IN THE SUPREME COURT OF MISSISSIPPI

NO. 94-DP-01200-SCT

TRACY LEE WEST

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 08/11/94

TRIAL JUDGE: HON. JAMES E. THOMAS

COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: JAMES L. DAVIS, III

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: LESLIE STAEHLE LEE

DISTRICT ATTORNEY: CONO CARANNA

NATURE OF THE CASE: CRIMINAL - DEATH PENALTY (DIRECT

APPEAL)

DISPOSITION: CONVICTION AFFIRMED; SENTENCE OF

DEATH VACATED; REVERSED - 6/25/98

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 10/1/98

EN BANC.

BANKS, JUSTICE, FOR THE COURT:

¶1. Tracy Lee West was convicted of capital murder and sentenced to death in August, 1994.

Although we find no merit in any of the issues raised with regard to his conviction, we reverse his

death sentence because his jury was not instructed that it could sentence him to life without parole.

I.

¶2. On December 15 or 16, 1992, Tracy West left Pulaski, Tennessee on a road trip along with two

of his friends, Paul Rathe and Scott Cothren. West did not know where they were going, and did not

bring along any extra clothes because he did not realize that they would be gone for awhile. They

were riding in a car that Rathe had stolen from a truck driver who lived in Pulaski. They traveled to

Alabama, where they robbed a convenience store and Cothren thereafter murdered the store clerk.

On December 16, they then drove to Gulfport, Mississippi, where Cothren threatened to shoot Rathe
and West if they did not rob another convenience store and kill the clerk. Rathe and West entered and

robbed the cash drawer of the store. West then shot the clerk, Azra Garriga Kiker, and she died

immediately.

¶3. Cothren, Rathe and West then proceeded to New Iberia, Louisiana, where they stopped to stay at

the home of Mrs. Babineaux, who was the aunt of a friend of theirs. On December 20, Rathe and

West were arrested in connection with a report that the car in which they were riding was stolen.

Pursuant to these arrests, the law enforcement officers searched the Babineaux home and recovered a

pistol that was later determined to be the weapon that killed Ms. Kiker. Cothren was arrested soon

thereafter.

¶4. Cothren, Rathe and West were indicted for Ms. Kiker's murder on March 23, 1993. The

prosecution elected to try West first, and his trial began in Gulfport on August 8, 1994. At trial, the

evidence showed that West, at the urging of Cothren, had entered a convenience store, robbed the

cash drawer, ordered Ms. Kiker to lie down on the floor, and then shot her in the back of the head

after she asked him not to kill her. The gun misfired the first time, but West shot her twice. The next

day, the jury found West guilty of capital murder. After the sentencing phase, the jury returned a

sentence of death, finding the following three aggravating circumstances: (1) the offense was

committed during the commission of an armed robbery; (2) the offense was committed for the

purpose of avoiding a lawful arrest; and (3) the offense was especially heinous, atrocious or cruel.

¶5. West filed a Motion for Judgment Notwithstanding the Verdict, or in the Alternative, for a New

Trial, on August 23. This motion along with its supplement raised a total of 44 assignments of error.

The Motion was denied on November 21, 1994, and West's execution was set for December 16,

1994. West then appealed to this Court. We will address in this opinion only those matters that affect

our disposition or are likely to recur on retrial.

¶6. We first consider the propriety of West's death sentence, and next, the propriety of his conviction.

II.

A. SENTENCING PHASE ISSUES

i.

¶7. West first argues that the trial court committed reversible error in refusing his repeated requests

to apply the amendments to Miss. Code Ann. §§ 97-3-21 and 99-19-101, and to instruct the

sentencing jury that it could sentence him to life imprisonment without parole. Prior to the

amendments, defendants who were convicted of capital murder could only be sentenced to either

death or life with the possibility of parole. Section 97-3-21 was amended just prior to West's trial,

and provided that "Every person who shall be convicted of capital murder shall be sentenced (a) to

death; (b) to imprisonment for life in the State Penitentiary without parole; or (c) to imprisonment for

life in the State Penitentiary with eligibility for parole as provided in Section 47-7-3(1)(f)." The

amending act also provides that "[t]he provisions of this act shall apply to any case in which pre-trial,

trial or resentencing proceedings take place after July 1, 1994." 1994 Miss. Laws, Ch. 566 § 5.

¶8. As noted above, West's trial commenced on August 8, 1994. Thus, he repeatedly requested that
the court apply these amendments to his case, and accordingly instruct the jury that they could

consider both death and life without parole: in a pretrial motion, in several suggested jury instructions

which were refused by the court, and on the record in several discussions with the judge directly. At

one point, the court asked West directly whether he wanted to be tried and sentenced under the new

statute, to which he responded affirmatively.

¶9. The trial court denied West's requests in a bench ruling in which he stated that he would not

instruct the jury to consider all three sentencing options because West had been indicted, arraigned,

and had his trial set before these amendments were enacted. He believed that he was acting within his

discretion in denying West the benefit of the amendments. Thus, West was sentenced under the prior

scheme, the options being either death or life with the possibility of parole.

¶10. West repeated his request that the jury be instructed about the possibility of life without parole

during its deliberations when it sent a note to the court which asked "Does a life sentence allowed

(sic) for parole when rendered by the jury or the state?" In response, the judge wrote: "You have

received all the instructions I am allowed to give." Finally, West raised the error in his Motion

Notwithstanding the Verdict.

¶11. In this appeal, West argues that this ruling was reversible error for several reasons. First, he cites

the unambiguous language of the Act which amended §§ 97-3-21 and 99-19-101, which states that

these amendments were to apply to any case in which pre-trial, trial, or resentencing proceedings

would occur after July 1, 1994. He further argues that statutory amendments are to be applied

retroactively where their language indicates that the legislature intended them to apply retroactively.

In support of this, West cites two civil cases, Mladinich v. Kohn, 186 So. 2d 481, 483 (Miss. 1966)

and City of Clarksdale v. Mississippi Power and Light Company, 556 So. 2d 1056, 1058 (Miss.

1990).

¶12. West next argues that since West stated that he viewed the amendments as favorable to him, he

was entitled to have them applied to his case. He cites State ex rel. Pittman v. Ladner, 512 So. 2d

1271, 1276 (Miss. 1987), and Miss. Code Ann. § 99-19-33. He also argues that the Eighth

Amendment required the trial court to give West the benefit of the amendments since his was a

capital case, and that any ambiguity about whether the statutes applied had to be resolved in favor of

West, since he was a criminal defendant.

¶13. Finally, West argues that since other capital defendants who were similarly situated were

allowed to receive the benefit of the amendments, the trial court's failure to do so in this case violated

the Eighth Amendment's prohibition of arbitrary and capricious sentencing in capital cases.

¶14. This Court has repeatedly held that unless there is sufficient language to the contrary, the words

of a statute are to be interpreted according to their usual and most common sense meaning, and that

statutes will be given a practical application consistent with their wording, unless the application is

inconsistent with the obvious intent of the legislature. Marx v. Broom, 632 So. 2d 1315, 1318 (Miss.

1994); State v. Lee, 196 Miss. 311, 17 So. 2d 277 (1944). Where the language is plain, this Court

will interpret a statute as written. Mississippi State Dep't. of Human Servs. v. Forrest County

Youth Court, 663 So. 2d 580, 581 (Miss. 1995).

¶15. In this case, the plain meaning of the language in § 97-3-21 indicates that the legislature
intended any defendant whose pretrial, trial, or sentencing proceedings commenced after July 1, 1994

to have his sentencing juries instructed on the sentencing options of life, life without parole, or death.

Contrary to the State's suggestion, there is no rational reason to conclude that the legislature,

notwithstanding the clarity of this language, intended it to apply only to those defendants who had

been charged after July 1, 1994, as were the amendments to § 47-7-3, which were enacted at the

same time. Indeed, it is precisely because the statutes were amended together that it makes more

sense to conclude that the distinction included was intended. Section 97-3-21 expressly provides

capital defendants whose pretrial, trial or resentencing proceedings occur after July 1, 1994 with the

possibility of a sentence of life with eligibility for parole as provided in § 47-7-3(1)(f); Section 47-7-

3(1)(f) expressly eliminates that possibility of parole for any capital defendant who is "charged, tried,

convicted, and sentenced to life imprisonment" after July 1, 1994 (emphasis added). When read in

pari materia, the two statutes provide juries with the option of sentencing capital defendants to life

without parole as long as any proceeding, from pretrial through resentencing, that follows the actual

charge occurs after July 1, 1994. Simultaneously, the two statutes preclude the parole board from

granting parole to any capital defendant who was charged after July 1, 1994.

¶16. We hold that these two statutes are not in conflict, and present no ambiguity about whether the

legislature intended the amendment to § 97-3-21 to apply to capital defendants whose charge

predated July 1, 1994. Absent any ambiguity, this Court will of course interpret the statutes to mean

what they plainly say. Contrary to the State's first argument, neither § 99-19-1 nor Byrd v. State, 143

So. 852 (1932) suggest otherwise. Section 99-19-1 provides that all laws prescribing punishment will

continue to govern the penalties of all crimes committed under them, notwithstanding amendatory or

repealing statutes, unless otherwise especially provided in such statutes. The amendment to § 97-3-

21 especially provides that it is to apply to crimes that were committed before its effective date.

