Pearson v. State

Decision Date09 March 1983
Docket NumberNo. 54074,54074
Citation428 So.2d 1361
PartiesJimmy Lee PEARSON v. STATE of Mississippi.
CourtMississippi Supreme Court

Thomas D. Lee, Forest, for appellant.

Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before BROOM, PRATHER and ROBERTSON, JJ.

ROBERTSON, Justice, for the Court:

I.

On the morning of October 22, 1981, the home of A.B. Crudup near Pulaski, Scott County, Mississippi, was burglarized. In due course Jimmy Lee Pearson, defendant below and appellant here, and Danny Paul Hicks were formally charged with this burglary in indictments returned by the Scott County Grand Jury. After severance, the case against Jimmy Lee Pearson was called for trial on the morning of Monday, March 8, 1982. That afternoon, after hearing all of the evidence and receiving the instructions of the court and the arguments of counsel, the jury found Pearson guilty of the charge of burglary. The Circuit Court thereupon imposed the maximum allowable sentence, ten years. Miss.Code Ann. Sec. 97-17-19 (1972).

Pearson thereafter timely filed a motion for a new trial, attacking both his conviction and sentence. The Circuit Court overruled the motion. Pearson then filed a motion to reduce his sentence to a term in line with plea bargain offers he had received before trial. This motion likewise was overruled.

Pearson has perfected his appeal to this Court where he again attacks both his conviction and sentence. We affirm.

II.

Stating them as we must in the light most favorable to the verdict, the facts are as follows: A.D. Crudup, his wife Kathleen and three of his children live in a home some three-quarters of a mile east of the Pulaski community, which is in turn some seven miles south of Morton, Mississippi. On the morning of October 22, 1981, Mr. and Mrs. Crudup left for work as usual; the children, of course, went to school. The house was left locked.

That morning Jimmy Lee Pearson and his half-brother, Danny Paul Hicks, were riding in an automobile traveling toward Pulaski. Hicks was driving. Pearson told Hicks to stop and let him out of the car and to come back and pick him up later. Hicks said he was going to town to see someone about making some repairs to his car. He let Pearson out within walking distance of the Crudup home. Pearson then walked to the Crudup home and broke into and entered the same. He carried away, among other things, a small tabletop television and a .410 gauge shotgun.

After the completion of his criminal deeds, Pearson returned to the roadside where he was picked up by Hicks. Hicks then drove the two to Hicks' home where the fruits of the burglary were deposited. The two then borrowed a truck and picked up yet another companion, Sammy Holifield. The three returned to Hicks' home and picked up the stolen items and thereafter sold some of them.

On November 9, 1981, Hicks was arrested in connection with the crime. Hicks gave a statement to law enforcement officials implicating Pearson. On November 13, 1981, Pearson was arrested and orally confessed the burglary.

As indicated above, Pearson, now 36 years old, has been indicted, tried and convicted of the crime of burglary and sentenced to a term of ten years. Hicks was allowed to plead guilty to a charge of accessory after the fact of burglary and received a five-year probationary sentence. Holifield has never been indicted.

III.

On this appeal Pearson urges as error the refusal of the Circuit Court to direct a verdict of acquittal or, in the alternative, to grant him a new trial. The sole basis for this contention is Pearson's argument that the verdict "was tainted and based largely on perjured testimony introduced by the state."

This Court has on more than one occasion affirmed a conviction under circumstances more egregious than those here. That an accomplice may on the witness stand vary his testimony from his pretrial statements neither renders the testimony per se inadmissible, nor does it vitiate a subsequent conviction. See Frazier v. State, 142 Miss. 456, 459-460, 107 So. 674, 675 (1926); Vanderpoel v. State, 251 So.2d 922, 925-926 (Miss.1971).

To be sure, where it may be established that a conviction has been obtained through the use of false evidence or perjured testimony, the accused's rights secured by the due process clause of the Fourteenth Amendment of the Constitution of the United States are implicated. Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935). And this is so without regard to whether the prosecution has wilfully procured the perjured testimony. Where such false evidence has in fact contributed to the conviction, the accused is entitled to relief therefrom. Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

On the record here under review Pearson simply does not present us with the facts sufficient to grant him relief under these well established principles of law. Pearson does not come before this Court armed with any finding of fact that perjury has been committed by a material witness on an issue important to Pearson's culpability.

It is true that on one occasion outside the presence of the jury the Circuit Judge remarked "I have heard a lot of lying going on here today..." And in overruling defendant's motion for a directed verdict at the conclusion of the state's case, referring to the witness Danny Paul Hicks, the Circuit Judge remarked "In my opinion, he is guilty of perjury, or at least some of the other witnesses may be guilty of perjury."

From our careful review of the record and the context in which the Circuit Judge's remarks were made, Pearson's argument has no force. The expressed skepticism regarding Hicks' testimony pertain to the nature and extent of Hicks' involvement in the events of October 22, 1981, not Pearson's. Hicks did change his story from the time of his own confession of November 9, 1981, until the time of trial. The particulars of the change, however, go to Hicks' culpability, not Pearson's. Under any version Pearson is left as the active perpetrator of the crime.

Beyond that, the jury had before it Pearson's oral confession of his own involvement, admissibility of which is not challenged.

The Danny Hicks story was fully disclosed to the jury. That he had struck a plea bargain with the State in exchange for his testimony against Pearson was explained in open court. 1 The jury knew that Hicks was going to receive a five year probationary sentence, that if Hicks behaved himself he was not going to Parchman. With appropriate contempt, defense counsel seared Hicks on cross-examination.

The Circuit Judge correctly cautioned the jury regarding the testimony of the accomplice Hicks. He instructed the jury

[t]hat the law looks with suspicion, distrust and disbelief on the testimony of an accomplice and requires the jury, to weigh the same with great care and caution and suspicion. In this case you are instructed that Danny Paul Hicks is an accomplice and in passing upon that weight, if any, you should give his testimony, you should weigh it with great care and caution and look upon it with distrust, disbelief and suspicion.

The instruction is perhaps inartfully drafted, perhaps redundant, but far more than adequate to tell the most unlettered juror what Pearson was entitled to have that juror know.

Suffice it to say that under our system, the jury is charged with the responsibility for weighing and considering conflicting evidence and the credibility of witnesses. E.g., Gathright v. State, 380 So.2d 1276, 1278 (Miss.1980). Once the jury has returned a verdict of guilty in a criminal case, we are not at liberty to direct that the defendant be discharged short of a conclusion on our part that the evidence, taken in the light most favorable to the verdict, no reasonable, hypothetical juror could find beyond a reasonable doubt that the defendant was guilty. Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791, 61 L.Ed.2d 560, 576 (1979). Here the evidence points strongly toward guilt under any view. Pearson was not entitled to a directed verdict of acquittal.

Similarly, we will not order a new trial unless convinced that the verdict is so contrary to the overwhelming weight of the evidence that, to allow it to stand, would be to sanction an unconscionable injustice. Again, because the credible evidence suggests guilt, the Circuit Court correctly denied Pearson's motion for a...

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