Reddix v. Thigpen Reply Brief for Petitioner-Appellant

    IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

8 6 - 4 0 6 6

WILLIE N. REDDIX,
Petitioner-Appellant,
v.

MORRIS THIGPEN, et al.,
Respondents-Appellees.

On Appeal From The United States District Court 
For The Southern District Of Mississippi' 

Southern Division

REPLY BRIEF FOR PETITIONER-APPELLANT

CHARLES H. RAMBERG 
P .  O. BOX 1 4 2 8  
Jackson, Miss. 3 9 2 0 5  
( 6 0 1 )  9 4 8 - 0 2 4 2

STEVEN L. WINTER
University of Miami School of Law P.O. Box 248087
Coral Gables, Florida 3 3 1 2 4 - 8 0 8 7  
( 3 0 5 )  2 8 4 - 2 3 9 2

COUNSEL FOR PETITIONER-APPELLANT



TABLE OF CONTENTS

Table of Authorities ...............    ii
Argument .......................    1
I. PETITIONER IS ENTITLED TO RELIEF UNDER BECK V. ALABAMA.

AND THAT CLAIM IS NOT BARRED BY PROCEDURAL DEFAULT 
UNDER THE STATE' S OWN THEORY ...................... . 1
A. Petitioner Was Entitled to Instructions on the
Lesser Included Offenses ...................      2
B. There Is No Procedural Default or Bar to Federal
Habeas Review on this Issue, Even Under the State's Own 
Theory....................    6

II. THE STATE'S CONCESSION ESTABLISHES THAT, UNDER THE
GOVERNING CONSTITUTIONAL STANDARDS, THE CHARGE ON THE 
PREDICATE FELONY OF ROBBERY VIOLATED DUE PROCESS .....  9

III. PETITIONER IS SEPARATELY ENTITLED TO INDEPENDENT
FEDERAL CONSIDERATION OF HIS CONFESSION CLAIM AND TO A 
FEDERAL EVIDENTIARY HEARING ............................ 11

IV. THIS COURT SHOULD NOT DISTURB ITS PRIOR JUDGMENT THAT 
PETITIONER IS ENTITLED TO A NEW SENTENCING HEARING 
BECAUSE NO STATE COURT OR JURY MADE ANY FINDING THAT 
PETITIONER KILLED, ATTEMPTED TO KILL, OR INTENDED THATA KILLING TAKE PLACE ............................. 17

CONCLUSION .................................................  24
Certificate of Service ..................................... 25
Appendix ...................................................  2 6



TABLE OF AUTHORITIES
Cases Page
Ackerman v. United States, 340 U.S. 193 (1950) ........  19
Baldwin v. Iowa State Travelling Men's Assn.,

283 U.S. 522 (1931)     20
Baygents v. State, 154 Miss. 36, 122 So. 187 (1929) .... 10
Beck v. Alabama, 447 U.S. 625 (1980)   1,6
Bell v. Watkins, 692 F.2d 999 (5th Cir. 1982)   1
Bell v. Watkins, 381 So.2d 118 (Miss. 1980)   7
Blackburn v. Alabama, 361 U.S. 199 (1960) .............  13
Cabana v. Bullock’, 474 U.S. ___, 88 L.Ed.2d 704

(1986)   17,20-23
Cannaday v. State, 455 So.2d 713 (Miss. 1984) .........  1
Cardinale v. Louisiana, 394 U.S. 437 (1969)   22
Chapman v. NASA, 736 F.2d 238 (5th Cir. 1984) .........  18
Chicot County Drainage District v. Baxter State

Bank, 308 U.S. 371 (1940) ......................... 19
Conway v. Chemical Leaman Tank Lines, Inc., 644

F. 2d 1059 (5th Cir. 1981) .......................... 18
Culombe v. Connecticut, 367 U.S. 568 (1961)   16
Dobbert v. Florida, 432 U.S. 282 (1977)   5
Eakens v. State, 289 So.2d 687 (Miss. 1974) ...........  10
Edwards v. Thigpen, 433 So.2d 906 (Miss. 1983) ........  7
Enmund v. Florida, 458 U.S. 782 (1982) ................  17,20,22
Fairchild v. State, 459 So.2d 793 (Miss. 1984) ........  2-3,4
Fay v. Noia, 372 U.S. 391 (1963) ...... ................  15
Federated Department Stores v. Moitie, 452 U.S.

394 (1981) ........................................  19-20
ii



Cases Page
Fortenberry v. State, 1 So.2d 585 (Miss. 1941) ........  4
Francis v. Franklin, 471 U.S. ___, 85 L.Ed.2d

344 (1985) .................. .....................  10
Gray v. Lucas, 677 F.2d 1086 (5th Cir. 1982) ..........  6
Guice v. Fortenberry, 661 F.2d 496 (5th Cir. 1981)

(en banc) .........................................  15
Harper v. State, 478 So.2d 1017 (Miss. 1985) ..........  5
Illinois v. Gates, 462 U.S. 213 (1983)   22
Johnson v. Zerbst, 304 U.S. 458 (1938)   15
In re Jordan, 390 So.2d 584 (Miss. 1980) ..............  7
King v. Thigpen, 441 So.2d 1365 (Miss. 1983) ............  8
LaVallee v. Delle Rose, 410 U.S. 690 (1973) ...........  13
Lehrman v. Gulf Oil Corp., 500 F.2d 659 (5th Cir.

1974)   18
Miller v. Fenton, 474 U.S. ___, 88 L.Ed.2d 405

(1986)   11-14,16
Morrow v. Dillard, 580 F.2d 1284 (5th Cir. 1978)   20,21
Preston v. Maggio, 705 F.2d 113 (5th Cir. 1983)   8
Polk v. state, 417 So.2d 930 (Miss. 1982)   3-4
Reddix v. State, 381 So.2d 999 (Miss. 1980) ...........  14
Reddix v. Thigpen, 728 F.2d 705 (5th Cir.), on

rehearing, 732 F.2d 494 (5th Cir. 1984)...........  17,20-23
Sandstrom v. Montana, 442 U.S. 510 (1979)   10-11
Schwartz v. NMS Industries, Inc., 575 F.2d 553

(5th Cir. 1978)   20
Singleton v. Wulff, 428 U.S. 106 (1976)   22
Spaziano v. Florida, 468 U.S. ___, 82 L.Ed.2d

340 (1984)   6

iii



Todd Shipyards Corp. v. Auto Transportation,
S.A., 763 F. 2d 745 (5th Cir. 198.5) . .......... . 20

Townsend v. Sain, 372 U.S. 293 (1963) ............... 11,14,15,16
West v. Louisiana, 478 F.2d 1026 (5th Cir. 1973), 

on rehearing, 510 F.2d 363
(5th Cir. 1975) (en banc) ..............    11

Westbrook v. Zant, 743 F.2d 764 (11th Cir. 1984) ....... is
Wheat v. Thigpen, ___ F.2d ___, No. 85-4590 (5th

Cir. June 27, 1986)     7,8,9
white V. Murtha, 377 F.2d 428 (5th cir. 1967) .........  20,22-23
Ulster County Court v. Allen, 442 U.S. 140 (1979) .....  9
United States v. Moser, 266 U.S. 236 (1924) ...........  19

Other Authorities
B. Cardozo, THE NATURE OF THE JUDICIAL PROCESS (1921) .. 18
F.R.C.P. 60(b) ........................................  18,19
Rule 8, Rules Governing Section 2254 Cases

in the United States District Courts .............  16

Cases page



REPLY BRIEF FOR PETITIONER-APPELLANT

I. PETITIONER IS ENTITLED TO RELIEF UNDER BECK V. ALABAMA.
AND THAT CLAIM IS NOT BARRED BY PROCEDURAL DEFAULTUNDER THE STATE'S OWN THEORY__________________________
The state now appears to abandon its prior argument that 

there are no lesser included offenses to capital-robbery-murder.1 
Instead, it argues that petitioner was not entitled to lesser- 
offense instructions either because he did not frame his request 
properly or because he did not take the stand to produce evidence 
in support of his theory on the lesser included offenses. 
Alternatively, the state argues that the issue is barred by a 
procedural default never invoked by the Mississippi Supreme 
Court.

1 The state claims that, in Bell v. Watkins. 692 F.2d 999 
(5th Cir. 1982) , it never argued that there were no lesser 
included offenses to capital-robbery-murder. State's Brief at 7. 
We cannot speak to the state's arguments before this court in 
Bell. What is important, however, is that the opening pages of 
the state's brief abandon the position that the state has 
previously argued in the present case. On the last appeal, the 
state argued that: "Mississippi has no statutory provision for 
degrees of murder, and capital murder is the only charge with 
which petitioner could have been charged." Brief for the State in 
Reddix v. Thigpen. No. 83-4068 at 38 (May 6, 1983) . Similarly, on 
remand from this court's decision, the state cited to the 
district court that passage in Bell v. Watkins. 692 F.2d at 1004- 
1005, in which the panel noted that: "In Mississippi, no murder 
committed during the course of a robbery can be simple murder." 
Id. (emphasis in original); See State's Memorandum Regarding 
Proceedings on Remand at 3-4 (October 9, 1985).

Perhaps as an unintended carry-over of its earlier position, 
the state's brief continues to reflect some confusion on this 
point. At page 9, it argues that: "Further the indictment under 
which appellant was tried does not support the theory of felony 
manslaughter or felony murder less than capital. Neither of these 
are lesser included offenses of capital murder as a matter of 
law." Id. This not only contradicts its opening concession, but 
also the opinion of the Mississippi Supreme Court quoted by the 
state on the immediately preceding page: "Murder and manslaughter 
may be lesser included offenses of capital murder...." Cannadav 
v. State. 455 So.2d 713, 725 (Miss. 1984)(quoted in State's Brief 
at 8) .



