author: PRATHER, Justice, for the Court: WALKER, Presiding Justice,

text:
    Attina Marie CANNADAY v. STATE of Mississippi.
    No. 54982.
    Supreme Court of Mississippi.
    May 16, 1984.
    Rehearing Denied Sept. 12, 1984.

      Evelyn Floyd, Shannon Waller, Jr., Gulf-port, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, Albert Necaise, Gulfport, for appellee.
   PRATHER, Justice, for the Court:

This capital murder conviction presents for review two questions. The first is whether Attina Marie Cannaday’s constitutional right to counsel at the time incriminating statements were obtained from her while in custody in the county jail was violated. The second question is, if her constitutional rights were violated, whether such violation requires reversal for the guilt and sentence phase of her conviction.

Attina Marie Cannaday, a sixteen year old divorcee, was convicted in Harrison County Circuit Court of the kidnap and murder of Air Force Sergeant Ronald Wojcik and was sentenced to death by the jury. Cannaday appeals asserting that the trial court committed errors as follows:

(1) In excluding prospective jurors in violation of the principles set forth in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) (1968);

(2) In restricting cross-examination as to the probationary status of the state’s primary witness;

(3) In prohibiting relevant expert psychiatric testimony offered on behalf of appellant;

(4) In allowing incriminating statements of appellant elicited from her in violation of her rights guaranteed under Fifth and Sixth Amendments to the United States Constitution of right to counsel; and

(5) In failing to instruct the jury on lesser included offense of kidnapping violated appellant’s rights to due process under the Fifth, Eighth and Fourteenth Amendments to the United States Constitution.

Additional errors from the sentence phase of the bifurcated trial assigned are:

(6) The death sentence in this case is unconstitutional because it was the result of an improperly and inadequately instructed jury.

(7) The imposition of the death penalty on a sixteen year old child at the time of the crime constitutes cruel and unusual punishment under the Eighth and Fourteenth Amendments.

(8) The execution of Attina Cannaday, in view of overwhelming mitigating circumstances, would be disproportionate under Mississippi law and the Eighth Amendment.

After conviction and perfection of an appeal to this Court, Cannaday filed a petition for writ of error coram nobis in the Harrison County Circuit Court. Upon conclusion of the hearing, the circuit judge concluded that the circuit court was without jurisdiction to entertain the petition for writ of error coram nobis pending appeal of the initial conviction to this Court. The denial of the writ of error coram nobis is also on appeal here for the trial court’s failure to vacate the death sentence when the sentence was based on alleged perjurious, and subsequently recanted testimony, of the state’s primary witness, the co-indictee in this crime.

I.

FACTS

In the early hours of June 3, 1982, twenty-six year old Ronald Wojcik was the victim of kidnapping and murder. His girlfriend, Sandra Sowash, was kidnapped with him and raped. The three principals were the defendant Attina Marie Cannaday, her friend David Gray, and another, Dawn Bus-hart.

Ms. Cannaday was an Alabama runaway child from a broken home at age thirteen who married and divorced at age fourteen. She worked in numerous bars in Gulfport and Biloxi as dancer and barmaid and supplemented her income by prostitution. Cannaday met Wojcik at the Sports Page Bar where he “moon-lighted” after his duties at Keesler Air Force Base.

Wojcik was divorced from his wife, but frequently kept his two children of his marriage. Cannaday began living with Wojcik, and they ostensibly conducted themselves as a married couple for several weeks until he learned her true age. Realizing that the military disapproved of this relationship, Wojcik required Cannaday to move. Shortly afterwards Wojcik found a new girlfriend, Sandra Sowash.

On May 22, 1982, Cannaday met with a man named John Cooper, who was an acquaintance of Wojcik. Cannaday told Cooper that she had caught Wojcik and So-wash in bed together and had threatened to kill Wojcik if she caught them again. Can-naday denied the threat, but admitted discussing the situation with Cooper. Cooper advised Wojcik of the threats, but he seemed not to be bothered. Wojcik did tell Cooper that on the night before (May 21) Cannaday showed up outside his apartment, yelling obscenities.

On June 1,1982, Cannaday made a phone call to a friend, Gena Pecoul. During that conversation she expressed her love for Wojcik, but also expressed a desire to kill him.

Cannaday lived at several locations after her removal from Wojcik’s apartment. She became a friend with David Gray, an unemployed young man who lived out of his automobile. They discussed Cannaday’s feelings for Wojcik and her dislike for So-wash.

On the night of June 2, the date preceding this crime, Cannaday was at the Red Garter Lounge at the Buena Vista Hotel. She and David Gray drank and danced. Both were fairly intoxicated, and Gray had smoked some marijuana. Also at the lounge was Dawn Bushart, a girl Cannaday referred to as “the ugly fat girl.” Her name was not known until after the crime. Bushart joined Cannaday and Gray. As the lounge was closing, Cannaday asked Gray if he would go with her to her “old man’s apartment with her to get her van and some clothes.” Gray's story was that Cannaday wanted him to beat Wojcik to scare him and further to kill Wojcik, to which he refused. Cannaday denied this and denied asking Gray if he had a gun. Gray did not have a gun, but took four knives from his car, as Cannaday put it, “in case we got picked up by a nut.” Since Gray’s car was not operative, the three— Cannaday, Gray and Bushart, hitchhiked westward. Someone picked them up and took them to a point near Wojcik's apartment.

Seeing Wojcik’s white van, Cannaday knew he was home. They approached the apartment, and Gray gave Bushart a knife and gave Cannaday a black handled knife. Gray kept a butcher knife and a fourth knife which was strapped to his belt. Gray ordered Bushart to stand out on the front porch.

Cannaday and Gray entered the apartment. The testimony was disputed as to whether the door was unlocked or whether Cannaday had a key. Cannaday gave her knife to Gray and entered Wojcik’s bedroom while Gray remained in the living room. Wojcik and Sandra Sowash were asleep in bed as Cannaday entered.

The scene that transpired at the apartment was destructive and forceful. The encounter ended with Wojcik and Sowash being forced at knifepoint to get in Wojcik’s van. Wojcik’s two children who were asleep in the other bedroom were left behind. As they were leaving the apartment, Cannaday picked up a wallet belonging to Wojcik. The first time that Bushart was seen by either of the victims was when they stepped outside to get into the van.

With Cannaday driving, they proceeded westward along U.S. 90 at a pretty fast rate of speed. After making a right turn off of U.S. 90, Cannaday attempted to race an approaching train, but moments before getting to the tracks, Wojcik grabbed the wheel and prevented the collision with the train. Gray told Bushart that if Wojcik moved again to cut him.

Both Gray and Sowash stated that Can-naday súggested that Gray have sex with Sowash. Gray forced Sowash to have sexual relations with him while Cannaday continued to drive.

After making several turns, Cannaday decided to stop on a gravel road known as Lampkin Road, somewhere north of Biloxi. Gray got out of the van and forced Wojcik out. Wojcik urged Cannaday to discuss the situation with him, but Cannaday refused. Gray had the butcher knife and another knife strapped to his belt. There was a conflict as to who had the black handle knife, Sowash saying that Cannaday had it, and Cannaday saying that Bushart had it.

Gray forced Wojcik into the woods; this was the last time Wojcik was seen alive.

At this point, the facts are in sharp dispute. David Gray’s testimony denied any stabbing of Wojcik. His version of the events was that after entering the woods, Gray was distracted by Cannaday who had shouted his name. Wojcik took this opportunity to hit Gray, and a fight occurred. Gray over-powered Wojcik, but had dropped the knife during the fight. After hitting Wojcik until he was nearly unconscious, Gray began looking for his knife. As he was looking, Cannaday walked up and advised him that Sowash had run away and that she had thrown the knife at her. Gray found his knife, and Cannaday asked for it. Gray gave Cannaday the knife and left her in the woods as he walked back to the van. At the van, Gray smoked a Kool cigarette. A Kool cigarette butt was later found several feet from a place where the van was thought to have been. It was Gray’s belief that when he left Wojcik in the woods, Wojcik was still alive. When Cannaday returned to the van, she did not have the knife. She said that nothing happened, and they left.

