author: BOWLING, Justice, for the Court: DAN M. LEE, J.,

text:
    James R. STRINGER v. STATE of Mississippi.
    No. 54580.
    Supreme Court of Mississippi.
    July 11, 1984.
    As modified on Denial of Rehearing Aug. 15, 1984.

      Harry L. Kelley, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr. and William S. Boyd, III, Sp. Asst. Attys. Gen., Jackson, for appellee.
   BOWLING, Justice, for the Court:

Appellant, James R. Stringer, was indicted, tried and convicted in the Circuit Court of the First Judicial District of Hinds County of the crime of capital murder. The bifurcated trial resulted in a jury verdict of guilty of the crime charged. The second phase of the trial resulted in a jury verdict sentencing appellant to suffer death according to the statutes provided therefor. The normal course of appeal brings the case here for full review according to statutory mandates. Appellant, through his appeal attorney propounds assignments of errors as follows:

ASSIGNMENT OF ERROR NO. I.
The Court erred in allowing the District Attorney to cross examine the appellant about his unwillingness to submit to a lie detector test, over the objection of counsel and in admitting into evidence an agreement between the district attorney’s office and the witnesses, Brock and Meddars to have their version of the events corroborated by a lie detector test, this admission into evidence although not objected to at the time is plain error under the rules of this Court.
ASSIGNMENT OF ERROR NO. II.
It was highly improper and prejudicial for the Trial Court to permit the state to question the defense witness, Tammy Williams, and the defendant, James Stringer, about what drugs they had used or were using and to allow into evidence against the defendant a weapon concealed in his boot at the time of his arrest which bore no relation to the crime.
ASSIGNMENT OF ERROR NO. III.
Appellant was deprived of effective assistance of counsel.
ASSIGNMENT OF ERROR NO. IY.
The Court erred in allowing the District Attorney to ask and elicit an answer from the defense witness, Tammy Williams, that she had been “charged” with conspiracy to commit murder and accessory after the fact.
ASSIGNMENT OF ERROR NO. V.
The appellant respectfully submits that this case should be reversed if for no other reason that that on the basis of the entire record, taking all errors and prejudicial matter into consideration, the defendant was deprived of a fair trial.

Prior to the appeal being perfected in the trial court, appellant, through his appeal attorney, filed a Petition for Writ of Error Coram Nobis. An evidentiary hearing was had thereon by the trial judge. The petition was denied and an appeal therefrom is included in the record now before us. We first shall consider the merits of the conviction and sentencing case and thereafter shall discuss the appeal from the order denying coram nobis.

A careful study of the lengthy record in this cause shows acts of violence hard to be imagined by the average citizen. Mr. and Mrs. Ray McWilliams, residents of Jackson, Mississippi, were viciously and cold-blood-edly murdered in their home on the evening of June 21, 1982. The scene of the killings depicted actions of persons with no conscience toward their fellow man and absolutely no regard of human life. After being exposed to the events shown in the record in this cause, the writer of this opinion, having been exposed to knowledge of many acts of violence, readily understands why a majority of the United States Supreme Court has held and still holds that the death penalty with certain guidelines is constitutional. The case presented by the prosecution mainly relies on the evidence of two of the five persons who participated in the killing of Nell McWilliams, during the course of an attempted armed robbery of her husband, Ray McWilliams, who was also killed at the same time. These persons were Mike Meddars and Rhonda Brock. In addition to the testimony of the two accomplices there was certain corroborating evidence as shall hereinafter be discussed.

Meddars and Brock were dope-consuming and admittedly very unsavory people. They were acquainted with appellant and with one John Mack Parker. According to Meddars and Brock, during the day of June 21, they met at the apartment of one Tammy Williams, appellant’s girlfriend, with whom he lived in an apartment complex in Jackson. The robbery and murder were planned during the course of the day. Appellant was in the business of buying and selling gold, silver and jewels. He owned a place of business in Jackson, which primarily was run by his son James.

Ray McWilliams was also in the business of buying and selling jewelry as an individual and operated from his home. Testimony in the record reveals that in connection with his business he kept considerable sums of money in a safe in his home. Appellant and Ray McWilliams had done business together in the past.

After riding around and closely inspecting the McWilliams’ home, appellant and his cohorts, according to Meddars and Brock, again met in the Williams’ apartment during the early part of the evening. That meeting was attended by appellant’s twenty-year-old son James, who at his father’s request, brought extra bullets and what is called a “riot” gun, which is a shotgun with a shortened barrel and handle.

After completing their plans, appellant, his son, John Mack Parker, Brock and Med-dars left the Williams’ apartment in Med-dars’ car with Meddars driving. According to Meddars and Brock, the plan was to stop the car in front of the McWilliams’ home. Meddars, Parker and James Stringer were to remain hidden in the car, while appellant and Rhonda Brock went to the den door of the McWilliams’ home, which door opened onto the driveway. Appellant and Brock were to call McWilliams to the door and request that they be permitted to come in for Brock to attempt to sell certain jewelry she had, as she needed some money immediately.

The plan worked until the entrance of the house by appellant and Brock. Appellant, according to Brock, immediately withdrew his .357 magnum revolver from its shoulder holster and ordered McWilliams to remain in the room. McWilliams was a large man. He started trying to take the pistol from appellant and soon after the ensuing scuffle started the pistol fired striking nothing but the wall. By that time, John Mack Parker had entered the premises followed by James Stringer and Meddars. According to Brock and Med-dars, Parker placed his pistol to McWil-liams head stating, “You are a dead man.” Parker fired the gun and sure enough McWilliams became dead. According to Brock and Meddars Mrs. McWilliams was on the floor beginning to crawl, when James Stringer, Jr. placed the end of the riot gun to the back of her head and pulled the trigger. This resulted in her skull and brains being scattered over the floor.

All five participants then left hurriedly. Parker was the driver of the car during the departure. Stringer was sitting on the passenger side of the front seat. The other three were in the backseat with Brock in the middle. These facts are emphasized along with other details primarily to show what the jury heard and what appears in the appellate record in the way of minute details of the entire incident as related by Meddars and Brock and corroborated in certain detailed instances. For instance, the first thing appellant said was in the form of a question as to whether or not Mr. and Mrs. McWilliams were killed. He received an affirmative answer from his son.

We digress here to relate that next door to the McWilliams home and in close proximity to it was the residence of a couple with two foster children. The wife testified that she heard the shots shortly after hearing voices. She went to the window and looked out and saw a car pulling away at a rapid rate of speed from the front of the McWilliams’ home. Her testimony described the car with the same description shown in a photograph made of Meddars’ car. The vehicle had a dark colored body with a light colored top. The witness was reasonably sure that the photograph depicted the same car she saw.

Resuming the testimony of the facts as related by Meddars and Brock, facts which this writer is afraid the ordinary layman cannot comprehend as happening, Meddars and Brock described in detail the plans set up and ordered by appellant to kill Mr. and Mrs. McWilliams as soon as they were under control. Simply stated, the intention was to cut their throats; this for two reasons — a Jackson city policeman lived immediately behind the McWilliams home and appellant was afraid that if shots were fired they would be heard by the policeman and appellant instructed the other participants that he was known by the McWil-liamses and they had to be killed to prevent identification.

As the planned robbery and murders had their timing upset by McWilliams attempting to defend himself, the city policeman did hear the shots and was the first person to the scene after the participants had left in Meddars’ car. He found the hereinabove described grisly and horrible situation planned and caused by appellant, according to the two participants who testified for the state.

According to Meddars and Brock, the five returned to the place of abode of appellant and his girlfriend, Tammy Williams. Appellant instructed Williams and Parker to take the guns, carried by each participant, and dispose of them. Appellant had made sure that each person was armed. As hereinbefore stated, appellant carried a .357 magnum pistol in a shoulder holster. Brock carried a .22 automatic pistol in her purse. Parker and Meddars each carried a .38 caliber pistol. The son James carried the riot gun. Parker disposed of the weapons, except for a .38 caliber pistol. Med-dars testified that on the following day, June 22, he and Parker went to a lounge in Jackson, where he knew drugs were sold. The .38 caliber pistol was traded to the bar maid, who also testified, for five quaalude pills. Meddars understood that he was to come back later in the day and secure the pistol for money. Before he did so, the drug seller sold the pistol to an acquain-tence for $60. After the events developed and publicity was released approximately two or three weeks later regarding the arrest of the participants in the killing, the person who had bought the pistol turned it into the police headquarters. The testimony was that any .38 caliber pistol that was fired in the McWilliams’ home resulted in the bullet being so shattered that it could not be tested with the gun described above. According to Meddars, the .38 pistol was that carried by Parker.