In the sections that follow, we first show the fallacies in 
the state's arguments concerning the availability of petitioner's 
requested charges on the lessers as a matter of Mississippi law. 
We then show that, under the state's explanantion of the 
Mississippi Supreme Court's practice, that court's silent 
dismissal of petitioner's 1981 coram nobis petition was not and 
could not have been an invocation of procedural default.

A. Petitioner Was Entitled to Instructions on 
the Lesser Included Offenses
The thrust of the state's argument is that if one 

believes all of its evidence together with the inferences the 
state draws from that evidence, then the only conclusion a 
rational jury could draw is that petitioner is guilty of planning 
and participating in the robbery-murder of Arthur Weinberger. To 
this end, it marshals its factual arguments, much as one would 
present them to a jury. State's Brief at 11-12. It also argues 
that in order to put his theory before the jury, petitioner 
should have taken the stand. Id. at 9-10. But this logic is 
precisely what a unanimous Mississippi Supreme Court repudiated 
in Fairchild v. State. 459 So.2d 793 (Miss. 1984).2

2 The state's brief ignores entirely the Mississippi Supreme 
Court's opinion in Fairchild except on a collateral point that 
the Fairchild court did not address: whether robbery is a lesser 
included offense to robbery-murder. See State's Brief at 8. The 
state seems to imply that Fairchild is not controlling because it 
is not an en banc decision of the Mississippi Supreme Court. If 
that is the state's argument, it is plainly wrong. Although 
Fairchild was argued to a panel of the state supreme court, see 
459 So.2d at 795, all nine Justices of the court concurred in the opinion. Id. at 802.

2



Fairchild rejected the state's "logic [that] requires the 
determination that the proof offered by the State where not 
substantially contradicted must perforce be believed by the jury 
and so acted upon in their verdict." 459 So.2d at 800. To the 
contrary, "the ... instruction should have been granted because 
all that was necessary for the jury to find [the defendant] 
guilty of [the lesser included offense of] murder was that it 
disbelieve or find unconvincing a part of the State's proof." Id. 
at 802. The only time a defendant must offer evidence to support 
a requested charge on a lesser is when that charge asks the jury 
to make an affirmative finding? this would be true in a case in 
which the lesser is premised on a finding of excuse, such as heat 
of passion. Id. at 802.3

This analysis is not affected by the fact that the state's 
evidence was based primarily on petitioner's contested 
confession. For in Polk v. State. 417 So.2d 930 (Miss. 1982), the 
state's evidence of the capital-murder of a peace officer 
included the defendant's statement to his son "that ... he shot 
the constable and intended to do so." Id. at 932. Nevertheless,

3 As the court explained in Fairchild:
The point is made another way. If the trial court 

had given a simple murder instruction, and if the jury 
had then returned a verdict that [the defendant] was 
guilty of simple murder, the State could hardly argue 
that evidence did not support such a conviction. In 
such an event, on appellate review, we would clearly 
have had to affirm on the sufficiency of the evidence 
issue. Because this is so, it follows that the simple 
murder instruction should have been given.

459 So.2d at 801.
3



the Mississippi Supreme Court approved the charges on the lesser 
included offenses, concluding that "it was for the jury to 
resolve the issue of whether the defendant was guilty of murder, 
manslaughter, or no crime." Id. at 931. Similarly, it was not 
necessary for petitioner to take the stand; Mr. Fairchild did not 
testify, but that did not affect the availability of an 
instruction on the lesser included offense of simple murder. 
Fairchild. 459 So.2d at 802.

Thus, petitioner was entitled to a charge on any of the 
lessers if supported by some subpart of the state's evidence. 
When viewed in these terms, it is clear that the state trial 
court erred in denying the requested charges. The jury could have 
disbelieved the state's evidence about the value of the materials 
stolen or it could have disbelieved the•evidence concerning the 
forcing open of the register drawer. It was not required under 
Mississippi law to find robbery simply because a taking followed 
a use of force. Fortenberry v. State. 1 So.2d 585, 588 (Miss. 
1941) ("no premeditated thought of robbery"). Because, for 
example, it could have inferred from petitioner's solicitude for 
the injured victim that he had no preformed plan either to kill 
or to use force, a rational jury could have decided that 
petitioner was responsible only for theft, not robbery. In this 
way, our case is exactly like Fairchild, which on similar facts 
required an instruction on the lesser included offense of simple 
murder.

4



Given the broad range of theories supported by the 
evidence,4 the jury could have concluded that petitioner was 
guilty of the misdemeanor of shoplifting,5 the felonies of 
shoplifting or larceny,6 or that of robbery. It then could have

4 The state purports to find in the record a concession by 
trial counsel that the requested intructions on the lessers were 
not supported by the evidence. State's Brief at 10. It 
successfully pressed this position before Judge Cox, who adopted 
it in his opinion. Judge Russell accepted it in turn when he adopted Judge Cox's opinion verbatim.

The actual comment, however, cannot bear as much weight as 
the state suggests. It accompanies counsel's withdrawal of 
proposed Instruction 5, and is addressed to that instruction. 
Although the withdrawn instruction is not part of the record, it 
apparently "looks like a form instruction on the failure to find 
beyond a reasonable doubt...." Tr. 751. The very fact that the 
defense did not withdraw instructions 1-4 when it withdrew number 
5 suggests that the defense believed that instructions 1-4, 
unlike number 5, were supported by the evidence.

5 The state suggests that petitioner's shoplifting 
instructions were properly rejected because they were legally 
incorrect. This argument is premised on the fact that the 
requested instructions were framed in terms of the then recently 
amended shoplifting statute. But the state is incorrect in its 
argument that "[h]ad petitioner been convicted under one of these 
instructions we would be here arguing an ex post facto question." 
State's Brief at 8. The only difference effected by the 1975 
statute that was material to the requested instruction was that 
the new law increased from $25 to $100 the dividing line between 
misdemeanor and felony shoplifting. The new statute maintained 
the penalties at precisely the same level, with one exception 
that would have been relevant only in the unlikely event that the 
court would have imposed a fine. Thus, the 1975 change "was 
ameliorative. It is axiomatic that for a law to be ex post facto 
it must be more onerous than the prior law." Dobbert v. Florida. 432 U.S. 282, 294 (1977).

6 Even if the state were correct and felony-shoplifting was 
the wrong charge, the trial court should simply have corrected 
the inartfully drawn instruction to charge larceny. There was no 
ex post facto "problem" there, so the requirement of Harper v. 
State, 478 So.2d 1017, 1022 (Miss. 1985), would apply.

5



orconvicted him of manslaughter, simple murder, robbery7 
capital-murder, respectively. The failure to give the lesser 
included offense instructions deprived the jury of these options 
and robbed its verdict of guilt of the reliability necessary to 
support a subsequent death sentence. Beck v. Alabama. 447 u.S. 
625 (1980) .

B. There Is No Procedural Default or Bar to 
Federal Habeas Review on this Issue, Even 
Under the State1s Own Theory
The state attacks the recent decision of this court 

that, during the period relevant to this case, the Mississippi 
courts had no clearly announced and regularly invoked procedural 
default rule entitled to respect as an independent and adequate

7 The state argues that the predicate offense of robbery is 
not a lesser included offense to robbery-murder. While we 
recognize that there are Mississippi cases that support this 
proposition, see State's Brief at 7, there is substantial 
inconsistency on this point. For, as this court noted in Gray v. 
Lucas, 677 F. 2d 1086 (5th Cir. 1982), capital defendants in 
Mississippi who have been charged with kidnapping-murder have 
obtained lesser included offense instructions on the crime of kidnapping. 677 F.2d at 1109.

The state's theory is that robbery is not a lesser included 
offense to robbery-murder because: "To have allowed the jury to 
convict petitioner of robbery we would have allowed them to 
convict him of a crime with which he was not charged." State's 
Brief at 7-8. The state's hollow concern for the defendant's 
rights would preserve the lesser right to inflict the greater 
harm. Clearly, by requesting the instruction on the lesser, the 
petitioner makes the sensible choice to waive the state right to 
indictment in favor of a procedure that is likely to produce a 
more reliable and less harsh verdict. If the question is "whether 
the defendant should be given a choice between having the benefit 
of the lesser included offense instruction or asserting the 
[right to notice by indictment] on the lesser included 
offense..., [then w]e think the better option is that the 
defendant be given the choice." Spaziano v. Florida. 468 U.S. 
___, 82 L.Ed.2d 340, 350 (1984).

6



state ground barring habeas review. Wheat v. Thicroen. ___ F.2d
___, No. 85-4590 (5th Cir. June 27, 1986). But the Wheat decision
is copiously documented in the Mississippi Supreme Court's
opinions and the Attorney General's own briefs. For example, in
Bell v. Watkins. 381 So.2d 118 (Miss. 1980) , and In re Jordan.
390 So.2d 584 (Miss. 1980), the Mississippi court considered on
the merits in coram nobis various issues that had not been
properly preserved at trial or raised on direct appeal.
Accordingly, in Edwards v, Thicroen. 433 So.2d 906 (Miss. 1983),
the Attorney General could and did ask that court to change its
practice of considering all claims on the merits regardless of
their procedural posture. Wheat, Slip op. at 6875-78 & n. 5.

Although Wheat is thus plainly correct, the court need not
reach this question to provide relief to Mr. Reddix. For under
the state's own version of Mississippi practice prior to 1983, it
is uncontrovertibly clear that no procedural bar was invoked by
the Mississippi court in this case.

The state's version of Mississippi practice during this
period is that there was a procedural default rule regularly in
effect, but that it was not invoked in those cases in which it
was not pressed by the Mississippi Attorney General in his
briefs. On this basis, it argues that Bell and Jordan

stand for nothing, but the fact that the state 
foolishly ignored to raise the bars available to them.
The state court did as this Court does on most 
occasions, decided the case on the questions and 
theories of law presented to it by the parties.

State's Brief at 14.

