Carleton v. State, 53481

• Court: Mississippi Supreme Court
• Writing for the Court: WALKER; PATTERSON; HAWKINS; BROOM
• Citation: Carleton v. State, 425 So.2d 1036 (Miss. 1983)
• Decision Date: 14 January 1983
• Docket Number: No. 53481,53481
• Parties: Clayton W. CARLETON v. STATE of Mississippi.

Page 1036

425 So.2d 1036

Clayton W. CARLETON v. STATE of Mississippi.

No. 53481.

Supreme Court of Mississippi.

Jan. 14, 1983.

Wittman & Berry, Thomas D. Berry, Jr., Gulfport, for appellant.

Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

WALKER, Presiding Justice, for the Court:

The appellant, Clayton W. Carleton, was convicted of murder in the Circuit Court of the First Judicial District of Harrison County and sentenced to a term of life in the custody of the Mississippi Department of Corrections. From that judgment and sentence, Carleton appeals. We affirm.

On July 21, 1980, at approximately 8:30 in the evening, the deceased, Jack Newton Myers, was helping two friends, James H. Vincent and Rayford "Pee Wee" Hosford, put a bilge switch on Hosford's boat which was docked at the small craft harbor in Gulfport. At this same time, some distance away, two young girls, one, fourteen, and one, sixteen years of age, were talking to three boys who were sitting on an automobile, one of whom was identified as Carleton. Carleton had a pistol "waving it around." He told the girls that the gun was not loaded and let one of them hold it. Carleton offered the girls a beer, which they accepted. He also offered them a quaalude, a form of dope, which they declined and he asked them if they wanted to "get laid," which they also declined. One of the boys asked if they wanted to steal a boat and go for a ride. Upon declining to be "laid," one of the boys with Carleton told the girls to "get on down the road" and started chasing them past the point where Myers and his friends were working on the boat.

The victim, Jack Myers, Vincent and Hosford heard the two young girls "coming down the street running, and there was two boys, men, behind them, using profane language."

The appellant was not one of the men chasing the girls. Myers raised up and said, "you all ought not to use that kind of language amongst young girls." The two young men then went back and got in a Riveria Buick automobile and drove toward the cafe at the end of the harbor. In approximately ten minutes, after Myers, Vincent and Hosford finished putting on the switch and walked to the entrance to Pier No. 2 of the harbor, a Riveria Buick automobile pulled up and parked across the street. Carleton and two other men got out and walked toward Myers and Vincent. Vincent, a witness for the State, described what then happened:

They walked over, and one nudged me off where I was leaning up against a little pier, nudged me over to the step and I stepped one step down, and the other one said [to Jack Myers] "you are the son-of-a-bitch with the big balls", and about the time he said "balls", he turned around like that and said "B-a-a-m", and turned and looked at me and cocked the gun and throwed it over on me, and I fell over on the platform and covered up, and heard another racket and Pee Wee was down and I looked and he had it on Pee Wee. He didn't shoot, and turned around, didn't run, but in a fast trot, trotted back to the car, and the car sped off, and he got down the street about, I would say, a hundred and fifty yards and cut the headlights out, and that's the last I see of him.

Vincent further testified that Jack Myers fell after being shot and was gasping for breath and that Carleton was the person who shot him. Myers was dead when the medics arrived.

The two young girls, Vincent, Hosford and one David Cooper testified on behalf of the State with regard to the barbaric, cruel and unnecessary killing.

The appellant's primary defense was insanity. However, by their verdict, the jury found him to be sane.

On appeal, Carleton makes several assignments of error. However, the evidence of the appellant's guilt in this case is so strong that absent his being insane, which the jury rejected, any argument to the contrary defies logic or reason.

PROPOSITION NO. 1

The appellant first contends that the lower court erred in failing to grant a mistrial when the district attorney told the jury during closing argument that appellant had a man take the gun in question apart in a backroom.

