Carter v. State, 52671
| Decision Date | 05 August 1981 |
| Docket Number | No. 52671,52671 |
| Citation | 402 So.2d 817 |
| Parties | Lewis CARTER v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Travis Buckley, Ellisville, John K. Keyes, Collins, for appellant.
Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before SMITH, P. J., and BOWLING and HAWKINS, JJ.
Lewis Carter was tried in the Circuit Court of Covington County upon a charge of having murdered one Tommy Maxwell. The trial resulted in his conviction of manslaughter, for which offense he was sentenced to serve twenty years in the Mississippi State Penitentiary. He has appealed from that conviction and is at liberty under $20,000 bail.
The homicide, which gave rise to the prosecution, occurred during a fight which followed an automobile collision involving a vehicle driven by appellant's son, Danny Carter, and a pickup truck operated by Tommy Maxwell.
Several grounds for reversal are assigned.
Under one of his assignments, appellant asserts that the trial court erred in denying his motion for a directed verdict. Under this assignment, appellant challenges the sufficiency of the evidence to support the conviction.
The State's case against Carter was based upon the testimony of a number of witnesses, including the testimony of several eyewitnesses. It appears that on the night of March 25, appellant, Lewis Carter, was informed by one Runnels that his son, Danny Carter, had been involved in the automobile accident with Maxwell and that there was a fight in progress. Runnels testified that when he gave Lewis Carter this information, Carter stuck a pistol in his pants and said: "He was going to kill the son of a bitch." Whereupon, appellant, went to the scene and a "tussle" ensued, wherein the wife of the victim, Maxwell, appellant's own wife, appellant's son, Danny Carter, appellant himself and (deceased), Tommy Maxwell, were involved. Runnels testified that "Tommy (deceased) was knocked down and then Lewis (appellant) pulled pointed the gun toward him when he started to get up and shot him (Maxwell)." Runnels' testimony was corroborated in material respects by that of Patricia Maxwell, John David Kirkley and Chuck Duckworth, eyewitnesses to the homicide.
Jerry Dennis identified the weapon used as a pistol he had previously sold to appellant Carter. He did this through initials carved inside the handle.
Witness Lance Eubanks testified "Well after the first shot was fired down, he (appellant Carter) pulled the gun up and pushed Tommy (the victim) over off the corner trunk of my car and then the next shot was to the head of Tommy."
When the State had rested its case, a motion was made by appellant for a directed verdict which was denied. Whereupon, appellant proceeded to introduce evidence in his own behalf.
Although there are substantial conflicts in the evidence, it is clear that the evidence introduced by the prosecution amply supports the jury's verdict of guilty of manslaughter. The trial court's action in denying appellant's motion for a directed verdict or for a peremptory instruction was correct. Davis v. State, 320 So.2d 789 (Miss.1975); Warn v. State, 349 So.2d 1055 (Miss.1977); Murphree v. State, 228 So.2d 599 (Miss.1969). There is no merit in this assignment.
Also assigned as error is the granting by the trial court of State's jury instruction No. 7, which defined murder.
It should be noted that appellant was convicted of manslaughter, not murder, and this was tantamount to a verdict by the jury of not guilty of the crime of murder. One convicted of manslaughter may not on appeal complain of an instruction dealing with murder, even if erroneous. Moss v. State, 386 So.2d 1129 (Miss.1980), Ray v. State, 381 So.2d 1032 (Miss.1980), Hull v. State, 350 So.2d 60 (Miss.1977), King v. State, 315 So.2d 925 (Miss.1975). Furthermore, the jury was amply instructed on accident, a theory of appellant's defense, and the burden resting upon the State. We hold, therefore, that the murder instruction did not mislead the jury to appellant's prejudice.
The only remaining contention by appellant is that retrial of the criminal case, after entry of a mistrial, constituted an unconstitutional exposure of appellant to double jeopardy.
The first trial of this case was begun on July 17, 1978 and resulted in a mistrial. In the course of the presentation of the State's case, the district attorney concluded that one of the witnesses who had testified had committed perjury. There followed an examination of this witness directed toward developing the circumstances relating to the testimony of the witness thus brought in question. This examination was conducted partially in the presence of the jury and also continued in chambers, out of the presence of the jury. At about this time it was discovered that witnesses who had already testified were being questioned by witnesses who were sequestered and awaiting their turn to testify, and were relating to them what had transpired during the giving of their testimony and to what they had testified. Appellant Carter made a motion for a mistrial and the State responded "considering that particular motion (Carter's for a mistrial) was set forth by counsel for defendant and the terms of this particular testimony of this witness and by what the State feels to be a necessary witness for the trial of this court (sic) and by placing him on trail (sic) recall him again would have a tendency to confuse the jury as to which was the truth, by virtue of this particular testimony and his testimony be (sic) recalling him would greatly prejudice the rights of the State of Mississippi and, therefore, Your Honor, the State would be in position to confess the mistrial."
Following the above statement by the district attorney a colloquy between the court and counsel followed in the course of which the court sustained appellant's motion for a mistrial. Afterward, counsel for appellant attempted to withdraw their former motion for a mistrial "because we do not think that what the district attorney has asked for, it amounts to a mistrial." At the conclusion of argument, appellant's counsel made a motion to withdraw their motion for a mistrial, which the court had previously sustained. The court denied the motion, pointing out:
Well, Mr. Buckley, heretofore the Court you made a motion for a mistrial, which the Court seriously considered, and I overruled it at that time. At this time, you have made a motion for a mistrial in the case, although the district attorney elaborated additional reasons, but your motion for a mistrial has been sustained. Now, if you have any other motions or anything you want to hear, I'll be glad to hear it.
BY MR. BUCKLEY:
Well, we we move that our motion for a mistrial be withdrawn and that was what we were doing. We because the district attorney attached additional conditions to it, additional things, we do not think it constitutes grounds for a mistrial, we think it's not cause for a mistrial, for that reason was brought about the conduct of the State of Mississippi, their method of interrogating their witnesses and their method of interviewing their witnesses. Mr. Crawford's statement of grounds of mistrial has nothing to do with the grounds that we stated. And I was at any rate, it was for the protection of our record and it may have been premature at the very best on it when we went and made it. As the Court remembers, and I told you that it earlier that the testimony might develop to the contrary.
You asked when the Jury retired to make a motion. I told you I'd hear you just as soon as I came back on the bench.
BY MR. BUCKLEY:
Yes, sir.
So, I did. The motion was made. It is sustained. If it's another motion to set aside and vacate the motion for a mistrial, that motion is overruled. Let the Jury return.
In Schwarzauer v. State, 339 So.2d 980 (Miss.1976) wherein the defendant argued that he was illegally placed in double jeopardy this Court found:
The action of the trial judge in granting the mistrial at the first trial cannot be said to be unreasonable, even though another judge similarly situated might have followed a different course. We are unwilling to rule that the double jeopardy provision of the Fifth Amendment to the United States Constitution means that every time a defendant is put to trial he must be set free if the trial aborts and does not conclude with a final judgment. The better rule which we apply here is that trial judges are peculiarly situated so as to decide (better and more logically than anyone else) when a trial should be discontinued. Such action may be taken in proper cases, after which the defendant may be tried by another panel of...
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