Henry v. State

• Decision Date: 17 April 1967
• Docket Number: No. 42652,42652
• Citation: 198 So.2d 213
• Parties: Aaron HENRY v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 213

198 So.2d 213

Aaron HENRY v. STATE of Mississippi.

No. 42652.

Supreme Court of Mississippi.

April 17, 1967.

Suggestion of Error Overruled May 15, 1967.

Jack H. Young, Jackson, Frank D. Reeves, Washington, D.C., Robert L. Carter and Barbara A. Morris, New York City, Raymond Brown, Jersey City, N.J., for appellant.

Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.

RODGERS, Justice:

In response to the request of the Supreme Court of the United States given to us in Henry v. State of Mississippi, 379 U.S. 443, 446, 85 S.Ct. 564, 566, 13 L.Ed.2d 408 (1965), returned to this Court by an opinion in which the Supreme Court said: 'We vacate the judgment of conviction and remand for a hearing on the question whether the petitioner is to be deemed to have knowingly waived decision of his federal claim when timely objection was not made to the admission of the illegally seized evidence', we now make the following report.

A hearing has been held; a record has been made, and from the entire record of the proceedings in this case, we have reached the conclusion that the defendant, Aaron Henry, and his attorneys, did knowingly and consciously waive objection to the testimony obtained by the search of his automobile. With the permission of his wife, as to his rights under the Mississippi Constitution and the Constitution of the United States.

A brief review of the history and proceedings of the Henry case, which began as an ordinary misdemeanor proceeding in a justice of the peace court, but which has now become a national issue upon the question of state judicial proceedings, may be helpful in understanding the posture of the case as it now exists.

The defendant Henry was convicted in the Justice of the Peace Court of Bolivar County, Mississippi, upon a charge of disorderly conduct. The case was appealed to the country court, and tried de novo. The defendant was again convicted, and from this conviction, he appealed to the circuit court upon the record made in the county court. The circuit court affirmed the judgment of the county court, and defendant appealed to the Supreme Court of Mississippi. In this Court, it was discovered that certain evidence against the defendant was obtained by an officer who was permitted to look into the locked automobile belonging to the defendant while it was at rest in his front yard, at a time when the officer did not have a search warrant and did not have permission of the defendant. We were of the opinion that this testimony was illegally obtained. At that time, Mississippi had a procedural rule requiring that one who desired to object to the introduction of illegally obtained testimony must do so at the time when the tainted testimony was offered in evidence. We did not find in the record that the defendant or his attorneys offered any objection to this testimony, during or after the trial, but we were of the opinion that his attorneys were out-of-the-state lawyers who did not know procedural requirements in the trial of cases in this State; therefore, in an effort to give the defendant a full and fair hearing, we entered an opinion reversing the case for a new trial. On Suggestion of Error, however, it was determined that the defendant was not only represented by out-of-state lawyers but also by competent local attorneys. Moreover, the prosecution offered in its Suggestion of Error to dismiss the charge against the defendant, if the attorneys for the defendant would file an affidavit stating that they were unaware that they were required to object to the introduction of inadmissible evidence at the time it was offered. No such affidavit was filed, and being of the opinion that it was necessary in the prosecution of cases to have some sort of procedure by which cases could finally be determined, we withdrew the first opinion and entered an opinion and order affirming the conviction of the defendant. It was obvious to this Court at the time that in fact no objection was made to the testimony at any time during the trial, and therefore if the attorneys were aware that it was necessary to object to the testimony in the defense of their client, they obviously for some reason, did not want to make an objection to the introduction of the evidence during the trial, and thus could not be heard to object on appeal to this Court.

