                         IN THE SUPREME COURT OF MISSISSIPPI

                                      NO. 1998-DP-01149-SCT

LEROY LYNCH

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT:                                  6/5/1998
TRIAL JUDGE:                                       HON. KENNETH L. THOMAS
COURT FROM WHICH APPEALED:                         BOLIVAR COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                           CHERYL ANN WEBSTER
                                                   AZKI SHAH
ATTORNEYS FOR APPELLEE:                            OFFICE OF THE ATTORNEY GENERAL BY:
                                                   JUDY T. MARTIN
                                                       MARVIN L. WHITE, JR.
DISTRICT ATTORNEY:                                 LAURENCE Y. MELLEN
NATURE OF THE CASE:                                CRIMINAL - DEATH PENALTY - DIRECT
                                                   APPEAL
DISPOSITION:                                       AFFIRMED - 05/27/2004
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


        EN BANC.

        SMITH, CHIEF JUSTICE, FOR THE COURT:

¶1.     Leroy Lynch appeals his capital murder conviction and sentence of death determined by a Bolivar

County Circuit Court jury. The jury returned a guilty verdict against Lynch, finding that he acted in concert

with Kevin D. Scott, who killed Richard Lee in the course of a robbery; therefore, Lynch committed capital

murder pursuant to Miss. Code Ann. § 97-3-19(2)(e). After a sentencing hearing, the jury determined that

Lynch should be given the penalty of death. The trial court entered judgment and sentenced Lynch to death

by lethal injection. Lynch subsequently made a motion for judgment of acquittal notwithstanding the verdict
or in the alternative a new trial. The trial court denied Lynch’s motion. Lynch filed his notice of appeal with

this Court.

                                                  FACTS

¶2.     On November 14, 1995, Kevin D. Scott wrecked his white Oldsmobile Sierra with a luggage rack

on the trunk. The next day, Scott asked his friend Leroy Lynch to go with him to Cleveland, Mississippi

to get a replacement car similar to the one wrecked. Scott picked up Lynch at his girlfriend’s house in

Clarksdale, Mississippi. Scott was driving his brother’s car, a brown Chrysler.

¶3.     According to Lynch’s testimony, he and Scott drove to Davenport, where Scott independently

retrieved a gun from Scott’s residence. The two then drove to Cleveland, Mississippi.

¶4.     Upon their arrival in Cleveland, Lynch and Scott, looking for the similar car, “cruised” the parking

lots of at least four stores, including Wal-Mart, Kroger, Fred’s, and Jitney Jungle. Scott ultimately saw a

white Oldsmobile with a luggage rack on the trunk in of Jitney Jungle the parking lot and parked next to

it. Once Scott parked the car, Lynch went inside Jitney Jungle to use the restroom. Lynch also testified

that he saw the driver of the car going into the store. When the driver of that car, Richard Lee, exited the

store and drove out of the parking lot, Scott and Lynch followed him to a sandwich shop. Lynch and Scott

waited outside while Lee went inside the store. Lee returned to his car and went on to another store.

Lynch and Scott followed Lee once again, waiting outside while Lee went into the store. Finally, Lynch and

Scott followed Lee to his home in Boyle, Mississippi.

¶5.     At the Lee residence, Scott parked the car on the street and approached Lee, who was seated in

his car in the carport. Lynch stayed behind in the car parked on the street. Lurline Lee, Richard Lee’s

wife, saw her husband talking a tall, thin African American man outside in their garage. When Mrs. Lee

opened the glass garage door to see what was going on, Lee advised her, “Honey, he has a gun.” Scott


                                                      2
then fired two shots at Mrs. Lee. She ducked back inside the house and dialed 911. While inside, Mrs.

Lee heard several additional gunshots.

¶6.     When Lynch heard the gunfire, he moved to the driver’s side of the car and drove away. In his

rearview mirror, Lynch saw Scott backing out of Lee’s driveway in Lee’s car. Lynch testified he did not

know Scott was going to shoot Lee. Driving Lee's vehicle, Scott later passed Lynch somewhere between

Boyle and Davenport.

¶7.     Richard Lee’s body was discovered in the Lee’s garage. Emergency medical technicians from

Bolivar County Hospital attempted to revive Lee at the scene. He died a few hours later from a bullet

wound to the head.

¶8.      According to witness Doris Ivy, a resident of Bobo, Mississippi, on the day of the shooting, she

saw a brown car driving “real slow.” She said “the Lynch boy” stopped the brown car, got out, and stood

on the side of the road looking across the field toward the old gin. Doris testified that it was Leroy Lynch

she saw on the side of the road and identified him in the courtroom. She testified that a car in photographic

exhibits the prosecution showed her appeared to be the same car she saw Lynch driving that day.

¶9.     In addition, Steven Ivy testified that he saw Leroy Lynch on Davenport Brandon Road “driving real

slow” heading north from Bobo toward Davenport. Steven said that Lynch was “looking off into the fields”

at a white car. He testified that he was able to see the white car. Lynch was alone, driving a brown

Chrysler. When shown the same photographs identified by Doris Ivy, Steven identified the car being driven

by Lynch and said that the car, to his knowledge, belonged to Kevin Scott’s brother. He identified Lynch

in court as the person he saw driving the brown Chrysler. Ivy said he’d known Lynch all of Lynch’s life

and he knew Lynch when he saw him.




                                                     3
¶10.    On the day of the shooting, the Bolivar County Sheriff’s Department discovered the Lee’s car

abandoned near an old gin at Bobo, Mississippi. After searching the immediate area, authorities found a

coat in a hole near the old gin. There was a wallet inside one of the pockets, and police found an envelope

and a handgun wrapped inside the jacket. The wallet contained Kevin Scott’s driver’s license. The gun

was registered to D’Angelo Johnson, Lynch’s cousin, and former step-father.

¶11.    D’Angelo Johnson testified that he had purchased the .380 pistol in 1995. He identified the pistol

and the firearm application. He further stated that Leroy Lynch discovered the .380 pistol under the seat

of Johnson's car several months before the shooting. Upon discovering the gun, Lynch asked Johnson who

owned the gun and what was wrong with it. Lynch asked if Johnson wanted Lynch to get it fixed. Johnson

at first said no, but ultimately stated Lynch could if he wanted to do so. However, Johnson stated that he

took the gun from Lynch and placed it back under the seat of the vehicle. Johnson was unaware that Lynch

had removed the gun from beneath the seat again. When the two got back to Johnson's house, Lynch went

down the street to see a friend. Lynch called Johnson from his friend’s house and said he was going home.

About a month later, Lynch called Johnson and said that he had put Johnson’s gun in the pawnshop.

Johnson had not been aware that the gun was missing until he spoke to Lynch that day. Johnson testified

that Lynch was the last person he saw with the gun and identified Lynch in court.

¶12.    On November 16, 1995, the day after the shooting, Leroy Lynch was taken into custody for

questioning by the Bolivar County Sheriff’s Department. During questioning, the following transpired:

        Q:      Alright, and what did he [Scott] tell you what y’all was going to do...that he was
                going to do?

        A:      He said he was gone get a car.

        Q:      Said he was goning [sic] to get a car?



                                                    4
        A:       Uhm huh.

        Q:       Alright and what happened to his car?

        A:       He had wrecked it.

        Q:       And he was going to get a car kinda that looked like his?

        A:       Yes.

        Q:       And uh, what was he going to carjack somebody and take there [sic] car or what?

        A:       I think so. I really don’t know.

¶13.    Lynch used the follow-up sentence, “I really don’t know,” with several of his statements made both

in court and out of court. Other Inconsistencies from Lynch on the witness stand were prevalent in this

case. Lynch testified that Scott was “following this dude to Pig Pen and then the liquor store and then to

his house.” When counsel then asked him if he knew the reason Scott was following the person, Lynch

replied, “No, I was lying down at the time.” This statement contradicts Lynches later testimony that he did

not lie down in the car until Scott left the liquor store, following Lee.

        Counsel asked:            And so when was it that you started lying down?

        Lynch replied: Right then when we left the liquor store.

        Counsel asked:            When he “arrived back at the house what gun, if any, did [he] see
                                  there?

        Lynch responded:          The gun he had in his hand.

        Counsel rephrased the question:             Did you see a gun in his hand or what did you
                                                    see?”

        Lynch replied: I didn’t see nothing in his hand.




                                                       5
¶14.    In his statement to Chief Estes, Lynch was asked about the pistol used in the killing and he claimed

the gun was Scott’s and that he did not know from where Scott had gotten the gun. However, at trial when

asked about the gun, Lynch changed his story. Lynch claimed, “I gave him that gun three months ago.”

¶15.    John Franovick, a forensic scientist specializing in firearm and toolmark identification, was tendered

and accepted by Lynch as an expert. He testified that he had compared the projectiles and cartridge cases

recovered from the crime scene with the .380 pistol submitted by Bolivar County authorities. He visually

examined the gun and test fired it. He stated that it was his opinion that the recovered projectiles were fired

in the gun.

                                              DISCUSSION

¶16.    This Court, in reviewing a capital murder conviction and death sentence, must apply “heightened

scrutiny.” Flowers v. State, 842 So. 2d 531, 539 (Miss. 2000) (quoting Balfour v. State, 598 So.2d

731, 739 (Miss. 1992)). This method of review requires the Court to resolve all doubts in favor of the

accused because “what may be harmless error in a case with less at stake becomes reversible error when

the penalty is death.” Id. See also Fisher v. State, 481 So.2d 203, 211 (Miss. 1985).

        I.       Whether the Trial Court Erred in Failing to Give the Jury the
                 Following Instruction: If You Can Reconcile The Evidence Upon
                 Any Reasonable Hypothesis Consistent With The Defendant's
                 Innocence, You Should Do So And Find Him Not Guilty.

¶17.    Lynch argues that the trial court erred in failing to submit Instruction D-8338-1 to the jury. This

instruction states “[i]f you can reconcile the evidence upon any reasonable hypothesis consistent with the

Defendant’s innocence, you should do so and find him not guilty.” Lynch, for the first time on appeal

contends that this instruction is “approximately the “two theory” instruction that has been approved and




                                                      6
adopted in Mississippi by this Court.” Moreover, Lynch argues that the “two- theory” instruction must be

given in addition to a basic circumstantial evidence instruction.

¶18.     Lynch offered no instructions in advance. Lynch ultimately offered only one instruction to the trial

court and failed to argue to the trial court this instruction was a “two-theory” instruction. Because this one

instruction was offered late, the issue of whether the trial court erred in denying the instruction is waived

from examination. Though Lynch claims the instruction is a “two theory” instruction, it is not. The trial

court modified the State’s timely tendered instruction to include the language in Lynch’s offered instruction

to his satisfaction based upon the mistaken belief that the case was a circumstantial one.

¶19.    After a review of the transcript record of the trial court proceedings, there can be no doubt that

Lynch’s counsel ultimately merely asked to modify S-1. When that was done utilizing the language that

both he and the trial court offered, counsel accepted the instruction as modified without objection. The

following exchange between the trial court and counsel for Lynch concerning counsel’s failure to submit any

jury instructions evidences Lynch’s acceptance of the modified instruction:

        By the Court: I’m talking about you failure to submit instructions.

        By Mr. Shah: I don’t have to submit an instruction.

        By the Court: But if you’re offering one, I’m saying it should be timely made.

        By Mr. Shah: I’m offering a modification based on the evidence that has been produced
        in open court.

        By the Court: Let me have you modification then.

        By Mr. Shah: I’m saying include the circumstantial evidence instruction in that instruction.

        By the Court: All right. Well, I think you understand my point, Mr. Shah. Now what can
        we do to doctor on this instruction? To Mr. Shah and Mr. Mellen.

