Davis v. State, 54795

• Decision Date: 12 June 1985
• Docket Number: No. 54795,54795
• Citation: Davis v. State, 472 So.2d 428 (Miss. 1985)
• Parties: Stanley L. DAVIS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 428

472 So.2d 428

Stanley L. DAVIS v. STATE of Mississippi.

No. 54795.

Supreme Court of Mississippi.

June 12, 1985.

Rehearing Denied July 17, 1985.

Duncan Lott, Langston, Lott & Langston, Booneville, for appellant.

Bill Allain, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.

En Banc.

PRATHER, Justice, for the Court:

This is an appeal from a criminal conviction in the Circuit Court of Lee County, Neal Biggers presiding. Stanley L. Davis was convicted of manslaughter and sentenced to 18 years in the custody of the Mississippi Department of Corrections.

Davis appeals, assigning as error that the trial court erred in:

(1) Failing to sustain in its entirety the defendant's motion in limine concerning a phone call received by the wife of the victim from the wife of the defendant prior to the shooting.

(2) Allowing Officer Nicky Hall to testify concerning the failure of the defendant to give a statement after his arrest.

(3) Allowing the introduction of evidence and testimony by the state which was not provided to the defense in discovery.

(4) Permitting the testimony of Kim Barker who was present in the courtroom during previous testimony.

(5) Overruling the defendant's motion for directed verdict and peremptory instruction.

(6) Refusing the defendant's request to submit an instruction concerning the credibility of alleged accomplice Ray Alexander.

I.

On October 27, 1981, at approximately 10:30 p.m. appellant Stanley L. Davis went to Seay's Lounge located south of Baldwyn, Mississippi on Hwy. 45. Davis was accompanied by his stepson, Ray Alexander. Present at the lounge were the owner Wayne Watson and his wife Sue Watson, and customers Jimmy McMillan, Fay Lindley, Bobby Skaggs, Tim Hester and his brother.

Davis and Alexander played some pool with the Hesters. There was a disturbance between Davis and the Hester brothers, and the Hester brothers left the lounge. Sometime later, Davis played pool with Jimmy McMillan. Without provocation, Davis broke a pool cue over McMillan's back, then began hitting and kicking McMillan. Wayne Watson, the owner of the bar, broke up the fight by spraying mace in Davis' face. After Davis threw a cue ball at Watson, Watson pulled out a pistol and pointed it at Davis. Davis and Alexander then left the lounge in Davis' red Ford pickup.

Approximately one hour later, Sue Watson received a phone call at Seay's Lounge from Genelle Davis, wife of appellant. Following the phone conversation, Ms. Watson went to the front window of the lounge and observed appellant Davis in his red Ford pickup truck driving in front of the lounge and firing a pistol.

Five shots were fired through the front window of Seay's Lounge. One bullet struck Wayne Watson in the chest, piercing his lung and striking the aorta. Watson died shortly thereafter from massive hemorrhaging.

At trial, appellant denied any involvement in the shooting. Appellant Davis testified that, after leaving the lounge following his fight with McMillan, he and his stepson, Ray Alexander, went to the home of Davis' estranged wife. Inside the home, Davis located a 410 shotgun belonging to his stepson. However, Davis could not locate any shells so he left home without the weapon. Davis further testified that he and Alexander then went to his apartment. Benny King, a friend of appellant, was at the apartment. According to Davis, sometime between 11:00 and 12:00 p.m., Ray Alexander borrowed appellant's pickup truck in order to take King home. When Alexander returned, appellant got in his pickup and proceeded to drive towards his wife's house. Along the way, appellant was pulled over by the police and placed under arrest.

On the contrary, Ray Alexander, appellant's stepson, testified that when he and Davis left the home of appellant's wife, they proceeded to appellant's apartment where appellant got his own pistol. According to Alexander, they returned to Seay's Lounge, and appellant Davis, who was driving, fired the pistol into the lounge. Alexander admitted that in his two earlier statements to authorities he denied being present at the shooting.

No weapon was found on the appellant or in the appellant's truck. A 30-30 rifle was recovered from the apartment of Ray Alexander. Officers McMiller and Nicky Hall of the Lee County Sheriff's Department both testified that this rifle had dust in its barrel and could not have been recently fired. A crime lab ballistics test failed to positively identify the type of weapon used in the shooting.

II.

I. Did the trial court err in failing to sustain in its entirety appellant's motion in limine concerning a phone call from appellant's wife to the wife of the victim immediately prior to the shooting?

