Edwards v. State

As to Count I

We, the Jury, unanimously find from the evidence, beyond a reasonable doubt, that the following facts existed at the time of the commission of the Capital Murder under Count I;

That the Defendant intended that the killing of Cordera Bradley take place or; That the Defendant contemplated that lethal force would be employed.

Next, we, the Jury, unanimously find that the aggravating circumstances of:

The capital offense was committed while the Defendant was engaged in the crime of Robbery or was an accomplice to Robbery;

The capital offense was committed for the purpose of avoiding arrest;

The capital offense was especially heinous, atrocious or cruel.

Are sufficient to impose the death penalty and that there are insufficient mitigating circumstances to outweigh the aggravating circumstances and we unanimously find the defendant should suffer death under Count I.

/s/ Billy R. Goodman

Foreman of the Jury

As to Count II

We, the Jury, unanimously find from the evidence, beyond a reasonable doubt that the following facts existed at thePage 285time of the commission of the Capital Murder under Count II;

That the Defendant intended that the killing of Tony Roberts take place or;

That the Defendant contemplated that lethal force would be employed.

Next, we, the Jury, unanimously find that the aggravating circumstances of:

The capital offense was committed while the Defendant was engaged in the crime of Robbery or was an accomplice to Robbery;

The capital offense was committed for the purpose of avoiding arrest;

The capital offense was especially heinous, atrocious or cruel.

Are sufficient to impose the death penalty and that there are insufficient mitigating circumstances to outweigh the aggravating circumstances and we unanimously find the Defendant should suffer death under Count II.

/s/ Billy R. Goodman

Foreman of the Jury

I. WHETHER THE TRIAL COURT COMMITTED REVERSIBLEERROR BY OVERRULING THE DEFENSE COUNSEL'SOBJECTIONS TO THE ADMISSION BY THE PROSECUTION ATTHE CAPITAL SENTENCING PHASE OF EVIDENCE THATEDWARDS PREVIOUSLY WAS ARRESTED AND INCARCERATEDFOR, BUT NOT CONVICTED OF, RAPE?

II. WHETHER THE TRIAL COURT COMMITTED REVERSIBLEERROR BY OVERRULING DEFENSE COUNSEL'S OBJECTIONSTO THE PROSECUTION'S ARGUMENTS THAT A LIFESENTENCE WOULD BE AN "INJUSTICE" TO THE VICTIMSAND THEIR FAMILIES AND FRIENDS; AND BY PERMITTINGTHE INTRODUCTION OF OTHER "VICTIM IMPACT"ARGUMENTS AND EVIDENCE?

III. WHETHER THE TRIAL COURT'S JURY INSTRUCTIONSAT BOTH PHASES OF THE TRIAL WERE ERRONEOUS BECAUSETHEY DID NOT CONFORM TO THE INDICTMENTS OR TO THERELEVANT STATUTORY PROVISIONS ENACTED BY THELEGISLATURE?

IV. WHETHER THE TRIAL COURT ERRED IN DENYINGEDWARDS' MOTION TO SUPPRESS?

V. WHETHER THE TRIAL COURT COMMITTED NUMEROUSREVERSIBLE ERRORS IN ITS EVIDENTIARY RULINGS ATTHE SENTENCING PHASE OF THE TRIAL?

A. THE TRIAL COURT ERRED IN EXCLUDING TESTIMONYCONCERNING EDWARDS' TWO BROTHERS AND THEIR LIVES.

B. THE TRIAL COURT ERRED IN ADMITTING JEANNEANNEHARRISON'S TESTIMONY CONCERNING THE DEFINITION ANDSYMPTOMS OF OPPOSITIONAL DEFIANT DISORDER.

VI. WHETHER THE PROSECUTOR IN THIS CASE ENGAGEDIN MISCONDUCT THAT REQUIRES REVERSAL?

A. STATE'S DESCRIPTION OF EDWARDS AS "EVIL" DURINGOPENING STATEMENT WAS ERROR.

B. THE STATE IMPROPERLY BOLSTERED ITS CASE BYINTRODUCING EVIDENCE OUTSIDE OF THE RECORD.

C. STATE'S VERBAL ATTACK ON DEFENSE COUNSEL DURINGCLOSING ARGUMENTS WAS ERROR.

D. THE STATE MISSTATED THE LAW.

VII. WHETHER THE TRIAL COURT COMMITTED NUMEROUSREVERSIBLE ERRORS IN ITS EVIDENTIARY RULINGS ATTHE GUILT-INNOCENCE PHASE OF THE TRIAL?

