Bell v. State

725 So.2d 836

Frederick BELL v. STATE of Mississippi.

No. 93-DP-00189-SCT.

Supreme Court of Mississippi.

June 25, 1998.

As Modified December 14, 1998.

Rehearing Denied December 17, 1998.

Leland H. Jones, III, Greenwood, Attorney for Appellant.

Michael C. Moore, Attorney General, Marvin L. White, Jr., Asst. Atty. Gen., Jeffrey A. Klingfuss, Special Asst. Atty. Gen., Attorneys for Appellee.

EN BANC.

PITTMAN, Presiding Justice, for the Court:

¶ 1. Frederick Bell, known as Freddie, was convicted in the Circuit Court of Grenada County of the capital murder of Robert C. "Bert" Bell and was sentenced to death. Now before us is his appeal of that conviction and sentence. We have carefully considered this appeal and the specific points raised in Bell's briefs, and have reviewed the record in the case for plain and cumulative errors which may have impacted on his right to a fair trial, the conviction and the sentence. We find none and affirm both the conviction and the sentence.

¶ 2. Frederick Bell and Anthony Joe Doss were indicted on July 19, 1991, for murdering Robert C. "Bert" Bell¹ with malice aforethought while in the commission of the crime of armed robbery, in violation of Miss.Code Ann. § 97-3-19(2)(e) on or about May 6, 1991. Following a trial, on January 26, 1993, the jury rendered its verdict as follows:

We, the jury, unanimously find from the evidence beyond a reasonable doubt that the following facts existed at the time of the commission of the capital murder:

1) That the defendant, Frederick Bell actually killed Robert C. "Bert" Bell.

2) That the defendant, Frederick Bell, attempted to kill Robert C. "Bert" Bell.

3) That the defendant, Frederick Bell, intended the killing of Robert C. "Bert" Bell take place.

4) That the defendant, Frederick Bell, contemplated that lethal force would be employed during the commission of the crime of armed robbery.

Next, We, the jury, unanimously find that the aggravating circumstances of:

1) Whether defendant, Frederick Bell, was previously convicted of another capital offense or of a felony involving the use or threat of violence to the person.

2) Whether the capital murder of Robert "Bert" Bell was committed while the defendant was engaged or was an accomplice in the commission of armed robbery.

3) The capital murder of Robert "Bert" Bell was committed for the purpose of avoiding or preventing a lawful arrest.

is/are sufficient to impose the death penalty and that there are insufficient mitigating circumstances to outweigh the aggravating circumstance(s), and we further find unanimously that the Defendant should suffer death.

THE FACTS

¶ 3. Sparks' Stop-and-Go is a small grocery store on Cadaretta Road in rural Grenada County. Until the afternoon of May 6, 1991, Bert Bell worked in the store as a clerk. The State's presentation was to the effect that early that afternoon Frederick Bell, Anthony Joe Doss, Robert Kennedy James and Frank Coffey left Coffey's house for the short journey up to Sparks'. Testimony showed that the four of them entered Sparks' and purchased some chips and beer from Bert Bell. They went outside, sat on a picnic table, drank the beer and ate the chips. Bell talked of going to Memphis and said that he needed some money. As they talked, he announced he was going to rob the store and showed the group a .22 caliber pistol which he had in his possession. Doss also had a gun at this point, but, apparently, it would not fire. James and Coffey testified that they refused to take part in the action and departed the scene as Bell and Doss went in the store. A minute or so later, James and Coffey heard gunshots and hollering.

¶ 4. When Bell and Doss caught up with the other two, they showed them a .38 caliber pistol which they had taken from the store along with a box of bullets and a money bag. At this point, Bell threatened to kill James because he did not want any witnesses. Coffey and Doss stepped in to prevent this. Both James and Coffey testified that Bell said he shot Bert.

¶ 5. After the incident Bell, Doss and Coffey were taken to Memphis by Bernard Gladney. On the way to Memphis, Bell again said he wanted to kill James to prevent him from telling anyone about the Grenada murder. According to the criminal investigator in charge, two of the guns were recovered from the house where Bell was found in Memphis. The third was found in Gladney's vehicle. ¶ 6. There was no direct testimony concerning what actually went on in the store, although there was physical evidence offered by the State. The foregoing narrative is based principally on the testimonies of James and Coffey. Bell maintained at trial and in statements to investigators that he was in Memphis on the day of Bert's murder. There were no corroborating witnesses as to Bell's alibi, and in fact James' sister and Coffey's girlfriend testified that they saw Bell with the rest of the men in Grenada on the day of the tragedy.

¶ 7. James Shelby Sparks, who owned the grocery, testified that the .38 caliber gun, which was recovered following Bell's arrest in Memphis, a box of shells, and an old money bag were taken from the store during the robbery. The State also showed by ballistic evidence that bullets removed from Bert's body were fired from that gun. The remaining wounds were caused by bullets of a smaller caliber matching the characteristics of a .22. The criminal investigators could not match any of the fingerprints found in the store to Bell.

THE ISSUES PRESENTED

¶ 8. In this appeal, Frederick Bell presents sixteen issues for consideration in reviewing the guilt phase of his trial and eleven as to the sentencing phase. Those issues, as stated by the appellant, are as follows.

