Pittman v. State, 47915

• Decision Date: 15 July 1974
• Docket Number: No. 47915,47915
• Parties: Lanell PITTMAN v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 888

297 So.2d 888

Lanell PITTMAN v. STATE of Mississippi.

No. 47915.

Supreme Court of Mississippi.

July 15, 1974.

Singley & Morgan, Columbia, for appellant.

A. F. Summer, Atty. Gen. by Karen Gilfoy, Special Asst. Atty. Gen., Jackson, for appellee.

SUGG, Justice:

Lanell Pittman was convicted in the Circuit Court of Marion County for the murder of Enoch Watson and sentenced to serve a life term in the Mississippi State Penitentiary. Pittman's defense was that the homicide was justifiable under Mississippi Code Annotated section 97-3-15(f) (1972) in that he acted in necessary self-defense when he killed Watson.

The defendant and Watson had a previous difficulty on October 30, 1971 and as a result the defendant was severely injured requiring his hospitalization for more than a week. Watson was not tried on the indictment. Nineteen defense witnesses testified that the reputation of Watson in the community for peace and violence was 'real bad,' or that Watson had threatened to kill the defendant.

The homicide occurred at a rural store owned by Robert Henry Pittman on the morning of September 7, 1972. Defendant and his father, Bostick Pittman, went into the store of Robert Henry Pittman where Robert Henry Pittman and Otho Forbes were present. While the four men were seated near the rear of the store Watson entered the front door and the store owner made his way to a counter at the front of the store for the purpose of waiting on him. Watson obtained a Coca-Cola from a soft drink machine, returned to the counter and paid for a package of cigarettes that the store owner obtained for him. At this time Watson's back was turned toward the men in the rear of the store and it is at this point that the accounts given by the witnesses vary significantly.

Robert Henry Pittman testified that, as he handed Watson his change, the defendant approached from the rear, gun in hand; that the defendant opened fire when he was approximately 4 feet behind Watson who collapsed to the floor with 5 bullet holes in his back. Otho Forbes testified that when Watson entered the store the defendant concealed himself behind a wall. Forbes further testified that the defendant left his position behind the wall and approached Watson from the rear and commenced firing. He further testified that after Watson fell to the floor the defendant fired two or three more shots into Watson's prone body. Neither Forbes nor Robert Henry Pittman saw Watson make any movement with his hands or otherwise that could have provoked the defendant's attack.

The defendant testified in his own behalf and stated that he heard a truck approach the store and saw Watson standing outside the store with a sawed-off shotgun. When Watson entered the store he did not have the shotgun. Watson asked for cigarettes, walked to the soft drink machine, and turned around and glared at him. The defendant said that when Watson returned to the counter, he started walking toward the front of the store intending to leave in order to avoid any trouble; that as he approached Watson, Watson 'went to his pocket' and the defendant then started shooting. The defendant's father, Bostick Pittman, testified that as he and the defendant were attempting to leave the store Watson 'cut his eyes' and 'went to his picket' whereupon the defendant shot him.

One of the assignments of error is as follows:

The court erred in refusing appellant's instruction number 1 and overruling appellant's motion for a news trial and overruling appellant's motion for a judgment notwithstanding the verdict for the reason that the evidence in this case is not sufficient to sustain a conviction and the verdict of the jury is against the overwhelming weight of the evidence and evidences bias, passion and prejudice.

The peremptory instruction requested by the defendant was properly refused and the evidence was sufficient to make a jury question on the charge of murder. We therefore hold that this assignment of error is not well taken.

Defendant also assigns the following as error:

The court erred in failing to sustain appellant's motion for a mistrial made during the voir dire examination of jurors, which objection was made to a statement of the District Attorney that the State of Mississippi did not have to prove that the appellant did not shoot in self-defense, and the court's agreeing with the statement in the presence of the entire jury panel, and further, that the court erred in sustaining objection of the State of Mississippi made during the court (sic) of defense counsel's argument to the jury and stated outloud in the presence of the jury, 'Well, it is not a burden on the State to prove.'

This assignment of error raises questions that occurred at two different times during the trial. The first was on voir dire of the jury and the second during the closing argument.

