Wilcher v. State , 697 So. 2d 1123 ( 1997 )

697 So.2d 1123 (1997)

Bobby Glenn WILCHER
v.
STATE of Mississippi.

No. 94-DP-00761-SCT.

Supreme Court of Mississippi.

March 13, 1997.

William T. May, Logan & May, Newton, for Appellant.

Michael C. Moore, Attorney General, Marvin L. White, Jr., Leslie S. Lee, Jeffrey A. Klingfuss, Sp. Asst. Attorneys General, Jackson; Ken Turner, District Attorney, Philadelphia, for Appellee.

En Banc.

PRATHER, Presiding Justice, for the Court:

INTRODUCTION

This capital murder case is presently before this Court on direct appeal from a 1994 resentencing trial that resulted in Bobby Glenn Wilcher's second death sentence for the 1982 murder and robbery of Katie Belle Moore, age forty-five. The case arises out of the gruesome double murder and robbery of Velma Odell Noblin and Katie Belle Moore. The evidence reflects that Bobby Glenn Wilcher, age nineteen, met his two female victims at a Scott County bar on the night of March 5, 1982. When the bar closed at midnight, Wilcher persuaded the women to take him home. Under this pretext, he directed the women down a deserted service road in the Bienville National Forest — where he robbed and brutally murdered the women by stabbing them a total of forty-six times.

Thereafter, Wilcher was stopped for speeding by the Forest Police Department between 1:00 and 2:00 a.m. He was alone and was driving victim Noblin's car. The victims' purses and one victim's brassiere were on the back seat. Wilcher was covered in blood; he had a bloody knife in his back pocket that had flesh on the blade. Wilcher explained his condition by telling the policeman that he had cut his thumb while skinning a possum. The officer followed Wilcher to the hospital, where Wilcher's wound was cleaned and covered with a band-aid. Another officer was called to the hospital to observe Wilcher, the knife, the car, the purses, and the brassiere.

The officers left the hospital on an emergency call. Wilcher went home. The next morning, he abandoned Noblin's car at an apartment complex. Wilcher also threw the victims' purses and some of the victims' clothing in a ditch. He was arrested later that day. The victims' jewelry was subsequently found in Wilcher's bedroom.

STATEMENT OF THE CASE

Wilcher was indicted March 11, 1982, in the Scott County Circuit Court for the capital murders of Velma Odell Noblin and Katie Belle Moore. He was tried separately for each murder, and was convicted and sentenced to death in both cases. In 1984, this Court affirmed both judgments of conviction for capital murder and both sentences of death. See Wilcher v. State, 448 So.2d 927 (Miss. 1984) (as to capital murder of Noblin) (hereinafter Wilcher I), cert denied, Wilcher v. Mississippi, 469 U.S. 873, 105 S.Ct. 231, 83 L.Ed.2d 160 (1984); Wilcher v. State, 455 So.2d 727 (Miss. 1984) (as to capital murder of Moore) (hereinafter Wilcher II).

Wilcher's subsequent motions for post-conviction relief in these cases were denied. Wilcher v. State, 479 So.2d 710 (Miss. 1985) (hereinafter Wilcher III). Thereafter, Wilcher filed for a writ of habeas corpus from the federal district court; this petition was denied. On appeal, the Fifth Circuit held that the death sentences were improper, because the juries were erroneously given an impermissibly vague "especially heinous, atrocious, or cruel" instruction — which instruction had previously been found unconstitutional in Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990). Wilcher v. Hargett, 978 F.2d 872 (5th Cir.1992) (hereinafter Wilcher IV), cert. denied, Wilcher v. Hargett, 510 U.S. 829, 114 S.Ct. 96, 126 L.Ed.2d 63 (1993). The cases were remanded to this Court for reconsideration.

In October, 1993, this Court vacated the death sentences in the cases of both victims and remanded the cases to the Scott County Circuit Court for new sentencing hearings. See Wilcher v. State, 635 So.2d 789 (Miss. 1993) (hereinafter Wilcher V). The appeal sub judice arises from Wilcher's resentencing trial for the capital murder of Katie Belle Moore, which was held in Harrison County in July, 1994, upon Wilcher's motion for change of venue. A jury, once again, sentenced Wilcher to death for Moore's murder. Wilcher's motion for a new trial, or alternatively, for judgment notwithstanding the verdict (JNOV) was denied. Wilcher appeals, in forma pauperis, and raises the following issues for consideration by this Court:

I. WHETHER THE TRIAL COURT ERRED IN THE ADMISSION OF WILCHER'S STATEMENTS TO SHERIFF WARREN?

II. WHETHER THE STATEMENT ALLEGEDLY MADE BY WILCHER TO A JOURNALIST SHOULD HAVE BEEN SUPPRESSED?

III. WHETHER THE TRIAL COURT ERRED IN ADMITTING PSYCHOLOGICAL EXPERT TESTIMONY?

IV. WHETHER THE TRIAL COURT ERRED BY REFUSING TO ALLOW CROSS-EXAMINATION OF SHERIFF WARREN ON HIS EXTORTION CONVICTION?

V. WHETHER THE TRIAL COURT ERRED IN EXCLUDING MITIGATING EVIDENCE?

A. The Evidence of the Harshness of a Life Sentence.

B. The Testimony of Wilcher's Family Members.

VI. WHETHER THE TRIAL COURT ERRED BY DENYING WILCHER'S MOTION TO CONSOLIDATE?

VII. WHETHER THE TRIAL COURT ERRED BY SENTENCING WILCHER BASED ON THE SAME CONDUCT USED TO CONDEMN HIM IN THE COMPANION CASE?

VIII. WHETHER THE TRIAL COURT ERRED BY REQUIRING THAT JURORS MAKE A UNANIMOUS DECISION?

IX. WHETHER THE TRIAL COURT ERRED BY SUBMITTING THE UNDERLYING FELONIES AS AGGRAVATING CIRCUMSTANCES AND SUBMITTING THE "ROBBERY" AND "KIDNAPPING" CHARGES AS TWO SEPARATE AGGRAVATING FACTORS?

X. WHETHER THE PROSECUTORS' CLOSING ARGUMENT CONSTITUTED REVERSIBLE ERROR?

A. The "Heinous, Atrocious, and Cruel" Comments.

B. The "Send a Message" Comment.

This Court finds that the legal issues raised by Wilcher are without merit. For this reason, this Court must also make a determination on the following issue:

XI. WHETHER THE DEATH SENTENCED IMPOSED IN THIS CASE WAS PROPORTIONATE?

Having considered the crime and the defendant, this Court holds that the death sentence imposed in this case was neither disproportionate nor excessive. The judgment of the trial court sentencing Wilcher to death is affirmed.

ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN THE ADMISSION OF WILCHER'S STATEMENTS TO SHERIFF WARREN?

Wilcher gave two incriminating statements to the authorities. He now contends that they were inadmissible because they were taken in violation of his Sixth Amendment right to counsel. The standard of review for such claims is well-settled. "Determining whether a confession is admissible is a finding of fact which is not disturbed unless the trial judge applied an incorrect legal standard, committed manifest error, or the decision was contrary to the overwhelming weight of the evidence." Balfour v. State, 598 So.2d 731, 742 (Miss. 1992).

The record reflects that Sheriff Glen Warren served Wilcher with an arrest warrant the evening after the murders. Sheriff Warren and a deputy questioned Wilcher that night in the sheriff's office. Wilcher confessed to killing the women, taking the car, and later abandoning the car. Two days later, Wilcher's father led the authorities to the victims' jewelry, which was hidden in Wilcher's bedroom. Wilcher was questioned again, but he declined to give a statement at that time.

Three days later, Wilcher requested to meet with the sheriff. Wilcher then told the officers that he was ready to show them the location of the victims' purses and one victim's brassiere. The three men drove to the Good Hope community. Wilcher then led the officers to a ditch, where they found the purses and the brassiere.

On the trip back to Forest, Wilcher told the officers that he was going to tell them the truth about the murders, that the first statement he gave was not "all true." Upon returning to the sheriff's office, Wilcher made a second statement in which he confessed to robbing and killing the victims. Basically, Wilcher said that he killed Moore and Noblin because they would not give him their money. This statement was given at the same time or shortly after the trial court appointed Wilcher's attorney.

The record reflects that Wilcher had been advised of his rights and waived his rights on all occasions in which the authorities questioned him. The testimony also indicates that Wilcher did not ask for an attorney. This Court determined Wilcher's statements to be admissible when this case was considered on direct appeal in 1984. See Wilcher I, 448 So.2d at 933-34. The admissibility of Wilcher's incriminating statements is res adjudicata. See Jordan v. State, 518 So.2d 1186, 1189 (Miss. 1987).

However, Wilcher argued to the trial court that the 1986 United States Supreme Court decision in Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631, rendered the statements inadmissible at the 1994 resentencing hearing. The trial court overruled Wilcher's motion to suppress.

On appeal, Wilcher contends that (pursuant to the decision in Michigan v. Jackson) his Sixth Amendment right to counsel was violated when the authorities obtained a statement from him after counsel had been appointed for him. In Michigan v. Jackson, the United States Supreme Court held that "once [the Sixth Amendment] right to counsel has attached and has been invoked, any subsequent waiver during a police-initiated custodial interview is ineffective." McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 2207, 115 L.Ed.2d 158 (1991) (emphasis added).

