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Bobby Glen
WILCHER
Classification: Murderer
Characteristics:
Robbery
Number of victims: 2
Date of murders:
March 5,
1982
Date of arrest:
Next day
Date of birth:
November 15,
1962
Victims profile: Katie Belle Moore,
47, and Velma Odell Noblin, 52
Method of murder: Stabbing
with knife 46 times
Location: Scott County, Mississippi, USA
Status:
Executed
by lethal injection in Mississippi on October 18, 2006
Summary:
Wilcher met Katie Belle Moore and Velma Odell Noblin at a Scott
County bar and at closing time persuaded the women to take him home.
Under this pretext, he directed the women down a deserted service
road in the Bienville National Forest where he robbed and brutally
murdered the women by stabbing them a total of 46 times.
Thereafter,
Wilcher was stopped for speeding by the Forest Police Department
between 1:00 and 2:00 a.m. He was alone and was driving victim
Noblin's car. The victims' purses and one victim's brassiere were on
the back seat. Wilcher was covered in blood; he had a bloody knife
in his back pocket that had flesh on the blade. Wilcher explained
his condition by telling the policeman that he had cut his thumb
while skinning a possum.
The officer followed Wilcher to the
hospital, where Wilcher's wound was cleaned and covered with a band-aid.
Another officer was called to the hospital to observe Wilcher, the
knife, the car, the purses, and the brassiere. The officers left the
hospital on an emergency call. Wilcher went home.
The next morning,
he abandoned Noblin's car at an apartment complex. Wilcher also
threw the victims' purses and some of the victims' clothing in a
ditch. He was arrested later that day. The victims' jewelry was
subsequently found in Wilcher's bedroom.
Citations:
Wilcher v. State, 448 So.2d 927 (Miss. 1984) (Direct Appeal -
Noblin Victim). Wilcher v. State, 455 So.2d 727 (Miss. 1984) (Direct Appeal -
Moore Victim). Wilcher v. State, 479 So.2d 710 (Miss. 1985) (PCR). Wilcher v. State, 635 So.2d 789 (Miss. 1993) (PCR After Remand). Wilcher v. State, 697 So.2d 1123 (Miss. 1997) (Direct Appeal
After Remand). Wilcher v. State, 863 So.2d 719 (Miss. 2003) (PCR). Wilcher v. State, 863 So.2d 776 (Miss. 2003) (PCR). Wilcher v. Hargett, 978 F.2d 872 (5th Cir. Miss. 1992)
(Habeas).
Final/Special Meal:
Two dozen jumbo fried shrimp with tarter sauce and ketchup, two
large orders of fried onion rings and french fries, one raw regular
onion, six pieces of garlic bread, two cold 32 oz. Cokes, two 32 oz.
strawberry milkshakes.
Final Words:
Declined.
ClarkProsecutor.org
Mississippi Department of Corrections
NEWS RELEASE
October 18, 2006 Execution of Bobby G. Wilcher
7:00 p.m. News Briefing
Parchman, Miss. - The Mississippi Department of Corrections (MDOC)
today conducted the mandated execution of state inmate Bobby Glenn
Wilcher. Inmate Wilcher was pronounced dead at 6:42 p.m. at the
state penitentiary at Parchman.
MDOC Commissioner Christopher Epps said during a press conference
following the execution that the evening marked the close of the
Bobby Glenn Wilcher case. It involved 24 years of appeals on death
row in the capital murders of Katie Belle Moore and Velma Odell
Noblin in Scott County. Epps said, “It is our agency’s role to see
that the order of the court is carried out with dignity and decorum.
That has been done. Over the course of 24 years, state death row
inmate Bobby Glenn Wilcher was afforded his day in court and in the
finality, his conviction was upheld all the way to the U.S. Supreme
Court. The cause of justice has championed over wrong.”
A“In this final chapter tonight, it is our fervent hope that the
families of Ms. Moore and Ms. Noblin may now begin the process of
healing. Our prayers go out to you as you continue life’s journey,”
said Epps. Epps concluded his comments by commending Deputy
Commissioner of Institutions Emmitt Sparkman, MSP Superintendent
Kelly and the entire Mississippi State Penitentiary security staff
for their professionalism during the process.
Date: October 18, 2006
Contact: Tara Booth
Phone: (601) 359-5701, MSP Media Center (662) 745-6148
Fax: (601) 359-5738
October 18, 2006 Scheduled Execution of Bobby G. Wilcher
4:45 p.m. News Briefing
Parchman, Miss. - The Mississippi Department of Corrections (MDOC)
today briefed members of the news media of death row Inmate Bobby G.
Wilcher’s activities from 2:00 p.m. to approximately 4:30 p.m.,
including telephone calls and visits.
Update to Inmate Wilcher’s Collect Telephone Calls
Wednesday, October 18, 2006
Inmate Wilcher made telephone calls today to Lindy Wells (friend)
and Cliff Johnson (attorney).
Update to Inmate Wilcher’s Visits
Visitors left Unit 17 at 4:00 p.m.
• Lindy Lou Wells (friend)
• Cliff Johnson (attorney)
• Angela Parnell (paralegal)
• Stan Wilson (spiritual advisor)
Activities of Inmate Wilcher:
Inmate Wilcher ate his last meal at approximately 12:45 p.m. today
and took a shower at 4:15 p.m. He has requested no sedative and has
chosen not to participate in communion. Inmate Wilcher remains under
observation. As reported earlier, Wilcher is somber and quiet.
October 18, 2006 Scheduled Execution of Bobby G. Wilcher
2:00 p.m. News Briefing
Parchman, Miss. - The Mississippi Department of Corrections (MDOC)
will hold three news briefings today related to events surrounding
the October 18th scheduled execution of death row Inmate Bobby G.
Wilcher, MDOC #34602. The following is an update on Inmate Wilcher’s
recent visits and telephone calls, activities, last meal to be
served, and the official list of execution witnesses.
Visits with Inmate Bobby G. Wilcher
Tuesday, October 17, 2006 Attorney Cliff Johnson and paralegal
Angela ParnellWednesday, October 18, 2006 Allowed visits with
attorneys, spiritual advisor and friends from 1:00 p.m. until 4:00
p.m.
Currently visiting with Inmate Bobby G. Wilcher: • Lindy Lou Wells (friend)
• Cliff Johnson (attorney) 2pm • Angela Parnell (paralegal) 2pm
Activities of Wilcher
• This morning for breakfast, Inmate Wilcher was offered coffee,
biscuits and jelly, milk, sausage, and boiled eggs. He declined all
but the coffee.
• Inmate Wilcher was offered lunch today consisting turkey meat, two
slices of bread, english peas, rice, cheese, two cups of tea, and
two oranges. Inmate Wilcher ate two oranges.
• Inmate Wilcher has access to a telephone to place unlimited
collect calls to persons on his approved telephone list. He had
access to the phone from 8:00 a.m. to 5:00 p.m. on Tuesday and will
have access today, October 18th, from 8:00 a.m. until 5:00 p.m.
• According to the MDOC correctional officers that are posted
outside his cell, Inmate Wilcher is observed to be in a quiet mood.
Approved Telephone List
Lindy Lou Wells (friend), Sister Patricia Tallent (friend), James H.
Wilcher (half-brother), Randy Wilcher (nephew), Jan Wilcher (spouse
of Randy), Cliff Johnson (attorney of record), Angela Parnell (paralegal),
Van Williams (friend), Tomika Harris (friend), Charles Press, Debra
Saba-Press (friends), Bill May (friend), Ken Rose (friend), Camille
Evans (friend), Robert Brooks (friend), Kendra Lee-Lindsey (friend),
Jane Hicks (friend), and Iva Nell Wilcher (sister-in-law), Danny
Wilcher (brother), Penny Easterling (sister), Craig Trueblood (spiritual
advisor), Joseph Stan Wilson (spiritual advisor).
Wilcher’s Remains
Inmate Wilcher has requested that his body be released to Colonial
Funeral Home, Forest, Mississippi.
Last Meal
Inmate Wilcher requested the following as his last meal: Two dozen
jumbo fried shrimp with tarter sauce and ketchup, two large orders
of fried onion rings and french fries, one raw regular onion, six
pieces of garlic bread, two 32 oz. cold Cokes, two 32 oz. strawberry
milkshakes.
Inmate Wilcher’s Collect Telephone Calls
Tuesday, October 17, 2006
Phone calls were made by Inmate Wilcher to Lindy Wells (friend),
Bill May (friend) and Van Williams (friend).
Wednesday, October 18, 2006
Phone calls thus far today made by Inmate Wilcher to Lindy Wells (friend)
and Cliff Johnson (attorney).
Execution Witnesses
Attorneys for the condemned Angela Parnell (paralegal) and Cliff
Johnson (attorney) No member of the condemned’s family At Inmate
Wilcher’s request. Two members of each of the victims’ family Noblin
Family: Billy Sessions (brother) and Stacey Boyd (granddaughter)
Moore Family: Tommy Moore (son) and Joe Rigby (nephew) Sheriffs
Harold Jones, Scott County Deputy Sheriff and James Haywood,
Sunflower County Sheriff Governor’s Witness C. Daryl Neely, Policy
Advisor 8 Members of the Media Jack Elliot, Jr., Associated Press
Sidney L. Salter, The Clarion-Ledger Chris Allen Baker, The Scott
County Times Robert H. Smith, The Cleveland News Leader Melissa
Faith Payne, WJTV Gregory M. Flynn, WAPT Jason Law, WXVT Andrea "Andi"
Peterson, Miss. News Network
Executed: Bobby Glen Wilcher: 11 minutes conclude 24-year ordeal
By Jimmie E. Gates -
Jackson Clarion-Ledger.com
October 19, 2006
PARCHMAN — Family members of two Scott County women brutally
murdered by Bobby Glen Wilcher hugged corrections officials after
Wilcher was executed Wednesday evening at the Mississippi State
Penitentiary. It took 24 years for Wilcher's execution to be carried
out, but it took only about 11 minutes for him to die by lethal
injection for the 1982 slayings of Katie Bell Moore and Velma Odell
Noblin. Both mothers were stabbed more than 20 times each.
"He didn't want to be executed. He was acting like the other
seven executions I have been involved in," Mississippi Department of
Corrections Commissioner Chris Epps said. Wilcher, 43, did not
expect another stay, corrections officials said. The U.S. Supreme
Court, about 90 minutes before the scheduled 6 p.m. execution,
refused to consider his emergency stay request. He was pronounced
dead at 6:42 p.m.
In July, Wilcher received a last-minute reprieve from the U.S.
Supreme Court after the court said it needed more time to consider
the case. He voluntarily gave up his federal appeals in June but
later tried to have them reinstated. When asked in the death chamber
if he wanted to make a statement, Wilcher said, "I have none." But
earlier Wednesday, Wilcher told Epps, "I messed up a good thing, and
now I can't do anything about it." Epps said Wilcher made the
comment when he asked him about killing the women.
