                          IN THE SUPREME COURT OF MISSISSIPPI
                                   NO. 93-DP-01025-SCT
CALVIN HUNTER
v.
STATE OF MISSISSIPPI

DATE OF JUDGMENT:                 07/14/93
TRIAL JUDGE:                      HON. MARCUS D. GORDON
COURT FROM WHICH                  NESHOBA COUNTY CIRCUIT COURT
APPEALED:
ATTORNEYS FOR                     CLAYTON T. LEWIS
APPELLANT:
                                  ANDRE' DE GRUY
                                  ANNE V. WINTER
ATTORNEYS FOR                     OFFICE OF THE ATTORNEY GENERAL
APPELLEE:
                     BY: MARVIN L. WHITE JR.
                           LESLIE STAEHLE LEE
DISTRICT ATTORNEY:   TURNER, KEN,
NATURE OF THE CASE:  CRIMINAL - DEATH PENALTY - DIRECT APPEAL
DISPOSITION:         REVERSED AND REMANDED FOR NEW TRIAL;
                     SENTENCE VACATED - 6/27/96
MOTION FOR REHEARING 7/11/96
FILED:
MANDATE ISSUED:      12/12/96




     EN BANC.


     PRATHER, PRESIDING JUSTICE, FOR THE COURT:


¶1. This is a capital murder case arising from the shooting death of James Albert Brewer outside his
home in Union. The defendant, Calvin Hunter, was convicted of murdering the victim during the
commission of a robbery, and was sentenced by the Neshoba County Circuit Court to death by lethal
injection. The dispositive issue in this case is the failure to instruct the jury on the elements of the
underlying crime of robbery; this failure requires reversal. The other issues raised by Hunter are
without merit. However, in order to provide guidance on remand, this opinion will also address: the
trial court's denial of Hunter's motion to recuse; the shuffling of venire members during jury selection;
the admission of Hunter's statement; the trial judge's appointment of the jury foreman; and the
comments made by the prosecutor throughout the trial. The following is a complete list of the issues
raised by Hunter on appeal:

                                        PRE-TRIAL ISSUES

I. Whether the trial court erred in denying Hunter's motion to recuse?

                                      GUILT PHASE ISSUES

II. Whether the prosecutor's comments during voir dire violated Hunter's rights?

III. Whether the trial judge's moving venire members to the end of the jury list without cause
or explanation violated Hunter's rights?

IV. Whether the State exercised peremptory challenges to remove African-Americans from the
jury in violation Hunter's rights?

V. Whether the admission of Hunter's statement violated his rights?

VI. Whether the trial court erred in failing to instruct the jury on the crime of robbery?

     A. Whether the instruction offered by Hunter was properly denied?

     B. Whether the trial court failed to instruct on robbery?

     C. Whether the district attorney or the trial judge was obligated to offer an instruction
     on the elements of the underlying crime?

VII. Whether the trial court failed to fully instruct the jury on manslaughter?

VIII. Whether jury instruction S-8 at the guilt phase relieved the State of the burden of
proving intent to commit the underlying felony, thereby violating Hunter's rights?

IX. Whether the trial court's instruction to the jury on the manner of its deliberations was
unduly coercive in that it forbade any consideration of the lesser included offense until and
unless the jury had unanimously agreed to acquit the defendant of the greater charge?

X. Whether the trial court denied Hunter a fair and impartial jury by appointing the jury
foreman?

XI. Whether the prosecutors' comments in closing argument violated Hunter's rights?

XII. Whether the evidence before the jury on the underlying felony of robbery was legally
insufficient to support a verdict of capital murder?

                                  SENTENCING PHASE ISSUES

XIII. Whether the trial court erred in submitting to the jury the robbery-murder aggravating
circumstances?

XIV. Whether the failure to define one of two aggravating circumstances found by this jury
requires that the death sentence be vacated?

XV. Whether the trial court erred in submitting to the jury the aggravating circumstance that
Hunter had been convicted of another capital offense?

XVI. Whether the trial court's anti-sympathy instruction coupled with denial of a mercy
instruction violated Hunter's rights?

XVII. Whether the trial court erred in instructing the jury at sentencing that it could consider
"the detailed circumstances of the offense?"

XVIII. Whether the trial court erred in instructing the jury that, in order to return a sentence
of life imprisonment, it had to find that the mitigating factors outweigh the aggravating
circumstances?

XIX. Whether the trial court erred in submitting to the jury in the sentencing phase of the
trial the form of the verdict as contained in sentencing instruction S-1?

XX. Whether the prosecutors' comments in closing argument violated Hunter's rights?

XXI. Whether the aggregate error in this case requires reversal of the conviction and death
sentence?

XXII. Whether the death penalty is a disproportionate punishment given the circumstances of
the crime and the character of the defendant?

                                         LEGAL ANALYSIS

                                        PRE-TRIAL ISSUES

I. Whether the trial court erred in denying Hunter's motion to recuse?

¶2. On the Friday before this case was set to go to trial on Monday, Hunter presented his motion to
recuse Judge Marcus D. Gordon. Hunter's basic argument was that the trial judge's law firm had
represented the victim (Jimmy) in his divorce from his wife (Lucille). Specifically, the trial judge's
nephew, Rex Gordon, Jr., had represented Jimmy in the divorce, in which Hunter was Lucille's
"named paramour." A no-fault divorce was eventually entered. Furthermore, the parties stipulated
that (after the trial judge left the firm) Rex Gordon, Jr., represented Jimmy's estate and his daughter.
This same daughter was a witness against Hunter at trial.

¶3. The trial judge denied Hunter's motion to recuse, and made the following statement:

     I practiced law until January of 1991 in the firm in Union known as the Gordon Law Firm, of
     which Rex Gordon, Jr. was a member. It appears that [Rex Gordon, Jr.] filed a complaint for
     divorce for James Albert Brewer in June of 1990. That there was the wife of James Albert
     Brewer, who was the Defendant in the case, was represented by the Honorable Jerry Bustin of
     Forest, Mississippi. That later, through negotiations among the parties, the matter was resolved
     by a no-fault divorce that was entered in September of 1990.

     Now, the question [the defense attorney] raises is that the Trial Judge should recuse himself in
     the trial of the case of State of Mississippi vs. Calvin Hunter, with Calvin Hunter being named
     as the paramour of Lucille Brewer.

     Now, I do not recall the law firm representing this case, nor any witnesses, nor was the case
     ever discussed between myself and Rex Gordon, Jr.

     I fail to see how a case involving a victim of an offense, a domestic case involving a victim of an
     offense, and another person, raises the appearance of impropriety in the case where a paramour
     is being tried for the murder of his friend's husband.

¶4. On appeal, Hunter argues that Judge Gordon should have recused himself, because "the
combination of Judge Gordon's familial and firm relationship to counsel for the victim and the State's
witnesses against Calvin Hunter provides the appearance of and the potential for partiality."

