Davis v. State

• Decision Date: 17 August 1988
• Docket Number: No. 57732,57732
• Citation: 530 So.2d 694
• Parties: Eugene DAVIS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 694

530 So.2d 694

Eugene DAVIS v. STATE of Mississippi.

No. 57732.

Supreme Court of Mississippi.

Aug. 17, 1988.

Jack R. Jones, III, Taylor, Jones, Alexander, Greenlee, Seale & Ryan, Southaven, for appellant.

Edwin Lloyd Pittman and Mike Moore, Attys. Gen. by Deirdre D. McCrory, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before DAN M. LEE, P.J., and PRATHER and ZUCCARO, JJ.

ZUCCARO, Justice, for the Court:

INTRODUCTION

The appellant, Eugene Davis, was indicted as a habitual offender pursuant to Miss. Code Ann. Sec. 99-19-83 (1972) on the charge of armed robbery by the DeSoto County Grand Jury.

On November 18th and 19th, 1985, the appellant was tried before a jury and convicted. He was sentenced to life without parole in the custody of the Mississippi Department of Corrections. From that conviction and sentence Davis appeals.

STATEMENT OF FACTS

On May 13, 1984, John Ervin, Jr. (John), his wife, Mary Ann Ervin (Mary Ann), and their six children were returning to their home in Memphis, Tennessee after having traveled to Tutwiler, Mississippi, to attend church at Faith Temple where John was the pastor. The family was traveling north on Highway 61 in their station wagon. A Cadillac passed the Ervins' station wagon at a high rate of speed.

Several minutes later, John and Mary Ann drove past the Cadillac which had been driven off in a ditch. The Ervins turned around and went back to offer the driver of the car assistance. John Ervin got out of the car and approached the Cadillac in which Eugene Davis, the appellant, and George Eubanks, Jr. were riding.

After efforts to remove the Cadillac from the ditch failed, the Ervins agreed to give the appellant and Eubanks a ride to Eubanks' girlfriend's house in Memphis, Tennessee. On the way to Memphis, Ervin stopped at a store with a telephone so Eubanks could phone his girlfriend. The appellant got out of the car first. Appellant was riding in the front passenger seat with Eubanks and John Ervin. Mary Ann saw a gun in appellant's possession. Mary Ann screamed, "Honey he has a gun!" The gun was aimed at John. John reached across to grab the gun and said the words, "Satan, in the name of Jesus, I bind you." The appellant pulled the trigger but the gun misfired. Eubanks was attempting to force the rest of the family out of the station wagon. John started throwing rocks at Davis to prevent Davis from shooting him. Davis fired the gun two more times but it misfired both times. John, Mary Ann and the four oldest children had gotten out of the car when Eubanks and Davis got into the car and began driving off. Mary Ann realized that the two youngest children were still in the car. She began screaming so Davis stopped the car to allow Mary Ann to get the younger children out of the automobile. After Mary Ann rescued the children, Davis and Eubanks drove off in the Ervins' station wagon.

The Ervins called the highway patrol and told the highway patrol that their car had been stolen at gun point by the two men. The Ervins told the law enforcement officials where the stalled Cadillac was located. The Ervins' car was discovered three days later in Memphis. When the station wagon was returned, all of the Ervins' property had been removed.

On August 28, 1985, Eugene Davis was indicted as an habitual offender pursuant to Miss. Code Ann. Sec. 99-19-83 (1972) by the DeSoto County Grand Jury for the crime of armed robbery as defined by Miss. Code Ann. Sec. 97-3-79 (1972). From said conviction and sentence, Eugene Davis appeals.

I. DID THE TRIAL COURT ERR IN REFUSING TO GRANT A MISTRIAL?

During voir dire of the prospective jury panel, one prospective juror asked in the presence of the other jurors if it was true that even if the defendant was sentenced to life he would actually only serve five or six years. The counsel for the defense objected. The judge instructed the jury to disregard the question. The defense moved for a mistrial arguing that the question tainted the remainder of the panel by implying that the defendant would get out of jail rather than actually serving a life sentence. The court overruled the motion for a mistrial.

The appellant argues on appeal that the trial court erred in failing to quash the jury panel and in failing to grant a mistrial.