Thus, the proscriptions of § 99-19-1 do not preclude the application of the amendments to West.

Likewise, in Byrd we held that an amended statute that prescribed a lighter penalty than what had

been the law at the time of the crime could not be retroactively applied where the amended statute

did not specify that it was to apply retroactively. Byrd v. State, 143 So. 852.

¶17. Regardless of the unambiguous intentions of the statute, the amendment could not have been

applied to West if doing so would have violated the constitutional prohibition on ex post facto laws,

in that the amended statute prescribes an additional punishment, life without parole, that was not

possible at the time that West committed his crime. We have held that amendments which are

ameliorative or procedural do not violate the prohibition against ex post facto laws. Johnston v.

State, 618 So. 2d 90, 95 (Miss. 1993). Thus, the initial inquiry in this case is whether the addition of

the possibility of a sentence of life without parole ameliorates the previous sentencing scheme.(1)

¶18. Although this Court has never explicitly held that the option of life without parole is

ameliorating, we have held that a jury's awareness of the option may be a mitigating factor in capital

cases. In Taylor v. State, 672 So. 2d 1246 (Miss. 1996), Taylor was convicted of capital murder,

which he had committed while on parole from a life sentence for another murder. Because the trial

court failed to conduct an habitual offender hearing prior to the capital sentencing proceeding, the

jury never knew that Taylor was eligible for a sentence of life without parole. We held that because

fundamental fairness requires that capital juries must have as much information as possible in front of

them when making their sentencing determination, the trial court committed reversible error in failing

to reveal to the jury that Taylor would be ineligible for parole if they returned a life sentence. We
noted the ameliorative effect of the option of life without parole in capital cases: "Had the jury been

aware of Taylor's habitual offender status [and his subsequent ineligibility for parole], they might

have opted for a life sentence." Taylor, 672 So. 2d at 1273 (citing Turner v. State, 573 So. 2d 657

(Miss. 1990)).

¶19. It hardly needs restating that death penalty jurisprudence revolves around a theme that any

quality of a life sentence is a favorable option to death, the final and ultimate sentence. See, e.g.,

Lockett v. Ohio, 438 U.S. 586, 604 (1978) (capital juries must be allowed to hear any evidence that

would tend to support a sentence less than death); Zant v. Stephens, 462 U.S. 862, 884-85 (1983)

(announcing the heightened need for reliability and due process in capital cases because death is a

punishment different from and more severe than all others). Thus, life without parole is typically

considered to be a more desirable punishment than death. Since death was an available punishment

under both the pre-amended version of § 97-3-21 and the amended version, the option of life without

parole arguably does not increase the punishment authorized under § 97-3-21 in the manner that is

prohibited by the principles of the ex post facto clauses. It is axiomatic that for a law to be ex post

facto it must increase the penalty by which a crime is punished or makes conduct criminal which

theretofore was not criminal. Dobbert v. Florida, 432 U.S. 282, 294 (1977); California Dep't. of

Corrections v. Morales, 514 U.S. 499, 506 n. 3 (1995).

¶20. We hold that the sentencing option of life without parole is ameliorating in our capital

sentencing scheme. Moreover, it is fairly clear that in this case, the option would have been beneficial

to West. After half an hour of deliberation, the jury sent out a note asking whether West would be

eligible for parole if it gave him a life sentence. After the judge replied that he would not give the jury

any further elaboration on the meaning of a life sentence, it deliberated for almost two more hours

before returning a sentence of death.

¶21. Although the State discourages this Court from inferring any conclusion that the jury would

have given West life without parole had it been able to do so, the jury's question indicates at the least

its contemplation of West's eligibility for parole. It requires no intellectual strain to conclude that the

jury may well have sentenced West to life without parole, had it been instructed that such a sentence

was possible.

¶22. Having held that the application of the amended capital sentencing statute ameliorates the stark

options that were presented to pre-amendment juries, we find that its retroactive application (as

expressly provided in the statute) does not give rise to an illegal ex post facto law. West was entitled

to its application in his case, and the trial court's failure to do so constitutes reversible error.

¶23. Additionally, West is entitled to receive the benefit of the amended § 97-3-21 since he plainly

waived any arguable ex post facto claim. It is clear, as demonstrated earlier in this opinion that the

sentence in question is permitted by the statute as passed by the legislature. West's constitutional

right to be free from an ex post facto sentence is subject to a knowing waiver. See, e.g., Stevenson v.

State, 674 So. 2d 501, 506 (Miss. 1996).

¶24. West's waiver arose in the following colloquy with the trial court:

THE COURT: . . . In the meantime, your position is still that the act [which would become § 97-3-

21] is applicable and you want the benefit of the act, and knowing that you have to have a
continuance to July 1, or after, right?(2)

MR. DAVIS: Correct, your Honor.

MR. SMITH: Yes, Your Honor.

THE COURT: Your counsels have talked to you about this, I take it, Mr. West?

THE DEFENDANT: Yes, sir.

THE COURT: You understand exactly what we are talking about here?

THE DEFENDANT: Yes, sir.

THE COURT: State's position would be that if you are tried after July 1 and I held that you did come

under the nonparolable or 20-year statute, that the jury, if they failed to agree on punishment or if

they gave you a life sentence, they could do it without parole. Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: And if you tried to renege on that later, of course the State's position would be that

you couldn't renege, or if you did, they could come back and ask for a death sentence with the jury

not being told that the sentence would be anything other than life if it is life. Do you understand that?

THE DEFENDANT: (Nods affirmatively.)

THE COURT: Sir?

THE DEFENDANT: Yes.

¶25. A similar waiver enabled Johnny Rufus Lanier, another of this State's capital defendants, to

obtain a sentence of life without parole, notwithstanding the fact that his crime and conviction

occurred prior to the provision of such a sentencing option. Lanier had first entered a plea agreement

in which he agreed to be sentenced to life without parole in exchange for the State's foregoing any

right to seek a death penalty. At the time of this deal, the law did not allow any sentence of life

without parole for capital defendants. This Court reversed that sentence on the grounds that Lanier

could not form a contract to obtain an otherwise illegal sentence. Lanier v. State, 635 So. 2d 813

(Miss. 1994).

¶26. Following that reversal, § 97-3-21 was amended to provide the option of life without parole to

capital defendants. Lanier's sentencing judge conducted a colloquy in which he asked Lanier

repeatedly whether he wanted to waive any ex post facto rights that he might have in not being

sentenced to life without parole. After finding that Lanier had waived his rights to both a sentencing

trial and the avoidance of ex post facto applications, the court ordered Lanier to serve life without

parole.

¶27. Several other capital defendants whose crimes were committed before the effective date of the

amendment have received the amendment's benefit after waiving any ex post facto claims. See

Woodward v. State, No. 95-DP-00144-SCT (this Court issues mandamus ordering trial judge to
accept waiver and apply amended statute, 9/11/95); State v. Dufour, 483 So. 2d 307 (1986) (Hinds

County Circuit Court entered order finding defendant had waived ex post facto claim, 2/14/95); State

v. Ware, 2076 (Madison County Circuit Court; jury instruction allowing return of life without parole,

filed 12/6/94).

¶28. Thus, it appears that West's waiver of any ex post facto claims is a procedure that has been

regularly applied in other cases. Indeed, the colloquy that was conducted by the trial judge reflects a

sufficient waiver: West told the court that he understood that he could not renege on his agreement

to be exposed to the possibility of life without parole notwithstanding the fact that this sentence was

not available at the time of his crime. He also told the Court that his attorneys had explained the

meaning of this to him. Thus, even if he had a valid claim in light of his waiver of any ex post facto

error, West was entitled to have the sentencing option of life without parole available to him.(3)

¶29. The State has also argued that the trial court had the discretion to decline to apply the

amendment, under Allen v. State, 440 So. 2d 544 (Miss. 1983) and § 99-19-33. Neither of these

authorities, however, provide the trial judge with that sort of discretion. First, § 99-19-33, when read

in its entirety, does not grant a judge discretion in the manner urged by the State. The statute reads as

follows:

If any statute shall provide a punishment of the same character, but of milder type, for an

offense which was a crime under pre-existing law, then such milder punishment may be imposed

by the court but no conviction, otherwise valid, shall be set aside and new trial granted merely

because of an error of the court in fixing punishment. Such error shall only entitle the party

injured to vacate or reverse the judgment as to the punishment, and the legal punishment shall

then be imposed by another sentence based on the original conviction or plea of guilty.

¶30. Although the language seems to suggest discretion in stating that the lighter sentence may be

imposed by the court, the subsequent sentence states that a judge's failure to impose the lighter

sentence is error. Moreover, such error entitles the party injured to a vacation or reversal of the

punishment portion of the judgment. Thus, it appears that the use of "may" in the first sentence in

fact intends to convey "shall," for there can be no discretion to decline to apply an amendatory

provision if declining to do so results in reversible error. This Court has held that while permissive

language of a statute is presumably interpreted in its ordinary sense, it will be interpreted as

mandatory where the context compels such a construction. Leflore Bank & Trust Co. v. Leflore

County, 202 Miss. 552, 558, 32 So. 2d 744, 746 (1947). Thus, a harmonized reading of § 99-19-33

compels this Court to construe "may" as "shall."(4)

¶31. Furthermore, the State's reliance on Allen v. State, 440 So. 2d 544 (Miss. 1983) is of no avail.

