author: ROY NOBLE LEE, Justice, ROBERTSON, Justice,

text:
    Connie Ray EVANS v. STATE of Mississippi.
    No. 53754.
    Supreme Court of Mississippi.
    Nov. 30, 1983.
    Rehearing Denied Jan. 25, 1984.

      Solomon Osborne, Greenwood, for appellant.
    Bill Allain, Atty. Gen., Amy D. Whitten, William S. Boyd, III, Sp. Asst. Attys. Gen., Jackson, for appellee.
   ON APPLICATION FOR LEAVE TO FILE PETITION FOR WRIT OF ERROR CORAM NOBIS

ROY NOBLE LEE, Justice,

for the Court:

Connie Ray Evans was convicted in the Circuit Court of the First Judicial District of Hinds County, Mississippi, and sentenced to suffer death, according to the law of the State of Mississippi. That judgment and sentence were affirmed by a unanimous decision of the Mississippi Supreme Court on November 3, 1982, and petition for rehearing was denied December 15, 1982. Evans v. State, 422 So.2d 737 (Miss.1982). The facts recited in the opinion reflect that during the evening hours of April 8, 1981, Evans and his accomplice met and made plans to rob R.J. Food Store located on Lynch Street in Jackson, Mississippi. Evans stated to his accomplice that they might have to kill the storekeeper during the robbery. The next day, Evans and the accomplice robbed the store and clerk of approximately $400.00, and, in the process, Evans shot and killed the clerk.

A petition for a writ of certiorari to the Supreme Court of Mississippi was filed in the United States Supreme Court and that court denied the petition on May 16, 1983. Petition for rehearing was filed and also was denied. Application for Leave to File Petition for Writ of Error Coram Nobis was filed on July 1, 1983, setting out eighteen (18) grounds for relief, each of which we address hereinafter.

I.

Unlawful Application of Statutory. Aggravating Factors

A. The State’s Use in Petitioner’s Case of the Statutory Provisions that the Murder was “Especially Heinous, Atrocious and Cruel.”

This ground was presented to the Court on direct appeal from Evans’ conviction and sentence and was resolved by the Court in the following response:

In the case sub judice, the victim was forced to kneel on the floor behind the counter with a .38-ealiber revolver pointing at his head, he was made to stand up at gunpoint and open the cash register, and again was forced to kneel on the floor with the revolver still pointing at his head. He was physically assaulted by one of the robbers emptying his pockets, all occurring over a short period of time. From those facts, the jury could consider mental torture and aggravation which the victim probably underwent, and to determine whether or not the murder under all the facts and circumstances 'was especially heinous, atrocious or cruel. Even though it may be said that the facts of the homicide do not pass constitutional muster on the aggravating circumstances of being especially heinous, atrocious or cruel, three (3) other, aggravating circumstances were proved by overwhelming evidence. [Evans v. State, 422 So.2d 743].

Thus, the matter having been fully and finally litigated on direct appeal, it is res adjudicata, may not be relitigated in a cor-am nobis proceeding, and is procedurally barred.

We note that Evans argues on this point in his petition that “Moreover, as expressly acknowledged by this Court in its review of petitioners’s case on direct appeal, there was wholly insufficient evidence to support the jury’s reliance upon this aggravating circumstance in imposing a death sentence on petitioner.” The argument is misplaced. The response clearly sets out that the aggravating circumstance of being especially heinous, atrocious or cruel was properly submitted for the consideration of the jury and for its determination. The phrase “Even though it may be said that the facts of the homicide do not pass constitutional muster on the aggravating circumstance of being especially heinous, atrocious or cruel, ...” is a different way of saying “Assuming arguendo, ...” or “Even though it may be argued, ...” or “For the sake of argument, ...”

B. The State’s Use in Petitioner’s Case of the Statutory Provision that Petitioner’s Offense was Committed for the Purpose of “avoiding ... lawful arrest” as an Aggravating Circumstance

This contention was not alleged as error and presented on direct appeal. The issue may not now be raised for the first time on this application for leave to file the petition for writ of error coram nobis, and it is procedurally barred. Smith v. State, 434 So.2d 212 (Miss.1983); Edwards v. Thigpen, 433 So.2d 906 (Miss.1983); Wheat v. Thigpen, 431 So.2d 486 (Miss.1983).

C. The Use of the Statutory Provision that Petitioner was “under sentence of imprisonment” at the Time of the Offense as an Aggravating Circumstance

This contention was presented and argued to the Court on direct appeal (Evans, supra, at 741), it may not be relitigated' again on this petition and is procedurally barred.

II.

Interjection of Evidence Based on Non-statutory Aggravating Circumstances

A. Color Slide Evidence

B. Testimony of Victim’s Brother

C. Police and Pathologist Testimony

The contentions A, B, and C were presented to this Court on direct appeal and were decided adversely to petitioner. Therefore, they may not be relitigated on this petition and are procedurally barred.

D. Evidence of Bullet and Victim’s Belongings

Petitioner did not allege as error or present same to this Court on direct appeal, the issue may not now be raised for the .first time on the petition and is proeedurally barred. (Smith, supra; Edwards, supra; and Wheat, supra).

E. Failure to Give a Jury Instruction Limiting Consideration of Aggravating Circumstances

This contention was alleged as error and briefed on direct appeal and was rejected by the Court. It may not now be reliti-gated on this petition and is procedurally barred. (Evans, supra, at 745).

III.

Other Constitutional Errors in the Sentencing Trial

1. Removal of Juror with Scruples Against Capital Punishment

2. The Prosecuting Attorney’s Pervasive Pattern of Misconduct

Evans contends that the lower court erred (1) in removing a juror with scruples against capital punishment, and (2) the prosecuting attorney’s argument constituted error. Both of these contentions were presented to this Court on direct appeal and were found to be without merit. (Evans, supra, at 740, 746). They are res adjudica-ta, may not be relitigated on this petition and are procedurally barred.

3. The Absence of a Finding of Intent to Take Life
4. The Absence of Notice of Aggravating Circumstances
5. Refusal to Allow Petitioner’s Witness to Testify on His Behalf Violated Petitioner’s Rights under the Eighth and Fourteenth Amendments
6. The Absence of a Presentence Report
7. Inadequacy of the Trial Judge’s Report
8. Inadequacy of Appellate Review Procedures

Evans relies upon Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), and contends (3) that he did not kill, attempt to kill, or intend that a killing take place during the robbery, and that the death penalty should not have been imposed. In Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), the court held:

Where the basis of a constitutional claim is available, and other defense counsel have perceived and litigated that claim, the demands of comity and finality counsel against labeling alleged unawareness of the objection as cause for a procedural default. [456 U.S. at 134, 102 S.Ct. at 1575, 71 L.Ed.2d at 804].

He contends that (4) the indictment alleged no aggravating circumstances and that the omission violated his rights under the Fourteenth and Sixth Amendments of the United States Constitution, (5) the lower court’s refusal to permit his witness to testify in mitigation of the sentence violated his Eighth and Fourteenth Amendment rights, (6) the absence of a pre-sentence report constituted error, (7) the inadequacy of the trial judge’s report was error, and (8) Mississippi’s proportionality review structure is inadequate and prejudicial to him.

None of these contentions listed here were raised or presented on the direct appeal, and they are procedurally barred. Smith, supra; Edwards, supra; Wheat, supra.

9. Arbitrariness of the Death Penalty in Mississippi
10. Discriminatory Aspects of the Death Penalty in Mississippi

Evans contends that (9) his sentence is disproportionate and arbitrary and (10) the death penalty in Mississippi is imposed in a discriminatory manner. Those contentions were not presented on the direct appeal, they are unpreserved and are procedurally barred. Smith, supra; Edwards, supra; Wheat, supra.

We are of the opinion that the Application for Leave to File Petition for Writ of Error Coram Nobis in the Circuit Court of the First Judicial District of Hinds County, Mississippi, should be denied.

APPLICATION DENIED.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and BOWLING, and DAN M. LEE, JJ., concur.

ROBERTSON, HAWKINS and PRATHER, JJ., dissent.

ROBERTSON, Justice,

dissenting:

I.

For at least two decades the writ of error coram nobis has been a post-conviction form of action through which prisoners of the state have filed constitutional challenges to their convictions and sentences. We have venerated this writ, for it fulfills our felt obligation to assure that no person experiences the sting of the state’s penal sanctions inconsistent with the constitution.

Secondary but also important is our federalism context. When Mississippi’s prisoners have been admonished that their complaints may not be heard in federal court until all viable state remedies have been exhausted, we have insisted that this state affords such a remedy. We have proclaimed it plain, adequate and speedy. As a responsible partner in our federal system we would be remiss if we did not afford state prisoners such a remedy.

Today’s decision renders the writ of error coram nobis an empty form of action. It is still on the books. There is simply not much of any importance it may be used for.

After today we have no plain, adequate and speedy post-conviction remedy for adjudication of constitutional issues. Today’s decision makes clear that, if such issues are presented at trial and on direct appeal, they are barred on error coram nobis as res judicata. If such issues are not presented at trial and on direct appeal, they are deemed waived. All constitutional claims are thus precluded from post-conviction review. Today’s decision unmistakably holds that the writ of error coram nobis is no longer a viable form of post-conviction action for the litigation of a prisoner’s constitutional claims no matter how meritorious those claims may be. The writ has become an ambassador without portfolio.

Because our action today is so out of keeping with my understanding of our judicial responsibilities in cases such as this, I respectfully dissent and set forth my reasons at some length.

II.

A.

We recall the standing the writ of error coram nobis has had.

Though it was available at common law, the writ of error coram nobis has a statutory base in this state. Miss.Code § 99-35-145 (1972). This statute became law over thirty years ago. Miss.Laws, ch. 250 (1952). It was passed out of the legislature’s “cognizance of the need to establish an adequate post-conviction remedy”. Smith v. State, 155 So.2d 494, 495 (Miss.1963).