During final argument the attorney for appellant told the jury that the expert for the State had not torn the gun down to examine it. In response to this statement the district attorney, in his closing argument, told the jury that the gun had been taken apart "right back there in that room." Whether true or not, the district attorney went outside of the record in making the statement. An objection was interposed which was sustained and a motion for a mistrial was overruled. However, the court instructed the jury to disregard the statement and we can only assume that they abided by his instructions. In any event, we are of the opinion that the statement could not have had any effect on the ultimate verdict of the jury.

PROPOSITION NO. 2

The appellant contends that the court erred in allowing the district attorney to make prejudicial remarks to the jury.

(a) The appellant first contends that any reference to the fact that the two young children and wife of the deceased would be having birthdays without their daddy and husband "because of the dastardly act of a dope peddler on the way from Florida who stops in Gulfport, Mississippi, and decides to take a man's life," was highly inflammatory and there was no evidence that Carleton was a dope peddler. The objection was overruled by the court.

The appellant now contends that the prosecuting attorney went outside of the record in stating that the appellant was a dope peddler and committed error by bringing in evidence of another crime.

An examination of this record reveals that the district attorney did not go outside of the record in mentioning that appellant was a dope peddler. Both the doctor offered by the appellant and the doctor offered by the State on the question of whether appellant was sane or insane testified that appellant had said that he had gone to Florida to purchase drugs and was unable to get all that he wanted. The doctor for the State further testified that Carleton told him that he had put up $2,000.00 of his money for drugs in Florida and had purchased 800 quaaludes to bring back to Louisiana. In our opinion, the purchase of such a large quantity of drugs certainly raises a reasonable inference that they are purchased for resale. Therefore, the appellant's contention is without merit.

(b) The appellant next contends that "The Jury is told [by the district attorney] that the attorney that represents Appellant is a flim-flam artist, the conditions of the penitentiary are excellent with air conditioned buildings and that attorney had been furnished Appellant at no cost to Appellant." Appellant concedes that objections to these remarks were sustained but asserts that they had already done damage which could not be removed. First, the district attorney did not refer to the appellant as a "flim-flam" artist, but said that the defense presented was a "flim-flam defense." It is true that the district attorney stated that Mr. Berry had been doing that ever since he had been practicing law, and when the two are read together it might be said that the district attorney was calling Mr. Berry a "flim-flam artist." However, as stated earlier, the trial court sustained the objection to this statement and there was no request that the court instruct the jury to disregard it. Further, in all fairness to the district attorney, Mr. Berry had earlier questioned his prosecutorial ability by calling this case the case of the "refried beans," adding that the reason that the Mexicans cook refried beans is that "... they can't do anything right the first time. And that's what we are talking about here, because this is the second time this case has been tried." We do not condone this type of argument by the attorneys on either side. However, any former trial judge knows that the zeal of advocacy by counsel on both sides invariably leads to exchanges of this sort. When the exchanges get out of hand, the trial judges have the authority to and should impose appropriate sanctions. The remarks of this case, in our opinion, were not reversible error.

(c) The appellant next complains about the following statement made by the district attorney in closing argument. "... I think when you go back [in the jury room] ... you are going to find that this can be nothing but murder. You know, we have got to let people know what the people of Harrison County stand for."

Objection was interposed, which was overruled by the court and the district attorney continued. "They stand for honesty, justice and equality, and tell all the Clayton W. Carleton's 'I don't care where you come from.' "

We have carefully examined the record with regard to the above statement and find nothing improper about it and are of the opinion that the trial court properly overruled the appellant's objection to the statement.

PROPOSITION NO. 3

The appellant contends that the court erred in permitting witness, David A. Cooper, to testify.

The Court has examined the record with regard to this assignment of error and find it to be without merit. David A. Cooper's name was listed on the back of the indictment as a prospective witness, his name was furnished during the first trial as a prospective witness and appellant's attorney was given an opportunity to interview the witness prior to the present trial. After conducting a hearing on the question of whether the witness Cooper could testify, the trial court ruled as follows: "It would not be prejudicial in the mind of the court to allow this defendant [sic-witness] to testify when you balance the rights of society and the defendant, given the fact that Mr Berry [counsel for appellant] did interview the witness." Furthermore, appellant produced no evidence on his motion for a new trial that he had been harmed or prejudiced by not having earlier notice that Cooper would...