Allen is the only case which interprets § 99-19-33 to afford trial judges the discretion to apply the

pre-amended statute. That holding, that trial courts had discretion to enforce a pre-amended version

of a statute, was expressly overruled in State ex rel. Pittman v. Ladner, 512 So. 2d 1271, 1277

(Miss. 1987), in which this Court held:

. . . [I]n litigation between the state and an individual, where the operative statute has been

repealed or amended and the litigation arises out of a pre-repeal, pre-amendment transaction or

occurrence, the individual may claim and be given the benefit of the prior law in effect at the

operative time where he regards it as more favorable to him. But the converse is not necessarily
so. Unless the state holds a contract or otherwise has a vested right, a repealed or amended

statute will ordinarily not be enforced against an individual where he regards it as less favorable

to him.

West quite clearly regarded the amended version of § 97-3-21 to be more favorable to him, since he

moved on so many different occasions to have it applied to him. Thus, under Ladner, the trial court

had no discretion to decline to apply the amendment, and thus his failure to do so was error.(5)

¶32. Because we find that Miss. Code Ann. § 97-3-21 clearly and lawfully directed capital defendants

whose pre-trial, trial or resentencing proceedings take place after July 1, 1994 to have their

sentencing juries given the option of life without parole in addition to life with the possibility of

parole and death, we hold that the trial court's failure to give West's jury that option to be reversible

error. We accordingly vacate West's death sentence.

ii.

¶33. West also argues that his sentence must be reversed because the jury's finding that his offense

was especially heinous, atrocious, and cruel was against the overwhelming weight of the evidence

and was not sufficiently limited through the trial court's instruction. West unsuccessfully moved prior

to trial to preclude the State from arguing that this offense was especially heinous, atrocious, or

cruel. West further objected to the State's instructions on this aggravating factor, arguing that the

instructions were vague, overbroad, and unsupported by the evidence.

¶34. The relevant instruction read as follows:

The Court instructs the Jury that an especially heinous, atrocious or cruel capital offense is one

accompanied by such additional acts as to set the crime apart from the norm of capital murders

-- the conscienceless or pitiless crime which is unnecessarily tortuous [sic] to the victim.

¶35. West argues that this instruction fails to meaningfully narrow that class of murders that could

fall within its scope in accordance with the Eighth and Fourteenth Amendments to the federal

Constitution. This Court has held that the proper instruction is as follows:

What is intended to be included are those capital crimes where the actual commission of the

capital felony was accompanied by such additional acts as to set the crime apart from the norm

of capital felonies -- the conscienceless or pitiless crime which is unnecessarily torturous to the

victim.

Carr v. State, 655 So. 2d 824, 851 (Miss. 1995) (quoting Coleman v. State, 378 So. 2d 640, 648

(Miss. 1979)). Since the instruction given to West's jury instruction is identical to this model in all

relevant aspects, this argument is without merit.

¶36. West also objected on the grounds that the evidence did not warrant the instruction. West had

told the police that "As [the victim] laid down there I was trying to shoot the gun and stuff and I

never could get it to shoot, I cocked it and I finally got it to shoot and then I cocked it, shot the

second shot but I didn't cock the empty shell out there." He also stated that Ms. Kiker said, "Please

don't kill me, I got one kid," as she lay face down on the floor.
¶37. West presently argues that no rational juror could have concluded from the evidence that Ms.

Kiker's murder was conscienceless, pitiless, or unnecessarily torturous. In particular, he urges that the

fact that West did not intend the gun to misfire precludes holding him accountable for the torture that

Ms. Kiker underwent while she lay on the floor. He cites two cases in support of this. In Walton v.

Arizona, 497 U.S. 639, 654 (1990), the Supreme Court approved a sentencing scheme whereby the

heinous, atrocious, and cruel aggravator was limited to those situations where the suffering of the

victim was intended by or foreseeable to the killer. Likewise, the high Court in Lewis v. Jeffers, 497

U.S. 764 (1990), upheld a state court's finding that the evidence rationally supported the finding that

the murder was heinous, atrocious, or cruel where the evidence indicated that the defendant had both

relished the crime and inflicted gratuitous violence to the victim. Notably, neither of these cases hold

that a defendant must have specifically intended the lingering death in order to constitutionally

support a finding that the killing was especially heinous, atrocious, or cruel.

¶38. This Court has never held that a torturous or lingering death must have been intended by or

foreseeable to the killer in order to come within the meaning of especially heinous, atrocious, or

cruel. In Hansen v. State, 592 So. 2d 114, 152 (Miss. 1991), however, we held that barbarity

sufficient to satisfy this aggravating circumstance can be demonstrated where the defendant inflicted

physical or mental pain before death, or where a lingering or torturous death was suffered by the

victim. Id. (citing Pinkney v. State, 538 So. 2d 329, 357 (Miss. 1988)).

¶39. In this record, however, such barbarity is not in evidence. Regardless of whether West is

required to have intended the torture, there is no evidence in the record that Ms. Kiker heard the gun

misfire, or that there was any considerable length of time between the misfire and the shot that killed

her. The only evidence that she was suffering mental torture was the fact that she asked West to

spare her life while she lay on the floor. Nothing in our caselaw, however, suggests that this is

enough to elevate a murder into an especially heinous, atrocious, or cruel one. In Evans v. State, 422

So. 2d 737, 743 (Miss. 1982) this Court stated that a homicide in which the victim was forced to

kneel on the floor at gunpoint while his pockets were emptied and shot a short period later would not

constitutionally suffice for the aggravating factor of "especially heinous, atrocious or cruel."

Following the pre-Clemons formula, the Court nevertheless affirmed the sentence on the grounds

that the three other aggravating factors had been proved by overwhelming evidence. Likewise, in

Jordan v. State, 464 So. 2d 475, 478 (Miss. 1985), vacated on other grounds, 476 U.S. 1101 (1996)

, this Court found that where the victim had been abducted and shot in the back of the head while on

her knees, the aggravator was supported only by the fact that she had been running, trying to get

away from him, and thus was frightened.

¶40. No similar evidence was presented in this case to support an added finding that Ms. Kiker

suffered mental torture sufficient to distinguish this murder from the norm of capital felonies. Taylor

v. State, 672 So. 2d 1246, 1276 (Miss. 1996). Although all murder is surely cruel, we must be

especially diligent in our distinction of the most conscienceless and pitiless murders from the trauma

that tragically attends them all. The facts of this case do not, in the context of our caselaw on this

aggravating factor, appear to support the "heinous, atrocious, and cruel" instruction. The only clear

evidence of mental torture in this case is the fact that she begged West not to kill her. It troubles us

that the trial court found that this fact alone "set the crime apart from the norm of capital felonies --

the conscienceless or pitiless crime which is unnecessarily torturous to the victim." Carr v. State, 655

So. 2d 824, 851 (Miss. 1995). Although we will not rule on the issue, since it may not recur at retrial,
we do strongly question whether the "heinous, atrocious, and cruel" instruction was warranted on the

evidence that appeared in this record.

iii.

¶41. West also argues that the court erred in instructing the jury that the offense was committed for

the purpose of avoiding unlawful arrest. This assignment of error is without merit. There was

evidence in the record which, if taken in the light most favorable to the verdict, demonstrated that the

killing was committed to extinguish witnesses. In his confession to the police, West stated that he had

shot Ms. Kiker because Cothren did not want any witnesses left behind. Furthermore, West testified

during the guilt phase that "[Scott Cothren] said he was going to shoot us if -- if we didn't shoot the

woman in there because he didn't want no witnesses left in the store." Thus, there was sufficient

evidence in the record to support the submission of this aggravating factor.

¶42. West also argues that this instruction, as given, was impermissibly vague and overbroad. The

instruction reads as follows: " . . . [t]hat the capital offense was committed for the purpose of

avoiding or preventing a lawful arrest." This Court has rejected this argument about this version of

the instruction in Chase v. State, 645 So. 2d 829, 858 (Miss. 1994). Thus, this assignment of error is

without merit.

iv.

¶43. West contends that the trial court erroneously denied him the opportunity to present several

offers of evidence in mitigation. Specifically, West unsuccessfully tried to introduce the following:

testimony that his father was a drunkard and a bad husband to his mother; a photograph of West as a

child; and evidence that he cared for an elderly woman who was on an oxygen machine.

¶44. This Court has adopted quite broadly the United States Supreme Court's command in

McCleskey v. Kemp, 481 U.S. 279, 306 (1987), that capital defendants be allowed to introduce at

sentencing any evidence which would tend to support a sentence less than death. In Leatherwood v.

State, 435 So. 2d 645, 650 (Miss. 1983), this Court held that Mississippi would allow "evidence of

mitigating circumstances of an unlimited nature" to be admissible in death penalty sentencing

hearings, so as to convince the jury that the defendant should not be executed.

¶45. This wide admissibility standard notwithstanding, the trial court committed no error with regard

to these particular proffers. The trial court excluded the testimony that West's father was a drunkard

because of the form of the question. West's attorney asked his aunt during the sentencing hearing,

"What type of husband was R.B. West to his wife, Mrs. West?" The State promptly raised an

objection, which the trial court sustained with an admonishment to defense counsel to restate the

question. Although West's attorney proceeded to question the witness about what type of father Mr.

