Kinney v. State, 49089
| Decision Date | 10 August 1976 |
| Docket Number | No. 49089,49089 |
| Citation | 336 So.2d 493 |
| Parties | Arthur Earl KINNEY v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Brown, Alexander & Sanders, Jackson, for appellant.
A. F. Summer, Atty. Gen., by John C. Ellis, Special Asst. Atty. Gen., Jackson, for appellee.
Before PATTERSON, ROBERTSON and BROOM, JJ.
BROOM, Justice, For the Court:
Aggravated assault upon a law enforcement officer ('Pete' Hines) was the offense for which Kinney (appellant) was convicted in the Circuit Court of Montgomery County. He appeals from a sentence of twenty-five years imprisonment. We affirm.
On September 2, 1974, two City of Winona, Mississippi policemen (Hines and Brown) in a patrol car backed out of the Winona police station garage when appellant was observed driving a car in a reckless manner. Brown described appellant's speed as 'excessive.' Hines testified:
I had gone down Front Street a little ways and I saw him as he was fixing to cross the railroad track and, all of a sudden, he started spinning his wheels and crossed the railroad track and made a right turn and started fish-tailing-his car fishtailed and he was driving in a reckless manner.
The patrol car in which the policemen pursued appellant (after observing him driving in a reckless manner) was equipped with shining blue lights and had the proper police insignia. At the end of the pursuit, Hines (dressed in a police uniform), asked appellant for his driver's license. In response appellant, armed with a gun in each hand, fired two shots into the body of Hines. Then as Hines was crawling, appellant fired several more shots at him. Hines received treatment for his wounds at Baptist Hospital in Jackson. Other evidence will be set forth as the issues are discussed, but it is to be noted that appellant did not testify at the trial on the merits.
I.
Appellant's contention that he, being under twenty-one years of age, was entitled to have the indictment quashed since our state laws effectively prohibit persons under twenty-one from serving on juries is without merit. Joyce v. State, 327 So.2d 255 (Miss.1976).
II.
Next appellant argues that he was denied due process of law when (at the hearing of appellant's motion to quash the indictment) the court 'refused to allow him to present evidence of a disparity in the number of black persons serving on juries in the county and further refused to allow him to make a proffer of such proof.' Appelllant sought to call each member of the Board of Supervisors of Montgomery County, as stated by counsel, 'so that the names can be read by the . . . supervisors and the persons listed can be identified by race.' Appellant put on as his witness one supervisor (Wood) whose testimony demonstrated that the supervisors' districts had recently been revised as to boundary lines and that he could not identify every voter in his district. Supervisor Wood stated that jurors were selected by starting at the top of the voters list and 'take the fifth number on down.' His testimony was corroborated by the testimony of the circuit clerk whom appellant presented. Appellant also put on the stand the sheriff, who from a venire facias identified some jurors as white and some as black; others he could not identify.
When the appellant sought to have each supervisor brought in to read the names from the voters list of his district, the trial judge stated into the record that the case had 'been set for trial for a week in this term (April 1975) of court and is back at this term as a result of a hung jury in the October Term.' The judge offered appellant's counsel an opportunity to place any statistical data into the record during the term of court at which the trial occurred in April 1975, but counsel made no attempt to do so according to the record. No explanation of counsel's failure in this regard appears of record. Obviously several months passed since appellant's first trial, during which time he had every opportunity to obtain from the public records prior to his next trial names of voters plus any data concerning the racial makeup of the juries. The record does not reflect that appellant made any attempt to interview or interrogate either of the supervisors or anyone else prior to trial or at any other time as to the names or race of the voters or jurors except at the hearing of the motion during the term of court in which appellant was convicted. The record shows that there were approximately 7,700 registered voters in Montgomery County, but the court has not found either in the record or in the briefs any facts as to what percentage of the total population or registered voters was black or white.
We rule that the trial judge was within his sound discretion in not delaying the trial for counsel to put on the stand each supervisor 'so that the names can be read' by them. The trial judge's sound discretion is obvious when, as a supervisor had already stated, he could not possibly know the race of every voter within his district. As regards the term of court (April 1975) at which appellant was convicted as well as for the April and October 1974 terms, the record is clear (as the trial judge found) that the makeup or composition of juries at least for those terms of the court were selected without regard to race, and that the county officials did not systematically exclude blacks from jury service although percentages of the racial makeup of the county's population and registered voters are not before the court.
Additionally, appellant did not cause the record to show precisely what he intended to prove by the supervisors. In the dialogue between counsel for appellant, counsel for the state, and the court concerning testimony by the members of the board of supervisors, appellant's counsel at one place indicated he wanted to get the voters list in evidence and the names 'read by the members of the Board of Supervisors and the persons listed can be identified by race.' At another place, counsel merely said 'we want the testimony of the Board of Supervisors as to those records.' The correct rule in this regard is that in making proffer of testimony rejected by the trial court, counsel must clearly state what he intended to prove by such testimony. 75 Am.Jur.2d Trial, § 131 (1975). As stated by Ethridge, J., dissenting in Freeman v. State, 204 So.2d 842 (Miss.1967):
Counsel must not leave the offer in an indefinite or doubtful shape. The offer must be so full and specific that its exclusion would be erroneous from any point of view. 53 Am.Jur. Trial § 102 (1945). As a...
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