Mississippi death row inmate's rehearing request
September 18, 2015
Jackson, Miss. -- The Mississippi Supreme Court says it won't hear
another appeal from a death row inmate convicted of killing his
girlfriend by stabbing her and setting her on fire in their home near
Justices on Thursday made no comment as they denied Timothy Robert
Ronk's request for a rehearing.
Ronk was convicted of capital murder in 2010 for the slaying of
37-year-old Michelle Craite.
Court records say that on Aug. 26, 2008, emergency responders found
Craite's burned and stabbed body in a bedroom of her burning house in
the Woolmarket community.
Prosecutors said Ronk and Craite argued as he was leaving her for
another woman in Florida. Ronk, now 36, said he acted in self-defense
when he stabbed Craite.
Jury sentences Ronk to death
By Danielle Thomas - Wlox.com
October 9, 2010
GULFPORT, MS (WLOX) - A Harrison County jury Friday night decided
a convicted murderer deserves to die for his crime.
On Thursday Timothy Ronk, 31, was convicted of Capital Murder for
killing Michelle Craite in her Biloxi home and setting her house on
fire in August 2008.
Assistant DA Alison Baker says Craite's body was so badly burned
her family could not hold a viewing at her funeral.
"This defendant deprived Michelle's family of seeing her one last
time. Think about the victim. Think about her family and their loss.
You are not taking the life of Timothy Ronk. He forfeited his life on
August 26, 2008."
Defense Attorney Eric Geiss told the jury, "As the State has said
Timothy Ronk has forfeited his life. That is going to happen one way
or the other no matter which way you choose to punish him."
Prosecutors urged the jury not to allow the defendant to use a bad
childhood and a previous Bipolar diagnosis as a crutch, but the
defense argued a chemical imbalance is to blame for a long history of
rash, impulsive behavior.
"Timothy is not insane," said Geiss. "He is just incapable of what
would in this situation be making a rational decision."
Thursday, during closing arguments, Baker told the jury, "She took
him in. He took her out."
Ronk lived with Craite at the time of the murder, but testimony in
the trial revealed Ronk had met another woman on the Internet and was
leaving Craite for that woman when a confrontation ended in her death.
"We cannot condone that Tim met Michelle and saw her as a meal
ticket. We cannot condone that he decided to walk away from her after
meeting another woman on the Internet," said defense attorney Eric
Though Geiss did not contest the fact that his client is guilty of
a crime, he argued that crime is not capital murder.
"The arson came after the stabbing. That's evident,"
Geiss said. "I honestly do not think this is a capital murder. As for
armed robbery, Michelle was stabbed and probably dead before he got
around to loading the TVs and other stuff."
Assistant District Attorney Chris Schmidt told the jury,
"It doesn't matter in the arson occurred before he stabbed her, after
he stabbed her, or on his way out the back gate. Murder and arson fold
into the crime of capital murder."
Before closing arguments, Harrison County Judge Lisa Dodson issued
a ruling that could have spared Ronk from the death penalty. That
ruling allowed the jury to deliberate on the capital murder charge,
which carries the death penalty, or murder which does not.
Prosecutors argued, Ronk killed Craite, then set her house on fire
as one continuous action. The defense argued the fire was a separate
action done to cover up a crime, not part of the murder.
Judge Dodson ruled a reasonable jury could conclude the arson was
an attempt to cover up a crime, and not part of the murder itself.
Wednesday, the doctor who performed an autopsy on Craite testified
the victim's internal organs showed signs she was likely alive when
the fire started.
Capital murder trial begins for alleged roommate
October 5, 2010
GULFPORT, MS (WLOX) - The capital murder trial of Timothy Ronk
began Tuesday at the Harrison County Courthouse. Ronk is accused of
stabbing his roommate at the time, 38-year-old Michelle Craite, then
setting her home on fire back in August of 2008.
The first few prosecution witnesses spoke to evidence supporting
claims of arson. A Biloxi investigator testified a gas can was found
behind a SUV in the carport, but with no fingerprints on the can.
An agent with the Bureau of Alcohol, Tobacco Firearms and
Explosives testified about a gasoline trail that started near the
gasoline can, moved through the kitchen, the hall and into the master
bedroom where Craite was found face down.
A Wal-mart employee also testified that on the morning of the
blaze, Ronk used a debit card to buy an engagement ring at the store
and withdraw $100 in cash.
Another Biloxi investigator testified to Craite's bank activity. In
addition to the purchase, he said $500 was withdrawn from Craite's
account. Police say an ATM camera captured Ronk, along with the
Later that day, a purchase at a gas station was made with Craite's
card in Mobile, Alabama.
The investigator also testified that Ronk pawned about $600 worth
of items in Mobile.
Timothy Robert RONK a/k/a Timothy Ronk a/k/a
Timothy R. Ronk
STATE of Mississippi.
Decided: May 07, 2015
Alison R. Steiner, Justin T. Cook, Office of the State Public
Defender, attorneys for appellant. Melanie Dotson Thomas, Jason L.
Davis, Marvin L. White, Jr., Cameron L. Benton, Brad A. Smith, John R.
Henry, Jr., Office Of The Attorney General, attorneys for appellee.
¶ 1. A Harrison County jury found Timothy Ronk guilty of capital
murder and sentenced him to death. The jury also found Ronk guilty of
armed robbery, and the trial court sentenced him to thirty years'
imprisonment. Ronk now appeals his convictions and sentences to this
Court. Finding no error in the culpability phase or in the sentencing
phase, we affirm.
2. On the morning of August 26, 2008, emergency personnel responded to
reports of a house fire on Timber Ridge Lane in Biloxi, Mississippi.
In their efforts to extinguish the flames, firefighters discovered the
remains of a human body in a bedroom of the house. Dental records
would later identify the body as thirty-seven-year-old Michelle Lynn
Craite. Craite's autopsy revealed multiple stab wounds to her back in
addition to severe burns that destroyed her flesh down to the bone.
Craite had suffered blistering and burning to the lining of her mouth,
tongue, larynx, and windpipe, and a high level of carbon monoxide was
found in Craite's blood. This evidence indicated that Craite was still
alive and breathing during the fire. Dr. Paul McGarry, a forensic
pathologist, opined that the stab wounds likely were the cause of
Craite's death, as she would have died from those wounds within
“minutes” or “hours” without medical assistance. However, he noted
that the stab wounds also incapacitated Craite so that she could not
escape from the fire.
¶ 3. Officer Carl Short and
Investigator Mike Shaw with the Biloxi Police Department were called
to the scene shortly after the firefighters arrived. While waiting to
gain access to the inside of the house, the officers began a perimeter
investigation. Officer Short ran the license plate of a red Ford
Explorer parked in the house's carport and discovered that the car
belonged to Craite. Officer Short also noticed a red plastic gas can
sitting in the carport, which appeared to be “out of place.” After the
fire had been extinguished, Investigator Shaw went to investigate the
body, which was laying face down on the floor of the master bedroom.
Investigator Michael Manna, who took photographs of the scene,
explained that the body had been severely burned, and, “You couldn't
even tell it [sic] was a man or a woman until you rolled her over.”
¶ 4. Special agents from the Bureau of Alcohol, Tobacco and Firearms
investigated the cause of the fire. ATF Special Agent Drew Sheldrick
and another agent used a fire dog to walk the perimeter and the inside
of Craite's house. In total, the dog “alerted” thirteen times to the
presence of ignitable liquid in and around Craite's home, including
three alerts in the master bedroom, two alerts in the hallway, two
alerts in the carport, and one alert on the porch. The ATF
investigation resulted in a determination that the fire in Craite's
house had been intentionally set, with gasoline vapors being the
ignition source. Agent Sheldrick concluded that the gasoline trail
traveled “all the way from [the gas can in the carport] through the
kitchen and down the hall and into the master bedroom,” where Craite
¶ 5. Sergeant Christopher DeBack,
Supervisor for Violent Crimes Against Persons for the Biloxi Police
Department, and lead investigator in this case, interviewed Craite's
neighbors and family regarding her death. These individuals stated
that Craite had moved to Mississippi from Michigan in 2008 and had
been in a relationship with Timothy Ronk. They also confirmed that
Ronk had been living with Craite at the time of the fire. During his
investigation, Sergeant DeBack learned that Ronk drove a dark green
1999 Honda Passport, and he instructed local police to be on the
lookout for that vehicle.
¶ 6. _ Officer Short and
Investigators Shaw and Manna conducted a search of Craite's Ford
Explorer. Receipts and items from the glove compartment were strewn
about the passenger and driver seats of the vehicle. Investigator
Manna retrieved a Mississippi tax receipt and a Mississippi
application for certificate of title to a 1999 Honda from inside the
vehicle. Both of these documents were in Ronk's name. The
investigators also found Ronk's birth certificate inside the vehicle.
¶ 7. The police focused on Ronk as their primary suspect and decided
to search Craite's bank and phone records for more evidence. After
obtaining a subpoena for Craite's bank accounts, the investigators
discovered that someone had used Craite's debit card on the morning of
her death. The bank records showed a $500 withdrawal from a
BancorpSouth ATM located in a Walmart in D'Iberville, Mississippi, a
$418.16 purchase at the jewelry department of the same Walmart, and a
$116.18 purchase at a Shell gas station in Mobile, Alabama. With a
subpoena, police obtained still images from the Walmart ATM's
surveillance camera, and Ronk was pictured in the photographs. The
police also learned that Ronk had purchased three cartons of
cigarettes and an energy drink at the Mobile gas station and had
forged Craite's signature on the receipt.
Investigator Shaw interviewed Jennifer Mitchell, the manager of the
D'Iberville Walmart. Mitchell confirmed that, on August 26, 2008, she
had assisted a man with the purchase of a diamond ring. After being
shown the picture from the ATM surveillance camera, Mitchell
positively identified Ronk as the man who had purchased the ring.
According to Mitchell, Ronk initially had expressed interest in a
particular ring, but said that “he didn't have time to wait” when he
was told the ring would have to be ordered. Ronk then selected a
different ring and purchased it using Craite's debit card, receiving
one hundred dollars back in cash.
¶ 9. After
obtaining a subpoena for Craite's phone records, Sergeant DeBack
learned that Craite kept two cellular phones, and that Ronk had been
using one of them. The records revealed that the phone Ronk had been
using showed extensive activity to a cell phone number in the (904)
area code in northeastern Florida. The phone number belonged to
Heather Hindall, a resident of Middlesburg, Florida. Craite's phone
records indicated that Ronk and Hindall had communicated regularly,
and that their communication had increased in frequency during the two
weeks preceding Craite's death. A few days prior to Craite's death,
Ronk had sent Hindall a text message asking if she needed a television
or an Xbox video game console. Then, on the morning of Craite's death,
Ronk had sent Hindall a text message stating that he was loading up
and coming to Florida.
¶ 10. On August 27, 2008, two
United States Marshals approached Ronk and Hindall as they were
leaving a department store in Jacksonville, Florida, and placed Ronk
under arrest for the murder of Michelle Lynn Craite. Law enforcement
officials also recovered a knife from Ronk's vehicle. That same day,
investigators with the Biloxi Police Department traveled to
Jacksonville to question Ronk and Hindall. Hindall told the
investigators that she had developed an online relationship with Ronk
some time in July of 2008, while he was living with Craite. Hindall
was aware that Ronk was living with a “roommate” in Biloxi, but she
believed that he planned to move to Florida to marry her. Hindall
recalled a phone conversation with Ronk on the night before Craite's
death, during which she had heard Craite yelling at Ronk in the
background. The next evening, Ronk had arrived in Florida and had
proposed to Hindall with the ring he had purchased at the Walmart in
¶ 11. Hindall visited Ronk after he was
arrested. During their meeting, Ronk told Hindall that he and Craite
had gotten into an argument when he attempted to leave for Florida,
and Craite had tried to attack him with a knife. He told Hindall that
he had disarmed Craite and stabbed her when she threatened to get a
shotgun and kill him. Then, Ronk “poured gasoline over everything and
lit it on fire and jumped in his truck and took off, and he told me
that he had threw [sic] the knife over the bay bridge before he got to
¶ 12. Ronk later confirmed this story in a
letter he wrote to Hindall from prison in October 2008. In the letter,
Ronk described Craite as a “rich widow” and an “alcoholic millionaire”
who fell for him “at first sight.” Ronk admitted to Hindall that he
had manipulated Craite “to get the car so I could come see you, used
her to buy your ring, used her to have money to make the trip.” The
letter stated that, on the morning of Craite's death, Ronk told Craite
that he was leaving for Florida. She began slapping him and then
approached him with a knife. Ronk asserted that he never intended to
kill Craite, and he had stabbed her only after she threatened to shoot
him. Ronk concluded, “When I realized what I had done, I cleaned the
knife off, changed my clothes, doused the house with gasoline, set it
on fire and drove off․”
¶ 13. No weapons were found
inside Craite's house. However, the police did find two unloaded
shotguns stored in their cases in a studio apartment behind Craite's
14. On June 1, 2009, a grand jury indicted Ronk for armed robbery and
capital murder with the underlying felony of arson. Ronk's trial
commenced on October 4, 2010. Ronk presented no witnesses in his
defense. On October 7, 2010, a jury convicted Ronk of capital murder
and armed robbery. Ronk's sentencing hearing commenced the following
day. To prove additional aggravating circumstances supporting the
death penalty, the State relied primarily on the reintroduction of
evidence from the culpability phase of trial. Ronk presented Dr.
