Blair v. State, 54734

• Decision Date: 08 February 1984
• Docket Number: No. 54734,54734
• Citation: 445 So.2d 1373
• Parties: Robert BLAIR v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1373

445 So.2d 1373

Robert BLAIR v. STATE of Mississippi.

No. 54734.

Supreme Court of Mississippi.

Feb. 8, 1984.

Mager A. Varnado, Jr., Gulfport, for appellant.

Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, C.J., and PRATHER and ROBERTSON, JJ.

PATTERSON, Chief Justice, for the Court:

Robert Blair was convicted in the Circuit Court of Harrison County, First Judicial District, of armed robbery and sentenced to twenty (20) years in the custody of the Mississippi Department of Corrections. He appeals and assigns as error that the court:

1. overruled his motion for a continuance;

2. overruled his motion to quash the indictment;

3. overruled his motion to cause witness to confer with defense counsel;

4. overruled his motion for funds with which to investigate and prepare the defense;

5. overruled his motion to quash the jury panel;

6. refused to grant a defense instruction on simple robbery and grand larceny; and

7. allowed the prosecutor to question a defense witness as to irrelevant matters.

On August 21, 1981, the prosecutrix was employed as a cashier at a Majik Mart Store in Gulfport. She was alone in the store about 4:00 o'clock a.m., when a man came in and spoke with her for a few minutes. While she had her back turned to him, he seized her by the hair, displayed a pocketknife with its blade exposed, and told her he would stab her if she did not accompany him to the back room of the store. She was also told that he had previously killed three people.

In this room the prosecutrix was raped and told by her assailant that he wanted the money from the store safe. In fear for her life, the prosecutrix opened the safe and the cash register from which the money was taken. A case of beer and several cartons of cigarettes were also taken. Having loaded his booty in her car, the man got into it and departed.

At trial Blair admitted the larceny of the money, beer and cigarettes but denied the use of force or threats of force in their taking. He also testified the prosecutrix consented to having sexual intercourse with him.

Blair argues first that the trial court improperly overruled his motion for a continuance. In that motion Blair stated that he needed additional time to complete investigation of the case and to establish contact with his father, who was working in Southeast Asia. The court overruled the motion, noting that defendant's counsel had already made five attempts to contact Blair's father, all to no avail.

The record reveals the trial court thought Blair's hope of getting financial assistance from his father was forlorn and more importantly could not be concluded within a reasonable time. We are therefore of the opinion the court was within its discretion in denying the motion and that Blair was not prejudiced thereby. Norman v. State, 385 So.2d 1298, 1302 (Miss.1980); Saucier v. State, 259 So.2d 484, 486 (Miss.1972).

Blair's second proposition can be disposed of by observing that his request for a preliminary hearing was made after the grand jury returned the indictment against him. "The nature and purpose of a preliminary hearing is to determine whether probable cause exists to hold a person to await proper action of the grand jury." Glass v. State, 278 So.2d 384, 387 (Miss.1973). This question had therefore been decided before Blair raised it. We find no merit in this assignment of error.

Further, we are of the opinion the court committed no error in overruling Blair's motion to cause a state's witness to confer with defense counsel. In Scott v State, 359 So.2d 1355, 1360 (Miss.1978), it is stated:

A defendant is entitled to access to prospective witnesses; however, this right exists coequally with the right of a witness to refuse to say anything.... We hold that the trial judge did not have the authority to require the witness to submit to a private examination by defense counsel.

As in Scott, the witness in this case was unwilling to talk with defense counsel. The trial court therefore properly refused to require her to confer with Mr. Varnado, Blair's attorney.

Fourthly, Blair argues the court improperly overruled his motion for funds with which to investigate and prepare the defense.

This Court has never held that the state has the duty of providing indigent criminal defendants with private investigators. See Bullock v. State, 391 So.2d 601, 607 (Miss.1980); Laughter v. State, 235 So.2d 468, 472 (Miss.1970). This assignment is therefore without merit.

In his fifth assignment of error, Blair contends the jury panel should have been quashed because the prosecutor's opening statement referred to crimes other than the one for which Blair was on trial. The pertinent part of that statement is set out below:

At that point, she said that she saw this knife, and that he said he was going to take her back in the back of the store. That he took her back in the back of the store against her will back there, and while back there in the back of the store made her cut off the lights and everything back there, and committed an assault upon her back there. She will testify about that. And after he did that, he told her he was going to rob her, and then he somehow came up with a screwdriver. At that point, she saw the screwdriver there in his hand, and she'll describe it for you and the knife.... Then after he took her back in the back, he brought her out and told her that he wanted her to open up the safe, that he wanted the money. That he was going to rob her of the money, and that he knew there was some thousand dollars in there. He told her if she didn't comply with him throughout all this that he'd kill her. That he'd killed some three other people. And she heard him say that, and that was the reason, based upon that, that she was cooperating with him. Getting him anything that he wanted at that point. (Emphasis Added).

After the prosecutor had completed his statement, defense counsel moved the court to quash the panel. The court ruled the other crimes were part of the res gestae and overruled defendant's motion. When the state presented evidence of other crimes in its case in chief, defendant made no objection.

In general, the prosecution is not allowed to show a defendant committed crimes other than the one for which he is on trial. However,

... There are certain recognized exceptions to the rule. Proof of another crime is admissible where the offense charged and that offered to be proved are so connected as to constitute one transaction, where it is necessary to identify the defendant, where it is material to prove motive and there is an apparent relation or connection between the act proposed to be proved and that charged, where the accusation involves a series of criminal acts which must be proved to make out the offense, or where it is necessary to prove scienter or guilty knowledge.

Johnson v. State, 416 So.2d 383, 386 (Miss.1982), quoting Gray v. State, 351 So.2d 1342 (Miss.1977).

In Oates v. State, 421 So.2d 1025, 1029 (Miss.1982), we implicitly extended this rationale to include statements made by the district attorney on opening statement.

We hasten to say, however, that reference to a crime other than that charged in the indictment is not proper in all...