Wilcher killed Moore and Noblin after meeting them at a Forest
bar. He persuaded them to drive him home and diverted them down a
deserted road where he killed them. Wilcher never apologized for the
slayings.
For the families of the victims, there finally is closure. "The
families are relieved. It was long overdue," said Moore's nephew,
Joe Rigby, who was Scott County's coroner in 1982. He is now the
circuit clerk. Wilcher said before his execution that he didn't want
a sedative but changed his mind as the time neared. Epps said
Wilcher indicated he got only an hour of sleep Tuesday night because
he was writing goodbye letters.
Wilcher's attorney, Cliff Johnson, who witnessed the execution,
said Wilcher spent his entire adult life in dehumanizing conditions
but maintained the capacity to care deeply for other people, to show
kindness and to demonstrate forgiveness and understanding. "He was
my friend, and I will miss him," Johnson said. About eight
anti-death penalty activists gathered on the penitentiary grounds
before the execution.
Wilcher was visited Wednesday by Lindy Wells, a Yazoo City woman
with whom he had become friendly. Also, Johnson and his paralegal,
as well as a spiritual adviser and prison chaplains, visited Wilcher
in his cell, which was 19 steps from the execution chamber. Wilcher
also made collect calls to Wells before her visit and to others.
Epps said Wilcher explained that it was Wells who got him
interested in fighting to have his appeals reinstated. Epps said
Wilcher told him Wells was a jury member in one of his trials. He
had been tried separately for each slaying. The Clarion-Ledger
attempted to contact Wells but was told by a female who answered the
telephone late Wednesday after the execution that she wasn't at
home.
Wilcher's last meal request was for two dozen shrimp, two large
orders of fried onion rings, two orders of fries, one raw onion, six
pieces of garlic bread, two cold, 32-ounce Cokes and two strawberry
shakes. He wanted to share the food with prison personnel, Epps said.
Wilcher had a similar meal request in July.
This time, Wilcher's last meal was served at 12:45 p.m. instead
of the traditional 4 p.m. Epps said it was moved for logistical
purposes to allow more time for things such as a haircut for Wilcher.
"It was better to get it out of the way," Epps said of the earlier
time for the meal. Epps said it's a change he probably will continue.
Wilcher's body was released to Colonial Funeral Home in Forest.
He requested that his personal items be given to his attorney. At
his request, none of Wilcher's family attended his execution. But
Wilcher talked Tuesday by telephone to his mother, who is
incarcerated in the Central Mississippi Correctional Facility on a
drug conviction. His father recently died, Epps said. Epps said if
there is any lesson to be learned from Wilcher's case, it is that "crime
doesn't pay."
Bobby Glen Wilcher declined breakfast and drank only coffee. He
had his last meal at 12:45 p.m. From 1-4 p.m., he visited with
attorney Cliff Johnson, friend Lindy Lou Wells, paralegal Angela
Parnell and spiritual adviser Stan Wilson. At 4:15 p.m. he took a
shower
Final minutes find killer with nothing to say
By Sid
Salter
October 18, 2006
PARCHMAN — After more than 24 years on death row, Bobby Glen
Wilcher simply went to sleep Wednesday evening. The last sight I saw
from the execution chamber door was a purple sunset dropping behind
the cotton fields on the wide Delta horizon - before the
barbiturates and paralyzing agents were pumped into Wilcher's
tattooed left arm at 6:31 p.m.
It was in this building - Unit 17, the old death row that is now
used only for executions - that I interviewed Wilcher in 1985 and
again in 1988. In this decaying old building 18 years ago he told me
he stabbed Velma Odell Noblin and Katie Bell Moore on a deserted U.S.
Forest Service road on a rainy night in 1982 because "it felt good."
I thought of those words as I watched him dying. But Wilcher said
only three words during the final 11 minutes of his life. Offered a
chance to make a final statement, he said: "I have none." He never
glanced at the victims' family members, who were standing less than
five feet from him, behind a glass in a viewing room. Those family
members - Stacey Boyd, victim Noblin's granddaughter; Billy Sessions,
Noblin's brother; Joe Rigby, Moore's nephew; and Tommy Moore,
Moore's son - stood close to the glass, peering intently at Wilcher.
Rigby, Boyd and Moore linked arms during the execution while
Sessions stood close behind. None of the family witnesses uttered a
word during the final minutes of Wilcher's life. When Wilcher was
pronounced dead by state Medical Examiner Steven Hayne and Sunflower
County Coroner Doug Carr, the four left the room.
Wilcher was strapped to a gurney roughly shaped like a cross with
nine wide, tan leather straps. He was dressed in a red prison
jumpsuit and white socks. A big man who weighed between 315 and 345
pounds, according to prison officials, Wilcher's long dark hair was
clean and combed, his goatee streaked with white. Wilcher was almost
perfectly still on the gurney, his eyes closed, throughout most of
the execution. His breathing was shallow, and it was clear he had
been sedated. The most visible sign of Wilcher's execution was the
inexorable turn of his skin from the pasty white of prison life to
the pale gray cyanosis of death. Death came at 6:42 p.m.
Mississippi Department of Corrections Commissioner Chris Epps
said Wilcher asked for and received a Valium shortly before the
execution began, reversing a decision earlier Wednesday to go
without one. Rigby was the coroner of Scott County at the time of
the murders and the first one to identify the bodies and see the
carnage of the multiple stab wounds that claimed their lives.
After the execution, Rigby said: "All I could think about was
when I first saw what he'd done to those ladies on the end of that
government road. He died such a peaceful death compared to what they
endured, to what my aunt endured."
Moore said watching his mother's killer be executed would help
him move on with life. "My emotions are better now because it's
finally over," Moore said. "We don't have to focus on it all the
time. But it just looks to me like he died too peaceful a death
compared to the crime he committed."
Leaving the execution chamber, I could not help but remember the
wiry, threatening young man I interviewed years ago and the
corpulent, middle-aged man on that gurney. The memory and the
reality were almost unrecognizable as the same man.
Convicted Killer Bobby Glen Wilcher Executed
WLOX.com
Oct 18, 2006
(AP) Convicted killer Bobby Glen Wilcher was executed by lethal
injection Wednesday for the brutal killings of two women in
Mississippi in 1982. Wilcher's 6:42 p.m. death at the state
penitentiary came two hours after the U.S. Supreme Court declined to
intervene as it did on Wilcher's first execution date in July.
Corrections Commissioner Chris Epps said Wilcher was in a "quiet
mood" throughout the day before being strapped to the death chamber
gurney.
"Despite the needless delay caused by the U.S. Supreme Court,
justice has finally been rendered for these horrible crimes," Gov.
Haley Barbour said in a news release. "The real tragedy in this case
is that justice was delayed for more than two decades."
The 43-year-old Wilcher had spent his final hours visiting with
his attorney, a spiritual adviser and one friend. "He's not as
playful or joyful as he was ... all of that is gone. He's very
serious. He feels he will be executed today," Epps said during a mid-afternoon
briefing.
Epps said Wilcher on Wednesday asked for a conjugal visit with a
woman who had been a juror in one of his trials, but the request was
denied. Wilcher and the woman had developed a friendship, Epps said.
She was allowed a non-contact visit with Wilcher, along with his
attorney Cliff Johnson of Jackson and a paralegal. Wilcher's last
meal of shrimp, onion rings, garlic bread, sodas and strawberry
milkshakes had been moved to 12:40 p.m. to allow him to spend more
time with his visitors, Epps said.
Wilcher was sentenced to death for killing Katie Belle Moore and
Velma Odell Noblin in Scott County. After meeting them at a Forest
bar, Wilcher persuaded the women to drive him home and diverted them
down a deserted road. Their blood-soaked bodies were found sprawled
along the muddy banks of the dirt road. Authorities said each woman
had been stabbed and slashed more than 20 times.
Wilcher's case has gone through two trials, two re-sentencing
hearings and countless appeals, in a legal saga that has spanned
more than two decades. He came within minutes of death on July 11
before the Supreme Court ordered a stay. But, the court declined
without comment to hear the case on Oct. 2, and his attorney began
pushing the case back through the lower courts.
U.S. District Judge Henry Wingate declined stop the execution on
Saturday. Wilcher in May had asked Wingate to stop his appeals and
go forward with the execution. Wingate granted the request but about
a month later Wilcher asked that his appeals be reinstated. Wingate
declined, saying he would not allow his court to be held "hostage"
by a death row inmate. Wilcher appealed to the 5th U.S. Circuit
Court of Appeals, but the court on Tuesday refused to stop the
execution. On Wednesday, Johnson asked the U.S. Supreme Court to
again intervene. The court declined.
Epps said Wilcher did not request that any of his family members
witness the death. His father is deceased and his mother is
imprisoned at the Central Mississippi Correctional Facility in
Rankin County for drug possession, Epps said. Wilcher's witnesses
for the execution were to include his attorney and a paralegal.
Barbour denied Wilcher clemency before the first scheduled
execution. After the July execution was halted, Barbour said in a
statement that the "only injustice here is that 24 years have
already passed since this murderer earned the death penalty."
Mississippi's most recent execution was in December, when John B.
Nixon Sr. died by lethal injection for the 1985 contract killing of
Virginia Tucker of Brandon.
Death row execution; Convicted killer Wilcher put to death
By Jack Elliott Jr. -
Biloxi Sun-Herald
AP - Oct. 19, 2006
PARCHMAN, Miss. - Convicted killer Bobby Glen Wilcher was
executed by lethal injection Wednesday for the brutal killings of
two women in Mississippi in 1982, ending a legal saga that stretched
over more than two decades. Wilcher's 6:42 p.m. death at the state
penitentiary came two hours after the U.S. Supreme Court declined to
intervene as it did on Wilcher's first execution date in July. "I
have none," Wilcher, 43, said when he was asked if he had any final
words.
Wilcher took two deep breaths and then closed his eyes. Dressed
in a red prison jumpsuit, the 5-foot-10, 315-pound inmate stared at
the ceiling. He did not look in the direction of either viewing room
- one that held the families of his victims and the other his
attorney, Cliff Johnson, who had visited with Wilcher most of the
day.
Corrections Commissioner Chris Epps said Wilcher was in a "quiet
mood" throughout the day before being strapped to the death chamber
gurney. "Despite the needless delay caused by the U.S. Supreme Court,
justice has finally been rendered for these horrible crimes," Gov.
Haley Barbour said in a news release. "The real tragedy in this case
is that justice was delayed for more than two decades."
Wilcher had spent his final hours visiting with his attorney, a
spiritual adviser and one friend. "He's not as playful or joyful as
he was... all of that is gone. He's very serious. He feels he will
be executed today," Epps said during a midafternoon briefing. Epps
said Wilcher on Wednesday asked for a conjugal visit with a woman
who had been a juror in one of his trials, but the request was
denied. Wilcher and the woman had developed a friendship, Epps said.