To the contrary, however, it was Canna-day’s version that she never went into the woods, but stayed at the van with Sowash and Bushart the entire time. Also, it was Bushart who threw the knife at Sowash as Sowash was escaping. Cannaday testified that Gray had blood on his clothes and on the knife upon return to the van. She thought that he had killed Wojcik. Gray became upset when he discovered that So-wash had gotten away. The three left in the van and went to Slidell, Louisiana with Cannaday driving.

While traveling, Gray discarded his bloody tee-shirt. Upon arrival at a store near Slidell, Cannaday bought a black tee-shirt which she put over her red/pink jumpsuit.

Cannaday and Gray went to the residence of Mrs. Mildred Page Robinson and her son Timothy Page, acquaintances of Cannaday when Cannaday and her ex-husband lived in a nearby trailer park. Page noticed Cannaday with the black tee-shirt pulled over the jumpsuit. He did not notice any blood on Cannaday. Cannaday told him they had come to “party,” and asked for some cut-off jeans to wear.

Cannaday removed her red/pink jumpsuit and placed it in water to soak. Canna-day’s explanation for this was that she had started her menstrual period, and as a result the outfit needed to be soaked. Page did notice blood stains on one of Gray’s arms and one of his pants leg. Gray was not wearing a shirt.

After talking with Mrs. Robinson for a few moments, Cannaday went to sleep. She did not bath or clean up before going to sleep other than wash her red/pink outfit. Gray and Page got into the van and left in search of a keg of beer.

Returning to the scene of the crime, when Sandra Sowash was able to escape, she found a nearby house from which she notified Harrison County Sheriff’s Department.

At sunrise the body of Wojcik was found with nineteen stab wounds in the face, neck, chest and back areas, laying in a bushy wooded area some fifty feet from the road. However, the butcher knife was never found.

A detailed description of the white van was given by Sowash, as well as the name of Tina Cannaday, as a participant. Wojcik’s wallet was found on the highway near Slidell, and the sheriff’s deputies were aware that Cannaday once lived in Slidell, Louisiana. They notified the Louisiana authorities to be on the lookout for the white van and occupants.

In Louisiana the white van was spotted. Gray and Timmy Page were arrested.

Information obtained from Page and other information led the police to Mrs. Robinson’s home where Cannaday was asleep. She was awakened, arrested and warned of her constitutional rights. Investigators A1 Herman of the St. Tammany Sheriff’s Department, seized the outfit that Cannaday had put in the sink. The water had already drained out, and Herman noticed no blood on the clothing. Articles of jewelry later identified as belonging to Sowash and Wojcik were also recovered.

Cannaday was placed in a sheriff’s car for transportation to the St. Tammany Sheriff’s Department. At that point in time, she had been twice warned of her Miranda rights. During the ear ride, Can-naday made unsolicited statements that Gray had used the knife to kill Wojcik and that she saw Gray grasp Wojcik’s hair, pull his head back and cut his throat.

After arriving at the police station, Can-naday was criminally charged. In the presence of Harrison County Officers Martin and Johnson, she gave a fourteen page statement concerning her involvement in the crime, which story she also reflected at trial. Upon waiver of extradition, Canna-day and Gray were returned to Mississippi. After hitchhiking back from Louisiana, Bushart was arrested while walking along Highway 90 in Harrison County.

After incarceration, Cannaday stated to Officer Warden that she believed she was pregnant and that Wojcik was the father. She stated she had not had a menstrual period for three months.

Officer Jim Wren confirmed that a pregnancy test was given to Ms. Cannaday which was negative. Cannaday explained that the officers misunderstood her statements concerning her periods. She stated that she had missed two periods prior to June 3rd, but on the day of her arrest her menstrual period had started.

Blood tests made by Larry Turner of the Mississippi State Crime Lab indicated that both Wojcik and Gray had type B blood. Blood spots found on Gray’s pants were type B blood. Turner also tested the red/pink jumpsuit, which was worn by Can-naday. Those tests revealed the enzyme paradoxin in six areas which indicated possible blood traces. The stains, however, were insufficient to get a blood type. There were no traces in the crotch area of the clothing. Turner said that the finding of small traces was consistent with the garment having been washed.

Cannaday, Gray and Bushart were indicted for capital murder for the kidnapping and homicide of Wojcik, but tried separately. David Gray’s trial preceded Canna-day’s; after his conviction, Gray testified against Cannaday and maintained his position of innocence of any murder. Bushart claimed the constitutional privilege against self-incrimination and did not testify in either of the trials. She later pled guilty to manslaughter. Attina Marie Cannaday was found guilty of capital murder and sentenced to death.

II A.

GUILT/INNOCENCE PHASE

The first assigned error addresses exclusion of prospective jurors in violation of the principles set forth in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). (Exclusion of juror where unmistakably clear that the juror would automatically vote against death penalty without regard to any evidence developed at trial.)

Two jurors were excused in the case sub judice for their belief concerning imposition of the death penalty on a sixteen year old. However, no contemporaneous objections was made when these two witnesses were excused.

Since no objection was made, this issue is not properly preserved for review before this Court. Ratliff v. State, 313 So.2d 386 (Miss.1975); Pittman v. State, 297 So.2d 888 (Miss.1974); Myers v. State, 268 So.2d 353 (Miss.1972).

However, even if the issue was properly preserved for appeal, the assignment would be without merit.

Both prospective jurors answered that they would not be able to vote for the death penalty regardless of what the evidence showed because of the youthful age of Cannaday. If prospective jurors could not follow the law and the evidence and render a death penalty where warranted, they would not have been a fair juror to the state. Evans v. State, 422 So.2d 737 (Miss.1982); Irving v. State, 361 So.2d 1360 (Miss.1978); Witherspoon v. Illinois, supra. Attempts by counsel to rehabilitate the testimony of the prospective jurors was not successful, and they were properly excused by the trial court. Therefore, even if the action of the trial judge was objected to at trial and that objection properly preserved for appellate review, the assignment would be meritless.

B.

Did the trial court err in restricting cross-examination as to the probationary status of the state’s primary witness, David Gray?

During David Gray’s cross-examination by the defense, Gray was asked about his three prior convictions. Thereafter, defense counsel attempted to ask Gray about his probationary status as follows:

Q. You were on probation at the time you were arrested.
BY MR. NECAISE: Object to that, If The Court Please. He can’t go into that.
BY THE COURT: Sustained.

Defense counsel relies upon the Sixth Amendment, United States Constitution’s guarantee of the right to confront witnesses and Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) for support of this assignment. Mississippi Constitution, Article 3, Section 26, is the basis in Mississippi’s jurisprudence for the assertion of this constitutional right to confront witnesses in criminal prosecutions.

Cannaday’s argument is that the Sixth Amendment right to confrontation of witnesses requires that a defendant in a criminal case be allowed to impeach the credibility of a prosecution witness by cross-examination directed at possible bias derived from the witness’s probationary status.

The Davis case, supra, upon which defense relies involved the testimony of a juvenile who was on probation. Defense counsel argued that the probationary status was proper evidence to attack a witness’s credibility as revealing biases, prejudices, or ulterior motives. The United States Supreme Court said:

We have recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.
(415 U.S. at 316, 94 S.Ct. at 1110).

We acknowledge this principle as constitutionally guaranteed. Factually, however, Davis v. Alaska is distinguishable from the case sub judice. Here, it was known to the jury that Gray was previously sentenced to death for his involvement in this crime. He was not on probation, but in jail. After receiving the ultimate death sentence, Gray’s previous probationary status from other crimes would not be relevant in Can-naday’s trial. In the Davis case the juvenile was not incarcerated, but was on probation. Therefore, the case sub judice is distinguishable from the Davis v. Alaska both in the facts and reasoning.

The case law of this state holds that a witness can be impeached by showing a prior conviction. Anything less than a final judgment conclusively establishing guilt cannot be used. Murphree v. Hudnall, 278 So.2d 427 (Miss.1973). Examination of the prior convictions was permitted by the trial judge.

