text:
    STATE of Louisiana v. Charles H. SERGON, Defendant-Appellant.
    No. CR 83-784.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.
    Shelby Bohannon, Alexandria, for defendant-appellant.
    Edward E. Roberts, Asst. Dist. Atty., Alexandria, for plaintiff-appellee.

      Before DOMENGEAUX, STOKER and DOUCET, JJ.
   DOMENGEAUX, Judge.

Defendant, Charles Sergon, was charged by bill of information with forcible rape, in violation of La.R.S. 14:42.1. Upon motion of the State, the district court ordered the bill of information amended; Sergon was charged with simple rape. The accused then withdrew his former plea of not guilty and entered a plea of guilty to simple rape. Following the standard of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the Court explained to the defendant his constitutional right of trial by jury, right to confront his accusers, and right against self incrimination. The Court was satisfied that the defendant fully and completely understood his constitutional rights and the charge pending against him. The Court further found that the defendant intelligently waived his rights and therefore the Court allowed him to plead guilty to the charge of simple rape.

On July 1, 1983, defendant was sentenced to five (5) years at hard labor with credit given for time served. Following appropriate objection, defendant perfected this appeal.

ASSIGNMENTS OF ERROR

Defendant urges that the trial court erred by imposing an excessive sentence in violation of the Eighth Amendment of the United States Constitution which prohibits cruel and unusual punishment, and in violation of the sentencing guidelines provided in La.C.Cr.P. Art. 894.1.

FACTS

The events of February 13, 1983, were related by the Court during the sentencing proceeding. Defendant was 29 years old, employed in Natchitoches, Louisiana, and was also a member of the Louisiana National Guard. Defendant pled guilty to commiting the offense of simple rape wherein he had sexual intercourse with a mental patient at Pinecrest State Hospital in Pineville, Louisiana. The district judge determined that the victim did not understand or comprehend the nature of the offense because of her mental condition, and further, that defendant knew of the victim’s incapacity.

REVIEW OF SENTENCE

Defendant complains that the sentence imposed, five (5) years at hard labor, is in violation of the Eighth Amendment and further, that the sentencing guidelines set forth in La.C.Cr.P. Art. 894.1 were not followed.

The defendant contends that the trial judge did not state for the record the considerations and factual basis for the sentence imposed. However, in our review of the record we find that the sentencing judge did state for the record the reasons for the term of imprisonment. The Court carefully explained the considerations taken into account and the factual basis for imposition of the sentence. The Court noted the range of sentencing, and that defendant was in need of correctional treatment most effectively provided by commitment to an institution; additionally, the Court noted that to impose a lesser sentence would deprecate the seriousness of defendant’s crime.

In sentencing defendant, the Court gave a specific analysis of the defendant’s file. In formulating the length of the sentence, the Court considered the mitigating factors in favor of the defendant. However, the Court stated that the offense charged was despicable, and that imprisonment was warranted in order to prevent a mockery of justice. State v. Lane, 427 So.2d 1276 (La. App. 2nd Cir.1983). After weighing the totality of the circumstances, the Court concluded that the factors favoring imprisonment far outweigh any mitigating factors which might be accorded to the defendant.

The Court then proceeded to elaborate on the guidelines for sentencing a defendant guilty of a felony to imprisonment. “The trial court need not articulate every aggravating and mitigating circumstance, but the record must reflect that the Court adequately considered the sentencing guidelines in particularizing the sentence to the defendant. See State v. Gray, 404 So.2d 1215 (La.1981).” State v. Lathers, 414 So.2d 678 (La.1982). The trial judge complied with the provisions of La.C.Cr.P. Art. 894.1(C) in stating the considerations taken into account in particularizing the sentence to the offender and to the offense.

Further, as to determining what is excessive punishment under the Eighth Amendment’s prohibition against cruel and unusual punishment, the Louisiana Supreme Court in State v. Sepulvado, 367 So.2d 762 (La.1979), decided that the imposition of a sentence, even though within the statutory limits, may be unconstitutionally excessive in violation of Article 1, § 20 of the Louisiana Constitution of 1974. A sentence has been determined to be excessive punishment when the penalty is so disproportionate to the crime as to shock the senses of justice or if it is nothing more than the purposeless and needless imposition of pain and suffering. State v. Reed, 409 So.2d 266 (La.1982); State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir.1983). However, due to the trial judge’s unique advantage of viewing subjective factors not available from the appeal record, he is given wide discretion in the imposition of sentences within statutory limits, and a sentence imposed by him should not be set aside as excessive in the absence of manifest abuse of this discretion. Sepulvado and Goodman, supra; State v. Forshee, 395 So.2d 742 (La.1981); State v. Lane, supra.

The defendant was subject to a twenty-five (25) year term of imprisonment when he pled guilty to simple rape. By his plea of guilty, defendant in effect admitted that the offense was without the lawful consent of the victim and that he knew of the victim’s incapacity. State v. McDowell, 427 So.2d 1346 (La.App. 2nd Cir.1983). Under the circumstances set out herein it seems to us that the five (5) year sentence is indeed light, considering that the defendant could have gotten twenty-five (25) years on the reduced charge. The sentence of five (5) years at hard labor is fully supported and articulated and is not excessive.

We are unable to find any manifest error. The trial judge complied with proper procedure as set forth in the sentencing guidelines and the sentence imposed followed a plea of guilty to a most serious crime under the laws of the State of Louisiana. Therefore we will not disturb this sentence on appeal.

DECREE

For the above and foregoing reasons, defendant’s sentence is affirmed.

AFFIRMED.

      . La.R.S. 14:42.1 provides:
      “Forcible rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.
      Whoever commits the crime of forcible rape shall be imprisoned at hard labor for not less than two nor more than forty years. At least two years of the sentence imposed shall be without benefit of probation, parole, or suspension of sentence."

      . La.R.S. 14:43 provides in pertinent part:
      "Simple rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
      1) Where the victim is incapable of resisting or of understanding the nature of the act by reason of stupor or abnormal condition of the mind produced by an intoxicating, narcotic, or anesthetic agent, administered by or with the privity of the offender; or when victim has such incapacity, by reason of a stupor or abnormal condition of mind from any cause, and the offender knew or should have known of the victim’s incapacity; or
      2) Where the victim is incapable, through unsoundness of mind, whether temporary or permanent, of understanding the nature of the act; and the offender knew or should have known of the victim’s incapacity; or
      3) Where the female victim submits under the belief that the person committing the act is her husband and such belief is intentionally induced by any artifice, pretense, or concealment practiced by the offender.”

      . The penal clause of La.R.S. 14:43 provides:
      "Whoever commits the crime of simple rape shall be imprisoned, with or without hard labor, for not more than twenty-five years."

      . La.C.Cr.P. Art. 894.1 states:
      “A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
      (1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
      (2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
      (3) A lesser sentence will deprecate the seriousness of the defendant's crime.
      B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation:
      (1) The defendant’s criminal conduct neither caused nor threatened serious harm;
      (2) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm;
      (3) The defendant acted under strong provocation;
      (4) There was substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
      (5) The victim of the defendant's criminal conduct induced or facilitated its commission;
      (6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained;
      (7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime;
      (8) The defendant’s criminal conduct was the result of circumstances unlikely to recur;
      (9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime;
      (10) The defendant is particularly likely to respond affirmatively to probationary treatment; and
      (11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
      C. The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.”

      . The author of this opinion is compelled to again state his position as to appellate review of sentences for excessiveness. Our state constitution does not provide for nor does it mandate judicial review of sentences which fall within the limits set by the respective criminal statutes. See State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir.1983), concurring opinion at 529; State v. Vallare, 430 So.2d 1336 (La.App. 3rd Cir. 1983); concurring opinion at 1339, writ denied, 433 So.2d 729 (La.1983). See also State v. Shelby, 438 So.2d 1166 (La.App. 3rd Cir.1983), concurring opinion at 1169.


source: Caselaw Access Project

author: GUIDRY, Judge.

license: Public Domain

text:
    STATE of Louisiana, Plaintiff-Relator, v. Winfred BURGE, Defendant-Respondent.
    No. K83-1063.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.
    Writ Denied June 8, 1984.

      William J. Guste, Jr., Atty. Gen., William R. Weatherford, Asst. Atty. Gen., Jerry Jones, Dist. Atty., Baton Rouge, for plaintiff-relator.
    Richard P. Ieyoub, Lake Charles, for defendant-respondent.
    Before GUIDRY, FORET and CULPEP-PER, JJ.

       Judge William A. Culpepper, Retired, Judge Ad Hoc.

   GUIDRY, Judge.

The defendant, Winfred Burge, was charged with simple arson, a violation of LSA-R.S. 14:52. The defendant filed a motion to suppress evidence seized as a result of the investigation of the fire. After a hearing, the trial court granted the motion, suppressing the evidence. The State applied for a writ of certiorari to review the trial court’s ruling on the motion. We granted the writ to consider whether the evidence was properly suppressed.

FACTS

On October 14, 1981, at approximately 8:45 p.m., the Hackberry Volunteer Fire Department responded to a fire call at the Richmond Seafood Company in Hackberry, Louisiana. When the firemen arrived, the southern portion of the building was in flames. After the fire was extinguished, the firemen determined that the building was leased by the defendant, Winfred Burge, who arrived at the scene after the fire was doused. Although the firemen entered the building after the fire was doused to investigate, darkness and smoke prevented the firemen from determining the origin of the fire at that time. The chief of the Fire Department, Gerald L. Landry, told Burge that he would return the following day to determine the origin of the fire.

Early the following morning, Landry received a phone call wherein the caller advised Landry to investigate the fire closely. The caller stated that he suspected that Burge intentionally burned the building. Landry called the State Fire Marshal’s office to seek assistance in the investigation.

