Buckley v. State, 57067

• Decision Date: 29 July 1987
• Docket Number: No. 57067,57067
• Citation: 511 So.2d 1354
• Parties: Henry Ray BUCKLEY v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1354

511 So.2d 1354

Henry Ray BUCKLEY v. STATE of Mississippi.

No. 57067.

Supreme Court of Mississippi.

July 29, 1987.

Robert M. Ryan, Taylor, Jones, Alexander, Greenlee, Seale & Ryan, Senatobia, for appellant.

Edwin Lloyd Pittman, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before HAWKINS, P.J., and PRATHER and ROBERTSON, JJ.

ROBERTSON, Justice, for the Court:

I.

Today's appeal finds one convicted as accessory after the fact of burglary presenting a challenge to the sufficiency of the prosecution's proof and an evidentiary question. Beyond that, the Appellant disputes that his prior criminal convictions truly arose out of separate incidents, in consequence of which Appellant denies that he is an habitual offender. For the reasons set forth below, we deny all assignments of error and affirm.

II.

This case arises from the December 13, 1982, burglary of the business premises of E.L. Garner, Inc., of Batesville, Mississippi, and the theft of an air compressor and four tires. David Garner, one of the principals in the Garner corporation, told police that he had been sitting in a utility trailer when he noticed some workers pull up in a truck and park close to the trailer. About two and a half hours later, Garner was notified that the air compressor and four tires were missing. Garner told the police the names of the three employees he had seen drive up to the trailer; Garner also had his foreman fire the men. One of the three was Henry Ray Buckley, Defendant below and Appellant here.

The air compressor turned up in a pawn shop in Southaven, Mississippi. The pawn shop receipt listed the seller as Ricky Lofton. Lofton was not one of the three employees implicated in the theft, but his statement made February 9, 1983, pointed the finger at just those three.

On the day of December 13, 1982, David Casey, Ira Perry, and Henry Ray Buckley were in a truck driven by their foreman, Alfred Bratcher. Bratcher drove up to the trailer and went in to take care of some business. Casey and Perry also got out of the truck and proceeded to take from behind the trailer the air compressor and four tires which they threw over a fence thus concealing them from view. The extent of Buckley's involvement is a matter of some disagreement. Perry testified that Buckley and Casey "had the compressor half way over the fence," while Casey stated that Buckley did not have anything to do with the removal of the items over the fence, and Buckley himself maintained that he never left the truck.

At any rate, the air compressor and tires came to rest at several places after their removal from behind the fence was effected by Casey and a Bernard Turner who drove the stolen items to Casey's house. According to Casey, he met Perry and Buckley in front of his house around 7:30 the night of the theft, and the compressor and tires were taken by Perry to Perry's sister's house. From there they were moved to Perry's uncle's house.

Casey testified that the day after the theft, he, Perry and Buckley were fired. Several days later, Casey stated, he, Lofton, Perry and Buckley met to discuss what to do with the items and Buckley suggested pawning them in Memphis. Using Lofton's car, they picked up the air compressor and took it to a pawn shop on Highway 51 in DeSoto County. When they were offered only $75.00 for the compressor, they tried another pawn shop where they were given $150.00. Lofton took the money as he was the only one with a driver's license. Casey testified that he specifically remembered Buckley entering the second pawn shop, because a gun Buckley had in his pocket fell out, eliciting an admonishment from the pawn shop owner. The sale completed, Casey testified, the four men stopped at a liquor store to purchase some spirits and change the $150.00. The sum was divided amongst them with all but Lofton getting $40.00. For the use of his car, Lofton was given $30.00. About a week later, Casey stated, he, Buckley and Perry drove to Clarksdale where they sold three tires for $30.00 to the Speedy Service Station. They each made $10.00 on the deal.

Perry's testimony was essentially the same as Casey's except that Perry testified that Buckley was involved in throwing the items over the fence. Perry also remembered the incident at the second pawn shop when Buckley's pistol fell "out of his boot or whatever he had on."

Lofton testified that he first saw the compressor and tires when they were at Perry's uncle's house. Lofton recalled Buckley's gun clattering to the floor of the pawn shop, "The man at the shop got real irritated and told us don't never come in there with a loaded pistol no more."

