Herring v. State, 57455

• Decision Date: 16 March 1988
• Docket Number: No. 57455,57455
• Parties: Earnest HERRING v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 745

522 So.2d 745

Earnest HERRING v. STATE of Mississippi.

No. 57455.

Supreme Court of Mississippi.

March 16, 1988.

Rehearing Denied April 20, 1988.

Davey L. Tucker, Jackson, for appellant.

Edwin Lloyd Pittman and Mike Moore, Attys. Gen. by Pat Flynn, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before DAN M. LEE, P.J., and SULLIVAN and ANDERSON, JJ.

SULLIVAN, Justice, for the Court:

Earnest Herring was convicted of the forcible rape of N.K. and sentenced to thirty (30) years in the custody of the Department of Corrections. Herring appeals and assigns the following errors:

I. The trial court abused its discretion when it refused to grant Appellant a mistrial because the prosecutor's improper closing arguments violated Mississippi law and Appellant's rights to fundamental fairness and freedom from an arbitrary and prejudicial argument pursuant to the Mississippi Constitution, Article III, Sections Fourteen, Twenty-six, and Twenty-eight, and the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution;

II. The trial court erred by overruling Appellant's motion to suppress his statements;

III. The State is estopped from introducing into evidence the statements of Appellant for failure to comply with Rules 1.03, 1.04, 1.05, and 1.07 of the Mississippi Uniform Criminal Rules of Circuit Court Practice; and

IV. The evidence presented by the State is legally insufficient to support the verdict of guilt, the verdict of the jury evinces prejudice, and the verdict is against the overwhelming weight of the evidence and is contrary to the law in this case.

I.

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT REFUSED TO GRANT APPELLANT A MISTRIAL BECAUSE THE PROSECUTOR'S IMPROPER CLOSING ARGUMENTS VIOLATED MISSISSIPPI LAW AND APPELLANT'S RIGHTS TO FUNDAMENTAL FAIRNESS AND FREEDOM FROM AN ARBITRARY AND PREJUDICIAL ARGUMENT PURSUANT TO THE MISSISSIPPI CONSTITUTION, ARTICLE III, SECTIONS FOURTEEN, TWENTY-SIX, AND TWENTY-EIGHT, AND THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

During the closing argument the following exchange took place:

BY MR. PETERS:

And, so, the question comes down--just as I asked you on the opening day of this trial--can you put race aside? Can you white members vote for a fair verdict? Can you black members vote for a fair verdict? You and I know there are people in this county and this state and this city that would say--you are wasting your time. You can't have a jury with eight black people that are gonna vote for life for a black person raping a white person. Time will tell.

No matter if you've got his fingerprints all over the house. No matter if she's beaten. No matter if her vagina is bruised and torn. No matter if her room is torn up. No matter if her door is forced open. You just can't get any black people who are gonna vote for life against a black defendant who does that to a white person, You are not--

BY MR. TUCKER:

(Interposing) We are gonna object to this line of questioning as being prejudicial to the defendant. It's improper closing argument.

BY THE COURT:

Sustained. (Emphasis added).

After the objection and ruling the district attorney continued his argument. At the conclusion of his argument defense counsel moved for a mistrial stating:

BY MR. TUCKER:

Your Honor, the defendant moves for a mistrial at this time based upon improper closing arguments by the prosecutor.

BY THE COURT:

Motion denied.

BY MR. TUCKER:

Specifically the comments concerning the blacks--that they would have to vote against a black.

BY THE COURT:

Motion denied.

Herring contends that the prosecutor's remarks "constituted a personal attack upon the credibility of the black jurors." Herring argues that the objection was properly made and pursuant to Johnson v. State, 477 So.2d 196, 210 (Miss.1985), the trial judge had the duty to admonish the jury. While recognizing that a great deal of freedom is given to attorneys during closing argument, Herring contends that the prosecutor's argument was clearly outside the facts in evidence and reasonable and fair deductions which could be drawn from those facts, and therefore denied him a fair trial.

We have reversed a number of cases in which prosecutors introduced race in closing arguments. Reed v. State, 232 Miss. 432, 99 So.2d 455 (1958); Harris v. State, 209 Miss. 141, 46 So.2d 91 (1950); Funches v. State, 125 Miss. 140, 87 So. 487 (1921); and Hardaway v. State, 99 Miss. 223, 54 So. 833 (1911).

