John Earl Booker pled guilty to the capital murder of O.M. Martin and was sentenced to death by judgment entered in the Circuit Court of Tate County, Mississippi, which judgment and sentence were affirmed by this Court on direct appeal with rehearing denied in Booker v. State, 449 So.2d 209 (Miss. 1984). His petition for certiorari to the United States Supreme Court was initially denied, Booker v. Mississippi, 469 U.S. 873, 105 S.Ct. 230, 83 L.Ed.2d 159 (1984), but on rehearing that Court granted certiorari, vacated the judgment of this Court and remanded the matter for consideration in the light of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).

1984); Neal v. State, 451 So.2d 743 (Miss. 1984); Booker v. State, 449 So.2d 209 (Miss. 1984); Wilcher v. State, 448 So.2d 927 (Miss. 1984); Caldwell v. State, 443 So.2d 806 (Miss. 1983); Irving v. State, 441 So.2d 846 (Miss.

1984); Neal v. State, 451 So.2d 743 (Miss. 1984); Booker v. State, 449 So.2d 209 (Miss. 1984); Wilcher v. State, 448 So.2d 927 (Miss. 1984); Caldwell v. State, 443 So.2d 806 (Miss. 1983); Irving v. State, 441 So.2d 846 (Miss.

The Branch Court reviewed a previous decision in which where a similar argument was denied. Id. (citing Booker v. State, 449 So.2d 209, 218–19 (Miss.1984)). The Branch Court then held that, since the trial court had given the “standard long-form sentencing instruction informing the jury how to consider aggravating and mitigating circumstances,” and that instruction tracked statutory language, the defense's proposed mitigation instruction was appropriately denied.

The Branch Court reviewed a previous decision in which where a similar argument was denied. Id. (citing Booker v. State, 449 So. 2d 209, 218-19 (Miss. 1984)). The Branch Court then held that, since the trial court had given the "standard long-form sentencing instruction informing the jury how to consider aggravating and mitigating circumstances," and that instruction tracked statutory language, the defense's proposed mitigation instruction was appropriately denied.

¶ 115. In Cole,"[w]e rejected this argument in Booker v. State, 449 So.2d 209, 218-19 (Miss. 1984), vacated on other grounds, 472 U.S. 1023, 105 S.Ct. 3493, 87 L.Ed.2d 626 (1985). We are of the opinion that the sentencing instruction given in the case at bar, which tracked the language of the statute, appropriately channeled the sentencer's discretion.

See Appendix A; Blue v. State, 674 So.2d 1184, 1234-35 (Miss. 1996) (death sentence proportionate where defendant abused drugs and alcohol at an early age, came from dysfunctional family, and had no positive role models at home); Foster v. State, 639 So.2d 1263, 1304 (Miss. 1994) (death sentence proportionate where young defendant was mentally impaired); Lanier v. State, 533 So.2d 473, 492 (Miss. 1988) (death sentence was proportionate where defendant had been institutionalized twice for alcoholism and drug abuse) Neal v. State, 451 So.2d 743, 761 (Miss. 1984) (death sentence affirmed where defendant had been institutionalized at young age, had learning and family difficulties, and was not loved or supervised at home). See also Cabello v. State, 471 So.2d 332, 350 (Miss. 1985) (death sentence was proportionate where defendant strangled and robbed victim); Evans v. State, 422 So.2d 737, 739 (Miss. 1982) (death sentence was proportionate where defendant robbed and shot victim); Booker v. State, 449 So.2d 209, 222 (Miss. 1984) (death penalty was proportionate where defendant shot and robbed victim). Therefore, the death sentence in this case is neither disproportionate nor excessive.

See Appendix A; Blue v. State, 674 So.2d 1184, 1234-35 (Miss. 1996) (death sentence proportionate where defendant abused drugs and alcohol at an early age, came from dysfunctional family, and had no positive role models at home); Foster v. State, 639 So.2d 1263, 1304 (Miss. 1994) (death sentence proportionate where young defendant was mentally impaired); Lanier v. State, 533 So.2d 473, 492 (Miss. 1988) (death sentence was proportionate where defendant had been institutionalized twice for alcoholism and drug abuse) Neal v. State, 451 So.2d 743, 761 (Miss. 1984) (death sentence affirmed where defendant had been institutionalized at young age, had learning and family difficulties, and was not loved or supervised at home). See also Cabello v. State, 471 So.2d 332, 350 (Miss. 1985) (death sentence was proportionate where defendant strangled and robbed victim); Evans v. State, 422 So.2d 737, 739 (Miss. 1982) (death sentence was proportionate where defendant robbed and shot victim); Booker v. State, 449 So.2d 209, 222 (Miss. 1984) (death penalty was proportionate where defendant shot and robbed victim). Therefore, the death sentence in this case is neither disproportionate nor excessive.

1985) (death sentence was proportionate where defendant strangled and robbed business owner); Evans v. State, 422 So.2d 737, 739 (Miss. 1982) (death penalty was proportionate where defendant waited 30 minutes for business to be free of customers before robbing and shooting store attendant); Booker v. State, 449 So.2d 209, 222 (Miss. 1984) (death penalty was proportionate where defendant shot and robbed business owner); Conner v. State, 632 So.2d 1239, 1265 (Miss. 1993) (death sentence was proportionate where defendant had intelligence quotient "on the low side of `average'", evidence was contradictory as to whether defendant was schizophrenic amnesiac); Lanier v. State, 533 So.2d 473, 492 (Miss. 1988) (death sentence was proportionate where defendant was mildly mentally retarded, suffered hallucinations, and had been institutionalized twice for alcoholism and drug abuse).

An appeal without a record to support a contention can be a vain and foolish act. Records are made to avoid such things. As Walker, J., said in Booker v. State, 449 So.2d 209 (Miss. 1984), "it is elemental that facts set forth in briefs of counsel are insufficient to support an assignment of record. All facts relied on in the briefs must appear in the record to be considered by this Court.