Henderson v. State, 52804
| Decision Date | 09 September 1981 |
| Docket Number | No. 52804,52804 |
| Citation | 403 So.2d 139 |
| Parties | Gable HENDERSON v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
W. E. McLellan, III, Jackson, for appellant.
Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
The appellant was charged, along with his twin brother, Michael Henderson, with the armed robbery of the Save Chief, No. 6, Service Station at the intersection of Old Canton Road and Charity Church Road, in Madison County, Mississippi, which was robbed on the night of January 12, 1980. Approximately $2,500 in cash and coins was taken in the robbery.
The appellant, Gable Henderson, and his twin brother, Michael Henderson, were indicted in May, 1980, for the armed robbery by a grand jury convened by the Madison County Circuit Court.
The appellant, Gable Henderson, was granted a severance. Thereafter, his twin brother, Michael Henderson, was tried and convicted for his part in the robbery at the June 1980 Term of the Madison County Circuit Court. The appellant was tried and convicted on September 15, 16, 1980. The jury being unable to agree on his punishment, the trial judge imposed a twenty-five year sentence. His motion for a new trial was promptly overruled, and, feeling aggrieved, he prosecutes this appeal. We reverse and remand for a new trial.
The appellant assigns as error that "The lower court erred in not sustaining appellant's motion for a mistrial requested when the State improperly attempted to impeach defense witnesses, Ricky Scott and co-indictee, Michael Henderson, by bringing out highly prejudicial facts about each witness under the guise of impeachment, when impeachment on the facts sought to be elicited was improper."
The appeal presents the question of whether the lower court should have declared a mistrial when the defendant's witness, Ricky Scott, was improperly asked on cross-examination by the district attorney whether he had been indicted for burglary. The witness had previously answered, "No," on direct examination to the question by his attorney, "Have you ever been convicted of a felony?" Also presented is the impropriety of the district attorney inquiring, on cross-examination, of co-indictee, Michael Henderson, if the jury had convicted him for the same offense of armed robbery for which the defendant was being tried. Before an objection could be interposed, the witness answered, "Yea, because of you...."
Objections and motions for a mistrial were immediately and timely made in both instances and the errors properly preserved.
In each instance, the trial judge very properly sustained the objection but overruled the motions for a mistrial, and in lengthy statements admonished the jury to disregard the improper questions asked by the district attorney and the answers thereto.
In most cases, when an objection is made to improper questions by a district attorney and the court sustains the motion and admonishes the jury to disregard the improper questions and evidence, we have held that any prejudice created by the questions was cured and the trial court properly overruled the motion for a mistrial. Reid v. State, 266 So.2d 21 (Miss. 1972); Thomas v. State, 285 So.2d 148 (Miss. 1973). However, in the final analysis, each case must be decided on its own peculiar facts. If the only error presented in this case was that the district attorney had inquired of the defense witness, Ricky Scott, whether he had been indicted by the grand jury for the burglary of a dwelling house, we would probably hold that the court's admonishment to the jury to disregard such statement cured any prejudice caused by the question, even though we have stated many times that similar questions by a district attorney were improper. In Haralson v. State, 314 So.2d 722 (Miss. 1975), this Court stated:
The defendant had every opportunity to discredit the witness Watkins, and the fact that the witness was charged, or thought to be guilty, of other crimes for which he had not been tried, (was) not competent evidence to further impeach the state's witness. A witness may be examined as to his interest in the case on trial or his former convictions of crime by the authority of Mississippi Code Annotated Section 13-1-13 (1972) ... but he cannot be questioned as to mere charges of the commission of offenses.... Moreover, the witness may not be asked nor proof made of the details of an alleged crime said to have been committed by the witness sought to be impeached. (314 So.2d at 723-24).
We doubt very seriously whether there is a district attorney in the State who does...
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Randall v. State, No. 1999-DP-01426-SCT.
...level of reversible error. See Buckley v. State, 223 So.2d 524 (Miss.1969); McCray v. State, 293 So.2d 807 (Miss. 1974); Henderson v. State, 403 So.2d 139 (Miss.1981); Johns v. State, 592 So.2d 86 (Miss.1991). We have stated the reasoning behind this rule as [once a jury is apprized of the ......
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...the defense, and the state had brought it out on cross-examination. See Warren v. State, 407 So.2d 100 (Miss.1981); and Henderson v. State, 403 So.2d 139 (Miss.1981). The state's questioning of Tucker, a state witness, about his conviction of manslaughter was not altogether a one way street......
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