McNeal v. State

• Citation: 658 So.2d 1345
• Decision Date: 01 June 1995
• Docket Number: No. 92-KA-00179-SCT,92-KA-00179-SCT
• Parties: Michael McNEAL a/k/a Michael O'Neal v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1345

658 So.2d 1345

Michael McNEAL a/k/a Michael O'Neal v. STATE of Mississippi.

No. 92-KA-00179-SCT.

Supreme Court of Mississippi, In Banc.

June 1, 1995.

Rehearing Denied Aug. 3, 1995.

Tom T. Ross, Jr., Ross Hunt Spell & Ross, Clarksdale, for appellant.

Michael C. Moore, Atty. Gen., Jackson, Wayne Snuggs, Asst. Atty. Gen., Pat S. Flynn, Asst. Atty. Gen., Jackson, Ellen Y. Dale, Ridgeland, for appellee.

JAMES L. ROBERTS, Jr., Justice.

Michael McNeal was convicted in the Circuit Court of Coahoma County, Mississippi, on February 3, 1992, of the crime of burglary. In a separate hearing held on February 5, 1992, McNeal was adjudicated as an habitual offender pursuant to Miss.Code Ann. § 99-19-81 and sentenced to the maximum of seven years in the custody of the MDOC without hope of suspension, parole or probation. It is from this conviction and sentence that McNeal now appeals.

STATEMENT OF FACTS

In the early morning hours of Saturday, October 26, 1991, the Clarksdale Police Department received a call that a burglary was in progress at the cafeteria of the Myrtle Hall School, Number 4. Clarksdale police officers Darry Jenkins and Joe Conners were the first to arrive at the scene. A window on the side of the building had a broken pane and the screen had been pulled up.

After waiting for some time at the scene for someone to arrive with a key to the building, officers Jenkins and Conners saw a person inside the building walk up to the broken window and peek out. There was enough light coming from inside the building for the officers to see the face of the intruder. Both officers recognized Michael McNeal. One or both of the officers called to McNeal by name to come out of the building. McNeal turned and ran to the kitchen area of the cafeteria.

Jenkins and Conners then radioed for assistance. When someone arrived with a key, several officers entered the building and apprehended McNeal. Officers Jenkins, Conners and Jones, who had arrived on the scene in response to the call for assistance, all testified they knew McNeal prior to this incident and identified him in court as the man found in the cafeteria.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN NOT GRANTING A MISTRIAL AFTER OFFICER DALE JONES TESTIFIED HE KNEW MICHAEL

McNEAL FROM "PREVIOUS ARRESTS."

At trial, Officer Dale Jones inadvertently stated he knew McNeal from "previous arrests." McNeal contends that the trial court committed reversible error in denying a mistrial after this remark was made. The record reveals the context in which this statement was made and defense counsel's subsequent objection and motion for mistrial:

Q. Would you recognize the person you brought out from under that table if you were to see him again?

A. Yes, sir.

Q. Did you know him at the time?

A. Um, yes, sir, from previous arrests.

Q. Do you see him here in the courtroom today?

A. Yes, sir.

BY MR. ROSS: Your Honor, we would like to approach the bench, please.

BY THE COURT: All right.

(ALL COUNSEL APPROACHED THE BENCH AND THE FOLLOWING CONFERENCE WAS HELD:)

BY MR. ROSS: Your Honor, I think at this point we are going to have to move for a mistrial. Can I talk to my client about it just a minute?

BY MR. HILL: Well, I certainly did not intend to elicit that information. I merely hoped or merely thought that the officer was going to respond with a length of time. I didn't know that he would come out with that, Judge.

BY THE COURT: I'm going to let you renew the motion later. Right now let's go ahead.

BY MR. ROSS: Could you instruct the jury to disregard it?

BY MR. HILL: Yeah.

BY THE COURT: Okay, in the meantime, mark this point on your tape. I want an exact reproduction of the testimony.

BY THE COURT REPORTER: Yes, sir.

(ALL COUNSEL RESUMED THEIR PLACES AND PROCEEDINGS CONTINUED IN FRONT OF THE JURY AS FOLLOWS:)

BY THE COURT: The jury is instructed to disregard the last remark made by the witness.

BY MR. HILL: May we approach again, your Honor?

BY THE COURT: All right.

(ALL COUNSEL RETURNED TO THE BENCH AND THE FOLLOWING CONFERENCE WAS HELD:)

BY MR. HILL: The latest thing I have seen in cases is the Court would ask them if they could do that; if they would disregard it. To cure any potential error.

BY THE COURT: You want me to go further?

BY MR. HILL: Yes, I would just request would you ask them would they, could they all agree to disregard that.

BY MR. ROSS: I'm not familiar with the case you're talking about.

BY THE COURT: Nor am I.

BY MR. HILL: I'll leave it to the Court's discretion.

The trial court did not poll the jury.

