Gerry Lynn Lester v. State of MS

IN THE SUPREME COURT OF MISSISSIPPI
NO. 93-DP-00619-SCT
GERRY LYNN LESTER
v.
STATE OF MISSISSIPPI

DATE OF JUDGMENT: 03/01/93
TRIAL JUDGE: HON. WILLIAM F. COLEMAN
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: GEORGE T. HOLMES
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: MARVIN L. WHITE, JR.
LESLIE L. LEE
DISTRICT ATTORNEY: PETERS, EDWARD J.,
NATURE OF THE CASE: CRIMINAL - DEATH PENALTY (DIRECT
APPEAL)
DISPOSITION: REVERSED AND REMANDED - 4/10/97
MOTION FOR REHEARING FILED:
MANDATE ISSUED: 5/1/97

EN BANC.

SULLIVAN, PRESIDING JUSTICE, FOR THE COURT:

¶1. During its January 1992 term, the Hinds County Grand Jury indicted Gerry Lynn Lester for the
capital murder of his one-year-old daughter Shadai Sanders in the course of felonious child abuse on
or about September 29, 1991, in violation of Miss. Code Ann. § 97-3-19(2)(f). Lester's trial began on
February 16, 1993, and on February 18, the court granted the prosecution's motion to amend the
indictment to include abuse during the time period between June 19, 1991 and September 29, 1991.
The jury returned a verdict of guilty on the charge of capital murder on February 26. The sentencing
phase of the trial was held on March 1, 1993, and the jury voted that the death penalty should be
imposed. On March 1, 1993, Circuit Judge William F. Coleman ordered that Lester be put to death
by lethal injection on April 12, 1993. Lester filed his motion for a new trial or for J.N.O.V. or for
resentencing on March 25, 1993, which was denied by Judge Coleman on May 7, 1993. Aggrieved
with the jury's verdict and sentence, Lester filed his appeal to this Court assigning thirty-five separate
errors for our review. Because we find reversible error in Issues II, IV, VII, and X, and in subparts E,
F, and G of Issue VI, the conviction of capital murder and sentence of death by lethal injection must
be reversed, and the case must be remanded for a new trial.

I. THE TRIAL COURT ERRED IN OVERRULING LESTER'S OBJECTIONS TO
VOIR DIRE QUESTIONS BY THE PROSECUTOR WHICH WERE
HYPOTHETICAL, DESIGNED TO CONFUSE AND MISLEAD THE JURY OR TO
COMMIT THEM TO A VERDICT PRIOR TO TRIAL.

II. LESTER'S CASE MUST BE REVERSED BECAUSE THE TRIAL JUDGE
ERRONEOUSLY ALLOWED THE PROSECUTOR TO AMEND THE INDICTMENT.

III. THE TRIAL JUDGE ERRED IN ALLOWING THE PROSECUTORS TO ELICIT
IMPROPER OPINIONS FROM EXPERT WITNESSES.

IV. LESTER WAS DEPRIVED OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF
COUNSEL, DUE PROCESS AND A FAIR TRIAL BY THE TRIAL JUDGE'S DENIAL
OF HIS REQUEST FOR CONTINUANCE FOR ADEQUATE TIME TO PREPARE.

V. THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF LESTER'S POST
ARREST SILENCE.

VI. THE CUMULATIVE EFFECT OF THE INTRODUCTION OF OTHER OFFENSE
AND BAD ACTS EVIDENCE AND THE PROSECUTION'S IMPROPER
SUGGESTION THAT THE JURY SHOULD USE THE EVIDENCE TO CONVICT
THE DEFENDANT BECAUSE OF HIS BAD CHARACTER CALLS FOR REVERSAL
OF BOTH THE GUILT AND PENALTY PHASES OF LESTER'S TRIAL.

VII. THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S OBJECTION
TO TESTIMONY FROM RUCHELLE SANDERS, THE VICTIM'S MOTHER,
ABOUT GERRY LESTER'S ALLEGED ASSAULTS ON RUCHELLE WHILE SHE
WAS PREGNANT.

VIII. THE COURT ERRED IN ADMITTING HEARSAY EVIDENCE.

IX. THE COURT ERRED IN ADMITTING INADMISSIBLE OPINION EVIDENCE.

X. THE CUMULATIVE EFFECT OF IRRELEVANT PREJUDICIAL EVIDENCE
WARRANTS REVERSAL.

XI. THE TRIAL COURT ERRED IN NOT ADMITTING THE FULL TEXT OF
EXHIBITS E AND F, LETTERS FROM LESTER TO SANDERS.

XII. THE PROSECUTION'S DELIBERATE FAILURE TO PROVIDE DISCOVERY
WARRANTS REVERSAL.

XIII. THE TRIAL COURT ERRED IN OVERRULING LESTER'S OBJECTION TO
THE PROSECUTOR'S UNSWORN TESTIMONY THAT HIS OFFICE HAD NOT
DENIED LESTER A POLYGRAPH.
XIV. THE TRIAL COURT ERRED IN DENYING INSTRUCTION NUMBER D-9
WHICH EMBODIED A THEORY OF DEFENSE.

XV. THE OVERLAP BETWEEN SECTION 97-3-19(2)(f) AND 97-3-27 GIVES
PROSECUTORS AND JURIES UNFETTERED DISCRETION TO IMPOSE EITHER
THE DEATH PENALTY OR CONVICT OF MANSLAUGHTER AND VIOLATES
THE EIGHTH AMENDMENT AND CORRESPONDING SECTIONS OF THE
MISSISSIPPI CONSTITUTION.

XVI. THE INSTRUCTIONS FAIL TO ADEQUATELY INFORM THE JURY OF ITS
OPTIONS TO FIND MANSLAUGHTER.

XVII. THE JUDGE COMMITTED REVERSIBLE ERROR IN OVERRULING
LESTER'S OBJECTION TO THE JURY INSTRUCTION WHICH OMITTED
INTENT FROM THE ELEMENTS OF THE CHARGE ON CHILD ABUSE.

XVIII. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN REFUSING
TO GIVE THE INSTRUCTION REQUESTED BY THE DEFENSE DEFINING CHILD
ABUSE AND CHILD NEGLECT.

XIX. THE TRIAL COURT ERRED IN OVERRULING LESTER'S CHALLENGES
FOR CAUSE TO SEVERAL JURORS.

XX. THE TRIAL COURT ERRED IN SUSTAINING THE PROSECUTION'S CAUSE
CHALLENGE TO JUROR NIMOX.

XXI. THE TRIAL COURT ERRED IN GRANTING THE STATE'S CHALLENGE
FOR CAUSE TO JUROR HENRY GREENE.

XXII. THIS CASE MUST BE REVERSED OR REMANDED BECAUSE THE JUDGE
DID NOT REQUIRE THE PROSECUTOR TO GIVE REASONS FOR HIS
PEREMPTORY CHALLENGES.

XXIII. ADDITIONAL PROSECUTORIAL MISCONDUCT DEPRIVED LESTER OF
DUE PROCESS AND A FAIR TRIAL.

XXIV. THE VERDICT OF GUILT IS SUPPORTED BY INSUFFICIENT CREDIBLE
EVIDENCE.

XXV. THE PROSECUTION COMMITTED REVERSIBLE ERROR AT SENTENCING
BY COMMENTING ON LESTER'S FAILURE TO TESTIFY.

XXVI. INSTRUCTIONS DEFINING "HEINOUS, ATROCIOUS OR CRUEL" WERE
UNCONSTITUTIONALLY VAGUE.

XXVII. THE HAC AGGRAVATOR IS ALSO UNCONSTITUTIONAL AS APPLIED
TO LESTER.
 XXVIII. THE TRIAL COURT'S ANTI-SYMPATHY INSTRUCTION COUPLED
WITH THE DENIAL OF A MERCY INSTRUCTION MEAN THAT LESTER'S
SENTENCE MUST BE REVERSED.

XXIX. THE TRIAL COURT ERRED IN INSTRUCTING THE JURY THAT LESTER
WAS REQUIRED TO PROVE THAT THE MITIGATING CIRCUMSTANCES
OUTWEIGHED THE AGGRAVATING IN ORDER TO RECEIVE A LIFE
SENTENCE.

XXX. THE COURT ERRED IN GIVING INSTRUCTION SS-1.

XXXI. THE TRIAL COURT ERRED IN DENYING LESTER'S REQUEST FOR AN
INSTRUCTION ON THE STATUTORY MITIGATING FACTOR OF EXTREME
MENTAL OR EMOTIONAL DISTURBANCE.

XXXII. THE TRIAL COURT SIMILARLY ERRED IN DENYING LESTER'S
REQUEST TO INSTRUCT THAT THE JURY COULD CONSIDER HIS LACK OF
SIGNIFICANT CRIMINAL HISTORY AS MITIGATION.

XXXIII. THE TRIAL JUDGE ERRED IN GIVING INSTRUCTION S-5 OVER
LESTER'S OBJECTION.

XXXIV. THE TRIAL COURT ERRED IN GIVING INSTRUCTION S-3 WHICH
ALLOWED THE JURY TO CONSIDER NON-STATUTORY AGGRAVATING
CIRCUMSTANCES.

XXXV. THE DEATH PENALTY IS DISPROPORTIONATE IN THIS CASE.

STATEMENT OF THE FACTS

¶2. Shadai Sanders was born on September 30, 1990 to her parents, Ruchelle Sanders and Gerry
Lester. Ruchelle and Gerry lived together with Shadai and her then six-year-old half brother Kendrick
Sanders in a low-income apartment on Martin Luther King Drive that Ruchelle obtained by
application. Ruchelle worked at the Interstate Chevron Station on Northside Drive, and since Gerry
was unemployed, he stayed at home with the children. Gerry's sister, Brenda, and Gerry's mother,
Annie, sometimes took care of Shadai and Kendrick.

¶3. When Shadai was approximately eight months old, her lip became cut, bruised, and swollen while
Ruchelle was at work and Gerry was taking care of her. Ruchelle asked Gerry how Shadai's lip was
injured, and Gerry told her that Shadai had fallen. Gerry told Michelle Martin, Ruchelle's friend and
co-worker, that Shadai hurt her lip falling out of bed, but Michelle didn't believe him. Michelle told
Ruchelle that she thought Gerry was lying and that Ruchelle should get her baby away from Gerry.

¶4. On June 19, 1991, about two or three weeks after Shadai's lip was injured, Gerry called Ruchelle
at work and told her that Shadai's leg was broken and that he was taking her to the University of
Mississippi Medical Center (UMMC). Dr. Joel Donaldson treated Shadai for a spiral fracture in her
femur. Gerry initially gave Dr. Donaldson no explanation for the cause of injury, but later upon
questioning Gerry told the doctor that Shadai had caught her leg in the couch. Dr. Donaldson
testified at trial that the most likely cause of a spiral fracture in the femur of a child that age is child
abuse. This conclusion that the leg break was likely caused by child abuse was supported by the
testimony at trial of Dr. Bonnie Woodall, who subsequently treated Shadai on the night of her death,
and Dr. Bernard Blumenthal, the pediatric radiologist who analyzed Shadai's x-rays. Defense witness
Dr. Steven Timothy Hayne also testified that a spiral fracture suggests child abuse, but is not in and
of itself conclusive of abuse. However, based upon all of his knowledge of the case, Dr. Hayne
concluded that Shadai's spiral fracture was caused by child abuse.

¶5. Dr. Donaldson and Dr. Blumenthal also agreed that the spiral fracture was inconsistent with
Gerry's explanation that Shadai caught her leg in the couch. However, Dr. Hayne testified that
Shadai's leg could have been broken in a spiral fracture if her leg were caught in a fixed position and
Gerry pulled and twisted her out of the couch. Kendrick testified that on the day that Shadai's leg was
broken he came inside from playing and Shadai's leg was stuck in the couch.

¶6. After treating Shadai for the spiral fracture, Dr. Donaldson contacted the Department of Human
Services (DHS) to report his suspicion of child abuse per the hospital routine and Mississippi law in
suspected abuse cases. At the hospital Ruchelle talked to Wanda Gillom, a social worker with DHS.
Ms. Gillom came to Ruchelle's apartment the next day to speak with Gerry. Ruchelle told Ms. Gillom
that she had never seen Gerry abuse Kendrick or Shadai, but she did tell her that after the broken leg,
Shadai always cried when left with Gerry. Ms. Gillom instructed Gerry to attend classes on child
care, but Gerry never went. Ms. Gillom never came back, never called to check up on Ruchelle and
Gerry, and never followed up on her instructions for Gerry to attend the child care classes.

¶7. On September 29, 1991, Ruchelle got up at about 9:00 a.m. She fed and dressed Shadai, and
woke Gerry up at about 11:00. Then Ruchelle, Gerry, Shadai, and Gerry's brother, Eddie, all went
shopping together. Testimony differed as to whether Kendrick went along on the shopping trip.
Testimony also differed as to whether the group stopped by Ruchelle's workplace before going
shopping. During the shopping trip, Ruchelle would take Shadai into the stores with her and leave
Gerry and Eddie in the car.

¶8. After they finished shopping, they stopped by Ruchelle's workplace, so that Ruchelle could visit
with her friend and co-worker Michelle Martin. Ruchelle testified that Shadai was fine at this point;
she noticed no signs of grogginess or discomfort. While she was visiting with Michelle, Ruchelle
bought Gerry and Eddie a six-pack of beer.

¶9. Gerry, Eddie, and Shadai were going to Brenda's house for dinner. Ruchelle had to be at work by
6:00 p.m., so they went by Brenda's to pick up Kendrick. Then they took Ruchelle by her apartment
to eat and change for work and dropped her off at the Chevron. This was the last time that Ruchelle
saw Shadai alive, and Ruchelle testified that Shadai was fine at this point--laughing and playing, with
no signs of grogginess.

¶10. Gerry, Eddie, Kendrick, and Shadai all went to Brenda's for supper. Ruchelle had called Brenda
and asked her to have Gerry call her at work when he got to Brenda's, because she was worried
about Gerry driving after drinking beer. Gerry called Ruchelle at about 6:20 to check in with her;
then Gerry, Shadai, and Kendrick ate dinner. Kendrick testified that he and Shadai had eaten the
same food and that Shadai had fed herself with a spoon. Brenda, Gerry, and Brenda's fiancé, Carl
Jacobs, all testified that Shadai wouldn't eat when Brenda and Gerry tried to feed her, but the autopsy
report showed that Shadai's stomach contained peas, beans, and mashed potatoes.

¶11. Gerry, Kendrick, and Shadai went back to their apartment after eating and visiting, sometime
before 8:00. Eddie came over to the apartment about fifteen minutes after they arrived. At about the
same time, Shadai became violently ill, so Gerry, Eddie and Kendrick took Shadai to UMMC. Gerry
called Ruchelle from the hospital at about 8:30 and told her that he'd taken Shadai to the hospital.
Gerry came to pick up Ruchelle and told her that Shadai had been throwing up, but that he didn't
know what was wrong with her. When Ruchelle got to the hospital, the doctor called her into a
conference room and told her that Shadai was dead.

¶12. Dr. Woodall testified that Shadai had no vital signs when she arrived at the hospital. After
resuscitation efforts failed, Shadai was pronounced dead at 9:00 p.m. There were bruises on Shadai's
abdomen and back caused by multiple blows, she had multiple head injuries, and her inferior vena
cava had been ruptured. The cause of Shadai's death was interior bleeding from the ruptured vena
cava, but Dr. Galvez testified that Shadai would have died as a result of the head injuries had she not
bled to death. The experts' testimony showed that Shadai would have died within two to three hours
after her vena cava was ruptured, possibly in as little as thirty minutes. The experts also agreed that
Shadai would not have eaten after sustaining the abdominal and head injuries. Shadai's autopsy also
revealed that her anal and vaginal openings were enlarged from previous multiple penetrations, but
these wounds were healed. Dr. Hayne testified that because the wounds were healed, the sexual
abuse would probably have taken place more than two to three weeks before Shadai's death.

¶13. Detective Phil Burnham arrested Gerry at the hospital at 10:30 on the night of Shadai's death
and read Gerry his Miranda rights. Lester was found guilty of capital murder and sentenced to death
by lethal injection.

STATEMENT OF THE LAW

I.

THE TRIAL COURT ERRED IN OVERRULING LESTER'S OBJECTIONS TO VOIR
DIRE QUESTIONS BY THE PROSECUTOR WHICH WERE HYPOTHETICAL,
DESIGNED TO CONFUSE AND MISLEAD THE JURY OR TO COMMIT THEM TO A
VERDICT PRIOR TO TRIAL.

A.

