IN THE SUPREME COURT OF MISSISSIPPI

NO. 1998-DP-01094-SCT

KELVIN DYCUS a/k/a KEVIN DYCUS

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 6/19/1998

TRIAL JUDGE: HON. KENNETH L. THOMAS

COURT FROM WHICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT: RAYMOND L. WONG

ROBERT McDUFF

ATTORNEYS FOR APPELLEE:

DISTRICT ATTORNEY: OFFICE OF THE ATTORNEY GENERAL

BY: JUDY T. MARTIN

MARVIN L. WHITE

LAURENCE Y. MELLON

NATURE OF THE CASE: CRIMINAL - DEATH PENALTY -

DIRECT APPEAL

DISPOSITION: AFFIRMED IN PART; VACATED

AND REMANDED IN PART- 09/15/2005

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

GRAVES, JUSTICE, FOR THE COURT:

¶1. This case is before t he Court on remand from the United States Supreme Court. D ycus

v. Mississippi

,

_ U.S._

, 125 S.Ct. 1589, 161 L.Ed.2d 271 (2005). Kelvin Dycus and his

b rother Jason Dycus were arrested for the 1996 murder and robbery of 76-year-old Mary

Pittman. At the time of the murder, Kelvin Dycus was 17 years old, and his brother was 15

yea rs old. A jury convicted Kelvin Dycus of capital murder and sentenced him to death. The2

jury also convicte d Dycus of auto theft for which he was sentenced to five years in the custody

of the Mississippi Department of Corrections. This Court affirmed both convictions and

sentences. Dycus v. State

, 875 So.2d 140 (Miss. 2004). The United States Supreme Court

subsequent ly held that the Eighth and Fourteenth Amendments to the United States

Consti tution forbid the imposition of the death penalty on offenders who were under the age

of 18 when their crimes were committed. Roper v. Simmons

, 543 U.S._, 125 S .Ct. 1183,

1200, 161 L.Ed.2d

1, 28 (2005). The United States Supreme Court thereafter vacated the

judgment of this Court and remanded this case for further consideration in light of its

decision in Roper

. T

his Court called for supplemental briefs from the parties, and both sides

concur that Dycus must be resentenced to life in prison without parole.

¶2. This Court has considered this ca se further in light of R oper

. R oper requires that

Dycus’s death sentence be vacated and this case remanded for resentencing. However, Roper

does not affect the remainder of this Court’s prior op inion and judgment. Accordingly, this

C ourt now reaffirms the convictions of Kelvin Dycus for capital murder and auto theft a nd his

se ntence for auto theft and hereby reinstates and adopts its prior opinion in its entirety except

to the extent it addresses the issues relating to the death sentence. As required by the United

States Supreme Court in Roper

, this Cou rt hereby vacates the death sentence of Kelvin Dycus

and remands this case to the Circuit Court of Bolivar County for resentencing of Kelvin Dycus

on Count I to life imprisonmen t in the custody of the Mississippi Department of Corrections

without the possibility of parole.

¶3. COUNT I: CONVICTION OF CAPITAL MURDER AFFIRMED. SENTENCE OF

DEATH BY LETHAL INJECTION, VACAT ED AND CASE REMANDED FOR

RESENTENCING TOLIFE IMPRISONMENT IN THE CUSTODY OF THE3

MISSISSIPPI DEPA RTMENT OF CORRECTIONS WITHOUT THE POSSIBILITY OF

PAROLE.

COUNT II: CO NVICTION OF UNLAWFUL THEFT OF AN AUTOMOBILE AND

SENTENCE OF FIVE (5) YEARS I N THE CUSTODY OF THE MISSISSIPPI

DEPARTMENT OF CORRECTIONS, AFFIRMED.

SMITH, C.J., WALLER AND COBB, P.J., CARLSON AND DICKINSON, JJ.,

CONCUR. EASLE Y, J., CONCURS IN RESULT ONLY. RANDOLPH, J., SPECIALLY

CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY SMITH, C.J.,

WALLER AND COBB, P.JJ., EASLEY AND CARLSON, JJ. DIAZ, J., NOT

PARTICIPATING.

RANDOLPH, JUSTICE, SPECIALLY CONCURRING:

¶4. I concur i

n the majority’s opinion and judgment because my oath and loyalty to this

of fice and the law require me to comply with the mandate of the United States Supreme Court

in Roper v. Simmons

, 543 U.S.-, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), fo r separate and

distinct, but intertwined reasons. First, the United States Constitution clearly vests in the

Supreme Court the absolute judicial power of the United States. U.S. Const. art. III, § 1. Next,

respect for the rule of law is essential for the orderly administration of justice. S ee Roper,

125 S.Ct . at 1217, 1226-27 (Scalia, J., joined by Rehnquist, C.J., & Thomas, J., dissenting).

Finally, the Code of Jud icial Conduct requires a judge to be faithful, respectful, and compliant

with the law, as well as not swayed by partisan interests, public clamor, or fear of criticism.

