                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2012-CT-01032-SCT

CHRISTOPHER LEE BAXTER a/k/a CHRIS
BAXTER a/k/a CHRISTOPHER BAXTER

v.

STATE OF MISSISSIPPI

                            ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                        05/15/2012
TRIAL JUDGE:                             HON. RICHARD W. McKENZIE
TRIAL COURT ATTORNEYS:                   ANTHONY N. LAWRENCE, III
                                         CHERIE WADE
                                         THOMAS M. FORTNER
                                         WILLIAM B. KIRKSEY
COURT FROM WHICH APPEALED:               GEORGE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                  OFFICE OF STATE PUBLIC DEFENDER
                                         BY: STACY L. FERRARO
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: ELLIOTT GEORGE FLAGGS
DISTRICT ATTORNEY:                       ANTHONY N. LAWRENCE, III
NATURE OF THE CASE:                      CRIMINAL - FELONY
DISPOSITION:                             AFFIRMED - 08/06/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



      EN BANC.

      WALLER, CHIEF JUSTICE, FOR THE COURT:

¶1.   In the summer of 2010, a George County sheriff’s deputy attempted to pull over a

Chevrolet pickup truck. In the truck were Christopher Baxter and Brandy Williams. The

truck did not stop, and a high-speed chase ensued. In an effort to apprehend the two, the
George County Sheriff’s Department set up a roadblock. The truck, however, did not stop,

and Sheriff Garry Welford was run over and killed.

¶2.    Baxter and Williams were charged with capital murder and tried separately. Baxter

was convicted and sentenced to life in prison without the possibility of parole. He appealed,

and the Court of Appeals affirmed his conviction. This Court subsequently granted Baxter’s

petition for certiorari.

¶3.    Finding no reversible error at the trial-court level or at the Court of Appeals, we

affirm. We write, however, to discuss the differences between Baxter v. State and Williams

v. State. Compare Baxter v. State, No. 2012-KA-01032-COA, 2014 WL 3715840 (Miss. Ct.

App. July 29, 2014), reh’g denied (Nov. 25, 2014), cert. granted (Miss. Feb. 19, 2015), and

Williams v. State, No. 2012-KA-01839-COA, 2014 WL 6756335, at *1 (Miss. Ct. App. Dec.

2, 2014).

                           FACTS AND PROCEDURAL HISTORY

¶4.    The facts and procedural history are taken from the Court of Appeals opinion.

               When Baxter failed to appear at a sentencing hearing on July 19, 2010,
       [the trial court issued] a bench warrant . . .for his arrest. On July 21, 2010,
       Sheriff Welford told Deputy Bobby Daffin about the bench warrant and
       instructed him to be on the lookout for Baxter. Deputy Daffin knew Baxter and
       his girlfriend, Brandy Williams, from their prior encounters with law
       enforcement. Later that same day, Deputy Daffin saw Williams driving her
       father’s maroon Chevrolet Z71 pickup truck in Lucedale, Mississippi. Deputy
       Daffin had seen . . . Williams[] driving the truck before, and he knew that
       Baxter was usually in the truck with her. Deputy Daffin could see the arm of
       a passenger, who appeared to be leaning back in the seat in order to hide. He
       could not see the passenger’s face, but based on his suspicion that the


                                             2
passenger was Baxter, he made a u-turn on Old Highway 63 and drove toward
the truck to further investigate.

        As Deputy Daffin neared the truck . . . the driver fled at a high rate of
speed. After witnessing the truck pass several cars in a no-passing zone and
force other vehicles off the road, Deputy Daffin initiated his blue lights . . . .
The driver refused to stop, leading law enforcement on a seventeen-mile chase,
with speeds reaching over 100 miles per hour. Based on information received
from Deputy Daffin regarding the truck’s location, Sheriff Welford and
Deputies John Keel, Duane Bowlin, and Justin Bowlin positioned themselves
at the intersection of Bexley and Howard Roads to intercept the truck. The
sheriff and deputies were wearing uniforms; and although their vehicles were
unmarked, the vehicles’ blue lights were activated. Approximately two
minutes after arriving at the intersection, the deputies heard a vehicle
approaching. [They then saw] Williams’s truck . . . speeding toward them.
According to one of the deputies at the scene, it seemed that the truck never
attempted to slow down, but rather continued to accelerate through the
intersection. The deputies attempted to get out of the . . . way. The truck
swerved around the unmarked cars, striking Sheriff Welford in the process.
Sheriff Welford was thrown to the side of the road, [but the truck did not stop].
Paramedics were called, and Sheriff Welford was taken by helicopter from the
scene to a hospital in Mobile, Alabama, where he died. None of the officers
could positively identify the driver at the time Sheriff Welford was struck.
None of the deputies saw the driver’s face.

       Williams’s truck was found wrecked in a creek. The center of the
truck’s hood was noticeably dented. Baxter and Williams were found [that]
morning . . . , hiding in a trailer in the woods. Baxter was in a closet. He
refused to surrender his hands for the officers to handcuff him, so he was
tased. He then complied and was arrested.

         Once in custody, Baxter waived his Miranda rights and admitted to his
participation in the high-speed chase. He confessed that he was the driver for
the entire pursuit. However, after he was informed that the driver could be
determined from security-camera footage, he admitted that Williams was
initially driving, but explained that they switched seats before the sheriff was
hit. He was adamant that Williams played no part in the crime, only acting at
his direction. He stated that they fled because a deputy had “got behind us” and
that he then “took [the deputy] for a ride . . . down a bunch of roads.” He saw
patrol vehicles as he rounded the curve at the intersection of Bexley and

                                        3
      Howard Roads, and also saw deputies standing in the road. He admitted that
      he “might of nudged one of them or something” with the truck’s bumper.
      Although his memory was unclear, Baxter believed that immediately after this
      happened, he looked at Williams and said, “I may have f * * *ed up.” He then
      went around a curve, lost control of the truck, and the truck slid off the road
      into a ditch. He and Williams fled on foot through the woods and sought
      refuge in an abandoned trailer. [Law enforcement video recorded] Baxter’s
      confession, [and it] was admitted into evidence.

             All but one of the witnesses testified that a female was driving during
      the chase. The witness who saw Williams’s vehicle near the intersection where
      the sheriff was struck testified that she saw a male driver. Deputy Bowlin, who
      saw the vehicle at the moment of impact, testified that the passenger [appeared
      to have] the same hairstyle as Baxter, but he did not get a clear look. None of
      the deputies could describe the driver. Robin Howell, Baxter’s aunt, testified
      that she spoke with Williams during the chase, and Williams said, “They’re
      everywhere. They’re everywhere. They’re all over me. I’ve got to change
      roads.” Howell then heard Baxter in the background say, “Just go then. Just
      go.”

