Part I, HAWKINS, Justice, for the Court:

GUILT PHASE

Bobby Glen Wilcher appeals from his conviction of the Capital Murder of Velma Odell Noblin and sentence of death. We affirm the guilt phase of the trial. We likewise affirm the sentencing phase.

The numerous issues raised on this appeal are discussed in order.

FACTS

Two Scott County ladies were brutally murdered on a dead-end rural road in a remote area of Scott County. They were requested by Wilcher to drive him to his parents home from a honky-tonk in Scott County and after he got into the car with them he persuaded them to drive to this area in the pretext of carrying him home.

On this appeal, the first point is:

CHANGE OF VENUE

The Defendant argues he was entitled to change of venue.

On May 11, 1982, a motion for a change of venue was filed, to which were attached nine (9) affidavits from residents of Scott County, each concluding with an opinion that the Defendant could not receive a fair trial in Scott County because of the notoriety, and that the murder victims were wellknown, respected, and had many kinsmen in the county.

At a hearing on the motion, the state presented eleven (11) witnesses supporting the contention of the state that there had been no prejudgment of Defendant to the extent that a fair and impartial jury could not be impaneled. The circuit judge overruled the motion, but also stated he would review the question again when the special venire was examined.

On July 26, 1982, the Defendant filed another motion for a change of venue, again overruled. The circuit judge noted the prospective jurors "by and large" had formed no opinion on the guilt or innocence of the Defendant.

This Court has held the matter of granting the change of venue is within the sound discretion of the circuit judge, and there is no justification to reverse a circuit judge on such a ruling unless it "clearly appears" such discretion has been abused. Tubbs v. State, 402 So.2d 830 (Miss. 1981); Myers v. State, 268 So.2d 353, p. 357 (1972); Gallego v. State, 222 Miss. 719, 77 So.2d 321 (1955); Shimniok v. State, 197 Miss. 179, 19 So.2d 760 (1944).

Upon the conflicting evidence of this case, we cannot state there was an abuse of discretion in overruling the motion.

AUTHORITY OF THE CIRCUIT COURT TO TRY THE CASE AT A SPECIAL TERM

The Defendant was indicted at the regular March term of 1982 of the Circuit Court of Scott County. Following his arraignment the circuit judge announced to the attorneys that he anticipated calling a special term in the event the motion for a change of venue was overruled.

On July 1, 1982, the circuit judge entered an order calling for a special term of Circuit Court to convene July 26, 1982.

Upon appeal, the Defendant claims he was entitled to a "continuance" of his case until the next regular term in October, 1982. His argument, however, is premised upon the authority of the Circuit Court to try his case at the special term. The Circuit Court clearly had statutory authority to try this case at a special term. Miss. Code Ann. § 9-1-1.

Defense counsel's citation of Gortney v. City of New Albany, 171 Miss. 896, 158 So. 921 (1935), is misplaced, where an entirely different question was presented to this Court.

In our modern day, with the added rules of criminal discovery, and complexity and difficulty of trial under present procedures, there will be many instances in rural counties when it will not only be desirable but indeed necessary for some cause to be tried at other times than a regular term of court.

AUTHORITY TO EXCUSE A JUROR OPPOSED TO THE DEATH PENALTY

One juror stated unequivocally he was opposed to the death penalty to the extent that it would prevent his making an impartial decision on the Defendant's guilt, that he would not even consider the court's instructions, and that under no circumstances would he vote for the death penalty.

The only authority the Defendant cites in support of his assignment the circuit judge erred in excusing this juror for cause is the United States Constitution, the Sixth and Fourteenth Amendments.

There is no merit in this assignment. See Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980); Witherspoon v. State, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); Armstrong v. State, 214 So.2d 589 (Miss. 1968).

ADMISSIBILITY OF CONFESSIONS AND TANGIBLE EVIDENCE BACKGROUND

Around 10:00 o'clock in the morning of Saturday, March 6, 1982, Bobby Easterling made an affidavit before Robert G. Wilkerson, a justice court judge of Scott County, charging that Bobby Wilcher did unlawfully "take and carry away 1 — .38 cal. Colt with Guard over the Hammer". Judge Wilkerson then issued a warrant for the arrest of Wilcher on a charge of "Larceny", and delivered it to Mike Bennett, a deputy sheriff of that county. Bennett had other official duties at the time, and took the warrant to the sheriff's office, notifying the personnel there that "if anybody saw him, to pick him up". No one else executed the warrant, and later in the day Bennett upon inquiry learned the location of the Gene Wilcher home, and went there and arrested Wilcher around 3:00 p.m. En route to the jail, Wilcher asked Bennett what "larceny was", and Bennett told him he did not know. When Wilcher was brought to jail, Bennett handed him a copy of the warrant.

Almost simultaneously to their arrival at the jail, two girls and a boy came into the sheriff's office and reported seeing two bodies. Bennett took Wilcher to a cell and went to the location of the bodies.