Misinforming Jury of the Law

1. Mitigating Circumstances Must Outweigh the Aggravating

¶14. In Lester's first assignment of error, he claims that the prosecutor committed reversible error
during voir dire by misinforming the jury that the defendant has the burden of proving that the
mitigating circumstances outweigh the aggravating circumstances in order to avoid the death penalty.
He points to the discussion that occurred during voir dire involving venire member Julie Moore.
Lester asserts that during this exchange, Mr. Peters misinformed the jury by telling them that the
defendant had the burden of proving that the mitigating circumstances outweighed the aggravating
circumstances. This claim is simply untrue. Mr. Peters correctly stated the law, as set out in Miss.
Code Ann. § 99-19-101. This Court has stated, "Miss. Code Ann. § 99-19-101(2)(c) clearly requires
that the jury find that the mitigating circumstances outweigh the aggravating circumstances." Foster
v. State, 639 So.2d 1263, 1301 (Miss. 1994) (citing Shell v. State, 554 So.2d 887, 904 (Miss.1989);
Jordan v. State, 365 So.2d 1198, 1205 (Miss.1978); Gray v. Lucas, 677 F.2d 1086, 1105-1106 (5th
Cir.1982)). This Court has also previously rejected the argument that the burden of proof is shifted
by requiring that the mitigating circumstances outweigh the aggravating circumstances. Mack v.
State, 650 So.2d 1289, 1330 (Miss. 1994). Therefore, Lester's argument on this issue is without
merit.

¶15. Ms. Moore was obviously confused as to what the law was with regard to weighing the
mitigating and aggravating circumstances during the sentencing phase. The trial court correctly
sustained the prosecutor's objection to Mr. Malouf's statements in which he attempted to misinform
the jury on this aspect of the law, and correctly informed Ms. Moore and the rest of the jury that they
would be given instructions during the sentencing phase if the trial reached that point. Any lingering
confusion was cleared by the jury instructions given during the sentencing phase regarding the proper
weighing process, because it is presumed that the jury follows the instructions of the trial court.
Johnson v. State, 475 So.2d 1136, 1142 (Miss. 1985) (citing Payne v. State, 462 So.2d 902, 904
(Miss.1984); Carter v. State, 450 So.2d 67, 69 (Miss.1984)); Chase v. State, 645 So.2d 829, 853
(Miss. 1994).

¶16. Lester points to other occasions during voir dire in which Lester argues that Mr. Peters
misinformed the jury of the procedure for weighing aggravating and mitigating circumstances.
However, these other statements are all correct in assessing § 99-19-101 as requiring the jury to find
that the mitigating circumstances outweigh the aggravating circumstances. Discussion of these
statements, therefore, is unnecessary. This assignment of error is unpersuasive.

2. Telling Jurors They Could Not Consider Residual Doubt or That the Case Was
Circumstantial In Deciding to Impose Death

¶17. Lester argues that Mr. Peters improperly instructed the jury that they could not consider residual
doubt during the sentencing phase, and then secured commitments from several jurors that they
would not consider residual doubt. A criminal defendant has no right to have residual doubt
considered by the jury during sentencing. Franklin v. Lynaugh, 487 U.S. 164 (1988); Hansen v.
State, 592 So.2d 114, 150-51 (Miss. 1991) (citing Minnick v. State, 551 So.2d 77, 95 (Miss. 1988)
(overruled on other grounds by Minnick v. State, 498 U.S. 146 (1990); reversed in part on other
grounds by Willie v. State, 585 So.2d 650, 680-81 (Miss. 1991)). However, a defendant is free to
argue residual doubt. See Hansen, 592 So.2d at 151; Minnick, 551 So.2d at 95.

¶18. Lester claims that by instructing the jury that they could not consider residual doubt and
securing promises from the jury that they would not consider residual doubt, Mr. Peters effectively
precluded Lester from arguing residual doubt. However, Lester cites no authority supporting the
proposition that a defendant has a right to argue residual doubt. The cases which Lester cites merely
state that a defendant is free to argue residual doubt "to a relevant extent." Minnick, 551 So.2d at 95
(citing Franklin , 487 U.S. at 174-75). The United States Supreme Court declined to recognize any
right of a defendant to have the jury consider residual doubt in its decision in Franklin. Franklin,
487 U.S. at 174-75. This argument is also unpersuasive, because Lester was certainly free to argue
residual doubt during the sentencing phase, and did so, asking the jury to consider any remaining
doubt during its deliberations on sentencing. As a result, this assignment of error is unpersuasive and
without merit.

3. Law and Evidence

¶19. Lester next complains that Mr. Peters improperly told the jury that reasonable doubt must be
"based upon the law and the evidence and not upon some imaginary doubt." Lester's argument is that
Mr. Peters failed to inform the jury that reasonable doubt could be based upon a lack of evidence.
This assertion is uncompelling, because the phrase "based upon the law and evidence" inherently
includes consideration of a lack of evidence. Regardless, the trial court's jury instructions corrected
any potentially misleading comments by giving adequate instruction on reasonable doubt in
Instructions C-3 and D-18 (instructions on presumption of innocence, reasonable doubt, and the
exclusion of every reasonable hypothesis consistent with innocence). Furthermore, Instruction D-3
specifically stated that reasonable doubt of the defendant's guilt "may arise out of the evidence or the
lack of evidence in this case." (emphasis added). Even if Mr. Peters made improper statements
concerning reasonable doubt, the trial court's proper instructions removed any error. See Johnson,
475 So.2d at 1142.

B.

Convincing the Jury That It Was Their Duty to Convict

¶20. During voir dire, without any objection by Lester, the prosecutor asked the venire if they would
be intimidated by the polling of the jury to the point of it influencing their decision. One juror did
raise his hand and admit that he would find it "a challenge" to be polled after a guilty verdict in this
case. Lester argues that the prosecutor implied in these statements that it would be dangerous for the
jury to vote not guilty, and thereby secured a promise from the jurors that they would set aside their
fear of the defendant and vote guilty. However, Lester made no objection at trial to these comments,
so he is procedurally barred from raising this issue on appeal. See Carr v. State, 655 So. 2d 824, 853
(Miss. 1995) (holding that errors are waived when no objection is made). Aside from the procedural
bar, this interpretation of the prosecutor's comments is erroneous. The prosecutor was simply
explaining the process of returning the verdict and polling the jury to make sure that no jurors would
be intimidated or influenced by the procedure. No suggestion was made that the jury should fear the
defendant, and no promises were secured that the jurors would vote guilty. Lester's argument is
therefore without merit.

¶21. Over Lester's objection, Assistant District Attorney Cynthia Speetjens commented on the
difficulty in the task of voting for the death penalty. Lester argues that this line of closing argument
improperly and prejudicially called upon the jury to exercise its moral courage to sentence Lester to
death. He points to Leverett v. State, 73 So. 273, 273-74 (Miss. 1916), in which this Court reversed
the case because of improper questions by the trial court on voir dire. In that case the court
questioned jurors on sentiment as a negative comment on the defense theory of self-defense. Id. at
274. The court further questioned the jury as to whether they had the moral courage to vote guilty if
they found that the defendant was guilty of murder beyond a reasonable doubt, and if they had the
nerve to do their duty. Id. This Court held that such voir dire was in error, because it had the effect
of informing the jury that it had a duty to convict. Id. "Each juror was given to understand that he
would be a man of very little moral courage unless he found a verdict of guilty in this case. Such
examination was erroneous, and very prejudicial to the defendant." Id.

¶22. Here, the prosecution's comments did not give the jury the impression that they had a duty to
convict, but merely that voting for the death penalty is a difficult task. This case is also
distinguishable from Leverett, because in that case the erroneous comments were made by the trial
judge during voir dire. Here the statements to which Lester objects were made by the prosecutor
during closing argument. In Blue v. State , 674 So.2d 1184, 1208 (Miss. 1996), this Court
determined that a prosecutor's comments that the weight of the evidence supported the death penalty
were proper. Ms. Speetjens's comments were properly made to argue that the weight of the evidence
supported a sentence of death.

C.

Commitments to Ignore Mitigating Circumstances

¶23. Lester failed to object to any of the comments or questions during voir dire which he points to
in this assignment of error. He is, as a result, procedurally barred from raising this issue on appeal.
See Carr, 655 So. 2d at 853. Without waiving the procedural bar, this issue is uncompelling for the
reasons discussed below.

1. Prior Criminal History

¶24. Lester argues that the prosecution obtained commitments by jury members to ignore the
mitigating circumstance of no "significant history of prior criminal activity" through improper
questioning during voir dire. However, Lester did, in fact, have a prior criminal history; he was
previously convicted of grand larceny, a felony. All of the prosecutorial statements which Lester
points to were made in response to the information given by the jurors on their jury information
questionnaires. These were proper questions regarding the ability of the jury to follow the law. No
attempt was made by the prosecution in this case to secure promises from jurors that they would not
consider a lack of criminal history as a mitigating circumstance. This assignment of error is
procedurally barred and without merit.

2. Age

¶25. Without any objection from Lester, Mr. Peters asked the jury during voir dire if they would be
"unduly influenced" by the defendant's age during sentencing. Lester claims that the prosecution, as a
result, received commitments from the jury not to consider age as a mitigating factor. This
assignment of error is ineffective, because Mr. Peters only asked the jury if they would be "unduly
influenced" by Lester's young age, not if they would consider it at all. The jury was properly
instructed to consider Lester's age as a mitigating circumstance in the court's jury instructions, so any
resulting error was cured. See Johnson, 475 So.2d at 1142. This issue is similarly barred and without
merit.

3. Absence of Premeditation, Intent Or Plan

¶26. Mr. Peters questioned the jury regarding premeditation in the same manner as he questioned
them regarding prior criminal history. Some jurors responded on their jury information questionnaires
that they would only favor the death penalty in cases of premeditated or intentional murder. Mr.
Peters, therefore, properly asked them if they would require the State "to show some plan to kill this
child, some preconceived plan, intentional act to go out and take this child and murder it" before
considering the death penalty. Since the law, in fact, does not require such a showing by the
prosecution for consideration of the death penalty, no error occurred.

4. Promise to Impose Death No Matter What Defense Witnesses Said

¶27. Lester claims that Mr. Peters obtained promises from the jurors that they would ignore Lester's
character witnesses and vote for the death penalty regardless of those character witnesses. This is
simply untrue. Mr. Peters asked the jury if they would automatically vote against the death penalty if
Lester had character witnesses to testify on his behalf. Mr. Peters merely asked if the jury would give
only proper consideration to mitigating circumstances, such as character evidence. We find no merit
to this argument.

D.

Excuse to Find Him Not Guilty and Disparaging Reasonable Doubt

¶28. Lester claims that comments by the prosecution had the effect of equating reasonable doubt
with an excuse to find the defendant not guilty. He points to Williams v. State, 445 So.2d 798, 808
(Miss. 1984), in which this Court held that the prosecutor's remarks during closing argument were
improper. In that case, however, the prosecutor specifically said that self-defense was an excuse for
voting not guilty. Id. at 808. An objection to the remark was sustained, followed by two more
remarks along the same lines which were properly objected to, and the objections sustained. Id. This
Court held that the remarks were improper because they were not based in the evidence presented at
trial. Id.

¶29. This case is very different from Williams. First of all, Lester's only objection at trial was that
Mr. Peters did not mention lack of evidence as a basis for reasonable doubt. As a result, Lester is
barred from raising this issue on appeal, because objection on one ground at trial waives all other
grounds for objection on appeal. See Conner v. State, 632 So.2d 1239, 1255 (Miss. 1993) (citing
Stringer v. State, 279 So.2d 156, 158 (Miss. 1973) and McGarrh v. State, 148 So.2d 494, 506
(Miss. 1963)).

¶30. This issue is also unpersuasive, because Lester incorrectly summarizes the statement which Mr.
Peters made in voir dire regarding reasonable doubt. The actual statement was, "[B]eing
unreasonable looking for an excuse is what I call it. All of you assure the Court if you find a doubt,
you're willing to be reasonable about it. Everyone?". Mr. Peters did not equate reasonable doubt with
an excuse to find Lester not guilty. He equated unreasonable doubt with an excuse. Furthermore, as
discussed above, the trial court properly instructed the jury on reasonable doubt, so any error was
effectively cured. This argument is therefore ineffective, and no reversible error occurred through this
statement.

E.

Speculations About What Jurors Would Do If Other Jurors Disagreed
¶31. Without any objection by Lester, Mr. Peters asked the jury during voir dire if they would be
"willing to discuss the case with the other jurors and change their mind if the other jurors convinced
them that the law and the evidence justified whatever verdict they were voting for." Lester asserts
that this was improper questioning, asking the jury to speculate about what they would do if other
jurors disagreed with them. Since Lester raised no objection at trial, this issue is procedurally barred.
See Carr, 655 So. 2d at 853. Additionally, this argument is not supported by any Mississippi law.
Lester points to State v. Tally, 22 S.W.2d 787, 788 (Mo.1929), in which a defense attorney's
question during individual voir dire was found improper, because he asked the juror to tell the court
what he would do if all of the other jurors disagreed with him. Here, Mr. Peters did not specifically
ask any jurors to speculate as to what they might do if all of the other jurors disagreed with them. He
simply asked if they would follow the instruction given by the trial court by discussing the case and
changing their vote if they became convinced that their original opinion was wrong. The trial court
also properly instructed the jury to discuss the case together during deliberations and to change their
opinion if they became convinced that they were wrong. The question was a proper statement of the
law, and we do not reverse based upon this assignment of error.

F.

Testimony of Experts

¶32. Lester made no objection at trial to the questions which the prosecution asked during voir dire
about the testimony of medical experts. Therefore, this issue is barred on appeal. See Carr, 655 So.
2d at 853. Mr. Peters asked the jury if they would be skeptical of or unable to rely on the expert
testimony of doctors who were not present at the scene, but based their opinions on examinations.
He additionally questioned jurors who worked in the medical field if they would second-guess the
testimony of the medical experts, or if they would substitute their own opinions for the experts'
opinions. Lester points to cases from other jurisdictions which preclude attorneys from asking jurors
what weight they would place on evidence which they have not yet heard. However, Lester points to
no Mississippi authority. These were proper questions used to determine if the jury could accept
circumstantial evidence, and to ascertain whether jurors with a medical background should be
challenged for their inability to listen objectively to the testimony of medical experts. The trial judge
did not abuse his discretion in allowing this line of questioning during voir dire, so no reversible error
resulted.

G.

Commitments Not to Consider Mercy

¶33. Lester asserts that it was error for the trial judge to allow Mr. Peters to ask the jury not to let
sympathy or mercy influence them during sentencing. However, he refers to a question in which the
district attorney properly informed the jury that they should only consider sympathy or mercy if so
instructed by the court.

¶34. The prosecution's question regarding maximum punishment was meant to clear up
misconceptions by jurors expressed in their jury information questionnaire forms that the maximum
punishment was life imprisonment. The maximum punishment in Mississippi is the death penalty, so
this comment was not a misinstruction.
¶35. Mr. Peters questioned Ms. Husband about her response in her jury information questionnaire in
which she said that she favored the death penalty for extremely violent crimes committed by criminals
who cannot be rehabilitated. Lester made no objection at trial to the prosecution's voir dire of Ms.
Husband, so this issue is barred on appeal. See Carr, 655 So. 2d at 853. The question was asked to
assure the court that Ms. Husband would not automatically vote against the death penalty because of
a bias toward rehabilitation. This line of questioning was proper for the State to determine whether to
challenge Ms. Husband for any bias against the death penalty.

¶36. Lester makes no meaningful argument that the prosecution's questions during voir dire reached
the level of reversible error as was the case in Stringer v. State, 500 So.2d 928, 938-40 (Miss. 1986).
In that case, the prosecutor asked the jury if they could or could not vote for the death penalty under
certain circumstances. Id. at 938. This Court held that since the prosecutor did not specifically secure
commitments from the jury to vote for the death penalty during voir dire, no per se reversible error
occurred, but the conduct combined with other factors amounted to reversible error. Id. As
previously discussed, the questions which the prosecution asked during voir dire in this case all
properly informed the jury of the law. No request was made to secure a promise of a guilty verdict or
a vote for the death penalty during voir dire. Therefore, this issue is without merit.

II.

LESTER'S CASE MUST BE REVERSED BECAUSE THE TRIAL JUDGE
ERRONEOUSLY ALLOWED THE PROSECUTOR TO AMEND THE INDICTMENT.

¶37. On the first day of trial, February 16, 1993, the court heard arguments on the defendant's
motions in limine to exclude evidence of sexual and physical abuse occurring prior to the time period
set out in the original indictment, "on or about September 29, 1991." During this hearing defense
counsel Mr. Malouf stated, "I think perhaps if they had amended the [indictment] and said, 'died as a
result of child abuse beginning in June of 1991 through September 29th,' they may have squeezed it
in. We still would have objected to it, but they may have squeezed it in." The trial court took the
matter under advisement and ordered that voir dire continue without any comments from the
attorneys about abuse prior to the dates in the original indictment. Upon motion by the prosecution
on February 17, the second day of Lester's trial, the court allowed just such an amendment to the
indictment over Lester's opposition to include the dates of those previous batteries. The court asked
the defense if they wanted a continuance, which they declined so as to prevent further incarceration
of Lester, with the understanding that no sexual abuse evidence would be admitted without further
ruling by the court. The original indictment in pertinent part read:

Jerry Lynn Lester in said District, County, and State on or about the September 29, 1991 did
then and there, without authority of law, wilfully, unlawfully and feloniously kill and murder
Tifinay Nicole Shadi Sanders, a human being, and a child within the meaning of Section 43-21-
105(m), Mississippi Code, 1972, as amended, while he, the said Jerry Lynn Lester, was then
and there engaged in the commission of felonious abuse and/or battery of Tifinay Nicole Shadi
Sanders, in violation of Section 97-5-39(2), Mississippi Code, 1972, as amended, contrary to
and in violation of Section 97-3-19(2)(f), Mississippi Code, 1972.

