LAMAR, Justice, for the Court:
¶ 1. Kristi Fulgham was convicted of capital murder
¶ 2. Kristi and Joey Fulgham married in 1991 and lived in the Starkville area. They had two children, Tyler and Darian Fulgham. Both children lived with them, along with Hayley, Fulgham's daughter by another man.
¶ 3. Approximately a year and a half prior to Joey's death, Fulgham and her children moved out of the marital home and began living with Fulgham's boyfriend, Kyle Harvey. However, by May 2003, Fulgham had moved back in with Joey, and the two were working on their marriage.
¶ 4. Shannon Fulgham, Joey's brother, testified that he had worked with Joey at a car dealership, and they were paid every Friday around lunch time. Shannon stated that on May 9, 2003, Joey had cashed his paycheck for approximately $1,020 and had placed the money in his wallet. He further testified that he and Joey had planned to attend an air show on Saturday, May 10, 2003, but that Joey did not answer Shannon's phone calls when he called around 11:00 a.m. or 11:30 a.m. Shannon also testified that he had stopped by Joey and Kristi Fulgham's home around 12:00 p.m. or 12:30 p.m. and that Joey had not answered the door. When Shannon did not hear from his brother by Sunday afternoon, he cut the screen on Joey's living room window and entered the home at
¶ 5. Kyle Harvey met Kristi Fulgham in 2002, and she and her three children began living with him in Jackson in March 2002. Kyle testified that Fulgham later moved back into her home with Joey. Kyle stated that Fulgham had planned to live with Joey until she found a new home, and that she would come to Jackson to look at homes for sale in the area. Kyle testified that Fulgham had told him that she was going to inherit $300,000 from her grandmother.
¶ 6. Kyle stated that he and Fulgham had planned a trip to the Mississippi Gulf Coast for Mother's Day weekend, May 9-11, 2003. Fulgham had told Kyle that she would pay for the trip, even though she was unemployed at the time. Kyle stated that Fulgham had picked up her brother, Tyler Edmonds, on Friday night, and she had called Kyle at 6:30 a.m. on Saturday morning (May 10) and informed him that she was on her way to Jackson. Fulgham, her three children, and Tyler Edmonds were waiting at Kyle's apartment when he arrived home from work on Saturday morning at approximately 10:30 or 11:00 a.m. Kyle stated that they had proceeded to the Coast, and that Fulgham had a large amount of cash on her person. Kyle also testified that Fulgham had paid in cash for souvenirs, food, and their hotel room at the Beau Rivage Hotel. They spent Saturday night on the Coast and returned to Jackson at approximately 5 p.m. on Sunday.
¶ 7. David Noel, Joey's stepfather, testified that Tyler and Darian Fulgham routinely had spent Friday nights with him. David testified that he had picked up Tyler and Darian between 4 p.m. and 4:30 p.m. on Friday, May 9, 2003. David stated that Fulgham, her three children, and Tyler Edmonds were home at the time. Fulgham informed him that she would pick up Tyler and Darian early the next morning because she was taking the children to the Coast. David testified that Fulgham called him between 4:30 a.m. and 5:00 a.m. Saturday morning and arrived after 5 a.m. to pick up the boys.
¶ 8. Robert Elmore, chief investigator for the Oktibbeha County Sheriff's Department, received a call to process the homicide scene at the Fulgham home. He found Joey lying face down with a gunshot wound to the head. Robert searched the home for evidence but did not find any shell casings or Joey's wallet. He also stated that the carpet in the living room was faintly outlined in the shape of a CPU.
¶ 9. Robert testified that the house had security lights around the perimeter but that four light bulbs had been unscrewed, which prevented them from automatically turning on. Jason Pressley, who in 2003 worked for the Mississippi Crime Laboratory, conducted a latent-print examination on the light bulbs and found Kristi Fulgham's print on one of them. Pressley testified that he would not expect to find a well-developed print on a light bulb that had been on for an extended period of time, evidencing that the light bulbs had been recently unscrewed.
¶ 10. Dr. Steven Hayne testified that he had performed an autopsy on Joey. He stated that an entrance gunshot wound was located at the back of Joey's head, and that he had extracted a small-caliber lead bullet consistent with a .22 caliber projectile. Dr. Hayne stated that Joey had died from the gunshot wound. He also testified that Joey's death had occurred approximately thirty-six to forty-eight hours prior to discovery of the body.