It so happened in the early morning hours of that March 6, Bobby Wilcher was stopped for speeding by a police officer. He was driving a car belonging to one of the victims. The officer observed two (2) women's purses on the front seat and a black bra on the back seat. Wilcher told the officer that he was hurrying to the hospital for treatment of a cut finger and requested that the officer escort him. Wilcher was covered with blood. The officer followed but radioed another policeman to meet him at the hospital. Upon arrival at the emergency room at 2:00 a.m., Wilcher gave the officers a blood-covered knife. This knife was kept by the hospital security guard until turned over to police the evening of March 6. Wilcher's nicked thumb was treated with a band-aid and he was released. After receiving this information implicating Wilcher, Glen L. Warren, sheriff of that county, and Otis Kelly, a deputy, took Wilcher from the jail to the sheriff's office shortly after 7:00 p.m. that Saturday evening. Wilcher was given the conventional Miranda warnings, which were read to him on a form and signed by him at 7:19 p.m. Wilcher declined to make any statement at the time.

Wilcher requested to see his parents, and the officers took him to the Gene Wilcher home. They stood in another room while Wilcher talked with his parents a short while, and then returned with Wilcher to the sheriff's office.

Wilcher was then presented with another Miranda warning which was read to him, and signed by him at 9:14 p.m. He then gave a statement which was written by Sheriff Warren and signed by Wilcher. This statement admitted killing both the victims with a knife.

The sheriff wanted to question him further shortly after 10:00 p.m. that evening. Another Miranda warning was given and Wilcher signed another standard form at 10:22 p.m., but declined to make any further statement.

Wilcher was nineteen years of age, married with one child, and separated from his wife. He moved from Louisiana into the home of his parents in the latter part of February, 1982, and had been living there about a week and a half before March 5. The residence was under the control of the father, Gene Wilcher. No rent was charged Wilcher by his father, and he was provided a bedroom occupied only by himself. There was no lock on the bedroom door, however, and other than the fact that only Wilcher slept in the bedroom, there was nothing about the room setting it separate and apart from the Gene Wilcher household.

Gene Wilcher telephoned the sheriff's office on Monday, March 8, for permission to talk with his son. Otis Kelly answered the telephone and while they were waiting for a response to this request, a conversation was had between Kelly and Gene Wilcher. In that conversation it developed that in the house there was some tangible property of importance to the law enforcement officers.

Upon the invitation of Gene Wilcher, Kelly and Albert Harkey, a constable of that county, went to the Gene Wilcher home. Gene Wilcher escorted them to the bedroom, pointed to a styrofoam container on the top of a chest-of-drawers, and said, "It's in here."

The officers took the container, and in it were a watch, two rings and a necklace belonging to the murdered victim Velma Odell Noblin.

After retrieving this jewelry, Warren and Kelly again attempted to talk with Wilcher that evening in the sheriff's office. At 8:54 p.m. Wilcher was again read the standard Miranda form, which he signed, but he declined to give any further statement to the officers.

On Thursday following, March 11, Warren and Kelly questioned Wilcher again, and again he was given a standard Miranda form beforehand. Upon this occasion, however, the sheriff did not read the form aloud to Wilcher, but Wilcher read it himself and signed it. Following this, he accompanied the officers, and at Wilcher's direction, they drove several miles out into rural Scott County onto a county unpaved road. At a certain point Wilcher pointed to a certain location in a ditch, and the sheriff got out and picked up two purses and a brassiere.

On their way back to the jail, Wilcher again requested permission to visit his mother, and the sheriff took him by the Gene Wilcher home where he had a short visit with his mother.

Upon their return to Forest, Wilcher gave a more detailed statement, written down by the sheriff and signed by Wilcher, in which he again admitted the savage murder of these two ladies in order to rob them.

According to Wilcher's confession after the ladies consented to drive him home from a night spot in that county, he had tricked them into driving down an isolated road, presumably in search of the location of his father's home. In a remote spot he stabbed them both to death.

COMPETENCY OF CONFESSIONS

Over defense counsel's objection, both statements, as well as the two purses and the brassiere, were introduced into evidence as part of the state's case in chief.

Upon this appeal the Defendant challenges the validity of the confessions, and the competency of the physical evidence, claiming his arrest was illegal, and that in obtaining the confessions the officers violated his Sixth Amendment right to counsel, and also that they were not free and voluntary, but resulted from coercion and promise of leniency.

The claim of illegal arrest arises from Miss. Code Ann. § 99-3-7, the pertinent part of which reads:

Any law enforcement officer may arrest any person on a misdemeanor charge without having a warrant in his possession when a warrant is in fact outstanding for that person's arrest and the officer has knowledge through official channels that the warrant is outstanding for that person's arrest. In all such cases, the officer making the arrest must inform such person at the time of the arrest the object and cause therefor. If the person arrested so requests, the warrant shall be shown to him as soon as practicable. [Emphasis added]

There was a sufficient compliance with the statute under the facts of this case when officer Bennett informed Wilcher he was being arrested for larceny, and gave him a copy of the warrant as soon as they reached the jail. See Boyd v. State, 406 So.2d 824 (Miss. 1981); and Torrence v. State, 283 So.2d 595 (Miss. 1973).

