IN THE SUPREME COURT OF MISSISSIPPI
NO. 1998-DP-01038-SCT
CHARLES WAYNE ROSS
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 10/04/1997
TRIAL JUDGE: HON. R. KENNETH COLEMAN
COURT FROM WHICH APPEALED: TIPPAH COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: OFFICE OF CAPITAL DEFENSE COUNSEL
BY: ALISON R. STEINER
ANDRE DE GRUY
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: MARVIN L. WHITE, JR.
DISTRICT ATTORNEY: BENJAMIN F. CREEKMORE
NATURE OF THE CASE: CRIMINAL - DEATH PENALTY - DIRECT
APPEAL
DISPOSITION: REVERSED AND REMANDED - 04/26/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
WALLER, PRESIDING JUSTICE, FOR THE COURT:
¶1. Charles Wayne Ross was convicted of the capital murder of Hershel Ray Yancey by
the Circuit Court of Tippah County and sentenced to death. Finding errors in both the guilt
and sentencing phases of the trial, we reverse and remand for a new trial.
FACTS
¶2. The victim, Hershell Ray Yancey, was a construction worker who lived in rural
Tippah County. On Friday, June 28, 1996, he was dropped off at his residence by a co-
worker between 7:00 p.m. and 7:10 p.m.
¶3. Between 7:00 and 9:30 that night, a nearby neighbor, Linda Grey, noticed a loud
vehicle driving up and down the road outside her home. Between 9:30 and 10:00, what
sounded to her like the same vehicle turned into her yard, approximately 100 to 150 feet from
her house. Grey walked outside to investigate and saw a dark-colored car whose make and
model she could not specify. She saw a short person working under the hood of the vehicle,
and, as the car drove away, she noticed that the right tail light was broken. Grey testified that
the car drove away in the direction of Yancey’s residence, and that she believed the car
stopped near the residence and left its engine running.1
¶4. Yancey’s mother, Marie Yancey, lived in a trailer across the road from him. That
night, she had prepared dinner for her son and asked him to wait at her residence until she
returned. Yancey was not there when she returned home around 9:10 p.m., but she saw that
he had eaten dinner and left the lights on. Yancey’s mother also noticed that all of the lights
in Yancey’s residence were on, but there were no vehicles in the driveway. She assumed
Yancey had gone home to take a shower and did not go to his residence to check on him.
¶5. Shortly after 9:10 p.m., Yancey’s mother heard a loud vehicle coming down the road
going south and passing both houses. It was too dark for Yancey’s mother to determine
1
Grey’s daughter testified that she saw a green, early-seventies model Chevrolet truck
parked in front of Yancey’s residence between 9:30 p.m. and 10:00 p.m. No one from the
Sheriff’s Department contacted Grey’s daughter for any follow-up investigation about what
she had seen.
2
whether the vehicle was a car or a truck or how many people were in it. At 9:28 p.m., she
heard what sounded like the same vehicle start up at Yancey’s residence. She then went to
her kitchen window, and saw a vehicle drive away towards Dumas. She did not hear the
car’s engine between 9:10 and 9:28 p.m. Neither Yancey’s mother nor any other witness
remembered hearing any gunshots or any other loud noises that might have masked the sound
of gunshots. Marie Yancey found her son’s body in his residence the next morning after he
failed to come over for breakfast.
¶6. An autopsy showed that Yancey had been fatally shot four times with a .22 caliber
weapon. The initial investigation conducted by the Tippah County Sheriff’s Office
determined that Yancey’s wallet, television, and VCR were missing and that there were no
signs of a forced entry or struggle. The deputies found an uncashed payroll check for
$438.64 in the residence. They also collected beer cans, a broken electrical cord, and shards
of red plastic consistent with an automobile’s tail lights from Yancey’s residence.
¶7. Though not brought out at trial, the investigation initially determined that on the
afternoon of June 28, an individual identifying himself as Charles Ross [hereinafter “Ross”]
had called a local store asking for Yancey and had left the phone number of a rented trailer
occupied by Tommy Hale, Hale’s girlfriend Margaret Jones, and Jones’ son, Jerry Sanders.
Ross and Jones are half-siblings. Ross’ and Jones’ nephew, Donald Ross, Jr., stayed at the
Hale residence on occasion and was a close companion of Sanders.
¶8. Based on the phone call reported by the store owner, the sheriff’s office contacted the
Hale household on Saturday, June 29. Hale and Jones initially denied having seen Ross. On
Sunday, June 30, Donald Ross, Jr.’s mother contacted the sheriff’s office and said that her
3
son was willing to come to the police station and give a statement. Donald Ross, Jr. made
his statement to the deputies, in which he averred that Ross had arrived at Hale’s residence
on the evening of June 29 with a television, VCR, wallet, and gun, and that he had admitted
to murdering Yancey. When Donald Ross, Jr. made his statement, he did not claim to have
personally seen Ross or to have heard the purported confession. At trial, he admitted that he
had not witnessed Ross’ arrival nor had he heard his uncle admit to the murder, but that he
had been told by his Aunt Margaret that Ross had done so.
¶9. On the evening of Sunday, June 30, the sheriff’s deputies came to the Hale residence
to investigate. They took Jones and Hale into separate rooms to take their statements. At
that time, Jones first stated that Ross had told her that he killed Yancey and stole Yancey’s
television, VCR, and wallet. Jones said that she saw Ross toss a pistol over his head into a
sewage ditch behind the Hale residence and burn Yancey’s wallet on an outdoor grill
belonging to Hale.
¶10. Deputies found the television and VCR in Sanders’ bedroom. They found the gun in
the sewage ditch sixty-five feet from where Jones told the officers Ross had tossed it over
his head. Deputies discovered an empty holster in Donald Ross, Jr.’s Bronco, but did not
search the vehicle for ammunition or other evidence. Jones and Hale testified that Hale’s son
found the holster for Hale’s gun behind the commode in their trailer three weeks later. Hale
said he called the sheriff’s office and told them they discovered the actual holster, but no one
from the sheriff’s office came out to examine it.
¶11. The deputies also found a pile of ashes on the grill outside the Hale residence. One
of the investigators, Deputy Wayne Wilbanks, testified at trial that he believed that the ashes
4
were the byproduct of a wallet which had been burned with the assistance of an accelerant.
The State did not conduct any forensic tests on the ashes to determine their composition. The
photograph of the grill and ashes included in the record indicate that whatever was burned
in the grill had completely disintegrated.
¶12. Ross drove a black, 1984 Ford Cougar which had a missing right tail light and ran
loudly as a result of a missing muffler and a rattling motor. On Tuesday, July 2, officers
found and confiscated Ross’ vehicle, which was parked on the property of Ross’ brother,
Donald Ross, Sr. Inside the vehicle, deputies found seven empty Budweiser cans and one
full Budweiser can, three of which matched the manufacturer’s stamp of the beer cans in
Yancey’s trailer. About a quarter of a mile from the car, officers discovered Ross in the
woods with bed clothes, cigarettes, food, rubbing alcohol, a thermos, and $50 to $60.
¶13. The only latent fingerprints the officers found at the murder scene were on the door
of Yancey’s trailer. Those prints did not match Ross’ fingerprints, and the sheriff’s office
did not compare the prints to those of Jones, Hale, Sanders, or Donald Ross, Jr. When asked
why he did not compare the fingerprints on the door to those of the other potential suspects,
Deputy Wilbanks said he was under the impression that defense counsel “was going to take
care of that.” With regard to the reasoning behind the decision not to investigate the other
occupants of the Hale residence, then-Sheriff Gary Mauney explained, “there was no reason
to suspect any of them because to our knowledge and all, they were assisting us.” Deputy
Wilbanks also testified that the police did not test for gunshot residue on the hands of anyone
who had stayed at the Hale residence that night, including Ross, even though such a test
might have shown whether anyone had fired a gun recently.
5
¶14. The witnesses’ account of the events in the evening on June 28 differ substantially.
Jones testified that on the afternoon of June 28, Ross came to visit her at the trailer where she
lived with her boyfriend, Hale. She stated that Ross left in his black, 1984 Ford Cougar
between 8:30 or 9:00 p.m. and returned around 11:30 p.m. Jones’ testimony at trial conflicts
with her second recorded statement to Ross’ investigator regarding the incident, in which she
stated that Ross came home between 8:30 and 9:00 that evening.2 Her testimony also
conflicts with that of Hale, who testified that Ross left the trailer around 8:00 p.m. and
returned sometime between 9:00 and 10:00 p.m. When asked if Ross might have returned
as late as 11:30 p.m., Hale insisted that Ross had returned earlier.
¶15. Jones testified that when Ross returned, only she and Hale were home. She stated that
Sanders and Donald Ross, Jr. did not come home until just before 12:00 p.m. Hale testified
that Sanders and Donald Ross, Jr. returned before Ross, and that all were present when Ross
arrived with the television and VCR. At trial, Jones testified that Ross took her into a
bedroom and showed her a three-fold wallet. This conflicts with her statement to Ross’
investigator, in which she stated that Ross had shown her the wallet outside the trailer. Both
stories conflict with Hale’s testimony, in which he said he never saw Jones and Ross go
outside or into a bedroom alone. Inside the wallet, Jones said she saw a $5 bill and an
identification of some sort. She also said she was able to read the name, “Ray Yancey” on
the identification. Jones testified she did not know whether the wallet was made of leather
or plastic.
2
The statement was taken by Herbert Wells, who was offered as an investigator and
an expert on police procedures. Ross proffered the statement into evidence, but the trial court
excluded it.
6
¶16. Jones testified that Ross then brought in a television and a VCR, one of which was
missing part of its cord. When she asked where he got the items, Ross told her it was best
that she not know. Jones stated that around 12:30 or 1:00 a.m., Ross told her he wanted to
talk to her outside. According to Jones, the following conversation ensued:
He told me, he said, "I went over there;" and said, "I shot that son of a bitch
one time right here;" [indicating between the eyes] and he said, "[Yancey]
looked at me and asked me, ‘What did you do that for Charles Ross?' and he
said it didn't bother him; and he said, ‘I just kept shooting and shooting.'. . .
Oh, he asked me . . . ‘Do you not believe that I shot somebody?' I said, ‘I don't
know,' . . . and he said he had a gun. He said, ‘Do you not believe that I've got
a gun?' I said, ‘I don't know.' He reached down under. He got in his car and
reached down under his seat, and pulled a gun out. She [sic] showed me a gun,
you know, held the gun up. . . . He was standing with [his] back to the car, and
give [sic] the gun a little flip [indicating he tossed it over his head backwards],
throwed [sic] it out down the hill. . . .
She testified that Ross then took some paper out of his car, placed it on the charcoal grill, laid
the wallet on top of it, and used the paper to burn the wallet. In her statement to Wells, Jones
said Ross took the papers out of the wallet and used them to start the fire. She also stated that
Ross used no accelerant when burning the wallet. This statement conflicted with the opinion
of Deputy Wilbanks, who testified that an accelerant would have to be used to reduce a
wallet to ashes.
¶17. Jones stated that after their conversation, Ross went to sleep on the couch. She woke
Donald Ross, Jr. some time after midnight to tell him what Ross had said. Donald Ross, Jr.
gave inconsistent accounts of the night, first testifying that he was asleep when Jones came
to speak to him, but later admitted on cross-examination that he and Sanders drove Ross’ car
sometime after midnight the night of Yancey’s murder.
7
¶18. Jones testified that she then woke Hale and told him about her conversation with Ross.
She stated that her conversation with Hale occurred between 12:30 and 1:00 a.m. Hale
testified that the conversation took place between 11:00 and 11:30 p.m. Jones said she asked
Hale if he knew where his .22 caliber pistol was. She testified he then checked the top
drawer where he kept it and discovered that the pistol and its holster were missing. When
asked where her son and Donald Ross, Jr. had been that night and what vehicle they were in,
Jones replied that, although she could not be certain, they were supposed to have been
visiting Sanders’ girlfriend’s house in Donald Ross, Jr.’s Bronco. Hale also testified he
could not be certain what vehicle Sanders and Donald Ross, Jr. were driving that night.
¶19. On Saturday morning, Jones, Sanders, and Hale went to visit Jones’ and Ross’ mother.
Jones and Sanders testified they told her mother Ross had confessed to murdering Yancey
and that her mother cried in response to the news. However, Hale testified when they visited
Jones’ mother, Jones “never said nothing [sic]” to her mother about the murder. Instead, he
says they only told her his gun was missing.
¶20. Ross’ version of the events of that night differs substantially from the accounts of
Jones, Sanders, Hale, and Donald Ross, Jr. At the time of the incident, Ross was
unemployed and had no place to live. He testified that sometimes he stayed with Donald
Ross, Sr., his brother, and about two or three nights a week he stayed with Hale and Jones.
According to Ross, he became good friends with Yancey when they were coworkers. He
said he had been out to Yancey’s trailer two or three times, and at least one of those times
Donald Ross, Jr. had been with him. This conflicts with Donald Ross, Jr.’s testimony, in
which he said that he did not know Yancey and did not know where he lived.
8
¶21. Around 1:00 p.m. on the day of the murder, Ross went to a bootlegger and purchased
beer. During the afternoon, Ross drank the beer he purchased and visited various friends and
family. He said he intended to spend the night at Donald Ross, Sr.’s trailer, but discovered
upon his arrival that the trailer was locked and no one was home. He testified that he then
went to Hale’s trailer to see if he could spend the night there, arriving around 5:30 or 6:00
p.m. Ross maintained that he left the Hale residence around 7:00 p.m. and returned to
Donald Ross, Sr.’s trailer to see if anyone had come home and unlocked the house. He
testified that, finding the trailer was still locked, he decided to go back to the Hale residence
and sleep on Hale’s couch, and arrived at the residence between 8:30 and 9:00 p.m.
¶22. Ross estimated that, by the time he reached the Hale residence, he had consumed three
six-packs of beer. He testified he did not leave the trailer after that, and the last thing he
remembers before going to sleep was asking Jones to wake him at 7:00 the next morning.
He testified that he did not see the television or VCR before going to sleep. Ross stated that
he woke up and saw Sanders and Donald Ross, Jr. trying to hook up a television and VCR.
He said he got up, went out to his car to get another beer, took a drink, put it on the coffee
table, and went back to sleep.
¶23. He testified Jones woke him up the next morning an hour later than he had asked. He
said he knew nothing of Yancey’s death at that time and never talked to Jones about it.
DISCUSSION
¶24. On appeal, Ross raises fifteen assignments of error, which we have consolidated into
twelve: (I) that the jury selection process in his trial was fatally flawed; (II) that the trial
court made several errors in ruling on the admissibility of evidence at trial; (III) that the State
9
engaged in prosecutorial misconduct; (IV) that the assistance of counsel during the trial was
ineffective; (V) that the competency hearing ordered by this Court was deficient; (VI) that
his sentence violates the United States Supreme Court ruling in Atkins v. Virginia, 536 U.S.
304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002); (VII) that the trial court erred in granting the
State’s jury instructions and in denying his proposed instructions; (VIII) that the trial court
impermissibly restricted his right to present mitigation evidence; (IX) that the indictment
against him was fatally flawed in several respects; (X) that the death penalty is
unconstitutional as applied to him; (XI) that his conviction was against the overwhelming
weight of the evidence; and (XII) that the cumulative errors in his trial require reversal.
Where the death penalty has been imposed, the standard of review is heightened:
We reaffirm at the outset our commitment to heightened scrutiny on appeal in
cases where the sentence of death has been imposed . . . The penalty of death
differs from all other forms of criminal punishment, not in degree but in kind.
It is unique in its total irrevocability. It is unique in its rejection of
rehabilitation of the convict as a basic purpose of criminal justice. And it is
unique, finally, in its absolute renunciation of all that is embodied in our
concept of humanity. This theme, the unique nature of the death penalty, has
been repeated time and time again. This Court has repeatedly recognized that
appellate review in capital cases is different from that in other cases.
Neal v. State, 451 So. 2d 743, 750 (Miss. 1984) (internal citations & quotations omitted).
This Court also stated in Neal “that thoroughness and intensity of review are heightened in
cases where the death penalty has been imposed. What may be harmless error in a case with
less at stake becomes reversible error when the penalty is death.” Id. at 749 (quoting Irving
v. State, 361 So. 2d 1360, 1363 (Miss. 1970) (citing Laney v. State, 421 So. 2d 1216, 1217
(Miss. 1982) and Williams v. State, 445 So. 2d 798, 810-11 (Miss. 1984)). Guided by this
heightened standard of review, we turn to Ross’ assignments of error.
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I. JURY SELECTION PROCESS 3
A. Tainted Venire Panel.
¶25. During voir dire, when the trial court asked if anyone knew Ross, venire member
Wanda Martindale stood and said, “I’ve testified against him in federal court,” and that this
fact would prejudice her against Ross. Defense counsel did not request a recess to address
Martindale’s statement or have her removed from the panel. Later, when the court asked if
any venire member had been a victim of a crime, Martindale indicated that she had. The trial
judge noted that she had already admitted her bias, and that he understood the reason for that
bias. During defense counsel’s challenges for cause, the following exchange occurred:
BY THE COURT: We might as well get rid of [juror number sixty-seven]
right now.
BY MR. KITCHENS [DEFENSE COUNSEL]: I was wondering about the
comment she made, how beneficial that was to the whole panel when she stood
up and said she had testified against our client in federal court.
BY THE COURT: I heard her say she testified against him.
BY MR. KITCHENS: She specifically didn’t mention that in her jury
questionnaire.
BY MR. HOOD: We challenge [juror number seventy-two]. She said she did
not believe in the death penalty.
Defense counsel neither expressly objected to the juror’s comment, nor did he request an
instruction to disregard from the trial court. Martindale was subsequently removed from the
3
This opinion does not address Ross’ claim that the State impermissibly excluded
African-American venire members from the jury in violation of the United States Supreme
Court’s mandate in Baston v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69
(1986) and Powers v. Ohio, 499 U.S. 400; 111 S. Ct. 1364; 113 L. Ed. 2d 411 (1991).
11
venire and did not serve on Ross’ jury. In a post-trial Motion for Judgment Notwithstanding
the Verdict or in the Alternative for a New Trial, Ross argued that the trial court erred in
failing to quash the entire jury venire.
¶26. The State contends that Ross is procedurally barred from bringing this claim because
he did not object to the testimony or request an instruction. Ross argues that defense
counsel’s statements constituted an objection and, in the alternative, that a defendant who
fails to make a contemporaneous objection may still preserve the issue for appeal by raising
it in a motion for a new trial. Ahmad v. State, 603 So. 2d 843, 846-47 (Miss. 1992).
¶27. The rule that failure to make a contemporaneous objection waives the issue on appeal
generally applies to death penalty cases. Williams v. State, 684 So. 2d 1179, 1189 (Miss.
1996). An objection must be made with specificity, and failure to articulate the grounds for
objection constitutes a waiver of the alleged error. See, e.g., Latiker v. State, 918 So. 2d 68,
74 (Miss. 2005) (failure to state a legal basis for objection waives right to appeal alleged
error); Irby v. State, 893 So. 2d 1042, 1047 (Miss. 2004) (general objection that jury
instruction is “prejudicial,” without more, is insufficient to preserve for appeal); Crawford
v. State, 787 So. 2d 1236, 1246 (Miss. 2001) (general objection that expert witness was
“mistaken” insufficient to preserve issue for appeal).
¶28. Defense counsel’s general statement that he “wondered” about “how beneficial” the
statements were, without more, was not a specific enough objection to preserve the issue for
appeal. Defense counsel did not cite any legal principle, did not request a ruling from the
trial judge, and did not object when the prosecution moved on to the next venire member.