¶ 11. Randy Simpson, Tyler Edmonds's first cousin, testified that he had gone to Tyler Edmonds's house almost daily. He
¶ 12. Danny Edmonds, Kristi Fulgham's biological father, testified that she had asked him for a gun about a week or two prior to Joey's death. He stated that Fulgham had told him that she "wanted Joey dead. That he [Joey] was mean to her and her kids." Danny also stated that Fulgham had told him, "I want him dead, and that he has a life insurance policy, and. . . the kids would get $300,000, and I would get $200,000." He testified that Fulgham had offered to buy him a Cadillac if he "would keep his mouth shut."
¶ 13. Scotty Carrithers testified that he had met Joey in the National Guard and that in 2003, he had handled life-insurance records for the National Guard unit in Ackerman. Scotty stated that Joey had two life insurance policies. The first policy was worth $55,000, and Kristi Fulgham was the named beneficiary. The second policy was worth $255,000, and Kristi Fulgham was initially the named beneficiary, but Joey had changed the beneficiary from Kristi to his mother. Scotty stated that about a month prior to Joey's death, Fulgham had called him inquiring about the amount of Joey's life insurance. Scotty informed her that Joey had signed a privacy statement and that he could not release that information to her.
¶ 14. The jury found Fulgham guilty of killing her husband while engaged in the commission of a robbery. At the sentencing phase, the jury found unanimously beyond a reasonable doubt that Kristi Fulgham had intended that the killing of Joey Fulgham take place and had contemplated that lethal force would be employed. The jury further found beyond a reasonable doubt the existence of two aggravators: (1) the capital murder was committed for pecuniary gain; and (2) the capital murder was committed during the commission of a robbery. Lastly, the jury unanimously found that the mitigating evidence did not outweigh the aggravating evidence, and that Fulgham should suffer the penalty of death.
¶ 15. For ease of discussion, we have reordered the issues raised by Fulgham in her appellate brief. Where two issues are interrelated, we have combined them. And because we reverse for a new sentencing hearing, we decline to address those penalty-phase issues that now are moot on appeal and not likely to reoccur on resentencing.
¶ 16. Fulgham's conviction rests upon circumstantial evidence. In a case based on circumstantial evidence, "[i]t is fundamental that convictions of crime cannot be sustained on proof which amounts to no more than a possibility or even when it amounts to a probability, but it must rise to the height which will exclude every reasonable doubt[.]"
¶ 17. This Court has ruled that "`[t]he trial court enjoys considerable discretion regarding the form and substance of jury instructions.'"
¶ 18. Instruction D-48 reads:
¶ 19. Fulgham argues that the underlying felony of robbery is a specific-intent crime, and that the jury should have been instructed that it must agree unanimously on which item was taken. Fulgham argues that the trial court's failure to grant instruction D-48 violated her state and federal constitutional right to a unanimous verdict, because she claims the State argued that Fulgham took Joey's wallet, the CPU, and the life-insurance proceeds.
¶ 20. Fulgham also argues that the State created a situation in which certain members of the jury could have found that Fulgham had robbed Joey of his wallet while other jurors could have found that she had taken the CPU. Finally, Fulgham argues that a conviction based on the missing CPU is against the overwhelming weight of the evidence, as there is no evidence that the CPU was present in the house on Friday night or that it was appropriated by criminal means.
¶ 21. Contrary to her arguments, a review of the record does not show an argument by the State that Fulgham had robbed Joey of life insurance proceeds. The State argued that Fulgham had a desire for money and that the life insurance proceeds served as a motive for the murder. But the State did argue that Fulgham had robbed Joey of his wallet (and its contents) and/or the CPU.
¶ 22. To obtain a conviction for robbery, the State must prove beyond a reasonable doubt that the defendant: (1) feloniously took (2) the personal property of another (3) in his presence or from his person and (4) against his will, (5) by violence to his person or by putting such person in fear of
¶ 23. We begin our analysis of this issue by recognizing that criminal defendants in state courts do not have a federal constitutional right to a unanimous verdict by a twelve-member jury.
¶ 24. In Schad v. Arizona,
The Court held that premeditation and felony murder were alternative means of proving first-degree murder, and that such an option "did not fall beyond the constitutional bounds of fundamental fairness and
¶ 25. In Griffin v. United States,
¶ 26. The Court did find that reversal was warranted where the jury was presented with alternative legal theories, one of which was legal error, but not where the jury was presented with alternative factual theories and one was factually inadequate.