She was allowed a non-contact visit with Wilcher, along with his
attorney and a paralegal. Johnson said Wilcher did not ask for a
conjugal visit.
"The woman about whom Commissioner Epps spoke is married and is
enrolled in seminary studying to be a minister," Johnson said. "She
has been a good friend to Bobby during this most difficult time, and
any suggestion by Commissioner Epps or anyone else that there was
anything inappropriate about their relationship is shameful."
Johnson confirmed that the woman was a juror in one of Wilcher's
resentencing trials in 1994. He said Wilcher sought a "contact"
visit with the woman, which means they could speak in the same room.
"This is very different from a conjugal visit, which clearly has
sexual connotations," Johnson said. "Commissioner Epps knows the
difference."
Wilcher's last meal of shrimp, onion rings, garlic bread, sodas
and strawberry milkshakes had been moved to 12:40 p.m. to allow him
to spend more time with his visitors, Epps said.
Wilcher was sentenced to death for killing Katie Belle Moore and
Velma Odell Noblin in Scott County. After meeting them at a Forest
bar, Wilcher persuaded the women to drive him home and diverted them
down a deserted road. Their bodies were found sprawled along the
banks of the dirt road. Authorities said each woman had been stabbed
and slashed more than 20 times.
Wilcher's case has gone through two trials, two resentencing
hearings and countless appeals. He came within minutes of death on
July 11 before the Supreme Court ordered a stay. But, the court
declined without comment to hear the case on Oct. 2, and his
attorney began pushing the case back through the lower courts. U.S.
District Judge Henry Wingate on Saturday declined to stop the
execution.
Wilcher in May had asked Wingate to stop his appeals and
go forward with the execution. Wingate granted the request, but
about a month later Wilcher asked that his appeals be reinstated.
Wingate declined, saying he would not allow his court to be held "hostage"
by a death row inmate. Wilcher appealed to the 5th U.S. Circuit
Court of Appeals, but the court on Tuesday refused to stop the
execution. On Wednesday, Johnson asked the U.S. Supreme Court to
again intervene. The court declined.
Epps said Wilcher did not request that any of his family members
witness the death. His father is deceased and his mother is
imprisoned at the Central Mississippi Correctional Facility in
Rankin County for drug possession, Epps said. Wilcher's witnesses
for the execution were to be his attorney and a paralegal.
Barbour denied Wilcher clemency before the first scheduled
execution. After the July execution was halted, Barbour said in a
statement that the "only injustice here is that 24 years have
already passed since this murderer earned the death penalty."
Mississippi's most recent execution was in December, when John B.
Nixon Sr. died by lethal injection for the 1985 contract killing of
Virginia Tucker of Brandon.
ProDeathPenalty.com
In 1994, a resentencing trial was held that resulted in Bobby Glenn
Wilcher's second death sentence for the 1982 murder and robbery of
Katie Belle Moore, 45. The case arises out of the gruesome double
murder and robbery of Velma Odell Noblin and Katie Belle Moore.
The
evidence reflects that Bobby Glenn Wilcher, age nineteen, met his
two female victims at a Scott County bar on the night of March 5,
1982. When the bar closed at midnight, Wilcher persuaded the women
to take him home. Under this pretext, he directed the women down a
deserted service road in the Bienville National Forest--where he
robbed and brutally murdered the women by stabbing them a total of
forty-six times.
Thereafter, Wilcher was stopped for speeding by the
Forest Police Department between 1:00 and 2:00 a.m. He was alone and
was driving victim Noblin's car. The victims' purses and one
victim's brassiere were on the back seat. Wilcher was covered in
blood; he had a bloody knife in his back pocket that had flesh on
the blade. Wilcher explained his condition by telling the policeman
that he had cut his thumb while skinning a possum.
The officer
followed Wilcher to the hospital, where Wilcher's wound was cleaned
and covered with a band-aid. Another officer was called to the
hospital to observe Wilcher, the knife, the car, the purses, and the
brassiere. The officers left the hospital on an emergency call.
Wilcher went home. The next morning, he abandoned Noblin's car at an
apartment complex. Wilcher also threw the victims' purses and some
of the victims' clothing in a ditch. He was arrested later that day.
The victims' jewelry was subsequently found in Wilcher's bedroom.
UPDATE:
Just 27 minutes after the appointed hour that Bobby Glen
Wilcher was scheduled to receive a lethal injection, the U.S.
Supreme Court stopped the execution for further review. News of the
order was received at 6:27 p.m. Tuesday, 53 minutes after the
Supreme Court placed the execution on hold as Wilcher waited in his
holding cell next to the execution chamber. Corrections officials
said Wilcher would be placed on suicide watch and returned him to
his previous residence on Death Row, where he lived for 24 years
since the murders of his two victims in 1982.
A brief two-paragraph
order faxed to the Mississippi State Penitentiary did not specify
the court's reason for granting the stay. U.S. Associate Justice
Antonin Scalia, who initially received Wilcher's final appeal,
referred Wilcher's case to the entire court, which voted 6-3 to
grant the stay. Justices Scalia, Samuel Alito and Chief Justice John
Roberts voted against the stay.
The Associated Press in Washington,
D.C., reported moments later that the Supreme Court would review the
case later in the fall, the earliest being in October when oral
arguments could be heard. If the U.S. Supreme Court allows the
execution to proceed, the Mississippi Supreme Court will set a new
execution date.
Demaction.org
Bobby Wilcher, MS - October 18
Do Not Execute Bobby Wilcher!
Bobby Glen Wilcher, a 44-year-old white man, was convicted of the
robbery and double murder of 47-year-old Katie Belle Moore and 52-year-old
Velma Odell Noblin on the night of March 5, 1982. Wilcher, 19 years
old at the time, met these two women at a bar that night in Scott
County, Mississippi. When the bar closed, Moore and Noblin agreed to
drive Wilcher home, per his request. While in Noblin’s brown 1978
Datsun, Wilcher diverted the women down a service road, where he
stabbed and killed them. Bobby Glen Wilcher was found guilty in two
separate trials in 1982.
Although Wilcher was tried twice and in two different counties (even
though the crime was one single incident), Judge Marcus D. Gordon
presided over both of these trials. While this may be considered
standard in some cases, in this case there is reason to believe that
Judge Gordon was bias and should have recused himself.
First, one of
Wilcher’s numerous appeals states that, during a period between
Judge Gordon’s resignation and reelection to the bench, he was
listed as an attorney representing Sheriff Glenn Warren, who was
charged with extortion. Coincidentally, this was the same sheriff
whose testimony provided a bulk of the evidence against Wilcher.
Disturbingly, the judge deemed none of this information—the
extortion charge or the prior professional relationship—admissible
in court.
Second, Wilcher’s appeals further discredit Judge Gordon
by pointing out that the judge was biased, as demonstrated by one-sided
contact, judicial comments, and a jury selection process that
resulted in a tainted jury. The Supreme Court of Mississippi denied
this appeal solely because these issues should have been brought out
during trial or through a direct appeal. Although the Supreme Court
of Mississippi did not assert that Judge Gordon was in fact biased,
the court did claim that Wilcher’s argument that the judge should
have recused himself “may have merit.”
Wilcher also appealed in an attempt to demonstrate in effective
assistance of counsel, claiming that his lawyers failed to present
mitigating psychological evidence of troubled childhood. Although a
psychological and psychiatric evaluation by two state doctors
determined that Wilcher was not under extreme psychological or
emotional duress during the crime, Wilcher’s counsel was not present
during this evaluation.
Additionally, no cross examination of the
two state-appointed professionals was ever conducted, and no
testimony from other mental health professionals was ever presented.
The Mississippi Supreme Court claims that even if these factors were
altered during the course of the trial, Wilcher cannot show that the
outcome would have been different.
Wilcher originally dropped his appeals and is “volunteered’ to be
executed. Against the advice of his attorneys, Wilcher requested and
won a federal court’s approval to dismiss any further appeals on his
case. However, he is now starting up the appeals process.
Please write to Gov. Haley Barbour on behalf of Bobby Wilcher!
24 years: Killer's appeals 'run out'
Convicted murderer
scheduled to die by lethal injection at 6 p.m.
By Jimmie E. Gates -
ClarionLedger.com
October 18, 2006
Bobby Glen Wilcher will die today by lethal injection for the 24-year-old
murder of two Scott County women unless the U.S. Supreme Court,
which refused last week to hear the case, intervenes.
On Tuesday, the 5th Circuit U.S. Court of Appeals denied a
request to reinstate Wilcher's federal appeals. "I think his appeals
have run out," state Attorney General Jim Hood said late Tuesday. "I
expect the execution will take place tomorrow at 6 p.m." Wilcher's
attorney, Cliff Johnson, said he will file an emergency appeal to
the U.S. Supreme Court at 9 a.m. or 9: 30 a.m. today. "We are down
to the short road," he said. "We hope there won't be an execution."
Mississippi Department of Corrections Commissioner Chris Epps
said he met with Wilcher on Tuesday and he was less jovial and
playful than he was in July, when he initially was scheduled to be
executed. Epps said Wilcher told him, "I just realized I have
something to live for, but it's too late."
The Court of Appeals affirmed U.S. District Court Judge Henry T.
Wingate's decision Saturday to deny Wilcher's attempt to reinstate
his appeals after he voluntarily waived them in June. "We conclude
that petitioner's claims do not merit reinstatement of his petition
... or any other relief before this court," the Court of Appeals'
decision reads. Wilcher received a reprieve from death 30 minutes
before his scheduled execution July 11, when the U.S. Supreme Court
said it needed more time to consider the case on an emergency appeal
from Johnson.
Among the issues Johnson raised were whether Wilcher's due
process rights were violated because his primary attorney didn't
receive adequate notice of the hearing as well as Wilcher's
competency to waive his federal appeals since he has a bipolar
disorder. But the Supreme Court last week declined to hear an appeal
from Wilcher's attorney, leading to a new execution date for Wilcher.
On Oct. 9, the state Supreme Court wrote: "After due consideration,
this court finds that no impediment exists to setting an execution
date."
Epps said two practice executions were conducted Tuesday in
preparation for carrying out today's execution. A female friend of
Wilcher, Lindy Wells of Yazoo City, will be allowed to visit him
today, Epps said. Also, Wilcher's spiritual adviser, MDOC chaplains,
Johnson and his paralegal will be visitors.
Wilcher request for his final meal is similar to what he ordered
in July. Wilcher said his plan is to share the meal with prison
personnel, but Epps said he won't allow that. Wilcher's last meal
request is for two dozen shrimp, two orders of fried onion rings and
two orders of fries, one raw onion, six pieces of garlic bread, two
32-ounce cold Coke drinks and two strawberry shakes.
