Perkins v. State
| Decision Date | 13 May 1992 |
| Docket Number | No. 89-KA-0279,89-KA-0279 |
| Citation | 600 So.2d 938 |
| Parties | Viola PERKINS v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Sim C. Dulaney, Jr., Port Gibson, for appellant.
Michael C. Moore, Atty. Gen., Patricia W. Sproat, Jean Smith Vaughan, Sp. Asst. Attys. Gen., Jackson, for appellee.
Before HAWKINS, P.J., and SULLIVAN and McRAE, JJ.
Viola Perkins is appealing a conviction of murder after trial by jury in the Claiborne County Circuit Court, Judge John E. Ellis, presiding. She was sentenced to life in the custody of the Mississippi Department of Corrections. We affirm.
On Sunday morning, May 8, 1988, at approximately 9:00 or 9:30, police officer Jerry Caston responded to a disturbance at the residence of LeRoy Claiborne. Upon arrival he found the front door glass had been broken. Viola Perkins, who was living with Claiborne at the time, told him that David Gibson had broken the glass and threatened to beat her. She told Caston that she was tired of Gibson beating her and asked him to tell Gibson to leave her alone. Caston told Viola that she could file charges against Gibson. She never did, so the police did not attempt to arrest Gibson. In his report, Officer Caston wrote: David Gibson was living with his mother, Estella Gibson, who testified that on that Sunday Viola had called the house several times after 7:00 a.m., but David refused to talk to her.
Viola and Gibson had been involved in a personal relationship about seven and a half months. Viola testified that he had beaten her for the past five months. Several witnesses testified that they had seen Gibson hitting Viola and Viola hitting back in several bars around Port Gibson. Gibson had been found guilty of disturbing the peace--involving Viola--on February 19, 1988, and found guilty of assaulting Viola on March 25, 1988, in justice court, so the police were aware of the violent relationship between Viola and Gibson.
Viola testified that on the Sunday morning of the shooting Gibson forced his way into the house by breaking through the glass door. He began choking Viola, who resisted by hitting him. Her five- or six-year-old son began hitting Gibson in the face. Gibson threw him across the room. Viola was able to get away from Gibson. She ran outside to the car and retrieved a .32 caliber pistol, but by this time Gibson was running down the street threatening to blow up her house. Viola called the police, which prompted Caston to respond.
Around 1:00 on that Sunday afternoon, Viola drove to Juanita O'Donnell's home because she was upset and angry about the incident involving Gibson that morning. Juanita was not at home so Viola left. As she pulled onto Highway 61, she saw Gibson walking down Highway 18 and drove towards him. David Gibson was at Dora's Place on Highway 18, and yelled to three females, Priscilla Trevillion, Johnnie Gusta and Barbara Brandon, who were walking on the highway towards Dot's Place, to wait. He was about thirty feet behind them.
The three females were almost hit by a speeding car. Startled, they turned around and recognized Viola as the driver. Alphonso Thomas, who was sitting in front of Tankum's Shop on Highway 18 where the three females were, also recognized Viola. Viola slowed down and pulled off in front of Gibson who was walking to catch up with the three females. The three females could see the rear and part of the driver's side of the car. Priscilla Trevillion stated that she could see Gibson and the car at the same time. Gibson was facing the passenger side.
Eddie Jones, who had been at Dora's Place, was walking behind Gibson. As Viola drove the car beside Gibson, Jones saw Viola's hand go up and testified he saw her "grit" her teeth. He then heard a gun fire from the car. The females also heard the gun fire and ran for cover behind a truck.
Gibson bent over and began to stumble towards the truck the females ran behind. Jones heard him say, "Viola shot me." Gibson tried to sit on the tailgate of the truck but stumbled to the ground. He said to Thomas, "Viola shot me." Barbara Brannon also heard him say that Viola shot him. Thomas testified that Gibson had been shot in the stomach area, and he put Gibson in the truck and took him to the hospital.
