                       IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 1998-DP-01094-SCT

KELVIN DYCUS a/k/a KEVIN DYCUS

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                         6/19/1998
TRIAL JUDGE:                              HON. KENNETH L. THOMAS
COURT FROM WHICH APPEALED:                BOLIVAR COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  RAYMOND L. WONG
                                          ROBERT McDUFF
ATTORNEYS FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                          BY: JUDY T. MARTIN
                                               MARVIN L. WHITE
DISTRICT ATTORNEY:                        LAURENCE Y. MELLON
NATURE OF THE CASE:                       CRIMINAL - DEATH PENALTY -
                                          DIRECT APPEAL
DISPOSITION:                              AFFIRMED IN PART; VACATED
                                          AND REMANDED IN PART- 09/15/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       GRAVES, JUSTICE, FOR THE COURT:

¶1.    This case is before the Court on remand from the United States Supreme Court. Dycus

v. Mississippi, _ U.S._ , 125 S.Ct. 1589, 161 L.Ed.2d 271 (2005).    Kelvin Dycus and his

brother Jason Dycus were arrested for the 1996 murder and robbery of 76-year-old Mary

Pittman.   At the time of the murder, Kelvin Dycus was 17 years old, and his brother was 15

years old. A jury convicted Kelvin Dycus of capital murder and sentenced him to death. The
jury also convicted Dycus of auto theft for which he was sentenced to five years in the custody

of the Mississippi Department of Corrections.              This Court affirmed both convictions and

sentences. Dycus v. State, 875 So.2d 140 (Miss. 2004).             The United States Supreme Court

subsequently held that the Eighth and Fourteenth Amendments to the United States

Constitution forbid the imposition of the death penalty on offenders who were under the age

of 18 when their crimes were committed. Roper v. Simmons, 543 U.S._, 125 S.Ct. 1183,

1200, 161 L.Ed.2d 1, 28 (2005).         The United States Supreme Court thereafter vacated the

judgment of this Court and remanded           this       case for further consideration in light of its

decision in Roper.     This Court called for supplemental briefs from the parties, and both sides

concur that Dycus must be resentenced to life in prison without parole.

¶2.     This Court has considered this case further in light of Roper.             Roper requires that

Dycus’s death sentence be vacated and this case remanded for resentencing.            However, Roper

does not affect the remainder of this Court’s prior opinion and judgment.             Accordingly, this

Court now reaffirms the convictions of Kelvin Dycus for capital murder and auto theft and his

sentence for auto theft and hereby reinstates and adopts its prior opinion in its entirety except

to the extent it addresses the issues relating to the death sentence. As required by the United

States Supreme Court in Roper, this Court hereby vacates the death sentence of Kelvin Dycus

and remands this case to the Circuit Court of Bolivar County for resentencing of Kelvin Dycus

on Count I to life imprisonment in the custody of the Mississippi Department of Corrections

without the possibility of parole.

¶3.  COUNT I: CONVICTION OF CAPITAL MURDER AFFIRMED. SENTENCE OF
DEATH BY LETHAL INJECTION, VACATED AND CASE REMANDED FOR
RESENTENCING TO LIFE IMPRISONMENT IN THE CUSTODY OF THE

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MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT THE POSSIBILITY OF
PAROLE.
     COUNT II: CONVICTION OF UNLAWFUL THEFT OF AN AUTOMOBILE AND
SENTENCE OF FIVE (5) YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, AFFIRMED.

     SMITH, C.J., WALLER AND COBB, P.J., CARLSON AND DICKINSON, JJ.,
CONCUR. EASLEY, J., CONCURS IN RESULT ONLY. RANDOLPH, J., SPECIALLY
CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY SMITH, C.J.,
WALLER AND COBB, P.JJ., EASLEY AND CARLSON, JJ.       DIAZ, J., NOT
PARTICIPATING.


        RANDOLPH, JUSTICE, SPECIALLY CONCURRING:

¶4.     I concur in the majority’s opinion and judgment because my oath and loyalty to this

office and the law require me to comply with the mandate of the United States Supreme Court

in Roper v. Simmons, 543 U.S.-, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), for separate and

distinct, but intertwined reasons. First, the United States Constitution clearly vests in the

Supreme Court the absolute judicial power of the United States. U.S. Const. art. III, § 1. Next,

respect for the rule of law is essential for the orderly administration of justice.   See Roper,

125 S.Ct. at 1217, 1226-27 (Scalia, J., joined by Rehnquist, C.J., & Thomas, J., dissenting).

Finally, the Code of Judicial Conduct requires a judge to be faithful, respectful, and compliant

with the law, as well as not swayed by partisan interests, public clamor, or fear of criticism.

Miss. Code of Judicial Conduct, Canons 2A & 3B(2).

