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Tanner v. State5/4/2000
murder, you would be more apt to vote for the death penalty than life imprisonment at this point?
A: Yes. At this point, hearing no evidence.
Q: All right. So, then you are assuring the Court that you wouldn't just because someone is found guilty of murder automatically vote for the death penalty, because that is not what the law is. The law is you have to weigh the aggravating circumstances, number one. And, number two, you are also assuring the Court that there are instances where you would consider the death penalty where only one person's life was taken?
A: Correct.
4. Randall Hemphill
Q: So you would automatically vote for the death penalty in that case?
A: If it was just out and out murder, yes, sir.
Q: Even though the crime itself might justify the penalty, death penalty, would you be willing to not automatically give that penalty until you heard all the other facts?
A: Yes, sir.
Q: ...the law is that even though that may be so, that still there has to be other evidence heard before you are able to give the death penalty under the law...would you be willing to follow that kind of law?
A: Yes, sir.
. Tanner asserts the court erred by not dismissing these four jurors, specifically claiming that these jurors would automatically vote for the death penalty. After reviewing the record, however, all four jurors said they would follow the law requiring them to weigh the aggravating and mitigating circumstances. "The mere fact that a prospective juror admits that his or her verdict may be affected by the possibility of the death penalty is not a constitutionally permissible justification for sustaining a challenge for cause." Jones v. State, 461 So. 2d 686, 691 (Miss. 1984). No juror here stated they would only vote for the death penalty. Instead all four stated they would follow the law and set aside their personal beliefs. "Voir dire is conducted under the supervision of the court, and great deal must, of necessity, be left to its sound discretion." Ballenger v. State, 667 So. 2d 1242, 1250 (Miss. 1995). Therefore, we find no reversible error in the trial court's denial of Tanner's challenges for cause.
IV.
WHETHER THE LOWER COURT ERRED IN ALLOWING EVIDENCE OF A "STOLEN GUN"
. Tanner argues that the trial court erred by overruling Tanner's motion in limine to exclude testimony regarding Tom Harper's firearm, which had been stolen in December or January, 1997. The basis of Tanner's objection was there was no proof the stolen gun was the murder weapon or that Tanner was even the person who stole it. Additionally, he contends this was evidence of a crime totally unrelated to the murder and that the "stolen gun theory" was more prejudicial than probative. The trial court thereafter admitted Harper's testimony. Although this Court agrees that evidence of the gun should not have been admitted, we do not find this error requires reversal.
. Harper saw Tanner at East Side Auto Sales in December or January of 1997. Harper, Tanner, and Sam Ray ("Sam") engaged in a conversation. During that conversation, Harper testified that Tanner asked Sam if he could borrow a pistol to hunt snakes and frogs. Sam replied that his pistol was locked up, but informed Tanner that Harper's pistol was in a desk drawer at Harper's camp. Harper later discovered that his gun was missing from the drawer. Harper also testified that he was unsure as to exactly when he found the gun missing.
. There was no evidence presented that Harper's gun was the actual murder weapon. Harper himself testified that the trailer where the gun
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