Bullock v. Mississippi Court Opinion

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WtWl+Lths

Miss. 601

' 2. Indictment and Information e=?1.4(5)

In<lictment for capital murder while
committing the crime of robbery, which al-
legedly did not set forth the essential ele-
ments of the crime of robbery and did not
refer to the proper statute to charge the
crimc of capital murder, was sufficient to
give defendant fair notice of the crime
charged in clear and intelligible language
and, therefore, the trial court correctly
overruled defendant's demurrer. Code
1972, $ 97-3-19(2)(e).

3. Criminal Law e=76411; a
Circumstantial evidence instructions /

should lle given only in a purely circumstan- |
tial evidence case. -'t
4. Criminal Law e314117;

Where there was direct evidence conl
sisting of statements made by defendant ln rtL
anrl of his own testimony adduced at trial \
on guilt phase of case, defendant was not 

)
entitled to circumstantial evidence instrue.J
tions.

5. Criminal l,aw e73411;
Instruction known as "two-theory inl

struction" should not be given except in \
purely circumstantial evidence cases. )

6. Criminal Law e753.2(8)
In passing on a requested peremptory

instruction or motion for directed verdict, in
a criminal case, all evidence most favorable
to the state together with reasonable infer-
ences therefrom is considered true and evi-
dence favorable to defendant is disregard-
ed.

7. Criminal Law e753.2(5)
If evidence favorable to the state and

reasonable inferences therefrom will sup-
port a guilty verdict, the request for a
peremptory instruction must be denied as
well as any motion for directed verdict.

8. llomicide F268
In vicw of overwhclming evirlence that

defendant was present and aided and assist-
ed in assaulting and killing victim and in
removing and discarding victim's wallet and

' {:.,i

i

I
V',tr

BULLOCK v. STATE
Clte as, Mls3., 391 So.2d 601

Crawford BULLOCK, Jr.
v.

STATE of Mississippi.

No. 51937.

Supreme Court of Mississippi.

Aug. 6, 1980.

Rehcaring Denied Jan. 14, 1981.

Defendant was convicted in the Circuit
Court, Hinrls County, William F. Coleman,
J., of capital murder and was sentenced t<l

death. Defen<lant appealed, and Supreme
Court, Lee, J., held that: (1) the trial
court's finding that defendant's oral and
written statements were freely and volun-
tarily given was supported by the evidence;
(2) the indictment gave defendgnt fair no-
tice of the crime charged; (!pdefendant
was not entitled to c
instructions; (4) the trial court did not err
inErusin! to reduce the charge to man-
slaughter; (5) the trial court did not err in
declining to authorize expenses for employ-
ing a pathologist and criminal investigator
to aid in the defense of the case; (6) photo-
graphs of the victim's body were properly
admitted; (7) the pathologist's testimony
uas relevant; ($) various requested instruc-
tions were profierly refused;(O remarks of
the district attorney in cloii-ng^argument
did not warrant a mistrial; (b;)ttre evi-
dence was suff icient to prove-defendant
guilty beyond a reasonable doubt; and (11)
the death penalty was not so disproportion-
ate or wanton as to require reduction to life
imprisonment.

Affirmed.

l. Criminal Law e414
Evidence at pretrial suppression hear-

ing, including testimony of officers who
rere prescnt when defendant made incul-
patory statements, supported trial court's
finding that thc statemenl.s were frcely and
roluntarily marle anrl that defcnrlant kncw
rhat he was doing when hc made oral
rtatement and thereafter signed a written
rtatement.

t.

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ii

602 Miss. 39I SOUTHERN REPORTER,2d SERIES

personal effects and in taking victim's auto-
mobile, trial court properly refused to grant
a peremptory instruction of not guilty.

9. Indictment and Information @-159(2)

Trial court committed no error when it
declined to reduce charge of capital murder
while committing crime of robbery to man-
slaughter. Code 1972, g 97-3-19(2)(e).

10. Criminal Law e.665(4)
Even if certain prosecution witnesses

violated the sequestration rule by discussing
their testimony with other witnesses prior
to trial, the court had discretion to admit
the witnesses' testimony where there was
no prejudice from doing so.

ll. Costs o-302.3, 302.4

In prosecution for murder while com-
mitting a robbery, the trial court did not
commit error when it refused to grant de-
fendant's motion for appointment of a crim-
inologist or criminal investigator and a psy-
chiatrist to assist in preparation of the de-
fense.

12. Criminal Law @438(6)
In prosecution for capital murder while

committing a robbery, trial court did not
abuse discretion when it admitted in evi-
dence black and white photographs of the
victim's body which depicted how the body
had been weighted with concrete blocks and
how a garden hose had been wound around
the body to hold the blocks so that the body
would submerge and which also corrobo-
rated pathologist's testimony concerning
the wounds on the body.

13. Homicide G=175

In prosecution for capital murder while
committing robbery, trial court properly ad-
mitted pathologist's testimony that the ex-
act cause of the victim's death was a frac-
ture of the skull and not drowning.

14. Homicide e 169(8)

In lrroscr:ution f<lr calriLal murrlcr whilt'
comnritting a rohhery, no crror aroso from
fact that trial c<lurt allowed three witnesses
to testify ahout conversations they had with
the victim the night he was killed.

15. Criminal Law @.867

Fact that witness made unresponsive
referenee to defendantls bad character did
not require a mistrial where the trial court
sustained a defense objection to the ques-

tion and answer, instructed the jury to dis-
regard the answer and determined by in-
quiry to the jury that they could disregard
the answer.

16. Larceny e-32(l)
Robbery c=17(5)

An indictment charging robbery or lar-
ceny of property is properly laid in the
party having possession, whether as owner,
bailee or agent.

17. Homicide @169(2)

Where it was undisputed that murder
victim was in possession of a certain auio-
mobile on night of homicide, it was not
error for trial court to permit a witness to
testify about the ownership of the automo,
bile the victim was driving.

18. Criminal Lsw @438(2)

In prosecution for capital murder while
committing a robbery, trial court did not
abuse discrction when it admitted a high
school photograph of the victim over an

objection that the photograph was irrele-
vant and inflammatory.

19. Homicide €-289
Capital murder instruction which cor-

rectly set forth the issues that had to be

decided by the jury before the accused

could be convicted was properly given, in
prosecution for capital murder while com-
mitting a robbery.

20. Criminal Law G,829(19)

In prosecution for capital murder while
committing a robbery, it was not error for
the trial court to refuse to give the "single
juror" instruction where the principle of the
instruction was covered in another instruc-
tion.

21. Criminnl l,aw e757rr1,

An instruction which amounted to an
improper eomment on the weight and worth
of the defendant's testimony was properly
refused.

22. L,

confl i

jury t

again
fore r

woulr'
find :

to ret
was
proscr

23. H
Ir

comn)
when
jury t

al dr
Const

24. H
I

the jr
woul,.
sente;
ju.y
woulr
if serr

fuse '

25. ('
\

evidt,
that
medi,
nosis
chosi,
torntr
defer,
possl,

ted l,

26. (
I

mitt(
er or'

stat('
"Not
do 1"
antl ,

I twr
and
him.
did n

of tl,i
,t,

e

!
!