             Both Baxter and Williams were indicted for the [depraved heart] capital
      murder of Sheriff Welford. Baxter’s trial was held May 7-11, 2012. Williams
      was tried in September 2012. At both trials, it was disputed whether Baxter or
      Williams was the driver of the truck. Despite Baxter’s confession that he was
      the driver, his defense at trial was that he was merely a passenger in the truck
      driven by Williams, and that he did not aid or abet Williams in the crime. Both
      Baxter and Williams were found guilty of [depraved heart] murder and
      sentenced to life in the custody of the Mississippi Department of Corrections
      without eligibility for parole. Baxter . . . appeal[ed].

Baxter v. State, No. 2012-KA-01032-COA, 2014 WL 3715840, at **1-2 (Miss. Ct. App. July

29, 2014), reh’g denied (Nov. 25, 2014), cert. granted (Miss. Feb. 19, 2015).




                                             4
¶5.    In addition to the above facts, it is important to note that the trial court found Baxter

ineligible for the death penalty under Chase v. State1 based on the testimony of Baxter’s and

the State’s expert witnesses at a pretrial hearing.

¶6.    The Court of Appeals affirmed Baxter’s conviction, and Baxter timely filed a petition

for certiorari, which this Court granted. We address two issues:2

       1.       As the jury’s mid-deliberation question demonstrated, giving
                instruction S-6A did not cure the confusion created by instructions
                S-3A, S-5 and S-7, which relieved the state of its burden of proof
                under the law of accomplice responsibility.

       2.       The circuit court erred in admitting Baxter’s involuntary,
                unreliable and coerced “confession.”

                                       DISCUSSION

       1.       As the jury’s mid-deliberation question demonstrated, giving
                instruction S-6A did not cure the confusion created by instructions
                S-3A, S-5 and S-7, which relieved the state of its burden of proof
                under the law of accomplice responsibility.


¶7.    We review jury instructions under the abuse-of-discretion standard. Reith v. State,

135 So. 3d 862, 864-65 (Miss. 2014).This Court must read the instructions as a whole to




       1
           Chase v. State, 873 So. 2d 1013 (Miss. 2004).
       2
          Baxter also asserts the trial court erroneously admitted evidence of his prior
convictions. The Court of Appeals found that Baxter waived his objection to the admission
of his prior convictions when he withdrew his objection to the State admitting an unedited
version of his videorecorded confession. The unredacted confession included references to
prior convictions and drug use. Because we agree with the Court of Appeals on this issue,
we decline to address it.

                                               5
determine if the jury was properly instructed. Wilson v. State, 967 So. 2d 32, 36-37 (Miss.

2007) (citing Burton ex rel. Bradford v. Barnett, 615 So. 2d 580, 583 (Miss. 1993)).

¶8.    Baxter argues the Court of Appeals has ruled inconsistently regarding jury instruction

S-7. He also argues, that the instruction allowed for a conviction if the jury concluded that

his failure to appear for sentencing contributed to the sheriff’s death.

¶9.    In Baxter’s appeal, the Court of Appeals first found Baxter’s objection to S-7

procedurally barred because his objection on appeal was different from his objection at trial.

Baxter v. State, No. 2012-KA-01032-COA, 2014 WL 3715840, at *17 (Miss. Ct. App. July

29, 2014), reh’g denied (Nov. 25, 2014), cert. granted (Miss. Feb. 19, 2015). The court

nevertheless went on to provide that instructions S-6A and S-3A, when read with S-7,

properly informed the jury of the law. Id.

¶10.   In Williams v. State, however, the Court of Appeals reached a different conclusion.

There, the trial court granted a jury instruction identical to S-7. Williams, 2014 WL 6756335,

at *8. On appeal, the Court of Appeals found the instruction improperly shifted the burden

of proof because S-7 was cumulative of three other aiding and abetting instructions provided

to the jury. Williams, 2014 WL 6756335, at *8. The Court of Appeals reasoned that, given

the other instructions and the possible confusion created by S-7, it was impossible to say the

jury did not read S-7 as requiring Williams to prove she did not commit an act that

contributed to the sheriff’s death. See Williams, 2014 WL 6756335, at *8.




                                              6
¶11.   On its face, it appears the Court of Appeals first found that the aiding and abetting

instructions clarified S-7. Therefore, there was no error. Baxter, 2014 WL 3715840, at *17.

Then, later in the case of Baxter’s codefendant, the Court of Appeals found that the aiding

and abetting instructions made S-7 confusing, thereby shifting the burden to the defendant.

Williams, 2014 WL 6756335, at *8.

¶12.   Putting aside the Court of Appeals’ opinion in Williams, we first address Baxter’s

allegations regarding jury instruction S-7.

       Jury Instruction S-7 in Baxter v. State

¶13.   At trial, Baxter objected to S-7 as cumulative and confusing. Later, in his motion for

judgment notwithstanding the verdict or, alternatively, a new trial, Baxter argued that S-7

was not only cumulative, but that it also “unconstitutionally diminished the State’s burden

of proof.” We find this objection sufficiently preserved this issue for appellate review. Baxter

argues that the instruction was overly broad and would allow a conviction even if the jury

found his failure to appear for sentencing contributed to the sheriff’s death.3 That is, the

instruction allegedly diminished the State’s burden to show Baxter actually caused the death.

While we agree that S-7 is imprecise, when read with the other instructions in the context of


       3
         In his petition for certiorari, Baxter claims the Court of Appeals, in finding his
argument regarding S-7 on appeal procedurally barred, ignored “the thrust” of Sandstrom
v. Montana, 442 U.S. 510, 517, 99 S. Ct. 2450, 2456, 61 L. Ed. 2d 39 (1979). That case,
however, does not address procedural bars regarding jury instructions. There, the United
States Supreme Court addressed the potential for jury confusion created by instructions that
allowed a jury to presume malice based on the defendant’s voluntary acts. Sandstrom, 442
U.S. at 517. The case is of no moment in the instant matter.

                                               7
this case, we cannot say that the trial judge abused his discretion in granting it. Under our

precedent, we must determine if S-7, when read in the context of the other instructions,

“fairly announce[d] the law of the case and create[d] no injustice . . . .” Wilson v. State, 967

So. 2d 32, 36-37 (Miss. 2007) (citing Coleman v. State, 697 So. 2d 777, 782 (Miss. 1997)

(quoting Collins v. State, 691 So. 2d 918 (Miss. 1997))). If so, “no reversible error will be

found.” Id. “In other words, if all instructions taken as a whole fairly, [although] not

necessarily perfectly, announce the applicable rules of law, no error results.” Id. (citing

Milano v. State, 790 So. 2d 179, 184 (Miss. 2001)).

