a matter

of trial strategy, which “cannot be the basis for a claim of63

ineffective assistance

of counsel unless counsel’s tactics are shown to be ‘so

ill chosen that it permeates that en tire trial with obvious unfairness.’” T eague

v. Scott , 60 F.3d 1167, 1172 (5th Cir. 1995) (quoting G arland v. Magg io , 717

F.2d 199, 206 (5th Cir. 1983)). Federal courts have held that an attorney’s

failure to exercise peremptory challenges does not give rise to a claim of

ineffective assistance of counsel absent a showing that the defend ant was

prejudiced by the counsel’s failure to exercise the challenges. United States

v. Taylor

, 832 F.2d 1187 (10th Cir. 1987). S ee also Mattheson v. King

, 751

F.2d 1432, 1438 (5th Cir. 1985).

Id. (citing Burns v. State , 813 So. 2d 668, 675-76 (Miss. 2001).

¶151. This Court concluded: “Wilcher has not ‘overcome the p resumption that, under the

circumstances, the challenged action ‘might be considered sound trial strategy.’’” I d. at 755

(quoting Stringer

, 454 So. 2d at 277 (quoting Strickland

, 466 U.S. at 689, 1 04 S.Ct. 2052)).

¶152. As in Wilcher

, eac h juror raised by Le was questioned during voir dire, and each

concluded that they could be fair and impartial if selected to sit o n the jury. Le fails to

de monstrate any prejudice as a result of his counsel’s failure to strike one of the enumerated

jurors. Instead, he generally alleges that these deficiencies were prejudicial, and that there is

a reasonable probability that the conduct affected the outcome of the trial. We find no merit

to Le’s argument.

14. Did the court err in admitting gruesome photographs into evidence?

¶153. The trial court allo wed the State to place into evidence numerous photographs of the

victims. However, the only objection offered to the photographs was repetition.64

¶154. The prosecution stated that the photos o f the victims were being offered to show the

position of the bodies in reference to the room and show how the h ands and feet were bound.

Further, according to the State, the photographs corroborated Graham’s drawing.

¶155. Le now argues that the photographs were not relevant because nei ther the identity of the

victims nor the manner of de ath was contested. Le contends there was no need for the

photographs to explain to the jury how t he victims were tied and injured, since all of those

facts were established through witnesses without the necessity of the photographs.

¶156. Miss. R. Evid. 403 provides that photographs should be excluded where their

probative

value is outweighed by their prejudicial impact. Furthermore, “photographs which are

gruesome or inflammatory and lack an evidentiary purpose are always in admissible as

evidence.” M

cFee v. State

, 511 So. 2d 130, 134 (M iss. 1987). Le cites this rule, and points

out that “[t]he trial court must consider: (1) Whether the proof is absolute or in doubt as to

identity of the guilty pa rty, as well as, (2) whether the photographs are necessary evidence or

simply a ploy on the part of the prosecutor to arouse the passion and prejudice of the jury.”

McNeal v. State

, 5 51 So. 2d 151 (Miss. 1989). Le further reminds us that this Court has held:

photographs of the vic tim should not ordinarily be admitted into evidence where

the killing is not contradicted or denied, and the corpus deliciti and the identity

of the deceased have been established.

Sudduth v. State

, 562 So. 2d 67, 70 (Mis s

. 1990). Finally, Le says the probative value of the

p hotographs was drastically reduced because he was willing to stipulate to the cau se of death,

but we do not find in the record where he offered to do so.65

¶157. In McNeal

, the photographs were of a badly d eteriorated body and included a“fullcolor, close-up view of the [victim’s] decomposed, maggot-infested s kull.” McNeal , 551 So.

2d at 159. Holding that the trial court judge abused his discretion in admitting the photographs,

this Court comme nted that the photographs were among “some of the most gruesome

photographs ever presented to this Court.” Id.

¶158. Regarding the admissibility of photographs, this Court has held:

In Westbrook v. State , 658 So.2d 847, 849 (Miss.1995), this Court found that

photographs of a victim have evidentiary value when the y aid in describing the

circumstances of t

he killing, W

illiams v. State

, 354 So.2d 266 (Miss.1978);

desc ribe the location of the body and cause of death, A shley v. State

, 423 So.2d

1311 (Miss.1982); or supplement or clarify witness testimony, H ughes v.

State , 401 So.2d 1100 (Miss.1981).