(Emphasis added). The amended indictment read in pertinent part:
 Jerry Lynn Lester in said District, County, and State on or about the September 29, 1991 did,
without authority of law, wilfully, unlawfully and feloniously kill and murder Tiffany Nicole
Shadai Sanders, a human being, and a child within the meaning of Section 43-21-105(m),
Mississippi Code, 1972, as amended, while he, the said Jerry Lynn Lester, was then and there
engaged in the commission of felonious abuse and/or battery of Tiffany Nicole Shadai Sanders,
by, between the dates of approximately three weeks prior to June 19, 1991 and September 29,
1991, both inclusive, causing physical injury to the child's lip, breaking bone(s) in the child's
leg, and causing serious injury to the child's head, and causing serious injury to the child's
abdominal region thus resulting in the child's death, in violation of Section 97-5-39(2),
Mississippi Code, 1972, as amended, contrary to and in violation of Section 97-3-19(2)(f),
Mississippi Code, 1972.

(Emphasis added). The amendment to the indictment stretched the covered time period by three
months. It also added multiple batteries unrelated to Shadai's death, whereas the original indictment
only included the battery on or about September 29 which resulted in Shadai's death.

¶38. The trial court committed reversible error by allowing a change in the substance of the
indictment on the second day of Lester's trial. "It is fundamental that courts may amend indictments
only to correct defects of form, however, defects of substance must be corrected by the grand jury."
Rhymes v. State, 638 So.2d 1270, 1275 (Miss. 1994).

It is well settled in this state, as was noted by the learned circuit judge, that a change in the
indictment is permissible if it does not materially alter facts which are the essence of the offense
on the face of the indictment as it originally stood or materially alter a defense to the indictment
as it originally stood so as to prejudice the defendant's case.

Shelby v. State, 246 So.2d 543, 545 (Miss. 1971)(citations omitted) (not reversible error for trial
court to amend indictment by changing date of offense by one day). See also Wilson v. State, 574
So.2d 1324, 1332-33 (Miss. 1990) (not reversible error to quash indictment of first trial ending in
hung jury and issue new indictment in which additional stolen items were added to the charge of
capital murder during commission of armed robbery); Griffin v. State, 540 So.2d 17, 19-21 (Miss.
1989) (reversible error for trial court to amend indictment from assault with a deadly weapon by
shooting the victim in the head to assault by using a pistol, a means likely to produce serious bodily
harm). Certainly it cannot be said that the facts underlying the offense in Lester's indictment were not
materially altered by adding three more cases of battery to the charge.

¶39. The State points to Hall v. State, 611 So.2d 915, 923 (Miss. 1992), in which this Court found
no merit in the defendant's argument concerning a second amendment to his indictment. The dates of
the alleged offense were changed on that indictment from "between August 1, 1984 and September
30, 1984" to "between the first day of August, 1984 and November 15, 1984" and then to "between
the first day of October, 1984 and the 30th day of November, 1984." Id. However, Hall's "confusing
argument" was that he was denied a trial de novo because the state's second amendment to the
indictment only amended the first amendment and not the original. Id. The issue of form versus
substance in altering the indictment was neither raised nor addressed by this Court. Also, in Hall, the
changes to the indictment were merely date changes, and did not alter the indictment to include
additional criminal acts. Therefore that case has no bearing on the this case.
¶40. The State also cites Baine v. State, 604 So.2d 258, 259-61 (Miss. 1992), to support its
contention that unless time is an essential element of the crime, an amendment to change the date on
which the alleged crime took place is a mere change in form, not substance. However, the change
here was not merely a change of dates; there was also a change by adding multiple battery offenses.
Therefore, Baine is also unhelpful to the issue before us.

¶41. The State also asserts that this assignment of error should fail, because the defendant has failed
to show prejudice in the form of a defense becoming unavailable as a result of the amended
indictment. Byrd v. State, 228 So.2d 874, 875-76 (Miss. 1969) (holding that if the evidence and
defenses are the same for the amended indictment and the original indictment, then the change is one
of form and not substance). The State further argues that if Lester felt that the amended indictment
prejudiced his defense, then he should have requested a continuance when the trial judge asked if he
wanted one. This argument fails, because Lester's burden of defending three additional instances of
battery is obvious prejudice. See Stirone v. United States, 361 U.S. 212 (1960) (in which the
Supreme Court held that amending the essential facts in the indictment was reversible error per se
without any inquiry into prejudice). The trial court would still have lacked the authority to amend the
indictment, even if a continuance had been granted. Failure to request a continuance does not bar
consideration of this issue.

¶42. Lester's additional argument that the amendment rendered the indictment duplicitous and that
the crime of capital murder cannot be committed during the course of abuse continuing over several
months is ineffective. Lester points to the case of Houston v. State, 531 So.2d 598, 606 (Miss. 1988)
in which we noted the problem of recognizing felonious child abuse as an episodic offense in cases of
felony murder where the prior abuse occurs months before the killing, thereby breaking the causal
chain. Id. at 606 n.5. We failed to answer that question in Houston, because in that case the evidence
of felonious abuse on or about the date of death was substantial. Id. Similarly, in this case there is
ample evidence of abuse on the date of Shadai's death, so the remoteness of the episodic abuse prior
to the date of death cannot be said to have prejudiced Lester at trial. This Court has previously held
that child abuse can be shown through a series of injuries, so the addition of other instances of battery
against Shadai did not render the indictment duplicitous. See Aldridge v. State, 398 So.2d 1308,
1311-12 (Miss. 1981). See also Houston, supra at 606. Felonious child abuse may be shown as an
episodic crime, and it is one of the underlying felonies for capital murder under Miss. Code Ann. §
97-3-19(2)(f). The logical conclusion, then, is that all of the acts of episodic child abuse should be
admissible as evidence of capital murder committed while engaged in felonious child abuse.

¶43. The trial court did err, however, in allowing the indictment to be substantially amended by
adding the additional time period and additional instances of battery. The amendment to the
indictment was one of substance and therefore could only have been made by the grand jury. We
therefore hold that the trial court committed reversible error in ordering the amendment.

III.

THE TRIAL JUDGE ERRED IN ALLOWING THE PROSECUTORS TO ELICIT
IMPROPER OPINIONS FROM EXPERT WITNESSES.

A.
 Hypothetical Questions Not Based On the Evidence

¶44. Lester next assigns as error the use of hypothetical questions by the prosecution in examining its
expert witnesses, with no basis in the evidence. Lester raised no objection to these questions at trial,
so this issue is procedurally barred. See Carr, 655 So. 2d at 853. Notwithstanding the procedural
bar, this issue is meritless. It is true that expert opinions, including those elicited through hypothetical
questions, must be based in the evidence. See West v. State, 553 So.2d 8, 20-21 (Miss. 1989); Miss.
R. Evid. 702, 703. However, in this case, the hypothetical questions to which Lester refers were
based firmly in the evidence presented. Testimony was given at trial that Lester explained Shadai's
broken leg as an accident which occurred when her leg became stuck in the couch. In fact, defense
counsel was also allowed to ask his expert if the spiral fracture could have been caused by Shadai
being jerked out of the couch. It was therefore proper for the prosecution to question its experts as
to whether the type of spiral fracture in Shadai's femur was consistent with this explanation.

B.

Questions Calling For Legal Conclusions

¶45. Lester next assigns as error the admission of testimony by Dr. Hayne that his opinion within
reasonable medical certainty was that Shadai's death was the result of a purposeful act, i.e. that
Shadai was murdered. First of all, this issue is similarly barred because Lester failed to make any
objection at trial. See Carr, 655 So. 2d at 853. Aside from the procedural bar, Lester's argument is
also unpersuasive. This Court previously held in Kniep v. State, 525 So.2d 385, 390-91 (Miss. 1988)
, that it was error for the trial court to exclude the expert opinion of the State Medical Examiner that
Kniep's death was caused by accidental ingestion of isopropyl alcohol and not murder. The
Mississippi Rules of Evidence no longer preclude opinions on the ultimate issue of fact. Miss. R.
Evid. 704. We therefore hold that it was not error for the trial court to admit the expert opinion of
Dr. Hayne that Shadai's death was caused by murder and not accident.

IV.

LESTER WAS DEPRIVED OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL,
DUE PROCESS AND A FAIR TRIAL BY THE TRIAL JUDGE'S DENIAL OF HIS
REQUEST FOR CONTINUANCE FOR ADEQUATE TIME TO PREPARE.

¶46. Over continued objection by Lester, the court ruled to admit the testimony of Dr. Hayne that
Shadai was sexually abused prior to her death in order to negate the theory of accident. In light of
that ruling, Lester made a motion for a two-week continuance in order to prepare a defense of the
sexual allegations. The court granted a one-hour recess, but refused the request for a continuance.
Lester was denied his right to effective assistance of counsel and a fair trial, because of the prejudice
resulting from insufficient time to prepare for this surprise evidence. The Sixth Amendment right to
assistance of counsel is not satisfied unless the accused's attorney is given adequate time to prepare
his defense. See Powell v. Alabama, 287 U.S. 45, 59 (1932).

¶47. The State's contention is that Lester was not surprised at all by the admission of evidence of
sexual abuse, because he was fully aware of the potential that this evidence could be admitted from
the time that he received the autopsy reports showing evidence of sexual abuse. To support this
argument they also point out that no surprise witnesses were called as in the cases of Galloway v.
State, 604 So.2d 735 (Miss. 1992) and Traylor v. State, 582 So.2d 1003 (Miss. 1991), both cited by
Lester.

¶48. While Lester may have been aware that evidence existed that Shadai had been sexually abused,
the indictment under which he was charged did not include any counts of sexual abuse. In fact, there
is a separate subsection of the statute under which Lester was charged which specifically deals with
murder done while engaged in "unnatural intercourse with any child under the age of twelve." Miss.
Code Ann. § 97-3-19(e). Since Lester was charged under subsection (f) and not subsection (e), he
would have no reason to expect that evidence of Shadai's sexual abuse would be admitted at his trial.

¶49. Furthermore, the trial court in response to Lester's motion in limine agreed that the sexual abuse
would not be admitted unless shown to be a contributing cause of death or to refute the theory of
accident if shown to have more probative value than prejudicial effect. While Lester may have
suspected that the prosecution would attempt to present evidence of Shadai's sexual abuse at trial, he
certainly had good reason to believe that the trial court would exclude it, as it should have. The
admission of Dr. Hayne's testimony regarding the sexual abuse was therefore a surprise to Lester
which warranted a continuance for adequate time to prepare a defense of these new allegations.

¶50. "[T]he decision to grant or deny a continuance is one left to the sound discretion of the trial
court." Johnson v. State, 631 So.2d 185, 189 (Miss. 1994). However, in this case, the trial court
abused its discretion in refusing Lester's request for a continuance in order to adequately prepare a
defense of the surprise introduction of sexual abuse evidence.

V.

THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF LESTER'S POST ARREST
SILENCE.

¶51. Without any objection by Lester, Assistant District Attorney Cynthia Speetjens asked Dr.
Donaldson the following questions on redirect:

Q. Dr. Donaldson, prior to the trial of this case you met with me and my investigator and these
two attorneys; is that right?

A. That's correct.

Q. At any other time than that meeting when we were all there present together, have you ever
met with these attorneys to discuss this case?

A. No.

Q. At anytime during that meeting, did they ever discuss the theory with you that the child was
pulled up out of the couch?

A. No.

Q. Did they ever even mention that the child was pulled up out of the couch?
 A. No.

Lester claims that this was improper comment by the prosecution on Lester's post-arrest silence.
First, since Lester raised no contemporaneous objection to this line of questioning, he is barred from
raising it on appeal. See Carr, 655 So.2d at 853. Second, these questions are not about anything that
Lester said or didn't say; they are questions about what Lester's attorneys discussed with Dr.
Donaldson prior to trial. Third, the questions refer to Shadai's broken leg, which occurred in June,
three months before Lester's arrest. Therefore, even if the questions were aimed at what Lester said
or didn't say about Shadai's broken leg, they wouldn't be comments on his post-arrest silence.

¶52. Lester similarly points to questions which the prosecutor asked Dr. Donaldson on further direct
examination:

Q. Counsel asked you whether or not there could be other facts out there that you're not aware
of that might change your opinion; is that right?

A. That's correct.

Q. You met with these lawyers; did you not?

A. Yes.

Q. You discussed this injury at length; did you not?

A. Yes.

Q. As recently as when?

A. Seems like it was last week, maybe the week before.

Q. And what, if any, information did they give you from themselves or any witness that they
might produce that would change your opinion?

. . . .[objection overruled]. . . .

Q. What, if any, information did you get from those people during your conversation as recently
as last week or so? What other facts might they have given you to consider that might change
your opinion?

. . . .[objection sustained]. . . .

Q. Has anyone during the course of the preparation of this trial furnished you or any other
doctor that you're aware of any other facts surrounding this incident that might change your
opinion?

A. No.

While Lester did make a timely objection, these questions make no specific reference to what Lester
said. The intent of the questions was to follow up on Lester's inquiry into the possibility of other facts
existing which could change Dr. Donaldson's opinion. This was proper redirect examination which
made no comment on Lester's post-arrest silence.

¶53. Over an objection by Lester for improper comment on his post-arrest silence, the prosecution
was allowed to ask Dr. Blumenthal the following questions:

Q. [H]as anybody ever given you any other history that may have come from the parent of this
child other than what's in that report?

A. No, not that I can recall.

Q. Were you present at a conference between myself and Dr. Donaldson and these two
attorneys?

A. Yes, I was.

Q. At anytime was any other scenario discussed?

. . . .[objection overruled]. . . .

Q. Dr. Blumenthal, other than: She caught, while I was in bathroom, her leg in the space of a
couch at the house, and since then she has been crying--anything other than that as far as a
history have you been provided by myself, the police, the Department of Human Services, these
attorneys in conversation, anybody else anywhere, any more history than that as far as what was
given at the hospital that night?

A. I don't believe so.

It is true that this time the prosecution specifically asked whether Lester had ever given any other
explanation for Shadai's broken leg. However, as stated earlier, the broken leg occurred well before
Lester's arrest, so any silence on his part concerning the cause of her broken leg would not be post-
arrest silence. As a result, questioning the expert witnesses about Lester's explanation for Shadai's
broken leg cannot be said to constitute improper comment on Lester's post-arrest silence. No
violation of the due process clause of the 14th Amendment or of Lester's right against self-
incrimination occurred.

VI.

THE CUMULATIVE EFFECT OF THE INTRODUCTION OF OTHER OFFENSE AND
BAD ACTS EVIDENCE AND THE PROSECUTION'S IMPROPER SUGGESTION THAT
THE JURY SHOULD USE THE EVIDENCE TO CONVICT THE DEFENDANT BECAUSE
OF HIS BAD CHARACTER CALLS FOR REVERSAL OF BOTH THE GUILT AND
PENALTY PHASES OF LESTER'S TRIAL.

¶54. "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person
in order to show that he acted in conformity therewith." Miss. R. Evid. 404(b). Such evidence may be
admissible to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident. Id. However, all otherwise admissible evidence must still pass the test set out in
Miss. R. Evid. 403, requiring that its probative value outweigh any resulting unfair prejudice. In
addition, when prior acts are admitted to refute a defense of accident or mistake, sufficient evidence
must be shown, not necessarily by a preponderance of the evidence, for the jury to determine that the
defendant actually committed the prior acts. See Huddleston v. United States, 485 U.S. 681, 685,
689-692 (1988); Cardwell v. State, 461 So.2d 754, 760 (Miss. 1984). A limiting instruction should
be given when requested to instruct the jury that the evidence is only to be used in disproving
accident or mistake, and not to prove that the defendant acted in conformity with the prior act.
Huddleston, 485 U.S. at 692.

A.

Evidence That Lester "Ran the Streets"

¶55. During cross-examination of Brenda Lester, the prosecution read part of a letter from Gerry
Lester to Ruchelle Sanders in which he apologized for "running the streets." The prosecution then
continued by questioning Brenda and Carl Jacobs about whether Gerry Lester "ran the streets."
During closing argument, the prosecution argued that Lester's motive for killing Shadai was that he
was angry because Ruchelle made him stay home and take care of the baby, since he was
unemployed, instead of letting him "run the streets."

¶56. Lester now argues that these were inadmissable, irrelevant references to his bad character, which
were highly prejudicial. However, it appears from the record that Lester made no objection to the
prosecutor's questions or comments during closing argument on his "running the streets." Therefore,
this issue is barred on appeal. See Carr, 655 So.2d at 853. Furthermore, since the prosecution used
this evidence to show motive, it is admissible under the exception set out in Miss. R. Evid. 404(b). As
Lester made no contemporaneous objection to this evidence at trial, the court was not given an
opportunity to weigh its probative value against its prejudicial effect. Admission of evidence that
Lester "ran the streets" was not error by the trial court, and we do not reverse on this issue.