Wilcher, 43, was sentenced to death for killing Katie Belle Moore
and Velma Odell Noblin in 1982. After meeting them at a Forest bar,
Wilcher persuaded the women to drive him home and diverted them down
a deserted road. Each woman was stabbed and slashed more than 20
times, according to authorities.
Granddaughter's lament echoes north to Death Row
By Sid
Salter
As the clock ticks away what are likely the remaining hours and
seconds of Bobby Glen Wilcher's life today at the Mississippi State
Penitentiary at Parchman, the granddaughter of one of his victims is
awaiting closure in the only form that she believes it can come for
her and her family. Registered nurse Stacey Boyd, 34, of Forest is
the granddaughter of Mrs. Odell Noblin of Forest, who along with Mrs.
Katie Bell Moore was on March 6, 1982, lured down a U.S. Forest
Service road in Scott County by Wilcher. It was there, Wilcher would
later tell me during two chilling interviews on Death Row, that he
robbed and stabbed the two women to death and that "it felt good."
The murder was a crime of considerable rage and brutality. Each
woman was stabbed more than 20 times. Wilcher left their bodies
along a muddy ditch bank in the rain - then drove back to Forest in
Mrs. Noblin's brown 1978 Datsun.
Boyd - who was 10 when her "Mamaw" was slain - says of the crime
that took her grandmother's life: "As vindictive as it may sound to
the bleeding hearts, Bobby Wilcher must die in order for my family
to find closure and open a new chapter in our book of life. "On a
softer side, our sincere wish is that Wilcher die peacefully in his
sleep before the U. S. Supreme Court has a chance to destroy what
little faith and trust we have remaining in our justice system. If
justice is served when the punishment fits the crime, justice in
this case can never be obtained. Let it end."
Boyd remembers her grandmother clearly and fondly. "Mamaw was a
small, petite, but feisty soft-spoken lady," said Boyd. "Always
eager to assist anyone in need, she never met a stranger.
Communication with family and friends was important to her. "At her
untimely death, she had 10 children, numerous siblings, and
countless nieces, nephews, and grandchildren. The role she was
playing at any given time, whether aunt, sister, mom, grandmother,
or friend, she poured her heart and soul into it with attentive
devotion. "She would have you convinced that you were the most
important person in her life and all the world revolved around you.
My sister and I spent many days and nights at Mamaw's house. As a
child, her home is where I learned peace, love, and harmony," Boyd
said.
As Wilcher waits at Parchman, Boyd's lament of pain and loss for
her grandmother echoes north from the pine thickets of Scott County
to the flat Delta fields surrounding the Parchman prison. Boyd is
scheduled to witness Wilcher's execution, along with three other
members of the victims' families.
Bobby Thomas of Forest, a retired merchant who was foreman of one
of the original two Scott County juries that convicted Wilcher of
the murders in 1982, said "there was just no doubt whatsoever" of
Wilcher's guilt in the crimes. Thomas also said he has no problems
living with the approach of Wilcher's execution as one of those who
found him guilty. "Even as a devout Catholic, I find biblical
justification for the death penalty and I believe that penalty is
justified in this case," said Thomas. "The prosecution made their
case. Wilcher has admitted his guilt on numerous occasions and I'm
at peace about it."
The Wilcher case is one of only a handful of violent crimes in
Scott County over the last three decades that have drawn statewide
attention. The case still stirs long conversations in the gas
stations, bank lobbies and coffee shops in Forest and the
surrounding communities.
Today is not a day of rejoicing for Boyd and the rest of the
members of the families of the women Wilcher murdered. Both families
have steadfastly expressed their concern for Wilcher's family and
acknowledge their pain. Such are small-town relationships. But these
Scott County families covet closure. They're searching for a
reckoning for the violence on that muddy road long ago. That
reckoning appears to be at hand.
WTOC.com
Bobby Glen Wilcher was laid to rest in Leake County Thursday
after being put to death by lethal injection Wednesday night at
Parchman. At the execution, reporters learned about a relationship
between Wilcher and a former juror from one of his trials, but the
exact nature of their relationship is being disputed.
Lindy Lou Wells was on the jury that sentenced Wilcher to death
in 1994, but as time passed the former juror from Yazoo City decided
to befriend the convicted killer. "She sought out our office
ultimately to find out how to get in contact with Bobby," said
Wilcher's attorney Cliff Johnson.
Johnson said it was a spiritual calling that led Wells to support
Bobby. She spent time with him just hours before his execution.
That's when corrections commissioner Chris Epps made this remark
about just how close the two became. "So close that he asked me,
could they have a conjugal visit," said Epps.
Johnson says the statement devastated Wells, who is a married
grandmother studying to become a minister. He said there was never a
formal request for a conjugal visit, only a contact visit. "A
contact visit, being in the same room with someone, is very
different than a conjugal visit, which clearly means you'll be
having sexual relations with someone," Johnson said.
Johnson said Wells is deeply hurt by Epps' remarks, her
reputation destroyed as she mourns the death of a close friend. But
he said he doesn't believe that was the commissioner's intention and
is awaiting a retraction.
"If Chris Epps is the man I think he is, I think he will
recognize he made a mistake and apologize, and I think he should,"
Johnson said. However, contacted by phone, Epps is standing by his
remark that Wilcher did request a conjugal visit.
Mississippi Department of
Corrections
December 14, 2005
Contents of Syringes for Lethal Injection
• Anesthetic - Sodium Pentothal – 2.0 Gm.
• Normal Saline – 10-15 cc.
• Pavulon – 50 mgm per 50 cc.
• Potassium chloride – 50 milequiv. per 50 cc.
48 Hours Prior to Execution The condemned inmate shall be
transferred to a holding cell adjacent to the execution room.
24 Hours Prior to Execution Institution is placed in emergency/lockdown
status.
1030 Hours Day of Execution Designated media center at institution
opens.
1500 Hours Day of Execution Inmate’s attorney of record and chaplain
allowed to visit.
1600 Hours Day of Execution Inmate is served last meal and allowed
to shower.
1630 Hours Day of Execution MDOC clergy allowed to visit upon
request of inmate.
1730 Hours Day of Execution Witnesses are transported to Unit 17.
1800 Hours Day of Execution Inmate is escorted from holding cell to
execution room.
Witnesses are escorted into observation room.
1900 Hours Day of Execution A post execution briefing is conducted
with media witnesses.
2230 Hours Day of Execution Designated media center at institution
is closed.
HISTORY
Since Mississippi joined the Union in 1817, several forms of
execution have been used. Hanging was the first form of execution
used in Mississippi. The state continued to execute prisoners
sentenced to die by hanging until October 11, 1940, when Hilton
Fortenberry, convicted of capital murder in Jefferson Davis County,
became the first prisoner to be executed in the electric chair.
Between 1940 and February 5, 1952, the old oak electric chair was
moved from county to county to conduct executions. During the 12-year
span, 75 prisoners were executed for offenses punishable by death.
In 1954, the gas chamber was installed at the Mississippi State
Penitentiary, in Parchman, Miss. It replaced the electric chair,
which today is on display at the Mississippi Law Enforcement
Training Academy. Gearald A. Gallego became the first prisoner to be
executed by lethal gas on March 3, 1955. During the course of the
next 34 years, 35 death row inmates were executed in the gas chamber.
Leo Edwards became the last person to be executed in the gas chamber
at the Mississippi State Penitentiary on June 21, 1989.
On July 1, 1984, the Mississippi Legislature partially amended
lethal gas as the state’s form of execution in § 99-19-51 of the
Mississippi Code. The new amendment provided that individuals who
committed capital punishment crimes after the effective date of the
new law and who were subsequently sentenced to death thereafter
would be executed by lethal injection. On March 18, 1998, the
Mississippi Legislature amended the manner of execution by removing
the provision lethal gas as a form of execution.
INMATES EXECUTED IN THE MISSISSIPPI GAS CHAMBER
Name Race-Sex Offense Date Executed
Gerald A. Gallego White Male Murder 03-03-55
Allen Donaldson Black Male Armed Robbery 03-04-55
August Lafontaine White Male Murder 04-28-55
John E. Wiggins White Male Murder 06-20-55
Mack C. Lewis Black Male Murder 06-23-55
Walter Johnson Black Male Rape 08-19-55
Murray G. Gilmore White Male Murder 12-09-55
Mose Robinson Black Male Rape 12-16-55
Robert Buchanan Black Male Rape 01-03-56
Edgar Keeler Black Male Murder 01-27-56
O.C. McNair Black Male Murder 02-17-56
James Russell Black Male Murder 04-05-56
Dewey Towsel Black Male Murder 06-22-56
Willie Jones Black Male Murder 07-13-56
Mack Drake Black Male Rape 11-07-56
Henry Jackson Black Male Murder 11-08-56
Minor Sorber White Male Murder 02-08-57
Joe L. Thompson Black Male Murder 11-14-57
William A. Wetzell White Male Murder 01-17-58
J.C. Cameron Black Male Rape 05-28-58
Allen Dean, Jr. Black Male Murder 12-19-58
Nathaniel Young Black Male Rape 11-10-60
William Stokes Black Male Murder 04-21-61
Robert L. Goldsby Black Male Murder 05-31-61
J.W. Simmons Black Male Murder 07-14-61
Howard Cook Black Male Rape 12-19-61
Ellic Lee Black Male Rape 12-20-61
Willie Wilson Black Male Rape 05-11-62
Kenneth Slyter White Male Murder 03-29-63
Willie J. Anderson Black Male Murder 06-14-63
Tim Jackson Black Male Murder 05-01-64
Jimmy Lee Gray White Male Murder 09-02-83
Edward E. Johnson Black Male Murder 05-20-87
Connie Ray Evans Black Male Murder 07-08-87
Leo Edwards Black Male Murder 06-21-89
PRISONERS EXECUTED BY LETHAL
INJECTION
Name Race-Sex Offense Date Executed
Tracy A. Hanson White Male Murder 07-17-02
Jessie D. Williams White Male Murder 12-11-02
MISSISSIPPI STATE PENITENTIARY
• The Mississippi State Penitentiary (MSP) is Mississippi’s oldest
of the state’s three institutions and is located on approximately
18,000 acres in Parchman, Miss., in Sunflower County.
• In 1900, the Mississippi Legislature appropriated $80,000 for the
purchase of 3,789 acres known as the Parchman Plantation.
• The Superintendent of the Mississippi State Penitentiary is
Lawrence Kelly.
• There are approximately 1,239 employees at MSP.
Abolish Archives
December 14, 2005
MISSISSIPPI: The families of Katie Belle Moore and Velma Odell Noblin are now
waiting for the next step in a long legal battle with the killer of
the 2 women. The Mississippi Supreme Court ruled last week that
Bobby Glen Wilcher was no longer allowed post-conviction appeals. An
assistant attorney general said it could be 2 to 7 years before the
court will set an execution date.