At approximately 3:00 p.m. the following day, Landry returned to the scene of the fire to conduct the investigation. He was joined by a Deputy State Fire Marshal, Charles E. George. During the course of the investigation, they removed a circuit breaker panel and a five gallon can partially filled with fuel. George also took photographs of the scene. The breaker panel, can and the photographs are the items of evidence sought to be suppressed.

MOTION TO SUPPRESS

The trial court held that the evidence was seized in an unconstitutional search. The court found that any search subsequent to the dousing of the fire required a warrant, and any search conducted without such a warrant is unreasonable.

In Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978), the Supreme Court considered the scope of the authority of firemen and fire investigators to search fire damaged premises after a fire is extinguished. In that case, the fire in question occurred in a furniture store shortly before midnight. Firefighters had successfully brought the blaze under control when the fire chief arrived at approximately 2:00 a.m. to begin his investigation into the cause of the fire. The fire chief, along with a police detective, conducted an examination of the premises, wherein they took photographs and seized two plastic containers of flammable liquid. By 4:00 a.m., the fire had been extinguished and the firefighters had left the scene. The fire chief and the police detective also left the scene, as any further investigation was hampered by darkness, smoke, and steam. The fire chief returned following daybreak, at approximately 8:00 a.m., to continue the investigation. After a cursory examination, he departed and returned at approximately 9:00 a.m., accompanied by the police detective who assisted him earlier in the morning. During this investigation, additional evidence of arson was seized which was later sought to be introduced against the defendants. Some three weeks later, a State Police arson investigator entered the premises and took photographs and seized additional physical evidence. This evidence was likewise sought to be introduced against the defendants.

The Michigan Supreme Court held that once the fire was extinguished and the firefighters left the premises, a warrant was required to re-enter and search the premises, unless there was consent or the premises had been abandoned.

The Supreme Court held that the protections of the Fourth Amendment, made applicable to the states by the Fourteenth Amendment, apply to entries and searches made by firefighters and fire investigators. Absent a recognized exception, a warrant is required to validate such searches. One such exception is recognized in cases where a warrantless entry is made at a time when there is a compelling need for official action and there is no time to secure a warrant.

The court observed that a burning building clearly presents an emergency of sufficient exigency to justify a warrantless entry into the building. The court further held that, once the fire has been extinguished, fire officials may remain on the premises for a reasonable time in order to investigate the cause of the fire. Any seizure of evidence made while conducting such an investigation is constitutional.

The court held that the evidence seized in the re-entries into the store on the morning following the fire was admissible. A warrant was not necessary because the re-entries were nothing more than a continuance of the initial search, which was temporarily delayed due to darkness, steam and smoke. The court found that all evidence seized in subsequent warrantless searches was inadmissible, since such searches were detached from the initial exigency.

In the instant case, the issue of the admissibility of the items of evidence seized turns on whether the search conducted at 3:00 p.m., the day following the fire, was a separate post-fire search or merely a continuation of the search which was begun the night before. If the search is determined to be a continuation of the initial search, the evidence seized is admissible and the trial court’s order suppressing the evidence was error.

As in Michigan v. Tyler, supra, the fire investigators in the instant case were prevented from completing their investigation into the cause of the fire because of darkness and smoke. Before he left the scene, Fire Chief Landry advised the defendant that he would resume the investigation the following day. Landry, a volunteer fireman, reported to his regular place of employment the following morning, completed the work day, and then returned to the Richmond Seafood Company at approximately 3:00 p.m. to continue his investigation of the cause of the fire.

We conclude that the search conducted on the afternoon following the fire was a continuation of the initial search conducted the previous evening. The defendant asserts that the instant ease should be distinguished from Michigan v. Tyler, supra, due to the lapse of time between the initial search and the resumption of the investigation. In our view, the lapse of several hours did nothing to change the character of the search as a mere continuation of that begun previously. This is made clear by the fact that the defendant was informed on the night of the fire that the investigation into its cause was not complete, but rather would be resumed the following day.

The Supreme Court again addressed the issues here involved in the recent case of Michigan v. Clifford, — U.S. -, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984). In that case, firemen answered a call to a fire at a private residence at approximately 5:42 a.m. By 7:04 a.m., the fire had been extinguished and all fire and police personnel left the scene. Because the fire department suspected arson, a fire investigator with the arson section of the Detroit Fire Department was instructed to investigate the fire. The investigator and his partner arrived at the scene at approximately 1:00 p.m. the same day. When they arrived, a work crew was in the process of boarding up the house to secure it against intrusion. The homeowners, who were away at the time, had requested that the foregoing security measures be taken. At 1:30 p.m., the investigators entered the home with neither a warrant nor consent. They seized several items of evidence which were introduced against the defendant homeowners.

The Supreme Court found that the search conducted by the special arson investigators was unconstitutional. The court distinguished the case from Michigan v. Tyler, supra, in the following language:

“As the State conceded at oral argument, this ease is distinguishable for several reasons. First, the challenged search was not a continuation of an earlier search. Between the time the firefighters had extinguished the blaze and left the scene and the arson investigators first arrived about 1:00 p.m. to begin their investigation, the Cliffords had taken steps to secure the privacy interests that remained in their residence against further intrusion. These efforts separate the entry made to extinguish the blaze from that made later by different officers to investigate its origin. Second, the privacy interests in the residence— particularly after the Cliffords had acted — were significantly greater than those in the fire-damaged furniture store, making the delay between the fire and the mid-day search unreasonable absent a warrant, consent, or exigent circumstances. We frequently have noted that privacy interests are especially strong in a private residence.7 These facts — the interim efforts to secure the burned out premises and the heightened privacy interests in the home — distinguish this case from Tyler. At least where a homeowner has made a reasonable effort to secure his fire-damaged home after the blaze has been extinguished and the fire and police units have left the scene, we hold that a subsequent post-fire search must be conducted pursuant to a warrant, consent, or the identification of some new exigency.8 So long as the primary purpose is to ascertain the cause of the fire, an administrative warrant will suffice.” (footnotes omitted).

Two factors — the interim efforts to secure the building and the heightened privacy interest in a private residence — prompted the Supreme Court to distinguish the case from Michigan v. Tyler. Neither factor is present in the instant case. On the contrary, the record fails to show any efforts to secure the building on the part of the defendant, who was informed that the investigation would continue the following day. Because the building here involved was a commercial establishment, the privacy interest attendant to a private residence is also absent.

It is noteworthy that, in reaching the conclusion that the search was not a continuation of the previous investigation, the Supreme Court in the Clifford case relied on the fact that interim efforts were made to secure the premises, and not on-the mere lapse of time between the departure of the fire and police personnel and the arrival of the arson investigators. This is consistent with our view that the lapse of time between the postponement'of the initial investigation and the subsequent resumption is not the most important factor in determining whether the subsequent search may be considered a continuation of the initial investigation. While reasonable diligence in resuming the investigation should be required, a more important consideration is whether the subsequent search is conducted to complete a job which, due to unavoidable circumstances, i.e., darkness and smoke, was necessarily postponed, or whether the subsequent search is conducted to gather evidence for a criminal prosecution. The record in the instant case supports the former.

In sum, we find that, to qualify as a continuation of an initial fire investigation postponed by darkness, a search need not be resumed at the break of day. Such a requirement would be unreasonable, particularly in communities such as Hackberry, which relies on vplunteers for fire proteetion. In the instant case, Fire Chief Landry resumed the search at the earliest practicable time, under circumstances that show that the search was clearly a continuation of the initial investigation. Thus, under Michigan v. Tyler, supra, the seizure of evidence was constitutional, and the trial court judgment suppressing such evidence was error.

For the foregoing reasons, the writ granted is made peremptory, and the trial court judgment of October 12, 1983 is reversed. The motion to suppress filed by the defendant is hereby dismissed and this matter is remanded to the trial court for further proceedings consistent with the views herein expressed.

REVERSED AND RENDERED.

      . The phone call to Chief Landry wherein the caller advised the Chief to look closely for evidence of arson does not, in our view, change the character of the subsequent search as a continuation of that begun the night before. Had a subsequent search been prompted by such a call, we might reach a different conclusion. However, the record clearly shows that the subsequent search was planned (and the defendant notified thereof) prior to the time the call was received.


author: ROBERTSON, Justice,

text:
    PMZ OIL COMPANY, Appellant, v. Robert LUCROY and Patricia Lucroy, Appellees.
    No. 54751.
    Supreme Court of Mississippi.
    March 21, 1984.

      C.E. Sorey, II, Ward, Martin, Terry, King & Sorey, Vicksburg, for appellant.
    Robert G. Ellis, Ellis, Braddock & Bost, Vicksburg, for appellees.
    Before WALKER, P.J., and HAWKINS and ROBERTSON, JJ.
   ROBERTSON, Justice,

for the Court:

I.

This appeal raises the question whether the developer of a real estate subdivision, the plat and covenants of which have not been recorded, should be equitably es-topped from violating those covenants communicated to and relied upon by homeowners.

Here the developer told all lot purchasers, including Robert and Patricia Lucroy, the complainants below and appellees here, that its sixteen lot subdivision would be restricted to one quality single-family dwelling per lot. The Lucroys relied on these representations and purchased their lot and built their home. Thereafter, on one of the lots it retained, the developer sought to build six townhouse condominiums, a clear violation of the covenants communicated to the Lucroys.

After plenary hearing on the merits, the Chancellor held the developer estopped from violating the one-single-family-dwelling-per-lot-covenant. We affirm.

II.

A.

PMZ Oil Co., Defendant below and Appellant here, is a Mississippi corporation having its principal place of business in Warren County, Mississippi. J. Murray Pinkston, Jr., has at all times been the dominant individual within and actor on behalf of the corporation.