        By Mr. Mellen: That would be up to Mr. Shah. He’s the objector on that.


                                                      7
        By the Court: You are the movant.

        By Mr. Shah: Simply include - - take out reasonable doubt and include the circumstantial
        evidence instruction.

        By The Court: Now, we have to let reasonable doubt stay there and add the language into
        the exclusion of every - - yes.

        By Mr. Shah: Every reasonable hypothesis consistent with defendant’s innocence.

Later the Court inquired:

        By the Court: You [sic] response to S-1 which has been modified, of course, to include
        the circumstantial language in the second paragraph.

        By Mr. Shah: We have no objections.

¶20.    The State argues that this issue is waived because Lynch failed to submit the instruction in a timely

manner and has therefore failed to meet the requirements of Uniform Circuit and County Court Rule 3.07.

In the alternative, the State contends that the instruction is not required in general and that it is not

appropriate here because this is not a purely circumstantial evidence case. Indeed, the issue is barred from

examination due to the waiver resulting from the violation of the rules. Procedural bar notwithstanding, we

proceed to address the merits of the issue.

¶21.    Much of the authority cited by Lynch involves purely circumstantial cases, unlike Lynch’s case, and

those cases are distinguishable from this one; however, this is not a purely circumstantial case because

Lynch made an “admission on a significant element of the offense” and the alleged admission constitutes

direct evidence pursuant to Taylor v. State, 672 So. 2d 1246, 1270 (Miss. 1995).

¶22.    In State v. Rogers, 847 So. 2d 858, 863 (Miss. 2003), this Court again considered the two-

theory instruction that is commonly given in circumstantial evidence cases. The Court recognized that the

two-theory instruction is required only in purely circumstantial cases. Id. See also Barnes v. State, 532



                                                     8
So.2d 1231, 1235 (Miss.1988); Boches v. State, 506 So.2d 254, 260 (Miss.1987); Clark v. State,

503 So.2d 277, 278-79 (Miss.1987); Keys v. State, 478 So.2d 266, 267 (Miss.1985); Henderson v.

State, 453 So. 2d 708, 709-10 (Miss. 1984); Johnson v. State, 347 So.2d 358, 360 (Miss.1977).

¶23.    In determining whether the defendant was entitled to a two-theory instruction, the Court in Rogers

considered whether the case was purely circumstantial. Rogers, 847 So. 2d at 863. The Rogers Court

discussed the difference between circumstantial evidence and direct evidence:

        What is “circumstantial evidence”? The least inadequate definition we can provide is that
        circumstantial evidence is evidence which, without going directly to prove the existence of
        a fact, gives rise to a logical inference that such fact does exist. Conversely, eye witness
        testimony is thought of as direct evidence.

Id. (quoting Keys v. State, 478 So. 2d 266, 268 (Miss. 1985)). For purposes of granting a two-theory

instruction, “[a] circumstantial evidence case...is one in which there is neither an eyewitness nor a confession

to the crime.” Id. at 863 (citing Mangum v. State, 762 So. 2d 337, 344 (Miss. 2000)). However, in

Taylor v. State, 672 So. 2d 1246, 1270 (Miss. 1996), we held that an admission as to an important

element of the alleged crime obviates the need for a circumstantial evidence instruction. That is, “[t]here

is no reason on principle why an admission by the defendant on a significant element of the offense should

not also operate to render unnecessary the circumstantial evidence instruction.” Conner v. State, 632

So. 2d 1239, 1256 (Miss. 1993) (overruled on other grounds by Weatherspoon v. State, 732 So.2d

158, 162 (Miss. 1999)). We held in Mack v. State, 481 So. 2d 793, 795 (Miss. 1985), that “an

admission ... [is] a statement by the accused--it may be direct or implied--of facts pertinent to the issue and

tending in connection with other facts to prove his guilt.” Mack, 481 So.2d at 795 (citing Reed v. State,

229 Miss. 440, 91 So.2d 269 (1956)).




                                                       9
¶24.    At the outset, we must determine whether this is a purely circumstantial evidence case. Lynch

argues that, according to the definition set out in Keys, this is a circumstantial evidence case, while the State

argues that this is not a circumstantial evidence case because Lynch made an “admission on a significant

element of the offense” and that the alleged admission constitutes direct evidence pursuant to Taylor.

Thus, according to the State, our requirements for wholly circumstantial evidence cases do not apply here.

Specifically, the State points to a portion of Lynch’s statement taken the day after the shooting:

        Q:       And uh, what was he going to carjack somebody and take there [sic] car or what?

        A:       I think so. I really don’t know.

(emphasis added).

¶25.     Lynch argues that this statement cannot be an admission because it does not contain a time

element as to when Lynch first understood that he and Scott were involved in a car-jacking of Lee. It is

clear from the context of the questions by law enforcement officers that they were concerned with what

Lynch thought before he and Scott arrived in Cleveland, rather than as Lynch argues, what he may have

thought after the car-jacking and murder. Lynch’s argument to the contrary ignores the plain language of

the questions the officers were asking prior to Lynch’s admission of, “ I think so. I don’t really know,” in

respond to the direct question of whether Scott was going to car-jack somebody and take their car or

what.

¶26.    We hold that the case at bar is not a purely circumstantial case. Lynch’s statement in response to

the officer’s question is an admission against interest as to the underlying felony. This is true although Lynch

at first says, “I think so,” and as if by afterthought contradicts himself and says, “I really don’t know.”

Lynch’s counsel asked for and was allowed to introduce both the actual tape recording of this statement

and the transcript thereof as evidence for the jury to hear, read and consider during their deliberations. This

                                                      10
was but one of several inconsistencies in Lynch’s testimony and prior statement. The ultimate question of

what Lynch meant by this statement and what the truth of the matter actually was is an issue for the jury to

determine.

¶27.    An admission is but a statement by the accused which may be direct or implied by facts pertinent

to the issue and tending to prove his guilt. The intent to rob, or in this case commit a car-jacking, which

is necessary to prove the underlying felony of robbery can be shown from the facts surrounding the crime.

Mackbee v. State, 575 So. 2d 16, 33-34 (Miss. 1990); Wheat v. State, 420 So. 2d 229, 238-39

(Miss. 1982); Voyles v. State, 362 So. 2d 1236, 1242-43 (Miss. 1978).

¶28.    Here, examination of the facts surrounding the crime is revealing indeed. The record reflects that

Lynch, knew that Scott was armed with the .380 pistol that Lynch had taken from his cousin and given to

Scott. Lynch knew that Scott’s purpose in going to Cleveland that day was to get a car exactly like the

one Scott had wrecked. They drove around Cleveland but did not go to any car dealerships looking for

this identical particular vehicle. Instead, they cruised various store parking lots until they located a vehicle

identical to Scott’s wrecked vehicle. Scott could have attempted to purchase the vehicle from Lee in a

public area of several different locations where Lee stopped prior to going home, if that indeed was his

purpose. He did not do so. Lynch could have abandoned this scheme as he exited the vehicle on at least

one occasion to use the restroom. Instead, they followed Lee home, a much less public area, where Scott

shot Lee in his carport, shot at Mrs. Lee twice, and took Lee’s car by force. Lynch claimed to be lying

down, but when he heard the shots he drove Scott’s vehicle from the scene and was later observed close

to the cotton gin where Lee’s car was abandoned and items of evidence including the murder weapon were

found by authorities. This conflicts with other statements by Lynch. Lynch’s first statement given to Chief

Estes conflicts with his trial testimony about the gun. Lynch also claims that the Ivy’s and his cousin Johnson

                                                      11
were lying. The State argues that Lynch was a lookout and was attempting to avoid arrest. Lynch could

have informed authorities at the Clarksdale Police Department of his knowledge of this crime when first

questioned, but he did not do so. Lynch’s later admission to law enforcement officers in Cleveland is direct

evidence. Thus, the dictates of Taylor apply. His testimony before the jury considering the facts within

this record is also direct evidence.

¶29.    The case at bar is also similar to Mack v. State, 481 So. 2d 793 (Miss. 1985), where Mack’s

argument was that there were no eyewitnesses who could identify him as the person who broke and entered

his mother’s residence, the case was necessarily a case of circumstantial evidence requiring circumstantial

evidence instructions. Id. at 795. This Court, however, concluded that because there was evidence in the

case from a witness regarding an admission to her by Mack that he obtained the property in question from

his mother without stating that he stole them, therefore, the case was not a circumstantial evidence case.

 The Court stated:

        While not a confession properly so-called, this evidence does constitute an admission.
        Reed v. State, 229 Miss. 440, 446, 91 So. 2d 269 (1956). As such, it constitutes direct
        evidence of the crime such that the giving of the familiar circumstantial evidence instruction
        is not required.

Id. Here, Lynch’s statement may indeed not be a “confession properly so-called”, however it still

constitutes an admission nonetheless. Id. Further, the Court has stated “There is no reason on principle

why an admission by the defendant on a significant element of the offense should not also operate to render

unnecessary the circumstantial evidence instruction.” Conner, 632 So. 2d at 1256. We have also stated:

        In the instant case, the only element proven entirely by circumstantial evidence was that of
        intent. This Court has held that unless the case against the defendant is purely or wholly
        circumstantial the defendant is not entitled to a circumstantial evidence instruction.
        Bullock v. State, 391 So. 2d 601 (Miss. 1980), Edwards v. State, 413 So. 2d 1007
        (Miss. 1982). Thus, it was proper to refuse the appellant’s request for a circumstantial
        evidence instruction.

                                                     12
Williams v. State, 445 So. 2d 798, 808 (Miss. 1984). Accordingly, we hold that Lynch’s case is not

a circumstantial evidence case; thus the circumstantial evidence standard is not properly applied to the case

at bar.

¶30.      Out of an abundance of caution, the trial court modified the existing instructions as requested by

Lynch. The instruction offered and presented now as a “two theory” instruction does not meet the

restatement definition of a “two theory” instruction. Therefore, the trial court was correct in not using the

instruction. It is obvious that the trial court was concerned because counsel had not submitted any jury

instructions and even the one at issue here was ultimately agreed to as a modification to S-1 after the trial

court raised its concerns. In fact, as previously discussed, counsel for Lynch claimed that he did not have

to submit any instructions. Ultimately, as previously noted, Lynch’s counsel agreed to the exact language

that he had proposed in this instruction to be used in a modification of S-1 which had already been given.



¶31.      We find no error with regard to the modified instructions given by the trial court.

          II.     Whether the Jury Was Properly Instructed on the Burden of Proof
                  at the Sentencing Phase of the Trial.

¶32.      Next, Lynch argues that the sentencing instructions, in setting out requirements of Enmund v.

Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), as codified in Miss. Code Ann. § 99-

19-101(7), should have included the following circumstantial evidence language: “[t]o return the death

penalty in this case you must find unanimously from the evidence beyond a reasonable doubt and to the

exclusion of every reasonable hypothesis that one or more of the following facts existed....”

(emphasis added). That is, Lynch contends that the trial court committed clear error by failing to submit

circumstantial evidence language and simply instructing the jury that “to return the death penalty in a case,


                                                      13
you must first unanimously find from the evidence beyond a reasonable doubt that one or more of the

following facts exist....” Lynch asserts that this is a circumstantial case; therefore, the sentencing instruction

should contain circumstantial evidence language.

¶33.    Lynch cites Duvall v. State, 634 So. 2d 524, 526 (Miss. 1994); and Booker v. State, 699 So.

