Rainer v. State, 54757

• Decision Date: 17 July 1985
• Docket Number: No. 54757,54757
• Citation: 473 So.2d 172
• Parties: O.L. RAINER, Jr. v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 172

473 So.2d 172

O.L. RAINER, Jr. v. STATE of Mississippi.

No. 54757.

Supreme Court of Mississippi.

July 17, 1985.

Michael B. Holleman, Boyce Holleman, Gulfport, Raymond D. Swartzfager, Jr., Laurel, for appellant.

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

Before WALKER, P.J., and DAN M. LEE and ANDERSON, JJ.

ANDERSON, Justice, for the Court:

O.L. Rainer, Jr. was convicted in the Circuit Court of Jones County for shooting into an occupied dwelling, was fined $2,500 and was sentenced to five years imprisonment. He appeals that conviction and sentence. We reverse and remand for a new trial.

O.L. "Blue" Rainer, Jr. operates a package liquor store in Laurel. Adjacent to this store is a building also owned by Rainer. At the time of the incident that spawned this case, Rainer was renting this building to James Davis, who operated a pawnbroker's shop. On July 9, 1982, Rainer and Davis had a heated argument about Davis' daughter, whom Rainer had fired from her job at the package store the previous day. There was testimony that Rainer ordered Davis to vacate the premises. Later that day, someone fired several shots at the pawn shop from a partially opened door at the rear of the package store. No one was injured.

Only two people claimed to have witnessed this incident. One was a worker in a nearby office, who testified that he saw an arm extended from the package store firing a pistol. He could not say whose arm it was. The other was Albert Earl Jackson, whose inconsistent testimony provides the principal basis for our reversal.

Jackson frequented the area around the two stores and was known to both Rainer and Davis. After the police arrived at the scene of the shooting, they interviewed Jackson, who gave them a sworn statement that he had seen Rainer fire the shots. On September 15, Jackson was interviewed by Benjamin Graves, a private investigator employed by the defense counsel. He gave Graves a sworn and notarized statement that he did not know who had fired the shots. This statement was admitted into evidence at the trial. However, during the trial, Jackson gave testimony implicating Rainer, whereupon defense counsel impeached him with his prior inconsistent statements to Graves and the Grand Jury. Jackson admitted on the stand that on his first appearance before the Grand Jury, he had professed ignorance of the shooter's identity, but that he went back and changed his story after police officials warned him of possible perjury charges against him. Jackson's employer testified that Jackson had told him he didn't know who fired the shots.

Jackson explained the constant changes in his story by asserting that he feared Rainer would harm his wife and children. Defendant, in his motion for a new trial, produced affidavits tending to show that Jackson was not married and had no children. In denying the motion, the learned trial judge noted that some people who form unofficial sexual alliances still think of their partners as wives. No doubt this is true, but it misses the point. The question is not whether Jackson's statement could be true in some sense, but whether it had a tendency to confuse and mislead the jury. We think that it manifestly did.

In any jury trial, the jury is the arbiter of the weight and credibility of a witness' testimony. Williams v. State, 463 So.2d 1064, 1069 (Miss.1985); Warren v. State, 456 So.2d 735, 738 (Miss.1984); and Browning v. State, 450 So.2d 789, 791 (Miss.1984). This Court will not set aside a conviction without concluding that the evidence, taken in the most favorable light could not have supported a reasonable juror's conclusion that the defendant was guilty beyond a reasonable doubt. Williams, supra, at 1068; May v. State, 460 So.2d 778, 781 (Miss.1984); and Fairchild v. State, 459...