Lee v. State, 49348

• Decision Date: 12 October 1976
• Docket Number: No. 49348,49348
• Citation: 338 So.2d 395
• Parties: Charles LEE v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 395

338 So.2d 395

Charles LEE v. STATE of Mississippi.

No. 49348.

Supreme Court of Mississippi.

Oct. 12, 1976.

Rehearing Denied Nov. 9, 1976.

Robert N. Brooks, Joe P. Barnett, Carthage, for appellant.

A. F. Summer, Atty. Gen., by Vera Madel Speakes, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before INZER, SMITH and BROOM, JJ.

BROOM, Justice, for the Court:

Murder conviction and sentence of life imprisonment resulted from trial of the defenant, Charles Lee, in the Circuit Court of Leake County. After careful consideration of his appeal, we affirm.

Set forth in the indictment is the accusation that the defendant (and another) did 'willfully, unlawfully, and feloniously, and of their malice aforethought, kill and murder Audie Lee Smith, . . .' Evidence against the defendant consisted basically of the corpus delicti and his two inculpatory statements. The deceased Mrs. Smith was alive and unharmed when seen at her residence by witness Alvin Owen about 8:30 p.m. on August 27, 1975. The next day around 9:00 a.m. Owen went to the nearby store which he owned but which Mrs. Smith and her husband operated for Owen. Finding the store locked, Owen went to the Smith residence where Mr. Smith was dead in a lounge chair. Mrs. Smith (Audie Lee) was alive but seriously wounded. She was then hospitalized and later died from cardiac arrest attributable to a gunshot wound which blew away a portion of her scalp. During the night of August 27, 1975, neighbors heard noises (loud talking and gunshots) emanating from the Smith residence. Subsequently, when interrogated, the defendant orally reconstructed the scene which existed at the time Mrs. Smith was shot. He did not testify at the trial.

In the store building which he owned, Owen found (about a week after the shooting) in a desk drawer a sheet in a memo pad upon which had been written 'Charlie D. Lee.' Owen identified the handwriting as that of Mrs. Smith's husband, and the item was admitted into evidence over defendant's objection.

I.

The defendant argues that the trial judge erred in admitting into evidence the memo pad containing the piece of paper on which was written 'Charlie D. Lee.' Objection to admission of the item was on three grounds: It was not part of the res gestae, was not relevant, and could serve only the purpose of being prejudicial to the defendant's case. Though the objection at trial was on the three grounds aforementioned, in his brief he argues mainly that the memo pad was not admissible because it 'was hearsay evidence.' He makes no argument whatever as to the question of whether the memo pad and the writing contained therein was relevant, and thus he has abandoned that aspect of the objection. Further, inasmuch as the objection at trial was not premised upon 'hearsay,' such argument is waived. Regardless of that feature of the case, we point out that the mere piece of paper containing the name 'Charlie D. Lee' does not constitute hearsay for the reason that hearsay is more than just an object with a name on it. To constitute hearsay, extra-judicial words must by some means present a statement, declaration, or assertion introduced for the purpose of proving the truth of the matter contained in or asserted by the item or thing. McCormick, Evidence, 2d Ed. § 246 (1972).

In his brief, the defendant does argue that the admission of the memo pad into evidence was prejudicial to him and he cites Smith v. State, 237 Miss. 498, 115 So.2d 318 (1959). Smith is factually distinguishable from the present case and is not authority supporting the defendant's argument. In Smith the court pointed out that there could be no doubt that the testimony objected to was 'extremely prejudicial,' but here the same cannot be said. The matter before us is merely a piece of paper containing a name, not the same (though similar) as the defendant's name. Considered together with all the facts of the case, and upon the objection as made, we do not think letting the item go to the jury constituted reversible error. Within his discretion the trial judge might have justifiably sustained an objection on the ground that the piece of paper was too vague, remote, or 'not relevant.' However, we cannot say he abused his discretion by acting as he did in response to the objection before him when considered upon the entire record of this case.

II.

Next, the defendant argues that the lower court erred in admitting into evidence two confessions or inculpatory statements signed by the defenant, one of which was given after he had been given a polygraph test. He contends that the state failed to meet its burden of proving that the confessions were freely and voluntarily given. There is no merit in this contention of the defendant who consented to the polygraph test. The uncontroverted testimony of the law officers, which the trial judge chose to accept, established that before making the confessions and consenting to the polygraph test the defendant was adequately advised of his rights. That his confessions did not result from improper inducements of coercion but were voluntary on his part was proven beyond a reasonable doubt. Stevens v. State, 228 So.2d 888 (Miss.1969). The mere fact that a polygraph test was given the defendant does not render his statement or confession involuntary though the results of such tests are inadmissible. State v. Bowden, 342 A.2d 281 (Me.1975); Johnson v. State, 166 So.2d 798 (Fla.App.1964). It is true that witness Ready, who administered the polygraph test to the defendant, admitted telling the defendant, 'I felt like he needed to straighten this up . . ..' The record shows that Ready said this to the defendant after concluding that the defendant was holding back 'about the matter . . ..'

In this connection the defendant cites as authority the case of Robinson v. State, 247 Miss. 609, 157 So.2d 49 (1963). Robinson differs from the present case in several aspects. In it the defendant was advised that it would be better for him to tell all about the matter in which he was involved. The defendant in Robinson was told that the officers had 'the dead wood' on him and the other...