The Wilcher Case File
The following is a chronological and factual glimpse at Bobby Glen
Wilcher's life, the events that led up to the murder of Katie Belle
Moore and Velma Odell Noblin, and the legal battle that has taken
place since Wilcher's arrest.
BACKGROUND AND YOUTH
*Bobby Glen Wilcher was born on Nov. 15, 1962, in Jackson, the
son of Eugene and Mildred Wilcher.
*Wilcher was 1 of 4 children: Danny, a brother; Ronald, a brother
who died at the age of 6 months; and Penny, a sister.
*The family moved to Scott County while Wilcher was a young boy
prior to his entering grade school.
*From 1969 to 1977, Wilcher attended Lake Attendance Center from
grades 1 through 8.
*Wilcher was admitted to Columbia Training School and Oakley
Training School. Records do not reflect dates of time served.
*Convicted of grand larceny in Hinds County on Sept. 19, 1979.
Wilcher was sentenced to 5 years with 3 years suspended. He served
one year in the Mississippi State Penitentiary at Parchman and was
released on Oct. 3, 1980.
*Wilcher was married in Smith County on Nov. 7, 1980. He later
divorced.
*Wilcher and his wife gave birth to a daughter in 1981.
The murders of Moore and Noblin
*Family members last saw Noblin and Moore on Friday, March 5,
1982, when Noblin picked Moore up from her house. The 2 friends were
going to Robert's Drop-In, a popular night spot in Forest.
*According to later testimony, Noblin, Moore and Wilcher are seen
leaving Robert's Drop-In together in Noblin's car. According to
testimony, Wilcher reportedly asked Moore for a ride home. Moore
agreed since she knew Wilcher from her time babysitting him.
*According to a published interview in the Nov. 6, 1985, edition
of The Times with former Times Editor Sid Salter, Wilcher says he
led the women to the deadend road as if he was giving them
directions to his house.
Wilcher says in the interview that he and Noblin "went off a few
feet" and got into an argument. Wilcher says it was not until after
they were out of the car and in an argument that he drew a knife.
Wilcher told Salter he cannot remember what Noblin said to make him
angry.
Wilcher, according to the interview, stabbed Noblin one time.
Noblin then broke free from Wilcher and began to run. Moore, Wilcher
says, came around the car to confront him. "It was just too late to
turn back then so I killed her right there," Wilcher said in the
interview with Salter.
Wilcher said he then chased after Noblin, who by this time had
escaped to a nearby intersection down the road from where the car
was parked. "She got up the road and stopped and looked back. When
she looked back, I was there," Wilcher told Salter in the interview.
Wilcher said Noblin fought with him as he killed her. Wilcher said
she tried to beat him away with her shoes.
THE MORNING AFTER
*According to later trial testimony, Wilcher was pulled over for
speeding by then Forest Police Officer Henry Williams Jr. at 1:40
a.m. on Saturday, March 6, 1982. Wilcher tells Williams he was
speeding because he cut himself and was trying to get to Lackey
Hospital. Wilcher asks Williams to follow him to the hospital.
Hospital personnel tell Wilcher that he has only a small cut and
does not need medical attention.
Williams calls then-Forest Police Officer William Wilkerson to
the hospital to help interview Wilcher. Williams reports that he
noticed two purses on the seat of the car Wilcher was driving and
that Wilcher's clothes are soaked in blood.
Wilcher shows the police officers the knife he used to kill
Noblin and Moore but tell them that he cut himself with it while
cleaning an opossum. Wilcher is released. According to his interview
with Salter, Wilcher said the officers were called to another call
and he left after that.
*Later that same morning, Wilcher is arrested by Forest police
and charged with larceny of a pistol.
*Authorities are alerted by the families of Moore and Noblin that
the two women are missing.
*That afternoon, 3 teenagers find the murdered bodies of Moore and
Noblin. They alert the authorities.
*On the afternoon of March 6, 1982, Wilcher is arrested by then
Sheriff Glenn Warren for the murders of Moore and Noblin. He is held
without bail.
*On March 8, 1962, jewelry belonging to the slain women is
discovered in Wilcher's parents' home.
THE TRIALS
*In March, 1982, Circuit Judge Marcus Gordon calls a special
session of circuit court to hear all matters before the court. This
paves the way for Wilcher's trial. If the special session had not
been called, it would have been November of that month before the
trial would have taken place.
*On July 27, 1982, testimony begins in the trial for Wilcher's
murder of Noblin. Wilcher has already plead not guilty.
Wilcher testifies on July 29, 1982, that he did not kill Noblin
and that in fact a fourth person was in the car. He said a man by
the name of Gene Milton killed the women while Wilcher was passed
out in the backseat after drinking and taking drugs at the
nightclub. Wilcher testifies he awoke to find Milton standing at the
intersection over Noblin's body. Wilcher says he took the knife from
Milton and then drives him to a gas station where he let Milton out.
When asked by prosecutors why he had never mentioned Milton prior
to his testimony, Wilcher said he was scared of Milton seeking
revenge on him. Wilcher later confesses in the Salter interview that
Milton was not with him.
*On July 30, 1982, after just an hour of deliberation, a jury
finds Wilcher guilty of capital murder in the slaying of Noblin.
*On July 31, 1982, the jury sentences Wilcher to die by the death
chamber.
*On Sept. 13, 1982, testimony begins in Harrison County in the trial
against Wilcher for Moore's murder. He is found guilty and sentenced
to death.
FIRST ROUND OF APPEALS
*Wilcher appealed his conviction to the Mississippi Supreme
Court. On March 10, 1984, the Mississippi Supreme Court affirmed the
conviction and an execution date of April 11, 1984, was set.
*On March 14, 1984, the state Supreme Court stayed Wilcher's
execution to allow him an appeal before the U.S. Supreme Court.
*Barely a year later, on March 4, 1985, the nation's highest
court refused to hear Wilcher's appeal, thus allowing the death
sentence to stand.
*Wilcher's attorneys filed an appeal to the state Supreme Court
on the grounds of ineffective counsel. The appeal was denied on Oct.
30, 1985.
VACATING THE SENTENCE AND RESENTENCING
*In October, 1993, the U.S. Fifth Circuit Court of Appeals
vacates the sentencing of Wilcher and 16 other death row inmates in
Mississippi on technicalities of wording used by judges in
instructions to jurors.
*On March 17, 1994, the Mississippi Supreme Court denies Wilcher
a rehearing. This leads to his resentencing in June, 1994. In 2
separate trials, Wilcher is once again sentenced to death for the
murders of Moore and Noblin.
*On Oct. 2, 2003, the state Supreme Court rules Wilcher is not
warranted any more post-conviction appeals. Legal avenues still
exist for Wilcher, meaning his execution could be 2 to 7 years away.
(sources: Archives from The Scott County Times, Mississippi Attorney
General's Office, Scott County Circuit Court records, Mississippi
Attorney General's Office, Smith County Circuit Clerk's Office,
Mississippi Department of Corrections, Rankin County Circuit Clerk's
Office)
Defendant was convicted of capital murder in the Circuit Court,
Scott County, Marcus D. Gordon, J., and was sentenced to death.
Defendant appealed. The Supreme Court, Hawkins, J., held that: (1)
confessions and certain tangible evidence resulting therefrom were
properly admitted; (2) defendant's confession sustained submission
of kidnapping issue to the jury, and evidence other than confession
established corpus delicti of the statutory crime of kidnapping; (3)
where objection to district attorney's reference to defendant as a
“butcher” was properly sustained by circuit judge, there was no
abuse of discretion in overruling motion for mistrial; and (4) in
view of ambiguity of reference by defense counsel to arguments “that
the Defendant is going to present,” trial judge would not be faulted
for failing to interpret remarks by defense counsel as request that
defendant personally argue his case. The Supreme Court, Prather, J.,
held that: (5) in sentencing phase, court properly sustained State's
objection to defense counsel's description of conditions of gas
chamber which counsel had personally viewed as a student; and (6)
defense counsel's statement that a juror would have to sign death
certificate, if taken literally, was inaccurate, and there was no
error in trial judge's sustaining objection to such reference by
defense counsel. Affirmed as to guilt and as to sentencing. Dan M.
Lee and Robertson, JJ., specially concurred as to guilt phase.
Hawkins, J., dissented and filed opinion as to sentence. Dan M. Lee
and Robertson, JJ., specially concurred as to sentencing phase.
EN BANC.
Part I, HAWKINS, Justice, for the Court - GUILT PHASE
Bobby Glen Wilcher appeals from his conviction of the Capital
Murder of Velma Odell Noblin and sentence of death. We affirm the
guilt phase of the trial. We likewise affirm the sentencing phase.
The numerous issues raised on this appeal are discussed in order.
FACTS
Two Scott County ladies were brutally murdered on a dead-end
rural road in a remote area of Scott County. They were requested by
Wilcher to drive him to his parents home from a honky-tonk in Scott
County and after he got into the car with them he persuaded them to
drive to this area in the pretext of carrying him home.
BACKGROUND
Around 10:00 o'clock in the morning of Saturday, March 6, 1982,
Bobby Easterling made an affidavit before Robert G. Wilkerson, a
justice court judge of Scott County, charging that Bobby Wilcher did
unlawfully “take and carry away 1-.38 cal. Colt with Guard over the
Hammer”. Judge Wilkerson then issued a warrant for the arrest of
Wilcher on a charge of “Larceny”, and delivered it to Mike Bennett,
a deputy sheriff of that county. Bennett had other official duties
at the time, and took the warrant to the sheriff's office, notifying
the personnel there that “if anybody saw him, to pick him up”.
No one else executed the warrant, and later in the day Bennett upon
inquiry learned the location of the Gene Wilcher home, and went
there and arrested Wilcher around 3:00 p.m. En route to the jail,
Wilcher asked Bennett what “larceny was”, and Bennett told him he
did not know. When Wilcher was brought to jail, Bennett handed him a
copy of the warrant.
Almost simultaneously to their arrival at the jail, two girls and
a boy came into the sheriff's office and reported seeing two bodies.
Bennett took Wilcher to a cell and went to the location of the
bodies.
It so happened in the early morning hours of that March 6, Bobby
Wilcher was stopped for speeding by a police officer. He was driving
a car belonging to one of the victims. The officer observed two (2)
women's purses on the front seat and a black bra on the back seat.
Wilcher told the officer that he was hurrying to the hospital for
treatment of a cut finger and requested that the officer escort him.
Wilcher was covered with blood.
