Page v. State, 51101

• Decision Date: 18 April 1979
• Docket Number: No. 51101,51101
• Parties: Erwin PAGE, Jr. v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 757

369 So.2d 757

Erwin PAGE, Jr. v. STATE of Mississippi.

No. 51101.

Supreme Court of Mississippi.

April 18, 1979.

Jones & Shields, Granville Jones, Meridian, for appellant.

A. F. Summer, Atty. Gen. by Phillip H. Schwartz, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, BROOM and BOWLING, JJ.

BOWLING, Justice, for the Court:

Appellant, Erwin Page, Jr., was indicted, tried and convicted for the crime of armed robbery in the Circuit Court of Lauderdale County. The jury returned a verdict of guilty and fixed the penalty at life imprisonment.

Appellant advances the following assignments of error, namely:

1. The appellant did not receive a fair trial by a jury of his peers in that there was only one black person on the jury panel presented to the parties.

2. The lower court erroneously refused appellant's submitted instruction D-8.

3. Appellant's Fifth Amendment rights were violated.

4. The lower court erroneously permitted evidence regarding a crime other than a charge of armed robbery.

The principal witness as to the facts of the occurrence leading to appellant's indictment was Kermit Rascoe, an employee of Barrett-Nunnery Hardware Company in Meridian, Mississippi for twenty-six years. Rascoe testified that on January 12, 1978, he had closed the store at approximately 5:30 P.M., shortly after which he heard a knock on the door. He opened the door a couple of inches and saw appellant standing there and appellant told him he wanted to come in and discuss the matter of an old garnishment with which appellant had been involved while an employee at the store. Appellant had worked at the store about one year but had not worked there for approximately eight months prior to the time of the incident in question. Rascoe told appellant that the store was closed and if he would come back another time he would be glad to discuss the matter with him. Appellant thereupon forced the door open and Rascoe saw a butcher knife in one of his hands and a pistol in the other. Appellant was not disguised and there is no question about his identity by Rascoe.

Appellant demanded that Rascoe give him money. As the store had closed, it was necessary to open the vault to secure any money. Rascoe was forced to do this while appellant was prodding him with the knife. After opening the vault they went inside where Rascoe secured something over $175 in cash and advised appellant that this was the only money there. Appellant then demanded Rascoe's personal money, and this was given to him. While they were in the vault and after no other money was found, Rascoe, with his back toward appellant, felt a blow to his back and upon looking around saw the handle of the knife protruding from his back. Appellant then pulled the knife from Rascoe's back and stabbed him in the back two more times. He then told Rascoe to turn around and look him in the eye and raised the gun. Rascoe pleaded with appellant, advising him that he would receive lighter treatment for armed robbery than for murder and was advised by appellant that he could not afford to let him live as he would have him in jail the following day. Appellant thereupon pulled the trigger and shot Rascoe in the chest, after which he left the vault and closed and locked the door. After much difficulty for about one and one-half hours, Rascoe was able to open the door and called the police and an ambulance. Fortunately, he lived.

Testimony was given by several members of the Meridian Police Department. After going to the scene and being told by Rascoe who the assailant was, they secured a warrant and went to appellant's home. They found him hidden in a closet and also found several items that had been taken from the store's vault. It is undisputed that appellant was given his full Miranda warnings. He was then asked where the gun was that was used in the robbery, but he did not answer immediately. A few minutes later, he directed the officers to the closet where the gun was found. The officers, according to the undisputed proof, were only in the residence a few minutes. Upon reaching the police station, appellant undisputedly again was given his Miranda warnings before being interrogated further.

At the beginning of the trial appellant's attorney dictated a motion requesting that appellant's plea of not guilty be changed to not guilty by reason of insanity. This motion was allowed and the trial was recessed for the purpose of having appellant examined by two mental health experts, Dr. Antonio Rubio, a psychiatrist, and Dr. Tom Elliott, a clinical psychologist. The reputation and ability of these experts was not challenged. The appellant offered the testimony of both expert witnesses during his defense presentation. Dr. Elliott went into detail as to his examination of appellant and his testimony as the result of his examination was that he found no evidence whatsoever of any kind of psychosis or any evidence of brain damage. He found no evidence of organic damage. His opinion was that appellant would not have been psychotic at the time of the alleged crime; that he intended to rob and so admitted. The doctor concluded that at the time of the alleged crime appellant could distinguish right from wrong and could appreciate the natural consequences of his acts.

Dr. Rubio, whose testimony was also offered by appellant, stated that as a result of his examination he found no type of mental retardation or any type of psychosis.

ASSIGNMENT NO. 1.

Appellant makes no contention that there was a systematic exclusion of blacks from juries in Lauderdale County. He relied on the case of Ellzey v. Breazeale, 277 F.Supp. 948 (S.D.Miss.1967). It is clear that the opinion has no relevance to appellant's contention here, which was that there simply happened to be only one non-white on the jury that heard his case. It cannot be assumed that for that reason the officials of Lauderdale County engaged in discriminatory practices by systematically excluding blacks from juries, as was the burden placed on appellant to establish. Kennard v. State, 242 Miss. 691, 128 So.2d 572 (1961); Raiford v. Dillion, 297 F.Supp. 1307 (S.D.Miss.1969).

Appellant here in no way meets the burden established by the United States Supreme Court in Patton v. State, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76 (1947). There the Court said:

When a jury selection plan, whatever it is, operates in such a way as always to result in the complete and long continued exclusion of any representative at all from a large group of Negroes, or any other racial group, indictments and verdicts returned against them by juries thus selected cannot stand.

As hereinbefore stated, appellant made no effort whatever to show the existence of any practice of omission of blacks from jury service in Lauderdale County. There was no evidence whatever presented as to discrimination against blacks in the selection or constitution of the jury list. There is no merit to this assignment of error.

ASSIGNMENT NO. 2.

Appellant's requested instruction...