In Windom v. State, 192 So.2d 689 (Miss.1966), for example, the Court described the coram nobis remedy in this language:

This Court has provided a plain, adequate and speedy post-conviction remedy for adjudication of all issues that may be raised under the Constitution of the United States or the Constitution of Mississippi.

192 So.2d at 691.

This language was quoted and cited with approval in Love v. State, 221 So.2d 92, 94 (Miss.1969). In Love the Court went on to insist that:

“... This state has an adequate post-conviction remedy for an application for relief by persons convicted of crime. Even the most hardened criminals are not denied a ‘full-blown hearing’ ”

221 So.2d at 95. [Emphasis added].

The office of the writ of error coram nobis as this state’s form of action designed to accommodate post-conviction consideration of constitutional issues was reiterated in Nelson v. Tullos, 323 So.2d 539 (Miss.1975).

In this jurisdiction relief for a defendant who claims to have been convicted as the result of a deprivation of his constitutional rights is by writ of error coram nobis. As this Court pointed out in Botts v. State, 210 So.2d 777 (Miss.1968):
The function of a writ of error coram nobis is to bring to the court’s attention some matter or fact which does not appear on the face of the record which was unknown to the court or the parties at the time, and which, if known, and properly presented, would have prevented the rendition of the original judgment. The violation of defendant’s constitutional right to be represented by counsel constitutes ground for granting a writ of error coram no-bis to correct a former judgment. 18 Am.Jur.2d Coram Nobis § 17 (1965). (210 So.2d at 779).
Accord Clayton v. State, 254 So.2d 874, 875 (Miss.1971); Allred v. State, 187 So.2d 28, 30 (Miss.1966).

323 So.2d at 543.

As recently as 1982 we observed that the writ of error coram nobis is the form of remedy available to one mounting a “collateral attack based upon constitutional defects ... [in his] conviction”. Phillips v. State, 421 So.2d 476, 483 (Miss.1982).

B.

Through the error coram nobis procedure, this Court has repeatedly allowed presentation of constitutional issues which could have been litigated at trial or on direct appeal but for various reasons were not.

Fondren v. State, 199 So.2d 625 (Miss.1967) typically reflects the office of our writ of error coram nobis. Thomas Earl Fondren had been tried and convicted of burglary. This Court had affirmed on the merits. Fondren v. State, 253 Miss. 241, 175 So.2d 628 (1965). Two years later Fondren sought release via writ of error coram no-bis. He assigned an alleged denial of his constitutional right to trial before a jury drawn from a fair cross-section of the community. He alleged that in fact black persons had long been excluded systematically from juries in his county and that this exclusion rendered constitutionally infirm his conviction and sentence. This Court granted relief on the merits. Fondren v. State, supra, 199 So.2d at 626-627. In Fondren the systematic exclusion claim was not held procedurally barred. Fondren had not timely raised the issue at trial. He had not assigned it as error on direct appeals. In spite of these failures, when the case reached this Court two years later via error coram nobis, we reached the merits and granted relief. There was no waiver of the claim “since the proof shows that he [Fon-dren] was not advised of his rights by prior counsel”. 199 So.2d at 626.

What is important about Fondren is that the constitutional infirmity in Fondren’s conviction is in fact just as procedurally barred as is Evans’. Evans’ procedural default is qualitatively the same as Fondren’s, no more, no less. Fondren’s “barred” constitutional claim was considered on its merits. Why Fondren does not require similar treatment of Connie Ray Evans’ constitutional claims escapes me.

C.

There is another context in which we have routinely ignored so-called “procedural bars” and allowed prisoners to present their constitutional claims via error coram nobis. These cases have arisen when the prisoner has pleaded guilty, had his plea accepted and been sentenced. Later he seeks error coram nobis relief on constitutional grounds. The plea of guilty constitutes a waiver of an accused’s most basic constitutional rights. Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709,1712, 23 L.Ed.2d 274, 279 (1969); Phillips v. State, 421 So.2d 476, 479 (Miss.1982). We have nevertheless proceeded to adjudicate the merits of such cases — almost routinely. See, e.g., Echoles v. State, 254 Miss. 133, 180 So.2d 630 (1965) (prisoner allowed to challenge sufficiency of indictment even though he voluntarily pleaded guilty and waived his rights).

Arguably there is a qualitative difference in the Echóles waiver and that involved here. Echóles’ guilty plea was knowing and voluntary on his part. Evans’ “waiver” un-dergirding the majority’s view is predicated upon the inactions of counsel in which no one could say Evans was a knowledgeable participant. If Echóles was entitled to be heard on the merits of his claim, Evans is even more certainly similarly entitled.

III.

Connie Ray Evans, III has now presented to this Court his petition for a writ of error coram nobis. He charges that his death sentence is infected with no less than sixteen infirmities, each said to be of constitutional dimension. He has done this via an application adequate under Rule 38, Miss. Sup.Ct. Rules, an application which lays bare much flesh to many of his substantive claims.

The majority holds each of Evans’ claims procedurally barred, apparently accepting the State’s candid and (to my mind) shocking insistence that:

Any relative merit which might be found in the [sixteen constitutional] claims is afforded no consideration where the machinery for preserving the claim has gone unused.

State’s Brief, p. 11. [Emphasis added].

The majority would have Evans die, not because the proceedings at trial and on direct appeal were fundamentally fair or constitutionally adequate, but because his lawyer goofed. We have here no suggestion that defense counsel chose deliberately to bypass the trial and appellate process. The State does not argue that defense counsel eschewed presenting these sixteen constitutional claims as a matter of conscious trial tactics. Connie Ray Evans, the center and subject of this kafkaesque nightmare, no doubt has not the slightest comprehension of his lawyer’s inaction at trial or our action here. Decisions that life be taken should be made of more solid stuff.

The majority opinion is, I submit with sincerest respect and deference, in grave error on two fronts — first, in its unjust impact on the man whose life is here on the line; and, second, in its complete evisceration of the coram nobis post-conviction remedy.

Make no mistake about the implications of the procedural bar the majority would impose upon Connie Kay Evans. It presumes that, in at least sixteen different particulars, Evans' rights secured by the Constitution of the United States may have been violated. No matter. The majority holds that Evans must die, his sixteen federal constitutional claims never having been considered on their merits by anyone. What state interest requires such a fateful step wholly escapes me!

Second, and to my mind even more disturbing, are the institutional ramifications of the majority opinion. The writ of error coram nobis, as we have heretofore known it, has been substantially eviscerated. After today’s decision, there is no post-conviction relief available in this Court on questions of criminal constitutional law!

Consider the logic implicit in the majority opinion. Alleged violations of constitutional and other rights must be objected to at trial and then raised as assigned errors if they are to be preserved for consideration on their merits on direct appeal. If error is not properly preserved,, then such error may not — says the majority — be asserted as a basis for post-conviction relief because of procedural bar. If, however, the defendant preserves the error, the majority nonetheless denies post-conviction proceedings because all such preserved errors have been reviewed on direct appeal and are thus res judicata. The majority opinion allows neither preserved nor unpreserved error to be raised for post-conviction review. If this be the law, it is difficult to imagine why we ever thought it necessary to have a post-conviction remedy for the litigation of constitutional claims at all.

IV.

The dissent I register here is undergirded by a powerful principle well stated by this Court over thirty years ago in Brooks v. State, 209 Miss. 150, 46 So.2d 94 (1950).

Constitutional rights in serious criminal cases rise above mere rules of procedure.

209 Miss, at 155, 46 So.2d at 97.

This principle was restated with approval in Gradsky v. State, 243 Miss. 379, 384, 137 So.2d 820, 821 (1962). Its current vitality is attested by the Court’s recent decisions in Read v. State, 430 So.2d 832, 837 (Miss.1983); and Richardson v. State, 436 So.2d 790, 791 (Miss.1983). See also, my dissenting opinion in Hill v. State, 432 So.2d 427, 443-451 (Miss.1983).

This principle has force for a more fundamental reason: it is intuitively and demonstrably just. The point is graphically illustrated by imagining the converse principle: In serious criminal cases, fundamental constitutional rights are subordinated to mere rules of procedure. No court would consciously embrace such an exhaltation of form over justice, yet such is the inescapable implication of the majority opinion.

There is a practical reason why strict adherence to the spirit of Brooks is so important here. Death penalty litigation has become highly specialized. Few Mississippi lawyers have even a surface familiarity with the seemingly innumerable refinements put on Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) and progeny.

We have reviewed the record in numerous death penalty cases in recent years. Generally, we find that a vigorous all-out defense is made, although there are exceptions. Generally speaking, the Mississippi Bar has reason to be proud of the vigor and competence with which its members have defended capital cases. On points that arise regularly in criminal cases of all descriptions — change of venue, insanity defense, pretrial motions to suppress statements and evidence, trial tactics generally, jury instructions, and the like — our bar has performed well. What happens frequently, however, and what has happened in this case, is that — as a conventional criminal case — the case was well tried. In spite of this, numerous important and highly technical death penalty issues were not raised. Most of the sixteen issues presented on this petition are issues which have resulted in death sentences being vacated in other cases. These are points of law with which the average Mississippi criminal defense lawyer has no familiarity.

Nothing said here suggests any inference that we here deal with ineffective assistance of counsel. Nonetheless, there can be no doubt .that counsel’s ignorance of the constitutional issues at stake in a capital case is responsible for many procedural defaults here. It follows to my mind that we ought decide these cases on the merits of the issues tendered, procedural niceties to the contrary notwithstanding.

V.

The majority opinion relies on a trilogy of recent decisions as supporting the proposition that we now have a blanket rule requiring enforcement of procedural bars on constitutional claims asserted in death penalty cases via application for writ of error coram nobis. Edwards v. Thigpen, 433 So.2d 906 (Miss.1983); Wheat v. Thigpen, 431 So.2d 486 (Miss.1983); and Smith v. State, 434 So.2d 212 (Miss.1983). In my view, none of these cases is nearly so broad.