Indeed, in 1992, the federal court thoroughly considered the application of Michigan v. Jackson to Wilcher's case and found that the trial judge properly admitted the inculpatory statements. See Wilcher IV, 978 F.2d 872 (5th Cir.1992), cert. denied, Wilcher v. Hargett, 510 U.S. 829, 114 S.Ct. 96, 126 L.Ed.2d 63 (1993). The Fifth Circuit's application of the law to the facts in this case is persuasive. That court held:

A defendant's Sixth Amendment right to counsel attaches upon the initiation of adversary proceedings. Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986)... . Wilcher asserts that even if his waiver was voluntary and knowing, the questioning in this case violated the prophylactic rule of Michigan v. Jackson, 475 U.S. at 635, 106 S.Ct. at 1411. The Supreme Court held in Jackson that "if police initiate interrogation after a defendant's assertion at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid." Id. The State argues that Wilcher never took any action to invoke his right to counsel and therefore had not triggered the Jackson rule.

We recently addressed the effect of appointment of counsel on the rights of a defendant who has never asserted or accepted the counsel. We held that a defendant's Sixth Amendment rights are not violated by questioning in the absence of his attorney unless the defendant has asserted his right to an attorney. Montoya v. Collins, 955 F.2d 279 (5th Cir.1992). .. . We held that "for purposes of Jackson, an ``assertion' means some kind of positive statement or other action that informs a reasonable person of the defendant's ``desire to deal with the police only through counsel.'" Id. at 283. Thus, we concluded that Montoya's interrogation did not violate the rule of Jackson because he did not assert a right to counsel and thereby trigger its protection.

Wilcher likewise did not assert a right to counsel in his interrogation by the officers. Under Montoya he was not protected by the rule in Jackson and voluntarily waived his right to counsel under the Sixth Amendment.

Wilcher IV, 978 F.2d at 876.

Therefore, because Wilcher did not request an attorney or in any way assert his Sixth Amendment right to counsel, his argument on this point is without merit. Furthermore, the evidence indicates that, upon being given his Fifth Amendment/Miranda^[1] warnings, Wilcher waived his right to counsel before each inculpatory statement was given. As a general rule, a defendant may waive his Sixth Amendment right to counsel when he waives his Fifth Amendment rights. Patterson v. Illinois, 487 U.S. 285, 296, 108 S.Ct. 2389, 2397, 101 L.Ed.2d 261 (1988); Mettetal v. State, 602 So.2d 864, 868 (Miss. 1992).

In addition, at least with regard to the second statement, Wilcher initiated contact with the authorities. The constitutional safeguards discussed above deal only with police-initiated interrogations:

Once the right to counsel has attached, and the accused asserts the right, he is protected from further police-initiated interrogation. Michigan v. Jackson, 475 U.S. 625, 634-636, 106 S.Ct. 1404, 1410-1411, 89 L.Ed.2d 631, 641-642 (1986). Even if the accused has procured an attorney, the accused may still waive the right to have the lawyer present during any police questioning. Nothing in the Sixth Amendment prevents a suspect charged with a crime and represented by counsel from voluntarily choosing, on his own, to speak with police in the absence of an attorney. Although a defendant may sometimes later regret his decision to speak with police, the Sixth Amendment does not disable a criminal defendant from exercising his free will.

Mettetal, 602 So.2d at 868. See also Houston v. State, 531 So.2d 598, 601 (Miss. 1988).

Therefore, even if the doctrine of res adjudicata did not apply to the admissibility of the statements, Wilcher's argument is without merit. The trial court applied the correct legal standards, did not commit manifest error, and did not act contrary to the overwhelming weight of the evidence by admitting Wilcher's incriminating statements.

II. WHETHER THE STATEMENT ALLEGEDLY MADE BY WILCHER TO A JOURNALIST SHOULD HAVE BEEN SUPPRESSED?

Sid Salter, publisher of the Scott County Times, testified that he interviewed Wilcher in October, 1985, and March, 1988. Both interviews occurred at the State Penitentiary at Parchman at Wilcher's request. During the course of those interviews, Wilcher made several damaging statements. For example, Wilcher told Salter that he committed the murders and that he stabbed the victims multiple times because "it felt good." The trial judge denied Wilcher's motion to suppress these statements that Wilcher made to Salter.

Wilcher now argues that the trial court erred by allowing Salter's testimony to be admitted in evidence: "Because the Salter interview could not have taken place without the substantial assistance and cooperation of the State of Mississippi, through its Department of Corrections, the Salter interview could not take place in the absence of counsel." Wilcher's argument seems to be that, because the Parchman officials had to open the gate in order to comply with his own request to be interviewed by a journalist, then the journalist was acting on behalf of the State.

In support of his argument, Wilcher cites United States v. Henry, 447 U.S. 264, 273, 100 S.Ct. 2183, 2188, 65 L.Ed.2d 115 (1980). In that case, the government put a paid informant in the cell with the defendant. The United States Supreme Court held that "[b]y intentionally creating a situation likely to induce [the defendant] to make incriminating statements without the assistance of counsel, the Government violated [his] Sixth Amendment right to counsel." Henry, 447 U.S. at 274, 100 S.Ct. at 2189; see also Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985).

However, the record does not support Wilcher's argument that the State "intentionally created" the interview situation at issue. Indeed, there is no evidence that Salter acted on behalf of the State. Salter went to Parchman at Wilcher's request. The Parchman officials complied with Wilcher's request to allow the interviews. Wilcher signed releases with regard to the interviews. Salter specifically denied that he was acting on behalf of the State. Furthermore, Wilcher had previously confessed to others, and these Salter interviews occurred after Wilcher's direct appeals of this case had been affirmed by this Court. Therefore, the State had no incentive to create a situation in hopes that Wilcher would incriminate himself. For these reasons, this Court finds that Salter was working as a private citizen, a journalist.

It is rudimentary that statements made to private individuals do not implicate the Sixth Amendment right to counsel. See United States v. Darden, et al., 70 F.3d 1507, 1541 (8th Cir.1995). "Absent a law enforcement connection, the Sixth Amendment claim fails." McLain v. Calderon, 1995 WL 769176 (C.D.Cal.), slip op. at [*]21 (citing Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986))

"As long as the police do nothing to direct or control or involve themselves in the questioning of a person in custody by a private citizen, such questioning does not violate the [Sixth Amendment]." United States v. Surridge, 687 F.2d 250, 255 (1982). Because there is no evidence of government control, involvement, or direction in the Salter interviews, Wilcher's arguments on this point are without merit.

III. WHETHER THE TRIAL COURT ERRED IN ADMITTING PSYCHOLOGICAL EXPERT TESTIMONY?

Wilcher next argues that the trial judge erred in admitting the testimony of Dr. Charlton Stanley, a psychologist, during the State's rebuttal. Dr. Stanley's testimony was used to rebut Wilcher's presentation of mitigating evidence tending to show that Wilcher was extremely emotionally disturbed at the time of the murders.

Wilcher contends that, on May 6, 1994, the State obtained an ex parte order from the trial judge granting the State's motion for a psychiatric and psychological examination of Wilcher. Wilcher claims that he did not receive notice regarding this motion or the court's order granting the motion. On June 1, 1994, at the first motions hearing in this case, the trial judge heard the defense's motion for psychiatric assistance. Wilcher claims that this was the first time he or his counsel received notice that the State had also requested a psychiatric evaluation.

The defense attorneys reviewed the order granting the State's motion for a psychiatric evaluation, which instructed the doctors to perform an examination to determine Wilcher's ability to stand trial and assist his attorneys in his own defense, as well as Wilcher's ability to know the difference between right and wrong and understand the nature of his actions at the time of the offense. The defense attorneys did not object to this type examination, and, therefore, they did not attend the doctors' interview of Wilcher.

However, one of the attorneys visited Wilcher in jail on two occasions prior to the interview. The attorney told Wilcher to cooperate with the evaluation, but testified that he would not have done so if he had known what the purpose of the psychiatric evaluation was other than that set forth in the court order — or, in the alternative, one of the defense attorneys would have accompanied Wilcher to the evaluation.

Dr. Charlton Stanley and Dr. Donald Guild interviewed Wilcher June 3, 1994. Dr. Guild advised Wilcher that anything said in the interview could be used against him at the sentencing phase of the trial. Dr. Guild then asked if Wilcher wanted to telephone his attorneys, but Dr. Guild could not remember whether Wilcher called them. According to Dr. Guild, Wilcher (upon advice of counsel) declined to answer questions in three to five areas. Specifically, Wilcher declined to speak about his exact actions at the time of the offense and his statement to the police. Both doctors testified that they treated Wilcher in the same manner as they would have treated any capital defendant in Wilcher's position.

After a lengthy hearing on the admissibility of Dr. Stanley's testimony, the trial judge ruled that Dr. Stanley could testify, but limited his testimony to the directions set forth in the court order and to Dr. Stanley's observations of the witnesses at trial. Dr. Stanley opined that Wilcher was not under the influence of any kind of extreme mental or emotional disturbance at the time of the murders and stated that Wilcher "did understand and appreciate the difference between right and wrong and knew exactly what he was doing." According to Dr. Stanley, Wilcher "made a conscious choice that [murdering the two women] was what he was going to do, and he did it."

On appeal, Wilcher argues that the admission of Dr. Stanley's testimony was error. Specifically, he argues that the evidence was based upon an examination that was conducted in violation of his Sixth Amendment right to counsel. Wilcher's argument ignores the fact that the trial judge granted his motion to suppress psychological evidence not outlined in the court order or adduced at trial. Wilcher has been unable to demonstrate that any of Dr. Stanley's testimony was based on examination beyond the scope of the court order.