-a-
,1

l't, 
tr

fr
T:

,867

rs made unresponsive
rrt's bad character did
I where the trial court
,rbjection to the ques-
rrrcted the jury to dis-
n(l determined by in-
t they could disregard

,arging robbery or lar-

I,roperly laid in the
!on, whether as owner,

(2)

rtlisputed that murder
,ion of a certain auto-
homicide, it was not

t.o 1rcrmit a witness to
rership of the automo-
lriving.

,438(2)

,r capital murder while
y, trial court did not
'n it admitted a high
i the victim over an
hotograph was irrele-
r.Y.

instruction which cor-
issues that had to be
, before the accused
'irs properly given, in
;rl murder while com-

'ft29( l9)
r caJrital murder while
.. it was not error for
rse to give the "single
,'rr the principle of the
r,rl in another instruc-

751>tlz

hich amountctl to an
tlrc weight and worth
';timony was properly

22. Criminal Law F810
Where the instruction was in direct

conflict with an instruction which told the
jury to weigh the mitigating circumstance
against any aggravating circumstances be-
fore returning a verrlict, instruction which
u'ould have told the jury that it need not
finrl any mitigating circumstances in order
to return a sentence of life imprisonment
was properly refused, in capital murder
prosecution.

23. Homicide e-3ll
In prosecution for capital murder while

committing a robl)ery, no error occurre(l
when the trial court refuscd to instruct the
jury that the dccision to afforrl an in<livirlu-
al defcnrlant mercy does not violate the
C,onstitution.

24. Homicide o=3ll
Requested instruction to thc effect that

the jury was to presume that the defendant
would spend the rest of his life in prison if
s€ntenced to life imprisonment and that the
jury was to presume that the defendant
would receive lethal gas until he was dead
if sentenced to death was calculated to con-
fuse the jury and was improper.

25. Criminal Law e720(7)
Where defendant himself introduced in

evidence a hospital record which indicated
that he had been admitted to a certain
medical center for treatment and that diag-
nosis indicated that he suffered from psy-
chosis, it was fair comment for <listrict at-
torney to state in closing argument that
defendant's problem with psychosis was a
possible explanation for his having commit-
ted homicide.

26. Criminal Law 6720(8)
In prosecution for capital mur<ler com-

mitted during a robbery, it was not improp-
er or prejudicial for the district attorney to
sfate during closing argument to the jury
"Now, look, if you see a guy on the street,
do you walk up and whop him on the hearl
and drop boulrlcrs on him anrl hit him with
a two lly four tnrl thcn you ttkc his hillfokl
an<l you takc his car, but you rlirln't rob
him. Do you llclieve that?"; thc statement
did not mislead the jury as to the elements
of the crime of robbery.

BIILLOCK v. STATE
Clte as. Mlss.. 301 so.zd 601

Miss. 603

27. Criminal Law e713
There is wide latitude for attorneys

argue cases to jury,

28. Criminal Law e=720(l)

In view of testimony that it was impos-
sible to remove a latent fingerprint from
concrete and certain other materials intro-
duced in evidence, it was not improper for
the district attorney to indicate in closing
argument that fingerprints could not be

taken from all the evidence.

29. Criminal Lsw 6720(6)
Where the statement was incrimina-

ting and connected rlefendant with the
crime anrl where, during the trial of the
case, defcndant's own counsel referred to
the statemcnt as a "confession," it was not
ohjectionable for the district attorney to
refer to the statement which defendant
made to investigating officers as a "confes-
sion."

30. Criminal Law e649111

Where defendant was not restricted in
any manner in the presentation of his de-
fense and was not prejudiced by the trial
court's procedure, it was not error for trial
court to deny defendant's motion for a re-
cess until the following morning before pro-
ceeding to the sentencing phase of capital
murder trial.

31. Homicide @=250

State's evidence, including oral and
written confessions of defendant and his

testimony at trial, was amply sufficient to
prove beyond a reasonable doubt that de-
fendant was guilty of capital murder. Code
1972, S 97-3-19(2Xe).

32' criminal Law el2l3
The death penalty statute is not uncon-

stitutional. Code 1972, $S 99-19-101 et
soq., 99-19-105.

33. Criminal Law e59(5)
Any llerson who is present, aiding and

abetting anothcr in commission of a crime,
is equally guilty with the principal offend-



.ilr;

604 Miss. 39I SOUTIII'RN REPORTER, 2d SERIES

34. Criminal La* e1206(2)
Homicide c=354

In vie w of cvirlcncc conccrning circum-
stances of crimc, inrlxrsition of dcath penal-
ty was not so tlisprolxrrtionate, wanton or
frcakish as to rcrluirc that the scntencc be

rerluccd to life imprisonment. Code 19?2,

SS 99 l9-101 et scr1.99 l9-105.

Bell & Brantlcy, Don H. Evans, Robert J.

Brantley, Jr., Jackson, for appellant.

Bill Allain, Atty. Gen. by Marvin L.
White, Jr., Sp. Asst. Atty. Gen., Edward
Peters, Dist. Atty., Jackson, for appellee.

En Banc.

LEE, Justicc, for the Court:

Crawfor<l Bullock, Jr. was indicted at the
November 1978 Term of the Circuit Court,
First Jurlicial District, Hinds County, for
the capital murder of Mark Dickson, while
committing the crime of robbery against
Dickson. A bilurcated trial was held dur-
ing the May 1979 Term of said court, Hon-
orable William F. Coleman presiding, and
the jury returned a guilty verdict of capital
murtler at the conclusion of the first phase

of thr: trial. A scparate sentencing phase

was held following the guilty verdict, and,
after deliberation, the jury returned a ver-
dict imlrcsing the rlcath sentence as punish-
ment for the crimc. Bullock has appealed
hcre anrl has assigned and argucd twenty-
eieht (28) errors in the trial below.

On the evening of September 21, 1978,

Crawford Bullock, Jr. and Rickey Tucker
went to Town Creek Saloon, where they
rlrank alcoholic bcvcrages <luring the night.
Whcn Bullock and Tucker deciderl to lcave
in the early morning of September 22, Lhey

<liscovered that the person, with whom they
had ridden there, ha<l left them. Mark
Dickson was leaving the place and he of-
fcred to givc them a ri<le home in thc gray
Thunrlcrlrirrl :rutonr<llrilc hc was rlriving.

On thc wty hotne, Ilullock httl Dicksrln
stoll at a convenience store in order for him
to buy some bread. Dickson gave Bullock
thirty-five cents (35c) for that purpose, but

the m<lney was returnetl when it was found

the store had no bread.