At some time in 1976 PMZ acquired two adjoining tracts of land in Section 33, Township 16 North, Range 4 East, Warren County, Mississippi. The property adjoins Porters Chapel Road near Vicksburg.

In the following year PMZ engaged the services of professional surveyors who inspected the land and prepared a subdivision plat, dividing the land into 16 lots of various sizes and configurations. Each lot is in excess of one acre in size and several approach two acres. The plat was never presented to the Warren County Board of Supervisors for approval nor has it ever been recorded in the office of the Chancery Clerk of Warren County. See Miss.Code Ann. §§ 17-1-23, 19-27-21, et seq. (1972).

PMZ originally planned to develop an exclusive residential subdivision to be known as Raintree Subdivision. Acting through another corporation, Pinkston built a quality home on Lot 10. This home was designed to set the tone for the whole subdivision. On November 7, 1977, the Lot 10 dwelling was conveyed by Pinkston’s other corporation to John C. Stepan and Rebecca E. Stepan. The deed reflecting the conveyance contained 13 protective covenants, the critical one of which provided that “no more than one (1) residence shall be built on a lot.”

On June 28, 1978, Pinkston, again acting through another of his corporations, caused Lot 12 to be sold to Dan J. Cizek and Beverly J. Cizek. The deed to the Cizeks contained the same protective covenants found in the deed to the Stepans.

In the spring of 1978 Robert Lucroy learned of the proposed Raintree Subdivision. He engaged the services of Ernest Thomas, a real estate broker in Vicksburg. Acting on behalf of the Lucroys, Thomas approached Pinkston and inquired regarding the purchase of one of the lots in the Raintree Subdivision. Pinkston displayed to Thomas the subdivision plat and explained the gist of the protective covenants PMZ intended to impose within the subdivision. Pinkston made it clear to the Lu-croys’ agent that he contemplated a very exclusive subdivision, that each home would have to be at least 2,000 square feet and of quality build, and that only single-family dwellings would be allowed.

On January 25, 1979, PMZ Oil Co. executed and delivered unto Robert H. Lucroy and Patricia A. Lucroy its warranty deed conveying to the Lucroys Lot 11 of the Raintree Subdivision. This deed contained the same protective covenants as had been presented to realtor Thomas, and as had been included in the deeds to the Stepans and the Cizeks.

The deed had been preceded by sales contracts between PMZ and the Lucroys dated April 6,1978, and May 16,1978. The evidence reflects that some time after the execution of the April 6, 1978, contract but prior to the May 16, 1978, contract, Pink-ston talked directly to Mr. Lucroy and explained the 13 protective covenants that were to apply to the Raintree Subdivision.

At some time in 1979 (the precise date is not clear from the record), the Lucroys constructed on their Lot 11 the home in which they presently reside.

On August 21, 1979, PMZ conveyed to the Cizeks Lot 13, the lot adjoining the lot the Cizeks had previously purchased. This deed contained the protective covenants in issue. On February 13, 1980, PMZ conveyed to Ferguson Builders of Vicksburg, Inc. three lots — Lots 14, 15 and 16, again with the protective covenants contained in the deed the same as in the deed to the Lucroys.

At the time the Lucroys began the construction of their home, they were aware of the protective covénants by virtue of Mr. Lucroy’s discussions with Mr. Pinkston, by virtue of information conveyed by Mr. Pinkston through Mr. Thomas as the Lu-croys’ agent, and from the terms of the warranty deed of January 25, 1979. At that time there were at least two other deeds on file in the Office of the Chancery Clerk of Warren County, Mississippi containing the same protective covenants. These deeds affected Lots 10 and 12, the lots on either side of Lot 11 which was acquired by the Lucroys. One of those deeds, that to the Stepans, dated November 7, 1977, had been of record for a year and 72 days prior to the consummation of the sale to the Lucroys, and, of course, prior to the Lucroys commencing construction on their lot.

The problems began in 1980 when Pink-ston advised each of the then residents of the subdivision of his intention to build six townhouse condominiums on Lot 3. He presented to each a proposed plat which considerably reduced the number of lots that would be considered a part of Raintree Subdivision. The Lucroys and others made it clear, first that they considered the covenants as limiting the use of all 16 lots in Raintree Subdivision and second, that they considered these covenants as binding upon Pinkston and his corporation, PMZ Oil Co., as well as all subsequent purchasers of lots. They refused to consent to the construction of the townhouses. Pinkston’s retort was that, if the homeowners prevented him from building the townhouses, he would not pave Raintree Drive as he had previously promised.

Late in 1980 Pinkston began to lay the foundation for the townhouses on Lot 3.

B.

On September 11, 1980, Robert Lucroy and Patricia Lucroy commenced this civil action by filing their bill of complaint against PMZ Oil Co. in the Chancery Court of Warren County, Mississippi. The Lu-croys asked, inter alia, that PMZ be enjoined from construction of the townhouses, as they were not single-family dwellings.

On May 20, 1981, the case was called for trial on its merits in the Chancery Court of Warren County, Mississippi, Hon. Nat W. Bullard, Chancellor, presiding. After receipt of considerable testimony and exhibits on behalf of each of the parties, the Chancellor took the matter under advisement.

On October 16, 1981, Chancellor Bullard released an opinion containing findings of fact and conclusions of law and providing in essence that PMZ Oil Co. would be enjoined from constructing the townhouses on Lot 3 and from violating in other ways the restrictive covenants in question. The Chancellor’s opinion further provided:

“Defendants will be further mandatorily enjoined to record in the land records of Warren County in the Office of the Chancery Clerk the restrictive covenants as they appear in the deed to Mr. and Mrs. Lucroy as covenants running with the land applicable to the land described by metes and bounds that constitute Lots 1-8 of Raintree Subdivision (unrecorded), or as applicable to said lots if defendant elects to record the plat of said Raintree Subdivision.”

In due course the parties presented to Chancellor Bullard a decree the form of which each had approved, which decree in turn was entered by the Chancellor on November 20, 1981. That decree carried into effect the essence of the opinion which had previously been released by Chancellor Bul-lard.

III.

A.

Agrieved at the Chancellor’s injunction, PMZ Oil Co. appeals to this Court and presents a single assignment of error, to wit:

The Court erred in granting the Appel-lees the relief prayed for in their complaint, based upon estoppel, in the absence of proof of reliance to their detriment on the contended actions of Appellant.

The decree appealed from did not purport to enforce any legal right vested in the Lucroys. The Chancellor in no way held that the covenants imposed legal restrictions upon the use of Lot 3 (or any of the other lots still owned by PMZ Oil Co.), as would have been the case had the plat and covenants been formally approved by the Board of Supervisors of Warren County and filed for record in the land records of Warren County, Mississippi. Rather, the Chancellor held:

“This arises as a matter of equity and fair dealing — defendant (PMZ) having represented that the covenants applied to the whole unrecorded subdivision and having followed that general scheme halfway, is now estopped to deny that the lots remaining are subject to the same restrictions for the benefit of those who dealt with defendant in reliance on those representations.

By its assignment of error, PMZ challenges the Chancellor’s implicit fact finding that the Lucroys relied upon PMZ/Pinkston’s representations. PMZ in no way challenges the fact finding that the representations were made.

We regard the issue as a relatively simple one, factually. The Lucroys were interested in building a new residence in a quality subdivision. They had reviewed the plans of the proposed Raintree Subdivision, specifically including the plan for 16 lots each of which would be restricted in use to the construction of a single-family dwelling. The Lucroys were the third family to move into Raintree. When they began their construction, two other dwellings were already in place. In that the Lucroys had taken care to ascertain PMZ’s plan for the subdivision as a whole, it defies common sense to suggest that they proceeded to make the substantial investment of construction of a new home without caring whether the covenants would be enforced as to other lots.

B.

It is no secret that we sit as an appellate court, not as triers of the facts ab initio. Our scope of review of findings of fact is severely limited. Findings of fact made by a chancellor which are supported by credible evidence, or reasonable inferences which may be drawn from credible evidence, may not be set aside on appeal. Cotton v. McConnell, 435 So.2d 683, 685 (Miss.1983); Culbreath v. Johnson, 427 So.2d 705, 707-708 (Miss.1983). This is particularly true when, as here, we are concerned with a finding of fact substantially involving an individual’s state of mind — we regard the question of whether the Lucroys relied to their detriment as essentially involving the question of what was in their minds when they constructed their home.

To be sure, the Chancellor never found specifically that the Lucroys relied upon the representations of PMZ/Pinkston regarding the protective covenants. The Chancellor’s opinion does state that:

“Petitioners (the Lucroys) contend they purchased their lot in reliance on the representation that it would be in an exclusive single-family residential subdivision, protected by restrictive covenants, .... ”

The Chancellor further stated in his opinion that:

“Defendant having represented that the covenants applied to the whole unrecorded subdivision, and having followed that general scheme halfway, is now estopped to deny that the lots remaining are subject to the same restrictions for the benefit of those who dealt with defendant in reliance on those representations.”

The failure of the Chancellor to make an express finding of detrimental reliance on the part of the Lucroys is by no means fatal. Such a finding necessarily had to be made for the Chancellor to reach the result he reached, considering the view of the law articulated in his opinion. Taking that opinion as a whole, this finding of fact is implied. Where there are issues of fact resolution of which is essential to the judgment but with respect to which the chancellor makes no specific finding, we are required by our prior decisions and by sound institutional considerations to proceed on the assumption that the chancellor resolved all such fact issues in favor of appellee. Harris v. Bailey Avenue Park, 202 Miss. 776, 791, 32 So.2d 689, 694 (1947); Cotton v. McConnell, 435 So.2d 683, 685 (Miss. 1983).

IY.