Buckley's testimony, essentially that he gave in a statement to the police February 11, 1983, differed from that of Casey, Lofton and Perry in several respects. According to Buckley, he merely watched while the air compressor and four tires were thrown over the fence. This accords with Casey's testimony but conflicts with Perry's. When Perry and Casey got back in the truck, Buckley testified, he argued with them about what they had done. They told him that they needed money to pay lawyers for some rape charges they were facing. Buckley said that he did not meet with Perry and Casey later that same night, but he did "run into them." About a week to ten days later Lofton and Casey drove by and asked Buckley to go for a ride with them. Buckley testified that he did not know where they were going. They picked up Perry and drove toward Memphis. Buckley stated that it wasn't until they stopped at the first pawn shop that he knew they had the compressor in the car. He waited in the car while the others went into the pawn shop. At the second pawn shop, Buckley testified, he went into a karate studio. He did not have a gun on him. They stopped at a liquor store and cashed the money. Buckley admitted that he received $25.00. He did not accompany Casey and Perry to Clarksdale to sell the tires.

On April 8, 1985, a jury empaneled in the Circuit Court of Panola County found Henry Ray Buckley guilty as an accessory after the fact to the crime of burglary of a non-dwelling. Miss.Code Ann. §§ 97-1-5 and 97-17-33 (1972). Thereafter, in a separate non-jury hearing, the Circuit Court found that Buckley had been previously convicted of two separate felonies in Memphis, Tennessee. Accordingly, the Court sentenced Buckley as an habitual offender to five years imprisonment without parole. Miss.Code Ann. § 99-19-81 (Supp.1985).

III.

Buckley's first assignment of error complains of the Circuit Court's denial of his motion for a mistrial made after a prosecution witness made unsolicited reference to Buckley's "rap sheet".

The "rap sheet" reference was made by Batesville Police Captain Aubrey B. Howe during the course of his redirect examination by the prosecuting attorney. Captain Howe was called to testify regarding the details of recovery of the stolen items, as well as the circumstances surrounding Buckley's statement given to the police on February 11, 1983. The following colloquy occurred:

Q. (District Attorney) Now, would you agree with me, Cap. Howe, that once you got the dead wood on somebody, they are much more likely to come in and make a statement than they are prior to that?

A. (Howe) That's true, sir.

Q. And at the time this man made the statement, the Batesville Police Department had already received a statement from another individual who had told the police department about this man's participation in selling this stolen property. Is that correct?

A. That's right, sir, and also his rap sheet was checked before this came up.

Q. Now, Mr. Smith was asking you some legal questions that the jury will be instructed ...

Public Defender (Mr. Smith):

Your Honor, may we approach the bench?

Outside the presence of the jury, defense counsel moved for mistrial "on the grounds that a witness blurted out before the jury that he had checked Buckley's rap sheet and that he had snapped his fingers as if some great revelation had taken place after he checked." The Circuit Court overruled the motion noting that "The remark made by the witness ... was admittedly unresponsive to the question propounded by the State." "I frankly question what effect, if any, that remark had on the jury. I know what [defense counsel] is saying as far as the snap of the fingers, but I'm not convinced that the phrase 'rap sheet' means much to the ordinary lay person but it was not pursued by the State and was not gone into further." In overruling the motion, the judge offered to admonish the jury but did not do so, respecting the request of the defense counsel. Later in the proceedings Buckley admitted to at least one former conviction in testimony elicited from his own counsel.

Buckley argues on this appeal that Capt. Howe's reference to this "rap sheet" was improper evidence of other crimes and "was highly prejudicial since it obviously reflected on prior criminal conduct of the [defendant] separate and distinct from that he was then being tried for." Buckley cites Griffin v. State, 482 So.2d 233 (Miss.1986) in which a conviction of burglary was reversed because the State had introduced evidence of another burglary occurring on the same day some 400 feet away and the defendant's fingerprints were found at the scene of the other robbery. Buckley also cites Sumrall v. State, 272 So.2d 917 (Miss.1973); Eubanks v. State, 419 So.2d 1330 (Miss.1982); and Gray v. State, 351 So.2d 1342 (Miss.1977) for the same proposition.

In the present state of the record, the Circuit Court did nothing which may be said to have been error. Ordinarily, where statements such as that with which we are here concerned are inadvertently made by a witness, defense counsel is obliged to object and, upon request, the court should instruct the jury to give the statement no consideration in deliberating upon its verdict. Here, defense counsel displayed a sensitive regard for the...