B.

Evidence That Lester's Brothers Were Criminally Inclined

¶57. During the direct testimony of Lester's father, Percy Lester, he stated that he had tried to raise
his children to be good and to stay out of trouble and had "always worked them." During cross-
examination, over Lester's objection, the prosecution elicited testimony from Percy Lester that his
son Eddie had been convicted of four felonies and that his son Johnny had been convicted of one
felony. Then, during closing argument in the guilt phase, the prosecutor mentioned their children's
felony convictions in arguing that both Percy and Annie Lester's testimony was unreliable. Lester
asserts on appeal that this evidence was inadmissable and improperly used by the prosecution.
However, since Lester did not object to the prosecutor's statements during closing argument, he is
procedurally barred from raising this assignment of error on appeal. See Carr, 655 So.2d at 853.

¶58. Furthermore, evidence of Lester's brothers' prior felony convictions was properly admitted after
the court determined that the probative value outweighed any prejudicial effect. Evidence of Eddie
and Johnny's prior convictions was properly admitted to refute Percy Lester's testimony that he tried
to raise his children to be good, law-abiding citizens. This was not an attack on character, but was
proper impeachment testimony, because there was reason to doubt the credibility of Percy and Annie
Lester based upon the evidence.
 C.

Evidence That Gerry Lester Had Been Charged With Other Crimes and Violated His
Probation

¶59. Lester's own expert witness in psychology, Dr. Gerald O'Brien, testified that Lester had told him
about two previous occasions on which Lester had been arrested but not convicted. On cross-
examination Mr. Peters further questioned Dr. O'Brien concerning an incident while Lester worked at
Pecan Man (of which O'Brien knew nothing) and a charge for trespass and burglary at Mississippi
Power & Light. O'Brien answered that Lester told him about a time when Lester was riding around in
a stolen car and when Lester broke into an MP&L facility with a group. Later, during O'Brien's
testimony, the prosecution entered a certified copy of Lester's grand larceny conviction into evidence
over Lester's objection. The trial court decided to allow this evidence after determining that its
probative value outweighed any prejudicial effect. Lester explained during his testimony that he did
not know that he had been convicted, because he never had to serve time in the penitentiary. During
closing argument Mr. Peters used this evidence to attack the credibility of Lester and Dr. O'Brien.

¶60. Then during cross-examination of Lester, over Lester's objection, Mr. Peters asked Lester if he
had promptly reported to his probation officer for his suspended sentence. Lester testified that he
reported to his probation officer every month. Susan Lloyd, Lester's probation officer between March
of 1989 and March of 1990, testified that he did not report to her in a timely fashion, which is why
Lester became an adjudicated felon. Assistant District Attorney Speetjens used this testimony during
closing argument to portray Lester as a liar.

¶61. Lester now argues that it was error for the trial court to admit any evidence of his prior felony
conviction during Dr. O'Brien's testimony, and that the questions concerning his probation period
before being adjudicated a felon were irrelevant and inadmissible. Lester made no objection to the
initial questions asked of Dr. O'Brien regarding the previous crimes; he also failed to object to the
prosecution's comments during closing argument. Therefore, we need not consider the merit of
Lester's argument on their admissibility. See Carr, 655 So.2d at 853.

¶62. Notwithstanding the procedural bar, Lester opened the door to this line of questioning
concerning his past criminal history through the testimony of his own expert witness. The trial judge
made a proper determination that after Dr. O'Brien testified that Lester had never been convicted, the
probative value of admitting the certified copy of his criminal conviction outweighed any resulting
prejudice. Any such prejudice cannot be said to be unfair as set out in Miss. R. Evid. 403, because
Lester's own witness first introduced the discussion of Lester's criminal past. It would, in fact, have
been unfair to the prosecution to allow the jury to proceed under the misconception that Lester had
no prior conviction.

¶63. Regarding the evidence of Lester's failure to report regularly to his probation officer, Lester
correctly states that it is improper to elicit testimony regarding the details of a prior conviction.
Stringer v. State, 500 So.2d at 942 (citing Allison v. State, 274 So.2d 678 (Miss. 1973); Mangrum
v. State, 232 So.2d 703 (Miss. 1970). However, this was not evidence of Lester's prior conviction,
but of his sentence. It was not an abuse of discretion for the trial court to admit this evidence, so this
assignment of error is without merit.
 D.

Cross-examination of Jeanette Rena Shields

¶64. Jeanette Rena Shields testified on behalf of Lester during the guilt phase. She stated that she had
a daughter whom Lester treated as his, although they were not sure whether Lester was the baby's
father. She further testified that Lester provided money and clothes for the baby and "treated her like
a loving person would treat any other child." Lester now complains that the prosecutor's questions of
Ms. Shields regarding Lester's ceasing to have a relationship with her daughter or to contribute
money toward her support was improper and prejudicial. However, Lester made no objection to
these questions at trial, so this assignment of error is procedurally barred. Furthermore, this argument
is completely unpersuasive, because the prosecutor's questions were directly related to the questions
asked of Ms. Shields on direct examination. The questions were proper cross-examination, so no
reversible error resulted.

E.

Cross-examination of Gerry Lester--Guilt Phase

¶65. The prosecution's cross-examination of Lester during the guilt phase was argumentative, abusive
and full of insinuations of bad character. Questions regarding Lester's participation in the Job Corps
and his lack of employment during his relationship with Jeanette Shields were proper, because they
were directly related to Lester's testimony about being in the Job Corps and his other employment
history. Questions asked of Lester on his failure to support Jeanette Shields's baby were also proper
in response to Shields's testimony that Lester was a good father to her child. Lester opened up the
discussion of his religious beliefs during Dr. O'Brien's testimony regarding Lester's responses during
one of his psychological exams. It was then legitimate for Mr. Peters to ask Lester about his failure to
marry Ms. Shields, the fact that he didn't go to church on the day that Shadai died, and whether he
had ever taken Shadai to church. Similarly, Lester's trouble in school and his drinking beer on the day
of Shadai's death were both brought up during Lester's testimony on direct, so it was not improper
for the prosecutor to ask follow-up questions on these topics.

¶66. However, we find that reversible error resulted from other improper questions. "In cases where
an appellant cites numerous instances of improper and prejudicial conduct by the prosecutor, this
Court has not been constrained from considering the merits of the alleged prejudice by the fact that
objections were made and sustained, or that no objections were made" Smith v. State, 457 So.2d
327, 333-34 (Miss. 1984) (citing Wood v. State, 257 So.2d 193, 200 (Miss.1972); Howell v. State,
411 So.2d 772, 776 (Miss.1982); Forrest v. State, 335 So.2d 900, 902 (Miss.1976)).

¶67. Mr. Peters first questioned Lester, over objection, about his job at Cash for Cans, asking
whether that had anything to do with his conviction for grand larceny at MP&L. He followed up that
question by asking Lester if he knew where the spindles that were stolen had been sold. These were
improper questions on the details of Lester's prior conviction. See Stringer, 500 So.2d at 942.
Although the prosecutor abandoned the question after discussion outside the presence of the jury, the
prejudicial effect had already resulted.

¶68. Mr. Peters also suggested during cross-examination and closing argument that Lester didn't
abuse his daughter by Jeanette Shields only because he had not seen her since she was three months
old. During closing argument, the prosecutor stated, "And he didn't even have a chance at that child,
thank God. Because he never even saw it after it was three months old to the child's ever-living glory.
That child didn't get abused because he wasn't there long enough." The State asserts that this line of
questioning and argument was proper in response to the defense putting on evidence that Lester
treated Shields's daughter well. However, the prosecutor's suggestive remarks went well beyond
mere rebuttal of Lester's treatment of Shields's daughter. These comments and questions were
improper, not based in the evidence, and highly prejudicial.

¶69. The combined effect of the prosecutor's improper, irrelevant, and prejudicial cross-examination
and closing argument was to unfairly prejudice Lester in the eyes of the jury. This prosecutorial
misconduct resulted in reversible error.

F.

Cross-examination--Sentencing Phase

¶70. The prosecutor also elicited testimony of improper bad character evidence during the sentencing
phase of Lester's trial. The prosecutor's questions, asked of James Clarke and Donnell Amiker, about
Lester having a child by another woman, failure to report to his probation officer, and drinking beer
around the children were improper, irrelevant, and prejudicial. However, the most inappropriate and
damaging line of questioning which the prosecution pursued occurred during the cross-examination
of Gerry Lester's uncle, Troy Lester. Over Lester's continuing objections, the following exchange
took place:

Q. Have you heard that one of the things that he's--one of the things that was offered during the
testimony was that he was probably the person who anally and sexually assaulted this child?

A. I heard that it was probably, you know. I can't believe it.

Q. What if there was an eyewitness to that; would you believe that?

. . . .[Objection overruled]. . . .

Q. Would you believe it then?

A. It would depend on who the witness was.

Q. Well, of course, you wouldn't believe the seven year old child that was there; would you?

. . . .[Objection]. . . .

A. No. No, sir.

A. No, sir. Because I would believe a seven year old child could be coerced--

. . . .[Objection]. . . .

A. --Into saying what you wanted him to say.
 Q. Okay. What kind of witness would it take to convince you then?

A. I would say a responsible person who hasn't got any ties or hasn't got anything to profit, you
know, or who couldn't be coerced.

Q. Who is it that you think would coerce that child into saying something like that?

. . . .[Objection sustained]. . . .

This testimony suggested that Shadai's older brother, Kendrick, had witnessed Lester sexually
abusing her. No such testimony was ever elicited from Kendrick at trial. Clearly, the prosecution
should not have been allowed to ask questions without any evidentiary basis. Such questions are
irrelevant and were highly prejudicial in this case. Unreliable testimony concerning the sexual abuse
of Shadai was particularly prejudicial, considering the social stigma attached to sexual abuse of
children. Even if this testimony were otherwise admissible, its prejudicial effect far outweighed any
probative value which it might provide, thereby rendering it inadmissible. Miss. R. Evid. 403. The
trial court committed reversible error in failing to sustain Lester's objection to this line of testimony.

G.

Evidence of Shadai's Injuries

¶71. The most unfairly prejudicial evidence presented at Lester's trial was the evidence that Shadai
had been sexually abused prior to her death. The trial judge permitted the prosecutor to question Dr.
Hayne during cross-examination in the guilt phase of the trial regarding Shadai's enlarged and injured
vaginal and rectal openings, evidence that she was sexually abused. This testimony was allowed to
rebut the theory of accident presented by Lester concerning Shadai's broken leg, pursuant to Miss. R.
Evid. 404(b). "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show that he acted in conformity therewith." Miss. R. Evid. 404(b). Such evidence
may be admissible to show motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident. Id. The defense had only questioned witnesses on a theory of
accident for Shadai's broken femur, not for her death; therefore, this evidence should not have been
included under Rule 404(b).

¶72. Moreover, no evidence was ever presented at his trial showing that Lester was the person who
committed the sexual abuse. The sexual abuse had occurred at least two to three weeks before
Shadai's death and was not a contributing cause of death. The State was only able to show that
Lester had the opportunity to commit the abuse. We have previously held that evidence of prior acts
or offenses used to rebut a theory of accident will only be admissible if there is proof that the
defendant committed those prior offenses. Hawkins v. State, 80 So.2d 1 (Miss. 1955). See also
Huddleston, 485 U.S. at 685, 689-92. While we have determined that evidence of prior acts of abuse
may be admitted to show a pattern of child abuse and refute a defense theory of accident, we have
also held that the admissibility of such evidence is subject to proof that the defendant committed the
prior acts of abuse. Cardwell, 461 So.2d at 760. Since no evidence was presented at trial to show
that Gerry Lester was the one who sexually abused Shadai, this evidence should never have been
admitted, even to rebut the theory of accident.
¶73. During closing arguments in the guilt phase, the prosecution focused on the evidence of sexual
abuse to convince the jury that Lester should be found guilty. Then, during closing argument in the
sentencing phase, the prosecution focused on the inadmissible evidence of sexual abuse to convince
the jury that Lester should be sentenced to death. Assistant District Attorney Speetjens argued that
the sexual abuse was evidence of the "heinous, atrocious or cruel" aggravating circumstance. Even if
the sexual abuse was properly admitted to refute the defense theory of accident, it was clearly
misused by the prosecution during closing argument. Such is the danger of admitting highly
prejudicial evidence, even with a limiting instruction, which was not given in this case.

¶74. It certainly cannot be said that the probative value of this evidence outweighed its prejudicial
effect. Miss. R. Evid. 403 requires a balancing of probative value versus unfair prejudice before
evidence is admitted under Rule 404(b) to refute accident. As previously stated, child sex abuse
carries an obvious stigma so that evidence of Shadai's sexual abuse was particularly damaging to
Lester. This evidence was highly prejudicial, and should have been excluded by the trial court.

H.

Closing Argument--Sentencing Phase

¶75. Lester also points out other evidence that he argues was used improperly by the prosecutor
during closing argument in the sentencing phase. Ms. Speetjens properly used the evidence that
Lester failed to report to his probation officer during her closing argument at sentencing to attack
Lester's credibility. Similarly, the prosecution appropriately used evidence of Percy and Annie
Lester's bias toward their sons in the face of their felony convictions to impeach Percy and Annie
Lester's credibility. Finally, the prosecutor's comments on Lester's spending money on beer instead of
his children was properly used to argue that Lester's mitigation evidence should be given little weight.
Attorneys are given broad latitude in framing closing arguments so long as they don't argue any
impermissible factor. Neal v. State, 451 So.2d 743, 762 (Miss. 1984). The prosecution did not
improperly use any of this evidence during closing argument in the sentencing phase, so we refuse to
reverse based upon this sub-issue.

I.

Conclusion

¶76. "Incompetent evidence, inflammatory in character, when presented to a jury carries with it a
presumption that it was harmful." McDonald v. State, 285 So.2d 177, 179 (Miss. 1973). In the case
sub judice, the prosecution inserted irrelevant, highly prejudicial evidence and argument, which the
trial court erroneously admitted. The combined effect of the improper use of bad character and bad
acts evidence by the prosecution in this case, as set out in subparts E, F, and G of this issue,
constitutes reversible error.

VII.

THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S OBJECTION TO
TESTIMONY FROM RUCHELLE SANDERS, THE VICTIM'S MOTHER, ABOUT
GERRY LESTER'S ALLEGED ASSAULTS ON RUCHELLE WHILE SHE WAS
 PREGNANT.

¶77. During redirect of Ruchelle Sanders, the prosecutor elicited the following testimony concerning
fights between Gerry and Ruchelle over Lester's objection:

Q. Tell them what the fights were about.

A. The fights were about when--one night when I came from work, I had told him what time to
pick me up, and when he came I wasn't there. I had walked home, most of the way home. I
caught a ride part of the way. By the time I got there, I was tired. He came in there calling my
name. When he called my name, then I answered. Then he asked me why did I leave work, why
didn't I wait for him. And I told him cause he took so long because it was an hour and a half
that I had waited. And so he started hitting on me and kicking me in my stomach, and at this
time he knew I was pregnant.

It was error for the trial court to admit evidence of a prior assault not connected with the crime
charged, having the effect of portraying Lester as a violent man. See Buchanan v. State, 37 So.2d
318, 318 (Miss. 1948) (improper for prosecutor to ask questions concerning prior assault with the
effect of portraying defendant as violent and quarrelsome); Herman v. State, 22 So. 873, 873-74
(Miss. 1898) (error for trial court to admit evidence of a prior assault by the defendant); Raines v.
State, 33 So. 19, 20-21 (Miss. 1902) (evidence of prior abusive acts unconnected with the crime
charged was incompetent and irrelevant); Miss. R. Evid. 404(b). Similarly, the prosecutor erred in
questioning Lester himself about this incident.

¶78. The State argues that Lester opened up this line of questioning during cross-examination of
Ruchelle Sanders. However, the record reflects that the defense attorney was merely questioning
Ruchelle as to why she never made Gerry leave, and Ruchelle responded that she was afraid to,
because Gerry beat her. The trial court erred in allowing further irrelevant, prejudicial evidence of
these fights to be admitted.

VIII.

THE COURT ERRED IN ADMITTING HEARSAY EVIDENCE.

¶79. Lester next assigns as error the improper admission of hearsay evidence at his trial. Over
Lester's objection, Ruchelle was allowed to testify that the social worker, Ms. Mullins, had used the
word "abuse" in discussing Shadai's broken femur. While this testimony may have amounted to
hearsay under Miss. R. Evid. 801 and 802, no harm resulted in light of the overwhelming evidence
that Shadai was a victim of child abuse.