2d 132, 135 (Miss. 1997), and Jordan v. State, 786 So. 2d 987 (Miss. 2001), for the proposition that

“when the circuit court grants instructions clearly erroneous and which deny the accused a fair and objective

evaluation of the evidence by the jury, we will reverse, even though there was no objection by defense

counsel.” However, Lynch provides no reasoning as to his assertion that the instruction given is clearly

erroneous. Moreover, Lynch cites no authority for his contention that circumstantial language is required

in the sentencing instruction. We find that this issue is thus procedurally barred. Alternatively, considering

the merits of Lynch’s assignment of error, this Court in Duvall concluded that, in general, defense

counsel’s failure to timely object to a proffered jury instruction will act as a waiver of that objection on

appeal. Duvall, 634 So. 2d at 526. However, where the circuit court grants an instruction that this Court

has “clearly held erroneous,” the Court does not “hold defense counsel to the same degree of diligence he

has on instructions this Court has not ruled upon.” Id. Thus, this Court held “when the circuit court grants

instructions clearly erroneous and which deny the accused a fair and objective evaluation of the evidence

by the jury, we will reverse, even though there was no objection by defense counsel.” Id.

¶34.    As discussed above, it is true that in circumstantial evidence cases the state must prove the

defendant’s guilt beyond a reasonable doubt and to the exclusion of every other hypothesis consistent with

innocence. See, Jones, 797 So. 2d at 927; Henderson, 453 So. 2d at 710; Jackson v. State, 684

So. 2d 1213, 1229 (Miss. 1996) (quoting Isaac v. State, 645 So. 2d 903, 909 n.7 (Miss. 1994)).



                                                       14
However, this Court has never held that circumstantial evidence language is required in charging the jury

as to the requirements of Miss. Code Ann. § 99-19-101(7).

¶35.    In order to impose the death penalty, a Mississippi jury must make a written finding of one or more

of the following factors:

        (a)      The defendant actually killed;
        (b)      The defendant attempted to kill;
        (c)      The defendant intended that a killing take place;
        (d)      The defendant contemplated that lethal force would be employed.

Miss. Code Ann. § 99-19-101(7) (Rev. 2000). The State is required to prove one or more of these

factors beyond a reasonable doubt. Holland v. State, 705 So. 2d 307, 330 (Miss. 1997) (citing White

v. State, 532 So. 2d 1207, 1219 (Miss. 1988)).

¶36.    Here, the trial judge instructed the jury as to each of the Enmund factors. While the actual jury

instruction is missing from the record, the trial transcript reflects the following charge to the jury:

        To return the death penalty in a case, you must first unanimously find from the evidence
        beyond a reasonable doubt that one or more of the following facts exist.

        One, that the defendant actually killed Richard Lee.

        Number two, that the defendant attempted to kill Richard Lee.

        Number three, the defendant intended the killing of Richard Lee to take place or;

        Number four, that the defendant contemplated that lethal force would be employed.

¶37.    We find that Lynch’s second assignment of error is without merit. First, Lynch waived this issue

by failing to cite any authority for the position that circumstantial evidence language is required in the

sentencing instruction. Nevertheless, considering the issue on the merits, we conclude that the jury

instruction is not clearly erroneous because it comports with the requirements of Miss. Code Ann. § 99-19-

101(7) and this Court’s jurisprudence regarding the State’s burden of proof as to the elements set out in

                                                      15
the statute. Furthermore, Lynch's admission is direct evidence of and indicates his awareness that lethal

force might be used to steal the car. The jury's finding that Lynch specifically intended that Lee be killed

indicates their rejection of any other reasonable hypothesis of his participation.

        III.    Whether the Evidence Was Sufficient to Support the Aggravating
                Circumstance “That the Capital Offense Was Committed for the
                Purpose of Avoiding or Preventing a Lawful Arrest.”

¶38.    Lynch argues that there was absolutely no evidence to support the “avoiding or preventing lawful

arrest” aggravating factor.1 Lynch contends that the State was required to prove that Scott killed Lee and

that “Lynch aided in some way so that Scott’s actions and criminal intent [were] charged to Lynch.” The

State argues that the evidence presented at trial amply supported the submission of this aggravating

circumstance and that it was not required to prove that Lynch aided and abetted Scott in avoiding arrest.

In the alternative, the State argues that this Court is required to perform a re-weighing / harmless error

analysis should it determine that the “preventing a lawful arrest” aggravating circumstance is invalid.2

¶39.    Under Mississippi law, the death penalty may be imposed only where the jury unanimously finds

in writing that sufficient aggravating circumstances exist. Miss. Code Ann. § 99-19-101(3)(b) (Rev. 2000).

One such aggravating factor requires the jury to consider whether “[t]he capital offense was committed for

the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.” Miss. Code

Ann. § 99-19-101(5)(e) (Rev. 2000).


        1
        The jury found unanimously that the capital offense was committed (1) for the purpose of
avoiding or preventing a lawful arrest and (2) while Lynch was engaged, or was an accomplice in the
commission of the crime of robbery.
        2
        The State correctly notes that where an aggravating circumstance is deemed invalid, it is
appropriate for this Court re-weigh the remaining aggravating circumstances. See Miss. Code Ann. §
99-19-105(b); McGilberry v. State, 843 So.2d 21, 29 (Miss. 2003) (holding that if it deems an
aggravator invalid, the Court is authorized to reweigh the remaining aggravators against the mitigating
circumstances and affirm, hold the error to be harmless, or remand for a new sentencing hearing).

                                                     16
¶40.    “The standard for reviewing the sufficiency of the evidence to support an avoiding lawful arrest

instruction is well-settled[.]” Wiley v. State, 750 So. 2d 1193, 1206 (Miss. 1999) (quoting Woodward

v. State, 726 So.2d 524, 541 (Miss. 1997) (internal quotation marks omitted)).

        Each case must be decided on its own peculiar facts. If there is evidence from which it
        may be reasonably inferred that a substantial reason for the killing was to conceal the
        identity of the killer or killers or to 'cover their tracks' so as to avoid apprehension and
        eventual arrest by authorities, then it is proper for the court to allow the jury to consider
        this aggravating circumstance.

Wiley, 750 So. 2d at 1206 (quoting Chase v. State, 645 So.2d 829, 858 (Miss. 1994)). Therefore,

this Court must determine whether “‘there is any credible evidence upon which the jury could find the

aggravating circumstance in question.’” Id. (quoting Woodward, 726 So. 2d at 541).

¶41.    This Court has considered the “preventing lawful arrest” aggravating circumstance in numerous

cases. See, e.g., Hughes v. State, 735 So. 2d 238 (Miss. 1999); Wiley v. State, 750 So. 2d 1193

(Miss. 1999); Walker v. State, 740 So. 2d 873 (Miss. 1999); Edwards v. State, 737 So. 2d 275

(Miss. 1999); Foster v. State, 687 So. 2d 1124 (Miss. 1996); Brown v. State, 682 So. 2d 340 (Miss.

1997); Taylor v. State, 672 So. 2d 1246 (Miss. 1996).

¶42.    The Court’s analysis on this issue is fact-specific. Thus, a review of the record is necessary to

determine whether the aggravating circumstance was properly submitted to the jury. The crimes alleged

here were committed in Boyle, Mississippi. Neither Scott nor Lynch lived in Boyle or Cleveland at the time

of the acts alleged. Therefore, the State argues that Lynch and Scott chose to commit these crimes in a

town where their identities would be unknown. In addition, the State argues that Lynch’s lying down in the

car while he and Scott followed Lee is evidence of Lynch’s attempt to avoid being seen or identified.




                                                     17
¶43.      The State points out that Lynch and Scott, instead of commencing the attack in one of the public

parking lots Lee stopped at before returning home, followed Lee to his home in a secluded, non-public

place before committing the crimes. Moreover, two shots were fired at Mrs. Lee. Mrs. Lee testified that

she opened the garage door to see what was going on between her husband and a tall, African American

man in the garage. When the man saw her, he fired two shots at her. There are no facts in the record that

indicate Lynch and Scott knew that Mrs. Lee was at the Lee residence on the day of the shooting.

Furthermore, Lynch was seen “driving real slow” in the area where Scott left the stolen car on the day of

the robbery and shooting. Lynch was also seen looking toward the old gin, where Scott left the Lees’ car,

his driver’s license, and the .380 pistol. In addition, there is no evidence in the record that Lee was armed

at the time of the shooting.

¶44.      Considering the facts in the record, we find that there is sufficient evidence from which it may be

reasonably inferred that a substantial reason for the killing was to conceal the identity of the killer or killers

or to “cover their tracks” so as to avoid apprehension and eventual arrest by authorities. Therefore, we

hold that the trial judge did not err in charging the jury as to the “preventing lawful arrest” aggravating

factor.

          IV.     Whether the Trial Court Correctly Applied the Precepts of Batson
                  and its Progeny.

¶45.      Lynch next argues that the jury panel was “methodically purged of all African Americans” and that

the trial court erred in overruling his Batson challenge. According to the State, it can be surmised that

there were actually African Americans on the trial jury. In any event, the State contends that the trial judge

required race-neutral reasons for the district attorney’s exercise of peremptory challenges.

¶46.      In evaluating a Batson challenge, this Court applies the following standard of review:



                                                       18
        We give great deference to the trial court's findings of whether or not a peremptory
        challenge was race-neutral.... Such deference is necessary because finding that a striking
        party engaged in discrimination is largely a factual finding and thus should be accorded
        appropriate deference on appeal.... Indeed, we will not overrule a trial court on a Batson
        ruling unless the record indicates that the ruling was clearly erroneous or against the
        overwhelming weight of the evidence....

Walker v. State, 815 So. 2d 1209, 1214 (Miss. 2002) (quoting Thorson v. State, 721 So.2d 590,

593 (Miss.1998)).

¶47.     Under Batson, when a prosecutor exercises a peremptory challenge against a member of a

distinct racial group, he or she must articulate race-neutral reasons for the challenge. Rogers, 847 So. 2d

at 862. The trial judge acts as finder of fact when a Batson issue arises. Walker, 815 So. 2d at 1215.

“The race neutral explanations must be viewed in the light most favorable to the trial court's findings.” Id.

Batson requires a three-pronged inquiry.

¶48.    First, “the party objecting to the peremptory challenge must first make a prima facie showing that

race was the criteria for the exercise of the peremptory strike.” McFarland v. State, 707 So. 2d 166,

171 (Miss. 1997) (citing Batson v. Kentucky, 476 U.S. 79, 96-97, 106 S.Ct. 1712, 1723, 90 L.Ed.2d

69 (1986) ; Stewart v. State, 662 So.2d 552, 557 (Miss.1995)). To establish a prima facie case of

discrimination, the defendant must demonstrate:

        (1) that he is a member of cognizable racial group; (2) that the prosecutor has exercised
        peremptory challenges to remove from the venire members of the defendant's race; (3) and
        the facts and circumstances raised an inference that the prosecutor used his peremptory
        challenges for the purpose of striking minorities.

Snow v. State, 800 So.2d 472, 478 (Miss. 2001). However, where the trial court does not explicitly

rule on whether the defendant established a prima facie case under Batson but nevertheless requires the




                                                    19
State to provide race-neutral reasons for its challenges and the State provides reasons for its challenges,

the issue of whether the defendant established a prima facie case is moot. Id. at 478-79.

¶49.    Second, the burden shifts to the party who exercised the challenge give a race-neutral reason for

exercising the peremptory strike. McFarland, 707 So.2d at 171. For purposes of the second prong

of Batson, “[t]he establishment of a race neutral reason is not a difficult task.” Stewart, 662 So. 2d at

558. It is clear that for purposes of Batson’s second prong, “any reason which is not facially violative of

equal protection will suffice”:

        The second step of this process does not demand an explanation that is persuasive, or
        even plausible. “At this [second] step of the inquiry, the issue is the facial validity of the
        prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's
        explanation, the reason offered will be deemed race neutral.”