The Sixth Amendment right to confrontation was satisfied in the case sub judice since the defendant was adequately allowed “to expose to the jury the facts from which jurors as the sole trier of fact and credibility could appropriately draw inferences relating to the reliability of the witness. “United States v. Balliviero, 708 F.2d 934, 938 (5th Cir.1983); Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347, 355. We find no restriction on cross-examination that requires reversal in this assignment.

C.

Did the court err in prohibiting defense counsel from eliciting certain testimony from the two psychiatric experts called by the defendant?

Two experts, one a psychologist and the other a psychiatrist, were called by the defendant. Both of these experts had been appointed by the court to conduct mental examinations of the defendant and both testified that Ms., Cannaday knew right from wrong under the M’Naughten test. Edwards v. State, 441 So.2d 84 (Miss.1983).

Ms. Cannaday’s intelligence quotient was testified to be a borderline mental retardation level with a score of between 60 to 84, and a mental age of 9.8 years. To counter the state’s case of her knowing participation in this crime, the defense sought to show Cannaday’s limited mental ability through the expert psychiatric testimony.

Defense counsel posed two hypothetical questions to the clinical psychologist, both of which contained facts not in evidence. The first such question contained a reference to Cannaday’s having “smoked marijuana,” and the second question was conditioned on Cannaday’s “crying” and being “upset.” Neither fact was in evidence. The posing of a hypothetical question based upon facts not in evidence was properly objected to, and the court’s action in sustaining the objection was proper. Cadillac Corp. v. Moore, 320 So.2d 361 (Miss.1975); Washington v. Greenville Mfg. and Machine Works, 223 So.2d 642 (Miss.1969); Prewitt v. State, 106 Miss. 82, 63 So. 330 (1913).

Additionally, the defense counsel asked of the expert:

(1) Based upon (your) professional opinion was Cannaday capable of plotting the murder ... and inducing a casual friend, David Gray, to commit the murder?
(2) (Based upon the evidence) do you think she was able to understand the severity of the situation she was in?

In the recent case of Edwards v. State, 441 So.2d 84 (Miss.1983), this Court discussed the insanity defense as applied in a capital murder case, where sanity was an issue. This Court continued to apply the M’Naughten rule as the test on this issue, i.e. whether the defendant knew right from wrong at the time the crime was committed. Sanity is not an issue in the case sub judice. It is undisputed that the defendant knew right from wrong. The defense was trying to assert a diminished capacity defense in this case, which is not a defense to a criminal charge in this state. Edwards, supra. Hill v. State, 339 So.2d 1382 (Miss.1976), Laney v. State, 421 So.2d 1216 (Miss.1982).

While the question as to whether Canna-day understood the severity of the situation she was in might be probative on the issue of knowingly waiving Miranda rights, it should have no relevance as to guilt or innocence under this state’s present rules.

It is the opinion of this Court that no error was committed here.

D.

Was the trial court in error in permitting incriminating statements made by Canna-day in response to a question of a deputy sheriff/jailer a violation of her constitutional rights to counsel under the Fifth and Sixth Amendments to the United States Constitution.

The two issues here are: (1) was Canna-day’s constitutional right to counsel violated? (2) if so, does the violation require reversal of both her guilt and sentence trials?

Ronald Mason, deputy sheriff and jailor at the Harrison County Jail, became acquainted with Tina Cannaday after she was incarcerated. Counsel had been appointed for her. About three days after Cannaday had her preliminary hearing, Mason was within the jail with a trusty to remove garbage. Over defense objection, Mason testified:

(W)hen I got to the door Tina Canna-day and Susan Warden were standing by the door laughing and joking, so I got to talking to them. I understood they were talking about murder, so I asked Tina, I said “Tina, did you kill him”? She did not say she killed him, she did not say that David Gray or anybody else killed him. But she did say “after the head was cut back, I took the head and shook it and tried to break it off”, that she wanted to keep the head. Susan Warden was a witness to this.

However, Susan Warden related a somewhat different version of the statements. Warden testified that Cannaday responded to Officer Mason’s question by saying that she did not kill Ronald Wojcik but that she should have taken his head off and brought it home. Warden stated that Cannaday did not say that she shook Wojcik’s head and tried to take it off.

Cannaday, while on cross-examination during the sentencing phase of the trial, did not remember telling Officer Mason about Wojcik’s head. Nor did Cannaday remember telling Susan Warden that she wanted Wojcik’s head. But she admitted she probably did say it. She did state that she did not go out into the woods and shake Wojcik’s head.

The error assigned on appeal is that this statement was elicited from Ms. Cannaday in violation of her U.S. constitutional rights under the Fifth and Sixth Amendments. The state argues that the Fifth and Sixth Amendment right objection was not made at trial, and therefore, it is procedurally barred and not before this Court.

In reverse order, we address the state’s contention on this assignment that the question is procedurally barred for failure of the defense to timely object based on the grounds of the Fifth and Sixth Amendments. Hill v. State, 432 So.2d 427 (Miss. 1983); Williamson v. State, 330 So.2d 272 (Miss.1976); Stringer v. State, 279 So.2d 156 (Miss.1973).

However, this Court is compelled to note that objection was repeatedly made by defense counsel although not based on the specific ground of the right to counsel.

The first objection made was that the statement was immaterial, prejudicial, inflammatory and improper rebuttal. The trial judge ruled that it was proper rebuttal since it was offered in proof of Cannaday’s intent to kill Wojcik, which she denied. The second objection made to the statement was on the basis that the statement was hearsay. The third and the last objection was a renewal of the earlier objections. Further argument against this statement was made on the motion for a new trial, based upon hearsay grounds.

Although counsel was not as articulate in his first objection of “prejudicial” or “inflammatory” as he might have been, the objection was made, and the repeated objections cannot be ignored where fundamental constitutional rights are involved. Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed. 246 (1964). The gravity of this statement is evidenced by the fact that on the motion for a new trial, Judge Griffin stated: “I think that part about the head is probably what brought the death sentence.” In view of defense counsel’s objection, we address this issue on its merits in this capital murder case.

The constitutional basis for defendant’s position is twofold. The United States Constitution, Amendment V, provides that “(N)o person shall be held to answer for a capital ... crime, ... nor shall be compelled in any criminal case to be a witness against himself, ... without due process of law. ...”

Secondly, defense relies upon the Sixth Amendment to the United States Constitution providing that “(I)n all criminal prosecutions, the accused shall enjoy the right to ... have the assistance of counsel for his defense.” The Sixth Amendment rights are applied to state prosecutions through the Fourteenth Amendment of the United States Constitution. Watson v. State, 196 So.2d 893 (1967), Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932).

Mississippi jurisprudence has the same constitutional, and statutory provisions, and rules guaranteeing these same rights. Mississippi Constitution Art. 3, Section 26 provides that “(I)n all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both, ... and he shall not be compelled to give evidence against himself; ...” Also, see Mississippi Code Annotated section 99-15-15 (1972) and Mississippi Criminal Rules of Procedure, Rule 1.03, 1.05.

Since the Mississippi jurisprudence provides an adequate and equal basis for these constitutional rights, we base our opinion herein on Mississippi law, notwithstanding the fact that reference is made to federal cases. The federal cases are used for the purpose of guidance, but Mississippi jurisprudence compels the result. Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983).

Intertwined in this assignment are two federal constitutional amendments relating to the right to counsel which need to be distinguished.

The Fifth Amendment right addressed here is the privilege against self-incrimination. The Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) decision is considered to be a Fifth Amendment decision although it interweaves both Fifth and Sixth Amendment rights. Included within the so-called Miranda rights is the right to assistance of counsel. Miranda, supra. Cannaday was afforded counsel; she was also repeatedly given her Miranda warnings prior to counsel appointment. These facts are undisputed.

However, the Sixth Amendment right to counsel has broader ramifications. The accused’s right to counsel, once that right has attached, is a broad guarantee that the accused “need not stand alone against the state at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial.” United States v. Wade, 388 U.S. 218, 226, 87 S.Ct. 1926, 1932, 18 L.Ed.2d 1149 (1967).