¶5. Canon 3(C)(1) of the Code of Judicial Conduct provides as follows:

     C. Disqualification.

     (1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably
     be questioned, including but not limited to instances where:

     (a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed
     evidentiary facts concerning the proceeding;

     (b) he served as a lawyer in the matter in controversy, or a lawyer with whom he previously
     practiced law served during such association as a lawyer concerning the matter, or the judge or
     such lawyer has been a material witness concerning it.

Miss. Code of Judicial Conduct, Canon 3(C)(1). "[T]he Canon enjoys the status of law such that we
enforce it rigorously . . ." Green v. State, 631 So. 2d 167, 177 (Miss. 1994).

     Mississippi has an objective test in determining when a judge should recuse himself. Jenkins v.
     State, 570 So.2d 1191, 1192 (Miss.1990). "A judge is required to disqualify himself if a
     reasonable person, knowing all the circumstances, would harbor doubts about his impartiality."
     Rutland v. Pridgen, 493 So.2d 952, 954 (Miss.1986).

     The presumption is 'that a judge, sworn to administer impartial justice, is qualified and unbiased.
     To overcome the presumption, the evidence must produce a 'reasonable doubt' (about the
     validity of the presumption)[.]" Turner v. State, 573 So.2d 657, 678 (Miss.1990). When a
     judge is not disqualified under the constitutional or statutory provisions[(1)], 'the propriety of his
     or her sitting is a question to be decided by the judge and is subject to review only in case of
     manifest abuse of discretion.' Buchanan v. Buchanan, 587 So.2d 892 (Miss.1991); Turner,
     573 So.2d at 677; Ruffin v. State, 481 So.2d 312 at 317 (1985) (quoting McLendon v. State,
     187 Miss. 247, 191 So. 821, 823 (1939)).
Banana v. State, 635 So. 2d 851, 853 (Miss. 1994) (quoting Collins v. Joshi, 611 So. 2d 898, 901
(Miss. 1992)); Green v. State, 631 So. 2d 167, 177 (Miss. 1994).

     "While an attorney may rightfully, in cases where he thinks the judge's relations would result to
     the injury of the defendant, move for a recusation of the judge; this Court, in such a case, will
     look to the whole trial and pass upon questions on appeal in the light of the completed trial.
     Every act and movement had during the entire trial will be considered, and if we are unable to
     find that rulings have been prejudicial to the defendant, we will not reverse."

Adams v. State, 220 Miss. 812, 817, 72 So. 2d 211, 213-14 (Miss. 1954) (trial judge need not recuse
himself where he had previously presided over civil case involving same defendant and same
transaction) (quoting Garrett v. State, 187 Miss. 441, 455, 193 So. 452, 456 (Miss. 1940)). There is
nothing in the manner in which Judge Gordon presided over Hunter's trial and exercised his
discretionary powers that would indicate prejudice to Hunter. Furthermore, there was nothing in the
record regarding any financial arrangements of the trial judge with his former law firm. Indeed,
Hunter does not allege that he was actually prejudiced, he only argues that the trial judge's relations
gave the appearance of impartiality.

¶6. Hunter has not overcome the presumption that the trial judge was qualified and unbiased.
Furthermore, Judge Gordon did not abuse his discretion by overruling Hunter's motion to recuse. See
Cantrell v. State 507 So. 2d 325, 327-28 (Miss. 1987); Rutland v. Pridgen, 493 So. 2d 952, 953-54
(Miss. 1986). On this record, there was no evidence of prejudice or impropriety that would require
the trial judge's recusal. Therefore, this assignment of error is without merit, and the trial judge's
denial of the motion to recuse is affirmed.

                                        GUILT PHASE ISSUES

III. Whether the trial judge's moving venire members to the end of the jury list without cause
or explanation violated Hunter's rights?

¶7. At voir dire, there were seven prospective jury panels. The trial judge moved some veniremen to
different jury panels, so that more prospective jurors would be considered prior to them. He also
moved some of the prospective jury panels to the end of the list for consideration. The record clearly
demonstrates that the trial judge rearranged the veniremen to accommodate the personal problems of
certain jurors. For example, he moved a woman who had a problem with swollen feet and two school
bus drivers who were scheduled for re-certification training "way down on the list for selection."

¶8. Defense counsel made no objection to the judge's shuffling of the veniremen. For this reason, the
issue is procedurally barred on appeal. Foster v. State, 639 So. 2d 1263, 1270 (Miss. 1994) (quoting
Cole v. State, 525 So.2d 365, 369 (Miss.1987)) ("If no contemporaneous objection is made, the
error, if any, is waived. This rule's applicability is not diminished in a capital case."). Furthermore, "[t]
his Court has often held that a party waives any and all claims regarding the composition of his jury if
he fails to raise an objection before the jury is sworn." Conner v. State, 632 So. 2d 1239, 1264
(Miss. 1993); Myers v. State, 565 So. 2d 554, 557 (Miss. 1990).

¶9. Moreover, the judge's actions should stand, unless Hunter can demonstrate prejudice, bias, or
fraud. Pulliam v. State, 515 So. 2d 945, 948 (Miss. 1987); Harris v. State, 406 So. 2d 823, 824
(Miss. 1981). Hunter has made no such demonstration. Of note, however, is the fact that one black
venireman was moved further down the list for consideration without explanation. This could be
prejudicial -- particularly in cases such as this -- where the defendant is black, a Batson challenge is
raised during jury selection, and the jury that is eventually empaneled is composed of twelve white
members. See Batson v. Kentucky, 476 U.S. 79 (1986).(2)

¶10. Generally, the direction in jury selection is within the discretion of the trial judge. Harris, 406 at
823. However, trial judges should avoid any actions that might suggest that the juror pool is being
manipulated for racial or other improper reasons. Therefore, if a trial judge employs this practice of
rearranging the veniremen to accommodate the personal problems of prospective jurors (thereby
maintaining a larger juror pool), he should be certain to give explicit reasons for moving each
venireman to the end of the list.

V. Whether the admission of Hunter's statement violated his rights?

¶11. At trial, a hearing was held outside the presence of the jury to determine the admissibility of
Hunter's statement to the police. The record reflects that, on the evening of April 8, 1993, Hunter
and the victim's ex-wife (Lucille) were apprehended by the Mississippi Highway Patrol (MHP) near
Jackson. They were detained in Jackson until the Neshoba County authorities arrived.

¶12. Officer Greg George (an investigator for the Neshoba County Sheriff's office) and Chief Deputy
Pheris Savell arrived in Jackson and spoke with Hunter at approximately 11:05 that night. Hunter
refused to give a statement. Hunter testified that he requested an attorney, but both officers denied
that such a request was made.