Dickson drove on at his riders' instruc-
tions. Bullock asked him to stop the auto,
mobile in order that he could answer a call
of nature. Upon returning to the vehicle,

Bullock overheard an argument between

Tucker and Dickson and heard Tucker say,

"[)on't make me Jrull this gun," and he

heard Dickson say that he did not have any

money but that they could have the auto-

mobile. All three re-entered the vehicle,

the argument continued, and Dickson

stopped on Byrd Drive near a construction
site where blows were exchanged between

Tuckcr and Dickson. Tucker told appellant
to grab Dickson, which he did. Dickson

broke away and left the vehicle. Tucker
got out with a whiskey bottle, using it as a

club, and advanced toward Dickson who

fled with Tucker in pursuit. Tucker tack-

led Dickson; appellant caught up with
them and grabbed Dickson by the head.

Tucker struck Dickson on the head with the
whiskey bottle which also hit Bullock's
hand, broke and cut it. Tucker beat Dick-

son with his fists, knocked him to the
ground, kicked him in the head as he lay on

the ground and then repeatedly struck him
with a concrete block on the head which

resulted in his death. Appellant went

across the street to an automobile agency

an<l tried to start one of the vehicles on the

outside of the building to no avail.

Tucker suggested that they burn the

bo<ly and the car, but appellant told him

that he knew of a lake near Byram where

the body could be disposed of. Dickson's

body was loaded into the car, and they

<lrove to a car wash, where the blood was

washed away. Tucker removed Dickson's
wallet from the body, went through it,
found no money and disposed of it in a

garbage can. Appellant drove the vehicle

to his home, where they cleaned up, obtain-

c<l a garrlen hose and then drove to the lake

ncur Ilyram. I)ickson's outer clothing was

rcmoved, concrcte blocks were placed in his

T-shirt and sh<lrts, the garden hose was

wrapped around the body and the weights,

and Tucker pulled the body out into the

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rl when it was found
t.

t his riders' instruc-
rirn to stop the auto-
, could answer a call
rning to the vehicle,
argument between

irl heard Tucker say,
t.his gun," and he
hc <lirl not have any
ould have the auto-
cntered the vehicle,
r ucd, and Dickson
' near a construction
' cxchanged between
i'ucker toltl appellant
h he did. Dickson

the vehicle. Tucker
bottle, using it as a

,rward Dickson who
rrsuit. Tucker tack-
rt caught up with
'ckson by the head.
,rn the head with the

also hit Bullock's
Tucker beat Dick-

nocketl him to the
he head as he lay on
'1rcatedly struck him
on the head which
r. Apllellant went

automobile agency
I the vehicles on the
to no avail-

irat they burn the
appellant told him
near Byram where

'oscd of. Dickson's
the car, and they
here the blood was
removed Dickson's

, went through it,
,lisposed of it in a
t rlrove the vehicle
cleaned up, obtain-

r,n drove to the lake
outcr clothing was
, rvore pluccrl in his
garrkln hosc was

ly and the weights,
body out into the

t
1

i

BULLOCK v. STATE
Cite as, Mlss..30l So.2d 60l

lake and submergcd it. Aplrcllant also nine (9) hours after his arrest and at the
went into the lake, felt of the body with his end of that period, he was questioned by
feet, making sure that it w:rs submergetl Detective Fondren and Officer Jordan
and stuck in the mud at the bottom of the about the homicide. Appellant executed a
lake. written waiver of his constitutional rights,

Appellant and Tucker returned to Jack- and afterwards, gave an oral statement to

son and to appellant's home, again cleane6 the officers setting out his involvement in

up, antl appellant took Tucker home, then the crime. The statement was reduced to

went to the Univcrsity Merlical Centcr writing and was signed by the appellant. A
where hc obtaincrl metlical attcntion for his pre-trial suppression hearing was conduct-

hand. The next day Tucker and he drove in ed, the officers present when the state-

the Dickson automobile to McComb for the ments were made testified that appellant

purpose of visiting appellant's grandfather. was advised of his constitutional rights pri-

Thcy failerl to find him and returned to or to making the statement, that he ac-

Jackson. Appellant retained possession of knowledged understanding them and exe-'
the automobile. cutcd a written waiver thereof. The oral

Miss. 605

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i

During the early morning hours of sep- statement made to the officers was typed

tember ?s, 1978, "pp"tt"ni't,"il ; ffi up by Detective Fondren' was read by the

pain in his hand, and he returned to univer- appellant' and was then signed by him'

sity Medical Center, driving the Dickson Appellant denied that the statements

automobile, where he obtained prescriptions were freely and voluntarily made and con-

for his injury. On his way home from the tends that the officers withheld medical

hospital, he rvas stopped by officers of the treatment for his injured hand until he

Jackson Police Department, was arrested, gave the statements. The officers testified

and was taken to the police station. On that appellant did not complain of pain with
being stopped and asked about the automo- his hand until they had completed the inter-

bile he was driving, appellant responded rogation' They offered medical assistance

that he had borrowed the automobile from to him, but appellant insistred on getting

a friend. While Dickson was driving the through with the statement first, and that
vehicle on the night of his death, the regis- he then go to the doctor. The officers

tration tag was on the back seat of the car testified that appellant was alert and coher-

and when Bullock was stopped, it had been ent, and that he was not under the influ-
placed on the tag mount outside the car. ence of medication or pain. After the offi-

At the police station, appellant made in- cers received the statements' appellant was

culpatory oral and *.iir"r- .t"i;;;;;- taken to the hospital' His temperature was
. ";--;, --;--'.'-.-;-" 103", he was treated, and remained in thea00ut l.he commrsslon oI the homlclde,

which subsranrially set r"ril, ti" r".;.;;i;;- hospital for one week'

ed hereinabove. Detective Fondren visited appellant while
he was in the hospital and, after again

GUILT PHASE being advised of his constitutional rights,

l. appellant told Detective Fondren that on

tu Did the court err in finrring rhat r;"''r!li :: *i*'il;i""JTff";Ji,x;
appellant's oral and written statements explanaiion he could give for killing Dick-
were freely and voluntarily given? son was that Tucker was trying to rob him.

Appellant moved to suppress all state- Security Officer King was outside the hos-
ments marle lly him whilc in custorly of thc pital room anrl he could see Dctective Fon-
officcrs, conl"cnrling that thc stttcmcnts rlrcn talking to appcllant, but he could not
werc inarlmissible because thcy wcrc not hcar what was bcing said. They both testi-
freely and voluntarily given. He was held fied that his statement was given freely
in the Jackson City Jail for approximately and voluntarily.



]tr
606 Miss.

After appellant tcstifietl, thc officers
were placed on the stantl in rebuttal, and

testified that the Miranda rights wcre giv-
en, the statements were frecll' antl volun-
tarily made, and that the allllellant knew
what he was doing when he made the state-
ments and executed them. The Jrrocedure
outlined in Agee v. State, 185 So.Zd 671

(Miss.1966) was strictly followetl, and the
trial judge held that the statements ma<le

by appellant were freely and voluntarily
given. The court's fin<ling was supported
by the evidence, and we cannot ovcrrule or
disturb that finding. Clemons r'. State, 316

So.2tl 252 (M iss. 1975).

Appellant testified in his own tlcfense at
both phases of the trial. His tcstirnony was

practically identical with that of his statc-
ments, and reiterated and enlarged upon

those statements.