The officer followed but radioed
another policeman to meet him at the hospital. Upon arrival at the
emergency room at 2:00 a.m., Wilcher gave the officers a blood-covered
knife. This knife was kept by the hospital security guard until
turned over to police the evening of March 6. Wilcher's nicked thumb
was treated with a band-aid and he was released. After receiving
this information implicating Wilcher, Glen L. Warren, sheriff of
that county, and Otis Kelly, a deputy, took Wilcher from the jail to
the sheriff's office shortly after 7:00 p.m. that Saturday evening.
Wilcher was given the conventional Miranda warnings, which were read
to him on a form and signed by him at 7:19 p.m. Wilcher declined to
make any statement at the time.
Wilcher requested to see his parents, and the officers took him
to the Gene Wilcher home. They stood in another room while Wilcher
talked with his parents a short while, and then returned with
Wilcher to the sheriff's office. Wilcher was then presented with
another Miranda warning which was read to him, and signed by him at
9:14 p.m. He then gave a statement which was written by Sheriff
Warren and signed by Wilcher. This statement admitted killing both
the victims with a knife.
The sheriff wanted to question him further shortly after 10:00
p.m. that evening. Another Miranda warning was given and Wilcher
signed another standard form at 10:22 p.m., but declined to make any
further statement. Wilcher was nineteen years of age, married with
one child, and separated from his wife. He moved from Louisiana into
the home of his parents in the latter part of February, 1982, and
had been living there about a week and a half before March 5.
The
residence was under the control of the father, Gene Wilcher. No rent
was charged Wilcher by his father, and he was provided a bedroom
occupied only by himself. There was no lock on the bedroom door,
however, and other than the fact that only Wilcher slept in the
bedroom, there was nothing about the room setting it separate and
apart from the Gene Wilcher household.
Gene Wilcher telephoned the sheriff's office on Monday, March 8,
for permission to talk with his son. Otis Kelly answered the
telephone and while they were waiting for a response to this
request, a conversation was had between Kelly and Gene Wilcher. In
that conversation it developed that in the house there was some
tangible property of importance to the law enforcement officers.FN1
FN1. According to Gene Wilcher, when he telephoned the sheriff's
office, Kelly asked him if he had found any jewelry in the house,
and Wilcher replied that he had. Kelly then asked Wilcher to bring
it to the sheriff's office, and Wilcher replied (according to him)
that he wanted nothing to do with it, and for Kelly to come and get
it.
According to Kelly, Gene Wilcher telephoned and told him that he
needed to come out to the house, there was something Kelly needed to
see. Upon the invitation of Gene Wilcher, Kelly and Albert Harkey, a
constable of that county, went to the Gene Wilcher home. Gene
Wilcher escorted them to the bedroom, pointed to a styrofoam
container on the top of a chest-of-drawers, and said, “It's in here.”
The officers took the container, and in it were a watch, two rings
and a necklace belonging to the murdered victim Velma Odell Noblin.
After retrieving this jewelry, Warren and Kelly again attempted to
talk with Wilcher that evening in the sheriff's office. At 8:54 p.m.
Wilcher was again read the standard Miranda form, which he signed,
but he declined to give any further statement to the officers.
On Thursday following, March 11, Warren and Kelly questioned
Wilcher again, and again he was given a standard Miranda form
beforehand. Upon this occasion, however, the sheriff did not read
the form aloud to Wilcher, but Wilcher read it himself and signed it.
Following this, he accompanied the officers, and at Wilcher's
direction, they drove several miles out into rural Scott County onto
a county unpaved road. At a certain point Wilcher pointed to a
certain location in a ditch, and the sheriff got out and picked up
two purses and a brassiere.
On their way back to the jail, Wilcher again requested permission
to visit his mother, and the sheriff took him by the Gene Wilcher
home where he had a short visit with his mother. Upon their return
to Forest, Wilcher gave a more detailed statement, written down by
the sheriff and signed by Wilcher, in which he again admitted the
savage murder of these two ladies in order to rob them.
According to
Wilcher's confession after the ladies consented to drive him home
from a night spot in that county, he had tricked them into driving
down an isolated road, presumably in search of the location of his
father's home. In a remote spot he stabbed them both to death.
COMPETENCY OF CONFESSIONS
Over defense counsel's objection, both statements, as well as the
two purses and the brassiere, were introduced into evidence as part
of the state's case in chief. Upon this appeal the Defendant
challenges the validity of the confessions, and the competency of
the physical evidence, claiming his arrest was illegal, and that in
obtaining the confessions the officers violated his Sixth Amendment
right to counsel, and also that they were not free and voluntary,
but resulted from coercion and promise of leniency.
The claim of illegal arrest arises from Miss.Code Ann. § 99-3-7,
the pertinent part of which reads: Any law enforcement officer may
arrest any person on a misdemeanor charge without having a warrant
in his possession when a warrant is in fact outstanding for that
person's arrest and the officer has knowledge through official
channels that the warrant is outstanding for that person's arrest.
In all such cases, the officer making the arrest must inform such
person at the time of the arrest the object and cause therefor. If
the person arrested so requests, the warrant shall be shown to him
as soon as practicable. [Emphasis added] There was a sufficient
compliance with the statute under the facts of this case when
officer Bennett informed Wilcher he was being arrested for larceny,
and gave him a copy of the warrant as soon as they reached the jail.
See Boyd v. State, 406 So.2d 824 (Miss.1981); and Torrence v. State,
283 So.2d 595 (Miss.1973).
Wilcher does not contend there was no probable cause for his
arrest on the charge of larceny, and the mere fact officer Bennett
did not have all the information pertaining to the circumstances
resulting in the issuance of the warrant at the time he apprehended
Wilcher certainly does not vitiate the legality of his arrest. There
is no statutory requirement for an arresting officer under the
circumstances of this case to do more than Bennett did in effecting
the arrest and subsequent thereto.
In this day and age it would
place an insuperable burden on arresting officers, when notified by
responsible law enforcement agencies that a warrant is outstanding
for a particular person, to require the arresting officer to also
know the background and circumstances resulting in the warrant.
There is no such constitutional or statutory requirement. This is
not a case of a person being arrested on some vague suspicion, never
told anything, and being held incommunicado for some period of time.
Nor is this a case in which an officer either wilfully or through
gross ineptitude failed to perform a duty of disclosing the reasons
for the arrest.
Probable cause existing, and a lawful warrant having been issued,
this Court is not going to adopt some strained view of whether an
arresting officer has sufficiently disclosed the reason he is making
the arrest when there has been absolutely no prejudice or harm done
the accused, in any event. Finally, the arrest in this case was for
an offense totally unrelated to the murder charge, as yet unreported
when the arrest was made.
To address the remaining contention of the
invalidity of the evidence, it is necessary to set forth the various
witnesses' versions of the circumstances prior to the officers'
conduct. The circuit judge conducted a hearing out of the presence
of the jury on the validity of the confessions. Officers Warren and
Kelly testified the statements were made after complete Miranda
warnings were given, there was no threat of any kind made, and no
promise of reward or leniency was offered.
Wilcher testified he repeatedly made demand for an attorney,
beginning with the first day when he was arrested. This was
positively denied by Warren and Kelly. Bennett said he had no
recollection of anything being said on the way to the jail except
being questioned by Wilcher as to what larceny was, and he did not
recall being asked anything about an attorney. Bennett arrested
Wilcher upon the warrant for larceny, and had nothing to do with
questioning him on the murder charge. Wilcher testified Kelly
threatened him by making menacing gestures towards him, likewise
specifically denied by Kelly and Warren.
Finally, Wilcher testified the sheriff told him if he would
cooperate, he could see his family every Tuesday night. Officer
Kelly did recall the sheriff telling Wilcher he could see his
parents on Tuesday night if he would cooperate. Even if this remark
were given the full import as argued by defense counsel, it hardly
amounts to any promise of leniency. It is extremely difficult for us
to perceive how such a limited promise could cause Wilcher to
confess to such grave crimes, and indeed he makes no contention that
he gave the statements as a result of this statement by the sheriff.
See: Harrison v. State, 285 So.2d 889 (Miss.1973); Brister v. State,
211 Miss. 365, 51 So.2d 759 (1951).
The sheriff's testimony puts the
remark in an entirely different perspective. Warren testified Gene
Wilcher came to see him following his son's indictment and after all
questioning had been concluded, requested that he be permitted to
see his son in private. After this conversation with the father,
Sheriff Warren testified that on either that day or the day
following he talked with Wilcher:
Well, I asked Bobby-I told Bobby that I would-if he would
cooperate with me in jail, while he was up there in jail, and behave
himself, that I would let him see his mother and daddy during the
week at night for two or three weeks, so they could have some time
to talk to each other in private, because on Sunday afternoon during
visiting hours, and at that time our visiting hours were only one
hour, and it was a large crowd of people always in the jail, and
there was no place that they could have any privacy at all in the
jail. The sheriff's version was not refuted by Gene Wilcher. It also
negates the claim that the sheriff's offer to let Wilcher's parents
see them privately on non-visiting nights had anything to do with an
offer of leniency to secure a confession.
Following the hearing out of the presence of the jury, the trial
court ruled the confessions and the tangible objects recovered in
the ditch were admissible evidence. It is the function and duty of a
trial judge to make a preliminary determination whether a confession
was freely given by an accused, and this Court must respect his
finding where the evidence is conflicting. See, Harrison v. State,
285 So.2d 889, p. 891 (1973). In this case the weight of the
evidence strongly supports the ruling by the circuit judge that the
confessions were voluntary and therefore competent evidence. The
tangible objects recovered in the ditch as a result of Wilcher's
confession were likewise admissible evidence....
...We find
no reversible error in the sentence phase. The judgment of the lower
court is affirmed and Wednesday, April 11, 1984, is set as the date
for execution of the sentence and infliction of the death penalty in
the manner provided by law. AFFIRMED AS TO SENTENCE PHASE: PATTERSON,
C.J., WALKER and BROOM, P. JJ., BOWLING, DAN M. LEE, PRATHER and
ROBERTSON, JJ., concur. DAN M. LEE and ROBERTSON, JJ., specially
concur. HAWKINS, J., dissents as to sentence. RAY NOBLE LEE,FN8 J.,
takes no part.
Bobby Glen Wilcher, Petitioner-Appellant, v.
Edward Hargett, Superintendent Mississippi State Penitentiary,
Respondent-Appellee.
Docket number: 90-1710
Federal Circuits, 5th Cir.
December 22, 1992
Appeal from the United States District Court for the Southern
District of Mississippi.
Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.
Following affirmance of murder convictions and death sentences,
448 So.2d 927 and 455 So.2d 727, and denial of application for leave
to file consolidated motion to vacate, or set aside, judgment and
sentences, 479 So.2d 710, petition for writ of habeas corpus was
filed. The United States District Court for the Southern District of
Mississippi, at Jackson, Henry T. Wingate, J., denied petition.