The time at which the right to counsel attaches to a defendant is when adversary proceedings have been initiated, whether by way of formal charge, preliminary hearing, indictment, information or arraignment. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972).

In Mississippi, commencement of prosecution is governed by Mississippi Code Annotated section 99-1-7 (1972) where prosecution can be commenced “by the issuance of a warrant or by binding over or recognizing the offender to compel his appearance to answer the offense, as well as by indictment or affidavit.” See also, State v. Hughes, 96 Miss. 581, 51 So. 464 (1910). Without dispute counsel was appointed in the case sub judice, and criminal proceedings had begun. The right to counsel had attached in Cannaday’s case.

Once this right has attached in a criminal case interrogation may not commence without the express waiver by the defendant of the right to counsel. Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). Nor may the police undertake interrogation in the absence of the attorney for the defendant if the attorney has expressly forbidden it. Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977).

In discussing waiver the Supreme Court stated in Brewer, supra:

(T)hat it was incumbent upon the State to prove “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. at 464 [58 S.Ct. at 1023]. That standard has been reiterated in many cases. We have said that the right to counsel does not depend upon a request by the defendant, Carnley v. Cochran, 369 U.S. 506, 513 [82 S.Ct. 884, 888, 8 L.Ed.2d 70]; cf. Miranda v. Arizona, 384 U.S. at 471 [86 S.Ct. at 1626] and that courts indulge in every reasonable presumption against waiver, e.g., Brookhart v. Janis, supra, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314, at 4; Glasser v. United States, 315 U.S. 60, 70 [62 S.Ct. 457, 464, 86 L.Ed. 680]. This strict standard applies equally to an alleged waiver of the right to counsel whether at trial or at a critical stage of pretrial proceedings. Schneckloth v. Bustamonte, 412 U.S. 218, 238-240 [93 S.Ct. 2041, 36 L.Ed.2d 854]; United States v. Wade, 338 U.S. at 237 [87 S.Ct. at 1937].

Again, in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the Supreme Court discussed waiver of the right to counsel, stating:

It is reasonably clear under our cases that waivers of counsel must not only be voluntary, but must also constitute a knowing abandonment of a known right or privilege, a matter which depends in each case “upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” Johnson v. Zerbst, 304 U.S. 458, 464, 82 L.Ed. 1461, 58 S.Ct. 1019 [1023], 146 A.L.R. 357 (1938).

451 U.S. 482, 101 S.Ct. 1884, 68 L.Ed.2d 385. In footnote 8 of the Edwards opinion the Court stated:

In Brewer v. Williams, 430 U.S. 387, 51 L.Ed.2d 424, 97 S.Ct. 1232 (1977), where, as in Massiah v. United States, 377 U.S. 201, 12 L.Ed.2d 246, 84 S.Ct. 1199 (1964), the Sixth Amendment right to counsel had accrued, the Court held that a valid waiver of counsel rights should not be inferred from the mere response by the accused to overt or more subtle forms of interrogation or other efforts to elicit incriminating information. In Massiah and Brewer, counsel had been engaged or appointed and the admissions in question were elicited in his absence.
451 U.S. 484, 101 S.Ct. 1884, 68 L.Ed.2d 386.

The court noted, however, that a defendant may waive his rights to counsel, at least under the Fifth Amendment, where he initiates the meeting with the authorities and then gives statements. Such statements are admissible.

In the case sub judice, both Officer Mason and Susan Warden testified about a solicited statement that Cannaday made in response to a question asked by a person whom she knew was a sheriffs deputy (Mason).

The statement made to Officer Mason in response to his question was made at a time when the Sixth Amendment right to counsel had attached. Since the question was made without the benefit of the presence of her attorney, Cannaday’s Sixth Amendment rights were violated.

We next address the violation to determine if the entire trial is vitiated.

Analyzing the response from Cannaday reveals that neither witness said she killed Wojcik. One statement placed her in the woods shaking the victim’s head; one denied that she was shaking the head. The statement which placed her in the woods inferred that she killed Wojcik.

However, taking the testimony as a whole here, the Court holds that the evidence of Cannaday’s guilt as a principal to the kidnap and murder is so overwhelming that the jury could have reached no other conclusion.

In United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983), the United States Supreme Court has held that the violation of a Fifth Amendment guarantee was not error per se if “on the whole record, the error was harmless beyond a reasonable doubt.” Citing Chap man v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

All of these rules, state or federal, serve a very useful purpose insofar as they block setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial. We conclude that there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring automatic reversal of the conviction.

(386 U.S. 22, 87 S.Ct. 827,17 L.Ed.2d 709)

This Court holds the Sixth Amendment right to counsel was violated, but declare that such error was harmless on the guilt phase in view of the overwhelming evidence presented against Ms. Cannaday. Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972); United States v. Metcalfe, 698 F.2d 877 (7th Cir. 1983).

Turning to the sentence phase, however, we cannot so hold. Counsel objected to this statement for its prejudicial and inflammatory nature. The record reflects the trial judge’s statement that the “head remark” brought the death penalty. We also conclude that this violation of the defendant’s Sixth Amendment right to counsel so infected the sentence phase that reversal of that phase must be ordered.

This court reverses the sentence phase and remands for a new sentence phase trial.

E.

We answer the fifth assignment of error since we affirm the guilt phase.

Was it error to refuse to instruct the jury on the lesser included offense of kidnapping?

The following instruction was refused by the trial court at the conclusion of the guilt phase of the trial to which defense took exception.

INSTRUCTION NO. 16
The Court instructs the Jury that if the Jury can deduce from the facts and circumstances surrounding the case, either from the evidence or lack of evidence, reasonable facts consistent with the Defendant’s guilt of a lesser offense than Capital Murder, then there is a reasonable doubt of her being guilty of Capital Murder, and the jury should return the following verdict:
“We, the Jury, find the Defendant not guilty of Capital Murder, but we do find the Defendant guilty of Kidnapping,” in which event it will be the duty of the Court to sentence the Defendant as provided by law.

A “lesser included offense” is defined as “one composed of some, but not all, of the elements of the greater crime, and which does not have any element not included in the greater offense.” Black’s Law Dictionary, p. 812 (5th ed. 1979). State v. Stewart, 292 So.2d 677 (La.1974).

The instruction of a lesser included offense where warranted by the evidence is warranted. Jackson v. State, 337 So.2d 1242 (Miss.1976), Johnson v. State, 416 So.2d 383 (Miss.1982).

In Jones v. Thigpen, 555 F.Supp. 870 (S.D.Miss.1983), the Federal court held that the instruction was properly refused since robbery was proven and any murder committed during the robbery was capital murder. In Jones v. State, 381 So.2d 983 (Miss.1980), no evidence was presented that the defendant, Jones, was the one who struck the lethal blows to the victim, although blood was found on his boots.

Jones v. State, supra, is similar to the case sub judice. There is no direct evidence that Cannaday stabbed Wojcik. However, she admitted to the kidnapping. Any murder committed during that kidnapping would have been capital murder imputed to all three of the perpetrators. To be a lesser included offense, kidnapping would have to be a component of murder. Instead the charge of kidnapping is an underlying felony which elevates the murder charge to that of capital murder. Murder and manslaughter may be lesser included offenses of capital murder, but kidnapping is not. In Re Jordan, 390 So.2d 584 (Miss.1980). We find no error in this assignment requiring reversal of the guilt phase.

III.

All other assignments need not be addressed since a new sentence trial will be held, with the exception of assignment 7, that the imposition of the death penalty on a sixteen year old child at the time of the crime constitutes cruel and unusual punishment under the Eighth and Fourteenth Amendments.

Cannaday raises her age (sixteen at the time of the crime) as an issue on appeal asserting that the imposition of the death penalty on a sixteen year old would be cruel and unusual punishment under the Eighth and Fourteenth Amendments of the United States Constitution.

The United States Supreme Court granted certiorari on this issue. See Eddings v. Oklahoma, 450 U.S. 1040, 101 S.Ct. 1756, 68 L.Ed.2d 237 (1981). However, the high court reversed Eddings on an alternative ground and did not address the age issue. See Eddings v. Oklahoma, 455 U.S. 104, 122, 102 S.Ct. 869, 886, 71 L.Ed.2d 1, 14 (1982).