¶14.   The jury instructions at issue provide:

       S-3A (in pertinent part):

       If you find from the evidence in this case, beyond a reasonable [doubt] that:

              (1) On or about July 21, 2010, in George County, Mississippi;
              (2) CHRISTOPHER LEE BAXTER, alone or in conjunction
              with another, killed Garry Welford, a human being and peace
              officer, while Garry Welford was acting in his official capacity
              as a peace officer, with knowledge that Garry Welford was a
              peace officer,
              (3) and that said killing was done without authority of law by
              any means or in any manner, in the commission of an act
              eminently dangerous to others and evincing a depraved heart,
              regardless of human life, although without any premeditated
              design to effect the death of any particular individual . . . .

       S-5:

               One who willfully, unlawfully, and feloniously aids, abets, assists, or
       otherwise encourages the commission of a crime is just as guilty under the law
       as if he or she had committed the whole crime with his or her own hands.


                                               8
       S-6A:

              The guilt of a defendant in a criminal case may be established without
       proof that the defendant did every act constituting the offense alleged. The law
       recognizes that, ordinarily, anything a person can do for himself may also be
       accomplished by that person through the direction of another person as his or
       her agent, or by acting in concert with, or under the direction of, another
       person or persons in a joint effort or enterprise.
              If another person is acting under the direction of the defendant or if the
       defendant joins another person and performs acts with the intent to commit a
       crime, then the law holds the defendant responsible for the acts and conduct
       of such other persons just as though the defendant had committed the acts or
       engaged in such conduct.
              Before any defendant may be held criminally responsible for the acts
       of others, it is necessary that the accused deliberately associate himself in some
       way with the crime and participate in it with the intent to bring about the
       crime.
              Of course, mere presence at the scene of a crime and knowledge that a
       crime is being committed are not sufficient to establish that a defendant either
       directed or aided and abetted the crime unless you find beyond a reasonable
       doubt that the defendant was a participant and not merely a knowing spectator.

       S-7:

              The Court instructs the Jury that it is not necessary that an unlawful act
       of the Defendant be the sole cause of death. Responsibility attaches if the act
       of the Defendant contributed to the death. If you believe the Defendant
       committed an unlawful act or aided and abetted another in committing an
       unlawful act that contributed to the death of Garry Welford, then the
       Defendant is not relieved of responsibility by the fact that other causes may
       have also contributed to his death.

¶15.   In addition to these instructions, the court provided a general instruction informing

the jury that the State had the burden to prove every essential element beyond a reasonable

doubt, and that the defendant enjoyed a presumption of innocence until the State proved guilt

beyond a reasonable doubt.


                                               9
¶16.   In Baxter’s case, the State put forth two theories. The first was that Baxter was driving

at the time the truck struck Sheriff Welford; and therefore, he was guilty as the principal

actor. Or, alternatively, Baxter was not driving the truck at all, but he was directing and

controlling Williams, who was driving when the truck hit Sheriff Welford. And therefore,

Baxter was guilty as an aider and abettor. Baxter raised as a defense that the Sheriff’s

Department, by negligently continuing in a dangerous pursuit and by negligently conducting

the roadblock, was equally responsible for the sheriff’s death. This raises the question,

regarding jury instruction S-7, of whether the instructions, taken as a whole fairly, though not

necessarily perfectly, announce the rule of law regarding aiding and abetting and contributory

causes.

¶17.   Here, Baxter does not dispute that S-6A properly instructed the jury on aiding and

abetting. See Milano v. State, 790 So. 2d 179, 185 (Miss. 2001); Jones v. State, 95 So. 3d

641, 648-49 (Miss. 2012) (find an aiding-and-abetting instruction substantially similar to S-

6A correctly informed the jury on aiding and abetting).4 Likewise, Baxter does not challenge

S-5 as an incorrect statement of law; though he did object to S-5 as commutative of S-6A.



       4
         Under Mississippi law, “[a]iding and abetting is ‘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.’” Graham v. State, 120
So. 3d 382, 389 (Miss. 2013), reh’g denied (Sept. 12, 2013) (quoting Smith v. State, 237
Miss. 498, 115 So. 2d 318, 322 (1959) (internal citation omitted)). That is, “any person who
is present at the commission of a criminal offense and aids, counsels, or encourages another
in the commission of that offense is an aider and abettor and is equally guilty with the
principal offender. Id. (citing Swinford v. State, 653 So. 2d 912, 915 (Miss. 1995)).

                                              10
See Hoops v. State, 681 So. 2d 521, 533 (Miss. 1996) (“Any person who is present at the

commission of a criminal offense and aids, counsels, or encourages another in the

commission of that offense is an aider and abettor and is equally guilty with the principal

offender.”).

¶18.   Whether instruction S-7 is a precise statement of the law, however, is at issue. As

noted above, the trial court provided two correct jury instructions addressing aiding and

abetting. In contrast, a comparison with S-7 and an examination of the relevant caselaw

reveals that it is an incorrect statement of aiding-and-abetting law. See Milano, 790 So. 2d

at 185 (adopting the Fifth Circuit’s Pattern Jury Instruction on Aiding and Abetting, which

is same instruction as S-6 given in this case).5 However, the State did not offer S-7 as an

aiding-and-abetting instruction. At trial, the prosecution stated the instruction went to

multiple contributing causes of an injury, and it was under this context that the trial court

granted the instruction. Baxter raised no objection to the instruction in this regard.

¶19.   The instruction, as the State provided at trial, was drawn from cases in which there

is more than one cause of an injury. Specifically, the State cited a case in which a victim was

struck on the head with a club and subsequently died due, in part, to maltreatment by his

attending physician. See Fairman v. State, 513 So. 2d 910, 913 (Miss. 1987) (holding that

the test for responsibility in such circumstance “is whether the act of the accused contributed



       5
         Instruction S-6 in this case is identical to the Milano instruction with the exception
of the last paragraph, which the parties omitted by agreement.

                                              11
to the death, and, if it did, he is not relieved of responsibility by the fact that other causes also

contributed.”). This instruction goes to Baxter’s defense that the Sheriff’s Department’s

conduct contributed to Sheriff Welford’s death.

¶20.   The trial court, however, also permitted aiding-and-abetting language in the

instruction. This makes it understandable why Baxter’s objections at trial and on appeal to

S-7 are couched in the terms of aiding-and-abetting law. But that does not change the fact

that the instruction was offered and accepted as a contributing-cause instruction.

¶21.   While the instruction’s language is problematic, our law does not require jury

instructions to be perfectly worded, so long as the instructions as a whole fairly instruct the

jury and create no injustice. See Wilson, 967 So. 2d at 36-37; Milano, 790 So. 2d at 184.

