Holmes v. State

• Decision Date: 04 December 1985
• Docket Number: No. 55795,55795
• Citation: 481 So.2d 319
• Parties: Harvey HOLMES and L.C. Holmes v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 319

481 So.2d 319

Harvey HOLMES and L.C. Holmes v. STATE of Mississippi.

No. 55795.

Supreme Court of Mississippi.

Dec. 4, 1985.

Azki Shah, Clarksdale, for appellants.

Edwin Lloyd Pittman, Atty. Gen. by DeWitt Allred, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before ROY NOBLE LEE, P.J., and DAN M. LEE and PRATHER, JJ.

DAN M. LEE, Justice, for the court:

Harvey Holmes and L.C. Holmes were indicted in Quitman County, Mississippi, during the March, 1984 term. The indictment charged that on the 19th day of February, 1984, they burglarized the Quitman County Farmers Association (hereinafter referred to as "the Co-op") located in Marks, Mississippi. Harvey and L.C. Holmes were tried and convicted in the Circuit Court of Quitman County. Each was sentenced to seven (7) years imprisonment in the state penitentiary.

Testimony at trial showed that on the evening of February 18 or the morning of February 19, 1984, the Co-op was burglarized. The Co-op manager testified that three pistols, one box of cartridges and one knife were taken during the burglary.

Everette Thompson testified that on February 17, 1984, he and Harvey and L.C. Holmes planned the burglary. He further testified that, on the following day, he, L.C. Holmes and Harvey Holmes rode to the Co-op in Harvey Holmes's car; that he and L.C. Holmes were left at the Co-op; that they gained entrance into the building by breaking a plate glass window; and, that Harvey Holmes returned later that night to pick them up. The testimony of Harvey Holmes and several other witnesses indicated that the appellants might have been at other places before, during and after the burglary.

Due to the failure of the trial court to properly instruct the jury with reference to the defendant's theory of alibi and the failure to caution the jurors regarding accomplice testimony, the judgment below must be reversed and remanded for a new trial.

At the close of his case, Harvey Holmes submitted numerous jury instructions including an erroneous instruction on the defense of alibi. ¹ L.C. Holmes however submitted a proper alibi instruction, which read:

Instruction No. 4290-D-1. Alibi means elsewhere or in another place. In this case, the defendant, L.C. Holmes, Jr. is asserting the defense of alibi by saying that he was at home on Lewis Street in Marks, Mississippi, at the time when the state claims that he was somewhere else committing the crime of burglary.

Alibi is a legal and proper defense in law. The defendant is not required to establish the truth of his alibi to your satisfaction, but, if the evidence or lack of evidence in this case raises in the minds of the jury a reasonable doubt as to whether the defendant was present and committed the crime, then you must give him the benefit of the doubt and acquit him.

The trial judge rejected both of the co-defendants' submitted alibi instructions--not based on any inaccuracy in the instructions, but on the weakness of the evidence which supported the alibis. The judge's rationale was expressed in unequivocal terms:

The court has seriously considered the granting of an alibi instruction for both defendants, and based on the evidence that was presented, the court does not feel that there was strong enough evidence to justify an alibi instructions.

... [T]he court is not going to grant an alibi instruction. (emphasis added)

As a result, the jury received no instructions whatsoever with respect to the co-defendants' theory of defense, i.e., alibi.

In Sanford v. State, 372 So.2d 276 (Miss.1979), a case similar to the instant one, this Court stated:

"Alibi" as a defense is well established in our criminal jurisprudence. We have held many times that alibi testimony, if believed by the jury when considered along with all the other evidence, requires acquittal. Without question, one who interposes an alibi as the theory of his defense, and presents testimony in support of such a plea, is entitled to a jury instruction focusing upon such a theory.

Id. at 278.

The Sanford rationale has been recently reiterated in Young v. State, 451 So.2d 208, 210 (Miss.1984). See in accord, Gandy v. State, 355 So.2d 1096 (Miss.1978); Newton v. State, 229 Miss. 267, 90 So.2d 375 (1956); McBroom v. State, 217 Miss. 338, 64 So.2d 144 (1953); McNair v. State, 215 Miss. 510, 61 So.2d 338 (1952); Nelms v. State, 58 Miss. 362 (1880).