A. INVESTIGATOR KUFEL'S TESTIMONY CONCERNINGWHETHER HE BELIEVED EDWARDS' CONFESSION WASTRUTHFUL WAS ERROR.

B. TRIAL COURT ERRED IN ALLOWING CHARLIE McCREETO TESTIFY THAT HIS TESTIMONY AT JORDAN'S TRIALWAS CONSISTENT WITH HIS TESTIMONY AT EDWARDS'TRIAL.

C. THE TRIAL COURT ERRED IN EXCLUDING THETESTIMONY OF SHERIFF CROSS REGARDING WHETHERJORDAN WAS GOING TO PLEAD GUILTY TO ARSON AT ONETIME.

D. THE TRIAL COURT ERRED IN EXCLUDING THETESTIMONY OF MARK HOLLOWAY AND DETECTIVE KUFEL.

E. THE TRIAL COURT COMMITTED REVERSIBLE ERROR INALLOWING DETECTIVE KUFEL TO TESTIFY THAT JORDANTOLD THE POLICE THAT EDWARDS SHOT THE VICTIMS.

F. THE TRIAL COURT ERRED IN PERMITTING THE STATETO QUESTION SHERIFF CROSS IN REBUTTAL ABOUTHOLLOWAY'S STATEMENT TO THE POLICE.

G. THE TRIAL COURT ERRED IN ADMITTING PHOTOGRAPHSOF THE VICTIMS BEFORE THEIR DEATHS.

H. THE TRIAL COURT ERRED IN ADMITTING PHOTOGRAPHSINTO EVIDENCE WHICH SERVED ONLY TO PREJUDICE ANDINFLAME THE JURY.

I. THE TRIAL COURT ERRED IN ADMITTING PHOTOGRAPHSINTO EVIDENCE WHICH SERVED ONLY TO PREJUDICE ANDINFLAME THE JURY.

VIII. WHETHER THE TRIAL COURT COMMITTED REVERSIBLEERROR BY ERRONEOUSLY INSTRUCTING THE JURY DURINGTHE PROCEEDINGS?

A. ARMED ROBBERY INSTRUCTION

B. CAPITAL MURDER INSTRUCTION

C. SENTENCING INSTRUCTIONS

IX. WHETHER THE TRIAL COURT ERRED IN PERMITTINGDEFENSE COUNSEL TO WAIVEPage 287EDWARDS' RIGHT TO BE PRESENT AT THE SUPPRESSIONHEARING?

X. WHETHER MISSISSIPPI'S CAPITAL PUNISHMENT SCHEMEIS UNCONSTITUTIONAL AS APPLIED TO THIS CASE ANDON ITS FACE?

XI. WHETHER EDWARDS WAS DENIED A FAIR TRIAL BEFOREAN IMPARTIAL JURY; AND WHETHER THE TRIAL COURTERRED IN DENYING EDWARDS' REQUEST FOR INDIVIDUAL,SEQUESTERED VOIR DIRE?

XII. WHETHER THE TRIAL COURT COMMITTED REVERSIBLEERROR BY ALLOWING THE PROSECUTION TO OBTAINPLEDGES FROM THE PROSPECTIVE JURORS TO CONVICTEDWARDS AND SENTENCE HIM TO DEATH AND BYPRECLUDING THE DEFENSE FROM ASKING PERMISSIBLEQUESTIONS DURING VOIR DIRE?

XIII. WHETHER THE TRIAL COURT ERRED IN FAILING TOGRANT EDWARDS' CHALLENGES FOR CAUSE?

XIV. WHETHER THE TRIAL COURT ERRED IN REFUSINGEDWARDS' PROPOSED LESSER-INCLUDED OFFENSEINSTRUCTION ON THE CODERA BRADLEY MURDER?

XV. WHETHER THE TRIAL COURT ERRED IN ALLOWING THESTATE TO REFER TO, AND PRESENT EVIDENCE OF,ALLEGED ADMISSIONS BY EDWARDS PRIOR TO PROVINGCORPUS DELICTI?