12
¶29. The question remains whether Ross may preserve his right of appeal by raising an
objection in a motion for new trial. Ross cites Ahmad v. State, which states “if an appellant
raises for review an issue not raised in the pleadings, transcript, or rulings, the appellant must
have preserved the issue by raising it in a motion for new trial.” Ahmad, 603 So. 2d at 846-
47. However, the principle in Ahmad and virtually all comparable cases concerns the failure
to include in a post-trial motion matters objected to during the trial. See Id. at 846-47
(failure to raise contemporaneous objection and failure to include references in motion for
a new trial waive error on appeal). See also Townsend v. State, 939 So. 2d 796 (Miss. 2006)
(failure to move to dismiss indictment during trial and failure to raise issue in motion for
J.N.O.V. waives the issue on appeal); Shavers v. State, 455 So. 2d 1299, 1302 (Miss. 1984)
(failure to raise contemporaneous objection waives issue on appeal). The only other case we
have found in which an otherwise untimely error was found to be preserved solely through
a motion for a new trial was Hodges v. State, 912 So. 2d 730, 751 (Miss. 2005). In Hodges,
this Court expressly found that the defendant was not procedurally barred from challenging
the prosecution’s closing argument despite the failure to raise a contemporaneous objection.
Id. The Court went on to consider the merits of Hodges’ claim and denied relief. Id. at 751-
55.
¶30. However, this Court has more often held that “while certain issues are required to be
raised in a motion for new trial, raising objections in a motion for new trial which should
have been made at trial has never been thought to cure the failure to object at the proper
time.” Smith v. State, 797 So. 2d 854, 856 (Miss. 2001) (citing Barnett v. State, 725 So. 2d
797, 801 (Miss. 1998)). See also Pinkney v. State, 538 So. 2d 329, 346 (Miss. 1988),
13
vacated on other grounds by 494 U.S. 1075, 110 S. Ct. 1800, 108 L. Ed. 2d 931 (1990)
(noting that issue raised for first time in motion for new trial was procedurally barred);
Anderson v. Jaeger, 317 So. 2d 902, 907 (Miss. 1975) (same). Smith and its progeny
articulate the more appropriate rule. In Hodges, notwithstanding the procedural bar, this
Court addressed the merits of the issue in order to dismiss the claim. Because Ross’ counsel
failed to object to Martindale’s statement and failed to seek a curative instruction, we will
not address the issue unless the trial court committed plain error.
¶31. In general, a voir dire is presumed sufficient to ensure a fair and impartial jury. To
overcome this presumption, a party must present evidence indicating that the jury was not
fair and impartial and show that prejudice resulted from the circuit court’s handling of the
voir dire. Manning v. State, 735 So. 2d 323, 336 (Miss. 1999). A trial court's finding that
an impartial jury was impaneled will not be reversed unless the court abused its discretion.
Holland v. State, 705 So. 2d 307, 336 (Miss. 1997). This Court will treat with deference a
venire person's assertions of impartiality. Id. (citing Scott v. Ball, 595 So. 2d 848, 850
(Miss. 1992)).
¶32. This Court has held that a defendant fails to show the necessary prejudice where the
defense counsel fails to question jurors about an inappropriate comment, and the venire
members have made general declarations that they could set aside their prejudices and reach
a decision based on the evidence. Holland v. State, 705 So. 2d 307, 339-40 (Miss. 1997);
West v. State, 463 So. 2d 1048, 1054 (Miss. 1985). If venire members are questioned about
an impermissible comment, the trial court may strike those who heard the comment.
Baldwin v. State, 732 So. 2d 236, 241-42 (Miss. 1999).
14
¶33. Ross correctly notes that it is the obligation of the trial court to insure that the jury
impaneled in a case can render an impartial judgment. Puckett v. State, 737 So. 2d 322, 332
(Miss. 1999). That obligation goes to the core of a defendant’s right to a fair jury trial under
the Sixth and Fourteenth Amendments of the United States Constitution. Evidence of Ross’
prior criminal convictions would not have been admissible during the culpability phase of
the trial unless it had fallen within one of the exceptions to the prohibition on evidence of
“prior bad acts” or had been used to impeach his credibility. See M.R.E. 404(b) & 609.
However, this Court has no basis on which to determine the potential prejudice caused by
Martindale’s statements, because the defense counsel failed to object to the comment and
subsequently failed to question potential jurors about the effect of the statement. While
Martindale’s statements are cause for great concern, we will not find prejudice absent a
record. Whether defense counsel’s failure to remove Martindale from the panel after her first
statement and its failure to query venire members about possible prejudice caused by her
statements constituted ineffective assistance of counsel will be considered in Section IV.
B. Questioning of Prospective Jurors.
¶34. Ross argues that the trial court impermissibly restricted his right to question potential
jurors on their ability to consider mitigating evidence during the sentencing phase of the trial.
The State’s challenge to defense counsel’s questions came at the beginning of the defense’s
voir dire questioning regarding the death penalty:
Q: [By defense counsel Kitchens] Mr. Green, are you pro-death as in
morally you believe it, or in sitting around the coffee shop is that
something that sounds like a good idea?
15
A: [Mr. Donnie Green] I would say I’m for the death penalty if the facts
in the case merit the death penalty according to law.
Q: That’s a good starting point for where I want to go. What facts and
circumstances in your mind would merit the death penalty?
(Mr. Hood [District Attorney] stood)
BY THE COURT: Sustained.
BY MR. HOOD: Your Honor, I object.
BY THE COURT: I sustained the objection. That’s not a proper question.
Q: Would there be anything that could be presented that would convince
you that the death penalty is not necessary?
A: Sure.
BY MR. HOOD: Objection, Your Honor
BY THE COURT: I sustain the objection. Those are not proper questions to
ask the jury on voir dire. You know that, Mr. Kitchens. Go ahead.
Q: Then I have no further questions of you, sir. All right, on the second
row, ma’am.
During the defense’s voir dire, defense counsel asked the following questions without
objection:
“[A]re you saying that you can’t listen to the evidence presented and return a
fair verdict either way because of your belief in the death penalty?”
“Are you telling me that under no set of circumstances could you return a non-
death penalty verdict?”
“Are you saying if you did find him guilty, no matter what amount of
testimony was put on, that once you found him guilty, you would also vote that
he needs to die for his involvement?”
“Now, we will present mitigating circumstances. I will compare that to a ball,
not a base hit or a home run, but probably a ball. You know in baseball if you
16
get four balls, you walk. Unfortunately, it’s not like that in this. I can’t
provide you with four mitigating circumstances and he doesn’t get the death
penalty, but those are good things about him. Those are things that—well, I
said good things; but those are things about him that on your conscience of
what you heard might warrant you in saving his life; that might make you
think, well, what he did was wrong; and he should be punished for it but not
with his life.”
“Is there anybody in here who could not sit in this courtroom in this jury box
and listen to mitigating circumstances, who could not under any circumstances
if a guilty conviction were reached, could not listen to anything that was good
about him that should or could save his life?”
¶35. Mississippi law guarantees the right of either party in a case to probe the prejudices
of prospective jurors and investigate their thoughts on matters directly related to the issues
to be tried. West v. State, 553 So. 2d 8, 22 (Miss. 1989). Such questions enable parties to
conscientiously challenge prospective jurors for cause and provide valuable clues for the
exercise of peremptory challenges. Harris v. State, 532 So. 2d 602, 606 (Miss. 1988).
However, judicial rules prohibit a party from asking venire members hypothetical questions
or attempting to elicit a pledge to vote a certain way if a certain set of circumstances are
shown.4 Questions seeking a commitment from jurors are never necessary to accomplish the
basic purpose of securing fair and impartial juries. Harris, 532 So. 2d at 607. Because the
line between a proper and an improper question is not always easily drawn, it is manifestly
a process in which the trial judge must be given considerable discretion. Id at 606 (citing
4
“In the voir dire examination of jurors, the attorney will question the entire venire
only on matters not inquired into by the court. Individual jurors may be examined only when
proper to inquire as to answers given or for other good cause allowed by the court. No
hypothetical questions requiring any juror to pledge a particular verdict will be asked.
Attorneys will not offer an opinion on the law. The court may set a reasonable time limit for
voir dire.” U.R.C.C.C. 3.05.
17
Murphy v. State, 246 So. 2d 920, 921 (Miss. 1971)). An abuse of that discretion will only
be found where the defendant shows clear prejudice resulting from undue lack of constraint
on the prosecution or undue constraint on the defense. Evans v. State, 725 So. 2d 613, 650
(Miss. 1997).
¶36. The trial court’s ruling in the present case was within its discretion. Asking jurors to
speculate on what sorts of events or circumstances might warrant mitigation may in some
circumstances be considered hypothetical. A review of case law demonstrates that circuit
courts are permitted to take a variable approach to the use of specific circumstances,
irrespective of whether they are hypothetical or actual facts in the case. See, e.g.,
Crawford v. State, 716 So. 2d 1028, 1042-43 (Miss. 1998) (superceded on other grounds,
Miss. Transp. Comm'n v. McLemore, 863 So. 2d 31 (Miss. 2003)) (finding that defense
counsel’s use of specific hypothetical facts about the defendant did not violate U.R.C.C.C.
3.05); Evans v. State, 725 So. 2d 613, 651 (Miss. 1997) (trial judge prohibited as
hypothetical a voir dire question asking whether an underlying crime of kidnapping or sexual
battery would justify the imposition of the death penalty); Davis v. State, 684 So. 2d 643, 651
(Miss. 1996) (finding that prosecution's voir dire was within the permissible range of
acceptable questioning, where the prosecution asked about specific facts, including that the
victim was killed by a friend, that the defendant had no prior felony convictions, and that
defendant was charged with one murder); Stringer v. State, 500 So. 2d 928, 938 (Miss. 1986)
(finding that prosecution’s specific questions about the facts of the alleged crime, asked
during voir dire and alluded to as an oath in closing argument, had the cumulative effect of
denying defendant the right to a fair trial). The trial court acted within its discretion in ruling
18
that defense counsel’s attempt to elicit statements from venire members regarding specific
circumstances warranting the imposition of the death penalty violated the prohibition on
hypothetical questions.
¶37. Ross also failed to show that the trial court’s ruling on the challenged voir dire
questions prevented defense counsel from probing prospective jurors’ ability to consider
mitigation evidence. The record demonstrates that defense counsel asked a number of
questions pertaining to mitigation evidence. The assignment of error is without merit.
C. Trial Court’s Refusal to Instruct the Venire Panel that
Consideration of Possible Sentences Was Not Indicative of Ross’
Guilt.
¶38. Ross contends that the trial court committed reversible error in refusing to give a
special instruction to the venire members that questions regarding the application of the death
penalty did not pertain to Ross’ guilt or innocence. In his brief, Ross concedes that there is
no constitutional right to such an instruction for potential jurors, but argues that where there
is a genuine danger that a jury will convict based on something other than lawful evidence
proved beyond a reasonable doubt, such an instruction is required by the United States
Supreme Court. See Delo v. Lashley, 507 U.S. 272, 278, 113 S. Ct. 1222, 1225, 122 L. Ed.
2d 620, 628 (1993).
¶39. Ross has not shown that any such genuine danger existed in the present case. While
the trial court refused to give the proposed instruction, it made repeated reference to Ross’
presumption of innocence and the burden that the State had to carry in order to move on to
the punishment phase of the trial. Defense counsel was in no way restricted from noting
Ross’ presumption of innocence, and in fact emphasized it in his voir dire. Nothing in the
19
record suggests that any party conflated consideration of the death penalty with an
assumption of guilt, or that venire members misunderstood the significance of considering
possible sentences during voir dire. This assignment of error is without merit.
II. EVIDENTIARY CHALLENGES
A. Admission of Hale’s .22 Caliber Pistol.
¶40. A .22 caliber pistol was found in a ditch behind Hale’s residence. It was later
determined to belong to Hale. The State introduced the pistol as the murder weapon. Ross
argues that the trial court erred in refusing to hear his pre-trial motion to suppress the pistol
and erred in eventually admitting the firearm into evidence in violation of M.R.E. 403. The
State argues that the trial court was under no obligation to hear the motion before trial, that
Ross has failed to preserve the issue for appeal because defense counsel failed to object to
the admission of the firearm during trial, and that, in any event, its admission was permissible
under M.R.E. 403. Defense counsel first raised the issue of its pre-trial motion to suppress
in the midst of jury selection, during a brief break during which the court asked to hear
certain pre-trial motions outside the presence of the venire members:
BY THE COURT: What else do we have? We’ll put that one on the back
burner.
ARGUMENT BY MR. KITCHENS:
Your Honor, in this case we filed a motion to suppress. That would be
the alleged murder weapon in this case. The ballistics report from the State
Crime Lab in our discovery came back that the weapon was not, it was
inconclusive as far as ballistics and as far as fingerprints. There were no
fingerprints of the defendant found to be on the weapon.
We would have issue with that being introduced into evidence since it
cannot be conclusively identified as the murder weapon. We feel like if it
20
were allowed to be introduced, all it would do is confuse the jury as to the fact
that they might think that that is, in fact, the murder weapon; however, that
cannot be conclusively determined; therefore, I think it would not be relevant
evidence. It would be more prejudicial than it would be probative.
BY THE COURT: We’ll take this up when we get to it. When did you file this
motion?
BY MR. KITCHENS: I filed it, it’s been on file.
BY THE COURT: That’s what I’m saying. These motions haven’t been called
up. I was up here all last week, sat here and asked, specifically asked are there
motions to be heard; and there wasn’t [sic] any motion to be heard. Now, I’m
not going to try this case like being nibbled to death by a duck. We’re going
to do it all at one time or at the proper time; and as these motions come up, if
you think it’s an evidentiary objection, well, we’ll take it up at the time. If we
have to send the jury out, we’ll send them out; but we just don’t have time
now. I’m not going to take time with the jury standing out in the hall. The
motion has been filed and hasn’t been called up.
Ross did not raise the issue of the motion to suppress again before the trial began. During
the trial, defense counsel failed to make any objection whatsoever, and the trial court
permitted its admission.
1. Ross’ pre-trial motion to suppress the pistol.
¶41. Under Rule 2.04 of the Uniform Rules of Circuit and County Court Practice, the
burden is on the movant to obtain a ruling on a pre-trial motion, and failure to do so
constitutes a procedural bar.5 See Berry v. State, 728 So. 2d 568, 570 (Miss. 1999) (“It is the
responsibility of the movant to obtain a ruling from the court on motions filed by him and
failure to do so constitutes a waiver of same.”); Holly v. State, 671 So. 2d 32, 37 (Miss.
5
“It is the duty of the movant, when a motion . . . is filed . . . to pursue said motion to
hearing and decision by the court. Failure to pursue a pretrial motion to hearing and decision
before trial is deemed an abandonment of that motion; however, said motion may be heard
after the commencement of trial in the discretion of the court.” U.R.C.C.C. 2.04.
21
1996) (finding that the burden to obtain a ruling on an in limine motion to exclude evidence
rests on the moving party); Martin v. State, 354 So. 2d 1114, 1119 (Miss. 1978) (same). The
orderly administration of justice dictates that the trial judge be vested with a considerable
amount of discretion with respect to trial calendaring and docket management, and we will
not overturn a trial court’s decision absent an abuse of discretion. Palmer v. State, 427 So.
2d 111, 114 (Miss. 1983).
¶42. Ross’ failure to obtain a ruling on his pre-trial motion was a direct result of his failure
to request a ruling at an appropriate time. The trial court expressly noted that it had provided
a time to hear pre-trial motions and that conducting an evidentiary hearing on the pistol was
inconvenient since the venire members had been convened and were waiting outside the
courtroom. Further, the trial court did not deny the motion to suppress, but instead reserved
judgment until the State moved to introduce the weapon into evidence. Therefore, the trial
judge did not err in declining to rule on Ross’ pre-trial motion.
2. The admission of the pistol at trial.
¶43. Ross next argues that, because he initially raised his motion to suppress before trial,
the trial court denied his motion sub silento by admitting the pistol into evidence without
conducting a hearing, and the issue is consequently preserved for appeal. As noted above,
it is incumbent upon the movant to obtain a ruling on a proffered motion. Berry, 728 So. 2d
at 570. Failure to do so constitutes a waiver. Id. Notwithstanding this procedural bar, we
will consider the merits of Ross’ claim under the plain error doctrine in light of the gravity
of the charge. Walker v. State, 913 So. 2d 198, 216 (Miss. 2005) .
¶44. The admissibility of evidence rests within the discretion of the trial court, and reversal
22
is appropriate only when a trial court commits an abuse of discretion resulting in prejudice
to the accused. Irby v. State, 893 So. 2d 1042, 1047 (Miss. 2004) (citing Sturdivant v. State,
745 So. 2d 240, 243 (Miss. 1999)). Relevance is a threshold requirement of admissibility.
M.R.E. 402; Foster v. State, 508 So. 2d 1111, 1117 (Miss. 1987). Evidence is relevant if it
has “any tendency to make the existence of any fact that is of consequence to the
determination of the action more or less probable than it would be without the evidence.”
M.R.E. 401. Rule 401 is construed broadly in favor of admitting evidence with even slight
probative value. See M.R.E. 401 cmt. However, even otherwise relevant evidence “may be
excluded if its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue delay, waste
of time, or needless presentation of cumulative evidence.” M.R.E. 403. Under Rule 403, the
exclusion of prejudicial evidence is permissive; that is, if a trial court determines that the
prejudicial effect of evidence substantially outweighs its probative value, it is not obligated
to exclude the evidence, but may do so at its discretion. See Foster, 508 So. 2d at 1117.
¶45. Ross cites Foster v. State for the proposition that evidence must be excluded where
it is not tied to the alleged crime by any forensic evidence and its introduction is more
prejudicial than probative to the defendant. Foster v. State, 508 So. 2d 1111, 1117 (Miss.
1987), overruled on other grounds, Powell v. State, 806 So. 2d 1069 (Miss. 2001). However,
Foster stands for a more circumscribed principle: where there is no forensic evidence tying
a weapon to a murder or other violent crime, witnesses cannot testify that the weapon “could
be” the one used in the crime. Instead, witnesses are restricted to stating that forensic
evidence showed that the weapon in evidence was “consistent” with the type used in the
23
crime or that the weapon cannot be excluded as the weapon used in the crime. See Foster,
508 So. 2d at 1117; Kolberg v. State, 829 So. 2d 29, 72 (Miss. 2002) (affirming this reading
of Foster). In the present case, the forensic scientist called by the State did not state that the
.22 caliber pistol introduced into evidence could have been the weapon used in Yancey’s
murder; he was careful to note only that the weapon had the same caliber, and that both the
weapon in evidence and the murder weapon lacked distinguishing characteristics that would
allow a positive identification. Therefore, the State’s witness did not impermissibly
speculate whether Hale’s pistol had been used in the crime.
¶46. We have held that trial courts should not exclude conceivably prejudicial evidence
solely because forensic testing cannot tie it to the crime. When there is evidence that a
weapon could have caused an injury and some connection between the defendant and the
weapon exists, the weapon will be deemed relevant and admissible. See Rhodes v. State, 676
So. 2d 275, 283 (Miss. 1996) (citing Ethridge v. State, 418 So. 2d 798 (Miss. 1982) and
Stokes v. State, 518 So. 2d 1221 (Miss. 1998)). Here, while the pistol was not directly
connected to Ross through any forensic evidence, other evidence in the case demonstrated
that the pistol was of the same caliber as the one that killed Yancey and that Ross had access
to the weapon. Further, Jones testified that Ross disposed of the pistol after admitting to
Yancey’s murder. Under the circumstances, the trial court did not abuse its discretion in
admitting the pistol into evidence. This assignment of error is without merit.