Here, the jury received two instructions, S-5 and S-6A, that fairly stated our aiding-and-

abetting law. Baxter also raised a contributing-cause defense, and therefore the trial court did

not abuse his discretion in granting an instruction on this point. Given that aiding and

abetting, as well as contributing causes, were issues in this trial, we cannot say, taking the

instructions as a whole, that the jury was not fairly informed of the relevant law or that S-7

created an injustice. See Wilson, 967 So. 2d at 36-37; Milano, 790 So. 2d at 184.

¶22.   Moreover, S-7, contrary to Baxter’s argument, did not allow the jury to convict him

for the sheriff’s murder because he failed to appear at his sentencing hearing. The thrust of

Baxter’s argument is that the phrase “unlawful act” in the instruction is so broad that the jury

could have convicted him for murder simply because he missed his court date. Arguably, one


                                                 12
could read the instruction as Baxter claims. But, given the context of the case, when read

with the other jury instructions, it is clear that the instruction is referring to the unlawful acts

of evading law enforcement or encouraging another to do so.

¶23.   A central theme of the State’s case was that Baxter unlawfully fled from law

enforcement or encouraged Williams to do the same. There was testimony that while they

were fleeing from the police, Williams said “they’re everywhere, they’re everywhere,” to

which Baxter replied “go, just go.” This testimony came from Baxter’s aunt, who was

speaking with Williams on the phone during the chase. The cell phone records show that the

call to Williams was at 2:49 and lasted eighty-eight seconds. The George County Sheriff’s

Department’s dispatch log shows that, at 2:53, deputies reported that the sheriff had been

struck. While the record does not clarify who Williams was referring to as “they,” a

reasonable juror could infer from the circumstance that “they” were the police. And given

the close time proximity between the phone call and the time the deputies reported that the

sheriff had been hit, a reasonable juror could just as easily infer “they” specifically referred

to the roadblock where the sheriff was killed. This inference is bolstered by the fact that the

record suggests that only one deputy was actually in pursuit of Williams and Baxter during

the chase.

¶24.    Additionally, in his confession, Baxter stated he wouldn’t let Williams out of the

truck. He stated that he told her “b**** go” when the deputy got behind them, and he warned

her not to stop. And after the sheriff was struck, Baxter said he made Williams go with him


                                                13
to the trailer to evade the police. Baxter also confessed that he was driving at the time the

sheriff was hit. As a result, it appears that Baxter was either driving or directing Williams

during the entire event. See Graham, 120 So. 3d at 389 (aiding and abetting is the offense

committed by a person present at the commission of a crime who is not the principal but

commits some act with the intent to render aid to the actual perpetrator).

¶25.      Accordingly, we find the instruction, when read with the other instructions and given

the context of the case, referred to the unlawful act of evading law enforcement or

encouraging Williams to do so.

¶26.      Baxter also claims that the Court of Appeals erred in applying a similar analysis and

reaching the same conclusion. Baxter claims the jury instructions as a whole could not cure

S-7 because the instructions, taken together, confused the jury. As evidence of this confusion,

Baxter, for the first time on appeal, points to a note the jury sent the trial judge. The note

stated:

          In Item 2 of the capital murder directive, is “in conjunction with” all that is
          required? Explanation: we are having some conflict between “in conjunction
          with” and if the Defendant was “directing.” 3:51 pm.

The trial judge, without objection, responded:

          Members of the jury, you have received all of the evidence introduced during
          the course of this trial as well as the instructions of the Court. Please continue
          your deliberations.

¶27.      The record contains no evidence that this note referenced any confusion as to S-7.

The two instructions from which it seems the “in conjunction with” and “directing” language


                                                 14
were taken were instructions S-3A and S-6, both of which were correct statements of the law

(S-3 contained “in conjunction with;” S-6 referenced “directing;” S-7 mentioned neither).

And, importantly here, if the jury found Baxter killed the sheriff in conjunction with Brandy

Williams, or that the sheriff was killed while Baxter was directing Brandy Williams to drive

recklessly in disregard for human life, he was guilty of depraved-heart murder either way.

¶28.   As a result, we hold that, while S-7 was imprecise, we cannot say that the instruction,

when read with the other instructions, constituted reversible error. The jury received two

correct instructions, and the overwhelming evidence at trial supported Baxter’s conviction

either as a principal or as an aider and abettor.6 See Jones v. State, 95 So. 3d 641, 650 (Miss.

2012) (recognizing that when jury instructions, read as a whole, properly state the applicable

law, there is no error).

       Jury Instruction S-7 in Williams v. State

¶29.   Turning back to Williams, we note that, while we do not take a position one way or

the other on the Court of Appeals’ ruling in that case, as it is not before us, we do find it

necessary to explain why today’s holding differs from the holding in Williams regarding S-7.

¶30.   First, the objection in Williams, in part, was different from Baxter’s. Williams argued

that the instruction addressed contributory causes, which were not relevant because the

collision between the truck and Sheriff Welford was the sole cause of death. Williams, 2014



       6
       And while we find no reversible error in the context of today’s case, this opinion
should not be read as an endorsement of jury instruction S-7.

                                              15
WL 6756335, at *7. Baxter did not raise this objection at trial or on appeal, and as a result,

we do not consider it here. See Medina v. State, 688 So. 2d 727, 729 (Miss. 1996) (noting

that this Court does not consider issues not properly before the Court).

¶31.   Secondly, while both cases arise out of the same factual background, the context of

S-7 is different as applied to Baxter and Williams. In Williams, an abandonment defense was

asserted. Williams, 2014 WL 6756335 at **7-8. Williams claimed she abandoned the effort

to flee law enforcement during the chase. Baxter did not raise this defense. As a result, there

was no danger in Baxter, as the Court of Appeals found in Williams, that the jury could read

S-7 as requiring Baxter to have to prove he abandoned his flight. See id.

¶32.   In sum, while we do not review the merits of Williams as the Court of Appeals did,

we do find that today’s case is sufficiently different that the two rulings are not in conflict.

       2.     The circuit court erred in admitting Baxter’s involuntary,
              unreliable and coerced “confession.”

¶33.   The circuit court held Baxter’s confession admissible in the instant case but not in

Williams’s case. At first blush, this may seem contradictory; however, the admissibility of

the confession in these two cases came under different legal rules. In Williams, the defendant

offered the confession, and it was reviewed under our hearsay rules in the Mississippi Rules

of Evidence. Williams, 2014 WL 6756335, at *3. In Baxter, the State offered the confession

and the issue was not hearsay, but whether the confession was knowing, voluntary, and

intelligent. Baxter, 2014 WL 3715840, at **5-9. Under these two different legal theories, it

is possible for the same confession to be admissible in one case and not in the other.