West had been and where he was living, he never directly asked whether West's father drank or was a

drunkard. After the witness had been excused following the State's cross-examination, and another

witness had been examined and excused, West's attorney proffered to the court that he was trying to

elicit the information that West's father had been a drunkard.

¶46. The trial court asked defense counsel why he hadn't simply asked the witness if West's father

was a drunk. Defense counsel replied that he hadn't asked because it would have been a leading
question. The trial court stated "You haven't asked a leading question all week in this case? I'm not

sure you've asked a direct question yet of any witness here. That's your fault not mine."

¶47. Thus, it appears that the trial court did not actually preclude West from eliciting this mitigation

testimony, so much as it precluded him from asking the question improperly. Indeed, it appears that

defense counsel forgot the point of the question or something. In any case, he never actually

requested the court to recall the witness in order for him to ask about West's father's drunkenness,

although it seems clear from the record that the court would not have been terribly interested in

doing that. Thus, it plainly appears that the trial court did not preclude the evidence, and was not in

error in sustaining the State's objection to defense counsel's question.

¶48. West also attempted to introduce a photograph of himself as a child. During a pretrial hearing at

which the trial court was trying to get a synopsis of the testimony and the witnesses, West stated that

he intended to introduce the photo during the sentencing phase, if the case proceeded to that point.

The trial court responded that baby pictures were not going to be admitted, although West could

make his record at trial. The court added that West would have to show something further to get the

picture in. The court returned to the subject of the photograph later in the hearing, stating, " -- if I let

you put in baby pictures on him, why don't I let them put in baby pictures that [the victim's] got of

her kid or show a photograph of her when she is in the first grade, the victim that is."

¶49. Defense counsel never raised the issue again, and the photograph has not been included in the

record. Thus, any error in the exclusion of these photos is procedurally barred, because defense

counsel did not raise the query for the court to pass upon at the appropriate time.

¶50. Finally, West contends that the trial court improperly excluded as mitigation the testimony of an

elderly lady who was on oxygen and that West cared for some time just before the murder. During

the pretrial hearing, the court stated "The fact that he takes care of some old woman who's on an

oxygen machine, though, to me is not admissible. I don't think. That is pure sympathy." This woman

was Nancy Curtis, who did testify during the sentencing that: "[West] came to my house often to see

about me, take care of me, take out my trash and go to the store for me, just anything that he could

do." Defense counsel never questioned Ms. Curtis about the oxygen machine in particular, and now

argues that he did not do so out of respect for the trial court's "ruling" during the pretrial hearing.

This argument is without merit; it is either procedurally barred to the extent that West never asked

the witness the question while she was on the stand, or, alternatively, it is moot to the extent that the

witness did testify that West had taken good care of her.

v.

¶51. West next contends that the trial court erroneously sustained the State's objections to the expert

qualifications of Dr. Zimmerman, a psychologist, in a manner that discredited him in front of the jury.

West suggests that he was prejudiced by the exchange since Dr. Zimmerman provided critical

testimony during the sentencing hearing that West is mentally retarded and suffers from organic brain

dysfunction, and thus his credibility was especially important.

¶52. At the close of the state's voir dire of the expert on his qualifications, the State objected to Dr.

Zimmerman's qualification as an expert in forensic and clinical psychology. The exchange that West

found objectionable is as follows:
MR. CARANNA [The prosecutor]: Judge, we object in that his training is not in clinical and

forensic psychology, that the associations are membership organizations, and that while he is a

trained psychologist, we'd object to the classification of him being a clinical or forensics expert.

We stipulate to him being an expert in psychology.

THE COURT: Well, I accept his qualifications in the field for which he is trained. The jury can

ultimately judge the credibility of all of your experts.

MR. CARANNA: Thank you.

¶53. This objection, as well as the preceding voir dire, was held in the presence of the jury. West

argues that the trial court abused its discretion in failing to qualify Dr. Zimmerman as an expert in

forensic and clinical psychology, and that the court's comments discredited Dr. Zimmerman in the

presence of the jury.

¶54. After reviewing the record of Dr. Zimmerman's testimony, it is clear that any error that the trial

court made was harmless, since West has never proffered any testimony that was restricted because

of the trial court's ruling or explained any prejudice that he suffered by the jury's presence during the

objection and ruling.

vi.

¶55. West next argues that the trial court erroneously allowed the State to ask his mitigation

witnesses whether they believed in the death penalty. Although West concedes that this question may

have been proper for those witnesses who testified during their direct examination that they did not

want West to receive the death penalty, he argues without elaboration that it was an improper

question for Richard Brewer and John Turner, the two witnesses who expressed no opinion during

their direct examination of whether they wanted West to receive the death penalty. Defense counsel

objected promptly on both occasions that the State posed the question. The trial court overruled both

objections without comment.

¶56. The State submits that the questions were proper attempts to inquire into the bias of the

mitigation witnesses, and thus the trial court correctly overruled the objections. It cites Tate v. State,

317 So. 2d 23, 24 (Miss. 1975) and Stringer v. State, 477 So. 2d 1335, 1337-38 (Miss. 1985) for

the proposition that a witness may be examined as to his feelings about a case, his interest, bias,

motives or hostility. It further notes that this Court has held that wide latitude is to be allowed on

cross-examination to show bias or motive for the purpose of affecting credibility. Pulliam v. State,

515 So. 2d 945, 947 (Miss. 1987) ("[I]f there are doubts as to the relevancy of an inquiry into

credibility, interest, bias, or motive, those doubts should be resolved in favor of admissibility.")

Pulliam, however, involved the latitude to be afforded an accused to cross-examine an informant.

¶57. Although this Court has not addressed this question, West has cited two cases in which such

questions were not allowed. In Lawhorn v. State, 581 So. 2d 1159, 1173 (Ala. Crim. App. 1990),

the Alabama Court of Criminal Appeals held that there was no error where the prosecutor had asked

one of the appellant's sentencing witnesses if he believed in the death penalty. The defense counsel's

objection was immediately sustained by the trial court, and the prosecutor did not pursue the subject.

There is no discussion in that opinion of the basis of the objection or the grounds for sustaining it.
¶58. West also cites State v. Patillo, 417 S.E.2d 139, 143 (Ga. 1992), in which the Georgia Supreme

Court considered whether the prosecution should be entitled to cross-examine mental-health experts

on their beliefs about the death penalty, since in Georgia any defendant found to be mentally impaired

was not eligible for the death penalty. The court held that, while it may be relevant whether a mental

health expert conscientiously opposed the death penalty, such relevance was outweighed by the risk

of prejudice. Under Georgia's statutory scheme, juries were to consider the mental capacity of capital

defendants during a separate proceeding, before any question of sentencing arose. Indeed, they were

not told that if they found the defendant mentally retarded, a death sentence would be vacated. Thus,

the court held that to allow prosecutors to raise the death penalty during this phase would divert the

jury from its duty to decide whether the defendant was mentally impaired solely on the evidence. The

court concluded that a jury in such a proceeding could adequately evaluate the credibility of

witnesses without the injection of the consequences of the jury's verdict.

¶59. In this case, the questions were asked to impeach the witnesses with their possible biases. Under

the rule of this Court's decisions in Stringer, Tate, and Pulliam, the trial court was not in error in

allowing those questions.

vii.

¶60. West next argues that the State improperly questioned West's expert mitigation witnesses about

whether they thought West knew the difference between right and wrong. West submits that these

were improper and irrelevant questions because he never raised an insanity defense at guilt or

suggested insanity at sentencing, but merely submitted his mental deficiencies in mitigation. He

argues that the error of admitting the testimony was not harmless because the prosecutors later

argued during the closing argument "He understood the difference in right and wrong. You heard it

from everybody that was up there. He has the accountability that every citizens has to have [sic]."

¶61. This assignment of error is without merit. The State is entitled to rebut West's evidence of his

mental deficiencies. See Ladner v. State, 584 So. 2d 743, 762 (Miss. 1991) (State is entitled to

rebuttal as long as it does not suggest that the jury should not consider the mitigating circumstances).

Moreover, the jury was instructed to consider explicitly that West was acting under the influence of

extreme mental or emotional disturbance, that he was mentally retarded, and that his capacity to

appreciate criminality and conform his behavior to the requirements of the law was substantially

impaired. Thus, the State's questions constituted acceptable rebuttal.

B. GUILT PHASE

i.

¶62. West argues that his conviction must be reversed because the trial court committed reversible

error in refusing to instruct his jury that it could convict him of simple murder or manslaughter. West

was charged with "wilfully, unlawfully, feloniously and without any design to effect death, kill and

murder Azra Garriga Kiker . . . while in the commission of the crime and felony of Armed Robbery."

West offered two defenses. First, he presented evidence that he was under objective duress in his

commission of the armed robbery.(6) Alternatively, he argued that because of his subjective fear,

coercion and duress, he was unable to form the requisite intent to commit armed robbery, which is a
specific intent crime.

¶63. West theorizes that the jury could have found that, while he had committed the robbery under

duress, he committed the killing with deliberate design and therefore would be guilty of simple

murder. He further theorizes that the jury could have found that he had committed the robbery under

duress and had no deliberate design when he committed the killing, and therefore could be convicted

of manslaughter. Accordingly, he submitted several jury instructions which would have invited the

jury to return these lesser verdicts. He also objected to the court's and the State's capital murder

instructions to the extent that they failed to include any provisions for verdicts of simple murder and

manslaughter.