Petitioner appealed. The Court of Appeals, Patrick E. Higginbotham,
Circuit Judge, held that: (1) taking of second statement from
petitioner after appointment of counsel did not violate Sixth
Amendment; (2) petitioner was not procedurally barred from federal
habeas corpus review of his claim that aggravating circumstance
found by jury was unconstitutionally vague; and (3) aggravating
circumstance that offense was “especially heinous, atrocious or
cruel” was unconstitutionally vague. Vacated and remanded in part,
affirmed in part.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Bobby Glen Wilcher appeals denial of his petition for writ of habeas
corpus, challenging both his conviction and his death sentence. He
asserts that his conviction was obtained in violation of his Fifth
and Sixth Amendment rights and that his death sentence was imposed
in violation of the Eighth Amendment.
We affirm the district court's
denial of Wilcher's petition on all claims except his claim that the
jury relied on an unconstitutionally vague aggravating factor. We
vacate the dismissal of the habeas petition as to this claim and
remand to the district court with instructions to issue the writ
unless the State of Mississippi initiates appropriate proceedings
within a reasonable time as set forth in Clemons v. Mississippi, 494
U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990).
I.
On March 5, 1982, Wilcher met two acquaintances,
Velma Odell Noblin and Katie Bell Moore in a Scott County bar. When
the bar closed, Wilcher convinced the two women to give him a ride
home. Wilcher then gave them directions leading to a deserted area in
Bienville National Forest. He stabbed Noblin and Moore to death, left
their bodies, and took their jewelry and their car.
Wilcher had cut his finger during the murder and
went to the hospital for treatment of his wound. En route, he was
stopped for speeding. The officer saw two purses on the front seat and
a black bra on the back seat. Wilcher was covered in blood. He told
the officer he was hurrying to the hospital to get his finger treated
and asked for an escort. The officer followed Wilcher to the hospital,
arriving at 2:00 a.m. At the hospital, Wilcher gave the officer a
blood-covered knife. Wilcher's thumb was treated and he was released.
Later that day, Wilcher was arrested on an
unrelated larceny charge. Soon thereafter, Noblin and Moore's bodies
were discovered on the service road in the national forest. After
learning about Wilcher's hospital visit of the night before, Sheriff
Glen L. Warren and Deputy Otis Kelly gave Wilcher a standard Miranda
warning and questioned him. Wilcher declined to make any statement.
Wilcher asked the Sheriff to see his parents. The
officers took him to his father's home and allowed him to talk to his
parents in a separate room. Wilcher was returned to the sheriff's
office and given Miranda warnings. At 9:14 p.m. on March 7, 1982,
Wilcher signed the waiver of his Miranda rights and gave a statement
which was reduced to writing. Wilcher signed this statement which
admitted killing both Noblin and Moore with a knife.
On March 8, Wilcher's father, Gene Wilcher, invited
officers to his home and escorted them to his son's bedroom and
pointed out a styrofoam container on top of a chest. The container
held a watch, two rings, and a necklace later determined to belong to
Velma Noblin. On March 11, Wilcher directed Sheriff Warren and a
deputy to an unpaved road in rural Scott County and pointed out the
location of the two purses and the black bra that had been in the car
when he was stopped for speeding.
On the way back to the jail that day, Wilcher
requested that he be allowed to speak with his mother. The sheriff
took him to the Wilcher home where he was allowed to visit with his
mother for a while. After this visit, upon his return to jail, Wilcher
gave a more detailed statement again admitting that he killed Noblin
and Moore in order to rob them. This statement was more detailed than
the first statement. He tricked them into driving down a deserted road
and then stabbed them to death so that he could take their jewelry.
At approximately the same time as Wilcher was
giving this statement, Wilcher was being indicted by the Scott County
grand jury for both murders. The district court found that Wilcher
signed the waiver form before giving this statement at 12:52 p.m. and
the statement was completed and signed by Wilcher at 2:05 p.m. At
about 1:30 that same afternoon, the Scott County Circuit Judge
appointed counsel for Wilcher. Wilcher was unaware that he had been
appointed counsel until after he had signed the second statement.
Wilcher was indicted on March 11, 1982 for the
capital murders of Katie Moore and Velma Odell Noblin. He was tried
separately for the two murders. The first trial, held in Scott County,
Mississippi, for the murder of Velma Noblin led to a conviction of
capital murder and a sentence of death on July 31, 1982. The
sentencing jury found the following aggravating circumstances:
1. The capital offense was committed while the
defendant was engaged in the commission of or an attempt to commit the
crime of robbery or kidnapping.
2. The capital offense was especially heinous,
atrocious, or cruel.
In accordance with Mississippi's capital sentencing
procedure, the jury found that these aggravating circumstances
outweighed any mitigating circumstances.
On direct appeal to the Mississippi Supreme Court,
Wilcher raised eleven claims.1
The Mississippi Supreme Court affirmed the
conviction and sentence on February 15, 1984. This opinion was
modified and Wilcher's petition for rehearing was denied on April 25,
1984. Wilcher v. State, 448 So.2d 927 (Miss.1984).
Wilcher filed a petition for writ of certiorari
raising the issues of the trial court's refusal to allow defense
counsel to describe the gas chamber and otherwise emphasize the
gravity of the jury's decision; whether there was sufficient evidence
to permit the jury to find an aggravating factor of kidnapping;
whether the Mississippi statutory aggravating factor of murder that is
"especially heinous, atrocious or cruel" is unconstitutionally vague;
and whether the Mississippi death penalty statute impermissibly places
the burden on the defendant to prove there are sufficient mitigating
factors to overcome the aggravating factors. Wilcher v. Mississippi,
469 U.S. 873 , 105 S.Ct. 231, 83 L.Ed.2d 160 (1984).
Wilcher's trial for the capital murder of Katie
Moore was moved to Harrison County, Mississippi. The jury returned a
verdict of guilty and a sentence of death, finding the same
aggravating circumstances as were found in the Noblin trial: murder
during the commission of or attempt to commit robbery or kidnapping
and an offense that was especially heinous, atrocious or cruel.
On direct appeal to the Mississippi Supreme Court,
Wilcher again raised eleven challenges to his second conviction and
sentence.2
The Mississippi Supreme Court affirmed Wilcher's
second conviction and death sentence on July 11, 1984. Wilcher v.
State, 455 So.2d 727 (Miss.1984), cert. denied, Wilcher v. Mississippi,
470 U.S. 1034 , 105 S.Ct. 1411, 84 L.Ed.2d 794 (1985).
Wilcher filed two Motions to Vacate or Set Aside
Judgment and Sentence in the Mississippi Supreme Court in accordance
with the Mississippi Uniform Post Conviction Collateral Relief Act.
The two motions, raising 18 grounds for relief, were consolidated. The
Mississippi Supreme Court denied the requested relief. Wilcher v.
State, 479 So.2d 710 (Miss.1985), cert. denied,
475 U.S. 1098 , 106 S.Ct. 1501, 89 L.Ed.2d 901 (1986).
Wilcher filed petitions for writ of habeas corpus
in the United States District Court for the Southern District of
Mississippi challenging both his convictions and sentences. The
district court consolidated these petitions and denied relief on June
19, 1990. Wilcher filed notice of appeal and application for
certificate of probable cause. The certificate of probable cause was
granted on September 24, 1990.
II.
Wilcher asserts here that Mississippi denied his
Sixth Amendment rights by taking a second statement after appointment
of counsel. This written statement was admitted over objection at both
trials.
A defendant's Sixth Amendment right to counsel
attaches upon the initiation of adversary proceedings. Michigan v.
Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986). Under
Mississippi law, adversary proceedings arguably began when a warrant
was issued for Wilcher's arrest, but certainly so with his indictment.
Wilcher executed a written waiver of his right to counsel immediately
before giving his second statement to the officers. This voluntary
waiver of his Sixth Amendment rights was constitutionally valid.
Montoya, 955 F.2d at 282; Patterson v. Illinois, 487 U.S. 285, 108
S.Ct. 2389, 101 L.Ed.2d 261 (1988) (waiver of right to counsel after
Miranda warning is constitutionally valid waiver).
Wilcher asserts that even if his waiver was
voluntary and knowing, the questioning in this case violated the
prophylactic rule of Michigan v. Jackson, 475 U.S. at 635, 106 S.Ct.
at 1411. The Supreme Court held in Jackson that "if police initiate
interrogation after a defendant's assertion at an arraignment or
similar proceeding, of his right to counsel, any waiver of the
defendant's right to counsel for that police-initiated interrogation
is invalid." Id. The State argues that Wilcher never took any action
to invoke his right to counsel and therefore had not triggered the
Jackson rule.
We recently addressed the effect of appointment of
counsel on the rights of a defendant who has never asserted or
accepted the counsel. We held that a defendant's Sixth Amendment
rights are not violated by questioning in the absence of his attorney
unless the defendant has asserted his right to an attorney. Montoya v.
Collins, 955 F.2d 279 (5th Cir.1992).
Montoya was appointed counsel at his arraignment,
but made no statement when counsel was appointed. 955 F.2d at 282.
After arraignment, Montoya waived his rights and made an incriminating
statement to police officers. We held that "for purposes of Jackson,
an 'assertion' means some kind of positive statement or other action
that informs a reasonable person of the defendant's 'desire to deal
with the police only through counsel.' " Id. at 283. Thus, we
concluded that Montoya's interrogation did not violate the rule of
Jackson because he did not assert a right to counsel and thereby
trigger its protection.
Wilcher likewise did not assert a right to counsel
in his interrogation by the officers. Under Montoya he was not
protected by the rule in Jackson and voluntarily waived his right to
counsel under the Sixth Amendment. Montoya binds this panel.
III.
Wilcher asserts that in exacting his confessions,
Mississippi contravened the procedural protections of Miranda v.
Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The basis
for Wilcher's argument is the repeated questioning of Wilcher between
March 6 and March 11. Wilcher was given Miranda warnings on March 6 at
7:18 p.m., and signed the waiver of rights, but declined to make a
statement. He asked to see his parents and was taken to his parents'
home. At 9:11 p.m. Wilcher was again given Miranda warnings and
executed a waiver. At this point, Wilcher gave his first statement. At
10:20 p.m. Wilcher was given his warnings again, but declined to make
a further statement. On March 9, Wilcher was again advised of his
rights and signed a waiver, but did not make a statement. On March 11,
at 12:52 p.m. Wilcher was once more advised of his rights, waived them,
and made his second statement to the officers.
We ask whether Wilcher's "right to cut off
questioning was scrupulously honored." Michigan v. Mosley, 423 U.S.
96, 104, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975). Determining whether
this standard was met requires case-by-case analysis. Charles v. Smith,
894 F.2d 718, 726 (5th Cir.1990). Our review of the facts surrounding
Wilcher's statements convinces us that the officers acted within the
bounds of Miranda and committed no constitutional violations.