Wilcher does not contend there was no probable cause for his arrest on the charge of larceny, and the mere fact officer Bennett did not have all the information pertaining to the circumstances resulting in the issuance of the warrant at the time he apprehended Wilcher certainly does not vitiate the legality of his arrest. There is no statutory requirement for an arresting officer under the circumstances of this case to do more than Bennett did in effecting the arrest and subsequent thereto. In this day and age it would place an insuperable burden on arresting officers, when notified by responsible law enforcement agencies that a warrant is outstanding for a particular person, to require the arresting officer to also know the background and circumstances resulting in the warrant. There is no such constitutional or statutory requirement. This is not a case of a person being arrested on some vague suspicion, never told anything, and being held incommunicado for some period of time. Nor is this a case in which an officer either wilfully or through gross ineptitude failed to perform a duty of disclosing the reasons for the arrest.

Probable cause existing, and a lawful warrant having been issued, this Court is not going to adopt some strained view of whether an arresting officer has sufficiently disclosed the reason he is making the arrest when there has been absolutely no prejudice or harm done the accused, in any event.

Finally, the arrest in this case was for an offense totally unrelated to the murder charge, as yet unreported when the arrest was made.

To address the remaining contention of the invalidity of the evidence, it is necessary to set forth the various witnesses' versions of the circumstances prior to the officers' conduct.

The circuit judge conducted a hearing out of the presence of the jury on the validity of the confessions. Officers Warren and Kelly testified the statements were made after complete Miranda warnings were given, there was no threat of any kind made, and no promise of reward or leniency was offered.

Wilcher testified he repeatedly made demand for an attorney, beginning with the first day when he was arrested. This was positively denied by Warren and Kelly. Bennett said he had no recollection of anything being said on the way to the jail except being questioned by Wilcher as to what larceny was, and he did not recall being asked anything about an attorney. Bennett arrested Wilcher upon the warrant for larceny, and had nothing to do with questioning him on the murder charge.

Wilcher testified Kelly threatened him by making menacing gestures towards him, likewise specifically denied by Kelly and Warren.

Finally, Wilcher testified the sheriff told him if he would cooperate, he could see his family every Tuesday night. Officer Kelly did recall the sheriff telling Wilcher he could see his parents on Tuesday night if he would cooperate.

Even if this remark were given the full import as argued by defense counsel, it hardly amounts to any promise of leniency. It is extremely difficult for us to perceive how such a limited promise could cause Wilcher to confess to such grave crimes, and indeed he makes no contention that he gave the statements as a result of this statement by the sheriff. See: Harrison v. State, 285 So.2d 889 (Miss. 1973); Brister v. State, 211 Miss. 365, 51 So.2d 759 (1951).

The sheriff's testimony puts the remark in an entirely different perspective. Warren testified Gene Wilcher came to see him following his son's indictment and after all questioning had been concluded, requested that he be permitted to see his son in private. After this conversation with the father, Sheriff Warren testified that on either that day or the day following he talked with Wilcher:

Well, I asked Bobby — I told Bobby that I would — if he would cooperate with me in jail, while he was up there in jail, and behave himself, that I would let him see his mother and daddy during the week at night for two or three weeks, so they could have some time to talk to each other in private, because on Sunday afternoon during visiting hours, and at that time our visiting hours were only one hour, and it was a large crowd of people always in the jail, and there was no place that they could have any privacy at all in the jail.

The sheriff's version was not refuted by Gene Wilcher. It also negates the claim that the sheriff's offer to let Wilcher's parents see them privately on non-visiting nights had anything to do with an offer of leniency to secure a confession.

Following the hearing out of the presence of the jury, the trial court ruled the confessions and the tangible objects recovered in the ditch were admissible evidence. It is the function and duty of a trial judge to make a preliminary determination whether a confession was freely given by an accused, and this Court must respect his finding where the evidence is conflicting. See, Harrison v. State, 285 So.2d 889, p. 891 (1973). In this case the weight of the evidence strongly supports the ruling by the circuit judge that the confessions were voluntary and therefore competent evidence. The tangible objects recovered in the ditch as a result of Wilcher's confession were likewise admissible evidence.

ADMISSIBILITY OF JEWELRY

Over Wilcher's objection the jewelry consisting of a watch, two rings and a necklace belonging to Velma Odell Noblin were introduced into evidence by the state in its case in chief. Upon appeal it is contended this violated Wilcher's state and federal constitutional rights against unreasonable search and seizure.

It is undisputed that the officers went to the Gene Wilcher home at his express invitation. When they arrived, he promptly escorted them to the bedroom occupied by his son, and on his own, pointed to the container with the jewelry in it, and said, "It's in here."

Had Gene Wilcher been the defendant in this case, there could be no question about the legality of the officers' conduct.

The Defendant charges, however, Gene Wilcher did not have the authority to take the officers to the son's bedroom and point out the location of the jewelry, and that only the Defendant could give this permission. Scott v. State, 266 So.2d 567 (Miss. 1972), cited by the Defendant, and involving a search of a rented, locked room has no application here.