¶ 27. And in Richardson v. United States,
¶ 28. Here, the jury was properly instructed that one of the elements of robbery is taking, stealing, and carrying away some "personal property of another."
¶ 29. Fulgham argues that the trial court erred in permitting the State to present evidence of a romantic relationship between Fulgham and her brother, Tyler Edmonds. However, we find that Fulgham failed to object contemporaneously.
¶ 30. Procedural bar notwithstanding, we address the merits of this claim. We review the admission or exclusion of evidence under an abuse-of-discretion standard.
¶ 31. Fulgham argues that the trial court erred in allowing the jury to hear testimony relating to her alleged statement that she wanted to shoot a stray dog and her requests for a gun to shoot it. Over Fulgham's hearsay objection, Davis testified that about a month prior to Joey's death, Fulgham had complained about a stray dog and had asked Davis for her grandmother's gun to shoot it. Fulgham further objected when the State asked Davis how many times Fulgham had requested the gun, and Davis responded "three times." Fulgham argues that these statements constituted inadmissible hearsay, and if admissible, that their probative value was outweighed by their prejudicial effect.
¶ 32. Under Mississippi Rule of Evidence 801, hearsay is a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."
¶ 33. Fulgham argues that the trial court erred in allowing the State's questioning of Davis about Fulgham's relationship with Joey. Davis testified that Fulgham and Joey "were supposed to be getting back together and working things out[,]" and the State then asked Davis, "Okay. But what did Kristi Fulgham tell you?" Fulgham objected on the basis of hearsay, and the trial court overruled the objection. Davis then responded "That, you know, she was — it wasn't going to work out, basically."
¶ 34. Fulgham admits that her alleged statement to Davis is relevant to the determination of whether she killed her husband, but she then argues erroneously that it constitutes inadmissible hearsay. This testimony was excepted from the prohibition of hearsay, since it was a "statement by the accused, direct or implied, of facts pertinent to the issue, and tending, in connection with other facts, to prove [her] guilt."
¶ 35. Fulgham argues that the trial court erred in refusing to grant her "two-theory instructions" (D-13B and D-20) when it did grant a circumstantial-evidence instruction. We find that Goff v. State
¶ 36. Fulgham argues that the trial court erred in refusing jury instruction D-54A, which reads:
The trial court denied the instruction as being repetitive and without foundation in the law. We find the jury was properly instructed that the State had the burden to prove its case beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence. Further, when all instructions are read as a whole, we agree that proposed instruction D-54A is repetitious of instruction C-11, which reads:
We find that the trial court did not err in excluding D-54A as being repetitive of instructions already granted.
¶ 37. Fulgham argues that the trial court erred in granting jury instruction S-5, which defined the statutory phrase "while engaged in the commission of" to include "the actions of Defendant leading up to the robbery, the actual robbery and/or the flight from the scene of the robbery." Fulgham argues that this instruction confused the jury regarding the State's alternative theories and further distorted the unanimity requirement.
¶ 38. However, we find this issue to be a proper instruction pursuant to this Court's recent ruling in Goff v. State, in which we held:
Therefore, the trial court did not abuse its discretion in granting instruction S-5.
¶ 39. Jury instruction D-13 reads:
Fulgham argues that the trial court erred in refusing instruction D-13, because the jury was never advised that "stacked" inferences in a circumstantial case must be supported by facts proven beyond a reasonable doubt. The trial court refused this instruction as being repetitive of Instruction S-2B. Instruction S-2B instructed the jury as follows:
S-2B instructs the jury that each element of the crime must be proven beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence. We find this instruction was adequate to guard against the jury convicting Fulgham based on "stacked" inferences. Therefore, the trial court did not err in refusing proposed instruction D-13 as being repetitious.
¶ 40. Fulgham argues that the trial court should have refused the State's instruction, S-3B, an instruction on the lesser offense of murder. It instructed the jurors to consider the lesser offense of murder only if they first unanimously found the defendant not guilty of capital murder. S-3B reads:
Rather than granting S-3B, Fulgham argues the court should have granted instruction D-51, which reads:
We previously have considered the State's "acquit-first" instruction and have found that it is not prohibited by the law of this State.
The trial court did not abuse its discretion in granting instruction S-3B and refusing instruction D-51.
¶ 41. Jury instruction D-18 reads: "Guilt by association is neither a recognized nor tolerable concept in our criminal law." Fulgham argues that the trial court should have granted this instruction, as "the State tethered Ms. Fulgham to Tyler Edmonds." However, in reviewing
¶ 42. Fulgham requested that the trial court instruct the jury that:
This instruction is taken almost verbatim from Chatman v. State.