In Hickson v. State, 472 So.2d 379 (Miss.1985), we said:

This right of one criminally accused to a fair trial is a "fundamental liberty" secured to the accused by the Fourteenth Amendment to the Constitution of the United States. Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 1692-93, 48 L.Ed.2d 126, 130 (1976); Drope v. Missouri, 420 U.S. 162, 172, 95 S.Ct. 896, 904, 43 L.Ed.2d 103, 113 (1975). We have in a variety of contexts condemned conduct by the prosecuting attorneys that has substantially deflected the jury's attention from the issues it has been called up to decide, that interjects appeals to bias, passion or prejudice. Where such conduct is so substantial that the accused's right to a fair trial is substantially impaired, the trial judge should declare a mistrial. See Rule 5.15, Unif.Crim.R.Cir.Ct.Prac. Where the trial judge has abused his discretion in such matters, we unhesitatingly reverse. See, e.g., Acevedo v. State, 467 So.2d 220, 226 (Miss.1985) (prosecutor's conduct amounting to interference with administration of justice); Smith v. State, 457 So.2d 327, 333-36 (Miss.1984) (insinuating criminal conduct unsupported by any proof); Wiley v. State, 449 So.2d 756, 762-763 (Miss.1984) (improper argument to jury regarding possibility of parole); Wilson v. State, 433 So.2d 1142, 1145-46 (Miss.1983) (improper comment on defendant's failure to testify); Howell v. State, 411 So.2d 772, 773-77 (Miss.1982) (telling jury that their verdict was not final was error); Stewart v. State, 263 So.2d 754, 756-58 (Miss.1972) (insinuating crimes without any proof); Wood v. State, 257 So.2d 193, 199-200 (Miss.1972) (insinuating immorality improper).

Hickson, 472 So.2d at 384.

The prosecutor's argument was improper. In 1906 we addressed a prosecutor's inflammatory argument regarding a defendant's race and reversed a murder conviction stating:

Mulattoes, negroes, Malays, whites, millionaires, paupers, princes, and kings, in the courts of Mississippi, are on precisely the same exactly equal footing. All must be tried on facts, and not on abuse. Only impartial trials can pass the Red Sea of this court without drowning. Trials are to vindicate innocence or ascertain guilt, and are not to be vehicles for denunciation.

Hampton v. State, 88 Miss. 257, 259, 40 So. 545, 547 (1906).

An unbroken line of cases from this Court stands for the proposition that racial appeals are not proper closing argument. See Hampton v. State, supra; Reed v. State, 232 Miss. 432, 99 So.2d 455 (1958); Harris v. State, 209 Miss. 141, 46 So.2d 91 (1950); Herrin v. State, 201 Miss. 595, 29 So.2d 452 (1947); Funches v. State, 125 Miss. 140, 87 So. 487 (1921); Moseley v. State, 112 Miss. 854, 73 So. 791 (1916); and Collins v. State, 100 Miss. 435, 56 So. 527 (1911). Although the aforementioned cases deal with prosecutor's urging convictions because of the defendant's race, they clearly illustrate this Court's attitude toward arguments which inject this volatile issue into criminal trials. In Moseley v. State, this Court stated, "This injection of race question into court trials has been uniformly condemned by this Court." Moseley, 112 Miss. at 858, 73 So. at 792.

When the improper remarks were made defense counsel objected and the objection was sustained. The sustaining of the objection coupled with the fact that the jury, which consisted of eight black citizens, apparently ignored the racially based argument and did not return a life sentence against Herring, and the overwhelming evidence of Herring's guilt of the crime of forcible rape is enough to prevent this highly improper argument from causing a reversal of this conviction.

We wish to point out however that even though defense counsel did not request that the jury be instructed to disregard the inflammatory argument the jury apparently did so. However, in such circumstances it is incumbent upon the trial judge, to act sua sponte and instruct the jury to disregard improper remarks. Collins v. State, 100 Miss. 435, 56 So. 527 (1911). We draw the attention of the trial judges of this State to the eloquent language of Justice McLean in Collins v. State, where he said:

The simple fact that the trial judge, occupying, as he does a position of great power and influence, fails to interpose when a damaging statement is made in his presence, and before and to the twelve men who are trying the cause, is sub silentio an indorsement of the statement--at least, a seeming one. Violators of the criminal laws should be vigorously prosecuted, but there is a vast difference between legitimate prosecution and appealing to race prejudice and to the popular clamor.

Collins v. State, 100 Miss. at 441-42, 56 So. at 528-29.

We further note our firm conviction that appeals to racism in any of its forms have no place in the courtroom of this State. We uniformly condemn and roundly denounce such scurrilous tactics.

A detailed recital of the facts of this case is unnecessary. However, on the record before this Court the evidence of the guilt of the defendant is so overwhelming that we are satisfied beyond every reasonable doubt that no jury, no matter its makeup, could have reached any other result but that the defendant, Earnest Herring, was guilty beyond a reasonable doubt of the forcible rape of N.K.

For the reasons set out above the improper remarks of the district attorney in closing argument while utterly reprehensible, are insufficient to cause a reversal of this conviction and sentence.

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