Davis v. State

Citation374 So.2d 1293
Decision Date19 September 1979
Docket NumberNo. 51377,51377
PartiesBennie DAVIS v. STATE of Mississippi.
CourtUnited 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.


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:

"And he (appellant) had some blanks and asked me to fill out one."

"And what did you do?"

"I did it."

"Why did you do it?"

"I was scared of him. I had saw him in some acts of violence. I had seen him sometimes when he broke out my mother's windows and kicked the door in."

BY MR. BELL: "Your Honor, I object to this."

BY THE COURT: "Just a minute. The jury will disregard any testimony of this witness in regard to any other possible criminal acts."

"Okay. Now, why did you make that check out to Bennie Davis?"

"I was scared of him. When he first got out of prison, we were all glad to see him and stuff."

BY MR. BELL: "We again object to this testimony, Your Honor."

BY THE COURT: "Yes, the jury will disregard the last remark that the witness made in reference to other previous charges."

BY MR. BELL: "At this time, Your Honor, I will have to move for a mistrial because of the statement that the witness has made."

BY THE COURT: "Motion overruled."

"Do you know where he cashed that check, please, ma'am?"

"He had said he was going to the bank to the bank."

"Did he say why he didn't want to go to the bank, please ma'am?"

"Yes, sir. When he was in Parchman, they gave him "

BY MR. BELL: "Again, Your Honor, we object and move for a mistrial."

BY THE COURT: I am going to ask the jury to step in the jury room." (Jury out). "All right, Mr. Bell."

BY MR. BELL: "Your Honor, I am forced under the circumstances to move for an immediate mistrial on the grounds that the witness has referred to the defendant, Bennie Davis, getting back from Parchman. An objection was made . . . ."

BY THE COURT: "(Interposing) Her statement was on getting out of prison."

BY MR. BELL: "Getting out of prison, yes, and an objection was made and the Court instructed the jury to disregard the statement of the witness and you overruled that and now she has repeatedly said that. This jury has been tainted irreparably and the very fact that I have had to make an objection as reason for a mistrial has surely tainted this jury. At this point, after the witness has been instructed not to testify about that, I have no choice but to move for a mistrial immediately."

BY MR. MARTZ: "Your Honor, if I may, please. First of all, this witness has the right to state why she went ahead and did certain things and to cut off this witness from stating that this defendant had put her in some fear of her life, her child's life or whatever, would cut this witness off from telling her story in our search for truth. Secondly, the words that he did not want to go to the bank because he had a Parchman ID, which was what she was getting at, are words that he used. That's why he did not want to go to the bank. Now, to say that this witness cannot repeat the words that this defendant used in the furtherance of this crime would be prejudicial to the State and also to the rights of this witness to tell her story, Your Honor."

BY MR. BELL: "Your Honor, by the argument that the prosecution has just made, I say that there has been an intentional act to bring this witness in here to prejudice this defendant before the jury before the proper time. He asked this question specifically and, by the answer he was expecting, I think it's obvious to the Court and everyone else that he intended for this witness to say that he had a Parchman ID and didn't want to go to the bank and that was an intentional act on the part of the prosecution and that is further grounds for an immediate mistrial, Your Honor."

BY THE COURT: "Which exception are you referring to, Mr. Martz? I want to make sure I understand."

BY MR. MARTZ: "Which what?"

BY THE COURT: "Which exception?"

BY MR. MARTZ: "I am referring to both of them, Your Honor."

BY THE COURT: "Well, it's a general rule that it cannot be brought out about other crimes on the part of the defendant."

BY MR. MARTZ: "There hasn't been any other crimes brought out."

BY THE COURT: "He didn't go to Parchman as a guard, did he, Mr. Martz?"

BY MR. MARTZ: "Well, no, Your Honor, he didn't, but he didn't go for a specific crime. If I was to argue to the jury, what crime would I argue to the jury even though he has been convicted. There has been no evidence of any specific crime."

BY MR. BELL: "But it's purposely elicited testimony that this man had been to Parchman and it has been brought out after you have already sustained the motion to strike that sort of testimony. It was purposely elicited, Your Honor."

BY THE COURT: "I am accepting the fact that Mr. Martz did not deliberately do so but the first time she used prison and I felt that . . . .

BY THE COURT: ". . . and I was under the opinion at that time when she referred to prison that the jury could relate it to the statements made in voir dire to them by the defense attorney that the defendant had convictions or I believe it was convictions but that he had been in trouble with the law for drunkenness. The use of the word Parchman raises another problem. I intend to instruct the jury to disregard it. The motion for a mistrial will be overruled. Bring the jury back in.

BY THE COURT: "Members of the jury, This witness has inadvertently stated or referred to the fact that, when her uncle got out of prison and got out of Parchman this is inadmissible evidence and is not to be considered by you in determining the guilt or innocence of Mr. Davis on this particular charge that he is standing trial for today. Do each of you tell me that you can set that aside and erase that from your mind as far as deliberation on this particular charge? I would like to see an affirmative nod of the head from all of you."

(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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21 cases
  • Havard v. State, No. 2006-DR-01161-SCT.
    • United States
    • Mississippi Supreme Court
    • May 22, 2008
    ...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......
  • Billiot v. State, 54960
    • United States
    • Mississippi Supreme Court
    • June 6, 1984
    ...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......
  • Johnson v. State
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    • May 18, 1988
    ...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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