The admissibility of photographs rests within the sound discretion of the trial

court. J ackson v. State

, 672 So.2d 468, 485 (Miss.1996); Griffin v. State

, 557

So. 2d 542, 549 (Miss.1990); Mackbee v. State

, 575 So.2d 1 6, 31

(Miss.1990); Boyd v. Stat e , 523 So.2d 1037, 1039 (Miss.1988). Moreover, the

decision of the trial judge will be upheld unl ess there has been an abuse of

discretion. Westbrook

, 658 So.2d at 849.

Gray v. State , 728 So.2d 36, 57 (Miss.1998).

This standard is very difficult to meet

. In fact, the “ ' discretion of the trial

judge runs toward almost unlimited admissibility regardless of the

gru esomeness, repetitiveness, and the extenuation of probative value.' “ B rown

, 690 So.2d at 289; Holly

, 671 So.2d at 41. “At this point in the development of

our case law, no meaningful l imits exist in the so-called balance of

probative/prejudicial effect of p hotographs test.” C hase

, 645 So.2d at 849

(quoting Williams v. State , 544 So.2d 782, 785 (Miss.1987) ).

Woodward v. State , 726 So. 2d 524, 535 (Miss. 1997).

Stevenson v. State , 733 So. 2d 177, 180 (Miss. 1998).66

¶159. The photographs were used to corroborate the t estimony of Graham and Dr. McGarry,

who conducted the autopsy. Graham used the photographs to demonstrate what he found at the

crime scene and to explain his diagram of the crime scene, and McGarry used the photographs

to explain and describe the victims’ injuries. As such, Le was not unfairly prejudiced by the

admission of the photographs and, therefore, the trial court did not abuse its discretion in

admitting them into evidence. Therefore, this issue is without merit.

15. Was the verdict against the overwhelming weight of the evidence?

¶160. Le contends that the trial court erred when it denied the motion for a directed verdict

after the close of the State’s case be cause the verdict is contrary to established law and against

the overwhelming weight of the evidence.

¶161. Le contends t

hat there is no physical evidence which refutes his contention that Tran

committed the murders wholly on his own. Le further states that the only testimony

implicating him in the murders came from Tran and his own coerced confession. Le cites

Wheeler v. State , 560 So. 2d 171 (Miss. 1991), in support of his contention that an alleged

accomplice’s statement should always be viewed with great care and caution.

¶162. L e further contends that the State did not produce sufficient evidence a t trial to

establish beyond a reasonable d oubt the he possessed the requisite intent to commit murder.

In Smith v. State , 802 So. 2d 82 (Miss. 2001) this Court held:

We proceed by considering all of the evidence--not j ust that supporting the case

for the prosecution--in the light most consistent wi th the verdict. We give the

prosecution the benefit of all favorable inferences that may reasonably be drawn

from the evidence. If the facts and inferences so consid ered point in favor of the67

accused with sufficient f

o rce that reasonable men could not have found beyond

a reasonable doubt that he was guilty, reversal and discharge are required.

Id. at 85.

¶163. The denial of a motion for directed verdict and JNOV is a ruling on the sufficiency of

the evidence. The standard of review is:

[W]e must, with

respect to each element of the offense, consider all of the

evidence–not just the evidence which supports the case for the prosecutio n –in

the light most favorable to the verdict. The credible evidence which is

consistent with the guilt must be accepted as true. The prosecution must be

given the benefit of all favorable inference s that may reasonably be drawn from

the evidence. Matters regarding the weight and credibility to be accorded the

evidence are to be resolved by the jury. We may reverse only where, with

respect to one or more of the el ements of the offense charged, the evidence so

considered is such that reasonable and fair-minded jurors c ould only find the

accused not guilty.

Wetz v. State , 503 So. 2d 803, 807 (Miss. 1987)(citations omitted).

¶164. The standard of review regarding the weight of the evidence is:

A motion for a new trial is addressed to the sound d iscretion of the trial judge

who may grant a new trial if he deems such is required in the interest of justice

or is the verdict is con

t rary to law or the weight of the evidence. The trial judge

should not order a new trial unless he is convinced t hat the verdict is so contrary

to the overwhelming

weight of the evidence that to allow it to stand would be to

sanction an unconscionable injustice.

In reviewing thi s claim, this Court must accept as true the evidence

favorable to the State. This Court will reverse only when it is convinced that the

trial judge has abus ed his discretion. Further, where there is conflicting

testimony, the jury is the judge of the credibility of the witnesses.

Wetz , 503 So. 2d at 812 (citations omitted).