The eventful story continues. Law enforcement officials were suspicious of appellant two days after the night the McWil-liams were killed. Appellant was interrogated by officers and released. During the course of her testimony for the appellant, Tammy Williams testified that on appellant’s return from the police station, he told her that he had refused their request to take a lie detector test. This incident shall be discussed later under the assignments of error.

On the third day after the killing, appellant, Tammy Williams, Meddars and Brock went to Florida in two separate cars. They stayed two nights and returned. After the Florida trip, Meddars and Brock, along with other persons, called friends, went to Memphis, Tennessee, by way of Kosciusko, where Meddars was raised and his family still lived. After leaving Memphis, they returned to Kosciusko to the home of Med-dars’ brother. On the night of July 2, Brock became intoxicated. The record does not reveal the condition of Meddars. Regardless, the two became embroiled in an intense argument and altercation. This resulted in injuries to Brock, which included a black eye, although, according to Med-dars, she received the black eye while he was trying to place her in his car. The altercation ended by Meddars placing Brock on the side of the road and leaving her. Brock, either because of vindictiveness, drunkenness or both, stopped at a house and called the Kosciusko police department. She was picked up and she gave those officials a statement about the McWilliams’ killings, but in that statement she attempted to absolve herself. The next day Brock gave Jackson officials a statement in which she “told it all.” All participants were promptly arrested. Meddars realized the side of the sticky butter he was in that held his bread together and confessed. Both agreed to plead guilty to manslaughter and testify in the present cause.

Appellant’s defense was an alibi, which consisted of testimony from appellant, his son James, appellant’s girlfriend Tammy Williams, James’ girlfriend and two of their friends. They all testified that on the night in question, the latter four were in the apartment of James and his girlfriend and that they talked by telephone to appellant at the apartment where he “lived in”. Obviously the jury did not believe the alibi defense.

ASSIGNMENT OF ERROR NO. I.

Appellant contends that it was reversible error to interject into the case appellant’s unwillingness to submit to a lie detector test and admitting into evidence the written agreements of Meddars and Brock to take a test, which agreement was a part of the entire extensive written agreement between Meddars, Brock, their respective attorneys and the prosecution.

Both Meddars and Brock were represented by competent and experienced court-appointed trial attorneys. Prior to the testimony of each, these attorneys and the court clearly and without any doubt informed Brock and Meddars regarding any exposure they were submitting themselves to by testifying.

Meddars testified prior to the testimony of Brock. On cross examination of Med-dars, appellant’s attorney questioned the witness about any and all “deals” between the prosecution and the witnesses. This was readily and plainly explained by the witnesses. During re-direct examination by the state, the two-page, typed, single spaced agreement addressed to Meddars’ attorney and signed by the district attorney, Meddars and his attorney on September 20, 1982, shortly before trial, was presented into evidence. The court on such presentation asked appellant’s attorney “any objection?” The attorney replied, “No, Your Honor.” This lengthy agreement was then introduced and toward the conclusion thereof is the almost unobserved statement that the agreement included verification of Meddars’ testimony by polygraph examination.

After the testimony of Meddars and the introduction of his agreement, the state introduced the testimony of Brock. The state then offered the agreement of Brock, her attorney and the district attorney on the direct examination of Brock by the state. Upon the offering of this lengthy two-page typed, single spaced instrument, appellant’s attorney stated to the court “to which we have no objection, Your Honor.”

As stated, both of these agreements were at the request of the attorneys for Meddars and Brock to insure that the state fully understood what these witnesses expected; that is a plea of guilty to manslaughter. The letter to each attorney from the district attorney, signed by all, including the witnesses, recited the status of the indictments of the witnesses and clearly spelled out that the final sentencing after the plea of guilty to manslaughter was within the sentencing authority of the trial judge and that no recommendation would be made by the state and other details to insure the veracity and testimony by Meddars and Brock. These agreements were the only testimony regarding the agreement between the two witnesses in question to take a polygraph examination. No discussion,was had about the agreements. They were merely introduced in evidence.

As hereinbefore stated, not only did appellant’s attorney not object to these agreements being introduced, he specifically stated he had no objection and agreed for their introduction. Appellant's attorney had prior knowledge of the agreements and had examined them. Anyone familiar with trial practice would recognize parts of the agreements that would be of strategic benefit to appellant.

Giving the appellant the benefit of the doubt, regarding the introduction of the agreements, had there been no announcement by appellant’s attorney that he agreed for them to be introduced and had he merely sat silently, appellant would be barred for not having made a contemporaneous objection to the introduction of the agreements and thereby giving the trial court a chance to consider that issue. See Campbell v. State, 437 So.2d 3 (Miss.1983); Pennington v. State, 437 So.2d 37 (Miss.1983); Leatherwood v. State, 435 So.2d 645 (Miss.1983); Tokman v. State, 435 So.2d 664 (Miss.1983); Edwards v. Thigpen, 433 So.2d 906 (Miss.1983); Hill v. State, 432 So.2d 427 (Miss.1983); Wheat v. Thigpen, 431 So.2d 486 (Miss.1983); and Bass v. Estelle, 696 F.2d 1154 (5th Cir.1983).

Another issue raised under Assignment No. I contends that it was reversible error for the court to have allowed the prosecution on cross examination of appellant to refer appellant to his girlfriend’s testimony that he did not take a polygraph examination. Tammy Williams, the girlfriend, who according to Meddars and Brock, was a conspirator in the entire matter except for going to the McWilliams home, testified prior to appellant taking the stand. During her testimony, she related about appellant being called to the police station the second day after the killings and about her conversation with him when he returned. Upon her being asked what appellant said on his return, she replied, “and he said the police asked him to take a lie detector test” ... “he said he said he wouldn’t.”

On cross examination of appellant, he was questioned regarding his report to this girlfriend and about his statements regarding the polygraph examination. This evidence was objected to by appellant’s attorney and the objection was overruled. Appellant contends that this action is reversible error.

In addition to the herein set out testimony of Tammy Williams, appellant’s attorney on cross examination of witness Brock elicited from her that during Brock’s conversation with appellant after the police station incident, appellant said, “he was asked to put on the lie detector test and he refused.”

We therefore have two incidents where the refusal of appellant to take a polygraph examination was either injected into the case by appellant’s attorney or by the state without objection. The refusal clearly was before the jury prior to any cross examination of appellant.

In addition to the injection of the fact that appellant refused to take a polygraph examination on two occasions prior to his taking the stand, it is our opinion that the mere mention of the failure to submit to such an examination could not be reversible error under the record in this case. It was inconsequential in the case compared with all the other evidence placed before the jury. Further bolstering of this opinion is that we are not dealing with the attempted introduction of the results of a polygraph examination, only the refusal to take one for whatever reason including appellant’s reasoning of its unreliability.

ASSIGNMENT OF ERROR NO. II.

Appellant complains of the questioning of him and his girlfriend, Tammy Williams, about taking drugs. His principal ground for this contention is that the use of drugs is a separate offense and cannot be considered in connection with the gruesome killings that we are dealing with here.

In the first place, by the time the alibi testimony of girlfriend Tammy Williams and appellant was reached, the record is full of drug use by all persons involved, including the taking of crystaline amphetamine by intravenous injection, smoking marijuana while drinking alcohol and other drugs. Meddars and Brock had testified extensively without objection about drug and alcohol use at the Williams/Stringer apartment at the time the crime was being planned. Certainly, any-use of drugs by appellant and his girlfriend was material on the issue of their frame of mind. In fact, practical consideration requires the thought that it might help the participants in the proceedings had they been under the influence of drugs and not completely capable of realizing what they were doing. During all the testimony trying to establish an alibi, appellant’s witnesses discussed the use of drugs during the very night they were talking by telephone so many times to each other. Even appellant, after contending that he used no drugs for three weeks prior to the killings, admitted that during that time he was attempting to recover from several months use of dilaudid, necessary to take because of an injury several months before, which crushed his hands, in an altercation with law enforcement officials in another county. The record is replete with the use of drugs by almost everyone. Even considering such fact, the jury could not have been prejudiced more than they were prejudiced against a defendant after hearing the direct, positive and startling testimony from the two participants in the killings. If anything, any influences of drugs would have the effect of tending to excuse the brutally and atrocious manner in which Mr. and Mrs. McWilliams met their death.

The writer is stressing this issue raised by appellant, even though it has no merit legally, in order to try and accomplish what criminal punishment statutes are designed to do; that is, to deter further crimes. Surely some unknowing citizens reading this opinion will realize what vicious people, even if drugs are included, are capable of doing to their fellow man.