A.

The decision below was grounded in the familiar, principle of equitable estoppel. We have reviewed the precedents in this state and find that we have no prior decision in which an estoppel has been invoked to enforce compliance with unrecorded protective covenants restricting land use. Our cases setting out the general concept of equitable estoppel, however, provide a useful and dispositive framework for our decision today.

We are concerned here with a doctrine which has its roots in the morals and ethics of our society. See Kelso v. Robinson, 172 Miss. 828, 840, 161 So. 135, 137 (1935); Stokes v. American Central Insurance Co., 211 Miss. 584, 589, 52 So.2d 358, 360 (1951). Fundamental notions of justice and fair dealings provide its under-girding. Whenever in equity and good conscience persons ought to behave ethically toward one another the seeds for a successful employment of equitable estoppel have been sown.

Adding flesh to the idea, the courts of this state have always, in proper cases, been prepared to

“hold a person to a representation made or a position assumed where otherwise inequitable consequences would result to another who, having the right to do so under all of the circumstances of the case, has in good faith relied thereon and been misled to his injury.” Stokes v. American Central Insurance Co., supra, 211 Miss, at 589, 52 So.2d at 360.

A party asserting equitable estoppel must show (1) that he has changed his position in reliance upon the conduct of another and (2) that he has suffered detriment caused by his change of his position in reliance upon such conduct. Birmingham v. Conger, 222 So.2d 388, 392-393 (Miss.1969); Thomas v. Bailey, 375 So.2d 1049, 1052 (Miss.1979); Ivy v. Grenada Bank, 401 So.2d 1302, 1303 (Miss.1981). In this context if PMZ’s conduct was substantially likely to cause the Lucroys, acting reasonably in their own right, to make the substantial investment of constructing their home on Lot 11 of the Raintree Subdivision, PMZ is estopped to deny or abrogate the covenants. See Alabama Great Southern Railway Co. v. McVay, 381 So.2d 607, 612 (Miss.1980).

Our approach to equitable estoppel is consistent with that throughout the country. We find wholly consistent with our law the articulation of the doctrine by the Supreme Judicial Court of Massachusetts in McLearn v. Hill, 276 Mass. 519, 177 N.E. 617, 77 A.L.R. 1039 (1931) as follows:

“In order to work an estoppel it must appear that one has been induced by the conduct of another to do something different from what otherwise would have been done, and which has resulted to his harm and that the other knew or had reasonable cause to know that such consequence might follow. But the doctrine of equitable estoppel is not applied except when to refuse it would be inequitable. The law does not regard estoppels with favor, nor extend them beyond the requirements of the transactions in which they originate.” 276 Mass, at 524, 177 N.E. at 619.

It is suggested here that the covenants may not be enforced against PMZ because they have not been signed by PMZ. Without doubt, our statute of frauds provides that no contract for the conveyance of an interest in land is binding unless signed by the party to be charged. Miss. Code Ann. § 15-3-l(c) (1972). Equitable estoppel, however, is a well-established exception to our statute of frauds. Our cases have repeatedly held that, where the elements of equitable estoppel are present, the statute of frauds constitutes no bar to enforcement of that to which a party has agreed. See Martin v. Franklin, 245 So.2d 602 (Miss.1971); Sanders v. Dantzler, 375 So.2d 774, 776-777 (Miss.1979).

B.

Of importance here is whether, in order that it be subjected to an equitable estop-pel, PMZ and its president Pinkston had in mind a fraudulent intent or scheme at the time of the negotiations and ultimately sale to the Lucroys. There is some loose talk in our opinions to the effect that such intent must have been present. See Perrien v. Mapp, 374 So.2d 794, 797 (Miss.1979); Perkins v. Kerby, 308 So.2d 914, 917 (Miss. 1975); Crowe v. Fotiades, 224 Miss. 422, 80 So.2d 478, 486 (1955).

The better view is that an equitable estoppel may be enforced in those cases in which it would be substantially unfair to allow a party to deny what he has previously induced another to believe and take action on. Our early ease of Staton v. Bryant, 55 Miss. 261, 273 (Miss.1877) suggests that one such as PMZ may not “change his attitude” to the substantial detriment of another and avoid an estoppel on grounds that at the outset his heart was pure. It is sufficient if the acts of the party sought to be estopped, although made without subjective intent to mislead, were, objectively speaking, calculated to mislead, and did mislead.

Fraudulent intent to mislead or deceive where present may often, when relied upon, produce inequity and hence an estop-pel. This does not mean that no estoppel may be enforced absent such intent ab initio. For there are cases, of which this is one, where there has resulted substantial inequity produced by a change of attitude sans original subjective fraudulent intent. Substantial inequity is our touchstone. Izard v. Mikell, 173 Miss. 770, 774, 163 So. 498, 499 (1935).

We find appropriate what has been said on this point by the Supreme Court of New Jersey in Howard v. West Jersey and Seashore Railroad Co., 102 N.J.Eq. 517, 141 A. 755 (1928), to-wit:

“... [I]t should be noted that, while the doctrine of estoppel in pais rests upon the ground of fraud, it is not essential that the representations or conduct giving rise to its application should be fraudulent in the strictly legal significance of that term, or with intent to mislead or deceive; the test appears to be whether in all the circumstances of the case conscience and duty of honest dealing should deny one the right to repudiate the consequences of his representations or conduct; whether the author of a proximate cause may justly repudiate its natural and reasonably anticipated effect; fraud, in the sense of a court of equity, properly including all acts, omissions and concealments which involve a breach of legal or equitable duty, trust or confidence, justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another.”

102 N.J.Eq. at 521, 141 A. at 757; Looney v. Trimount Theaters, 282 Mass. 275, 184 N.E. 683, 685 (1933). See Deposit Guaranty National Bank of Jackson v. Prudential Insurance Co. of America, 195 So.2d 506, 511 (Miss.1967).

V.

In this case PMZ Oil Co., acting through its president Murray Pinkston, represented first to the Lucroys’ agent, realtor Ernest Thomas, and then to the Lucroys themselves, that he planned an exclusive residential subdivision in Rain-tree. PMZ represented that the protective covenants would apply to all lots and that one of those covenants would be that in question here — the one restricting construction on each lot one single-family dwelling. Objectively speaking, PMZ and its officers should reasonably have anticipated that these representations would induce persons such as the Lucroys first to buy lots and then to build their homes. Prospective home builders such as the Lu-croys, as a matter of common sense, should reasonably be expected not only to rely on such representations regarding protective covenants but to insist upon such covenants before undertaking the substantial investment that construction of a residence involves in this day and time.

Applying the doctrine of equitable estop-pel, the Chancery Court held that PMZ Oil Co., as the subdivision’s developer, in good conscience may not be allowed to disregard the covenants it had imposed upon others to whom it sold lots. We note that the evidence is uncontradicted that PMZ made similar representations to all lot purchasers in the Raintree Subdivision. The same covenants were included in every other deed to a third party. Without exception PMZ had represented that these covenants would apply to all lots in the Raintree Subdivision. Mr. Pinkston, PMZ’s president, acknowledged that this was probably his original plan although he insisted that he never considered any of his plans to be final. These facts are more than sufficient to under gird the Chancery Court’s enforcement of an estoppel against PMZ.

The point was well made by the Supreme Court of New Mexico in a legally analogous context in Ute Park Summer Homes Association v. Maxwell Land Grant Co., 77 N.M. 730, 427 P.2d 249 (1967).

The rationale of the rule is that a grant- or, who induces purchasers, by use of a plat, to believe that streets, squares, courts, parks, or other open areas shown on the plat will be kept open for their use and benefit, and the purchasers have acted upon such inducement, is required by common honesty to do that which he represented he would do. It is the use made of the plat in inducing the purchasers, which gives rise to the legally enforceable right in the individual purchasers, and such is not dependent upon a dedication to public use, or upon the filing or recording of the plat. 427 P.2d at 251.

In its brief PMZ seeks comfort in the fact that the contract of sale had been signed by the Lucroys before Pinkston personally described to them PMZ’s plans for the subdivision. This PMZ argues undermines the Chancellor’s implicit detrimental reliance finding. The point fails, however, when it is remembered that Pinkston described his plans in full, including the protective covenants, to Ernest Thomas, the Lucroys’ agent, before the contract of sale was signed.

We note that in a sister state covenants have been enforced against persons with actual knowledge of the “general plan or scheme” of a subdivision. Jones v. Cook, 271 Ark. 870, 611 S.W.2d 506 (1981). This rule has been applied when the protective covenants have been contained in the deed to all knowing parties and also when the deed contains no covenants at all. Johnson v. Mt. Baker Park Presbyterian Church, 113 Wash. 458, 194 P. 536 (1920); see also, Hagan v. Sabal Palms, Inc., 186 So.2d 302 (Fla.App.1966). If a subsequent purchaser with knowledge of the general plan or scheme may be bound, surely the original developer who created the general plan or scheme in the first place, must be bound. See Tuttle v. Ohio Boulevard Land Co., 245 Mich. 188, 222 N.W. 171 (1928); and Ute Park Summer Homes Association v. Maxwell Land Grant Co., 77 N.M. 730, 427 P.2d 249, 252-255 (1967).

VI.

Nothing we say here does violence to any principle or rule of law eminating from our recording statutes. Interests in land do not become perfected against third persons until such time as the instrument creating the interest shall have been recorded in the office of the proper chancery clerk.

Equity acts in personam, and in this instance equity has acted in person-am. Where within the rules of law described above a court of equity determines that an estoppel should be enforced, it is entirely appropriate that the defendant should be personally directed to do that which is necessary to achieve compliance with the condition upon which the plaintiff has relied to his detriment.