XVI. WHETHER THE TRIAL COURT ERRED IN GIVINGPROSECUTION'S SENTENCING INSTRUCTIONS CS-1, CS-2,CS-3, AND CS-4?

A. SENTENCING INSTRUCTIONS CS-2 AND CS-3.

B. SENTENCING INSTRUCTION CS-1

C. SENTENCING INSTRUCTION CS-4

XVII. WHETHER THE TRIAL COURT ERRED IN REFUSINGEDWARDS' PROPOSED SENTENCING INSTRUCTIONS?

A. INSTRUCTION D-S7

B. INSTRUCTION D-S1

C. INSTRUCTION D-S10

D. INSTRUCTION D-S3

E. INSTRUCTION D-S4

F. INSTRUCTION D-S2

XVIII. WHETHER THE TRIAL COURT ERRED IN FINDINGTHAT THE PROSECUTION STATED RACE-NEUTRAL REASONSFOR USING PEREMPTORY CHALLENGES ON HALF OF THEAFRICAN-AMERICANS IN THE JURY VENIRE?

XIX. WHETHER THE TRIAL COURT ERRED IN DISMISSINGPROSPECTIVE JURORS ON THE GROUNDS THAT THEY WEREILLITERATE?

XX. WHETHER THIS COURT MUST REMAND FOR A NEWCAPITAL SENTENCING PROCEEDING BECAUSE THERE IS ATLEAST ONE INVALID AGGRAVATING CIRCUMSTANCE IN THECASE SUB JUDICE; MOREOVER, WHETHER CAPITALPUNISHMENT IS A DISPROPORTIONATE PENALTY UNDERTHE FACTS OF THIS CASE?

XXI. WHETHER THE ERRORS TAKEN TOGETHER ARECAUSE FOR REVERSAL?

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show thatPage 290he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Jury Instruction C-7

The Court instructs the Jury that should you find from the evidence in this case, beyond a reasonable doubt:

1. On or about the 5th day of October, 1995, in Clarke County, Mississippi;

2. The Defendant, Fontrell Edwards, along or with Kelvin Jordan, did, with or without a design to effect death, kill Codera Bradley, a human being,

3. While engaged in the crime of robbery;

then it is your sworn duty to find the Defendant guilty of Capital Murder under Count I.

Should the State fail to prove any one or more of these essential elements beyond a reasonable doubt, then you shall findPage 292the Defendant not guilty of Capital Murder under Count I.

Jury Instruction C-8

The Court instructs the Jury that should you find from the evidence in this case, beyond a reasonable doubt:

1. On or about the 5th day of October, 1995, in Clarke County, Mississippi;

2. The Defendant, Fontrell Edwards, along or with Kelvin Jordan, did, with or without a design to effect death, kill Tony Roberts, a human being,

3. While engaged in the crime of robbery;

then it is your sworn duty to find the Defendant guilty of Capital Murder under Count II.

Should the State fail to prove any one or more of these essential elements beyond a reasonable doubt, then you shall find the Defendant not guilty of Capital Murder under Count II.

Instruction C-11

The Court instructs the Jury that in order for the Defendant to be convicted of Capital Murder, you must find beyond a reasonable doubt that the killing was done during the commission of a robbery. Robbery is the taking of the personal property of another by force or threat of force from the person or presence of the victim(s).

Frontrell Edwards . . . did . . . on or about the 5th of October, A.D., 1995, did wilfully, unlawfully and feloniously take or attempt to one (1) 1992 Nissan, take the personal property of tony Roberts, from the person or presence of Tony Roberts, against his will by violence to his person by the use of a deadly weapon, a pistol, by putting the said Tony Roberts in fear of immediate injury to his person in violation of Mississippi Code Annotated Section97-3-79(1972). . . .

The Court instructs the Jury that should you find from the evidence in this case, beyond a reasonable doubt that:

1. On or about the 5th day of October, 1995, in Clarke County, Mississippi;

2. The Defendant, Fontrell Edwards, did, along with Kelvin Jordan, take or attempt to take the property of Tony Roberts from Tony Roberts' person or presence, against his will;

3. By violence or the threat of violence through the exhibition of a firearm;

then it is your sworn duty to find the Defendant guilty of Robbery by Use of a Firearm under Count III.