Under this point appellant contends that it was error to divulge that when appellant was finally arrested approximately two weeks after the killings, a .38 caliber pistol was found in his boot. The record reveals that in planning the killings,- appellant had a large number of weapons. He furnished weapons to Brock, Meddars and Parker. His son and appellant already had weapons. The weapons of Parker and Meddars were .38 caliber pistols. Mr. McWilliams was shot in the face with a .38 pistol. It was proper to ascertain how many .38’s appellant owned. Furthermore, collection of this gun was a part of the circumstances surrounding appellant’s arrest. There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NO. III.

Under this assignment appellant advances a two-pronged attack on his trial attorney. He contends that his attorney’s argument was not sufficient in the sentencing phase and that he was not diligent in securing other witnesses to present at the trial or in objecting to introduction of statements secured from the prosecution witnesses.

As already has been gathered, the principal attorney, who tried the complete bifurcated ease in the lower court, does not appear as attorney of record before this Court on appeal. We have carefully considered the many volumes of record relating to the trial procedures and evidence. Anyone either accustomed to studying records or with actual trial practice will . readily state that the trial attorney did an excellent job and probably the best job possible. He was a hired attorney by appellant and not court-appointed.

This Court is fully acquainted with the experience, knowledge and reputation of appellant’s trial attorney.

It does not take a lifetime of trial or judicial experience to know that competent trial attorneys are constantly making decisions regarding the strategy involved in representing their clients. It is interesting to note that there is no complaint about this attorney’s argument on the guilt phase of the bifurcated trial. The record shows it to have been excellent. We now come to appellant’s criticism of his attorney’s argument in the sentencing phase. A mere reading of this argument readily shows the jury’s attitude perception held by his attorney. The jury had just found his client guilty of capital murder. The attorney had no other witnesses. Therefore, the first question to himself was, “How do I make these twelve people react so that a death sentence will not come forth?” He made an obvious decision on strategy by first stating that he “still” was convinced of his client’s innocence. Having this opinion still, he frankly admitted this to the jury and stated that in effect that he was confused as to arguing against the death sentence when he “still” believed him innocent. His plea to the jury was “I am in a position I really don’t know how to handle.” We are only reading cold words in the record. From experience we know that the attorney’s demeanor and his attitude toward the jury played a great part in his decision to make that statement. He could not offend the jury.’ He could only try to instill a doubt in their minds. He did his best, but from studying all of the record in this case, his best was not enough to convince the jury.

Under this alleged assignment of error, the appeal attorney contends that the experienced trial attorney should have put on other witnesses without giving us one iota of information as to what type witnesses should have been introduced or their identity-

Appellant’s appeal attorney further states that the ineffectiveness of the trial attorney is shown by his not objecting to lengthy statements given the officers by Meddars and Brock. This argument is without merit as it obviously was trial strategy as set out above. Any member of the judiciary or bar knows that a lengthy statement usually has at least a word or two in it that can be used to his advantage.

There are a number of cases on whether or not sufficient grounds . are shown to reverse the jury verdict because the counsel for the accused was ineffective. In each case there have been discussions regarding strategy choices as discussed above. All cases have held that the accused is not entitled to errorless counsel, and not counsel judged ineffective by hindsight. Each case is to be decided on the totality of the facts of the entire record. See Baldwin v. Maggio, 704 F.2d 1325 (5th Cir.1983); Thomas v. Zant, 697 F.2d 977, (11th Cir.1983); Washington v. Estelle, 648 F.2d 278 (5th Cir.1981); Lovett v. State of Florida, 625 F.2d 706 (5th Cir.1980); United States v. Gray, 565 F.2d 881 (5th Cir.1978); and Herrin v. Estelle, 491 F.2d 125 (5th Cir.1974).

The guidelines for judicial determination of eases involving effective or ineffective assistance of counsel, primarily in death cases, have recently been set out clearly by the Supreme Court of the United States in the case of Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There the court reviewed an appeal from the Fifth Circuit. We have carefully studied that opinion and applied its mandates to the case sub judice. The court, speaking through Justice O’Connor, said:

A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

The Court, through Justice O’Connor further said:

These basic duties neither exhaustively define the obligations of counsel nor form a checklist for judicial evaluation of attorney performance. In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances. Prevailing norms of practice as reflected in American Bar Association standards and the like, e.g. ABA Standards for Criminal Justice 4-1.1 to 4-8.6 (2d ed.1980) (“The Defense Function”), are guides to determining what is reasonable, but they are only guides. No particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions. See United States v. Decoster, 624 F.2d [196] at 208. Indeed, the existence of detailed guidelines for representation could distract counsel from the overriding mission of vigorous advocacy of the defendant’s cause. Moreover, the purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation, although that is a goal of considerable importance to the legal system. The purpose is simply to ensure that criminal defendants receive a fair trial.
Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U.S. 107, 133-134 [102 S.Ct. 1558, 1573-1575, 71 L.Ed.2d 783] (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” See Michel v. New York, Supra, [350 U.S. 91] at 101 [76 S.Ct. 158 at 164, 100 L.Ed. 83], There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. See Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U.L.Rev. 299, 343 (1983).

We heretofore have discussed the specific reasons advanced by appellant as to why his personally hired attorney did not render effective assistance of counsel. We find that appellant’s contention does not in any way satisfy the requirements of Strickland, supra, that could result in a reversal of the cause under this assignment of error. The conduct of the trial by appellant’s attorneys meets every requirement of Strickland; as hereinbefore stated the record reveals a well tried case. There is no indication that any contentions of fault by the trial attorneys were anything other than trial strategy.

We find further as required in Strickland that the defendant received a fair trial. He chose a competent and reputable trial attorney with much experience in defending criminal cases. He now makes no meaningful contention that his attorney’s performance was deficient. We find no merit under Assignment of Error No. III. We find as a fact that appellant’s employed trial attorney was competent, experienced and effective as possible.

ASSIGNMENT OF ERROR NO. IV.

Appellant claims reversible error by the trial court in permitting appellant’s girlfriend Tammy Williams to be asked if she was charged with a crime as a result of the killings of Mr. and Mrs. McWilliams. In the first place, this information already was before the jury. As the court was required to do, when Mrs. Williams took the stand to be an alibi witness, she was warned by the court that “Ms. Williams I understand that you have been indicted and I want to advise you that under the Fifth Amendment of the United States Constitution and the Constitution of Mississippi that you do not have to make any statement that will incriminate you. Do you understand this?” The witness answered, “Yes, sir.” During her testimony she was asked what she was charged with doing. This clearly was permissible to show her interest in the case being tried. She certainly had a big personal interest as to whether or not appellant would be convicted. Furthermore, the record was replete with testimony regarding Ms. Williams’ involvement in the occurrence. There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NO. V.

There is no merit to the catch-all contention that the record shows an injustice committed and is against the evidence. A large part of that evidence heretofore has been discussed. There is much more that space does not require. It is sufficient to say that a study of the record in the cause reveals an abundance of evidence for the jury to have found that appellant was guilty of capital murder.

SENTENCING PHASE

As statutorily demanded, we have considered all the assignments of error and have carefully considered any possible assignments of error that were not propounded. Furthermore, we have carefully considered the punishment as required by statute. We first are required to consider whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor. We hold without hesitation that a study of the record could not reveal evidence stronger for a jury to consider and impose a death penalty without being influenced by passion, prejudice or any other arbitrary factor. The clear and detailed testimony of two of the participants has shown in this record was of such magnitude that it would be hard to construct a case where the sentence of death would be more appropriate under the constitutional guidelines as set out in all applicable authorities. In reviewing the sentence of death, we fully have considered the fact that the evidence does not reveal that appellant actually pulled the trigger of a weapon that killed Mrs. McWilliams. There is an abundance of evidence, however, that it was appellant who instigated and planned all of the activities that culminated in the killing. He was the one who furnished the weapons used. He was the one who laid out the detailed plans for the other four participants to follow. He was the first one in the McWilliams’ home and the first one pulling a weapon and ordered Mr. McWilliams to abide by his directions. The pistol in his hand was fired before any other weapon. It was fired at a time when McWilliams was trying to take the weapon from appellant. The testimony revealed a wound in the hand of Mr. McWilliams. This wound, according to the expert pathologist, was made while Mr. McWilliams was attempting to defend himself. Appellant according to abundant evidence, made his first point after the killing to ascertain if both Mr. and Mrs. McWilliams were actually dead. He was the instigator, the planner, the master-mind and the one who directed the entire occurrence. According to the testimony of the two participants, the attempted armed robbery and the killing would not have occurred had it not been for appellant.