The officers questioning Wilcher gave him his
Miranda warnings before every questioning. Wilcher signed a written
waiver of his right to remain silent on each of these occasions. There
is no indication on this record that Wilcher ever asked that
questioning be stopped or that he invoked his right to remain silent.
In fact, at each turn Wilcher waived that right in writing.
Wilcher relies upon two aspects of the
circumstances of his questioning to support his claim. First, he
asserts that the Sheriff's decision to take him at his request to see
his parents "was part of an inducement by the Sheriff and Deputy to
obtain information from Bobby Wilcher." We are not persuaded that
allowing Wilcher to see his parents was so overbearing that it worked
a denial of constitutional rights.
Second, Wilcher seems to rely upon the amount of
time elapsing between questionings. The shortest time between
unproductive interrogations was almost two hours and that was on March
6, not the "few minutes" we found troublesome in Charles. Wilcher had
been taken to see his parents, but he indicated when first questioned
that he would be willing to talk once he had seen his parents. This
record does not support the conclusion that the officers "persist[ed]
in repeated efforts to wear down [Wilcher's] resistance and made him
change his mind." Kelly v. Lynaugh, 862 F.2d 1126, 1131 (5th
Cir.1988). Compare, Id. (questioning hours apart with repeated Miranda
warnings) with United States v. Hernandez, 574 F.2d 1362 (5th
Cir.1978) (repeated questioning within minutes).
IV.
Wilcher asserts that the district court erred in
failing to grant him an evidentiary hearing on his ineffective
assistance of counsel claim. A petitioner is entitled to a federal
evidentiary hearing only where there are "disputed facts and the
petitioner did not receive a full and fair hearing in a state court."
Wiley v. Puckett, 969 F.2d 86, 98 (5th Cir.1992). No hearing is
required where the record is complete and the evidence in the record
is sufficient to provide full review of the petitioner's claim.
Skillern v. Estelle, 720 F.2d 839, 850-51 (5th Cir.1983).
Before a conviction or sentence will be overturned
for ineffective assistance of counsel, a petitioner must show both
that counsel's performance did not amount to reasonably effective
assistance and that the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80
L.Ed.2d 674 (1984). To show prejudice, Wilcher must demonstrate that "there
is a reasonable probability that but for counsel's unprofessional
errors, the result of the proceeding would have been different." Id.
466 U.S. at 693, 104 S.Ct. at 2068.
Wilcher levels two challenges to counsel's
performance: (1) that counsel failed to reasonably search for
mitigating evidence and (2) that counsel failed to present any
mitigating evidence concerning Wilcher's background. The district
court rejected this claim in a detailed examination of the record,
finding that Wilcher's trial counsel had "rendered valuable and
effective assistance." We have found no basis for a contrary
conclusion and reject this claim for essentially the same reasons as
the federal district judge.
V.
Wilcher asserts that the jury instructions at his
capital sentencing proceedings did not allow a juror to consider a
mitigating circumstance not found by all jurors contrary to Mills v.
Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988) and
McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369
(1990).
Mississippi urges that this argument was never made
to the state trial or appellate courts. Mississippi continues that we
need not address procedural bar because in any event, the rule of
Mills and McKoy is a new rule under Teague v. Lane, 489 U.S. 288, 109
S.Ct. 1060, 103 L.Ed.2d 334 (1989), not available to Wilcher in
federal habeas. Wilcher replies that the rule is only an application
of Lockett and Eddings. This court has already decided this issue
concluding that Mills was a new rule barred by Teague. Cordova v.
Collins, 953 F.2d 167, 173 (5th Cir.1992).
Wilcher asserts that Cordova considered only the
applicability of the first exception to Teague, not its second
exception for rules prerequisite to fundamental fairness "implicit in
the concept of ordered liberty." 489 U.S. at 313, 109 S.Ct. at 1077.
We disagree with this narrow reading of Cordova. It is true that
Cordova did not explicitly treat each Teague exception, but Cordova
did implicitly decide that such a failure to allow consideration by
the jury of all mitigating evidence is not subject to the second
Teague exception.
VI.
Wilcher asserts that the jury instructions
impermissibly created a risk that a non-unanimous jury could find an
aggravating circumstance. The jury found that "the capital offense was
committed while the defendant was engaged in the commission of or an
attempt to commit the crime of robbery or kidnapping." Wilcher argues
that by using "robbery or kidnapping" in the disjunctive, a jury could
return a finding of this circumstance with less than twelve jurors
agreeing that he was committing a robbery and less than twelve
agreeing on kidnapping.
The district court found this claim procedurally
barred because it was not objected to at trial or raised on direct
appeal. We have found in previous cases that "the [Mississippi]
Supreme Court regularly applies the contemporaneous objection rule to
the cases before it." Hill v. Black, 887 F.2d 513, 516 (5th Cir.1989).
The record does not reflect any objection in the trial court to the
use of the disjunctive "kidnapping or robbery" instruction. We are
barred from the merits of this claim.
Wilcher asserts that one of the aggravating
circumstances found by the jury in both his trials, that the offense
was "especially heinous, atrocious or cruel," is unconstitutionally
vague as held by the Supreme Court in Clemons v. Mississippi, 494 U.S.
738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990). The district court held
that Wilcher could not rely upon the rule in Clemons on collateral
review because it was a new constitutional rule under Teague v. Lane,
489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). The district
court did not have the benefit of the Supreme Court's decision in
Stringer v. Black, --- U.S. ----, 112 S.Ct. 1130, 117 L.Ed.2d 367
(1992) which held that Clemons was not new under Teague.
Mississippi asserts that Wilcher's Clemons claim is
procedurally barred because it was not raised on direct appeal. On
direct appeal in the Noblin conviction, Wilcher challenged the
sufficiency of the evidence to support an instruction on the "especially
heinous" aggravating circumstance. On direct appeal in the Moore
conviction, Wilcher did not challenge the "especially heinous"
instruction.
Wilcher did challenge the sufficiency of the
evidence supporting the "especially heinous" instruction on collateral
review in the state courts in which both the convictions and sentences
were consolidated. The Mississippi Supreme Court's dispatch of the
claim was brief. This claim was labelled claim F in the court's
opinion. The court held
regarding Issues C, D, E, F, G, H, I, J, K, L and
M, this Court holds that all enumerated questions were raised and
addressed on the first appeal, or on the second appeal, or on both
appeals. Therefore, these issues cannot be relitigated here as the
issue is res judicata. Where the issue was not raised on direct
appeal, or not raised at the trial court, the claims are procedurally
barred and not subject to further review by this Court. 479 So.2d 710,
712 (Miss.1985) (citations omitted).
Wilcher asserts that the state court did not make a
"plain statement" that review of his claim was procedurally barred
under Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308
(1989). Wilcher asserts that even if the Mississippi Supreme Court
held his Clemons claim procedurally barred, the bar is not an adequate
ground to preclude federal relief because it has not been consistently
enforced.
A state procedural ground to bar consideration of
an issue is not adequate unless it is "strictly or regularly followed."
Johnson v. Mississippi, 486 U.S. 578, 587, 108 S.Ct. 1981, 1987, 100
L.Ed.2d 575 (1988). We have found a time window during which the
Mississippi Supreme Court did not strictly or regularly assert a
procedural bar to claims not raised on direct appeal. Wheat v. Thigpen,
793 F.2d 621 (5th Cir.1986); Reddix v. Thigpen, 805 F.2d 506, 510 (5th
Cir.1986); Smith v. Black, 904 F.2d 950, 971 (5th Cir.1990). The
Mississippi Supreme Court announced this procedural bar in 1983, but
we found in Wheat that in 1985 that court considered a claim in a
collateral proceeding that had not been raised on direct appeal. 793
F.2d at 626, citing Caldwell v. State, 481 So.2d 850 (Miss.1985).
Wilcher's direct appeals were both decided in 1984.
The Mississippi Supreme Court decided his collateral review on October
30, 1985, before Caldwell was decided in December 1985. We are not
persuaded that Wilcher's Clemons claim is procedurally barred from
federal habeas corpus review.
The instruction on the "especially heinous,
atrocious, or cruel" aggravating circumstance given at Wilcher's
sentencing proceeding is indistinguishable from that found
unconstitutional in Clemons. See also Wiley v. Puckett, 969 F.2d 86
(5th Cir.1992). We therefore conclude that one of the aggravating
circumstances used in imposing Wilcher's sentence was
unconstitutionally vague. We vacate the dismissal of Wilcher's
petition for habeas corpus and remand to the district court with
instructions to issue the writ unless the State of Mississippi
initiates in a reasonable time proceedings in state courts appropriate
under Clemons. In all other respects, the judgment of the district
court dismissing the petition is affirmed.3
*****
* 1. The trial court erred in not granting the
appellant a change of venue;
2 The trial court erred in
overruling the appellant's motion for continuance;
3 The trial court erred in
overruling appellant's motion to quash the death qualification and in
excusing juror for cause;
4 The trial court erred in
admitting into evidence the watch, rings and necklace of Velma Odell
Noblin for the reason that they were the fruits of an illegal search;
5 The trial court erred in
admitting appellant's written statements and the fruits thereof;
6 The trial court erred in
overruling appellant's objection to the state eliciting from him on
cross examination the fact that he was arrested for larceny, a charge
unrelated to this case;
7 The trial court erred in
granting instruction S-1A and S-7 and erred in refusing instructions
D-2 and D-37;
8 The trial court erred in
overruling appellant's motion to make the final argument before the
jury during the guilt phase;
9 The trial court erred in
granting instructions S-1, S-2, and S-5, and in refusing D-14, D-15,
and D-16 during the sentencing phase of the trial;
10 The trial court erred in
sustaining objections and excusing the jury during oral argument of
appellant's counsel;
11 The trial court erred in
not granting the appellant a mistrial during the argument when
district attorney called appellant a "Butcher."
1 The trial court erred in not
sustaining appellant's plea of former or double jeopardy;
2 The trial court erred in
overruling the appellant's motions for continuance;
3 The trial court erred in
allowing the death qualification voir dire questions;
4 The trial court erred in
refusing to allow the defendant to cross examine Gene Wilcher when
called as a witness for the state;
5 The trial court erred in
admitting into evidence the watch, rings, and necklace of Velma Odell
Noblin for the reason that they were the fruits of an illegal search;
6 The trial court erred in
admitting into evidence, over objection of counsel, appellant's oral
and written statements and the fruits thereof;
7 The trial court erred in
granting instructions S-1 and S-7 and erred in refusing instruction
D-2 during the guilt phase;
8 The trial court erred in
refusing instructions D-17 and D-37 during the guilt phase;
9 The trial court erred in
refusing instructions D-43 and D-44 during the guilt phase;
10 The trial court erred in
refusing instruction D-11 during the sentencing phase;
11 The trial court erred in
entering its supplemental judgment of September 23, 1982
3 See Wiley v. Puckett, 969
F.2d 86 (5th Cir.1992)