It is well established that the jury is the sole judge of the weight and credibility of the evidence. Fairley v. State, 467 So.2d 894, 902 (Miss.1985); Pate v. State, 419 So.2d 1324, 1326 (Miss.1982); Jackson v. Griffin, 390 So.2d 287, 289 (Miss.1980); Gathright v. State, 380 So.2d 1276, 1278 (Miss.1980); Lewis Grocery Co. v. Blackwell, 209 So.2d 639, 641 (Miss.1968); Ivey v. State, 206 Miss. 734, 752-753, 40 So.2d 609, 613 (1949). "This Court has in numerous cases, too many to mention, said that when the evidence is conflicting, the jury will be the sole judge of the credibility of witnesses and the weight and worth of their testimony." Gathright, 380 So.2d at 1278.

The testimony of two of the state's witnesses indicated the time at which the burglary occurred. Everette Thompson testified that he, L.C. Holmes and Harvey Holmes arrived at the Co-op two or three minutes before twelve. He said that he and L.C. stayed there about twentyfive minutes, they waited about five minutes for Harvey to return and pick them up, then arrived back at the Holmes's trailer at 12:40 a.m. Later, on cross-examination, he said it was "close to one" when the three returned to the trailer. Another state's witness, Alice Cook, testified only that she saw "Duck" (Everette Thompson) and "Red" (L.C. Holmes) on the highway near the Co-op "between something after twelve and something to one."

Their testimony was contradicted by several defense witnesses. In support of his alibi, Harvey Holmes said that he arrived at the trailer at about 11:40 p.m., talked with his brother, L.C., then lay down on the couch and slept until he was awakened briefly at 12:30 a.m. Don Williams and Bonell Jamison independently testified that they heard Harvey Holmes's car return prior to 12:00 midnight. More important, Lyndon Holmes testified that he saw his brother, Harvey, asleep on the couch in the trailer at 12:20 or 12:40 a.m. This was in direct contravention of the testimony of Everette Thompson. Also Troy Holmes testified that he returned to the trailer at approximately 1:00 a.m. and saw his brother, Harvey, asleep on the couch and saw his brother, L.C., also asleep.

The trial judge should have allowed the jury to determine the weight and credibility of the conflicting testimony. To refuse the defendants' alibi instructions was error and requires reversal.

The attorney for Harvey Holmes also submitted an instruction to the effect that the uncorroborated testimony of an accomplice should be viewed with great caution and suspicion. The court refused the instruction and stated, "The testimony of the accomplice, Everette Thompson, was not uncorroborated."

We have examined the record and have found no testimony which corroborates that of Everette Thompson as it refers to Harvey Holmes. A deputy sheriff did testify that a footprint at the scene of the crime matched a shoe belonging to Everette Thompson; this would corroborate Thompson's admission that he had committed the crime. Another witness testified that she saw Everette Thompson and L.C. Holmes on the highway near the Co-op on the evening of the robbery. However, there is absolutely no evidence other than the testimony of Thompson which would tend to inculpate Harvey Holmes in any way in this case.

The granting of a cautionary instruction regarding the testimony of an accomplice is discretionary with the trial judge. Hussey v. State, 473 So.2d 478 (Miss.1985); Davis v. State, 472 So.2d 428 (Miss.1985); Jones v. State, 381 So.2d 983 (Miss.1980), cert. denied, 449 U.S. 1003, 101 S.Ct. 543, 66 L.Ed.2d 300 (1980); Fleming v. State, 319 So.2d 223 (Miss.1975). However, that discretion is not absolute; it may be abused. Hussey, 473 So.2d at 480.

In Davis v. State, 472 So.2d 428 (Miss.1985), this Court held that the trial court did not abuse its discretion by refusing the defendant's requested cautionary instruction concerning the testimony of an alleged accomplice. Two aspects distinguish Davis from the instant case. First, in Davis, the witness in question was only alleged to be an accomplice. The trial judge was of the opinion that he was not and,...