At the outset of the trial, the defense sought by motion in limine to exclude any testimony concerning a telephone conversation between appellant's estranged wife, Genelle Davis, and Sue Watson, the wife of the victim. The basis of the motion was the statutory incompetency of a spouse as a witness set forth in Miss Code Ann. Sec. 13-1-5. The trial court ruled that the state could bring out the fact of the telephone conversation but would not be allowed to go into the substance of the conversation.

Sue Watson's testimony at trial included the following:

Q. The phone rang and someone called, right?

A. True.

Q. Who was on the telephone?

A. Belle.

Q. And who is Belle?

A. Belle Davis.

Q. Is that Stanley Davis' wife?

A. Yes, sir.

Q. Okay, did you know her personally?

A. Yes, sir.

Q. And have you talked with her on the phone before?

A. Yes, sir.

Q. Okay, while you were on the phone with her, what happened?

A. If I can't tell you what she had warned me of,

BY MR. JOHN FARESE: Your Honor, we are going to object and move for a mistrial.

BY JUDGE BIGGERS:

Counselor, this witness evidently doesn't understand what she is allowed to testify to and what she cannot, do you need some time to instruct her some, we are getting into a very dangerous area.

BY MR. YOUNG: All right, let me talk to her for just a minute. I don't think she understands.

A. Yes, I think I do, continue on if you want to.

Q. You cannot tell,--

A. I can tell what I saw, is that true?

Q. You can tell what you saw, you can't tell what Belle told you over the telephone, you can tell anything you saw but anything outside if Stanley Davis wasn't present, it is hearsay so you can tell what happened while you were on the telephone, what you saw, who you saw, who was present and what happened.

A. I saw a red pickup, I saw like fire coming out of the end of a gun and the shots went right by me and one of them hit my husband and Stanley Davis was driving that red Ford Pickup.

Appellant contends that the admission of this testimony amounts to a violation of Miss.Code Ann. Sec. 13-1-5, which provides as follows:

Husbands and wives may be introduced by each other as witnesses in all cases, civil or criminal, and shall be competent witnesses in their own behalf, as against each other, in all controversies between them. Either spouse is a competent witness and may be compelled to testify against the other in any criminal prosecution of either husband or wife for a criminal act against any child, for contributing to the neglect or delinquency of a child, or desertion or nonsupport of children under the age of sixteen (16) years, or abandonment of children. But in all other instances where either of them is a party litigant the other shall not be competent as a witness and shall not be required to answer interrogatories or to make discovery of any matters involved in any such other instances without the consent of both. (Emphasis added).

With the exception of the class of cases enumerated in the statute, the prosecution is prohibited from calling a defendant's wife to testify against her husband without the consent of both spouses. Wallis v. State, 254 Miss. 944, 183 So.2d 525 (1966); Outlaw v. State, 208 Miss. 13, 43 So.2d 661 (1949). In Bayse v. State, 420 So.2d 1050 (Miss.1982), this Court noted that the statutory prohibition extends to the introduction of out-of-court statements made by the spouse. 420 So.2d at 1054.

Ford v. State, 218 So.2d 731 (Miss.1969) prohibits only testimony by a third party as to the substance of the party's conversation with a defendant's spouse and not testimony as to the fact that a conversation with the spouse took place. Mrs. Watson exceeded the trial court's ruling on appellant's motion in limine by her reference to "what she [appellant's wife] had warned me of ..." but did not delve into the substance of the telephone conversation.

In this Court's opinion, the admission of the testimony of Sue Watson regarding the phone call from appellant's wife was not prejudicial error requiring reversal under this Court's decision in Ford v. State, supra.

III.

Did the trial court err in allowing Officer Nicky Hall to testify concerning the failure of the appellant to give a statement to the authorities following his arrest.

During the state's redirect examination of Lee County Investigator Nicky Hall, the following colloquy took place:

Q. You were asked on cross examination if he indicated any knowledge of the shooting, did you ask him about the shooting at any time?

A. No, sir, not that night I didn't.

Q. The next day?

A. When I processed him, I gave him ample opportunity to give any type statement that he would like,--

BY MR. JOHN BOOTH FARESE: Your Honor, we object to that.

BY MR. JOHN FARESE: Your Honor, we object to that, he is not required to give any statement.

BY JUDGE BIGGERS: Objection sustained.

BY MR. YOUNG: Your Honor, the reason I asked him this question is that Mr. John Booth Farese brought this out on cross examination.

BY MR. JOHN FARESE: Your Honor, I am going to object to any argument in the presence of the jury, the law is plain on that and we move for a mistrial in addition to our objection.

BY JUDGE BIGGERS:

I think it was adequately covered on cross...