¶13. Hunter was taken to the Neshoba County jail. The next day, April 9, 1993, the jailer informed
Officer George that Hunter wanted to speak with him. At approximately 12:45 p.m., and in the
presence of Officer Tommy Waddell (an investigator for the Philadelphia Police Department), Officer
George advised Hunter of his Miranda rights. Hunter acknowledged that he understood his rights,
and signed a waiver-of-rights form. Hunter testified that he understood the waiver-of-rights form.

¶14. Hunter was not under the influence of drugs or alcohol. Both officers testified that no threats or
promises were made to him. Hunter was not represented by an attorney; he did not ask for a lawyer
or for the questioning to cease. Hunter gave a statement regarding Jimmy Brewer's death. Officer
George read the statement to Hunter, and Hunter signed it without making any changes.

¶15. Hunter testified that, on April 9, 1993, Lucille (the victim's ex-wife and Hunter's alleged
paramour) had cancer and was bleeding. He told the officers that he would make a statement if they
would arrange medical treatment for Lucille. According to Hunter, Officer George told him that
Lucille would be released for treatment if he gave a statement. Hunter said that he relied on Officer
George's assurances when he gave his statement. However, both officers denied that Hunter agreed
to give the statement in exchange for medical treatment for Lucille.

¶16. The trial judge ruled that Hunter was advised of his constitutional rights, that he understood
those rights, and that he knowingly, intelligently, and voluntarily waived them. The statement, with
some editions, was admitted.(3)
¶17. On appeal, Hunter argues that the statement should not have been admitted because: (a) he had
previously requested an attorney, and the statement was taken in violation of his right to counsel and
(b) his statement was not voluntary, because it was given in exchange for medical treatment for
Lucille.

¶18. First, this Court addresses Hunter's alleged request for an attorney in Jackson on the night he
was arrested. Hunter testified that he requested an attorney; Officers George and Savell denied that
he made such a request. Regardless of whether he actually requested an attorney, Hunter admits that
he sent for Officer George the next day. The law is well-established that an accused person can waive
his right to counsel by initiating conversation with law enforcement:

     An accused, after expressing a desire to deal with police only through counsel, is not subject to
     further interrogation by the authorities until counsel has been made available to him, unless the
     accused himself initiates further communication, exchanges or conversations with the police.
     Once the right to counsel has attached, and the accused asserts the right, he is protected from
     further police-initiated interrogation. Even if an accused has procured an attorney, the accused
     may still waive the right to have the lawyer present during any police questioning. Nothing in
     the Sixth Amendment prevents a suspect charged with a crime and represented by counsel from
     voluntarily choosing, on his own, to speak with police in the absence of an attorney. Although a
     defendant may sometimes later regret his decision to speak with police, the Sixth Amendment
     does not disable a criminal defendant from exercising his free will. This Court has found that a
     defendant may waive his Sixth Amendment right to counsel when he waives his Miranda rights.

Mettetal v. State, 602 So. 2d 864, 868 (Miss. 1992) (citations omitted). This Court finds that the
appellant "knowingly and voluntarily waived his right to assistance of counsel during the statement to
the police." See Mettetal, 602 So. 2d at 869.

¶19. The next issue raised by Hunter is whether his confession was voluntary. The standard of review
in such cases is well-settled. "Once the trial judge has determined at a preliminary hearing, that a
confession is admissible, the defendant/appellant has a heavy burden in attempting to reverse that
decision on appeal." Sills v. State, 634 So. 2d 124, 126 (Miss. 1994) (quoting Frost v. State, 483 So.
2d 1345, 1350 (Miss. 1986)). "Such findings are treated as findings of fact made by a trial judge
sitting without a jury as in any other context. As long as the trial judge applied the correct legal
standards, his decision will not be reversed on appeal unless it is manifestly in error, or is contrary to
the overwhelming weight of the evidence." Foster v. State, 639 So. 2d 1263, 1281 (Miss. 1994)
(citations omitted). "Where, on conflicting evidence, the court makes such findings, this Court
generally must affirm." Lesley v. State, 606 So. 2d 1084, 1091 (Miss. 1992) (citations omitted).

     The general rule is that for a confession to be admissible it must have been given voluntarily,
     and not as the result of any promises, threats or other inducements. The burden is on the
     prosecution to prove beyond a reasonable doubt that the confession was voluntary. The "burden
     is met and a prima facie case made out by testimony of an officer, or other persons having
     knowledge of the facts, that the confession was voluntarily made without any threats, coercion,
     or offer of reward."

Chase v. State 645 So. 2d 829, 838 (Miss. 1994) (citations omitted).
¶20. In the case at hand, both officers who witnessed Hunter's statement testified that it was
voluntarily given. They specifically denied promising Hunter that Lucille would receive medical
treatment in exchange for his statement. Therefore, the State made a prima facie showing that
Hunter's statement was voluntary. The trial judge did not abuse his discretion or commit manifest
error when he ruled that Hunter's statement was admissible. See Jenkins v. State, 607 So. 2d 1171,
1175 (Miss. 1992); Lutes v. State, 517 So. 2d 541, 548-49 (Miss. 1987). Thus, Hunter's arguments
on this point are without merit, and his statement is admissible.

VI. Whether the trial court erred in failing to instruct the jury on the elements of the crime of
robbery?

¶21. Hunter's next argument is that the trial court committed reversible error by failing to instruct the
jury on the elements of the underlying crime of robbery. The record reflects that no instruction
regarding the elements of robbery was given.

¶22. Hunter's argument raises three questions: (A) whether the trial judge erred in denying Hunter's
proposed jury instruction, (B) whether the elements of robbery were included in the instructions that
were given, and (C) whether it was incumbent on the district attorney to offer such an instruction.

¶23. Based on the following analysis, the trial judge correctly denied Hunter's proposed instruction as
confusing. However, it also seems that reversible error was committed when the jury was not
instructed on the elements of the underlying crime of robbery, and that the district attorney should
have offered such an instruction.

A. Whether the instruction offered by Hunter was properly denied?

¶24. Hunter argues that the trial judge failed to give his proposed instruction D-19 regarding the
elements of the crime of robbery. The record reflects that, after the parties rested and the jury was
excused, the trial judge began to rule on proposed instructions. The judge deemed several of the
instructions confusing, including D-19. He recessed overnight, in order to give the defense attorney
an opportunity to re-draft his proposed instructions.(4)

¶25. The next morning, the judge went back through the instructions.(5) The trial judge again refused
to give instruction D-19 "because of being repetitious and rambling and confusing." There is no
evidence that the defense attorney attempted to amend D-19, which read as follows:

     The Court instructs the jury that in this case, the defendant, Calvin Hunter, is accused of having
     committed a capital crime; that is, he the said Calvin Hunter took the life of Jimmy Brewer,
     with the then present intent to rob the said Jimmy Brewer. If you, the jury, find that the State
     has failed to prove from the evidence, or lack of evidence, beyond a reasonable doubt, any one
     of the elements of the crime of robbery which are at the time and place testified about, the said
     Calvin Hunter alone or in concert with another unlawfully assaulted Jimmy Brewer, which is to
     say, unlawfully put Jimmy Brewer, in fear of some immediate injury to his person; and that the
     assault, if any was made by Calvin Hunter with the specific intent to then steal the personal
     property belonging to Jimmy Brewer in his presence or from his person and against his will; that
     further, by virtue of the assault, if any, Calvin Hunter did take, steal, and carry away personal
     property belonging to Jimmy Brewer, from the presence or person of Jimmy Brewer and against
     his will, then there has been no robbery of Jimmy Brewer by Calvin Hunter and it is your sworn
     duty to find Calvin Hunter not Guilty of Capital Murder.