He actually ordered that the McWilliamses be killed, even if the underlying felony, the armed robbery, had been successful. The McWilliamses would not have been killed, according to this record, had the murder not been ordered by appellant. We, therefore, find without hesitation that the affirmance of appellant’s death penalty is proper, even though he did not actually pull the trigger of the weapon that caused the death. This conclusion is supported fully by the United States Supreme Court in its opinion in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).

We further find that as required by statute, the evidence fully supports the jury’s finding of statutorily required aggravating circumstances.

We have considered prior cases of this court including those either affirmed or reversed, and find that the sentence of death in the present case is not excessive or disproportionate to the penalty imposed in similar cases considering both the crime and the appellant. A true and correct copy of the cases considered is attached hereto and marked Exhibit “A” to this opinion.

We find no reversible error in either the guilt or sentence phase of the bifurcated trial. We affirm the resulting judgment of the lower court that appellant is guilty of capital murder and also affirm the judgment sentencing appellant to death to be carried out according to law.

AFFIRMED AS TO GUILT AND SENTENCE.

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

DAN M. LEE, J.,

concurs in result only.

APPEAL OF DENIAL OF PETITION FOR WRIT OF ERROR CORAM NOBIS

Within the proper time framework post-trial, appellant discharged his trial attorneys and employed another well-known, competent and experienced criminal defense attorney. This attorney filed a petition for writ of error coram nobis alleging that witness Walter Owens, III had given him a stenographically transcribed sworn statement that he was coerced into giving certain testimony at the trial during the state’s presentation of evidence. The petition charged that Owens admitted to the post-trial attorney that his testimony was untrue because of threats made by a representative from the office of the district attorney.

A brief review of Owens’ testimony reveals that he was a “cell mate”, in a cell including a number of persons, prior to appellant’s trial. Owens had been convicted by a jury of manslaughter, sentenced and was waiting the process of appeal. His testimony was to the effect that during conversations with appellant, that on being questioned as to what occurred, appellant in effect stated that “it’s just a long, drawn-out story and I don’t want to talk about it.” Appellant further stated in the conversation, “I knew what was going on.” Appellant also told him, according to Owens, “He knew who was involved.” Owens had previously given a written statement confirming what his testimony would be.

The trial judge set an immediate hearing on appellant’s petition. Appellant’s new attorney called all law enforcement and prosecuting personnel involved and there was absolutely no evidence of any pressure applied to Owens to get his statement. Owens did not show up for the hearing and had to be secured by his personal attorney. On being placed on the stand, Owens refused to answer any questions under his constitutional guarantee against self-incrimination.

We therefore have only a copy of his alleged affidavit given post-trial. It is readily noted in the affidavit that appears in the record that Owens still said in the affidavit that appellant told him in the cell that “he knew what was going on,” and that “he knew about some jewelry and stuff we could get rid of easy.” In effect and as found by the trial court, there was in reality no large variance between the testimony given by Owens and that appearing in his affidavit. It should be noted that the affidavit was not introduced, but only attached to the petition. Owens made no verification of the affidavit.

Although the petition for writ of error coram nobis filed below and testimony taken thereon set out as the sole ground that the testimony of Owens was secured by unlawful means, appellant assigns as error here, on appealing the trial court’s denial of the writ, two grounds; namely, (1) the court erred in allowing the witness Walter Owens, III to invoke the Fifth Amendment and (2) the court erred in not allowing defense counsel to amend his petition to include the destruction of the tape.

Appellant cites no authority whatever under his first point. For this action, we could dispose of the issue for this reason under Wood v. Gulf States Capital Corp., 217 So.2d 257 (Miss.1969); and Dozier v. State, 247 Miss. 850, 157 So.2d 798 (1963).

We hold, however, that the record clearly reveals that Owens had the constitutional right to invoke the provisions of the Fifth Amendment to the United States Constitution, taking into consideration any rights the appellant might have under the Sixth Amendment. See United States v. Goodwin, 625 F.2d 693 (5th Cir.1980); United States v. Lacouture, 495 F.2d 1237 (5th Cir.1974); United States v. Gloria, 494 F.2d 477 (5th Cir.1974) and Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 96 L.Ed. 1118 (1951).

At the hearing on the petition an investigator from the district attorney’s office testified that in addition to the written statement introduced in evidence by Owens at the trial, a taped statement had been taken at the same time. Since the statements were taken, the tape had been used in other investigations and the statement of Owens had been “used over.” It was explained fully and carefully why there was no reason to keep the tape after the written and signed statement from Owens pertaining to his knowledge was taken and signed.

After the hearing was over and after the trial judge had rendered his opinion denying the petition, appellant’s new attorney requested that he be allowed to amend his petition to allege that the tape had been destroyed. A formal amendment was denied at that point. The record of the hearing on the petition, clearly shows that the situation regarding the destruction of the tape was brought out as fully as possible. The court took that into consideration and so do we. A formal amendment was not necessary. The facts surrounding the destruction of the tape were fully considered by the lower court and are fully considered by this Court. The question of whether or not at the point when everything was over, there should have been a formal amendment to the original petition has no merit. Such formal semantics would have been useless. Appellant’s argument seems to be confined to the fact that the tape was not produced at the hearing. As stated before, this argument cannot have any possible merit as everyone testified and everyone admitted that the tape was destroyed and its admission was impossible.

Appellant’s attorney in his experience and wisdom did not argue in his brief the alleged assignment of error regarding his requested amendment. His argument went to the admitted fact that the tape had been re-used and only Owens’ written statement was available. We could dispose of the contention for that reason alone, but do not do so. See Woods v. Gulf States Capital Corp., supra, and Dozier v. State, supra.

We find that there is no merit to appellant’s contention on appeal requesting a reversal of the lower court’s denial of its petition for writ of error coram nobis and that act is affirmed.

Having affirmed the guilt and sentencing phase of appellant’s trial and judgments thereon, appellant’s execution by law is directed to be carried out on Tuesday, August 7, 1984.

AFFIRMED.

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

DAN M. LEE, J., concurs in result only.

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 (1984).

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

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

      . The entire bifurcated trial was handled by other attorneys as shall hereinafter be discussed.


source: Caselaw Access Project

author: ROY NOBLE LEE, Presiding Justice,

license: Public Domain

text:
    Thomas E. GRIMSLEY v. Virginia Ann Stines (a/k/a Steins) TYNER, et al.
    No. 54276.
    Supreme Court of Mississippi.
    July 18, 1984.
    Rehearing Denied Aug. 22, 1984.
    Robert F. Drake, Drake & Graben, Hat-tiesburg, for appellant.
    G. Gerald Cruthird, Smith, Smith, Tate, Stuart & Cruthird, Picayune, for appellee.
    Before ROY NOBLE LEE, P.J., and ROBERTSON and SULLIVAN, JJ.
   ROY NOBLE LEE, Presiding Justice,

for the Court:

Thomas E. Grimsley filed a petition in the Chancery Court of Pearl River County, Mississippi, for filiation, seeking to have himself declared the natural father of Charles Thomas Grimsley, rights of visitation with the minor child, and for the court to set a reasonable amount of contribution by him for support and maintenance of the child. Virginia Ann Stines (a/k/a Steins) Tyner filed a motion for jury trial, which was granted. The chancellor appointed Honorable R.I. Prichard, III, Circuit Judge of the Fifteenth Circuit Court District of Mississippi, Special Master, and transferred the cause to Judge Prichard’s circuit court for the trial by jury.

The jury returned a verdict finding that Thomas E. Grimsley is not the natural father of Charles Thomas Stines, and Judge Prichard filed his report as Special Master with the Chancery Court of Pearl River County. That court entered a decree approving, ratifying and affirming the report of the Special Master and decreed that Thomas E. Grimsley is not the natural father of Charles Thomas Stines. From that decree, Grimsley has appealed to this Court and has assigned seven errors in the trial below.

Five of the assigned errors state that the lower court erred in overruling appellant’s motion for judgment notwithstanding the jury verdict in that the evidence did not sustain a verdict on behalf of appellee, or, in the alternative, that the verdict was contrary to the overwhelming weight of the evidence. Those five assignments of error will be considered together.