Beverly Smallwood, a psychologist, as a mitigation witness. Dr.
Smallwood testified that Ronk had been diagnosed with bipolar disorder
and ADHD early in life. As a result, Dr. Smallwood opined that Ronk
was susceptible to impulsive behavior, but clarified that Ronk's
disorders did not significantly interfere with his ability to separate
right from wrong.
¶ 15. At the conclusion of the
sentencing phase of Ronk's trial, the jury unanimously sentenced Ronk
to the death penalty for his capital-murder conviction. The jury
provided the following findings supporting its decision:
We the jury unanimously find from the evidence beyond a reasonable
doubt that the following facts existed at the time of the commission
of the capital murder.
• The Defendant actually
killed Michelle Lynn Craite.
Next, we, the Jury,
unanimously find that the aggravating circumstances of:
• The capital offense was committed while the Defendant was engaged in
the commission of Arson.
• The capital offense was
committed by a person under sentence of imprisonment.
• The capital offense was especially heinous, atrocious, or cruel.
Exists beyond a reasonable doubt and is/are sufficient to impose the
death penalty and that there are insufficient mitigating
circumstance(s) to outweigh the aggravating circumstance(s), and we
further find unanimously that the Defendant should suffer death.
The trial court sentenced Ronk to thirty years' imprisonment for the
¶ 16. After his post-trial
motions were denied by the trial court, Ronk timely appealed his
conviction and sentence, raising the following issues:
I. Whether the trial court erred in giving or failing to give certain
jury instructions during the culpability phase of trial.
II. Whether the verdict was supported by sufficient evidence.
III. Whether Ronk received ineffective assistance of counsel during
the sentencing phase of trial.
IV. Whether the trial
court failed to sequester the jury properly.
Whether inadmissible evidence was allowed into trial.
VI. Whether the State overcompensated Heather Hindall for her trial
VII. Whether the trial court properly
instructed the jury during the sentencing phase of trial.
VIII. Whether Ronk's death sentence is unconstitutional.
IX. Whether the death sentence is disproportionate to the crime.
X. Whether any error can be considered harmless.
Whether the cumulative effect of all errors mandates reversal or a new
¶ 17. Additional facts will be discussed
below as they relate to each issue.
¶ 18. This Court reviews an appeal from a capital-murder conviction
and death sentence under heightened scrutiny. Walker v.. State, 913
So.2d 198, 216 (Miss.2005) (citations omitted). We must resolve all
genuine doubts in favor of the accused. Id. “[W]hat becomes harmless
error in a case with less at stake may become reversible error when
the penalty is death[.]” Hansen v. State, 592 So.2d 114, 142
(Miss.1991) (citing Irving v. State, 361 So.2d 1360, 1363
I. Whether the trial court erred in
giving or failing to give certain jury instructions during the
culpability phase of trial.
¶ 19. At trial, Ronk
requested jury instructions supporting three theories of defense:
self-defense, imperfect-self-defense manslaughter, and
deliberate-design murder. Ronk also submitted a jury instruction on
heat-of-passion manslaughter, but he later withdrew that instruction.
The trial court granted Ronk's self-defense and murder instructions
but denied his imperfect-self-defense manslaughter instruction. At the
State's request, and over Ronk's objection, the trial court also
instructed the jury on arson as a separate lesser offense. In
addition, the trial court instructed the jury on the
one-continuous-transaction doctrine applicable to felony-murder cases.
On appeal, Ronk argues that the trial court erred in denying his
imperfect-self-defense instruction, in giving the State's arson
instruction, and in giving a one-continuous-transaction instruction.
¶ 20. “It is well settled that jury instructions generally are within
the discretion of the trial court, so the standard of review for the
denial of jury instructions is abuse of discretion.” Newell v. State,
49 So.3d 66, 73 (Miss.2010) (citing Davis v. State, 18 So.3d 842, 847
(Miss.2009) (internal citations omitted)). When considering whether
error lies in granting or refusing a jury instruction, the
instructions actually given must be read as a whole and in context.
Ruffin v. State, 992 So.2d 1165, 1176 (Miss.2008) (citations omitted).
No reversible error exists if the instructions fairly, though not
perfectly, announce the law of the case and create no injustice.
Rubenstein v. State, 941 So.2d 735, 784–785 (Miss.2006) (citations
omitted). “A defendant is entitled to have jury instructions given
which present his theory of the case[;] however, this entitlement is
limited in that the court may refuse an instruction which incorrectly
states the law, is covered fairly elsewhere in the instructions, or is
without foundation in the evidence.” Agnew v. State, 783 So.2d 699,
702 (Miss.2001) (citations omitted). “In homicide cases, the trial
court should instruct the jury about a defendant's theories of
defense, justification, or excuse that are supported by the evidence,
no matter how meager or unlikely [.]” Manuel v. State, 667 So.2d 590,
593 (Miss.1995). We address each of Ronk's arguments regarding jury
A. Whether the trial
court erred in failing to grant an instruction on
Instruction D–17 embodied Ronk's theory of imperfect self-defense.
This instruction asked the jury to find Ronk guilty of manslaughter if
it found that Ronk “did willfully kill Michelle Lynn Craite, without
malice, under the bona fide belief, but without reasonable cause
therefore, that it was necessary for him so to do in order to prevent
Michelle Lynn Craite from inflicting death or great bodily harm upon
him[.]” The trial court denied this instruction, finding that a
reasonable jury could not acquit Ronk of capital murder and convict
him of manslaughter based on the evidence presented at trial. Ronk now
argues that this instruction was supported by his statements to
Hindall concerning his altercation with Craite on the day of her
death. Because no weapons were found inside Craite's house, but two
shotguns were found in the studio apartment behind the house, Ronk
argues that a reasonable jury could find him guilty of
imperfect-self-defense manslaughter, rather than capital murder.
¶ 22. Unlike true self-defense, imperfect self-defense is not a
defense to a criminal act. Rather, under the theory of imperfect
self-defense, “an intentional killing may be considered manslaughter
if done without malice but under a bona fide (but unfounded) belief
that it was necessary to prevent death or great bodily harm.” Wade v.
State, 748 So.2d 771, 775 (Miss.1999) (citing Lanier v. State, 684
So.2d 93, 97 (Miss.1996)). The Legislature has determined that
manslaughter is a lesser-included offense to both capital murder and
simple murder, “and the jury may be properly instructed thereon ․ in
any case in which the giving of such instruction would be justified by
the proof, consistent with the wording of the applicable manslaughter
statute.” Miss.Code Ann. § 99–19–5(2) (Rev.2007) (emphasis added).
This Court has held that a jury instruction on a lesser-included
offense should be granted where a rational jury could find the
defendant “not guilty of the principal charge made in the indictment
but guilty of a lesser included offense[.]” Fairchild v. State, 459
So.2d 793, 800 (Miss.1984) (citing Knowles v. State, 410 So.2d 380,
382 (Miss.1982)). In making this determination, this Court must
“tak[e] the evidence in the light most favorable to the accused, and
conside[r] all reasonable inferences which may be drawn in favor of
the accused from the evidence[.]” Harper v. State, 478 So.2d 1017,
1021 (Miss.1985). Keeping this standard in mind, we find that Ronk was
not entitled to an instruction on imperfect-self-defense manslaughter.
¶ 23. Ronk was charged with capital murder under Section 97–3–19(2)(e)
of the Mississippi Code, which provides, in relevant part, “The
killing of a human being without the authority of law by any means or
in any manner shall be capital murder ․ [w]hen done with or without
any design to effect death, by any person engaged in the commission of
the crime of ․ arson[.]” Miss.Code Ann. § 97–3–19(2)(e) (Rev.2014).
“Unlike other sections of the capital murder statute, Subsection 2(e)
does not require the prosecution to prove the elements of murder, only
that a killing took place while the accused was ‘engaged in the
commission’ of the enumerated felonies.” Layne v. State, 542 So.2d
237, 243 (Miss.1989). See also Gray v. State, 351 So. 1342, 1348
(Miss.1977) (holding that malice, premeditation, or deliberation are
not elements of felony murder). Thus, Ronk's case is distinguishable
from those in which the defendant was charged either with simple
murder or a different category of capital murder, which require the
State to prove malice. See, e.g., Maye v. State, 49 So.3d 1124,
1129–33 (Miss.2010) (holding that the trial court erred in denying
defendant's defense-of-others instruction, where defendant was charged
with capital murder of a police officer under Section 97–3–19(2)(a));
Williams v. State, 53 So.3d 734 (Miss.2010) (holding that the trial
court erred in denying defendant's assisted-suicide instruction, where
defendant was charged with simple murder); Cole v. State, 118 So.3d
663 (Miss.Ct.App.2012) (holding that trial court erred in denying
defendant's heat-of-passion manslaughter instruction, where defendant
was charged with simple murder). If the jury found that Craite's death
occurred while Ronk was engaged in the commission of an arson, the
fact that the killing was a manslaughter rather than a murder would
have no effect on his guilt under Section 97–3–19(2)(e).
¶ 24. Likewise, Ronk's case is distinguishable from other
felony-murder cases in which the defendant offered a true defense to
the underlying felony. For example, in Banyard v. State, 47 So.3d 676,
682 (Miss.2010), the defendant was charged with capital murder while
engaged in a robbery. The defendant argued at trial that he had
participated in the robbery under duress, but his proffered jury
instruction on duress was denied. Id. On appeal, this Court found that
the evidence supported both a duress instruction for the underlying
robbery and a manslaughter instruction, reasoning, “[I]f the jury
found that Banyard was indeed acting under duress, he could not be
found guilty of the robbery of Ballard, one of the essential elements
of the capital-murder charge.” Id. at 683.
Unlike the defendant in Banyard, Ronk did not offer a defense to the
underlying felony of arson. If the jury accepted Ronk's theory that he
stabbed Craite while acting in imperfect self-defense, he would still
be guilty of manslaughter, a “killing of a human being without the
authority of law.” See Miss.Code Ann. § 97–3–19(2) (Rev.2014).
Contrary to Banyard, Ronk's proffered theory of imperfect self-defense
does not eliminate an essential element of his capital-murder charge.
See, e.g., Jacobs v. State, 870 So.2d 1202, 1209 (Miss.2004)
(“Therefore, because Jacobs was found guilty of robbery, and the death
resulted in the commission of the robbery, Jacobs is guilty of capital
murder regardless of whether a lesser-included offense instruction [on
manslaughter] is given.”).
¶ 26. Finally, Ronk
relies on a single statement of dicta in Gause v. State, 65 So.3d 295,
299 (Miss.2011), rejected on other grounds, Hall v. State, 127 So.3d
202, 207 (Miss.2013). In Gause, the defendant was charged with capital
felony murder but was convicted of heat-of-passion manslaughter and
burglary. Id. On appeal, the defendant argued that the trial court had
erred in instructing the jury on burglary as a lesser-included offense
to capital murder. Id. at 300. Though the propriety of the
manslaughter instruction was not an issue on appeal, the Gause Court
began its discussion of the case by noting that “it is undisputed that
Gause was entitled to a heat-of-passion manslaughter instruction,
based on the evidence.” Id.
