Ivory v. State, 49204
| Decision Date | 24 August 1976 |
| Docket Number | No. 49204,49204 |
| Citation | 336 So.2d 732 |
| Parties | Roger L. IVORY v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Joe M. Buchanan, Indianola, for appellant.
A. F. Summer, Atty. Gen. by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before PATTERSON, ROBERTSON and BROOM, JJ.
The grand jury at the October, 1975, term of Circuit Court of Sunflower County, returned a joint indictment against Roger Lee Ivory, Walter Lee Buckner and Edward Burrage, for the burglary of a cafe known as the Quick-Chick on June 10, 1975.
Ivory was arraigned on October 14, 1975, and, through his court-appointed attorney, pleaded 'Not Guilty'. ,Buckner waived arraignment. Burrage has never been apprehended.
The court order of October 14, 1975, provided:
'IT IS FURTHER ORDERED, any motions for severance and the like be filed within a reasonable time from and after this date.'
On October 27, 1975, the day before the case was set for trial, Ivory filed a motion for severance which recited:
'(A)nd in support thereof would show that statements were made by one or more of the Co-Defendants which would be damaging to the other Co-Defendants.'
Ivory's motion for severance was heard on October 28, 1975, and was overruled. Immediately thereafter the case was tried. Ivory was found guilty and Buckner not guilty. Ivory was sentenced to six years in the penitentiary. He appeals his conviction and sentence.
The chief prosecution witness was Arthur Powell, a 15-year-old youth. Powell testified that he and Buckner were lookouts and Burrage and Ivory entered the Quick-Chick through a side door. When they returned, Burrage gave Powell some nickels; Ivory had some cigarettes and change in his pockets.
Ivory took the stand in his own defense, and testified that he and Buckner were going to Ivory's house to play cards when they came upon Burrage and Powell, who were arguing. Ivory heard Burrage threaten to kill Powell because Powell 'would tell it'. Burrage told Buckner and Ivory to be lookouts while he and Powell broke into the Quick-Chick. When Burrage and Powell returned, Burrage gave Powell something and Ivory ran home. Ivory testified that he wasn't given anything and was a lookout only because he was afraid of Burrage.
Buckner, co-defendant, was placed on the stand by his attorney. His testimony was substantially the same as Ivory's. In answer to questions asked by Ivory's counsel, Buckner testified that Ivory had no part in the burglary, that he and Ivory stood on the corner and fifteen or twenty minutes later when he (Buckner) saw Burrage and Powell running 'Both of us ran.'
On cross-examination by the county attorney after Buckner insisted that he and Ivory had nothing to do with the burglary, that they merely stood on the corner, the prosecution questioned Buckner about a statement written by Buckner and given to Deputy Sheriff Hayes on June 10, 1975. Buckner admitted that he was advised of his rights and that the statement was voluntarily made.
The statement was received as an exhibit without objection, but when Buckner was asked to read it to the jury, Ivory's counsel objected and a hearing was held in the court's chambers. Ivory's counsel made this objection:
'Comes now the defendant, Roger Lee Ivory, by and through his attorney of record and objects to the statement allegedly written and signed by Walter Lee Buckner on June 10, 1975, and would show in support thereof, that at the time of the arraignment on or about October 14, 1975, Roger Lee Ivory, by and through his attorney reserved the right to request a severance in this cause; and a later date made a motion for a severance which was denied by this Court and the law is clear that one co-defendant confession cannot be used against another co-defendant unless all references to the co-defendant is stricken from the statement thereof.'
The Court, in overruling the objection, said:
The statement read:
Ivory's first assignment of error is that the court erred in denying him a severance.
Mississippi Code Annotated section 99-15-47 (1972) provides:
'Any of several persons jointly indicted for a felony may be tried separately on making application therefor before the order for a special venire in capital cases and before arraignment in other cases.' (Emphasis added).
Ivory admittedly did not apply for a severance before arraignment on October 14, 1975. However, the order of the court entered on October 14, 1975, provided that 'any motions for severance and the like be filed within a reasonable time from and after this date.'
In Bolin v. State, 209 Miss. 866, 48 So.2d 581 (1950), this Court said:
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Harper v. State
...have sometimes been read to hold that the trial judge is not required to modify imperfect instructions. See, e.g., Ivory v. State, 336 So.2d 732, 734 (Miss.1976). Today we build upon the policy pronouncements of Newell augmented by suggestions originally made in Thomas v. State, 278 So.2d 4......
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Mallett v. State, 89-KA-0440
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Wallace v. State
...admissible to impeach the defendant when he made statements contradictory to the confession. 382 So.2d at 1074. See also Ivory v. State, 336 So.2d 732 (Miss.1976). We are of the opinion that, under the facts of this case, the questions by the district attorney were for the purpose of impeac......
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...We are unable to say that the trial judge abused his discretion at that point in overruling the motion for severance. Ivory v. State, 336 So.2d 732 (Miss.1976); Dueitt v. State, 225 Miss. 254, 83 So.2d 91 (1955); Bolin v. State, 209 Miss. 866, 48 So.2d 581 The question of severance will not......