B. Trial Court’s Refusal to Admit the State’s Ballistics Report.
¶47. Ross argues the trial court erred in refusing to admit the ballistics report of the State’s
expert into evidence. Ross initially moved to have the ballistics report submitted into
24
evidence during the State’s case:
BY MR. PANNELL: Your Honor, we would ask that that report be admitted
into evidence.
BY THE COURT: Any objection?
BY MR. HOOD: Yes, sir, your Honor. We object. His testimony, it hasn’t
been substantially impeached. There isn’t a need to introduce the lab report.
BY THE COURT: What do you want to introduce it for?
BY MR. PANNELL: Because I want to refer to it in my closing argument. I
want them to have it there where they can read it.
BY THE COURT: You can have it marked for identification if you want[.]
Ross renewed his motion to admit the ballistics report during his own case, moving to admit
the report either to impeach the State’s witnesses or to refresh their recollections under
M.R.E. 803 and 804.
¶48. The admissibility of evidence rests within the discretion of the trial court, and reversal
is appropriate only when a trial court commits an abuse of discretion resulting in prejudice
to the accused. Irby, 893 So. 2d at 1047. Evidence may be excluded under M.R.E. 403 if
it is merely cumulative. Ross correctly notes that the ballistics report was absolutely
admissible as a public record under M.R.E. 803(8), and that it did have to be introduced as
a prior statement under M.R.E. 801. The trial court did not specify the grounds for excluding
the report. Given the gravity of the charge and the slender basis for connecting Ross to the
pistol, it is difficult for us to say the trial court was correct in excluding the report. However,
we decline to reverse on these grounds, since Ross was able to extensively cross-examine the
State’s ballistics expert and highlight the minimal value of the evidence provided by the
25
report. The effect of this ruling on our confidence in the outcome of the trial will be
addressed in Section XII.
C. Admission of Glass Shards and Fragments of Burnt Material.
¶49. Ross contends that the trial court erred in admitting glass shards consistent with a
motor vehicle’s tail light found at Yancey’s residence and a pile of ashes that Jones testified
were the remains of Yancey’s wallet. The relevance of the tail light fragments was tenuous
at best. While Ross’ car had a broken right tail light, all the testimony at trial indicated that
it had been broken for at least six months. There was even testimony that the broken tail
light had been spray-painted to disguise the fact that it was broken. Linda Grey testified that
the car she saw in her driveway already had a broken tail light. It is undisputed this episode
happened prior to the murder. Finally, the State’s forensic expert testified that he could not
make the tail light fragments fit mechanically into what remained of Ross’ tail light. Despite
the complete lack of direct evidence connecting the fragments to Ross’ car, the State argued
that Ross had broken out the tail light after he stumbled with Yancey’s television. The
relevancy of the ashes taken from Hale’s grill presents similar problems. Jones testified that
Ross had burned a wallet, using, depending on which story, either papers taken from the
wallet or papers removed from his car. The ashes then sat on the grill from Friday night until
Sunday night, when the sheriff’s deputies collected them. At trial, the State made no
showing that the ashes had been covered or that they had remained undisturbed for that forty-
eight hour span. Most troubling, the State conducted no forensic tests on the ashes to
determine their composition, yet at trial asserted that they were the remains of a wallet.
¶50. At trial, Ross not only failed to object to the introduction of these items, but
26
affirmatively stated for the record that there was no objection. Such action effectively waives
the issue on appeal. Ballenger v. State, 667 So. 2d 1242, 1267 (Miss. 1995). Though Ross
did challenge the admission of these items in his motion for a new trial, a belated challenge
to an evidentiary ruling does not rehabilitate an otherwise untimely claim. Smith, 797 So.
2d at 856. Nevertheless, the heightened scrutiny applicable to the review of death penalty
cases mandates a review of the merits of Ross’ claim. Walker, 913 So. 2d at 216 (relaxing
the contemporaneous objection rule in death penalty cases).
¶51. As noted above, the admission of evidence is within the discretion of the trial court,
and courts have been instructed to construe the Mississippi Rules of Evidence in favor of
admission. See Irby, 893 So. 2d at 1047; M.R.E. 401 cmt. Though the tail light fragments
may have been of slight probative value, Ross had ample opportunity to highlight that the
state’s own expert could not mechanically fit the fragments into the tail light frame.
Similarly, Ross was able to challenge the probative weight of the ashes by emphasizing that
no forensic tests had been conducted to determine the composition of the burnt material. The
trial court did not abuse its discretion in admitting the evidence. Irby, 893 So. 2d at 1047.
Nor does the admission of the evidence amount to plain error, since the admission, by itself,
did not constitute a miscarriage of justice. Gray, 549 So. 2d at 1321.
D. Whether the Beer Cans Seized by Police From Ross’ Car Were Taken in
Violation of the Fourth Amendment.
¶52. The police began searching for Ross after officers took statements from Hale and
Jones on June 30. On July 1, they went to the residence of Ross’ brother, Don Ross, Sr., and
noted a vehicle in the yard matching the description of Ross’ car. The police radioed in the
27
tag number and were told that tag on the car had been switched. Officer Wilbanks testified
that, when the police asked to search the premises, Don Ross, Sr. replied that he did not care
if the police searched. The police noted that the vehicle had a broken tail light and that there
were several beer cans, similar to those found at the crime scene, on the floorboard, and had
the car towed to the sheriff’s office. A warrant for Ross’ arrest had not yet been issued, and
the police did not obtain a search warrant for either the car or Don Ross, Sr.’s residence. The
trial court conducted a hearing on the admissibility of the beer cans and found that, because
the car’s tag had been switched, the car was in plain view, and the officers had consent to
search the premises, there was no constitutional violation.
¶53. On appeal, Ross argues that the trial court committed reversible error in admitting the
beer cans into evidence since the car was searched without a warrant in violation of the
Fourth Amendment. Ross contends that the search does not fall under the “automobile
exception” to the Fourth Amendment because the car was not searched incident to a lawful
arrest. He further contends that the car could not be searched under the “plain view”
exception to the Fourth Amendment because the car was on private property and was not
visible from a public road. The State responds that Don Ross, Sr. gave his consent for
officers to search the premises and, implicitly, that Don Ross, Sr. had authority over the
premises to permit the search.
¶54. Though we normally will defer to a trial court’s determination on the admissibility of
evidence absent an abuse of discretion, we review de novo a trial court’s interpretation of
law. Harris v. State, 757 So. 2d 195, 197 (Miss. 2000). Consent to search is recognized as
an exception to the requirements of a warrant and probable cause. United States v. Matlock,
28
415 U.S. 164, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974); Hudson v. State, 475 So. 2d 156, 158-
59 (Miss. 1985). Consent to search may be provided by a third party who possesses common
authority over or other sufficient relationship to the premises or effects sought to be
inspected. Id. at 158. A renter such as Don Ross, Sr. has been recognized as possessing
sufficient authority to consent to a search of the premises. Id. Ross had no ownership
interest in the premises and therefore cannot argue that any expectation of privacy was
violated. Compare Scott v. State, 266 So. 2d 567, 569 (Miss. 1972) (“[W]here the proof
shows that a person is renting a room or is in possession of a room in a house or an apartment
under such circumstances as to make such person the owner thereof for the time being, such
person is entitled to the protection afforded by Section 23 of the Constitution.”). Because
Don Ross, Sr. consented to a search of his premises, evidence collected pursuant to that
consent was constitutionally acquired. This assignment of error is without merit.
E. Exclusion of Expert Testimony of Herbert Wells.
¶55. Ross contends that the trial court erred in excluding the testimony and accompanying
investigative report of his expert in investigatory techniques, Herbert Wells. Wells’
proffered testimony purported to show the inadequacy of the police investigation, the
impossibility of burning a wallet until only ashes remained, and the contradictions between
Jones’ statement to him and her testimony at trial. The State argued that the proffer was
untimely, and that the testimony should be excluded as a violation of the discovery rule. The
trial court heard the proposed testimony outside the presence of the jury and ruled it
inadmissible. Though not entirely clear, the trial court appears to have ruled the testimony
inadmissible as a substantive matter and not because it was untimely.
29
¶56. A trial judge enjoys a great deal of discretion as to the relevancy and admissibility of
evidence. Walker v. State, 878 So. 2d 913, 915 (Miss. 2004). However, this discretion must
be exercised within the confines of the Mississippi Rules of Evidence. Cox v. State, 849 So.
2d 1257, 1268 (Miss. 2003); M.R.E. 103(a). Reversal is proper only where such discretion
has been abused and a substantial right of a party has been affected. Id. The trial court’s
discretion must also insure the constitutional right of the accused to present a full defense in
his or her case. United States v. Stewart, 323 104 F.3d 1377, 1384 (D.C. Cir. 1997).
¶57. The admissibility of expert testimony is evaluated in light of M.R.E. 702, which holds
that such testimony may be introduced when it is found to be relevant and reliable. See Miss.
Transp. Comm'n v. McLemore, 863 So. 2d 31, 38 (Miss. 2003); see also M.R.E. 702.
Testimony is relevant if it will assist the trier of fact in understanding or determining a fact
at issue. Id. To meet the requirement of reliability, an expert’s testimony must be based on
the methods and procedures of science, and not merely on subjective beliefs or unsupported
speculation. Id., at 36 (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 587, 113
S. Ct. 2786, 125 L. Ed. 2d 469 (1993)). Rule 702 expressly allows expert testimony
regarding non-scientific matters, so long as the witness’s knowledge, skill, experience,
training, or education qualify him as an expert in a given field, and (1) the testimony is based
upon sufficient facts or data; (2) the testimony is the product of reliable principles and
methods; and (3) the witness has applied the principles and methods reliably to the facts of
the case.
¶58. In his proffered testimony, Wells questioned Jones’ account of Ross destroying
Yancey’s wallet by burning it. Wells stated that he had attempted to destroy a wallet by
30
setting it on fire with a great deal of paper underneath. After the attempt proved
unsuccessful, he gave the wallet time to cool off and saturated it with lighter fluid. That
attempt also proved unsuccessful, and he brought the remains of the wallet with him as part
of his proffered testimony. The State objected that Wells had not been proffered as an expert
in incineration. The trial court excluded this testimony upon finding that, without any
evidence offered as to the type of wallet Yancey owned, the accuracy of the demonstration
could not be substantiated.
¶59. Rule 401 of the Mississippi Rules of Evidence defines “relevant evidence” as
“evidence having any tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than it would be without the
evidence.” Wells’ experiment was inadmissible under Rule 401 since he could not verify
that the wallet he burned was similar in composition to Yancey’s or that he had attempted
to destroy it under similar circumstances. The trial court did not abuse its discretion in
excluding Wells’ testimony regarding the experiment.
¶60. Wells also offered testimony in which he highlighted the statements Margaret Jones
made to him in a personal interview, which were inconsistent with her initial statement to
police as well as her testimony at trial. In particular, he discussed the fact that she told him
Ross arrived at Hale’s residence between 8:30 and 9:00 p.m, while she testified at trial that
he arrived around 11:30 p.m. However, introduction of any such statements would have been
mere commentary on the veracity of a witness, which is not appropriate expert testimony
under Rule 702. Smith v. State, 925 So. 2d 825, 833 (Miss. 2006). The trial court therefore
31
did not err in refusing to allow Wells to comment on Jones’ testimony at trial.
¶61. Finally, Wells was proffered as an expert on police investigatory techniques. He
testified to his experience in securing crime scenes and collecting evidence, and opined that
in those areas the investigation into Yancey’s murder was deficient. However, his proffer
failed to establish the reliability of his testimony under Daubert and McLemore.
Consequently, the trial court did not err in excluding it.
F. Exclusion of Prior Inconsistent Statement of Margaret Jones.
¶62. Ross maintains that the trial court refused to allow him to impeach Jones with prior
inconsistent statements made in her statement to Wells and that it erred in refusing to admit
the statement into evidence. The record demonstrates that defense counsel laid the proper
foundation for the introduction of impeachment evidence:
BY MR. PANNELL: So that wouldn’t come as any surprise to you, that I
would have both a tape and a transcript of what you said at that time [in a
September 10, 1997, statement made to defense investigator Herbert Wells]?
BY MR. HOOD: Your Honor, we haven’t been provided with anything like
that in discovery.
BY THE COURT: All right, go ahead. If the discovery issue comes up, I’ll
rule on it at the proper time.
The trial court allowed defense counsel to use the contents of Jones’ statement to Wells to
probe inconsistencies between her testimony at trial, her initial statement to police, and her
statement to Wells. The State subsequently objected to defense counsel testifying:
BY MR. PANNELL: You said that you saw [Yancey’s wallet] on the inside
32
[of Hale’s residence] today. You said back on July 1 [, 1996,] [in your first
recorded statement] that you saw it on the outside. You said when you talked
to Mr. Wells on the 10th of September [1997,] that you saw it on the outside.
BY MR. HOOD: Objection, you Honor. I object, number one, to him
testifying and making any statement about a transcript.
BY THE COURT: I sustain that objection. Limit it to cross-examination.
After the State completed its redirect examination of Jones, defense counsel moved to have
her second recorded statement, made to Hebert Wells, introduced into evidence:
BY MR. PANNELL: Your Honor, we move to have her voluntary statement
[made to Herbert Wells] into evidence [sic]. I believe there are contradicting
statements in there.
BY THE COURT: You can have it marked for identification if you want to,
if you want to do that for the record.
....
BY MR. HOOD: If Tom wants to move it in, we may not have an objection.
BY A JUROR: Can the jurors look at identification?
BY THE COURT: Items of evidence that are marked for identification, the
Court has not ruled on its admissibility yet. It’s just marked for identification,
all right.
BY MR. HOOD: Your Honor, we don’t have any objection to it being
introduced into evidence.
BY THE COURT: Let it be marked as received as an exhibit to the testimony
of that witness.
33
[DEFENDANT’S EXHIBIT 1 WAS MARKED AS RECEIVED.]
Despite the State’s willingness to have the statement admitted into evidence, the record
demonstrates that it was only marked for identification at that time. The trial court did not
elaborate on its grounds for reserving its ruling. After the testimony of Deputy Wilbanks and
outside the presence of the jury, defense counsel argued that Wells’ statement fell under an
exception to the discovery rule, and therefore should have been admitted:
BY MR. PANNELL: Yesterday we were prevented from reading from the
statement that we took from Margaret Ann Jones on the grounds we had not
provided it to [the State] in discovery. We took a second look at this discovery
rule, and Rule 904(c)(1), (2), or (3) does not require us to provide them with
impeached material nor work product, both of which this is.
BY THE COURT: I’ve forgotten what it was you objected to.
BY MR. PANNELL: They objected to me reading from this statement and
contradictory statements that Margaret Ann Graves Jones had given on the
grounds it had not been discovered to them. This is work product and is also
for impeachment, and the rule does not require us to provide that to them.
BY MR. LUTHER: As I recall, he was granted --
BY THE COURT: I sustained that objection on a completely different ground
as I recall. Do you plan on calling a witness back or something?
BY MR. PANNELL: No, but I want to get this –
BY THE COURT: You can mark it for identification if you want to.
[DEFENDANT’S EXHIBIT 4 WAS MARKED FOR IDENTIFICATION.]
BY MR. HOOD: Your Honor, we still, just for the record, have not been
34
provided with that copy of that.
BY THE COURT: It’s up here if y’all want to look at it. It’s been marked for
identification.
Though it is unclear, the objection the trial court sustained was presumably the State’s
objection to defense counsel testifying. The trial court neither ruled that the proper
foundation had not been laid for the introduction of the statement, nor excluded the statement
as a violation of the discovery rule. On appeal, Ross again argues that Jones’ statement to
Wells was introduced for the purpose of impeachment and represented work product and was
therefore exempted from the discovery rule or, in the alternative, that the trial court erred in
failing to order a continuance pursuant to U.R.C.C.P. 9.04.
¶63. Prior inconsistent statements used to impeach a witness need not be disclosed to
opposing counsel unless opposing counsel has requested that such statements be disclosed.
See M.R.E. 613(a). However, if a statement is introduced into evidence not only for
impeachment, but also to bolster the substantive case of a party, then the admission of the
statement may nevertheless be subject to the reciprocal discovery rule under Rule 9.04 of the
Uniform Code of Circuit and Chancery Practice (U.R.C.C.P.). See, e.g., Coates v. State, 495
So. 2d 464, 466 (Miss. 1986) (finding that, where statement was impeachment evidence but
also outlined defendant’s substantive theory of the case, evidence was subject to the
discovery rule, and the trial court’s exclusion of the statement was not error); see also Byrom
v. State, 863 So. 2d 836, 869 (Miss. 2003) (citing Coates v. State and affirming that where
the statement was substantive evidence but was sought to be introduced as impeachment
35
evidence, exclusion of the evidence was proper for failure to adhere to the rules of reciprocal
discovery). This principle prevents a party from circumventing discovery rules by arguing
that evidence was used merely for impeachment purposes. Coates, 495 So. 2d at 466. In the
present case, while elements of the statement taken by Wells might have been used to
impeach Jones’ testimony, introduction of the entire statement as impeachment testimony
would have been inappropriate since a crucial element of Ross’ defense was undermining
Jones’ credibility. Therefore, though the proper foundation was laid for the introduction of
impeachment evidence, Wells’ statement should not have been admitted as impeachment
evidence, since it tended to prove Ross’ theory of the case.
¶64. Ross argues in the alternative that the statement taken by Wells was work product and
therefore exempted from discovery. U.R.C.C.P. Rule 9.04(B)(1) excludes attorney work
product from discovery.6 “Work product” encompasses materials that contain the “opinions,
theories or conclusions” of the attorney. The statement, while indicative of the defense’s
approach, did not contain opinions, theories, or conclusions, and was therefore not work
product for the purposes of discovery. Because the statement was not introduced solely for
impeachment and did not constitute work product, defense counsel’s failure to disclose the
statement to the State was a violation of the discovery rule.
¶65. Ross maintains that, even if the failure to disclose was a discovery violation, the trial
court erred in conclusively excluding it, rather than allowing the State to review the statement
6
U.R.C.C.P. 9.04(B)(1). Work Product. Disclosure shall not be required of legal
research or of records, correspondence, reports, or memoranda to the extent that they contain
the opinions, theories, or conclusions of the prosecuting or defense attorney or members of
legal staff.
36
and request a continuance, if necessary. Ross correctly notes that, in making discovery
rulings, trial courts must adhere to the guidelines first articulated in Box v. State, 437 So. 2d
19 (Miss. 1983), and later codified in U.R.C.C.P. 9.04(I).7 Under Rule 9.04(I), evidence
offered by a defendant in violation of the discovery rule cannot be rejected out of hand.
Carraway v. State, 562 So. 2d 1199, 1203 (Miss. 1990). Instead, the State must be given the
opportunity to meet the evidence and determine whether a motion for a continuance or a
motion for a mistrial is necessary. Exclusion of the evidence is an extreme sanction and is
only appropriate where the defendant’s discovery violation was “willful and motivated by
a desire to obtain a tactical advantage.” Darghty v. State, 530 So. 2d 27, 32 (Miss. 1988)
(citing Taylor v. Illinois, 484 U.S. 400, 415, 108 S. Ct. 646, 655, 98 L. Ed. 2d 798, 814
7
U.R.C.C.P. 9.04(I). Discovery. If during the course of trial, the prosecution attempts
to introduce evidence which has not been timely disclosed to the defense as required by these
rules, and the defense objects to the introduction for that reason, the court shall act as
follows:
1. Grant the defense a reasonable opportunity to interview the newly
discovered witness, to examine the newly produced documents,
photographs or other evidence; and
2. If, after such opportunity, the defense claims unfair surprise or undue
prejudice and seeks a continuance or mistrial, the court shall, in the
interest of justice and absent unusual circumstances, exclude the
evidence or grant a continuance for a period of time reasonably
necessary for the defense to meet the non-disclosed evidence or grant
a mistrial.