II.

12) Did thc trial court err in refusing to

sustain defendant's demurrer to the indict-
ment?

Appellant contends that the indictment
here was faulty and subject to <lemurrer for
the reasons that it did not set lorth the
neccssary and essential elements of the
crime of robbery, and dirl not refer to the
proper statute [Mississippi Code Annotatetl

S 9? 3- l9(2)(e) (Su1rp. 1979)1, to charge the

cr ime of capital murder.

The same question was raisetl in Bell v.

State, 360 So.2<l 1206, 1208 09 (Miss.l978),

wherein the Court held that the inrlictment,
such as here, was sufficient to give the

accused fair notice of the crime charged in

clear and intelligible language. Sce a/so

Culberson v. State,379 So.2d 499 (Miss.

1979); Bel/ v. State,353 So.2tl 1141 (Miss'

19??). The trial court properly overruled
the demurrer.

III.
Did the trial court err in rcfusing to

grirnt itgrpcllitn['s rt't1ut'stctl t:ircutttstttn[ittl
cvirlence instructions?

[3,4] Appellant contends that the trial
court should have granted the circumstan-

39I SOIITHERN REPORTER, 2d SERIES

tial evidence instructions requested by him.

Such instructions should be given only in aJ

purely circumstantial evi<lence case. Do)
Priesl r'. State, 377 So.2d 615 (Miss.l9?9).\
The case sult judicetloes not come un(ler that/
classification because there was direct evi-

dence consisting of the statements made by

appellant and his own testimony adduced in

the trial ,n the guilt phase of the case. See

McCray v. State,320 So.2d 806 (Miss.1975).

t5] The trial court granted an instruc'
tion known as the "two-theory instruction"
which should not be given, except in purely

circumstantial evidence cases. Thus, even

though appellant was not entitled to cir-

cumstantial evidence instructions, he re'
ceived the benefit of the principle by the

two-theory instruction granted by the

court.

IV.

Did the trial court err in refusing to
grant appellant's requested peremptory in-
struction and in refusing to reduce the

charge to manslaughter?

[6,7] In passing upon a requested per-

emptory instruction, or motion for directed

verdict, in a criminal case, all evidence most

favorable to the State, together with rea-

sonable inferences, are considered as true
and evidence favorable to the appellant is
disregarded. If such evidence will support
a guilty verdict, the request for peremptory

instruction must be denied, as well as the

motion for directed verdict. Warn v. State,

349 So.2d 1055 (Miss.1977); Toliver v. State,

337 So.2d 1274 (Miss.19?6).

t81 In the case sub judice, appellant ar-
gues that there was no evidence of intent to
rob Dickson and that appellant was an un'
willing participant in the robbery-homicide.
The evidence is overwhelming that appel-

lant was present, aiding and assisting in the

tssrult u1xrn, anrl sltying of, Dickson and in

rcrrroving untl rliscur<ling hin wtllet antl pcr-

sonal cffccts therein, and in the taking of
the T-bird automobile, which was in the

lawful possession and use of Dickson.

:
,i

,
a

I

'-,
t),



{r(lues[ed by him.
c given only in a

'Icncc' casc. De-
I 615 (Miss.1979).
,t come under that
r, was direct evi-
tr:ments marle by
imony ad<luced in
of the case. See

,l 806 (Miss.1975).

rrnted an instruc-
rcory instruction"
,, cxcept in purely
:rscs. Thus, even

t cntitled to cir-
[ructions, he re-
principle by the

granted by the

in refusing to
peremptory in-
to reduce the

a requested per-
,otion for directed
. :rll evidence most
,)gether with rea-
,rnsidered as true
,r the appellant is
'krnce will support
,st for peremptory
,.d, as well as the
't. Warn v. State,
t; Toliver v. State,
;).

rrlice, appellant ar-
irlence of intent to

:,ellant was an un-
robbery-homicide.
lming that appel-

,nrl assisting in the
of, Dickson and in
his wnllct antl llcr-
,l rn thc taking of
which was in the
, of Dickson.

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Clte as, Mls3.,39l So.2d 60t

t9] Thc trial court rli<l not r:rr in re- chological examinations aL the Jackson
fusing to grant thc lrcrcmptory instruction Mental Health Center. The motion was
of not guilty. Likewise, the court commit- granted and an examination was conducted.
ted no error in declining to reduce the Appellant then requested that another psy-
charge from capital murder to manslaugh- chiatrist examine him; the court heard the
ter. Evcn so, the qucstion of manslaughter motion and granted same. The record does
was submitted to the jury upon a proper not indicate whether the examination was
instruction. conducted.

v.
tl0l Did the trial court err in refusing

to exclude the testimony of certain State's
witnesscs on the ground that the witnesses
discusse<l their testimony with other wit-
nesses prior to trial and violated the scques-
tration rulc?

Appellant contcnds that Officer Jackson
changed hcr testimony between the tirne of
the sul4rression hearing and the date of
trial, that at the pre-trial hearing, she testi-
fied appellant was handcuffed after his ar-
rest, and, at the trial, she was not sure
whether he had been handcuffed. Appel-
lant claims that the change in Officer Jack-
son's testimony was the result of talking
with other officers subsequent to the pre-
liminary hearing.

An examination of the record does not
support the argument of appellant on this
matter, and indicates that any difference in
Officer Jackson's testimony resulted from
the manner in which questions were
phrased to her. There is no indication of
prejudice resulting to the appellant, and, if
there was a violation of the sequestration
rule, the court has discretion in admitting
the witness's testimony, particularly where,
as here, there was no prejudice. Ford v.

State,2X So.2d 454 (Miss.1969).

VI.

tlll Did the trial court err in refusing
to grant appellant's motion for appointment
of a criminologist or criminal investigator
and a psychiatrist to assist in preparation of
the defensc?

Aplrcllant says thal he was rlenicrl a fair
trial because thc lower court ovcrruled his
motions to employ various experts. Appel-
lant filed a motion for psychiatric and psy-

Miss. 607

Appellant also filed a motion requesting
that the court pay for the expenses of hig

own pathologist, which was substituted for
a motion to employ a criminal investigator.
The appellant did not outline any specific
costs for such an investigator, and did not
indicate to the court in any specific terms
as to the purpose and value of such an
individual to the defense. We are of the
opinion that the lower court committed no

error in declining to authorize expenses for
employing such expert and investigator.
Davis v. State, 374 So.2d 1293 (Miss.1979);

Laughter v. State, 235 So.2d 468 (Miss.

19?o).

VII.

tl2l Did the lower court err in admit-
ting photogtaphs of the deceased during
trial?

The State offered in evidence, and the
lower court admitted, black and white pho-
tographs of the victim after he had been

slain. Appellant claims that the pictures
were inflammatory and had no probative
value. The photographs showed how the
body was weighted with concrete blocks
and how the garden hose was wound
around it to hold the blocks in the body for
the purpose of submerging it. The condi-
tion of the body, as reflected by the photo-
graphs, corroborated the tcstimony of the
pathologist, particularly concerning the
wounds upon the body.