¶ 43. In this case, the jury was instructed by instruction C.01 that:
We find the jury was properly instructed under C.01 "of the things it should consider
¶ 44. Instruction D-14 reads:
¶ 45. And instruction D-15 reads:
¶ 46. These instructions are attempts to define "reasonable doubt." "This Court has long held that a definition of reasonable doubt is not a proper instruction for the jury; `[r]easonable doubt defines itself.'"
¶ 47. Fulgham filed a motion to change venue based on the pervasive media attention to her trial and the trial of her codefendant, Tyler Edmonds.
¶ 48. After a hearing on the motion to transfer venue, at which the State asserted that it had no objection to a change of venue outside Oktibbeha County, the court granted the motion. But it reserved ruling on a particular county until "suitability
¶ 49. The court held a hearing on Fulgham's objection to transfer venue to Union County, and she presented no argument but stood on her written motions. The State argued that Fulgham had no right to change venue to a county of similar racial demographics, and that there is no requirement that a court transfer out of the original media market. The trial court ruled that race was not at issue in the case, and that it failed to see the relevance of racial demographics. The trial court further ruled that there was no reason to believe that the citizens of Union County would not apply the law as instructed. The court also noted that it had checked with three other counties for availability prior to contacting Union County, and it overruled Fulgham's objection.
¶ 50. On appeal, Fulgham argues that the trial court erred in refusing to transfer venue to another county, and such error deprived her of the right to a fair and impartial jury which represented a cross-section of the Oktibbeha County community. "This Court reviews a trial court's decision to grant or deny a change of venue for abuse of discretion."
¶ 51. We find the trial court did not abuse its discretion in denying Fulgham's objection to transferring the case to Union County. Only eleven jurors of the venire responded that they had heard or seen pretrial publicity related to Fulgham's and/or Tyler Edmonds's trial. None of these potential jurors was seated on the jury. Therefore, Fulgham's argument that she failed to receive a fair and impartial trial has no merit.
¶ 52. We further find that Simon v. State is dispositive of Fulgham's argument regarding her right to change venue to a county of similar demographics.
¶ 53. Fulgham argues that the aggregate error warrants reversal under state and federal law. We find that Fulgham has failed to set forth any error as to the guilt phase.
¶ 54. The admission of expert testimony is within the sound discretion of the trial court, and this Court will review the trial court's decision to admit or deny expert testimony under an abuse-of-discretion standard.
¶ 55. Fulgham argues that the trial court erred in excluding the testimony of Dorsey-Kidd after the court accepted the witness as an expert in the field of social work. Fulgham argues that the State failed to object in a timely manner to Dorsey-Kidd's proposed testimony when the State objected after it had conceded Dorsey-Kidd could testify regarding her opinions as a social worker. In support of her argument, Fulgham asserts that she timely gave notice to the State of her expert witness and offered Dorsey-Kidd's proposed testimony via an expert report. Fulgham further notes that the State failed to object (knowing the substance of Dorsey-Kidd's proposed testimony) when her trial counsel informed the jury during opening statement that it would hear from Dorsey-Kidd, a licensed social worker who had completed an intensive social history of Fulgham. Fulgham argues that the trial court's ruling deprived the jury from hearing all relevant mitigation evidence.
¶ 56. During the sentencing phase, Fulgham called four mitigation witnesses: Mark Webb, a psychiatrist; Carol Morgan, Fulgham's mother; Sarah Ferguson, Fulgham's long-time friend; and Adrienne Dorsey-Kidd, a licensed certified social worker. Webb testified that he had performed a psychiatric assessment of Fulgham at the Oktibbeha County Jail. He testified that Fulgham suffered from post-traumatic stress disorder and panic disorder with dependent personality traits. In arriving at these diagnoses, Webb testified that he had based his opinion on information from Fulgham, namely: (1) Fulgham was raped by her biological father when she was eleven years old; (2) one of her stepfathers was an alcoholic who had abused her mother; (3) and one of her mother's boyfriends had neglected her.
¶ 57. Carol Morgan testified that Fulgham's biological father was absent during her infancy and that he never had paid child support. Morgan also testified about their frequent moves, and that she was married and divorced several times, in addition
¶ 58. Sarah Ferguson testified that Fulgham often came over to her house as a teenager because Fulgham's stepfather was "scary and mean." She also introduced various pictures of Fulgham's children and testified that Fulgham was a good mother, and her children were important to her.