¶ 27. Ronk argues that, under Gause, a manslaughter instruction is
warranted in a felony-murder case even when the evidence of the
underlying felony is largely undisputed. But the above-quoted dicta in
Gause does not stand for such a proposition. The Gause Court provided
no authority, other than the statute generally defining
lesser-included offenses, to support its statement regarding the
propriety of a manslaughter instruction in that case. Moreover, the
statement in question is mere dicta, as the propriety of a
manslaughter instruction was not an issue on appeal in Gause. Finally,
and most importantly, the statement was incorrect. As the defendant in
Gause conceded, manslaughter, if committed during the course of a
burglary, would constitute capital murder, because “capital murder
does not require intent to kill, but only that a killing have occurred
during the commission of an enumerated felony.” Id. As explained
above, the same reasoning applies in this case. Even if the jury
accepted Ronk's theory of imperfect self-defense, such a finding would
lower his culpability for Craite's death to manslaughter, which is a
“killing of a human being without the authority of law.” See Miss.Code
Ann. § 97–3–19(2) (Rev.2014). No evidence was presented which would
have allowed the jury to separate the killing from the arson and
convict Ronk only of manslaughter. Accordingly, we hold that the trial
court did not err in denying Ronk's imperfect-self-defense
B. Whether the trial
court erred in allowing the jury to consider a verdict of arson as a
lesser-included offense of capital murder.
At the conclusion of trial, Ronk sought a jury instruction on
deliberate-design murder under the theory that the arson and the
killing were distinct and unrelated crimes. Although the trial court
clearly harbored doubts about the evidentiary basis for such an
instruction, it granted the instruction “out of an abundance of
caution.” Concerned that Ronk would escape punishment for the admitted
arson if the jury returned a verdict finding him guilty of only simple
murder, the State asked the court to include a lesser-offense
instruction on arson. The court asked Ronk if he agreed with giving an
arson instruction. Ronk initially disagreed, simply stating, “There's
no basis for doing so.” The court ordered the State to draft an arson
instruction and submit it to the defense for review. Then, after
further deliberation on other instructions, the following exchange
THE COURT: Then as I understand from the
off-the-record discussions we have D–11, which the Court granted,
which was the lesser included concerning murder. We have S–103, which
is the one that the state has now submitted concerning the arson
elements, and then we've tried to combine those into what is now known
as D–11A. If I'm understanding correctly, defense, you would withdraw
D–11. State, you would withdraw, S–103, and both parties would agree,
based on the court's other rulings concern [sic] the lesser included
and the arson, that D–11A would be the proper instruction. State?
STATE: We would.
THE COURT: Defense?
DEFENSE: That's correct, Your Honor.
Ronk's murder instruction and the State's arson instruction.
¶ 29. On appeal, Ronk argues that the trial court erred in granting
instruction D–11A, because arson is not a lesser-included offense of
capital murder. Thus, he argues that instruction D–11A effectively
constituted a substantive amendment to his indictment. We find this
issue to be procedurally barred. “It is incumbent on the party
asserting error to make a contemporaneous objection and obtain a
ruling in order to preserve the objection.” Brown v. State, 965 So.2d
1023, 1029 (Miss.2007). Ronk agreed to the submission of D–11A. Thus,
he has waived any argument concerning this instruction.
¶ 30. Procedural bar notwithstanding, this argument is without merit,
as the trial court's decision to give an arson instruction could not
have contributed to the jury's verdict in this case. In Conley v.
State, 790 So.2d 773, 792–93 (Miss.2001), a capital-murder defendant
argued on appeal that the trial court had erred in giving the State's
manslaughter instruction, which failed to fully define culpable
negligence. The Court agreed with the defendant but found that the
trial court's error did not contribute to the verdict, “as the jury
unanimously agreed that Conley murdered Whitney Berry while engaged in
the crime of kidnapping.” Id. at 793. Here, because the jury convicted
Ronk of capital murder, any alleged error in instructing the jury
separately on arson would be harmless beyond a reasonable doubt. “This
Court will deem harmless an error where ‘the same result would have
been reached had [it] not existed.’ “ Pitchford v. State, 45 So.3d
216, 235 (Miss.2010) (quoting Tate v. State, 912 So.2d 919, 926
(Miss.2005)). Accordingly, this argument is without merit.
C. Whether the trial court erred in instructing the jury on the
“one continuous transaction” theory of capital felony murder.
¶ 31. Ronk argued at trial that he could not be convicted of capital
murder because Craite's death did not occur while Ronk was “engaged in
the commission” of an arson. At the conclusion of the trial, over
Ronk's objection, the trial court accepted the State's instruction
S–101, which defined the one-continuous-transaction doctrine
applicable to felony-murder cases. The instruction provided, in
relevant part: “[A] killing occurring while engaged in the commission
of an arson includes the actions of the defendant leading up to the
arson, the arson and the flight from the scene of the arson.” On
appeal, Ronk argues that the trial court erred in giving instruction
S–101 because the evidence does not support a finding that Craite died
“as a result of the arson.”
¶ 32. We find that the
trial court did not err in instructing the jury on the
one-continuous-transaction doctrine, which was adopted by this Court
to define the requisite causal nexus between a killing and the
underlying felony in a capital felony-murder case. Fisher v. State,
481 So.2d 203, 212 (Miss.1985). This Court repeatedly has approved of
instructions in felony-murder cases with language identical to
instruction S–101. See Batiste v. State, 121 So.3d 808, 832–33
(Miss.2013); Fulgham v. State, 46 So.3d 315, 328–29 (Miss.2010). Thus,
instruction S–101 was a correct statement of the law governing capital
felony-murder cases. Ronk's arguments here relate more to the
sufficiency of the evidence, rather than the legality of S–101 as a
general matter. We address those arguments below.
II. Whether the verdict was supported by sufficient evidence.
¶ 33. Ronk challenges the sufficiency of the State's evidence to prove
that he killed Craite while engaged in the commission of an arson. He
argues that, because he did not intend to commit an arson at the time
he stabbed Craite, the evidence presented to the jury does not support
a capital-murder conviction. When reviewing the sufficiency of the
evidence, we must determine whether the evidence shows “beyond a
reasonable doubt that accused committed the act charged, and that he
did so under such circumstances that every element of the offense
existed[.]” Bush v. State, 895 So.2d 836, 833 (Miss.2005). This Court
must view all credible evidence consistent with the defendant's guilt
and all inferences drawn from the evidence in the light most favorable
to the State. Hughes v. State, 90 So.3d 613, 629 (Miss.2012). The
evidence will be found to be sufficient if “it is of such weight and
quality that, ‘having in mind the beyond a reasonable doubt burden of
proof standard, reasonable fair-minded men in the exercise of
impartial judgment might reach different conclusions on every element
of the offense.” Bush, 895 So.2d at 843 (quoting Edwards v. State, 469
So.2d 68, 70 (Miss.1995)). If any reasonable trier of fact could have
found the essential elements of the crime beyond a reasonable doubt,
this Court will not disturb the jury's verdict. Id.
¶ 34. To sustain a conviction for capital murder, the State was
required to prove beyond a reasonable doubt that Ronk killed Craite,
without the authority of law, and with or without any design to effect
her death, while he was engaged in the commission of the crime of
arson. Miss.Code Ann. § 97–3–19(2)(e) (Rev.2014). For the underlying
felony of arson, the State was required to prove beyond a reasonable
doubt that Ronk willfully and maliciously set fire to or burned
Craite's house, regardless of whether it was occupied. Miss.Code Ann.
§ 97–17–1(1) (Rev.2014). Ronk challenges only the sufficiency of the
evidence supporting the causal nexus between the killing and the
¶ 35. Viewing the evidence and the reasonable
inferences drawn therefrom in the light most favorable to the State,
we find no merit in Ronk's assertion that the arson was only
incidental to the killing. Ronk admitted to pouring gasoline
throughout Craite's house and setting it on fire after stabbing her
multiple times, leaving her incapacitated. Dr. McGarry offered
substantial evidence indicating Craite was still alive at the time of
the fire, but was unable to escape due to her stab wounds. Faced with
this evidence, a reasonable jury could find that Ronk killed Craite
“without the authority of law” while he was “engaged in the commission
of” an arson, as required by our capital-murder statute. See Miss.Code
Ann. § 97–3–19(2)(e) (Rev.2014). Accordingly, we hold that the
evidence presented was sufficient to sustain a conviction of capital
murder with the underlying felony of arson.
Whether Ronk received ineffective assistance of counsel during the
sentencing phase of trial.
¶ 36. A claim of
ineffective assistance of counsel requires proof of two elements.
First, the defendant must prove that his counsel's performance was
deficient. Irby v. State, 893 So.2d 1042, 1049 (Miss.2004) (citing
Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984)). To establish deficient performance, the defendant
must show that his counsel's representation fell below “an objective
standard of reasonableness.” Davis v. State, 897 So.2d 960, 967
(Miss.2004) (citing Williams v. Taylor, 529 U.S. 362, 390–91, 120
S.Ct. 1495, 146 L.Ed.2d 389 (2000)). Second, the defendant must prove
that such deficient performance prejudiced the defense of the case.
Ross v. State, 954 So.2d 968, 1003 (Miss.2007) (citing Irby, 893 So.2d
at 1049). “To establish prejudice, a defendant must show that there is
a reasonable probability that, but for counsel's unprofessional
errors, the result of the trial would have been different.” Id. at
1003–04 (citing Davis, 897 So.2d at 967). Where ineffectiveness is
established in the sentencing phase of a capital proceeding, the
resulting death penalty must be vacated and a new sentencing
proceeding held. Doss v. State, 19 So.3d 690, 709 (Miss.2009).
¶ 37. Generally, ineffective-assistance claims are more appropriately
brought during post-conviction proceedings. Archer v. State, 986 So.2d
951, 955 (Miss.2008). However, a claim of ineffectiveness may be
raised on direct appeal “if such issues are based on facts fully
apparent from the record.” Miss. R.App. P. 22(b) (emphasis added).
Where, as here, the defendant's appellate counsel did not represent
the defendant at trial, failure to raise such issues on direct appeal
will bar consideration of the issue in post-conviction proceedings.
¶ 38. Ronk asserts that his trial attorney's
performance during the sentencing phase of trial was deficient for
four reasons. First, Ronk claims that his attorney suffered from
significant medical problems throughout the course of his
representation of Ronk, impeding his performance and perhaps his
judgment. Second, Ronk claims that his attorney enlisted the
assistance of an expert witness who was not equipped to perform a
mitigation study in a capital case and who presented inadmissible
prejudicial evidence to the jury. Next, Ronk argues that his counsel
impermissibly failed to request jury instructions on statutory
mitigating factors supporting the defense's mitigation theory.
Finally, Ronk contends that his attorney made a prejudicially
inadequate closing argument at the completion of the sentencing phase
of trial. He also points to various other alleged errors under other
issues in his brief and asks this Court to view those errors
alternatively as claims of ineffective assistance. We find that these
claims are not based on facts fully apparent from the record, and it
would be inappropriate for this Court to attempt to dispose of them on
direct appeal. Accordingly, we dismiss this claim of error without
prejudice to Ronk's ability to raise it properly in a post-conviction
IV. Whether the trial court
failed to sequester the jury properly.
¶ 39. On
October 4, 2010, the parties selected the final panel of twelve jurors
and two alternates from a pool of thirty-six venire members. Without
revealing the final makeup of the jury, the trial court gave the
following instruction to all thirty-six members of the venire:
Jurors one through 36, some amongst you will be serving on this case
and will be staying with us so I need you to listen very carefully to
my instructions․ I'm going to let you go home for the evening․ What
I'm going to have to ask each of you to do is to pack a bag as if you
are staying with us. You need to pack and plan for tomorrow through
Friday․ If you have something that you want to read in the evening you
may bring that. However, it may not have anything to do with the legal
system, with law enforcement, anything of that type․ You have the same
instructions that you had at lunchtime. That you may not make up your
mind about the case. You may not discuss the case with anyone. You
cannot tell anyone, you can simply tell them I'm still pending being
selected for jury duty. I can't discuss it with you right now․ Again
reminding you, do not do any research of any kind. Do not receive any
messages of any kind from anyone giving you any sort of information
[about the case]. Do not become exposed to any media coverage. That
includes don't read the paper․ Do not watch the news tonight. If it
appears there's going to be any sort of blurb at all about it you
don't want to watch that part. Everyone understand? Did I leave out
anything, Mr. Schmidt, Mr. Geiss?
The attorneys did
not add anything to this instruction. The next morning, the trial
court announced the twelve jurors and two alternates, and they were
sworn in for jury duty. At this point, the jurors were sequestered for
the entire trial.
¶ 40. For the first time on
appeal, Ronk challenges the trial court's sequestration procedure.