¶64. The trial court did grant West an instruction on the meaning of objective duress insofar as it

could support a defense to the armed robbery element of the capital murder charge:

Evidence has been presented that the defendant acted under duress in committing the crime of

armed robbery.

"Duress" is the exercise of unlawful force upon a person whereby that person is compelled to

do some act that he otherwise would not have done. In order for duress to be a defense to a

criminal charge, the impelling danger must be present, imminent, and impending, and of such a

nature as to induce in a person well-grounded apprehension of death or serious bodily harm if

the act is not done.

If the State has failed to prove from the evidence in this case beyond a reasonable doubt that the

defendant acted voluntarily in committing the crime and not under duress, then you shall find

the defendant Not Guilty of Capital Murder.

¶65. Nevertheless, the court refused to instruct the jury on the lesser offenses of murder and

manslaughter, stating "I think you've either got capital murder, which is frankly admitted to even by

his -- set aside the confession. His statement to the jury in the light most favorable to him, it's a

confession of capital murder but under duress. I'm going to send it to the jury only on capital

murder."

¶66. A criminal defendant is entitled to have his jury instructed on all offenses of which an evidentiary

basis exists in the record, even where the evidence might be weak, insufficient, inconsistent, of

doubtful credibility, or arises only in the defendant's own testimony. Where a reasonable jury could

find under the evidence that the defendant was not guilty of the principal charge made in the

indictment, but guilty of a lesser included offense, the trial judge ordinarily should instruct the jury

regarding the elements of that lesser included offense. Welch v. State, 566 So. 2d 680, 684 (Miss.

1990); Davis v. State, 530 So. 2d 694, 701 (Miss. 1988). This Court has held that where the

evidence can justify a conviction of the principal charge should lesser include offense instructions be

refused. Ruffin v. State, 444 So. 2d 839, 840 (Miss. 1984).

¶67. Furthermore, the United States Supreme Court has held that a death sentence cannot be

constitutionally imposed when the jury was not permitted to consider a verdict of guilt of a lesser

included non-capital offense when the evidence would have supported such a verdict. Beck v.

Alabama, 447 U.S. 625 (1980). The concern is that a jury who may be convinced that the defendant
had committed some terrible crime but is not convinced that he was guilty of the capital charge

would nevertheless return a capital conviction if the only alternative was to set the defendant free.

See Schad v. Arizona, 501 U.S. 624 (1991).

¶68. In this case, West provided the following testimony on direct examination about the robbery, the

killing and his corresponding state of mind:

Q. Okay. You recall the last time you-all pulled up in front of that convenience store prior to

you going inside?

A. Yes, sir.

Q. Did something happen out there in the car?

A. Yes, sir.

Q. What was that, Tracy?

A. He wanted us to flip a coin to see who was going in to do the shooting.

Q. Okay. Who is "he"?

A. Scott Cothren.

Q. What was he doing when he was telling you-all about this coin flipping?

A. He had the gun pointed at us.

Q. And what was he saying?

A. He was telling us if we didn't go in and do it, he was going to shoot us.

Q. Okay. And go ahead and tell what happened when you-all were flipping this coin, Tracy?

A. Well, the first time we flipped and stuff, I won and stuff. And then Paul was supposed to

have been going in, but then they wanted to do the best two out of three, and I ended up losing

the second time.

Q. Okay. And what happened after that, Tracy?

A. We ended up going into the store.

Q. Okay. And Scott gave you the pistol?

A. Yes, sir.

Q. And you got out of the car?

A. Yes, sir.

Q. And, Tracy, when you got out of the car, did Scott have a pistol in the car with him?
A. No, sir.

Q. Why didn't you run when you got out of that car?

A. I was scared and wasn't thinking.

Q. You went into the store, and what did you do when you got into the store, Tracy?

A. Robbed it.

Q. Okay. Why did you rob the lady, Tracy?

A. Because Scott told us to.

Q. Okay. What did you think would happen if you didn't rob it?

A. That he'd kill us.

Q. And after you robbed the store, you did shoot the clerk; is that right?

A. Yes, sir.

Q. Why did you shoot the lady, Tracy?

A. Because he said he was going to shoot us if -- if we didn't shoot the woman in there because

he didn't want no witnesses left in the store.

Q. Now, when you got back to the car, did you have the money on you?

A. No, sir.

Q. Who was the money on?

A. Paul.

Q. What did Scott tell you when you got back to the car?

MR. MARTIN: Objection.

THE COURT: Sustained.

BY MR. DAVIS:

Q. How did Scott act towards you when you got back to the car?

A. Good.

Q. Okay. How did he act toward you? You said "Good." Would you explain that without

saying what Scott said? How did he act toward you when you got to the car?

A. He was acting better towards me.
¶69. During the State's cross-examination, West testified as follows:

Q. Okay. Now, there was one gun in that car, right?

A. Yes, sir.

Q. So when you got out of that car and went in that store with Paul, this person that you -- that

was supposed to have -- that you were supposed to be in such fear of was still in the car, wasn't

he?

A. Yes, sir.

Q. Didn't have a weapon in that car, did he?

A. No, sir.

Q. So you went in that store, and you could have called the police, couldn't you?

A. Yes, sir.

Q. You could have said, "I'm not doing this," and went out the back door, couldn't you?

A. Yes, sir.

Q. You had the gun. You could have turned to Scott and said, "No." Couldn't you have done

that?

A. Yes, sir.

Q. And there's nothing Scott could have done, is there, because you had the gun, right?

A. Yes, sir.

Q. You didn't do any of that.

A. No, sir.

Q. When you shot this lady in the back of the head two times where she lay there on the floor

telling you about her child, you could have fired into the air and went back and told Scott

anything, couldn't you? Couldn't you?

A. Yes, sir.

Q. You didn't do that either, did you?

A. No, sir.

Q. You shot her in the head two times, right?
A. Yes, sir.

Q. So this stuff about you being afraid of Scott, you weren't afraid of Scott, were you?

A. Yes, sir.

Q. So afraid of Scott -- Well, was Paul supposed to be afraid of Scott, too?

A. Yes, sir.

Q. So two of you guys, you and Paul, with the gun in you-all's custody, so afraid of Scott that

you-all let him tell you what to do while you had the gun.

A. Yes, sir.

Q. But at that point in time when you had the gun and you were in that store, Scott couldn't

have done anything to you at that time, could he?

A. No.

Q. He couldn't have -- You weren't in fear of him killing you right then, were you, because you

had control, didn't you?

A. I wasn't thinking about it.

¶70. During the videotaped statement that West gave to the police, West stated that he and his two

co-defendants had planned to steal the cash drawer from the store. He further stated that he planned

to kill Ms. Kiker when he fired the shots at her, and that all three of them had formed the idea to rob

that store.

¶71. The State contends that this evidence, viewed in the light most favorable to West, cannot

rationally support the lesser included offenses of manslaughter or simple murder. It further argues

that no reasonable juror could have found that West did not have the specific intent to rob the

convenience store, and that no rational juror could have found that West was under duress.

Additionally, the State argues that West got to present his theory of defense and therefore suffered

no harm from the lack of lesser included instructions, since the jury was instructed on the meaning of

objective duress.

¶72. Our review of the record reveals, taken in the light most favorable to West, the evidence does

support at least a simple murder, since he admitted to killing Ms. Kiker and intending to do so. Our

review does not however, support any theory of manslaughter or duress. First, the evidence plainly

indicated that West indeed shot Ms. Kiker with malice or deliberate design. Indeed, he repeatedly

testified to having planned to shoot her. Although he testified on the stand that he shot her because

he was afraid of being shot himself by his co-defendant, we have found no caselaw that suggests that

"duress" of this kind will reduce a simple murder to manslaughter.

¶73. Second, West's theory of duress is simply unsupported by the evidence. Indeed, as the State

suggests in its brief, no rational juror could have concluded that he was robbing the store under threat

of impending death. This is particularly true given that West testified during his cross-examination
that he had a number of reasonable and legal alternatives to robbing and killing Ms. Kiker.(7)

¶74. Since West's duress defense is unsupported in this record, we find that the trial court's refusal to

grant his request for the simple murder instruction that arose on the duress theory was not error.

Even though the trial court did grant the duress instruction, we find that no rational juror could have

found West to have been acting under common-law duress.

¶75. West's duress defense may have been strengthened by some evidence that the trial court declined

to admit. During his case-in-chief, West attempted to put on several witnesses who would have

testified that Cothren was an extremely violent person who had threatened to kill before, and who

tended to dominate West. Although this may have further proved the reasonableness of West's fear of

Cothren's violent nature, it simply would offer nothing to refute the State's contention that West had

numerous opportunities to avoid committing the crime. (See discussion infra of admissibility of this

proffered testimony, in subsection ii.). Since West's duress defense was irrational on this evidence, we

find there to have been no error in the trial court's refusal to grant West the requested lesser-included

instructions that arose out of that defense.

ii.

¶76. In related matters, West contends that the trial court erroneously deprived him of the

opportunity to present evidence in support of both his objective duress defense as well as his theory

that he was too frightened to form the requisite specific intent. He summarizes the testimony of four

separate witnesses who would have been called to show that Cothren (the driver of the car) was

known to be extremely violent and stated that he wanted to kill someone, and that he was the leader

as between him and West, that West was a follower in general and easily pressured although not the

trouble-making sort on his own, that Cothren had been the ring-leader, and that West was mentally

retarded.