                                              16
¶34.   Again, we note that we make no findings regarding Williams,7 but suffice it to say

that, under Mississippi Rule of Evidence 804(b)(3), a key consideration in criminal cases is

the reliability of exculpatory hearsay evidence. M.R.E. 804 (b)(3). In contrast, reliability and

veracity are not considerations in determining the admissibility of an accused’s own

confession. Richardson v. State, 722 So. 2d 481, 488 (Miss. 1998). In determining whether

a defendant validly waived his or her Miranda rights,8 the trial judge must make a factual

determination, from the totality of the circumstances, that the waiver was made intelligently,

knowingly, and voluntarily. Id.; see also Holland v. State, 587 So. 2d 848, 860 (Miss. 1991)

(quoting State v. Whitaker, 578 A.2d 1031, 1039 (Conn. 1990) (recognizing that

determinations of voluntariness “should focus on defendant’s ‘experience with the police and

familiarity with warnings; intelligence, including I.Q.; age; education; vocabulary and ability

to read and write in the language in which the warnings were given; intoxication; emotional

state; mental disease, disorder or retardation’”). The truthfulness or reliability of those

statements, if obtained properly, is a question for the jury. Rogers v. Richmond, 365 U.S.

534, 544, 81 S. Ct. 735, 741, 5 L. Ed. 2d 760 (1961) (“The attention of the trial judge should

[be] focused . . . on the question whether the behavior of the State’s law enforcement


       7
        The Court of Appeals in Williams held the trial court committed reversible error in
excluding Baxter’s statements in Williams’s trial because the confession met the reliability
requirements under the hearsay rule. Williams, No. 2012-KA-01839-COA, 2014 WL
6756335, at *7.
       8
        Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 1629-30, 16 L. Ed. 2d
694, 726 (1966).

                                              17
officials was such as to overbear petitioner’s will to resist and bring about confessions not

freely self-determined – a question to be answered with complete disregard of whether or not

petitioner in fact spoke the truth.”). Accordingly, we find no error in the Court of Appeals’

ruling in Baxter to the extent the court held that truthfulness was not a factor in determining

the admissibility of Baxter’s confession.

¶35.   Baxter also argued that, because of his mental disability and the facts surrounding his

confession, the trial court erred in finding it was intelligently and voluntarily made. When

considering the issue of intellectual disability in this context, “the trial judge must first

determine whether the accused, prior to the confession, understood the content and substance

of the Miranda warning and the nature of the charges of which he was accused.” Williams

v. State, 115 So. 3d 774, 778 (Miss. 2013) (quoting Martin v. State, 871 So. 2d 693, 701

(Miss. 2004)). Furthermore, mild intellectual disability of “the defendant does not render a

confession per se involuntary; rather, the defendant’s mental abilities are but one factor to

be considered.” Id. And, as noted above, the Court in Holland recognized a number of these

factors, including the defendant’s familiarity with the Miranda warnings, his IQ, and any

mental disease, disorder, or intellectual disability. Holland, 587 So. 2d at 860.

¶36.   Recently, in Williams v. State, not to be confused with Brandy Williams v. State, this

Court considered the same argument as put forth by Baxter that a person who is intellectually

disabled cannot knowingly waive his Miranda rights. There, the Court noted the above rule




                                              18
and reaffirmed that, under Mississippi law, mental disability alone does not render a

confession involuntary per se. Williams, 115 So. 3d at 778.

¶37.   Nevertheless, Baxter urges this Court to adopt the position of the dissent in Williams.

There, the dissent expressed concern that someone with Williams’s IQ, which was 55, could

not knowingly and intelligently waive her Miranda rights. Id. at 779-80. Specifically, Baxter

points to the dissent’s discussion of the susceptibility of mildly retarded individuals to

suggestive leading questions by law enforcement. Baxter claims that his answers in his

confession were the product of law enforcement’s leading questions.9

¶38.   But we find no reason to depart from our prior holdings. See Stone v. Reichman-

Crosby Co., 43 So. 2d 184, 190 (Miss. 1949) (discussing the principle of stare decisis).

Baxter offers no evidence, much less compelling evidence, that our prior holdings have

perpetuated a pernicious error. See id. Furthermore, the dissent in Williams was directed at

individuals with IQs between 50 and 55. Williams, 115 So. 3d at 779-80. Baxter, according

to his expert, has an IQ of 65, and according to the State, an IQ of 75.

¶39.   More to the point, the trial court in the current case clearly considered Baxter’s low

IQ. Specifically, the trial court noted that, considering Baxter’s mental disability and the


       9
          Baxter also claims that in Brandy Williams v. State, the State affirmatively argued
that Baxter’s confession was the product of suggestive questioning, implying the law
enforcement officers took advantage of Baxter’s weak intellect to obtain a false confession.
A review of the State’s motion and oral argument before the trial court do not support this
contention. The State in Williams argued only that Baxter’s statement lacked credibility, and
that it evolved as law enforcement officials revealed that they suspected Baxter was lying
about certain aspects of his version of events.

                                             19
totality of the circumstances, including possible carryover knowledge from prior arrests, he

found the Miranda waiver to be knowing, intelligent, and voluntary. And, as this Court has

held, “As long as the trial judge applies the correct legal standards, his decision will not be

reversed on appeal unless it is manifestly in error, or is contrary to the overwhelming weight

of the evidence.” Chamberlin v. State, 989 So. 2d 320, 331-32 (Miss. 2008).

¶40.   Here, the trial court specifically considered the testimony of two experts, both of

whom found Baxter competent to stand trial, although he was intellectually disabled under

Atkins and Chase.10 When asked if Baxter had the mental capacity to knowingly waive his

Miranda rights, the experts reached somewhat different conclusions, though their testimony

supported the trial court’s findings. Dr. Criss Lott, testifying for the State, stated that Baxter

could knowingly and, to some degree, intelligently waive his Miranda rights, depending on

how “intelligently” was defined. Later in his testimony, Dr. Lott clarified, and unequivocally

provided that, in his opinion, Baxter had the capacity to waive his Miranda rights. Dr. Gerald

O’Brien, testifying for Baxter, was more equivocal. Dr. O’Brien testified that if someone

simply read the Miranda warning to Baxter, giving him a copy to follow along, in a “one-

shot deal,” Baxter would “probably not” understand the waiver. But, Dr. O’Brien

acknowledged that, Baxter may have had “carryover knowledge” of his Miranda rights from




       10
            Atkins v. Virginia, 536 U.S. 304, 306, 122 S. Ct. 2242, 2244, 153 L. Ed. 2d 335
(2002).

                                               20
his previous arrests, and that he observed no indication, including from the police interview

as well as his own interview, that Baxter did not understand his Miranda waiver.