Despite the fact that the majority offers Edwards as a case in which the blanket rule requiring procedural bar was invoked, only six of seven assignments of error in Edwards were treated as either res judicata or procedurally barred. The fifth assignment of error — whether Edwards possessed an intent to kill — was treated unequivocally on the merits. 433 So.2d at 908. The issue could have been found res judicata as the direct appeal opinion discussed the sufficiency of evidence for finding that Edwards was the killer. 413 So.2d at 1013. The issue also could have been found procedurally barred because the issue — both at trial and on direct appeal — -was “less than precisely framed” and thus not preserved. 433 So.2d at 908. Even though such methods for disposing of the issue on procedural grounds were available, the court, nonetheless, reached the merits. Obviously, no “blanket rule” is enunciated by this case.

In Wheat v. Thigpen, five of the points raised on post-conviction proceedings had been previously decided by this Court on direct appeal. Cf. Wheat v. State, 420 So.2d 229, 232 (Miss.1982). Three other issues — alleged improper closing argument at the guilt phase, alleged improper jury instructions at the sentencing phase, and alleged improper closing argument at the sentencing phase — were neither preserved at trial nor presented to this Court on direct appeal. Wheat holds the three unpreserved claims procedurally barred. Nothing in the opinion^ however, attempts to articulate a rule going beyond the facts of the particular case. Nothing in Wheat purports to announce a general rule requiring enforcement of procedural bars precluding litigation of all constitutional claims in all death penalty post-conviction proceedings.

In Smith v. State, 434 So.2d 212 (Miss.1983), the Court cites a number of cases for the proposition that this Court holds that post-conviction relief is not available on issues which could or should have been litigated at trial or on appeal. Neither Smith, nor Edwards nor Wheat, hold that fundamental constitutional issues — that are neither raised at trial nor assigned as error on direct appeal — are foreclosed from presentation on post-conviction; such a holding would necessitate overruling many prior cases. See Hill v. State, 432 So.2d 427, 443-451 (Miss.1983) (Robertson, J., dissenting).

VI.

The majority relies on Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1983), in support of the proposition that petitioner’s constitutional claims not presented at trial or preserved on direct appeal should be deemed procedurally barred. This citation is out of place. Isaac literally concerns another world.

Isaac articulates principles to be applied by federal courts, not state courts. In Isaac, a federal court is being asked to interfere with the final judgment of the highest court of a state. By way of contrast, Evans asks this Court in effect to reconsider its own prior final judgment, something we have inherent authority to do. Wetzel v. State, 225 Miss. 450, 483, 76 So.2d 194, 198 (1954); Rogers v. Jones, 240 Miss. 610, 128 So.2d 547, 551 (1961).

The dominant interest underlying the Isaac principle is comity — the federal court’s comity obligation to respect the competence of state courts and the finality of state adjudications. Isaac is describing the circumstances under which a federal court should be reluctant to interfere with a final judgment of this Court. This is what — and all — that is said in the sentence from Isaac quoted by the majority.

Isaac is wholly irrelevant when this Court is being asked to reconsider its own judgment. There are no comity considerations present. We are on the other side of the Isaac situation. Not one word in Isaac, not one thought articulated in the opinion, has the slightest application to the question of whether a state court ought hear, on post-conviction proceedings, constitutional claims not timely presented on direct appeal. We fashion our own rule on this question.

Despite the total inapplicability of the decision in Isaac to this Court, an examination of the facts in Isaac — facts under which state, procedural bars may be enforced — is instructive, Isaac is not a death penalty case. The Supreme Court of the United States has repeatedly held that death is different. In its “death is different” cases, the Court has articulated interests and premises which are simply not present in non-capital cases. Because the penalty is qualitatively different in severity and finality from any other punishment known to our law, it makes no sense that the procedural rules of Isaac should be applied the same as in non-capital cases.

VII.

It is important to understand the reasons why the State urges that the issues tendered be disposed of on procedural grounds only. The State’s articulated motivation is to short-circuit anticipated federal court review via habeas corpus under 28 U.S.C. § 2254. The State is saying we should hold Evans’ claims procedurally barred, not because such would promote the interests of justice, but rather that such would pull the rug out from under Evans when he ultimately seeks federal review of his case. The State not only asks that we refuse to address Evans’ claims on their merits but unashamedly further seeks our aid in avoiding litigation of Evans’ sixteen federal constitutional claims in any federal court.

The Attorney General and this Court have become interested in invoking procedural bars in death penalty cases only in recent years. Prior to the death penalty moratorium which covered the last half of the 1960s and most of the 1970s, procedural bars in death penalty cases were unheard of. For a collection of authorities to this effect, see my dissenting opinion in Hill v. State, 432 So.2d 427, 443-45 (Miss.1983).

A review of recent history is instructive — and reveals our affection for procedural bars to be particularly unseemly.

In seven cases, those of Richard Gerald Jordan, Johnny Lewis Washington, Jimmy Lee Voyles, Charles Sylvester Bell, John Buford Irving, Larry Jones and Willie Reddix, we have affirmed final judgments of conviction and sentences of death. We have thereafter denied coram nobis and other post-conviction relief in each of these cases. Subsequently, in each of these cases, for one reason or another, courts of the United States have vacated the death sentences. In each case, a federal court has held that imposition and carrying out of the sentence of death would be inconsistent with one or more provisions of the Constitution of the United States. In doing so, however, the federal judiciary has in no way interfered with any of our prerogatives on questions of state law. Indeed, the federal judiciary has bent over backwards in granting to us full berth on questions of state law. See, for example, the federal judiciary’s response to our arguably dubious rewriting of an earlier death penalty statute in Jackson v. State, 337 So.2d 1242 (Miss.1976); see Jordan v. Watkins, 681 F.2d 1067, 1077-78 (5th Cir.1982); Bell v. Watkins, 692 F.2d 999, 1010 (5th Cir.1982); Irving v. Hargett, 518 F.Supp. 1127, 1133-34 (N.D.Miss.1981). It is .in this context that we are presented with an undisguised demand that this Court assume an adversary position.

We sit as the highest court of the State of Mississippi, the court of last resort on all questions of state law. By virtue of the Supremacy Clause, we are obligated faithfully to enforce, not to subvert, the Constitution of the United States as the supreme law of the land. Bolton v. City of Greenville, 253 Miss. 656, 666, 178 So.2d 667, 672 (1965); Sanders v. State, 429 So.2d 245, 248, 251 (Miss.1983). The best way to insulate our decisions from federal “tampering” is to get the cases right here. If this means reading the decisions of the Supreme Court of the United States and of the United States Court of Appeals for the Fifth Circuit as they are, rather than as we wish they were, so be it.

This State has an important interest in the enforcement of its capital murder statute, specifically including the death penalty portion thereof. That interest is not served by the Attorney General’s continued insistence that we blink at federal constitutional rights vested in those accused of capital crimes. Death penalty litigation is in a new era. It is still evolving. Because human life is at stake, this evolution is necessarily a tortuous process. As a major participant in that process, we would serve best the legitimate interests of this State and its people by washing our own linen, rather than pretending that it’s not dirty and then reacting with a fit of pique when the federal courts hold to the contrary.

We ought be no more offended that federal courts have the final say on questions of federal constitutional law than are the federal courts about the fact that we have the final say on questions of state law. See Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) and progeny. Indeed the federal judiciary’s deference to our interpretations of state law has been most ungrudging. See, e.g., Jordan v. Watkins, 681 F.2d 1067, 1077-1080 (5th Cir.1982); Walters v. Inexco Oil Company, 670 F.2d 476 (5th Cir.1982). It would seem to follow that we ought give a comparable respect to the competence of the federal judiciary in questions of federal law.

In every case that comes before this Court, and certainly in ones in which a man’s life is on the line, our duty is clear. We must decide the case on the law and the facts, fearlessly and without looking over our shoulders at some other court. Our solemn responsibility is to decide each case as though there were no other court. To the extent that we act out of interest in what some other court may do in the future, we demean ourselves. We are judges, not advocates.

That seven out of the first eight of our cases to be reviewed in the federal courts / resulted in the sentence of death being vacated ought to tell us that we have not been doing something right. Emphatically, this is not an occasion for our becoming advocates and devising procedural mechanisms for the blatantly obvious purpose of reducing the chances that death sentences affirmed here may be vacated by a federal court. Our obligation on our oaths is to decide carefully the merits óf each constitutional claim tendered by each person sentenced to die. Our eye must be affixed to justice, not slanted toward Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), and Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982).

VIII.

We have emphasized above that the state does have an interest in the finality of criminal proceedings. We here flesh out what that means.

Once a criminal conviction has been finally affirmed in this Court and the time for further direct review has expired, the state’s finality interest vests. It is by no means unreasonable or unfair that at this point an additional burden be placed upon the prisoner. Still we perceive no course of logic which would yield the conclusion that finality is the only interest then at stake. If it be shown that the prisoner’s conviction or sentence be infected by substantial violations of rights secured by the Constitution or laws of the United States or of this state; and if it further be shown either that had these violations not occurred, the proceedings at trial would have been substantially more favorable to the prisoner or, that there exists good cause why the points were not raised on appeal; then the force of the state’s finality interest is overcome.

A review of all of our cases makes clear that this Court has taken a flexible, and admittedly not altogether consistent, approach to post-conviction proceedings. On the one hand, there is much to be said for a continuation of this flexibility. On the other hand, we submit that the administration of justice will be enhanced by announcing general principles to be applied.

Whenever a prisoner, who has been finally convicted in the courts of the State of Mississippi and whose conviction has been finally affirmed by this Court, seeks post-conviction relief in this Court, and where such prisoner claims that his conviction and sentence have been infected by violations of rights secured to him by the Constitution of the United States or by the Constitution and laws of the State of Mississippi, and where the issues presented had not previously been tendered on direct appeal, the prisoner should be required to show either

(a) that there exists good cause why the point was not procedurally preserved at trial, or raised on direct appeal, or both, as the case may be,

or

(b) that the rights violations asserted did in fact subject him to a substantial detriment at trial; that is, had the rights violations not occurred, the trial process — as distinguished from its outcome — would likely have been more favorable to him than it was.