The record will reflect (and it is admitted) that neither the defendant nor his attorneys made any objection to the introduction of the tainted evidence at any time before or at the time the testimony was offered by the prosecution. Moreover, the defendant's attorneys cross-examined the witness fully on this evidence so as to bring out all matters with reference to the search of defendant's automobile. It was not until after the State had concluded its case that attorneys for the defendant indicated that they were in any respect unhappy with the evidence as to the search of the automobile, and then no motion was made to exclude the evidence, nor in any manner was objection made to its introduction. They only requested that the defendant be discharged and acquitted, because, they contended, the State had not made out its case. The attorney for the defendant made the following motion:

'We're going to make a motion, your Honor, for a directed verdict. We are going to base our motion on several grounds. * * * Secondly, we contend that the warrant having been issued and the testimony of this Mr. Collins on the stand to the effect that after he had placed this man under arrest, he then proceeded to go and search his car, and clearly this is in violation of his rights under the Fourth Amendment, and it is unlawful search and seizure so the evidence that they have secured against this defendant is illegal and unlawful.' (Emphasis supplied.)

It was obvious to us that the foregoing motion was not a motion to exclude the evidence, but rather was an argument to the court that the evidence as a whole in the case did not make out a case against the defendant, assuming the evidence was inadmissible. It is simply a motion for a directed verdict.

When the testimony for the State and for the defendant had been concluded, one of the attorneys for the defendant again made a motion. He said:

'Your Honor, at this time at the close of the case we want to make a motion for a directed verdict. We base it on the grounds and the reasons which we set forth in our motion for a directed verdict at the close of the State's case. We make it now at the close of the entire case on those grounds and on the grounds that the evidence has not shown beyond any reasonable doubt under the law that the defendant is guilty of the charge. We therefore make a motion for a directed verdict at this time.' (Emphasis supplied.)

Here again, it will be noted that the defendant's attorneys made no motion to exclude the testimony with reference to the search of defendant's automobile, nor did he request that the court exclude the evidence and direct the jury that the evidence had been excluded. He simply made a motion for a directed verdict of acquittal. The trial court had two alternatives. The judge could have sustained the motion and discharged the defendnat, or he could have overruled it. He overruled the motion.

After the jury had returned the verdict, the defendant made a motion for a new trial. The attorneys sought a new trial upon the ground, among others, that '(T)he court erred in overruling defendant's motion for a directed verdict after the State had rested its case.' (Emphasis supplied.) Here again, there is no motion or suggestion that the court should have excluded the evidence with reference to the search of defendant's automobile, but rather, that the trial court should have directed a verdict in favor of the defendnat. There was no objection to the evidence complained of by the defendant or motion to exclude it from the consideration of the jury at any place in the record during the trial or at any other time.

The Supreme Court of the United States, in its opinion in the Henry case, however, said:

'But on the record before us it appears that this purpose of the contemporaneous-objection The trial court obviously thought that there was sufficient evidence to go to the jury and to affirm the verdict. We certainly thought there was sufficient evidence to sustain a jury conviction. A trial judge in Mississippi cannot instruct the jury on any subject except at the request, in writing, of the parties. The pertinent part of Mississippi Code Annotated section 1530 (1956) is as follows:

rule may have been substantially served by petitioner's motion at the close of the State's evidence asking for a directed verdict because of the erroneous admission of the officer's testimony. For at this stage the trial judge could have called for elaboration of the search and seizure argument and, if persuaded, could have stricken the tainted testimony or have taken other appropriate corrective action. For example, if there was sufficient competent evidence without this testimony to go to the jury, the motion for a directed verdict might have been denied, and the case submitted to the jury with a properly worded appropriate cautionary instruction.' 379 U.S. at 448, 85 S.Ct. at 568. (Emphasis supplied.)

'The judge in any cause, civil or criminal, shall not sum up or comment on the testimony, or charge the jury as to the weight of evidence; but at the request of either party he shall instruct the jury upon the principles of law applicable to the case.'

If the trial judge were to interpose an objection to evidence on behalf of the defendant in criminal cases, he would often severely interfere with the defendant's counsel in his effort to develop trial strategy and would possibly do defendant more harm than good. We pointed out in Henry v. State, 253 Miss. 263, 285, 174 So.2d 348, 350 (1965): 'However, the trial judge could have stricken the evidence and...