7



If this is true, then the silent dismissal of Mr. Reddix's 
coram nobis petition could not have been premised on procedural 
default, as the state now asserts on authority of Kincr v. 
Thicroen. 441 So.2d 1365 (Miss. 1983).8 For in its brief to the 
Mississippi Supreme Court on Reddix's coram nobis petition (a 
copy of which is attached as an appendix to this brief) , the 
state did not invoke procedural default on any of the claims it 
now asserts are barred. Rather, the state's brief addressed each 
of these claims on the merits. State's Response to Application 
for Leave to File a Petition for Writ of Error Coram Nobis at 2- 
6. Thus, exactly as in Bell and Jordan. "[t]he state court ... 
decided the case on the questions and theories of law presented 
to it by the parties...," State's Brief at 14 —  that is, on the 
merits. That "the prosecution never argued to any state court 
that a procedural default had occurred ... surely suggests that

8 King was decided after the Mississippi Supreme Court 
began, in 1983, the regular invocation of procedural default for 
claims not raised at trial or pressed on direct appeal.' See 
Wheat. Slip op. at 6876. Thus, King has no relevance to a 
determination of the meaning of a summary rejection of a coram 
nobis petition that, as in this case, occurred at a time when the 
state court's practice was to consider all claims on the merits 
regardless of their procedural posture.

That King bears no relevance to the silent dismissal of 
Reddix's coram nobis petition in 1981 is confirmed by the fact 
that King pegs its standard to this court's decision in Preston 
v. Maggio. 705 F.2d 113 (5th Cir. 1983), decided long afterward. 
It is one thing for a court to say "this is what we've been doing 
all along," it is quite another to articulate that the practice 
in 1981 was dictated by a decision not then rendered. To the 
contrary, the Mississippi Supreme Court's invocation of Preston 
v. Maggio in King suggests that the court was reformulating its 
practice vis-a-vis silent dismissals to conform with its new 
practice of invoking procedural default.

8



the [state] courts were not thinking in procedural terms when 
they decided the issue." Ulster County Court v. Allen. 442 U.S. 
140, 152 (1979).9

Thus, under either theory, petitioner's Beck claim is not 
barred from habeas review. If, as we believe, Wheat is correct, 
then there was no regular procedural bar in effect in 1981 that 
would prevent habeas review on the merits. If the state is 
correct, then the Mississippi Supreme Court did not invoke 
procedural default on Mr. Reddix's claims because it was not 
asked to. In either event, the state court did not invoke 
procedural default and Mr. Reddix's claims are properly before 
this court on their merits.
II. THE STATE'S CONCESSION ESTABLISHES THAT, UNDER THE 

GOVERNING CONSTITUTIONAL STANDARDS, THE CHARGE ON THE 
PREDICATE FELONY OF ROBBERY VIOLATED DUE PROCESS
The state now abandons the argument that it has made at

least since the coram nobis petition in this case and concedes
that intent is an element of the predicate offense of robbery.
Compare State's Brief at 16 with State's Response to Application
for Leave to File a Petition for Writ of Error Coram Nobis at 6.
Thus, it is plain that Judge Russell's adoption of Judge Cox's
opinion on this point is flatly wrong.

9 What accounts for the Mississippi Supreme Court's silent 
disposition in Reddix, as opposed to its full opinions in Bell 
and Jordan, is net the subsequent explanation suggested by Kina 
but rather "theories of law presented to it by the parties." 
State's Brief at 14. For in the conclusion of its brief, the 
state argued that the coram nobis petition should simply be 
denied because it did not present issues "of sufficient gravity 
with respect to guilt or innocence [or sentence]" to warrant 
post-conviction consideration. State's Response at 20.

9



The state similarly recognizes, as it must, that the
instruction given the jury does not separately include this
crucial element of the underlying offense. Its sole submission on
this point is that, as a matter of state law, the words "to rob"
mean "with intent." According to the Mississippi Supreme Court:

The word "rob" or "robbery" has a well-defined meaning 
and imports an intent to steal. Robbery is the 
feloniously [sic] taking of the property of another 
from his presence, against his will, by means of force 
or violence, or by putting him in fear,- and since the 
instruction here involved authorized the conviction 
only upon evidence from which the jury believed, beyond 
a reasonable doubt, that the appellant feloniously and 
violently did rob ... the failure to otherwise state 
the intent necessary to constitute the crime charged 
was not erroneous.

Eakens v. State. 289 So.2d 687, 689 (Miss. 1974)(quoting Bavaents 
v. State. 154 Miss. 36, 39, 122 So. 187, 188 (1929)).

This, however, concedes constitutional error. "[F]or whether 
a defendant has been accorded his constitutional rights depends 
upon the way in which a reasonable juror could have interpreted 
the instruction." Sandstrom v. Montana. 442 U.S. 510, 514 (1979);
accord Francis v. Franklin. 471 U.S. ___, 85 L.Ed.2d 344, 354
(1985). The constitutional standard is not whether as a matter of 
state law the words "to rob" have encoded within them the further 
specification of "with intent." Judges and lawyers may know that 
—  although the state's lawyers and two federal district judges 
appear previously to have missed the point in this very case—  
but most lay jurors will not. This is so, Eakens notwithstanding: 
"The Supreme Court of [Mississippi] is, of course, the final 
authority on the legal [meaning] to be given a[n element of an

10



offense] under [Mississippi] law, but it is not the final 
authority on the interpretation which a jury could have given the 
instruction." Sandstrom. 442 U.S. at 516-17.

The state makes an alternative argument of procedural 
default. But it did not invoke procedural default on this issue 
in the state courts. No court, state or federal, has ever 
suggested or relied on a procedural default to bar consideration 
of this claim on the merits. For the same reasons there is no 
procedural bar to the consideration of the Beck claim, this claim 
is available for habeas review and requires reversal.

III. PETITIONER IS SEPARATELY ENTITLED TO INDEPENDENT 
FEDERAL CONSIDERATION OF HIS CONFESSION CLAIM AND TO A FEDERAL EVIDENTIARY HEARING_____________________
The state's brief first conflates petitioner's separate

arguments under Miller v. Fenton. 474 U.S. _, 88 L.Ed.2d 405
(1986), and Townsend v. Sain. 372 U.S. 293 (1963), and then
purports to show why they should be separate. We agree on that
much. Nevertheless, the state's discussion of the application of
these decisions to this case is wrong. We consider each point
separately, as we did in the opening brief.

(1) The state's discussion of the law is correct insofar as
it states that a presumption of correctness ordinarily attaches
only to the state court findings of subsidiary, historical facts
and not to its determination of the issue of voluntariness.
Miller, 88 L.Ed.2d at 415; see West v. Louisiana. 478 F.2d 1026,
1032 (5th Cir. 1973), adhered to on rehearing. 510 F.2d 363 (5th
Cir. 1975)(en banc).

11



The state misses two points, however. First, Miller speaks 
directly to the relationship between the state court's findings 
of historical facts and the federal court's independent review of 
the ultimate question:

[0]nce such underlying factual issues have been 
resolved, and the moment comes for determining whether, 
under the totality of the circumstances, the confession 
was obtained in a manner consistent with the 
Constitution, the state-court judge is not in an 
appreciably better position than the federal habeas 
court to make that determination.

88 L.Ed.2d at 415.
Second, the state misses the import of Miller with regard to

the dual nature of the independent federal inquiry that is
required. "Voluntariness" is not a single inquiry into the
defendant's state of mind; rather,

the admissibility of a confession turns as much on 
whether the techniques for extracting the statements, 
as applied to this suspect, are compatible with a 
system that presumes innocence and assures that a 
conviction will not be secured by inquisitorial means 
as on whether the defendant's will was in factoverborne.

Miller, 88 L.Ed.2d at 414-15 (emphasis in original). The duty of 
independent federal review applies to both questions of
voluntariness. Id. at 411.

In resting its decision on a presumption that the state 
court finding of "voluntariness" was correct, the district court 
failed its duty to consider independently either aspect of the 
ultimate question. It did not consider whether Reddix's will in
fact was overborne; it did not consider whether Tichell's tactics
"either in isolation or as applied to the unique characteristics

12



of a particular suspect," fell "within the broad constitutional 
boundaries imposed by the Fourteenth Amendment's guarantee of 
fundamental fairness." Miller. 88 L.Ed.2d at 410. Instead, it 
deferred to the state court "finding" and simply added that the 
proffered evidence did not disturb a finding that Reddix 
understood the Miranda warnings. Neither of these rulings satisfy 
Miller's concern for the "hybrid quality of the voluntariness 
inquiry, subsuming as it does a 'complex of values....'" 88 
L.Ed.2d at 414 (quoting Blackburn v. Alabama. 361 U.S. 199, 207 
(1960)).

The state's reliance on LaVallee v. Delle Rose. 410 U.S. 690 
(1973), is thus misplaced. LaVallee was a case in which the sole 
issue relating to voluntariness was one of historical fact. Delle 
Rose claimed that the confession was coerced by relentless 
questioning and police misconduct; the police denied it and in 
fact relied on Delle Rose's own testimony "that the police had 
treated him 'nice.'" 410 U.S. at 693-94. In that context, the 
real question was whom to believe, and the state court's ruling 
could fairly be understood to have resolved that issue.

Here, in contrast, the court is presented with a factual 
situation that is substantially like that the Miller Court 
returned to the lower courts for independent federal 
evaluation.10 The Mississippi courts recognized "that appellant

10 In this regard, the ruling of the Third Circuit "that it 
'would reach the same result' even were it to give the issue 
plenary consideration...," Miller. 88 L.Ed.2d at 416 (quoting 741 
F.2d 1456, 1467 (3rd Cir. 1984)), is legally indistinguishable 
from the district court's unexamined and unexplained deference to the state court "finding" of "voluntariness."