     Further, if from the evidence or lack of evidence, you find that Calvin Hunter did kill Jimmy
     Brewer; but, did not at the time of the alleged homicide have the present intent to rob Jimmy
     Brewer; but that said intent to rob the said Jimmy Brewer, if any was formed after the alleged
     homicide, then in that event also, you must find Calvin Hunter not guilty of Capital Murder.

     In the event you so find, either one or both of the before mentioned conditions you may
     proceed with your deliberations in order to determine whether the State has proven from said
     evidence and beyond a reasonable doubt defendant's guilt of the lesser crime of non-capital
     murder.

     The Court further instructs you that in order to find the defendant, Calvin Hunter, guilty of the
     crime of non-capital murder you must find that the State has proved from the evidence beyond a
     reasonable doubt that on the date and at the place testified about, the defendant, Calvin Hunter
     did feloniously and with the deliberate design to cause the death of Jimmy Brewer in fact kill the
     said Jimmy Brewer without authority of law and not in necessary self-defense. If the state's
     evidence has failed to prove any one or more of these elements beyond a reasonable doubt then
     you shall find the defendant not guilty of murder.

¶26. The proposed instruction is long, confusing, and contains several different concepts. It cannot
be said that the trial judge erred by refusing to grant instruction D-19. See Sudduth v. State, 562 So.
2d 67, 72 (Miss. 1990) ("This Court has repeatedly condemned confusing and misleading
instructions.").

B. Whether the trial court failed to instruct on the elements of robbery?

¶27. Hunter also argues that the failure to instruct the jury with regard to the elements of the
underlying crime of robbery constitutes reversible error. The State points out that the following
instruction was given as instruction S-8:

     The Court instructs the Jury that in a case of capital murder, wherein the alleged underlying
     offense is robbery, the fact that the murder, if any occurred prior to the taking, if any, does not
     lessen the crime of robbery. The Court instructs the jury that if you find from the evidence
     beyond reasonable doubt that the chain of events of the fatal injury of James Brewer and the
     taking of his property formed a continuous chain of events, then the fact that James Brewer was
     dead at the time the Defendant took his property does not absolve the Defendant from the crime
     of robbery.

¶28. The State argues that Hunter should have objected to the giving of instruction S-8 in order to
preserve this issue on appeal. The State seems to be arguing that S-8 is an instruction on the elements
of robbery, and that, therefore, the jury was instructed with regard to the underlying offense. Indeed,
"an instructional error will not warrant reversal if the jury was fully and fairly instructed by other
instructions." Collins v. State, 594 So. 2d 29, 35 (Miss. 1992); Heidel v. State, 587 So. 2d 835, 842
(Miss. 1991).
¶29. Miss. Code Ann. § 97-3-19(2)(e) (Supp.1990), provides:

     The killing of a human being without authority of law by any means in any manner shall be
     capital murder in the following cases: . . . when done with or without any design to effect death,
     by any person engaged in the commission of the crime of . . . robbery, . . . or any attempt to
     commit such felonies. . . .

¶30. Miss. Code Ann. §97-3-73 (1972) provides that "every person who shall feloniously take the
personal property of another in his presence or from his person and against his will, by violence to his
person or by putting such person in fear of some immediate injury to his person, shall be guilty of
robbery."

¶31. Instruction S-8 did not mention any of these elements. Rather, it instructed the jury regarding
the sequence of the robbery and the murder. The State's argument to the contrary is without merit.
Furthermore, none of the other instructions that were given defined the underlying offense of
robbery.

C. Whether the district attorney was obligated to offer an instruction on the elements of the
underlying crime of robbery?

¶32. Indeed, no instruction on the elements of the underlying offense was given. The defendant
offered a confusing instruction, which was properly refused. The State did not offer an instruction on
the elements of the underlying offense of robbery. This Court holds that the State had a duty to
ensure that the jury was properly instructed on the elements of the underlying crime.

     It is hornbook criminal law that before a conviction may stand the State must prove each
     element of the offense. Not only is this a requirement of the law of this State, due process
     requires that the State prove each element of the offense beyond a reasonable doubt.

Neal v. State, 451 So. 2d 743, 757 (Miss. 1984). A logical corollary of this principle is that, because
the State has to prove each element of the crime beyond a reasonable doubt, then the State also has
to ensure that the jury is properly instructed with regard to the elements of the crime. See also
Hosford v. State, 525 So. 2d 789, 792 (Miss. 1988) (quoting Adams v. State, 202 Miss. 68, 75, 30
So. 2d 593 (Miss. 1947) ("In conducting a criminal case, the prosecuting attorney must be fair and
impartial, and see that defendant is not deprived of any constitutional or statutory right.")
(emphasis in original).

¶33. However, the State argues that it is incumbent on the defendant to offer such an instruction, and
cites several cases, all of which can be distinguished. See Ballenger v. State, 667 So. 2d 1242, 1252
(Miss. 1995); Conner v. State, 632 So. 2d 1239, 1254 (Miss. 1993); Gray v. State, 472 So. 2d 409,
416 (Miss. 1985) (reversed on other grounds, 481 U.S. 648 (1987)).

¶34. Ballenger is factually similar to the case sub judice, in that the defendant/appellant was
convicted of capital murder during the commission of a robbery and sentenced to death. Ballenger
claimed that the trial judge erred by failing to grant two of her instructions, which discussed the
elements of robbery. One of the instructions was not marked given, refused, or withdrawn, and was
not discussed in the transcript. This Court held that Ballenger's argument with regard to that
instruction was not properly preserved for appeal. The second instruction was on the lesser included
offense of robbery. This Court ruled that the trial judge properly refused to give the instruction
because it would have allowed the jury to find Ballenger guilty of robbery, but not guilty of capital
murder. Id. at 1252. In the case sub judice, the proposed instruction containing the elements of the
underlying crime was marked "refused". Furthermore, Hunter did receive a proper lesser included
offense instruction on simple murder. Therefore, Ballenger is factually distinguishable and does not
apply.(6)

¶35. The other cases cited by the State dealt with lesser included offense instructions. See Conner v.
State, 632 So. 2d 1239, 1254 (Miss. 1993); Gray v. State, 472 So. 2d 409, 416 (Miss. 1985). These
cases can be distinguished from the case at hand, which deals with an instruction on the underlying
crime -- that is, the alleged crime which elevated this to a capital case. See also Harper v. State, 478
So. 2d 1017, 1023 (Miss. 1985).

