Brown v. State, 98-KA-00058-COA.
| Decision Date | 03 August 1999 |
| Docket Number | No. 98-KA-00058-COA.,98-KA-00058-COA. |
| Citation | 749 So.2d 204 |
| Parties | Aaron BROWN, Appellant, v. STATE of Mississippi, Appellee. |
| Court | Mississippi Court of Appeals |
Andrew Edward Franz, Gulfport, Attorney for Appellant.
Office of the Attorney General by Scott Stuart, Attorney for Appellee.
EN BANC.
LEE, Judge, for the Court:
¶ 1. This is a direct appeal by Aaron Brown from convictions of aggravated assault and kidnapping in accordance with Mississippi Code Annotated sections 97-3-7(2)(a) and 97-3-53, as amended, respectively. Though Brown was indicted for arson as well, the jury found Brown not guilty of that charge. The appellant was sentenced to serve a term of life as an habitual offender pursuant to Mississippi Code Annotated section 99-19-83, as amended. We affirm the findings of the trial court.
STATEMENT OF THE FACTS
¶ 2. On the morning of September 9, 1996 Aaron Brown went to the apartment of Van Sykes. The door was unlocked and when he entered the apartment he found his fiancee there with Van Sykes. Sykes told Brown to leave and Brown refused. Sykes then struck him with a drawer and the two began to fight. At some point during the fight Brown struck Sykes with a fire extinguisher and something identified as shiny. Sykes was cut from his knee to his stomach and throat. This included his scrotum and penis. Sykes was then knocked unconscious, and he awoke in the back of a moving truck. Brown then dumped Sykes in a wooded area, started a fire in the back of the truck and left. Passersby saw Sykes lying in the woods and called for help. Sykes was hospitalized and required extensive surgery and medical treatment.
ISSUES
¶ 3. Brown argues that he was denied a fair trial because Connie Wright testified that someone telephoned her and offered to pay her $1,000 if she would not testify. He claims that the court could not repair the damage by instructing the jury to disregard the evidence and moved for a mistrial. The following colloquy appears in the record regarding this statement between the witness Wright and the district attorney, Ms. Dosdon:
The defense then objected. The objection was sustained and an instruction given to the jury to disregard the witness's statement. The district attorney, Ms. Dodson, continued with her inquiry:
At this point, defense counsel objected to the line of questioning. The objection was overruled and Ms. Dodson, the district attorney continued:
¶ 4. The court then instructed the jury to leave, and the defense moved for a mistrial. The State opposed the motion since it had approached the bench to address this matter and the court did not overrule when the defense objected at that time. Instead, it instructed the State to lay the foundation before asking questions, and the court would then rule on objections as they were made. The State also stressed that it was not trying to elicit the information regarding the bribe from the witness, but rather, that it was making an effort to establish the identity of the caller. The record shows that at the proceeding on the motion to reinstate bond that this witness testified that the person who called her identified himself as Aaron Brown and that he said that he would pay her if she "wouldn't testify against me." (emphasis added). Wright so testified both on direct and cross-examination. The State was making an effort to elicit the same testimony from Wright at the trial that she gave at the hearing to reinstate bond. The witness's testimony at trial regarding the identity of the caller was thus contradictory to that at the bond hearing. At the trial, while the jury was out, the court offered to allow Ms. Dodson to clarify for the record that the witness stated at the trial that she did not know who she was talking to on the phone. The defense, however, did not want to bring the matter to the further attention of the jury. Therefore, when the jury returned, it was simply instructed to disregard the statement made by the witness.
¶ 5. The question is whether the court, by instructing the jury to disregard Wright's statement, repaired the damage caused by the statement so that the motion for a mistrial was correctly overruled. "Whether to declare a mistrial is committed to the sound discretion of the trial court." Johnson v. State, 666 So.2d 784, 794 (Miss.1995) (citing Brent v. State, 632 So.2d 936, 941 (Miss.1994)). "The failure of the court to grant a motion for mistrial will not be overturned on appeal unless the trial court abused its discretion." Johnson, 666 So.2d at 794 (citing Bass v. State, 597 So.2d 182, 191 (Miss.1992)). In addition, the Mississippi Supreme Court has stated:
Elementary to all trial proceedings is the proposition that the occurrence of any prejudicially incompetent matter or misconduct before a jury, the damaging effect of which cannot be removed by admonition or instructions, necessitates a mistrial. However, it is the well established rule in Mississippi that where a trial judge sustains an objection to testimony interposed by the defense in a criminal case and instructs the jury to disregard it, the remedial acts of the court are usually deemed sufficient to remove any prejudicial effect from the minds of the jurors. The jury is presumed to have followed the directions of the trial judge. Walker v. State, 671 So.2d 581, 621 (Miss.1995) (citations omitted).