13



was concerned about [his brother] J.D. and what might happen to 
him..." and viewed the central issue as whether "this earnest 
concern was used by the officers to overreach him and lead him to 
an involuntary confession...." Reddix v. State. 381 So.2d 999, 
1006 (Miss. 1980) . It said not. This is precisely the kind of 
"voluntariness" question —  "whether the techniques for 
extracting the statements, as applied to this suspect, are 
campatible with a system that presumes innocence and assures that 
a conviction will not be secured by inquisitorial means" —  that 
Miller reserves to the federal courts.

(2) On the separate issue of the Townsend hearing, the 
relevant questions are whether the additional information is 
material and whether petitioner is guilty of deliberate bypass or 
inexcusable neglect in failing to present the testimony to the 
state courts.

No one disputes the materiality of Dr. Davis's affidavit—  
although the district court and the state both miss its 
significance. The court below thought the testimony relevant only 
to the question whether Reddix understood the Miranda warnings; 
the state thinks it relevant only to Reddix's "competency to give 
a confession." State's Brief at 23. Of course, both of these 
characterizations are crabbed. Both fail to consider the proper 
scope of the voluntariness inquiry, which requires evaluation of 
"interrogation techniques, either in isolation or as applied to 
the unique characteristics of a particular suspect...." Miller. 
88 L.Ed.2d at 410.

14



The only real question here is whether the petitioner him­
self committed a deliberate bypass, as measured by the Johnson v. 
Zerbst, 304 U.S. 458, 464 (1938), and Fav v. Noia. 372 U.S. 391, 
439 (1963) , standards of "intentional relinquishment or abandon­
ment of a known right or privilege." See Townsend. 372 U.S. at 
317; Guice v. Fortenberry. 661 F.2d 496, 507 & n. 25 (5th Cir. 
1981)(en banc).11 The state does not join issue on this point. 
Rather, it purports to find a "waiver" by original trial counsel 
on the issue of "competency to give a confession."

The state relies on a colloquy at petitioner's second trial 
in which the trial judge obtained an assurance from counsel "that 
the capacity of the accused to commit the crime or to assist in 
his own defense is not an issue in this trial." Tr. 164 (quoted 
in State's Brief at 24). On the basis of this "affirmative 
statement" alone, the state concludes that "there was a 
deliberate bypass by counsel to present and develop testimony 
regarding petitioner's ability to understand his Miranda rights." 
State's Brief at 24-25.

Aside from the underlying legal error of the state's 
position that we look to counsel's actions, there are both

11 The full expression in Fav that was adopted in Townsend 
is: "If an applicant, after consultation with competent counsel 
or otherwise, understandingly and knowingly forwent the privilege 
of seeking to vindicate his federal claims in state courts, 
whether for strategic, tactical, or any other reasons that can 
fairly be described as the deliberate by-passing of state 
procedures, then it is open to the federal court on habeas to 
deny him ... relief... —  though of course only after the federal 
court has satisfied itself, by holding a hearing or by some other 
means, of the facts bearing upon the applicant's default." Fay. 
372 U.S. at 439. This, of course, was not the standard applied by the district court.

15



fundamental analytic and temporal flaws in premising a deliberate 
bypass on this colloquy. Analytically, competence to stand trial 
and assist in one's defense is not the same question, factually 
or legally, as the question of a defendant's mental state as it 
bears upon the involuntariness of his confession: "The notion of 
'voluntariness' is itself an amphibian. It purports at once to 
describe an internal psychic state and to characterize that state 
for legal purposes." Culombe v. Connecticut. 367 U.S. 568, 650 
(1961)(opinion of Frankfurter, J.)(quoted with approval in 
Miller. 88 L.Ed.2d at 415).

Temporally, the colloquy is too distant in time to be of any 
relevance whatsoever to the confession issue. The confession was 
made in December 1974; petitioner's retrial from which the 
colloquy is quoted occurred three years later in December 1977. 
Clearly, a statement that there is no issue regarding 
petitioner's competence in 1977 is not a statement that there was 
no such issue at the time of his confession three years earlier 
in 1974.

In sum, the district court separately erred on both points. 
It failed to provide an independent evaluation of the legal claim 
on the record as it stood and it failed to conduct a Townsend 
hearing as required by Rule 8, Rules Governing Section 2254 Cases 
in the United States District Courts.

16



IV. THIS COURT SHOULD NOT DISTURB ITS PRIOR JUDGMENT THAT 
PETITIONER IS ENTITLED TO A NEW SENTENCING HEARING 
BECAUSE NO STATE COURT OR JURY MADE ANY FINDING THAT 
PETITIONER KILLED, ATTEMPTED TO KILL, OR INTENDED THAT A KILLING TAKE PLACE____________’ ____________ _
Finally, the state makes the sweeping assertion that: "This

Court ... has the inherent power to correct its o[w]n error when
the case is still pending before it." State's Brief at 27. On
this basis, it asks this court to modify its judgment and mandate
from the first appeal, which it variously describes as
"erroneous[]", "in error", and "incorrect." Id. at 4, 27.
Neither assertion is true; this court should decline the state's
improper invitation.

First, it is important to note the procedural history of the 
claim the state asks this court to redetermine. Having lost in 
this court its argument that the Mississippi Supreme Court 
supplied the necessary finding under Enmund v. Florida. 458 U.S. 
782 (1982) —  Reddix v. Thicroen. 728 F.2d 705, 709-11 (5th Cir.), 
on rehearing, 732 F.2d 494, 495 (5th Cir. 1984) —  the state
sought review in the United States Supreme Court.12 The Supreme 
Court denied review, although it later took Bullock's case which 
presented the Enmund issue on a different factual and procedural
record. Cabana v. Bullock. 474 U.S. ___, 88 L.Ed.2d 704 (1986).
The mandate issued to the district court which, after determining 
Reddix's other issues, entered judgment on the mandate.

12 It should be noted that, in its petition for a writ of 
certiorari, the state never once suggested the claim it now 
suggests in closing: that this court's opinion contained a
"finding" which would suffice under Enmund.

17



The state then sought to reopen the question by way of a
motion under F.R.C.P. 60(b). It failed, however, properly to
invoke the district court's jurisdiction. When its motion was
denied on that ground, it failed to file a timely notice of
appeal. Now it asks the court to reopen its prior judgment and
undo its mandate without reference to the governing standards.

It is not true that an appellate court has inherent power to
reopen its judgments to correct a mere error, if one exists.
Rather, for generations, judges have felt themselves bound by

[t]he 'law of the case' doctrine . . . [which] operates 
to preclude a reexamination of issues of law decided on 
appeal. . . either by the district court on remand or
by the appellate court in a subsequent appeal . . . .
It is a restriction self-imposed on the courts to 
further the interests of judicial efficiency, and is 
based on the policy that issues once decided should remain so.

Chapman v . NASA, 736 F.2d 238, 241 (5th Cir. 1984) (citing Conwav 
v. Chemical Leaman Tank Lines. Inc.. 644 F.2d 1059, 1061-62 (5th 
Cir. 1981), and Lehrman v. Gulf Oil Coro.. 500 F.2d 659, 662-63
(5th Cir. 1974)).13 This doctrine of finality and repose applies 
in habeas, as elsewhere. Westbrook v. Zant. 743 F.2d 764 (11th
Cir. 1984).

It is an every-day fact of life which occurs often in 
litigation that a party is involved in parallel litigation and 
does better in one case than the other. Ordinary principles of 
finality do not allow that litigant to seize upon the more

13 The value of finality is substantial: "The labor of 
judges would be increased almost to the breaking point if every 
past decision could be reopened in every case . . . ." b . 
Cardozo, THE NATURE OF THE JUDICIAL PROCESS 149 (1921).

18



auspicious outcome in a second case to go back and reopen the 
judgment in a prior case. Chicot Countv Drainage District v. 
Baxter State Bank. 308 U.S. 371 (1940); Ackerman v. United 
States. 340 U.S. 193 (1950).14 In Ackerman. the Supreme Court 
held that a defendant could not do what the state attempted here: 
use Rule 60(b) to reopen a proceeding on the ground that a later 
decision provided a more favorable result. There, the codefendant 
in the same case had appealed the adverse judgment and obtained a 
reversal and dismissal. Here, in an unrelated case on a 
different record presenting different facts, the state appealed 
and lost. On the basis of that separate proceeding, it now asks 
this court to reopen its judgment and undo its mandate. As the 
Supreme Court has observed in the related context of res 
judicata,

it is hard to see the grave injustice which 
would be done by the application of accepted 
principles of [finality].... "Simple justice" 
is achieved when a complex body of law 
developed over a period of years is even- 
handedly applied. The doctrine . . . serves 
vital public interests beyond any individual 
... ad hoc determination of the equities in a particular case. ... This Court has long 
recognized that "[p]ublic policy dictates 
that there be an end of litigation; that 
those who have contested an issue shall be 
bound by the result of the contest, and that

14 See also United States v. Moser. 266 U.S. 236, 242 
(1924) ("A determination in respect of the status of an 
individual, upon which his right ... depends, is as conclusive as 
a decision upon any other matter."). In Moser, the Court held 
that the decision of the Court of Claims in Moser's first suit 
controlled, even though an intervening decision of the Court of 
Claims had overruled that first decision on the precise question at issue.

19



matters once tried shall be considered 
forever settled as between the parties."
Baldwin v. Iowa State Travelling Men's Assn..
283 U.S. 522, 525 (1931).

Federated Department Stores. Inc, v. Moitie. 452 U.S. 394, 401
(1981).

"Once a case has been decided on appeal, the rule adopted is 
to be applied, right or wrong, absent exceptional circumstances." 
Schwartz v. NMS Industries, Inc. . 575 F.2d 553, 554 (5th Cir.
1978) . The doctrine has three exceptions: "when (1) a
subsequent trial produces substantially different evidence, (2) 
controlling authority has made a contrary decision of the law 
applicable to the issues, or (3) the prior decision was clearly 
erroneous and would work an injustice." Todd Shipyards Coro, v. 
Auto Transportation. S.A. , 763 F.2d 745, 752 n. 14 (5th Cir.
1985) (citing Morrow v. Dillard. 580 F.2d 1284, 1292 (5th Cir.
1978), and White v. Murtha. 377 F.2d 428, 432 (5th Cir. 1967)).