3. The court shall not be required to grant either a continuance or mistrial
for such a discovery violation if the prosecution withdraws its efforts
to introduce such evidence.
The court shall follow the same procedure for violation of discovery by the defense.
37
(1988)). Relying on Taylor, we have held that exclusion “ought be reserved for cases in
which the defendant participates significantly in some deliberate, cynical scheme to gain a
substantial tactical advantage.” Houston v. State, 531 So. 2d 598, 612 (Miss. 1988). In all
discovery matters, we are guided by our statement in Houston v. State:
We must never forget, however, that the trial for life or liberty is not a game
and that discovery rules, like other rules of procedure, are not an end in and of
themselves but a means to the end that we dare call justice. To that end, we
administer our discovery rules with a strong bias in favor of the court and jury
receiving and considering all relevant and otherwise admissible evidence.
Houston, 531 So. 2d at 611.
¶66. In the present case, the trial court erred in failing to consider the admission of the
statement in accordance with Rule 9.04(I). Nothing in the record indicates that defense
counsel deliberately attempted to ambush the State with new evidence. The trial court did
not find that the introduction of the statement was motivated by a desire to gain a tactical
advantage. The State cannot claim that the introduction of the statement caught it unaware,
since the statement was given by its own witness.
¶67. However, failure to follow Rule 9.04(I) does not inexorably require reversal. Rule
103 of the Mississippi Rules of Evidence stipulates that error may not be predicated upon a
ruling which admits or excludes evidence unless a substantial right of the party is affected
and a timely objection is made, or the substance of the evidence was made known to the
court by an offer of proof or was apparent from the context within which questions were
asked. The admission or exclusion of evidence constitutes reversible error only where a
party can show prejudice or harm. Jackson v. State 594 So. 2d 20, 25 (Miss. 1992). The
38
relevant inquiry therefore is whether the trial court’s failure to adhere to Rule 9.04(I)
prejudiced Ross.
¶68. This Court has found prejudice where the trial court fails to follow the Box guidelines
in excluding testimony that tended to support a defendant’s account of events. See
Darghty v. State, 530 So. 2d 27, 33 (Miss. 1988) (“Even-handed application of the Rule
requires the same procedure to be followed when the State objects to testimony because of
a defendant's violation as when the defendant objects for the same reason. . . . [the] testimony
being relevant and competent, it was prejudicial error to exclude it without following our
procedural guidelines. Accordingly, we reverse and remand for another trial.”). While Ross
was allowed to impeach Jones with her prior statement on cross-examination, the exclusion
of that statement from evidence did prejudice his case. Jones’ testimony was the only direct
evidence linking Ross to the crime. The jurors recognized the importance of her credibility,
as evidenced by one juror’s request to see the transcript. Given that Jones’ credibility was
the crucial issue in this case, and in light of the severity of the crime charged, we find that
the trial court committed reversible error in excluding her statement from evidence without
conducting a Box hearing pursuant to Rule 9.04(I).
III. PROSECUTORIAL MISCONDUCT
¶69. Ross argues that the district attorney committed misconduct in his closing argument
in the guilt phase and sentencing phases of the trial by (A) attacking the character and
honestly of opposing counsel, (B) making personal observations about the veracity of a
witness, and (C) referencing information not submitted into evidence.
39
¶70. Attorneys are afforded wide latitude in arguing their cases to the jury but are not
allowed to employ tactics which are inflammatory, highly prejudicial, or reasonably
calculated to unduly influence the jury. Sheppard v. State, 777 So. 2d 659, 661 (Miss.
2001). We will review allegations of misconduct to determine “whether the natural and
probable effect of the improper argument is to create unjust prejudice against the accused so
as to result in a decision influenced by the prejudice so created.” Id. In deciding the
propriety of allegedly improper comments, we will consider them in the context of the case.
Ahmad v. State, 603 So. 2d 843, 846 (Miss. 1992). A series of otherwise harmless errors in
a closing argument may be grounds for reversal where, in the aggregate, those errors violate
a defendant’s right to a fair and impartial trial. Howell v. State, 411 So. 2d 772, 776 (Miss.
1982) (series of inappropriate comments by prosecution during closing argument grounds for
reversal for violation of due process).
¶71. Ross failed to object to a number of the statements about which he now complains.
In general, the failure to object to the prosecution’s statements in closing argument
constitutes a procedural bar. Spicer v. State, 921 So. 2d 292, 309 (Miss. 2006). This
contemporaneous objection rule applies in death penalty cases and may apply to the
prosecution’s closing argument. Williams v. State, 684 So. 2d 1179, 1203 (Miss. 1996).
However, in extreme cases, a failure to object to questions which were violative of a
constitutional right will not act as a procedural bar to consideration. Wood v. State, 257 So.
2d 193, 200 (Miss. 1972) (finding that consideration of inappropriate cross-examination by
the State was not barred by defendant’s failure to object). See also Mickell v. State, 735 So.
2d 1031, 1035 (Miss. 1999) (“[I]n cases of prosecutorial misconduct we have held [that] this
40
Court [is not] constrained from considering the merits of the alleged prejudice by the fact that
objections were made and sustained, or that no objections were made.”); Griffin v. State, 557
So. 2d 542, 552 (Miss. 1990) (“Even without a timely objection, reversal may be required
when the prosecuting attorney has commented upon the defendant's right not to testify.”)
(citations omitted).
A. Statements Allegedly Impugning the Honesty and Character of Opposing
Counsel.
¶72. In the State’s closing argument during the guilt phase of the trial, the district attorney
made a number of statements that Ross argues were insulting to defense counsel. Indicative
of these statements was the beginning of the State’s closing argument: “I don’t know if it’s
necessary to address the defense’s case or not. I think you have seen a textbook violation of
closing argument by [defense counsel].” While these and other statements are provocative,
we find that they fall within the wide discretion granted to parties in closing argument.
Sheppard, 777 So. 2d at 661.
B. Prosecution’s Observation on the Veracity of a Witness.
¶73. The district attorney noted Jones had testified that Ross told her that killing Yancey
“didn’t bother him at all,” and told the jury “I don’t think it did.” Ross argues that bolstering
a witness’s credibility in this manner was error, but cites no authority for this principle. Such
statements are permissible given the wide latitude granted to parties in closing argument.
Sheppard, 777 So. 2d at 661.
C. References to Information not in Evidence.
41
¶74. Ross alleges that the State impermissibly implied that Ross had been seen at the crime
scene. In general, parties may comment upon any facts introduced into evidence, and may
draw whatever deductions and inferences that seem proper from the facts. Bell v. State, 725
So. 2d 836, 851 (Miss. 1998) (collecting authorities). Arguing statements of fact which are
not in evidence or necessarily inferable from facts in evidence is error when those statements
are prejudicial. Blue v. State, 674 So. 2d 1184, 1214 (Miss. 1996), overruled on other
grounds, King v. State, 784 So. 2d 884 (Miss. 2001); see Randall v. State, 806 So. 2d 185,
212-14 (Miss. 2001) (reversing and remanding for new trial in death penalty appeal partly
because the prosecutor attempted to infer guilt from the sudden absence of gunpowder
residue when absence of gunpowder residue was not in evidence); West, 485 So. 2d at 689-
90 (reversing and remanding for new trial in death penalty appeal partly because the
prosecutor inappropriately implied in closing argument the defendant had threatened
teenaged witnesses); Augustine v. State, 201 Miss. 277, 28 So. 2d 243, 244-47 (1946)
(reversing and remanding for new trial partly because the prosecutor made references to facts
not on the record, including, but not limited to, references to a gun used to commit the crime
when there was no evidence of a gun on the record). An arguing party may not appeal to a
juror’s prejudice by injecting prejudices not contained in some source of the evidence.
Sheppard, 777 So. 2d at 661 (citing Nelms & Blum Co. v. Fink, 159 Miss. 372, 131 So. 817,
821 (1930)).
¶75. Former Tippah County Sheriff Gary Mauney testified that, the morning after Yancey’s
murder, an unidentified party somewhere near the crime scene stated that Ross was around
Yancey’s residence the day he was killed. Sheriff Mauney wrote Ross’ name on a “crime
42
scene sign-in sheet” used to record the individuals interviewed at the crime scene. Mauney
emphasized, however, that Ross was not actually at the crime scene when he wrote his name
down. This sign-in sheet was not entered into evidence and was not identified for the record.
In its closing argument, the State first argued that, based on Mauney’s notes, Ross had been
at the crime scene the day before the murder. Defense counsel objected to the State’s arguing
matters not in evidence, and the court instructed the jury to disregard the statement. Later
in its closing argument, the State again made reference to the sign-in sheet, stating that Ross’
name “appeared” on the sheet, and that “that’s the first time we hear about Charles Ross.”
No objection was made to the second statement. Ross argues that these statements
erroneously suggest that Ross was present at the crime scene.
¶76. This Court has reversed and remanded cases in which the prosecutor inappropriately
made references in closing argument to supposed inconsistencies between two statements the
defendant had made, one recorded on tape and one unrecorded, because neither statement
was in evidence. Flowers v. State, 773 So. 2d at 329-30. In the present case, the prosecution
made two references to the crime scene sign-in sheet and arguably misconstrued the
significance of the sheet by initially arguing it indicated that someone had seen Ross at
Yancey’s residence around the time of the crime. The trial court’s instruction to disregard
the first statement is deemed sufficient to cure any impermissible prejudice. See, e.g., Walker
v. State, 671 So. 2d 581, 621-622 (Miss. 1995) (citing Davis v. State, 530 So. 2d at 694, 697 (Miss.
1988)). Nevertheless, the second reference to the crime sign-in sheet was error. Because the second
reference was not as pointed as the first, we decline to reverse on these grounds. The effect of this
43
error on our confidence in the outcome of this trial will be considered in Section XII.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
¶77. Ross argues that nearly all of his independent assignments of error are, in the
alternative, evidence of ineffective assistance of counsel. The touchstone for testing a claim
of ineffectiveness of counsel must be whether counsel's conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having produced
a just result. Irby v. State, 893 So. 2d 1042, 1049 (Miss. 2004) (citing Strickland v.
Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984)).
¶78. The standard of review for a claim of ineffective assistance involves a two-pronged
inquiry: the defendant must demonstrate that his counsel's performance was deficient and
that the deficiency prejudiced the defense of the case. Id. To establish deficient
performance, a defendant must show that his attorney’s representation fell below an objective
standard of reasonableness. Davis v. State, 897 So. 2d 960, 967 (Miss. 2004) (citing
Williams v. Taylor, 529 U.S. 362, 390-91, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000)). To
establish prejudice, a defendant must show that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the trial would have been different. Id. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.
Id.
¶79. The focus of the inquiry must be whether counsel's assistance was reasonable
considering all the circumstances. Id. at 746 (citing Strickland, 466 U.S. at 688). We will
not find ineffective assistance where a defendant’s underlying claim is without merit. Id.
Similarly, multiple defaults that do not independently constitute error will not be aggregated
44
to find reversible error. Walker v. State, 863 So. 2d 1, 22 (Miss. 2003). Our review is highly
deferential to the attorney, with a strong presumption that the attorney's conduct fell within
the wide range of reasonable professional assistance. Howard v. State, 853 So. 2d 781, 796
(Miss. 2003) (citing Hiter v. State, 660 So. 2d 961, 965 (Miss. 1995)). However, an
attorney’s lapse must be viewed in light of the nature and seriousness of the charges and the
potential penalty. State v. Tokman, 564 So. 2d 1339, 1343 (Miss. 1990) (citing Washington
v. Watkins, 655 F.2d 1346, 1356-57 (5th Cir. 1981)).
A. Tainted Venire Panel.
¶80. As noted in Section I(B), during the voir dire of prospective jurors, venire member
Martindale noted that she had testified against Ross in federal court and, separately, that she
had been the victim of a crime. Defense counsel failed to object to her statements at the time,
did not have her removed after her initial statement that she had testified against Ross, did
not request a curative instruction from the court, and did not query the remaining venire
members about possible prejudice induced by the statement after she was removed.
Martindale was subsequently struck for cause.
¶81. Defense counsel undoubtedly erred in failing to conduct even a cursory inquiry into
the identity of the venire members. Ross’ counsel had actual knowledge of Martindale’s
identity because testimony during a pre-trial bond hearing specifically noted that she had
been the victim of Ross’ prior armed bank robbery and had subsequently testified against
him. Similarly, while defense counsel’s decision not to object to Martindale’s first statement
immediately after she made it may well have been sound trial strategy, their failure to take
actions to remove Martindale from the panel before she made her second statement cannot
45
be considered the product of reasonable strategy. It is true that evidence of the bank robbery
was introduced in the sentencing phase, but that is irrelevant to prejudice suffered during the
guilt phase, particularly after the second statement. These substantial lapses likely fall below
an objective standard of reasonableness and therefore constitute error, but we cannot say
from the record that Ross suffered prejudice.
B. Failure to Lay Necessary Foundation to Introduce the Statement Taken
by Herbert Wells.
¶82. The statement given by Jones to Wells was taken on September 10, 1997, nineteen
days before Ross’ trial began. At trial, defense counsel argued that the statement was for
impeachment purposes, or in the alternative, was work product, and therefore did not have
to be disclosed. Whether it was an omission or a misguided trial strategy, the decision
substantially prejudiced Ross because it precluded him from introducing into evidence the
substantial inconsistencies between Jones’ statements to police and her statement to Wells.
However, because we cannot say that defense counsel’s failure to introduce the statement
was not trial strategy, we do not find reversible error.
C. Failure to Investigate Potential Mitigating Evidence and Failure to
Effectively Present Relevant Mitigating Evidence at the Penalty Phase.
¶83. During the sentencing phase of the trial, defense counsel offered as mitigating
evidence the testimony of Ross’ mother, grandmother, and daughter, a minister at the jail
where Ross had been incarcerated since his arrest, and the sheriff who had arrested Ross in
1989 for armed bank robbery. Ross also testified in his own defense. Much of the testimony
concerned the witnesses’ opinions of Ross’ character. A substantial portion of defense
counsel’s case for mitigation relied on their characterization that Ross was a “good prisoner”
46
and functioned appropriately in the prison system. On cross-examination of Ross, the State
challenged this characterization, noting that Ross had been moved from a county jail to a
higher security facility for possession of a hacksaw and attempting to escape and that he had
been punished in federal prison for making alcoholic beverages in his cell. During Ross’
competency hearing pending appeal, defense counsel confessed that they were stunned when
Ross admitted making alcoholic beverages in prison and “about fell through [their] seats.”
Ross also argues his attorney was ineffective for failing to conduct an adequate investigation
into potentially mitigating factors such as Ross’ psychological problems and for failing to
obtain an expert to testify to these factors.
¶84. While courts must defer to lawyers’ judgments and strategies, “at a minimum, counsel
has a duty to interview potential witnesses and to make independent investigation of the facts
and circumstances of the case.” Ferguson v. State, 507 So. 2d 94, 96 (Miss. 1987). Under
this standard, counsel may be deemed ineffective for relying almost exclusively on material
furnished by the State during discovery and conducting no independent investigation. Id.
While counsel is not required to exhaust every conceivable avenue of investigation, he or she
must at least conduct sufficient investigation to make an informed evaluation about potential
defenses. State v. Tokman, 564 So. 2d at 1343. Under Strickland, counsel has a duty “to
make reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary.” Strickland, 466 U.S. at 691.
¶85. Our state case law has not extensively addressed what constitutes adequate
investigation into mitigating circumstances. See, e.g., Brown v. State, 749 So. 2d 82, 90-91
(Miss. 1999) (defendant entitled to hearing on ineffective assistance where defense counsel
47
had a psychological evaluation administered but failed to submit a mitigation report on the
evaluation); Foster v. State, 687 So. 2d 1124, 1131-32 (Miss. 1996) (decision not to
investigate potentially mitigating psychological factors was reasonable and strategic because
a preliminary competency hearing found that defendant had no psychotic disorder or organic
mental disorder); Ladner v. State, 584 So. 2d 743, 757 (Miss. 1991) (counsel not ineffective
where court-appointed psychologist performed comprehensive evaluation and found no
mitigators).
¶86. In such cases, the jurisprudence from other jurisdictions proves useful. For example,
where defense counsel has sought and acquired a psychological evaluation of the defendant
for mitigation purposes, counsel generally will not be held ineffective for failure to request
additional testing. Moore v. Parker, 425 F.3d 250, 254 (6th Cir. 2005); Hall v. United
States, 2004 U.S. Dist. LEXIS 17089, *73 (D. Tex. 2004). Similarly, defense counsel cannot
be held ineffective for failing to discover a mitigating factor, such as organic brain damage,
that the defendant cannot show exists in any post trial motion. Thompson v. Bell, 315 F.3d
566 (6th Cir. 2003).
¶87. In each of these cases, counsel will not be deemed ineffective if there is proof of
investigation or if there is no factual basis for the defendant’s claim. However, each of these
principles presuppose a certain level of investigation. By contrast, “strategic choices made
after less than complete investigation will not pass muster as an excuse when a full
investigation would have revealed a large body of mitigating evidence.” Dickerson v.
Bagley, 453 F.3d 690, 696-697 (6th Cir. 2006). “It is not reasonable to refuse to investigate
when the investigator does not know the relevant facts the investigation will uncover.” Id.
48
In the present case, Ross undoubtedly alleges facts which demonstrate a need to develop
mitigating evidence based on potential psychological problems. The Mississippi State
Hospital at Whitfield conducted a psychological evaluation of Ross and discovered a number
of potential mitigating factors, including accounts of physical and sexual abuse, possible
alcoholism, accounts of visual and auditory hallucinations, and the deaths of his ex-wife and
four young children in a car accident in 1985 and the brutal murder of his sister in 1982. The
supplemental record also reveals that, at the time of his examination, Ross was taking anti-
psychotic medication and medication for depression. While Ross testified to the death of his
family, physical abuse as a child, and his drinking problems, and his mother testified to the
murder of his sister, defense counsel provided no expert evidence about how these events had
affected Ross psychologically. The record provides no evidence that defense counsel knew
about Ross’ hallucinations or the circumstances which would eventually lead to his taking
medications for psychological disorders. When asked why he did not try to develop this line
of mitigation evidence for his client, Ross’ defense counsel stated that Ross maintained he
wasn’t “crazy.” Defense counsel’s failure to investigate beyond this single declaration
cannot be considered reasonable given the serious mitigating issues evident in the post-trial
competency hearing.
¶88. Far more problematic was defense counsel’s apparent failure to properly investigate
Ross’ record as an inmate. Defense counsel asserted in opening statements that Ross had
been a “good prisoner” since his arrest, but put on only the most superficial evidence of this
fact. In doing so, they opened the door for the State to introduce Ross’ previous bad acts into
evidence. This failure falls below an objective standard of reasonableness and was
49
undoubtedly highly prejudicial, as it tended to cast Ross as unrepentant, a habitual criminal,
and a danger to society. Given the severity of the charge against Ross, defense counsel’s
failure to investigate Ross psychological problems and his disciplinary record in prison
substantially undermines our faith in Ross’ sentence, and therefore constitutes ineffective
assistance of counsel for the sentencing phase of the trial. Davis, 897 So. 2d at 967;
Tokman, 564 So. 2d at 1343.
V. COMPETENCY HEARING
¶89. On appeal, Ross claims that the competency hearing conducted by the trial court and
approved by this Court was deficient in three respects: first, for placing the burden on Ross
of proving his lack of competency by a preponderance of the evidence; second, for the trial
court’s denial of Ross’ motion for a continuance to consider the testimony of the examining
physician; and third, for the trial court’s failure to address Ross’ motion to retain an
independent expert to examine Ross.