The bedroom was part of the Gene Wilcher household, and had been occupied but shortly over a week by the Defendant at the time. As between himself and his father, the Defendant had no independent right to occupy the bedroom. It was assigned to him by his parents when he returned from Louisiana. He occupied it under the gratuitious consent of his father, who could have required him to move to another room or vacate the home at any time.

This case is really no different to the father on his own volition delivering the jewelry to the law enforcement officers. But the father did not even want to so much as touch the jewelry. Instead, he directed the officers to it, and pointed it out. No constitutional rights of the defendant would have been violated if the father had personally delivered the jewelry to the sheriff.

The father also had a right to escort the officers to a room in his house, and the officers had a right to enter, and there have the father point to the jewelry in a container.

The validity of a search occasionally depends upon factual distinction seemingly as close as a razor's edge. Not this case. See: United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Bell v. State, 360 So.2d 697 (Miss. 1978); and Brown v. State, 358 So.2d 1004 (Miss. 1978).

ARREST FOR LARCENY

The Defendant complained prejudicial error was committed by the District Attorney asking on cross-examination if he was arrested for larceny on Saturday afternoon, March 6.

The contention of the Defendant throughout trial proceedings and in this Court had been he was mistreated by the law enforcement officers. Part of this alleged mistreatment was a failure to inform him of the reason for his arrest.

In his direct testimony before the jury, Wilcher was asked about the conversation he had with the arresting officers from the time of his arrest until he was incarcerated. His only reply was that he had asked for a lawyer several times, without success.

Wilcher omitted from his relation of the conversation between himself and Bennett that he inquired what he was being arrested for, and Bennett's reply.

On cross-examination the state was permitted over the Defendant's objection to ask him if Officer Bennett advised him what he was being arrested for. He replied that he asked Bennett what he was being arrested for, and Bennett stated, "Larceny."

This was proper cross-examination. Wilcher himself on direct examination had testified he was placed under arrest by Bennett. He had also testified as to the entire purported conversation between himself and Bennett, and the other officers when he first got to the jail.

It was proper for the state to fill in the omission for two reasons. First, having told the jury on direct examination of his arrest, the state was entitled to cross-examine, absent some compelling reason or instruction of the court otherwise, to inquire what he was arrested for. This becomes pertinent in this case, because the record reflects the murders were not reported to the law enforcement officers until subsequent to the arrest of Wilcher. See: Shelby v. State, 402 So.2d 338 (Miss. 1981).

JURY ISSUE ON KIDNAPPING

The indictment charged Wilcher with murder while engaged "in the commission of the crime of robbery or an attempt to commit the crime of robbery of the said Velma Odell Noblin, and while he, the said Bobby Glen Wilcher, was engaged then and there in the commission of the crime of kidnapping of Kattie Bell Moore and the said Velma Odell Noblin."

Wilcher's confession stated he intentionally gave the victims the wrong directions to his home so as to get them into a deserted place, with the intent to rob them after he got them there. They followed his directions; he killed and robbed them.

By Instructions S-1A and S-7, the circuit judge submitted the issue of kidnapping to the jury. Instruction S-7 followed Miss. Code Ann. § 97-3-53 (1974 Supp.), the criminal statute on kidnapping.

The Defendant does not claim Instruction S-7 fails to correctly state the law. Rather his complaint is that insufficient evidence was adduced to make a jury issue on the kidnapping charge.

The basis of this claim is that no force was used by Wilcher to get the women into the car and, as they believed they were doing, to drive him to his parents' home.

Manifestly, if they had been either physically forced to leave with him, or left at gunpoint, it would have been kidnapping.

While it is true neither of these ladies ever knew they were not free to do as they pleased until Wilcher's show of violence, the actual fact is that they were Wilcher's prisoners from the time the car left the night club.

Under modern day statutes, including our own, the crime of kidnapping may be accomplished by trickery and deceit as well as by force.

A jury issue was made on whether Wilcher by his trickery intended to cause these to be ladies to be secretly confined against their will. See: Miss. Code Ann. § 97-3-53; Hughes v. State, 401 So.2d 1100, p. 1105 (Miss. 1981).

As to the evidence to the crime of kidnapping other than the confession, the physical facts, place of slaying, together with the confessions, established the corpus delicti of the statutory crime of kidnapping. See: Poole v. State, 150 So.2d 429, 246 Miss. 442 (1963), cited in McCraw v. State, 260 So.2d 457 (Miss. 1972).

REFUSAL OF REQUESTED INSTRUCTION D-37

The Court refused requested defense Instruction D-37. Having granted the Defendant Instruction D-17, this point was adequately covered.

DISTRICT ATTORNEY REFERRING TO DEFENDANT AS A "BUTCHER"

During the guilt phase of the trial, in closing the District Attorney argued: "Was he denied his rights? How can you treat a butcher any better than that?" (Vol. VIII, P. 1432)

Objection to this remark was promptly sustained by the circuit judge, who then overruled the motion for a mistrial.

Circuit judges are vested with discretion to determine whether a mistrial should be granted for an unnecessary inflammatory statement made by the prosecution in closing argument. We do not find any abuse of discretion in overruling the motion for a mistrial under the facts of this case. There were over twenty (20) wounds on the body of the victim.