Analysis under these standards compels rejection of the 
state's position. First, there is no new evidence to justify 
reconsideration. Second, the Supreme Court's decision in Bullock 
did not posit a legal standard different than that applied by 
this court on the last appeal. Just the opposite is true:
Bullock affirms that Reddix's death sentence was properly vacated 
and differs only slightly about how the relief ordinarily should 
be framed.

Contrary to the state's assertions that this court reversed 
Reddix's death sentence solely on the grounds that the jury did 
not make proper findings under Enmund, this court applied the 
proper standards under Bullock. In its opinion on rehearing, this

20



court made clear that the Mississippi "supreme court . . . made
no specific finding that Reddix had a personal intent to kill." 
Reddix, 732 F- 2d at 495. Thus, this court anticipated the 
Supreme Court's ruling in Bullock that the habeas court should 
"examine the entire course of the state-court proceedings against 
the defendant in order to determine whether, at some point in the 
process, the requisite factual finding as to the defendant's 
culpability has been made." Bullock. 88 L.Ed.2d at 717.

While Bullock did change the remedy ordinarily available to 
a habeas petitioner from that which was accorded Reddix, it is 
not a contrary decision of the controlling law within the meaning 
of the doctrine of law of the case.15 Nor does it follow either 
that the judgment providing Reddix a new sentencing hearing is 
legally incorrect or that it "would work an injustice" under the 
third exception to the doctrine of the law of the case. Bullock 
recognized that "[t]here might be instances . . .  in which . . . 
appellate factfinding procedures were not 'adequate,'" as when "a 
given case turn[s] on credibility determinations that could not 
be accurately made by an appellate court on a paper record." 
Bullock. 88 L.Ed.2d at 718 n. 5.

This case turns on an even more fundamental failing: that 
the factual record in the state court is inadequately developed 
to yield "a reliable determination as to whether he is subject to 
a death penalty" under Enmund. Bullock. 88 L.Ed.2d at 720; see

15 It does not suffice if the new decision reflects a 
different constitutional theory or modifies the permissible scope 
of remedy; in that case it "is not a contrary decision of the law 
applicable to the issue herein raised." Morrow v. Dillard. 580 F.2d at 1292, 1294 (emphasis in original).

21



also Illinois v. Gates. 462 U.S. 213, 221-22 (1983); Singleton v. 
Wulff. 428 U.S. 106, 120-21 (1976); Cardinale v. Louisiana. 394 
U.S. 437, 439 (1969) . This is not a case in which, despite the 
ambiguous instructions, "the theory on which the case was tried 
and the evidence received leave no doubt ... that the defendant 
killed or intended to kill." 88 L.Ed.2d at 718 n. 5. This case 
was tried as if intent was simply irrelevant. Reddix. 728 F.2d 
at 710. As a result, there were numerous factual questions going 
to intent that were raised either by the evidence or the absence 
of pertinent evidence. For example, Reddix's actions after 
Jones's assault on the victim were inconsistent with an intent to 
kill. See Reddix. 728 F.2d at 711 n.6. There was evidence that 
Reddix and Jones had a "plan" but no evidence what that plan was. 
Id.; Tr. 721. And it was unclear whether Larry Jones, who 
actually committed the murder, was armed or had deliberately left 
the gun behind.16

For all these reasons, the question of intent was left open 
at trial, and is still very much in doubt. "In Reddix's case, 
however, involving three perpetrators, nothing that transpired at 
trial and nothing in the instructions given at his sentencing 
hearing clarifies the confusion left by the jury instructions . .
. . " Reddix. 728 F.2d at 710. Accordingly, a judgment that sends 
this case back for a new sentencing hearing is not "a manifest

16 We will not repeat the explanation of the 
state's error regarding "the gun." It is debunked in footnote 9 
of our opening brief. Reddix's actual confession as transcribed 
by Officer Tichell simply fails to reveal whether the reference 
was to "the gun . . . that Larry had" or whether it was a 
statement "that Larry had just the Stilson wrench . . . ," 
indicating that a gun had deliberately been left behind.

22



injustice." White v. Murtha. 377 F.2d at 432. Indeed, it is 
entirely appropriate to the posture of the case.

Finally, the state’s invitation to construct from this
court's prior opinion a facual finding that suffices under
Enmund and Bullock should be declined.17 This court expressed
itself in a manner that was both clear and legally correct: It
held only that a reasonable jury might have found intent.

[W]e do not hold that the evidence adduced at trial is 
insufficient for a reasonable iurv to conclude that 
Reddix had a personal criminal intent justifying the 
imposition of the death penalty. We hold only that 
because of the jury instructions, we cannot ascertain 
what the jury actually concluded from the evidence.

Reddix, 728 F.2d at 710 (emphasis added) . It defies logic to
suggest that a legal ruling that there was enough evidence from
which a jury might have found a fact can be metamorphosed into a
finding by the reviewing court of the disputed fact itself.

17 The state's premise that it would be appropriate merely to affirm a death sentence on the basis of a finding made by a 
federal court is directly contrary to the explicit holding in 
Bullock. Twice, the Supreme Court specifically held that the 
federal court should not make such findings, both as a matter of 
comity to the state and fairness to the defendant. "[W]e hold 
that the state courts should be given the opportunity to address 
the matter in the first instance." 88 L.Ed.2d at 714 n. 1. 
"[I]t is Mississippi, therefore, and not the federal habeas 
corpus court, which should first provide [the defendant] with 
that which he has not yet had and to which he is constitutionally 
entitled —  a reliable determination as to whether he is subject 
to the death penalty as one who has killed, attempted to kill, or 
intended that a killing take place or that lethal force be used." Id. at 720.

23



CONCLUSION
For the foregoing reasons, the judgment of the district 

court that granted the writ as to sentence pursuant to this 
court's mandate must be affirmed and the judgment of the district 
court denying habeas relief as to guilt or innocence should be 
reversed.

Respectfully submitted,

CHARLES H. RAMBERG 
P. 0. Box 1428 
Jackson, Miss. 39205 
(601) 948-0242

STEVEN L. WINTER
University of Miami School of Law P.O. Box 248087
Coral Gables, Florida 33124-8087 (305) 284-2392

COUNSEL FOR PETITIONER-APPELLANT

24



CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing reply brief 

for petitioner-appellant was served on opposing counsel by 
depositing same in the United States Mail, first class postage 
prepaid, addressed as follows:

Marvin L. White, Jr.
Assistant Attorney General
P.0. Box 220
Jackson, Mississippi 39205-0220 

This & day of July, 1986.
Respectfully submitted,

APPEEEftfTT

25



APPENDIX
State's Response to Application for Leave to 
File a Petition for Writ of Error Coram Nobis 
in Reddix v. State. No. 50,999 (Miss. 1981)

26



IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI 

SEPTEMBER 1980 TERM'

WILLIE N. REDDIX,

Petitioner
v.

JOHN C. WATKINS, Commissioner
Smvi"MGET-"PSra"’t °'
»t.te p“ S L a “ f!?'

)
)1 NO. 50,999

Respondent s .

RESPONSE TO APPLICATION FOR LEAVE TO 
FILE A PETITION FOR WRIT OF 

---------- ERROR CORAM NOBIS

COMES NOW, respondents, through counsel, and file this resp 
in the above stvled response
f,ct., to „it “  ’" a • * »  -

I.
Respondents aqree wi t-h +-u

history of th' statement of the pleadings and- o r y this „ , e contained in paragraphs p
tion filed in y 3 ot the Peti-
th 0336 thS SXCePti0n °f allegations as totne respondents in this case no • °

-  « .  oe,potto. R.,po„do„t5 ZlZ ^  ̂ ‘

"  P.ppgp.pt to ot too petition and „U 1  sho„ „hy ZZZu"̂  
paragraphs. Y " folI°wing

V  The plead
Thigpin isln^ L rnetiynC°hrere^ i s Sstyled ln this case as Morris 
Correotions and Eddie Lucases Apartment of“
State Penitentiary. s presently the Warden of the

- 1 -



II.
The allegations concerning the admission into evidence of 

petitioner’s confession contained in paragraphs 11(a) to 11(g) 
of the petition were fully decided adversely petitioner's posi­
tion, asserted here, by this Court in the original decision on 
direct appeal. See: 381 So.2d at 1005-1007. Respondents sub­
mit the Court's decision as explained in the opinion is correct

III.
The allegations concerning the wrench and the statements 

connected therewith contained in paragraphs 12(a) to 12(g) and 
paragraphs 13(a) and (b) of the petition were fully disposed of 
in the decision of this case on direct appeal. See: 381 So.2d
at 1008-1009. The Court's reasoning was correct on this issue.

IV.
Petitioner alleges in paragraphs 14(a) to 14(d) that the 

trial court erred in refusing instructions on the lesser in­
cluded offenses of "misdemeanor/manslaughter and non-capital 
felony murder" in contravention of the teachings of Beck v.
Alabama, ___U.S.___, 65 L.Ed.2d 392, 100 S.Ct. 2382 (1980).
Respondents would submit that there was no evidence adduced by 
the State remotely suggesting that the purpose for which peti­
tioner and Larry Jones entered Arthur Weinberger's store on the 
day of the murder was anything other than robbery. Petitioner 
did not take the stand or offer evidence to the jury to refute 
the evidence of the State. In fact this Court stated in the 
Redd i:< opinion:

- 2 -



He and Jones, his accomplice had a

^  S 5 J S . . - T £

: “ i «  S V ? . ” 1 “ 3  f f i , 1 S t l S . .
is no qho fruits ye shaH  know them." There

s s s ? i

a s  i f aa ? S u a J t J S a r , hb l -d 9 e 0 n in g  th e  v i c t i m
him while L s  head wasyh1Cally restrained m s  nead was being crushed.