Equity regards as done that which ought to be done. Burnett v. Burnett, 362 So.2d 828, 830 (Miss.1978); Mahaffey v. First National Bank, 231 Miss. 798, 821, 97 So.2d 756, 765 (1957). What ought to be done here is that the covenants should be recorded and enforced against one and all.

In the case at bar the Chancery Court has issued a personal decree enjoining PMZ Oil Co.

(a) from violating with respect to any of the lots it owns in the Raintree Subdivision, any of the provisions of the protective covenants contained in the deeds given to the parties who now own Lots 9-16;

(b) to record and place of record the plat of the Raintree Subdivision along with the protective covenants, all in the manner contemplated by the statutes;

(c) to include in the deeds conveying Lots 1-8 or any other lot within the subdivision it may own, the same protective covenants.

Considering the Chancellor’s findings of fact together with all reasonable inferences we may draw therefrom, to the extent that all of same are supported by substantial evidence, in the light of the principles of law announced above, our duty in this case becomes clear: the final decree of the Chancery Court of Warren County, Mississippi must be, and is, affirmed.

AFFIRMED.

PATTERSON, C.J., WALKER and ROY NOBLE LEE, P. JJ., and BOWLING, HAWKINS, DAN M. LEE, PRATHER and SULLIVAN, JJ., concur.


author: WALKER, Presiding Justice, HAWKINS, Justice,

text:
    John Earl BOOKER v. STATE of Mississippi.
    No. 54696.
    Supreme Court of Mississippi.
    March 21, 1984.
    Rehearing Denied April 18, 1984.

      Ellis Turnage, Morris & Turnage, Cieve McDowell, Cleveland, for appellant.
    Bill Allain, Atty. Gen. by Amy D. Whit-ten, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
   WALKER, Presiding Justice,

for the Court:

I.

This is an appeal from the Circuit Court of Tate County, wherein the appellant pled guilty to the charge of capital murder. After a trial to determine sentence, the jury rendered its unanimous verdict that the appellant should suffer the death penalty. Based upon this verdict, the trial judge sentenced Booker to death by lethal gas as provided in Mississippi Code Annotated section 99-19-51 (1972). It is from this verdict and sentence that Booker appeals and assigns the following as error:

(1) The trial court erred in failing to suppress the statement of the appellant;

(2) The trial court erred in failing to grant appellant’s motion to quash the special venire panel;

(3) The trial court erred in overruling defendant’s objections to the prosecution’s introduction of gruesome photographs;

(4) The trial court erred in overruling appellant’s objections to the testimony of the victim’s widow;

(5) The trial court erred in not granting the appellant’s motion for judgment N.O.Y. in that the verdict was contrary to the overwhelming weight of evidence; and

(6) The court is urged to consider the closing argument herein pursuant to its ruling in the Howell case.

(7) The jury’s sentence of death was against the overwhelming weight of the evidence and the result of an unconstitutional weighing process.

(8) The arbitrary and discriminatory imposition of the death penalty in this case violates the Eighth and Fourteenth Amendments.

(9) The prosecutor improperly used all of his peremptory challenges to exclude all Blacks from the jury, in violation of appellant’s constitutional rights.

II.

On the afternoon of March 11, 1981, Mr. O.M. Martin was found shot to death at his Charleston scrap iron business. Charleston Police Chief Jimmy Shows was dispatched to the scene. After arriving, the requested investigative assistance from the Tallahatchie County sheriff’s department and the Mississippi Highway Patrol.

Investigators A.D. Gatewood, Jay Clark, and Jimmy Dees responded to Chief Shows’ request for assistance. They proceeded to Mr. Martin’s scrap iron business, where they conducted an investigation and took photographs of the crime scene. Thereafter, one of the investigators proceeded to the hospital and took pictures of Mr. Martin’s body.

Through their investigation the officers learned that on the morning of March 11, 1981, John Earl Booker, the appellant, had helped load a truck at the scrap yard. On March 12, 1981, several of the officers went to Booker’s home to question him. While there, investigator Clark obtained written consent to search the pickup Booker was driving. The consent form was signed by Booker and Cora Jones, Booker’s girlfriend and owner of the pickup. A search of the pickup produced Booker’s wallet, which contained $123.00 and a small bag of marijuana.

Booker was then taken to the police station, where he was advised of his rights and then questioned by Chief Shows, Deputy Sheriff Doyel Morrow and Investigator Jimmy Dees. Throughout the questioning Booker denied any involvement in the crime but agreed to submit to a polygraph examination.

Accompanied by Investigator Dees, Deputy Sheriff Morrow and Chief Shows, Booker traveled to Jackson on March 12 for a polygraph, which was given at the Mississippi Highway Patrol Administration Building. After the test, Booker was taken to a waiting room while the results were being analyzed. At this point he indicated to Deputy Sheriff Morrow that he would like to make a statement. Morrow then called for Dees, who came into the room and advised Booker of his constitutional rights. Booker indicated that he understood these rights and agreed to waive them.

In his statement Booker confessed to killing Mr. Martin. In summary, he told the following story:

Booker and two accomplices agreed to rob Martin’s scrap iron business. When they arrived Mr. Martin was welding at the back of an old pickup truck. Booker pulled a nickel-plated .38 calibre pistol and shot Mr. Martin in the head. He then took Mr. Martin’s wallet, which contained a little over $400.00. Booker gave his two accomplices $100.00 each and kept the remaining $200.00 for himself. Booker told the officers that Martin was shot so that there would be no witnesses to the robbery.

After making the statement, Booker was placed under arrest and transported back to Charleston.

Booker’s two accomplices, Kermit Jones and Timothy Gardner, were also arrested. Shortly after their arrest, Lottie Jones, Kermit’s sister, surrendered a brown paper bag to the police. The bag contained a .38 calibre pistol and a wallet belonging to Mr. O.M. Martin. Mrs. Jones informed the officers that the bag had been hidden outside of their house.

On the defendant’s motion, venue was changed from Tallahatchie to Tate County due to the publicity surrounding the case. Trial commenced on July 20, 1981 and the appellant changed his plea from not guilty to guilty. Consequently, the trial consisted of the sentencing phase only.

On July 22, 1981 the jury returned its verdict, finding that the aggravating circumstances outweighed the mitigating circumstances and the defendant should receive the death penalty. In accordance with this verdict the trial judge sentenced Booker to be executed on September 11, 1981. This order was then stayed pending the outcome of this appeal.

III.

A.

In his first assignment of error the appellant urges that the trial court erred in failing to suppress the confession he gave to Deputy Sheriff Morrow and Investigator Jimmy Dees. The appellant contends that the officers threatened to beat him if he didn’t talk and, therefore, the confession is not voluntary.

The procedure for admitting a confession in the face of a challenge that it is involuntary was set forth in Agee v. State, 185 So.2d 671 (Miss.1966):

The State has the burden of proving the voluntariness of a confession. This burden is met by the testimony of an officer, or other person having knowledge of the facts, that the confession was voluntarily made without any threats, coercion, or offer of reward. This makes out a prima facie case for the State on the question of voluntariness. Lee v. State, 236 Miss. 716, 112 So.2d 254 (1959). When objection is made to the introduction of the confession, the accused is entitled to a preliminary hearing on the question of the admissibility of the confession. This hearing is conducted in the absence of the jury. Lee v. State, supra, is also authority for the proposition that when, after the State has made out a prima facie case as to the voluntariness of the confession, the accused offers testimony that violence, threats of violence, or offers of reward induced the confession, then the State must offer all the officers who were present when the accused was questioned and when the confession was signed, or give an adequate reason for the absence of any such witness. See also Holmes v. State, 211 Miss. 436, 51 So.2d 755 (1951).

185 So.2d 673.

A hearing was conducted outside the jury’s presence and the appellant testified that he gave a confession only because the officers threatened to take him into a room and make him talk. The State then called Investigator Dees and Deputy Sheriff Morrow, the two officers who were present when the confession was given. Both testified that the appellant was in no way threatened or coerced and that he gave the confession after twice being advised of his Miranda rights. At the conclusion of the hearing the trial judge held that Booker’s statement was free and voluntarily given. Based upon this finding, he ruled that it would be admitted into evidence.

The procedure followed by the trial court comports completely with the requirements set forth in Agee, supra. Although the trial judge made no specific finding that the appellant was not beaten, such is to be inferred from his holding that the confession was voluntarily given. This Court has held many times that whether a confession was voluntarily given is a question of fact for the trial court’s determination. Where there is substantial and believable evidence supporting his decision, it will not be overturned. See Harrigill v. State, 381 So.2d 619 (Miss.1980); Curry v. State, 328 So.2d 328 (Miss.1976); Clemons v. State, 316 So.2d 252 (Miss.1975). We are unable to say that the trial court’s ruling was contrary to the evidence. Accordingly, his finding will not be disturbed.

B.

The appellant next contends that the trial court erred in failing to grant his motion to quash the special venire panel.

On May 18, 1981 the appellant filed a motion for a special venire. The trial judge sustained the motion and ordered the Clerk of Tate County to draw 150 names from the jury wheel. He also directed the Clerk to give defense counsel notice of the time and date of the drawing so that he could be present to observe the drawing if he desired. After the names were drawn, only 67 were statutorily qualified to serve on the special venire.