¶36. "Just as the State must prove each element of the offense, the jury must be correctly and fully
instructed regarding each element of the offense charged." Neal, 451 So. 2d at 757 n.9. Failure to
submit to the jury the essential elements of the crime is "fundamental" error. Screws v. United States,
325 U.S. 91, 107 (1945). In capital murder cases, the trial court is "required to instruct just as fully
regarding the definition of [the underlying crime] as it [is] on murder." Id. Indeed,

     "[i]t 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." "Where the jury had incorrect or incomplete instructions regarding the law,
     our review task is nigh unto impossible and reversal is generally required."

Henderson, 660 So. at 222 (citations omitted).

¶37. It is rudimentary that the jury must be instructed regarding the elements of the crime with which
the defendant is charged. Therefore, even though the defendant did not present an acceptable
instruction, the State was obligated to do so. Reversal on this issue is warranted. See Henderson v.
State, 660 So. 2d 220, 222 (Miss. 1995); Neal v. State, 451 So. 2d 743, 757 n.9 (Miss. 1984); see
also Watson v. State, 465 So. 2d 1025, 1031 (Miss. 1985).

X. Whether the trial court denied Hunter a fair and impartial jury by appointing the jury
foreman?

¶38. Prior to the jury's retiring, the trial judge appointed the jury foreman. Hunter made no objection,
and he did not raise the issue in his post-trail motion. Therefore, he is precluded from raising this
issue on appeal. See Robinson v. State, 662, So. 2d 1100, 1104 (Miss. 1995); Foster v. State, 639
So. 2d at 1270.

¶39. Furthermore, this issue was recently addressed in the case of Ballenger v. State, 667 So. 2d
1242, 1258-59 (Miss. 1995). This Court held that Ballenger was procedurally barred from raising the
argument on appeal. The court went on to rule that, "In the future, trial judges are advised not to
appoint jury foremen. Who is to be the foreman is a decision which should be made by fellow jurors."
Id.
¶40. Hunter was tried approximately two years before the ruling in Ballenger; therefore, the court's
prospective advice in Ballenger does not apply to this appeal. On remand, however, the jurors
should select the jury foreman.

                                  SENTENCING PHASE ISSUES

XX. Whether the prosecutors' comments in closing argument violated Hunter's rights?

¶41. Hunter argues that several prosecutorial comments made during closing arguments violated his
right to a fair trial. Specifically, Hunter contends that: (A) the prosecutor improperly interjected
personal opinion at closing arguments in both the guilt and sentencing phases, and (B) the prosecutor
improperly asked the jury at the sentencing phase to "send a message" with the verdict.

¶42. Hunter's first argument, which deals with the prosecutor's alleged statement of personal opinion,
is procedurally barred. See Foster v. State, 639 So. 2d 1263, 1288-89 (Miss. 1994) ("A prosecutor is
forbidden from interjecting his personal beliefs regarding the veracity of witnesses during closing
argument. By the same token, it is incumbent on defense counsel to raise a proper objection when the
offensive language is uttered or waive appellate review of the issue.").

¶43. Furthermore, "wide latitude" is granted to attorneys during closing arguments. See Jimpson v.
State, 532 So. 2d 985, 991 (Miss. 1988). Moreover, a prosecutor "may comment upon any facts
introduced in evidence" and "may draw whatever deductions seem to him proper from these facts."
Shell v. State, 554 So. 2d 887, 900 (Miss. 1989). However, this Court has warned prosecutors to
"refrain from interjecting personal beliefs into presentation of their cases." Chase v. State, 645 So. 2d
829, 854-55 (Miss. 1994) (quoting Nixon v. State, 533 So. 2d 1078, 1100 (Miss. 1987)). On
remand, that warning should be heeded.

¶44. Hunter also asserts that the prosecutor improperly asked the jury to "send a message" during the
closing arguments at the penalty phase. This Court has repeatedly cautioned prosecutors not to use
this argument. Chase v. State, 645 So. 2d 829, 854 (Miss. 1994); Williams v. State, 522 So. 2d 201,
209 (Miss. 1988); Carleton v. State, 425 So. 2d 1036, 1039 (Miss. 1983). Indeed, "[t]he function of
the jury is to weigh the evidence and determine the facts. . . . Mississippi jurors are not messenger
boys." Williams, 522 So. 2d at 209. For this reason, the use of the "send a message" argument
should be avoided on remand.

                                           CONCLUSION

¶45. The failure to instruct the jury on the elements of the underlying crime of robbery constitutes
reversible error. This case is reversed and remanded for a new trial and proceedings consistent with
this opinion.

¶46. REVERSED AND REMANDED FOR A NEW TRIAL. SENTENCE IS VACATED.

PITTMAN AND MILLS, JJ., CONCUR. McRAE, J., CONCURS IN PART. BANKS, J.,
CONCURS WITH SEPARATE WRITTEN OPINION. SULLIVAN, P.J., CONCURS IN
PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY
McRAE, J. SMITH, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
ROBERTS, J. LEE, C.J., NOT PARTICIPATING.
     BANKS, JUSTICE, CONCURRING:




¶47. I concur with the result reached by the majority in this case and all that is said. I write separately
only to express a note of caution with regard to the recusal issue.

¶48. This is a capital murder case. It involves, like any other case, numerous instances of the exercise
of judicial discretion. The trial judge was, relatively recently, a member of the firm which is, in the
person of the judge's nephew, representing the estate of the deceased. While the judge was a member
of the firm, the firm represented the deceased in his action for divorce against the accused accomplice
and in which the accused was named correspondent or "paramour." This certainly raises a yellow
flag, if not a red one. The record does not reflect whether the judge continues to have any interest in
any of the affairs of the firm. We, of course, accord the trial judge the presumption of propriety. The
trial judge here is both learned and experienced. With due regard, however, to the admonition of our
cannon that the appearance of partiality be avoided, I am compelled to urge that additional
consideration be given to the question of recusal on remand.

¶49. Additionally, as noted by Justice Sullivan, I consider the "send a message" argument sufficient
for reversal.

     SULLIVAN, PRESIDING JUSTICE, CONCURRRING IN PART AND DISSENTING
     IN PART:

¶50. I concur with the majority that this case must be reversed and remanded due to the State's
failure to offer a jury instruction on the elements of the underlying offense of robbery. I also agree
that the State should not use the "send the message" argument on remand. I write to clarify that not
only should the State not ask the jury to "send the message" to the county, the community, or society
at-large, when deciding the punishment of the accused, but that the State's use of this type of
summation is always improper and is reversible error.