Beyond that, there is no sound reason why this Court should erect a procedural rule which would bar it from noticing, on direct appeal or on post-conviction proceedings, plain error. This Court’s first duty is to administer justice.

Wainwright v. Sykes and Engle v. Isaac were never intended to encourage and insulate- state court irresponsibility. Rather, they are a part of a fundamental shift in emphasis within our system, whereby greater responsibility for the adjudication of substantive constitutional rights is being assumed by the highest courts of the several states. Without doubt the most certain way to assure that the charter will be revoked is for the states to default in their responsibilities.

In my view, our decision on Evans’ petition should be as follows:

First, with respect to all claims asserted which were adjudicated on their merits on direct appeal, the petition should be dismissed. The previous adjudication is final. Res judicata precludes relitigation in the courts of this state.

Second, with respect to non-constitutional claims which either (a) were not properly preserved at trial or (b) were not presented on direct appeal, those claims have been effectively waived. In its supervisory capacity over its own judgments, this Court has the capacity to notice errors of this sort. Our plain error rule applies here equally as it does on direct appeal. Suffice it to say that in the case at bar I detect no alleged non-constitutional errors sufficiently plain to be noticed here.

Third, with respect to those claims asserted by Evans which are of constitutional dimensions, federal or state, and with respect to which the claim either was not timely preserved at trial and/or presented on direct appeal, we should hear Evans’ claims provided he can demonstrate either cause or prejudice. Again, the Court retains plain error powers even though neither cause nor prejudice be shown.

IX.

Today we hold that Connie Ray Evans must die. We hold this though Evans has presented to us sixteen reasons of constitutional proportions why his sentence is unlawful. The net effect of today’s decision is that no court may ever consider the merits of any of Evans’ points. He must die not because he has been convicted and sentenced consistent with the constitution, but because his lawyer made mistakes.

Today’s opinion, with deference to my colleagues, turns back the clock. Today we announce an abdication of our responsibilities to administer justice to persons within our jurisdiction. We turn our back on responsible federalism.

In Allred v. State, 187 So.2d 28 (Miss.1966) we posed the question:

What remedy then is open to a defendant in the state courts, who claims to have been convicted because the State obtained his conviction by violating his constitutional rights? 187 So.2d at 30.

Today’s answer is loud and unequivocal: NONE!

HAWKINS and PRATHER, JJ., join in this dissent.

      . Enmund was rendered July 2, 1982. Evans was sentenced to death October 15, 1981.

      . Let me emphasize at the outset that I unreservedly join those who would “streamline and clarify post-conviction relief law and procedures” in this state. Edwards v. Thigpen, 433 So.2d 906, 907 fn. 1 (Miss.1983). I prefer a single form of action for post-conviction relief which I would call simply a motion, analogous to the federal procedure under 28 U.S.C. § 2255. See also, Rule 81(e), Miss.R.Civ.P., which arguably abolishes ail remedial writs, substituting motions. I write here in the context of recent history wherein the writ of error coram nobis has been the only viable post-conviction form of action available after affirmance on direct appeal in this Court.

      . We are, of course, in no way bound by the view of our procedure taken by any federal court. I nevertheless regard as entirely correct the views expressed by the United States District Court for the Northern District of Mississippi in King v. Cook, 287 F.Supp. 269 (N.D.Miss.1968). King was an exhaustion of remedies case. A state prisoner was seeking federal habeas corpus relief. As a prerequisite to his federal action, he had to “exhaust” any state remedies “available” and “effective”. 287 F.Supp. at 272. [Emphasis added]. In this context U.S. District Judge Claude F. Clayton made these comments regarding Mississippi’s error coram nobis remedy.
      ... [A] writ of error coram nobis in Mississippi is of broad scope and range, particularly giving cognizance to violation of constitutional rights occurring in criminal trials. 287 F.Supp. at 271. [Emphasis added].
      Judge Clayton then considered the Georgia post-conviction remedy which had been recognized as “available” and “effective” by the United States Court of Appeals for the Fifth Circuit, and observed that the Court of Appeals,
      ... in holding that the state procedures might not be bypassed, applauded the “far reaching” act as an effective remedy for securing state court review of federal challenges to state convictions. It is the conclusion of this court that the statutory scheme enacted by Mississippi is not substantially different and no less effective than that provided by Georgia. 287 F.Supp. at 272.
      The District Court concluded with this language:
      Thus it is seen that Mississippi, in enacting § 1992.5, had a comprehensive procedure for the rehearing of criminal cases, wherein errors of a constitutional nature have occurred, as early as 1952, at which time Georgia still severely restricted the scope of its post-conviction remedies. The purpose of the Mississippi legislature in enacting § 1992.5 was to provide a meaningful and effective procedure for the protection of constitutional rights of those convicted of crime and the highest court of the state has interpreted the act in accordance with that purpose. Therefore, this court will stay its hand until petitioner has pursued those remedies provided to him by the State of Mississippi. 287 F.Supp. at 272. [Emphasis added].
      Judge Clayton’s eyesight in 1968 was twenty-twenty. Why the majority has found it desirable or appropriate to restrict that view has not been explained.

      . Presumably the writ may still be used to . present ineffective assistance of counsel claims. Read v. State, 430 So.2d 832, 836-842 (Miss.1982). It may also continue to serve its common law function as a form of action through which a prisoner may call to the court’s attention some matter of fact not appearing on the face of the record and unknown at the time of trial. Petition of Broom, 251 Miss. 25, 32-33, 168 So.2d 44, 48 (1964); Allred v. State, 187 So.2d 28, 30-31 (Miss.1966); Nelson v. Tullos, 323 So.2d 539, 543 (Miss.1968).

      . This case must be confined to its procedural context; trial on the merits ending in conviction and sentence, affirmance on direct appeal, followed by an application here for post-conviction relief via writ of error coram nobis. Of course, all post-conviction applications by death row inmates are likely to be made in this procedural context. I trust no one will suggest any implied modification or repeal of the habe-as corpus procedure provided in RULE 8.07 of Uniform Criminal Rules of Circuit Court Practice effective August 16, 1979. In such cases the prisoner applies to the circuit court. That procedure has supplanted and now encompasses all post-conviction actions wherein the original proceedings terminated at the trial court level and the prisoner’s initial application is made to a circuit court. By way of contrast, we are here concerned with cases where this Court last had jurisdiction and where heretofore the writ of error coram nobis initially sought here was the only viable remedy. See Rule 38, Miss.Sup.Ct. Rules.

      . Let me be clear that I wholly agree that res judicata does set in once an issue has been finally adjudged on its merits and affirmed on direct appeal. In such cases the defendant has had his day in court on any such issue. Of course, where a man’s life is on the line it would seem appropriate for the Court to recognize plain error. In the absence of plain error, however, there seems to me to be nothing objectionable in the application of res judicata to preclude relitigation via error coram nobis of constitutional claims adjudged on their merits on direct appeal.

      . Culminating with Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), the Supreme Court of the United States has been engaged in a constant and conscious effort to afford the states full opportunity to handle the merits of their prisoner’s post-conviction complaints. Today’s decision makes clear that you can lead a horse to water but you cannot make him drink.

      . For a survey of these “refinements” see my article Fleshing Out the Premises and Procedures for Capital Murder Trials, 8 Voir Dire 6 (1982).

      . This situation is analogous to that in the Fondren case discussed above. Fondren v. State, 199 So.2d 625 (Miss.1967). In Fondren, defense counsel at trial and on direct appeal no doubt was unfamiliar with the then evolving “systematic exclusion” issue.

      . I specially concurred in Edwards expressing briefly reservations comparable to those I express here at more length. Edwards v. Thigpen, supra, 433 So.2d at 909.

      . Technically speaking, res judicata is a form of procedural bar. It is one which does not seriously concern me because in such situations the prisoner has had a full dress adjudication of his constitutional claims on their merits (although I would allow “plain error” leeways even there). My target here is the waiver procedural bar which, if enforced, may mean that no court will ever consider the merits of the constitutional claim.

      . 434 So.2d at 215. The cases cited in Smith and their actual holdings are as follows. In Wetzel v. State, 225 Miss. 450, 76 So.2d 188 (1944), the Court eschewed the procedural bar to the coram nobis petition consequent to the circuit court’s refusal to grant the petition and instead held: “... the Court will consider this petition en banc in a regular term on its merits, as being addressed to the inherent constitutional powers of the court in its revisory capacity with reference to a case pending before it.”
      255 Miss, at 483, 76 So.2d at 198.

        Goldsby v. State, 226 Miss. 1, 86 So.2d 27 (1956) was one of the early cases involving the charge of systematic exclusion of black persons from jury service, a constitutional issue. The Court stated:
      It should have been raised in the lower court.
      226 Miss, at 27, 86 So.2d at 32.
      Despite the Court’s reference to untimeliness, the petition was examined on its merits and denied for lack of proof by affidavit, nor for procedural default. 226 Miss, at 28-29, 86 So.2d at 32.