¶ 59. Prior to Fulgham calling Adrienne Dorsey-Kidd, the State objected to her testimony, asserting: "She is a licensed social worker. She is not a psychiatrist, a psychologist, and I don't believe — and everything she would be testifying to would be hearsay, and I'd like to object to any testimony that she has at this time." The court overruled this objection. Fulgham then called Dorsey-Kidd and questioned her regarding her qualifications as a licensed social worker. When Fulgham tendered Dorsey-Kidd as an expert in the field of social work, the State asked the court whether Dorsey-Kidd was being accepted "strictly in the area of social work. . . not psychiatry or psychology." The court answered in the affirmative, and the State responded "No objection to social work[.]" And she was accepted by the court as an expert in the field of social work.
¶ 60. Dorsey-Kidd testified that she had been hired to complete an intensive social history of Fulgham, which had involved reviewing documents, interviewing numerous people, and three meetings with Fulgham. The State then objected when Dorsey-Kidd was asked: "Ms. Kidd, did you reach any conclusions or make any observations in completing your intensive social history?" The State argued that "Ms. Kidd is not authorized to give any opinions in the areas set forth in her report. She is a social worker, she is not a psychiatrist or a psychologist." The court sustained the objection and allowed Fulgham to make an offer of proof outside the presence of the jury.
¶ 61. In her proffer, Dorsey-Kidd testified to four "observations" that she had made: (1) lack of parental bonding; (2) substance abuse by Carol Morgan and at least two of Fulgham's stepfathers; (3) lack of a biological father's input; and (4) the love that Fulgham had for her children and vice versa after three years of incarceration. The court ruled that Dorsey-Kidd's testimony was not of such a high degree of expertise and skill that it was outside the knowledge of a lay person, and that the jury could arrive at these conclusions based on the evidence already admitted. The court did allow Dorsey-Kidd to introduce into evidence drawings, cards, and letters made by Fulgham's children.
¶ 62. In objecting to Dorsey-Kidd's testimony, the State presented no argument or evidence that Dorsey-Kidd's testimony was outside the field of social work. And its objection based on hearsay is unfounded. We note that under Mississippi Rule of Evidence 703, an expert such as Dorsey-Kidd may form an opinion based on facts or data not admissible in evidence "[i]f of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject[.]"
¶ 63. Further, the proffered testimony was offered as mitigation, and mitigating evidence is "admissible if it relates to the character and background of the defendant and the circumstances surrounding the crime[.]"
¶ 64. Dorsey-Kidd's proposed testimony would have provided the jury with additional observations and a cohesive overview of the mitigation evidence presented by the other three witnesses. Her expert testimony would have focused on Fulgham's social history and the social context of the crime. We find Dorsey-Kidd's testimony was especially relevant, since she had reviewed various documents and had conducted interviews prior to offering her expert observations and/or opinions. Additionally, Dorsey-Kidd was the only mitigation witness who had based her findings on interviews with multiple people, including Fulgham.
¶ 65. We also find merit in Fulgham's argument that any prejudice was compounded by the timing of the State's objection. Prior to trial, the State had notice of Dorsey-Kidd's proposed testimony, and without objection, heard Fulgham's counsel inform the jury that it would hear testimony from this expert. While the State was not required to object prior to the time it did, it appears from the record that the timing of its objection exacerbated the error.
¶ 66. In the sentencing phase of a capital murder trial, the stakes are life and death. A defendant is permitted to introduce virtually any relevant and reliable evidence touching upon the defendant's background and character, or the crime itself, which is offered as a basis to persuade a jury to return a sentence of less than death. We caution prosecutors and trial judges about limiting mitigation evidence offered by a defendant when it is presented fairly, and is relevant to the defendant's character, background, or the circumstances surrounding the crime.
¶ 67. We find the trial court abused its discretion in refusing to allow Dorsey-Kidd to testify to her opinions and observations after accepting her as an expert in the field of social work, and we are unable to say that such an error did not affect the jury's ultimate decision. We conclude that
¶ 68. Although we find this issue to be dispositive, warranting reversal for another sentencing hearing, we will address those issues raised by Fulgham that are likely to recur on resentencing.