Facts

At the time of the trial on October 2, 1981, appellant was thirty-three years of age and appellee was thirty-eight years of age. They met in 1973, lived in the same neighborhood and, subsequently, began a sexual relationship. The child, Charles Thomas Stines (Charlie), the subject of this controversy, was born July 8, 1977, in Sli-dell Memorial Hospital, Slidell, Louisiana. The birth certificate issued for the child did not indicate the name of the father, and on February 9, 1979, it was altered to reflect Thomas E. Grimsley as Charlie’s father. At the time of the trial, appellee had been married to Hosie Bee Parker for approximately two years and one child, Hosie Bee Parker, III, age 13 months, was born of the marriage. Previously, she was married to one Ralph Tyner for approximately six or seven years and Tonette Ann Tyner, age 18 years, is a child of that marriage.

Other than the above facts, the versions of appellant and appellee directly contradict each other on material points. According to appellant, he was living with appellee and engaging in sexual intercourse with her during 1976, more particularly in the summer and autumn, which was the period when Charlie was conceived. Also, he stated that he paid bills; contributed to the hospital expenses, even though Medicaid paid most of the amount; agreed with ap-pellee that the child’s birth certificate be altered, and appellant’s name indicated as the father of the child; that they executed a sworn agreement to the effect that appellant was the father of the child; that he would contribute $100.00 per month for the support of the child; and that he would not interfere with custody rights until the child became 18 years of age.

Appellee testified that she did not have sexual relations with appellant during the summer and autumn of 1976, the period of conception; that she had been going with one James Arthur Hale since 1973, and had sexual relations with him three or four times a week for a period of seven or eight years, until he was killed in an automobile accident September 6,1978, and that James Arthur Hale was the father of Charlie; and that he was the only person with whom she engaged in sexual relations during the period when Charlie was conceived.

For the purpose of this decision, it will not be necessary to state the facts of the case further insofar as the testimony of the parties and witnesses is concerned. The testimony was so highly contradictory and hopelessly different that the factual issue could only be resolved by the jury; If there were no other physical or documentary facts to shed light on the sole issue involved, viz, the paternity of the child, the verdict of the jury and judgment of the court would have to be affirmed.

Expert and Documentary Evidence

On October 23,1978, appellant and appel-lee contacted a lawyer, went to his office, and obtained his assistance in preparing proper papers acknowledging appellant to be the father of the child and obtained an alteration of the birth certificate to so indicate. On that date, appellant and appellee each swore to and signed an acknowledgment of paternity setting out that Thomas E. Grimsley is the father of Charlie. Also, on October 23; 1978, appellant and appellee entered into a sworn agreement to the ef-feet that the child’s name would be changed to Charles Thomas Grimsley, that Thomas E. Grimsley, father of the child, pay $100.00 per month for child support until the child reaches the age of 18 years, that Thomas E. Grimsley should have reasonable visitation rights to see said minor child; that appellee would have permanent custody of said child; and that appellant would not take any action to change custody until the child attained the age of 18 years. [See Appendix],

Dr. Leslie Ray Bryant, Jr., was agreed upon by the parties as an expert to conduct paternity study and blood tests of the parties and the child and was appointed by the court to make the examination and study. He conducted the tests at the Southern Baptist Hospital blood bank and found no exclusion of paternity for appellant, based upon the red blood cell testing. The most advanced system of testing for paternity (the HLA testing) was used, and, based on that testing, Dr. Bryant found that appellant could not be excluded as the father of the child. The result of his study as reflected in the abstract follows:

My procedure, if there is no exclusion based on the red blood cell testing procedures, is to develop a mathematical calculations based on the HLA testing to produce a “plausibility” of paternity. However, this “plausibility” of paternity is not based on HAL testing alone, but is based on the red blood cell testing and the white blood cell testing. All the testing resulted in a paternity index of 236 to 1. The recognized authority in this area, Paternity Testing by the American Association of Blood Banks, considers 20 to 1 as “strong evidence” of paternity. Converting the 236 to 1 index into a percentage equates to a 99.6% plausibility of paternity, which is labeled as “paternity being extremely likely.”
The “plausibility” of paternity figure of 99.6% can be described as being either “strong evidence” or “extremely likely.” The plausibility of paternity is based upon a ratio of combined probabilities; that is, the combined probabilities equate to a plausibility. In converting from medical to layman’s language, “it’s extremely likely that he is the father” is about as close as you can come.
CROSS EXAMINATION OF DR. LESLIE BRYANT, JR.
With respect to the terms “probabilities” and “possibilities” and the question of whether or not Thomas E. Grimsley is the father of Charles Stines (Grimsley), I can say that Thomas Grimsley is more probable than not the father. It is because of the closeness to which Thomas Grimsley’s antigenic profile matches the biological father’s profile that I would say that Thomas E. Grimsley is more probably than not the father. The plausibility percentage of 99.6 leaves room for only 4/ioths of a percent for error. It is not often that there is a higher probability than 99.6%, but it does occur.

Conclusion

We recognize the rule stated in Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652 (Miss.1975), and cases following Paymaster, setting out when a motion for directed verdict or judgment notwithstanding the verdict, may not be granted. However, cases occur where the evidence is sufficient to withstand a motion for directed verdict or motion for judgment notwithstanding the verdict, yet the verdict is contrary to the overwhelming weight of the evidence. In the case sub judice, while the motion for judgment notwithstanding the verdict was properly overruled, we are of the opinion that, considering (1) certain inconsistencies and contradictions in appel-lee’s testimony, (2) the sworn formal acknowledgment of paternity by the appellee and appellant, (3) alteration of the birth certificate following that acknowledgment of paternity, (4) sworn written acknowledgment that appellant is the father of the child, and the agreement as to custody and support for the child, and (5) the paternity study and blood tests conducted by Dr. Bryant, together with the matter hereinafter discussed, require that this case be reversed and remanded.

The appellant has assigned as error that the lower court required the jury to consider the case in the early hours of the morning, which resulted in prejudice to the appellant. The point was not developed to the extent of Edge v. State, 393 So.2d 1337 (Miss.1981), and was not properly preserved in the court below. The briefs indicate that the case was submitted to the jury at 11 p.m. and that the jury deliberated until approximately 4:30 a.m., a period of five and one-half (5⅛) hours, before returning a verdict against the appellant. We think that it was error, under the facts of this case, for the jury to consider its verdict during that period of time, and we note it as plain error under Miss.Supreme Ct. Rule 6. We remind trial judges that requiring or permitting juries to deliberate on cases during such times may cause their verdicts to become suspect. Certainly, members of an average jury are fatigued, exhausted, and anything but concerned and alert after hearing a case until 11 p.m. and then deliberating until 4:30 a.m. This Court will look closely at records and verdicts rendered under such circumstances.

The judgment of the lower court is reversed, and the case is remanded for a new trial.

REVERSED AND REMANDED.

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

APPENDIX

STATE OF MISSISSIPPI

COUNTY OF PEARL RIVER

AGREEMENT

This agreement made and entered into by and between Thomas E. Grimsley and Virginia Ann Stiens [sic] Tyner, on this the 23rd day of October, A.D., 1978, as follows: WITNESSETH:

1. That the name of the minor child, Charles Thomas Stines, born out of wedlock, shall be changed to that of Charles Thomas Grimsley.

2. That Thomas E. Grimsley, father of said minor child shall pay $100.00 per month for child support until the child reaches the age of 18 years.

3. That Thomas E. Grimsley shall have reasonable visitation rights to see said minor child.

4. That Virginia Ann Stiens [sic] Tyner, shall have permanet [sic] custody and Thomas E. Grimsley will not take any action to take custody of said child until the age of 18 years of age.

WITNESS OUR SIGNATURES on this the 23rd day of October, A.D., 1978.

/s/ Thomas E. Grimsley THOMAS E. GRIMSLEY

/s/ Virginia Ann Stines Tyner VIRGINIA ANN STIENS [sic] TYNER

STATE OF MISSISSIPPI

COUNTY OF PEARL RIVER

Personally appeared before me, the undersigned authority, in and for the aforesaid jurisdiction, the within named, THOMAS E. GRIMSLEY and VIRGINIA ANN STIENS [sic] TYNER, who each acknowledged that they signed, executed and delivered the above and foregoing instrument of writing on the day and in the year as therein mentioned.

GIVEN under my hand and official seal on this the 23rd day of October, A.D., 1978.

/s/ Judy Ann Bennett NOTARY PUBLIC

My commission expires:

9/12/82


author: ROBERTSON, Justice,

text:
    Donnell THAMES v. STATE of Mississippi.
    No. 54988.
    Supreme Court of Mississippi.
    July 25, 1984.
    Rehearing Denied Aug. 22, 1984.
    V.W. Carmody, Jr., Stanfield & Holder-field, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROY NOBLE LEE, P.J., and ROBERTSON and SULLIVAN, JJ.
   ROBERTSON, Justice,

for the Court:

I.