Three allegations are made under this assignment of error. First, the appellant contends that the remaining number, 67, was not broad enough to legally constitute a special venire. We note that the appellant cites no authority for this contention, which is clearly without merit. Mississippi Code Annotated section 13-5-77 (1972) provides:

When any person charged with a capital crime, or with the crime of manslaughter, shall have been arraigned and the plea of not guilty entered, it shall be the duty of the court, upon the demand of the accused or the district attorney, to cause to be drawn, in open court, from the jury-box as many names as the judge in his discretion may direct, not to be less than forty, and it shall be the duty of the clerk to issue a special venire facias, commanding the sheriff to summon the persons whose names are so drawn, to attend the court on a particular day to be named in the writ. In case the special venire be exhausted without a jury being impaneled from those summoned and in attendance, the court shall proceed to make up the jury for the trial of the ease from the regular panel and tales jurors who may have been summoned for the day. If, after exhausting said regular panel and tales jurors, a competent jury be not obtained, the court shall direct the sheriff to summon forthwith as many tales jurors as shall be sufficient to complete the jury.
In the event that there should be no such box, or the same should be mislaid, or the names therein have been exhausted, then the court may order a special venire facias to be issued by the clerk, directing the sheriff to summon as many jurors as may be necessary, not less than forty, and, after exhausting the same, to impanel the jury as hereinbefore directed. The slips containing the names of all jurors drawn or summoned on a special venire, and not impaneled on the jury, shall be returned to the box from which they were drawn immediately after the jury shall be impaneled. If the special venire be not demanded, the jury shall be composed of the regular venire for the week and as many talesmen and bystanders as may be required, to be summoned under the order of the court.

In directing the Clerk to draw 150 names, the trial judge complied with the statutory requirement of ordering that not less than 40 names be drawn for the special venire. That the defendant was not prejudiced is further evidenced by the fact that the jury was seated without the special venire being exhausted.

The appellant secondly alleges that he was entitled to a jury containing members of his own race. However, this question is not properly preserved for appellate review as the record does not disclose the race of the jurors. But even if this question was properly before the Court, it would still fail. “Proportional representation of the races on a jury is not required. What is required is that county officials must see to it that jurys are in fact and in good faith selected without regard to race.” (Dorsey v. State, 243 So.2d 550, 552 (Miss. 1971)). In this case there is no allegation that the jury list did not reasonably reflect a cross-section of the community. This is all that the law requires; it does not guarantee the appellant á jury with members of his own race.

Finally, the appellant alleges under this assignment that the trial court erred in excluding for cause 16 members of the panel who were opposed to the death penalty. This same argument was presented in Irving v. State, 361 So.2d 1360 (Miss.1978), wherein the Court stated:

In Witherspoon [v. Illinois], the United States Supreme Court held:

“Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction." 391 U.S. [510] at 521-522, 88 S.Ct. [1770] at 1776-1777, 20 L.Ed.2d [776] at 784-785.

Following Witherspoon, this Court considered the procedure to be employed by trial judges in Myers v. State, 254 So.2d 891 (Miss.1971). That procedure follows:

“ ‘The proper method of bringing the death penalty to the attention of the special veniremen is for the trial judge to inform them that they have been summoned as veniremen in a capital case and that a verdict of guilty could result in the infliction of the death penalty. The judge should then ask them if any member of the panel has any conscientious scruples against the infliction of the death penalty, when the law authorizes it, in proper eases, and where the testimony warrants it. If there are those who say that they are opposed to the death penalty, the trial judge should then go further and ask those veniremen, who have answered in the affirmative, whether or not they could, nevertheless, follow the testimony and the instructions of the court and return a verdict of guilty although that verdict could result in the death penalty, if they, being the judges of the weight and worth of the evidence, were convinced of the guilt of the defendant and the circumstances warranted such a verdict. Those who say that they could follow the evidence and the instructions of the court should be retained, and those who cannot follow the instructions of the court should be released. The mere fact that a venireman is opposed to the death penalty does not disqualify him as a juryman, if he can do his duty as a citizen and juror and follow the instructions of the court, and where he is convinced of the defendant’s guilt he can convict him although the verdict of the jury may result in the death penalty’s being inflicted upon the defendant’ (Emphasis added). Armstrong v. State, Miss., 214 So.2d 589, at 593.” 254 So.2d at 893-894.

361 So. 2d 1368-69.

This procedure was followed by the court below. All 16 who were excluded indicated that they would not follow the law if it meant imposing the death penalty. In Stevenson v. State, 325 So.2d 113 (Miss.1975) this Court held that exclusion of veniremen “who would not follow the evidence and instructions of the court, and return a verdict of guilty even though they were convinced beyond a reasonable doubt of the guilt of the defendant” does not violate a defendant’s Sixth Amendment Right to a representative jury, noting: “Such persons are not competent jurors in a capital case and the court should exclude such persons.” 325 So.2d 119. Therefore, no error was committed in excluding the 16 veniremen.

C.

The appellant next contends that the trial court erred in overruling his objections to the prosecution’s introduction of gruesome photographs.

Two sets of photographs were questioned under this assignment. The first set consists of five photographs depicting the crime scene. Each shot shows a dark spot on the ground, presumably blood. A review of these pictures reveals that they are not gruesome or likely to arouse the emotions of the jurors. Consequently, the trial court properly overruled the appellant’s objections.

The second set consists of two photographs which graphically show the condition of the victim after he was shot. Similar photographs were introduced in Coleman v. State, 378 So.2d 640 (Miss.1979), wherein the Court stated:

The two pictures complained of were color photographs showing where the shotgun pellets hit the victim on the right side of his head, his lower right arm, and on the left side of his chest.
The trial court's ruling was that the state was entitled to introduce these two pictures to support its burden of proving that the offense was “especially heinous, atrocious or cruel”. The trial court also granted a jury instruction, over defense objections, that the jury could consider the aggravating circumstance that the offense was especially heinous, atrocious or cruel.
The admission of the two pictures on this basis was not error, as they had some probative value along this line of reasoning.

378 So.2d 648-49.

As in Coleman, the photographs in the instant case have probative value on the question of whether the killing was done in a heinous, atrocious, or cruel manner. These pictures also show how the appellant shot the victim in the head as he turned toward him. It is reasonable to infer that he did this to keep from being identified. The appellant could just have easily knocked Mr. Martin in the head and spared his life, but chose instead to kill him.

In Voyles v. State, 362 So.2d 1236 (Miss. 1978), it was noted that:

This Court has held that in considering the competency, relevancy and materiality of photographs, it is within the sound discretion of the trial judge to determine whether or not the photographs have a legitimate evidentiary purpose. Irving v. State, 228 So.2d 266 (Miss.1969); Martin v. State, 217 Miss. 506, 64 So.2d 629 (1953); Coleman v. State, 218 Miss. 246, 67 So.2d 304 (1953).

362 So.2d 1241.

The photographs in this case were clearly relevant and the trial court did not abuse its discretion in allowing them into evidence.

D.

The appellant next contends that the trial court erred in overruling his objections to the testimony of the victim’s widow.

Prior to Mrs. Martin taking the stand, the defense counsel made a motion in chambers to exclude her testimony on the ground that it would improperly place the victim’s character into evidence. After argument from both parties, the trial judge ruled that there was no basis to exclude the proposed testimony. Nonetheless, he informed defense counsel that he would entertain objections from the floor to any portions of the testimony defense counsel felt improper.

Thereafter, Mrs. Martin took the stand and was questioned by the prosecutor. At no point during her testimony did the defense counsel object. Consequently, the appellant is procedurally barred from raising this issue on appeal. Tubbs v. State, 402 So.2d 830 (Miss.1981); Gregg v. State, 374 So.2d 1301 (Miss.1979); McComb v. Turner, 22 Miss. 119 (1850).

Notwithstanding the fact that the issue is barred, we have carefully reviewed the testimony of Mrs. Martin and can find no reference to the character of the victim. Her testimony consists almost entirely of outlining the events on the day of the crime, describing the victim’s business practices, and identifying the victim’s wallet.

A similar issue was presented in Evans v. State, 422 So.2d 737 (Miss.1982), where the victim’s brother testified on behalf of the State. He was emotional and sobbed throughout the entire testimony. In response to a charge that the testimony was offered solely to inflame the jury, this Court held:

We are unable to say that his testimony was not relevant and did not have probative value. It was for the purpose of identifying the victim and, as we have said in other cases, the appellant caused the situation and cannot complain, if the evidence has probative value.

422 So.2d 743.

In contrast to the challenged testimony in Evans, Mrs. Martin remained calm and collected. She never sobbed or became emotional. It can hardly be said that her testimony was calculated to inflame the jury or that it resulted in prejudice to the appellant.

E.

The appellant next contends that the trial court erred in not granting his motion for a judgment N.O.Y., in that the verdict was contrary to the law and evidence and was contrary to the overwhelming weight of the evidence. It is the appellant’s contention that the trial court erred in granting, without -objection, the following instruction which limited the jury’s consideration to three mitigating circumstances:

INSTRUCTION S-3
The Defendant plead guilty to the crime of Capital Murder. You must now decide whether the Defendant will be sentenced to death or to life imprisonment. In reaching your decision you must objectively consider the detailed circumstances of the offense for which the Defendant was convicted, and the Defendant himself.
To return the death penalty, you must find the aggravating circumstances, those which tend to warrant the death penalty, outweigh the mitigating circumstances, those which tend to warrant the less severe penalty.
Consider the following elements of aggravation in determining whether the death penalty should be imposed.
1. The capital offense was committed while the Defendant was engaged in the commission of Robbery.
2. The capital offense was committed for pecuniary gain.
3. The capital offense was especially heinous, atrocious or cruel.
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 those elements is found to exist, the death penalty may not be imposed and you shall write the following verdict on a sheet of paper:
“We, the Jury, find that the Defendant should be sentenced to life imprisonment.”
If one or more of those elements of aggravation is found to exist, then you must consider whether there are mitigating circumstances which outweigh the aggravating circumstances. Consider the following elements of mitigation in determining whether the death penalty should not be imposed:
1. At the time of the homicide, the Defendant was under the influence of drugs.
2. The Defendant has no significant history of prior criminal activity.
3. The age of the Defendant at the time of the crime.
If you find from the evidence that one or more of the preceding elements of mitigating exists, then you must consider whether they outweigh the aggravating circumstances you previously found, and you must return one of the following verdicts. The verdict you return must be written on a separate sheet of paper.

