Hines v. State, 49376
| Decision Date | 02 November 1976 |
| Docket Number | No. 49376,49376 |
| Citation | 339 So.2d 56 |
| Parties | Lawrence G. HINES v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Joseph M. Stinson, Tylertown, for appellant.
A. F. Summer, Atty. Gen. by Vera Madel Speakes, Sp. Asst. Atty. Gen., and Karen Gilfoy, Asst. Atty. Gen., Jackson, for appellee.
Before PATTERSON, P.J., and SUGG and WALKER, JJ.
SUGG, Justice, for the Court:
This is an appeal from the Circuit Court of Walthall County. Defendant, Lawrence G. Hines, was tried and convicted of armed robbery and sentenced to serve a term of life imprisonment in the Mississippi State Penitentiary.
On the evening of June 11, 1974, three black men entered Webb's Grocery in Lexie, Mississippi, armed with a pistol. The men held the proprietors of the store, Mr. and Mrs. Webb, at gunpoint before leaving with an undetermined amount of cash and valuables. Defendant's conviction was based entirely on the Webb's identification of the defendant as one of the robbers. Several issues raised by the defendant merit discussion.
Defendant's first assignment of error concerns the following remarks made at defendant's trial by the assistant district attorney during voir dire of the jury, Counsel for the defense immediately objected and moved for a mistrial. The motion was overruled and the defendant did not testify.
Mississippi Code Annotated section 13-1-9 (1972), reads as follows:
The accused shall be a competent witness for himself in any prosecution for crime against him. The failure of the accused, in any case, to testify shall not however operate to his prejudice or be commented on by counsel.
In the instant case the prosecuting attorney commented on defendant's right not to testify. The reasons for the prosecuting attorney's remarks are not apparent, but perhaps he felt that the defendant could be provoked into testifying because of the statement. In any event the prosecutor's remarks, coupled with the defendant's subsequent decision not to testify is tantamount to a comment on the defendant's failure to testify and is therefore in violation of section 13-1-9.
This Court has consistently held that any comment by the prosecutor on an accused's failure to testify is error. Clark v. State, 260 So.2d 445 (Miss.1972); Lambert v. State, 199 Miss. 790, 25 So.2d 477 (1946); Yarbrough v. State, 70 Miss. 593, 12 So. 551 (1893). We are not prepared to deviate from these prior decisions. The trial court committed reversible error by not granting the defendant's motion for a mistrial following the assistant district attorney's remarks.
Defendant also contends that his right to cross-examination was violated by the trial court's action in denying an attempted experiment by counsel for the defense. Mrs. Webb was called as a witness for the state and identified the defendant as one of the robbers. On cross-examination counsel for the defense attempted to require Mrs. Webb to look in the opposite direction from the trial judge while describing the physical characteristics of the judge. The purpose of this experiment was to test Mrs. Webb's ability to observe and recall descriptions.
The determination of whether to allow experiments and demonstrations during trial rests within the sound discretion of the trial judge. Experiments of this type should be viewed with caution because of the high risk of obtaining unreliable evidence. Whenever possible the experiment should be based on circumstances and conditions similar to those existing at the time of the offense. 23 C.J.S. Criminal Law § 967, at 870-871 (1961).
The experiment proposed in the present case involved completely different conditions from those testified about. Obviously, a victim's identification of an armed robber during a robbery versus a description of a judge in court lacks similarity. The trial court did not abuse its discretion in sustaining the state's objection and thereby refusing to allow the experiment. See McCain v. State, 46 Ala.App. 627, 247 So.2d 383 (1971).
Defendant argues that Instructions No. 13 and No. 19 were...
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Hansen v. State, 89-DP-0823
...juries be instructed to that effect. Our cases on the point expressly hold that such an instruction should not be given. Hines v. State, 339 So.2d 56, 58 (Miss.1976); Clubb v. State, 350 So.2d 693, 697 (Miss.1977); Ragan v. State, 318 So.2d 879, 882 (Miss.1975) (emphasis in Again, the jury ......
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Livingston v. State, 57198
...to testify violates "an elementary and long established principle of law." See: Clark v. State, 260 So.2d 445 (Miss.1972); Hines v. State, 339 So.2d 56 (Miss.1976); Peterson v. State, 357 So.2d 113 (Miss.1978); and Wilson v. State, 433 So.2d 1142 Our forefathers vouchsafed the right of an a......
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Robinson v. State
...stating that the uncorroborated testimony of the victim of a sex crime should be scrutinized with extreme caution); Hines v. State , 339 So.2d 56, 58 (Miss. 1976) (affirming denial of defense instruction advising jury that no class of testimony is less credible than that of identity). "The ......
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Jackson v. State, 57904
...degree of similarity between the conditions at the time of the event at issue and those when the experiment was conducted. Hines v. State, 339 So.2d 56, 57 (Miss.1976); Illinois Central Gulf Railroad Co. v. Ishee, 317 So.2d 923, 926 (Miss.1975). Simmons' testimony regarding Jackson's confir......