Ruffin v. State, 55765

Citation481 So.2d 312
Decision Date04 December 1985
Docket NumberNo. 55765,55765
PartiesElzie RUFFIN v. STATE of Mississippi.
CourtUnited States State Supreme Court of Mississippi

Morris C. Phillips, Wright & Phillips, Carthage, for appellant.

Edwin Lloyd Pittman, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, C.J., and PRATHER and ROBERTSON, JJ.

PRATHER, Justice, for the court:

This is the third trial in the Newton County Circuit Court of the appellant Elzie Ruffin on a charge of murder of his wife. The first trial in March, 1981, resulted in a mistrial. The second trial in August, 1981 concluded with a conviction of the defendant and imposition of a life sentence which was reversed by this Court for the improper refusal of a manslaughter instruction. Ruffin v. State, 444 So.2d 839 (Miss.1984). This third trial also resulted in a conviction of murder and life sentence.

Elzie Ruffin appeals the present conviction and assigns as error the following:

(1) The trial court committed error in overruling appellant's motion to transcribe the court reporter's notes and by overruling appellant's renewed motion to transcribe the court reporter's notes of the first trial of the appellant which resulted in a mistrial;

(2) The court committed error by not granting appellant's motion for a directed verdict of acquittal at the close of the state's case, by not granting the defendant's motion for a directed verdict at the close of all evidence, by not granting defendant's instruction for a directed verdict and by not granting appellant's motion for a JNOV or in the alternative, a motion for a new trial;

(3) The trial court committed error by overruling defendant's motion that the trial judge recuse himself.

I.

Elzie Ruffin and the deceased, Bobbie Lee Ruffin, had been married approximately 24 years and had eight children whose permanent residence was with Elzie Ruffin. Ruffin had no prior criminal record and had worked nights as a private security guard for several years. Ruffin came home in the early morning hours of September 20, 1980, still in uniform wearing a holster and gun, and discovered the house empty. He went to the home of a male friend of his wife's and found his wife and son and took them home. An argument ensued.

Charles Jackson, a Newton County Deputy Sheriff, lived next door to Elzie Ruffin. On the morning of the incident, the young Ruffin boy came to the door of Charles Jackson, seeking his assistance to silence the argument between Elzie and Bobbie Lee. The deputy sheriff went out and found Elzie to be very mad, walking in circles around Bobbie Lee in an emotionally disturbed condition. Jackson, quoted Ruffin as saying "I'm tired of her f----- over me. I'm going to kill her."

Charles Jackson, unarmed, returned to his home to call for assistance. As Jackson entered his home, he heard a shot. He turned around and saw Bobbie Lee, some four to five feet from Ruffin, falling to the ground hitting her head on a concrete block. Jackson went to the scene where Ruffin voluntarily surrendered his gun and holster and said "I guess I'll go to the pen."

Ruffin testified that he and his wife were struggling over possession of the gun when it fired.

Bobbie Lee Ruffin died from a gunshot wound over her left eye. No challenge is made here to the cause of death, and therefore, that issue is not before the Court.

II.

Did the trial court err in overruling appellant's motion to transcribe the court reporter's notes of his first trial on March 27, 1981, which ended in a mistrial.

Appellant makes three assertions. He alleges that during the second trial, Charles Jackson admitted that he failed to repeat the exact wording used in the conversation between Elzie and himself shortly before the shooting because he didn't "want to use that [vulgar] word in front of them jurors." Jackson testified that when he went back to the office, "I was told to tell it just exactly like it happened." Appellant implies that this discrepancy in Jackson's testimony indicates potential prejudice to his client and warrants a production of the mistrial transcript. However, Jackson testified and was cross-examined fully as to his changed testimony in both prior trials.

Appellant further charges that Joe Mowdy, Chief of Police of the City of Newton, had testified in "the mistrial" but did not appear again until the trial presently under appeal. Appellant asserts that since he did not have the benefit of the transcript of the first trial, he was unable to determine if Mowdy was an impeachable witness--even though his testimony merely presented the chain of possession of the weapon which was not in dispute.