¶ 69. By statute, the Legislature has limited the aggravators the State can attempt to prove at sentencing. Mississippi Code Section 99-19-101 provides in relevant part that:
Over Fulgham's objection, the court allowed the jury to consider both the robbery and the pecuniary-gain aggravators. Fulgham argues that the felony-murder aggravator is unconstitutionally duplicative and that the indictment failed to list the aggravators. We quickly dispose of this second argument, since this Court repeatedly has held that the use of an underlying felony as an aggravating factor is constitutional and that an indictment of capital murder does not have to list the statutory aggravators.
¶ 70. In Ladner v. State, the Court held that "where the indictment charges a robbery/murder capital offense and robbery is designated as an aggravating circumstance, pecuniary gain should not be used as an aggravating circumstance unless clearly supported by the evidence."
¶ 71. The purpose of this holding is to minimize those cases in which the same conduct will support multiple aggravators. In this case, the relevant inquiry is whether the evidence supported a finding that Fulgham had committed the murder in the expectation that she would receive some pecuniary gain separate and apart from the robbery proceeds. We find that there was evidence to support the pecuniary-gain aggravator for conduct distinct and
¶ 72. The State also introduced evidence of the pecuniary-gain aggravator in support of its theory that Fulgham's motive for the murder was to collect life-insurance proceeds. Scotty Carrithers, who in 2003 handled life-insurance records for the National Guard, testified that Fulgham had called him and inquired as to the amount of Joey's life-insurance policies. Scotty testified that he had refused to release the information to Fulgham, but that Fulgham was the beneficiary of a $55,000 policy. Scotty also testified that Fulgham once was the beneficiary of a second policy worth $255,000, but that Joey had changed the beneficiary to his mother. Fulgham's biological father also testified that she had told him "I want him dead, and that he has a life insurance policy, and . . . the kids would get $300,000, and I would get $200,000. And that she would buy me — I would look good sitting in a Cadillac, if I would keep my mouth shut." We find sufficient evidence existed to support the pecuniary-gain aggravator.
¶ 73. Fulgham provided the police two custodial statements
¶ 74. The court held a suppression hearing on March 18, 2006, and heard testimony regarding the voluntariness of the June 2, 2003, statement. George Carrithers, chief deputy of the Oktibbeha County Sheriff's Office, testified that at Fulgham's request, he had spoken with her on June 2, 2003. The record is unclear as to the starting time of this statement, but a transcript of the recording shows that Carrithers had Fulgham sign the following waiver at the beginning of her statement, which was some time prior to 2:45 p.m.:
Deputy Carrithers proceeded to record Fulgham's statement, and at 2:55 p.m. (at her request) Fulgham took a polygraph test. Fulgham continued her statement at 4:45 p.m. Emily Britt, a secretary with the Sheriff's office, and Eddie Young, the jail's administrator, witnessed Fulgham's statement and corroborated Deputy Carrithers's testimony.
¶ 75. As a courtesy, one of the deputies called Stephanie Mallette, Fulgham's counsel, and informed her that Fulgham had requested a polygraph. Mallette testified that she had instructed the deputy not to administer the polygraph. Mallette stated that she had arrived at the jail at 2:45 p.m. and was denied access to her client. According to Mallette, the deputy informed her the polygraph already had begun.
¶ 76. Fulgham argues the trial court erred in refusing to suppress the June 2, 2003, statement when the State used it to cross-examine Dr. Webb at the sentencing phase. Fulgham argues that the Sixth Amendment confers a bilateral, post-attachment right to counsel. In other words, Fulgham argues that her attorney can invoke the right to counsel on behalf of her client, Fulgham. Fulgham asserts that her right to counsel and the Due Process Clause of the Fourteenth Amendment were violated when the police refused to allow Mallette access to her. Therefore, Fulgham argues that the trial court erred in not suppressing that portion of her statement that occurred at and after 2:45 p.m., the time at which Mallette had arrived at the jail requesting to speak with her client.
¶ 77. A trial court's finding that a defendant's statements were voluntarily given cannot be reversed unless the court applied an erroneous legal standard or was clearly erroneous in its findings of fact.
In line with this Court's ruling in Mettetal, we find that Fulgham voluntarily initiated the questioning and waived the right to have her attorney present during questioning. We find no merit in Fulgham's constitutional arguments. Therefore, the trial court not was not clearly erroneous in refusing to suppress the statement.
¶ 78. Fulgham argues that the court erred in refusing jury instructions D-77A and D-77B at the sentencing phase when it granted a circumstantial-evidence instruction at the guilt phase. Instruction D-77A reads:
¶ 79. And instruction D-77B reads:
¶ 80. Contrary to Fulgham's argument, we have held that a defendant (under the proper circumstances) is entitled to a circumstantial-evidence instruction at the guilt phase.