¶77. The State responds that West was not entitled to a duress defense, and in any event the trial

court correctly ruled that the proffered testimony was not relevant, since the testimony would have

pertained to the witnesses' impressions of West and Cothren, of the relationship between the two, on

the day before or several hours after the crime. The trial court disallowed the testimony on these

grounds, and further stated that testimony was also irrelevant because it would not relate to any

threats, force or duress that were imposed on West by Cothren.

¶78. The trial court reiterated this ruling in the sentencing phase with respect to the testimony of

Kevin Curtis, whom West sought to have testify during the guilt phase that Cothren was "running

the whole show." The trial court stated that his testimony at sentencing did not support any defense

of duress. As has been noted, the trial court was not at all amenable to West's theory that his

subjective sense of fear and duress undermined his capacity to form the specific intent to rob the

store.

¶79. This Court has not precisely enunciated the elements of a duress defense in this State, although

it has expressly adopted the general rule of other states that where a person reasonably believes

that he is in danger of physical harm he may be excused for some conduct which ordinarily would

be criminal. Knight v. State, 601 So. 2d 403, 405 (Miss. 1992). West contends that the evidence that

he attempted to offer was probative of the reasonableness of West's fear of Cothren, given his
violent tendencies and stated urge to commit murder.

¶80. In accord with our earlier conclusion that West's duress defense was irrational because he

testified to having had reasonable and legal alternatives to killing the victim, we find that the trial

court's refusal to admit this added evidence regarding his fear of Cothren was not error.

¶81. West additionally argues whether these witnesses could have supplied admissible testimony

that he was under an impending threat of lethal harm to support his objective duress defense, he

was also attempting to adduce evidence through these witnesses about his subjective fear and

coercion. As has been noted earlier, he theorized in the alternative that this subjective fear and

coercion made him incapable of forming the requisite mens rea to be held liable for the capital

murder as charged. The lack of mens rea, according to this theory, would reduce West's capital

murder to either simple murder or manslaughter. Since we have already decided that no rational

juror could conclude that West did not intend to rob or shoot Ms. Kiker, we hold that this contention

is without merit.(8)

iii.

¶82. West raises several different arguments that his conviction should be reversed because the trial

court committed reversible error in failing to suppress his confession and the murder weapon. These

arguments were previously raised in West's written pretrial motions.

¶83. We find that none of West's arguments have merit. West first argues that the pistol should have

been suppressed because the police did not obtain a proper consent prior to conducting the search

that recovered the weapon. We hold, however, that the police had obtained proper consent prior to

their search, since they obtained it from the owner of the trailer in which West was visiting; the

owner and co-occupant had an equal right to use or occupy the room in which the police found the

gun. Therefore, her consent was sufficient to authorize the search, and the trial court committed no

error in declining to suppress the pistol on this ground.

¶84. West next argues that his confession ought to have been suppressed because he did not

voluntarily, knowingly, or intelligently waive his Miranda rights prior to giving the police the

inculpatory statement. In support of this, West notes that, in addition to his being retarded, his

"waiver" was given when he was tired and confused, and after a night of heavy drinking and no

sleep. Since the police did not read him his Miranda rights slowly or carefully or use simplified

sentence structure or vocabulary, he cannot be said to have understood them.

¶85. The trial court's finding that West's waiver of his Miranda rights was intelligent and knowing

is a finding of fact that will not be disturbed unless this Court finds it to be clearly erroneous. Neal

v. State, 451 So. 2d 743, 756 (Miss. 1984). A trial judge should make his determination on the

totality of the circumstances of the confession, including consideration of any mental impairment

suffered by the defendant. Id.

¶86. The evidence is clear from the videotaped confession that West was read his Miranda rights

more than once. In fact, Officer Calvanese stopped the interrogation to ask West whether he

remembered his rights and whether he was confessing freely, and reminded him of them at the close

of the interrogation. The trial judge heard evidence that West has an IQ around 70, and he
furthermore observed West testify during the hearing about the events leading up to his confession

before concluding that he had been advised of his Miranda rights and waived them freely and

voluntarily. There was no other evidence in the record that West did not understand his Miranda

rights nor his waiver of them. Although West's counsel mentioned that he might call a mental health

expert to testify about West's capacity to understand his waiver, he did not seek to supplement the

record until his Motion for New Trial, at which point the judge ruled that he would not consider the

information because it was submitted too late.

¶87. This Court has upheld trial courts' findings that a mentally impaired defendant waived his

Miranda rights knowingly, intelligently, and voluntarily where the fact of the defendant's

impairment was known to the court. See, e.g. , Neal v. State, 451 So. 2d 743 (Miss. 1984)

(defendant had IQ of 54 and organic brain dysfunction was nevertheless held to have lawfully

waived Miranda rights); Veal v. State, 585 So. 2d 693, 697 (Miss. 1991) (mildly mentally retarded

defendant who can read and write and appeared to all witnesses to the interrogation to have

understood the process held to have voluntarily, intelligently and knowingly waived Miranda

rights).

¶88. In Smith v. State, 534 So. 2d 194, 196-97 (Miss. 1988) this Court upheld a trial court's finding

that a Miranda waiver was lawful in spite of extensive expert testimony that Smith had an IQ of 65,

could not read, would not recognize the word "waiver," could not understand multi-syllabic words,

and had the minimal skills necessary for daily functioning. This Court held that since the trial court

in that case was persuaded by a review of a taped confession that Smith was capable of voluntarily

confessing, and had found that the psychological evidence did not outweigh this conclusion, the

trial court's ruling was not clearly erroneous. In light of that factual precedent, we hold that the

trial court's finding that West's waiver was knowing, intelligent, and voluntary was also not clearly

erroneous. This argument is therefore without merit.

¶89. West further contends that his statements as well as the pistol should have been suppressed

because the police failed to obtain a warrant before arresting him at his residence. In Payton v.

New York, 445 U.S. 573 (1980), the United States Supreme Court held that the Fourth Amendment

prohibits police from making felony arrests of people from within the confines of their homes unless

they have an arrest warrant, absent exigent circumstances like a fleeing felon or imminent

destruction of evidence. Accord Wilson v. State, 433 So. 2d 1142, 1145 (Miss. 1983) (holding lower

court should have suppressed a statement that was obtained to an warrantless arrest made in

appellant's home).

¶90. In Minnesota v. Olson, 495 U.S. 91 (1990) the United States Supreme Court held that since

Olson had a reasonable expectation of privacy in the residence in which he was spending the night

on the floor, the protections of the Fourth Amendment prohibited Olson's arrest in that residence in

absence of a warrant or exigent circumstances. The Supreme Court then affirmed the Minnesota

Supreme Court's decision to suppress the statement that followed that unlawful arrest. Id. at 100

(citing Payton, 445 U.S. at 583).

¶91. Notwithstanding West's expectation of privacy in the Babineaux trailer, the Payton rule does

not apply when the police are in the premises pursuant to a lawful consent. Payton, 445 U.S. at

583. Given that Mrs. Babineaux, the owner and co-occupant of the trailer, gave the police consent
to enter her trailer, the arrest of West within that trailer does not violate the Payton rule.

¶92. West next contends that his statement should be suppressed because the police arrested him

without probable cause, since the police had no knowledge of facts and circumstances grounded in

trustworthy information that would warrant a belief by a prudent person that an offense has been

committed by the person to be arrested. This Court has held that probable cause arises where a

police officer has reasonable cause to believe a felony had been committed, and reasonable cause

to believe that the person proposed to be arrested is the one who committed it, as determined by

factual and practical considerations of everyday life. Thomas v. State, 645 So. 2d 1345, 1347

(Miss. 1994); Lockett v. State, 517 So. 2d 1317, 1327 (Miss. 1987).

¶93. This contention is without merit. There was ample testimony that the police had good reason to

arrest West, along with his buddy Rathe, for having stolen the blue Cadillac in which they were

traveling. Mr. Babineaux, the owner of the trailer had called the police to inform them that he knew

of four white men, one of whom permanently lived in his home, who had stolen a blue Cadillac.

Apparently Mr. Babineaux had overheard Rathe call his mother from the trailer, and tell her that

they had taken the car and were currently being held against their will at knife point. Meanwhile,

Rathe's mother had called the police in Tennessee, who contacted the police in Louisiana. Detective

Myers of the Iberia Parish Sheriff's Office had heard from Detective Vick of Tennessee, who had

gotten his information from Rathe's mother, that three or four white men were traveling in a stolen

blue Cadillac that may have been involved in armed robbery-homicides. Detective Vick had

confirmed that the vehicle was gone from the owner's residence, although the owner, a truck driver,

was not home at the time Vick made this confirmation. Detective Vick also told Detective Myers that

the names of the occupants of the stolen vehicle were Tracy West, Paul Rathe, and a man named

Scott. Detective Vick sent Detective Myers a teletype with the vehicle type and tag numbers on it.

Detective Myers then sent out a "Be on the Lookout" dispatch notice. Meanwhile, he received a

report from a volunteer fireman that a blue Cadillac with Tennessee tags was parked at a local

club. The bouncer at the club told the firemen that the men in the blue Cadillac had left with Mr.