In a third argument, appellant contends that he was represented by another attorney in his first two trials and his present attorney had no personal knowledge of the foregoing proceedings--neither did he have the benefit of notes from the mistrial. This assertion overlooks the availability of the second appeal record as an alternative device for his attorney's information.

In response to the renewal motion for transcription of the court reporter's notes for the mistrial, the lower court judge stated:

I recall the testimony of the case, of the case that you refer to as being a mistrial, and the case which resulted in a conviction of this defendant, and I certainly do not recall any difference in the testimony of the witness in those cases. To the best of my recollection, each and every witness testified in both cases. For an additional reason, I am in the middle of a term of court, and we have been almost constantly in court since the first of this year. There are numerous cases on appeal to the Supreme Court which this court reporter has got to go back and on the week ends and transcribe the records in those cases. That motion is overruled.

Appellant cites Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971), as authority for the proposition that "the state must provide an indigent defendant with a transcript of trial proceeding when that transcript is needed for an effective defense or appeal." He then contends he was denied (1) due process of law guaranteed by Sec. 14 of the Mississippi Constitution of 1890 and the Fifth Amendment of the Constitution of the United States; and (2) right to counsel guaranteed by Sec. 26 of the Mississippi Constitution of 1890 and the Sixth Amendment of Constitution of United States because his court appointed counsel had no access to the transcript of the mistrial.

Appellee concedes that a state must, as a matter of equal protection, provide indigent prisoners with basic tools of adequate defense or appeal, when those tools are available for a price to other prisoners. Britt v. North Carolina, supra. See also: Jackson v. Estelle, 672 F.2d 505 (5th Cir.1982). Britt held further that when an indigent defendant's claims a right to a free transcript, two factors relevant to determination of need are: The value of the transcript to defendant in connection with appeal or trial for which it is sought, and the availability of alternative devices that would fulfill the same function as a transcript. 404 U.S. at 227, 92 S.Ct. at 433. Justice Douglas, concurring in Britt, stating that even in the absence of its specific allegations, it can ordinarily be assumed that a transcript of a prior mistrial would be valuable to the defendant in at least two ways: As a discovery device in preparation for trial, and as a tool at the trial itself for the impeachment of prosecution witnesses. Id. at 228, 92 S.Ct. at 434.

Appellee cites State v. Jones, 545 S.W.2d 659 (Mo.1979) for authority that appellant's constitutional claim lacks merit as follows:

There is no equal protection issue here. Appellant was not denied the transcript because he was indigent. See State v. Ambus, 522 S.W.2d 306, 310 (Mo.App.1975). He was furnished portions of the transcript for which he had expressed a particular interest, but was not furnished those portions which could not be prepared within the time available. Those portions would not have been "available for a price" to a non-indigent. The concept of equal protection, although greatly expanded in recent years, does not require the granting to an indigent accused rights or privileges not available to the non-indigent.

Id. at 664.

Appellant's allegations of prejudice caused by the denial of the mistrial transcript are meritless. All discrepancies as to the testimony of Charles Jackson were fully explained at the second and third trial. No prejudice resulted as to the testimony of Joe Mowdy, since there was no dispute as to the chain of possession of the evidence.

As a final note, appellant made no request in advance of trial for a continuance so that the reporter might have time to prepare a transcript as requested.

In the case sub judice it is apparent that appellant's reason to obtain the transcript bears no indication that the trial transcript would have been useful, or necessary to defendant's case, or that alternative devices were unavailable.

III.

Did the court commit error by not granting appellant's motion for a directed verdict at the close of the state's case and at the close of all evidence and by not granting appellant's motion for a JNOV or motion for a new trial.

Appellants contend that the state failed to prove that Elzie Ruffin did willfully, unlawfully and feloniously with malice aforethought kill his wife. He argues that the homicide occurred "during an affry (sic) when the deceased assaulted appellant and attempted to seize appellant's revolver." Asserting that there was insufficient evidence to support a verdict of conviction of murder by malice aforethought and that a peremptory instruction or directed verdict should have been issued, appellant cites Cochran v. State, 278 So.2d 451 (1973), which states:

The rule in regard to peremptory instruction is the same in criminal and civil cases, the rule being that when...

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