¶ 81. Jury instruction D-64 reads as follows:
Fulgham argues the trial court erred in refusing this instruction "[b]ecause this is a case where the State sought and secured death, [and] it is different from cases where the State either does not seek death or is unsuccessful in its quest." But Fulgham concedes that no caselaw mandates that the trial court grant this instruction.
¶ 82. In Thorson v. State, this Court considered a similar instruction to the one at issue in this case.
¶ 83. Like the issue in Thorson, this issue is procedurally barred, as Fulgham fails to cite any relevant authority in support of this instruction. Procedural bar notwithstanding, we find that our discussion in Thorson is applicable. The language rejected in Thorson closely tracks jury instruction D-64. Further, the trial court instructed the jury to "objectively consider the detailed circumstances of the crime . . . as well as the character of the Defendant herself [and] not to be swayed by mere sentiment, conjecture, passion, sympathy, prejudice, public opinion, or public feeling." The trial court also instructed the jury regarding its consideration of aggravating and mitigating circumstances. We find no merit in this issue.
¶ 84. We affirm Fulgham's conviction of capital murder. We reverse her sentence of death and remand this case to the Oktibbeha County Circuit Court for a new sentencing hearing consistent with this opinion.
¶ 85.
WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, RANDOLPH, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. RANDOLPH, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY LAMAR, J. KITCHENS, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, J.
¶ 86. I fully concur with the Majority Opinion, but write separately to register respectfully my concern with the separate specially concurring opinion, which, sua sponte, raises an issue not presented for our consideration. See Glover v. Jackson State Univ., 755 So.2d 395, 398 n. 1 (Miss. 2000) ("this Court has long held that issues not raised on appeal are procedurally barred from consideration"); Luther T. Munford, Mississippi Appellate Practice, § 3.7 at 3-24 (2006) (citing Educ. Placement Servs. v. Wilson, 487 So.2d 1316, 1320 (Miss.1986)) (discussing the sound principle of judicial administration that this Court generally will avoid considering issues not first presented to and decided by the trial court). Nor is the opposing party granted an opportunity to present argument in opposition. It shall come as a great surprise if the appellate counsel for Fulgham's post-conviction-relief motion will not present the issue, having received this instruction on advocacy from such an esteemed jurist as Justice Kitchens. I decline to join in offering such advice, as I fully expect this litigant will appear before this Court again. A jurist should adjudicate, not advocate. In resolving disputes presented for adjudication, we should neither favor, nor offer advice to, an accused or the State.
LAMAR, J., JOINS THIS OPINION.
KITCHENS, Justice, Specially Concurring:
¶ 87. I agree with the majority's finding that the trial court abused its discretion in refusing to allow the social worker to testify to her opinions and observations after its acceptance of her as an expert in the field of social work, and that such error warrants reversal of the death sentence. However, I write separately to address the insufficiency of the indictment, the insufficiency of the evidence with respect to the crime of robbery, and the insufficiency of the jury instructions on robbery.
¶ 88. The capital murder charge against Fulgham required the State to prove that she committed a robbery and a murder during the course of a robbery. Miss. Code Ann. § 97-3-19(2)(e)(Rev.2006). The State claimed she robbed her husband in the house where they both lived. To obtain a conviction, the State was required to prove, beyond a reasonable doubt, that Fulgham had used force or threat of force intentionally to take and carry away her husband's property from his person or presence. Crocker v. State, 272 So.2d 664, 665 (Miss.1973). The indictment accused Fulgham of taking her husband's property, but it did not identify what property she is alleged to have taken. Instead, the State waited until the trial to disclose to the jury, and to Fulgham, what property it claims she stole from her husband.
¶ 89. This case provides an excellent example of why, in a robbery prosecution, due process of law requires that an indictment identify the property the accused is alleged to have taken. The State was required to prove that Fulgham committed a robbery, but she appeared at trial without knowing what property she was accused of stealing. In fact, neither the indictment, the prosecutor, the trial court, nor the jury has ever been informed of what property she was convicted of taking. To this day, she does not know, and neither does this Court.
¶ 90. In closing argument, the State suggested it might have been a computer that appeared to have been missing from the house.