Randall v. State, 716 So. 2d 584, 588 (Miss. 1998) (quoting Purkett v. Elem, 514 U.S. 765,

767-68, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)) (brackets in original) (internal citations omitted). After

the State offers its reasons for striking a potential juror, the defendant is allowed to rebut the reasons

offered by the State. Walker, 815 So. 2d at 1215. In the absence of any rebuttal by the defendant, the

trial judge is limited to an examination of the reasons given by the State. Id. In other words, “[i]t is

incumbent upon a defendant claiming that proffered reasons are pretextual to raise the argument before the

trial court. The failure to do so constitutes waiver.” Manning v. State, 735 So. 2d 323, 339 (Miss.

1999) (citing Mack v. State, 650 So. 2d 1289, 1297 (Miss. 1994)).

¶50.    This Court gives great deference to the trial court in “determining whether the offered explanation

under the unique circumstances each case presents is truly a race-neutral reason.” Webster v. State, 754

So. 2d 1232, 1236 (Miss. 2000). This is true because “the demeanor of the attorney making the

challenged is often the best evidence on the issue of race neutrality.” Walker, 815 So. 2d at 1215. “The


                                                     20
race neutral explanations must be viewed in the light most favorable to the trial court’s findings.” Id. The

trial judge must “determine whether a discriminatory motive drives the reasons given for striking a potential

juror.” Id. This determination “will likely turn on a trial judge’s evaluation of a presenter’s credibility and

whether an explanation should be believed.” Id.

¶51.    This Court has set out a non-exhaustive list of race-neutral reasons for the exercise of peremptory

challenges: “living in a “high crime” area, body language, demeanor, prosecutor's distrust of the juror,

inconsistency between oral responses and juror's card, criminal history of juror or relative, social work and

other types of employment, and religious beliefs.” Id. (citing Lockett v. State, 517 So. 2d 1346, 1356-

57 (Miss. 1988)).

¶52.    Under the third prong of Batson, “the trial court must determine whether the objecting party has

met its burden to prove that there has been purposeful discrimination in the exercise of the peremptory.”

McFarland, 707 So. 2d at 171. That is, “the persuasiveness of the justification becomes relevant” in this

step of Batson analysis. Randall, 716 So. 2d at 588. “At the final stage of the Batson analysis, the trial

court determines if the reasons given by the prosecution were pretexts for intentional discrimination.”

Berry v. State, 802 So. 2d 1033, 1040 (Miss. 2001). The Court has specified five indicia of pretext for

use in analyzing a proffered race-neutral reason for peremptory strikes under Batson:

        (1) disparate treatment, that is, the presence of unchallenged jurors of the opposite race
        who share the characteristic given as the basis for the challenge; (2) the failure to voir dire
        as to the characteristic cited; ... (3) the characteristic cited is unrelated to the facts of the
        case; (4) lack of record support for the stated reason; and (5) group-based traits.

Manning v. State, 765 So. 2d 516, 519 (Miss. 2000) (quoting Mack v. State, 650 So. 2d 1289, 1298

(Miss. 1994)). In determining whether a race-neutral explanation is pretextual, the burden remains with




                                                      21
the opponent of the strike. Berry, 802 So. 2d at 1042 (citing Spann v. State, 771 So.2d 883, 904

(Miss. 2000)).

¶53.     It is difficult to ascertain from the trial record as to whether any African Americans served on

Lynch’s trial jury. Certainly, a better record should have been made regarding this issue. Certain jurors

did not complete juror questionnaires, which inquired as to potential jurors’ racial backgrounds. In

addition, the Index to Juror Questionnaires does not list all of the jurors. In some proceedings, the jurors

are referred to by number, and in others they are referred to by name. Collectively, these factors make

reconstructing the jury’s racial composition a difficult task indeed. Lynch contends in his brief that he was

tried without any African Americans on the panel. The report of the trial judge filed with this Court states

that members of Lynch’s race were represented on the jury, however, this report does not reflect the actual

number of African Americans that served on the trial jury. The State surmises that at least two African

Americans served on the jury.

¶54.    This Court has carefully reviewed the record and finds the following is clearly reflected by the

record: The trial judge read the names of the jurors who served and the alternate jurors into the record.

The following names were read as jurors; Ralph, Sabrina, Sherry, Darryl, Deanna, Terry, Natalie, Linda,

Marcy , David, Janice, Michell. The following names were read as alternates: Keleigh, Shelia , Priscilla,

and Dawn. The trial judge also cited the juror numbers of each of these jurors. Examination of the juror

questionnaires corresponding to these respective jurors reveals the following: two of the jurors listed their

race as black on the juror questionnaire; Sherry and Darryl. One of the alternates listed her race as black;

Priscilla. There is no indication in the record of any juror having to be replaced by an alternate. Thus,

contrary to Lynch’s claim, this Court concludes that the State is correct, two jurors who were African

American served on this jury.

                                                     22
¶55.    Lynch argues that peremptory challenges were improperly exercised against five of the potential

jurors. Lynch makes the following assertions regarding the jurors against whom peremptory challenges

were exercised: Juror 22 was challenged because that juror “had tried very hard to get off”; Juror Number

25 was challenged because that juror “didn’t want to serve”; Juror 27 was challenged, in the end, because

“he wanted to get off”; Juror 41 was challenged because she was disabled; and Juror 47 was challenged

because she never had a job. Lynch concludes that these are not race neutral reasons.

¶56.    However, the State contends that Lynch failed to assert any pretext at trial regarding jurors 25, 27,

41, and 47. Thus, pursuant to this Court’s jurisprudence on failure to assert pretext at trial, the State

argues that Lynch is procedurally barred fromraising the Batson issue on appeal as to Jurors 25, 27, 41,

and 47. Manning v. State, 735 So. 2d 323, 339 (Miss. 1999) (holding that defendant’s failure to raise

issue of pretext at trial constitutes a waiver); Manning v. State, 726 So. 2d 1152, 1182 (Miss. 1998)

(holding that defendant waived his right to contest the striking of potential jurors where defense counsel

offered no rebuttal to the prosecutor's challenges) (overruled on other grounds by Weatherspoon v.

State, 732 So.2d 158, 162 (Miss. 1999)); and Woodward v. State, 726 So. 2d 524, 533 (Miss. 1997)

(holding that “[i]n the absence of an actual proffer of evidence by the defendant to rebut the State's neutral

explanations, this Court may not reverse on this point”).

¶57.    During jury selection, Lynch argued that although the State accepted some African American

jurors, the State only exercised challenges against African Americans:

        BY THE COURT: Okay. [Defense Counsel has] finally pushed the right button. Mr.
        [District Attorney], [Defense Counsel] is saying that even though you have left some blacks
        on, the only strikes that you have used have been against black jurors. And in view of that,
        I’m going to ask that you give a race neutral reason..., starting with [Juror] number 4.




                                                     23
Thus, Lynch claims the trial court did not make an express finding that Lynch established a prima facie case

under Batson. This issue of whether Lynch made a prima facie case is moot, however, since the trial court

required race-neutral reasons for the State’s challenges. Each of the peremptory challenges raised in this

appeal will be considered individually.

        Juror Number 22

¶58.    Beginning with Juror 22, the record reflects the following argument before the trial judge:

        BY MR. [DISTRICT ATTORNEY] MELLEN: She tried very hard to get off saying she
        was the only parent and she had hardships. She answered in her questionnaire that what
        she watches is cartoons on T.V. But anyway, she had tried very hard to get off.

        BY THE COURT: Okay. That’s a race-neutral reason.

        BY MR. [DEFENSE COUNSEL] SHAH: Your Honor, we would point out to the Court
        that the State accepted Juror No. 14 that also had a hardship.

        BY THE COURT: Did she also watch cartoons that she feels she needs to get back to?

        BY MR. SHAH: Well, I never heard that.

        BY THE COURT: Well, [Mr. Mellen] said it’s in her questionnaire.

        BY MR. SHAH: And we would also point out that the State accepted Juror No. 10 who
        also said that there was a hardship.

        BY MR. MELLEN: Judge, that’s incorrect. Juror No. 10 did not say a hardship. Juror
        No. 14 you may recall said she had taken care of her problems and you commended her
        for having done it.

        BY THE COURT: Okay. Well, the Court accepts the explanation given for S-2 which
        is juror 22 with the defense’s objections noted....

¶59.    The thrust of Lynch’s argument on appeal is the trial judge erred when he accepted as a race-

neutral reason Juror 22's desire to get off the jury. This Court has held that “[a] juror's reluctance to serve

or preoccupation with matters outside the courtroom is a valid race-neutral reason for purposes of



                                                      24
Batson.” Manning, 735 So. 2d at 340 (citing Walker v. State, 671 So.2d 581, 627-28

(Miss.1995)). In Brewer v. State, 725 So. 2d 106, 122 (Miss. 1998), this Court considered a Batson

challenge where the State struck an African American juror who “had attempted to get off jury duty from

the start.” The trial court concluded that the State offered sufficiently race-neutral reasons for the strike

and this Court deferred to that conclusion. Id. at 122.

¶60.    While not raised by Lynch in this appeal, it appears that defense counsel at trial attempted to argue

pretext, i.e., disparate treatment, as to Juror 22's hardship response - that is, defense counsel pointed out

that the State did not challenge two other jurors that cited hardships. “Disparate treatment is strong

evidence of discriminatory intent.” Manning, 765 So. 2d at 516. However, in pretext analysis “disparate

treatment is only one factor to be considered by the trial court; it is not necessarily dispositive of

discriminatory treatment.” Berry, 802 So. 2d at 1039 (citing Manning, 765 So. 2d at 520-21). “Where

multiple reasons lead to a peremptory strike, the fact that other jurors may have some of the individual

characteristics of the challenged juror does not demonstrate that the reasons assigned are pretextual.” Id.

at 1040 (citing Manning v. State, 726 So.2d 1152, 1186 (Miss. 1998)). Here, the district attorney cited

Juror 22's desire to get off the jury and the fact that she liked to watch cartoons on television in addition

to the alleged pretextual reason, i.e., that she had a hardship.

¶61.    Based on the facts in the record and controlling case law, we find that there was no Batson

violation in this case as to Juror Number 22. First, the trial judge required the District Attorney to provide

race-neutral reasons for his peremptory challenges after defense counsel raised Batson. The trial judge,

to whom this Court affords great deference in the context of Batson fact-finding, concluded on the record

that the State’s reasons for striking Juror Number 22 were race-neutral. In addition, Lynch’s argument



                                                     25
that a juror’s desire to avoid jury service is not a race-neutral reason is contrary to this Court’s holdings

in Manning and Walker. Therefore, the trial court did not clearly err in concluding that Juror 22 was

challenged for race-neutral reasons. Finally, although not raised by Lynch in this appeal, there is no

evidence of pretext in the State’s exercise of its challenge since the District Attorney pointed out two

reasons for the challenge in addition to the fact that Juror 22 had a hardship.

        Juror Number 25

¶62.    With respect to Juror Number 25, the record reflects the following argument before the trial court:

        BY MR. [DISTRICT ATTORNEY] MELLEN: Your Honor, this is the gentleman who
        was concerned about the fact that he’s a foreman out there and somebody having to fill in
        for him. He’s the only one. He’s got nine people who work under him and he seem [sic]
        to be quite concerned over that, so that’s the reason I challenged him.

        BY THE COURT: Accepted....

The record shows that defense counsel made no attempt to rebut the State’s assertions as to Juror 25.