When defendant's attorney was questioning the prospective jurors the following transpired:

BY MR. SINGLEY:

Now ladies and gentlemen, if this defendant does not take the witness stand and if the State of Mississippi fails to prove to you from the evidence up here (indicating witness chair) beyond a reasonable doubt that this defendant did not shoot in shelf (sic) defense will you vote to acquit him?

BY MR. DANTIN:

This is on the record. Awhile ago counsel said in other words the State had to prove that he did not shoot in self defense. I simply made the statement and I make it again I do not think that it is a proper statement of the law and when the right of self defense is asserted by the defendant then he must move with proof.

BY THE COURT:

I said the court agreed with that statement of the law and Mr. Singley has asked a question similar in structure to that asked before but which I think is proper as asked at this time so let the record show those statements were made and Mr. Dantin did make the statement before that he has just made at this time and the court agreed that statement is proper but will allow the jury to respond to Mr. Singley's last question.

BY MR. SINGLEY:

I want to make a motion for mistrial on that point.

(JURY RETIRES)

BY MR. SINGLEY:

I just want the record to show that those statements or substantially those same statements were made prior to the record being made in the presence of the jury. Is that a correct statement?

BY THE COURT:

Let the record show the same statements just made into the record were made in the presence of the jury and let the motion for a mistrial be OVERRULED.

Defendant contends that the jury was told that the burden of proving self-defense rested on him. His contention, stated differently, is that the burden of proof shifted to him. It is elementary that the burden of proof never shifts from the State in a criminal case. Hosey v. State, 136 Miss. 5, 100 So. 577 (1924); Hampton v. State, 99 Miss. 176, 54 So. 722 (1911) and cases annotated under Criminal Law k327, Mississippi Digest. The distinction between the burden of proof and the burden of adducing evidence was clearly set forth in Averitt v. State, 246 Miss. 49, 149 So.2d 320 (1963) where the Court stated:

This rule is expressed in 22A C.J.S. Criminal Law § 573, pp. 317, 318-319, as follows: 'In accordance with the general rules * * * the prosecution always has the burden of proving the guilt of accused beyond a reasonable doubt, accused never has the burden of satisfying the jury of his innocence, or to disprove facts necessary to establish the offense charged; but he has only the burden of raising a reasonable doubt of his guilt, and it has even been held that he does not have that burden.

'There is a manifest distinction, however between the burden of proof and the burden of adducing evidence, also known as the burden of explanation, and, while the burden of proof never shifts, the burden of adducing evidence may shift from side to side according to the testimony, and it may require accused to produce testimony for himself or suffer an inference of guilt from the facts already proved to be drawn against him by the jury. * * *' Dobbs v. State, 200 Miss. 595, 27 So.2d 551, 29 So.2d 84; White v. City of Philadelphia, 197 Miss. 166, 19 So.2d 493, Suggestion of Error Overruled, 19 So.2d 744; Page v. State, 160 Miss. 300, 133 So. 216; State v. Marquardt, 139 Conn. 1, 89 A.2d 219, 31 A.L.R.2d 1206. Cf. Forbert v. State, (179 Miss. 66, 174 So. 248), supra. (246 Miss. at 62, 63, 149 So.2d at 326).

In Reddix v. State, 134 Miss. 393, 98 So. 850 (1924) we stated:

The burden of proving the guilt of the defendant to a moral certainty and beyond every reasonable doubt is one which the state must always carry, and until it had done so it was not incumbent on the defendant to show anything. A reasonable doubt of the defendant's guilt, which would require his acquittal, may arise from the evidence offered by the state, or from a lack of evidence of guilt; . . . (134 Miss. at 397, 98 So. at 850).

When the defendant made a motion for a mistrial following the statement of the district attorney quoted above, no proof had been offered. At that time the court did not know what evidence might be offered, and could not know that self-defense might arise from the evidence offered by the state or from a lack of evidence; therefore, the court properly overruled the motion for mistrial.

The second part of this assignment of error is covered by paragraph one of the bill of exceptions which is as follows:

During the course of argument by defense counsel, defense counsel made a statement to the effect that the State had the burden of proving that the defendant, Lanell Pittman, did not act in self-defense, and the District Attorney arose to his feet and objected and stated that that was not the law, and the Court, thereupon, stated 'outloud' and in the presence of the jury, 'Well, it's not a burden on the State to prove.' No exception was taken by defense counsel to the Court's ruling. No request was made for record to be made on any such alleged statements.

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