Babineaux. The police then converged on the Babineaux trailer, where they found and arrested

West and Rathe for possession of the stolen vehicle. Under these circumstances, we hold that the

police had probable cause to arrest West.

¶94. Finally, West contends that his statement should have been suppressed because it was given

after the police made promises of leniency. West does not elaborate in his brief on what promises

were made, although he testified during the suppression hearing that the officer guarding the door

to the room in which he was placed after his arrest told him several times that "it would make things

easier on you if you go ahead and make a statement." West also testified that another deputy told

him that "it would make it a whole lot easier on y'all if y'all would go -- y'all would get off easier if

y'all would go ahead and tell us what happened and stuff," and that as a consequence, he gave the

statement because they told him it would be easier on him.

¶95. West's co-defendant Rathe corroborated these assertions. He testified during this hearing that,

while he was standing in the hall outside the room containing West, he overheard an officer tell

West that "everything would be better if we would cooperate." Rathe also testified that he was told

that it would be easier on him if he told them everything that happened by Officer Hayden, the same

officer who had said the same thing to West.
¶96. All of the police officers who testified denied that any such statements were made, and that no

deputy guards entered the room where West was being detained to chat with him. Accordingly, the

State submits that these promises of leniency never happened.

¶97. The trial court denied this motion to suppress from the bench, finding explicitly that the police

officers had more persuasive credibility than West and his witnesses. We have held that when a trial

court makes factual findings while applying correct legal standards to conflicting evidence, this

Court must generally affirm those findings unless they are clearly erroneous. Stokes v. State, 548

So. 2d 118, 122 (Miss. 1989). The trial court's express finding that West and Rathe were incredible

witnesses is not clearly erroneous on the record before this Court, and thus its ruling that their

statements were not illegally obtained pursuant to promises of leniency is not reversible error.

¶98. In summary, there is no merit in West's arguments that his statements to the police and the

murder weapon should have been suppressed.

vi.

¶99. West also argues that the trial court erred in overruling his objection to the admission of a

photograph of the victim's body. He objected below, and presently argues that the photo was

gruesome, highly inflammatory, and inaccurate, since the body was flipped over before the photo

was taken. In overruling the objection, the trial court found that the photo was not unduly gross or

prejudicial, and appeared to be a fair representation of the crime scene. Nonetheless, West argues

that the photo was never demonstrated to be relevant to any aspect of the prosecution other than a

simple ploy to arouse the passion and prejudice of the jury.

¶100. The admission of photographs is within the sound discretion of the trial court, and this Court

will reverse only where that discretion has been abused. Chase v. State, 645 So. 2d at 848-49. The

photo at issue in this case is indeed rather mild. It shows the victim lying on her back from several

feet away. Her head, the site of the wound, is at the far end of the photo, and the wound itself

cannot really be seen. There is not much blood. Thus, this photo does not evoke the gruesome

predicate of McNeal v. State, 551 So. 2d 151 (Miss. 1989).

¶101. Nevertheless, West points out the fact that the State never made any showing that the photo

was relevant for any legitimate purpose at all. Defense counsel had moved during the pretrial

proceedings to have the photograph suppressed, and the trial court ruled on the objection without

asking the State why it wanted to admit the photo. Even if the photo was irrelevant, its admission is

not so prejudicial to West so as to require reversal.

C. MISCELLANEOUS

i.

¶102. West contends that the trial court should have declared Mississippi's capital punishment

statute unconstitutional. He argues that it is unconstitutional because (1) it allows the death penalty

for simple felony murder, but not simple premeditated murder; (2) it fails to provide a principled

distinction of death-eligible felony murderers, since the underlying felony is used both to elevate the

defendant into the death-eligible class as well as to subsequently aggravate his felony murder
conviction; and (3) it places beyond the reach of the sentencing jury the mitigating value of the fact

that a felony murderer did not intend to kill the victim.

¶103. This assignment of error is without merit. First, any infirmity arising in the statute's capital

treatment of felony murderers has not harmed West, since he testified at trial that he was the

triggerman and that he intended to shoot and kill Ms. Kiker. Moreover, to the extent that the capital

murder statute allows the execution of felony murderers, they must be found to have intended that

the killing take place or that lethal force be employed before they can become eligible for the death

penalty, pursuant to Enmund v. Florida, 458 U.S. 782, 796 (1982). In this case, the jury did find

that West killed, attempted to kill, and intended the killing of Ms. Kiker.

¶104. West's second argument has been squarely rejected by this Court in Ballenger v. State, 667

So. 2d 1242, 1260-61 (Miss. 1995), which noted that where the class is appropriately narrowed

through legislative definition of the capital offenses, further narrowing is not required at the

weighing stage.

¶105. Finally, West's argument that the sentencing jury is unable to consider the fact that a capital

defendant did not intend the death of his victim is simply spurious. First, as noted, the jury cannot

return a death sentence at all if it cannot conclude that a capital defendant intended the death of his

victim. Second, Miss. Code Ann. § 99-10-101(6)(d) treats the fact that a defendant was an

accomplice and a minor participant as a mitigating factor, so as to enable the jury to take this

factor into account in its weighing process.

¶106. Thus, this assignment of error has no merit.

ii.

¶107. West finally contends that his conviction should be reversed because the trial court committed

reversible error in instructing the jury that it could find that West had killed Ms. Kiker with or

without deliberate design, when the indictment charged that West had killed Ms. Kiker without any

design to effect death. He argues that since this was tantamount to an amendment to the indictment

that was material to the merits of the case, the lower court's instruction was reversible error.

¶108. This issue arose on the court's initiative, when it offered to instruct the jury that it could find

that West killed with or without deliberate design. We hold that this amendment is one of form, not

substance. This Court has held that changes of form are permissible. Griffin v. State, 584 So. 2d

1274, 1275 (Miss. 1991) (citing Akins v. State, 493 So. 2d 1321, 1322 (Miss. 1986)). The language

"without any design to effect death" as well as "kill and murder" that appears in the indictment is

surplusage, insofar as the capital murder statute under which West was charged, § 97-3-19(2)(e)

does not specify whether the killing must be done with deliberate design; any killing will suffice.

¶109. That being the case, the amendment was in fact one purely of form. Nothing about the nature

of the capital murder charge changed with the addition of "with or without deliberate design" to the

original language "without deliberate design." Thus, we hold that there was no error.

III.

¶110. In conclusion, we hold that West's sentence should be reversed because the trial court refused
to instruct his jury during the sentencing phase that it could opt to sentence him to life without

parole, and because he instructed the jury that it could find that the killing was heinous, atrocious

or cruel when the evidence did not warrant it. In light of our disposition, none of the other issues

raised need be reached at this time, as they will not necessarily recur on retrial.

¶111. CONVICTION OF CAPITAL MURDER AFFIRMED; SENTENCE OF DEATH

VACATED. REVERSED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH

THIS OPINION.

PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., AND MILLS, J., CONCUR. McRAE, J.,

CONCURS IN RESULT ONLY. SMITH, J., DISSENTS WITH SEPARATE WRITTEN

OPINION JOINED BY ROBERTS, J. WALLER, J., NOT PARTICIPATING.

SMITH, JUSTICE, DISSENTING:

¶112. Tracy Lee West was convicted of the capital murder of Azra Garriga Kiker which occurred on

December 16, 1992. West received the death penalty from the jury. On appeal to this Court, the

majority reverses the sentence because the trial court erred in refusing to instruct the jury on three

sentencing options, including life imprisonment without eligibility for parole. Additionally, the

majority, although claiming not to reverse on the issue of there being insufficient evidence in the

record to support the granting of the especially heinous, atrocious, or cruel aggravator, nonetheless

in its conclusion, writes that it also reverses for that reason. I disagree and accordingly dissent.

¶113. The Legislature amended Miss. Code Ann. § § 97-3-21 and 99-19-101 (Supp. 1994) to allow

a sentencing option of life without parole, effective as law on July 1, 1994. West's trial commenced

on August 8, 1994, thus the majority reasons that the amendments should apply to his case.

However, Miss. Code Ann. § 99-19-1(1972), expressly describes the effect of changes in the law

upon the prosecution or punishment of a crime committed prior to the change. The statute reads:

No statutory change of any law affecting a crime or its punishment or the collection of a

penalty shall affect or defeat the prosecution of any crime committed prior to its enactment, or

the collection of any penalty, whether such prosecution be instituted before or after such

enactment; and all laws defining a crime or prescribing its punishment, or for the imposition

of penalties, shall be continued in operation for the purpose of providing punishment for

crimes committed under them, and for collection of such penalties, notwithstanding

amendatory or repealing statutes, unless otherwise specially provided in such statutes.

¶114. It is thus clear that the statute mandates that the punishment prescribed at the time that the

crime is committed is what should be considered at sentencing. A subsequent change in the statute

regarding punishment is of no effect. See Byrd v. State, 165 Miss. 30, 143 So. 852, 853 (1932).

There, where the trial court sentenced Byrd for an arson charge to seven years in prison under the

statute in effect when the crime was committed, this Court held that a subsequent change in the
statute reducing the punishment to no more than five years in prison did not warrant finding the

trial court was in error, because the amended statute did not otherwise specially provide that the

old statute not continue in operation. Id.