Furthermore, Dr. Stanley's testimony was used to rebut Wilcher's use of medical evidence to demonstrate mitigating factors. Wilcher's attorneys knew of the examination and one of the attorneys had met with Wilcher twice beforehand to prepare him. Although the attorney testified that he had told Wilcher to cooperate with the interview, there is evidence that the attorney advised Wilcher not to discuss some topics. Indeed, Wilcher declined to answer the questions in three to five areas based on the advice of counsel.

Furthermore, the doctors told Wilcher that anything he said could be used against him during the sentencing phase. The doctors offered to allow Wilcher to call his attorneys. Thus, to the extent that Wilcher answered the doctors' questions, he did so with full knowledge of his rights.

The United States Supreme Court has "explicitly declined to hold that a defendant who has obtained counsel cannot himself waive his right to counsel." Michigan v. Harvey, 494 U.S. 344, 352, 110 S.Ct. 1176, 1181, 108 L.Ed.2d 293 (1990) (citing Estelle v. Smith, 451 U.S. 454, 471-472, n. 16, 101 S.Ct. 1866, 1877 n. 16, 68 L.Ed.2d 359 (1981)). "To hold that a defendant is inherently incapable of relinquishing his right to counsel once it is invoked would be ``to imprison a man in his privileges and call it the Constitution.' This we decline to do." Michigan v. Harvey, 494 U.S. at 353, 110 S.Ct. at 1182 (quoting Adams v. United States ex re. McCann, 317 U.S. 269, 280, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942)).

Thus, defense counsel was aware of the psychological examination and prepared Wilcher for the interview. The doctors warned Wilcher of his rights, and Wilcher exercised those rights by refusing to answer some of the doctors' questions during the examination. The trial judge limited Dr. Stanley's testimony to that evidence adduced in compliance with the court order and at trial. For these reasons, Wilcher's argument that Dr. Stanley's rebuttal testimony was based on evidence obtained in violation of the Sixth Amendment fails.

IV. WHETHER THE TRIAL COURT ERRED BY REFUSING TO ALLOW CROSS-EXAMINATION OF SHERIFF WARREN ON HIS EXTORTION CONVICTION?

Sheriff Glen Warren was one of the officers who took Wilcher's statements during the investigation of these crimes. Sheriff Warren testified at the 1982 guilt phase of this trial. In 1989, Sheriff Warren was convicted of extortion; he died thereafter. The trial judge allowed the sheriff's prior (1982) testimony to be read in the 1994 resentencing trial sub judice.

After the testimony was read, the defense sought to introduce evidence of the sheriff's 1989 extortion conviction for the purpose of impeachment. The trial judge did not allow the 1989 extortion conviction to be admitted in evidence.

On appeal, Wilcher argues that the trial court erred by excluding the sheriff's extortion conviction. This Court finds that the admission of the sheriff's conviction was within the trial court's discretion under M.R.E. 609(a)(1) and the trial court did not abuse that discretion by excluding the conviction.

Clearly, the reading of Sheriff Warren's prior testimony was admissible under M.R.E. 804, which allows for the admission of former testimony for an unavailable declarant under the following circumstances:

(a) Definition of Unavailability. "Unavailability of a witness" includes situations in which the declarant:

* * *

(4) Is unable to be present or to testify at the hearing because of death

* * *

(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(1) Former Testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

When hearsay testimony is admitted, M.R.E. 806 provides that "the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if the declarant had testified as a witness." M.R.E. 806. "Rule 806 has been read to allow impeachment of hearsay declarant's [sic] by the use of their previous convictions pursuant to Rule 609 of the Rules of Evidence." Turner v. State, 573 So.2d 1335, 1339 (Miss. 1990) (citing United States v. Newman, 849 F.2d 156, 161-63 (5th Cir.1988)).

M.R.E. 609 provides for the use of prior convictions for impeachment purposes:

(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect on a party or (2) involved dishonesty or false statement, regardless of the punishment.

Sheriff Warren was convicted of extortion under the Hobbs Act, which is punishable by up to twenty years in prison. See 18 U.S.C.A. § 1951. Therefore, applying M.R.E. 609(a)(1), the admission of Sheriff Warren's extortion conviction was within the trial judge's discretion, depending on whether he found that the probative value of the conviction outweighed the prejudicial effect of its admission.

The trial judge stated that the conviction had no probative value because it occurred seven years after the sheriff's original testimony. In analyzing the probative value of the 1989 conviction, it is important to consider the unique way this evidence was presented to the jury. The trial judge properly considered the fact that the testimony given at the 1994 trial was given by someone who had not been convicted of a crime at the time he originally made the statements at issue. This would tend to decrease the probative value of the sheriff's 1989 extortion conviction. Furthermore, Wilcher has not demonstrated anything about the sheriff's life that would have influenced the investigation of the case at hand. Therefore, the trial judge did not abuse his discretion in excluding the conviction. See also Turner v. State, 573 So.2d at 1340. Wilcher's argument to the contrary is without merit.

V. WHETHER THE TRIAL COURT ERRED IN EXCLUDING MITIGATING EVIDENCE?

Wilcher next argues that the trial court erred by excluding: a) photographs of Parchman and the testimony of a former prison superintendent to demonstrate the harshness of a life sentence, and b) testimony of Wilcher's family on whether they wished for Wilcher's life to be spared. Wilcher contends that the exclusion of this mitigating evidence violated the Eighth Amendment, which requires that a sentencing jury be allowed to consider all mitigating evidence. Where the sentencer is not permitted to consider all mitigating evidence, there is a risk of "erroneous imposition of the death sentence" and the case will be remanded for resentencing. Mills v. Maryland, 486 U.S. 367, 375, 108 S.Ct. 1860, 1866, 100 L.Ed.2d 384 (1988) (quoting Eddings v. Oklahoma, 455 U.S. 104, 117, 102 S.Ct. 869, 878, 71 L.Ed.2d 1 (1982)). The United States Supreme Court has held:

Under our decisions, it is not relevant whether the barrier to the sentencer's consideration of all mitigating evidence is interposed by statute, by the sentencing court, or by an evidentiary ruling.

Mills, 486 U.S. at 375, 108 S.Ct. at 1865-66 (citations omitted).

The line of cases cited by Wilcher provides that a sentencer may not be "precluded from considering, as a mitigating factor, any aspect of the 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." Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 874, 71 L.Ed.2d 1 (1982) (citing Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973, (1978) (plurality)). The reasoning behind this is that the defendant is entitled to "individualized consideration" of his character, his record and his crime. See Minnick v. State, 551 So.2d 77, 96 (Miss. 1989), overruled on other grounds, Willie v. State, 585 So.2d 660, 681 (Miss. 1991).

The State argues that the evidence excluded by the trial court was not relevant to mitigation, because the evidence did not pertain to Wilcher's character or record or the circumstances of the offense. Indeed, the rule expressed in Eddings "does not limit the trial court's power to exclude from the sentencing phase as irrelevant, evidence not bearing on the defendant's character or prior record, or the circumstances of the offense." Cole v. State, 525 So.2d 365, 371 (Miss. 1987). "[I]t is clear that the evidence must be relevant to one or more of those factors." Minnick, 551 So.2d at 96.

A. The Evidence on the Harshness of a Life Sentence.

Wilcher contends that the trial court erred in excluding evidence regarding the harshness of a life sentence. Specifically, Wilcher offered pictures of Parchman and testimony from a former prison superintendent. The harshness of a life sentence in Parchman in no way relates to Wilcher's character, his record, or the circumstances of the crime. Therefore, it was properly excluded. See Minnick, 551 So.2d at 96; Cole, 525 So.2d at 371. See also Hansen v. State, 592 So.2d 114, 147 (Miss. 1991) (no reversible error where trial judge excluded opinion testimony on defendant's adaptability to prison life); Lockett v. State, 517 So.2d 1317, 1334 (Miss. 1987) (no reversible error where prosecutor commented in closing arguments on mercifulness of lethal injection and defendant was not allowed to counter with evidence of "mental and physical agonies" of life on death row).

B. The Testimony of Wilcher's Family Members.

Wilcher also argues that the trial was fundamentally unfair because the trial judge allowed the family of the victim, but not that of the defendant, to give their subjective impressions about the effect of the crime and the alternatives for punishment on them.

The victim impact testimony to which Wilcher apparently refers was given by victim Moore's daughter, Lisa Moore Warren. Warren testified that, at the time of her mother's death, she was eighteen, her older brother was twenty-one, and they had two younger sisters, ages five and nine. Warren also testified as follows:

Q. [BY THE DISTRICT ATTORNEY:] What effect did your mother's death and the manner in which it occurred have on your family?

A. My brother and I immediately had to start raising my two little sisters, and to be eighteen and all of a sudden become a mother overnight, when you have lost your mother, unless you have been through it, you just don't understand. The girls would have nightmares at night, and there was no way that I could help them, because they wouldn't ever see their mother again, and neither would me or my brother. We just had to take one day at a time and try to get over some of the pain, but you never get over it. (Witness crying).

Warren further stated that she had a six-year-old daughter, born after her mother died at age forty-five.

Wilcher contends that, in view of this testimony by victim Moore's daughter, the trial court erred in excluding testimony from his sister and his mother regarding their feelings on whether his life should be spared. However, the record reflects that, although Wilcher's family testified extensively, neither Wilcher's sister nor his mother were ever asked whether they felt Wilcher's life should be spared. Thus, Wilcher's argument that his family was precluded from giving testimony on whether his life should be spared is spurious. Furthermore, even if Wilcher's representation of the record were true, his argument on this point would still be without merit.