¶51. The State improperly argued that the jury should "send a message" with its verdict. The
prosecutor stated to the jury:

     By Mr. Turner: [T]he death penalty sends the message to these kinds of people that I
     guarantee you gets their attention in a way that a life sentence in the penitentiary cannot.

     ...

     Now, the death penalty in this case will certainly deter this Defendant from killing anyone else
     and robbing him of his money, but, likewise, it will deter not only him, but others like him, who
     may wish - -

     By Mr. Lewis: Judge, I am going to object to what it would do to others at this point in time.
     By the Court: Objection overruled.

     By Mr. Turner: It will deter other people like this Defendant, who want to prey upon citizens
     of this county, who are not able to defend themselves, and who want to go to their homes in
     peace and quiet and safety, from being robbed and murdered.

¶52. This "send a message" comment made by the prosecutor during summation, exceeds the bounds
of proper advocacy and improperly shifted the burden on the jury to sentence Hunter to death in
order to "send a message" to the community at-large. The argument by the State urged the jury to
sentence Hunter to death to correct societal problems, rather than on evidence of his guilt of the
offense charged.

¶53. The "send a message" argument invokes fear and emotion, instead of reason, and may inflame or
mislead the jury. This variety of summation is clearly designed not to suggest that the jury make a
logical appraisal of the evidence to impose or not to impose the death penalty but to render a decision
based upon inflammatory suggestions appealing to their collective concerns. It is inappropriate for
the prosecutor to make arguments to the jury that give the impression that emotion may reign over
reason, and to present inflammatory rhetoric that diverts the jury's attention from its proper role, or
invites an irrational, purely subjective response.

¶54. A jury may not impose the death penalty to "send a message" to the public; they may only hold
that particular defendant responsible for his crime, not the crimes of others. In the future, the State
must refrain from emotional appeals that have the capacity to divert the jury from a fair consideration
of the evidence of guilt. The jury is not in the business of sending messages. The jurors' duty is only
to weigh the evidence put forth before them and decide if the evidence merits execution because
death is the appropriate punishment for the crime committed.

¶55. Again, as has been stated before by this Court, in the future a prosecutor should refrain from
argument that distracts the jury from its duty to decide the case on the evidence by instilling issues
broader than the guilt or innocence of the accused. See Williams v. State, 522 So. 2d 201(Miss.
1988).

     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 wished to "send a
     message" but whether or not he or she believes that the evidence showed the defendant to be
     guilty of the crime charged. . . . The function of the jury is to weigh the evidence and determine
     the facts.

Williams, 522 So. 2d at 209.

¶56. Hunter was entitled to be punished only on the evidence before the jury at that time and only on
the evidence relevant to his circumstances. A jury can impose the death penalty only if the evidence
relating to those charges convinces them of the defendant's guilt beyond a reasonable doubt, not to
fix societal problems. Accordingly, I agree with the majority that this sort of argument should not be
used on remand, and I add that the State's use of the "send a message" summation is reversible error.
McRAE, J., JOINS THIS OPINION.

     SMITH, JUSTICE, DISSENTING:


¶57. The majority vacates Calvin Hunter's conviction of capital murder for the killing of James Albert
Brewer and sentence of death imposed by a Neshoba County Jury. The majority reverses and
remands for a new trial because of the failure to instruct the jury on the elements of the underlying
crime of robbery. I disagree and accordingly dissent.

¶58. After both sides finally rested their respective cases on July 13, 1993, the trial judge considered
the instructions of law. Hunter submitted Instruction D-19 which inter alia contained the elements of
the crime of robbery. The trial judge, however, was concerned with the remainder of the instruction.
The majority admits that "The defendant offered a confusing instruction, which was properly
refused." Majority at 17. The majority then writes that the failure by the State to offer an instruction
on the elements of the underlying offense of robbery was error, citing as authority, Neal v. State, 451
So. 2d 743, 757 (Miss. 1984). However, Neal stands for the premise that due process requires that
the State prove each element of the offense beyond a reasonable doubt and not for the proposition
that the State must always offer an instruction on an element of the underlying felony. Besides, in
Neal, the State failed to include all of the elements of the offense. The concept of inveigling was not
included by the State in its underlying felony kidnapping instruction. Nevertheless, this Court
affirmed Neal's capital murder conviction stating:

     Considering the evidence in the light most favorable to the verdict, we easily conclude that
     reasonable hypothetical jurors could find beyond a reasonable doubt that Neal was in fact guilty
     of kidnapping as that offense had been described and defined in the instructions of the court.

Neal, 451 So. 2d at 758.

¶59. While no single instruction did include all elements of robbery, some of the elements are listed in
Instructions, S-1A, S-2 and S-8. Surely, these instructions assisted the jury which obviously believed
beyond a reasonable doubt that Hunter robbed and killed Brewer. I agree with the majority that the
State bears the burden of proving beyond a reasonable doubt all of the elements of the offense. In
fact, the State in the case at bar did prove all of the elements of the underlying offense of robbery as
well as those required for a capital murder conviction. In fairness to the majority, the better
procedure would be for the State to offer an instruction defining the underlying offense. But, this is
the first time that this Court has ever held it to be reversible error when the State failed to offer an
instruction on the underlying felony in a capital murder case. However, the Court in fact has reversed
where the defendant failed to provide properly worded jury instructions regarding the elements of the
crime. See Henderson v. State, 660 So. 2d 220, 222 (Miss. 1995); Neal v. State, 451 So. 2d 743,
757 n.9 (Miss. 1984); and Watson v. State, 465 So. 2d 1025, 1031 (Miss. 1985).

¶60. However, it is more than noteworthy that this Court has held that it is incumbent on the
defendant, not the trial judge, to offer such an instruction. Ballenger v. State, 667 So. 2d 1242, 1252
(Miss. 1995); See also Conner v. State, 632 So. 2d 1239, 1254 (Miss. 1993) (regarding instruction
on lesser included offense of simple murder-not underlying crime); Gray v. State, 472 So. 2d 409,
416 (Miss. 1985) reversed on other grounds, 481 U.S. 648 (1987). This Court has, in fact,
reprimanded a defense attorney for not submitting a jury instruction that specifically embraced the
"facts which he and Bray testified occurred which would have made this killing an excusable
accident." Triplett v. State, 666 So. 2d 1356, 1360 (Miss. 1995).

¶61. This Court has generally held that the trial judge is ultimately the one who is responsible for a
jury being properly instructed on the applicable law. In Duvall v. State, 634 So. 2d 524, 526 (Miss.
1994), this Court opined, "A circuit judge has a responsibility to see that the jury is properly
instructed." See Peterson v. State, 518 So. 2d 632, 637 (Miss. 1987); Harper v. State, 478 So. 2d
1017, 1018, 1022-23 (Miss. 1985). The majority has failed to cite a single case on point to support
its holding that it is reversible error for the State to fail to offer a jury instruction on the underlying
felony. Failure to instruct the jury on an essential element of an offense does not always amount to
plain error requiring reversal. United States v. Herzog, 632 F.2d 469, 472 (5th Cir. 1980). We
should not deviate in this case from our precedent cases.