Miss. Code of Judicial Conduct, Canons 2A & 3B(2).

¶5. I am bound by the Roper decision. Therefore, it is o f no import what my personal views

on the death penalty, or any other subject, may be; or, whether I personally agree or disagree

with an opinion of the Supreme Court; or for that matter, whethe r the opinion relies on sound

logic and reasoning leading to a just result, vel non

.4

¶6. The dissents in Roper opine that the m ajority decision is legally flawed, lacks valid

reasoning and defies historic precedent. S ee Roper, 125 S.Ct. at 1217-30 (Sca l ia, J.,

d issenting). If personal whims or beliefs are besetting the Constitution, and ignoring the rule

of law, then those culpable of such conduct should eithe r recuse themselves from such cases,

or consider the honorable path chosen by former Justice Harry A. Blackmun. Blackmun, when

faced with such a dilemma declared, “I no longer shall tinker with the machinery of death.”

Ca llins v. Collins, 5 10 U.S. 1141, 114 S.Ct. 1127, 1130, 127 L.Ed.2d 435 (1994) (Blackmun,

J., dissenting from denial of certiorari), and shortly thereafter, retired.

¶7. Our Constitu

tion requires strict adherence to the doctrine of separation of powers. The

people’s w ill can best be determined by the nation’s legislatures, both federal and state, for

social policy and in individual cases, by a jury o f one’s peers. I would respectfully urge the

Supreme Court to exercise judicial restraint, as the function of all cou rts is to adjudicate, not

to legislate. Courts are charged with the responsibility to interpret, not create law.

¶8. “In a democratic socie ty legislatures, not courts, are constituted to respond to the will

and consequently the moral values of the people.” R oper, 125 S.Ct. at 1222 (Sc alia, J.,

dissenting) (quoting Furman v Geo rgia

, 408 U.S. 238, 383, 92 S.Ct. 2726, 33 L.Ed.2d 346

(1972) (Burger, C.J., dissenting)). “[W]e have, in our determination of soc iety’s moral

standards, consult ed the practices of sentencing juries: Juries ‘maintain a link between

contempo r ary community values and the penal system’ that this Court cannot claim for itself.”

Roper, 125 S.Ct. at 1222 (Scalia, J., dissenting) (quoting Witherspoon v. Illinois

, 391 U.S.

510, 519 n.15, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968)).5

¶9. The Roper majority declared that the “ expansive language in the Constitution, must be

interpreted according to its text, by considering histor y, tradition, and precedent, and with due

regard for

its purpose and function in the constitutional design. To implement this framework

we have established the propriety and affirmed the necessity of referring to ‘the evolving

standards of decency that mark the progress of a maturing society’ to determine which

punishments are so disproportionate as to be cruel and unusual.” R oper, 125 S.Ct. at 1190

(quoting Trop v. Dulles, 3 56 U.S. 86, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958)(plurality

opinion) ). Such amorphous terminology provided the framework upon which Roper was

decided. It is not the Constitution which is changing, but only some individual justices

rearra nging a shapeless concept to fit their personal whims and declaring that to be the law d u

jour

, without sufficient deference to th e intent of the framers of the Constitution; the rule of

law; legislative acts; and finally, the decision of a jury.

¶10. The Supreme Court’s implementation and s ubsequent reliance upon T rop

, and a series

of other of plurality decisions, has self-empowered the Court to impose its independent moral

judgment on constitutional issues. In Roper, the majority applied this framework,

“substitut[ing] [its] judgment about the moral propriety of capital punishment for 17-year-old

murderers for the judgments of the Nation's legislatures.” Roper, 125 S.Ct. at 1206

(O’Connor, J., dissenting).

¶11. In his dissent, Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas,

opines the majority in Ropernot only changed the Constitution, but failed to honor the rule

of law, while “proclaim[ing] itself sole arbiter of our Nation’s moral standards,” R oper, 1256

S.Ct. at 1217 (S calia, J., dissenting), and at the same time saying “what our people’s laws say

about the issue does not... matter.....” Id.

¶12. Such heinous and atrocious crimes, as committed by Simmons and Dycus, as well as

the ever-increasing multitude of other heinous crimes involving the a bduction, torture,

molestation and murders by sexual predators should cause the Court to pause, reflect, an d then

reconsider the existing framework by which it analyzes the United States Constitution.

¶13. One only needs to lo ok at the negative changes in our society caused by the attacks on

the Constitution and the resul tant experiential harm suffered by individual citizens of this

country to question why a strict adherence to such a novel concept of less than forty-seven

years should be the appropriate standard for i nterpreting the Constitution. I marvel that this

framework was either completely overlooked by or hidden fr om all of the learned justices who

sat on the Court for 169 ye ars preceding T rop

. If blindly followed, this treatment of the

Constitution shall most assuredly lead to the ru in and destruction of the noblest democratic

experiment in the history of man.

SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY AN D CARLSON, JJ., JOIN

THIS OPINION.