¶63.    In Finley v. State, 725 So.2d 226, 240 (Miss. 1998), the defendant met the burden imposed

under the first prong of Batson, showing that State used three of four peremptory challenges against black

jurors. The State gave race-neutral reasons for its challenges and therefore satisfied prong two. Id.

Specifically, the State challenged one of the African American jurors because “she had stated that she

needed to be at work.” The juror’s “principal wanted her there and she [felt] like she could get by for a

couple of days but she [didn’t] want to be [on the jury] all week.” Id. The trial court concluded that the

proffered reasons were race-neutral. Id. Noting the great deference afforded to a trial court’s

determination of “whether the offered explanation under the unique circumstances of the case is truly a

race-neutral reason,” this Court concluded that the trial court did not clearly err in denying Finley’s Batson

motion. Id.


                                                     26
¶64.    In Taylor v. State, 733 So.2d 251, 255 (Miss. 1999), the defense attempted to strike two jurors

because they were needed at work. First, the defense sought to strike a juror because he was a pension

specialist and might be needed at work. Id. Moreover, the defense attempted to strike a juror because

he was self-employed. The trial court rejected the defense’s assertions that these reasons were race-

neutral. Id. This Court concluded that “the explanations were neutral in that they were not facially

discriminatory.” Id. at 259. “Therefore, the circuit court was clearly erroneous in failing to accept as

race-neutral the explanations the defense gave for striking the two jurors.” Id.

¶65.    We find that no Batson violation occurred with respect to Juror 25. First, this Court’s holdings

in Manning v. State, 735 So. 2d at 339, Manning v. State, 726 So. 2d at 1182, and Woodward

v. State make clear that a defendant’s failure to assert pretext at trial constitutes a waiver of this issue on

appeal. The record indicates that Mr. Shah, Lynch’s trial counsel, failed to rebut the District Attorney’s

assertions as to this peremptory challenge. However, notwithstanding the procedural bar, this Court has

held that concern regarding a potential juror’s employment is a race-neutral reason for exercising a

peremptory strike. The trial judge is limited to an examination of the reasons given by the State when the

defendant fails to rebut the State’s proffered reasons. Moreover, this Court affords great deference to the

trial judge’s determination of race-neutrality. Thus, the trial court did not clearly err in deeming race-neutral

the State’s reason regarding Juror 25's employment.

        Juror Number 27

¶66.    The trial court heard the following arguments regarding Juror Number 27:

        BY MR. MELLEN: And [Juror] Nathaniel Carter, Your Honor, my concern was that we
        had dealt with Carter in Shaw, Mississippi, and I think I was Nathaniel, a Nathaniel Carter
        who is a police officer, and we’ve had some difficulty in getting some cooperation out of



                                                      27
        Shaw and had words with him, that is, with the law enforcement down there at grand juries
        and whatever, and we felt that that was encountering putting on a jury.

        BY THE COURT: Okay. That is accepted. I could say more but I don’t think it would
        be proper, but it’s accepted based on what has been said.

Again, defense counsel made no rebuttal arguments as to the State’s assertions.

¶67.    In Lockett, this Court set out a non-exhaustive list of race-neutral reasons that have been accepted

in other jurisdictions. Lockett, 517 So. 2d at 1356-57. The Court concluded that a prosecutor’s distrust

of a potential juror is a race-neutral reason for challenging the juror. See also Walker, 815 So. 2d at

1215.

¶68.    The State argues here that the District Attorney’s comments show a distrust of Juror Number 27.

The arguments show that the District Attorney had prior dealings with Juror 27 and that the two had

“words” in the past. That is, the record reflects that the District Attorney had some type of professional

difficulty with Juror 27.

¶69.    We find that no Batson violation occurred as to Juror 27. First, this issue is waived as to Juror

27 since defense counsel failed to rebut the State’s proffered reasons before the trial court. Alternatively,

regardless of the procedural bar, considering the issue on its merits it appears from the record that the

District Attorney’s proffered reason for challenging Juror 27 was race neutral. This Court has held that

distrust of a potential juror is a race-neutral reason for striking that juror. As the record indicates, the

District Attorney had encountered professional difficulties with this potential juror in the past. Thus, it is

reasonable to infer that the District Attorney did not trust the juror to be impartial and fair as a juror in this

case. Given the great deference afforded to the trial court in judging the credibility of a party’s proffered

reasons for challenging a juror, we find that the trial court did not clearly err in accepting as a race-neutral

reason the District Attorney’s past professional difficulties with Juror 27.

                                                       28
        Juror Number 41

¶70.    The trial court heard the following argument regarding Juror 41:

        BY MR. MELLEN: And then [Juror] 41, Your Honor, is a disabled person and I’m
        concerned about her serving on a jury in that capacity. I’m not against disabled people,
        but this is serving on a capital murder jury, and I’m not sure that that might be affecting her
        - it says that on the jury information.
        BY THE COURT: Okay. Mr. Shah, I believe you have another strike left.

The record indicates that defense counsel did not rebut the State’s arguments regarding Juror 41.



¶71.    In Berry, the State challenged a potential juror on the ground that she was disabled. During voir

dire, the juror indicated that she had diabetes. 802 So. 2d at 1043. Considering the race-neutrality of a

challenge based on physical disability, this Court concluded that “[n]umerous other jurisdictions have held

that the concern about inattentiveness of a potential juror because of a medical condition, and about his or

her inability to sit through course of trial because of the condition, is a race-neutral reason.” Id. at 1044.



¶72.    Because defense counsel failed to rebut the State’s assertions regarding the reasons for its

peremptory challenge, this issue is procedurally barred from review on appeal. Alternatively, considering

the issue on its merits, we find that no Batson violation occurred regarding Juror 41. As discussed above,

this Court has held that concerns regarding a potential juror’s physical disabilities is a sufficiently race-

neutral reason for peremptorily challenging a juror. We note that this record does not disclose the type of

disability of this juror. Accordingly, we remind and caution District Attorneys, defense counsel, and trial

judges to adequately inform the appellate courts with sufficient facts in order that we might be able to more

fully and adequately address issues such as this one. This Court has stated, “We point out the difficulties

involved in every Batson determination in order to admonish parties that the failure to provide this Court

                                                     29
with a complete record for our review only complicates matters.” Hatten v. State, 628 So. 2d 294, 298

(Miss. 1993). However, we are bound by the record at hand. Pursuant to our precedent case law, we

hold that a disability of a juror is a race-neutral reason. We also note that because the District Attorney

based the peremptory challenge on the juror’s physical disability, which is a race-neutral reason under this

Court’s decisions, and the trial judge is limited to an examination of the State’s proffered reasons where

the defendant fails to rebut those reasons, we find that the trial judge did not clearly err in accepting the

State’s proffered race-neutral reasons as to its challenge of Juror 41.

        Juror Number 47

¶73.    The record reflects the following arguments before the trial court with respect to Juror Number

47:

        BY MR. MELLEN: We would strike [Juror] Number 47....47 being that she said I’ve
        never worked. She got her children and I asked her that question if she’s ever been
        employed and she said no, I’ve never had a job. So I would object to her being on
        there....

        BY THE COURT: All right. Both of those [reasons as to Juror 47 and another juror] are
        accepted as race neutral reasons....

Defense counsel made no rebuttal to the State’s argument regarding Juror 47.

¶74.    “This Court has recognized unemployment as a race-neutral reason and sufficient basis for a

peremptory strike.” Manning, 735 So. 2d at 340 (citing Woodward, 726 So.2d at 530). In addition,

this Court has held:

        Pursuant to Batson, this Court has acknowledged that there are infinite number of grounds
        upon which a prosecutor reasonably may peremptorily strike a juror so long as the
        prosecutor presents clear and reasonably specific explanations for those reasons....Among
        the reasons accepted as race-neutral are ... unemployment [and] employment
        history....

Berry v. State, 802 So.2d at 1046 (emphasis added) (internal citations omitted).

                                                     30
¶75.    We find that there was no Batson violation as to Juror Number 47. Again, this issue is

procedurally barred due to defense counsel’s failure to rebut the State’s assertions before the trial court.

In addition, this Court’s case law clearly shows that unemployment is a race-neutral reason for exercising

a peremptory strike. Thus, notwithstanding the procedural bar, we find that the trial court did not clearly

err in concluding that the State’s reasons as to this challenge were race-neutral.

¶76.    For the foregoing reasons this Court holds that no Batson violation occurred in this case as to

Jurors 22, 25, 27, 41, and 47.

        V.      Whether the Verdict Was Against the Overwhelming Weight of the
                Evidence.

        VI.     Whether the Evidence Was Sufficient to Support the Verdict.

        VII.    Whether the Trial Court Properly Overruled the Motion for a
                Directed Verdict of Acquittal at the Close of the State’s Case-in-
                chief and at the Close of All the Evidence.

¶77.    Lynch argues that the verdict was against the overwhelming weight of the evidence and that the

evidence at trial did not support the verdict. The State argues that the verdict is in accord with the weight

and sufficiency of the evidence presented. With respect to his motion for directed verdict, Lynch

apparently argues3 that because there are no eyewitnesses and no confessions in this case, Weathersby

v. State, 165 Miss. 207, 209, 147 So. 481, 481 (1933), requires this Court to accept Lynch’s version

of the events surrounding the crimes alleged. Lynch argues that he had no knowledge, no criminal intent,



        3
          Lynch raises the Weathersby issue in his sixth assignment of error, i.e., that the verdict was
against the overwhelming weight of the evidence. In his discussion, Lynch does not argue that
Weathersby mandates a directed verdict in the case sub judice. Rather, Lynch simply states that the
Court must accept as true Lynch’s version of the events surrounding the crimes. However, the State
concludes, as we do, that Lynch’s discussion of the case amounts to an assertion that Weathersby
requires a directed verdict in this case. It will thus be treated as such.

                                                     31
and did not assist or cooperate in the shooting of Lee. Lynch argues that he simply went with a friend to

look for a car. Though he admits giving the gun to Scott, Lynch claims the exchange was done several

months prior to the murder and not immediately preceding the crime. However, initially Lynch denied

knowledge about the gun. The State asserts that, based on the facts of this case, Weathersby is

inapplicable because Lynch’s version is completely unreasonable.

¶78.    This Court, in evaluating the weight of the evidence in a criminal trial, applies the following standard

of review:

        In determining whether a jury verdict is against the overwhelming weight of the evidence,
        this Court must accept as true the evidence which supports the verdict and will reverse
        only when convinced that the circuit court has abused its discretion in failing to grant a new
        trial. Only in those cases where the verdict is so contrary to the overwhelming weight of
        the evidence that to allow it to stand would sanction an unconscionable injustice will this
        Court disturb it on appeal. As such, if the verdict is against the overwhelming weight of the
        evidence, then a new trial is proper.

Kingston v. State, 846 So.2d 1023, 1025-26 (Miss. 2003) (quoting Pruitt v. State, 807 So.2d 1236,

1243 (Miss. 2002). In reviewing the sufficiency of evidence, the Court applies the following standard:

        When on appeal one convicted of a criminal offense challenges the legal sufficiency of the
        evidence, our authority to interfere with the jury's verdict is quite limited. We proceed by
        considering all of the evidence--not just that supporting the case for the prosecution--in the
        light most consistent with the verdict. We give prosecution the benefit of all favorable
        inferences that may reasonably be drawn fromthe evidence. If the facts and inferences so
        considered point in favor of the accused with sufficient force that reasonable men could not
        have found beyond a reasonable doubt that he was guilty, reversal and discharge are
        required. On the other hand, if there is in the record substantial evidence of such quality
        and weight that, having in mind the beyond a reasonable doubt burden of proof standard,
        reasonable and fair-minded jurors in the exercise of impartial judgment might have reached
        different conclusions, the verdict of guilty is thus placed beyond our authority to disturb.