        Rogers v. Jones, 240 Miss. 610, 128 So.2d 547 (1961), holds that the writ of habeas corpus in this state has a more restrictive purpose than that allowed in the federal courts. Petitioner Rogers was denied habeas corpus relief, with the Court stating that if he had a remedy it was the coram nobis remedy. By no stretch of the imagination can it be said that Rogers stands for the proposition that constitutional issues not presented at trial or on appeal are forever foreclosed from consideration on coram nobis.
      In Rogers the Court did make this statement:
      It has been said that the right to issue a writ of error coram nobis is founded on the inherent power of the court over its judgments and proceedings. See Hawie v. State, 121 Miss. 197, 83 So. 158.
      240 Miss, at 619, 128 So.2d at 551.
      In Kennard v. State, 246 Miss. 209, 148 So.2d 660 (1963), the relief was denied on grounds that:
      This is a re-argument of the case on the merits of that issue. It was fully discussed in our original decision affirming the conviction.
      246 Miss, at 211, 148 So.2d at 661.
      In other words, the rejection or coram nobis relief in Kennard was on res judicata grounds, not on grounds that the issue had not been timely preserved.
      In Gordon v. State, 160 So.2d 73 (Miss.1964), the Court found a waiver of the constitutional issue pertaining to the systematic exclusion of blacks from the jury. This waiver was essentially in the nature of finding that the failure to raise the issue in a timely manner was either a deliberate by-pass or an admission that the issue was frivolous. Gordon’s first trial had been reversed on precisely this juror-exclusion issue. 243 Miss. 750, 753, 140 So.2d 88, 89 (1962), cited in 160 So.2d at 74. Gordon made no showing “on the merits” of this claim. 160 So.2d at 76. Given “all of these circumstances,” the Court found a waiver of the constitutional issue. This sort of careful consideration of the “cause” (deliberate by-pass) and the “prejudice” (issue was frivolous) is an intelligent and reasonable manner for evaluating post-conviction claims by the state that issues ought be held procedurally barred.
      In Irving v. State, 194 So.2d 239 (Miss.1976), the application for a writ of coram nobis alleged matters which had been considered on direct appeal and were thus res judicata. The opinion of the Court makes no reference to constitutional issues and, accordingly, offers no support for any broad application of procedural bar.
      In Auman v. State, 285 So.2d 146 (Miss.1973), petitioner failed to comply with Rule 38, and such noncompliance could be sufficient grounds for dismissal. Nonetheless, the Court “considered petitioner’s application on its merits”, thus overlooking again a procedural nicety. 285 So.2d at 147.

        Bell v. Watkins, 381 So.2d 118 (Miss.1980), is an opinion on the merits. The Court “carefully and meticulously considered each allegation of the petitioner’s complaint,” some of these issues having been before the Court “no less than four times”. 381 So.2d at 119. Despite res judicata options, the Court chose instead to find issues “lacking in merit”. 381 So.2d at 119. That we are not the only ones to so read the Bell opinion is made evidence in Bell v. Wtakins, 692 F.2d 999, 1003-041 (5th Cir.1982).

        Callahan v. State, 426 So.2d 801 (Miss.1983) states a combination res judicata/deliberate by-pass rule. 426 So.2d at 803. First, the Court emphasizes that, “The writ of error cor-am nobis will not be allowed to relitigate questions of law or fact already decided by this Court [on direct appeal]. 426 So.2d at 803.
      Second, the Court emphasizes that points may not be raised on post-conviction proceedings which were deliberately held back at the time of direct appeal. 426 So.2d at 803. Suffice it to say that there is nothing whatsoever in the Callahan opinion that precludes initial consideration, via petition for writ of error cor-am nobis, of constitutional questions unless there has been a deliberate by-pass. See my dissenting opinion in Hill v. State, 432 So.2d 427, 450, 451 (Miss.1983).

      . Concurring in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), Justice Stewart wrote:

        The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevoca-bility. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity. 408 U.S. at 306, 92 S.Ct. at 3760, 33 L.Ed.2d at 388.
      This theme, the unique nature of the death penalty, has been repeated time and time again. See, e.g., Furman v. Georgia, supra, 408 U.S. at 287-289, 92 S.Ct. at 2751, 3752, 33 L.Ed.2d 376-378 (Brennan, J., concurring); Gregg v. Georgia, 428 U.S. 153, 187-188, 96 S.Ct. 2909, 2931, 49 L.Ed.2d 859 (1976); Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976); Gardner v. Florida, 430 U.S. 349, 357-358, 97 S.Ct. 1197, 1204-05, 51 L.Ed.2d 393, 402 (1977); Coker v. Georgia, 433 U.S. 584, 598, 97 S.Ct. 2861, 2869, 53 L.Ed.2d 982 (1977); Lockett v. Ohio, 438 U.S. 586, 604-605, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973, 989-990 (1978); Beck v. Alabama, 447 U.S. 625, 638, 100 S.Ct. 2382, 2390, 65 L.Ed.2d 392, 393, 403 (1980); and California v. Ramos, - U.S. -, -, 103 S.Ct. 3446, 3451, 77 L.Ed.2d 1171, 1179 (1983).

      .The courts of the United States, led by the Supreme Court of the United States, have created an anomalous, if not absurd, posture for federal post-conviction litigation. If a state court adjudicates the merits of a substantive federal constitutional claim, then federal courts have full power to “review” the federal claim. In such instances, the state prisoner gets two separate adjudications on the merits of his federal constitutional claim — one in the state courts, the other in the federal courts. On the other hand, if the state court rejects the federal constitutional claim by reason of some procedural default of the prisoner, it is clear, at least in non-capital cases, that the federal courts will regard the state procedural bar as an independent and adequate state ground and, accordingly, refuse to hear the merits of the prisoner’s substantive federal constitutional claim. See, e.g., Wainright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), and Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). If such a rule be applied in death penalty cases, then the defendant will be dispatched to the gas chamber without anyone ever having considered on the merits his federal constitutional claim.

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

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

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

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

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

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

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

      . See Washington v. Watkins, 655 F.2d 1346 (5th Cir.1981); Jordan v. Watkins, 681 F.2d 1067 (5th Cir.1982), clarified sub nom. Jordan v. Thigtien, 688 F.2d 395 (5th Cir.1982); Beil v. Watkips, 692 F.2d 999 (5th Cir.1982); Voyles v. Watkins, 489 F.Supp. 901 (N.D.Miss.1980); Irving v. Hargett, 518 F.Supp. 1127 (N.D.Miss.1981); Reddix v. Thigpen, 554 F.Supp. 1212 (S.D.Miss.1983); Jones v. Thigpen, 555 F.Supp. 870 (S.D.Miss.1983). The one case left undisturbed by federal post-conviction review was that of Jimmy Lee Gray. See Gray v. Lucas, 677 F.2d 1086 (5th Cir.1982)

      .I am very much aware of the implications of what I write here for this Court and the workload shouldered by its members and staff. Death penalty cases have created serious institutional problems for courts, state and federal, around the country. They consume more time and sap more of our energies and emotions than any other type of case. Seemingly they never end. And their number is mounting. See Caldwell v. State, 443 So.2d 806, - (1983); Tokman v. State, 435 So.2d 664, 673 (Miss.1983). Still when a man’s life is at stake our oaths demand that we regard no burden too back-breaking to bear.


source: Caselaw Access Project

license: Public Domain

text:
    Ken Lewis RANKIN v. STATE of Mississippi.
    No. 54485.
    Supreme Court of Mississippi.
    Dec. 7, 1983.
    David G. Hill, Hill & Lewis, Oxford, for appellant.
    Bill Allain, Atty. Gen., by Walter L. Turner, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Lee County; Neal Biggers, Judge.

Before WALKER, P.J., and BOWLING and PRATHER, JJ.

AFFIRMED.


text:
    Arlis Delaine McLEOD v. STATE of Mississippi and Lois Darlene McLeod.
    No. 54531.
    Supreme Court of Mississippi.
    Dec. 7, 1983.
    Jack Parsons, Parsons & Matthews, Wiggins, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellees.
   Appeal from Chancery Court, Greene County; Kenneth B. Robertson and Robert H. Oswald, Chancellors.

Before BROOM, P.J., and ROY NOBLE LEE and HAWKINS, JJ.

AFFIRMED.


text:
    Walter “Fuzzy” MILLER, Jr. v. STATE of Mississippi.
    No. 54626.
    Supreme Court of Mississippi.
    Dec. 7, 1983.
    Billy R. Gibson, Bay St. Louis, for appellant.
    Bill Allain, Atty. Gen. by Walter L. Turner, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, Grenada County; Clarence E. Morgan, Jr., Judge.

Before PATTERSON, C.J., and HAWKINS and ROBERTSON, JJ.

AFFIRMED.

WALKER and BROOM, P.JJ., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.


text:
    James Glenn BRANUM v. STATE of Mississippi.
    No. 54035.
    Supreme Court of Mississippi.
    Dec. 7, 1983.
    Robert D. Underwood, Boerner & Underwood, Brookhaven, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Lincoln County; Joe N. Pigott, Judge.

Before PATTERSON, C.J., and HAWKINS and ROBERTSON, JJ.

AFFIRMED.


author: ROBERTSON, Justice,

text:
    Kenneth Edward DICKERSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 54011.
    Supreme Court of Mississippi.
    Dec. 7, 1983.

      Jimmy D. McGuire, Gulfport, for appellant.
    Bill Allain, Atty. Gen. by Walter L. Turner, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
    Before PATTERSON, C.J., and HAWKINS and ROBERTSON, JJ.
   ROBERTSON, Justice,

for the Court:

I.

Drunken drivers destroy life, limb and property with callous indifference. Our citizenry is outraged. That outrage without doubt played a substantial role in Kenneth Edward Dickerson’s conviction of the manslaughter of Edward David Russell, a conviction which for the reasons explained below cannot stand.

In the early morning hours of November 21,1980, during the dark of night Dickerson was proceeding easterly on Pass Road, a four lane east-west thoroughfare connecting Biloxi and Gulfport. Though he was under the influence of intoxicating liquors, Dickerson was in a lawful lane of traffic. At most he was slightly exceeding the speed limit, when he suddenly came upon an unlighted unmarked vehicle blocking the road ahead of him. Dickerson applied his brakes immediately but skidded into the car and struck Edward David Russell who was standing nearby, killing him instantly.

It is true that Dickerson had been drinking earlier that evening — he had just gotten back into town after a long tour of duty offshore. It is not true, however, that Dickerson’s conduct and particularly his intoxication evidenced culpable negligence sufficient to uphold the jury’s verdict of guilty of manslaughter. Whatever sins Dickerson may have committed on the evening in question, manslaughter was not among them.

II.