The appellant argues that the above instruction was error for four reasons:

(1) It limited the jury’s consideration to the three mitigating circumstances listed,

(2) It failed to define the role of mitigating circumstances in the sentencing process,

(3) It failed to inform the jury that they had the option to impose a life sentence notwithstanding a finding that the aggravating circumstances outweighed the mitigating circumstances,

(4) It failed to inform the jury that they must find the death sentence appropriate beyond a reasonable doubt.

However, the appellant made no objection to the above instruction at trial, nor did he submit an instruction encompassing those matters which he now contends would have been proper for the jury to consider. For this reason, he is procedurally barred from assigning the above instruction as error. Mississippi Supreme Court Rule 42; Warren v. State, 369 So.2d 483 (Miss.1979); cert. denied, 444 U.S. 956, 100 S.Ct. 436, 62 L.Ed.2d 328; Nelson v. State, 61 Miss. 212 (1883).

We note that an almost identical instruction was found to be error in Washington v. Watkins, 655 F.2d 1346 (5th Cir.1981). In that case Washington’s counsel introduced evidence of nonstatutory mitigating factors and mentioned these to the jury in closing argument. On appeal he argued that the instruction was error, citing the Supreme Court’s holding in Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed:2d 973 (1978) that: “The sentencer ... (must) not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record or any of the circumstances of the offense that the defendant proffers as a basis for sentence less than death.” The Fifth Circuit agreed, holding that the instruction improperly limited the jury’s consideration to those statutory mitigating factors which were mentioned in the instruction.

The present case differs from both Washington and Lockett in that Booker proffered no evidence of nonstatutory mitigating factors. His sole defense at trial was that he was addicted to drugs when the crime was committed. This is a statutory mitigating factor and was included in the above instruction to the jury. Therefore, even if the issue had been preserved for appeal, no error was committed by the trial court.

F.

The appellant next contends that reversal is necessary because the prosecutor improperly mentioned appellate review in his closing argument.

As with the previous two assignment of error, the appellant failed to make a contemporaneous objection at trial. He is now proeedurally barred from raising this issue on appeal. Coleman v. State, 378 So.2d 640 (Miss.1979); Cartwright v. State, 71 Miss. 82, 14 So. 526 (1893). Moreover, the appellant twice invited the error. The first time occurred on voir dire, when defense counsel told the jury:

COUNSEL FOR DEFENDANT (Mr. McDowell): There is no such person. Okay. Is there anybody who does not understand that if the death penalty is recommended here that death is final, and there is no chance for a reversal or anything once that’s been implemented? Do you understand the question? Do each of you understand that death is the ultimate penalty and that once it is carried out, there is no way to undo that decision?

This prompted the prosecutor to object, citing automatic appellate review as his grounds:

ASSISTANT DISTRICT ATTORNEY (Mr. Williams): Now, if the Court please, I object to that. There’s an automatic appeal. I think that’s highly misleading to this Jury panel.

The defense counsel then invited the error during closing argument when he said:

We are asking you not to put the State of Mississippi, the families of both these parties, through all of these remaining suffering that are sure to come from indefinite appeals. Now, we know the stories of death penalties. It is one appeal after another. It uses State money again and again and again. You know it goes on and on and on. You know when the last time someone was executed in Mississippi.

In response to these remarks, the prosecutor stated in his rebuttal closing:

Your decision is not a hard decision as Mr. McDowell would have you believe. You’re not sentencing this man to die and his going to be taken out of here for public execution. Mr. McDowell knows that. Yours is not the final say. He mentioned the prolific appeals that follow. That’s true. He mentioned the last execution in this State — 1968. So, your job is not to kill a person. Your job is to prescribe punishment, whether it is ever administered or not.

Under these circumstances, the statements made by the prosecutor were prompted and invited by the statements of the appellant’s attorney. This Court has held on numerous occasions that it will not reverse when an error is invited. See, e.g., Caldwell v. State, 443 So.2d 806 (Miss. 1983). Consequently, the prosecutor’s statements in this case, if error and if preserved, do not warrant reversal.

G.

The appellant next contends that the trial court erred in limiting testimony about his mental condition. The basis for this assignment of error is the following exchange, which occurred while the defense counsel was questioning the appellant’s Sunday School teacher:

Q. And, that this change in him started taking place a couple of years back.
A. About two years back.
Q. Now let me ask you — during the last two years, did you notice his becoming involved in conflicts with the law?
A. With the law?
Q. With the police.
A. I heard something about him having a little conflict with the law once before.
Q. Would you know based on your observation of him at this earlier stage you testified, would you have an opinion as to whether or not he would in that mental condition have committed any acts similar to what he is being tried for?
[ASSISTANT DISTRICT ATTORNEY] (Mr. Williams): Objection, Your Honor. That’s pure speculation and conjecture. The Court: I sustain the objection.

The appellant cites Harvey v. State, 207 So.2d 108 (Miss.1968) and Keeler v. State, 226 Miss. 199, 84 So.2d 153 (1956) for the proposition that a lay witness may give testimony about a defendant’s mental condition. It is true that we said in those two cases that a witness may give an opinion as to the sanity of a defendant. However, that was not the question asked of this witness. She was asked whether or not, in her opinion, the appellant would have committed acts similar to the one for which he was being tried if. he had not been under the influence of drugs. The appellant cites no authority from any jurisdiction holding that such a question is proper. The jury had before it the defendant’s evidence that he was under the influence of drugs at the time he committed the crime. Furthermore, they were instructed that they could take this evidence into consideration in determining if the defendant should receive the death penalty. Any opinion of a lay witness as to what the appellant would or would not have done under certain conditions was so speculative as to have no probative value. Therefore, the trial court properly sustained the prosecutor’s objection to this question.

H.

The appellant next contends that the jury’s sentence of death was against the overwhelming weight of the evidence and the result of an unconstitutional weighing process. Initially, we note that the arguments under this assignment of error relate to the aggravating circumstances set forth by Instruction S-3. Since this instruction was granted without objection of defense counsel, however, any claim that it is erroneous is procedurally barred. Notwithstanding this fact, we will briefly address the merits of the appellant’s claim.

Instruction S-3 permitted the jury to find an aggravating circumstance if they believed the capital offense was “especially heinous, atrocious or cruel.” The appellant argues that this aggravating circumstance, without further definition, was unconstitutionally vague and overbroad. This argument was considered by the Court in Washington v. State, 361 So.2d 61 (Miss.1978), wherein it is stated:

We must remember that the twelve members of the trial jury were a jury of the defendant’s peers, and came from the county of the defendant’s residence. The jury was composed of average citizens possessing average intelligence, a cross-section, if you please, of the citizenry of the community. In our opinion the words “especially heinous, atrocious or cruel” are not confusing nor likely to be misunderstood by the average citizen. The average citizen has a reasonable knowledge of the generally accepted meaning of these words. He comes in contact with these words frequently, if not in personal conversation at least through the news media of television, radio or the press.
It is our considered opinion that the average jury in its sound discretion and judgment understands the generally accepted meaning of the words “especially heinous, atrocious or cruel” and is able to apply these words to different factual situations without further definition of these words.
It is our opinion that these words are not unconstitutionally vague.

361 So.2d 65-66. That submission of this aggravating circumstance is not unconstitutional was reaffirmed in the cases of Coleman v. State, 378 So.2d 640 (Miss. 1979), Tokman v. State, 435 So.2d 664 (Miss.1983), and Edwards v. State, 441 So.2d 84 (Miss.1983). In Edwards, like the case sub judice, the jury returned a verdict listing more than one aggravating circumstance. The Court held that even if the “heinous, atrocious and cruel” circumstance was unconstitutionally vague, reversal was not warranted since the other aggravating factors were sufficient to support imposition of the death sentence.

Instruction S-3 submitted two other aggravating circumstances to the jury:

(1) that the capital offense was committed while the Defendant was engaged in the commission of a Robbery; and

(2) the capital offense was committed for pecuniary gain.

The appellant argues that these two constituted an impermissible “doubling-up” of aggravating circumstances and that “commission of robbery” and “commission for pecuniary gain” are one and the same thing. This identical argument was before the Court in Tokman v. State, supra, wherein the Court held:

But we think an indictment, as here, charging capital murder in the course of a robbery permits instructions on both “robbery” and “pecuniary gain” as aggravating circumstances because the evidence supports both as it reveals the robbery was committed for pecuniary gain during the course of which the homicide occurred.

435 So.2d 669. In this case, as in Tokman, the evidence clearly shows that the robbery was committed for pecuniary gain.

Consequently, the aggravating circumstances enumerated in Instruction S-3 were proper and no error was committed by submitting them to the jury.

I.

The appellant next contends that the arbitrary and discriminatory imposition of the death penalty in this case violates the Eighth and Fourteenth Amendments. Specifically, he contends that Blacks are much more likely to receive the death penalty than Whites.

Although the appellant raised this issue in his motion for a new trial, he failed to introduce any evidence in support of the contention. In Gordon v. State, 349 So.2d 554 (Miss.1977), this Court held:

The general rule is that a motion is at issue without any further pleading, but the allegations thereof do not amount to any proof of the facts stated therein. Shaw v. State, 188 Miss. 549, 195 So. 581 (1940). It devolves upon the movant to support his motion by proof. Reed v. State, 143 Miss. 686, 109 So. 715 (1926). It is also the rule that in the absence of proof in support of a motion, the presumption in favor of the correctness of the action of the trial court must prevail. Walters v. State, 127 Miss. 324, 90 So. 76 (1921).