On the evening of January 8, 1982, the business premises of Bourgeois Jewelers in Jackson, Mississippi were burglarized. On March 30, 1982, Donnell Thames, Defendant below and Appellant here, was formally charged with this burglary in an indictment returned by the Hinds County grand jury. The indictment further charged that Thames was a recidivist within the meaning of Miss.Code Ann. § 99-19-81 (Supp. 1983). Thames entered a plea of not guilty to all charges.

On March 17, 1983, this case was called for trial in the Circuit Court of the First Judicial District of Hinds County. That same day, after hearing all of the evidence and receiving the instructions of the Court, the jury found Thames guilty on the principal charge of burglary.

Immediately thereafter, the Circuit Court conducted a non-jury hearing on the recidivism issue. Without contradiction, the evidence established that Donnell Thames had, prior to that date, been convicted of two separate felonies, both burglaries. Accordingly, under the authority of Section 99-19-81 the Circuit Court committed Thames to the custody of the Mississippi Department of Corrections for a term of seven years without eligibility for probation or parole.

From this conviction and sentence, Thames appeals. We affirm.

II.

Thames claims that there was a fatal defect in the indictment in which he was charged. Putting the point another way, Thames urges that there was a fatal vari-anee between the proof and the charge made in the indictment. The error involved was so completely waived that we do not reach its merits, which, to be sure, are hardly apparent.

The indictment charges that Thames burglarized “the store building of Alfred Bourgeois d/b/a Bourgeois Jewelers”. The proof at trial established without contradiction that the premises burglarized by Thames were owned by one Adrienne Bourgeois. There was an error in the indictment, one without doubt curable by amendment.

Prior to trial Thames filed no demurrer or motion to quash the indictment. Two weeks less than a year elapsed between the return of the indictment and the date of trial. During that time the deficiency in the indictment now complained of was not mentioned. At trial the state proved that the premises were owned by Adrienne Bourgeois. No objection was made by the Defendant on the grounds that this proof varied from the indictment.

At the end of the State’s case defense counsel made a perfunctory motion “to dismiss the charge against the Defendant on the basis of the failure of the state to prove the charge of the indictment”. Counsel did not bring to the Court’s attention at this point the error in the indictment or the variance between the proof and the indictment. Indeed, when the motion was made the trial judge asked defense counsel if the motion was based upon “anything particular?” to which counsel replied, “No, Your Honor.”

At the conclusion of the proof and outside the presence of the jury, the State brought the discrepancy with which we are here concerned to the attention of the Court. In connection with the consideration of proposed Instruction No. S-l, the instruction which outlines the basic charge against Thames, the following colloquy took place.

BY MR. TAYLOR: Your Honor, I have a misprinting there or a mistake in a name I would like to change. Alfred should be Adrienne.
BY THE COURT: Any objections?
BY MR. CHILL: No, Your Honor.
BY THE COURT: It will be given as modified.

Following the jury’s guilty verdict and the imposition of sentence by the Court, Thames filed a motion for a new trial. The motion fails to assign the point here under consideration.

The sufficiency of indictments is controlled by Rule 2.05 of the Uniform Criminal Rules of Circuit Court Practice. That rule requires that an indictment contain “the essential facts” so as to “fully notify the defendant of the nature and cause of the accusation against him.” While the indictment in issue is arguably sufficient under Rule 2.05, we do not reach this issue, for Thames has wholly waived any right to object to the error in the indictment.

Pieratt v. State, 235 So.2d 923 (Miss.1970) is factually analogous and legally dispositive. Pieratt holds that

“if defendant in the present case had raised the question of variance between the indictment and the proof then the trial court could have allowed an amendment under appropriate terms. Having failed to do so, defendant may not now raise the issue”. 235 So.2d at 924.

See also George v. State, 183 Miss. 327, 332, 184 So. 67, 67-68 (1938) (error in indictment cannot be raised for the first time on appeal). Nothing in Rule 2.05 vitiates the holding of these pre-rule cases.

III.

Thames next charges that he has been denied the effective assistance of counsel as a result of which his conviction must be reversed and the case remanded for a new trial. In order to prevail on such a claim, Thames must show, first, that his counsel’s performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive him of a fair trial. Strickland v. Washington, 466 U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674, 693-699 (1984); Stringer v. State, 454 So.2d 468, 476 (Miss.1984). We have carefully reviewed the record of all proceedings in this case. Suffice it to say that we are unable to conclude from the record that Defendant’s trial counsel was constitutionally ineffective. See Read v. State, 430 So.2d 832, 841 (Miss.1983).

AFFIRMED.

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


author: HAWKINS, Justice,

text:
    Terry Wayne McDONALD v. STATE of Mississippi.
    No. 54903.
    Supreme Court of Mississippi.
    July 25, 1984.
    Richard Hamilton, Fielding L. Wright, Wright & Hamilton, Pascagoula, for appellant.
    Bill Allain, Atty. Gen., by Walter L. Turner, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C.J., and HAWKINS and PRATHER, JJ.
   HAWKINS, Justice,

for the Court:

Terry Wayne McDonald appeals from his conviction of conspiracy to possess and distribute marijuana and sentence of five years and $5,000.00 fine. He was one of seven indicted for this crime.

Numerous errors are assigned on his appeal, but we address only one. Because we are convinced the State never made a jury issue on McDonald’s being a co-conspirator, we reverse and render.

FACTS

On Friday, November 21, 1980, Terry Wayne McDonald was 26 years old, married, the father of two children, and a deputy sheriff investigator with the sheriff’s office of Jackson County. (He had worked for 2⅛2 years with that department, beginning as a jailer.) He had received an honorable discharge from the United States Army, after serving in the Green Berets. He had no sisters, and only one brother, Mack McDonald.

Because there are two McDonalds, we will refer to each by his first name.

Mack got Terry into one pack of trouble.

This case involves several individuals dealing in a large quantity of marijuana, and we will begin as the matter was related by the state’s star witness at trial: Dan Westphal. .

Westphal and four others learned of a shrimp boat of marijuana off the coast, and the five of them agreed to unload the marijuana, sell it and share equally in the proceeds. The other four in this agreement were: Kenneth and Graylon Hester, Tom Gruen and Roy Paine.

Two to three days before the arrival of the marijuana off the coast, Westphal contacted Mack about locating a place to store the marijuana. There was no set amount Mack was to be paid. According to West-phal, “It could be part of the loot, part of the marijuana in payment. It wasn’t important to either one of us to settle on a straight amount.”

Westphal, the Hesters and Paine made the trip out in a shrimp boat called “Rendezvous”, to the West end of Petit Bois Island, and removed about one-half the marijuana cargo from the other boat, loading it onto the Rendezvous. They docked at a local boat repair yard, and unloaded about one-half of the marijuana from the Rendezvous. Gruen was on shore. They had a load of over two tons.

The marijuana taken off the boat was loaded into a white Chevrolet closed van truck. Westphal, Gruen and Graylon Hester went in the truck to meet Mack, who then escorted them to the residence of Tom Hinton in Jackson County. All of the group wound up at Hinton’s residence, where the marijuana was unloaded into his hothouse.

Hinton’s involvement in the matter began with a telephone call he received on Friday morning, November 21. It was Mack. Hinton testified:

And he asked me would I help him with something. He didn’t really imply what it was. And when he got to my house, there was a big truck following him. It was about 4:00 in the morning. And he walked up to my door and was talking to me. I asked him what the big truck was, and he told me. I told him he could not leave it at my place. He told me not to kick up too much fuss, that the guys in the truck had a gun, or guns, and that I needed to try to help him if I could some way or another. So we bickered back and forth, and this guy named Westphal steps up; he was riding with Mack at the time. He made offers of what he would do for me if I would help them out, and this, that and the other. [Emphasis added]

Hinton permitted the party to unload the marijuana into his hothouse, but after their departure both he and his wife were quite uncomfortable. He telephoned Mack and told him the marijuana would have to be moved.

Hinton and the McDonalds had been lifelong friends, in public school together. The McDonalds also knew another individual from school days, Ray Stewart, but Terry was not on such good terms with him, having once arrested Stewart for auto theft.