¶90. The United States Supreme Court recognizes that the allocation of the burden of proof
in competency hearings in criminal trials lies squarely within the discretion of state courts,
and specifically that the allocation of the burden of proof to the defendant does not offend
due process. Medina v. California, 505 U.S. 437, 449-52; 112 S. Ct. 2572, 2579-81; 120 L.
Ed. 2d 353, 366-68 (1992). Where there is a serious question about the sanity or competency
of a defendant to stand trial, “it naturally devolves upon the defendant to go forward with the
evidence to show his probable incapacity to make a rational defense.” Emanuel v. State, 412
So. 2d 1187, 1189 (Miss. 1982); see also Evans v. State, 725 So. 2d 613, 660 (Miss. 1997).
The defendant must show incompetency by a preponderance of the evidence. Griffin v.
50
State, 504 So. 2d 186, 191 (Miss. 1987). The trial court therefore did not err in placing the
burden of proof on Ross.
¶91. Similarly, the decision to grant or deny a motion for a continuance is within the sound
discretion of the trial court and will not be reversed unless the decision results in manifest
injustice. See, e.g., Cox v. State, 849 So. 2d 1257, 1267 (Miss. 2003). After conducting his
examination of the psychologist who examined Ross, Ross’ appellate counsel renewed a
previously off-the-record motion for a continuance to review material that he maintained had
only been made available to him the day of the hearing. The trial court found that witnesses
had been called up from the Mississippi State Hospital and that the case would not be well
served by having the witnesses make repeated trips. The record does not reflect that Ross’
appellate counsel was unfamiliar with the evaluation results or that he was unable develop
his case through the examination of witnesses. The trial court’s determination was within
its discretion.
¶92. Finally, Ross alleges that the trial court’s failure to address his motion for an
independent expert constituted reversible error. However, the record reveals that the trial
court was amenable to hearing Ross’ motion at an appropriate time. There is no evidence in
the record that Ross further pursued his motion. A defendant has the obligation to secure a
ruling on his motion for an independent expert, and failure to do so constitutes a procedural
bar. Berry v. State, 728 So. 2d 568, 570 (Miss. 1999) (“It is the responsibility of the movant
to obtain a ruling from the court on motions filed by him and failure to do so constitutes a
waiver of same.”). Even if Ross were not procedurally barred, a defendant is not entitled to
a favorable mental health evaluation, but only to a competent psychiatrist and an appropriate
51
examination. Jordan v. State, 912 So. 2d 800, 818 (Miss. 2005); Byrom v. State, 863 So.
2d 836, 852 (Miss. 2003). The trial court cannot be faulted for failing to rule on a motion
never formally before it. This assignment of error is without merit.
VI. ATKINS HEARING
¶93. In Atkins v. Virginia, 536 U.S. 304, the United States Supreme Court held that the
execution of mentally retarded inmates amounted to cruel and unusual punishment and was
therefore prohibited by the Eighth Amendment. Ross argues that in light of this decision his
sentence must be vacated and his case remanded to the trial court for an evaluation of his
mental capacity. Ross maintains that although he was given both an I.Q. test and a
personality index by the Mississippi State Hospital, those tests were administered to establish
his competency to assist in his appeal and did not conclusively determine whether he is
mentally retarded.
¶94. The record reflects that while Ross’ scores on his I.Q. test were within the range of
mentally retarded, the hospital’s psychologist testified that in her opinion Ross was
malingering and that he was not actually mentally retarded. The examining psychologist also
stated that the Mississippi State Hospital had administered the Minnesota Multiphasic
Personality Inventory, or MMPI, to Ross. The examining psychologist opined that the results
of the MMPI were invalid because Ross intentionally malingered on the test by randomly
choosing answers. Ross implicitly argues that both findings are belied by the psychologist’s
testimony at the competency hearing, where she admitted that Ross had difficulty
understanding the implications of his trial and sentence.
52
¶95. A defendant will not be deemed mentally retarded for the purposes of the Eight
Amendment unless “such defendant produces, at a minimum, an expert who expresses an
opinion, to a reasonable degree of certainty, that: 1. the defendant is mentally retarded, as that
term is defined by the American Association on Mental Retardation and/or The American
Psychiatric Association; 2. the defendant has completed the Minnesota Multiphasic
Personality Inventory-II (MMPI-II) and/or other similar tests, and the defendant is not
malingering.” Lynch v. State, 2007 Miss. LEXIS 34, 17-18 (Miss. 2007) (citing Chase v.
State, 873 So. 2d 1013, 1029 (Miss. 2004)). When these tests already have been
administered and the results are clear from the record, re-filing an affidavit is unnecessary.
Scott v. State, 878 So. 2d 933, 948 (Miss. 2004). In the present case, the testimony from the
State’s psychologist indicates that Ross was malingering and that his functioning did not fall
within the range of mentally retarded. Because Ross has failed to proffer the information
necessary to warrant an Atkins hearing, he is not entitled to a reconsideration of his sentence
on this issue. Hughes v. State, 892 So. 2d 203, 216 (Miss. 2004). This assignment of error
is without merit.
VII. JURY INSTRUCTIONS
¶96. Ross maintains that the trial court erred in refusing the following proposed jury
instructions during the guilt phase of his trial: 1-A, 2, 3, and 4. He also argues that the trial
court erred in granting the State’s Sentencing Instruction S-1 and in denying his sentencing
phase instructions 2, 3, 4, 12, and 13.
A. Culpability Phase Instructions.
1. Number 4, directed verdict instruction.
53
¶97. Ross argues that the evidence presented by the State was insufficient to support his
conviction of capital murder, and that, as a result, the trial court erred in refusing Ross’
proposed instruction to the jury for a directed verdict of not guilty.
¶98. Where a defendant has requested a peremptory instruction in a criminal case or after
conviction moved for judgment notwithstanding the verdict, the trial judge must consider all
the evidence, not just the evidence which supports the State's case, in the light most favorable
to the State. Howard v. State, 853 So. 2d 781, 788 (Miss. 2003) (citing Gavin v. State, 473
So. 2d 952, 956 (Miss. 1985)) (citations omitted). The evidence which supports the case of
the State must be taken as true, and the State must be given the benefit of all favorable
inferences that may reasonably be drawn from the evidence. Id. If there is evidence of such
quality and weight that reasonable, fair-minded men in the exercise of impartial judgment
might reach different conclusions, then the request or motion should be denied. Id.
¶99. In Ross’ case, there was sufficient evidence, both circumstantial and in the form of
Jones’ testimony, for a reasonable jury to find that Ross murdered Yancey in the commission
of a robbery. The stolen goods were found in a residence where Ross had stayed the night
of the murder. A car similar to Ross’ had been seen and heard near Yancey’s residence the
night of the murder. Jones testified that Ross admitted to killing Yancey. Ross had access
to a pistol of the same caliber as the firearm that killed Yancey. In light of this evidence, it
was not error for the trial court to deny Ross’ proposed instruction for a directed verdict.
2. Number 1-A, circumstantial evidence instruction.
¶100. Ross also argues that the trial court erred in refusing to instruct the jury that the case
against Ross was based entirely on circumstantial evidence. When all of the evidence
54
tending to prove the guilt of a defendant is circumstantial, the trial court must grant a jury
instruction that every reasonable hypothesis other than guilt must be excluded in order to
convict. Manning v. State, 735 So. 2d 323, 338 (Miss. 1999) (citing Givens v. State, 618
So. 2d 1313, 1318 (Miss. 1993)). Circumstantial evidence is evidence which, without going
directly to prove the existence of a fact, gives rise to logical inference that such fact does
exist. Id. If direct evidence is before the jury, then a circumstantial evidence instruction is
inappropriate. Ladner v. State, 584 So. 2d 743, 750 (Miss. 1991). Direct evidence may
consist of a confession by the defendant, including a defendant's admission to a person other
than a law enforcement officer. Id.
¶101. Ross concedes that Jones’ testimony regarding Ross’ statements to her constitutes
direct testimony, but argues that Jones’ testimony was so thoroughly discredited by other
evidence that its weight was negligible. Therefore, he argues, the jury should have
considered Ross’ case to be based on circumstantial evidence. However, issues regarding
weight and credibility of the evidence are for the jury to resolve. Hughes v. State, 735 So.
2d 238, 276 (Miss. 1999). The trial court did not err in refusing to treat Ross’ case as a de
facto circumstantial-evidence case.
3. Numbers 2 and 3, instructions defining reasonable doubt.
¶102. Ross argues that the trial court erred in refusing his proposed jury instruction no. 2,
which defined reasonable doubt, and proposed jury instruction 3, which stated that all
reasonable doubts must be resolved in favor of the defendant. He contends that the refusal
of these instructions constituted reversible error because the trial court failed to offer the jury
55
any instruction regarding reasonable doubt. Ross’ claim is not supported by the record. The
trial court granted jury instruction Number 1, which read:
The law presumes every person charged with the commission of a crime to be
innocent. This presumption places upon the State the burden of proving the
defendant guilty of every material element of the crime with which he is
charged. Before you can return a verdict of guilt, the State must prove to you
beyond a reasonable doubt that the defendant is guilty. The presumption of
innocence attends the defendant throughout the trial and prevails at its close
unless overcome by evidence which satisfies the jury of his guilt beyond a
reasonable doubt. The defendant is not required to prove his innocence.
(Emphasis added). The Court also granted the State’s first instruction on capital murder,
which read:
If the State of Mississippi has failed to prove any one or more of these
elements beyond a reasonable doubt, then you shall find the defendant,
Charles Wayne Ross, not guilty of capital murder in the death of Hershel Ray
Yancey.
(Emphasis added).
¶103. Where a jury is adequately instructed on reasonable doubt, it is not reversible error
for the court to refuse to give a defense instruction on it. Howard v. State, 853 So. 2d 781,
791 (Miss. 2003) (citing Holloway v. State, 809 So. 2d 598, 606 (Miss. 2000)). Instructions
nearly identical to Ross’ proposed instructions have been properly excluded where existing
instructions adequately address the presumption of innocence and reasonable doubt. See
Martin v. State, 854 So. 2d 1004, 1009-10 (Miss. 2003) (addressing the definition of
reasonable doubt); Williams v. State, 667 So. 2d 15, 24 (Miss. 1996) (addressing the
resolution of reasonable doubt). Because Ross’ proposed instructions on reasonable doubt
had been adequately addressed by other jury instructions, this assignment of error is without
merit.
56
B. Sentencing Phase Instructions.
1. Sentencing instruction Number S-1.
¶104. The first sentencing instruction, offered by the State and adopted by the trial court,
included as one of the statutory aggravators to be considered by the jury that “the capital
offense was committed for the purpose of avoiding or preventing a lawful arrest.” Defense
counsel objected to the inclusion of this aggravator in the instruction on three bases: first,
that there was insufficient evidence to show that Ross had murdered Yancey in order to avoid
arrest for the robbery; second, that the use of this aggravating circumstance had not been
disclosed to Ross in the indictment; and third, that the aggravator could not be used as both
a “capitalizing” offense and an aggravator in determining Ross’ sentence.
¶105. An instruction detailing the aggravator of “avoiding lawful arrest” may be granted if
there is evidence from which a jury may reasonably infer that a substantial reason for the
killing was either to conceal the identity of the killer or to “cover their tracks” so as to avoid
apprehension and eventual arrest by authorities. Mitchell v. State, 792 So. 2d 192, 219
(Miss. 2001) (citing Manning v. State, 735 So. 2d 323, 350 (Miss. 1999)). Because Ross
knew Yancey personally, it was reasonable for a jury to conclude that Yancey was murdered
to conceal either the identity of the killer or to avoid investigation for the robbery. The trial
court committed no error in finding that there was a sufficient evidentiary basis for the
instruction.
¶106. Ross’ argument that the State erred in failing to state the aggravating circumstances
to be used in the sentencing phase is similarly unavailing. Mississippi law does not require
the aggravating circumstances to be set forth in the indictment. See Bennett v. State, 933 So.
57
2d 930, 952 (Miss. 2006); Smith v. State, 729 So. 2d 1191, 1224 (Miss. 1998); Smith v.
State, 724 So. 2d 280, 296 (Miss. 1998); In re Jordan, 390 So. 2d 584, 585 (Miss. 1980).
Rather, an indictment for capital murder puts a defendant on notice of the aggravating
circumstances that may be used against him. Bennett, 933 So. 2d at 952; Williams v. State,
445 So. 2d 798, 804-05 (Miss. 1984). The State’s failure to list the aggravating
circumstances in the indictment was therefore no bar to their being employed in the
sentencing phase of the trial. Finally, this Court has repeatedly held that evidence of the
underlying crime can properly be used both to elevate the crime to capital murder and as an
aggravating circumstance. See Bennett, 933 So. 2d at 954; Goodin v. State, 787 So. 2d 639,
654 (Miss. 2001); Smith, 729 So. 2d at 1223; Bell v. State, 725 So. 2d 836, 859 (Miss. 1998);
Crawford v. State, 716 So. 2d 1028, 1049-50 (Miss. 1998). The United States Supreme
Court has also held that the use of an underlying felony as an aggravator does not offend the
Constitution. Lowenfield v. Phelps, 484 U.S. 231, 233, 108 S. Ct. 546, 98 L. Ed. 2d 568
(1988). Consequently, there was no error in granting sentencing instruction S-1.
2. Denial of Ross’ Proposed Sentencing Instructions.
a. Proposed sentencing instruction Number 2 – statutory and non-
statutory mitigation.
¶107. Ross maintains that the trial court erred in refusing his second proposed sentencing
instruction, which set out elements of the crime that the State had to prove, a list of the
aggravating circumstances the State would attempt to show, and a list of twenty-four non-
statutory mitigators, presented as illustrations of the type of information that the jury could
58
consider mitigating circumstances. The crux of Ross’ contention is that the refusal of this
instruction impermissibly restricted the mitigation evidence the jury could consider.
¶108. Specific instructions on non-statutory mitigating circumstances need not be given, so
long as a “catch-all” instruction is included that instructs the jury that they may consider any
factors that they may deem mitigating in their deliberations. See, e.g., Manning v. State, 735
So. 2d 323, 352 (Miss. 1999). This Court has also held that “catch-all” instructions do not
limit the jury’s consideration of mitigating factors. Simmons v. State, 805 So. 2d 352, 499
(Miss. 2001). Under the list of statutory mitigating circumstances in the first sentencing
instruction, the trial court instructed the jury that they may consider:
Any other matter, any other aspect of the defendant’s character or record, and
any other circumstance of the offense brought to you during the trial of this
cause which you, the jury, deem to be mitigating on behalf of the defendant.
The instruction properly informs the jury about what may be considered as mitigation
evidence. Therefore, the trial court’s refusal of Ross’ proposed instruction does not
constitute error.
b. Proposed sentencing instruction Number 3 – conviction is not
itself an aggravator.
¶109. Ross argues that the trial court erred in refusing his third sentencing instruction, which
stated that the fact of his conviction of capital murder was not itself an aggravator that could
be considered for the purpose of punishment. However, when a jury has been instructed to
consider only an enumerated list of statutory aggravating factors, there is no need for a
separate instruction to this effect. See, e.g., Walker v. State, 913 So. 2d 198, 248 (Miss.
59
2005); Edwards v. State, 737 So. 2d 275, 317 (Miss. 1999). There was no error in refusing
Ross’ third proposed sentencing instruction.
c. Proposed sentencing instruction Number 4 – Residual doubt.
¶110. Ross contends that the trial court erred in refusing his fourth proposed sentencing
instruction, which instructed jurors to consider as a mitigating circumstance the possibility
of residual doubt about Ross’ guilt. Both the United States Supreme Court and this Court
have held that a capital defendant is not entitled to an instruction on residual doubt.
Holland v. State, 705 So. 2d 307, 325-27 (Miss. 1997); Franklin v. Lynaugh, 487 U.S. 164,
174, 108 S. Ct. 2320, 101 L. Ed. 2d 155 (1988). The trial court did not err in refusing this
proposed instruction.
d. Proposed sentencing instruction Number 12 – mercy instruction.
¶111. Ross maintains that the trial court erred in granting the State’s first sentencing
instruction and denying his twelfth proposed sentencing instruction. Ross’ proposed
instruction emphasized that while jurors could not consider “mere sympathy” in their
culpability determination, they could, and presumably should, consider mercy or sympathy
in their sentencing determination as a mitigating circumstance. The contested part of the
State’s instruction explained the process of balancing aggravating and mitigating
circumstances to the jury:
You must consider and weigh any aggravating and mitigating circumstances,
as set forth later in this instruction, but you are cautioned not to be swayed by
mere sentiment, conjecture, sympathy, passion, prejudice, public opinion, or
public feeling.
60
¶112. This Court has held the above-quoted language, considered in the context of a long
sentencing instruction, does not prevent the consideration of sympathy. See Flowers v. State,
842 So. 2d 531, 563 (Miss. 2003); Evans v. State, 725 So. 2d 613, 690-91 (Miss. 1997)
(expressly approving of such language in the context of a long instruction). Consequently,
the trial court did not err in granting the State’s first sentencing instruction. Similarly, there
was no error in refusing Ross’ proposed instruction specifically citing mercy or sympathy
as a mitigator. This Court has repeatedly held that a capital defendant is not entitled to a
sympathy instruction, because, like a mercy instruction, it could result in a verdict based on
whim and caprice. See, e.g., Howell v. State, 860 So. 2d 704, 759 (Miss. 2003).
e. Proposed sentencing instruction Number 13 – weighing of
aggravating and mitigating circumstances.
¶113. Finally, Ross argues that the trial court erred in denying his thirteenth instruction,
which would have allowed jurors to rely on a sense of mercy to sentence Ross to life
imprisonment, despite the fact that aggravators existed and were not balanced by any
mitigating factors. Such an instruction is both a mercy instruction and an instruction that
jurors are not bound to weigh aggravating and mitigating circumstances contemplated in the
State’s first sentencing instruction. This Court does not recognize a right to a mercy
instruction. Howell, 860 So. 2d at 759. Similarly, this Court has repeatedly refused to accept
instructions that would nullify the balancing of aggravating and mitigating factors, since such
instructions might induce verdicts based on whim and caprice. Manning v. State, 726 So.
2d 1152, 1197 (Miss. 1998). The trial court did not err in refusing Ross’ proposed
instruction.
61
¶114. Because Ross has shown no error by the trial court in its rulings on jury instructions,
this assignment of error is without merit.
VIII. MITIGATION EVIDENCE
¶115. Ross argues that the trial court erred in granting the State’s in limine motion to prevent
Ross’ family from testifying to the impact a death sentence would have on the family. The
United States Supreme Court maintains that the Eighth Amendment gives capital defendants
wide latitude in arguing mitigating circumstances to the jury. See, e.g., McCoy v. North
Carolina, 494 U.S. 433, 441, 110 S. Ct. 1227, 108 L. Ed. 2d 369 (1990). Furthermore, a
state “cannot preclude the sentencer from considering ‘any relevant mitigating evidence’ that
the defendant proffers in support of a sentence of less than death.” Tennard v. Dretke, 542
U.S. 274, 285, 124 S. Ct. 2562, 159 L. Ed. 2d 384 (2004). “Relevant evidence” has been
defined as “any aspect of a defendant’s character or record and any of the circumstances of
the offense that the defendant proffers as a basis for a sentence less than death. Lockett v.
Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 57 L.Ed.2d 973 (1978). Consistent with this
precedent, testimony regarding the impact a death sentence may have on the defendant’s
family is not ‘relevant mitigating evidence,’ because it does not address the defendant's
character, record, or the circumstances of the offense. See, e.g., Wilcher v. State, 697 So. 2d
1087, 1104 (Miss. 1997) (“[T]he trial court did not err in excluding testimony from Wilcher's
family that they wished for his life to be spared . . . [because] such testimony is not relevant
to the defendant's character, record, or the circumstances of the offense.”); Simon v. State,
688 So. 2d 791, 811 (Miss. 1997) (impact of death penalty on family is not relevant to
62
sentencing). The trial court therefore did not err in granting the State’s in limine motion.