On March 16, 1981, Dickerson was charged in an indictment returned by the Harrison County Grand Jury with the manslaughter of Edward David Russell. In due course he was put to trial, and on November 23, 1981, the jury found him guilty as charged.

At the conclusion of the State’s case Dickerson moved for a directed verdict of acquittal. The motion was denied. Then at the conclusion of all of the evidence, Dickerson requested a peremptory instruction in his favor. The instruction was also denied. Following the return of the jury’s verdict, Dickerson filed a timely motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. One of the bases of that motion was Dickerson’s assertion that as a matter of law the State had failed to prove him guilty of manslaughter. This motion was overruled and the instant appeal has ensued.

On this appeal, Dickerson has assigned three points. Two of those — alleged improper final argument by the State’s attorney and alleged improper admission of inflammatory photographs of the deceased— would, if credited here, result in a new trial. The third — that as a matter of law the State’s proof fails to establish that Dickerson was guilty of manslaughter — is disposi-tive. Because we find this assignment well taken, the others are rendered moot.

III.

Manslaughter has been made an offense against the peace and dignity of the state by several acts of the legislature. We are here concerned with only one of these, Miss. Code (1972) § 97-3-47, which provides as follows:

Every other killing of a human being by the act, procurement or culpable negligence of another, and without authority of law, not provided for in this title, shall be manslaughter.

This statute has been authoritatively construed in Smith v. State, 197 Miss. 802, 20 So.2d 701 (1945), a case involving alleged manslaughter with an automobile, to require that, before the defendant may be convicted, the state must prove that he

was guilty of such gross negligence on the occasion complained of as evince on his part a wanton or reckless disregard for the safety of human life, or such an indifference to the consequences of his act under the surrounding circumstances as to render his conduct tantamount to willfulness. 197 Miss, at 812, 20 So.2d at 703.

The Smith opinion goes on to make clear that:

The phrase ‘indifference to consequences’ when used in an instruction defining culpable negligence should clearly inform the jury that what is meant is an indifference under the circumstances involving danger to human life — the equivalent to criminal intent. 197 Miss, at 814, 20 So.2d at 704.

Finally, by way of contrast with other forms of negligence familiar in our law, Smith states:

In order then to give the term culpable negligence in the statute its proper setting instead of harking back to gross negligence, the term culpable negligence should be construed to mean a negligence of a higher degree than that which in civil cases is held to be gross negligence, and must be a negligence of a degree so gross as to be tantamount to a wanton disregard of, or utter indifference to, the safety of human life, and that this shall be so clearly evidenced as to place it beyond every reasonable doubt. 197 Miss, at 818-819, 20 So.2d at 706.

All of this refers to the defendant. It fleshes out what the state must prove about the defendant’s conduct to obtain a conviction. Of the victim, the deceased, the statute merely says that he or she must have been “a human being”, Miss.Code Ann. § 97-3-47, (1972), nothing more. We note this point because the papers before us are replete with suggestions that Edward David Russell was immediately prior to his death substantially intoxicated and that he was guilty of gross negligence for his own personal safety.

Contributory negligence is not a defense to manslaughter. All that the state must prove with respect to the victim is that he was prior to the incident a live human being. The homicide laws of this State protect all living beings within the jurisdiction, sinners as well as saints, drunks as well as deacons.

The State well proved that Edward David Russell was very much alive prior to 2:00 a.m. on November 21, 1980. Having proved that, the emphasis wholly shifts to Dickerson and the question of whether or not the State has proved that he was guilty of culpable negligence which proximately caused Russell’s death.

We emphasize our procedural context. We are confronted with a jury’s verdict that Dickerson has committed the criminal offense of manslaughter. Our general concern is whether there is in the record evidence sufficient to support the jury’s verdict. As we have said repeatedly, the jury is charged with the responsibility for weighing and considering conflicting evidence and the credibility of witnesses. See, e.g., Gathright v. State, 380 So.2d 1276, 1278 (Miss.1980). Once the jury has returned a verdict of guilty in a criminal case, we are not at liberty to direct that the defendant be discharged short of a conclusion on our part that on the evidence, taken in the light most favorable to the verdict, no reasonable, hypothetical juror could find beyond a reasonable doubt that the defendant was guilty. Pearson v. State, 428 So.2d 1361, 1364 (Miss.1983); Gandy v. State, 438 So.2d 279, 285 (Miss.1983).

This Court has affirmed manslaughter convictions arising out of automobile accidents where they were supported by substantial evidence. See, e.g., Gandy v. State, 373 So.2d 1042 (Miss.1979) (evidence was sufficient for jury to determine that defendant was intoxicated and in wrong lane of traffic at time of collision so as to establish culpable negligence); Cowan v. State, 399 So.2d 1346 (Miss.1981) (conviction for involuntary manslaughter upheld where defendant’s negligent driving caused three car collision resulting in death of a child); Goldman v. State, 406 So.2d 816 (Miss.1981) (the evidence showing that the defendant collided with the car of the deceased while passing across a solid yellow line supported the jury’s verdict holding him guilty of manslaughter); Alford v. State, 433 So.2d 940 (Miss.1983) (conviction for manslaughter resulting from an automobile collision affirmed when intoxicated defendant passed a vehicle and killed the woman in oncoming car); and Williams v. State, 434 So.2d 1340, 1343 (Miss.1983) (“accident could not have occurred without the highest degree of negligence”).

When considering eases of this sort, we must keep well in mind that the defendant is being prosecuted, not for driving while under the influence of intoxicating liquor, but for culpable negligence. Cutshall v. State, 191 Miss. 764, 772, 4 So.2d 289, 291 (1941).

Cutshall makes clear that:

For it [intoxication] to be a factor in a case involving culpable negligence it must create an abnormal mental and physical condition which tends to deprive one of the clearness of intellect and control of himself which he would otherwise possess.
In order for the influence of intoxicating liquors to be a factor in showing criminally culpable negligence it must contribute proximately both to the establishment of such negligence and to the resultant death. [Citations omitted], 191 Miss, at 772, 4 So.2d at 292.

Under the law of this state the driving of an automobile while under the influence of intoxicating liquors does not constitute a prima facie case of manslaughter. Cutshall v. State, 191 Miss. 764, 771, 4 So.2d 289, 291 (1941); Gandy v. State, 373 So.2d 1042, 1046 (Miss.1979).

There is credible evidence in this record from which a jury could rationally find that at the time on the occasion in question Dickerson was under the influence of intoxicating liquors in an amount exceeding that permitted by law. Straining the proof, we might even say that Dickerson was driving near 40 miles an hour in a 35 mile per hour speed zone, hardly a hanging offense, on a four lane road at 2:00 a.m. in the morning.

The facts which in our view are disposi-tive are these: The Dickerson automobile was in a proper lane of travel. There was no evidence that the automobile had been operating in an unsafe manner under the circumstances. The Russell automobile was parked in the middle of Dickerson’s lawful lane of traffic. It had no lights on. There was nothing about the Russell automobile to call attention to it other than the existence of the automobile itself.

Whether Dickerson saw the deceased pri- or to the accident we do not know. Wallace Austin who passed the scene only moments before saw the automobile but did not state that he saw Russell or anyone else around it. The witness Austin had no trouble with Russell or his automobile no doubt because Austin was traveling in a different direction. Russell’s parked automobile was not blocking Austin’s lane of travel.

Highly significant are the skid marks from Dickerson’s automobile. They indicate that Dickerson applied his brakes with force, at least 82 feet nine inches before the point of impact. Dickerson took reasonable evasive action once he saw the Russell vehicle. Such is hardly the stuff of which culpable negligence is made.

From the record there is no rational basis for anyone concluding that the result would have differed had Dickerson been completely sober as he approached Russell and his automobile. There is in this record simply no evidence that Dickerson’s intoxication contributed to any negligent driving or to Russell’s death. The most the State’s proof could be construed to show is momentary inattention, the equivalent of negligence in a civil action.

The contrast of this case with Hynum v. State, 222 Miss. 817, 77 So.2d 313 (1955); and Patrick v. State, 249 So.2d 667 (Miss.1971) drives home the point. In both Hy-num and Patrick, the defendants were intoxicated and were driving 75 miles per hour on the wrong side of the road when they struck their respective victims. In the case at bar, Dickerson’s conduct was qualitatively different, was qualitatively less than culpable, even when viewed in the light most favorable to the State.

IV.

We need to be clear about what today’s decision does not hold. We do not hold that Dickerson was not guilty of operating a motor vehicle under the influence of intoxicating liquors. Similarly, we do not hold that Dickerson was not guilty of negligence such as might impose upon him some liability in a civil action for damages. These questions are not involved in the present case. What — and all — we hold is that Dickerson was not guilty of such negligence as to evince a wanton and reckless disregard for the safety of human life, or such indifference to the consequences of his actions as to render his conduct tantamount to willfulness. See Smith v. State, 197 Miss. 802, 20 So.2d 701 (1945); Frazier v. State, 289 So.2d 690, 691 (Miss.1974). In a word, Dickerson was not guilty of manslaughter.

Even truer today than a decade ago when they were spoken are Chief Justice Gillespie’s reflections:

This Court is fully aware of the growing menace of the intoxicated driver, and we fully' concur in the growing tendency to condemn drunken drivers. However, these laudable sentiments should not find outlet in convicting an automobile driver who is involved in a fatal accident merely because liquor is injected into the case. Frazier v. State, 289 So.2d 690, 692 (Miss.1974).

A comparable sentiment was expressed by the Court in Cutshall v. State, supra, over forty years ago.

While the operation of automobiles by those under the influence of intoxicating liquor constitutes a growing menace and is deserving of universal censure and legislative condemnation, yet in a prosecution for manslaughter based upon the culpable negligence of the driver it is the fact that the driver is under the influence of liquor which is important and not the incident that it constitutes a misdemean- or. It is not the fact but the effect of the intoxication which is relevant. 191 Miss, at 772-773, 4 So.2d at 292.