AFFIRMED AS TO GUILT PHASE.

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

DAN M. LEE and ROBERTSON, JJ., specially concur.

ROY NOBLE LEE, J., not participating.

ON SENTENCE PHASE PROPRIETY OF JURY INSTRUCTIONS A.

Error is assigned on the granting at the conclusion of the sentencing phase Instructions S-1, S-2 and S-5 to the state, and in refusing Instructions D-14, D-15 and D-16 requested by the Defendant.

Chapter 458, Laws 1977 Miss. Code Ann. § 97-3-21, in effect at the time of the commission of the crime and the trial, provides in pertinent part:

(2) After hearing all the evidence, the jury shall deliberate on the following matters:

(a) Whether sufficient aggravating circumstances exist as enumerated in the subsection (5) of this section;

(b) Whether sufficient mitigating circumstances exist as enumerated in subsection (6) of this section, which outweigh the aggravating circumstances found to exist; and

(c) Based on these considerations, whether the defendant should be sentenced to life imprisonment or death.

(3) For the jury to impose a sentence of death, it must unanimously find in writing the following:

(a) That sufficient aggravating circumstances exist as enumerated in subsection (5) of this section; and

(b) That there are insufficient mitigating circumstances, as enumerated in subsection (6), to outweigh the aggravating circumstances.

In each case in which the jury imposes the death sentence, the determination of the jury shall be supported by specific written findings of fact based upon the circumstances in subsections (5) and (6) of this section and upon the records of the trial and the sentencing proceedings. If the jury does not make the findings requiring the death sentence, the court shall impose a sentence of life imprisonment.

* * * * * *

(5) Aggravating circumstances shall be limited to the following:

* * * * * *

(d) The capital offense was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit . . . any robbery, . . . kidnapping, . . .

* * * * * *

(h) The capital offense was especially heinous, atrocious or cruel.

(6) Mitigating circumstances shall be the following:

(a) The defendant has no significant history of prior criminal activity.

(b) The offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.

(c) The victim was a participant in the defendant's conduct or consented to the act.

(d) The defendant was an accomplice in the capital offense commited by another person and his participation was relatively minor.

(e) The defendant acted under extreme duress or under the substantial domination of another person.

(f) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.

(g) The age of the defendant at the time of the crime.

Section 3. The statutory instructions as determined by the trial judge to be warranted by the evidence shall be given in the charge and in writing to the jury for its deliberation. The jury, if its verdict be a unanimous recommendation of death, shall designate in writing, signed by the foreman of the jury, the statutory aggravating circumstance or circumstances which it unanimously found beyond a reasonable doubt. Unless at least one (1) of the statutory aggravating circumstances enumerated in this act is so found or if it is found that any such aggravating circumstance is overcome by the finding of one or more mitigating circumstances, the death penalty shall not be imposed. If the jury cannot, within a reasonable time, agree as to punishment, the judge shall dismiss the jury and impose a sentence of imprisonment for life.

The Defendant's first complaint about Instruction S-1 and S-2 is that since the jury in the guilt phase of the trial had already determined beyond a reasonable doubt that he had murdered while committing the crimes of robbery and kidnapping, authorizing the same jury to again consider the same facts in the sentencing phase was placing him on trial twice for the same offense, and violated the double jeopardy proscription of the Fifth Amendment.

The defense cites no authorities in support of this contention. While it is true that the same jury had already determined beyond all reasonable doubt Wilcher was guilty of these aggravating circumstances in the guilt phase, and it might appear superfluous and a waste of time to require the jury to consider them again, the Legislature has prescribed this consideration in the sentencing phase as well, no doubt for humanitarian purposes.

Considering these aggravating circumstances again in the sentencing phase of the same trial did not constitute double jeopardy as contemplated in the Fifth Amendment of the U.S. Constitution. In Hill v. State, 432 So.2d 427 (Miss. 1983), at 441:

[17] During the sentencing phase of the trial the state requested, and was permitted by the trial court, to have the jury consider all previous testimony and evidence adduced on the guilt phase. The trial judge permitted this, and no error was committed in doing so. See In re Jordan, 390 So.2d 584, 585 (Miss. 1980); Irving v. State, supra [ 361 So.2d 1360], at 1367 n. 1 [(Miss. 1978)]; and Jackson v. State, 337 So.2d 1242, 1256 (Miss. 1976).

ON SENTENCE PHASE PROPRIETY OF JURY INSTRUCTIONS B.

Wilcher next complains that Instructions S-1, S-2 and S-5 shift the burden of proof in the sentencing phase to the Defendant.

On this contention it must be observed that Instructions S-1 and S-2 adhere to the wording of the Act itself. There was no statutory requirement that the jury must find beyond a reasonable doubt that the aggravating circumstance outweighed the mitigating circumstance. The Act required the jury to find first, however, beyond a reasonable doubt as to the existence of the aggravating circumstances. See: § 3, Chapter 458, Laws 1977.

Instructions D-15 and D-16 requested by the Defendant would have required the jury to find beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating circumstances.