Victim impact evidence, if relevant, is admissible in the sentencing stage. Davis v. State, 684 So.2d 643, 661 (Miss. 1996) (citing Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991); Jenkins v. State, 607 So.2d 1171, 1183 (Miss. 1992)). This Court has held that evidence about the characteristics of the victim is relevant to the crime charged: "The evidence offered was proper and necessary to a development of the case and true characteristics of the victim and could not serve in any way to incite the jury." Jenkins, 607 So.2d at 1183 (evidence that victim was a mother, that she was a wife of four years, that she was shy and did not like to wear dresses because they exposed her legs was relevant). Therefore, the evidence about victim Moore's family was properly admitted. Furthermore, the United States Supreme Court has acknowledged that a State "may legitimately conclude that evidence about the impact of the murder on the victim's family is relevant to the jury's decision as to whether or not the death penalty should be imposed." Payne, 501 U.S. at 827, 111 S.Ct. at 2609. In this case, Bobby Glen Wilcher killed Katie Belle Moore by stabbing her fifteen times. The jury was entitled to know exactly who Katie Belle Moore was and what impact her death had. This information was relevant to the circumstances of the crime. Therefore, the admission of the victim's family's testimony was proper.

Furthermore, the trial court did not err in excluding testimony from Wilcher's family in order to show the impact that the defendant's death would have on their lives. This Court has specifically held that such testimony is not relevant to the defendant's character, record, or the circumstances of the offense and that the exclusion of such evidence is proper. Simon v. State, 688 So.2d 791 (Miss. 1995) (citing Turner v. State, 573 So.2d 657, 667 (Miss. 1990)). Thus, Wilcher's argument on this point is without merit.

VI. WHETHER THE TRIAL COURT ERRED BY DENYING WILCHER'S MOTION TO CONSOLIDATE?

VII. WHETHER THE TRIAL COURT ERRED BY SENTENCING WILCHER BASED ON THE SAME CONDUCT USED TO CONDEMN HIM IN THE COMPANION CASE?

The conviction of murder of the second victim, Velma Odell Noblin, was offered as an aggravating circumstance. Specifically, the jury was instructed to consider "whether the Defendant was previously convicted of a felony involving the use or threat of violence to the person." Wilcher contends that the jury should not have been instructed to consider his conviction for Noblin's murder as an aggravating circumstance.

Wilcher argues that, by having his conviction in the capital murder of Noblin considered as an aggravating circumstance, the jury was improperly required to weigh the same facts twice against the mitigating evidence, in violation of the Double Jeopardy Cause of the Fifth Amendment. Wilcher correctly states that a capital murder defendant cannot be convicted of both capital murder and the underlying felony; the reason being that the defendant cannot be twice prosecuted for the same actions. See Meeks v. State, 604 So.2d 748, 753 (Miss. 1992). By analogy, Wilcher argues that the "same elements" or "Blockburger" test precludes the introduction of his conviction of the capital murder conviction of the second victim as an aggravator at the sentencing hearing on the first murder victim. See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932).

Wilcher's analogy does not hold true. In this case, the court is not faced with one action for which Wilcher could be prosecuted on either the underlying crime or the capital murder. Rather, there are actually two murder victims — the product of two separate criminal actions by Wilcher. Even though the same facts surround the murder of each victim, there are undeniably two victims, and two counts of capital murder arising from Wilcher's actions. Therefore, the "same elements" test does not apply.

Furthermore, as the Fifth Circuit has observed:

[C]onsideration of other crimes at sentencing does not implicate the Double Jeopardy Clause because the defendant is not actually being punished for the crimes so considered. Rather, the other crimes aggravate his guilt of, and justify heavier punishment for, the specific crime for which defendant has just been convicted. See United States v. Bowdach, 561 F.2d 1160, 1175 (5th Cir.1977) (rejecting virtually identical double jeopardy argument).

Sekou v. Blackburn, 796 F.2d 108, 112 (5th Cir.1986). Wilcher's argument to the contrary is without merit.

Wilcher next argues that, at the original (1982) sentencing trial in this case, his conviction for the capital murder of Moore was not yet final. The only reason his conviction was final at the time of the second (1994) sentencing hearing was because the original death sentence was reversed and the case was remanded for resentencing. He argues that "[s]urely the State should not be granted the benefit of its own prior errors."

Wilcher's conviction of guilt in both cases has been repeatedly upheld by every court that has considered the matter. Therefore, Wilcher's argument that his conviction for the murder of Katie Belle Moore was not final is specious. See Wilcher I, 448 So.2d 927 (Miss. 1984) (as to capital murder of Noblin), cert denied, Wilcher v. Mississippi, 469 U.S. 873, 105 S.Ct. 231, 83 L.Ed.2d 160 (1984); Wilcher II, 455 So.2d 727 (Miss. 1984) (as to capital murder of Moore); Wilcher III, 479 So.2d 710 (Miss. 1985) (as to consolidated motions for post-conviction relief); Wilcher IV, 978 F.2d 872 (5th Cir.1992) (as to federal habeas corpus action), cert. denied, Wilcher v. Hargett, 510 U.S. 829, 114 S.Ct. 96, 126 L.Ed.2d 63 (1993); Wilcher IV, 635 So.2d 789 (Miss. 1993) (as to remand for resentencing).

Wilcher also argues that the trial judge should have granted instruction D-4, which provided as follows:

You are allowed to consider, as an aggravating circumstance in this case, whether "the defendant was previously convicted of another capital offense or of a felony involving the use or threat of violence to the person." The state has offered the conviction of Bobby Wilcher for the capital murder of Velma Odell Noblin as its evidence to support this aggravating circumstance.

The Court instructs the jury that the use of this aggravating circumstance does not allow you to punish Bobby Wilcher for any crime other that [sic] the killing of Katie Belle Moore. Indeed, the punishment you assess for the capital murder of Katie Belle Moore will be served in addition to his punishment for the capital murder of Velma Odell Noblin.

The trial judge refused the instruction, but indicated that he would have given it if the last sentence were redacted. Defense counsel refused to amend the proposed instruction.

Clearly, the instruction would have been granted, but for the last sentence: "Indeed, the punishment you assess for the capital murder of Velma Odell Noblin will be served in addition to his punishment for the capital murder of Katie Moore." An analysis of this sentence indicates that it asserts as fact an entirely speculative matter. "This Court has repeatedly condemned confusing and misleading instructions." Sudduth v. State, 562 So.2d 67, 72 (Miss. 1990). Therefore, the trial judge properly refused to give the proposed instruction. Wilcher's argument to the contrary is without merit.

VIII. WHETHER THE TRIAL COURT ERRED BY REQUIRING THAT JURORS MAKE A UNANIMOUS DECISION?

Instruction S-5 was given over defense objection, and provided as follows: "The Court instructs the Jury that all twelve jurors must agree on the verdict before the verdict can be returned into Court." Wilcher asserts that giving this instruction was reversible error because it failed to clarify that if, within a reasonable time, the jury failed to agree unanimously it must cease deliberations and report its findings to the Court.

Miss. Code Ann. § 99-19-103 (Supp. 1994) provides that "[i]f the jury cannot, within a reasonable time, agree as to punishment, the judge shall dismiss the jury and impose a sentence of imprisonment of life." The statute does not (as Wilcher contends) allow the jury to determine what constitutes a "reasonable time" for deliberations and report its findings to the court.

Furthermore, jury instructions "are not to be read unto themselves, but with the jury charge as a whole." Carr v. State, 655 So.2d 824, 848 (Miss. 1995); Donnelly v. DeChristoforo, 416 U.S. 637, 645, 94 S.Ct. 1868, 1872, 40 L.Ed.2d 431 (1974). Instruction S-1B makes clear the options the jury had in returning to the courtroom:

(1) ... we ... find unanimously that the Defendant should suffer death.

* * *

(2) We, the Jury, find that the Defendant should be sentenced to life imprisonment without parole.

* * *

(3) We, the Jury, find that the Defendant should be sentenced to life imprisonment. [or]

* * *

(4) We, the Jury are unable to agree unanimously on punishment.

Thus, when read as a whole, the jury instructions properly informed the jury that they could return to the courtroom and report that they were unable to agree unanimously on punishment. Therefore, Wilcher's argument is without merit.

In addition, Wilcher alleges that the "error" in granting S-5 was compounded by the fact that the trial judge refused to give proposed defense instruction D-12, which would have instructed the jury as follows:

The Court instructs the jury that if you cannot, within a reasonable time, agree as to punishment, you must cease deliberations immediately and return the following verdict:

"We, the Jury, cannot agree as to punishment."

This verdict should be written on a separate sheet of paper. In that event, the Court will dismiss the Jury and sentence the Defendant in the manner provided by law.

As stated earlier, there is no authority for allowing the jury to determine what constitutes a "reasonable time" for deliberations. Moreover, even if the jury had never been instructed on what would happen if they could not agree, there would have been no error. In Stringer v. State, this Court held that the trial judge did not err by failing to inform the jury that, "if they were unable to agree within a reasonable time on the punishment to be imposed, [the defendant] would be sentenced to life imprisonment." Stringer, 500 So.2d 928, 945 (Miss. 1986).

The [defendant's] argument creates an illusion of prejudice, which has no logical basis. If the jurors were unable to unanimously find that the aggravating circumstances were sufficient to impose the death penalty and that there were insufficient mitigating circumstances to outweigh the aggravating circumstances, then they could not return a death sentence. Further, in the event they could not unanimously agree after a reasonable period of deliberation, it would be the trial judge's duty under Miss. Code Ann. § 99-19-103 to dismiss the jury and impose a sentence of life imprisonment on the jury.