Frontrell Edwards and Kevin Jordan in said County and State on or about the 5th day of October, A.D., 1995, did wilfully, unlawfully, feloniously and knowingly kill Codera D. Bradley [and Tony Roberts], a human being, by shooting him to death with a pistol, without authority of law, while engaged in the crime of armed robbery under M.C.A. §97-3-79in violation of Section97-3-19(2)(e) Mississippi Code Annotated as amended (1972). . . .

(2) The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases:

(e) When done with or without any design to effect death, by any person engaged in the commission of the crime of rape, burglary, kidnaping, arson, robbery, sexual battery, unnatural intercourse with any child under the age of twelve

(12), or nonconsensual unnatural intercourse with mankind, or in any attempt to commit such felonies;

"It is axiomatic that a jury's verdict may not stand upon uncontradicted fact alone. The fact must be found via jury instructions correctly identifying the elements of the offense under the proper standards."Turner v. State,573 So.2d 1340, 1343 (Miss. 1990). "Where the jury had incorrect or incomplete instructions regarding the law, our review task is high unto impossible and reversal is generally required."Neal v. State,451 So.2d 743, 757 n. 9 (Miss. 1984).

JURY INSTRUCTION CS-2

You have found the Defendant guilty of the crime of Capital Murder on Count I. You must now decide whether the Defendant will be sentenced to death or life imprisonment without parole or early release. Your first task shall be to choose a foreperson for the Jury. You shall select from the Jury one among you to be the Foreperson. The Foreperson shall be your spokesman before the Court and shall sign the verdict of the Jury. In reaching your decision, you may objectively consider the detailed circumstances of the offense for which the Defendant was convicted, and the character and record of the Defendant himself. You should consider and weigh any aggravating and mitigating circumstances, as set forth later in this instruction, but you are cautioned not to be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling.

A. To return the death penalty in Count I you must first unanimously find from the evidence, beyond a reasonable doubt, that one or more of the following facts existed:

(1) That the Defendant actually killed Cordera Bradley or;

(2) That the Defendant attempted to kill Cordera Bradley or;

(3) That the Defendant intended that the killing of Cordera Bradley, take place or;

(4) That the Defendant contemplated that lethal force would be employed.

C. Next, to return the death penalty under Count I, you must find that the mitigating circumstances — those which tend to warrant the less severe penalty of life imprisonment — do not outweigh the aggravating circumstances — those which tend to warrant the death penalty.

Consider only the following element(s) in aggravation in determining whether the death penalty should be imposed in Count I:

(1) Whether the capital offense was committed while the Defendant was engaged in the crime of Robbery or was an accomplice to Robbery.

(2) Whether the capital offense was committed for the purpose of avoiding arrest.

(3) Whether the capital offense was especially heinous atrocious or cruel.

You must unanimously find, beyond a reasonable doubt, that one or more of the preceding aggravating circumstances exist in this case to return the death penalty. If none of these aggravating circumstances are found to exist, the death penalty may not be imposed, and you shall write the following verdict on a separate clean sheet of paper:

AS TO COUNT I

"We, the Jury, find the Defendant should be sentenced to life imprisonment without the possibility of parole or early release under Count I."

If one or more of the above aggravating circumstances is found to exist, then you must consider whether there are mitigatingPage 295circumstances which outweigh the aggravating circumstances. Consider the following elements of mitigation in determining whether the death penalty should not be imposed in Count I:

(1) If the offense was committed while the Defendant was under the influence of extreme mental or emotional disturbance.

(2) If the Defendant had no significant history of prior criminal activity.

(3) If the Defendant was an accomplice in the capital offense and his participation was relatively minor.

(4) If the Defendant acted under extreme duress or under the substantial domination of another.

(5) If the Defendant's ability to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired.

(6) The Defendant's age at the time of the crime.

(7) any other matter, any other aspect of the Defendant's character or record, any other circumstance of the offense brought to you during the trial of this cause which you, the Jury, deem to mitigate on behalf of the Defendant.

If you find from the evidence that one or more of the preceding elements of mitigation exist, then you must consider whether it (or they) outweigh or overcome the aggravating circumstances you previously found. In the event that you find that mitigating circumstances do not outweigh or overcome the aggravating circumstances, you may impose the death sentence in Count I.