Vaughn v. State, 712 So.2d 721, 723 (Miss. 1998) (quoting McFee v. State, 511 So.2d 130, 133-34

(Miss.1987)). Finally, in reviewing the denial of a motion for JNOV,




                                                      32
        [T]his Court will consider the evidence in the light most favorable to the appellee, giving
        that party the benefit of all favorable inferences that may be reasonably drawn from the
        evidence. If the facts so considered point so overwhelmingly in favor of the appellant that
        reasonable men could not have arrived at a contrary verdict, we are required to reverse
        and render. On the other hand if there is substantial evidence in support of the verdict, that
        is, evidence of such quality and weight that reasonable and fair minded jurors in the
        exercise of impartial judgment might have reached different conclusions, affirmance is
        required.

Kingston, 846 So. 2d at 1025 (quoting Pruitt, 807 So. 2d at 1243).

¶79.    Where a defendant is charged with aiding and abetting a felony, the prosecution “must establish in

the proof, ‘beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis that the

crime charged was committed by another, and to further prove ... that the accused was present, consenting,

aiding, and abetting such person in the commission of the crime charged.’” Brooks v. State, 763 So.2d

859, 861 (Miss. 2000) (quoting Van Buren v. State, 498 So.2d 1224, 1227 (Miss. 1986)). Moreover,

this Court has held:

        Aiding and abetting is defined to be the offense committed by those persons who, although
        not the direct perpetrators of a crime, are yet present at its commission, doing some act
        to render aid to the actual perpetrator. ... And such aiding and abetting may be manifested
        by acts, words, signs, motions, or any conduct which unmistakably evinces a design to
        encourage, incite or approve of the crime, or even by being present, with the intention of
        giving assistance, if necessary, though such assistance may not be called into requisition.

Swinford v. State, 653 So.2d 912, 915 (Miss. 1995) (quoting Wynn v. State, 63 Miss. 260 (1885))

(internal quotation marks omitted).

¶80.    In considering a defendant’s motion for directed verdict,“the trial judge must accept as true all

evidence favorable to the State and all reasonable inferences flowing therefrom. Evidence favorable to the

defendant must be disregarded.” Walters v. State, 720 So.2d 856, 866 (Miss. 1998) (quoting Ellis v.

State, 667 So.2d 599, 612 (Miss.1995)). However, in Weathersby, 165 Miss. at 209, 147 So. at 481,

this Court concluded that if “the defendant or the defendant’s witnesses are the only eyewitnesses to the

                                                     33
homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material

particulars by a credible witness or witnesses for the state, or by the physical facts or by the facts of

common knowledge.” Thus, “[a] defendant who met the Weathersby Rule would be entitled to a

directed verdict of acquittal.” Walters, 720 So. 2d at 866 (quoting Blanks v. State, 547 So.2d 29, 33

(Miss. 1989)). The Weathersby Rule, however, “is only applicable where the defendant's version is

reasonable, unopposed by other testimony, and is uncontradicted by the physical evidence.” Turner v.

State, 796 So.2d 998, 1002 (Miss. 2001). That is, “[a]s stated in Weathersby, and many of our

subsequent decisions, this rule has no application where the defendant's version is patently unreasonable,

or contradicted by physical facts.” Taylor v. State, 795 So.2d 512, 517 (Miss. 2001).

¶81.    As the record indicates and Lynch concedes in his brief, there is no dispute that Kevin Scott shot

and killed Richard Lee on November 15, 1995. However, at trial, Lynch maintained that he did not aid

and abet Kevin Scott in the shooting of Richard Lee. First, while he knew Scott had a gun, Lynch claims

that he thought that Scott intended to purchase a car in Cleveland that day. Lynch also maintained that

during the time Scott followed Lee from the liquor store, Lynch was lying down in the car. According to

Lynch, he did not drive the car that the two drove to Cleveland until they left the Lee residence. Moreover,

Lynch told the police that he did not see Kevin Scott shoot Richard Lee. Lynch stated that he left the Lee

residence, he was driving the car slowly because the brake shoes were bad. Moreover, Lynch testified

that he gave the gun to Kevin Scott in August of 1995, approximately three months before the shooting.



¶82.    However, the State showed that Lynch was seen driving slowly around the area in which the Lees’

car, Scott’s identification, jacket, and the murder weapon were found. Two eyewitnesses who knew

Lynch testified that Lynch stopped the car he was driving, got out, and looked across the field toward the

                                                     34
old gin area (where the car, jacket, identification, and gun were found). The State also linked the murder

weapon to Lynch by testimony of D’Angelo Johnson although, according to Lynch, the gun passed through

his hands several months before the shooting actually occurred. Lynch claimed all three of these witnesses

were lying. The State points out that Lynch and Scott rode around Cleveland and never went to a used

car dealership. Moreover, Lynch drove away from the Lee residence in the car that he and Scott were

riding in originally. When he left the Lee residence, Lynch claim that he drove the car to Scott’s house in

Davenport.

¶83.    Given the deferential standards of review and the facts adduced at trial, we find that these three

assignments of error are without merit. Considering the weight of the evidence, accepting as true the

evidence which supports the verdict, it is clear that the circuit court has not abused its discretion in failing

to grant a new trial. Thus, we find that verdict should not be disturbed on appeal. Also, considering the

sufficiency of the evidence, giving the prosecution the benefit of all favorable inferences that may reasonably

be drawn from the evidence, there is in the record substantial evidence of such quality and weight that,

having in mind the beyond a reasonable doubt burden of proof standard, reasonable and fair-minded jurors

in the exercise of impartial judgment might have reached different conclusions. Thus, we conclude that the

verdict of guilty should stand and that the trial court did not err in refusing the Lynch’s motion for JNOV.

Finally, we find that Lynch cannot benefit from the Weathersby Rule. Lynch arguably does not meet the

“eyewitness” requirement of the rule, which expressly requires that “the defendant or the defendant’s

witnesses to the homicide are the only eyewitnesses to the homicide.” In his statement to the police, Lynch

stated that he did not see Scott shoot Lynch. Thus, Lynch was not an eyewitness to a homicide.

Moreover, there is a strong argument that Lynch’s theory of what happened on the day of the shooting is

completely unreasonable. Several facts, when considered together, indicate the unreasonableness of

                                                      35
Lynch’s version of the events: (1) Lynch knew Scott had a weapon and wanted to get a car in Cleveland;

(2) instead of going to used car lots in Cleveland, Scott drove around retail shopping centers until he saw

a car that looked like the one he wrecked; (3) even when Scott found a suitable car, he did not offer to

purchase it; and (4) Lynch and Scott followed Mr. Lee from store to store until he went home; (5) Lynch

initially lied about the gun to officers; and (6) there were several major inconsistencies in Lynch’s statement

and trial testimony.

        VIII. Whether the Hearsay Statements of the Appellant’s Co-defendant,
              Allegedly Made When the Appellant Arrived at the Co-defendant’s
              Home, Were Admissible.

        IX.      Whether the Hearsay Statements of the Appellant’s Co-defendant,
                 Allegedly Made While Riding to Boyle, Mississippi, Were
                 Admissible.

¶84.    Lynch argues that the trial court erred in excluding as hearsay portions of his testimony on direct

examination. He claims that the testimony was not offered to prove the truth of the matter asserted–that

Scott killed Lee–but rather was offered to show Lynch's lack of criminal intent to kill. He further argues

that the excluded testimony concerned out-of-court confessions which constitute exceptions to the hearsay

rule according to Miss. R. Evid. 803(24). He cites Kennedy v. State, 278 So. 2d 404, 406 (Miss.

1973), Keys v. State, 635 So. 2d 845, 848-49 (Miss. 1994), and Terry v. State, 718 So. 2d 1115

(Miss. 1998), for the proposition that a jury should be allowed to hear any testimony which supports his

theory of defense.

¶85.    The State counters that Lynch's failure to make a record by offer of proof concerning the substance

of his objectionable testimony handicaps this Court's consideration of the issue. The State also argues that

the testimony does not qualify as exception to the hearsay rule, and the substance of the testimony does not

help Lynch prove a lack of criminal intent. Furthermore, the jury heard Lynch's own testimony of his lack

                                                      36
of intent, the best evidence of this alleged fact. Accordingly, this Court rejects Lynch's arguments because

we find that the statements are inadmissible hearsay and Lynch did not create an adequate record from

which this Court could examine the merits of his claim. The trial court did not err in excluding this evidence.

¶86.    The admission of testimonial evidence is left to the sound discretion of the trial court and it will be

found in error only when it has abused that discretion. Harris v. State, 731 So. 2d 1125, 1130 (Miss.

1999). Reversible error may be found only where a substantial right of a party is affected and the party

claiming error raised an objection or made an offer of proof at trial. Miss. R. Evid. 103(a). See also

Mitchell v. State, 792 So. 2d 192, 217 (Miss. 2001); Murphy v. State, 453 So. 2d 1290, 1293-94

(Miss. 1984); Brown v. State, 338 So. 2d 1008, 1009-10 (Miss. 1976); Miss. R. Evid. 103(d). Where

no offer of proof has been made, this Court will not speculate about the intentions of the defendant's

counsel when asking the question. Blue v. State, 674 So. 2d 1184, 1212-13 (Miss. 1996), overruled

on other grounds, King v. State, 784 So. 2d 884 (Miss. 2001).

¶87.    The transcript contains the following two exchanges at trial:

                 Q:      [DEFENSE COUNSEL] And what did Mr. Scott tell you the
                         reason or purpose of him going to Cleveland?

                 A:      [LYNCH] To get a car.

                         BY MR. [DISTRICT ATTORNEY] MELLEN: Objection, Your Honor.
                 That’s hearsay.

                 ***

                 Q:      [DEFENSE COUNSEL] And after you arrived back in Davenport,
                         where specifically did you go?

                 A:      [LYNCH] To Scott’s house.

                 Q:      And when you arrived at Mr. Scott’s house, who, if anyone, was there?


                                                     37
                 A:       [Scott] was there

                 Q:       And tell the members of the jury what happened next.

                 A:       I asked him what happened. He said he had shot somebody. He said he
                          don’t know if he killed someone --

                          BY MR. MELLEN: Your Honor.

                          BY THE COURT: One moment. Sustained.

In both exchanges, Lynch's counsel failed to argue that such testimony was not hearsay nor did he preserve

for the record the testimony he was attempting to elicit from Lynch. Lynch did not give advance notice to

the State that he would introduce this hearsay evidence, and he was permitted to testify about his lack of

intent to kill that day. Furthermore, his statement to police which was admitted into evidence contains a

line of questioning and answers very similar to the ones Lynch provided in the excerpt above.

¶88.    The statements Lynch made are hearsay. M.R.E. 801(c). They do not qualify as an exception

under M.R.E. 803(24) because they do not possess circumstantial guarantees of trustworthiness, Lynch's

testimony was more probative of his lack of intent than Scott's alleged statements, and he did not provide

advance notice to the State of his intent to testify about the substance of Scott's statements. Even if the

statements were not properly objectionable hearsay, we find no use for this testimony other than letting the

jury hear that Scott admitted he was the shooter and wanted to steal a car, and, as a result, the jury should

not treat Lynch as harshly. If, in fact, this was its purpose, it has been served. If not, the trial court cannot

be found in error because the Court does not know the substance or purpose of the testimony because

defense counsel failed to make an offer of proof. The authority Lynch cites in support of his argument that

a jury should be allowed to hear any evidence supporting the defendant's theory of the case specifically

states that its application is subject to the rules of evidence. Cf. Terry, 718 So. 2d at 1122 (“All evidence



                                                      38
that is proposed by either side to be used to further its theory, hypothesis, or argument, must first comply

with the Mississippi Rules of Evidence . . .”) (citing Kennedy and Keys). These rules dictate exclusion

in this instance because the testimony is hearsay. M.R.E. 802. Therefore, we find the trial court did not

err in excluding Lynch's testimony as hearsay on the two occasions discussed above.