Our decision today should be no means be construed as weakening the authoritative force of our prior cases, many of which are cited above, wherein we have upheld manslaughter convictions of defendants who at the time of their homicides were driving under the influence of intoxicating liquors.

Today’s decision merely reemphasizes that when a person is indicted for manslaughter he should be tried for manslaughter, not merely for being intoxicated. We have other laws in this state, providing both civil and criminal sanctions, which are more than adequate to deal with the intoxicated driver whose conduct falls short of the culpable negligence which is the moral equivalent of willfulness sufficient to establish manslaughter.

REVERSED AND RENDERED.

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


author: PRATHER, Justice, HAWKINS, Justice, WALKER, Presiding Justice, ROY NOBLE LEE, Justice,

text:
    Dineah Mae ROSS v. David MILLER.
    No. 53893.
    Supreme Court of Mississippi.
    Dec. 7, 1983.
    Richard E. Wilbourn and Wilbourn & Rogers, Meridian, for appellant.
    Thomas R. Jones and Bourdeaux & Jones, Meridian, Charles C. Pearce, Union, for ap-pellee.
    Before BROOM, DAN M. LEE and PRATHER, JJ.
   PRATHER, Justice,

for the Court:

Dineah Mae Ross sued David Miller for personal injuries sustained by her in a pedestrian-automobile accident, alleging that Miller negligently operated his vehicle. From a jury verdict for the defendant Miller in the Circuit Court of Newton County, the appellant appeals, alleging inter alia that the trial court erred by wrongfully instructing the jury as to the duties of a pedestrian. On that ground we agree with the plaintiff, and find reversible error.

The appellant assigns three errors:

(1) That the jury verdict was against the overwhelming weight of the evidence;

(2) That the refusal to admit hospital records under Mississippi statutory authority was error, and

(3) That the granting of an instruction for the defense on the duty a pedestrian crossing a roadway was error.

i.

The plaintiff, an elderly woman, was crossing a four lane street within the City of Meridian when struck by the defendant’s automobile. The evidence was disputed as to the time of night and weather conditions. The witnesses were contradictory as to whether plaintiff crossed this street at the corner of the block or within the block. It is undisputed that no crossmarks were marked for pedestrians for a distance of fourteen blocks from the scene. The defendant’s speed was twenty miles per hour. Cars were approaching from in front of his car and behind him, all with headlights on.

The plaintiff was crossing on foot a four lane street in Meridian, and had in fact crossed three of the four lanes before the defendant Miller saw her. At that point Miller testified he was thirty feet away from her and applied his car brakes on the wet pavement. Being unable to avoid hitting the plaintiff, the car struck Ross about two feet from the street’s edge with the right front fender of the Miller car. Plaintiff Ross testified that she thought she had sufficient time to cross the streets before the approaching vehicles would arrive.

II.

The appellant Ross offered into evidence her hospital records pertaining to her injury from this accident. The evidence was introduced by the local hospital’s medical records custodian. The defense objected on the ground of hearsay, and the trial court sustained the objection.

In Grenada Cotton Compress Co. v. Atkinson, 94 Miss. 93, 47 So. 644 (1908), this Court held business records admissible as an exception to the hearsay rule. See also King v. State ex rel. Murdock Acceptance Corp., 222 So.2d 393 (Miss.1969). In Grenada, supra, we held business records admissible even though some of the witnesses testifying did not make the entries, and “did not have personal knowledge of the matters about which their testimony was given, but relied upon the books for their evidence.” Id. 94 Miss, at 100, 47 So. at 646. In holding that the records should be admitted we approved the treatise which states:

The conclusion is, then, that where an entry is made by one person in the regular course of business, recording an oral or written report, made to him by one or more other persons in the regular course of business, of a transaction lying in the personal knowledge of the latter, there is no objection to receiving that entry under the present exception, provided the practical inconvenience of producing on the stand the numerous persons thus concerned would in the particular case outweigh the probable utility of doing so. [Wigmore on Evidence, § 1530].

Further, we have held that hospital records constitute business records. The basis for such conclusion rests on Mississippi statutory law and decisions.

Mississippi Code Annotated section 41-9-63 (1972) states:

All hospitals, their officers and employees and medical and nursing personnel practicing therein, shall with reasonable promptness prepare, make and maintain true and accurate hospital records complying with such methods and minimum standards as may be prescribed from time to time by rules and regulations adopted by the licensing agency.

We have interpreted the statute in the case of City of Bay St. Louis v. Johnston, 222 So.2d 841 (Miss.1969). This decision also cited with approval, 6 Wigmore, The Law of Evidence § 1707 (3rd Ed.1940).

The medical records of patients at a hospital, organized on the usual modern plan, deserve to be placed under the present principal. They should be admissible, either on identification of the original by the keeper, or on offer of a certified or sworn copy.

See also, Reynolds v. West, 237 Miss. 613, 115 So.2d 742 (1949). But see, Spears v. State, 241 So.2d 148 (Miss.1970), involving denial of right of confrontation of witnesses in a criminal case.

Therefore, the hospital records in this civil case should have been admitted under Mississippi authority, unless otherwise inadmissible.

Appellee asserts, however, that the refusal to admit the records were harmless because the jury found no liability on the part of the defendant.

We have evaluated the appellee’s argument that the excluded evidence related only to the existence and extent of damages. He contends, therefore, that the jury verdict for the defendant was a finding of no liability. The alleged error, appellee contends, is harmless and would not change the trial’s outcome.

The question here presented is whether the hospital records could have established appellee’s liability. The plaintiff claims prejudice for the exclusion of this evidence which was offered to establish liability as well as damage. However, in an examination of the proffered exhibit, we can find no merit to the assertion that these records established proof of liability. Other witnesses testified as to the fact of hospitalization, treatment, and duration of stay for the jury to consider.

We conclude, therefore, that the exclusion of the hospital records was not reversible error.

III.

The last assignment addresses an instruction granted. We find error regarding the court’s instruction on the law. Instruction D-12 is as follows:

The Court instructs the jury that a pedesterain [sic] crossing a street at any point other than within a marked crosswalk, or within an unmarked crosswalk at an intersection has the duty to yield the right-of-way to all vehicles operating on the road. If you find from a preponderance of the evidence in this case that the plaintiff, Dineah Mae Ross, was at the time of the accident complained of, walking across 8th Street at a place other than an intersection or marked crosswalk and that she failed to yield the right-of-way to the vehicle driven by the defendant, David Miller, as it travelled 8th Street and that such failure, if any, was the sole proximate cause of the accident complained of then it is your sworn duty to return a verdict for the defendant.

The appellant here testified she came “to the corner going to cross Eighth Street.” Appellee contends she crossed between the corners of the block. Admittedly, no crosswalks were marked on Eighth Street at the scene of the accident, the nearest ones being fourteen blocks away.

Appellant’s contention is that the instruction was error as it assumes a total absence of defendant’s negligence. Mrs. Ross’s contention was that Miller was at least contrib-utorily negligent in failing to keep a proper lookout.

The controlling statute, in pertinent parts, upon which this instruction is based is Mississippi Code Annotated section 63-3-1105 (1972), as follows:

(1) Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway.
(4) Notwithstanding the provisions of this section, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway.

The above instruction conforms to the first part of the statute, but fails to incorporate the last portion regarding the driver’s duty to pedestrians already within a roadway.

Another pertinent statute, Mississippi Code Annotated section 63-7-31 (1972), provides in part regarding vehicular equipment that headlamps must be aimed to reveal vehicles and persons at a distance of at least 350 feet ahead for the upper headlight and 100 feet for the lowermost light.

Yet Miller testified he did not see the plaintiff until he was thirty feet away from her. In Layton v. Cook, 248 Miss. 690, 160 So.2d 685 (1964), this Court stated that a driver is responsible for seeing what he should have seen. The Layton ease and Cole v. Todd, 355 So.2d 292 (Miss.1978) factually are distinguishable in that the pedestrian was off the roadway when struck. Both cases reassert the law that a driver of a vehicle was negligent in not maintaining a proper lookout for pedestrians when they are traveling alongside a highway where in the exercise of reasonable care the driver should have, but did not see the pedestrian and could have avoided the accident.

Two cases addressed by this Court involving a pedestrian being struck crossing a roadway are more applicable. In Robertson v. Welch, 242 Miss. 110,134 So.2d 491 (1961) a pedestrian was struck while crossing a national highway, but was never seen prior to being hit. The Court held that a driver had a duty to keep his car under control and be on the alert for pedestrians and other users of the highway. Citing Ulmer v. Pistole, 115 Miss. 485, 76 So. 522 (1917) and other cases. Further, a driver was to operate his vehicle at such speed as to avoid injury to persons coming within the range of his lights. Citing Jackson City Lines v. Harkins, 204 Miss. 707, 38 So.2d 102 (1948).

In Logan v. Thomas, 259 So.2d 480 (Miss.1972), a pedestrian, while crossing a city street, was hit without being seen prior to the accident. The Court formed the issue to be whether the driver should have seen the pedestrian and if so, could he have stopped her vehicle or taken other evasive action as a reasonable person to prevent the accident.

In the case sub judice, we hold the above instruction incomplete in that the driver’s duty to the pedestrian was not fully covered. Although an instruction was granted covering a motorist’s duty to keep a proper lookout, that additional instruction did not address persons coming within the range of the headlights, his duty to sound his horn, and to take such action as a reasonable man would to avoid the accident. The instruction as worded is virtually peremptory for the defendant.

We, therefore, reverse and remand for a new trial.

REVERSED AND REMANDED.

PATTERSON, C.J., and DAN M. LEE and ROBERTSON, JJ., concur.

HAWKINS and BOWLING, JJ., concur in part and dissent in part.

WALKER, P.J., ROY NOBLE LEE, J., and BROOM, P.J., dissent.

HAWKINS, Justice,

specially concurring in part and dissenting in part:

I concur in this case being reversed, but I would reverse and render on liability, and remand for determination of damages.