¶ 6. This State's Supreme Court has repeatedly and consistently held that such action is sufficient to remove any prejudice resulting from the improper testimony. See Dennis v. State, 555 So.2d 679, 682-83 (Miss.1989) (); Wright v. State, 540 So.2d 1, 4 (Miss.1989) (); Marks v. State, 532 So.2d 976, 982 (Miss.1988) (). Hoops v. State, 681 So.2d 521, 528 (Miss.1996).
¶ 7. Of course, if the inadmissible testimony is so damaging that its effect upon the jury could not be adequately tempered by admonition or instruction, the trial court should grant a mistrial. Reynolds, 585 So.2d at 755; Davis v. State, 530 So.2d 694, 697 (Miss.1988). However, each case must stand on its own facts in determining whether particular error constitutes reversible error. Henderson v. State, 403 So.2d 139, 140 (Miss.1981); Carleton v. State, 425 So.2d 1036, 1041 (Miss.1983). The Mississippi Supreme Court has held on various occasions that the trial court abused its discretion in not granting the defendant's request for a mistrial. In Barlow v. State, 233 So.2d 829, 831 (Miss.1970), this Court ruled that comments made by the district attorney during his cross-examination of the defendant, an elected Justice of the Peace being prosecuted for embezzlement, were prejudicial in nature to the extent that they constituted reversible error. The court reversed the conviction, stating: "[I]f the inadmissible testimony is so damaging that its effect upon the jury could not be adequately tempered by admonition or instruction; the trial court should grant a mistrial." Baine v. State, 604 So.2d 249, 257 (Miss. 1992) (citing Reynolds v. State, 585 So.2d 753, 755 (Miss.1991)); (Davis v. State, 530 So.2d 694, 697 (Miss.1988)).
¶ 8. In short, a violation of a rule of evidence should not result in the costly and time-consuming penalty of a new trial unless it affirmatively appears from the whole record that a miscarriage of justice has resulted. At most we find that this constitutes "harmless error." In Forrest v. State, 335 So.2d 900, 903 (Miss.1976), the supreme court opined, "[a]n error is harmless only when it is apparent on the face of the record that a fair minded jury could have arrived at no verdict other than that of guilty." (citations omitted). There was overwhelming evidence in this case to support that a fair minded jury could have arrived at no verdict other than to find Brown guilty of aggravated assault and...
To continue reading
Request your trial
-
Williams v. State
...959 So.2d 15, 28 (¶42) (Miss.Ct.App.2006). However, juvenile adjudications cannot be used for general impeachment purposes. See Brown v. State, 749 So.2d 204, 213(¶21) (Miss.Ct. App.1999) (citing Bass, 597 So.2d at ¶40. We find that White's juvenile court record was offered for general impe......
-
Shaw v. State
...to Shaw and determine whether the evidence's probative value is substantially outweighed by the danger of unfair prejudice. Brown v. State, 749 So.2d 204, 210(¶ 10) (Miss.Ct. App.1999). The trial court is given "broad discretion" when weighing these factors. Id. ¶ 17. The State asserts that......
-
Jones v. State
...hand, the less probative value the evidence has, the less significant the 403 factor would have to be to justify exclusion. Brown v. State , 749 So. 2d 204, 210 (¶10) (Miss. Ct. App. 1999). ¶36. When evidence of other bad acts is admissible, the trial court must give an instruction to the j......
-
Caldwell v. State
...and even when the probative value of evidence is slightly outweighed by Rule 403 concerns, it must be admitted. Brown v. State, 749 So.2d 204, 210 (Miss.Ct.App.1999). However, it is axiomatic that when the probative value of evidence, notwithstanding its relevance, not only is substantially......