349 So.2d 555. Since the appellant introduced no evidence to support his motion, the trial court’s action in this regard is presumed to be correct.

J.

The appellant finally contends that the case should be reversed because the prosecutor improperly used all of his peremptory challenges to exclude all Blacks from the jury, in violation of the appellant’s constitutional rights. However, the record on appeal does not reflect the race of the jurors peremptorily challenged by the prosecutor. It is elemental that facts set forth in briefs of counsel are insufficient to support an assignment of record. All facts relied on in the briefs must appear in the record to be considered by this Court. See, e.g., Gordon v. State, supra; Branch v. State, 347 So.2d 957 (Miss.1977). Accordingly, the appellant failed to preserve this issue for review.

Still, even if the facts alleged by the appellant were true and properly preserved, the argument would fail. This Court has held that a prosecutor’s use of peremptory challenges is not subject to judicial review. Gaines v. State, 404 So.2d 557 (Miss.1981); Coleman v. State, 378 So.2d 640 (Miss.1979); Irving v. State, 228 So.2d 266 (Miss.1969). In Gaines, supra, the Court explained the necessity of this holding:

The United States Supreme Court dealt with this issue in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).

We cannot hold that the striking of Negroes in a particular case is a denial of equal protection of the laws. In the quest for an impartial and qualified jury, Negro and white, Protestant and Catholic, are alike subject to being challenged without cause. To subject the prosecutor’s challenge in any particular case to the demands and traditional standards of the Equal Protection Clause would entail a radical change in the nature and operation of the challenge. The challenge, pro tan-to, would no longer be peremptory, each and every challenge being open to examination, either at the time of the challenge or at a hearing afterwards. The prosecutor’s judgment underlying each challenge would be subject to scrutiny for reasonableness and sincerity. And a great many uses of the challenge would be banned.
In the light of the purpose of the peremptory system and the function it serves in a pluralistic society in connection with the institution of jury trial, we cannot hold that the Constitution requires an examination of the prosecutor’s reasons for the exercise of his challenges in any given case. The presumption in any particular case must be that the prosecutor is using the State’s challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes. Any other result, we think, would establish a rule wholly at odds with the peremptory challenge system as we know it. Hence the motion to strike the trial jury was properly denied in this case. (380 U.S. at 221-222, 85 S.Ct. at 837, 13 L.Ed.2d at 773)....

404 So.2d 560.

IV.

We have carefully reviewed the record in this case as mandated by Mississippi Code Annotated section 99-19-105 (Supp.1983). In doing so, we have concluded that the evidence supports the jury’s finding of three statutory aggravating circumstances, and the death sentence was not imposed under the influence of passion, prejudice, or any other arbitrary factor. Furthermore, the death sentence is neither excessive nor disproportionate when compared to other cases upholding the death sentence.

Having found no reversible error, we affirm John Earl Booker’s conviction of capital murder and sentence of death. Execution of the sentence is hereby set for Wednesday, May 2, 1984.

CONVICTION OF CAPITAL MURDER AND SENTENCE OF DEATH AFFIRMED. WEDNESDAY, May 2, 1984, SET FOR DATE OF EXECUTION OF THE DEATH PENALTY AS PROVIDED BY LAW.

PATTERSON, C.J., ROY NOBLE LEE, P.J., BOWLING, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.

HAWKINS, J., concurs in part and dissents in part.

SULLIVAN, J., not participating.

APPENDIX “A”

DEATH CASES AFFIRMED BY .THIS COURT:

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).

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

Johnson v. State, 416 So.2d 383 (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 PUNISHMENT AND REMANDED FOR RE-SENTENCING TO LIFE IMPRISONMENT:

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:

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

Wiley v. State, 449 So.2d 756 (1984).

HAWKINS, Justice,

concurring in part and dissenting in part:

In this case we are only concerned with a sentencing hearing. Booker has pleaded guilty to capital murder. For reasons set forth, I would remand for another sentencing hearing.

TESTIMONY OF WIDOW

The circuit judge was correct, in my view, in permitting the widow to testify. Even though the defendant had pleaded guilty to capital murder, in the sentencing hearing the jury is entitled to know the victim beyond a statistic.

In an ordinary criminal case the circuit judge in his discretion allows an accused to relate a few essential facts about his life, usually limited to his age, occupation, marital status, children, religion, and military service, if any.

A circuit judge should also have the discretion to permit testimony within this limitation about a murder victim. It is improper and erroneous to go beyond this, in my opinion.

The widow in this case was asked many-more questions, and testified more about the life of her husband and herself than was necessary or proper. Upon specific questioning, she testified about the years her husband had been in business, his occupation, the activities of her husband and herself that day prior to the tragedy, what they had for lunch, what she always prepared him for his Wednesday dinner, and the time she usually picked him up.

There then followed upon further questions the events of that day after she got the terrible news, the condition she found her husband, her tragic thoughts, her trip to the hospital, where her husband was buried. She was also asked if she and her husband were very close, as well as his general health.

Defense counsel objected to the widow testifying at all. He made no further motion to limit her testimony to essential information. He made no objection to any question asked. On his motion for a new trial, he assigned as error that the widow should not have been permitted to testify at all.

While the circuit judge was correct in over-ruling the defense objection to the widow even testifying, in chambers, and before the widow ever took the witness stand he should have ascertained what the state intended to prove by her, and given defense counsel an opportunity to object to testimony exceeding proper limits.

This broad examination should not have been permitted, and the majority has set a radical precedent, in my view, in failing to find anything improper about it.

While I filed no dissent in Evans v. State, 422 So.2d 737 (Miss.1982) p. 743, our holding there troubled me. Evans had pleaded guilty to capital murder, as Booker did in this case. In Evans, however, the testimony of the victim’s brother was limited to identifying his brother’s corpse from a photograph. We justified our holding in Evans as proper for identification. No such justification exists for the latitude of examination of the widow in this case.

LIMITATION IN SENTENCING INSTRUCTION TO SPECIFIC MITI- • GATING CIRCUMSTANCES

Upon appeal, in a supplemental brief, counsel for Booker argues for the first time that the circuit judge erred in limiting the mitigating circumstances to:

1. At the time of the homicide, the Defendant was under the influence of drugs.

2. The Defendant has no significant history of prior criminal activity.

3. The age of the Defendant at the time of the crime.

Having failed to object when the instruction was given at trial, and making no point of this error in the motion for a new trial, or even in his first brief, I concur with the majority that there is a serious question as to whether we should consider the point at all. It hardly rises to any “plain error,” in my view.

Since the majority does consider the point, however, it is also my view that Booker was entitled to an instruction that the jury could take into consideration any other mitigating circumstances which they believe warranted imposition of a life sentence rather than the death penalty.

Without laboring the point, this is the thrust of our holdings in Gray v. State, 375 So.2d 994, 1003-04 (Miss.1979) cert. denied, 446 U.S. 988, 100 S.Ct. 2975, 64 L.Ed.2d 847 (1980), and Mississippi Model Jury Instruction No. 114.07(8) “Any other facts which you find from the evidence reasonably mitigates against imposition of the death penalty ...”

While the majority states there is nothing in the record to justify another mitigating factor than those given, and I am bound to concede the mitigating circumstances given are quite broad, it is also pertinent to observe this same argument was made by the state without success in Washington v. Watkins, 655 F.2d 1346 (5th Cir.1981), Rehearing and Rehearing en banc denied Dec. 3, 1981, 662 F.2d 1116, cert. denied Apr. 26, 1982, 456 U.S. 949, 102 S.Ct. 2021, 72 L.Ed.2d 474. In that case the Court óf Appeals for the 5th Circuit set aside a death penalty conviction because the instruction was limited to specific mitigating factors, as in this case. The state, while conceding the propriety of adding a “Mother Hubbard” clause to the mitigating circumstances which could be considered by the jury, argued also there was no proof of any of other mitigating circumstances that the jury was given to consider. The Court of Appeals rejected this contention. Since we appear to be headed towards the same dead-end as the state reached in that ease, I would reverse and remand at this stage for another sentencing hearing.

      . We would further point out that three of these contentions were not raised until the appellant filed his supplemental brief on January 11, 1984, only two days before the case was scheduled to be argued.

      . This instruction is set forth on pages 217 and 218.

      . For cases in support of this proposition see page 218.

      . See Appendix “A”.


author: HAWKINS, Justice,

text:
    Samuel JOHNSON, a/k/a Samuel Bice Johnson v. STATE of Mississippi.
    No. 55265.
    Supreme Court of Mississippi.
    April 18, 1984.
    Samuel Bice Johnson, pro se.
    Edwin Lloyd Pittman, Atty. Gen., by Marvin L. White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   ON MOTION FOR STAY OF ALL PROCEEDINGS IN THIS CAUSE

HAWKINS, Justice,

for the Court:

The appellant Samuel Bice Johnson on his own behalf filed in this Court a “Motion for Stay of All Proceedings in This Cause.” He is unhappy with the brief submitted by his own counsel. It is not clear whether he wants to simply add points of argument to the brief of his counsel, or make further adjustments in his defense line-up.

Johnson is represented by an accredited lawyer, and it is upon the shoulders of his counsel that the responsibility rests for raising all appropriate appellate questions. This Court is neither going to substitute its own judgment for the judgment of Johnson’s counsel, nor remove from this attorney the responsibility of adequate representation. Furthermore, it would be unfair to require the state’s attorneys to respond to the myriad questions which can be dreamed up by an incarcerated individual, who is not an attorney.

It is the duty and responsibility of counsel for Johnson to raise all appropriate questions. There being no lawful or Constitutional requirement that we do so, this Court is not going to wade off into a swamp of pro se ancillary briefs.

MOTION OVERRULED.

PATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.