This assignment of error is without merit.
IX. SUFFICIENCY OF THE INDICTMENT
A. Failure to List Aggravating Circumstances.
¶116. Ross claims that the indictment was insufficient because it failed to charge all
elements necessary to impose the death penalty under Mississippi law: (a) it included neither
a statutory aggravating factor nor a mens rea element of Miss. Code Ann. § 99-19-101(5) &
(7) (Rev. 2000); (b) it did not itemize the statutory aggravating circumstances that the State
would rely upon; and (c) it did not provide specific notice to Ross of what the State was
proposing to prove against him.
¶117. Ross cites Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed.2d
435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002),
in support of his argument that the statutory aggravators and mens rea element must be
specifically pled in the charging indictment of a state court case. However, as the Court has
held, neither Ring nor Apprendi stand for this proposition, and the United States Supreme
Court in both decisions specifically held it was not addressing the question of whether the
aggravators must be included in the indictment. See Apprendi, 530 U.S. at 477 fn.3; see also
Bennett v. State, 933 So. 2d 930, 952 (Miss. 2006). The Supreme Court has continued to
hold that indictment issues in federal courts are governed by the Fifth Amendment, while
indictment issues in state courts are instead governed by state law. Mississippi law does not
require the aggravating circumstances to be set forth in the indictment. See Id.; Smith v.
State, 729 So. 2d 1191, 1224 (Miss. 1998); Smith v. State, 724 So. 2d 280, 296 (Miss. 1998);
63
In re Jordan, 390 So. 2d 584, 585 (Miss. 1980). Rather, an indictment for capital murder
puts a defendant on notice of the aggravating circumstances that may be used against him.
Bennett, 933 So. 2d at 952; Williams v. State, 445 So. 2d 798, 804-05 (Miss. 1984).
¶118. While specific aggravating circumstances need not be specified in the indictment
under Mississippi law, the underlying felony that elevates the crime to capital murder must
be identified in the indictment along with the section and subsection of the statute under
which the defendant is being charged. See Miss. Code Ann. § 99-17-20 (Rev. 2000). Thus,
although it is not required under federal or Mississippi law, the indictment in this case
included one of the aggravating circumstances.
¶119. Furthermore, this Court has repeatedly rejected similar arguments based on Ring and
Apprendi, holding both of them inapplicable to Mississippi's capital sentencing scheme.
Bennett, 933 So. 2d at 952. In Stevens v. State, 867 So. 2d 219, 227 (Miss. 2003), this Court
held that the “defendant is not entitled to formal notice of the aggravating circumstances to
be employed by the prosecution” and that any time an individual is charged with murder, he
is put on notice that the death penalty may result. Additionally, in Brown v. State, 890 So.
2d 901, 918 (Miss. 2004), this Court rejected the argument that Ring and Apprendi require
aggravators to be included in a state court indictment. See also Knox v. State, 901 So. 2d
1257, 1269 (Miss. 2005); Gray v. State, 887 So. 2d 158, 174 (Miss. 2004) ("Thus, the issue
of the omission of aggravating circumstances in the indictment is without merit.");
Mitchell v. State, 886 So. 2d 704, 711 (Miss. 2004); Berry v. State, 882 So. 2d 157, 173
(Miss. 2004); Puckett v. State, 879 So. 2d 920, 946 (Miss. 2004); Holland v. State, 878
So. 2d 1, 9 (Miss. 2004); Simmons v. State, 869 So. 2d 995, 1010 (Miss. 2004); Stevens, 867
64
So. 2d at 227 (“The State is correct in its assertion that a defendant is not entitled to formal
notice of the aggravating circumstances to be employed by the prosecution and that an
indictment for capital murder puts a defendant on sufficient notice that the statutory
aggravating factors will be used against him.”). Ross’s indictment sufficiently informed him
of the charges against him, and his claim is without merit.
B. Use of the Underlying Felony as an Aggravating Circumstance.
¶120. Relying primarily on Ring and Apprendi, Ross maintains that the use of the
underlying felony of armed robbery as an aggravating circumstance upon which the jury
relied in returning a sentence was improper. However, evidence of the underlying crime can
properly be used both to elevate the crime to capital murder and as an aggravating
circumstance. See Bennett, 933 So. 2d at 954; Goodin v. State, 787 So. 2d 639, 654 (Miss.
2001); Smith, 729 So. 2d at 1223; Bell v. State, 725 So. 2d 836, 859 (Miss. 1998);
Crawford v. State, 716 So. 2d 1028, 1049-50 (Miss. 1998). Furthermore, the United States
Supreme Court has held that there is no constitutional error in using the underlying felony
as an aggravator. Lowenfield v. Phelps, 484 U.S. 231, 233, 108 S. Ct. 546, 98 L. Ed. 2d 568
(1988). The Supreme Court stated in Tuilaepa v. California, 512 U.S. 967, 972, 114 S. Ct.
2630, 129 L. Ed. 2d 750 (1994), that "[t]he aggravating circumstance may be contained in
the definition of the crime or in a separate sentencing factor (or in both)."
¶121. The use of the underlying felony as an aggravator was not error.
C. Substitution of Aggravating Circumstances at the Close of the Sentencing
Phase.
65
¶122. Ross complains that, during the jury instruction conference for the sentencing phase,
the State was allowed, over objection, to withdraw a jury instruction on the aggravating
circumstance of murder committed by a person who had previously been convicted of a
felony involving the threat of violence to persons and substitute a jury instruction on the
aggravating circumstance of murder committed for the purpose of avoiding or preventing a
lawful arrest. Ross argues that this last-minute substitution of aggravating circumstances
violated his Fifth Amendment right to timely notice of the charges against him and his Sixth
Amendment right to sufficient notice of the charges against him.
¶123. In Gardner v. Florida, 430 U.S. 349, 362, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977),
the United States Supreme Court held that a defendant may not be sentenced to death “on the
basis of information which he had no opportunity to deny or explain.” However, it has
already been established that an indictment for capital murder puts a defendant on notice of
the aggravating circumstances that may be used against him, Williams v. State, 445 So. 2d
798, 804-05 (Miss. 1984), and there is no authority for the proposition that the State must
furnish formal notice of aggravating circumstances in discovery. Smith v. State, 729 So. 2d
1191, 1124 (Miss. 1998).
¶124. Even if the substituted aggravating circumstance had been excluded, there was still
sufficient proof of other aggravating circumstances to support the sentence. Jordan v. State,
912 So. 2d 800, 812 (Miss. 2005). If one aggravator is found to be invalid, the Court is
authorized to reweigh the remaining aggravators against the mitigating circumstances.
McGilberry v. State, 843 So. 2d 21, 29 (Miss. 2003). Upon review of the aggravating and
mitigating circumstances without the contested aggravating circumstances, we find that there
66
were sufficient aggravating circumstances to justify the sentence. This assignment of error
is without merit.
D. Sufficiency of the Habitual Offender Portion of the Indictment.
¶125. The portion of the indictment charging Ross as a habitual offender was on a separate
page from the rest of the indictment. Ross argues that, pursuant to Section 169 of the
Mississippi Constitution of 1890, the indictment concluded with the words "against the peace
and dignity of the state," which were found on the first page of the indictment; and therefore,
he was not properly charged as a habitual offender and could not be sentenced as such.
Section 169 of the Mississippi Constitution reads: “The style of all process shall be ‘The
State of Mississippi’ and all prosecution shall be carried on in the name and by authority of
‘The State of Mississippi,’ and all indictments shall conclude ‘against the peace and dignity
of the State.’” Miss. Const. art. 6, § 169. However, Ross did not challenge the sufficiency
of his indictment at trial.
¶126. Challenges to the substantive sufficiency of an indictment may not be waived and
consequently may be raised for the first time on appeal. State v. Berryhill, 703 So. 2d 250,
254 (Miss. 1997). For example, a challenge to an indictment for failure to charge the
essential elements of a criminal offense affects a fundamental right, and may not be waived.
Jefferson v. State, 556 So. 2d 1016, 1019 (Miss. 1989). However, “the mere fact that a
procedural requirement is located in the Constitution does not necessarily elevate it to the
status of a fundamental right.” Brandau v. State, 662 So. 2d 1051, 1054 (Miss. 1995)
(failure to conclude indictment with the words “against the peace and dignity of the State of
Mississippi” did not affect a fundamental right). We have held specifically that the inclusion
67
of the habitual offender portion of an indictment after the words “against the peace and
dignity of the State of Mississippi” does not affect a fundamental right and may be waived
on appeal. Crawford v. State, 716 So. 2d 1028, 1050-51 (Miss. 1998). Ross is therefore
procedurally barred from challenging his indictment. This assignment of error is without
merit.
XI. OVERWHELMING WEIGHT OF THE EVIDENCE
¶127. Ross argues that the trial court erred in denying his motion for a new trial. A motion
for new trial challenges the weight of the evidence. When reviewing a denial of a motion for
a new trial based on an objection to the weight of the evidence, we will disturb a verdict only
when it is so contrary to the overwhelming weight of the evidence that to allow it to stand
would sanction an unconscionable injustice. Bush v. State, 895 So. 2d 836, 844 (Miss. 2005)
(citing Herring v. State, 691 So. 2d 948, 957 (Miss. 1997)). We have stated that on a motion
for new trial, the court sits as a thirteenth juror, and the evidence is weighed in the light most
favorable to the verdict. Id. A finding that the verdict was against the overwhelming weight
of the evidence indicates that the Court disagrees with the jury’s resolution of conflicting
evidence and requires a new trial. Id.
¶128. Though the standard of review in such cases is high, “[t]his Court has not hesitated
to invoke its authority to order a new trial and allow a second jury to pass on the evidence
where it considers the first jury's determination of guilt to be based on extremely weak or
tenuous evidence[,] even where that evidence is sufficient to withstand a motion for a
directed verdict.” Lambert v. State, 462 So. 2d 308, 322 (Miss. 1984) (Lee, J., dissenting)
(citing Shore v. State, 287 So. 2d 766 (Miss. 1974)); Feranda v. State, 267 So. 2d 305 (Miss.
68
1972); Barnes v. State, 249 So. 2d 383 (Miss. 1971); Cook v. State, 248 So. 2d 434 (Miss.
1971); Peterson v. State, 242 So. 2d 420 (Miss. 1970); Hux v. State, 234 So. 2d 50 (Miss.
1970); Quarles v. State, 199 So. 2d 58 (Miss. 1967); Yelverton v. State, 191 So. 2d 393
(Miss. 1966); Mister v. State, 190 So. 2d 869 (Miss. 1966); Cole v. State, 217 Miss. 779, 65
So. 2d 262 (1953); Dickerson v. State, 54 So. 2d 925 (Miss. 1951); Jefferson v. State, 52 So.
2d 925 (Miss. 1951); Conway v. State, 177 Miss. 461, 171 So. 16 (1936)); see also
Hutchins v. State, 220 So. 2d 276 (Miss. 1969); Brown v. State, 219 Miss. 748, 70 So. 2d
23 (1954); Williams v. State, 220 Miss. 800, 72 So. 2d 147 (1954); Martin v. State, 197
Miss. 96, 19 So. 2d 488 (1944); Holifield v. State, 132 Miss. 446, 96 So. 306 (1923);
Bolden v. State, 98 Miss. 723, 54 So. 241 (1910). A greater quantum of evidence favoring
the State is necessary for the State to withstand a motion for a new trial, as distinguished
from a motion for J.N.O.V. Pharr v. State, 465 So. 2d 294, 302 (Miss. 1984).
¶129. In denying Ross’ motion for a new trial, the trial court found that the jury properly
weighed the evidence and determined that Ross: (1) took a wallet, television, and VCR, (2)
from Yancey, (3) which belonged to Yancey, (4) against Yancey’s will, (5) by shooting him
four times. Miss. Code Ann. § 97-3-79 (Rev. 2000). However, a careful review of the
evidence supporting the verdict raises serious concerns regarding the weight of the evidence
considered by the jury.
A. The Contradictory Character of Testimony at Trial.
¶130. The most striking aspects of the evidence used to convict Ross were the numerous and
substantial inconsistencies among the testimonies of Jones, Hale, Sanders, and Donald Ross,
Jr. Although the accounts of Jones and Sanders were substantially similar, their version of
69
the events differed significantly from Hale’s account. Of particular concern are the wide
inconsistencies regarding what time Ross, Sanders, and Donald Ross, Jr. arrived at Hale’s
residence, in what order they arrived, and what they did with the television and VCR after
Ross allegedly brought it inside.
¶131. Hale testified that Sanders and Donald Ross, Jr. were already home when Ross arrived
between 9:00 and 10:00 p.m. with the television and VCR. He was certain it was not as late
as 11:30 p.m. Jones disagreed, testifying Ross arrived at the Hale residence first, around
11:30 p.m., followed by Sanders and Donald Ross, Jr. who she says arrived just before
midnight. Jones’ account at trial also differs from her statement to Wells, in which she stated
that Ross arrived at Hale’s residence between 8:30 and 9:00 p.m.
¶132. Hale testified Sanders repaired the television, and then they all watched it together on
Friday night. This conflicts with Sanders’ testimony, in which he stated that he repaired the
broken cord on the television the next morning at the request of Ross. Sanders’ account also
conflicts with Jones’ testimony, in which she stated that she, Hale, and Sanders went into
town early that morning.
¶133. Jones’ testimony about the circumstances under which Ross showed her the gun and
the wallet also conflicts with her statement to Wells and Hale’s testimony at trial. At trial,
Jones testified that Ross took her into a bedroom and showed her a three-fold wallet. In her
statement to Wells, she stated that Ross had shown her the wallet outside the trailer. Both
stories conflict with Hale’s testimony, in which he said he never saw Jones and Ross go
outside or into a bedroom alone. At trial, Jones testified that Ross then took some paper out
of his car, placed it on a charcoal grill, laid the wallet on top of it, and used the paper to burn
70
the wallet. In her statement to Wells, Jones said Ross took the papers out of the wallet and
used them to start the fire.
¶134. In addition to these inconsistencies, several aspects of Jones’ testimony at trial appear
implausible. Jones testified that after Ross confessed to murdering Yancey, he pulled the gun
out from under the seat of his car, showed it to her, and tossed it over his head backwards
with a “little flip.” At trial she emphasized that Ross casually tossed the gun over his
shoulder. However, the gun was found in a sewage ditch sixty-five feet from where she said
Ross had tossed it. When confronted with this inconsistency, her only reply was that
substantial time had elapsed since Ross’ confession. Similarly, Jones’ testimony was the
only evidence supporting the State’s contention that Ross had burned Yancey’s wallet on a
charcoal grill outside Hale’s residence. Jones testified that Ross showed her Yancey’s
wallet, then either took paper out of his car or out of Yancey’s wallet, and used the paper to
set the wallet on fire. She further testified that Ross had not used any accelerant to destroy
the wallet. This testimony conflicts with the opinion of Deputy Wilbanks, who collected the
ashes and opined that a wallet could not have been destroyed without some sort of accelerant.
At trial, Jones testified that she was not certain if the wallet was totally destroyed, which
conflicted with her statement to Wells, in which she stated that the wallet had been
completely reduced to ashes.
¶135. Considered in isolation, these inconsistencies and implausible accounts might be
regarded merely as a matter of witness credibility to be determined by a jury. See, e.g.,
Hughes v. State, 724 So. 2d 893, 896 (Miss. 1998). However, the fact that Jones’ testimony
was often inconsistent and implausible weighs against its trustworthiness, particularly in a
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capital case. See Cole v. State, 217 Miss. 779, 786-87, 65 So. 2d 262, 264-65 (Miss. 1953)
(finding, in case of reversal based on the overwhelming weight of the evidence, State’s key
witness was incredible since “[n]ot one, but a number of aspects of [the witness’s] testimony,
when considered together, [made] it an exceedingly improbable and unreasonable story”).
B. Inconclusive Circumstantial Evidence.
¶136. Absent Jones’ testimony, the bulk of the evidence against Ross was inconclusive,
circumstantial, or did not implicate Ross any more than it did the other occupants of Hale’s
residence. The State’s case relied on a number of items in evidence whose relevance was
questionable. For example, the State provided no support for their argument that the tail light
fragments came from Ross’ car. The State made no showing that the ashes found on the grill
had been properly preserved or what their composition was. The State noted that the beer
cans collected from Ross’ car had the same manufacturer’s stamp as those found at the crime
scene, but never explained how many cans would have the same stamp. The State argued
that the vehicle heard by Yancey’s neighbors was Ross’ car, which ran loudly because it did
not have a muffler. However, other individuals admitted driving the car at some point on the
night of the murder. Yancey’s neighbor said she saw a small person working on a car in her
yard, a description which could have fit Ross or Sanders. All the individuals staying at
Hale’s residence would have had access to Hale’s pistol. Finally, the stolen television and
VCR were found in Sanders’ bedroom.
C. The Balance of Evidence.
¶137. The lack of substantial direct evidence against Ross is troubling, particularly given
the inconsistencies in Jones’ testimonies. Ultimately, however, we cannot find that the trial
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court erred in denying Ross’ motion for a new trial. Absent from the record are the myriad
nuances and subtle impressions from which jurors weigh credibility, and this Court must be
wary of encroaching on the peculiar province of the jury. We therefore decline to find that
Ross’ conviction was against the overwhelming weight of the evidence. Its effect on our
cumulative harmless error analysis will be considered in Section XII.
XII. CUMULATIVE ERROR
¶138. Ross argues the cumulative effect of the various errors in the trial, even if harmless,
requires reversal and remand. The cumulative error doctrine stems from the doctrine of
harmless error, codified under Mississippi Rule of Civil Procedure 61. It holds that
individual errors, which are not reversible in themselves, may combine with other errors to
make up reversible error, where the cumulative effect of all errors deprives the defendant of
a fundamentally fair trial. Byrom v. State, 863 So. 2d 836, 847 (Miss. 2003). As an
extension of the harmless error doctrine, prejudicial rulings or events that do not even rise
to the level of harmless error will not be aggregated to find reversible error. As when
considering whether individual errors are harmless or prejudicial, relevant factors to consider
in evaluating a claim of cumulative error include whether the issue of innocence or guilt is
close, the quantity and character of the error, and the gravity of the crime charged. See, e.g.,
Leonard v. State, 114 Nev. 1196, 1216, 969 P.2d 288, 301 (Nev. 1998) (citing Homick v.
State, 112 Nev. 304, 316, 913 P.2d 1280, 1289 (1996)). That is, where there is not
overwhelming evidence against a defendant, we are more inclined to view cumulative errors
as prejudicial. In death penalty cases, all genuine doubts about the harmlessness of error
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must be resolved in favor of the accused because of the severity of the punishment. See
Walker v. State, 913 So. 2d 198, 216 (Miss. 2005).
¶139. In the present case, we find reversible error in the failure of the trial court to adhere
to Rule 9.04(I) in excluding the statement of Margaret Jones taken by Ross’ investigator.
Similarly, defense counsel’s failure to investigate substantial mitigating factors during the
sentencing phase requires reversal of Ross’ sentence. Arguing that Ross’ life should be
spared because he could have functioned appropriately as a prisoner was not a valid defense
given Ross’ disciplinary record in prison. During the sentencing, defense counsel also failed
to address substantial non-statutory mitigating factors noted by the state mental hospital.
Other errors provide further justification for reversal because of their cumulative effort.