Unfortunately for Wilcher, this argument has been rejected in Hill v. State, supra. Moreover, in this case the Defendant was granted Instruction D-12 which gave the jury the unfettered discretion to determine whether or not the Defendant would be sentenced to life imprisonment, regardless of the evidence.

Complaint is also made that it was error to submit to the jury as an aggravating circumstance that the offense was "especially heinous, atrocious or cruel." There was sufficient evidence for the jury to consider this circumstance. See: Edwards v. State, 441 So.2d 84 (Miss. 1983), citing Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir. 1978).

WAS DEFENDANT DENIED RIGHT TO PERSONALLY ARGUE HIS CASE?

At the conclusion of the guilt phase of the trial, while jury instructions were being considered, one of Wilcher's attorneys made the following statement and request:

BY THE COURT: . . . Do you have any motions, Mr. Brooks or Mr. Smith?

BY MR. BROOKS: I have one other once, Your Honor. It's very similar. The Defense anticipates that the Court will allow both the State and the Defendant a [sic] adequate time for argument; and, anticipating that, also anticipates that the Court will probably declare a recess sometime during the argument. Since the State has the first argument and the final argument, we would move the Court that, if a recess is declared, that it be declared between the two arguments that the Defendant is going to present. We will present — Mr. Smith will present our first argument; and then I'll present the final argument for us, anticipating that the State will then come back with a final argument. [Emphasis added]

[Record, Vol. VII, P. 1303]

Following this, the court asked how much time they desired for argument, the state said thirty (30) minutes to the side, and the defense requested an hour. The state had no objection to an hour, and the court granted it.

The record then discloses:

BY THE COURT: Then I will declare a recess between attorneys. Mrs. Amis here will be taking down the argument, and it's very difficult to take down that argument of the attorneys. So, I'll declare a recess after each attorney concludes his argument.

BY MR. BROOKS: After each? How long a recess now?

BY THE COURT: I don't know.

BY MR. BROOKS: In view of the Court's ruling I would make one additional motion.

Comes now the Defendant, being charged with capital murder which potentially carries the death penalty and moves for the right to make the final argument.

BY THE COURT: Motion over-ruled.

[Emphasis added]

[Record, Vol. VII, P. 1304]

On appeal defense counsel state the motion "for the right to make the final argument," was intended to be a motion by the accused that he be permitted to personally argue his case.

Obviously, the circuit judge did not so understand, because he promptly overruled it. Examining only what is set forth in the record, it appears counsel was speaking of the order or sequence of argument, not that the defendant be permitted to personally argue his case.

First the defense counsel tells the circuit judge he anticipates the court allowing the "state and the Defendant" adequate time for argument, and also (no doubt because of extended argument in such a case as this), the court would "probably declare a recess sometime during the argument." He goes on to state that since the state "has the first argument and the final argument, "if a recess is declared that it be between the `two arguments that the Defendant is going to present'." He then concludes: "We will present — Mr. Smith will present our first argument; and then I'll present the final argument for us, anticipating that the state will then come back with a final argument."

The upshot of this colloquy was the decision of the circuit judge to declare a recess after each attorney concluded his argument. Defense counsel, for reasons best known to themselves, were interested in the recess. One then asked the court how long would the recess be. The circuit judge replied he did not know. Where upon, counsel promptly made the motion that Defendant be given the right to make the final argument.

In at least three (3) instances in this brief colloquy defense counsel refers to final argument and the Defendant's argument in its ordinarily accepted context, in other words by "final argument" he meant the concluding or rebuttal argument of the state, and by "Defendant's" argument he was referring to defense counsel, not the Defendant himself.

The circuit judge no doubt made the same interpretation of this request by defense counsel precisely as we would read it, absent the contentions of counsel in their briefs.

Trial counsel as officers of the court owe some duty to the circuit judge. With this ambiguity, preponderating in favor of the interpretation the trial court gave it, we are not going to fault a circuit judge. Trial counsel wishing to preserve an error are under some duty to see the record is made clear on the point. It is unfair to the circuit judge and to this court to ask us to construe an ambiguity, caused by themselves, solely in the Defendant's favor. We are not required to declare error from an opaque record. See Edwards v. Thigpen, 433 So.2d 906 (Miss. 1983); Carrol v. State, 391 So.2d 1000 (Miss. 1980); and Stringer v. State, 279 So.2d 156 (Miss. 1973).

Part II, PRATHER, Justice, for the Court:

CLOSING ARGUMENT IN THE SENTENCE PHASE

Appellant assigns two errors from the closing argument portion of the sentence phase:

(1) The trial court erred in sustaining certain objections during oral argument; and

(2) In excusing the jury during oral argument of appellant's counsel.

(1)

The facts of the first portion of this assignment can best be understood with a recital of the pertinent portion of the argument, as follows:

BY MR. SMITH: (Defense Counsel)

Six years ago when I was a senior in law school, I had a class trip. They carried us over to Parchman. Catch a bus in front of the law school about 7:00 o'clock in the morning, drive through the Delta, and you go over and visit the camps. You go in the front gate. We go through the camps, and one of the places they carried us was the maximum security camp and death row.