381 So.2d at 1011-1012.
Purth« cvidcc. that tfta inatrnotionii wer< n M  supported

by th. .vid.„=. co«s fro„ Petitioner's trf: cou„,.l. Tte £ol_
l0”‘n9 C°ll0,“y “ °k Pl“ » the instructions 6aing
considered. The record reads:

De fens e A ^  You A "  me make su«  "ow for the 
cerning Instruction^^ ann° ^ cement c°n-

andS iMlAngAome Amendments in * £  £ ” ^ on- 
you have an announcement on 5? 0ther' d°

aYpart of Whatever A s Cin°the°i V S actually
through 4 that you refused s i n ^ A ^ 1®"8 1 
been no other —  as it look- nf there have

H n J --jrr- , ■ - court refusing those intinJ
M s ,  t h a t  s i w jg _ g g _ g o u l d  ^ I t h d 7 ^ T T h ^ ~

t^ink it would con
— ;----------- ------- — — 11  wt= wo  Igtruction at this t H ^ " r  th 
fuse them more than anything.

that ̂instruction 'm I-jlAiscard" [°U£ ithdra«Number 5 for t-ho Card it then,
this time thK Defense 1S withdrawn. At 
anv objections toAnv" °PP°rtunity to note 
given by the State or t h e A o u r t ? ^ ^ 003

- 3 -



BY MR. HENRY: We would only go on the record
as objecting to the Court's refusal of 6 and 
7 and, of course, the first four instructions.
BY THE COURT: That's noted for the record, but
the fact that the Court refused those is suf­
ficient on your record on appeal.
BY MR. HENRY: Yes, I know, but it's come up
in several recent cases that it has to be - an 
objection has to be stated in the record why.
We would just state for the record that we 
think the Jury can deduce, even with the evidence 
as presented at this time, this being a felony 
murder case, based on the theory of felony murder, 
that this Defendant was only guilty of robbery.

(emphasis added) (R. 751-752)
There was no evidence in the record that the "plan" was to

shop lift. The evidence adduced before the jury was that the "plan"
was to rob Arthur Weinberger.

Petitioner engages in rank speculation when he offers versions 
of his intentions on the day he assisted Larry Jones murder Arthur 
Weinberger.

This Court said in Jackson v. State, 337 So.2d 1242 (Miss.
1976) :

We therefore hold that, when warranted 
by the evidence, the trial court may in­
struct the jury with reference to lesser 
included offenses. However, such an in­
struction should not be indiscriminately
or automatically qiven, as was condemnedin Roberts, supra, U.S. at , 96 S.Ct.at 3007, 49 L.Ed.2d at 982, but: should onlybe given after the trial court has carefully
considered the evidence and is of the opinion
that such an instruction is justified by the
evidence.

337 So.2d at 1255.
Jackson was cited favorably for this point by the United States 

Supreme Court for this proposition in footnote 10 of the Beck opinion 
65 L.£d.2d at 401. There being no evidnece to support the offered 
instructions on lesser included offenses, they were porperly refused.

- 4 -



V.
The allegations contained in paragraphs 15(a) and (b) con­

cerning the omission of the "crucial element of intent to rob 
the victim" is best put to rest by reference to Instruction S-l 

on page 812 of the record. The instruction reads:
The Court instructs the Jury that the 

killing of a human being without the authority 
of law by any means or in any manner shall be 
capital Murder when done with any design to 
effect death by any person engaged in the com­
mission of the crime of robbery. The Court 
therefore instructs the Jury that if you believe 
from the evidence in this case beyond a reasonable 
doubt, that the Defendant, Willie N. Reddix, in 
company with another person, in the Second Judi­
cial District of Harrison County, Mississippi, 
on or about the time and date charged and testi­
fied about, went to Art's Levi's in Biloxi,
Mississippi, and did then and there take the 
personal property of one Arthur Weinberger, to- 
wit: clothing and valuables from his business, 
and against his will by violence to his person, 
and did then and there rob the said Arthur 
Weinberger of said personal property, and while 
so engaged in this design, the said Willie N.
Reddix, acting in concert with another, struck 
the said Arthur Weinberger and killed him with 
an instrument, to-wit: a wrench, with the formed 
purpose to effect his death and as a result of 
said blows to the head, the said Arthur Weinberger 
died, arid said murder was without justification 
or in necessary self-defense, then the Jury shall 
find the Defendant guilty of Capital Murder.

(emphasis added) R. 812
The elements of robbery are set forth in the instructions, the 

intent to rob is included. Further this Court stated in In re Jordan, 

390 So.2d 584 (Miss.1980):
Although the indictment charged murder 

"while engaged in the commission" of kid­
napping and did not set forth any of the 
elements of such offense. Accordingly, a 
verdict of guilty of kidnapping would have 
been totally improper, and the argument 
under discussion lacks merit.

390 So.2d at 584.



Here the jury was instructed on the elements of robbery at both 
the guilt and sentencing phases of the trial. (R. 812, 814) 

Further there is no such element of robbery as "intent 
to rob." Robbery is defined in Section 97-3-79 Miss. Code Ann. 
(Supp.1980) as follows:

Every person who shall feloniously take 
or attempt to take from the person or from 
the presence the personal property of another 
and against his will by violence to his person 
or by putting such person in fear of immediate 
injury to his person by the exhibition of a 
deadly weapon shall be guilty of robbery.

These elements are set forth in the instructions. Petitioner's
claim is baseless.

VI.

The allegations in paragraphs 16A(1) to 16A(2)(b) concerning 
the lack of any finding by the jury of an intent to kill are clearly 
without merit. This question was presented to the Untied States 
Supreme Court on his petition for writ of certiorari. The petition 
was denied on November 10, 1980. Respondents will respond in a 
similar manner here.

Petitioner first claims there was no finding by the jury that 
he intended to take life making the sentence of death dispropor­
tionate to the crime and thus impermissible. Such a claim only serves 
to demonstrate the lack of knowledge petitioner has of Mississippi 
law.

Contrary to petitioner's assertions, the jury in his case made 
a finding of intent when it returned the verdict: Guilty of Capital
Murder. Under Miss. Code Ann. § 97-3-19(2) (e) (Supp. 1979), a jury 
can and has returned a guilty verdict without a finding of intent 
to kill, but not in petitioner's case. The indictment on which peti­
tioner was tried states in part:



That Willie N. Reddix, . . -did unlawfully, 
wilfully & feloniously, with malice afore- 
thouqht, kill and murder one Arthur Wein­
berger, a human being, while engaged in 
the commission of the crime of robbery upon 
him. . ..

(emphasis added) (R. 5)
Petitioner was tried under an indictment succinctly charging 

malice even though such was not an essential ingredient of the of­
fense charged. The State had the burden of proving its existence, 
and the jury was instructed in a manner requiring, as a prerequisite 
for a capital conviction, a finding that the killing was maliciously 
perpetrated. It was thus not possible for the jury to find peti­
tioner guilty of capital murder without also finding that he killed 
and murdered his victim maliciously.

We observe that the indictment at bar contains the phase 
". . . unlawfully, wilfully, & feloniously, with malice aforethought, 
kill and murder . [emphasis added]. The word "unlawfully"
means "in violation of law," Gilbert v. State, 198 Miss. 175, 21 So.
2d 914, 916 (1945), and connotes, in a homicide case, that the act 
was done without justification or excuse. "Wilfully" means "in­
tentionally," i,e. not by accident or lawful excuse, and implies 
that an act is done "knowingly." Ousley v. State, 154 Miss. 451,
122 So. 731 (1929). "Feloniously" is a technical word of the law, 
and means "done with the intent to commit a crime; of the grade or 
quality of a felony." Martin v. State, 163 Miss. 454, 142 So. 15 
(1932). These adverbs are descriptive of the capital offense 
charged, namely, capital murder with malice or deliberate design.
This Court has long held that malice aforethouaht and deliberate 
design mean the same thing. Hawthorne v. State, 58 Miss. 778 (1881).

As stated above, the instructions given to the jury,on the 
quilt phase of the trial were not at variance with the indictment.

- 7 -



Instruction S-l (R. 812) required the jury to find the murder was 
committed with "any design to effect death" and "with the formed 
purpose to effect [Weinberger's] death.” Instruction S-2 (R. 813) 
required the jury to find that petitioner "in concert with another 
did unlawfully, wilfully, feloniously and of their malice afore­
thought kill and murder Arthur Weinberger. . . . "

From the foregoing, it is clear that petitioner is factually
and legally incorrect when he states there was no finding of intent

2/to kill.-
Petitioner’s argument in paragraph 16A(2)(b) is novel to say 

the least. He would require the jury to find an intent to kill 
a second time on the sentencing phase. The jury had already 
found petitioner intended to kill Arthur Weinberger when it re­
turned a verdict of "Guilty of Capital Murder." To require a 
second such finding is not invisioned under our statutory scheme.
In fact, this Court has stated that it is not necessary for a 
defendant to have any design to effect the victim’s death under 
our statutory scheme. Reddix v. State, 381 So.2d 999, 1011 (Miss. 
1980); Jones v. State, 381 So.2d 983, 989 (Miss.1980); Culberson 
v. State, 379 So.2d 499, 504 (Miss.1975).

Petitioner's allegations in paragraphs 16A(3)(a) to 16A(3)(f) 
concern the sufficency of the evidence to find he intended the death 
of Arthur Weinberger. This allegation was disposed of in the ori­
ginal decision on direct appeal. See: 381 So.2d 1011-1013. The
jury found intent to kill after the State produced the evidence 
supporting this factually. As stated above there is no require­
ment that intent be found. The State took on the extra burden and 
me t it.

2/ The above is a reproduction of the argument made to the 
United States Supreme Court with minor changes made for 
clarity here. SEE: Appendix A.