Id. (quoting King v. State, 421 So.2d 1009, 1018 (Miss. 1982)).

In addition, "[A]n instructional error will not warrant reversal if the jury was fully and fairly instructed by other instructions." Collins v. State, 594 So.2d 29, 35 (Miss. 1992); Heidel v. State, 587 So.2d 835, 842 (Miss. 1991).

A defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.

Heidel v. State, 587 So.2d 835, 842 (Miss. 1991) (citations omitted). To the extent proposed instruction D-12 would have instructed the jury on valid legal concepts, the jury was "fully and fairly instructed" on those concepts in S-1B and S-5. See Id. Therefore, Wilcher's arguments on this point are without merit.

IX. WHETHER THE TRIAL COURT ERRED BY SUBMITTING THE UNDERLYING FELONIES AS AGGRAVATING CIRCUMSTANCES AND SUBMITTING THE "ROBBERY" AND "KIDNAPPING" CHARGES AS TWO SEPARATE AGGRAVATING FACTORS?

Instruction S-1B was given over defense objections. With regard to aggravating factors, Instruction S-1B provided as follows:

Consider only the following elements of aggravation in determining whether the death penalty should be imposed:

(1) whether the Defendant was previously convicted of a felony involving the use or threat of violence to the person;

(2) whether the capital offense was committed while the Defendant was engaged in the commission of robbery;

(3) whether the capital offense was committed while the Defendant was engaged in the commission of or an attempt to commit the crime of kidnapping ...

You must unanimously find, beyond a reasonable doubt, that one or more of the preceding aggravating circumstances exists in this case to return the death penalty. If none of these aggravating circumstances are found to exist, the death penalty may not be imposed ...

Wilcher argues that this instruction was flawed in three ways.

A. Failure to Require a Finding of Both Underlying Felonies.

Wilcher contends that the trial court erred by instructing the jury that it could find either underlying felony (robbery or kidnapping). The jury found beyond a reasonable doubt that the murder was committed during the course of a robbery, but did not find that the murder was committed during the course of a kidnapping. Wilcher bases his argument that the State had to prove both underlying felonies on the indictment, which charged that he:

did willfully, unlawfully, feloniously, without the authority of law, and of his malice aforethought, kill and murder Velma Odell Noblin, a human being, while he, the said Bobby Glen Wilcher, was engaged then and there in the commission of the crime of robbery or an attempt to commit the crime of robbery of the said Velma Odell Noblin, and while he, the said Bobby Glen Wilcher, was engaged then and there in the commission of the crime of kidnapping of Kattie [sic] Belle Moore and the said Velma Odell Noblin, human beings, contrary to and in violation of Mississippi Code of 1972 Annotated, Section 97-3-19(2)(e), as amended.

Wilcher contends that, because the indictment charged him with murder during the course of kidnapping and robbery, the State was required to prove that the offense was committed in furtherance of both underlying felonies. In support of this argument, he cites Fisher v. State, 481 So.2d 203 (Miss. 1985). In Fisher, the State undertook to prove two underlying felonies: rape and robbery. Fisher is distinguishable from the case at hand because the Fisher jury (at the State's request) was instructed that it had to find both aggravators beyond a reasonable doubt. Therefore, for purposes of review, this Court had to determine that the evidence supported both underlying felonies — in order to determine that an underlying felony had been proven. Fisher v. State, 481 So.2d 203, 212-214 (Miss. 1985) ("Here, for some reasons not apparent, the State took on the burden of proving two underlying felonies.").

In the case sub judice, the jury was given the option of finding either that the murder occurred during the course of a robbery or a kidnapping. They found beyond a reasonable doubt that the murder was committed during the course of a robbery. This is supported by Wilcher's own statements to the police and Sid Salter and by the fact that he took the victims' purses, jewelry, and car. This is sufficient to meet the statutory definition of capital murder. See Miss. Code Ann. § 97-3-19 (defining capital murder as murder by a person engaged in the commission or the attempt to commit robbery or several other felonies). See also Fisher, 481 So.2d at 212. Wilcher's argument, therefore, is without merit.

B. The Use of the Underlying Felony as an Aggravator.

Wilcher also argues that the use of the underlying felony as an aggravating circumstance violates the Eighth Amendment in that it does not "genuinely narrow" the class of death-eligible defendants. Wilcher did not raise this issue at trial, and therefore, is procedurally barred from doing so on appeal. Walker v. State, 671 So.2d 581, 612 (Miss. 1995) (citing Foster v. State, 639 So.2d 1263, 1270 (Miss. 1994); Cole v. State, 525 So.2d at 365, 369 (Miss. 1987)). Furthermore, even if the issue were not procedurally barred, this Court has repeatedly rejected the argument raised by Wilcher:

The use of the underlying felony ... as an aggravator during sentencing has been consistently upheld in capital cases. This Court has stated:

The argument is the familiar "stacking" argument that the state can elevate murder to felony murder and then, using the same circumstances can elevate the crime to capital murder with two aggravating circumstances. As pointed out in Lockett v. State, 517 So.2d 1317, 1337 (Miss. 1987), this Court has consistently rejected this argument.

Minnick v. State, 551 So.2d at 96-97. The United States Supreme Court has confirmed that this practice does not render a death sentence unconstitutional. Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988). See also, Ladner v. State, 584 So.2d 743, 763 (Miss. 1991).

This issue is without merit.

Walker, 671 So.2d at 612.

C. The Underlying Felony Aggravator and Proportionality.

Wilcher's final argument on this point is that the felony murder aggravator is disproportionate within the meaning of the Eighth Amendment. Specifically, Wilcher argues that unintentional felony murder is punishable by death, while premeditated murder, standing alone, is not.

Our precedents make clear that a State's capital sentencing scheme must ... genuinely narrow the class of defendants eligible for the death penalty. When the purpose of a statutory aggravating circumstance is to enable the sentencer to distinguish those who deserve capital punishment from those who do not, the circumstance must provide a principled basis for doing so. If the sentencer fairly could conclude that an aggravating circumstance applies to every defendant eligible for the death penalty, the circumstance is constitutionally infirm.

Blue v. State, 674 So.2d 1184, 1216 (Miss. 1996) (quoting Arave v. Creech, 507 U.S. 463, 474, 113 S.Ct. 1534, 1542, 123 L.Ed.2d 188 (1993)) (emphasis in original).

Not every defendant eligible for the death penalty will have committed murder while in the course of robbery or kidnapping or the other statutorily enumerated felonies. See Miss. Code Ann. § 97-3-19. Therefore, the felony murder aggravator genuinely narrows the class of defendants eligible for the death penalty. Furthermore, "[t]he legislature has a very great latitude in prescribing and fixing punishment for crime." Smith v. State, 419 So.2d 563, 567 (Miss. 1982), overruled on other grounds, Willie v. State, 585 So.2d 660, 681 (Miss. 1991).

Moreover, the aggravating factor for murder committed during the course of a robbery is constitutional. See Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988). See also Lockett v. State, 614 So.2d 888, 897 (Miss. 1992) ("This Court has previously determined that Mississippi's capital sentencing scheme, as a whole, is constitutional."). For these reasons, Wilcher's argument fails.

X. WHETHER THE PROSECUTORS' CLOSING ARGUMENT CONSTITUTED REVERSIBLE ERROR?

Wilcher next argues that the prosecutors' comments on two topics during closing arguments constituted reversible error:

A. The "Heinous, Atrocious, and Cruel" Comments.

The "heinous, atrocious, and cruel" aggravator was not submitted to the jury in the case sub judice. Wilcher argues that the trial court erroneously allowed the prosecutor to comment on this aggravator in closing argument. The record reflects, however, that the district attorney was merely restating the testimony of the doctor who performed the autopsy. That is, the district attorney was properly commenting on the evidence in this case. Wilcher's argument therefore, is without merit. See Williams v. State, 595 So.2d 1299, 1309 (Miss. 1992).

B. The "Send a Message" Comment.

Wilcher contends that the following comment by the district attorney during closing arguments constituted reversible error:

Ladies and gentlemen, capital murder with robbery as one of the underlying circumstances, or aggravating circumstances, is one of the worst cruelest crimes there is, because a person who kills someone in the course of a robbery is saying to that person, in effect, "Your money or your property is worth more to me than your life is, and if it's necessary, or maybe just for meanness or maybe because it feels good, I will kill you, too."

The death penalty will send a message to that kind of person —

BY [DEFENSE COUNSEL]: If Your Honor, please, I will object to that. That has been condemned in Williams vs. State.

BY THE COURT: I am going to sustain the objection.

BY [DEFENSE COUNSEL]: And, move for a mistrial.

BY THE COURT: Overruled.

This Court has cautioned prosecutors against using "send a message" language in closing arguments. See Williams v. State, 522 So.2d 201, 209 (Miss. 1988). The trial judge properly sustained the defense's objection to this language. Moreover, such language does not require reversal in the case sub judice. See Chase v. State, 645 So.2d 829, 854 (Miss. 1994); Carleton v. State, 425 So.2d 1036, 1039 (Miss. 1983). See also Hunter v. State, 684 So.2d 625, 637 (Miss. 1996).

XI. WHETHER THE DEATH SENTENCE IMPOSED IN THIS CASE WAS PROPORTIONATE?

Miss. Code Ann. § 99-19-105 (Supp. 1996) requires that, before a death sentence can be upheld, this Court must determine whether the sentence imposed was excessive or disproportionate to the penalty imposed in similar cases decided since Jackson v. State, 337 So.2d 1242 (Miss. 1976). This comparison is made from cases in which the death sentence was imposed and was reviewed on appeal by this Court. In making this individualized comparison, this Court considers the crime and the defendant. Cabello v. State, 471 So.2d 332, 350 (Miss. 1985).

