Parker v. State

• Decision Date: 29 July 1981
• Docket Number: No. 52655,52655
• Citation: 401 So.2d 1282
• Parties: John Wesley PARKER v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1282

401 So.2d 1282

John Wesley PARKER v. STATE of Mississippi.

No. 52655.

Supreme Court of Mississippi.

July 29, 1981.

John E. Gregg, Raymond, for appellant.

Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, C. J., and LEE and HAWKINS, JJ.

LEE, Justice, for the Court:

John Wesley Parker was convicted in the Circuit Court of Claiborne County, Honorable John W. Prewitt, presiding, of shooting into an occupied building, and was sentenced to serve ten (10) years with the Mississippi Department of Corrections, five (5) years to be served, and five (5) years suspended, with three (3) years on supervised probation. He appeals from the sentence and judgment of the lower court and assigns three (3) errors in the trial.

On the morning of January 3, 1980, an altercation took place in front of the Claiborne County Courthouse between Fred N. Tisdale and Eddie Ray Parker, brother of appellant. The State's evidence was to the effect that appellant had gone to the courthouse to obtain a car tag while appellant's evidence indicated that he had gone there for the purpose of collecting four hundred fifty dollars ($450.00) in back wages owed by Board Member Roosevelt Yarbrough to appellant's wife. At any rate, appellant and Eddie Ray Parker met Tisdale after they left the courthouse, angry words were exchanged, and Tisdale threatened appellant with a gun. The Parkers and Tisdale met again at the police station where they each had gone to make an affidavit against the other. After the meeting at the police station, the Parkers went to the courthouse for the purpose of having a property examination made in order to execute an appearance bond. There, they once again encountered Tisdale across the street from the courthouse, and an argument ensued. Eddie Ray Parker had a .38 caliber pistol in his coat and gave his car keys to appellant, telling him that there was a 30-30 rifle in the trunk of the car. Tisdale fired two shots at Eddie Ray Parker from inside his truck, one of which struck him in the leg. Eddie Ray Parker returned the fire and wounded Tisdale who fled on foot into the courthouse. At this juncture, appellant returned from Eddie Ray Parker's car carrying a 30-30 rifle and proceeded toward the courthouse after Tisdale. He fired two (2) shots through one of the courthouse windows, apparently at Tisdale.

I.

Did the trial judge err and subject appellant's counsel to unduly harsh treatment which deprived appellant of his legal and constitutional right to a fair trial?

In commenting upon the influence a trial judge has on the jury during the trial of a case, the Court said in Green v. State, 97 Miss. 834, 53 So. 415 (1910):

"It is a matter of common knowledge that jurors, as well as officers in attendance upon court, are very susceptible to the influence of the judge. The sheriff and his deputies, as a rule, are anxious to do his bidding; and jurors watch closely his conduct, and give attention to his language, that they may, if possible, ascertain his leaning to one side or the other, which, if known, often largely influences their verdict. He cannot be too careful and guarded in language and conduct in the presence of the jury, to avoid prejudice to either party." 97 Miss. at 838, 53 So. at 416.

The Court also in Garrett v. State, 187 Miss. 441, 193 So. 452 (1940) stated: "Should a case arise in which it is obvious that a judge had been partial, biased or prejudiced, and that his attitude and conduct had brought about an unfair trial, the Court would reverse the case and grant a new trial." 187 Miss. at 455, 193 So.2d at 455.

Some of the comments complained about by appellant as prejudicing the jury were made outside the presence of the jury. Those remarks could not have been the basis for prejudice as stated in Merchants Co. v. Hutchinson, 186 So.2d 760 (Miss.1966):

"There are other errors in the record, the most serious of which involves statements the trial judge made in the presence of the jury, which could have prejudiced the jury against appellants." 186 So.2d at 764.

The appellant contends that four (4) comments were made by the trial judge in the presence of the jury which influenced the jury and prejudiced him. They follow:

(1) "BY THE COURT: I have previously asked the Jury if they would follow the law as given by the Court and I'm satisfied that this Jury under their oath has answered that question. Now, counsel is trying to ask in a different way the same question and I'm going to permit counsel to put that of record.

BY MR. McFATTER: The question that I have proposed is that if the Court should later instruct this Jury that there is a defense to shooting into the Courthouse could the Jury follow that instruction regarding a defense for shooting into the Courthouse.

BY THE COURT: Allright, I've let you put that in the record and I'd ask you to move on to another question. And put that in the record."