Again, because Ronk did not submit a contemporaneous objection to this
procedure, his claim is procedurally barred on appeal. Cole, 525 So.2d
at 369. Notwithstanding the procedural bar, Ronk's argument is without
¶ 41. Uniform Circuit and County Court Rule
10.2 requires the jury to be sequestered “during the entire trial” in
any case in which the State seeks the death penalty. URCCC 10.2. In
capital cases, Rule 10.2 is enforced “to insure a fair and impartial
jury that will return a verdict beyond reproach.” Simmons v. State,
805 So.2d 452, 506 (Miss.2001). Ronk argues that the trial court
violated Rule 10.2 by letting the venire panel go home after the final
jury panel had been selected. But this Court has approved of this
exact procedure. Watts v. State, 733 So.2d 214, 242 (Miss.1999). In
Watts, the jury was empaneled, sworn in for duty, and then allowed to
return home briefly to pack. Id. Because the trial had not actually
commenced, and because the jury had not admonished, this Court
determined there was no reversible error. Id. at 242–244. However,
this Court cautioned that “[t]he better practice would have been for
the circuit court to advise venire members the night before final jury
selection and swearing in to come to court with packed suitcases.” Id.
at 244. In the instant case, the trial court followed this Court's
instruction in Watts. The trial court allowed the venire panel to go
home and pack on the night before the final jury selection was
announced. The trial court gave the venire members an appropriate
admonition regarding discussing the case. The next day, the final jury
panel was announced, and the jurors were sequestered “during the
entire trial.” URCCC 10.2. Accordingly, the trial court did not fail
to sequester the jury properly.
inadmissible evidence was presented to the jury at trial.
¶ 42. Ronk challenges several of the trial court's evidentiary rulings
during the culpability phase of his trial. First, Ronk claims that the
trial court erred in limiting Heather Hindall's testimony regarding
Ronk's statements to her about Craite. Next, Ronk argues that the
trial court erred in admitting a knife found in Ronk's car when he was
arrested in Florida. Third, Ronk argues that the admission of Craite's
bank records violated his right to confront the witnesses against him.
Further, Ronk argues that the trial court erred in allowing Jennifer
Mitchell, the Walmart employee who sold Ronk a diamond ring, to
testify regarding her out-of-court identification of Ronk. And
finally, Ronk argues that the State presented impermissibly
inflammatory evidence at various stages of the trial. Because the
admission and exclusion of evidence rests in the trial court's
discretion, we will not reverse a trial court's evidentiary ruling
absent a finding of abuse of discretion “so as to be prejudicial to
the accused.” Burrows v. State, 961 So.2d 701, 706 (Miss.2007)
(quoting Fisher v. State, 690 So.2d 268, 274 (Miss.1996)).
A. Whether the trial court erred in limiting Hindall's testimony
regarding statements made by Ronk describing a “violent confrontation”
¶ 43. On direct examination of
Heather Hindall, the State introduced a letter from Ronk to Hindall
describing the course of events leading up to Craite's death. On
cross-examination, Ronk's counsel asked Hindall if Ronk had ever
described Craite's personality to her. Hindall responded that Ronk had
told her that Craite was an alcoholic. The State objected to this
statement as inadmissible hearsay and character evidence of the
victim. The trial court asked Ronk whether this information was
contained in the letter already introduced into evidence, or if it was
contained in some other communication not yet in evidence. Ronk stated
that this line of questioning related to a phone conversation between
Ronk and Hindall the night before Craite's death, during which Hindall
had overheard Craite yelling at Ronk. The trial court allowed Ronk to
make a proffer of Hindall's testimony regarding that phone
conversation. The trial court then allowed Hindall to testify
regarding the phone conversation but prohibited Ronk from introducing
any other conversations for the purpose of attacking Craite's
character. After asking Hindall about her phone conversation with Ronk
on the night before Craite's death, Ronk tendered the witness for
redirect examination. On appeal, Ronk argues that the trial court
erred in limiting Hindall's testimony concerning her conversations
¶ 44. We find that Ronk's assertions are
without merit. In his brief, Ronk refers to “additional statements”
that he sought to admit into evidence, but no “additional statements”
were ever offered by Ronk during Hindall's cross-examination. It is
clear from the record that his attorney intended to question Hindall
only about the phone conversation in question, and the trial court
allowed Hindall to give that testimony. Thus, we find no error in the
trial court's evidentiary ruling here.
the trial court erred in admitting a knife into evidence that
allegedly was inconsistent with the characteristics of the knife used
to stab Craite.
¶ 45. At trial, Hindall
testified that Ronk told her that he had thrown the knife he had used
to stab Craite “over the bay bridge” on his way to Florida. Later in
her testimony, Hindall stated that she had observed a knife in Ronk's
vehicle when he arrived in Florida. The State then moved to introduce
Exhibit 50, the knife found in Ronk's vehicle on the day of his
arrest, into evidence for identification purposes only. Ronk did not
object. Hindall testified that she recognized the knife as the one she
saw in Ronk's vehicle when he arrived in Florida.
46. Exhibit 50 also was introduced during Dr. McGarry's direct
examination. Dr. McGarry testified that Craite had suffered multiple
stab wounds along her lower back prior to her death. Dr. McGarry
opined that the instrument used to inflict these wounds was likely a
knife “with a sharp edge and a blunt edge and a point, and it would
have a blade of somewhere in the range of at least four inches.” The
State presented Exhibit 50 to Dr. McGarry, and he opined that Exhibit
50 was consistent with the type of knife that inflicted the wounds in
question. Ronk did not object. On cross-examination, Ronk pointed out
the fact that Exhibit 50 featured a serrated back, which did not match
Dr. McGarry's description of the knife that inflicted Craite's wounds.
When confronted with this distinction, Dr. McGarry maintained his
opinion that Exhibit 50 was consistent with the type of knife used to
¶ 47. The State finally offered Exhibit
50 to be admitted into evidence during Investigator DeBack's
testimony. Investigator DeBack had recovered the knife from Ronk's
vehicle upon his arrest. He testified that the knife was tested for
DNA or other genetic material, but the results had come back negative.
When the State offered the knife into evidence, Ronk objected, arguing
that it was irrelevant to the crime because it did not match Dr.
McGarry's description of the murder weapon. The trial court denied
Ronk's objection, and the knife was admitted into evidence. On appeal,
Ronk again argues that the trial court erred in admitting the knife
into evidence because it lacked relevance and prejudiced his defense.
¶ 48. “All relevant evidence is admissible, except as provided by the
Constitution of the United States, the Constitution of the State of
Mississippi, or by [the Mississippi Rules of Evidence].” Miss. R. Evid.
402. Evidence is considered relevant if it has “any tendency to make
the existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be without
the evidence.” Miss. R. Evid. 401. Of course, relevant evidence may be
excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the
jury. Miss. R. Evid. 403. “Where a trial court determines that
potentially prejudicial evidence possesses sufficient probative value,
it is within that court's sound discretion whether or not to admit
same, since M.R.E. 403 does not mandate exclusion but rather provides
that the evidence may be excluded.” Jones v. State, 904 So.2d 149, 152
(Miss.2005) (citing Baldwin v. State, 484 So.2d 148, 156 (Miss.2001)).
¶ 49. This Court has held that “[w]hen there is evidence that a weapon
could have caused an injury and some connection between the defendant
and the weapon exists, the weapon will be deemed relevant and
admissible.” Ross v. State, 954 So.2d 968, 993 (Miss.2007). In Ross,
this Court held that the trial court did not err in admitting into
evidence a gun of the same caliber as the murder weapon, even though
no forensic evidence tied the gun to the defendant, where a witness
testified that the defendant had disposed of the gun the day after
admitting to the victim's murder. Id. Similarly, in Stokes v. State,
518 So.2d 1224, 1227 (Miss.1988), this Court held that it was not
error for the trial court to admit into evidence a pair of pliers as
the possible murder weapon. Even though there was no proof that the
pliers actually were used to kill the victim, other evidence showed
that a blow by the pliers could have caused the type of injury
sustained by the victim. Id. In the instant case, just as in Ross and
Stokes, although no forensic evidence linked the knife to Craite's
murder, Dr. McGarry specifically opined that the knife was consistent
with the type of knife that caused Craite's stab wounds, even after
considering the fact that Exhibit 50 had a serrated back. Thus, Dr.
McGarry's testimony supported the knife's admissibility. And because
Ronk admitted to stabbing Craite with a knife, we find that the
knife's probative value is not outweighed by any arguable prejudicial
effect. Accordingly, the trial court did not abuse its discretion in
admitting Exhibit 50.
C. Whether the trial court
erred in admitting Craite's bank records.
Craite's bank statements were offered into evidence by the State
during the testimony of Detective Schlicht, who had obtained the
records under subpoena from the bank's security director. Ronk did not
object, and the trial court admitted the records into evidence. The
records showed that someone had used Craite's debit card after she had
died. Ronk now argues that the trial court's admission of the bank
records violated his Sixth Amendment right to confront the witnesses
against him. He claims that this evidence was testimonial in nature,
and that Detective Schlicht had no personal knowledge of how they were
¶ 51. Because Ronk did not raise a
contemporaneous objection to the admission of the bank records, his
argument on this issue is procedurally barred. “Counsel must object
contemporaneously to inadmissible evidence in order to preserve the
error for appeal.” Boyd v. State, 977 So.2d 329, 337 (Miss.2008)
(citations omitted). “If no contemporaneous objection is made, the
error, if any, is waived. This rule is not diminished in a capital
case.” Cole v. State, 525 So.2d 365, 369 (Miss.1987). We have
consistently applied the procedural bar to Confrontation Clause claims
when the issue was not raised at trial. See, e.g., Galloway v. State,
122 So.3d 614, 661 (Miss.2013); Rogers v. State, 928 So.2d 831, 838
¶ 52. Procedural bar notwithstanding,
Ronk's claim is without merit, as any conceivable error in the
admission of these records is harmless beyond a reasonable doubt. See
Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d
674 (1986) (recognizing that a violation of the Confrontation Clause
is subject to harmless-error analysis). In Van Arsdall, the United
States Supreme Court held that the prejudicial effect of a violation
of the Confrontation Clause is subject to a number of factors,
including “the importance of the witness's testimony in the
prosecution's case, whether the testimony was cumulative, the presence
of evidence corroborating or contradicting the testimony of the
witness on material points, the extent of cross-examination otherwise
permitted, and, of course, the overall strength of the prosecution's
case.” Id. In this case, Craite's bank statements did not directly
implicate Ronk in Craite's murder, but they helped explain the
investigation of Craite's death. Ronk was given ample opportunity to
cross-examine Dectective Schlicht concerning the acquisition of the
records and did not challenge the accuracy of the records. In
addition, the bank statements corroborated Ronk's own admissions that
he used Craite's money to buy Hindall's ring and to escape to Florida.
See Smith v. State, 986 So.2d 290, 301–302 (Miss.2008) (finding
harmless error in the trial court's admission of co-defendant's
out-of-court statement against the defendant, where defendant's own
admissions were “the most probative and damaging evidence admitted
against him, and constituted direct evidence of the facts related to
[the victim's] murder.”) Thus, we find that the admission of Craite's
bank statements was “unimportant in relation to everything else the
jury considered on the issue in question, as revealed in the record.”
Yates v. Evatt, 500 U.S. 391, 392, 111 S.Ct. 1884, 1886, 114 L.Ed.2d
432, 448 (1991)).
D. Whether the trial court
erred in failing to exclude evidence of Jennifer Mitchell's
identification of Ronk.
¶ 53. Investigator Shaw
interviewed Jennifer Mitchell, the jewelry sales manager of the
D'Iberville Walmart, on the day after Craite's death. Ronk had
purchased a diamond ring from Mitchell using Craite's debit card the
day before. Investigator Shaw showed Mitchell a photograph of Ronk
retrieved from the ATM surveillance camera, and Mitchell identified
Ronk as the man who had purchased the ring. During Investigator Shaw's
testimony, the State admitted the surveillance photograph of Ronk into
evidence, with no objection from Ronk.
Mitchell also testified in great detail regarding her interactions
with Ronk on the day of Craite's death. Mitchell testified that her
shift began at 7:00 a.m., and she assisted a man with the purchase of
an engagement ring at approximately 9:00 a.m. She recalled showing the
man a yellow-gold, half-carat, solitaire diamond ring that cost $798,
but he wanted to purchase a white-gold ring. Mitchell then showed him
a white-gold solitaire ring that cost $288. The man purchased the
white-gold ring with a debit card and requested $100 cash back. A
receipt for the ring confirming these details was admitted into
evidence. During Mitchell's testimony, the State showed her the
surveillance photograph of Ronk that previously had been admitted into
evidence, and Mitchell again identified Ronk as the man who had
purchased the ring from her. Mitchell also made an in-court
identification of Ronk. Ronk did not object to this procedure.