¶5.     I am bound by the Roper decision. Therefore, it is of no import what my personal views

on the death penalty, or any other subject, may be; or, whether I personally agree or disagree

with an opinion of the Supreme Court; or for that matter, whether the opinion relies on sound

logic and reasoning leading to a just result, vel non.



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¶6.     The dissents in Roper opine that the majority decision is legally flawed, lacks valid

reasoning and defies historic precedent.             See Roper, 125 S.Ct. at 1217-30 (Scalia, J.,

dissenting). If personal whims or beliefs are besetting the Constitution, and ignoring the rule

of law, then those culpable of such conduct should either recuse themselves from such cases,

or consider the honorable path chosen by former Justice Harry A. Blackmun. Blackmun, when

faced with such a dilemma declared, “I no longer shall tinker with the machinery of death.”

Callins v. Collins, 510 U.S. 1141, 114 S.Ct. 1127, 1130, 127 L.Ed.2d 435 (1994) (Blackmun,

J., dissenting from denial of certiorari), and shortly thereafter, retired.

¶7.     Our Constitution requires strict adherence to the doctrine of separation of powers. The

people’s will can best be determined by the nation’s legislatures, both federal and state, for

social policy and in individual cases, by a jury of one’s peers. I would respectfully urge the

Supreme Court to exercise judicial restraint, as the function of all courts is to adjudicate, not

to legislate. Courts are charged with the responsibility to interpret, not create law.

¶8.     “In a democratic society legislatures, not courts, are constituted to respond to the will

and consequently the moral values of the people.” Roper, 125 S.Ct. at 1222 (Scalia, J.,

dissenting) (quoting Furman v Georgia, 408 U.S. 238, 383, 92 S.Ct. 2726, 33 L.Ed.2d 346

(1972) (Burger, C.J., dissenting)). “[W]e have, in our determination of society’s moral

standards, consulted the practices of sentencing juries: Juries ‘maintain a link between

contemporary community values and the penal system’ that this Court cannot claim for itself.”

Roper, 125 S.Ct. at 1222 (Scalia, J., dissenting) (quoting Witherspoon v. Illinois, 391 U.S.

510, 519 n.15, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968)).




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¶9.     The Roper majority declared that the “expansive language in the Constitution, must be

interpreted according to its text, by considering history, tradition, and precedent, and with due

regard for its purpose and function in the constitutional design. To implement this framework

we have established the propriety and affirmed the necessity of referring to ‘the evolving

standards of decency that mark the progress of a maturing society’ to determine which

punishments are so disproportionate as to be cruel and unusual.” Roper, 125 S.Ct. at 1190

(quoting Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958)(plurality

opinion)). Such amorphous terminology provided the framework upon which Roper was

decided. It is not the Constitution which is changing, but only some individual justices

rearranging a shapeless concept to fit their personal whims and declaring that to be the law du

jour, without sufficient deference to the intent of the framers of the Constitution; the rule of

law; legislative acts; and finally, the decision of a jury.

¶10.    The Supreme Court’s implementation and subsequent reliance upon Trop, and a series

of other of plurality decisions, has self-empowered the Court to impose its independent moral

judgment     on constitutional issues. In Roper,              the   majority   applied   this   framework,

“substitut[ing] [its] judgment about the moral propriety of capital punishment for 17-year-old

murderers for the judgments of the Nation's legislatures.” Roper, 125 S.Ct. at 1206

(O’Connor, J., dissenting).

¶11.    In his dissent, Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas,

opines the majority in Roper         not only changed the Constitution, but failed to honor the rule

of law, while “proclaim[ing] itself sole arbiter of our Nation’s moral standards,” Roper, 125



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S.Ct. at 1217 (Scalia, J., dissenting), and at the same time saying “what our people’s laws say

about the issue does not... matter.....” Id.

¶12.    Such heinous and atrocious crimes, as committed by Simmons and Dycus, as well as

the ever-increasing multitude of other heinous crimes involving the abduction, torture,

molestation and murders by sexual predators should cause the Court to pause, reflect, and then

reconsider the existing framework by which it analyzes the United States Constitution.

¶13.    One only needs to look at the negative changes in our society caused by the attacks on

the Constitution and the resultant experiential harm suffered by individual citizens of this

country to question why a strict adherence to such a novel concept of less than forty-seven

years should be the appropriate standard for interpreting the Constitution. I marvel that this

framework was either completely overlooked by or hidden from all of the learned justices who

sat on the Court for 169 years preceding Trop. If blindly followed, this treatment of the

Constitution shall most assuredly lead to the ruin and destruction of the noblest democratic

experiment in the history of man.

      SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY AND CARLSON, JJ., JOIN
THIS OPINION.




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