The trial judge has wide discretion in
admitting photographs into evidence, and
we are of the opinion that he did not abuge
his discretion in admitting the photographs
of the victim. Irving v. State, 361 So.2d
1360 (Miss.1978); Mallette v. State, 349

So.2d 546 (Miss.197?).

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608 Miss. 39I SOUTHERN REPORTER,2d SERIES

VIII.
tlSl Did the trial court err in admitting

the testimony of Dr. Galvez and in refer-
ring to a photograph introduced by his tes-
timony?

Appellant argues that the evidence of the
pathologist, Dr, Galvez, was cumulative and
was not necessary to prove the corpus <le-
licti, since the crime had bcen established
by previous witnesses. Appellant relies
upon Jack.son v. State, BBT So.2d 1242 (Miss.
19?6) for the principle that the State's use
of a pathologist's testimony is unnecessary
to prove corpus delicti where the deceased
was found in an unusual place under un-
usual circumstances. However, Jackson
does not support his argument on this point.
The pathologist's testimony was proper and
beneficial to establish the exact cause of
death, which resulted from a fracture of the
victim's skull. It further reflected that ab-
sence of water in the lungs indicated death
to be due to the head injury rather than
drowning. The testimony and evidence
were properly admitted.

IX.

tl4l Did the trial court err in allowing
certain witnesses to testify and in violating
the bifurcated trial principle mandated by
Jackson v. State?

Allpellant contends that the court erred
in allowing Larry Keen, W. L. Moss and
James Jones to testify about conversations
they had with Mark Dickson the night he
was killed. Appellant says that such testi-
mony, together with the photographs,
should not be introduced during the guilt
phase of the trial, and, if at all, only during
the sentencing phase. The testimony of
such witnesses was to the effect that Dick-
son stated he was not in the mood for
drinking and that he was going home be-
cause he did not have any money on him.
Appellant's attorney conducted a rigid
cross-cxamination of those witnesses con-
cerning what Dickson had told them. Thc
dircct examinati<ln antl the cross-examina-
tion were not prejudicial to appellant, and
the re is no merit in the assignment.
Stringer v. State,279 So.2d 156 (Miss.19?3);

Fielder v. State,235 Miss. 44, 108 So.2d 5g0
(195e).

x._xr.
Did the trial court err in not permitting

appellant to cross-examine witnesses as to
Mark Dickson's character and did it err in
refusing to grant a mistrial?

Did the trial court err in allowing Larry
Keen and James Jones to testify to the
good character and habits of Mark Dickson
and in not declaring a mistrial when Larry
Keen mentioned the bad character of appel-
lant and in not allowing defense counsel Co

cross-examine those witnesses as to the bad
character of Mark Dickson?

[15] Assignments of error IX, X and XI
involve substantially the same question(s).
The witnesses mentioned above testified 0o

statements made by Dickson, which have
been covered in Assignment IX and which
do not constitute reversible error.

Appellant contends that the Statc at
tacked the character of appellant by the
following question and answer:

a. Did Mark Dickson, to your knowl-
edge, know either Rickey Turner or
Crawford Bullock?

A. I think he knew Bullock. He knew
Bullock because Bullock was raised in
our neighborhood and we had seen him
before out. I was with Mark at the
Zodiac Lounge and Crawford [Bullock]
was engaged in a fight there and we
saw him there, you know.

BY MR. EVANS:
Your Honor, I am going to object to

this and move for a mistrial-ask that
that be stricken from the record and
move for a mistrial. This is absolutely
irrelevant. The testimony is inadmissi-
ble, it's prejudicial and it's just not sup
posed to be in this case.

BY THE COURT:

Members of the jury, disregard the last
statement that the witness made. Do all
of you tell me that you can disregard the
last statement?
(Jurors nodding affirmative).

The tr
jection
instruct,
and ask,

ir. The
reply.
the Stat
the jur.r
gwer, ar

error.
(Miss.19

174 So

13? Mis

Did t'
nesses I

automol
night ol

116, I'
court t,

testify
T-bird .

night o

Dickson
mobile.
larceny
party t

bailee ,

So.2d '
State, li
ment is

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introdu
of Mar

ApP,'
the gr
flamm.
his dis,
Voyles
May v

tlel
Instrur
murder

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44, 108 So.2d 590

in not permitting
re witnesses as to
,' and did it err in
'irrl?

in allowing LarrY
to testify to the

s of Mark Dickson
ristrial when LarrY
character of appel-
defense counsel to

,csses as to the bad
,ln?

rrrror IX, X and XI
r same question(s).
I above testified to
ckson, which have

nent IX and which
rble error.

hat the State at-
f appellant by the
rnswer:

'n, to your knowl-
Rickey Turner or

Bullock. He knew
llock was raised in

'rd we had seen him
with Mark at the
Crawford [Bullock]
fight there and we

know.

going to object to
mistrial-ask that

,rn the record and

This is absolutelY
rrnony is inadmissi-
,xl.it's just not sup

r', rlisregard the last
ilncss mttle. Do all
,ru can disregard the

rnative).

IltlLLOCK v. STATE
Cite as. Mlss.. 391 So.2d 0Ol

The trial judge sustainerl appellant's ob- erroneously given for the reason that there
jection to the question and answer, and was no requirement for the jury to find
instructed the jury to disregard the answer, Mark Dickson was in fact killed. The perti-
and askc<l the jury if they could disregard nent part of the instruction follows:
it. The jury gave the judge an affirmative "[A]nd, if the Jury further finds from the
rcllly. The answer was not responsive to evidence in this case, beyond a reasonable

the State's question, the trial ju<lge directed doubt, that on said date aforesaid, while
the jury to disregard the question and an- engaged in the commission of the afore-
swer, and it rloes not constitute reversible said robbery, if any, that the said Craw-
error. Ilotifiekl v. State, 2?5 So.2d 851 ford Bullock, Jr., did alone, or while act-
(Miss.l9?3); Hughes v. State, 1?9 Miss. 61, ing in consert [sic] with another, while

l?4 So. 557 (193?); Dabbs v. Richardson, present at said time and place by consent-

13? Miss. 789, 102 So. 769 (1925).

XII.
Did the trial court err in permitting wit-

nesses to testify as to the ownership of the
automobile driven by Mark Dickson on the
night of the homicide?

[6, l7] Appellant contends that the
court erred in permitting Larry Keen to
testify about the ownership of the gray
T-bird automobile Dickson was driving the
night of the homicide. It is undisputed that
Dickson was in possession of the said auto-
mobile. An indictment charging robbery or
larceny of property is properly laid in the
party having possession, either as owner,
bailee or agent. Mahfouz v. State, 303

So.2d 461 (Miss.1974); Minneweather v.

State, 55 So.2d 160 (Miss.1951). The assign-
ment is without merit.

XIII.
U8l Did the trial court err in permitting

introduction of the high school photograph
of Mark Dickson?