¶62. The trial judge when considering Instruction D-19 stated, "D-19, there is no way the jury can
follow this instruction and glean what you are trying to say." The judge determined that other
instructions submitted by Hunter's counsel were confusing, thus he reasoned, "What I am going to
do, I am going to recess this jury. We will start over in the morning. We will come here at 8:30 and
start passing on jury instructions. So, you will have to redraw your instructions." There was no
objection to D-19 by the district attorney nor any comments made regarding this instruction. Hunter's
counsel did not object to the judge's suggestions or actions, nor did he comment.

¶63. The action taken by the trial court was appropriate at that stage of the proceedings. The judge
was obligated to modify or to give Hunter's counsel the opportunity to modify the instruction at issue
which the judge felt was confusing. Mease v. State, 539 So. 2d 1324, 1335 (Miss. 1989)(where
instruction relates to central feature of the case, and where only one "inartfully [sic] drawn"
instruction on this issue is presented to the trial judge, the trial judge has ability to modify or
obligation to explain deficiencies to defense counsel and allow defense counsel opportunity to present
new instruction). In the case at bar, the trial judge allowed an overnight recess for Hunter's counsel
to redraw and submit a new Instruction D-19.

¶64. On July 14, 1993 at 8:30 a.m., the judge reconvened for reconsideration of the jury instructions.
The trial judge started the process over again, proceeding through each and every instruction. When
the trial judge reconsidered D-19, Hunter's counsel had wholly failed to redraft the instruction. The
trial judge stated, "D-19 is refused, because of being repetitious and rambling and confusing."
There were no comments made at that time by Hunter's counsel or the district attorney. Having given
defense counsel the opportunity to re-draw Instruction D-19, the trial judge was correct when he told
Hunter's counsel, "there is no way the jury can follow this instruction and glean what you are trying
to say." The instruction was extremely long, repetitious, rambling, misleading and practically
incomprehensible. It certainly cannot be said that the trial judge erred by refusing to grant the
instruction as written. This Court, in Sudduth v. State, 562 So. 2d 67 (Miss. 1990), stated:

     Turning to the second point raised by this assignment of error, we find that the trial court did
     not err in excluding Jury instruction D-1. The trial court found the instruction confusing, and
     we agree. This Court has repeatedly condemned confusing and misleading instructions. Holmes
     v. State, 483 So. 2d 684, 686 (Miss. 1986).
Sudduth, 562 So. 2d at 72.

¶65. The refusal of this confusing, misleading and rambling instruction, which Hunter's counsel failed
to re-draft, did not deny Hunter an instruction on his theory of the case. This was not the only
instruction presenting Hunter's theory. Instruction D-25 presented Hunter's primary theory of self
defense to the jury. Hunter agreed to the court modified Instruction S-8 which dealt with Hunter's
theory of the sequence of the robbery and the murder as to intent. He also failed to re-draw
Instruction D-19. Hunter cannot fault the trial judge for his own failures. This Court, in Hester v.
State, 602 So. 2d 869 (Miss. 1992), stated, "[w]here a defendant's proffered instruction has an
evidentiary basis, properly states the law, and is the only instruction presenting his theory of the case,
refusal to grant it constitutes reversible error." Id. at 872. Instruction D-19 as drafted did not meet all
of the Hester requirements. The instruction was not a proper statement of the law, but rather was a
rambling combination which would only confuse the jury. Hunter could have re-drafted D-19, but did
not do so. Additionally, D-19 was not Hunter's sole instruction on his theory of the case.

¶66. Hunter's counsel further confused the issue concerning the giving of an instruction containing
the elements of the underlying offense of robbery when the trial judge considered whether to give
Instruction S-8. Hunter's counsel insisted that S-8

     has to have the intent of the robbery has [sic] to be prior to it. What I am saying is the intent to
     rob must be established prior to the killing in order to have that instruction. In other words, that
     intent has to be in the accused's mind when the killing occurs. The intent to rob cannot be
     formed after the killing for it to be murder.

This apparently triggered the trial court to ask, "Do we have an instruction giving the elements of the
crime of robbery? I don't believe so." Hunter's counsel responded, "No, sir. It got struck." In fact,
that is not what had happened. The trial court again commented, "I don't believe we have it."
Hunter's counsel responded emphatically, "I have got it laid out in the lesser included offense." This
statement was not true either and apparently no one, including the defense counsel, district attorney
or the trial judge checked to verify if the elements of robbery had in fact been "laid out" in attorney
Lewis' supposed lesser included offense instruction.

¶67. In fact, the record reveals that Lewis did not offer any lesser included offense instruction. The
only lesser included offense instruction tendered to the court was by the State. Instruction S-1A inter
alia informed the jury that:

     If you believe from the evidence in this case beyond a reasonable doubt that at the time and
     place charged in the indictment and testified about, that the Defendant, Calvin Hunter, did
     willfully, unlawfully, feloniously, and without the authority of law, and of his malice
     aforethought, kill and murder James Albert Brewer, a human being, but that he, the said Calvin
     Hunter, was not then and there engaged in the commission of the crime of robbery of James
     Albert Brewer, then it is your duty to find the Defendant guilty of Simple Murder.

¶68. Hunter's counsel also failed to offer a lesser included offense manslaughter instruction. He
attempts to raise that issue here on appeal for the first time and of course is not only procedurally
barred, but even considering that issue on the merits, there is none. There was absolutely no evidence
in this record to support the giving of a manslaughter instruction had Hunter's counsel even tendered
one for consideration by the trial court.

¶69. The only point of contention that Hunter's counsel ever raised about this issue concerned his
request that "intent to rob" language be included in Instruction S-8. Instruction S-8 did not concern
the elements of the underlying offense, but rather dealt with the sequence of the robbery and the
murder. Unquestionably, this issue was a focus of one of Hunter's theories of the case, that any intent
to rob occurred after the killing, hence his insistence that it be included in the instruction. Hunter's
primary theory was self defense. The jury was adequately instructed on this theory. S-8 was amended
by the trial judge to include the necessary language to make the jury aware that the killing was done
during the course of a robbery. Hunter's counsel acknowledged to the trial court after the court's
second revision of the instruction, that "he knew it was the law." Hunter's counsel made no objection.
In Cole v. State, 525 So. 2d 365 (Miss. 1987) cert denied, 508 U.S. 962 (1993) post-conviction
relief motion granted on other grounds, 666 So. 2d 767 (Miss. 1995), this Court stated:

     Counsel may not sit idly by making no protest as objectionable evidence is admitted, and then
     raise the issue for the first time on appeal. If no contemporaneous objection is made, the error,
     if any, is waived. This rule's applicability is not diminished in a capital case.

Cole, 525 So. 2d at 369.