At the close of the State's case the trial court allowed the defense to renew its motion for a mistrial at the same time it moved for a directed verdict. The following colloquy took place in chambers with the defendant present:

BY MR. ROSS: All right. Your Honor, we would move for a mistrial on the testimony of Officer Jones who testified on direct that the defendant had prior arrests which indicated he had been in trouble with police before. We would submit to the Court that that would be highly prejudicial against him and inadmissible and we would ask the Court for a mistrial based on that.

* * * * * *

BY THE COURT: By the way, on the mistrial part, I've had the court reporter, you might read back the two questions and two answers, if you would.

BY THE COURT REPORTER: "Would you recognize the person you brought out from under that table if you were to see him again?" "Yes, sir." "Did you know him at the time?" "Um, yes, sir, from previous arrests." "Do you see him here in the courtroom today?" "Yes, sir."

BY THE COURT: So it was an unsolicited response. But, never the less, the words "previous arrests" was mentioned.

BY MR. HILL: Yes, sir, and I assure the Court I had no intention of eliciting that, nor did I realize it was going to come out.

BY MR. ROSS: No, we certainly don't say that the State intended to do that.

BY MR. HILL: I would state to the Court that the court did admonish the jury to disregard that remark and I believe that the jury, they're supposed to do what the trial judge tells them to do and, unless there's some reason to believe they would not, I believe the motion for a mistrial should be refused or denied.

After further discussion off the record, the trial judge denied the motion and the case went to the jury.

Evidence of past crimes not resulting in conviction is generally inadmissible, Lightsey v. State, 493 So.2d 375 (Miss.1986), and "a mistrial in such a case is proper unless it can be said with confidence that the inflammatory material had no harmful effect on the jury," Shoemaker v. State, 502 So.2d 1193, 1195 (Miss.1987) (citations omitted).

Sanders v. State, 586 So.2d 792, 797 (Miss.1991). However, where an objection to such impermissible testimony is sustained and the jury is admonished by the trial court to disregard the statement, this Court has repeatedly held that refusal to grant a mistrial is proper. See Haymer v. State, 613 So.2d 837, 840 (Miss.1993); Baine v. State, 604 So.2d 249, 256-57 (Miss.1992); Wright v. State, 540 So.2d 1, 4 (Miss.1989); Marks v. State, 532 So.2d 976, 982 (Miss.1988). This Court has so held because "jurors are presumed to have followed the trial judge's instructions." Sanders, 586 So.2d at 797 (citing Walker v. State, 473 So.2d 435 (Miss.1985)).

In his brief, McNeal concedes that jurors are presumed to have followed the instructions of the trial court, but argues that there is no way of knowing if the jurors could in fact disregard Officer Jones' statement about "previous arrests" without polling them. At trial it was the prosecution who asked the trial judge to poll the jurors on whether or not they could disregard the statement. Defense counsel stated that he had never heard of this procedure. The State left it to the trial judge's discretion. The trial court then simply admonished the jury "to disregard the last remark." The jury was not polled.

The trial court's admonishment to the jury left something to be desired. When it referred to the "last remark" it overlooked the fact that the witness had given a response after the "other arrests" statement. While it is better practice to poll the jury in order to be sure they understand and can follow the court's instruction, this Court has never held this procedure to be required. See Baine, 604 So.2d at 256-57 (Miss.1992). citing Wright v. State, 540 So.2d 1, 4 (Miss.1989) ("Absent unusual circumstances, where objection is sustained to improper questioning or testimony, and the jury is admonished to disregard the question or testimony, we will not find error") and Marks v. State, 532 So.2d 976, 982 (Miss.1988) ("refusal to grant mistrial was proper where trial court sustained objection and instructed jury to disregard improper testimony"). In the instant case, the error in failing to poll the jury, if any, was certainly harmless. No less than four police officers testified that McNeal was found in the school cafeteria. McNeal's statement admitting he was in the school was introduced without objection. We are without doubt that any reasonable jury would have found him guilty without the officer's offending remark. Thus we need not rely upon the curative effect of the trial judge's admonition to the jury. We find any error harmless beyond a reasonable doubt.

II. THE COURT ERRED WHEN IT SENTENCED MICHAEL McNEAL AS AN HABITUAL CRIMINAL PURSUANT TO MCA § 99-19-81

. SINCE THAT PORTION OF THE INDICTMENT CHARGING HIM AS AN

HABITUAL CRIMINAL FOLLOWED THE CONCLUSION OF THE INDICTMENT

SINCE SAID CHARGING LANGUAGE CAME AFTER THE PHRASE "AGAINST

THE PEACE AND DIGNITY OF THE STATE" IN VIOLATION OF ARTICLE 6, § 169 OF THE MISSISSIPPI CONSTITUTION.

That portion of the indictment charging McNeal as an habitual offender was on a Section 169 of the Mississippi Constitution reads:

separate page from the rest of the indictment. McNeal argues that pursuant to Section 169 of the Mississippi Constitution of 1890, the...