Elementary to all trial proceedings is the proposition that the occurrence of any prejudicially incompetent matter or misconduct before a jury, the damaging effect of which cannot be removed by admonition or instructions, necessitates a mistrial. Smith v. State, 198 So.2d 220, 223 (Miss.1967); Buchanan v. State, 204 Miss. 304, 37 So.2d 318 (1948). However, it is the well established rule in Mississippi that where a trial judge sustains an objection to testimony interposed by the defense in a criminal case and instructs the jury to disregard it, the remedial acts of the court are usually deemed sufficient to remove any prejudicial effect from the minds of jurors. Forrest v. State, 352 So.2d 1328 (Miss.1977); Herron v. State, 287 So.2d 759 (Miss.1974); Myrick v. State, 290 So.2d 259 (Miss.1974). The jury is presumed to have followed the directions of the trial judge. Evans v. State, 422 So.2d 737, 744 (Miss.1982); Hughes v. State, 376 So.2d 1349 (Miss.1979); Gray v. State, 375 So.2d 994 (Miss.1979); Duke v. State, 340 So.2d 727 (Miss.1976).

We held in Schwarzauer v. State, 339 So.2d 980, 982 (Miss.1976), "trial judges are peculiarly situated so as to decide (better and more logically than anyone else) when a trial should be discontinued." We further stated, "We recognize that the fair and orderly administration of justice requires that trial judges must have reasonable discretion in dealing with errant jurors who demonstrate their unwillingness to abide by the instructions of the court, or other unanticipated occurrences which transpire during trials." Id.

A proper objection was made by the defense whereupon the judge instructed the jury to disregard the statement. This assignment of error is without merit.

II. DID THE TRIAL COURT ERR IN OVERRULING THE APPELLANT'S MOTION FOR A MISTRIAL WHEN A WITNESS TESTIFIED ABOUT OTHER CRIMES COMMITTED BY EUGENE DAVIS?

John Ervin was called by the State as a witness. During his testimony, Ervin testified that all of the family's personal property was stolen from the car. The prosecutor asked what property was removed and the defense counsel objected. The judge sustained the objection but refused to admonish the jury by saying, "It's not before the jury at this time." The defense then moved for a mistrial which was overruled. The appellant argues that the mention of property being stolen from the car was improper use of other crimes evidence requiring reversal.

Mississippi follows the general rule that proof of a crime distinct from that alleged on the indictment should not be admitted in evidence against the accused. Eubanks v. State, 419 So.2d 1330, 1331 (Miss.1982); Loeffler v. State, 396 So.2d 18 (Miss.1981); Massey v. State, 393 So.2d 472 (Miss.1981). However, there are certain well established exceptions to this rule. Where the other crime admitted into evidence is connected with the one charged in the indictment, and proof of such other crime sheds light upon the motive of the defendant for the commission of the crime charged in the indictment, or where the fact of the commission of such other crime forms a part of a chain of facts so intimately connected that the whole must be heard in order to interpret its general parts, then evidence of other crimes is admissible. Tanner v. State, 216 Miss. 150, 157, 61 So.2d 781, 784 (1953).

The trial judge committed no error because the other crimes mentioned were part of the res gestae of the crime in the appellant's indictment and therefore admissible. ¹ This assignment of error is without merit.

III. WAS THE ADMISSION OF TESTIMONY DESCRIBING A PHOTOGRAPHIC LINE-UP REVERSIBLE ERROR?

On direct examination, the prosecutor asked John Ervin whether he could identify the "taller of the two men" who had robbed his family on May 13. Ervin said, "yes, sir" and indicated Eugene Davis, the appellant.

The State then called Jay Clark, an investigator for the Highway Patrol Criminal Investigation Bureau, to the stand who testified that he had conducted a photographic spread in the presence of the Ervins. He testified that the photographs were of seven black males approximately the same age and size. He also testified that both John and Mary Ann Ervin had identified Eugene Davis in the photo spread while they were separated from each other.

The defense objected on grounds that the testimony improperly bolstered the previous in-court identification of Eugene Davis. The objection was overruled. At the conclusion of Clark's testimony, the State attempted to offer the photographs into evidence, the defense objected because the spread was not produced by the State during discovery. The court excluded the spread because it was not produced before trial and was therefore a violation of Criminal Rules of Procedure, Rule 4.06. The appellant argues that the testimony discussing the photographic spread was inadmissible since the spread itself was inadmissible.

In Hall v. State, 490 So.2d 858 (1986), the State failed to disclose shaving equipment found in the defendant's possession and the trial court excluded the evidence. However, testimony was admitted referring to the shaving equipment. The court did not reverse because defense counsel did not avail himself to the procedures outlined in Box v. State, 437 So.2d 19 (Miss.1983).

Similarly, in the case sub judice, the appellant failed to follow the procedure set forth in Box v. State, 437 So.2d 19, 22-26 (Miss.1983) which are:

(1) Upon the defense's objection, the trial court should give the defendant a reasonable opportunity to become familiar with the undisclosed evidence by interviewing the witness, inspecting the physical evidence, etc.

(2) If after this opportunity for...