¶ 55. On appeal, Ronk argues that Mitchell's out-of-court
identification of him was unduly suggestive and should have been
excluded. He also argues that Mitchell's in-court identification was
tainted by the previous suggestive out-of-court identification.
However, Ronk did not object to the admission of any of this evidence.
Thus, his claim is procedurally barred. See Cole, 525 So.2d at 369.
Notwithstanding the procedural bar, Ronk's argument is without merit.
¶ 56. “The showing of a single photograph is an inherently suggestive
method of identification.” Herrerra v. Collins, 904 F.2d 944, 947 n. 1
(5th Cir.1990). Accordingly, this Court has held that a witness's
initial identification of the defendant, by means of a single
photograph, is “impermissibly suggestive.” Christmas v. State, 10
So.3d 413, 419 (Miss.2009). However, the admission of an impermissibly
suggestive pretrial identification, without more, does not offend due
process. Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d
401 (1972). “Such identification is admissible if, considering the
totality of the circumstances surrounding the identification
procedure, the identification did not give rise to a very substantial
likelihood of misidentification.” Roche v. State, 913 So.2d 306, 311
(Miss.2005) (citing York v. State, 413 So.2d 1372, 1383) (internal
citations omitted)). In determining the reliability of an
identification, this Court must consider the following factors:
the opportunity of the witness to view the criminal at the time of the
crime, the witness's degree of attention, the accuracy of the
witness's prior description of the criminal, the level of certainty
demonstrated by the witness at the confrontation, and the length of
time between the crime and the confrontation.
Biggers, 409 U.S.at 200. The reliability of the witness's
identification must be weighed against the corrupting effect of the
suggestive identification. Roche, 913 So.2d at 311.
¶ 57. This Court has reviewed an argument regarding the admissibility
of a single-photograph pretrial identification in Johnson v. State,
904 So.2d 162 (Miss.2005). In Johnson, the defendant was charged with
the sale of cocaine. Id. at 165. The undercover police officer who
purchased the cocaine identified the defendant after being shown a
single booking photograph of the defendant from the night of his
arrest. Id. This Court found no error in the trial court's failure to
exclude evidence of this identification. Id. at 169. Applying the
Biggers factors, this Court found that the officer had ample
opportunity to view the defendant, that the officer's level of
attention was high, that the officer was able to accurately describe
the defendant verbally before being shown the photograph, that the
officer was “100% sure” that the person in the photograph was the
defendant, and that the officer was shown the defendant's photograph
only a few days after the drug transaction. Id. Based on this
evidence, this Court found that there was little likelihood of
misidentification under the circumstances. Id.
In the instant case, Mitchell's pretrial identification of Ronk was
equally reliable. Mitchell had ample opportunity to view Ronk as she
assisted him with the purchase of a diamond ring. She described her
interaction with Ronk at length, displaying a high degree of attention
to detail. The accuracy of Mitchell's testimony was corroborated by
the receipt of Ronks' purchase, and the accuracy of her identification
was bolstered by her positive in-court identification of Ronk. When
shown the surveillance photograph of Ronk, Mitchell stated that she
was sure that Ronk was the man who had purchased the ring from her.
And finally, the length of time between Mitchell's interaction with
Ronk and her identification of him was, at most, one day. Based on the
totality of the circumstances, the conditions of Mitchell's pretrial
identification of Ronk were not so unduly suggestive as to give rise
to a substantial likelihood of an irreparable misidentification.
Simmons, 390 U.S. at 383. This argument is without merit.
E. Whether the State committed prosecutorial misconduct by
presenting unnecessary and inflammatory evidence concerning Craite's
suffering and injuries.
¶ 59. Ronk takes issue
with various statements adduced by the State through its witnesses and
during closing arguments regarding the extent of Craite's suffering
and injuries. Specifically, Ronk challenges Dr. McGarry's testimony
that Craite suffered burning and blistering to the lining of her
mouth, tongue, larynx, and windpipe, that Craite was still alive and
breathing at the time of the fire, and that Craite would have been
able to feel the pain of her body burning. He also argues that it was
improper for the State to sum up this testimony during closing
arguments with the following statement: “And you know she felt pain as
he stabbed her not once, not twice, but three times in the back. And
as she fell to the floor you know she was confused, you know she was
in pain.” Ronk argues that each of these instances “injected
inappropriate emotional distractions into the courtroom.”
¶ 60. Ronk failed to object to any of this testimony or argument by
the State. As such, this claim is procedurally barred. See Cole, 525
So.2d at 369. Despite Ronk's failure to preserve this alleged error,
his argument is without merit. Dr. McGarry's testimony was relevant to
proving the connection between Craite's death and the arson. During
trial, part of Ronk's theory of defense was that Craite was already
dead when he set her house on fire. Thus, Dr. McGarry's testimony had
significant probative value in contradicting this assertion and
supporting the State's theory that Ronk had committed capital murder
during the commission of an arson. As for the prosecutor's closing
argument, we find the challenged statement to be a proper restatement
of Dr. McGarry's testimony. Attorneys generally are afforded wide
latitude in arguing their cases to the jury. Sheppard v. State, 777
So.2d 659, 661 (Miss.2001). “[A]ny allegedly improper prosecutorial
comment must be considered in context, considering the circumstances
of the case, when deciding on their propriety.” Smith v. State, 729
So.2d 1191, 1215 (Miss.1998). The prosecutor's comments here were not
so inflammatory as to warrant relief.
the State overcompensated Heather Hindall for her trial testimony.
¶ 61. Hindall was required to travel from Florida and stay in Gulfport
for three nights to testify at Ronk's trial. After trial, the State
filed several motions to pay expenses related to Hindall's travel.
Specifically, the State requested permission to pay $444.80 to Bell
Travel Services, Inc., for Hindall's round-trip airfare, $82 .00 to
Hampton Inn for Hindall's one-night stay, and $233.77 to Hilton Garden
Inn for Hindall's two-night stay and meals. The trial court approved
the payment of each of these expenses. The State also requested
permission to pay Hindall $113.97 for travel and expenses. Finding
that Hindall was a “material witness for the prosecution” and that the
expenses were “reasonable, necessary, and allowable under the law,”
the trial court approved this payment, as well. However, the record
indicates that the State paid Hindall only $105.00.
¶ 62. On appeal, Ronk claims that the State overpaid Hindall for her
testimony and concealed it from the defense. As a result, Ronk argues
that these excess payments violate his constitutional rights. But Ronk
failed to raise this issue in the trial court. Ronk argues that the
State failed to disclose Hindall's payment, but the record belies this
assertion. The State's motion to secure Hindall's attendance, which
was filed in the trial court approximately six months before trial,
specified that the State would “pay the reasonable and necessary
expenses for said travel and accomodations. After trial, the State
filed a motion to pay the reasonable and necessary expenses related to
Hindall's travel. The trial court granted this motion in an order
dated November 17, 2010. Ronk had an opportunity to challenge this
payment in the trial court, as the hearing on his post-trial motions
was not held until three months later, on February 28, 2011. Again,
Ronk failed to object to Hindall's compensation. Thus, his argument is
procedurally barred. Keller v. State, 138 So.3d 817, 839 (Miss.2014)
(finding capital-murder defendant's claim of excessive witness
compensation procedurally barred, where defendant failed to raise the
issue at trial or in a post-trial motion). Procedural bar
notwithstanding, we find no merit in his claim.
63. Because Hindall was not a resident of Mississippi, the State
secured her testimony by subpoena, pursuant to the Uniform Law to
Secure the Attendance of Witnesses from Without the State in Criminal
Cases. See Miss.Code Ann. §§ 99–9–27 to 99–9–37 (Rev.2007). Section
99–9–33 of the Mississippi Code governs the compensation of such
witnesses for travel expenses. Section 99–9–33 provides: “If the
witness is summoned to attend and testify in this state, he shall be
tendered the sum of ten ($.10) cents a mile for each mile and five
($5.00) dollars for each day that he is required to travel and attend
as a witness.” Miss.Code Ann. § 99–9–33 (Rev.2007). In Woodward v.
State, 726 So.2d 524, 542–43 (Miss.1997), this Court considered
whether alleged excess payments to witnesses constituted prosecutorial
misconduct warranting reversal. In Woodward, the defendant claimed
that the State's expert witness had received excess compensation for
testifying at the defendant's resentencing hearing. Id. at 543. The
expert, who had flown from California to attend the hearing, was paid
$975 for expenses incurred during his three days of testimony. Id.
This Court could find no authority supporting the amount of the
witness's fee. Id. at 544. This Court then held, “[I]t is conceivable
that excessive payments to witnesses could affect the outcome of a
trial in some situations. However, in the case sub judice, there is no
indication that the witnesses' testimony changed based on the payments
they received.” Id. Because the defendant failed to show any prejudice
resulting from the alleged excessive payment, this Court found no
¶ 64. Applying the reasoning of Woodward, we
find that Ronk's claim of prosecutorial misconduct is without merit.
According to Ronk, Hindall should have been paid $126: $30 for three
days of travel and $96 for the 960–mile round trip.1 The record
reflects that the State paid Hindall $105 directly, which is within
the limits allowed by statute. The remaining funds were paid directly
to vendors, not to Hindall, and Ronk offers no authority suggesting
that direct payments to vendors violate Section 99–9–33, absent some
showing of impropriety. In addition, Ronk presents no evidence
indicating that this payment influenced Hindall's testimony in any
way. Accordingly, in addition to being procedurally barred, this issue
is without merit.
VII. Whether the trial court
properly instructed the jury during the sentencing phase of trial.
¶ 65. Ronk claims that the trial court instructed the jury improperly
regarding the aggravating and mitigating circumstances it was required
to consider during the sentencing hearing. As previously stated, a
defendant is entitled to have instructions given which present his
theory of the case to the jury, provided that the instruction
correctly states the law, has a foundation in the evidence, and is not
covered fairly elsewhere in the instructions. Spires v. State, 10
So.3d 477, 483–84 (Miss.2009). We will address Ronk's arguments
regarding the mitigation and aggravation instructions seprately.
A. Mitigating Circumstances
¶ 66. “[I]n order to
meet the requirement of the Eighth and Fourteenth Amendments, a
capital-sentencing system must allow the sentencing authority to
consider mitigating circumstances.” Jurek v. Texas, 428 U.S. 262, 271,
96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). In Mississippi, the jury is
permitted to consider the following statutory mitigating factors
during a capital-sentencing hearing:
defendant has no significant history of prior criminal activity. (b)
The offense was committed while the defendant was under the influence
of extreme mental or emotional disturbance. (c) The victim was a
participant in the defendant's conduct or consented to the act. (d)
The defendant was an accomplice in the capital offense committed by
another person and his participation was relatively minor. (e) The
defendant acted under extreme duress or under the substantial
domination of another person. (f) The capactity of the defendant to
appreciate the criminality of his conduct or to conform his conduct to
the requirements of law was substantially impaired. (g) The age of the
defendant at the time of the crime.
Miss.Code Ann. §
99–19–101(6) (Supp.2014). The jury also is entitled to consider “[a]ny
other matter, any other aspect of the defendant's character or record,
and any other circumstances of the offense” presented at trial that
the jury deems to be mitigating on behalf of the defendant. See Evans
v. State, 725 So.2d 613, 693–94 (Miss.1997) (approving of the use of
“catch-all” mitigation instructions in place of instructions on
nonstatutory mitigating factors).
¶ 67. At the
conclusion of Ronk's sentencing hearing, Ronk was granted a catch-all
mitigation instruction tracking the above language in Evans. However,
Ronk did not request specific instructions on any of the statutory
mitigating circumstances. On appeal, Ronk argues that the trial
court's failure to instruct the jury on specific statutory mitigating
circumstances rendered his sentencing hearing fundamentally unfair.
¶ 68. Because Ronk did not request any instructions on statutory
mitigating circumstances or object to the mitigation instruction
actually given, he is procedurally barred from raising this issue for
the first time on appeal. We cannot hold a trial court in error on a
matter not presented to it for a decision. Moawad v. State, 531 So.2d
632, 634 (Miss.1988). Nor do we find that the trial court was required
to craft jury instructions sua sponte on specific statutory mitigating
factors. “The case law does not impose upon a trial court a duty to
instruct the jury sua sponte, nor is a court required to suggest
instructions in addition to those which the parties tender.” Conner v.