In light of the Supreme Court’s silence on this issue, the problem of when a juvenile can be punished the same as an adult remains with the Legislature. The law in Mississippi specifically Mississippi Code Annotated section 43-21-151 (1972) provides that: “No child who has not reached his thirteenth birthday shall be held criminally responsible or criminally prosecuted for a misdemeanor or a felony. ...” Inferentially one who has reached his or her thirteenth birthday, may in certain cases be tried as an adult. Mississippi Code Annotated section 43-21-137 (1972). This necessarily implies that the juvenile in these cases could be punished the same as an adult.

The capital murder statutes in this state include as age a mitigating factor to be considered. Mississippi Code Annotated section 99-19-101(6)(g) (1972) (1983 Supp.). See also, Tokman v. State, 435 So.2d 664 (Miss.1983). In the case sub judice age was considered along with other mitigating circumstances supported by the evidence. With this in mind, the jury returned the sentence of death. Even though we grant Cannaday a new trial on the sentence phase, her age at the time of the crime remains a mitigating factor to be considered by the jury. Her age by itself is not grounds for reversal.

HEARING ON PETITION FOR WRIT OF ERROR CORAM NOBIS

Cannaday relies on Dunn v. Reed, 309 So.2d 516 (Miss.1975), for the proposition that the Harrison County Circuit Court had jurisdiction to hear testimony and consider new evidence via petition for writ of error coram nobis after appeal had previously been perfected to this Court.

In Dunn v. Reed, supra, Chief Justice Gillespie interpreted Mississippi Code Annotated section 99-35-145(2) which provides:

(2) In all cases wherein a judgment of conviction in a criminal prosecution has been affirmed on appeal by the supreme court, no petition for the writ of error coram nobis shall be allowed to be filed or entertained in the trial court unless and until the petition for the writ shall have first been presented to a quorum of the justices of the supreme court, convened for said purpose either in term time or in vacation, and an order granted allowing the filing of such petition in the trial court.

The Dunn case involved guilty pleas to manslaughter and arson. These pleas were entered in the Neshoba County Circuit Court. Subsequently, a petition for writ of error coram nobis was filed in that same court. The petition was dismissed without an evidentiary hearing on the grounds that it was not brought in the proper court. This Court acknowledged that if the allegations in the petition were true, the issuance of the writ would be required.

Speaking for the majority, Justice Gillespie held that Mississippi Code Annotated section 99-35-145(2) did not apply where convictions had not been affirmed on appeal. This Court held that “The Neshoba County Circuit Court had exclusive jurisdiction to entertain the petition for a writ, and it was error to dismiss the petition without an evidentiary hearing.” (Id. at 518).

Dunn is distinguishable from the ease sub judice. Dunn involved guilty pleas, whereas Cannaday was convicted after a plea of not guilty. There would never have been a direct appeal to this Court in Dunn because of the guilty pleas. On this basis Dunn v. Reed is not applicable to the case sub judice.

This Court has held that before a petition for error coram nobis will lie, it is necessary that this Court consider the case on the merits. Johnson v. State, 416 So.2d 679 (Miss.1982); Murphree v. State, 222 So.2d 694 (Miss.1969). See also Harvey v. State, 251 Miss. 36, 168 So.2d 49 (1964); Petition of Lee Broom, 251 Miss. 25, 168 So.2d 44 (1964).

In Depreo v. State, 407 So.2d 102 (Miss.1981) a bill of exceptions was filed in the circuit court after appeal had been perfected. Addressing the jurisdictional issue there this Court held:

It is obvious that the filing of the instrument on June 26, 1979, was after the appeal had been perfected to this Court and therefore the lower court was entirely correct in holding that it had no jurisdiction to hear the instrument filed. Denton v. Maples, 394 So.2d 895 (Miss. 1981); Edmonds v. Delta Democrat Publishing Co., 221 Miss. 785, 75 So.2d 73 (1954).
It is therefore apparent that the third and final assignment of error is without merit. In the event appellant has merit in the allegations in his instrument filed, after the appeal was perfected, he has adequate recourse to present those contentions at the proper time and place. (Id. at 109).

We hold that the trial judge was correct when he decided that Cannaday had lost her jurisdiction in the circuit court when appeal was perfected to this Court. It was not error to deny coram nobis relief.

GUILT PHASE, Affirmed.

All Justices concur.

SENTENCE PHASE, Reversed and Remanded For A New Trial.

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

WALKER, P.J., dissents.

WALKER, Presiding Justice,

dissenting:

The majority has reversed the death sentence in this case because Attina Marie Cannaday did not have an attorney present when she remarked to a guard (in response to a question) “after the head was cut back, I took the head and shook it and tried to break it off.”

I do not believe that a defendant who has been appointed an attorney or who has employed an attorney and presumably been advised of her constitutional rights under the Fifth and Sixth Amendments to the United States Constitution not to make any statements to authorities without her attorney present, is entitled to any further protection in this regard.

The Sixth Amendment does not require twenty-four hour a day presence of counsel. Nor do I believe that the Sixth Amendment prevents authorities from asking a question of a defendant so long as the defendant is willing to answer and does not then invoke the right not to answer except with her attorney present. I feel confident that the framers of the Constitution never intended that it would protect a defendant from her arrogant utterings, voluntarily made, with respect to the details of a crime committed by her.

In this case Cannaday was not coerced in any way nor promised any reward when she answered a casual question by the jail guard and admitted her participation in this heinous crime. It was not only a confession of her guilt but was evidence of her lack of remorse, callous feelings and depraved heart with respect to the crime which she planned and enticed others into helping her commit.

I would affirm the finding of the jury and the judgment of the circuit court.

      . Gray was granted immunity from prosecution on the rape charge in exchange for his testimony concerning the rape.

        . See Warden v. Stumes, — U.S.—, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984).

      . "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any Criminal Case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” U.S. CONST, amend V.

      . "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defence.” U.S. CONST, amend VI.


source: Caselaw Access Project

author: DAN M. LEE, Justice, for the Court: HAWKINS, Justice,

license: Public Domain

text:
    Bobby Glen WILCHER v. STATE of Mississippi.
    No. 54959.
    Supreme Court of Mississippi.
    July 11, 1984.
    Rehearing Denied Aug. 22, 1984.

      Robert N. Brooks, James E. Smith, Jr., Carthage, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   DAN M. LEE, Justice, for the Court:

On March 11, 1982 the appellant, Bobby Glen Wilcher, was indicted for the capital murders of Velma Odell Noblin and Katie Bell Moore. The indictments charged that he murdered these two ladies while he was robbing or attempting to rob Velma Odell Noblin and while he was engaged in the crime of kidnapping her and Katie Bell Moore. He was tried separately for these murders, though they arose from a single incident. This appeal stems from a capital murder conviction for the killing of Katie Bell Moore. Wilcher has previously been tried for the capital murder of Velma Odell Noblin. He was found guilty of that charge and sentenced to death. That conviction and sentence have been affirmed by this Court in Wilcher v. State, 448 So.2d 927 (Miss.1984). The petition for rehearing in that cause has been denied. In the instant appeal Wilcher assigns the following errors:

1. The Trial Court erred in not sustaining Appellant’s plea of former or double jeopardy.
2. The Trial Court erred in overruling the Appellant’s motions for continuance.
3. The Trial Court erred in allowing the death qualification voir dire question.
4. The Trial Court erred in refusing to allow the defendant to cross examine Gene Wilcher, when called as a witness for the State.
5. The Trial Court erred in admitting into evidence the watch, rings and necklace of Velma Odell Noblin for the reason that they were the fruits of an illegal search.
6. The Trial Court erred in admitting into evidence, over objection of counsel, Appellant’s oral and written statements and the fruits thereof.
7. The Trial Court erred in granting Instruction S-l and S-7 and erred in refusing Instruction D-2 during the guilt phase.
8. The Trial Court erred in refusing Instructions D-17 and D-37 during the guilt phase.
9. The Trial Court erred in refusing Instructions D-43 and D-44 during the guilt phase.
10. The Trial Court erred in granting Instructions S-l, and S-2, and in refusing D-15, during the sentencing phase.
11. The Trial Court erred in refusing Instruction D-ll during the sentencing phase.
12. The Trial Court erred in entering its supplemental judgment of September 23, 1982.