¶165. Le cites Miss. Code Ann § 97-3-19 (2)(e) (Rev. 2000) which defines capital murder

as : “The killing of a human being without the authority of law by any means or in any manner68

shall be capital murder

. . . [w]hen done with or without any design to effect death, by any

person engaged in the commission of the crime of rape, burglary, kidnapping, arson, robbery,

...” Le says he did not have the intent to kill. However, as discussed s upra

, Le participated in

the murders while committing a robbery. Intent to commit murder is not an element of capital

murder. Furthermore, the jury specifically found beyond a reasonable doubt that Le: (1)

attempted to kill; (2) intended the kill ing; and (3) contemplated that lethal force would be

employed with regard to Thanh Truc Huynh Nguyen and Minh Hieu Thi Huynh. In addition, the

jury fou nd beyond a reasonable doubt that Le: (1) intended the killing and (2) contemplated that

lethal force would be employed with regard to Thuy Hang Hugnh Nguyen. Thus, when

acce pting the credible evidence of Le’s guilt as true, and giving the State the benefit of all

favorable inferences, we find there is sufficient evidence to support Le’s conviction and the

verdict was not ag ainst the overwhelming weight of the evidence. Therefore, this issue is

without merit.

CONCLUSION

¶166. For the reasons stated herein, we affirm Le’s conviction and sentence of death.

¶167. CONVICTION OF CAPITAL MURDER (THREE COUNT S) AND SENTENCE OF

DEATH BY LETHAL INJECTION, AFFIRMED.

WALLER AND COBB, P.JJ., EASLEY, CARLSON AND RANDOLPH, JJ.,

CONCUR. SMITH, C.J., DIAZ AND GRAVES, JJ., NOT PARTICIPATING.69 APPENDIX

DEATH CASES AFFIRMED BY THIS COURT

Brown v. State, --- So. 2d --- (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).70

Howard v. State, 853 So.2d 781 (Miss. 2003).

Walker v. State, 815 So.2d 1209 (Miss. 2002). *following remand.

Bishop v. State

, 812 So.2d 934 (Miss. 2002).

Stevens 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).

Simmons 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). * following remand.

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). *following remand.

Eskridge v. State, 765 So.2d 508 (Miss. 2000).

McGilberry v. State, 741 So. 2d 894 (Miss. 1999)

.

DEATH CASES AFFIRMED BY THIS COURT

(continued)

Puckett v. State, 737 So. 2d 322 (Miss. 1999). *remanded for Batson hearing.

Manning v. State, 735 So. 2d 323 (Miss. 1999). *remanded for Batson hearing.

Hughes v. State, 735 So. 2d 238 (Miss. 1999).

Turner v. State, 732 So. 2d 937 (Miss. 1999).

Smith v. State, 729 So. 2d 1191 (Miss. 1998).

Burns v. State, 729 So. 2d 203 (Miss. 1998).

Jordan v. State, 728 So. 2d 1088 (Miss. 1998).71

Gray v. State, 728 So. 2d 36 (Miss. 1998).

Manning v. State, 726 So. 2d 1152 (Miss. 1998).

Woodward v. State, 726 So. 2d 524 (Miss. 1997).

Bell v. State, 725 So. 2d 836 (Miss. 1998).

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).

Simon v. State , 688 So. 2d 791 (Miss.1997).

Jackson v. State , 684 So. 2d 1213 (Miss. 1996).

Williams v. State, 684 So. 2d 1179 (Miss. 1996).

Davis v. State, 684 So. 2d 643 (Miss. 1996).

DEATH CASES AFFIRMED BY THIS COURT

(continued)

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).i

Russell 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, and remanding, Shell v. State

, 595 So. 2d 1323 (Miss. 1992) remanding for

new sentencing hearing.

Davis v. State , 551 So. 2d 165 (Miss. 1989).

Minnick v. State , 551 So. 2d 77 (Miss. 1989).

*Pinkne y v. State , 538 So. 2d 329 (Miss. 1989), P inkney v. Mississippi

, 494 U.S.

1075 (1990) vacating

and remanding P inkney v. State

, 602 So. 2d 1177 (Miss. 1992)

remanding for new sentencing hearing.

*Clemons v. State

, 535 So. 2d 1354 (Miss. 1988), Clemons v. Mississippi

, 494 U.S.

738 (1990) vacating a nd remanding, C lemons v. State

, 593 So. 2d 1004 (Miss. 1992)

remanding for new sentencing hearing.