¶80. Lester points to other testimony which he unsuccessfully argues was inadmissible hearsay. Dr.
Donaldson and Dr. Woodall both testified that Shadai's injuries had been reported to DHS as
suspected child abuse. Similarly, Dr. Blumenthal testified that he had reported to others in the
emergency room that Shadai's case involved abuse. This was proper testimony regarding the
procedure followed in suspect child abuse cases, following the doctors' challenged expert opinions
that Shadai was a victim of abuse. A witness's own statement may be admitted at trial to show that it
is consistent with his testimony to rebut any implied charge that the testimony is inaccurate. Miss. R.
Evid. 801(d)(1)(B). Furthermore, even if these statements were hearsay, they could have been
properly admitted as statements for purposes of medical diagnosis or treatment. Miss. R. Evid.
803(4).

¶81. Lester also claims that Michelle Martin's testimony that she told Ruchelle that she didn't believe
Gerry's story that Shadai had fallen and hurt her lip, and that Ruchelle should get Shadai away from
Gerry when she saw Shadai's cut and swollen lip was hearsay. However, this testimony could have
been admitted under the present sense impression exception to the hearsay rule. Miss. R. Evid.
803(1). Lester's claim that testimony regarding Shadai's fearful reactions to Gerry Lester were
implied hearsay is similarly unfounded. Nonverbal conduct can only be hearsay if it is intended to be
an assertion, such as pointing to someone. Miss. R. Evid. 801(a)(2), Comment. Shadai's conduct
around Lester cannot be said to have been assertive. This Court has never held, and we do not hold
today that conduct of a baby is implied hearsay. Furthermore, Lester raised no objection to the
testimony of Shadai's conduct around Lester, so this issue is barred on appeal. See Carr, 655 So.2d
at 853.

IX.

THE COURT ERRED IN ADMITTING INADMISSIBLE OPINION EVIDENCE.

¶82. Over objection, the prosecutor asked Ruchelle Sanders, "Do you have any knowledge as to
what, if any, actions that the Department of Human Services did with respect to Ms. Gillom after it
turned out he was charged with murdering your baby?" Ruchelle's response was that she never saw
Ms. Gillom again, but saw another social worker instead. Lester's objection was sustained, but only
after Ruchelle had already responded. Also over objection, Ruchelle testified that Shadai acted like
she didn't want to stay with Gerry Lester after her leg was broken. In response to the prosecutor's
question about why Dr. Donaldson remembered Shadai's case, Dr. Donaldson replied, over objection
by Lester, that the case stuck in his mind, because "you hate to think that such a thing is possible, and
you look for any possible reason. . . .that possibly explains it." Dr. Donaldson further testified, over
objection, that the investigation by DHS which treated Shadai's case as child neglect, instead of
abuse, was "inadequate." Finally, Lester points again to Michelle Martin's testimony that she did not
believe Lester's explanations for Shadai's injuries.

¶83. Lester asserts that these pieces of testimony were all inadmissible opinion evidence. He claims
that Dr. Donaldson's testimony regarding the investigation by DHS was outside his field of expertise.
However, Dr. Donaldson was allowed to testify as an expert on child abuse, so his opinion regarding
the inadequacy of DHS's investigation into possible child abuse was clearly within the scope of his
field of expertise.

¶84. Lester points to Rose v. State, 556 So.2d 728, 731-33 (Miss. 1990), in support of his contention
that Michelle Martin's testimony was improper opinion evidence on Lester's truthfulness. In Rose,
this Court held that the opinion of an officer that three co-defendants were telling the truth was
inadmissible, because it was more prejudicial than probative, and it was not based on first-hand
knowledge. Id. at 733. Miss. R. Evid. 701 allows lay witnesses to testify as to their opinions if based
upon their own perception if the evidence is helpful to the jury. In this case, Michelle Martin's
testimony was not offered to attack Lester's general believability, and her opinion was based upon her
first-hand knowledge as a mother and her first-hand impression after seeing Shadai's injuries.
Therefore, her testimony was not improper opinion evidence. Ruchelle's testimony regarding Shadai's
reaction to being left with Gerry Lester was similarly based upon her own perception, and was
therefore properly admitted.

¶85. Ruchelle never specifically stated that Ms. Gillom was fired or removed from the case after
Lester was charged with murder. She therefore cannot be said to have offered her opinion on the
matter. Furthermore, Lester's objection was sustained, thereby curing any error in the prosecutor's
question. See Foster, 639 So.2d at 1282.

¶86. No improper opinion evidence was admitted by the trial court in this case. As a result, we do
not reverse based upon this assignment of error.

X.

THE CUMULATIVE EFFECT OF IRRELEVANT PREJUDICIAL EVIDENCE
WARRANTS REVERSAL.

¶87. Lester asserts that Dr. Woodall's testimony that an IV was inserted into Shadai's bone during
treatment on the night of her death was irrelevant, prejudicial evidence. However, this evidence was
relevant to show all of the procedures which were used by the hospital to treat Shadai's fatal injuries.
No error occurred by admitting Dr. Woodall's testimony.

¶88. Over Lester's objection, Kendrick Sanders was allowed to testify that he and his mother,
Ruchelle, had held Shadai in the hospital after her death. Kendrick further testified over the same
objection that he had visited Shadai's grave and taken flowers to her grave. This testimony regarding
events occurring after Shadai's death had absolutely no relevance in determining whether Lester was
guilty of capital murder. This evidence worked only to invoke sympathy toward the victim's family,
and had no place in the guilt phase of trial. See Clark v. Commonwealth, 833 S.W.2d 793, 796-97
(Ky. 1991). It otherwise created unfair prejudice in violation of Miss. R. Evid. 403. Therefore, the
trial court erred in allowing this testimony over Lester's objection. Admission of this evidence
contributed to the reversible error resulting from the combined admission of other incompetent,
highly prejudicial evidence which was erroneously admitted at Lester's trial.

XI.

THE TRIAL COURT ERRED IN NOT ADMITTING THE FULL TEXT OF EXHIBITS E
AND F, LETTERS FROM LESTER TO SANDERS.

¶89. Lester next cites as error the trial court's refusal to admit the entire text of two letters written by
Lester to Ruchelle Sanders, after the prosecutor used part of the letters in cross-examining Gerry
Lester, Brenda Lester, and Carl Jacobs. Lester asserts that the trial court violated Miss. R. Evid. 106
by failing to admit the entire letters. However, Rule 106 only requires admission of an entire writing
after part of it has been introduced into evidence by the opposing party. There is a difference between
introducing a document into evidence and questioning a witness about the document. Here, no part
of Lester's letters were offered into evidence, so the doctrine of completeness in Rule 106 does not
apply. The trial court did not err, therefore, in refusing to admit the entire letters written by Lester.

XII.
 THE PROSECUTION'S DELIBERATE FAILURE TO PROVIDE DISCOVERY
WARRANTS REVERSAL.

¶90. Lester next argues that failure of the prosecution to provide letters written by him to Ruchelle
Sanders to the defense attorney was a clear discovery violation, and since a short continuance would
not have cured the error, that the case should be reversed. See West v. State, 553 So.2d 8, 17-20
(Miss. 1989) (holding that a day's break was inadequate to cure prosecution's failure to disclose
expert's surprise testimony regarding necrophilia). It is true that the prosecutor in this case violated
discovery in his failure to provide the defendant with the letters from Lester to Ruchelle Sanders. At
the time of Lester's trial Miss. Unif. Crim. R. of Cir. Ct. Prac. 4.06 (i) (codifying the guidelines set
out by this Court in Box v. State, 437 So.2d 19, 23-24 (Miss. 1983)) was the applicable rule for
analyzing discovery violations; URCCC 9.04(I) now applies to discovery violations. See Ross v.
State, 603 So.2d 857, 862 (Miss. 1992). The rules require that the trial court grant the defense
reasonable time to examine new evidence that the prosecution attempts to introduce at trial without
prior disclosure. If the defense still shows unfair surprise or prejudice and requests a continuance or
mistrial, the trial court must either exclude the evidence or grant a continuance. Miss. Unif. Crim. R.
of Cir. Ct. Prac. 4.06 (i); URCCC 9.04(I). Lester moved for a mistrial upon finding that eighteen
other letters from Lester to Ruchelle Sanders existed. The trial court denied his motion for a mistrial,
but ordered that all of the letters be given to the defense counsel during a short recess and offered a
recess for the remainder of the day for the defendant to have time to read the letters. Defense counsel
Mr. Malouf declined the recess, but agreed to read the letters overnight. Allowing the defendant
overnight to examine the letters was sufficient time for the defense to meet any evidence presented
from the letters. The prosecution violated discovery by failing to produce the letters before trial, but
the trial court properly followed the rules in addressing the discovery violation, so no reversible error
occurred.

XIII.

THE TRIAL COURT ERRED IN OVERRULING LESTER'S OBJECTION TO THE
PROSECUTOR'S UNSWORN TESTIMONY THAT HIS OFFICE HAD NOT DENIED
LESTER A POLYGRAPH.

¶91. During redirect examination of Dr. O'Brien, the doctor testified that Lester had told him that he
would be willing to take a polygraph exam. Then during recross-examination, the prosecutor asked
Dr. O'Brien whether the District Attorney's Office had refused Lester's request for a polygraph exam.
The doctor replied that he didn't know anything about it. When defense counsel further questioned
O'Brien about Lester requesting a polygraph exam, both prosecutors stated that they had no
knowledge of any polygraph exam, and Mr. Peters said that they denied any allegation of refusing
Lester the opportunity to take a polygraph. The trial judge then instructed the jury to disregard all of
this testimony about Lester's offer to take a polygraph exam.

¶92. Lester now argues that it was improper for the trial judge to overrule his objection to the
prosecutors' statements and to instruct the jury to disregard the testimony that Lester offered to take
a polygraph exam. He cites Conner v. State, 632 So.2d 1239, 1258 (Miss. 1993), in support of his
contention that evidence of a witness's offer to take a polygraph exam is admissible. However, in
Conner, this Court stated that evidence of an offer to take a polygraph is only admissible to support
the credibility of a witness whose veracity has previously been attacked. Id. Since Gerry Lester had
yet to take the witness stand when Dr. O'Brien was testifying, he had not yet been impeached, and
evidence that Lester had offered to take a polygraph exam was therefore inadmissible. It was not
error for the trial judge to instruct the jury to disregard any such testimony. The trial court's
instruction for the jury to disregard the prosecutors' statements was sufficient to cure any error
caused by their outburst. See Johnson, 475 So.2d at 1142. No reversible error resulted, and we do
not reverse based upon this assignment of error.

XIV.

THE TRIAL COURT ERRED IN DENYING INSTRUCTION NUMBER D-9 WHICH
EMBODIED A THEORY OF DEFENSE.

¶93. Instruction D-9 as submitted by the defendant read in its entirety:

One of the issues in this case is the identification of the defendant as the person who allegedly
committed the crime charged in the indictment. In addition to the elements of the crime itself,
the prosecution also has the burden of proving identity of the defendant as the perpetrator of
the crime charged, beyond a reasonable doubt, before you may find him guilty. If after
considering the testimony you have a reasonable doubt as to the accuracy of the identification,
you must find the Defendant not guilty.

In response to the prosecutor's objection to this instruction for lack of basis in the evidence, the trial
judge decided to give the instruction after striking the final sentence.

¶94. Lester argues that by deleting the final sentence, the trial judge gave an abstract instruction
which denied Lester his theory of defense that Lester was not the person who committed the murder.
Lester is correct in stating that he is entitled to have his defense theory presented to the jury within
the court's instructions. See Sayles v. State, 552 So.2d 1383, 1384 (Miss. 1989). However, the
instruction as given was not abstract and was adequate to instruct the jury on Lester's defense theory
that the prosecution had failed to prove beyond a reasonable doubt that Lester was the perpetrator of
the crime. The final sentence referred to the accuracy of an identification; since there was no evidence
of an identification presented at trial, this sentence would have only confused the jury. The trial
judge, therefore did not err in deleting the final sentence of Instruction D-9, and we do not reverse
Lester's conviction and sentence based upon this assignment of error.

XV.

THE OVERLAP BETWEEN SECTION 97-3-19(2)(f) AND 97-3-27 GIVES PROSECUTORS
AND JURIES UNFETTERED DISCRETION TO IMPOSE EITHER THE DEATH
PENALTY OR CONVICT OF MANSLAUGHTER AND VIOLATES THE EIGHTH
AMENDMENT AND CORRESPONDING SECTIONS OF THE MISSISSIPPI
CONSTITUTION.

¶95. It is Lester's position that Mississippi's sentencing system, as applied to killings in the course of
felonious child abuse, violates the principles enunciated in Godfrey v. Georgia, 446 U.S. 420 (1980)
and Furman v. Georgia, 408 U.S. 238 (1972), and thus is unconstitutional. Lester was convicted for
killing during the commission of felonious child abuse under Miss. Code Ann. § 97-3-19(2)(f).
Section 97-5-39(2) defines felonious child abuse as the intentional burning, torturing, or abuse of a
child so as to cause serious bodily harm, unless done in self-defense or defense of another. Miss.
Code Ann. § 97-5-39(2). According to Lester, upon proof of the exact same factual elements, he
could have been convicted of manslaughter under Miss. Code Ann. § 97-3-27. At the time of Lester's
trial, that statute read as follows:

The killing of a human being without malice, by the act, procurement, or culpable negligence of
another, while such other is engaged in the perpetration of any felony, except rape, burglary,
arson, or robbery, or while such other is attempting to commit any felony besides such as are
above enumerated and excepted, shall be manslaughter.

Miss. Code Ann. § 97-3-27.(1) Because these statutes overlap, Lester maintains that unfettered
discretion is granted to the prosecutor in the choice of offenses to prosecute and/or the jury in the
choice of offenses on which to convict, and this discretion is forbidden by Furman.

¶96. Lester failed to raise this issue before the trial court; therefore it is procedurally barred on this
appeal. See Carr, 655 So. 2d at 853. Without waiving any procedural bar, Lester's argument is
unpersuasive. Furman demands a "meaningful basis for distinguishing the few cases in which [the
death penalty] is imposed from the many cases in which it is not." Furman, 408 U.S. at 313.
According to Godfrey death sentences cannot be imposed in an uncontrolled, standardless, and
unchanneled manner. Godfrey, 446 U.S. at 420. Mississippi's capital sentencing scheme satisfies these
requirements, and despite Lester's assertion to the contrary, it prevents the unfettered application of
the death penalty.

¶97. This Court recently rejected this same argument as applied to Miss. Code Ann. § 99-3-19(2)(e)
in Blue v. State, 674 So.2d 1184, 1205-1207 (Miss. 1996). In that case, the defendant unsuccessfully
argued that the overlap between Miss Code Ann. §§ 99-3-19(2)(e) and 97-3-27 violated the
Constitutions of the United States and Mississippi. This Court ruled that Blue's argument failed for
two reasons. "First, it is well established that where there are two separate criminal statutes for the
same offense, the State has a choice of deciding under which statute it will proceed, as long as the
State clearly sets forth in the indictment under which statute it is proceeding." Id. at 1206-1207.
(citing Butler v. State, 608 So.2d 314, 320 (Miss.1992); Rowland v. State, 531 So.2d 627, 631-32
(Miss.1988); Cumbest v. State, 456 So.2d 209, 223 (Miss.1984)). Second, this Court found that the
additional guidelines set out in Miss. Code Ann. § 99-19-101 prevented "total unguided discretion"
by the jury in choosing whether to impose the death penalty. Id. at 1207. Before imposing the death
penalty, § 99-19-101(7) requires the jury to first determine one or more of the following:

(a) The defendant actually killed;

(b) The defendant attempted to kill;

(c) The defendant intended that a killing take place;

(d) The defendant contemplated that lethal force would be employed.

Miss. Code Ann. § 99-19-101(7). After making this determination, the jury must then weigh the
aggravating and mitigating circumstances as prescribed in Miss. Code Ann. § 99-19-101(2) and (3)
(c). This Court determined in Blue that this two-step statutory process required before imposing the
death penalty prevents arbitrariness in the statutory overlap of §§ 97-3-19(2)(e) and 97-3-27.
Therefore, the same conclusion must be reached regarding the overlap of §§ 97-3-19(2)(f) and 97-3-
27. Lester's argument on this point is both meritless and procedurally barred, and we do not vacate
Lester's sentence on this ground.

XVI.

THE INSTRUCTIONS FAIL TO ADEQUATELY INFORM THE JURY OF ITS OPTIONS
TO FIND MANSLAUGHTER.

¶98. The trial court granted Lester's Instructions D-12, D-14, and D-17 on manslaughter. Instruction
D-12 informed the jury of their option to find Lester guilty of manslaughter and defined manslaughter
as "the killing of another person without malice aforethought or premeditation, but by acts of
culpable negligence while in the process of another felony such as child abuse." Instruction D-14
defined culpable negligence as "the conscious and wanton disregard of the probabilities of fatal
consequences to others as a result of the wilful creation of an unreasonable risk thereof." Instruction
D-17 allowed the jury to find Lester guilty of capital murder, guilty of manslaughter, or not guilty.

¶99. Lester claims that his right to have the jury fully instructed on manslaughter as set out in Butler
v. State, 608 So.2d 314, 319-320 (Miss. 1992), was denied by the trial court's refusal to give
Instruction D-13. Instruction D-13 read as follows:

If you find beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis
consistent with innocence that the Defendant, GERRY LYNN LESTER, did cause the death of
Tifinay Nicole Shadi Sanders, but that the same was not done with premeditation or malice
aforethought but was done in by an act of culpable negligence, then you shall find the
Defendant, GERRY LYNN LESTER, guilty of manslaughter.