State, 632 So.2d 1239, 1254 (Miss.1994), overruled on other grounds by
Weatherspoon v. State, 732 So.2d 158, 162 (Miss.1999). To the extent
that Ronk frames this argument as a claim of ineffective assistance of
counsel, we again hold that this issue is not based on evidence fully
apparent from the record, and we decline to address it on appeal.
2. D–S–2 and D–S–9
¶ 69. Ronk argues that the
trial court erred in denying his proffered sentencing instructions
D–S–2 and D–S–9, which informed the jury of its ability to sentence
Ronk to life without parole even if it found no mitigating
circumstances worthy of consideration. D–S–2 provided:
Each individual juror must decide for themselves whether the death
penalty or life imprisonment without parole or probation is an
appropriate punishment for the defendant. Even if mitigating
circumstances do not outweigh aggravating circumstances, the law
permits you, the jury to impose a sentence of life imprisonment
without the possibility of parole.
Only if you, the
jurors, unanimously agree beyond a reasonable doubt that death is the
appropriate punishment may you impose a sentence of death․
D–S–9 reiterated essentially the same concept, providing:
The Court instructs the jury that a decision to sentence the Defendant
to life imprisonment without parole, even if you find there are not
mitigating circumstances in this case which are worthy of your
consideration, and/or, your inability to reach a sentencing decision,
will not violate the laws of this State or your oath as jurors.
The State objected to the second sentence of D–S–2 and all of D–S–9,
arguing that they were nullification instructions. The trial court
rejected D–S–9 in its entirety, along with the second sentence of
D–S–2, finding them to be improper sympathy instructions. The trial
court removed the second sentence of instruction D–S–2 and presented
it to the jury as instruction D–S–2A.
¶ 70. We find
that the trial court did not abuse its discretion in refusing D–S–2
and D–S–9. This Court previously has found similarly worded
instructions to be mercy instructions. See Galloway v. State, 122
So.3d 614, 656 (Miss.2013); Thorson v. State, 895 So.2d 85, 108
(Miss.2004); Ballenger, 667 So.2d 1242, 1265 (Miss.1995); Foster v.
State, 639 So.2d 1263, 1300 (Miss.1994). “[C]apital defendants are not
entitled to a mercy instruction.” Jordan v. State, 728 So.2d 1088,
1099 (Miss.1998) (citations omitted). “The State must not cut off full
and fair consideration of mitigating evidence; but it need not grant
the jury the choice to make the sentencing decision according to its
own whims or caprice.” Saffle v. Parks, 494 U.S. 484, 493, 110 S.Ct.
1257, 108 L.Ed.2d 415 (1990). In this case, the substance of D–S–2 and
D–S–9 was covered appropriately by sentencing instruction six, which
informed the jury of its duty to “apply your reasoned judgment as to
whether the situation calls for life imprisonment without parole or
whether it requires the imposition of death[.]” This argument is
71. Ronk also submitted D–S–4, which, according to Ronk, “reiterated
that it is the State's burden to establish entitlement to the death
penalty, and that if any one juror felt the State had not done so, the
proper verdict would be to sign the ‘cannot agree’ portion of the
verdict form and notify the court of that fact.” The instruction
The Court instructs the jury
that before the Defendant can be sentenced to death by lethal
injection, the aggravating circumstances must be proven to you beyond
a reasonable doubt. It must also be proven to you beyond a reasonable
doubt that mitigating circumstances do not outweigh aggravating
circumstances. Finally, it must be proven to you beyond a reasonable
doubt that death by lethal injection is the appropriate punishment for
If, upon review of the evidence, any
one of you has any reasonable doubt as to any of these matters, then
the jury must inform the Court, in writing, that you are unable to
agree unanimously upon the form of the punishment to be imposed.
The State objected to this instruction, arguing that its substance was
covered elsewhere in the instructions. The trial court noted that it
was improper for the instruction to mention lethal injection as the
method of execution. Even with that reference deleted, the trial court
found that D–S–4 was covered by other instructions. Accordingly, the
trial court rejected D–S–4 in its entirety.
Ronk now claims that the trial court erred in denying D–S–4. We find
that this argument is without merit. As an initial matter, because the
method of execution is of no concern to the jury, portions of D–S–4
incorrectly stated the law. See Jackson v.. State, 684 So.2d 1213,
1238 (Miss.1996). In addition, the substance of D–S–4 was sufficiently
covered by other instructions. Instruction S–6–A, the State's
long-form sentencing instruction, informed the jury that it was
required to find beyond a reasonable doubt the existence of at least
one Enmund factor2 and at least one statutory aggravating factor
before considering the death penalty. Instruction S–6–A also informed
the jury of its duty to render a sentence of life without parole if
the aggravating factors did not outweigh the mitigating circumstances.
In addition, Instruction D–S–2A required the jury ultimately to agree
beyond a reasonable doubt that death was the appropriate penalty.3
D–S–4 merely “reiterated” these concepts, and the trial court is not
required to give multiple instructions on the same concept of law
simply because the defendant requests them. Laney v. State, 486 So.2d
1242, 1247 (Miss.1986). The trial court did not abuse its discretion
in denying D–S–4.
¶ 73. Ronk argues that the trial court erred in denying instruction
D–S–7, which would have informed the jury that, if it chose not to
sentence Ronk to death, his sentence of life without parole would not
be reduced or suspended, and he would never be eligible for parole. We
find this argument to be without merit. This Court has held that,
“except in habitual offender cases, where a life sentence would
automatically mean life without parole, the parole issue should not be
considered by the sentencing jury.” Flowers v. State, 842 So.2d 531,
557 (Miss.2003). In this case, “[b]y giving only the sentencing
options of death or life imprisonment without the possibility of
parole, the trial judge properly gave the jury all the instructions
that were needed.” Id. The trial court did not abuse its discretion in
74. Ronk's proposed instruction D–S–8 informed the jury that the trial
court would sentence Ronk to life imprisonment without parole if the
jury was unable to agree unanimously on punishment. The trial court
denied this instruction, finding it to be cumulative of other
instructions already accepted by the court. Ronk argues that the trial
court's ruling was erroneous.
¶ 75. This Court
reviewed a nearly identical instruction in Edwards v. State, 737 So.2d
275 (Miss.1999). In Edwards, the defendant proffered a jury
instruction informing the jury that, if it could not agree on
punishment, the trial court would sentence the defendant to life
without parole. Id. at 316. This Court acknowledged that the
defendant's proffered instruction correctly stated the law4 but found
no error in the trial court's decision to deny the instruction. Id. at
316–17. This Court found the defendant's proffered instruction was
cumulative of other instructions given by the trial court, which fully
informed the jury of its sentencing options. Id. at 316. “There is no
error in the denial of a cumulative instruction as a defendant is not
entitled to multiple instruction in language he favors.” Id. (citing
Walker v. State, 671 So.2d 581, 613 (Miss.1995)).
76. Like the instruction in Edwards, D–S–8 correctly stated the law,
but it was also covered by other instructions. Instruction S–6–A
informed the jury of the available sentences and gave the jury the
option of returning a verdict stating, “We, the Jury, are unable to
agree unanimously on punishment.” Thus, the trial court did not err in
77. At the conclusion of the sentencing hearing, the State offered
instruction C–S–1, which stated in relevant part, “You should not be
influenced by bias, sympathy, or prejudice. Your verdict should be
based on the evidence and not upon speculation, guesswork, or
conjecture.” Ronk did not object to C–S–1 at the sentencing hearing.
However, on appeal, he now claims that the trial court erred in giving
C–S–1, because it prohibited the jury from considering mercy or
¶ 78. Because Ronk failed to object to
C–S–1 at the sentencing hearing, and because Ronk cites no authority
in support of his argument, this issue is procedurally barred. See
Williams v. State, 684 So.2d 1179, 1187 (Miss.1996). Procedural bar
notwithstanding, Ronk's argument is without merit. This Court has held
that “a jury can properly be cautioned against being swayed by
sympathy,” and this Court has repeatedly upheld the use of sentencing
instructions similar to C–S–1. Wiley v. State, 750 So.2d 1193, 1204
(Miss.1999); Howell v. State, 860 So.2d 704, 759 (Miss.2003); Turner
v. State, 732 So.2d 937 (Miss.1999). Accordingly, the trial court did
not err in giving C–S–1.
¶ 79. Section 99–19–101(5) limits
a capital sentencing jury's consideration of aggravating circumstances
to ten statutory aggravators. See Miss.Code Ann. § 99–19–101(5)
(Supp.2014). The jury must find the existence of at least one of these
aggravating circumstances beyond a reasonable doubt to impose the
death penalty. Miss.Code Ann. § 99–19–101(3)(b) (Supp.2014). At Ronk's
sentencing hearing, the State presented evidence of two statutory
aggravators: “the capital offense was committed while the defendant
was engaged ․ in the commission of ․ arson,” and “[t]he capital
offense was especially heinous, atrocious or cruel.” Miss.Code Ann. §
99–19–101(5)(d),(i) (Supp.2014). Ronk argues that the trial court
erred in allowing the jury to consider these aggravating factors,
because they were not supported by the evidence. We address each of
Ronk's arguments in turn.
1. “Committed while
engaged in the commission of arson” Aggravator
80. Here, Ronk reasserts his argument that he did not kill Craite
while he was engaged in the commission of an arson because Craite was
already dead when he set fire to her house. This Court has thoroughly
addressed Ronk's arguments in sections I(C) and II of this opinion. As
stated previously, sufficient evidence supports a finding that Craite
was still alive at the time of the arson, and she was unable to escape
the fire due to the wounds inflicted upon her by Ronk. This issue is
2. “Heinous, atrocious, and cruel”
¶ 81. Ronk argues that no evidence
supports this aggravator, because the State presented no evidence
proving that Craite was still conscious at the time of the arson. Ronk
also argues that no evidence indicates that he knew Craite was still
alive when he set her house on fire.
¶ 82. We find
this argument to be without merit. To support a finding of this
aggravator, this Court has required the State to show that the capital
offense “was accompanied by such additional acts as to set the crime
apart from the norm of capital felonies—the conscienceless or pitiless
crime which is unnecessarily torturous to the victim.” Lockett v.
State, 614 So.2d 888, 896 (Miss.1992). In the instant case, the State
presented evidence through the testimony of Dr. McGarry that Ronk's
knife severed a major artery in Craite's chest, punctured both her
lungs, and pierced her liver, filling her chest and abdominal cavities
with blood. He also explained that Craite was still alive and
breathing during the fire; that she had suffered burning and
blistering to the lining of her mouth, tongue, larynx, and windpipe;
and that the fire had destroyed much of her flesh down to the bone.
After stabbing Craite, Ronk had poured gasoline in the bedroom where
she lay incapacitated, evincing his intent to destroy her body.
According to Dr. McGarry, Craite would have been able to feel the pain
of her body burning, but she was unable to escape due to her wounds.
To add to the cruel nature of the crime, the evidence showed that Ronk
also stole valuables from Craite's home and used her money to buy an
engagement ring for his girlfriend and to escape to Florida.
¶ 83. “[T]he length of time it takes the victim to die, the number of
wounds inflicted, the factors leading up to the final killing, whether
the defendant inflicted physical pain before death, the mental anguish
and physical torture suffered by the victim prior to death, and the
vulnerability of the victim” are factors which should be considered in
determining whether the capital offense was especially heinous,
atrocious, and cruel. Bennett v. State, 933 So.2d 930, 954
(Miss.2006). Based on the foregoing, we find that the State presented
sufficient evidence to present this aggravating circumstance to the
jury, and the jury could have found this aggravator beyond a
¶ 84. Ronk also argues that this
aggravating circumstance is unconstitutionally vague. However, this
Court consistently has upheld the use of this aggravator through
instructions identical to the one given at Ronk's sentencing hearing.
See Gillett v. State, 56 So.3d 469 (Miss.2010); Stevens v. State, 806
So.2d 1031, 1060 (Miss.2001); Crawford v. State, 716 So.2d 1028
(Miss.1998); Mhoon v. State, 464 So.2d 77 (Miss.1985); Coleman v.
State, 378 So.2d 640 (Miss.1979). This argument is without merit.
3. New Sentencing Hearing
¶ 85. Ronk argues
that the Sixth Amendment requires this case to be remanded for a new
sentencing hearing if any of the aggravating circumstances found by
the jury are determined to be invalid. Because we find no invalid
aggravating circumstance, we need not address this issue. Ronk is not
entitled to a new sentencing hearing.
Whether the imposition of the death penalty in this case violates the
United States Constitution.