DEATH CASES AFFIRMED BY THIS COURT

(continued)

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).ii

Lockett v. State , 517 So. 2d 1346 (Miss. 1987).

Lockett v. State , 517 So. 2d 1317 (Miss. 1987).

Faraga v. State , 514 So. 2d 295 (Miss. 1987).

* Jones v. State

, 517 So. 2d 1295 (Miss. 1987)

, Jones v. Mississip

pi , 487 U.S. 1230

(1988) vacating and remanding, J ones v. State , 602 So. 2d 1170 (Miss. 1992) remanding

for 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).

DEATH CASES AFFIRMED BY THIS COURT

(continued)

Irving v. State , 441 So. 2d 846 (Miss. 1983).

Tokman 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).iii

Pruett v. State , 431 So. 2d 1101 (Miss. 1983).

Gilliard v. State , 428 So. 2d 576 (Miss. 1983).

Evans 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).

Smith 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).

Voyles 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 affirmed in this Court but on remand from U. S. Supreme Court,

case was remanded by this Court for a new sentencing hearing.iv DEATH CASES REVERSED AS TO GUILT PHASE

AND SENTENCE PHASE

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).

Smith 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).

Lanier 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).v

Mease v. State , 539 So. 2d 1324 (Miss. 1989).

DEATH CASES REVERSED AS TO GUILT PHASE

AND SENTENCE PHASE

( continued

)

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).

Williamson v. State , 512 So. 2d 868 (Miss. 1987).

Foster v. State , 508 So. 2d 1111 (Miss. 1987).

Smith 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).

Fuselier 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).vi DEATH CASES REVERSED

AS TO PUNISHMENT AND REMANDED

FOR RESENTENCING TO LIFE IMPRISONMENT

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).

Coleman v. State , 378 So. 2d 640 (Miss. 1979).vii DEATH CASES REVERSED AS TO

PUNISHMENT AND REMANDED FOR A NEW TRIAL

ON SENTENCING PHASE ONLY

King v. State, 784 So.2d 884 (Miss. 2001).

Walker v. State, 740 So.2d 873 (Miss. 1999).

Watts v. State, 733 So.2d 214 (Miss. 1999).

West v. State, 725 So. 2d 872 (Miss. 1998).

Smith 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. Sta te , 554 So. 2d 887 (Miss. 1989), S hell v. Mississippi

, 498 U.S. 1 (1990)

reversing, in part, and remanding, Shell v. State 595 So. 2d 1323 ( Miss. 1992) remanding

for new sentencing hearing.

* P inkne

y v. State , 538 So. 2d 329 (Miss. 1989), Pinkney v. Mississippi, 494 U.S. 1075

(1990) vacating and remanding, Pinkney v. State

, 602 So. 2d 1 177 (Miss. 1992)

remanding for new sentencing hearing.

*Clemons v. State , 535 So. 2d 1354 (Miss. 1988), C lemons v. Mississippi

, 494 U.S.

738 (1990) vacating and remand ing, Clemons v. State , 593 So. 2d 1004 (Miss. 1992)

remanding for new sentencing hearing.

*Jones v. State , 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) remanding

for new sentencing hearing.

Russell v. State , 607 So. 2d 1107 (Miss. 1992).

Holland 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).viii DEATH CASES REVERSED AS TO

PUNISHMENT AND REMANDED FOR A NEW TRIAL

ON SENTENCING PHASE ONLY

(continued)

Berry v. State , 575 So. 2d 1 (Miss. 1990).

Turner v. State , 573 So. 2d 657 (Miss. 1990).

State v. Tokman , 564 So. 2d 1339 (Miss. 1990).

Johnson v. State , 547 So. 2d 59 (Miss. 1989).

Williams v. State

, 544 So. 2 d 782 (Miss. 1989); s entence 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. 2d 756 (Miss. 1984); resentencing affirmed, W iley v. State

, 484

So. 2d 339 (Miss. 1986), cert. denied Wiley v. Mississippi

, 479 U.S. 1036 (1988);

resentencing ordered, Wiley v. State

, 635 So. 2d 802 (Miss. 1993) following writ of

habeas corpus issued pur suant to W iley v. Puckett

, 969 So. 2d 86, 105-106 (5 th Cir.

1992); resentencing affirmed, Wiley v. Stat e , 95-DP-00149, February 13, 1997

(rehearing pending).

Williams v. State

, 445 So. 2d 798 (Miss. 1 984). * Case was originally affirmed in this

Court but on remand from U. S. Supreme Court, case was remanded by this Court for a

new sentencing hearing.