¶41.   Under these circumstances, we cannot say the trial court committed manifest error or

that his ruling was against the overwhelming weight of the evidence. Accordingly, we affirm.

                                      CONCLUSION

¶42.   For the above-mentioned reasons, Baxter’s conviction and sentence in the Circuit

Court of George County and the judgment of the Court of Appeals are affirmed.

¶43. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED.
CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT
THE POSSIBILITY OF PAROLE, AFFIRMED. SENTENCE IN THIS CAUSE
SHALL RUN CONSECUTIVELY WITH SENTENCES IN CAUSE NUMBERS 2009-
10,073 AND 2010-10,057.

    DICKINSON AND RANDOLPH, P.JJ., LAMAR, CHANDLER AND
COLEMAN, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE
WRITTEN OPINION JOINED BY KING, J. PIERCE, J., NOT PARTICIPATING.

       KITCHENS, JUSTICE, DISSENTING:

¶44.   Because the jury could have found from instructions it was provided that Christopher

Lee Baxter was guilty of two separate and distinct courses of criminal conduct, I find that the

prosecution was relieved of its burden of proving its theory of guilt beyond a reasonable

doubt. I therefore dissent.

¶45.   Jury Instruction S-3A informed the jury of the elements of capital murder of a peace

officer:

       If you find from the evidence in this case, beyond a reasonable [doubt] that:

                                              21
       (1) On or about July 21, 2010, in George County, Mississippi;

       (2) CHRISTOPHER LEE BAXTER, alone or in conjunction with another,
       killed Garry Welford, a human being and peace officer, while Garry Welford
       was acting in his official capacity as a peace officer, with knowledge that
       Garry Welford was a peace officer,

       (3) and that said killing was done without authority of law by any means or in
       any manner, in the commission of an act eminently dangerous to others and
       evincing a depraved heart, regardless of human life, although without any
       premeditated design to effect the death of any particular individual

       (4) and not in necessary self-defense,

       then you shall find the Defendant, CHRISTOPHER LEE BAXTER, guilty of
       Capital Murder.

Instruction S-5 then informed the jury that:

       One who willfully, unlawfully, and feloniously aids, abets, assists, or
       otherwise encourages the commission of a crime is just as guilty under the law
       as if he or she had committed the whole crime with his or her own hands.

Instruction S-6A provided the following:

       The guilt of a defendant in a criminal case may be established without proof
       that the defendant did every act constituting the offense alleged. The law
       recognizes that, ordinarily, anything a person can do for himself may also be
       accomplished by that person through the direction of another person as his or
       her agent, or by acting in concert with, or under the direction of, another
       person or persons in a joint effort or enterprise.

       If another person is acting under the direction of the defendant or if the
       defendant joins another person and performs acts with the intent to commit a
       crime, then the law holds the defendant responsible for the acts and conduct
       of such other persons just as though the defendant had committed the acts or
       engaged in such conduct.




                                               22
       Before any defendant may be held criminally responsible for the acts of others,
       it is necessary that the accused deliberately associate himself in some way with
       the crime and participate in it with the intent to bring about the crime.

       Of course, mere presence at the scene of a crime and knowledge that a crime
       is being committed are not sufficient to establish that a defendant either
       directed or aided and abetted the crime unless you find beyond a reasonable
       doubt that the defendant was a participant and not merely a knowing spectator.

Finally, Instruction S-7 was as follows:

       The Court instructs the Jury that it is not necessary that an unlawful act of the
       Defendant be the sole cause of death. Responsibility attaches if the act of the
       Defendant contributed to the death. If you believe the Defendant committed
       an unlawful act or aided and abetted another in committing an unlawful act
       that contributed to the death of Garry Welford, then the Defendant is not
       relieved of responsibility by the fact that other causes may have contributed to
       his death.

(Emphasis added.)

¶46.   Baxter argues in his Petition for Writ of Certiorari that the jury, based on Instruction

S-7, could convict him “if his failure to report for his sentencing on the drug charges was an

‘act’ (under the second sentence of the instruction) or an ‘unlawful act’ (under the third

sentence of the instruction) ‘that contributed to the death of Gar[r]y Welford.’” Baxter made

the same argument in the Court of Appeals, stating that Instruction S-7 deprived him of his

right “to have the jury find every element of the charge against him beyond a reasonable

doubt.” At trial, Baxter’s counsel had objected to Instruction S-7 by stating: “[i]t’s

cumulative, and it’s confusing and S-6A has everything in it that is required to be instructed

to the jury concerning this accomplice liability issue.” Following conviction, Baxter filed a



                                              23
Motion for Judgment Notwithstanding the Verdict in which he argued that Instruction S-7

incorrectly stated the law and “unconstitutionally diminished the State’s burden of proof.”

¶47.   An accused has a fundamental right under the Mississippi Constitution and the U.S.

Constitution to have the State prove guilt beyond a reasonable doubt. McBride v. State, 934

So. 2d 1033, 1038 (Miss. Ct. App. 2006) (citing In re Winship, 397 U.S. 358, 364, 90 S. Ct.

1068, 25 L. Ed. 2d 368 (1970)); Evans v. State, 919 So. 2d 231, 235 (Miss. Ct. App. 2005).

Nevertheless, this Court has recognized “that criminal defendants in state courts do not have

a federal constitutional right to a unanimous verdict by a twelve-member jury.” Fulgham v.

State, 46 So. 3d 315, 324 (Miss. 2010) (citations omitted); see Johnson v. Louisiana, 406

U.S. 356, 358, 92 S. Ct. 1620, 32 L. Ed. 2d 152 (1972) (due process of law not violated by

a state law requiring less-than-unanimous jury verdicts); Apodaca v. Oregon, 406 U.S. 404,

412, 92 S. Ct. 1628, 32 L. Ed. 2d 184 (1972) (same). However, “Article 3, Section 31 of the

Mississippi Constitution11 has been interpreted to provide criminal defendants the right to a

unanimous jury verdict of twelve impartial jurors.” Fulgham v. State, 46 So. 3d 315, 324

(Miss. 2010) (citing Markham v. State, 209 Miss. 135, 137, 46 So. 2d 88, 89 (Miss. 1950)).

¶48.   This Court has declared that, “‘[w]hen read together, if the jury instructions state the

law of the case and create no injustice, then no reversible error will be found.’” Watkins v.



       11
         “The right of trial by jury shall remain inviolate, but the Legislature may, by
enactment, provide that in all civil suits tried in the circuit and chancery court, nine or more
jurors may agree on the verdict and return it as the verdict of the jury.” Miss. Const. art. 3,
§ 31.

