Davis v. State
Citation | 374 So.2d 1293 |
Decision Date | 19 September 1979 |
Docket Number | No. 51377,51377 |
Parties | Bennie DAVIS v. STATE of Mississippi. |
Court | United States State Supreme Court of Mississippi |
James D. Bell, Jackson, for appellant.
A. F. Summer, Atty. Gen., by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before ROBERTSON, BROOM and COFER, JJ.
COFER, Justice, for the Court:
Defendant-appellant Bennie Davis was indicted of the crime of forgery by the Grand Jury of the Circuit Court of the First Judicial District of Hinds County. On trial, he was convicted and received a sentence of fifteen years.
On appeal here, he has assigned and argues two errors:
1. The trial court's denial of his motion for mistrial; and
2. The trial court's refusal to provide him, an indigent, necessary funds to procure an expert in questioned documents to counter the expert testimony of the state's witness.
In the state's case, defendant was accused of procuring a blank check of the lady for whom he was part-time yard man, after which he forced his niece to fill in the front of the check and write the employer's name on the signature line. After thus doing, he carried the check to a drug store and procured cash on it, then paying his niece $3. The niece testified to her participation in the crime. The lady who cashed the check at the drug store testified to his cashing it and receiving the proceeds. D. F. Clark, detective in the check forgery section, testified that he showed the check to appellant and appellant said it was given him by his employer, and that he endorsed and cashed it at the drug store. His employer denied writing the check, pointing out the glaring misspelling of her name. The handwriting expert was sure about some of the handwriting, but not positive as to part of it.
In considering the first assignment of error, that the court erroneously denied his motion for mistrial, we observe at the outset that it is apparent that, on voir dire of the jurors, appellant's attorney made some reference to the defendant's earlier involvement with law violations. With this statement, we quote lengthily from the record on which appellant bases prejudicial error in the trial.
Josephine Montgomery, appellant's niece, who wrote the front of the forged check, was testifying, when the following took place on direct examination:
(He was apparently satisfied all nodded yes.)
Motion for mistrial was made after lunch break, because of what Attorney Martz said, "Why did Bennie kill his wife?"
Martz explained it his way, and then the court polled the jurors on whether anybody talked or attempted to talk to them or if they overheard any remarks of attorneys or witnesses. None had.
When the state rested, defendant again moved for directed verdict which was overruled.
"I Would also renew our earlier motion for a mistrial on the grounds of introduction of evidence of a prior record of the defendant." (Emphasis added throughout).
Appellee contends that the statements as to appellant's violent actions and his imprisonment were voluntary, and were not responsive to the prosecuting attorney's questioning and that whether a mistrial will be ordered in such case is largely addressed to the court's discretion, and only when the court is of the view that, on account of such testimony, an impartial verdict could not be reached or a conviction would have to be reversed due to an overwhelming procedural error. Appellee cites, as authority, McNeal v. Hollowell, 481 F.2d 1145 (5th Cir. 1973), and 98 C.J.S. Witnesses § 353, p. 74 and 356, p. 79. It points out other authorities dealing with gratuitous remarks by prosecuting witnesses, these being from Louisiana. Appellee urges that the trial court was entirely correct in refusing mistrial on account of the unsolicited comment, which "if error at all, and appellee thinks it was not, surely it was harmless."
We strongly disagree. It is apparent that the state, resorting to the use of highly leading questions, was obviously undertaking to make clear to the jury:
( a) The fact of Josephine Montgomery's fear of defendant; and that this fear was generated by his acts of violence in damaging his sister's house - - - a likely criminal act in itself; and
(b) Defendant's criminal record, which was admissible only for impeachment purposes when and if he took the stand. Mississippi Code Annotated, sections 13-1-11, and 13-1-13 ...
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Havard v. State, No. 2006-DR-01161-SCT.
...the State must pay for an expert witness for an indigent defendant must be made on a case by case basis." Id. (quoting Davis v. State, 374 So.2d 1293, 1297 (Miss.1979)). However, Havard's reliance on Richardson is ¶ 18. Even if counsel had successfully procured an independent DNA expert and......
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Billiot v. State, 54960
...that the right to expert witnesses for defendant at the expense of the state has generally been denied. Id. at 822. In Davis v. State, 374 So.2d 1293 (Miss.1979), we concluded that the denial of an indigent defendant's request for expenses to hire a handwriting expert violated neither the U......
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Johnson v. State
...to the defense. Bullock v. State, 391 So.2d 601, 607 (Miss.1980); Tubbs v. State, 402 So.2d 830, 836 (Miss.1981). See Davis v. State, 374 So.2d 1293, 1297 (Miss.1979); Dufour v. State, 453 So.2d 337, 340-341 (Miss.1984). This Court has considered as a factor whether the State's case depends......
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Hansen v. State, 89-DP-0823
...accused have made such motions for some time now, and we initially responded with measured skepticism. See, e.g., Davis v. State, 374 So.2d 1293, 1297 (Miss.1979); and Bright v. State, 293 So.2d 818, 822 (Miss.1974). We recognized that there may be instances, when in fairness, the state sho......