Having given individualized consideration to the defendant and the crime sub judice, this Court concludes that there is nothing about this defendant or this crime that would make the death penalty excessive or disproportionate in this case. See Appendix A; Blue v. State, 674 So.2d 1184, 1234-35 (Miss. 1996) (death sentence proportionate where defendant abused drugs and alcohol at an early age, came from dysfunctional family, and had no positive role models at home); Foster v. State, 639 So.2d 1263, 1304 (Miss. 1994) (death sentence proportionate where young defendant was mentally impaired); Lanier v. State, 533 So.2d 473, 492 (Miss. 1988) (death sentence was proportionate where defendant had been institutionalized twice for alcoholism and drug abuse) Neal v. State, 451 So.2d 743, 761 (Miss. 1984) (death sentence affirmed where defendant had been institutionalized at young age, had learning and family difficulties, and was not loved or supervised at home). See also Cabello v. State, 471 So.2d 332, 350 (Miss. 1985) (death sentence was proportionate where defendant strangled and robbed victim); Evans v. State, 422 So.2d 737, 739 (Miss. 1982) (death sentence was proportionate where defendant robbed and shot victim); Booker v. State, 449 So.2d 209, 222 (Miss. 1984) (death penalty was proportionate where defendant shot and robbed victim). Therefore, the death sentence in this case is neither disproportionate nor excessive.

CONCLUSION

The arguments raised by Wilcher in this appeal are without merit. In addition, this Court, pursuant to Miss. Code Ann. § 99-19-105 (Supp. 1996), has reviewed this case to determine whether the sentence imposed here is excessive or disproportionate to the penalty imposed in similar cases decided since Jackson v. State, 337 So.2d 1242 (Miss. 1976). This Court finds that, considering the crime and the defendant, the death sentence imposed upon this defendant is not excessive or disproportionate. For these reasons, the trial court's judgment and sentence of death by lethal injection is affirmed.

CONVICTION OF CAPITAL MURDER AND SENTENCE OF DEATH BY LETHAL INJECTION AFFIRMED. THIS SENTENCE SHALL BE CONSECUTIVE TO THE SENTENCE IMPOSED BY THE CIRCUIT COURT OF RANKIN COUNTY IN CAUSE NUMBER 94-DP-00760-SCT. EXECUTION DATE TO BE SET WITHIN SIXTY DAYS OF FINAL DISPOSITION OF THIS CASE PURSUANT TO MISS. CODE ANN. § 99-19-105(7)(1972) AND M.R.A.P. 41(a).

DAN LEE, C.J., and PITTMAN, JAMES L. ROBERTS, Jr., SMITH and MILLS, JJ., concur.

SULLIVAN, P.J., dissents with separate written opinion joined by McRAE, J.

BANKS, J., dissents with separate written opinion joined by SULLIVAN, P.J.

APPENDIX

DEATH CASES AFFIRMED BY THIS COURT

Simon v. State, 688 So.2d 791, (Miss. 1997).

Jackson v. State, 684 So.2d 1213 (Miss. 1996).

Williams v. State, 684 So.2d 1179 (Miss. 1996).

Davis v. State, 684 So.2d 643 (Miss. 1996).

Taylor v. State, 682 So.2d 359 (Miss. 1996).

Brown v. State, 682 So.2d 340 (Miss. 1996).

Blue v. State, 674 So.2d 1184 (Miss. 1996).

Holly v. State, 671 So.2d 32 (Miss. 1996).

Walker v. State, 671 So.2d 581 (Miss. 1995).

Russell v. State, 670 So.2d 816 (Miss. 1995).

Ballenger v. State, 667 So.2d 1242 (Miss. 1995).

Davis v. State, 660 So.2d 1228 (Miss. 1995).

Carr v. State, 655 So.2d 824 (Miss. 1995).

Mack v. State, 650 So.2d 1289 (Miss. 1994).

Chase v. State, 645 So.2d 829 (Miss. 1994).

Foster v. State, 639 So.2d 1263 (Miss. 1994).

Conner v. State, 632 So.2d 1239 (Miss. 1993).

Hansen v. State, 592 So.2d 114 (Miss. 1991).

Shell^[*] v. State, 554 So.2d 887 (Miss. 1989), Shell v. Mississippi, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990) reversing, in part, and remanding, Shell v. State, 595 So.2d 1323 (Miss. 1992) remanding for new sentencing hearing.

Davis v. State, 551 So.2d 165 (Miss. 1989).

Minnick v. State, 551 So.2d 77 (Miss. 1989).

Pinkney^[*] v. State, 538 So.2d 329 (Miss. 1989), Pinkney v. Mississippi, 494 U.S. 1075, 110 S.Ct. 1800, 108 L.Ed.2d 931 (1990) vacating and remanding Pinkney v. State, 602 So.2d 1177 (Miss. 1992) remanding for new sentencing hearing.

Clemons^[*] v. State, 535 So.2d 1354 (Miss. 1988), Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990) vacating and remanding, Clemons v. State, 593 So.2d 1004 (Miss. 1992) remanding for new sentencing hearing.

Woodward v. State, 533 So.2d 418 (Miss. 1988).

Nixon v. State, 533 So.2d 1078 (Miss. 1987).

Cole v. State, 525 So.2d 365 (Miss. 1987).

Lockett v. State, 517 So.2d 1346 (Miss. 1987).

Lockett v. State, 517 So.2d 1317 (Miss. 1987).

Faraga v. State, 514 So.2d 295 (Miss. 1987).

Jones^[*] v. State, 517 So.2d 1295 (Miss. 1987), Jones v. Mississippi, 487 U.S. 1230, 108 S.Ct. 2891, 101 L.Ed.2d 925 (1988) vacating and remanding, Jones v. State, 602 So.2d 1170 (Miss. 1992) remanding for new sentencing hearing.

Wiley v. State, 484 So.2d 339 (Miss. 1986).

Johnson v. State, 477 So.2d 196 (Miss. 1985).

Gray v. State, 472 So.2d 409 (Miss. 1985).

Cabello v. State, 471 So.2d 332 (Miss. 1985).

Jordan v. State, 464 So.2d 475 (Miss. 1985).

Wilcher v. State, 455 So.2d 727 (Miss. 1984).

Billiot v. State, 454 So.2d 445 (Miss. 1984).

Stringer v. State, 454 So.2d 468 (Miss. 1984).

Dufour v. State, 453 So.2d 337 (Miss. 1984).

Neal v. State, 451 So.2d 743 (Miss. 1984).

Booker v. State, 449 So.2d 209 (Miss. 1984).

Wilcher v. State, 448 So.2d 927 (Miss. 1984).

Caldwell v. State, 443 So.2d 806 (Miss. 1983).

Irving v. State, 441 So.2d 846 (Miss. 1983).

Tokman v. State, 435 So.2d 664 (Miss. 1983).

Leatherwood v. State, 435 So.2d 645 (Miss. 1983).

Hill v. State, 432 So.2d 427 (Miss. 1983).

Pruett v. State, 431 So.2d 1101 (Miss. 1983).

Gilliard v. State, 428 So.2d 576 (Miss. 1983).

Evans v. State, 422 So.2d 737 (Miss. 1982).

King v. State, 421 So.2d 1009 (Miss. 1982).

Wheat v. State, 420 So.2d 229 (Miss. 1982).

Smith v. State, 419 So.2d 563 (Miss. 1982).

Johnson v. State, 416 So.2d 383 (Miss. 1982).

Edwards v. State, 413 So.2d 1007 (Miss. 1982).

Bullock v. State, 391 So.2d 601 (Miss. 1980).

Reddix v. State, 381 So.2d 999 (Miss. 1980).

Jones v. State, 381 So.2d 983 (Miss. 1980).

Culberson v. State, 379 So.2d 499 (Miss. 1979).

Gray v. State, 375 So.2d 994 (Miss. 1979).

Jordan v. State, 365 So.2d 1198 (Miss. 1978).

Voyles v. State, 362 So.2d 1236 (Miss. 1978).

Irving v. State, 361 So.2d 1360 (Miss. 1978).

Washington v. State, 361 So.2d 61 (Miss. 1978).

Bell v. State, 360 So.2d 1206 (Miss. 1978).

DEATH CASES REVERSED AS TO GUILT PHASE AND SENTENCE PHASE

Hunter v. State, 684 So.2d 625 (Miss. 1996).

Lanier v. State, 684 So.2d 93 (Miss. 1996).

Giles v. State, 650 So.2d 846 (Miss. 1995).

Duplantis v. State, 644 So.2d 1235 (Miss. 1994).

Harrison v. State, 635 So.2d 894 (Miss. 1994).

Butler v. State, 608 So.2d 314 (Miss. 1992).

Jenkins v. State, 607 So.2d 1171 (Miss. 1992).

Abram v. State, 606 So.2d 1015 (Miss. 1992).

Balfour v. State, 598 So.2d 731 (Miss. 1992).

Griffin v. State, 557 So.2d 542 (Miss. 1990).

Bevill v. State, 556 So.2d 699 (Miss. 1990).

West v. State, 553 So.2d 8 (Miss. 1989).

Leatherwood v. State, 548 So.2d 389 (Miss. 1989).

Mease v. State, 539 So.2d 1324 (Miss. 1989).