- 3 -



Petitioner's allegations in paragraphs 16B(1) to 16B(5) 
concern his receiving the death penalty when he was not the 
"triggerman." This Court considered this issue on direct appeal 
and decided it adversely to petitioner's position here. See:
381 So.2d 1011-1012. Petitioner's punishment is neither cruel 

nor unusual under the law.

VII.
The allegations contained in paragraphs 17(1) to 17(3) of 

the petition concern his sentence of death being the result of 
a "scheme of capital that is administered in an arbitrary and 
capricious manner." He bases this claim on purported statistics 
relating to the 23 death sentences this Court reversed and re­
manded for bifurcated trials in the wake of this Court's decision 
in Jackson v. State, 337 So.2d 1242 (Miss.1 9 7 6 ) ^

Many factors, not the least of which is prosecutorial dis­
cretion, enter into a decision to allow a defendant to plead 
guilty in exchange for a life sentence. With a guilty plea 
punishment is insured as against the ever present risk of acquittal 
or a mistrial. Mere passage of time from the indictable act may 
result in lost witnesses, as here, and fading memories. Inter­
vening appellate review may result in condemnation of the use 
upon retrial of certain evidence without which the likelihood of 
conviction may be lessened.

3/ Jackson v. State, 337 So.2d 1242 (1976); Hill v. State, 339 
So.2d 1382 (19T6); Wansley v. State, 339 So.2d 989 (1976); 
Biles v. State, 338 So.2d 1004 (1976); Rogers v. State, 338 
So.2d 1005 (1976); Ivey v. State, 341 So.2d 918 (1977) ;
Davis v. State, 349 So.2d 509 (1977); Caldwell v. State,347 
So.2d 1389 (1977); Henderson v. State, 343 So.2d 744 (1977); 
Moore v. State, 344 So.2d 731 (1977); Picklo v. State, 345 
So.2d 623 (1977); Spencer v. State, 348 So.2d 1030 (19 7 7) ; 
Upshaw v. State, 350 So.2d 1358 (1977); Culberson v. State,
348 So.2d 1025 (1977); Reddix v. State, 342 So.2d 1306 (1977); 
Jones v. State, 342 So.2d 735 (1977); Jordan v. State, 365 
So.2d 1193 (1973); Hicks v. State, 355 So.2d 679 (1978); 
Stevenson v. State, 354 So.2d 1095 (1978) and Irving v. State, 
361 So.2d 1360 (1973).

-9-



Of the twenty-three pre-Jackson defendants heretofore 
referenced, it is unknown how many were initially offered the 
opportunity to plead guilty in exchange for a penalty less than 
death, but it is highly likely that having once been sentenced 
to death, a defendant may be more than willing to acknowledge 

his guilt in exchange for a lesser penalty.
Contrary to petitioner's assertion that a subsequent 

sentence less than death on retrial is evidence of arbitrary 
and capricious administration of the death penalty as condemned 
in Furman v. Georgia, 408 U.S. 238 (1972) and Gregg v. Georgia, 
428 U.S. 153 (1976), respondent submits that retrial with bi­
furcation and a sentence of life is evidence that the procedure 
delineated in Jackson and the new statutes work to the defen­
dant's benefit and serve to insure that the penalty of death 
is not imposed in an arbitrary and capricious fashion.

VIII.
Petitioner alleges in paragraphs 18(a) to 18(f) that his 

death sentence is the result of "race and sex discrimination," 
or in other words arbitrary and capricious.

This same question has been presented to the United States 
District Court for the Northern District of Mississippi in the 
case of Washington v. Watkins, NO. GC 79-39-K-P (N.D. Miss., 
December 13, 1979).- The response of the Court there is found 
on pages 3-6 of the Report and Recommendantion of the magistrate, 
later adopted as part of the opinion issued by Judge William 

Keady.

4/ Washington v. State, 361 So.2d 61 (Miss.1978) , Federal 
~ habeas corpus petition.

- 1 0 -



TheThe reasoning of the Court there is applicable here, 
respondents adopt the language of the Court there as their response 
to the argument made here. For the Court's convenience we will 
set forth that part of the opinion dealing with this issue. The 
opinion reads:

A. Discriminatory Imposition of Death Penalty.
Petitioner contends that the death penalty under 

Miss. Code Ann. § 99-19-101 is being imposed in a 
discriminatory manner against blacks, males, indi­
gents, and defendants convicted of murdering whites 
as opposed to blacks, in violation of the equal pro­
tection clause of the Fourteenth Amendment and the 
Eight Amendment prohibition against arbitrary and 
capricious imposition of the death penalty. In sup­
port of this claim, petitioner alleges that "[o]f 
the twelve persons awaiting execution in Mississippi, 
all are male indigents, three-fourths or nine are 
black and all’ of the victims were white." As to peti­
tioner's claim under the Eighth Amendment,

To allege discriminatory application 
of the death penalty, as meant in the 
context of this case, is to argue that 
defendants who have murdered whites 
have received the death penalty when 
other defendants who have murdered 
blacks, and who are equally or more 
deserving to die, have received life 
imprisonment. In order to ascertain 
through federal habeas corpus pro­
ceedings if the death penalty had been 
discriminatorily imposed upon a peti­
tioner whose murder victim was white, 
a district court would have to compare 
the facts and circumstances of the peti­
tioner's case with the facts and circum­
stances of all other Florida death 
penalty cases involving black victims 
in order to determine if the first degree 
murderers in those cases were equally or 
more deserving to die. The petitioner 
thus requests the same type of case-by­
case comparison by the federal judiciary 
that we have previously rejected in con­
sidering the petitioner's contention that 
Florida's death penalty is being imposed 
arbitrarily and capriciously. We need 
not repeat the myriad of difficult problems, 
legal and otherwise, generated by such 
federal court intrusion into the sub­
stantive decision making of the sentencing 
process which is reserved to the Florida



state courts under Section 921.141. As 
we previously noted, this Court reads 
Furman, Gregg, Proffitt, Jurek, Woodson, 
and Roberts as holding that if a state 
follows a properly drawn statute in im­
posing the death penalty, then the arbi­
trariness and capriciousness—  and there­
fore the racial discrimination —  condemned 
in Furman have been conclusively removed.
Florida has such a statute and it is 
being followed. The petitioner's con­
tention under the Eighth and Fourteenth 
Amendments is therefore without merit.

Soinkellink v. Wainwright, 578 F .2d 582, 613-14 (5th
Cir. 1978), cert, denied, ___ U.S. ___, 59 L.Ed.2d
796 (1979). From an Eighth Amendment standpoint,
similar consideration would obtain with regard to 
petitioner's claim of discriminatory application of 
the death penalty to black, indigent, and male de­
fendants.

Petitioner's equal protection claims of allegedly 
discriminatory application of the death penalty against 
blacks, males, and indigents are not far removed from 
his Eighth Amendment claim, i.e., "at its core lies the 
charge of arbitrary and capricious conduct." Spinkel- 
link, supra, 578 F.2d at 616.

If a petitioner can show specific 
act or acts evidencing intentional or 
purposeful racial discrimination against 
him. See: Village of Arlington Heights v . 
Metropolitan Housing Development Corp.,
429 U.S. 252, 266-68, 97 S.Ct. 555, 564- 
565, 50 L.Ed.2d 450 (1977), either be­
cause of his own race or the race of his 
victim, the federal district court should 
intervene and review substantively the 
sentencing decision. We emphasise once 
again . . . that this Court anticipates
that such intervention will be infrequent 
and only for the most compelling reasons.
Mere conclusory allegations, as the peti­
tioner makes here, such as that the death 
penalty is being "administered arbitrarily 
and discrininatorily to punish the killing 
of white persons as opposed to black persons,"
. . . do not constitute such reasons and
would not warrant an evidentiary hearing.
This is so on Eighth Amendment grounds as 
well as on Fourteenth Amendment equal 
protection grounds, because the intrusionary 
effect would be the same.

-12-



Jurek v. Estell, 593 F.2d 672, 685 (5th Cir.X979).
Assuming the correctness nf i“ S . S * i f S " L t;,rippic\ ° df

i a£.*&.
s  s s s 2 ” “i ; s “  ™ ' “ “ : r « s s s £ s s .

hearing on this claim by petition™*" “  evldentiarY 

(Appendix B at 21a-24a; Rept. & Rec. at 3-6)

The statistics have changed slightly since Judge Keady wrote 
his opinion. as of January 23, 1981, twelve (12) death penalty 
cases tried under either legislative or judicial bifurcation have 
been fully litigated before this Court and reviewed meaningfully 

effectively. One case was reversed and remanded for trial 
anew [Gra^.^^^state, 351 So.2d 1342 (Miss. 1977) ] , one other was 
affirmed as to guilt and reversed as to sentence, reducing the 
sentence to life I C ^ ^ a t e ,  378 So.2d 640 (Miss.1979)] 

while ten (1 0) of the convictions and sentences of death have been 
affirmed. We allude specifically to Bell_v. state, 360 So.2d 1206 

(MlSS‘ 1978); 'ĤShiSatonv. State, 361 So.2d 61 (Miss.1978);

361 SO-2d 1260 (Miss. 1978); voyles v. .9^  362
So.2d 1236 (Miss. 1978,1/; Jordan^^^tate, 365 So.2d 1198 (Miss.
1978); Gray v. State. 375 So.2d 994 (Miss 1 9 7 9). m  i kwiiss.iy/yj; Culberson v. State
379 So. 2d 499 Jon.» v. state. 381 So72d 983 ,W „  ’
19«0,,• M  So.2ti (,u„.19S0)i ^  v
States No. 51,937 (Decided August 6 1980- R«hugust b, 1980, Rehearing Denied January 1 4 ,
1981, Not yet reported).

