Russell v. State, 52176
| Decision Date | 10 December 1980 |
| Docket Number | No. 52176,52176 |
| Parties | Betty RUSSELL v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Roy Pitts, Meridian, for appellant.
Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before ROBERTSON, P. J., and BOWLING and COFER, JJ.
Betty Russell was indicted, tried and convicted in the Circuit Court of Lauderdale County of obtaining $4750, a diamond ring and gold band valued at $2,000, from the owner, Ollie Calmese, by false pretenses. She was sentenced to serve a term of three years with the Department of Corrections and fined $10,000. She appeals, assigning as error:
1. The trial court erred in failing to sustain Appellant's demurrer to the indictment for duplicity, in failing to grant her motion for mistrial as the other charge was proven and in failing to delete references to the other charge in the instruction thereof requested and granted the state.
2. The trial court erred in failing to grant a mistrial when requested by Appellant on grounds that the state had shown proof of another separate and distinct crime by other persons against the same victim on the day after the crime charged.
3. The trial court erred when it permitted introduction of the instrumentalities of a crime seized from the Appellant which had no relevancy to the crime charged and when it thereafter failed to grant Appellant a mistrial by reason of the evidence.
About 10:00 A.M., May 2, 1979, Ollie Calmese, an 83-year-old black male, went to the Village Fair Mall in Meridian, Mississippi, to have shoes repaired. While he sat in the main concourse of the Mall waiting for his shoes to be repaired, a black woman sat down beside him and began talking to him. Shortly thereafter another black woman came up, sat down beside them, and told them that she had found something but didn't know where to turn it in. The first woman inquired as to what she had found, whereupon the second woman opened an envelope and took out a card saying the envelope contained about $17,000. The so-called finder stated that if they wouldn't say anything about it she would give them $150. Calmese told her that he wanted no part of it. One of the women asked him if he had any money, and he answered that he had some at home. It was suggested by the two women that they go to his home and get his money, so that he could put up some good faith money and then they would divide the money in the envelope among the three of them.
They left the Mall in Calmese's automobile, with one of the women driving. One of the women went into the room with him to get his money. Defendant was pretending to use the telephone, but was so situated where she could see everything that was going on. Calmese gave the woman with him $4,750. She folded the money and put a rubber band around it and handed it back to him to keep in his inside coat pocket. While in the room getting the money, the woman with him noticed that there was a diamond ring and a gold band in a jewelry box underneath a handkerchief. She had opened the box and when Calmese noticed her looking at the rings he closed the jewelry box and put it back underneath the handkerchief. The woman with him immediately asked for a drink of water, and Calmese went with her to the kitchen to get a drink of water.
All three then returned to Calmese's car, and the other woman again drove his car with Calmese sitting on the front seat with her and the defendant, Betty Russell, sitting on the back seat.
On the way back to the Mall, defendant suggested that Calmese give her the money so she could wrap it up for him. Defendant wrapped it in a white handkerchief and handed it back to Calmese, who started to put it in his coat pocket but defendant said "No, put it in your inside pocket so you won't lose it." Calmese put the wrapped money in his inside coat pocket.
When they got back to the Mall and had parked the car, the two women suggested that Calmese go back into the Mall and meet them a short time later by Morrison's Cafeteria. He waited for them for some time, but when they did not appear, decided to get his repaired shoes and go home. When he got home he took the packaged money out of his inside coat pocket, untied it and took off the handkerchief to see if his money was all there. He found nothing but a piece of brown paper rolled up to resemble his money. He then went to check on the diamond ring and gold band; both of the rings were gone. He was so distraught and worried that he didn't tell anybody about it until the next day.
On the morning of May 3rd, two black males posing as detectives appeared at his home and showed him two rings which they said they had recovered. Calmese recognized these as his diamond ring and gold band. That afternoon he reported the theft of his money and the two rings to the police, and also told the police about the two black men posing as detectives who showed him the two rings stolen from him the day before. Late that night Detective Griffin picked up Calmese and brought him to the jail to see if he could identify a suspect that they had picked up. The line-up consisted of five black women and Calmese tentatively identified number 3 as being the woman to whom he had given his money for wrapping and returning to him.
About 4:00 the next morning, Calmese phoned the police station and told them that his Saviour, Jesus Christ, had revealed to him in a vision that number 3 in the line-up was positively the one that had taken his money, and he instructed the police to hold number 3 because she was definitely the one that had relieved him of his money.
At the trial, Sergeant Moore and Detective Lewis testified that about 8:45 the night of May 3rd they were taking a coffee break at the Holiday Inn when they noticed two black females fitting the description given the police by Calmese. With the permission of Judy Robinson in whose name the room was registered, they searched this room occupied by Judy Robinson and defendant Russell. They found several envelopes containing play money. Two plastic pouches, containing a number of $1.00 bills and one $5.00 bill, were found.
Defendant Russell was arrested and later indicted. The indictment read:
"That Betty Russell in said County, on the 2nd day of May...
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