Houston v. State, 531 So.2d 598 (Miss. 1988).

West v. State, 519 So.2d 418 (Miss. 1988).

Davis v. State, 512 So.2d 1291 (Miss. 1987).

Williamson v. State, 512 So.2d 868 (Miss. 1987).

Foster v. State, 508 So.2d 1111 (Miss. 1987).

Smith v. State, 499 So.2d 750 (Miss. 1986).

West v. State, 485 So.2d 681 (Miss. 1985).

Fisher v. State, 481 So.2d 203 (Miss. 1985).

Johnson v. State, 476 So.2d 1195 (Miss. 1985).

Fuselier v. State, 468 So.2d 45 (Miss. 1985).

West v. State, 463 So.2d 1048 (Miss. 1985).

Jones v. State, 461 So.2d 686 (Miss. 1984).

Moffett v. State, 456 So.2d 714 (Miss. 1984).

Lanier v. State, 450 So.2d 69 (Miss. 1984).

Laney v. State, 421 So.2d 1216 (Miss. 1982).

DEATH CASES REVERSED AS TO PUNISHMENT AND REMANDED FOR RESENTENCING TO LIFE IMPRISONMENT

Reddix v. State, 547 So.2d 792 (Miss. 1989).

Wheeler v. State, 536 So.2d 1341 (Miss. 1988).

White v. State, 532 So.2d 1207 (Miss. 1988).

Bullock v. State, 525 So.2d 764 (Miss. 1987).

Edwards v. State, 441 So.2d 84 (Miss. 1983).

Dycus v. State, 440 So.2d 246 (Miss. 1983).

Coleman v. State, 378 So.2d 640 (Miss. 1979).

DEATH CASES REVERSED AS TO PUNISHMENT AND REMANDED FOR A NEW TRIAL ON SENTENCING PHASE ONLY

Taylor v. State, 672 So.2d 1246 (Miss. 1996).

Shell^[*] v. State, 554 So.2d 887 (Miss. 1989), Shell v. Mississippi, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990) reversing, in part, and remanding, Shell v. State 595 So.2d 1323 (Miss. 1992) remanding for new sentencing hearing.

Pinkney^[*] v. State, 538 So.2d 329 (Miss. 1989), Pinkney v. Mississippi, 494 U.S. 1075, 110 S.Ct. 1800, 108 L.Ed.2d 931 (1990) vacating and remanding, Pinkney v. State, 602 So.2d 1177 (Miss. 1992) remanding for new sentencing hearing.

Clemons^[*] v. State, 535 So.2d 1354 (Miss. 1988), Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990) vacating and remanding, Clemons v. State, 593 So.2d 1004 (Miss. 1992) remanding for new sentencing hearing.

Jones^[*] v. State, 517 So.2d 1295 (Miss. 1987), Jones v. Mississippi, 487 U.S. 1230, 108 S.Ct. 2891, 101 L.Ed.2d 925 (1988) vacating and remanding, Jones v. State, 602 So.2d 1170 (Miss. 1992) remanding for new sentencing hearing.

Russell v. State, 607 So.2d 1107 (Miss. 1992).

Holland v. State, 587 So.2d 848 (Miss. 1991).

Willie v. State, 585 So.2d 660 (Miss. 1991).

Ladner v. State, 584 So.2d 743 (Miss. 1991).

Mackbee v. State, 575 So.2d 16 (Miss. 1990).

Berry v. State, 575 So.2d 1 (Miss. 1990).

Turner v. State, 573 So.2d 657 (Miss. 1990).

State v. Tokman, 564 So.2d 1339 (Miss. 1990).

Johnson v. State, 547 So.2d 59 (Miss. 1989).

Williams v. State, 544 So.2d 782 (Miss. 1989); sentence aff'd. 684 So.2d 1179 (Miss. 1996)

Lanier v. State, 533 So.2d 473 (Miss. 1988).

Stringer v. State, 500 So.2d 928 (Miss. 1986).

Pinkton v. State, 481 So.2d 306 (Miss. 1985).

Mhoon v. State, 464 So.2d 77 (Miss. 1985).

Cannaday v. State, 455 So.2d 713 (Miss. 1984).

Wiley v. State, 449 So.2d 756 (Miss. 1984); resentencing affirmed, Wiley v. State, 484 So.2d 339 (Miss. 1986), cert. denied Wiley v. Mississippi, 486 U.S. 1036, 108 S.Ct. 2024, 100 L.Ed.2d 610 (1988); resentencing ordered, Wiley v. State, 635 So.2d 802 (Miss. 1993) following writ of habeas corpus issued pursuant to Wiley v. Puckett, 969 F.2d 86, 105-106 (5th Cir.1992); resentencing affirmed, Wiley v. State, 95-DP-00149, February 13, 1997 (rehearing pending).

Williams v. State, 445 So.2d 798 (Miss. 1984).

SULLIVAN, Presiding Justice, dissenting:

I cannot concur with the majority reasoning in several particulars, and therefore dissent. This dissent also applies to 94-DP-00761 except for the section dealing with prior conviction as an aggravating factor.

I.

THE TRIAL COURT ERRED BY REFUSING TO ALLOW CROSS-EXAMINATION OF SHERIFF WARREN ON HIS EXTORTION CONVICTION.

In Crapps v. State, 221 So.2d 722, 723 (Miss. 1969), this Court stated that the Sixth Amendment to the United States Constitution established the right to confrontation. In Hubbard v. State, 437 So.2d 430, 433-34 (Miss. 1983), this Court stated that the Mississippi Constitution, Article 3, Section 26, grants and guarantees a criminal defendant the right to confront witnesses against him. See also Stromas v. State, 618 So.2d 116, 121 (Miss. 1993). The right of confrontation "extends to and includes the right to fully cross-examine the witness on every material point relating to the issue to be determined that would have a bearing on the credibility of the witness and the weight and worth of his testimony." Myers v. State, 296 So.2d 695, 700 (Miss. 1974).

The majority is incorrect in holding that the trial court did not abuse its discretion when not admitting Sheriff Warren's conviction for extortion. The trial court did not allow the conviction because the conviction was in 1989 and the sheriff originally testified in 1982. However, the trial court fails to take into account that the hearing was held in 1994. Therefore, if the sheriff had been able to testify at trial in 1994, then he would have been able to testify to the prior 1989 conviction for extortion.

The sole reason that the trial judge excluded the evidence is found in the transcript of the trial proceedings while the jury was adjourned. It reads in part, "Well gentlemen, we are retrying events that occurred in 1982. The fact that we are here in 1994 rehashing those matters, to me, is of no consequence. It is dictated by the fact that in 1982, the crime occurred. In 1982, there was a trial. In 1982, Sheriff Warren testified." However, the transcript was read in 1994 before a 1994 jury. The jury is directed to give Sheriff Warren's transcribed testimony equal weight as other live testimony. If Sheriff Warren had been able to testify in 1994, he would have been able to testify as to his conviction of extortion in 1989.

Prior convictions are admissible to impeach a witness on two grounds according to MRE 609(a). According to the requirements of MRE 609(a)(1), Sheriff Warren's conviction was punishable in excess of one year. However, according to MRE 609(a)(1), the trial judge must also determine that the probative value outweighs the prejudicial effect on the "party." Two problems arise. First, the trial judge never weighed the probative value versus the prejudicial effect because the trial judge determined that the extortion conviction was not a prior conviction. Therefore, the trial judge failed to follow the second prong of MRE 609(1)(a) by not determining the conviction's probative value versus its prejudicial effect when excluding the conviction as evidence for impeachment purposes. Secondly, MRE 609(a)(1) refers to the "prejudicial effect on a party." Since Warren was not a party to the suit but merely a witness, the prejudicial effect on his testimony is irrelevant. In other words, when a defendant or party to a suit (such as Wilcher) testifies, and a prior conviction is sought admissible for impeachment purposes, the court must weigh the probative effect of the prior conviction and its prejudicial effect on the "party." However, a non-party may not be prejudiced. Therefore, the extortion conviction should have been admitted.

The extortion conviction could have automatically been admitted for impeachment purposes pursuant to MRE 609(a)(2) and not subject to court discretion. Butler v. State, 608 So.2d 314 (Miss. 1992). MRE 609(a)(2) does not require the court to weigh the probative value against the prejudicial effect when the prior conviction involves dishonesty or false statements. Under MRE 609(a)(2), the "admission of prior convictions involving dishonesty or false statement is not within the discretion of the court. Such convictions are peculiarly probative of credibility and are always to be admitted." Butler, 608 So.2d at 322-24 (quoting Comments to MRE 609(a)(2)). The majority failed to determine whether extortion is a dishonest and/or fraudulent crime which should be admitted under MRE 609(a)(2).

Extortion is a dishonest crime admissible under MRE 609(a)(2). While Mississippi case law fails to address specifically that extortion is a crime of dishonesty, Iowa has done so. The Iowa Supreme Court held that "extortion is clearly an example of dishonesty." State v. Brodene, 493 N.W.2d 793, 796-97 (Iowa 1993).

Therefore, for the previously stated reasons, the trial court erred in excluding Sheriff Warren's conviction of extortion.

II.

THE TRIAL COURT ERRED IN EXCLUDING MITIGATING EVIDENCE IN REGARDS TO THE TESTIMONY OF WILCHER'S FAMILY MEMBERS.