PACTS

It would serve no purpose to detail the violent manner in which Wilcher claimed his victims lives. For purposes of this appeal it is sufficient to state that Wilcher met Mrs. Noblin and Ms. Moore in a Scott County bar. When the bar closed for the evening he persuaded them to give him a ride home during which he guided them to a deserted forest service road in the Bien-ville National Forest where he stabbed them to death.

DISCUSSION OF POINTS RAISED ON APPEAL

A number of Wilcher’s assignments of error in this appeal are identical to those made in his appeal from his capital murder conviction in relation to the death of Velma Odell Noblin. Because those assignments deal with the exact same factual circumstances, our opinion in that cause disposes of those issues. For that reason they will be discussed first.

ADMISSIBILITY OF THE JEWELRY FOUND IN WILCHER’S ROOM

Wilcher contends that a search of his room conducted by Deputy Otis Kelly and Constable Albert Harkey at the invitation of Wilcher’s father constituted a illegal search and seizure in violation of the Fourth and Fourteenth Amendments. Wilcher contends that although he lived in his father’s house, his father had no authority to allow the warrantless search of his bedroom. In our prior opinion we held that Wilcher did not have exclusive dominion and control over his room and that his father was authorized to enter it at anytime and permit anyone else to so enter. We held that the jewelry was therefore admissible. That holding controls our opinion here. Wilcher v. State, 448 So.2d 927 (Miss.1984).

ADMISSIBILITY OF THE CONFESSIONS

Again, these are the same confessions ruled admissible in the first Wilcher trial. Because Wilcher is unable to assign any new reason as to why the confessions should be inadmissible, we defer to our holding in the prior Wilcher decision. Wilcher v. State, 448 So.2d 927 (Miss.1984).

THE TRIAL COURT’S REFUSAL TO ALLOW A CONTINUANCE

Prior to trial, on August 6,1982, the defense filed a motion for continuance until the October, 1982 term. That motion challenged the circuit judge’s authority to set this case for trial at a special term. This issue was also raised in the appeal from Wilcher’s first trial which was also tried at a special term prior to the October, 1982 term. In addressing that issue we held that § 9-1-1 of the Mississippi Code Annotated (1972) gave the circuit judge clear statutory authority to try this case at a special term. We find no valid reason preventing us from adopting that holding in this case also. Therefore, this assignment of error is without merit. Wilcher v. State, 448 So.2d 927 (Miss.1984).

THE KIDNAPPING CHARGE

Wilcher contends that the trial court erred in granting Instructions S-l and S-7 and in refusing Instruction D-2, all of which dealt with Wilcher’s culpability on the charge of kidnapping, one of the underlying felonies charged in the indictment. This issue was also addressed in the opinion affirming Wilcher’s death sentence in connection with the capital murder of Velma Odell Noblin. Wilcher contends that the proof was insufficient to show that he had kidnapped the two ladies and that they had voluntarily accompanied him to the woods. In our previous opinion we recognized that the crime of kidnapping may be accomplished by trickery and deceit and that a jury issue had been made on whether Wilcher had tricked the ladies into being secretly confined against their will. The elements of kidnapping having been sufficiently shown in this trial also, we find no reason to hold differently here. Therefore, this assignment of error is without merit. Wilcher v. State, 448 So.2d 927 (Miss.1984).

DOUBLE JEOPARDY

This is the first of Wilcher’s assignments of error which is not disposed of by our holding in the first Wilcher appeal.

Wilcher’s argument asserting that he has been subjected to double jeopardy involves two separate assertions which are not well distinguished within his brief. The first is that the state should be barred by the proscription against double jeopardy from using the same underlying felonies to constitute capital murder in both cases. As will be recalled, both indictments charged Wilcher with murder while in the course of robbing Velma Odell Noblin and kidnapping Mrs. Noblin and Ms. Moore. Therefore, under both indictments all three underlying felonies are required to be proven. Wilcher contends that by having found him guilty of the three underlying felonies in his trial for the murder of Mrs. Noblin, he may not again be prosecuted for those underlying felonies in his trial for the murder of Ms. Moore.

In the case of Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), the United States Supreme Court addressed the issue of double jeopardy. The Court there held that the doctrine of collateral estoppel was embodied in the guarantee against double jeopardy and that once an issue of ultimate fact has been determined by valid and final judgment that issue cannot again be litigated between the parties in any future lawsuit. In Ashe, the defendant was accused of robbing several members of a poker game. He was first tried for the robbery of one poker player and was found not guilty. Following that verdict the state shored up the holes in its case and indicted him' for the robbery of a second poker player whose money was taken in the same holdup. This time Ashe was found guilty. The United States Supreme Court reversed his conviction and held that the verdict of not guilty in the first trial decided the ultimate fact that Ashe had not been involved in the robbery. The Court specifically held that question: “Is not whether he could have received a total of six punishments if he had been convicted in a single trial of robbing six victims. It is simply whether, after a jury determined by its verdict that the petitioner was not one of the robbers, the state could constitutionally hale him before a new jury to litigate that issue again.” 397 U.S. U.S at 446, 90 S.Ct. at 1189, 25 L.Ed.2d at 477. In a concurring opinion authored by Justice Brennan, it was noted that “collateral estoppel would not prevent multiple prosecutions when the first trial ends in a verdict of guilty.” Footnote 13 to Justice Brennan’s concurrence. 397 U.S. at 459, 90 S.Ct. at 1202, 25 L.Ed.2d at 484. From a reading of the Ashe decision, it is clear that the proscription against double jeopardy was intended to prevent abuse of the criminal process in the form of multiple or vexatious prosecutions for a single offense. The Ashe court held that the double jeopardy proscription was applicable for the charges which arose from a single transaction.

In Maycock v. Reed, 328 So.2d 349 (Miss.1976), this Court affirmed the denial of a writ of habeas corpus where the appellant asserted that his four convictions were the result of a single transaction. In that case, Maycock was indicted four times for the following crimes: (1) the September 9,1973 sale of marijuana to Dempsey Newman. (2) The September 9, 1973 sale of marijuana to James K. Anthony. (3) The September 9, 1973 sale of 150 tablets of LSD to Dempsey Newman. (4) The September 9, 1973 sale of 50 tablets of LSD to James K. Anthony. In addressing the question of whether these offenses constituted a single transaction as they occurred at one time, we held:

We find no merit in appellant’s eonten-tio.n that the circuit court was in error in failing to hold that the “one transaction rule” applies. It is contended that the four indictments for separate crimes grew out of the same facts and circumstances. At the most all that the proof in the record shows on this issue is that there were four separate transactions on the same occasion, which of course, does not come within the one transaction rule announced in Laughter v. State, 241 So.2d 641 (Miss.1970). We pointed out in Wolf v. State, 281 So.2d 445 (Miss.1973) that an accused may not be prosecuted for two offenses when both arise out of the same transaction, where one is necessarily incident to the other. But where, as here, the same transaction gives rise to separate and distinct offenses, prosecution for one will not bar prosecution for the other.

328 So.2d at 352.

In the instant case Wilcher was not being retried for a crime which grew out of the same transaction. The murder of Ms. Moore was distinct from the murder of Mrs. Noblin. The fact that the underlying felonies were the same is simply part of the circumstance of each separate murder. It is a factor which the legislature has determined distinguishes a simple murder from one of those exceptional cases in which the defendant should be put to death. Certainly those underlying felonies were matters which the state was required to prove in order to obtain a capital murder conviction; however, they constituted only a portion of the two distinct crimes. The state was also required to prove the ultimate fact that the murder then under trial occurred during the course of those felonies. Of course, had the first jury determined that Wilcher was not guilty of the underlying felonies the state may logically have been barred from prosecuting that claim in the second trial. That was not the case here. As pointed out in Justice Brennan’s concurrence in Ashe v. Swenson, supra, a verdict of guilty does not bar a trial for a separate distinct crime.