                                              24
State, 101 So. 3d 628, 633 (Miss. 2012) (quoting Bailey v. State, 78 So. 3d 308, 315 (Miss.

2012)). In the present case, the given jury instructions allowed the jury to find beyond a

reasonable doubt that Baxter was guilty of capital murder if it found either that Baxter was

a principal (i.e., Baxter was driving) or that Baxter was an aider and abettor to Brandy

Williams (i.e., Baxter was directing and controlling Williams, who was driving).

¶49.   In Fulgham, Kristi Fulgham was convicted of capital murder of her husband, with the

underlying offense being robbery. Though not alleged in the indictment, the State argued that

the husband was robbed of his wallet and/or a central processing unit (CPU) it contended

were taken from the marital home. Fulgham argued that the denial of an instruction requiring

a unanimous jury finding of the specific property stolen “created a situation in which certain

members of the jury could have found that Fulgham had robbed Joey of his wallet while

other jurors could have found that she had taken the CPU.” Fulgham, 46 So. 3d at 323. This

Court held that the “personal property of another” element of the crime of robbery underlying

the capital murder had been proven beyond a reasonable doubt, regardless of whether the jury

decided Fulgham had stolen the wallet, the CPU, or both: “[b]y its verdict, twelve jurors

unanimously agreed that Fulgham had robbed Joey of personal property.” Id. at 323, 326. In

that context, this Court rejected the argument that “acquittal would be required if six believed

[Fulgham] had stolen [her husband’s] money and the other six believed she had stolen the

CPU.” Id. at 326.




                                              25
¶50.   The case at hand is readily distinguishable. In Fulgham, in order for the “personal

property of another” element to be satisfied, a majority of this Court decided that it did not

matter whether the jury found that Fulgham had stolen the wallet, the CPU, or both. Either

way, she would have been guilty of the underlying offense of robbery. Here, it is of crucial

importance whether Baxter was driving, which, if so, would support the State’s theory that

Baxter was the actual perpetrator in the capital murder, or whether Williams was driving and

Baxter was directing her actions, supporting the State’s alternative theory that Baxter aided

and abetted Williams in the capital murder. The crime of capital murder of a peace officer

and the crime of aiding and abetting are different crimes with separate elements and separate

mens rea requirements.

¶51.   For the jury to find a defendant guilty of capital murder of a peace officer as a

perpetrator, it must find, beyond a reasonable doubt, that the defendant committed “murder

. . . perpetrated by killing a peace officer . . . while such officer . . . is acting in his official

capacity, and with knowledge that the victim was a peace officer . . . .” Miss. Code Ann. §

97-3-19(2)(a) (Rev. 2014). “Murder,” as defined by the statute, includes in pertinent part:

       (1) The killing of a human being without authority of law by any means or in
       any manner . . . in the following cases:

               ...

               (b) [w]hen done in the commission of an act eminently dangerous to
               others and evincing a depraved heart, regardless of human life,
               although without any premeditated design to effect the death of any
               particular individual . . . .


                                                 26
Miss. Code Ann. § 97-3-19(1)(b) (Rev. 2014). Conversely, “‘[a]ny person who is present at

the commission of a criminal offense and aids, counsels, or encourages another in the

commission of that offense is an ‘aider and abettor’ and is equally guilty with the principal

offender.’” Graham v. State, 120 So. 3d 382, 389 (Miss. 2013), reh’g denied (Sept. 12,

2013) (quoting Swinford v. State, 653 So. 2d 912, 915 (Miss. 1995)) (emphasis added). The

State must prove that the defendant, “although not [a] direct perpetrator[] of a crime, [was]

yet present at its commission, doing some act to render aid to the actual perpetrator.” Id.

(quoting Smith v. State, 237 Miss. 498, 115 So. 2d 318, 322 (1959)) (emphasis added).

¶52.   A conviction of capital murder of a peace officer as an actual or direct perpetrator

requires a finding, beyond a reasonable doubt, that the defendant killed a peace officer while

the peace officer was acting in his official capacity, that the defendant knew that the victim

was a peace officer, and that the defendant killed the peace officer during the commission

of an act eminently dangerous to others and evincing a depraved heart. For the jury to find

that the defendant was guilty of the capital murder of a peace officer as an aider and abettor

would require a finding, beyond a reasonable doubt, that the defendant aided, counseled, or

encouraged another in the commission of such capital murder and that the defendant was

present at the crime’s commission.

¶53.   In Schad v. Arizona, the United States Supreme Court considered “whether a first-

degree murder conviction under jury instructions that did not require agreement on whether

the defendant was guilty of premeditated murder or felony murder is unconstitutional . . . .”


                                             27
Schad v. Arizona, 501 U.S. 624, 627, 111 S. Ct. 2491, 115 L. Ed. 2d 555 (1991) (plurality

opinion). The Court noted that, under Arizona law, “the attempt to commit a robbery is ‘the

legal equivalent of . . . deliberation, premeditation, and design.’” Id. (quoting State v. Serna,

211 P.2d 455, 459 (Ariz. 1949)). Stated differently, “neither premeditation nor the

commission of a felony is formally an independent element of first-degree murder; they are

treated as mere means of satisfying a mens rea element of high culpability.” Schad, 501 U.S.

at 639. The Court ultimately affirmed Schad’s conviction, holding that the Constitution was

not offended by the jury’s having been instructed on both premeditated murder and felony

murder to support its verdict of guilty of first-degree murder:

       We have never suggested that in returning general verdicts in such cases the
       jurors should be required to agree upon a single means of commission, any
       more than the indictments were required to specify one alone. In these cases,
       as in litigation generally, “different jurors may be persuaded by different
       pieces of evidence, even when they agree upon the bottom line. Plainly there
       is no general requirement that the jury reach agreement on the preliminary
       factual issues which underlie the verdict.” McKoy v. North Carolina, 494 U.S.
       433, 449, 110 S. Ct. 1227, 1236-1237, 108 L. Ed. 2d 369 (1990) (Blackmun,
       J., concurring) (footnotes omitted).

Id. at 631-32 (emphasis added). In the present case, at issue are separate courses of criminal

conduct, each requiring proof beyond a reasonable doubt of separate and distinct elements,

and not merely “preliminary factual issues which underlie the verdict.”