The verdict you return must be written on a separate sheet of paper signed by the foreman. All aggravating circumstances that you have unanimously found beyond a reasonable doubt must be listed in order to return a death sentence in this Count. However, you may choose to return the death penalty in one (1) Count and not the other. Your verdict should be written in one of the following forms:

AS TO COUNT I

1. "We, the Jury, unanimously find from the evidence, beyond a reasonable doubt, that the following facts existed at the time of the commission of the Capital Murder under Count I. . .

Next, we, the Jury, unanimously find that the aggravating circumstances of . . . is/are sufficient to impose the death penalty and that there are insufficient mitigating circumstances to outweigh the aggravating circumstances and we unanimously find the Defendant should suffer death under Count I.". . .

2. "We, the Jury, find the Defendant should be sentenced to life imprisonment without the possibility of parole or early release under Count I.". . .

3. "We, the Jury, are unable to unanimously agree on punishment under Count I."

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Arguments, statements and remarks of counsel are intended to help you understand the evidence and apply the law, but are not evidence. If any argument, statement or remark has no basis in the evidence, then you should disregard that argument, statement or remark.

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

But, instead, ladies and gentlemen, he made an argument that, quite honestly, I don't have sympathy as I thought I would for him, because I can't believe that anybody could get up here with a straight face and argue to you the things that he has just argued. . . .

Quite honestly, ladies and gentlemen, it boggles my mind as to how anybody could argue such a ridiculous proposition, other than the fact I realize they have a job to do and they have to come up with something. But it is still mind boggling how anybody can stand here with a straight face in front of you and say we haven't proven that. . . .

Now, that does tee me off, ladies and gentlemen, for the defense lawyer, the man who is representing the man who made those maggots infest that man's head, that man over there is defending the dignity of Tony Roberts by telling you that the photographs that show the bullet holes in his head don't show something important in this case?. . .

As set forth inCraft v. State,226 Miss. 426,84 So.2d 531(1956), the test to determine if an improper argument by a prosecutor requires reversal is whether the natural and probable effect of the prosecuting attorney's improper argument created unjust prejudice against the accused resulting in a decision influenced by prejudice.

In the absence of some underlying basis to demonstrate that the opinions were more than bare assertions that the defendant and his witnesses were persons not to be believed, the opinion evidence should not have been admitted.

. . . . .

We do not hold that government agents may never testify as to the truthfulness of a defendant or defense witnesses. Nor do we hold that a government agent's opinion of a witness's character may never be based exclusively on what the agent learned on an official investigation. But the fact that one has conducted an investigation of the defendant, has known the defendant, or has had minimal contact with defendant's witnesses is not a sufficiently reliable basis under Rules 608(a) and 701 for that witness, over objection, to put before the jury the opinion that they are liars.

As sole judges of the facts in this case, your exclusive province is to determine what weight and what credibility will be assigned the testimony and supporting evidence of each witness in this case. You are required and expected to use your good common sense and sound honest judgment in considering and weighting the testimony of each witness who has testified in this case.

Q. In that taped statement, did Mark Holloway tell you what type of weapon was used by anybody?

A. I don't recall.

The Court instructs the Jury that an accomplice is a person who joins the principal actor, with a common intent to commit the crime in question. An accomplice is guilty to the same extent as the principal actor. If more than one person join together to commit robbery and as a result of such robbery, one of the victims is killed during the commission of the robbery, then each person involved in the robbery is criminally responsible for that death.

Every defendant at this stage of the trial proceedings is presumed to be innocent. And this presumption carries through the trial until convicted by a jury.

The way an indictment is obtained is the State, that's the district attorney's office, presents only its side of the case to the grand jury. And after having heard the State's case, if the grand jury makes a finding that there is probable cause that a felony has been committed and there's probable cause that the defendant committed the crime, then they return what we call an indictment. . . .

The constitutional challenge asserted here does not offend the Eighth Amendment of the United States Constitution, and this conclusion has been long ago held by the United States Court of Appeals for the Fifth Circuit inGray v. Lucas,677 F.2d 1086(5th Cir. 1982), reh'g denied,685 F.2d 139(5th Cir. 1982), cert. denied,461 U.S. 910, 103 S.Ct. 1886, 76 L.Ed.2d 815, reh'g denied,462 U.S. 1124, 103 S.Ct. 3099, 77 L.Ed.2d 1357 (1983).