Appellant objected to its introduction on

the ground that it was irrelevant and in-
flammatory. The trial judge did not abuse

his discretion in admitting the photograph.
Voyles v. State,362 So.2d 1236 (Miss.1978);

ilIay v. State, 199 So.2d 635 (Miss.1967).

xIv.
[9] Did the trial court err in granting

Instruction # 15, which was the capital
murtler instruction?

Appellant cites no authority on this as-

signment, but simply argues that it was

Miss. 609

ing to the killing of the said, Mark Dick-
son, and that the said Crawford Bullock,
Jr., did any overt act which was immedi-
ately connected with or leading to its
commission, without authority of law,
and not in necessary self defense, by any
means, in any manner, whether done with
or without any design to effect the death

of the said Mark Dickson,
(Emphasis added)

It may be noticed that the instruction
does require a finding that Mark Dickson
was killed, and it correctly sets forth the
issues which must be decided by the jury
before the accused could be convicted. Wil-
liams v. State, 3L7 So.%l 4?5 (Miss.1975).

AssignmenLs of Error XV through XXIV
deal with the refusal of the trial court to
grant certain instructions requested by the
appellant. Was it emor to refuse those
instructions?

xv.
t20l Instruction D-8 was the single jur-

or instruction. The appellant argues that
the instruction was "a fair and accurate
representation of the law" and should have
been granted. The principle of the instruc-
tion was covered in Instruction # 12, and,
although in different language, it was not
error to refuse the instruction. fuagan v.

State, 318 So.2d 8?9 (Miss.l975).

xvI.
t2l] Instruction D-9 was condemned in

McNamce v. State, 313 So.2d 392 (Miss.

19?5) as being an improper comment on the
weight and worth of the defendant's testi-
mony and was properly refused.

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Instruction D- l0 was correctly refused
by the lower court since it should be given
only in a llurely cirOumstantial evidence
casc.

XVIII.
I22) Instruction D-30 would havc tokl

the jury that it need not find any mitigat-
ing circumstances in order to return a sen-
tcnce of Iife imltrisonment; that a life sen-
tence may be returned regardless of the
cvirlcnce. The instruction was in direct
conflict with Instruction D-20 which told
the jury to weigh the mitigating circum-
stances against any aggravating circum-
stances before returning a verdict and was
correctly refused under Jackson v. State,
supra.

xIx.
l23l Instruction D-31 would have told

the jury it was instructed there is nothing
that would suggest the decision to afford an
individual defendant mercy violates the
constitution. That statement was taken
from language set forth in the opinion of
Gregg v. Georgia, 428 U.S. 15S, 96 S.Ct.
2909, 14 L.Ed.2d 859 (1976). It is simply a
statement of the opinion, and was not in-
tended as an abstract proposition of law to
be given in jury instructions.

xx.
t24) Instruction D-.33 would have in-

structed the jury it was to presume that, if
the accused was sentenced to life imprison-
ment, he would spend the rest of his life in
prison, and the jury was to presume that, if
the accused was sentenced to death, he will
receive lethal gas until he is dead. The
instruction was improper and was calculat-
ed to confuse the jury.

xxI.
Instruction D.34 and thc sense of same,

was contained in Instruction # 14, which
was grantetl by the court, and it was not
error to refuse D-34.

39I SOUTHERN REPORTER,2d SERIES

xvil. xxrr._xxlv.
Instructions D-35, D-36 and D-B? did

not put the lower court in error for their
refusal. They were either improper in-
structions, or the proper and correct parts
were included in Instruction # 14 granted
by the court.

xxv.
125) Did the court err in failing to sus-

tain appellant's motion for a mistrial made
during the State's closing argument and in
not sustaining objections to prejudicial and
inflammatory arguments of the district at-
torney?

Appellant contends that, during closing
argument, the district attorney referred to
his problem with psychosis as being a possi-
ble explanation for committing the crime.
He objected to the remark and stated that
such remark was not supported by the evi-
dence. However, appellant himself intro.
duced in evidence the hospital record of
appellant which indicated that on May lb,
1978, he was admitted to the University
Medical Center for treatment and the diag-
nosis indicated that he suffered from psy-
chosis. Such evidence was fair comment in
the argument by the district attorney.

t26l Appellant next argues that the dis-
trict attorney gave a false impression to the
jury of the elements of the crime of roh,
bery. Part of the argument follows:

"Now, look, if you see a guy on the
street, do you walk up and whop him on
the head and drop boulders on him and
hit him with a two by four and then you
take his billfold and you take his car, but
you didn't rob him. Do you believe
that?"

I27) The trial judge overruled the objec-
tion and stated that it was final argument.
There is wide latitude for attorneys to ar-
gue cases to juries, and we do not think
that such remarks of the district attorney
were improper or prejudicial.

iZSl Appellant objects to argument of
the district attorney, which he says wan
improper because it indicated that finger-

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xIv.
) 36 and D -37 did
t in error for their
'ither improper in-
r and correct parts
ction # 14 granted

rr in failing to sus-
for a mistrial made
rg argument and in
r to prejudicial and
s of the district at-

lrat, during closing
,ttorney referred to
;is as being a possi-
rmitting the crime.
trk and stated that
pported by the evi-
lant himself intro-
hospital record of
d that on May 15,

to the University
:nent and the diag-
,uffered from psy-
,rs fair comment in
t rict attorney.

,rgues that the dis-
rr impression to the
the crime of rob-

rent follows:
)iee a guy on the
, and whop him on
,rltlers on him and
four and then you

,u take his car, but
Do you believe

rerruled the objec-
;rs final argument.
,r attorneys to ar-
u'e do not think

, rlistrict attorney
,'ial.

r to argument of
rrich he says was
"tted that finger-

IIULLOCK v. STATE
Clte as, Mlss.,39l So.2d 601

Miss. 61f

l

prints coultl not be taken from all the evi- Here, appellant was not restricted in any

dence. There was testimony that it was manner in the presentation of his defense,

impossible to remove latent fingerprints the record reflects that he was not preju-

from concrete and certain other materials diced by proceeding into the sentencing

introduced in evitlence. This was fair argu- phase and that he had a fair trial' The

ment, and did not constitute error. lower court proceeded under the guidelines
of Jackson v. State, and there was no error

t29l Appellant lastly objects to the dis- in so doing.

trict attorney's refcrence to the statement
made by applllant to the investigating offi- XXVII'

cers as lr"ing " confession. t3U Was the verdict of the jury con-

rhe sratemenr was incriminaringi .on :1ffi,:: jffi;,flffl#i,J1tl:Jijl;
nectcrl appellant with the crime, and may
properly be rcrerrert ;;"; ;;;;J;. prejudice?

Also, during the trial of the case, appel- The sense and principle of this assign-

lant,s own counsel referred to the state- ment of error has been discussed in Assign-

ment as being a confession. There is no ment IV' wherein the appellant claimed
.' that the court erred in declining his request

ment ln Lne conLenllon.
for a peremptory instruction of not guilty.