        X.      Whether the Sentence of Death in this Case Conforms with
                the Federal and State Constitutions.

¶89.    Lynch argues the evidence was insufficient to impose the death penalty citing Enmund v.

Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). In the same breath he argues his

sentence is disproportionate to his participation in this crime. The State responds that there was sufficient

evidence for imposition of the death penalty and the sentence is not disproportionate to the crime.

¶90.    This Court views the evidence and all reasonable inferences in the light most consistent with the

verdict when the defendant challenges the sufficiency of the evidence to support a death sentence. It will

not overturn the sentence unless it can conclude that no rational trier of fact could have reached its

conclusion beyond a reasonable doubt. Bishop v. State, 812 So. 2d 934, 948 (Miss. 2002). “The death

penalty cannot be given to an aider and abettor who has not killed, attempted to kill, or contemplated that

life would be taken.” Id. (citing Enmund, 458 U.S. at 788-801). According to Miss. Code Ann. § 99-

19-105(3)(c), this Court must determine whether the death sentence imposed is excessive or

disproportionate considering the crime and the defendant.

¶91.    When the jury returned the death sentence, it specifically found that Lynch intended to kill Richard

Lee and contemplated that lethal force would be used. It also found that the aggravating circumstances of

the offense outweighed the mitigating circumstances.




                                                     39
¶92.    The record indicates that Lynch provided Scott with the gun used to commit the murder. Although

the gun transfer was made several months prior to the murder, Lynch knew Scott retrieved the gun shortly

before they drove to Cleveland. Lynch also knew that the purpose of the trip to Cleveland was to get a

car exactly like the one Scott had wrecked and to do so by force if necessary. He had several

opportunities to walk away and discourage the crime while it was in progress. Lynch could have

abandoned the plan by leaving the car at any point while he and Scott cruised store parking lots looking

for a car, and Lynch did exit the vehicle once in Cleveland to go to the restroom. Lynch could have left

the car at any point where Lee stopped before arriving at home, and throughout this entire time, he could

have tried to convince Scott not to commit the crime. Lynch married himself to the use of the gun to steal

the Lee's car and the resulting consequences by choosing to remain in the car and let the crime go

unchecked, serving arguably, as the State suggests, as both lookout and potential getaway driver. It is also

reasonable to infer that Lynch knew if Lee were allowed to live after the robbery, he would provide

information to police which would result in Lynch's arrest. So would Mrs. Lee explain why Scott attempted

to kill her. Thus the jury's conclusion that Lynch intended Lee's death and contemplated the use of lethal

force is substantiated by the record.

¶93.    Lynch offered mitigation evidence to refute the State’s aggravating evidence. Lynch called Chief

Estes as a mitigating witness. Estes testified that Lynch had “no prior record and had been no problem in

jail.” He also testified that Steve Ivy had on November 16, 1995, given a statement to him in which Ivy

stated that he had not seen Lynch on November 15, 1995, which is in stark contrast to his trial testimony.

¶94.    Lynch’s mother, Willie May Lynch Sims, testified that Lynch was only 19 years old at the time of

this incident. She stated that he was a “nice child” and “ain’t been in trouble or nothing.” She further

testified that Lynch had graduated from high school, had grades of A’s and B’s, and was “fixing to go to


                                                    40
the Navy”; “he had already signed up.” She stated that Lynch had a child, born after this incident, to his

girlfriend Crystal.

¶95.    Additionally, The Report Of The Trial Judge Where Death Penalty Is Imposed reflects that Lynch’s

intelligence level is: Medium (IQ. 70–100).

¶96.    On this record we conclude that the sentence of death was not imposed under the influence of

passion, prejudice or any other arbitrary factor. Further, the evidence supports the jury’s finding of a

statutory aggravating circumstance.

¶97.    This Court has found that the death penalty is not disproportionate for an aider and abettor who

does not necessarily do the actual killing in several instances. See Bishop v. State, 812 So. 2d 934

(Miss. 2002); Simmons v. State, 805 So. 2d 452 (Miss. 2001); Smith v. State, 729 So. 2d 1191

(Miss. 1998); Ballenger v. State, 667 So. 2d 1242 (Miss. 1995); Carr v. State, 655 So. 2d 824

(Miss. 1995); Abram v. State, 606 So. 2d 1015 (Miss. 1992); Leatherwood v. State, 435 So. 2d

645 (Miss. 1983). These cases found the death penalty a proportionate sentence for an aider and abettor

who did not kill the victim.

¶98.    Smith and Abram are the most factually similar to Lynch's case. Between the two, the Smith

case is more on point. Clyde Smith and his brother planned to rob a store one evening. That night, they

were seen at a liquor store before it was robbed and its owner murdered. From a fingerprint left on a bag

found inside the store it can be concluded that Clyde's brother killed the victim while Clyde played the part

of lookout outside. Clyde knew his brother had a gun. Smith, 729 So. 2d at 1195-99. Donald Abram

confessed that he and a co-defendant shooter decided to rob a store for money. His co-defendant picked

up a shotgun and shells “for security” before the crime. The shooter went inside John's Quick Stop and

called him inside. There Abram put the money from the register in a bag and went back out to the car.

                                                     41
The shooter then shot the cashier and a store customer who had driven up during the robbery. Abram,

606 So. 2d at 1024. The case was reversed for other reasons, but this Court found there to be sufficient

evidence to impose the death penalty. Id. at 1043. In summary, this Court finds that there is good

authority to sustain the death penalty as proportional.

¶99.    We find that there is sufficient evidence to support the death penalty here and that it is not excessive

or disproportionate to the penalty imposed in similar cases, see Appendix, considering both the crime and

the defendant.

                                             CONCLUSION

¶100. For the above-discussed reasons, we find that the trial court did not err in instructing the jury on

the State's burden of proof in the guilt and sentencing phases of trial. Neither did the court err in applying

Batson and its progeny during voir dire, nor when the trial court denied the motion for a directed verdict

and excluded two hearsay statements. The evidence is sufficient to support the jury's guilty verdict and the

verdict is not against the overwhelming weight of the evidence. There is sufficient evidence to support the

finding of the aggravating circumstance of preventing a lawful arrest. The death sentence withstands

constitutional scrutiny and is not cruel and unusual punishment under the circumstances, and it is not

disproportional to the crime. Therefore, this Court affirms the judgment and sentence in all respects.

¶101. CONVICTION OF CAPITAL MURDER AND SENTENCE OF DEATH BY
LETHAL INJECTION AFFIRMED.

     WALLER AND COBB, P.JJ., EASLEY, CARLSON, DICKINSON AND
RANDOLPH, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. DIAZ, J.,
NOT PARTICIPATING.




                                                      42
43
                                  APPENDIX

              DEATH CASES AFFIRMED BY THIS COURT

Byrom v. State, --- So.2d --- (Miss. 2004).
Howell v. State, 860 So.2d 704 (Miss. 2003).
Howard v. State, 853 So.2d 781 (Miss. 2003).
Walker v. State, 815 So.2d 1209 (Miss. 2002). *following remand.
Bishop v. State, 812 So.2d 934 (Miss. 2002).
Stevens v. State, 806 So.2d 1031 (Miss. 2002).
Grayson v. State, 806 So.2d 241 (Miss. 2002).
Knox v. State, 805 So.2d 527 (Miss. 2002).
Simmons v. State, 805 So.2d 452 (Miss. 2002).
Berry v. State, 802 So.2d 1033 (Miss. 2001).
Snow v. State, 800 So.2d 472 (Miss. 2001).
Mitchell v. State, 792 So.2d 192 (Miss. 2001).
Puckett v. State, 788 So.2d 752 (Miss. 2001). * following remand.
Goodin v. State, 787 So.2d 639 (Miss. 2001).
Jordan v. State, 786 So.2d 987 (Miss. 2001).
Manning v. State, 765 So.2d 516 (Miss. 2000). *following remand.
Eskridge v. State, 765 So.2d 508 (Miss. 2000).
McGilberry v. State, 741 So. 2d 894 (Miss. 1999).
Puckett v. State, 737 So. 2d 322 (Miss. 1999).      *remanded for Batson hearing.
Manning v. State, 735 So. 2d 323 (Miss. 1999). *remanded for Batson hearing.
Hughes v. State, 735 So. 2d 238 (Miss. 1999).
Turner v. State, 732 So. 2d 937 (Miss. 1999).
Smith v. State, 729 So. 2d 1191 (Miss. 1998).
Burns v. State, 729 So. 2d 203 (Miss. 1998).
Jordan v. State, 728 So. 2d 1088 (Miss. 1998).

                                        i
              DEATH CASES AFFIRMED BY THIS COURT
                                  (continued)
Gray v. State, 728 So. 2d 36 (Miss. 1998).
Manning v. State, 726 So. 2d 1152 (Miss. 1998).
Woodward v. State, 726 So. 2d 524 (Miss. 1997).
Bell v. State, 725 So. 2d 836 (Miss. 1998).
Evans v. State, 725 So. 2d 613 (Miss. 1997).
Brewer v. State, 725 So. 2d 106 (Miss. 1998).
Crawford v. State, 716 So. 2d 1028 (Miss. 1998).
Doss v. State, 709 So. 2d 369 (Miss. 1996).
Underwood v. State, 708 So. 2d 18 (Miss. 1998).
Holland v. State, 705 So. 2d 307 (Miss. 1997).
Wells v. State, 698 So. 2d 497 (Miss. 1997).
Wilcher v. State, 697 So. 2d 1087 (Miss. 1997).
Wiley v. State, 691 So. 2d 959 (Miss. 1997).
Brown v. State, 690 So. 2d 276 (Miss. 1996).
Simon v. State, 688 So. 2d 791 (Miss.1997).
Jackson v. State, 684 So. 2d 1213 (Miss. 1996).
Williams v. State, 684 So. 2d 1179 (Miss. 1996).
Davis v. State, 684 So. 2d 643 (Miss. 1996).
Taylor v. State, 682 So. 2d. 359 (Miss. 1996).
Brown v. State, 682 So. 2d 340 (Miss. 1996).
Blue v. State, 674 So. 2d 1184 (Miss. 1996).
Holly v. State, 671 So. 2d 32 (Miss. 1996).
Walker v. State, 671 So. 2d 581(Miss. 1995).
Russell v. State, 670 So. 2d 816 (Miss. 1995).
Ballenger v. State, 667 So. 2d 1242 (Miss. 1995).



                                        ii
                      DEATH CASES AFFIRMED BY THIS COURT
                                         (continued)
       Davis v. State, 660 So. 2d 1228 (Miss. 1995).
       Carr v. State, 655 So. 2d 824 (Miss. 1995).
       Mack v. State, 650 So. 2d 1289 (Miss. 1994).
       Chase v. State, 645 So. 2d 829 (Miss. 1994).
       Foster v. State, 639 So. 2d 1263 (Miss. 1994).
       Conner v. State, 632 So. 2d 1239 (Miss. 1993).
       Hansen v. State, 592 So. 2d 114 (Miss. 1991).

        *Shell v. State, 554 So. 2d 887 (Miss. 1989), Shell v. Mississippi, 498 U.S. 1 (1990)
reversing, in part, and remanding, Shell v. State, 595 So. 2d 1323 (Miss. 1992) remanding for new
sentencing hearing.