The basis of Gray's claim under both equal protection and due process is that there is no rational basis for imposing the death penalty on people who commit murder during the course of a felony but not imposing it on people who commit especially atrocious simple murder. However, Mississippi could have rationally decided that felony murders pose a problem different from atrocious simple murders and could have sought to cure the felony murder problem first. Alternatively, the legislature could have decided that the death penalty would be more effective in deterring felony murders since an experienced felon is more likely to assess the consequences of his acts. Conversely, it could have rationally determined that the death penalty might not effectively deter atrocious simple murders since such people are likely as a group to act on passion or impulse and thus be unmindful of the consequences of their crime. In short, the legislature could have rationally decided that the one class of murders either presented a different problem from the other or that the death penalty would be more effective deterrent [sic] to felony murders than atrocious simple murders.

Gray, 677 F.2d at 1104.

In the voir dire examination of jurors, the attorney will question the entire venire only on matters not inquired into by the court. Individual jurors may be examined only when proper to inquire as to answers given or for other good cause allowed by the court. No hypothetical questions requiring any juror to pledge a particular verdict will be asked.

[Y]ou can't argue the instructions, because there is a specific procedure that the jury will follow step by step. It's very clear, and I don't think it's proper for you to off the cuff try to tell them what the law is at this point.

This Court has explained that a prerequisite to presentation of a claim of a denial of constitutional rights due to denial of a challenge for cause is a showing that the defendant had exhausted all of his peremptory challenges and that the incompetent juror was forced by the trial court's erroneous ruling to sit on the jury.Chisolm v. State,529 So.2d 635, 639 (Miss. 1988). Mettetal cannot make such a showing in the case at bar because he did in fact strike No. 58 peremptorily. The venireman in question did not in fact sit on the jury.

The court instructs the jury that if you find that the State of Mississippi has failed to prove any one or more of the essential elements of capital murder involving Cordera Bradley beyond a reasonable doubt, then it is your duty to find the defendant not guilty of capital murder of Cordera Bradley. If you find the defendant not guilty of the capital murder of Cordera Bradley, you may continue your deliberations to determine whether or not the defendant is guilty of murder.

If you find from the evidence a reasonable doubt that:

1. On or about the 5th day of October, 1995 in Clarke County, Mississippi;

2. The defendant, Frontrail Edwards, did, along with Kelvin Jordan, kill Cordera Bradley, a human being, without authority of law by any means or in any manner;

3. By deliberate design to effect the death of Cordera Bradley;

then it is your sworn duty to find the defendant guilty of murder under Count I.

Should the State of Mississippi fail to prove any one or more of the essential elements of murder beyond a reasonable doubt then you shall find the defendant not guilty of murder under Count I.

Although in dicta we indicated that we could impose a procedural bar, we did not intend to overrule existing caselaw and therefore require litigants to object to the denial of instructions that they themselves have offered. Prior precedent of this Court makes it clear that an issue involving the denial of a requested jury instruction:

. . . is procedurally preserved by the mere tendering of the instructions, suggesting that they are correct and asking the Court to submit them to the jury. This in and of itself affords counsel opposite fair notice of the party's position and the Court an opportunity to pass upon the matter. When the instructions are refused, there is no reason why we should thereafter require an objection to the refusal unless we are to place a value upon redundancy and nonsense.Carmichael v. Agur Realty Co., Inc.,574 So.2d 603, 613 (Miss. 1990)

[a] lesser-included offense instruction should be granted unless the trial judge and ultimately this Court can say, taking the evidence in the light most favorable to the accused and considering all the reasonable inferences which may be drawn in favor of the accused from the evidence, that no reasonable jury could find the defendant guilty of a lesser-included offense (conversely, not guiltyPage 311of at least one essential element of the principal charge).

(7) Any other matter, any other aspect of the Defendant's character or record, any other circumstance of the offense brought to you during the trial on this cause which you, the Jury, deem to mitigate on behalf of the Defendant.

Next, to return the death penalty . . ., you must find that the mitigating circumstances — those which tend to warrant the less severe penalty of life imprisonment — do not outweigh the aggravating circumstances — those which tend to warrant the death penalty.