¶ 86. Under this
assignment of error, Ronk makes various arguments that the imposition
of the death penalty in this case violates the United States
Constitution. We address each argument separately.
¶ 87. Ronk argues that his
indictment was constitutionally defective because it failed to charge
all elements necessary to impose the death penalty. Specifically, Ronk
asserts that his indictment failed to include a mens rea element and
did not list any statutory aggravating circumstances. Ronk claims that
these alleged failures violate Apprendi v. New Jersey, 530 U.S. 466,
476–82, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which requires any
fact, other than a prior conviction, that increases the maximum
penalty for a crime to be found by a jury beyond a reasonable doubt;
and Ring v. Arizona, 536 U.S. 584, 609, 122 S.Ct. 2428, 153 L.Ed.2d
556 (2002), which requires that the fact-finding determinations
necessary to impose the death penalty be made by a jury.
¶ 88. This Court has explicitly rejected the arguments presented by
Ronk in Goff v. State, 14 So.3d 625, 665 (Miss.2009). Relying on
Apprendi and Ring, the defendant in Goff argued that his indictment
for capital felony murder did not charge all elements necessary to
impose the death penalty. Id . In addressing the defendant's claim,
this Court first pointed out that “Apprendi and Ring address issues
wholly distinct from the present one, and in fact do not address
indictments at all.” Id. (citing Spicer v. State, 921 So.2d 292, 319
(Miss.2006)). This Court then held:
Mississippi law, the underlying felony that elevates the crime to
capital murder must be identified in the indictment along with the
section and subsection of the statute under which the defendant is
being charged. Bennett v. State, 933 So.2d 930, 952 (Miss.2006)
(citing Miss.Code Ann. § 99–17–20). In addition, “[o]ur death penalty
statute clearly states the only aggravating circumstances which may be
relied upon by the prosecution in seeking the ultimate punishment.”
Spicer, 921 so.2d at 319 (quoting Brown, 890 So.2d at 918).
Id. Thus, “[w]hen Goff was charged with capital murder, he was put on
notice that the death penalty might result, what aggravating factors
might be used, and the mens rea standard that was required.” Id.
(citing Stevens v. State, 867 So.2d 219, 227 (Miss.2003)).
¶ 89. Ronk also argues that this Court's holdings in Goff and other
similar cases are incorrect in light of the United States Supreme
Court's more recent holding in Kansas v. Marsh, 548 U.S. 163, 126
S.Ct. 2516, 165 L.Ed.2d 429 (2006). In Marsh, the United States
Supreme Court reversed the Kansas Supreme Court's ruling that Kansas's
death penalty statute was unconstitutional. Id. at 182. Acording to
Ronk, “[O]n the way to reaching its conclusion [in Marsh ] the Court
compared the Kansas scheme to the Arizona scheme and found them
essentially the same. Mississippi's scheme is indistinguishable from
Kansas [sic]. Thus, the position that Ring v. Arizona has no
application to Mississippi's scheme is incorrect.” This argument is
wholly without merit. In fact, in Pitchford v. State, 45 So.3d 216,
258 (Miss.2010), this Court rejected this exact argument, verbatim,
finding Marsh to be inapplicable to indictments.
90. Mississippi's sentencing scheme, just like Kansas's, is
distinguishable from the Arizona statute struck down in Ring, because
“it is the jury which determines the presence of aggravating
circumstances necessary for the imposition of the death sentence.”
Thorson, 895 So.2d at 105 (quoting Berry v. State, 882 So.2d 157, 173
(Miss.2004)). Even so, Ronk fails to explain how Apprendi, Ring, or
Marsh applies to this assignment of error, as those cases did not
address the constitutionality of indictments. See Goff, 14 So.3d at
665. This issue is without merit.
Constitutionality of Section 99–19–101(7)
The United States Supreme Court has held that the Eighth Amendment
prohibits the imposition of the death penalty against a person who
aids and abets in the commission of a felony that results in death,
but who did not actually kill, attempt to kill, or intend that a
killing would take place. Enmund v. Florida, 458 U.S. 782, 797, 102
S.Ct. 3368, 73 L.Ed.2d 1140 (1982). See also Tison v. Arizona, 481
U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987). In compliance with
Enmund, Section 99–19–101(7) of the Mississippi Code requires the jury
to find beyond a reasonable doubt at least one of four enumerated
scienter factors before imposing the death penalty. See Miss.Code Ann.
§ 99–19–101(7) (Supp.2014).
¶ 92. Ronk argues that
Section 99–19–101(7) is unconstitutional, because it includes a
scienter factor that was not approved in Enmund or Tison—the defendant
“contemplated lethal force would be employed.” See Miss.Code Ann. §
99–19–101(7)(d) (Supp.2014). But Ronk concedes that his sentencing
jury did not rely on this scienter factor in reaching its decision.
Instead, the jury found the existence of another factor: “the
Defendant actually killed Michelle Lynn Craite.” See Miss.Code Ann.
99–19–101(7)(a) (Supp.2014). Moreover, Ronk acknowledged at trial that
this Court already has upheld the constitutionality of Section
99–19–101(7)(d). See Knox v. State, 901 So.2d 1257, 1267–68
(Miss.2005). Ronk cites no additional authority supporting his
allegation that Section 99–19–101(7)(d) offends Enmund or Tison. This
argument is without merit.
C. Use of Armed
Robbery as an Aggravating Circumstance
Ronk claims that the use of armed robbery both as an element of his
capital-murder charge and as an aggravating circumstance supporting
the death penalty is unconstitutional. According to Ronk, “[u]sing the
same facts to capitalize and aggravate violates the longstanding
constitutional precept that a death penalty can be imposed
constitutionally only if ‘the sentencing body's discretion [is]
suitably directed and limited’ so as to avoid arbitrary and capricious
executions.” See Gregg v. Georgia, 428 U.S. 153, 187, 96 S.Ct. 2909,
49 L.Ed.2d 859 (1976).
¶ 94. Ronk's argument is
incorrect. The State did not charge Ronk with committing capital
murder while engaged in an armed robbery, nor did it use the robbery
as an aggravating circumstance during the sentencing hearing. Rather,
the arson was used both as the underlying felony during the
culpability phase and an aggravating circumstance during the
sentencing phase. That being said, neither the United States Supreme
Court nor this Court has found constitutional error in the use of the
underlying felony as both an element of capital felony murder and an
aggravating circumstance supporting the imposition of the death
penalty. See Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98
L.Ed.2d 568 (1988); Loden v. State, 971 So.2d 548, 569 (Miss.2007).
This argument is without merit.
¶ 95. Ronk argues that Mississippi's
lethal-injection procedure violates the constitutional prohibition
against cruel and unusual punishment. According to Ronk, Baze v. Rees,
533 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), requires this
Court to reverse his death sentence until such time as a full hearing
can be conducted concerning the constitutionality of the
¶ 96. In Baze, a
plurality of the United States Supreme Court held that the method of
lethal injection constitutes cruel and unusual punishment if it
presents a “substantial” or “objectively intolerable risk of serious
harm” in light of “feasible, readily implemented” alternative
procedures. Id. at 52. The plurality upheld Kentucky's
lethal-injection protocol and noted that “[a] State with a lethal
injection protocol substantially similar to the protocol we uphold
today would not create a risk that meets this standard.” Id. at 62.
The Fifth Circuit has upheld Mississippi's lethal-injection protocol
under Baze, finding it to be “substantially similar to Kentucky's
protocol that was examined in Baze.” Walker v. Epps, 287 Fed. App'x
371, 375 (5th Cir.2008). See also Thorson v. Epps, 701 F.3d 444 (5th
Cir.2012). This Court also has held that Mississippi's
lethal-injection procedure passes muster under the Eighth Amendment in
light of Baze. Bennett v. State, 990 So.3d 155, 161 (Miss.2008); King
v. State, 23 So.3d 1067, 1071 (Miss.2009); Goff, 14 So.3d at 665–66;
Chamberlain v. State, 55 So.3d 1046 So.3d 1046, 1056–57 (Miss.2010);
Pitchford, 45 So.3d at 256–57. Thus, Ronk's claim is without merit.
E. Additional Arguments
¶ 97. In his final
argument concerning this issue, Ronk argues that Section 99–19–105 of
the Mississippi Code, as applied by this Court, fails to provide for
adequate or meaningful appellate review in violation of the Fifth,
Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution. Section 99–19–105 governs this Court's mandatory review
of death sentences and requires this Court to determine, among other
things, “[w]hether the sentence of death is excessive or
disproportionate to the penalty imposed in other cases, considering
both the crime and the defendant.” Miss.Code Ann. § 99–19–105(3)
¶ 98. Ronk argues that Section
99–19–105(3) allows for the arbitrary imposition of the death penalty
because it does not require this Court to review cases where death has
been imposed to cases where death is sought, but not imposed. However,
Ronk provides this Court with “no controlling authority requiring this
Court to change Mississippi's proportionality review.” See Lester v.
State, 692 So.2d 755, 801–02 (Miss.1997), overruled on other grounds
by Weatherspoon v. State, 732 So.2d 158 (Miss.1999) (declining to
“undertake the overwhelming task of considering all death eligible
cases in our review”). In the absence of some intervening precedent,
we hold that Mississippi's capital sentencing scheme is entirely
constitutional. See Woodward v. State, 726 So.2d 524, 528 (Miss.1997)
¶ 99. Ronk also argues that the
death penalty is imposed in a discriminatory manner in violation of
the Eighth Amendment and the Equal Protection Clause of the Fourteenth
Amendment, in that it is imposed disproportionately against males,
indigent defendants, and those accused of killing females. The Eighth
Amendment is violated when a penalty is imposed selectively on
minorities, “whom society is willing to see suffer though it would not
countenance general application of the same penalty across the board.”
Furman v. Georgia, 408 U.S. 238, 245, 92 S.Ct. 2726, 33 L.Ed.2d 346
(1972) (Douglas, J., concurring). This Court has considered this issue
and held that “Mississippi's statutory sentencing scheme in capital
cases complies with the requirements of Furman and its progeny.”
Underwood v. State, 708 So.2d 18, 38 (Miss.1998) (citations omitted).
¶ 100. Ronk's equal-protection claim also fails. To succeed on such a
claim, the defendant must show “that the decisionmakers in his case
acted with discriminatory purpose.” McCleskey v. Kemp, 481 U.S. 279,
292, 107 S.Ct. 1756 (1987). Statistical evidence alone is insufficient
to prove discrimination. Id. at 292–297. Ronk provides no evidence
that his sentencing jury acted in a discriminatory manner, but he
relies on unsupported allegations of general discrimination. As
previously discussed, Mississippi's sentencing scheme includes
numerous safeguards to ensure that the death penalty is not imposed
arbitrarily or in a discriminatory manner, not the least of which is
this Court's mandatory proportionality review. See generally Miss.Code
Ann. §§ 99–19–101 (Supp.2014), 99–19–105(3)(c) (Rev.2007). These
arguments are without merit.
¶ 101. Finally, Ronk
generally contends that the “heinous, atrocious, or cruel” aggravator
is unconstitutionally broad and vague. For the reasons stated in
section VII(B)(2) in this opinion, this argument is without merit.
IX. Whether the death sentence is disproportionate to the crime.
¶ 102. As previously stated, Section 99–19–105 requires this Court to
conduct an examination of Ronk's death sentence, considering the
(a) Whether the sentence of death
was imposed under the influence of passion, prejudice or any other
arbitrary factor; (b) Whether the evidence supports the jury's or
judge's finding of a statutory aggravating circumstance as enumerated
in Section 99–19–101; [and] (c) whether the sentence of death is
excessive or disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant[.]
Miss.Code Ann. § 99–19–105(3)(a)–(c) (Rev.2007). While Ronk challenges
only the proportionality of his sentence here, we now take the
opportunity to consider each factor in turn.
Whether the death penalty was imposed under the influence of passion,
prejudice, or any other arbitrary factor.
The record before us includes no evidence that Ronk's sentence was
imposed under the influence of passion, prejudice, or any other
arbitrary factor, and Ronk has not pointed to any evidence of
prejudicial or arbitrary conduct by the trial court, the jury, or the
B. Whether the evidence supports the
jury's finding of statutory aggravating circumstances.