       Davis v. State, 551 So. 2d 165 (Miss. 1989).
       Minnick v. State, 551 So. 2d 77 (Miss. 1989).


        *Pinkney v. State, 538 So. 2d 329 (Miss. 1989), Pinkney v. Mississippi, 494 U.S. 1075
(1990) vacating and remanding Pinkney v. State, 602 So. 2d 1177 (Miss. 1992) remanding for new
sentencing hearing.

        *Clemons v. State, 535 So. 2d 1354 (Miss. 1988), Clemons v. Mississippi, 494 U.S. 738
(1990) vacating and remanding, Clemons v. State, 593 So. 2d 1004 (Miss. 1992) remanding for new
sentencing hearing.

       Woodward v. State, 533 So. 2d 418 (Miss. 1988).

       Nixon v. State, 533 So. 2d 1078 (Miss. 1987).

       Cole v. State, 525 So. 2d 365 (Miss. 1987).

       Lockett v. State, 517 So. 2d 1346 (Miss. 1987).

       Lockett v. State, 517 So. 2d 1317 (Miss. 1987).

       Faraga v. State, 514 So. 2d 295 (Miss. 1987).


                                               iii
                      DEATH CASES AFFIRMED BY THIS COURT
                                        (continued)


 *Jones v. State, 517 So. 2d 1295 (Miss. 1987), Jones v. Mississippi, 487 U.S. 1230 (1988)
vacating and remanding, Jones v. State, 602 So. 2d 1170 (Miss. 1992) remanding for new
sentencing hearing.
Wiley v. State, 484 So. 2d 339 (Miss. 1986).
Johnson v. State, 477 So. 2d 196 (Miss. 1985).
Gray v. State, 472 So. 2d 409 (Miss. 1985).
Cabello v. State, 471 So. 2d 332 (Miss. 1985).
Jordan v. State, 464 So. 2d 475 (Miss. 1985).
Wilcher v. State, 455 So. 2d 727 (Miss. 1984).
Billiot v. State, 454 So. 2d 445 (Miss. 1984).
Stringer v. State, 454 So. 2d 468 (Miss. 1984).
Dufour v. State, 453 So. 2d 337 (Miss. 1984).
Neal v. State, 451 So. 2d 743 (Miss. 1984).
Booker v. State, 449 So. 2d 209 (Miss. 1984).
Wilcher v. State, 448 So. 2d 927 (Miss. 1984).
Caldwell v. State, 443 So. 2d 806 (Miss. 1983).
Irving v. State, 441 So. 2d 846 (Miss. 1983).
Tokman v. State, 435 So. 2d 664 (Miss. 1983).
Leatherwood v. State, 435 So. 2d 645 (Miss. 1983).
Hill v. State, 432 So. 2d 427 (Miss. 1983).
Pruett v. State, 431 So. 2d 1101 (Miss. 1983).
Gilliard v. State, 428 So. 2d 576 (Miss. 1983).
Evans v. State, 422 So. 2d 737 (Miss. 1982).




                                              iv
                    DEATH CASES AFFIRMED BY THIS COURT
                                         (continued)
King v. State, 421 So. 2d 1009 (Miss. 1982).
Wheat v. State, 420 So. 2d 229 (Miss. 1982).
Smith v. State, 419 So. 2d 563 (Miss. 1982).
Johnson v. State, 416 So. 2d 383 (Miss.1982).
Edwards v. State, 413 So. 2d 1007 (Miss. 1982).
Bullock v. State, 391 So. 2d 601 (Miss. 1980).
Reddix v. State, 381 So. 2d 999 (Miss. 1980).
Jones v. State, 381 So. 2d 983 (Miss. 1980).
Culberson v. State, 379 So. 2d 499 (Miss. 1979).
Gray v. State, 375 So. 2d 994 (Miss. 1979).
Jordan v. State, 365 So. 2d 1198 (Miss. 1978).
Voyles v. State, 362 So. 2d 1236 (Miss. 1978).
Irving v. State, 361 So. 2d 1360 (Miss. 1978).
Washington v. State, 361 So. 2d 6l (Miss. 1978).
Bell v. State, 360 So. 2d 1206 (Miss. 1978).
 * Case was originally affirmed in this Court but on remand from U. S. Supreme Court, case was
remanded by this Court for a new sentencing hearing.




                                             v
                 DEATH CASES REVERSED AS TO GUILT PHASE
                        AND SENTENCE PHASE

Flowers v. State, 842 So.2d 531 (Miss. 2003).
Randall v. State, 806 So. 2d 185 (Miss. 2002).
Flowers v. State, 773 So.2d 309 (Miss. 2000).
Edwards v. State, 737 So. 2d 275 (Miss. 1999).
Smith v. State, 733 So. 2d 793 (Miss. 1999).
Porter v. State, 732 So.2d 899 (Miss. 1999).
Kolberg v. State, 704 So. 2d 1307 (Miss. 1997).
Snelson v. State, 704 So. 2d 452 (Miss. 1997).
Fusilier v. State, 702 So. 2d 388 (Miss. 1997).
Howard v. State, 701 So. 2d 274 (Miss. 1997).
Lester v. State, 692 So. 2d 755 (Miss. 1997).
Hunter v. State, 684 So. 2d 625 (Miss. 1996).
Lanier v. State, 684 So. 2d 93 (Miss. 1996).
Giles v. State, 650 So. 2d 846 (Miss. 1995).
Duplantis v. State, 644 So. 2d 1235 (Miss. 1994).
Harrison v. State, 635 So. 2d 894 (Miss. 1994).
Butler v. State, 608 So. 2d 314 (Miss. 1992).
Jenkins v. State, 607 So. 2d 1171 (Miss. 1992).
Abram v. State, 606 So. 2d 1015 (Miss. 1992).
Balfour v. State, 598 So. 2d 731 (Miss. 1992).
Griffin v. State, 557 So. 2d 542 (Miss. 1990).
Bevill v. State, 556 So. 2d 699 (Miss. 1990).
West v. State, 553 So. 2d 8 (Miss. 1989).
Leatherwood v. State, 548 So. 2d 389 (Miss. 1989).
Mease v. State, 539 So. 2d 1324 (Miss. 1989).



                                            vi
              DEATH CASES REVERSED AS TO GUILT PHASE
                       AND SENTENCE PHASE
                            (continued)

Houston v. State, 531 So. 2d 598 (Miss. 1988).

West v. State, 519 So. 2d 418 (Miss. 1988).

Davis v. State, 512 So. 2d 129l (Miss. 1987).

Williamson v. State, 512 So. 2d 868 (Miss. 1987).

Foster v. State, 508 So. 2d 1111 (Miss. 1987).

Smith v. State, 499 So. 2d 750 (Miss. 1986).

West v. State, 485 So. 2d 681 (Miss. 1985).

Fisher v. State, 481 So. 2d 203 (Miss. 1985).

Johnson v. State, 476 So. 2d 1195 (Miss. 1985).

Fuselier v. State, 468 So. 2d 45 (Miss. 1985).

West v. State, 463 So. 2d 1048 (Miss. 1985).

Jones v. State, 461 So. 2d 686 (Miss. 1984).

Moffett v. State, 456 So. 2d 714 (Miss. 1984).

Lanier v. State, 450 So. 2d 69 (Miss. 1984).

Laney v. State, 421 So. 2d 1216 (Miss. 1982).




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


Reddix v. State, 547 So. 2d 792 (Miss. 1989).
Wheeler v. State, 536 So. 2d 1341 (Miss. 1988).
White v. State, 532 So. 2d 1207 (Miss. 1988).
Bullock v. State, 525 So. 2d 764 (Miss. 1987).
Edwards v. State, 441 So. 2d 84 (Miss. l983).
Dycus v. State, 440 So. 2d 246 (Miss. 1983).
Coleman v. State, 378 So. 2d 640 (Miss. 1979).




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

King v. State, 784 So.2d 884 (Miss. 2001).
Walker v. State, 740 So.2d 873 (Miss. 1999).
Watts v. State, 733 So.2d 214 (Miss. 1999).
West v. State, 725 So. 2d 872 (Miss. 1998).
Smith v. State, 724 So. 2d 280 (Miss. 1998).
Berry v. State, 703 So. 2d 269 (Miss. 1997).
Booker v. State, 699 So. 2d 132 (Miss. 1997).
Taylor v. State, 672 So. 2d 1246 (Miss. 1996).
   *Shell v. State, 554 So. 2d 887 (Miss. 1989), Shell v. Mississippi, 498 U.S. 1 (1990)
reversing, in part, and remanding, Shell v. State 595 So. 2d 1323 (Miss. 1992) remanding for new
sentencing hearing.

  *Pinkney v. State, 538 So. 2d 329 (Miss. 1989), Pinkney v. Mississippi, 494 U.S. 1075
(1990) vacating and remanding, Pinkney v. State, 602 So. 2d 1177 (Miss. 1992) remanding for
new sentencing hearing.

  *Clemons v. State, 535 So. 2d 1354 (Miss. 1988), Clemons v. Mississippi, 494 U.S. 738
(1990) vacating and remanding, Clemons v. State, 593 So. 2d 1004 (Miss. 1992) remanding for
new sentencing hearing.

  *Jones v. State, 517 So. 2d 1295 (Miss. 1987), Jones v. Mississippi, 487 U.S. 1230 (1988)
vacating and remanding, Jones v. State, 602 So. 2d 1170 (Miss. 1992) remanding for new
sentencing hearing.
Russell v. State, 607 So. 2d 1107 (Miss. 1992).
Holland v. State, 587 So. 2d 848 (Miss. 1991).
Willie v. State, 585 So. 2d 660 (Miss. 1991).
Ladner v. State, 584 So. 2d 743 (Miss. 1991).
Mackbee v. State, 575 So. 2d 16 (Miss. 1990).




                                            ix
                    DEATH CASES REVERSED AS TO
            PUNISHMENT AND REMANDED FOR A NEW TRIAL
                   ON SENTENCING PHASE ONLY
                            (continued)

Berry v. State, 575 So. 2d 1 (Miss. 1990).
Turner v. State, 573 So. 2d 657 (Miss. 1990).
State v. Tokman, 564 So. 2d 1339 (Miss. 1990).
Johnson v. State, 547 So. 2d 59 (Miss. 1989).
Williams v. State, 544 So. 2d 782 (Miss. 1989); sentence aff'd 684 So. 2d 1179 (1996).
Lanier v. State, 533 So. 2d 473 (Miss. 1988).
Stringer v. State, 500 So. 2d 928 (Miss. 1986).
Pinkton v. State, 481 So. 2d 306 (Miss. 1985).
Mhoon v. State, 464 So. 2d 77 (Miss. 1985).
Cannaday v. State, 455 So. 2d 713 (Miss. 1984).
Wiley v. State, 449 So. 2d 756 (Miss. 1984); resentencing affirmed, Wiley v. State, 484 So. 2d
339 (Miss. 1986), cert. denied Wiley v. Mississippi, 479 U.S. 1036 (1988); resentencing
ordered, Wiley v. State, 635 So. 2d 802 (Miss. 1993) following writ of habeas corpus issued
pursuant to Wiley v. Puckett, 969 So. 2d 86, 105-106 (5th Cir. 1992); resentencing affirmed,
Wiley v. State, 95-DP-00149, February 13, 1997 (rehearing pending).
Williams v. State, 445 So. 2d 798 (Miss. 1984). * Case was originally affirmed in this Court but
on remand from U. S. Supreme Court, case was remanded by this Court for a new sentencing
hearing.




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