GUILT PHASE ISSUES

I. THE VOIR DIRE WAS INADEQUATE TO REVEAL JUROR PREJUDICE WITH THE RESULT THAT BELL WAS DENIED A FAIR AND IMPARTIAL TRIAL AND SENTENCING JURY

A. The jury had disproportionate ties to the victim or law enforcement.

B. Use of leading questions

C. Juror self-assessments

D. Lack of individual voir dire

II. THE TRIAL JUDGE ERRONEOUSLY DENIED BELL'S CHALLENGES FOR CAUSE TO FIVE JURORS.

III. THE TRIAL COURT COMMITTED PLAIN CONSTITUTIONAL ERROR IN EXCUSING WOMEN FROM THE JURY SOLELY BECAUSE THEY HAD SMALL CHILDREN.

IV. THE COURT ERRED IN GIVING INSTRUCTIONS NO. S-2 AND S3 WHICH ALLOWED BELL TO BE CONVICTED OF CAPITAL MURDER ON FACTS SHOWING ONLY THAT HE WAS AN ACCESSORY AFTER THE FACT.

V. BELL'S CONVICTION MUST BE REVERSED BECAUSE INSTRUCTION S-2 IMPROPERLY ASSUMES THAT A MURDER HAD BEEN COMMITTED.

VI. THE TRIAL COURT ERRED IN REFUSING DEFENDANT'S REQUESTED JURY INSTRUCTION DG-14 WHICH WOULD HAVE TOLD THE JURY TO CONSIDER THE EVIDENCE OF ROBERT JAMES WITH GREAT CARE AND CAUTION.

VII. THE TRIAL COURT ERRED IN REFUSING DEFENDANT'S REQUESTED JURY INSTRUCTIONS DG-12 AND DG-15 ON THE EFFECT OF IMPEACHED TESTIMONY AND DG-16 ON THE EFFECT OF A PRIOR INCONSISTENT STATEMENT.

VIII. THE COURT COMMITTED REVERSIBLE ERROR IN PROHIBITING BELL FROM IMPEACHING ACCOMPLICE FRANK COFFEY FOR BIAS WITH EVIDENCE THAT HE HAD RECEIVED LENIENT TREATMENT ON A MURDER CHARGE IN MEMPHIS.

IX. THE COURT ERRED IN ALLOWING EVIDENCE THAT THE PROSECUTOR TOLD COFFEY TO TELL THE TRUTH.

X. THE TRIAL COURT ERRED IN OVERRULING BELL'S OBJECTION TO EVIDENCE THAT HE WAS GUILTY OF ANOTHER OFFENSE.

XI. PROSECUTORIAL MISCONDUCT IN THE CLOSING ARGUMENT IN THE GUILT PHASE MANDATES REVERSAL.

A. Good character of the victim

B Threat to James

C. Lack of remorse

D. Personal opinion and facts not in evidence

XII. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN OVERRULING BELL'S MOTION FOR AN EXPERT.

XIII. THE COURT ERRED IN OVERRULING BELL'S OBJECTION TO EXPERT TESTIMONY ABOUT THE POSITION OF THE DECEASED'S HANDS AT THE TIME A WOUND WAS RECEIVED.

XIV. THE COURT ERRED IN DENYING BELL'S REQUEST TO INSTRUCT ON THE LESSER INCLUDED OFFENSE OF SIMPLE MURDER.

XV. THE COURT COMMITTED PLAIN ERROR IN GIVING INSTRUCTION S-1 AT THE GUILT PHASE WHICH CONSTRUCTIVELY AMENDED THE INDICTMENT.

XVI. THE ADMISSION OF GRUESOME PHOTOGRAPHS OF THE DECEASED DEPRIVED BELL OF A FAIR TRIAL.

SENTENCING PHASE ISSUES

XVII. THE TRIAL COURT COMMITTED PLAIN ERROR IN GRANTING SENTENCING PHASE INSTRUCTION S-1.

A. No evidence to support aggravator that the offense was committed after Bell had previously been convicted of another capital offense.

B. Instructing that the aggravating circumstance that the capital murder was committed during the course of a robbery could be found if the jury found Bell was an "accomplice in the commission of armed robbery."

C. Allowing the jury to consider the aggravating circumstance of "avoiding or preventing a lawful arrest" where the evidence did not support giving that aggravator.

D. Failure to define "avoiding or preventing a lawful arrest" as an aggravating circumstance.

E. S-1 is erroneous because it has a signature line only under the death option.

F. The instruction also allows for double-counting of the robbery aggravating circumstance.

G. S-1 should not have been granted because it fails to require the jury to make specific written findings of mitigating circumstances.

H. S-1 was erroneously granted because it tells the jury that the mitigating circumstances must outweigh the aggravating circumstances in order to impose a life sentence.

XVIII. BELL'S SENTENCE MUST BE REVERSED BECAUSE THE TRIAL JUDGE DENIED HIS REQUEST TO INSTRUCT THE JURY THAT THE STATE HAD THE BURDEN OF PROVING THAT THE AGGRAVATING CIRCUMSTANCES OUTWEIGHED THE MITIGATING.

XIX. THE JURY FINDINGS ON SENTENCE ARE TOO UNCERTAIN AND UNRELIABLE TO SUPPORT A DEATH SENTENCE.

XX. CUMULATIVE ERROR IN THE PROSECUTOR'S ARGUMENT IN THE SENTENCING PHASE REQUIRES REVERSAL.

XXI. THE TRIAL COURT COMMITTED REVERSIBLE ERROR AT THE SENTENCING PHASE IN ALLOWING TESTIMONY ABOUT BELL'S REPUTATION FOR PEACE AND VIOLENCE WHEN BELL HAD NOT PUT THAT REPUTATION AT ISSUE AND IN ALLOWING THE PROSECUTOR TO ARGUE THAT IT SHOULD BE USED AS AN AGGRAVATING CIRCUMSTANCE.

XXII. THE TRIAL COURT ERRED IN

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