Saucier v. State
| Decision Date | 09 March 1976 |
| Docket Number | No. 48924,48924 |
| Citation | 328 So.2d 355 |
| Parties | John Reed SAUCIER v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Jimmy D. McGuire, Gulfport, for appellant.
A. F. Summer, Atty. Gen. by Pete J. Cajoleas, Special Asst. Atty. Gen., Jackson, for appellee.
Before GILLESPIE, SMITH and ROBERTSON, JJ.
John Reed Saucier was convicted in the Circuit Court of the First Judicial District of Harrison County of the murder of Earl W. Phillips, Sr., a Harrison County patrol officer. For his offense he was sentenced to life imprisonment in the penitentiary. He appeals.
Four propositions are assigned as having constituted prejudicial error requiring reversal.
Dealing first with Saucier's motion for change of venue, the record reflects that there was a direct conflict in the evidence as to whether the defendant could or could not receive a fair and impartial trial in Harrison County. The trial court, after considering this evidence, as well as the answers of the members of the special venire given upon their examination on voir dire, found that there was no such prejudice against the defendant in Harrison County that he could not receive a fair and impartial trial. The trial court did not abuse its discretion in so finding or in overruling the motion for a change of venue. The action of a trial court in denying a motion for change of venue will not be reversed unless it is made to appear that there has been a clear abuse of discretion. Parks v. State, 267 So.2d 302 (Miss.1972), cert. denied 411 U.S. 947, 93 S.Ct. 1923, 36 L.Ed.2d 408; Tarrants v. State, 236 So.2d 360 (Miss.1970), cert. denied 401 U.S. 920, 91 S.Ct. 907, 27 L.Ed.2d 823; Slyter v. State, 246 Miss. 402, 149 So.2d 489, 150 So.2d 528 (1963); Anderson v. State, 246 Miss. 821, 152 So.2d 702 (1963).
It is contended on behalf of Saucier that the trial court committed reversible error in overruling a motion for a mistrial made after the jury had been selected and the trial of the case on the merits was about to begin. The voir dire examination of prospective jurors is ordinarily not reported in this state except where specially rquested. The examination of members of the special venire was not reported and, therefore, does not appear in the record. When the motion for a mistrial was presented to the trial judge on the eve of the trial, at the request of appellant's counsel the reporter read back the remark made by the District Attorney to the judge in the course of the voir dire examination which is the basis of appellant's motion. From this it appears that, at some point in the course of his examination of the prospective jurors the District Attorney addressed the court as follows:
May I take exception to the Court's ruling because I feel that it is important that the testimony and appearance of the Defendant will show. I don't want some Juror who would believe the State's case, but because of his age could find him guilty. I think I would be entitled to know if we have someone on the Jury like that. I would not like someone like that sitting on the Jury who may believe that the Defendant is guilty, but could not find him guilty because of his age.
It appears that, at the time the remark was made, an objection was interposed by appellant to this statement and the objection was sustained. It does not appear upon what ground the objection was made at that time. Nor does it appear that appellant, after his objection had been sustained, thereupon moved to quash the venire panel or for a mistrial upon the ground that reference to appellant's 'testimony' was a forbidden comment upon appellant's failure to testify, an event which only developed later on when the case was tried.
This Court can act only on the basis of the contents of the official record, as filed after approval by counsel for both parties. It may not act upon statements in briefs or arguments of counsel which are not reflected by the record. Therefore, we are unable to say that appellant, after his objection had been sustained by the trial court, took any further action at that time, either by moving to quash the venire or for a mistrial.
The motion for a mistrial, based upon the incident, which occurred on voir dire examination of the venire, and not presented until a jury had been selected impaneled and sworn, the parties and attorneys were present, the witnesses for both sides were in attendance and the trial was about to begin, came too late. A party may not wait until a jury has been actually impaneled and, if he does not like it, obtain a mistrial on the basis of an incident of this kind which had occurred on voir dire examination of the panel. We are unable to say, from the meager report of the alleged incident which was inserted in the record, in what context the remark of the District Attorney was made. In any event, appellant's objection having been sustained (on whatever ground was then assigned, if any), it was necessary that he immediately move to quash the venire or for a mistrial, if he regarded the sustaining of his objection insufficient to remove any supposed harmful effect which may have resulted from the District Attorney's remark to the court. Wilson v. State, 234 So.2d 303 (Miss.1970).
In Wilson, supra, this Court said:
Later in the voir dire examination the district attorney made the following statement:
Q. All right, now it will develop in this case, and I'll tell you right now, there's no question about it, that Billy Roy Pitts, Lord willing, will testify as a witness.
An objection was interposed and arguments followed, whereupon the objection was sustained. The argument propounded by the defendant is that the reference to 'if he lives' and 'Lord willing' had the innuendo of inflaming the jurors against the Klan in general which would prejudice the defendant, a Klansman. We note that the defense attorney did not move to quash the jury panel after the court sustained his objection. Moreover, we are of the opinion this contention has little or no merit since the remarks are taken out of context and appear to be little more than everyday expressions not arising to prejudicial proportions. The appellant obtained the ruling he requested and since he made no request for a mistrial, he waived any further complaint as to the statements. Hyde v. O'Neal, 234 Miss. 112, 105 So.2d 553 (1958); Aldridge v. State, 180 Miss. 452, 177 So. 765 (1938); and Wells v. State, 162 Miss. 617, 139 So. 859 (1932). (234 So.2d at 307-308).
If it should be supposed that some member of the venire heard the District Attorney so address the court, and later on became a member of the jury, it does not appear that the remark, under the circumstances, was so prejudicial as to have required that the venire be quashed or a mistrial entered. When a motion for a mistrial finally was presented, the trial court's offer to instruct the jury for the purpose of removing any possible harm which might have been occasioned by the remark, was declined.
It is next contended that Saucier's confession was improperly admitted into evidence; that the verdict of the jury was not based upon nor supported by competent and credible evidence but was against the overwhelming weight of the evidence on the issue of Saucier's sanity, it being appellant's contention that the State failed to establish his sanity beyond a reasonable doubt.
The record reflects that, at the time of the homicide, Saucier had a poor school record and had dropped out after completing the eighth grade. He had a high temper and various conflicts with his father. His IQ was rated at 102. He had enlisted in the Army when he was seventeen years old and at the time of the homicide was AWOL. He said that he had been assigned to the 'Rehab' Company, explaining that this assignment had been made because he had 'a profile of bronchitis.' After going AWOL, he returned to the community where his father and mother lived, driving an automobile which he said he had borrowed from another soldier, who was also AWOL. Prior to shooting the patrolman, Saucier went about in this automobile wearing a black wig.
At some time before the date on which the homicide occurred, Saucier had learned that Patrolman Phillips, the victim of the shooting, had been inquiring about an automobile roughly answering the description of the one he was driving. He stated to an acquaintance that if Patrolman Phillips tried to stop him that he would kill him. He also made the statement that if any officer tried to stop him that he would kill the officer.
On the day Patrolman Phillips was killed he passed the automobile of appellant. He immediately turned the patrol car around, apparently to follow Saucier, and Saucier speeded up and sought to escape. However, Saucier lost...
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