¶ 104. The jury found beyond a reasonable doubt the existence of three
statutory aggravating circumstances: (1) the capital offense was
committed by a person under a sentence of imprisonment, (2) the
capital offense was committed while Ronk was engaged in the commission
of an arson, and (3) the capital offense was especially heinous,
atrocious, or cruel. See Miss.Code Ann. § 99–19–101(5)(a), (d), (i)
¶ 105. At Ronk's sentencing the State
produced evidence that Ronk had been convicted of grand larceny and
sentenced to ten years' imprisonment three weeks prior to Craite's
death. The evidence indicated that Ronk was serving house arrest in
Craite's home at the time of the capital offense. Thus, sufficient
evidence supports the jury's finding as to the first aggravator. In
addition, for the reasons previously stated in this opinion, we find
that the evidence supports the jury's finding of the second and third
C. Whether the sentence of death is
excessive or disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant.
106. This consideration “requires a review of similar cases in which
the death penalty was imposed and reviewed by this Court since Jackson
v. State, 337 So.2d 1242 (Miss.1976).” Manning v. State, 765 So.2d
516, 521–22 (Miss.2000) (citing Wiley v. State, 691 So.2d 959, 966
(Miss.1997)). In making this assessment, we must consider both the
crime and the defendant. Wilcher v. State, 697 So.2d 1087, 1113
(Miss.1997) (citing Cabello v. State, 471 So.2d 332, 350 (Miss.1985)).
¶ 107. The Legislature's inclusion of arson as a capitalizing felony
represents a recognition of the extreme risk to human life associated
with the commission of that felony. As the United States Supreme Court
concluded, “reckless indifference to the value of human life may be
every bit as shocking to the moral sense as an ‘intent to kill.’ “
Tison, 481 U.S. at 157 (citation omitted). The practical effect of
this reasoning is exemplified in this case. The evidence reflects that
Ronk stabbed an unarmed victim multiple times in the back, took the
time to change clothes and search the victim's house for items of
value, poured a trail of gasoline through the victim's house and into
the room where the victim lay incapacitated, and left the victim to
suffer in the blaze as he fled to another state, seemingly destroying
any evidence of his crime. While Ronk contends that his culpability is
diminished because he was unaware that Craite was still alive when he
committed the arson, his conduct is nevertheless analogous to the
Tison Court's example of “the person who tortures another not caring
whether the victim lives or dies, or the robber who shoots someone in
the course of the robbery, utterly indifferent to the fact that the
desire to rob may have the unintended consequence of killing the
¶ 108. After considering the
circumstances of Ronk's crime and comparing it to the cases included
in the appendix below, we find that the jury's imposition of the death
penalty in the instant case is not excessive or disproportionate.
X. Whether any error can be considered harmless.
¶ 109. “A criminal is not entitled to a perfect trial, only a fair
trial.” McGilberry v. State, 741 So.2d 894, 924 (Miss.1999) (citing
Sand v. State, 467 So.2d 907, 911 (Miss.1985)). Thus, even in a
capital case, an error may be considered harmless “if it is clear
beyond a reasonable doubt that it did not contribute to the verdict.”
States v. State, 88 So.3d 749, 758 (Miss.2012). We have found two
arguable errors in Ronk's trial: the trial court's instruction on
arson as a lesser-included offense of capital murder, and the
admission of Craite's bank records. Because the jury convicted Ronk of
the principal charge of capital murder, and not the lesser offense,
this error had no effect on the jury's verdict. See Conley, 702 So.2d
at 792–93. And Ronk failed to object to the admission of the bank
records, so we cannot hold the trial court in error for an issue not
raised at trial. Accordingly, even in light of our heightened standard
of scrutiny in capital cases, we find that these alleged errors did
not deprive Ronk of a fair trial.
XI. Whether the
cumulative effect of all errors mandates reversal or a new trial.
¶ 110. This Court has held that “individual errors, which are not
reversible in themselves, may combine with other errors to make up
reversible error, where the cumulative effect of all errors deprives
the defendant of a fundamentally fair trial.” Ross v. State, 954 So.2d
968, 1018 (Miss.2007). Ronk urges this Court to find that the
cumulative effect of the errors in this case requires reversal of his
conviction and sentence.
¶ 111. We have found two
arguable errors in the instant case, both of which are barred from
consideration due to Ronk's failure to object at trial. Thus, after
considering each of Ronk's claims, we hold that the cumulative effect
of all alleged errors was not such that Ronk was denied a
fundamentally fair trial. See Wilburn v. State, 608 So.2d 702, 705
112. _For the forgoing reasons, we affirm Ronk's convictions and
¶ 113. COUNT I: CONVICTION OF CAPITAL
MURDER AND SENTENCE OF DEATH BY LETHAL INJECTION, AFFIRMED. COUNT II:
CONVICTION OF ARMED ROBBERY AND SENTENCE OF THIRTY (30) YEARS IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.
SENTENCE IN COUNT II SHALL RUN CONSECUTIVELY WITH THE SENTENCE IN
¶ 114. I agree with the majority that the
evidence in this case does not support the giving of an imperfect
self-defense instruction, since, regardless of Ronk's intent, Craite
was killed during the commission of the crime of arson. I write
separately to express my concern over this Court's recent iterations
of the crime we have named imperfect self-defense manslaughter.
¶ 115. At trial, the jury had before it Ronk's self-defense theory,
having been instructed as follows:
instructs the Jury that to make a killing justifiable on the grounds
of self defense, the danger to the Defendant must be either actual,
present and urgent, or the Defendant must have reasonable grounds to
apprehend a design on the part of the victim to kill him or to do him
some great bodily harm, and in addition to this he must have
reasonable grounds to apprehend that there is imminent danger of such
design['s] being accomplished. It is for the jury to determine the
reasonableness of the ground upon which the Defendant acts.
(Emphasis added.) The jury, thus instructed, rejected Ronk's
self-defense theory and found him guilty of capital murder, the
alternative having been acquittal thereof. Ronk requested, and was
denied, the following so-called imperfect self-defense instruction:
That the Defendant, Timothy Robert Ronk, did willfully kill Michelle
Lynne Craite, without malice, under the bona fide belief, but without
reasonable cause therefore [sic], that it was necessary for him so to
do in order to prevent Michelle Lynne Craite from inflicting death or
great bodily harm upon him․
(Emphasis added.) If the
jury had so found, Ronk would have been convicted of manslaughter. See
Miss.Code Ann. § 97–3–35 (Rev.2014) (“The killing of a human being,
without malice, in the heat of passion, but in a cruel or unusual
manner, or by the use of a dangerous weapon, without authority of law,
and not in necessary self-defense, shall be manslaughter.”) (Emphasis
¶ 116. This Court long has construed Section
97–3–35 to incorporate the crime of manslaughter by imperfect self
There are three theories under which the
appellant could be guilty of manslaughter: First, that he killed the
deceased “in the heat of passion, without malice, by the use of a
deadly weapon, without authority of law, and not in necessary
self-defense” (section 1238, Code of 1906 [section 968, Hemingway's
Code] ); second, that he killed the deceased without malice, under the
bona fide belief, but without reasonable cause therefor, that it was
necessary for him so to do in order to prevent the appellant from
inflicting death or great bodily harm upon him; and, third, that he
unnecessarily killed the deceased while resisting an attempt by the
deceased to commit a crime (section 1237, Code of 1906 [section 967,
Hemingway's Code] ).
Williams v. State, 127 Miss.
851, 90 So. 705, 706 (1922) (emphasis added). This Court restated the
test in 1999: “[t]his Court recognizes the theory of ‘imperfect
self-defense’ whereby an intentional killing may be considered
manslaughter if done without malice but under a bona fide (but
unfounded ) belief that it was necessary to prevent death or great
bodily harm.” Wade v. State, 748 So.2d 771, 775 (Miss.1999) (citing
Lanier v. State, 684 So.2d 93, 97 (Miss.1996)) (emphasis added). In
Lanier, we had employed the established standard for imperfect
self-defense manslaughter: “that [the defendant] killed the deceased
without malice, under the bona fide belief, but without reasonable
cause therefor, that it was necessary for him so to do in order to
prevent the appellant from inflicting death or great bodily harm upon
him;․” Lanier, 684 So.2d at 97 (quoting Cook v. State, 467 So.2d 203,
207 (Miss.1985); Williams, 90 So. at 706) (emphasis added).
¶ 117. The “bona fide (but unfounded)” language crept into our
jurisprudence in Wade, 748 So.2d at 775, in the complete absence of
any explanation, authority, or justification for revision of the
well-established phrasing. I disagree that it precisely states the
standard for the sort of conduct which can be found, by a jury, to
constitute imperfect self-defense manslaughter. Finding no legal
definition of the word unfounded, I resort to dictionaries. One
definition of unfounded is “having no foundation or basis in fact.”
Compact Oxford English Dictionary 1260 (2d ed.2003). Another
well-known English language dictionary declares the word to mean
“[n]ot based on fact or sound observation; groundless.” The American
Heritage Dictionary 740 (2d ed.1983).
¶ 118. Thus,
for one to harbor an unfounded belief that self defense was warranted
under a particular set of circumstances would require a determination
that the belief had no foundation in fact or that the belief was
groundless. Mississippi's older and longer-tenured standard involves a
different analysis: that the bona fide belief that self defense was
necessary was “without reasonable cause therefor.” Williams, 90 So. at
706 (emphasis added). In other words, our standard requires the
defendant's belief in the necessity of his conduct to have been
unreasonable, a standard which juries routinely determine. The
imperfect self-defense manslaughter standard, as detailed in Williams,
precisely specifies what the State is required to prove: that the
defendant's act of purported self defense was without reasonable
cause. The crime of manslaughter by imperfect self defense is thus
contrasted with an acquittal of a homicide charge, which requires that
the defendant's act of purported self defense be reasonable. I would
abandon the “bona fide (but unfounded)” language found in Wade, an
innovation which serves no good purpose and injects a basis for
confusion where none previously existed.
Additionally, I agree with Justice Dickinson's well-reasoned opinion
that this Court has, in effect, amended the capital murder statute,
which requires that a person be “engaged in the commission of” an
enumerated crime. Miss.Code Ann. § 97–3–19 (Rev.2014). A majority of
this Court has, without reasonable explanation or authority, expanded
that definition to include killings which occur before or after the
commission of an enumerated crime. I join Justice Dickinson in
advocating the abolition of the “one-continuous-transaction doctrine.”
But the majority recognizes that the jury here was instructed on the
“one-continuous-transaction doctrine,” and the majority is correct
that this was an accurate statement of existing Mississippi law. Until
such time as five or more members of this Court determine that the
“one-continuous-transaction doctrine” is unsound, this judicially
contrived concept remains viable in our State's jurisprudence.
¶ 120. While I agree with the majority's result and much of its
reasoning, I do not agree with its endorsement of this Court's
so-called “one-continuous-transaction” doctrine, which is nothing more
than a judicial amendment to Mississippi's capital-murder statute.
Capital murder—as defined by the Legislature, and as it applies to
this case—requires the
killing of a human being
without the authority of law by any means or in any manner ․ done with
or without any design to effect death, by any person engaged in the
commission of the crime of ․ arson.” 5
¶ 121. This
statute clearly and unambiguously requires that the killing take place
during a very specific time frame: while the person is “engaged in the
commission of ․ arson,” which is not the same as a killing that takes
place before or after the commission of arson.
122. This Court's “one-continuous-transaction” doctrine as instructed
to the jury defined “a killing occurring while engaged in the
commission of an arson” as “the actions of the defendant leading up to
the arson, the arson, and the flight from the scene of the arson.” But
things that occur “leading up to an arson” are not things that occur
“during the commission” of an arson, as required by the statute; and
things that occur after the arson are not things that occur “during
the commission” of an arson, as required by the statute. Stated
another way, the majority says the Court's phrases “leading up to” and
“flight from the scene” equal the Legislature's phrase “during the
¶ 123. This Court can point to no
statutory authority for its “one-continuous-transaction” theory which
does not require the killing to take place while (not before or after)
the accused is “engaged in the commission” of the arson. The
“one-continuous-transaction” theory is pure, made-up fiction, and I
decline to subscribe to it.
FOOTNOTE. Case was originally affirmed in this Court but on remand
from U.S. Supreme Court, case was remanded by this Court for a new
WALLER, Chief Justice, for the
RANDOLPH, P.J., LAMAR, CHANDLER, PIERCE AND
COLEMAN, JJ., CONCUR. KITCHENS, J., SPECIALLY CONCURS WITH SEPARATE
WRITTEN OPINION JOINED BY DICKINSON, P.J. DICKINSON, P.J., CONCURS IN
PART AND IN RESULT WITH SEPARATE WRITTEN OPINION JOINED BY KING, J.