¶70. Regardless, even if this Court were to consider the merits of this issue, Hunter cannot prevail.
Hunter's argument is that the robbery occurred as an afterthought, thus there is no capital murder.
The twice modified instruction ultimately given by the trial judge was legally correct. Pickle v. State,
345 So. 2d 623,627 (Miss. 1983). Pickle states that "we hold that where the two crimes are
connected in a chain of events and occur as part of the res gestae, the crime of capital murder is
sustained."; Walker v. State, No. 92-DP-00568-SCT, (Oct. 12, 1995), reh'g. denied, April 18, 1996;
Fisher v. State, 481 So. 2d 203, 212 (Miss. 1985); Moore v. State, 344 So. 2d 731, 735 (Miss.
1977); Neal v. State, 451 So. 2d 743, 757-58 (Miss. 1984); Pruett v. State, 431 So. 2d 1101, 1104-
05 (Miss. 1983), cert. denied 464 U.S. 865 (1983); Wheat v. State, 420 So. 2d 229 , 238 (Miss.
1982), cert denied 460 U.S. 1-56 (1983); Shanklin v. State, 290 So. 2d 625, 627 (Miss. 1974);
Thompson v. State, 258 So. 2d 448 (Miss. 1972).

¶71. The case sub judice appears to be on all fours with Dufour v. State, 453 So. 2d 337 (Miss.
1984), cert. denied, 469 U.S. 1230. In Dufour, no instruction defining the underlying felony of
robbery was given to the jury and this Court held that the evidence adduced at trial proved that the
murder was committed during the course of a robbery. Dufour, 453 So. 2d at 346. Subsequently, on
post-conviction relief review by this Court in Dufour v. State, 483 So. 2d 307 (Miss. 1985), cert.
denied, 479 U.S. 891, 107 S.Ct. 292, 93 L.Ed. 2d 266 (1986), the Court held:

     Petitioner claims that his counsel was ineffective for not offering a complete instruction on, or
     objecting to the failure to instruct, on the elements of the underlying felony of robbery. The
     Court considered the question of whether or not a robbery was in fact committed, and found
     that the evidence fully supported the finding that robbery had been committed. Dufour v. State,
     453 So. 2d at 346.

Dufour, 483 So. 2d at 308-309.
¶72. Returning to the case at bar, the situation here is no different than in Dufour. There is an
abundance of evidence supporting the jury verdict that Hunter robbed and murdered Brewer. The
evidence of robbery is supported by: (1) Hunter went to Brewer's residence armed. (2) Brewer's
wallet, held to his belt by a chain, containing $1,700.00 was taken by Hunter. (3) Brewer's pants
pockets were turned inside out, as was one of the victims in Dufour. (4) Brewer's wallet was thrown
out beside the highway. (5) Hunter told a witness that he was going to kill Brewer because of
Brewer's possession of some insurance money that Hunter believed Brewer would not give to him.
(6) Hunter told Lucille that "We need to get his money to have something to leave on." (7) Hunter
shot Brewer with the .30 .30 rifle that Hunter claimed Brewer usually kept inside the door of the
trailer. He threw it away into a canal while fleeing the scene. (8) The money was taken by violence to
Brewer's person. (9) Lucille had already packed her suitcase and was ready to go prior to Hunter
robbing and killing Brewer. This Court, in Voyles v. State, 362 So. 2d 1236, 1243 (Miss. 1978), cert
denied, 441 U.S. 956 (1979), stated that intent to rob "may be shown by the acts of the person
involved as well as the circumstances surrounding such action." See Walker v. State, No. 92-DP-
00568-SCT (Oct. 12, 1995), reh'g. denied, April 18, 1996; Wheat v. State, 420 So. 2d 229, 238
(Miss. 1982); Fisher v. State, 481 So. 2d 203, 213 (Miss. 1985). As in Dufour, there was more than
sufficient evidence for the jury to find that Hunter robbed and murdered Brewer. This Court should
affirm on this issue as we did in Dufour.

¶73. Hunter waived his objection to an instruction on the underlying felony of robbery and is barred
from raising it here for the first time. Cole, 525 So. 2d at 369; Chase v. State, 645 So. 2d 829, 835
(Miss. 1994); see Foster v. State, 639 So. 2d 1263 (Miss. 1994). He also failed to cite this error as
grounds for a new trial in his Motion For Judgment Notwithstanding the Verdict, or alternatively,
Motion For a New Trial. Even under the merits, no manifest injustice occurred. See Gray v. State,
487 So. 2d 1304 (Miss. 1986).

¶74. I respectfully dissent.

ROBERTS, J., JOINS THIS OPINION.


1. The Mississippi Constitution provides that:

     No judge of any court shall preside on the trial of any cause, where the parties or either of them,
     shall be connected with him by affinity or consanguinity, or where he may be interested in the
     same, except by the consent of the judge and of the parties.

Miss. Const. Art. 6, § 165 (1890). The Mississippi Code provides that:

     The judge of a court shall not preside on the trial of any cause where the parties, or either of
     them, shall be connected with him by affinity or consanguinity, or where he may be interested in
     the same, or wherein he may have been of counsel, except by consent of the judge and of the
     parties.

Miss. Code Ann. § 9-1-11 (1972). These constitutional and statutory provisions do not apply in the
case sub judice.

2. We have reviewed Hunter's Batson challenge, and find it to be without merit.
3. Apparently, a portion of the statement dealing with cocaine was redacted. Because the deleted
words do not appear in the record, this Court makes no ruling with regard to their admissibility.

4. These actions were proper. At this point, the judge was obligated to modify or to give the
defendant the opportunity to modify the instruction. See Mease v. State, 539 So. 2d 1324, 1335
(Miss. 1989) (where instruction relates to central feature of the case, and where only one "inartfully
drawn" instruction on this issue is presented to the trial judge, the trial judge has ability to modify or
obligation to explain deficiencies to defense counsel and allow defense counsel opportunity to present
new instruction). The trial judge allowed Hunter's attorney an overnight period to redraw the
instruction. The factual crux in this case is that Hunter's attorney apparently did not do so.

5. The record reflects that the trial judge, apparently recognizing the importance of an instruction on
the elements of robbery, asked whether such an instruction had been offered. The defense attorney
incorrectly replied that the elements of robbery were contained in the lesser included offense
instruction. Neither attorney attempted to further verify on the record that an instruction on the
elements of robbery had, in fact, been offered.

6. This Court agrees that Ballenger correctly stands for the propositions that it is incumbent upon
the defendant to preserve the record for appeal and to offer an instruction on any lesser included
offenses the defendant wishes to pursue. However, Hunter properly preserved the issue for appeal.
Furthermore, the issue in dispute in the case sub judice is instruction on the underlying crime -- the
crime which elevated this murder to a capital case -- not a lesser included offense instruction. See
Ballenger 667 So. 2d at 1252.