¶100. In Butler this Court determined that a capital murder defendant who could be convicted under
either Mississippi's capital murder statute or Mississippi's manslaughter statute was entitled to have
the jury instructed as to both crimes. Butler, 608 So. 2d at 320. The statutes at issue in Butler were
the same statutes at issue in this case--Miss. Code Ann. §§ 97-3-19(2)(f) and 97-3-27. In Butler, the
trial court gave an instruction on heat of passion manslaughter, but did not give an instruction on
manslaughter under § 97-3-27. Id. at 319-20. This Court held that the jury should have been
instructed on § 97-3-27 manslaughter, which has the same elements as § 97-3-19(2)(f), except that
the capital murder statute includes the element of intent to kill which is lacking in the manslaughter
statute. Id.

¶101. Lester's argument must fail, because the combination of Instructions D-12, D-14, and D-17
was sufficient to instruct the jury on their option to find Lester guilty of § 97-3-27 manslaughter.
Instruction D-12's definition of manslaughter mirrors the definition of manslaughter in § 97-3-27.
Instruction D-13 was not necessary to complete the jury instructions on manslaughter. Therefore the
Butler requirement of instructing the jury on manslaughter was satisfied by the trial court's
instructions as given. We do not reverse based upon this assignment of error.
 XVII.

THE JUDGE COMMITTED REVERSIBLE ERROR IN OVERRULING LESTER'S
OBJECTION TO THE JURY INSTRUCTION WHICH OMITTED INTENT FROM THE
ELEMENTS OF THE CHARGE ON CHILD ABUSE.

¶102. Lester asserts that Instruction S-1 failed to instruct the jury that it must find that Lester
intentionally caused injuries to Shadai in order to hold that Lester committed felonious child abuse.
Instruction S-1 did require the jury to find that Lester "did wilfully, unlawfully, and feloniously
engage in the commission of felonious abuse and/or battery of Tiffany Nicole Shadai Sanders." Lester
argues that this instruction omitted the element of intent from the charge of felonious child abuse,
thus allowing the jury to find that Lester was guilty of child abuse if he negligently caused the injuries
to Shadai.

¶103. This argument fails by common sense analysis. The instruction does require finding that Lester
"wilfully" caused the injuries in order to hold that he committed felonious child abuse. "Wilfully or
willfully" and "intentionally" have the same meaning, both in ordinary understanding and as legal
terms. Black's Law Dictionary defines "willful" as "Proceeding from a conscious motion of the will;
voluntary; knowingly; deliberate. Intending the result which actually comes to pass; designed;
intentional; purposeful; not accidental or involuntary." Black's Law Dictionary 1599 (6th ed. 1990)
(emphasis added). Black's defines "intentionally" in part as "For purposes of criminal statute means
willfully or purposely, and not accidentally or involuntarily." Black's Law Dictionary 810 (6th ed.
1990) (emphasis added) (citations omitted). Webster's defines "willful or wilful. . . .2: done
deliberately: not accidental or without purpose: intentional. . . ." Webster's Third New International
Dictionary 2617 (1986). "[S]ynonymous phrases or interchangeable words may be used in a jury
instruction and the jury still be properly instructed." Lancaster v. State, 472 So.2d 363, 367 (Miss.
1985) (citing Erving v. State, 427 So.2d 701, 703-705 (Miss.1983)). Since the two words are
synonymous, no error occurred in substituting "wilfully" for "intentionally" in the jury instructions.
The required element of intent was given as part of the jury instruction on felonious child abuse in
Instruction S-1. Therefore this assignment of error is without merit.

XVIII.

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN REFUSING TO GIVE THE
INSTRUCTION REQUESTED BY THE DEFENSE DEFINING CHILD ABUSE AND
CHILD NEGLECT.

¶104. Lester next complains that the trial court erred in refusing to give jury instructions defining
child abuse and child neglect. As previously discussed, the trial court did in fact give adequate jury
instructions on the elements of felonious child abuse. Lester further argues that the trial court erred in
denying Instruction D-19 which defined child neglect, and required the jury to find Lester not guilty if
they determined that he committed child neglect and not child abuse. Lester alleges that by refusing
this instruction, he was denied his theory of defense that Lester did not intentionally cause the spiral
fracture in Shadai's leg or her busted lip. Again, Lester correctly states that Mississippi law requires
that his defense theory be presented to the jury within the court's instructions. See Sayles, 552 So.2d
at 1384. However, in this case, the trial court properly denied Instruction D-19, because child neglect
had nothing to do with Shadai's death, and an instruction on child neglect would only have confused
the jury.

¶105. While some confusion may have resulted from Dr. Blumenthal's medical definition of child
abuse as including child neglect, the trial court properly instructed the jury on the definition of child
abuse. A jury is presumed to follow the instructions of the trial judge, so any confusion which may
have been caused by Dr. Blumenthal's testimony was effectively cured by the court's instructions. See
Johnson, 475 So.2d at 1142. Lester was charged with capital murder during the course of felonious
child abuse. The jury was properly instructed to find Lester not guilty if they found that Lester did
not commit felonious child abuse. Reading the instructions as a whole, no error therefore resulted in
denying Instruction D-19 on child neglect. This issue is without merit and is not grounds for reversal.

XIX.

THE TRIAL COURT ERRED IN OVERRULING LESTER'S CHALLENGES FOR CAUSE
TO SEVERAL JURORS.

A.

Juror Hubert Lewis

¶106. Lester first claims that his challenge for cause of Juror Hubert Lewis should have been
sustained, because Lewis leaned toward the death penalty in cases involving children. However,
Lester takes Lewis's comments out of context. In reading the entire record, it is obvious that Lewis
was simply being honest about his feelings toward the death penalty, particularly in child murder
cases, before he had any knowledge about the sentencing process. Once Lewis was informed about
the separate sentencing phase, he stated that he would be able to follow the judge's instructions,
regardless of his prior feelings, and base his decision on the evidence, requiring the State to prove
their burden of proof and weigh the mitigating and aggravating circumstances. When asked by the
defense whether he would lean toward the death penalty instead of life imprisonment, Lewis replied
that he would first have to hear the evidence. Juror Lewis stated that he would set aside his personal
feelings and follow the law as instructed by the trial judge. This Court has previously held that jurors
who leaned heavily toward the death penalty but "could put aside their personal feelings, follow the
law and instructions of the court and return a verdict based solely upon the law and the evidence and
not vote for the death penalty unless the evidence warranted it" were qualified to serve. Leatherwood
v. State, 435 So.2d 645, 654 (Miss. 1983). The trial court properly refused to grant Lester's
challenge for cause to Lewis.

¶107. Furthermore, Lester had the opportunity to peremptorily strike Juror Lewis, because the
defense had four remaining peremptory challenges when Lewis was tendered.

Denial of a challenge for cause is not error where it is not shown that the defense has exhausted
peremptory challenges and is thus forced to accept the juror. This threshold test is applicable in
a capital murder case. A prerequisite to a claim that the trial court erroneously forced a
defendant to accept an incompetent juror is exhaustion of peremptory challenges.

Berry v. State, 575 So.2d 1, 9 (Miss. 1990) (citing Rush v. State, 278 So.2d 456, 458 (Miss. 1973);
Billiot v. State, 454 So.2d 445, 457 (Miss. 1984); Chisolm v. State, 529 So.2d 635, 639 (Miss.
1988)). Because Lester failed to use a peremptory challenge to excuse Juror Lewis, and because the
record reflects that Juror Lewis was qualified to serve, this assignment of error must fail.

B.

Juror James Busby

¶108. Lester next asserts that the trial court erred by failing to excuse Juror James Busby for cause,
because Busby had been a victim of crime, was related to law enforcement personnel, had previously
heard about the case, and was a supporter of the death penalty. Lester had no remaining peremptory
challenges when Busby was tendered to the defense, and Busby ended up serving as the foreman of
the jury.

¶109. All of Busby's relatives in law enforcement were all from Lauderdale County and are deceased.
Lester's case had little to do with law enforcement anyway, since the majority of the testimony was
from medical experts, not law enforcement officials. Although he said that he had read about the case
when it happened, Busby could not remember anything specific about it and had not formed any
opinion as to Lester's guilt or innocence. While Busby was a crime victim, courts would be hard-
pressed to find people in Hinds County these days who have not at one time or another been victims
of crime. Furthermore, Busby believed that these crimes would have no bearing on his decision as a
juror.

¶110. Busby did state that he was in favor of the death penalty, both in his juror information
questionnaire and during voir dire. However, when further questioned about his position on the death
penalty, Busby stated that he would not automatically vote for the death penalty and would be willing
to hear all of the evidence first. When asked if he would set aside his personal views and listen to and
weigh the evidence of mitigating and aggravating circumstances, Busby responded, "Yes, sir, I would
do that." He further clarified that when he said, "I'll try my best to do that" (follow the law), he meant
that he would be able to succeed. While it is true that this Court has previously held that it is not
enough for a potential juror to say that she would "try" to follow the court's instructions, Mr. Busby
in this case stated that by trying he would in fact succeed. Billiot, 454 So.2d at 457. When people say
"I'll try" or "I think I could" do something, it doesn't necessarily mean that they doubt their own
ability. The person's tone of voice, facial expression, and general demeanor affect the meaning which
these phrases would carry. That is exactly why a trial judge's decision on whether to excuse a juror is
given wide discretion. See Scott v. Ball, 595 So.2d 848, 849 (Miss. 1992) (citations omitted). The
trial court found that Juror James Busby was only being honest with the court and was an acceptable
juror. It cannot be said that the trial court abused its discretion in refusing to excuse Juror James
Busby for cause.

C.

Failure to Excuse Additional Jurors for Cause

¶111. None of the remaining jurors whom Lester argues should have been excused for cause ended
up on the jury, because Lester was able to use his peremptory challenges to excuse them. Since
Lester was not forced to accept any of these jurors, he is barred from raising this issue on appeal. See
Berry, 575 So.2d at 9. Aside from Lester not meeting this prerequisite, the trial court properly
declined to excuse these jurors for cause.

1. Benjamin Harper, Jr.

¶112. Lester again claims that being a crime victim somehow prevents a juror from being acceptable
to serve, but cites no authority for this position. Although Harper had previously served on juries in
two capital cases and voted for the death penalty, he stated unequivocally that his experience on
those two cases would not cause him to lean toward the death penalty in this case.

2. Sharon Stone Dorman

¶113. Lester claims that Ms. Dorman never clearly stated that she would not lean toward the death
penalty. He also asserts that because of her having worked with children and being a mother, Ms.
Dorman would have used the fact that the victim in this case was a small child as a non-statutory
aggravating circumstance. However, the record reflects that Dorman stated that she would not lean
toward the death penalty, would consider all evidence, and would weigh the aggravating and
mitigating circumstances before voting during sentencing. Ms. Dorman also stated that her
experience in having worked with children and parents would make her a fair juror toward Lester.

3. Mrs. Lydumah Ratliff

¶114. Lester asserts that because Mrs. Ratliff initially stated that she would lean toward the death
penalty where a child was involved, she was an unqualified juror. Again, so long as a juror can set
aside her personal feelings toward the death penalty and follow the law, she is an acceptable juror.
See Leatherwood, 435 So.2d at 654. Ms. Ratliff stated that her vote would not be automatic, she
would weigh the mitigating and aggravating circumstances, and she would have to be "thoroughly
convinced" of guilt before voting for the death penalty. Ms. Ratliff stated that she could accept the
law as she had learned it since arriving for jury duty and would follow the law as the court explained
it to her.

4. Mary Williams Blackmon

¶115. Lester complains that Ms. Blackmon should have been excused for cause, because she had two
friends on the Jackson Police Department, had two sisters who were rape victims, favored the death
penalty in cases involving children, and had two children who were previously treated by one of the
prosecution's witnesses, Dr. Donaldson. Blackmon stated that neither knowing the police officers nor
having sisters who were rape victims would influence her decision. Ms. Blackmon also stated several
times that she would be fair and follow the law; she would need to hear all of the evidence before
deciding whether to vote for the death penalty. Although Dr. Donaldson had treated her children
previously, it had been seven to eight years since she had taken them to see Dr. Donaldson, and she
stated that she would not place more emphasis on his testimony than the testimony of the other
experts. Lester points to Scott v. Ball, 595 So.2d 848, 848-50 (Miss. 1992), to support his
contention that Ms. Blackmon should have been excused because her children were treated by Dr.
Donaldson. However, in that case a potential juror's family members had been treated by the doctor
who was the defendant in the medical malpractice case for which the potential juror had been called.
Id. In the present case, Dr. Donaldson was not a party, but a mere witness.
 5. Ms. Betty Jane Tatum Robb

¶116. Lester asserts that Ms. Robb should have been excused for cause because she stated that she
had previously heard about the case and would have difficulty separating the facts which she had
heard before from the evidence presented at trial. However, upon further questioning it turned out
that Ms. Robb had Lester's case confused with another case. Ms. Robb also stated that she would not
be influenced by what she had read.

¶117. Lester argues that Ms. Robb was not qualified to serve because she believed that her
granddaughter might have been sexually abused as a child. However, Ms. Robb stated that it would
not influence her decision, because the situations were different.

6. Ms. Julie Kay Musgrove Moore

¶118. Lester claims that the trial court erred in failing to excuse Ms. Moore because of her strong
support for the death penalty. However, Ms. Moore stated that she would follow the instructions
given by the court. Defense counsel even admitted that Mr. Peters had "somewhat rehabilitated" Ms.
Moore as a juror during further questioning in general voir dire. Again, so long as a juror agrees to
follow the law as explained in the court's instructions, that juror is qualified to serve, regardless of
personal feelings in favor of the death penalty. See Leatherwood, 435 So.2d at 654.

XX.

THE TRIAL COURT ERRED IN SUSTAINING THE PROSECUTION'S CAUSE
CHALLENGE TO JUROR NIMOX.

¶119. Lester complains that the trial court erred in excusing Juror Nimox for cause. However, the
record reflects that Nimox stated that he could not consider voting for the death penalty under any
circumstances. If given a choice, Nimox said he would not participate in voting for the death penalty.
He also stated that as a journalist he would have trouble setting aside the opinions which he had
already formed regarding the case. It is well settled that a party is not entitled to have any specific
venire member on the jury; the requirement is only that the trial court protect the defendant's right to
a fair and impartial jury. Coverson v. State, 617 So.2d 642, 645-46 (Miss. 1993). Again , trial courts
are given wide discretion in deciding whether to exclude jurors for cause. See Scott v. Ball, 595
So.2d at 849. It cannot be said that the trial court abused its discretion in excusing Juror Nimox who
stated that he could not consider voting for the death penalty and who had a firm prior opinion on
Lester's case. This issue is without merit, and we do not reverse based upon Lester's assertions.

XXI.

THE TRIAL COURT ERRED IN GRANTING THE STATE'S CHALLENGE FOR CAUSE
TO JUROR HENRY GREENE.

¶120. Lester also claims that it was error for the trial court to excuse Juror Greene. However, the
record reflects that Greene had night jobs which he expected to continue during the trial and so
would not be able to give his full attention to the trial. The trial court also based its decision on the
fact that Juror Greene had previously experienced minor psychological problems. Lester's argument
fails regarding Juror Greene for the same reason that his argument regarding Juror Nimox fails.
Lester was not entitled to have this particular juror try his case, and no abuse of discretion resulted
from the trial court's refusal to excuse a juror who admitted that he would have difficulty
concentrating on the trial and who had a possible mental problem. This issue is similarly meritless.

XXII.

THIS CASE MUST BE REVERSED OR REMANDED BECAUSE THE JUDGE DID NOT
REQUIRE THE PROSECUTOR TO GIVE REASONS FOR HIS PEREMPTORY
CHALLENGES.

¶121. Lester asserts that during jury selection the prosecutor exercised its peremptory strikes in
violation of Batson v. Kentucky, 476 U.S. 79 (1986), and that the trial court committed reversible
error by failing to compel the prosecution to justify its peremptory strikes as required by Batson.
Under Batson, a challenge to a peremptory strike necessitates a 3-step process. First, the defendant
must establish a prima facie case of purposeful discrimination in the selection of jury members. To do
this the defendant must show:

1. That he is a member of a "cognizable racial group";

2. That the prosecutor has exercised peremptory challenges toward the elimination of
veniremen of his race; and

3. That facts and circumstances raised an inference that the prosecutor used his peremptory
challenges for the purpose of striking minorities.

Conerly v. State, 544 So. 2d 1370, 1372 (Miss. 1989) (citing Batson, 476 U.S. at 96-97; Lockett v.
State, 517 So. 2d 1346, 1349 (Miss. 1987), cert. denied, 487 U.S. 1210 (1988)).