¶54.   Justice White dissented, joined by Justices Marshall, Blackmun, and Stevens. The

dissent posited that, while premeditated murder and felony murder “both lead to a conviction

for first-degree murder” under Arizona law, “they do so by divergent routes possessing no


                                               28
elements in common except the fact of a murder.” Schad, 501 U.S. at 653 (White, J.,

dissenting). “Unlike premeditated murder, felony murder does not require that the defendant

commit the killing or even intend to kill, so long as the defendant is involved in the

underlying felony.” Id. at 654. Conversely, “felony murder—but not premeditated

murder—requires proof that the defendant had the requisite intent to commit and did commit

the underlying felony.” Id. Justice White continued:

       Consequently, a verdict that simply pronounces a defendant “guilty of
       first-degree murder” provides no clues as to whether the jury agrees that the
       three elements of premeditated murder or the two elements of felony murder
       have been proved beyond a reasonable doubt. Instead, it is entirely possible
       that half of the jury believed the defendant was guilty of premeditated murder
       and not guilty of felony murder/robbery, while half believed exactly the
       reverse. To put the matter another way, the plurality affirms this conviction
       without knowing that even a single element of either of the ways for proving
       first-degree murder, except the fact of a killing, has been found by a majority
       of the jury, let alone found unanimously by the jury as required by Arizona
       law. A defendant charged with first-degree murder is at least entitled to a
       verdict—something petitioner did not get in this case as long as the possibility
       exists that no more than six jurors voted for any one element of first-degree
       murder, except the fact of a killing.

Id. (emphasis added).

¶55.   My thinking regarding the present case is more in line with that of Justice White’s

dissent in Schad, though that position is but a persuasive one.12 Here, we are faced with a


       12
          And, indeed, Schad was a plurality opinion. Justice Scalia, who would have been
the fifth vote in the Court’s majority, wrote an opinion concurring in part and concurring in
the judgment in which he wrote that “the plurality provides no satisfactory explanation of
why (apart from the endorsement of history) it is permissible to combine in one count killing
in the course of robbery and killing by premeditation. The only point it makes is that the
depravity of mind required for the two may be considered morally equivalent.” Schad, 501

                                             29
verdict13 which “provides no clues as to whether the jury agree[d]” that the elements of

capital murder of a peace officer as a principal were met beyond a reasonable doubt. Id. Nor

can we glean with any certainty whether the jury instead fixed itself upon a finding of the

State’s alternative argument, that Baxter was not driving but that he was present at the

commission of Williams’s capital murder of Sheriff Welford and that he acted to render aid

to her commission of that crime. And while an aider and abettor is, under our law, a

principal, it is possible that half of the jury believed Baxter was guilty as a principal (i.e., he

was the driver) in the capital murder of Sheriff Welford and not guilty as an aider and abettor

of Williams’s crime, while the other half believed exactly the reverse.14 In such a scenario,

half the jury would have believed that Baxter had been driving and directly committed the

capital murder of Sheriff Welford, and half the jury would have believed that Baxter aided

and abetted Williams’s commission of the crime. Thus it is not certain upon which course

of criminal conduct the jury settled, and, therefore, the unanimity of the jury was not

established and remains in doubt. Neither the trial court nor this Court can tell whether each

element of the crime was found beyond a reasonable doubt. This constitutes reversible error,




U.S. at 651 (Scalia, J., concurring in part and concurring in the judgment).
       13
     “WE, THE JURY, FIND THE DEFENDANT, CHRISTOPHER LEE BAXTER,
GUILTY OF CAPITAL MURDER.”
       14
         It also is possible that some other numerical division, totaling twelve, occurred, and
neither can we rule out the possibility of a 12-0 verdict on one or the other of the State’s
theories of guilt.

                                                30
as the defendant is entitled to a unanimous verdict whereby all twelve jurors agree upon the

same thing.

¶56.   Analogously, the United States Supreme Court considered “whether a jury has to

agree unanimously about which specific violations make up the ‘continuing series of

violations’” for the purpose of finding that the defendant was engaged in a “continuing

criminal enterprise,” as defined by 21 U.S.C. § 848(c). Richardson v. United States, 526

U.S. 813, 815, 119 S. Ct. 1707, 143 L. Ed. 2d 985 (1999). According to the Supreme Court,

the federal statute “requires jury unanimity in respect to each individual ‘violation.’” Id. at

824. More specifically:

       If the statute creates a single element, a “series,” in respect to which individual
       violations are but the means, then the jury need only agree that the defendant
       committed at least three of all the underlying crimes the Government has tried
       to prove. The jury need not agree about which three. On the other hand, if the
       statute makes each “violation” a separate element, then the jury must agree
       unanimously about which three crimes the defendant committed.

Id. at 818. The Court continued:

       The question before us arises because a federal jury need not always decide
       unanimously which of several possible sets of underlying brute facts make up
       a particular element, say, which of several possible means the defendant used
       to commit an element of the crime. Schad v. Arizona, 501 U.S. 624, 631-632,
       111 S. Ct. 2491, 115 L. Ed. 2d 555 (1991) (plurality opinion); Andersen v.
       United States, 170 U.S. 481, 499-501, 18 S. Ct. 689, 42 L. Ed. 1116 (1898).
       Where, for example, an element of robbery is force or the threat of force, some
       jurors might conclude that the defendant used a knife to create the threat;
       others might conclude he used a gun. But that disagreement—a disagreement
       about means—would not matter as long as all 12 jurors unanimously
       concluded that the Government had proved the necessary related element,
       namely, that the defendant had threatened force. See McKoy v. North


                                               31
       Carolina, 494 U.S. 433, 449, 110 S. Ct. 1227, 108 L. Ed. 2d 369 (1990)
       (Blackmun, J., concurring).

Richardson, 526 U.S. at 817. Thus, at least under federal law, the means of commission of

a particular criminal offense does not matter for purposes of unanimity, so long as the means

allows the jury to find a single, necessary element. But where the jury must find separate,

individual elements in support of a larger criminal offense, the jury must concur

unanimously. Id. at 818. Here, separate courses of criminal conduct, each requiring proof

beyond a reasonable doubt of separate and distinct elements, seem to me to require a

unanimous finding by the jury either that Baxter was guilty of capital murder of a peace

officer for having driven the car which struck and killed Sheriff Welford or that Baxter was

guilty of capital murder of a peace officer for having aided and abetted the capital murder of

a peace officer perpetrated by Williams.

¶57.   In the present case, we do not know whether the jury settled on finding Baxter guilty

of capital murder of a peace officer as the actual, direct perpetrator as the driver of the

vehicle which struck and killed Sheriff Welford, or as an aider and abettor, having

encouraged Williams so to do. It cannot be said that the jury unanimously found Baxter guilty

beyond a reasonable doubt on each and every element of the crime. I would, therefore,

reverse both the Court of Appeals’ judgment and the trial court’s conviction and sentence and

remand this case to the Circuit Court of George County for a new trial.

       KING, J., JOINS THIS OPINION.



                                             32