These include the State maintaining in closing argument that Ross had been seen at the crime
scene when he had not; defense counsel’s failure to explore the possible tainting of the venire
panel, particularly after Martindale’s second prejudicial statement; and the exclusion of the
State’s ballistics report from evidence, which took a tangible document away from Ross that
could have been argued to the jury. These errors are of particular concern because much of
the State’s case against Ross, absent the inconsistent testimony of Margaret Jones, was
indirect. We therefore reverse Ross’ conviction and sentence and remand his case for a new
trial.
CONCLUSION
¶140. We do not reverse a conviction lightly and recognize that no trial is perfect. See
Walker v. State, 913 So. 2d 198, 250 (Miss. 2005). However, the gravity of a death penalty
74
case demands that we sanction a conviction and sentence only where there are no genuine
doubts as to their validity.
¶141. Because the independent and cumulative errors during the guilt and sentencing phases
of the trial denied Ross a fundamentally fair trial, we reverse Ross’ conviction and sentence
and remand this case for a new trial consistent with this opinion.
¶142. REVERSED AND REMANDED.
SMITH, C.J., COBB, P.J., DIAZ, GRAVES AND DICKINSON, JJ., CONCUR.
RANDOLPH, J., CONCURS IN RESULT ONLY. DIAZ, J., SPECIALLY CONCURS
WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, P.J., GRAVES
AND DICKINSON, JJ. EASLEY, J., DISSENTS WITH SEPARATE WRITTEN
OPINION JOINED BY CARLSON, J.
DIAZ, JUSTICE, SPECIALLY CONCURRING:
¶143. I wholeheartedly concur with the majority’s opinion that we must reverse and remand
this case for a new trial because of pervasive errors during both the guilt and sentencing
phases. Yet I am compelled to write because prospective jurors were improperly struck,
violating both the constitutional rights of Charles Wayne Ross and also those of the jurors.
¶144. It is a bedrock tenet of American law that “[t]he very idea of a jury is a body . . .
composed of the peers or equals of the person whose rights it is selected or summoned to
determine; that is, of his neighbors, fellows, associates, persons having the same legal status
in society as that which he holds.” Batson v. Kentucky, 476 U.S. 79, 87, 106 S.Ct. 1712, 90
L.Ed. 2d 69 (1986) (internal quotations and citations omitted). Accordingly, the “jury has
occupied a central position in our system of justice by safeguarding a person accused of
crime against the arbitrary exercise of power by prosecutor or judge.” Id. Therefore “[t]hose
on the venire must be ‘indifferently chosen,’ to secure the defendant’s right under the
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Fourteenth Amendment to ‘protection of life and liberty against race or color prejudice.’” Id.
(internal quotations and citations omitted).
¶145. The right to an impartial jury does not just flow to the accused in a criminal case, for
“[r]acial discrimination in selection of jurors harms not only the accused whose life or liberty
they are summoned to try,” but also the juror who has been discriminated against and, by
extension, the greater whole of the community. Id. at 87. “[B]y denying a person
participation in jury service on account of his race, the State [also] unconstitutionally
discriminate[s] against the excluded juror.” Id.
¶146. In Mississippi, we have specifically noted that this constitutional prohibition against
juror discrimination extends to all citizens, regardless of race. As we declared in State v.
Rogers, “[w]hile Batson v. Kentucky . . . has predominately been a tool to deter
discrimination against African Americans or other minorities, this is not the purpose of the
ruling.” 847 So. 2d 858, 862 (Miss. 2003). Instead, “[t]he purpose is to afford a fair and
impartial trial to defendants regardless of their race.” Id. (emphasis added).
¶147. In our increasingly diverse society, this means the prohibition on discrimination must
be respected against all races so that we may honor the critical balancing role the jury plays
in our country. See Batson, 476 U.S. at 87 (“For a jury to perform its intended function as
a check on official power, it must be a body drawn from the community”). Nor may the
prohibition against discrimination be invoked only by the accused; the State may also invoke
Batson. For “[r]egardless of who invokes the discriminatory challenge, there can be no
doubt that the harm is the same–in all cases, the juror is subjected to open and public racial
discrimination.” Rogers, 847 So. 2d at 862 (internal quotations and citations omitted).
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¶148. It also does not matter whether the accused and a prospective juror share the same
race, as a defendant may object to race-based peremptory challenges regardless of race. See
Powers v. Ohio, 499 U.S. 400, 11 S.Ct. 1364, 113 L.Ed.2d 411 (1991). This is not because
the dismissed jurors may have been predisposed to favor the defendant, but rather “because
racial discrimination in the selection of jurors casts doubt on the integrity of the judicial
process, and places the fairness of a criminal proceeding in doubt.” Id. at 411 (internal
quotations and citations omitted). Likewise, the same reasoning behind the prohibition
against racial discrimination has also been recognized to prohibit gender-based
discrimination. Ultimately, “[d]iscrimination in jury selection, whether based on race or on
gender, causes harm to the litigants, the community, and the individual jurors who are
wrongfully excluded from participation in the judicial process.” J.E.B. v. Ala. ex rel. T.B.,
511 U.S. 127, 140, 114 S.Ct. 1419, 128 L.Ed. 2d 89 (1994).
¶149. In the case at hand, the venire panel gathered for the trial of Ross consisted of sixty-
five white members and six African-Americans. Every one of the black jurors were struck.
The prosecution used its remaining two peremptory strikes against prospective jurors 24 and
25, Wendy Gillard and Sonya Gillard.8
¶150. In her questionnaire, Wendy Gillard indicated that she was a lifelong resident of
Tippah County, spending the entirety of her twenty-seven years there. She had no criminal
history and never knew anyone who had been the victim of a violent crime, and attended her
Baptist church every Sunday and Wednesday night for services. Her hobbies were exercise
8
The record does not reflect whether the prospective jurors were related.
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and reading, and she read the Memphis Commercial Appeal and the Tippah County Southern
Sentinel each week. She had been working at the Carrier Corporation but had been laid off
the month before she was called for jury duty. She regularly watched the local news.
¶151. Prospective juror 25, Sonya Gillard, was employed by Carrier as a production tech.
She had worked with Carrier for five years. She had also studied at Northeast State, the
technical college in Blountville, Tennessee, and attended her Baptist church most Sundays.
She read the Commercial Appeal on a daily basis, read the Southern Sentinel, and watched
the local news. She had no criminal history and never knew anybody that was involved in
a violent crime.
¶152. Prospective jurors 24 and 25 attend their churches regularly; work at local businesses;
and take the local papers. They both were registered to vote and both showed up for jury
duty when called. On paper, they seem like the ideal cross-section of the community.
¶153. Yet the State struck them. Counsel for Ross opposed the strikes, offering only that
“we would object to him removing the last two black jurors I think we’ve got on this panel.”
In response, the prosecutor offered that “Juror 24, Wendy Gaillard [sic], is 27 years old.
She’s single; and the same goes for juror number twenty-five, Sonya Gaillard [sic]. She’s
23 years old. She’s young. She’s single. We believe there is sufficient ties to the
community.” The State apparently meant to offer that the prospective jurors did not have
sufficient ties to the community.
¶154. In upholding the strikes, the only analysis offered by the trial court was that “the
defendant in this case is not a member of a recognizable minority . . . [t]here not even being
an issue of minority or establishing of a pattern, I’m not going to require the State to keep
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them. I’m going to excuse them.” Ross is white and the prospective jurors were black, but
as examined supra the law makes no distinction on this point. Both this Court and the United
States Supreme Court have made clear that Batson applies no matter the race of the accused
or the potential juror. Powers, 499 U.S. at 411; Rogers, 847 So. 2d at 862. Although the
trial court subsequently recognized that Batson and its progeny do not require that the
objecting party be a member of the same racial group as the party struck, it did not revisit the
earlier ruling allowing the peremptory strikes of the prospective jurors. The trial court’s
misapplication of the law is therefore reversible error.
¶155. Even if the trial judge had used the correct standard of law, the proper analysis under
Batson and our previous case law was not performed. See Rogers, 847 So. 2d at 862
(outlining the burden-shifting process in determining if there has been purposeful
discrimination). If such a process was used it is doubtful that Wendy Gillard and Sonya
Gillard would have been struck from the jury, for these two women were connected to their
communities in at least a half-dozen ways. The trial court likely would have been left with
the conclusion, as I am, that the prospective jurors were amply qualified to serve. From the
record, it appears that there is only one reason the women were struck by the State: both
Wendy and Sonya identified themselves as “black” on their jury questionnaires.
¶156. Jury selection can be a complicated process. Some lawyers look upon it with almost
a superstitious eye, and some turn to statistics or census to gain a different perspective.
There are many ways to select a jury, but we cannot and will not allow one that is tainted by
racial or gender discrimination. In addition to agreeing with the majority that Ross is entitled
to a new trial because of errors in the guilt and sentencing phases of his previous trial, I
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would also reverse because the trial court utilized the wrong standard in analyzing the
selection of the jury and because the State provided only a pretextual justification why the
prospective jurors were struck.
WALLER, P.J., GRAVES AND DICKINSON, JJ., JOIN THIS OPINION.
EASLEY, JUSTICE, DISSENTING:
¶157. As I would affirm Ross’ death penalty conviction and sentence, I am compelled to
write in order to address the majority’s reversal and remand to the trial court for alleged
reversible error and cumulative error.
¶158. In my opinion, the majority erroneously finds reversible error. The majority finds that
(1) the exclusion of Margaret Jones’ statement to Wells; and (2) defense counsel’s alleged
failure to investigate mitigating factors during the sentencing phase of the trial amount to
reversible error.
¶159. In addition, I disagree with the majority’s finding of cumulative error. The majority
finds that: (1) the State’s use of information not in evidence during closing argument; (2)
defense counsel’s alleged failure to explore the tainting of the venire after Martindale’s
second statement; and (3) the exclusion of the ballistics report from evidence requires
reversal due to cumulative error. Lastly, I address two other issues, those being, (1) Wells’
proffered testimony on police investigative techniques; and (2) the weight of the evidence.
I. Reversible Error.
A. Margaret Jones - Statement to Herbert Wells.
¶160. The majority holds that the trial court erred by failing to follow U.R.C.C.C. Rule 9.04
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concerning the portions of Jones’ statements to Wells that were suitable for impeachment
purposes. I disagree. The majority finds that a Box v. State, 437 So. 2d 19 (Miss. 1983)
analysis was required. The trial court’s ruling on this issue was not clear. However, Ross
argued his reasoning for allowing the admission of the inconsistency as an impeachment
issue, not a discovery issue.
¶161. Jones gave inconsistent statements concerning the time Ross arrived at Hale’s trailer.
Jones told Wells that Ross arrived at Hale’s trailer between 8:30 and 9:00 p.m., and she
testified at trial that Ross arrived at Hale’s trailer at 11:30 p.m. However, the record reveals
that Jones was questioned on direct examination about the arrival of Ross at Hale’s trailer.
On cross-examination, Ross failed to question Jones further on this issue.
¶162. On direct examination, Jones stated that Ross arrived at Hale’s trailer in the afternoon.
She stated that Ross left around 8:30 to 9:00 p.m. and returned to Hale’s trailer around 11:30
p.m. to 12:00 a.m. Despite Jones’ testimony that Ross came to Hale’s trailer in the afternoon,
left about 8:30 p.m. to 9:00 p.m., and returned around 11:30 to 12:00 a.m., Ross failed to
question Jones on cross-examination about any inconsistencies in her statements to various
people prior to trial. At best, Ross made a vague reference to Jones’ direct testimony, stating:
Q. [Ross] was so drunk he was passed out on your couch that whole night,
wasn’t he?
A. After he came in, yeah.
Q. After he came in the first time or after he came in the second time.
A. The second time.
Q. All right, and that’s just as true as anything else you’ve told us.
A. Whatever you say.
Additionally, Ross did not pursue any questions on cross-examination with regard to
inconsistencies with statements made as to Ross’ alleged arrival at Hale’s trailer. Ross had
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an opportunity to question Jones on cross-examination, however, he failed to do so.
Therefore, I find that this does not merit reversal.
B. Mitigating Factors.
1. Psychological Testing.
¶163. In Hodges v. State, 912 So. 2d 730, 758-59 (Miss. 2005), this Court set forth the
standard of review for ineffective assistance of counsel as follows:
Where ineffective assistance of counsel is alleged, "the benchmark [] must be
whether counsel's conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just
result." Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064,
80 L. Ed. 2d 674 (1984). In addition, the defendant must show that the
counsel's performance was deficient and that the deficiency prejudiced the
defense of the case. Id. at 687, 104 S. Ct. 2052. In order to show prejudice
under the Strickland standard, the [defendant] must show "that there is a
reasonable probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome." Id. at 694,
104 S. Ct. at 2068. A defendant must make both showings under Strickland,
otherwise, "it cannot be said that the conviction or death sentence resulted
from a breakdown in the adversary process that renders the result unreliable."
Jones v. State, 857 So. 2d 740, 745 (Miss. 2003) (quoting Stringer v. State,
454 So. 2d 468, 477 (Miss. 1984)).
Hodges, 912 So. 2d at 758-59. This Court also held:
During trial counsel must make strategic discretionary decisions including
whether or not to file certain motions, call certain witnesses, ask certain
questions, or make certain objections. In gauging counsel's performance, we
must make every effort "to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel's challenged conduct, and to evaluate
the conduct from counsel's perspective at the time."
Id. (citations omitted).
¶164. The majority holds that there was ineffective assistance of counsel. In this regard,
the majority finds that in a post-conviction psychological examination conducted at the
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Mississippi State Hospital at Whitfield, some potential mitigating factors were discovered
such as physical abuse, mental abuse, alcohol abuse, and visual and auditory hallucinations.
In addition, evidence presented at the competency hearing indicated that Ross was taking
anti-psychotic medication and depression medication at the time of the evaluation.
Furthermore, the majority finds that Ross and his mother testified about the death of Ross’
ex-wife and four children in a car crash in 1984 and the murder of Ross’ sister in 1982, yet
defense counsel failed to show how these events psychologically affected Ross. The
majority finds that the defense’s failure to investigate Ross’ psychological problems
amounted to ineffective assistance of counsel.
¶165. Ross also cites to numerous places at the competency hearing, which was conducted
after Ross’ trial and imposition of the death penalty, where his trial counsel described Ross
as “stupid” and “thick headed.” 9
9
The testimony of Chris Kitchens, Ross’ trial counsel, at the competency hearing
reveals that Ross has taken Kitchens’ statements of “stupid” and “thick headed”out of
context. Kitchens stated that Jim Pannell, co-counsel, Ross, and he considered there to be
a problem with the issue of proof. Since they questioned the State’s ability to prove the case,
the best defense for Ross was to attack any proof of Ross’ guilt. They considered other
alternatives; however, Ross was “adamant” that he was not guilty and not crazy. Kitchens
indicated that this was the trial strategy for Ross’ case, and based on Kitchens’ testimony that
Ross amply participated and gave his opinion on various aspects of his case.
Kitchens did call Ross “slow” and “thick headed.” Kitchen, on cross-examination,
made it clear that he thought Ross was difficult person to deal with because Ross had his own
ideas about the case. As far as Ross being stupid or thick headed, Kitchens stated:
Well, like I say the best way I can answer that question is we thought that we
actually had a shot at the innocence or guilt or innocence. Charles [Ross] was
thick headed. You might even say stupid as far as trying to tell him something,
you know he would argue with you because he knew better than you did. And
I think that’s going back to the argument that him and Jim Pannell had. That
was basically it. He was telling Jim no that’s not the way to do this or
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In Hodges, this Court held:
Strickland does not require counsel to investigate every conceivable line of
mitigating evidence no matter how unlikely the effort would be to assist the
defendant at sentencing. Nor does Strickland require defense counsel to
present mitigating evidence at sentencing in every case. Both conclusions
would interfere with the "constitutionally protected independence of counsel"
at the heart of Strickland, 466 U.S. at 689, 104 S. Ct. 2052. We base our
conclusion on the much more limited principle that "strategic choices made
after less than complete investigation are reasonable" only to the extent that
"reasonable professional judgments support the limitations on investigation."
Id. at 690-691, 104 S. Ct. 2052. A decision not to investigate thus "must be
directly assessed for reasonableness in all the circumstances." Id. at 691, 104
S. Ct. 2052.
Hodges, 912 So. 2d at 764.
¶166. Turning to the mitigating evidence presented during the sentencing phase of the trial,
Ross’ mother, Nellie Bracken, testified on his behalf. She stated that Ross’ paternal
grandmother watched Ross while she worked to support her children. She stated that Ross’
grandmother “treated him bad.” His grandmother used to lock Ross in a closet while his
other siblings were playing. Bracken stated that Ross was scared of the dark closet, and his
grandmother knew it. Bracken stated that she thought this treatment made Ross frightened,
worried, and he would “go to pieces” when she had to leave him everyday.
¶167. Bracken also stated that Ross’ father, Willie Ross, was not part of Ross’ life, provided
whatever. And me and Jim were both pretty much ringing [sic] our hands and
Jim is more out spoken than I am and they finally got into a fuss about it.
Kitchens also made it clear that Ross understood the trial process. Kitchen thought that Ross
answered questions appropriately; he was competent; he had his own opinion; but Ross did
not provide the best assistance to Kitchens and Pannell. Therefore, Ross’ assertions are
without merit.
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no support for his children, and would beat Bracken and her children when he was present.
Even though Bracken testified that Ross had a hard time in school and dropped out at age
fourteen, he earned a G.E.D. and became a plumber while he was in prison. She also stated
that Ross drank beer. When he drank beer, she stated that “it would mess up his mind.”
Often, Ross would do and say things while drinking that were wrong, and he later apologized
for his actions.
¶168. Bracken also stated that Ross’ ex-wife and three young sons were killed by a train in
Arkansas more than eight years ago. The defense counsel then asked:
Q. And how did that affect him?
A. Rough.
Q. Did he have to go in the hospital or anything like that after that?
A. No. We took care of him. We talked to him and helped him through it.
We helped him through it, but he will be affected with it as long as he
lives.
The defense counsel also questioned Bracken about the violent death of her child and Ross’
sister. Bracken stated that her daughter was shot in the back by a shotgun. She described the
impact that this death had on Ross as being “awful.”
¶169. When questioned about Ross’ ability to know right from wrong, Bracken stated that
she did not believe that Ross “has got the know how sometimes.” She attributed this
difficulty to “probably alcohol and the way he was treated in his lifetime.” According to
Bracken, alcohol was “a big part” of Ross’ problems. Bracken acknowledged that Ross
sometimes became violent and “ran off” family members when he was drinking. Ross later
apologized for his actions. In addition, Bracken stated that she had heard that he was moved
to a different prison for trying to escape, but Ross never told her why he was moved. The
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prosecution alluded to a number of other instances where Ross allegedly behaved badly in
prison; however, defense counsel objected to all these questions, and the trial court sustained
them.
¶170. Howard Edward Jones, a prison minister, also spoke on Ross’ behalf at the sentencing
hearing. He stated that he believed Ross knew right from wrong. Former Sheriff Leroy
Meeks also testified on Ross’ behalf. He stated that he was the first law enforcement person
to take Ross into custody when Ross was arrested for armed bank robbery. While Meeks did
not know if Ross threw away any shotgun shells, the shotgun that the police recovered at the
time of Ross’ arrest was not loaded. In addition, Meeks stated that Ross never discharged
any bullets during the robbery.
¶171. Ross testified at the sentencing hearing about his life and background. He confirmed
his mother’s testimony that his grandmother beat him and locked him in a closet. In addition,
he told the jury about the deaths of his ex-wife and his children. He stated that he had never
gotten over the deaths of these family members. He also testified about his drinking habits.
While he did not consider himself to be an alcoholic, he stated “[m]ost people would say I
am [an alcoholic]. I would say I ain’t, but that’s the way most alcoholics would react to
that.” He also described his behavior while in prison and admitted to making alcohol in
federal prison.