(2) During cross-examination of Fred Tisdale, the following comment was made:

"BY MR. McFATTER:

Q. Okay, Mr. Tisdale, where can I start? What's the earliest point you're going (to) testify about, please, sir? You tell me. I'm tired of hunting for it?

A. I don't know what you want to know.

BY THE COURT: Counsel, I'm going to help you a little bit. He started testifying when he started backing in the Courthouse and you I don't think I have to rehash the testimony, but I believe you're sufficiently intelligent, at least I respect you as such, you know what he's testified about and I permit you to cross examine him to that extent."

(3) The following comment occurred during the rebuttal testimony of Daniel Lucas:

"BY MR. McFATTER: Your Honor, at this point I would request that it was only about one question on re-cross and Mr. Lucase

BY THE COURT: (Interposing) You go ahead. I think you can ask him any question you want to. And go ahead. We're not going to take up any time now to go back and look at any question. You use your memory. You've got him on cross examination. You ask him any question.

BY MR. McFATTER: Am I not being allowed to impeach him Your Honor?

BY THE COURT: You're being allowed to cross examine him as fully as the Court deems it necessary to cover your point, but we are not going back in the record."

(4) The final comment came during the rebuttal testimony of Daniel Lucas on cross-examination. The colloquy follows:

"BY MR. McFATTER: Your Honor, at this point, I would request that the Jury be allowed to make a view from that landing.

BY THE COURT: That will be overruled. I might tell counsel, you've been practicing law a good while and you know when to make a motion to view a scene.

BY MR. McFATTER: I'm pleading surprise, your Honor, I stood down there and looked at it myself

BY THE COURT: (Interposing) Now, wait a minute. I don't want any speeches. I've ruled. Go ahead.

BY MR. McFATTER: Your Honor, I'm pleading surprise and I would again make my motion for a view from that landing by the Jury at this time.

BY THE COURT: Take the Jury out.

(THE JURY WAS RETIRED FROM THE COURTROOM AND THE FOLLOWING PROCEEDINGS WERE HAD IN THEIR ABSENCE)"

In Vail v. City of Jackson, 206 Miss. 299, 40 So.2d 151, 41 So.2d 357 (1949), the Court said, quoting 64 C.J., at page 92:

" 'Counsel may properly be directed to refrain from delay, or to get on with the trial, or the judge may comment upon a waste or excessive consumption of time in the trial so long as counsel is not unduly restricted or his knowledge challenged, or his motives impugned; and remarks expressing impatience with counsel, even though perhaps unwarranted, are not fatal where not such as to cause material prejudice. Ordinarily counsel may not complain of slight or not seriously prejudicial impropriety in remarks or comments by the court where they are provoked by himself.' " 206 Miss. at 328, 41 So.2d at 361.

The motion by appellant's counsel in the presence of the jury for a view of the scene was clearly prejudicial to the State's case and not warranted under the law. Armstrong v. State, 179 Miss. 235, 174 So. 892 (1937). It was calculated to provoke the comment made by the trial judge.

We have carefully considered the comments and actions of the trial judge in his statements to the attorney for appellant and, while the trial judge must always be patient and fair, we think the appellant was not denied a fair trial by those exchanges between the trial judge and counsel for appellant and there was no reversible error therein.

II.

Did the trial court err in grating State's Instruction S-4 and in refusing appellant's Instructions D-2, D-3, D-4 and D-5?

The Instruction S-4 follows:

"The Court instructs the jury that self-defense is not a defense to the crime charged in the indictment in this case, and self-defense should not be considered by you in determining your verdict."

The Instructions D-2, D-3, D-4 and D-5, requested by appellant, were self-defense instructions. The appellant contends that his sole defense was self-defense and, since the trial court gave a peremptory instruction that self-defense could not be interposed in the case and declined his requested instructions on self-defense, he was practically denied any defense in the case.

The question which arises from the instructions mentioned is whether or not, taking all the facts favorable to appellant, together with all reasonable inferences, there was an issue for the jury to determine on self-defense. The trial judge, in granting the Instruction S-4 and denying the defense instructions requested by appellant, stated:

"It is the court's opinion that the defendant did not have reasonable grounds to believe from the evidence of this case that Fred Tisdale was about to fire at the defendant or that the defendant acted under the facts of this case in necessary self-defense nor do the facts make an issue on the defense of self-defense."

The proof is uncontradicted that the altercation...