Wilcher’s next argument regarding being subjected to double jeopardy is that by the use of the same aggravating circumstances in the second trial as those used in the first, his death sentence is excessive or disproportionate. This argument makes little sense. What could be more proportionate than a death sentence which is returned under an identical fact situation to another. They are exactly proportionate. Also, we have compared this case to those death sentences that we have affirmed since Bell v. State, 360 So.2d 1206 (Miss.1978) and find that Wilcher’s sentence of death is not disportionate to those cases. See Appendix A.

THE DEATH QUALIFICATION VOIR DIRE QUESTION

Prior to trial Wilcher filed a motion in limine in which he requested that the Court order that the state not ask the following or a similar question: Are you conscientiously opposed to capital punishment? The court overruled this motion and during voir dire the state did ask a similar question. Venireman Monroe stated that he was conscientiously opposed to the death penalty and would have a hard time sentencing someone to death. The trial court did not excuse Monroe for cause and the state exercised one of its peremptory challenges to remove him from the jury panel.

In Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), the benchmark case in this area, the United States Supreme Court held that it is a violation of due process to remove for cause jurors who voice general objections to the death penalty or express conscientious or religious scruples against its infliction. That same year, in Armstrong v. State, 214 So.2d 589 (Miss.1968), this Court addressed the specific question of whether a venire may be asked “Are you opposed to the death penalty under any circumstances?” In answering this question we held:

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 cases, 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.

214 So.2d at 593.

In Irving v. State, 361 So.2d 1360 (Miss.1978), we noted that the above quoted procedure was the proper method to be employed by trial judges and that “almost the identical procedure was approved by the United States Supreme Court in the recent case of Lockett v. Ohio, supra” 361 So.2d at 1309 citing Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Although in the instant case the prosecutor was allowed to ask the question, as opposed to the circuit judge, we find no error in light of the fact that venireman Monroe was not removed for cause. Even had the judge conducted the voir dire the State would still have been free to exercise a peremptory challenge to excuse Monroe. Therefore, this assignment of error is without merit.

REFUSAL TO ALLOW WILCHER TO CROSS-EXAMINE HIS FATHER DURING A HEARING OUT OF THE PRESENCE OF THE JURY ON THE ADMISSIBILITY OF THE FRUITS OF THE SEARCH

During a hearing out of the presence of the jury on the admissibility of the jewelry found in Wilcher’s bedroom, his father, Gene Wilcher, was called to the stand. Following an examination of the senior Wilcher by the district attorney, the defense counsel requested permission to approach the bench and an off the record conversation was had. Following that the trial judge entered into the record a statement explaining that he had denied Wilcher’s request to personally cross-examine his father during this hearing. Wilcher now complains that it was a violation of the Mississippi Constitution of 1890, Article 3, Section 26, to refuse him the right to cross-examine his father.

This Court has spoken on the precise question involved here, i.e., the right to cross-examine a witness under Article 3, Section 26 of Mississippi Constitution of 1890, when the party is represented by counsel. In Jerry Lynn Young v. State, 425 So.2d 1022 (Miss.1983), we held that a trial court is free to exercise its power to prescribe the manner in which the business of the court is conducted and that Article 3, Section 26 of the Mississippi Constitution of 1890 does not grant to a defendant the absolute right to conduct a cross-examination where that defendant is also represented by counsel. Therefore, there is no merit to this assignment of error.

THE REFUSAL OF INSTRUCTIONS D-17 AND D-37 DURING THE GUILT PHASE

Wilcher argues that the failure to grant Instructions D-17 and D-37 require reversal of this cause. Those instructions are in effect procedural and inform the jury that in a capital case that should they return a verdict of guilty it would be necessary to hold another hearing to determine the sentence. Because the court had already granted Instruction S-2 which informed the jury that should they return a verdict of anything other than capital murder no further hearing would be held, we find no merit in this assignment.

THE REFUSAL OF INSTRUCTIONS D-43 AND D-44 DURING THE GUILT PHASE

By Submitting Instruction D-43, Wilcher attempted to have the jury instructed on a charge of accessory after the fact. We have repeatedly held that the crime of accessory after the fact is an entirely separate and distinct offense and not a constituent part of an offense so as to be a lesser included offense. In Box v. State, 241 So.2d 158 (Miss.1970), this Court held that accessory after the fact is a distinct crime for which a person cannot be punished unless indicted. Wilcher was not indicted on a charge of accessory after the fact of murder and therefore, an instruction on that offense would have been improper and would have constituted reversible error.

Instruction D-44 read as follows:
The Court instructs the jury that an accessory after the fact is one who concealed, received, or relieved any felon, or aided or assisted any felon, knowing that such person had committed felony, with intent to enable such felon to escape or to avoid arrest, trial, conviction or punishment, after the commission of such felony.
The Defendant is not required to establish the truth that he was an accessory after the fact to your satisfaction, but if the evidence or lack of evidence in this case raises in the minds of the jury a reasonable doubt as to whether the Defendant was only an accessory after the fact, then you must give him the benefit of the doubt and return a verdict of “not guilty. ” (Emphasis added)

Undoubtedly a defendant is entitled to have the jury instructed that if there was a reasonable doubt that his version of the events was the true version, then they must give him the benefit of the doubt and return a verdict of not guilty. We are of the opinion that the jury was adequately instructed in this regard by the following eight instructions which are set forth in full:

INSTRUCTION D-8
The Court instructs the Jury that under the law, the terms “reasonable doubt” as used by the Court in instructions to juries, as the law in the trial of cases, is a sacred and substantial right of this Defendant, Bobby Glen Wilcher, charged with this crime, given and guaranteed unto him by the law of the land, and that such reasonable doubt may arise from the testimony or any part of the testimony, or the lack of testimony, and that under the law, it is the sworn duty of the jury, and each member thereof, that is [sic] there is a reasonable doubt in the mind of any member of this jury as to the guilt of the Defendant, it is your sworn duty to return a verdict of “Not Guilty.” (Emphasis added)
INSTRUCTION D-9
The Court charges the jury that it is your sworn duty to vote on each and every ballot of the jury for an acquittal of the Defendant, unless, after conferring with the other jurors, your mind is convinced beyond all reasonable doubt and to a moral certainty and not from any lack of evidence of the guilt of the Defendant. You cannot, under your oath as a juror, compromise your honest convictions from the evidence, or lack of evidence, as to the guilt or innocence of the Defendant for the purpose of bringing in a verdict. Under your oath and under the law, you should never surrender such conviction simply because every other member of the jury may disagree with you or insist that you yield to save the time of the Court or prevent a mistrial, or shorten the labors of the jury panel, or because of anything or reason whatsoever, or for any purpose whatsoever. You should vote not guilty as long as, after a consultation of the evidence, or the lack of evidence in this case, the State has failed to prove Defendant’s guilt to a moral certainty. (Emphasis added)
INSTRUCTION D-13
The Court instructs the jury that the law of this State gives a Defendant the right to testify in his own behalf, and the jury has no right to disbelieve him simply because he is the Defendant. His testimony is entitled to just as much faith and credit as the jury under all the circumstances think it should have. Furthermore, his testimony is just as entitled to consideration as that of any other witness who testified in this case.
INSTRUCTION D-14
The Court instructs the jury that where the Defendant is the only eye-witness to the alleged homicide, his version, if reasonable, must be accepted as true, unless substantially, contradicted in material particulars by a credible witness or witnesses for the State, or by the physical facts or by the facts of common knowledge. (Emphasis added)
INSTRUCTION D-15
The Court instructs the jury that where there are two plausible theories, sustained by the evidence, one tending to show the Defendant not guilty, and the other tending to show the Defendant guilty, and the jury is unable to determine which theory is true, it must accept the theory favorable to the Defendant, and find the Defendant not guilty. (Emphasis added)
INSTRUCTION D-19
The Defendant has been charged by an indictment with the crime of capital murder for having willfully, unlawfully, felo-niously, without the authority of law, and of his malice aforethought, killed and murdered Kattie [sic] Bell Moore, a human being, while he, the said Bobby Glen Wilcher, was engaged then and there in a commission of the crime of robbery or an attempt to commit the crime of robbery of the said Velma Odell Noblin, and while he, the said Bobby Glen Wilcher, was engaged then and there in the commission of the crime of kidnapping of Velma Odell Noblin and Katie Bell Moore, human beings.
Before you can find the Defendant guilty of capital murder, you must find from the evidence in this case beyond a reasonable doubt to a moral certainty that the Defendant did willfully, unlawfully, feloniously, without the authority of law, and of his malice aforethought, kill and murder Katie Bell Moore, and [sic] human being, while he, the said Bobby Glen Wilcher, was engaged then and therein the commission of the crime of robbery or an attempt to commit the crime of robbery of the said Velma Odell Noblin, while he, the said Bobby Glen Wilcher, was engaged then and there in the commission of the crime of kidnapping of Velma Odell Noblin and the said Kattie [sic] Bell Moore, human beings.
If the State has failed to prove any one or more of these elements beyond a reasonable doubt and to a moral certainty, then you shall find the Defendant not guilty of capital murder. (Emphasis added)
INSTRUCTION D-34
The Court instructs the jury that the burden of proof is upon the State to establish the Defendant’s guilt of the crime charged in the indictment, and that it must do, not simply by more and better evidence than is offered for his acquittal, but the State must prove his guilt so clearly and conclusively as to exclude from the mind of every single person on the jury every reasonable doubt of his guilt, and to make his guilt morally certain. The Defendant is bound to offer no proof, or if he has offered any, he is entitled to an acquittal on the whole evidence, unless that evidence has convinced you beyond a reasonable doubt and to a moral certainty that he is guilty of the crime charged in the indictment and so long as it is reasonably possible to account for the evidence on any theory or hypothesis consistent with his innocence, he must be acquitted, however strongly you believe him to be guilty. You may even believe it highly probable that he is guilty and yet, in such case, you must vote “Not Guilty.” (Emphasis added)
INSTRUCTION D-36
The Court instructs the jury that the Defendant, Bobby Glen Wilcher, is never required to prove his innocence, and in order for him to be acquitted it is not necessary that the jury be satisfied in their minds that he is in fact innocent, but whenever there arises out of the evidence a reasonable probability that he is innocent, then he is entitled to an acquittal for reasonable probability of innocence is always a reasonable doubt of guilt. In other words, although the theory that he is guilty is more reasonable than the theory that he is innocent, yet, if there arises out of the evidence, and there is supported by the evidence, any reasonable theory under which the Defendant may probably be innocent, he is entitled to be acquitted. (Emphasis added)