¶172. Clearly, the jury heard testimony regarding Ross’ physical and mental abuse as a
child. In addition, the jury heard about Ross’ drinking problem that he acknowledged most
people would consider to be alcoholism. Ross and his mother testified to the effect the death
of his ex-wife and young sons had on him. Ross’ mother also told the jury the effect that the
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death of her daughter and Ross’ sister had on him. Ross’ mother stated that while Ross was
had difficulty with school, he eventually earned his G.E.D. while in federal prison and
learned to be a plumber. Ross’ counsel adequately presented mitigating circumstances
testimony. Therefore, I find this issue to be without merit.
2. Inmate Behavior.
¶173. Ross also argues that his counsel was ineffective for portraying him as a good prisoner
in opening statements when his trial counsel “apparently” did not know about his prior prison
behavior. Specifically, Ross cites to his testimony to the jury at the sentencing phase of trial
about making alcohol and getting drugs in prison. Ross, however, failed to acknowledge his
own unsolicited elaboration on aspects of his prison behavior. At the competency hearing,
Kitchens, Ross’ former trial co-counsel, testified concerning Ross’ prison behavior. Kitchens
stated “me and Jim [Pannell] almost fell through our seat when he said that.” However,
examining the record, Kitchens made clear that the statement was because he and Pannell,
Ross’ co-counsel, were surprised that Ross made harmful statements to the jury about himself
about making alcohol in prison, not that they had no prior knowledge of Ross’ behavior. The
quote Ross forth in his brief was taken out of context. Kitchens actually stated:
If I can I know one point [Ross] volunteered on the sentencing phase that he
could make like homemade wine or something like that or get any drugs he
wanted to in prison and, you know of course me and Jim about fell through our
seat when [Ross] said that. That obviously did not help him any. I don’t think
in [the] sentencing hearing.
A review of Ross’ testimony concerning mitigating evidence reveals that on cross-
examination Ross admitted to making alcohol and then volunteered information about being
able to obtain drugs and alcohol in prison. Defense counsel did not elicit this response.
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Therefore, Ross’ claim that his counsel provided ineffective assistance of counsel is taken
out of context and is without merit.
II. Cumulative Error.
A. Prosecutor’s Closing Statement.
¶174. The majority holds that the prosecutor made inappropriate references in closing
arguments linking Ross’ alleged presence to the scene of the crime. While the majority holds
that this error may not have prejudiced Ross enough to require reversal in Issue III, the
majority in Issue XII, concerning cumulative error, held that the prosecution’s use of
information not in evidence in his closing argument warranted reversal.
¶175. This Court has held that ‘[a]ttorneys are allowed wide latitude in closing arguments”
and “[t]he trial judge is in the best a [sic] position to determine if an alleged objectionable
remark has a prejudicial effect.” Howell, 860 So. 2d at 751.
¶176. Ross cites to two instances in the record where he claims that the prosecution argued
facts not in evidence during the closing arguments. A review of the record reveals that there
was no error, and the issue is without merit. Former Sheriff Mauney testified that Ross was
not at the scene of the crime. However, he explained that Ross’ name was on Mauney’s
crime scene sign-in sheet because a number of the witnesses present at the scene stated that
Ross had been in the vicinity the prior day. Mauney wrote Ross’ name on the sign-in sheet
as a personal note to himself so that he would not forget it.
¶177. On the first occasion of alleged prosecutorial misconduct, the record reveals that Ross
objected to the prosecution’s statement and the trial judge instructed the jury to disregard the
prosecutor’s statement, thus curing any alleged error. On the second occasion, Ross failed
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to make a contemporaneous objection to the prosecutor’s statement. In Rubenstein v. State,
941 So. 2d 735, 755 (Miss. 2006), this Court held that “[t]he contemporaneous objection rule
applies in death penalty cases.” Therefore, this now is procedurally barred on appellate
review. However not waiving the procedural bar, the prosecutor’s second statement, when
read in context, merely informed the jury of the first time that Ross’ name came up in the
investigation.
In the first instance, the prosecution stated in part:
[STATE]: There has been no dispute that Gary Mauney went out to
the scene of the crime and was making notes – he was
the sheriff then – as far as who was there and things like
that. At that time he received information that this
defendant was seen in the area that day, no dispute of
that.
There’s been no dispute –
[DEFENSE]: I don’t mean to interrupt, but he’s arguing outside the
scope of the evidence.
[COURT]: Any statement or remark that doesn’t have any basis in
the evidence, the Court instructed the jury to disregard.
You can continue, Mr. Luther.
This Court has held that “[w]hen the trial court sustains an objection and admonishes the jury
to disregard the statement, there is usually no error, ‘absent unusual circumstances.’" Caston
v. State, 823 So. 2d 473, 494 (Miss. 2002) (citing Pulphus v. State, 782 So. 2d 1220, 1223
(Miss. 2001)).
¶178. Furthermore, the trial court instructed the jury that any remarks by counsel are
instructive only and not evidence. Jury instruction C-1 stated in part:
Arguments, statements, and remarks of counsel are intended to help you
understand the evidence and apply the law, but are not evidence. Any
argument, statement, or remark having no basis in the evidence should be
disregarded by you.
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¶179. On the second occasion, Ross failed to object to the alleged reference to facts not in
evidence. When reading the statement in context, it is clear that the prosecution’s statements
merely address the first time that Ross’ name was mentioned in the investigation, not his
actual whereabouts. The prosecution stated:
One thing [Gary Mauney] had done at the scene – no person that they were
accusing like Margaret Ann Jones or anybody had told them anything about
a fellow by the name of Charles Ross; but on Gary’s note down at the bottom
where he’s at the crime scene taking a list of all the folks standing around out
there looking, he writes down the name Charles Ross. That is Saturday
morning after Ray Yancey was killed. That’s the first thing we hear about
Charles Ross.
In Scott v. State, 878 So. 2d 933, 953 (Miss. 2004), overruled on other grounds, this Court
held:
“Heightened appellate scrutiny in death penalty cases does not require
abandonment of our contemporaneous objection rule which applies with equal
force to death cases. For many years this Court has held that trial errors cannot
be raised in this Court for the first time on appeal." Williams v. State, 684 So.
2d 1179, 1203 (Miss. 1996). "If no contemporaneous objection is made, the
error, if any, is waived. This rule's applicability is not diminished in a capital
case." Cole v. State, 525 So. 2d 365, 368 (Miss. 1988) (citations omitted).
See also Rubenstein, 941 So. 2d at 755 (“The contemporaneous objection rule applies in
death penalty cases. Therefore, any issue to which Rubenstein failed to object is
procedurally barred”) (citations omitted). In addition, as addressed above, the trial court
properly instructed the jury in jury instruction C-1 that any remarks by counsel “having no
basis in the evidence should be disregarded” by the jury. Accordingly, I find that there was
no prosecutorial misconduct.
B. Martindale – Tainting of the Venire.
¶180. The majority addresses two statements a potential venire person made during voir
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dire. This potential juror, Wanda Martindale, was subsequently struck and did not sit on the
jury. Martindale stated that “I’ve testified against [Ross] in federal court” and indicated that
she would be biased by this fact. Later, Martindale also stated that “I was the victim of a
crime.”
¶181. The majority opinion in Issue I, Section A, finds that it has no basis to determine if
Martindale’s first statement that “I’ve testified against [Ross] in federal court” was
prejudicial since there was no objection and no record on the issue. In Issue IV, Section A,
concerning ineffective assistance of counsel, the majority finds no ineffective assistance of
counsel. Instead, the majority finds that defense counsel should have conducted a cursory
inquiry into the identity of the venire panel, and that the failure to remove Martindale before
her second statement could not be considered trial strategy. Despite these findings, the
majority states that the actions of Ross’ trial counsel likely fell below an objective standard
of reasonableness and thereby constituted error even though it cannot claim that Ross
suffered prejudice. Pursuant to the majority’s findings, Ross failed to meet the Strickland
standard. Hodges v. State, 912 So. 2d at 758-59.
¶182. Under the Strickland standard, if the actions of the defense counsel do not ultimately
result in prejudice, there is no ineffective assistance of counsel. Hodges, 912 So. 2d at
758-59. Nevertheless, the majority, in Issue XII concerning cumulative error, finds that
defense counsel’s failure to explore the possible tainting of the venire amounted to a reason
to reverse on cumulative error.
¶183. Notwithstanding the majority’s analysis, I find no error. As for Martindale’s first
statement, she was struck from the venire and never sat as a juror. Martindale simply stated
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that she testified against Ross in federal court without any further explanation. Martindale
also never specified whether she testified against Ross in a criminal or civil case in federal
court. Therefore, the other prospective venire persons had no knowledge of Ross’ federal
criminal record during voir dire.
¶184. Martindale’s second statement was that she was a victim of a crime and would be
biased by this fact. This statement alone is not egregious and is a common question asked
most venire persons in voir dire. Martindale did not state that she was a victim of a crime
committed by Ross. She simply stated that she was a victim of a crime, which did not inform
the rest of the venire of any potential connection between Martindale and Ross. Accordingly,
I find this issue without merit.
C. Exclusion of the Ballistics Report.
¶185. The majority finds the exclusion of the ballistics report does not merit reversal by
itself. However, under a cumulative error analysis, the majority finds that the exclusion of
the ballistics report and the jury’s inability to have the tangible document warrants reversal
of the conviction. I disagree.
¶186. Ross wanted the ballistics report to be admitted into evidence in order to refer to it in
closing arguments or for impeachment. Whether the report was in evidence made no
difference to Ross’ ability to reference the ballistics report in his closing statement. In
addition, Ross’ counsel more than adequately cross-examined law enforcement and the
ballistics expert concerning the report. Officer Wilbanks testified concerning the crime lab
results. The police requested latent fingerprint analysis of the of the gun and provided Ross’
fingerprints. Officer Wilbanks stated the report results were that “no identifications were
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effected” meaning nothing could be positively identified. John Franovich, the crime lab
ballistics expert, read the ballistics report results to the jury. The test results stated that the
recovered bullets could not be positively identified as being fired from the recovered gun.
In other words, Franovich stated that he could not positively say the bullets were fired from
the recovered gun, nor could he exclude the possibility that the bullets were fired from
another gun.
¶187. Both of Ross’ defense attorneys, Kitchens and Pannell, argued closing statements
before the jury. Both of the attorneys specifically referenced the failure to positively link the
recovered gun to the bullets. Mr. Kitchens stated, in part:
There were no fingerprints of Charles Ross on this gun, on these beer cans, on
this TV, on that VCR. There was not a positive ballistics match on this gun.
You heard Mr. Franovich, although it was sort of funny when Jim [Pannell]
said, “You went to Delta State”; and he said, “No, I didn’t,” sort of funny; but
he couldn’t squirm out of the fact that he could not positively identify this gun
as being the murder weapon. He couldn’t do it.
Mr. Pannell, in his portion of Ross’ closing argument, also referenced the fact that Ross
allegedly threw the gun away, yet Ross’ fingerprints were not found on the gun. In addition,
Ross’ counsel also stated that there was nothing to identify the bullets as coming from the
gun.
¶188. Therefore, the jury was made aware of the fact that the report was inconclusive as to
fingerprints and there was no match of the recovered gun to the gun used in the murder. Ross
made no showing of prejudice by the exclusion of the report. Accordingly, I find this issue
without merit.
III. Other Issues.
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A. Herbert Wells – Police Investigatory Techniques.
¶189. The majority finds that the trial court did not err by excluding the testimony of Herbert
Wells with regard to the police investigatory techniques.10 I agree. The majority finds that
Wells’ proffered testimony on police investigatory techniques failed to establish the
reliability of his testimony pursuant to Daubert and McClemore. I find, in the alternative,
that a review of the record reveals in this case that testimony concerning police investigative
techniques was placed before the jury by other witnesses, which gives Ross’ argument less
credence and absolutely demonstrates that Ross was not prejudiced by the exclusion of
Wells’ proffered testimony.
¶190. The record reveals that Ross never attempted to admit Wells’ report into evidence.
Furthermore, the record reveals that all of Wells’ proffered testimony, and more, was
presented to the jury through other witnesses. In his proffered testimony, Wells testified
generally about the police techniques. In his prior experience, Wells had been responsible
for control and analysis of a number of crime scenes. Wells testified that too many non-law
enforcement personnel were present at the crime scene without a lawful purpose. In addition,
Wells stated that the evidence could have been either accidentally or intentionally disturbed
by the large number of non-law enforcement personnel present at the scene. According to
documents reviewed by Wells, Ross’ fingerprints were the only prints submitted for
10
The record reveals that Ross attempted to have Wells qualified as an expert in the
field of criminal investigation. The State objected to Wells being qualified as an expert. The
trial court never specifically qualified Wells as an expert. Instead, the trial court stated that
Wells would not be allowed to testify concerning his expert opinion on investigation, police
techniques, and other matters.
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comparison results. However, Wells stated that there were no comparison or results for any
of the latent finger prints submitted. In his experience as a law enforcement officer, Wells
testified that fingerprints for each individual involved would be submitted for comparison.
Further, Wells stated that he would not arrest someone based upon a tip provided by person
with unknown credibility. Wells stated that prior to making an arrest, he would investigate
the background of a witness who provided information to him.
¶191. The State objected to Wells’ testimony and expert report based on discovery
violations of U.R.C.C.C.P. Rule 4.04(a) and Rule 9.04(c)(3). The trial court excluded Wells’
testimony on police techniques and stated:
Do you intend to offer the testimony? Court had asked you to make this offer
out of the presence of the jury, because Court had told you here at the bench
I’m not going to let this witness testify concerning an expert opinion on the
investigation, the technique, the procedure, this type thing, of this
investigation; so that’s all out.
The record reveals that Ross’ defense counsel admirably placed the issue of
problematic police techniques before the jury. Ross’ counsel cross-examined a number of
law enforcement personnel and presented the jury with the same concerns that were set forth
in Wells’ proffered testimony. Chief of Police Wilbanks, formerly Chief Deputy Wilbanks,
testified that a number of people were present at the scene. The police requested the crime
lab to test for latent fingerprints on the television, gun, front door of Yancey’s house, and
various other items in Yancey’s home. Officer Wilbanks stated that the crime lab results
showed that none of Ross’ fingerprints were positively identified on any of these items.
Officer Wilbanks also testified that no fingerprints of Donald Ross, Jr.; Jerry Sanders;
Margaret Jones; and Tommy Hale were sent to the crime lab for a comparison.
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¶192. Officer Wilbanks collected evidence in Yancey’s home. He acknowledged that he had
training to not disturb evidence as it is being collected and did not collect any items with his
bare hands. Officer Wilbanks stated that he did not take a skin sample from Ross to
determine if he had fired a gun within a week of his arrest. Officer Wilbanks also stated that
he did not take Margaret Jones’ or Tommy Hale’s statement, that he did not know these
witnesses, and that he did not perform a criminal record search on them.
¶193. Gary Mauney, then Police Chief of Tippah County, testified that information provided
by witnesses has to be “checked out.” Officer Mauney stated that the police sometimes have
been given false information. Joseph Kellum, a crime lab forensic scientist, stated that he
complied with standard operating procedures.
¶194. Clearly, defense counsel questioned other witnesses about police investigation
techniques. The testimony of Officers Wilbanks and Mauney covered all of the issues that
Wells raised in his proffered testimony. Therefore, the jury had an opportunity to hear
testimony about police techniques, and there is no error.
B. Weight of the Evidence.
¶195. The majority goes to great lengths to demonstrate inconsistences in witness testimony
and circumstantial evidence. On the one hand, the majority finds the contradictory testimony
of various witnesses, particularly Jones’ testimony, to be untrustworthy. In addition, the
majority finds the circumstantial evidence to be troubling. Nonetheless, the majority finds
that the trial court did not err, and a new trial is not warranted on this basis alone.
¶196. In Bush v. State, 895 So. 2d 836, 844 (Miss. 2005), this Court stated the standard of
review for the weight of the evidence. “[W]e will only disturb a verdict when it is so
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contrary to the overwhelming weight of the evidence that to allow it to stand would sanction
an unconscionable injustice.” Id. The issues of weight of the evidence and credibility of
witnesses are clearly within the province of the jury. In Stephens v. State, this Court held:
Jurors are permitted, and indeed have the duty to resolve the conflicts in the
testimony they hear. Gandy v. State, 373 So. 2d 1042, 1045 (Miss. 1979).
Any conflicts in the testimony of witnesses is the province of the jury.
Groseclose v. State, 440 So. 2d 297, 300 (Miss. 1983). Who the jury believes
and what conclusions it reaches are solely for its determination. As the
reviewing court, we cannot and need not determine with exactitude which
witness(es) or what testimony the jury believed or disbelieved in arriving at its
verdict. It is enough that the conflicting evidence presented a factual dispute
for jury resolution. Id. at 300.
Stephens v. State, 911 So. 2d 424, 436 (Miss. 2005). In Howell, another death penalty case,
this Court addressed the role of the jurors when confronted with conflicting witness
testimony. Howell, 860 So. 2d at 731. This Court held:
[T]his Court has repeatedly held that "the jury is the final arbiter of a witness's
credibility." See Williams v. State, 794 So. 2d 1019, 1028 (Miss. 2001);
Morgan v. State, 681 So. 2d 82, 93 (Miss. 1996). The jury alone determines
the weight and worth of any conflicting testimony. Hicks v. State, 812 So. 2d
179, 194 (Miss. 2002).
Howell, 860 So. 2d at 731. Further, this Court also has held:
This Court has in numerous cases, too many to mention, said that when the
evidence is conflicting, the jury will be the sole judge of the credibility of
witnesses and the weight and worth of their testimony. This wise rule applies
with equal force to the state's witnesses and the appellant's witnesses, including
the appellant himself. We have repeatedly held that in a criminal prosecution
the jury may accept the testimony of some witnesses and reject that of others,
and that they may accept in part and reject in part the evidence on behalf of the
state or on behalf of the accused. In other words, the credibility of witnesses
is not for the reviewing court.
Hughes, 735 So. 2d at 276-77 (citations omitted). This Court presumes that juries follow the
instructions provided to them by the trial court, and to find otherwise would make the jury
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system inoperable. Howell, 860 So. 2d at 733. This Court "also held that “[c]ircumstantial
evidence need not exclude every 'possible doubt,' but only every other 'reasonable' hypothesis
of innocence." Neal v. State, 805 So. 2d 520, 526 (Miss. 2002) (quoting Tolbert v. State,
407 So. 2d 815, 820 (Miss. 1981)).
¶197. Here, the trial court properly instructed the jury concerning the weight and credibility
of the witnesses. Jury instruction C-1 stated, in pertinent part, the following:
It is your duty to determine the facts and to determine them from the evidence
produced in open court. You are to apply the law to the facts and in this way
decide the case. You should not be influenced by bias, sympathy, or prejudice.
Your verdict should be based on the evidence and not upon speculation,
guesswork, or conjecture.
You are the sole judges of the facts. Your exclusive province is to determine
what weight and what credibility will be assigned the testimony and supporting
evidence of each witness in this case. You are required and expected to use
your good common sense and sound honest judgment in considering and
weighing the testimony of each witness who has testified in this case.
¶198. Ross’ jury had the opportunity to hear conflicting testimony as well as the
circumstantial evidence presented at trial. Pursuant to Mississippi precedent, this Court
presumes that the jury followed the instructions of the court. Accordingly, I find this issue
to be without merit.
CONCLUSION
¶199. For the foregoing reasons, I respectfully dissent with the majority opinion. I would
affirm the conviction and death sentence imposed on Charles Wayne Ross by the Tippah
County Circuit Court jury.
CARLSON, J., JOINS THIS OPINION.
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Charles Wayne Ross v. State of Mississippi
Combined Opinion