Dora Kemp, the owner of Dora's Place, called the sheriff and gave a description of the car Viola was driving. Claiborne County Sheriff Frank Davis located the car and discovered a package of .32 caliber cartridges inside the car. Viola was eventually found in Vicksburg and told the police that the weapon was at LeRoy Claiborne's house where she lived--in a storage room. The police found the gun, a .32 caliber pistol, which had been fired once with five live rounds remaining.
Viola admitted that she shot David Gibson stating:
I stopped and I asked him, I said, "Why did you come in the house and do us like that?" And he bent down to the car and said, "I will blow all of y'all up." And I picked up the gun and shoot [sic] out the window at him.
Viola said that it was not her intention to shoot Gibson, but "just to scare him." She testified that she looked back after driving off and saw that Gibson was holding his stomach and said, "Oh God, I done shot him."
Viola urges reversal because of erroneous testimony offered at trial by the State. Eddie Jones, who was with Gibson just before the shooting and also witnessed the shooting, testified that Gibson told him that Viola had killed two persons:
(Interposing) Your Honor, I am going to object to that.
Yes sir. That objection is sustained. The jury should disregard that.
Viola moved for a mistrial based on witness Jones' testimony, which the judge denied.
Rule 404(b) of the Mississippi Rules of Evidence (M.R.E.) states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
The trial court did not abuse its discretion in finding that Jones' statement did not require a mistrial. He sustained the objection and directed the jury to disregard the improper testimony.
We recently stated in Roundtree v. State, 568 So.2d 1173, 1178 (Miss.1990), that:
Case law unequivocally holds that the trial judge "is in the best position for determining the prejudicial effect" of an objectionable remark. The judge is provided considerable discretion to determine whether the remark is so prejudicial that a mistrial should be declared. Where "serious and irreparable damage" has not resulted, the judge should "admonish the jury then and there to disregard the impropriety." [citations omitted]
Additionally, in Estes v. State, 533 So.2d 437, 439 (Miss.1988), we reiterated that "[i]t is well settled that when the trial judge sustains an objection to testimony and he directs the jury to disregard it, prejudicial error does not result."
Viola argues as grounds for reversal that Sheriff Frank Davis testified for the State and was not sequestered after "the Rule"--M.R.E. Rule 615--was invoked by the court. Viola made an objection before he testified. The following transpired when Sheriff Frank Davis was called to testify for the State:
BY MR. DULANEY:
Your honor, I am going to object to the sheriff testifying on the grounds he has been in the courtroom the entire time. I believe we have some case law that says if the sheriff is going to be a witness for the prosecution he has to excuse himself from other witnesses.
Let me see counsel at the bench.
With the statements made by the assistant district attorney with regards to the posed testimony of the sheriff which were made at the bench conference, the Court does hereby overrule your request, Mr. Dulaney, that asked that the sheriff be precluded from testifying on the grounds that he has been inside the courtroom during the testimony of other witnesses.
Claiborne County is a small county. We have had a large number of spectators and witnesses in the courtroom. The sheriff is an officer of the court and the court needed to have the presence of the sheriff to insure order in the court and for an orderly arrangement.
Let the record further show that the sheriff being aware that he may have been called as a witness has purposely refrained from having any contact and has kept away from the jurors as observed and previously noticed by the Court. The jurors are being handled and processed by bailiffs in the courtroom without any contact from the sheriff. Therefore, the sheriff will be permitted to testify.
Sheriff, take the stand. Call the sheriff.
The sheriff testified that a package of .32 caliber cartridges was found in the car Viola was recognized driving and that she told him where the gun was she used to shoot Gibson. The sheriff found a .32 caliber pistol with five live rounds and one empty casing where Viola indicated.
Rule 615 M.R.E., concerning the exclusion of witnesses, states:
At the request of a party the court shall order witnesses excluded so that they...
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