¶ 91. But the important point is that, because the indictment did not identify the property Fulgham was alleged to have stolen, she was required to appear at trial and defend the State's claim that she had stolen something, even though she was not told what it was. Had the indictment identified the alleged stolen property, she would have had a fair opportunity to defend the charge. For instance, if the indictment had informed her that the alleged stolen property was a computer (as the prosecutor suggested in closing argument), she perhaps could have produced a receipt or other evidence showing it actually belonged to her.
¶ 92. This Court has held that "[i]n the context of capital murder, . . . a bare allegation of robbery in an indictment, without further specification of the facts in support of that, is sufficient." State v. Berryhill, 703 So.2d 250, 256 (Miss.1997) (citing Mackbee v. State, 575 So.2d 16, 35 (Miss. 1990)). See also Bullock v. State, 391 So.2d 601, 606 (Miss.1980); Bell v. State, 360 So.2d 1206, 1208-09 (Miss.1978). I respectfully disagree with this analysis. A careful look at these cases reveals that this conclusion is based on the interpretation of a statute, specifically Mississippi Code Section 99-17-20. However, it is our state and federal constitutions, above all else, that govern the requirements of an indictment, specifically the right to due process of law and the right "to be informed of the nature and cause of the accusation." U.S. Const. amend. VI. See also U.S. Const. amend. XIV; Miss. Const. art. 3, §§ 14, 26.
¶ 93. Mississippi Code Section 99-17-20 (Rev.2006) provides, in relevant part,
This Court has relied on this language to hold that an indictment for capital murder, where the killing was committed while engaged in the commission of one of those felonies enumerated in Mississippi Code Section 97-3-19(2)(e), need not describe the underlying felony. Mackbee, 575 So.2d at 35; Bullock, 391 So.2d at 606; Bell, 360 So.2d at 1208-09. These holdings conflict with this Court's well-established rule that any citation to a code section cannot properly charge a crime, and that it is the language of the charging document that informs a defendant of the specific crime he or she is alleged to have committed. Golden v. State, 968 So.2d 378, 386 (Miss. 2007); Pearson v. State, 248 Miss. 353, 358-59, 158 So.2d 710, 712 (1963); Dendy v. State, 224 Miss. 208, 213, 79 So.2d 827, 829 (1955).
Id. at 897. Citation to a statute, as our Code Section 99-17-20 requires, informs the accused of the nature of the accusation; but it does not inform him or her of the cause, i.e., "you committed a robbery [the cause], and here's what robbery you committed [the cause]."
¶ 95. The indictment under which Fulgham was charged did not provide her an accurate description of the charge against her so that she could adequately prepare her defense. The three elements of robbery are (1) intentional (2) taking and carrying away of another's property from his person or presence (3) effectuated by force or threat of force, Crocker v. State, 272 So.2d 664, 665 (Miss.1973), and every element of a criminal statute must be properly pled and sufficiently proven in order to permit conviction thereunder. Taggart v. State, 957 So.2d 981, 985-86 (Miss.2007) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). The indictment did not describe the underlying crime of robbery, but simply alleged that Kristi Fulgham did:
Fulgham was never put on notice of what personal property she was alleged to have taken, or from whom the property was taken, or that the property was taken "by force or threat of force." Crocker, 272 So.2d at 665; Miss.Code Ann. § 97-3-73 (Rev.2006). Indeed, were Fulgham charged with robbery alone, the indictment would fall woefully short.
¶ 96. Moreover, the indictment does not even meet the basic requirements of Mississippi Code Section 99-17-20, discussed above, because it does not "set forth in the indictment by section and sub-section number of the Code which defined the offense allegedly committed by the accused." The indictment references "Section 97-3-19(e)," but the proper citation is 97-3-19(2)(e). Further, in violation of Section 99-17-20, it does not cite any robbery statute; and this charge, under the State's apparent theory of the case, is not a capital offense, absent robbery.
¶ 97. Indictments must contain a "plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant
¶ 98. Furthermore, the jury was not instructed as to what property Fulgham is alleged to have stolen. Incredibly, the only clue came from the prosecutor's closing argument. Thus, it is my opinion that the indictment was insufficient, the proof of robbery was insufficient, and the jury instruction on robbery was insufficient.
¶ 99. None of these issues was raised on appeal. However, Fulgham's appellate counsel was the same as her trial counsel, so she will have an opportunity (should she so desire) to raise the issues in a properly filed petition for post-conviction relief.
¶ 100. For the reasons stated, I specially concur.
DICKINSON, J., JOINS THIS OPINION.