Because the above quoted instructions adequately inform the jury of the respect, weight and consequence of Wileher’s version of the incident, we find no merit in this assignment of error.

THE GRANTING OF S-l AND S-2 AND THE REFUSAL OF D-15 DURING THE SENTENCING PHASE

Wilcher complains that Instructions S-l and S-2 improperly shift the burden of proof to the defendant because they require that the jury find that the mitigating circumstances outweigh the aggravating circumstances in order to impose a life sentence. Wilcher argues that the proper standard is that the jury must find that the aggravating circumstances outweigh the mitigating circumstances in order to impose the death penalty. In Coleman v. State, 378 So.2d 640 (Miss.1979), we held that the burden of proof during the sentencing phase remains on the state and that the jury was free to return a life sentence without finding any mitigating circumstances. As the state correctly points out, the jury was so instructed in this case. See Instruction D-12. Therefore, we hold that the burden of proof was not improperly shifted to Wilcher during the sentencing phase.

THE REFUSAL OF INSTRUCTION D-ll DURING THE SENTENCING PHASE

Instruction D-ll reads as follows:

The court instructs the jury that in your deliberations on the question of punishment you are to presume that if you sentence the defendant to life imprisonment, that the defendant will spend the rest of his life in prison, and you are to presume that if you sentence the defendant to death that he will be administered lethal gas until dead. You are to make no other presumptions.

An identical instruction was requested and rejected in two cases that this Court has previously affirmed. Johnson v. State, 416 So.2d 383 (Miss.1982); Bullock v. State, 391 So.2d 601 (Miss.1981). In both of those cases, this Court held that such an instruction was improper and calculated to confuse the jury. Wilcher argues that in the instant case the instruction was proper because during the jury’s deliberations on the sentencing phase the trial judge received a note from the jury which read: “Define life in prison, life with parole or life without parole.” At that time the trial judge responded to the jury by saying that he could not answer their inquiry. There was no objection by either the state or -Wilcher as to the trial judge’s response. Wilcher now contends that the jury’s concern over this question made the granting of Instruction D-ll proper.

In answering Wilcher’s contention first it must be remembered that Instruction D-ll was rejected prior to the jury’s deliberation and note to the judge. Second, if the instruction was improper for erroneously stating the law and confusing the jury in the Bullock and Johnson cases, it could have been no less so here. Therefore this assignment of error is without merit.

THE SUPPLEMENTAL JUDGMENT [17] Following the sentencing of Wilcher and before the defense’s motion for a new trial, the trial judge stated into the record that he would like to make an additional ruling concerning the sentence he had just imposed:

“It will be considered in addition to the ruling of the court.” The judge then ruled: “It is the sentence of this court that the sentence now imposed upon you be consecutive to the sentence or sentences imposed in the Scott County ease.” That occurred on September 15, 1982, the final day of trial. On September 16, Wilcher’s attorney filed a petition for appeal. On September 23, the trial judge entered what was styled “Supplement Judgment.” In that supplemental ruling the trial judge attempted to explain his previous ruling concerning Wilcher’s sentence. The ruling held that should Wilcher’s first death sentence be somehow reduced to life imprisonment that it was the intention of the court that the more severe penalty be carried out.

In Dunavant Enterprises v. Ford, 294 So.2d 788 (Miss.1974). This Court held that once a final decree is entered and an appeal is perfected the trial court no longer has jurisdiction over the cause. In the instant case, the trial court entered an order granting appeal on September 16, 1982. On the same day Wilcher filed an affidavit of poverty to avoid having to post an appellate bond. Therefore, under the holding in Du-navant Enterprises, the trial court was without authority to enter the supplemental judgment and that judgment is of no effect. Regardless, the supplemental judgment was pure surplusage and has no practical effect upon the verdict or sentence in this case and therefore does not require that we reverse.

Based on all of the foregoing, we hereby affirm Bobby Glen Wilcher’s conviction of capital murder of Katie Moore and likewise affirm the sentence of death imposed upon him for the commission of that crime.

AFFIRMED.

PATTERSON, C.J., WALKER, P.J., and PRATHER, J., concur.

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

HAWKINS, J., dissents.

ROY NOBLE LEE, P.J., and BOWLING and SULLIVAN, JJ., not participating.

APPENDIX A

DEATH PENALTY CASES AFFIRMED BY THIS COURT:

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

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

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

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

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

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

Irving v. State, 441 So.2d 846 (Miss.1983), and 361 So.2d 1360 (Miss.1978).

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).

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

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

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

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

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

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

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

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

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

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

HAWKINS, Justice,

dissenting:

I respectfully dissent, as to the refusal of the trial court to grant defense instruction D-44, quoted in the majority opinion.

Wilcher’s testimony that some third person named Gene Melton murdered the women, and that his participation was limited to assisting Melton following the killing, is preposterous to me under the record of thijs case.

Yet, under our system of laws and court procedure, he was entitled to have his contention presented to the jury no matter how strange it might appear. I cannot agree with the majority that an instruction on accessory after the fact was improper.

In my view, the principle is so well established that I will simply quote 23A C.J.S. Criminal Law, § 1199, pp 509-511:

“... where there is evidence in support of any defense offered by accused, which raises an issue of fact favorable to him, the court should present the issue by an affirmative instruction which fairly and fully declares the law applicable thereto, including the defining and explaining of the elements of the defense.”

Nor can I agree that instruction D-44 was covered by other instructions given by the circuit judge, broad and liberal though they are.

ROBERTSON, J., joins this opinion.