Over in the late afternoon, about dark, of the day the marijuana was placed in Hinton’s hothouse, Mack telephoned his brother Terry to come over to his house, and from his voice Terry detected some urgency-

As Terry drove into Mack’s driveway, Ray Stewart drove in front of the house on the highway. Terry was inquiring the reason Mack wanted him, and was told there was no time, that it was getting dark, and to get into his truck and follow him to Hinton’s house. Thereupon, the three of them, each driving his own pickup, drove to Hinton’s house.

Terry testified:

Well, they pulled down by the greenhouse and I pulled right in behind them. I got out of my truck. And Mack and Tom were standing there at the door of the greenhouse, just on the other side of the opening of the door. I walked up to them and asked them what they wanted. About that time I walked up and the door was open, so I looked in the greenhouse. There was a pile of marijuana in there.
* * * * * *
I told them a bunch. I threatened them. I cussed them out. I was outraged by the whole thing; for them to take me down there, you know, and get me involved in it. I threatened them; I told them I was going to the law and have them busted, and everything else. I told them if they ever fooled with anything, they was going to get busted. I said they was going to get rid of it right then and there.

Mack told Terry that was what Stewart was for, and Stewart responded he wanted it.

Terry helped Stewart and Mack haul the marijuana from Hinton’s house over to a shop behind Stewart’s house. Stewart lived about four miles from the Hintons, and each pickup truck made two trips with marijuana, taking about 45 minutes altogether.

Asked what he thought when he saw the marijuana, Terry responded:

I thought they were in a lot of trouble and I wanted them to get rid of what they had. That’s all I could think about. They were in over their heads in something that was dangerous. It was powerful people they were fooling with. People can very easily get killed over two tons of marijuana. And I realized that. What I had on my mind was they were going to get rid of it and they weren’t going to be involved in it or exposed to it no longer. And if they was, then I would bust them.

Asked why he had not arrested them then, Terry responded:

Uh — , that would just be hard to do; arrest my only brother I had and a lifelong friend of mine. I felt I could get them to understand and leave the stuff alone and not get involved in this kind of stuff. I know I made a mistake; I know I should have. Maybe I should have done something — I don’t know. But it was right then a split-second decision making deal. And a lot of that didn’t really cross my mind, except the part that they were in danger and they were fooling with something they had no business messing with.

Stewart was promised $2,500 by Mack to store the marijuana. Stewart never received any money. Mack never received any money, and Hinton never received any money. Other than what has been related, Terry had nothing to do with the marijuana. He did not know Westphal, either of the Hesters, Gruen or Paine.

Westphal and the others later removed the marijuana from Stewart’s shop over a period of time and sold it off in lots. West-phal made over $45,000. Some of the marijuana went to Alabama. Westphal was arrested February 19, 1981, with a large quantity of marijuana and $10,000 to $11,-000 cash.

The only persons involved in the marijuana who testified were Westphal, Hinton, Stewart and Terry. There was no dispute in any of the testimony, except Stewart testified that Mack offered him $2,500 to store the marijuana, that they were at Mack’s house at the time, and Terry was present. Terry vehemently disputed this, and Terry’s version is borne out by Hinton, who was a state witness, and who said Terry was upset and angry with them over getting involved at all.

Terry’s total involvement was the 45 minutes it took for him to make two trips with marijuana in his pickup from Hinton’s house to Stewart’s on the night of November 21, 1980.

Terry had no dealings at any time with Westphal, the Hesters, Gruen or Paine. He knew nothing about them.

Following Westphal’s arrest, there was an investigation, and Terry was asked about a large quantity of marijuana in the north end of the county. He said he had been informed by a confidential informant that it had belonged to a man named Dan Westphal in Gautier. He had concluded that the marijuana was Westphal’s.

On October 12, 1982, Gruen, the Hesters, Hinton, one Larry Holmes, Terry and Mack were indicted by the Jackson County Grand-Jury charging that between November 1, 1980, and December 31, 1981, they did:

... feloniously conspire, combine, confederate and agree together and with each other and with diverse and other persons whose names are to the Grand Jurors unknown, to commit a crime against the State of Mississippi; namely, to possess a controlled substance, to-wit: over one (1) kilogram of Marijuana, with intent to distribute, ...

Westphal had been indicted for another offense, and although he was obviously the ring leader and main beneficiary, for his testimony the State agreed not to indict him, and granted him immunity for his part in this crime. Stewart was never indicted. Paine was never indicted.

All of the individuals indicted with the exception of Terry pleaded guilty.

The circuit judge overruled a motion for a directed verdict of acquittal at the conclusion of the State’s case.

LAW

Numerous errors have been assigned on this appeal. We only address the question of whether there was a jury issue made that Terry engaged in a conspiracy under Miss.Code Ann. § 97-1-1 (1972).

The State chose not to charge him with being an accessory after the fact, or with possession of marijuana. We are thus faced with the narrow question of whether from this record there was proof from which any jury could have concluded beyond a reasonable doubt that Terry was a “conspirator” under the statute.

Miss.Code Ann. § 97-1-1 (1972) provides:

If two (2) or more persons conspire either:
(a) To commit a crime; or
* * * * * *
(f) To commit any act injurious to the public health, to public morals, trade or commerce, or for the perversion or obstruction of justice, or of the due administration of the laws; or
(g) To overthrow or violate the laws of this state through force, violence, threats, intimidation, or otherwise; or
(h) To accomplish any unlawful purpose, or a lawful purpose by any unlawful means; such persons, and each of them, shall be guilty of a felony and upon conviction shall be fined not less than five hundred dollars ($500.00) nor more than five thousand dollars ($5,000.00) or shall be imprisoned not less than one (1) year nor more than five (5) years or both.
Provided, that where the crime conspired to be committed is a misdemeanor, then upon conviction said crime shall be punished as a misdemeanor as provided by law.

Long ago, in Ellzey v. State, 57 Miss. 827 (1880), we did state: “A conspiracy is defined to be a confederacy of two or more persons to accomplish some unlawful purpose.” In Moore v. State, 290 So.2d 603 (Miss.1974), we stated: “By its very nature conspiracy is a joint or group offense requiring a concert of free will.” At p. 604.

We find no decisions from this Court of any benefit on the specific question of whether the facts of this case made Terry a co-conspirator. Indeed, this Court has had but few occasions to deal with criminal conspiracy. In most crimes the conspirators and perpetrators were simply charged as principals in the criminal offense; Miss. Code Ann. 97-1-3 (1972).

The United States Courts, on the other hand, have dealt with a plethora of criminal conspiracies, and there we find ample authority.

In United States v. Peoni, 100 F.2d 401 (2nd Cir.1938), Peoni had passed some counterfeit bills. He was charged with possession of counterfeit money and conspiracy to possess.

In holding Peoni was not a co-conspirator, the Court stated, page 403:

At times it seemed to be supposed that, once some kind of criminal concert is established, all parties are liable for everything anyone of the original participants does, and even for what those do who join later. Nothing could be more untrue. Nobody is liable in conspiracy except for the fair import of the concerted purpose or agreement as he understands it; if later comers change that, he is not liable for the change; his liability is limited to the common purposes while he remains in it. [Emphasis added]

In United States v. Falcone, 109 F.2d 579 (2nd Cir.1940), affirmed 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940), the accused Falcone was indicted under a federal conspiracy statute along with numerous others engaged in manufacturing untaxed whiskey. Falcone was a wholesaler, selling sugar to the participants. In reversing his conviction, the Court stated:

It is not enough that he does not fore-go a normally lawful activity, of the fruits of which he knows that others will make an unlawful use; he must in some sense promote their venture himself, make it his own, have a stake in its outcome. The distinction is especially important today when so many prosecutors seek to sweep within the drag-net of conspiracy all those who have been associated in any degree whatever with the main offenders. That there are opportunities of great oppression in such a doctrine is very plain ... [Emphasis added] [At 581]

In United States v. Andolschek, 142 F.2d 503 (2nd Cir.1944), the numerous government agents were indicted in a conspiracy to take bribes. Herskowitz on appeal alleged it was not proven he had been a member of the conspiracy, although he may very well have engaged in some criminal acts. Again, the Court states as to a conspiracy:

It is true that at times courts have spoken as though if A. makes a criminal agreement with B., he becomes a party to any conspiracy into which B. may enter, or may have entered, with third persons. That is of course an error: the scope of the agreement actually made always measures the conspiracy, and the fact that B. engages in a conspiracy with others is as irrelevant as that he engages in any other crime. It is true that a party to a conspiracy need not know the identity, or even the number, of his confederates; when he embarks upon a criminal venture of indefinite outline, he takes his chances as to its content and membership, so be it that they fall within the common purposes as he understands them. Nevertheless, he must be aware of those purposes, must accept them and their implications, if he is to be charged with what others may do in execution of them. [Emphasis added] [At 507]

In Bollenbach v. United States, 326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350 (1945), the accused Bollenback sold some of the securities which had been stolen. He was indicted for conspiracy to transport stolen securities. The United States Supreme Court held:

Bollenbach could not properly be convicted for the offense for which he was charged and for which he was convicted, namely, for having conspired to transport securities across State lines merely on proof that he was a “fence,” i.e., helped to dispose of the stolen securities after the interstate transportation was concluded. While § 332 of the Criminal Code, supra, made aiders and abettors of an offense principals, Congress has not made accessories after the fact principals. Their offense is distinct and is differently punished. [Statutes omitted] [326 U.S. 611, 66 S.Ct. 404, 90 L.Ed. 353]

To the same effect is Cleaver v. United States, 238 F.2d 766 (10th Cir.1956), where the defendant Colasacco helped dispose of stolen property, the Court held this was insufficient to constitute him a co-conspirator in the crime of conspiring to commit burglary.