Victim impact statements are irrelevant as to a criminal defendant's guilt or culpability. Therefore, I must agree fully with Justice Stevens's dissent in Payne v. Tennessee, 501 U.S. 808, 856, 111 S.Ct. 2597, 2625-26, 115 L.Ed.2d 720 (1991). However, since Payne over-ruled Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), and South Carolina v. Gathers, 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989), which held that victim impact statements violated a defendant's Eighth Amendment rights, I will not beat a dead horse. However, I cannot agree with the majority that allows victim impact statements but does not allow a defendant's family to testify as to the impact upon them of the defendant's execution. Such a finding creates an unequal playing field. Essentially, a victim impact statement is the same as a defendant's family's testimony about the impact of the defendant's execution. Both are equally irrelevant. However, as the old proverb reads, what is good for the goose is good for the gander. Therefore, if victim impact statements are admissible, then a court must also find a defendant's family's impact testimony admissible as well. Yet, criminal law requires more than an equal playing field. Criminal defendants are entitled to heightened protection in criminal law, such as the Eighth Amendment right to allow all mitigating evidence at the sentencing stage, or as reflected in the rules of evidence; therefore, there should be no doubt that a defendant's family may testify as to the impact of the defendant's death just as the victim's family has done.

When Payne over-ruled Booth and Gathers, the United States Supreme Court did not state that all victim impact statements are admissible or even should be admitted. The highest Court only stated that the Eighth Amendment does not erect a per se bar. Payne, 501 U.S. at 827, 111 S.Ct. at 2609. A victim impact statement must not unduly prejudice the defendant as to render the trial fundamentally unfair. Payne, 501 U.S. at 825, 111 S.Ct. at 2608. Payne justified admitting victim impact statements by demanding fairness and equality, "``[J]ustice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it narrowed to a filament. We are to keep the balance true.'" Payne, at 827, 111 S.Ct. at 2609 (quoting Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934)). Thus, the majority in Payne harped on the notion that victim impact statements were relevant in the sentencing phase as an act of fairness. Payne, at 827, 111 S.Ct. at 2609. See also Payne, at 833, 111 S.Ct. at 2612-13 (Scalia, J. concurring) ("[T]he Eighth Amendment permits parity between mitigating and aggravating factors."). Since a victim is not on trial, the victim's character and morality are not on trial. The impact upon a victim's family is not on trial either. What is on trial is the guilt and culpability of the defendant. However, now that victim impact statements are admissible, any similar mitigating evidence should be deemed relevant on the basis of fairness and equal parity.

While Payne justified the use of victim impact statements in the name of fairness, Payne did not take away Eighth Amendment rights specifically due an accused. Payne reiterated that the Eighth Amendment imposes special limitations when the death penalty is imposed. Of those limitations, "``States cannot limit the sentencer's consideration of any relevant circumstance that could cause it to decline to impose the penalty. In this respect, the State cannot challenge the sentencer's discretion, but must allow it to consider any relevant information offered by the defendant.'" Payne, at 824, 111 S.Ct. at 2608 (quoting McCleskey v. Kemp, 481 U.S. 279, 305-06, 107 S.Ct. 1756, 1774, 95 L.Ed.2d 262 (1987)). Furthermore, mitigating factors have been allowed in an effort to treat defendants as "uniquely individual human beings." Payne, at 822, 111 S.Ct. at 2606-07; Booth, 482 U.S. at 504, 107 S.Ct. at 2533-34; Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976). Since the law requires the State to treat a defendant as an unique human being, the impact on the defendant's family of defendant's death is relevant; this is even more true in light of the fact that victim impact statements are admissible at the sentencing stage.

Criminal law was created with the notion of protecting the innocent and punishing the guilty. However, since the State has great power over its constituents, our criminal system affords individuals certain rights and protections. In the words of Justice Stevens:

The Constitution grants certain rights to the criminal defendant and imposes special limitations on the State designed to protect the individual from overreaching by the disproportionately powerful State. Thus, the State must prove a defendant's guilt beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Rules of evidence are also weighted in the defendant's favor. For example, the prosecution generally cannot introduce evidence of the defendant's character to prove his propensity to commit a crime, but the defendant can introduce such reputation evidence to show his law-abiding nature. See, e.g., Fed. Rule Evid. 404(a).

Payne, 501 U.S. at 860, 111 S.Ct. at 2627-28 (Stevens, J., dissenting). Reason dictates that since victim impact statements are now deemed relevant, there should be no question that a defendant's family impact statement concerning a defendant's death is relevant, admissible, and protected by the Eighth Amendment.

The majority relies on three Mississippi cases in determining that a defendant's family testimony about the impact of the possibility of death of the defendant is neither admissible nor relevant. The first Mississippi case, which the later cases rely on as precedent, is Mease v. State, 539 So.2d 1324 (Miss. 1989). Mease dealt solely with the issue of whether the lesser-included offense of manslaughter should have been included in the jury instruction with capital murder. Specifically, Mease addressed whether manslaughter should have been included as jury instructions for the murder of a sheriff. The case never addressed nor mentioned family testimony as a mitigating circumstance at the sentencing stage of a capital case. Therefore, Mease is inapplicable precedent authority.

In the second case, Turner v. State, 573 So.2d 657 (Miss. 1990), the defendant wanted to introduce testimony of another family and the impact of the death penalty upon that family whose son was executed. The case sub judice is entirely different from Turner. In the case sub judice, Wilcher wanted to introduce his own family's testimony. The last and most recent case is Simon v. State, 688 So.2d 791 (Miss. 1995). In Simon, the trial court refused to permit Simon's family to testify in order to show the impact Simon's death would have on their lives. Thus, Simon and the case sub judice are identical. However, Simon incorrectly relied on Turner and Mease as authority. As previously stated, Mease never addressed the issue at hand. Turner did not address whether a defendant's own family could testify. Simon also ignored Payne. Therefore, the majority is incorrect in finding that this Court has dealt with this issue before.

III.

THE TRIAL COURT ERRED BY INSTRUCTING THE JURY THAT IT COULD CONSIDER WILCHER'S CONVICTION FOR THE MURDER OF THE SECOND VICTIM AS AN AGGRAVATING CIRCUMSTANCE.

The majority incorrectly concluded that Wilcher's second and later conviction in Wilcher (Rankin County) 94-DP-00761 was properly considered as an aggravating factor in Wilcher (Harrison County) 94-DP-00760. The majority fails to recognize the long settled premise that a criminal conviction is not final until sentencing. While "conviction" is often used in reference to the ascertainment of guilt, a conviction, as a final judgement, includes the sentence. In 24 CJS Criminal Law § 1458, "conviction", in its technical legal sense, "means the final consummation of the prosecution against accused including the judgement or sentence rendered pursuant to a verdict, confession, or plea of guilty." Mississippi reaffirmed this concept of "conviction" as a final judgement in Lang v. State, 238 Miss. 677, 119 So.2d 608 (1960). This Court stated that a conviction was not a final judgement until the defendant is properly sentenced. Lang, 238 Miss. at 680, 119 So.2d 608. Thus, where Lang was convicted for rape but not sentenced, this Court did not have jurisdiction to hear the appeal. Lang, at 680, 119 So.2d 608; Lemly v. State, 69 Miss. 628, 12 So. 559 (1892). Therefore, a conviction is not a final judgement until a defendant is properly sentenced. See also Ex Parte White, 75 Okla. Crim. 204, 130 P.2d 103, 104 (1942)("conviction" means a final judgement of the court based upon a plea or a verdict of guilt). Therefore, the majority was incorrect in finding no error when the trial court allowed the 94-00761 (Rankin County) conviction as an aggravating factor in the 94-00760 (Harrison County) case.

IV.

THE PROSECUTOR'S CLOSING ARGUMENT CONSTITUTED REVERSIBLE ERROR.

No doubt, attorneys are given latitude in their closing arguments. However, the prosecution went beyond reasonable limits on closing argument. In Williams v. State, 522 So.2d 201, 209 (Miss. 1988), this Court addressed prosecutorial comments made to the jury concerning "who is the state" and "send a message" as made in the case sub judice. This Court stated:

... [W]e consider the argument improper. The jurors are representatives of the community in one sense, but they are not to vote in a representative capacity. Each juror is to apply the law to the evidence and vote accordingly. The issue which each juror must resolve is not whether or not he or she wishes to "send a message" but whether or not he or she believes that the evidence showed the defendant to be guilty of the crime charged. The jury is an arm of the State but it is not an arm of the prosecution. The State includes both the prosecution and the accused. The function of the jury is to weigh the evidence and determine the facts. When the prosecution wishes to send a message they should employ Western Union. Mississippi jurors are not messenger boys.

Williams, at 209. Even though Williams did not reverse the conviction on the assignment of error concerning the improper prosecution closing argument, this Court warned prosecutors against making such arguments. If this Court continues to allow improper remarks such as "send a message," and only note the Court's distaste of such remarks, then prosecutors will continue making improper comments as is the case here. Therefore, this Court must reverse on grounds of improper prosecutorial comments and "send a message" to the prosecutors that this Court will not approve and affirm such egregious conduct.

CONCLUSION

In light of the foregoing errors by the trial court in the case sub judice, Wilcher was denied a fair sentencing trial and protection of his rights. I cannot agree with the majority's conclusion that these errors were nonexistent. Therefore, I must respectfully dissent and would reverse.

McRAE, J., joins this opinion.

BANKS, Justice, dissenting:

By reference, I reiterate the views that I expressed in my separate opinion in Wilcher v. State, 94-DP-00760-SCT and dissent from the result reached by the majority.

SULLIVAN, P.J., joins this opinion.

NOTES

[1] See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

[*] Case was originally affirmed in this Court but on remand from U.S. Supreme Court, case was remanded by this Court for a new sentencing hearing.