As stated there, the evidence for the
xxVI' State, including the oral and written con-

t30] Did the lower court err in denying fessions of appellant, his testimony at the

appellant's motion for a recess until the trial, and the physical evidence, unless re-

following morning before procee{ing to the jected by the jury, was amply sufficient to

sentencing phase of the trial? prove beyond reasonable doubt the guilt of

The jury returned a verdict of guilty of the appellant and the verdict was not con-

capital murder in the first phase of the trial trary to the great weight of the evidence'

at approximately 8:00 p. m. The jurors had XXVIII.
eaten supper at that time. The trial judge

indicated his desire to proceed with the t32l Did the lower court err in overrul-

sentencing phase of the case, whereupon, ing appellant's motion to quash the indict'

appelanr moved rhe courr to recess until 1":::XL.:i:::lining 
to declare the statut'e

the fottowing morning for that purpose' unconsllLuIlonal 
'

The trial judge asked the jury whether any This Court has spoken on the constitu-

of them were too tired io proceed, they tionality of the death penalty statute and

indicated that they were not, and the judge has determined that the statute' as imple-

assured the jury ihut, if they became tired mented by the legislature and construed by

at any time, he woultl stop the proceedin* the court' is constitutional' ln Coleman v'

and retire for the evening. The trial pro- State, 378 So.2d 640 (Miss'l'979), the Court

ceeded in the sentencing ph".u and the jury said:

returned a verdict for ii" death penalty at "This contention is without merit' The

approximately 11:00 p. m. The facts of the constitutionality of the death penalty as

cuse srb judice may be distinguished from imposed under Section 99-19-101, et seq'

that of Thornton v. State,369 So.2d 505 has been firmly established' Proffitt v'

(Miss.19?9) where two of the <lefen<lant's Florida, 428 U.S. 242, 96 s'ct. 2960' 49

sttorneys, one approximately seventy (?0) L'Ed'2d 913 (1976); Washington v' State'

yu"., oid and ons in ill health, *"." not ubl" 361 So.2d 61 (Miss.1978)." 3?8 So'2d at

io properly function because of their in- ul'
firmitics. The attorneys were also rcstrict- In our opinion, there were no reversible

ed in their final argument to short periods errors in the guilt phase of the trial and the

of time. case should be, and is, affirmed'



612 Miss.

SENTENCING PHASE
Mississilrlli Corlc Annotatcrl Scction 99

l9-105 (Supp. 1979) provides thc following:
"(1) Whenever.[he death penalty is im-

posed, and upon the judgment becoming
final in the trial court, the sentence shall
be reviewed on the record by the Missis-
sipJri Supreme Court. The clerk of the
trial court, within ten (10) days after
receiving the transcript, shall transmit
the entire record and transcript to the
Mississippi Supreme Court together with
a notice prepared by the clerk and a

report prepared by the trial judge. The
notice shall set forth the title and docket
number of the case, the name of the
defendant and the name and address of
his attorney, a narrative statement of the
judgment, the offense, and the punish-
ment prescribed. The report shall be in
the form of a standard questionnaire pre-
pared and supplied by the Mississippi Su-
preme Court, a copy of which shall be
served upon counsel for the state and
counsel for the defendant.

(2) The Mississippi Supreme Court
shall consider the punishment as well as

any errors enumerated by way of appeal.
(3) With regard to the sentence, the

court shall determine:
(a) Whether the sentence of death was

imposed under the influence of passion,
prejudice or any other arbitrary factor;

(b) Whether the evidence supports the
jury's or judge's finding of a statutory
aggravating circumstance as enumerated
in section 99-19-101; and

(c) Whether the sentence of death is

excessive or disproportionate to the pen-
alty imposed in similar cases, considering
both the crime and the defendant.

(4) Both the defendant and the state
shall have the right to submit briefs with-
in the time provided by the court, and to
present oral argument to the court.

(5) The court shall include in its dcci-
sion it rcfcrence to thosc similar clscs
which it took into consideration. In a<kli-
tion to its authority regar<ling corrcction
of errors, the court, with regard to review
of death sentences, shall be authorized to:

39I SOUTHERN REPORTER,2d SERIES

(a) Affirm the sentence of death; or

(b) Sct the sentencc aside and remand
the case for modification of the sentence

to imprisonment for life.
(6) The sentence review shall be in ad-

dition to direct appeal, if taken, and the
review and appeal shall be consolidated
for consideration. The court shall render
its decision on legal errors enumerated,
the factual substantiation of the verdict,
and the validity of the sentence."

We have held in Jackson, and pursuant to
thc above section, that cases in which a

death sentence is imposed will be automati-
cally reviewed as preference cases by this
Court; that the record will be reviewed and

comllared with similar cases to determine
whether the punishment of death is too
great when the aggravating and mitigating
circumstances are weighed against each

other in order to assure that the death
penalty will not be wantonly or freakishly
imposed; and only will be inflicted in a

consistent and even-handed manner under
like or similar circumstances.

Sinee Jackson v. State, 337 So.?tJ L242
(Miss.1976), eleven (11) capital murder cases

have been decided by this Court. Seven (7)

of those cases have involved felony (rob.
bery) murder. Reddix v. State, 381 So.Zt
999 (Miss.1980); Jones v. State, 381 So.2d

983 (Miss.1980); Culberson v. St8te, 379

So.2d 499 (Miss.1979); Irving v. State, 361

So.2d 1360 (Miss.1978); Voyles v. State,362
So.2d 1236 (Miss.1978h Washington v.

State, 361 So.2d 6l (Miss.1978); Bell v.

State, 360 So.2d 1206.

We have carefully reviewed those cases

and compared them with the case and sen-

tence sub judice. Appellant contends that
the extent of his involvement in the crime
was as an accomplice, who did not strike the
fatal blow, and that Tucker was the princi-
pal, who killed the victim. He argues that
Tucker was given life imprisonment by the
jr.y, which tricd him; that appellant
should not receive I grcater or harsher pen-

alty than Tucker; and that appellant'e
death sentence should be reduced to life
imprisonment.

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' of death; or
,le and remand
,rf the sentence

shall be in ad-
taken, and the

)rc consolidated
'rrt shall render
rs enumerated,
of the verdict,

,rtence."

rnd pursuant to
;es in which a
ill be automati-
{j cases by this
,e reviewed and
s Lo determine
.f death is too
and mitigating
I against each
t.hat the death
ly or freakishly
' inflicted in a

..manner 
under

'.\37 So.2d 7212
al murder cases
rurt. Seven (7)
,rl felony (rob-
Itate, 381 So.2d
llate, 381 So.2d

v. State, 379
,g v. State, 361
las v. State,362
Washingl,on v.

