Britt v. State, 57529
| Decision Date | 02 March 1988 |
| Docket Number | No. 57529,57529 |
| Citation | 520 So.2d 1377 |
| Parties | Danny BRITT v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
John C. Webb, Greenville, for appellant.
Edwin Lloyd Pittman and Mike Moore, Attys. Gen. by Harrison S. Ford, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before ROY NOBLE LEE, ROBERTSON and ANDERSON, JJ.
Danny Britt has appealed to this Court from a judgment of the Circuit Court of Washington County entered upon a guilty verdict of aggravated assault, sentencing Britt to fifteen (15) years in the custody of the Mississippi Department of Corrections. He assigns two errors in the trial below.
Appellant and Delores Smith, the victim herein, became acquainted in the year 1974. Beginning in 1981 they lived together in Greenville, Mississippi, without the benefit of marriage. The relationship lasted for three and one-half (3 1/2) years and was not happy and tranquil, but rough and turbulent. Even at that, four children were born of the parties' relationship, i.e., Latosha, age 11; Sheritta, age 8; Dantrell, age 6; and Danny, age 5. Appellant and Delores Smith parted ways in August, 1984.
On April 22, 1985, at approximately 6:15 a.m., appellant appeared at the home of Delores Smith. She allowed appellant to enter and a brief discussion ensued between the two, after which appellant left. Smith suspected that appellant was "up to something", she locked the front door and went to check the back door to the house. While Smith was engaged in securing the house, appellant reappeared and the youngest child opened the front door, allowing appellant to enter.
Appellant had a wooden board approximately two feet long with a nail driven through the end and he stated to Delores Smith that he was going to kill her, referring to her with an uncomplimentary name. Latosha, the daughter, attempted to call the police, but was stopped by appellant. He then struck Smith with the wooden board, and she and the four children rushed outside toward the home of their neighbor, Mary Gross. As Smith stumbled toward Gross's home, appellant repeatedly struck her with the board.
Charles E. Kirk, a Greenville police officer, investigated the incident and testified that, upon arriving at the scene, he called an ambulance for Smith who was obviously injured. She was taken to the hospital for treatment of her injuries. According to Mary Gross, the neighbor, Delores Smith and the children came to her home on the morning of April 22. Smith was bleeding and injured.
Appellant testified in his own behalf and claimed that, at the time of the incident, he was living with Smith and the children; that upon returning home on the morning of April 22, he argued with Smith about a refund check from the Internal Revenue Service; that Smith threatened his life and stabbed him "a few times in the side;" and that it was then he struck Smith with the wooden board.
THE LOWER COURT ERRED IN FAILING TO SUSTAIN APPELLANT'S
MOTION FOR A CONTINUANCE IN ORDER TO QUASH THE
VENIRE, WHICH DENIED HIM A FAIR AND
IMPARTIAL TRIAL.
Appellant contends he was not given a fair and impartial trial because there was not a cross-section of the community, i.e., men, on the jury; that the prosecution systematically excluded men during the selection of the jury; and that the lower court erred in declining to sustain his motion for a continuance in order that a new jury might be impaneled. His motion follows:
BY MR. CRAWFORD:
... that defense counsel has now been notified that there are certain witnesses that the defendant wants to subpoena and I have not had an opportunity to subpoena these witnesses, therefore, move for a continuance to get the witnesses and get the witnesses here in Court and another reason, if the Court, please, for whatever it is worth; inbalance [sic] of the jury in that there are too many females and not enough males.
The lower court denied the motion with the following statement:
The motion in regard to the imbalance of the jury is merely a quirp [sic] of fate. There is no indication that the jury was improperly selected or improperly chosen other than by random selection. Merely because there is a preponderance of females on the jury, there is no indication that there is anything wrong with the jury selection process ... For the record, insofar as voir dire is concerned, there were no objections made during voir dire by either the State nor the defense.
The only reference to females and males on the jury was the last part of the motion which set forth, "... the inbalance [sic] of the jury in that there are too many females and not enough males." There is nothing in the record to indicate the composition of the jury. The record does not reflect the names, race or sex of the persons composing the jury, neither does the record indicate the names and sex of those persons peremptorily challenged from the venire panel, nor any reason on the part of the State or the appellant for peremptorily challenging such persons.
In Mason v. State, 440 So.2d 318, 319 (Miss.1983), the Court said:
We have on many occasions held that we must decide each case by the facts shown in the record, not assertions in the brief,...
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Carr v. State, 90-DP-01106
...to change venue, although left to the sound discretion of the trial judge, is not one involving unfettered discretion. In Britt v. State, 520 So.2d 1377 (Miss.1988), this Court held that the defendant did have a right to be tried by a jury whose members where selected in a nondiscriminatory......
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Simon v. State
...Amendment to the Constitution of the United States mandates that all defendants receive a trial by an impartial jury. In Britt v. State, 520 So.2d 1377 (Miss.1988), Appellant claimed that he was denied a fair trial as there was not a cross-section of his community present in the seated jury......
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Simon v. State
...petit juries actually chosen must mirror the community and reflect the various distinctive groups in the populations. Britt v. State, 520 So.2d 1377, 1379 (Miss.1988). In Lanier v. State, we outlined the elements that must be shown for a prima facie violation of the fair cross-section requi......
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Nathan v. State, 07-58704
...proved and placed before us by a record, certified by law; otherwise, we cannot know them. (citations omitted). Britt v. State, 520 So.2d 1377, 1379 (Miss.1988) (citing Mason v. State, 440 So.2d 318, 319 [Miss.1983] ). This assignment is without Accordingly, the conviction and sentence of t......