The majority rule of this Court is that the jurors are required to find the existence of each aggravating circumstance beyond a reasonable doubt, but the jury is not required to find that the aggravating circumstances beyond a reasonable doubt outweigh the mitigating circumstances following the statute.

In reaching your decision, you may objectively consider the detailed circumstances of the offense for which the Defendant was convicted, and the character and record of the Defendant himself. You should consider and weigh any aggravating and mitigating circumstances, as set forth later in this instruction, but you are not to be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling. (T. 120, 123).

The Court instructs the jury that it must be emphasized that the procedure you must follow is not a mere counting process or a certain number of aggravating circumstances versus the number of mitigating circumstances, rather, you must apply your reason to judgment as to whether this situation calls for life imprisonment or whether it requires the imposition of death in light of the totality of the circumstances present.

INSTRUCTION NO. CS-4

The Court instructs the jury that in considering whether the capital offense was especially heinous, atrocious or cruel; heinous means extremely wicked or shockingly evil; atrocious means outrageously wicked and vile; and cruel means designed to inflict a high degree of pain with indifference to, or even enjoyment of the suffering of others.

An especially heinous, atrocious or cruel capital offense is one accompanied by such additional acts as to set the crime apart from the norm of capital murders — the conscienceless or pitiless crime which is unnecessarily torturous to the victim. If you find from the evidence beyond a reasonable doubt that the defendant utilized a method of killing which caused serious mutilation, that there was dismemberment of the body prior to death, that the defendant inflicted physical or mental pain before death, that there was mental torture and aggravation before death, or that a lingering or torturous death was suffered by the victim, then you may find this aggravating circumstance.

The court instructs the jury that if Frontrail Edwards is sentenced to life imprisonment without the possibility of parole or early release that he will spend the rest of his natural life incarcerated by the Mississippi Department of Corrections.

The court instructs the jury that if you sentence Frontrail Edwards to death, he will [be] executed by lethal injection by the State of Mississippi.

The court instructs the jury that a mitigating circumstance does not have to be proved beyond a reasonable doubt to exist. You may find that a mitigating circumstance exists if there is any evidence to support it. Any juror who finds that a mitigating circumstance exists, even if that finding is not unanimous among all jurors, must individually weigh all the mitigating circumstances he or she has found against any aggravating circumstance which a unanimous jury has found to have been proven to exist beyond a reasonable doubt.

The court instructs the jury that if you do not agree upon punishment the court will sentence the defendant to life imprisonment without possibility of parole or early release.

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

(2) We, the Jury, find that the Defendant should be sentenced to life imprisonment without the possibility of parole or early release.

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

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

Frontrail Edwards enters this trial with the presumption that there are no aggravating circumstances that would warrant a sentence of death, and the presumption that the appropriate punishment in his case would be life imprisonment without parole or the possibility of early release. These presumptions remain with Frontrail Edwards throughout the sentencing hearing and can only be overcome if the prosecution unanimously convinces each of you beyond a reasonable doubt that you should sentence Frontrail Edwards to death. . . .

The fact that Frontrail Edwards has been convicted of capital murder is not in itself an aggravating circumstance and may not be considered by you when deciding to impose a sentence. The fact of conviction of capital murder does not, in and of itself, justify imposition of the death penalty.

You are instructed that you need not find any mitigating circumstances in order to return a sentence of life imprisonment without the possibility of parole or early release. Moreover, even if you find that the mitigating circumstances do not outweigh one or more aggravating circumstances, you can impose a life sentence without the possibility of parole or early release.

With the infinite variety of cases now in our courts and the multitude of written documents entered into evidence, the requirement that a juror be able to read and write is a reasonable and nondiscriminatory regulation which operates equally against all persons tried by juries. No advantage is afforded to the State which is not also afforded to the defendant. This requirement is just as essential to the State's obligation to afford the accused a fair trial as it is to assure a fair trial for the State.State v. Comeaux,252 La. 481,211 So.2d 620(1968). We are acquainted with no authority to the contrary.

The capital offense was committed while the Defendant was engaged in the crime of Robbery or was an accomplice to the Robbery;

The capital offense was committed for the purpose of avoiding arrest;

The capital offense was especially heinous, atrocious or cruel.