Now, we weren't allowed to go in and see the inmates on death row for security reasons, however, we were allowed to go around and view the gas chamber. I want to tell y'all about the gas chamber. (Emphasis added).

BY MR. HUNTER: (District Attorney)

I am going to object to Mr. Smith's argument about the gas chambers, Your Honor. It's not an issue in this case, and it is not in evidence.

BY THE COURT:

Do you propose to argue to the jury the conditions of the chamber you viewed there in Parchman?

BY MR. SMITH:

I beg your pardon?

BY THE COURT:

Do you propose to argue to the jury the details of the gas chamber you viewed there on your Parchman?

BY MR. SMITH:

Some of the details, Your Honor.

BY THE COURT:

Objection sustained.

The first objection sustained by the court dealt with testimony of the conditions of the gas chamber at Parchman which the attorney had personally viewed as a student. The court properly sustained the state's objection to such description as not being supported in the evidence.

The appellant relies upon Gray v. State, 351 So.2d 1342 (Miss. 1977) as authority for the admission of facts judicially known to the court, but this reliance upon counsel's observations as a judicially known fact was misplaced. Counsel cannot state facts which are not in evidence, and which the court does not judicially know. Gray v. State, supra. A similar argument was advanced in Johnson v. State, 416 So.2d 383 (Miss. 1982). This Court in Johnson stated:

Defense counsel should not be unduly restrained in his closing argument at the punishment stage because this stage of the trial is for the purpose of determining whether a defendant will live or die. We reaffirm our previous holdings that counsel may draw upon literature, history, science, religion and philosophy for material for his argument; however, we refrain from deciding whether argument is limited to mere facts in evidence adduced at this stage of the trial.

The scope of appellant's argument in the case sub judice clearly exceeded the legitimate field of closing argument. . . . (416 So.2d at 392).

We hold that this attempted argument exceeded the legitimate field of closing argument. The sustaining of the objection was not reversible error.

The defense argument continues:

BY MR. SMITH:

The State of Mississippi has placed a terrible burden on you people. A terrible burden. Right now, I want each of you to look down at your hands. Right now. This very minute. Each of you. Look down at your hands. Hold your hands open and look down at them, just like this (indicating). The State of Mississippi wants to put blood on those hands.

BY MR. SMITH:

I object to that statement, Your Honor, and ask that the jury be instructed to disregard it.

BY THE COURT:

I will not sustain your objection at this time. I will let him continue.

Of course, you will have the right to renew your objection. You may proceed.

BY MR. SMITH:

One of the Scriptures that I am familiar with involves the death of Jesus Christ. After Pontius Pilate condemned Jesus to die, he went out and washed his hands of the matter. He washed his hands. How much good do you think that handwashing did? How much good do you think Pilate received from washing his hands? Soap and water didn't cleanse that. It was symbolic, but there was no cleansing.

There is no way that you can ever get over what the State of Mississippi is asking you to do to this man here today. No way. The State of Mississippi is asking you to take a human life.

BY MR. HUNTER:

Object to that statement and ask that the jury be instructed to disregard it.

BY THE COURT:

Over-ruled.

BY MR. SMITH:

They have a man who is hired to come and execute the sentence, if you will, of the jury. This man is paid by the State of Mississippi to execute the sentence, and yet, I still don't think this man has the blood on his hands of another man. The burden is right here, right now. It is placed squarely on the shoulders of you people here in front of me. One of you is going to have to sign the verdict. One of you is going to have to sign his name to this man's death certificate. I don't know which one it is. (Emphasis added)

BY MR. HUNTER:

I object to that and ask the jury to be instructed to disregard it.

BY THE COURT:

I am going to let this jury be escorted to the jury room.

WHEREUPON, THE JURY WAS RETURNED FROM THE COURTROOM, AND THE FOLLOWING PROCEEDINGS WERE HAD OUT OF THE PRESENCE OF THE JURY:

BY THE COURT:

I am aware of my responsibility in this case. My responsibility is to rule fairly upon the evidence, to instruct the jury on the law to the very best of my ability. It is a position that I do not enjoy in a case of this type, to be called upon to rule on matters of fact and matters of law, when the ultimate decision could result in death.

I am also very mindful of the fact that at this stage of the trial of this case, that this Defendant is presenting a matter to the jury that based upon their decision, he could suffer death.

Therefore, the attorneys who argue the case, for a person charged with a crime such as this, is given more leeway to make that argument in the interest of his client.

In the trial of this case, as well as all cases, the State is entitled to a fair trial, as well as the Defendant. Under our law, if the State should make an error, of if this Court should make an error in its ruling, then there is a new trial, but the law also is that a Defendant can say and do anything under the sun, and there is no such thing as reversible error. He can walk up here and slap the Judge, shoot the Sheriff, run out the door, and there is no reversible error. Walk up there and spit in the face of the jury, and there is no reversible error.

But, still and all, we have rules of law, and one rule of law is that you cannot abuse the jurors.