In my view the instruction of duty to yield the right of way has no application to the facts of this case. If Mrs. Ross had just stepped from the curb into the lane of traffic of an approaching vehicle, the statute, Miss.Code Ann. § 63-3-1105 (1972), might have some application. Just the reverse was true in this case. Mrs. Ross was within one or two steps of completely crossing a four-lane street when she was struck. How on earth could she “yield the right-of-way” to a car which was at some indeterminate distance up the street when she started across? Miller’s car may have been two blocks, three blocks or out of sight over the hill when she started across the street. Mississippi also has a statute requiring a vehicle entering a through highway to yield to an automobile on the highway approaching the intersection. Miss.Code Ann. § 63-3-805 (1972). We held, however, this statute has no application where the automobile coming on the through highway had already entered the intersection before it was entered by the automobile approaching on the through highway. Jones v. Carter, 192 Miss. 603, 7 So.2d 519 (1942).

The same principle of automobiles approaching an intersection, one of which is on a through highway, and the other coming out of a minor road, applies to a pedestrian crossing a street or highway. Had Miller’s car been so close as to constitute some hazard when Mrs. Ross started crossing the street, the statute might have some application. We do not know where Miller’s automobile was, however, when she started across the street, except obviously it was some distance up the street.

Also, in my view Miller was negligent as a matter of law in failing to see the plaintiff until his car was within thirty feet of her, and the plaintiff was entitled to a peremptory instruction on liability. See Robertson v. Welch, 242 Miss. 110,134 So.2d 491 (1961).

BOWLING, J., joins this opinion.

WALKER, Presiding Justice,

dissenting:

I respectfully dissent from the holding of the majority.

In Newell v. State, 308 So.2d 71 (Miss.1975), this Court said:

The trial judge shall not be put in error for his failure to instruct on any point of law unless specifically requested in writing to do so.

308 So.2d 78.

The pronouncement in this case that the court erred in granting defendant’s Instruction D-12 which instructed the jury as to the defendant’s theory of the case according to the law as provided in Mississippi Code Annotated section 63-3-1105(1) (Supp.1983) without incorporating within his instruction that part of the statute, i.e., subsection (4) which favors the plaintiff and his theory of the case. As I interpret the opinion, in the future a plaintiff must incorporate in his instructions the law, as justified by the evidence, which would be favorable to the defendant. The reverse, of course, would be true of the defendant’s instructions.

Such a rule will surely lead to chaos.

This approach is so novel that no authority is cited in support of it in the majority opinion and my research reveals no such practice in any jurisdiction.

The universal rule is that a plaintiff presents his theory of a case by his instructions and a defendant presents his theory by his instructions and neither can complain for failure of a jury to be instructed unless a party has requested a proper instruction which was refused. Under this procedure, a jury is instructed as to the whole of the law as the parties to the suit perceive it.

I have little doubt that the new procedure will be met with wholehearted disapproval by both the trial lawyers and defense lawyers.

BROOM, P.J., joins this dissent.

ROY NOBLE LEE, Justice,

dissenting:

I think that, when all the instructions, both for the appellant and appellee, are read together, the jury was properly instructed, could not have been confused, and the Instruction D-12 did not constitute reversible error. Therefore, I dissent from the majority opinion.

The declaration pleads Sections 23-29, 23 — 10 and 23-41 of the Code of Ordinances of the City of Meridian, Mississippi, which (1) makes it the duty of the operator of any vehicle to keep the vehicle under constant control and (2) the duty of the operator of any vehicle to keep a watch for other vehicles and pedestrians and to proceed with care and caution to avoid colliding with other vehicles and pedestrians.

In furtherance thereof, the declaration charged appellee with the duty to keep his vehicle under free and easy control; to obey the traffic laws and rules of the road; to keep and maintain a reasonable lookout for other traffic and pedestrians using the street; to refrain from operating his vehicle at a fast, reckless and dangerous speed under the conditions and circumstances then existing; and charged that the appellee violated those duties owed to the appellant.

The appellee answered the declaration with a general denial of the allegations of negligence and stated as an affirmative defense that the appellant was crossing Eighth Street in the City of Meridian, Mississippi, at a place that was not marked for crossing by pedestrians, but was located in the center of the block; that appellant had the duty to yield the right-of-way to vehicles traveling on Eighth Street, but breached said duty and did not yield the right-of-way to appellee’s vehicle as she negligently crossed Eighth Street in disregard for her own safety, failing to heed the flow of vehicular traffic at said time and place; and that such negligence of the appellant was the sole proximate cause of the accident.

The evidence is practically without contradiction. The weather was rainy and the night was dark; appellant was a black woman dressed in dark clothing; she was crossing Eighth Street in the middle of the block at a point where there was no marked crossing; she was looking, down at her feet and did not look up to observe approaching traffic until she was struck; the appellee, accompanied by his wife, was driving in the outside lane of four-lane Eighth Street at a speed of not more than 20 mph; traffic was flowing in both directions on Eighth Street; appellee did not see appellant until she crossed the broken line into his lane of traffic at which time he was only 30 feet from her; appellee applied his brakes, skidded on the wet pavement, and struck appellant with the right front of the automobile.

The question and answer as to appellee’s keeping a lookout follow:

Q. All right, sir. Do you know why you didn’t see her when she was out in the center of the street?
A. The only thing I could think of was because of the rain. My windshield wipers were going. She was wearing all dark clothing and she was probably literally invisible to me at that time.
* * ⅜: ⅜ :⅜ ⅞:
A. The only reason I couldn’t see her, as far as I could tell, because of the dark clothing, because of the rain; and that’s the only explanation I could give you.

The instruction upon which the majority reverses the judgment of the lower court follows:

INSTRUCTION NO. D-12
The Court instructs the jury that a pedestrian crossing a street at any point other than within a marked crosswalk, or within an unmarked crosswalk at an intersection has the duty to yield the right-of-way to all vehicles operating on the road. If you find from a preponderance of the evidence in this case that the plaintiff, Dineah Mae Ross, was at the time of the accident complained of, walking across 8th Street at a place other than an intersection or marked crosswalk and that she failed to yield the right-of-way to the vehicle driven by the defendant, David Miller, as it travelled 8th Street and that such failure, if any, was the sole proximate cause of the accident complained of then it is your sworn duty to return a verdict for the defendant.

The first part of the instruction follows word-for-word Mississippi Code Annotated § 63-3-1105(1) (Supp.1983) which states the following:

(1) Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway.

It is undisputed that the appellant violated that section of the statute and, if under the facts and circumstances failure to yield the right-of-way and walk into the path of an approaching vehicle was the sole proximate cause of the accident and her injuries, then she was not entitled to recover. The jury believed that theory presented by ap-pellee’s case and returned a verdict for ap-pellee.

Pertinent instructions for appellant appear in the Appendix.

Instruction P-2A told the jury that appellant had the right to use Eighth Street in order to cross the street so long as she used reasonable care in doing so, and that her right to walk upon the street was equal to the rights of persons operating motor vehicles upon the street.

Instruction P-3 is a wide open instruction and gave plaintiff the benefit of any kind of negligence, even negligence not charged in the declaration.

Instruction P-4 told the jury that it was the duty of the appellee to drive at a reasonable rate of speed under the circumstances then existing, to keep a reasonable lookout, to keep his vehicle under reasonable and easy control, and, if the appellee failed to perform or discharge any of those duties, it constituted negligence, and the jury should return a verdict for the appellant.

Parties to a lawsuit have the right to present their different theories of liability to the jury contained in instructions which they request from the court without being required to state the theory, case, or defense of the opposite party. In the present case, the appellant (plaintiff) presented her theory of liability to the jury without stating the appellee’s (defendant) case in those instructions. Likewise, the appellee was entitled to state his affirmative defense to the jury, viz, that a person attired in dark clothing on a dark rainy night was crossing the street in the middle of the block and not at a crosswalk, and under those conditions, was invisible to motorists using the street and that as a result thereof the accident’s sole proximate cause was the negligence of the appellant.

In my opinion, the facts of the case were put squarely to the jury, which heard the witnesses, observed their demeanor, and found that her negligence was the sole proximate cause of the accident. I would not reverse or disturb the verdict of the jury and, therefore, I respectfully dissent from the majority opinion.

WALKER and BROOM, P.JJ., join in this dissent.

APPENDIX

INSTRUCTION NO. P-2A

The Court instructs the jury that Dineah Mae Ross had the right to use 8th Street in the City of Meridian in order to cross the street, so long as she used reasonable care in so doing and if you believe she was exercising reasonable care when crossing said street, then her right to walk upon said street were [sic] equal to the rights of persons operating motor vehicles upon the street.

INSTRUCTION NO. P-3

The Court instructs the jury that the defendant, David Miller, was under a duty to operate his automobile in a reasonable and prudent manner and to exercise reasonable care for the safety of the plaintiff, as well as for the safety of others using the streets, and if you find from a preponderance of the evidence that the defendant, David Miller, failed in his duty, then you may charge him with negligence, and if you believe by a preponderance of the evidence that the defendant was negligent and that such negligence, if any, proximately caused or contributed to the injuries, sustained by the plaintiff, then it is your sworn duty to return a verdict for the plaintiff against the defendant, David Miller.

INSTRUCTION NO. P-4

The Court instructs the jury that it was the duty of the defendant, David Miller, in operating his vehicle to drive at a reasonable rate of speed under the circumstances then existing. It was also the duty of David Miller to keep a reasonable lookout in front of and to the sides of his moving vehicle, and it was his duty to keep his vehicle under reasonable and easy control with the ability to stop readily and easily and to anticipate and expect the presence of others using the street at the time. If you believe from a preponderance of the evidence that David Miller failed to perform and discharge any of these duties, then that would constitute negligence, and if you believe by a preponderance of the evidence that he was negligent and that such negligence proximately caused or contributed to the injuries, if any, sustained by the plaintiff, then it is your sworn duty to return a verdict for the plaintiff against the defendant, David Miller.