¶122. Second, should the defendant make such a showing, the striking party then has the burden to
state a racially neutral explanation for the challenged strike. Batson, 476 U.S. at 97-98. If a racially
neutral explanation is offered the defendant can rebut the explanation. Bush v. State, 585 So. 2d
1262, 1268 (Miss. 1991) (citation omitted).

¶123. Finally, the trial court must make a finding of fact to determine if the defendant has proved
purposeful discrimination. Batson, 476 U.S. at 98. If the defendant makes no rebuttal the trial judge
may base his decision only on the reasons given by the State. Bush , 585 So. 2d at 1268 (citation
omitted). On appellate review this decision is accorded great deference because it is based, in a large
part, on credibility. Lockett, 517 So. 2d at 1349. "'Great deference' has been defined in the Batson
context as insulating from appellate reversal any trial findings which are not clearly erroneous." Id. at
1349-50 (citations omitted).

¶124. In this case, both Lester and the State made Batson challenges at the close of voir dire. Eighty-
seven jurors were qualified on the venire: twenty-five were black females, fifteen were black males,
twenty-four were white females, and twenty-three were white males. Thus the racial make-up of the
original venire was approximately forty-six percent black and fifty-four percent white. The State used
nine challenges: three black females, three black males, and three white males. Without considering
the effect of the challenges for cause, the prosecution's peremptory challenges would have reduced
the percentage of blacks on the venire to forty-four percent, only two percentage points less than the
original venire. Furthermore, the State had three remaining peremptory challenges that went unused;
if the intention was to keep black venire members off of the jury, surely these three peremptories
would have been so used. The trial court found that based upon these numbers, there was no
indication that the State made challenges based upon race and therefore required no explanation of
the State's challenges.

¶125. Lester argues that the trial court erred in finding that he failed to make a prima facie case of
purposeful racial discrimination by the prosecution in its use of peremptory challenges. He points to
Thorson v. State, 653 So.2d 876, 895-96 (Miss. 1994), in which this Court remanded the case for a
Batson hearing, where the prosecution had made seven peremptory challenges against black jurors.
However, in Thorson, the trial court had erroneously refused to conduct a Batson hearing, finding
that Batson did not apply since the defendant was not part of a minority class. This Court did not
remand Thorson based upon the number of peremptory challenges used by the prosecution against
blacks, but because of the trial court's error in refusing to apply Batson at all. Here, a Batson hearing
was conducted, but the trial court found that Lester failed to establish a prima facie case of racial
discrimination by the prosecution's use of peremptory challenges.

¶126. In Dennis v. State, 555 So.2d 679, 681 (Miss. 1989), this Court held that the defendant failed
to make his prima facie case where the prosecution used five of seven, or approximately seventy-one
percent of its peremptory challenges against black jurors. The prosecution in this case used
approximately sixty-seven percent of its peremptory challenges against black jurors. Under these
circumstances, it cannot be said that the trial judge's ruling that Lester failed to prove his prima facie
case under Batson was clearly erroneous.

¶127. The trial court made no ruling on the issue of gender-based challenges, because neither party
made such a challenge. Because he failed to make a contemporaneous objection at trial, Lester's
claim regarding alleged gender-based challenges is barred on appeal to this Court. Aside from the
procedural bar, this claim is without merit, because the prosecution used only three peremptory
challenges against women and nine against men. Similarly, Lester's claim that the prosecution made
race-based challenges for cause is without merit, because Batson only applies to peremptory
challenges, not challenges for cause. It would be nonsensical to impose the Batson inquiry requiring
the challenged party to make a showing of race-neutral reasons for its challenges for cause, when
obviously such reasons have already been given per the nature of a challenge for cause. The trial
judge did not make a clearly erroneous decision in failing to require the prosecution to give reasons
for its peremptory challenges, and we do not reverse on this issue.

XXIII.

ADDITIONAL PROSECUTORIAL MISCONDUCT DEPRIVED LESTER OF DUE
PROCESS AND A FAIR TRIAL.

A.

Guilt Phase

¶128. Lester first points to Assistant District Attorney Cynthia Speetjens' statement in closing
argument, "So I don't want you to even bother necessarily considering all the State's witnesses who
are so eminently qualified and who are so obviously unbiased. I want you to think about what their
witnesses did to this theory." Lester argues that this was an improper personal assurance of the
credibility of the State's own witnesses. However, Lester made no objection to this statement at trial,
so he is barred from raising it on appeal. See Carr, 655 So.2d at 853. Considered on the merits, this
claim is unpersuasive. In Berry, this Court found no error in the prosecutor vouching for the
credibility of one of the State's witnesses, because "broad latitude is afforded the attorneys in closing
argument, and the prosecutor did not exceed the limits of argument in this case." Berry, 575 So.2d at
9.

¶129. Lester makes the same argument about Ms. Speetjens's statement that she believed Brenda
Lester's testimony that Brenda saw no bruises on Shadai before she left Brenda's house on the night
of her death. Again this issue is barred for failure to make a timely objection. See Carr, 655 So.2d at
853. This comment did not exceed the broad scope that we allow attorneys during closing argument.

¶130. Twice during closing argument, Ms. Speetjens told the jury that if they believed the defense's
theory that Kendrick killed Shadai or if they believed Brenda Lester's testimony, they could write
down a verdict of not guilty and she would eat it. These comments bordered on the inappropriate,
but Lester again failed to make a contemporaneous objection, thus barring this assignment of error.
See Carr, 655 So.2d at 853.

¶131. Ms. Speetjens again pushed the envelope during closing argument when she asked the jury to
remember Ruchelle and Gerry's younger daughter, implying that the other little girl would be in
danger if Gerry were acquitted. The trial court sustained Lester's objection and instructed the jury to
disregard the comment, thus removing any resulting error. Foster, 639 So.2d at 1282.

¶132. The prosecutor's comments during closing argument regarding Lester's drinking, history of
problems in school, responses on Dr. O'Brien's psychological examination, lack of employment
experience, and failure to provide support for Ms. Shields's baby were all based in the evidence
presented at trial and not objected to at trial. Again, failure to properly object at trial bars
consideration of the issue on appeal. See Carr, 655 So.2d at 853

¶133. Lester also points to the prosecutor's disparaging remarks and erroneous instructions regarding
manslaughter. However, as previously discussed, these comments did not cause reversible error,
because the jury was properly informed on its option to find Lester guilty of manslaughter. Johnson,
475 So.2d at 1142.

¶134. The trial court sustained Lester's objection to the prosecution's reference to the defense's
failure to put an investigator from DHS on the witness stand. Lester incorrectly characterizes this
comment as encouraging the jury to infer that the DHS reports contained evidence of Lester's guilt
after the court sustained the prosecution's objection to their admission. The record reflects only a
comment on the fact that no investigator from DHS ever testified. This statement was not so
egregious as to warrant further consideration by this Court after the defense objection was sustained
and the jury instructed to disregard the comment.

¶135. Without any objection by Lester, Mr. Peters contrasted the protection of Lester's rights at the
trial with Shadai lying in the cold ground. This Court has previously held that it is error to weigh the
value of the defendant's life against that of the victim during the sentencing phase. Willie v. State ,
585 So.2d 660, 679 (Miss. 1991). However, lack of a contemporaneous objection bars further
consideration by this Court.

¶136. Lester next asserts that the prosecutor improperly commented that the jury in the end got "the
whole picture," implying that the defense was unethical in hiding evidence from the jury. The record
reflects no implication by the prosecutor that the defense attempted to hide any evidence from the
jury. This argument is therefore without merit.

B.

Sentencing Phase

¶137. Lester finally points to the prosecutor's arguments that the jury would "have to go to the moon
not to find that this child's soul demands this level of justice" and "This child's soul says: What are
you going to do about me? It is extremely tragic that you are what she has on this earth." Lester's
objection to this final comment was sustained, so the error in the prosecutor's argument was cured.
See Foster, 639 So.2d at 1282. The "go to the moon" remark may not have been decorous, but it
was a fair comment on the weight of the evidence against Lester. The prosecutor did not exceed the
boundaries allowed by this Court on closing argument, so we do not reverse based upon this issue.

XXIV.

THE VERDICT OF GUILT IS SUPPORTED BY INSUFFICIENT CREDIBLE EVIDENCE.

¶138. Lester claims that the prosecution's evidence failed to exclude every reasonable hypothesis
consistent with innocence, and that therefore, the jury's guilty verdict is not supported by sufficient
credible evidence. Specifically Lester asserts that the prosecution failed to exclude the possibility that
someone else committed this crime. Lester argues that the most likely time for the crime to have
occurred was between 4:30 p.m. and 6:30 p.m., during which Lester was not alone with Shadai.
However, no one was alone with Shadai between 4:30 and 6:30. The expert testimony showed that
Shadai could have bled to death within thirty minutes, placing the time of injury at a point when
Lester could easily have been alone with Shadai at the apartment. Moreover, the undisputed
testimony of all of the experts was that Shadai would not have eaten anything after sustaining her
fatal injuries. Since food was found in Shadai's stomach, and Kendrick testified that Shadai ate with
him at Brenda's house, the jury could have easily concluded that Shadai's fatal injuries would have to
have been committed after leaving Brenda's house. Again that would leave Lester as the most likely
suspect.

¶139. It is true that the prosecution bears the burden in a circumstantial evidence case of proving
guilt beyond a reasonable doubt and to the exclusion of all reasonable hypotheses consistent with
innocence. See Sanders v. State, 286 So.2d 825, 828 (Miss. 1973). The jury was properly instructed
as to this burden of proof in Instruction D-12.

When on appeal one convicted of a criminal offense challenges the legal sufficiency of the
evidence, our authority to interfere with the jury's verdict is quite limited. We proceed by
considering all of the evidence--not just that supporting the case for the prosecution--in the light
most consistent with the verdict. We give prosecution the benefit of all favorable inferences that
 may reasonably be drawn from the evidence. If the facts and inferences so considered point in
favor of the accused with sufficient force that reasonable men could not have found beyond a
reasonable doubt that he was guilty, reversal and discharge are required. On the other hand, if
there is in the record substantial evidence of such quality and weight that, having in mind the
beyond a reasonable doubt burden of proof standard, reasonable and fair-minded jurors in the
exercise of impartial judgment might have reached different conclusions, the verdict of guilty is
thus placed beyond our authority to disturb.

McFee v. State, 511 So.2d 130, 133-34 (Miss. 1987) (citing Gavin v. State, 473 So.2d 952, 956
(Miss.1985); May v. State , 460 So.2d 778, 781 (Miss.1984)). Sufficient evidence existed for the jury
to find that the prosecution had met its burden of proof in this case. We do not reverse based upon
this assignment of error.

XXV.

THE PROSECUTION COMMITTED REVERSIBLE ERROR AT SENTENCING BY
COMMENTING ON LESTER'S FAILURE TO TESTIFY.

¶140. Assistant District Attorney Speetjens made the following comments during closing argument in
the sentencing phase of Lester's trial:

Through no Defense witness did we hear anything about what it's like when this Defendant is
alone with this child.

. . . .[Objection overruled]. . . .

But not one of those people ever dealt with this Defendant when he had the child alone. The
only thing that we know about what happened with this Defendant when he's alone with this
child we must learn through doctors because when he's alone with this child she gets hurt, and
she gets hurt very badly. What could possibly be worse?

. . . .[No objection]. . . .

During closing argument, Mr. Peters commented on Lester's lack of remorse and failure to take the
stand in the sentencing phase to express anger over Shadai's death. Lester argues on appeal to this
Court that these statements by the prosecutors during closing argument in the sentencing phase of his
trial were improper comments on his failure to testify, thus violating his privilege against self-
incrimination. No objection was raised to any of these comments at trial, other than the first
statement by Ms. Speetjens. Therefore, other than that first comment, Lester is barred from raising
this issue on appeal. See Carr, 655 So.2d at 853.

¶141. Lester points to a similar case out of Texas in which the court rejected the argument that
because the defendant testified during the guilt phase the prosecutor could comment on the
defendant's failure to testify and express remorse during the sentencing phase. Owen v. State, 656
S.W.2d 458, 458-60 (Tex. Crim. App. 1983). However, Lester cites no Mississippi authority in
support of his contention. Because Lester did testify during the guilt phase and all testimony from the
guilt phase was admitted at the sentencing phase, it became proper for the prosecution to comment
on Lester's guilt phase testimony during the sentencing phase.
 XXVI.

INSTRUCTIONS DEFINING "HEINOUS, ATROCIOUS OR CRUEL" WERE
UNCONSTITUTIONALLY VAGUE.

¶142. Lester next complains that the instruction given by the trial court on the "heinous, atrocious or
cruel" (HAC) aggravating circumstance was unconstitutionally vague. However, this Court recently
held that this exact narrowing instruction on the HAC aggravator satisfied constitutional
requirements in Carr, 655 So.2d at 851-52. See also Conner v. State, 632 So.2d 1239, 1269-71
(Miss. 1993) (finding same HAC instruction to be constitutional); Jenkins v. State, 607 So.2d 1171,
1181-82 (Miss. 1992) (with same holding on same instruction). We do not reverse based upon an
argument so well-settled by this Court to be unpersuasive.

XXVII.

THE HAC AGGRAVATOR IS ALSO UNCONSTITUTIONAL AS APPLIED TO LESTER.

¶143. Lester also argues that the HAC aggravating circumstance instruction was not warranted by
the evidence in his case. A large portion of the expert testimony in this case was devoted to
describing the torturous pain to which Shadai was subjected as a result of her injuries. Dr. Galvez
testified as to the excruciating pain which would have resulted from Shadai's abdominal injuries,
describing it as a "very painful, lancinating pain, like a stabbing." He further testified that Shadai's
head injuries would have caused her to have grogginess with a severe headache and terror. Testimony
was also offered by Dr. Donaldson that excruciating pain would have accompanied the spiral fracture
in Shadai's femur. This was a conscienceless, pitiless crime which caused unnecessary torture to
Shadai through a high degree of pain. The HAC aggravating circumstance instruction was
appropriately given in this case, so this issue is meritless.

XXVIII.

THE TRIAL COURT'S ANTI-SYMPATHY INSTRUCTION COUPLED WITH THE
DENIAL OF A MERCY INSTRUCTION MEAN THAT LESTER'S SENTENCE MUST BE
REVERSED.

¶144. Lester's next assignment of error cites failure by the trial court to give a mercy instruction as
being reversible error. However, it is well settled that a criminal defendant is not entitled to a mercy
instruction, and that the issuance of a mercy instruction is within the discretion of the circuit court.
Jackson v. State, 672 So.2d 468, 494 (Miss. 1996) (citing Foster v. State, 639 So.2d 1263, 1301
(Miss.1994); Jenkins v. State, 607 So.2d 1171, 1181 (Miss.1992); Hansen v. State, 592 So.2d 114,
150 (Miss.1991)). The United States Supreme Court has held that giving an antisympathy instruction
does not violate any constitutional requirements, and that, in fact, a mercy instruction could induce a
trial jury to base its sentencing decision upon whim or caprice instead of upon the evidence presented
at trial. Saffle v. Parks, 494 U.S. 484, 492-95 (1990). Clearly this issue is without merit, and we do
not reverse based upon Lester's twenty-eighth assignment of error.

XXIX.
 THE TRIAL COURT ERRED IN INSTRUCTING THE JURY THAT LESTER WAS
REQUIRED TO PROVE THAT THE MITIGATING CIRCUMSTANCES OUTWEIGHED
THE AGGRAVATING IN ORDER TO RECEIVE A LIFE SENTENCE.

¶145. Lester contends that Instruction SS-1, given as Sentencing Instruction 15 erroneously
instructed the jury that Lester had the burden of proving that the mitigating circumstances
outweighed the aggravating circumstance. The relevant part of this instruction read:

Next, to return the death penalty, you must find that the mitigating circumstances - those which
tend to warrant the less severe penalty, life imprisonment - do not outweigh the aggravating
circumstances - those which tend to warrant the death penalty.

¶146. As previously discussed, this argument is worthless. First, the plain language of § 99-19-101
(the statute governing the weighing process of the sentencing phase) requires the jury to find that the
mitigating circumstances outweigh the aggravating circumstances before sentencing a defendant to
death. Miss. Code Ann. § 99-19-101. Second, this Court has previously rejected the argument that a
shift in the burden of proof occurs from the requirement that the jury find mitigating factors are not
outweighed by aggravating factors. Mack, 650 So.2d at 1330. Finally this Court has recently
approved this same instruction in Doss v. State, No. 93-DP-00509, slip at 26-27 (05-23-1996). See
also Conner v. State, 632 So.2d 1239, 1278 (Miss. 1993). As a result, this issue is completely
unpersuasive.

XXX.

THE COURT ERRED IN GIVING INSTRUCTION SS-1.

¶147. Lester claims that Instruction SS-1, given as Sentencing Instruction 15, was flawed because it
failed to require the jury to make specific written findings of mitigating circumstances. At trial, the
defense attorney stated that he had no objection to Section C of Instruction SS-1, the section to
which Lester now points as being erroneous. Since Lester failed to object to this instruction at trial,
he is now procedurally barred from raising this issue on appeal. See Carr, 655 So.2d at 853.
Furthermore, this Court has previously held that the law in Mississippi does not require the jury to
provide a written list of the mitigating circumstances which they find. Foster, 639 So.2d at 1302-
1303. This issue is both procedurally barred and without merit.