I am ever mindful also, of a case that was recently decided by the Mississippi Supreme Court from your county, Leake County, that I tried. All Judges of the Supreme Court affirmed that conviction, except there was one dissenting Judge, who felt that in the argument of this stage of the trial, the attorneys could say anything that they wanted to.

However, I do not believe that it is in a sense of fairness to the people, and even of this Defendant, to accuse — which the law requires. The law requires whoever returns the death penalty, for someone to sign that verdict. We didn't write the law. The Legislature wrote the law, and it is a requirement. Someone has got to sign it. Someone has got to be designated, not by this Court, but chosen from among themselves, to sign that.

I certainly don't think it is fair to tell them they are signing a death certificate.

Therefore, I sustain that objection, and I am informing you not to say it again. You say it again, and you will suffer the wrath of this Court. (Emphasis added).

Now, bring in the jury.

I want to say this, while we are out of the presence of these jurors. These jurors didn't volunteer to come here. They were commanded by a summons to be here and appear, and when they stood at that rail, they qualified themselves as being law abiding citizens, that they had never committed a crime.

Bring in the jury.

WHEREUPON, THE JURY WAS RETURNED TO THE JURY BOX, AND THE FOLLOWING PROCEEDINGS WERE HAD IN THE PRESENCE OF THE JURY:

BY THE COURT:

For the purpose of announcement to this jury, the last objection that was made was sustained.

The trial judge sustained an objection to the defense counsel's reference to a juror signing the death certificate of the defendant if a death sentence were returned. The court's ruling on the objection came after the jury was excused, and the judge explained that he viewed the argument as a violation of the rule of law that jurors could not be abused.

The statement that a juror would have to sign a death certificate, if taken literally, is inaccurate. That statement is not a fact. It is possible to construe the statement as a figure of speech. But since this Court is uncertain as to whether the statement was intended to be construed literally or figuratively, a juror may also have been in doubt. No error is seen here in this ruling.

(2)

The trial court excused the jury from the courtroom during the defense counsel's oral argument before ruling on the objection to the statement about the death certificate. This action is assigned as error but defense counsel did not contemporaneously object at trial. Additionally, appellant does not support his argument with any authority in his brief.

We hold that since no objection was made at trial to the judge contemporaneously with the occurrence, it is barred from consideration by the appellate court. A trial judge will not be put in error in appellate review by an occurrence not addressed to him as erroneous at trial. Ponder v. State, 335 So.2d 885 (Miss. 1976), Ratliff v. State, 313 So.2d 386, 388 (Miss. 1975), Pittman v. State, 297 So.2d 888 (Miss. 1974), Myers v. State, 268 So.2d 353 (Miss. 1972), Sanders v. State, 260 So.2d 466 (Miss. 1972).

However, notwithstanding the failure to object at trial, we find no error. During the course of a trial, a trial judge excuses a jury at any time the court considers the admissibility of evidence. The judge by such action may better understand an objection or an argument for admissibility. The jury is not excused during oral argument as a usual rule, but this court can see no error in such action when the propriety of oral argument is raised as here.

We have reviewed the record and compared the death sentence with all decisions of this Court beginning with Jackson v. State, 337 So.2d 1242 (Miss. 1976), involving the death penalty. We conclude the death penalty for Bobby Glen Wilcher is not disproportionate, wanton or freakish when compared to other capital cases, their facts, these facts and the defendant. We are of the opinion from the evidence and the comparison, that the death penalty imposed by the jury is not excessive in relation to the aggravating and mitigating circumstances presented to it. (See appendix "A" attached)

We find no reversible error in the sentence phase.

The judgment of the lower court is affirmed and Wednesday, April 11, 1984, is set as the date for execution of the sentence and infliction of the death penalty in the manner provided by law.

AFFIRMED AS TO SENTENCE PHASE:

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

DAN M. LEE and ROBERTSON, JJ., specially concur.

HAWKINS, J., dissents as to sentence.

RAY NOBLE LEE, J., takes no part.

APPENDIX "A"

DEATH CASES AFFIRMED BY THIS COURT:

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

Caldwell v. State, 443 So.2d 806 (Miss. 1983). Irving v. State, 441 So.2d 846 (Miss. 1983).

Tokman v. State, 435 So.2d 664 (Miss. 1983).

Leatherwood v. State, 435 So.2d 645 (Miss. 1983).

Hill v. State, 432 So.2d 427 (Miss. 1983).

Pruett v. State, 431 So.2d 1101 (Miss. 1983).

Gilliard v. State, 428 So.2d 576 (Miss. 1983).

Evans v. State, 422 So.2d 737 (Miss. 1982).

King v. State, 421 So.2d 1009 (Miss. 1982).

Wheat v. State, 420 So.2d 229 (Miss. 1982).

Smith v. State, 419 So.2d 563 (Miss. 1982).

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

Johnson v. State, 416 So.2d 383 (Miss. 1982).

Bullock v. State, 391 So.2d 601 (Miss. 1980).

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

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

Culberson v. State, 379 So.2d 499 (Miss. 1979).

Gray v. State, 375 So.2d 994 (Miss. 1979).

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

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

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

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

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

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

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

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

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

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

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

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