¶115. This Court's more recent case of Johnston v. State, 618 So. 2d 90, 94 (Miss. 1993), held that

Johnson should be held to the sentence existing on the date of his offense in order to avoid any ex

post facto claims. Id. Also, in Hill v. State, 659 So. 2d 547 (Miss. 1994), this Court, in reviewing the

question of retroactive application of statutory amendments under an ex post facto analysis , held

that when a substantive right is the subject, the State does not violate the ex post facto principle so

long as its subsequent legislation doesn't impede the right. The Hill Court, on Petition for

Rehearing, (Prather, P.J.), stated: "Application of the 1994 statutory change to the death penalty

statute violates Mississippi constitutional provisions against ex post facto law and bars this statute's

applicability to Hill." Hill, 659 So. 2d at 552 (citing Johnston v. State, 618 So. 2d 90, 95 (Miss.

1993)). Additionally this court citing Dufour v. Hargett, No. 3:87cv74GR (S.D. Miss. Oct. 3, 1994),

slip op. at 8-9, stated "This Court agrees with the finding of that court, and as the final arbiter of

Mississippi law, we likewise hold that retroactive application of these changes to the death penalty

statute would violate our prohibitions of ex post facto doctrine." Hill, 659 So. 2d at 552 n. 2. The

Court thus held that Hill was entitled to be sentenced under the statute existing on the date that his

offense was committed. I dissented in Hill, arguing unsuccessfully that the changes in the 1994

statute were procedural only. The bench and bar is now presented with two inconsistent views of the

application of ex post facto to subsequently passed statutes affecting the death penalty. The same

view adopted by the Court in Hill should also apply in West. Obviously, West prefers any sentence

other than death. This was a catch-twenty two situation for the trial judge. Here, had the judge

instructed the jury that it had the option of returning a verdict of life in prison without benefit of

parole, and West sentenced to life without parole, West would now be claiming a violation of ex

post facto laws. And, he would be right according to this Court's decision in Hill.

¶116. Next, the majority claims in its discussion not to be reversing West's sentence of death

because of insufficient evidence to support the giving of the "especially heinous, atrocious or cruel"

aggravator instruction, but writes of necessity only because it might reoccur at retrial. Then, the

majority in conclusion states that it is grounds for reversal. The majority concludes that the proof

was insufficient to warrant the aggravator. The basis for the majority's view is that the only

evidence was that "she asked West to spare her life while she lay on the floor." Then, the majority

states, "[n]othing in our caselaw, however, suggest that this is enough to elevate a murder into an

especially heinous, atrocious, or cruel one."

¶117. I must respectfully disagree. In Underwood v. State, 708 So. 2d 18 (Miss. 1998), where this

same aggravator concerning mental torture was given to the jury, this Court held that the length of

victim's consciousness after she received gunshot wounds was irrelevant, where she was kidnapped,

made to walk on nerve-damaged feet while leaving her to ponder her execution, ordered to kneel

before him, and defendant fired four shots into victim's body. The victim was found with grass

clutched in her hands. Mental torture was clearly proper in granting the aggravator. See also

Woodward v. State, No. 95-DP-00144-SCT, 1997, WL 776557, (Miss. Dec. 18, 1997) (where victim

suffered mental torture and aggravation before death). In contrast, this Court, in Lockett v. State,

517 So. 2d 1317 (Miss. 1987), affirmed the granting of the aggravator where the same aggravator

was given, the victim was shot once, after which defendant fired an additional "four to five rounds,"
and there was no evidence to indicate that victim was dead or unconscious when latter shots were

fired. Subsequently, in Lockett v. Puckett, 980 F. Supp. 201 (S.D. Miss.1997) , the federal district

court held that the defendant was entitled to habeas relief on death sentence for husband's murder

based on absence of factual findings to support especially heinous aggravating factor in murder

involving quick death with little or no warning to victim. Id. at 228-29. The Court found that in

reversing, this Court had failed to make any factual findings concerning the death of murder victim

and failed to set forth any facts on which to base such an opinion. Thus, in Lockett, there was no

warning to the victim and death was instant.

¶118. In the case at bar there is clearly prior warning to the victim that she was about to be killed.

She recognized that fact, because she was pleading for her life. West had ordered the victim to lie

on the floor and was attempting to shoot her in the back. He had extreme difficulty getting the gun

to ever fire in the first place. He finally got it to fire, then couldn't get the spent hull to eject. He

cocked it, pulled the trigger and the gun misfired. All the while, lying prostrate on the floor,

"obviously pondering her imminent execution," the victim was pleading for her life. This entire

scene was certainly not something that took place instantly as in Lockett, but rather occurred over a

prior of time as in Woodward and Underwood. The majority reasons that "there is no evidence that

Ms. Kiker heard the gun misfire, or that there was any considerable length of time between the

misfire and the shot that killed her." As this Court stated in Underwood, "[t]he measure of

Underwood's lack of conscience and pity is the extent of pain and suffering that Mrs. Harris felt."

Id. at 39. The same is true of West. How in good conscience can the majority not say that these

barbarous facts are not sufficient to satisfy the aggravator that West inflicted physical and/or

mental torture and pain upon the victim before she died. I find it absolutely astounding that the

majority could suggest that a victim placed prostrate on the floor during an armed robbery does not

realize when the robber pulls a gun and points it at her, that she, obviously aware of impending

death as she is pleading for her life, when he subsequently starts pulling the trigger, that the victim

would not hear "the sound of the cold hard steel hammer falling upon a firing pin." If anything,

under this factual situation the sound of metal on metal would be significantly heightened to a

person facing imminent death If this fact alone doesn't create mental torture, what on God's earth

ever could. Here, this Court's majority is simply splitting fine hairs. I would affirm.

¶119. I respectfully dissent.

ROBERTS, J., JOINS THIS OPINION.

1. This Court has recently held that this same effective date provision cannot be interpreted to apply

the truth-in-sentencing amendments, Senate Bill 2175, to prisoners whose crimes occurred prior to

July 1, 1995, since to do so would violate the constitutional prohibitions against ex post facto law.

Puckett v. Abels, et al, 684 So. 2d 681(1996). The distinction between that provision and the one at

issue in this case is that the truth-in-sentencing provision is not even arguably ameliorative; no

competent person would ever opt to be required to serve 85% of his prison term if he had the option

of having to serve less time.
2. The trial was ultimately continued until after July 1, 1994, although obviously not for the purpose

of bringing West's proceeding within the purview of the statute.

3. Moreover, West waived his ex post facto claims in the very act of requesting that the amendment

be applied to him, as well as the act of submitting several jury instructions to the court which

invited the jury to return a sentence of life without parole, since a defendant cannot ordinarily

appeal any error that he introduced. See, e.g., Carr v. State, 655 So. 2d 824 (Miss. 1995) (holding

that appellant had waived any objection to an instruction that he had himself introduced, and which

was amended by the State without objection from appellant).

4. The state's assertion of the pertinence of this statute seems to concede that the amended version

of § 99-3-21 (providing for life without parole) is in fact ameliorative; § 99-19-33 is only operative

where the amended statute provides a punishment of a "milder type."

5. Even if the trial court had any discretion in applying amended sentencing schemes, such

discretion is inappropriate in capital cases. The United States Supreme Court as well as this Court

have both held that the specter of the death penalty commands a more stringent degree of

consistency in capital proceedings. Eddings v. Oklahoma, 455 U.S. 104, 111-12 (1982) (capital

punishment must be imposed with consistency or not at all); King v. State, 656 So. 2d 1168, 1173

(Miss. 1995) (stating that since a statutory amendment which gave appellate court the power to

apply harmless error analysis to an erroneously submitted aggravating circumstance had not been

applied to other capital defendants who were similarly situated, consistency in the application of the

death penalty compelled the same approach to King). As already noted, several capital defendants

whose crimes and even convictions occurred prior to the amendment providing the sentencing

option of life without parole have received the benefit of the amendment. The fact that West's trial

judge exercised discretion otherwise rather alarms these principles, which forbid arbitrary and

capricious death sentencing.

Indeed, our issuance of a mandamus to the trial court in the Woodward case accords with these

principles, that a capital defendant may not be arbitrarily denied the benefit of the amendment

when he had waived any claim of error in their application. Woodward v. State, No. 95-M-00144

(Order issuing writ of mandamus, September 11, 1995).

6. This Court has recognized duress as a defense to robbery, although not to homicide. Wilson v.

State, 390 So. 2d 575, 576 n.1 (Miss. 1980).

7. This Court has not enunciated the precise elements of a duress defense, however the Fifth Circuit

has prescribed the following components: (1) the defendant was under an unlawful and present,

imminent, and impending threat of such a nature as to induce a well-grounded apprehension of

death or serious bodily injury; (2) that he had not recklessly or negligently placed himself in the

situation; (3) that he had no reasonable legal alternative to violating the law; (4) that a direct

causal relationship may be reasonably anticipated between the criminal action and the avoidance of

harm. United States v. Harper, 802 F.2d 115, 117 (5th Cir. 1986).

8. Similarly, West contends that the trial court erred in refusing to instruct the jury that it should

consider West's subjective sense of fear, coercion, or duress in assessing whether he had specifically

intended to commit the robbery. We have already held that no rational juror in this case could have
concluded that, in spite of West's testimony that he intended to shoot and rob the victim, he did not

have the specific intent to do so. Thus, West was not entitled to any subjective fear instruction that

would invite a jury to find that he could not have the requisite specific intent.