XXXI.

THE TRIAL COURT ERRED IN DENYING LESTER'S REQUEST FOR AN
INSTRUCTION ON THE STATUTORY MITIGATING FACTOR OF EXTREME MENTAL
OR EMOTIONAL DISTURBANCE.

¶148. Lester complains that he was denied his statutory right to have the jury instructed on statutory
mitigating circumstances when the trial court refused to instruct the jury to consider Lester's
"extreme mental or emotional disturbance" under Miss. Code Ann. § 99-19-101(6)(b). He claims that
the evidence presented of his alcohol use and stress supported the use of this instruction. In support
of his argument Lester cites the statute; Keys v. State, 635 So.2d 845, 849 (Miss. 1994); and Penry
v. Lynaugh, 492 U.2. 302 (1989). This Court in Keys stated that trial courts are precluded from
giving instructions that prevent the defendant from asserting a claim of self-defense. The United
States Supreme Court reversed in Penry, because the jury instructions failed to provide a vehicle for
consideration of the defendant's retardation and abuse as a mitigating factor, where these factors
were likely to be considered both aggravating and mitigating.

¶149. In this case there was no evidence presented to show extreme mental or emotional disturbance,
so refusal of the instruction was warranted by § 99-19-101. Additionally, refusing to give the
"extreme mental or emotional disturbance" jury instruction did not foreclose the jury's consideration
of Lester's mental capacity because a "catch-all" instruction was submitted to the jury. Lester
therefore had the right to argue this mitigating circumstance before the jury under the catch-all
instruction. A catchall instruction is sufficient to encompass non-statutory mitigating factors.
Blystone v. Pennsylvania, 494 U.S. 299, 308 (1990); Jackson v. State, 672 So.2d 468, 493 (Miss.
1996); Taylor v. State, 672 So.2d 1246, 1276-77 (Miss. 1996). Lester's claim that the jury was
unconstitutionally foreclosed from considering all mitigating circumstances has no merit.

XXXII.

THE TRIAL COURT SIMILARLY ERRED IN DENYING LESTER'S REQUEST TO
INSTRUCT THAT THE JURY COULD CONSIDER HIS LACK OF SIGNIFICANT
CRIMINAL HISTORY AS MITIGATION.

¶150. Lester also cites as error the fact that the trial court refused to give a jury instruction on the
statutory mitigating factor of "no significant history of prior criminal activity." Miss. Code Ann. § 99-
19-101(6)(a). He argues that because the evidence showed that he had one prior felony conviction
for grand larceny, the trial court should have instructed the jury to consider this mitigating factor. He
points to Carr v State, 655 So.2d 824, 855-56 (Miss. 1995), as support for his argument. In Carr,
this Court held that it was proper for the trial court to refuse a peremptory instruction on "no
significant history of prior criminal activity" when that factor was in dispute. Id. at 856. Carr, like
Lester, had on his record a prior felony conviction for grand larceny. Id. at 855. This Court held that
whether the mitigating factor of "no significant history of prior criminal activity" existed was
therefore a question for the jury and should not be precluded from consideration by the jury. Id. at
856. However, this Court concluded that it was not a proper peremptory instruction. Id at 856.

¶151. Based upon the ruling in Carr, it was proper for the trial court here to allow the jury to decide
whether the mitigating factor of "no significant history of prior criminal activity" existed based upon
the evidence that Lester had a prior felony conviction. As discussed above, the catchall instruction in
Instruction SS-1 allowed the jury to consider this mitigating factor, if they found that it existed based
upon the evidence presented. The evidence was inconclusive as to the existence of this mitigating
factor, and the jury was not precluded from considering this factor. Therefore, the trial judge did not
err in refusing to grant Lester's request for this instruction, and this issue is without merit.

XXXIII.

THE TRIAL JUDGE ERRED IN GIVING INSTRUCTION S-5 OVER LESTER'S
OBJECTION.

¶152. Over objection by Lester, the trial court granted Instruction SS-5, which stated, "Just because
these instructions have listed certain mitigating circumstances you are allowed to consider, does not
mean that those or any other mitigating circumstances exist. It is for only you, the jury, to determine
which mitigating circumstances exist." Lester argues that this instruction was abstract, because it
instructs the jury that the mitigating factor of "age of the defendant" given in Instruction SS-1 might
not exist. He argues that the confusion created by this instruction warrants reversal of his sentence.

¶153. The obvious meaning of Instruction SS-5 was to instruct the jury that they must determine
which factors shown by the evidence were in fact mitigating. The instruction is a correct statement of
the law, because it is a question for the jury to decide which mitigating factors exist, as set out in
Miss. Code Ann. § 99-19-101. Instruction SS-5 must be read together with the other jury
instructions given to determine whether it is abstract and confusing. Lee v. State, 469 So.2d 1225,
1232 (Miss. 1985). Since Instruction SS-5 cannot be said to have mislead the jury when read in
conjunction with Instruction SS-1 (the general instruction on determining and weighing mitigating
and aggravating factors), the trial court's decision to grant it was not reversible error. Id. at 1232.
See also Pickett v. State, 443 So.2d 796, 800 (Miss. 1983).

XXXIV.

THE TRIAL COURT ERRED IN GIVING INSTRUCTION S-3 WHICH ALLOWED THE
JURY TO CONSIDER NON-STATUTORY AGGRAVATING CIRCUMSTANCES.

¶154. Lester objected to Instruction S-3 at trial, but on different grounds than those he raises on
appeal. At trial he objected to the instruction on grounds that it incorrectly informed the jury on how
they were supposed to weigh aggravating and mitigating circumstances. As a result, Lester is barred
from raising this issue on appeal, because objection on one ground at trial waives all other grounds
for objection on appeal. See Conner, 632 So.2d at 1255.

¶155. Aside from the procedural bar, Lester's argument is not convincing. Instruction S-3 read:

The Court instructs the jury that it must be emphasized that the procedure you must follow is
not a mere counting process or a certain number of aggravating circumstances versus the
number of mitigating circumstances, rather, you must apply your reason to judgment as to
whether this situation calls for life imprisonment or whether it requires the imposition of death
in light of the totality of the circumstances present.

Lester argues that this instruction invited the jury to consider non-statutory aggravating factors in
violation of Miss. Code Ann. § 99-19-101 and Mississippi case law.

¶156. Lester is accurate in his statement that this Court has previously held that Miss. Code Ann.
§ 99-19-101 is clear in limiting the aggravating factors which a trial jury may consider to those
specifically listed in subsection 5 of the statute. See Balfour v. State, 598 So.2d 731, 747-48 (Miss.
1992) (citing Stringer v. State, 500 So.2d 928, 941 (Miss. 1986) and Coleman v. State, 378 So.2d
640, 648 (Miss. 1979)). However, Instruction S-3 did not instruct the jury to consider other non-
statutory aggravating factors. It merely informed the jury on the manner in which they were to
evaluate those aggravating circumstances which they could consider under the statute. As discussed
above, taking the instructions as a whole, the jury below was adequately informed that they must
limit their consideration to the aggravating circumstances set out in Miss. Code Ann. § 99-19-101.
This issue is therefore without merit.

XXXV.

THE DEATH PENALTY IS DISPROPORTIONATE IN THIS CASE.

¶157. Lester argues that the death penalty is disproportionate in his case, because the jury did not
find that he intended to kill, because the jury only found one invalid aggravating circumstance (the
HAC aggravator), and because the statutory scheme allowed the jury unfettered discretion to impose
either the death penalty or convict of manslaughter. As previously discussed, Mississippi's statutory
sentencing scheme provides sufficient safeguards against such unfettered discretion. Although the
jury did not find that Lester intended to kill, they did find that Lester actually killed and that he
contemplated that lethal force would be employed. Miss. Code Ann. § 99-19-101(7) only requires
that one of these factors be found before imposing death; here the jury found two. Also, Miss. Code
Ann. § 99-19-101 only requires that the jury determine that the mitigating circumstances don't
outweigh the aggravating circumstances before imposing the death penalty. The statute does not set
out a requisite number of aggravating circumstances which must be found before imposing death. As
previously discussed, the HAC aggravator was not invalidly found by the jury in this case. Since the
jury did make a finding that the mitigating circumstances were insufficient to outweigh the
aggravating circumstances in Lester's case, this requirement was met.

¶158. Lester also argues that Mississippi's proportionality review statute is unconstitutional, because
it only requires comparing the defendant's case with other cases where death was imposed. Miss.
Code Ann. § 99-19-105. Lester asserts that all cases in which the death penalty could be imposed
should be considered, including those in which the death penalty is not actually imposed. Lester cites
Harris v. Blodgett, 853 F.Supp. 1239, 1286-91 (W.D. Wash. 1994), and State v. Marshall, 613
A.2d 1059, 1070-74 (N.J. 1992), in support of his contention. In Harris, the court held that
Washington's proportionality review statutory procedure violated the due process requirements of the
federal Constitution, because the criminal defendant was not given notice of a specific definition of
"similar cases," which would be compared to his case in determining whether the death penalty was
proportionate in his case. Harris, 853 F.Supp. at 1291.

¶159. In Marshall, the New Jersey Supreme Court determined that their "universe of similar cases"
for proportionality review would include all death-eligible cases. Marshall, 613 A.2d at 1070-74.
However, the court noted that other states (including Georgia, Maryland, Delaware, and
Pennsylvania) did not use the same definition of similar cases. Id. at 1073-74. Furthermore, the court
stated, "Had it appeared to be an insurmountable task to examine all 'clearly death eligible cases,' we
might have made a mid-course correction." Id. at 1074. Lester cites no controlling authority
requiring this Court to change Mississippi's proportionality review. We hold that the current
guidelines are sufficiently specific, and we find no reason to undertake the overwhelming task of
considering all death eligible cases in our review. Lester's final assignment of error is also without
merit.

CONCLUSION

¶160. Most of the issues which Lester raises on appeal to this Court are procedurally barred and/or
without merit. However, the unfair prejudicial effect resulting from the amendment to the indictment
on the second day of trial, the denial of a continuance after improper evidence of Shadai's sexual
abuse was admitted, and the admission of irrelevant, improper testimony resulted in the deprivation
of Lester's right to a fair trial. We reverse Lester's conviction of capital murder and sentence of death
by lethal injection based upon Issues II, IV, VII, and X, and subparts E, F, and G of Issue VI. This
case is remanded to the Hinds County Circuit Court for a new trial.

¶161. REVERSED AND REMANDED TO THE CIRCUIT COURT OF HINDS COUNTY
FOR A NEW TRIAL.

LEE, C.J., PRATHER, P.J., AND McRAE, J., CONCUR. PITTMAN, J., CONCURS IN
RESULT ONLY. BANKS, J., CONCURS WITH SEPARATE WRITTEN OPINION. MILLS,
J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY
PITTMAN, ROBERTS AND SMITH, JJ.

BANKS, JUSTICE, CONCURRING:

¶162. I concur with the result reached by the majority. I write separately to express my disagreement
with some of the particulars of the opinion.

I.

¶163. The majority sanctions the use of the convictions of his siblings as impeachment evidence
against Lester's father's testimony that he tried to raise his children as good citizens. I don't know that
Percy, the defendant's father, claimed to have been successful at raising law-abiding children but I
concede that his testimony could have left that inference. Nevertheless, it is my view that the
evidence should have been excluded as more prejudicial than probative under Rule 403. Our decision
today does not turn on this issue. Lester's claim of error in this regard is procedurally barred because
there was no objection, and the error may not recur upon retrial however. I would leave it at that,
rather than encourage the use of convictions against non-parties for their spill-over impeachment
effect upon persons on trial.

II.

¶164. I feel similarly about the State's failure-to-report evidence used against Lester in relation to his
own prior conviction. In my view it is a "detail" of the conviction. Indeed there would have been no
adjudication of guilt, and no conviction had Lester reported in compliance with his probation. Thus
this information showed how he came to be convicted, rather than that he was in fact convicted and
what he was convicted of. Our law of impeachment limits evidence of criminal conviction to the fact
of conviction. White v. State, 202 Miss. 246, 252-53, 30 So.2d 894 (Miss. 1947) (prosecution can
inquire into the type and fact of previous convictions, but cannot inquire into the fact that defendant
had withdrawn a guilty plea); Powers v. State, 156 Miss. 316, 320, 126 So. 12 (1930) (fact of
conviction and the type of crime admissible, although not details of the crime). As such, the failure-
to-report information is an impermissible detail and should not be admitted on remand.
 III.

¶165. Once again I am compelled to write with reference to a Batson claim. The State used 67% of
its challenges against blacks where the venire was 46% black. The resulting jury was 67% white.
Without regard to the fact that the prosecutor here involved has in the past admitted a racial animus
in peremptory strikes in capital cases(2), I would not agree that there is no prima facie case. See, e.g.
Mack v. State, 650 So. 2d 1289, 1298 (Miss. 1994) (assessing Batson claim where prima facie case
consisted of seated jury was 75% black and venire was 56% black, and prosecutor used 20% of its
challenges); see also Rousseau v. State, 824 S.W. 2d 579 (Tex. Cr. App. 1992) (prima facie case
established where state used 54% of strikes against blacks and Hispanics); Commonwealth v.
Hamilton, 582 N.E. 2d 929 (prima facie case made where state's strikes eliminated 67% of black
veniremen, 14% of whites).

¶166. Because we are remanding there is no need for us to make a call. The facts will be different.
While I concede that there are other factors, including the fact that both defendant and victim are
black, which tend to weaken the prima facie case, I do not agree that there is no prima facie case.
The relative strength of the prima facie case may be taken into consideration in assessing the bona
fides of the proffered reasons. See Mack v. State, 650 So. 2d 1289, 1298 (Miss. 1994).

IV.

¶167. Finally, instruction SS-5 may look harmless, but it reflects the continuing problem with the
failure to instruct jurors that no unanimity is required in finding mitigating circumstances. We have
consistently taken refuge in the fact that S-1 does not explicitly require unanimity, even to the point
of finding no error in denying requested instructions on individual consideration. Hansen v. State,
592 So. 2d 114, 149 (Miss. 1991). Hansen did have a proffered defense instruction. In this case, SS-
5 reinforces the suggestion that I find in S-1 that findings on mitigators must be unanimous. It tells
the jury that no mitigator exists unless it "the jury" finds that it exists. Nowhere is the individual juror
told that this is an individual decision. Consequently, I would order that this instruction not be used in
its present form.

MILLS , JUSTICE, SPECIALLY CONCURRING:

¶168. I specially concur with the well reasoned opinion of the majority.

¶169. I agree with the majority that a trial court may not amend an indictment to change a charge to
another crime, except by action of the grand jury, Jones v. State, 279 So. 2d 650, 651 (Miss. 1973),
and that amendments to indictments must be of form and not substance. Contreras v. State, 445 So.
2d 543, 545 (Miss. 1984). In the instant case, the amended indictment expanded the time period of
the charges against the defendant and most certainly affected his counsel's ability to defend him. This
error was fatal to this case.

¶170. I do not share the views of the majority regarding the remaining issues which have been
deemed reversible in this cause.

¶171. As to the issue of prior sexual abuse, it is my belief that this proof should have been admissible
under the exceptions provided by Rule 404(b) of the Mississippi Rules of Evidence. The evidence in
this case establishes clearly that the murdered child, Shandai, had been sexually abused at least two to
three weeks prior to her death. The proof is conclusive that Mr. Lester was the adult primarily
responsible for her care during each day and that other bodily injury, such as the broken leg, occurred
on his watch. Interestingly, his explanation of the broken leg and the later injuries causing her death
was the same. We may paraphrase his testimony excusing his role in her broken leg and later death as
follows: "I don't know what happened. I was in the shower both times." I would clarify the exception
to Rule 404(b) to clearly allow introduction of such proof where the underlying offense charges
sexual abuse of a minor child. This proof would have been admissible, in my view, under the original
indictment, without need for amending the indictment. Shelter v. State, 445 So. 2d 844, 848 (Miss.
1984).

¶172. The evidence of the prior beating of the victim's mother by the defendant should likewise be
admissible. Specifically, in this instance the same Dr. O'Brien gave his expert opinion in direct
examination that:

...what I said was that the test results are not consistent with this individual being, falling in
either of those categories, that is, either a child molester or violent person.

¶173. Clearly, the State possessed authority to put on proof of violent acts previously committed by
Lester in order to rebut the defendant's expert witness who stated that Lester was not a violent
person.

¶174. For these reasons, I specially concur in this case.

PITTMAN, ROBERTS AND SMITH, JJ., JOIN THIS OPINION.

1. Miss. Code Ann. § 97-3-27. was amended in 1994 to specifically exclude § 97-3-19(2)(f), as it
excludes rape, burglary, arson, and robbery.

2. See Kenneth Davis v. State, 660 So. 2d 1228, 1262 citing Edwards v. Thigpen, 682 F.Supp.
1374, 1376 (S.D. Miss. 1987) (Banks, J., Concurring).