Bell, Washington, Irving, Culberson, Jones, and Reddix are 
black men. Voyles, Jordan, Gray and Bullock are white men. Reddix 
and Jones were both convicted of the same crime. At present there

-14-



are five other cases where the death penalty has been imposed 
pending before this Court or soon to be filed before this Court. 
These cases involve Arthur Ray Lanier, a black man, Kenneth Wheat, 
a white man, Mack King, a black man,. Alvin Hill, a black man, and 
Edward Johnson, a black man. This makes the division, along 
racial lines, of people, sentenced to death under the present 
bifurcated system ten (10) blacks and six (6) whites. Respon­
dents contend that this number is till insufficient to demonstrate 
a pattern or practice of discrimination or arbitrariness. These 
numbers do not indicate anything at the present time.

Respondents would further note that Alvin Hill, a black man, 
was convicted and sentenced to death in DeSoto County for the 
capital murder of another black man. The only sentence that has 
been reduced by this Court to date was that of a black man. Coleman 
v. State, 378 So.2d 640 (Miss.1979). Further a booklet published 
by the United States Justice Department entitled “Capital Punishment 
1977," National Prisoner Statistics Bulletin; No. SD-NPS-CP-6 
(November 1978), set forth in Table 4, page 16 that women were 
executed for murder in Mississippi in 1937, 1943, and 1944. These 
convictions and sentences occurred before the present system was 
mandated and are actually not relevant to an analysis under the 
present statutes. We only feel compelled to correct petitioner's 
glaring lack of research into the subject.

Respondents would submit that the State of Mississippi is 
not discriminating in its imposition of the death penalty.

IX.
The allegations contained in paragraph 19(A)(1) contend that 

the jury based its decision on a unconstitutional aggravating cir­
cumstance namely that the offense was "especially henious, artro- 
cious or cruel" in contravention of the ruling in Godfry v, Georgia, 
__  U.S. ___, 64 L.Ed.2d 398 (1980). This exact argument was made

-15-



to the United States Supreme Court in petitioner's petition for 
Writ of Certiorari. Respondents adopt its response to the high 
court as its answer here. This argument is legently thus it 
will not be reproduced here. We would invite the Court's atten­
tion to pages 5-13 of our Brief in Opposition attached hereto as 
Appendix A. We would further note that the Supreme Court has now 
denied certiorari on this exact point four times. Voyles v. 
Mississippi, 441 U.S. 956 (1979); Gray v. Mississippi, ___ U.S.
_, 64 L.Ed.2d 847 (1980); Culberson v. Mississippi, ___ U.S.
_, 66 L.Ed.2d 250 (1980); Reddix v. Mississippi, ___  U.S. ___,

66 L.Ed.2d 251 (1980). Gray, Culberson, and Reddix were all 

decided after the Court's ruling in Godfrey.
Paragraph 19 (A)(2) contains allegations concerning the 

form of the sentencing instruction that were resolved against peti­
tioner on his original appeal. SEE: 381 So.2d at 1004-1005. The

Court's ruling was correct.
Petitioner contends in paragraphs 19(A)(3)(i) and (ii) that 

the burden of proof was shifted to him during the sentencing phase. 
This issue has been resolved adversely to petitioner's position 
by this Court's rulings in Coleman v. State, 378 So.2d 640, 646-647 
(Miss.1979) and Jordan v. State, 365 So.2d 1198, 1205-1206 (Miss. 

1979) .
Paragraph 19(A)(4) and 19(A)(5) contends that the sentencing 

instructions were incorrect in that they limited mitigating cir­
cumstances and denied him the jury's mercy. This contention has 
been litigated and resolved by this Court against petitioner.

SEE: 381 So.2d at 1010-1011.

- 1 6 -



Paragraph 19(B)(1)(a) to 19(B)(1)(d) contend the aggravating 
circumstance of "especially henious, atrocious or cruel" is not 
supported by sufficient evidence. He contends "there was no torture 
or aggravated battery to the victim." Several blows to the skull 
of a seventy-seven year old man with a wrench would equal aggravated 
battery in any court. He submits the "victim died not long after 
he was struck without ever regaining consciousness." Five hours 
later is now a short time. His next contention is that the "homo- 
cide did not involve multiple victims." Nowhere in our law, State 
or Federal, is there a requirement that there be multiple victims 
to support the "especially henious, atrocious or cruel" circum­
stance. Finally he says that there is "no evidence that the victim 
was placed in fear or even apprehended what was to occur. Certainly 
not, petitioner was doing his job according to the "plan" drawing 
Weinberger's attention so he would not apprehend danger and sound 
an alarm. Weinberger was lead like a sheep to slaughter by peti­
tioner with callousness that shocks the conscience. Respondents 
would submit that this aggravating circumstance was supported by 
proof beyond a reasonable doubt.

Paragraphs 19(B) (2) (a) and 19(B) (2) (h) contain allegations 
that the State cannot use the underlying robbery to elevate the 
crime to capital murder and then use the fact that the murder was 
committed while he was engaged in a robbery to aggravate the crime 
at sentencing. This contention has been laid to rest by both this 
Court and the Federal District Court. Our statutory scheme of 
capital sentencing has been declared constitutional by this Court in 
each and every death penalty case that has come before it. SEE: 
Coleman v. State, 318 So.2d 640, 647 (Miss.1979). The United 
States District Court has declared the statutes and procedures 
constitutional also. Washington v. Watkins, No. GC 79-39-K-P 
(N.D. Miss., December 10, 1979) [SEE: Appendix B]; Voyles v. Watkins,
489 F.Supp. 901 (N.D. Miss., 1980).



Paragraphs 19(B)(3)(a) to 19(B)(3)(f) contain allegations 
that it was impermissable for the State to rely on petitioner's 
prior convictions for crimes occuring after the capital murder.
These allegations were decided against petitioner's position on 
direct appeal. SEE: 381 So.2d at 1009—1010. The Court's

decision is correct.

XI
In Paragraph 20 petitioner alleges that the failure to set 

out the aggravating circumstances the State would rely on in the 
indictment denied him notice as required by the State and Federal 
constitutions. This question has been answered adversley to 
petitioner's contention by this Court in In re Jordan, 390 So.2d 

584, 585 (Miss.1980). . .

XII.
Petitioner alleges in paragraphs 21(A)(1) to 21'(A)(3) that 

this Court did not review the case on the full record as the voir 
dire, opening arguments, closing arguments and the report of the 
trial judge are not present. I.t is true that the record does not 
contain the full text of the voir dire, but it does contain the 
objections and rulings of the trial court (R. 372-375) as well as 
the in chambers jury selection process including the challenges 
for cause to certain members of the venire. (R. 377—330) It does 
not appear from the record if opening arguments were made. The 
objections made during closing arguments were transcribed. (R. 754- 
756, 781-782) Petitioner's statement that the trial judges report 
does not appear in the record is false■ The report of the trial 
judge is contained in the record on pages 861-865. This Court 
had a sufficiently complete record upon which to review, especially 
when it is noted that there were no questions raised on direct 
appeal concerning possible errors during voir dire, opening argu­
ments or closing arguments.

-18-



Paragraphs 21(B)(1) to 21(B)(3)(i) allege that this Court 
did not make a proper comparative review of petitioner’s case 
with "similar cases." A review of the opinion in this case 
clearly demonstrates that these allegations are without merit. 
SEE: 381 So.2d at 1012-1013. This Court conducted a complete
comparison taking into account that petitioner was not the 
so-called "triggerman."

XIII.
Paragraphs 22(a) to 22(d) of the petition contain allega­

tions that the statutory scheme of capital sentencing in this 
state is unconstitutional on its face. This Court has held the 
provisions of our statutes are consititutional in all respects.
SEE: Gray v. State, 351 So.2d 1342 (Miss.1977); Washington v.
State, 361 So.2d 61 (Miss.1978); Culberson v. State, 379 So.2d 
499 (Miss.1980); Coleman v. State, 378 So.2d 640 (Miss.1979);
Jones v. State, 381 So.2d 933 (Miss. 1980) ;. Reddix v. State, 381 
So.2d 999 (Miss.1980). The Mississippi statutory scheme has also 
been upheld in Washington v. Watkins, No. GC 79-39-K-P (N.D. Miss., 
December 18, 1979) and Voyles v. Watkins, 489 F.Supp. 901 (N.D. 
Miss., 1980) Respondents submit these decisions are conclusive 
on the matter.

XIV.

Petitioner's final allegations contained in paragraphs 23(1) 
to 23(4)(c) concern the method on execution used in this State. 
Petitioner contends that death by lethal gas is "cruel and un­
usual punishment." Petitioner's attempt to inject extaneous 
matters are to no avail/it actually merits no response. Appel­
lant has failed to raise this issue at the trial of this case. 
Therefore it is not proper for consideration here as he has shown 
no reason as required under error coram nobis procedure why this 
issue was not raised below.

-19-



CONCLUSION
In Howell v. State, 354 So.2d 1124 (Miss.1978), this Court 

explained an important criterion it uses in making the deter­
mination of whether to grant an application for leave to file 
in the trial court a motion for new trial on grounds of newly 

discovered evidence:
When we granted appellant leave to file

his motion for a new trial on the ground of 
newly discovered evidence, we in effect held 
that the claimed newly discovered evidence 
presented a question of sufficient gravity 
with respect to the guilt or innocence of the 
defendant to warrant a judicial determination 
of whether the conviction should be set aside 
and a new trial granted.

354 So.2d at 1127.

That criterion applies with equal force to the application in the 
case at bar. The factual issues presented by the present appli­
cation, which either have been previously decided by this Court 
or which present only legal questions, do not represent "ques­
tion [s] of sufficient gravity with respect to the guilt or 
innocence [or sentence] of the defendant to warrant a judicial 
determination of whether the conviction [or sentence] should be 
set aside and a new trial granted." The application should there­
fore be denied and a new execution date set in this case.

Respectfully submitted
BILL ALLAIN, ATTORNEY GENERAL