Roberts and Bookout v. United States, 416 F.2d 1216 (5th Cir.1969), is illustrative of this case. Bookout, Roberts and Coceo were charged in three count indictments with (1) committing and aiding and abetting uttering and publishing counterfeit money, (2) passing two counterfeit bills, and (3) conspiring to pass, utter and publish counterfeit money.

Bookout was the common-law wife of one Capatorto, and they lived in the same home with a Pat Miller. Capatorto, Miller, and one John Coceo and Carl Roberts all conspired to pass counterfeit money. They assembled in the home of Capatorto and Miller, and there made their arrangement. Bookout was not present at their plans, was across the hall in the bathroom, but presumably knew what was going on. The men left to pass counterfeit money at a race track.

After the men left, the two women left to go shopping in Fort Lauderdale. They ate at a drug store, following which Miller told Bookout she was going to try and pass a bogus bill, and Bookout warned her against it. Bookout paid for her meal with her own good money. When Miller attempted to pass a bogus bill, the clerk summoned the police by phone. Before the police arrived, Miller gave Bookout the remaining nine bills she had, and asked her to get rid of them, her reason being she did not want Bookout to get involved. Bookout took the money and burned it.

Was Bookout a co-conspirator? The Court stated, pp. 1220-1221:

Viewed in the light most favorable to the government, the evidence shows only that Bookout knew of the conspiracy, associated with guilty parties, and destroyed counterfeit money. Bookout’s knowledge that there was a plan to pass the counterfeit could reasonably be inferred from two incidents. First, she entered the room while the discussion as to how to pass the bills was occurring. From this the jury was entitled to infer that Bookout had knowledge that there was counterfeit money spread out on the bed and that plans were being made to pass it. Second, Miller testified that Bookout warned her against attempting to pass the bill. This, of course, is further evidence of the fact that Bookout knew of the plan and knew that the money was counterfeit.
Miller’s testimony that Bookout destroyed the balance of the counterfeit given to her by Miller no doubt weighed heavily against Bookout with the jury. It seems a reasonable assumption that the jury drew the inference that the destruction of the money demonstrated Bookout’s agreement to enter the conspiracy. Essentially then, our task is to determine if this inference was reasonable.
It is elementary that neither association with conspirators nor knowledge of illegal activity constitute proof of participation in a conspiracy. United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940). The elements of a conspiracy are an agreement by two or more persons to combine efforts for an illegal purpose and an overt act by one of the members in furtherance of the agreement. United States v. Falcone, supra; Nelson v. United States, 5 Cir.1969, 415 F.2d 483; Castro v. United States, 5 Cir.1961, 296 F.2d 540; Duke v. United States, 5 Cir.1956, 233 F.2d 897.
In circumstantial evidence cases such as this, “the test to be applied on motion for judgment of acquittal and on review of denial of such motion is not simply whether in the opinion of the trial judge or the appellate court the evidence fails to exclude every reasonable hypothesis, but that of guilt, but rather whether the jury might reasonably so conclude”. Harper v. United States, 5th Cir.1969, 405 F.2d 185 quoting Vick v. United States, 5 Cir.1954, 216 F.2d 228. Crediting all the evidence and all reasonable inferences most favorable to the government, we are unpersuaded that the jury could reasonably exclude the hypothesis that Miss Bookout did not enter into the conspiracy to utter the counterfeit currency.
Miss Bookout did nothing and said nothing from which the jury could reasonably infer that she entered the conspiratorial agreement prior to the attempt by Miller to pass the bill in the Broward Drug Store. Certainly, no event occurred in the Capatorto home supportive of such an inference. At most, the evidence reveals that Bookout first gained knowledge of the plan when she entered the Miller bedroom to comb her hair. She did not indicate at the time that she gave any attention to the transaction and conversation underway at the bed, but the government is entitled to the inference that she overheard plans being discussed as to methods of using the money.
Nothing that happened at the Broward Drug Store prior to Bookout’s destruction of the money aids the government’s case. Indeed, the fact, as related by Miller that Bookout warned her not to pass the money indicates rather strongly that as of that time Bookout was not agreeable to becoming a partner in the conspiracy, the object of which was to pass the money. Bookout’s payment for her own lunch with legitimate currency is an additional contradiction to her being a member of the conspiracy. It would seem reasonable for a conspirator to use the available counterfeit.
Ultimately then, the government must depend primarily upon the fact that Bookout destroyed the remaining bills to support the proposition that she was a member of the conspiracy. It is of course true that a person may be held as a conspirator regardless of the point in time at which he enters it, so long as he enters it with intent to further its objects during the life of the conspiracy. Nelson v. United States, supra; Lile v. United States, 9 Cir.1958, 264 F.2d 278, 279. The government’s theory is then that if Bookout had not agreed previously to enter the conspiracy she adopted the aim of the conspiracy to pass the counterfeit money by destroying the money to prevent discovery of the existence of the conspiracy and to permit it to continue as a going partnership in crime. The reasonableness of this hypothesis may be assumed. But, it is by no means the only reasonable hypothesis. The first to suggest itself is that her action was taken on the spur of the moment as an act of compassion for her friend, Miss Miller. In view of the other circumstances (1) that Miss Book-out did not use any of the money; (2) that she was not a part of the discussion of the counterfeit money in the Miller bedroom; (3) that she paid for her lunch with her own funds even though an opportunity to pass the counterfeit was present; and (4) that she was told to destroy the funds by an alleged co-eon-spirator who did not want Bookout “to get involved”, it simply cannot be asserted that the sole reasonable inference to be drawn from her destruction of the money was that she was a member of the conspiracy. As indicated, Bookout’s act was as consistent with the hypothesis that she destroyed the money simply in order to help Miller. The latter we view as the more reasonable of the two assumptions when the other circumstances are weighed. Only the one circumstance may be said to point to guilt as well as to innocence. The other circumstances clearly point to innocence.
In sum, we are left with an abiding conviction that the jury's verdict of guilty as to Bookout is based upon suspicion and surmise only. She associated with the wrong people and was convicted because of guilt by association only. Her conviction for conspiracy may not be permitted to stand since we conclude that the inference of her guilt was not a reasonable one for the jury to entertain.

Conspiracy is a word of amorphous meaning, used in factual situations as broad as human behavior. We do not in this opinion attempt to define its many different shades of meaning, or the outer limits of its application to criminal behavior. We merely decide whether Terry Wayne McDonald’s offense ever reached any standard of proof required for such a crime.

To constitute an individual a co-conspirator, there must be a recognition on his part that he is entering into some kind of common plan, and knowingly intends to further its common purpose. Terry was charged with knowingly entering into a scheme with certain persons for the purpose of possessing marijuana with the intent to distribute.

Terry was trying to extricate his brother and a very good friend. He violated the law when he possessed and transported the marijuana. He may very well have been an accessory after the fact under Miss.Code Ann. § 97-1-5 (1972). For some reason which escapes us, the state chose to charge him with the crime of conspiracy.

For the reasons stated, the judgment of conviction is vacated, and appellant discharged.

REVERSED AND RENDERED.

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


text:
    Victor KENNEDY a/k/a Victor Lewis Kennedy v. STATE of Mississippi.
    No. 55131.
    Supreme Court of Mississippi.
    Aug. 15, 1984.
    Victor L. Kennedy, Parchman, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Lamar County; R.I. Prichard, III, Judge.

Before BOWLING, DAN M. LEE and PRATHER, JJ.

APPEAL FROM A DENIAL OF A PETITION FOR CLARIFICATION OF SENTENCE AFFIRMED.