1978); Bell v.

lcrl those cases

c case and sen-
t contends that
nt in the crime
rrl not strike thc
was the princi-
lle argues that
ronment by the
thirt appcllant
or harsher llcn-
lrat appellant's
reduced to life

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ln Coleman v, State, supra, Coleman was
found guilty by a jury in the robbery-mur-
der of one Burkett, and was given death.
He was sixteen (16) years of age and fired
the fatal shot that killed Burkett. His ac-
complice in the crime was permitted to en-
ter a guilty plea to manslaughter and was
sentenced to a term of years in the peniten-
tiary. In comparing Coleman's death sen-
tence to that of other cases heard by this
Court, we said:

"Having carefully compared the case at
bar with these cases in which the sen-
tence of death was imposed, we are of the
opinion that the sentence of death in this
case 'is excessive or disproportionate to
the penalty imposed in similar cases, con-
sidering both the crime and the defend-
ant.'

ln lrving, Washington and Bel/, the
killings were totally senseless and com-
mitted upon hapless victims unarmed and
unable to protect themselves. The cir-
cumstances in this case are strikingly dif-
ferent. Here, Harry Burkett, the victim,
upon seeing the foot of Sims protruding
from under the pickup truck, began fir-
ing his pistol. Only after being fired
upon did the 16-year-old Coleman shoot.
Again, Coleman had the opportunity to
shoot Mrs. Burkett, who was an eyewit-
ness, but did not. He fled the scene
instead.

Under the specific authorization of sub-
section (5)(b) of S 99 -19- 105, this Court
affirms the conviction but reverses and
sets aside the death sentence and re-
mands this case to the trial court for
modification of the sentence to imprison-
ment for life." 378 So.2d at 650.

ln Culberson v. State, supra, Culberson
was found guilty of robbery-murder and
was given the death penalty. The principal
evidcnce and witncss against Culberson was
an accomplice, Alvarese Pittman. His testi-
mony was substantially to the effect that
he was with Culberson, they were going to
rob the victim, that he did not know Culbcr-
son harl a pisLol until Culbcrson shot anrl
killed thc victim. On a plca of guilty, Pitt-
man was given a comparatively light sen-
tence in the penitentiary. The Court said,
in affirming the death penalty:

BULLOCK v. STATE
Clte as, Mlss.,391 So.2d 60l

Miss. 613

"This leaves the question of whether
the words in Subsection (3)(c), 'imposed in
similar cases, considering both the crime
and the defendant,' include for our re-
view and comparison the exact and there-
fore similar crime of the accomplice and
the sentence received by him for it. We
construe the language to include not only
the capital cases heretofore determined
by this Court in which the death sentence
has been imposed or rejected on the mer-
its, but also cases involving multiple de-
fendants when one participant is given
the death penalty and an accomplice less

than death. One of the questions arising
in such cases is whether a sentence of less

than death to an accomplice was a result
of prosecutorial discretion. An affirma-
tive answer raises a second question, was
the discretion abused?

We hold prosecutorial discretion was
not abused because Pittman, who did not
fire the fatal shot, was permitted to plead
guilty to manslaughter, while Culberson,
the one who fired the fatal shot, was
given the death penalty. We hold the
death penalty was not applied capricious-
ly in this case. It is a proper sentence for
the senseless and unprovoked murder
committed by Culberson, who, after first
knocking the victim down with a table
leg, then shot the victim while he was
lying on the ground begging, 'Help me,

help me."' 3?9 So.2d at 510.

ln Lockett v. Ohio,438 U.S. 586, 98 S.Ct.
n54,57 L.Ed.zd 973 (1978), Sandra Lockett
was charged with aggravated murder with
aggravating specifications. She and three
(3) others conspired to rob a pawnbroker's
shop. Lockett remained in the getaway
automobile with the engine running, the
other three entered the pawn shop and dur-
ing the robbery, Parker, one of the three,
killcrl thc proprietor. Prior to trial, Parker

lllcarlerl guilty to the murder charge, and
agreed to testify against Lockett and the
other two. In return, the prosecutor dis-
missed the aggravated robbery charge and

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6f4 Miss. 391 SOUTHERN REPORTER, 2d SERIES

the specifications to the murder charge
which limited the possibility that Parker
could receive the death penalty.

Two weeks before Lockett's separate tri-
al, the prosecutor offered to permit her to
plead guilty to voluntary manslaughter and
aggravated robbery, offenses which carried
a maximum penalty of twenty-five (2b)
years imprisonment. Prior to the trial, he
offered to permit her to enter a plea of
guilty to aggravated murder without speci-
fications, an offense carrying a mandatory
life penalty. These plea bargaining offers
were rcjected by Lockett; she was tried
and was given the death penalty.

Although thc case was reverserl on anoth-
er ground, the question was raised as to
whether or not Lockett's conviction as an
aider and abetter of the actual killer was
invalid on the ground that the interpreta-
tion by the Ohio Supreme Court of the
complicity provisions of the Ohio statute,
under which the defendant was convicted,
was so unexpected that it deprived her of
her due process right to fair warning of the
crime with which she was charged.

The United States Supreme Court held
that her conviction as an aider and abetter
of the actual killer was not invalid.

ln Coppola v. Commonvealth, 220 Ya.

-, 
257 S.E.zd 797 (1979), the Virginia

Supreme Court held that a co-defendant is
not necessarily entitled to commutation of
the death sentence because an equally cul-
pable accomplice, on substantially the same
evidence, has been sentenced to life impris-
onment. That Court held that a determina-
tion of the proportionability of punishment
requires only that the death sentence not be
so incommensurate with his conduct, meas-
ured by other jury decisions, involving simi-
lar conduct.

t33l In the case at bar, there is no rec-
ord of the aggravating circumstances and
mitigating circumstances in the trial of
Tuckcr, antl it is not Jxlssiblc to rlutt:rrnine
whttt circurtrstonces influencurI tlrc jury in
its life venlict. The law is wcll scttletl in
this state that any person who is present,
aiding antl abctting another in the commis-

sion of a crime, is equally guilty with the
principal offender. Jones v. State, B0?

So.2d 549 (Miss.1975); Bass v. State, BL
S<r.2d 495 (Miss.l970); McBroom v. Statc,
217 Miss. 338, M So.2d 1,14 (1953).

[34] When we compare the present case
to other capital cases, which have been af-
firmed by this Court on the death penalty,
the present robbery-murder is equally as
wanton, cruel, senseless, heinous and atro-
cious as those. The evidence is overwhelm-
ing that appellant was an active participant
in the assault and homicide committed upon
Mark Dickson and, in our opinion, is not so
disproportionate, wanton or freakish when
compured to those crimes so as to require
this Court to reduce the sentence to life
imprisonment.

Therefore, the judgment of the lower
court is affirmed and Wednesday, the l0th
day of September, 1980, is set as the date
for execution of the sentence and infliction
of the death penalty in the manner provid-
ed by law.

AFFIRMED AS TO GUILT PHASE:
AFFIRMED AS TO SENTENCING
PHASE.

PATTERSON, C. J., SMITH and ROB-
ERTSON, P. JJ., and SUGG, WALKER,
BROOM, BOWLING and COFER, JJ., con-
cur.

Chester Lee COOLEY

v.

STATE of Mississippi.

No. 51807.

Supreme Court of Mississippi.

Aug. 27, 1980.

As Modificrl On Dcnial of Rehearing
I)cc. 17, 1980.

Dcfendant was convicted in the Circuit
Court of Jones County, James D. Hester, J.,

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