Russell v. State
| Decision Date | 11 February 1987 |
| Docket Number | No. 56133,56133 |
| Citation | 506 So.2d 974 |
| Parties | Franklin D. RUSSELL v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
William B. Kirksey, Kirksey & DeLaughter, Jackson, for appellant.
Edwin Lloyd Pittman, Atty. Gen. by Leyser Q. Morris, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before WALKER, C.J., and DAN M. LEE and GRIFFIN, JJ.
Franklin D. Russell was tried and convicted in the Circuit Court of the First Judicial District of Hinds County, for the crime of gratification of lust, and was sentenced in a separate hearing to serve 10 years in the Mississippi Department of Corrections as an habitual offender and pay a fine of $1,000.
Russell appeals and assigns the following as error:
I. The trial court erred in failing to grant a mistrial as a result of prosecutorial misconduct during the state's closing argument;
II. The trial court erred in refusing to grant a j.n.o.v. or, in the alternative, a new trial, in that the verdict of guilt was against the overwhelming weight of the evidence.
The evidence adduced at trial established that on October 12, 1983, appellant went to the home of the victim's parents to do some renovative work on the upstairs bedroom. Testimony showed that around 3:15 in the afternoon, the eleven-year-old victim arrived home and watched television for approximately 1/2 hour before appellant discovered her presence downstairs. The victim testified that at his request, she went upstairs to try on a leather vest that Russell had made for her, and proceeded to allow Russell to "size" it for her (a process which apparently involves wetting the vest and stretching it to fit the wearer). Appellant wet the vest in the bathroom sink and then requested that the victim change out of her blue jeans and sweater and into a thinner shirt, and had her stand at the sink in the shirt and her underwear alone for the stated purpose of sizing the vest. Further testimony elicited from the victim showed that she heard a zipper, and then much pushing went on from behind, and that she felt something long, narrow and warm placed between her legs at that time.
Some five or ten minutes later the telephone rang, and the victim ran to get the phone. Testimony showed it was her mother on the phone. The victim testified as well that, just prior to hearing the phone ring, appellant had requested that she remove her underwear, to which she refused.
Finally, the victim's seven-year-old sister arrived home from school and saw appellant and the victim in the bathroom. She testified that she saw appellant pushing on the victim from behind as he leaned her sister over the bathroom counter. Her testimony collaborates that of the victim in that both girls allege that appellant's body was pressing against the victim's and was, in fact, pushing against her back.
Appellant left the home and the victim's mother arrived shortly thereafter. The victim's sister informed her mother of what had happened, and after some encouragement the mother managed to make the victim tell her the story of what had occurred.
Charges were filed the next day, on October 13, 1983, and appellant was arrested in his home.
In his first assignment of error, appellant cites numerous instances of what he deems to be prosecutorial misconduct which took place during the course of the trial, and whose occurrence he claims greatly prejudiced his cause in his conviction under the statute addressing gratification of lust, which reads:
Any person above the age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, any child under the age of fourteen (14) years, with or without the child's consent, shall be guilty of a high crime and, upon conviction thereof, shall be fined in a sum not less than One Hundred Dollars ($100.00) nor more than One Thousand Dollars ($1,000.00), or be imprisoned in the State Penitentiary not less than one (1) year nor more than ten (10) years, or be punished by both such fine and imprisonment, at the discretion of the court.
Miss.Code Ann. Sec. 97-5-23 (Supp.1986).
Upon our review of the record in the case at bar, we are not inclined to agree with appellant, and accordingly affirm the decision of the lower court.
Appellant alleges some ten (10) instances of prosecutorial misconduct by the district attorney and assistant district attorney, which he divides into three categories: (a) those comments dealing with appellant's failure to take the stand as a witness; (b) those comments amounting to vilification and abuse of appellant; and (c) comments on matters not of record in an attempt to inflame the jury.
Appellant's first category and part of this assignment of error rests on his constitutional right to remain silent and in what he alleges is improper comment made on his failure to testify during the closing argument by the assistant district attorney. Prior to his decision not to testify, appellant was told by the court that:
In addition to the right to testify, you have the right to remain silent. That is, not to take the stand and not to testify and, if you do that, then the District Attorney wouldn't be permitted to make any comment to the jury on the fact that you did not take the stand and testify. Now, the decision on whether to take the stand and testify or not is yours. You are entitled to have the legal advice of your lawyers but it's your case so you are the one that has to make the final decision. Do you understand?
(Emphasis added). Appellant declined to take the witness stand.
Subsequently, the following statements were made by the assistant district attorney to the jury:
It's time for you to stand up for the system of your community--to take a listen to a child like [the victim]--and not to mention [the victim's sister]. Let them come up here and say [the victim's sister] was lying. All you are left with is what you heard from those two little girls, from their mother and from the police officer who arrested the defendant. And, in all their testimony--
At this point, counsel for the defendant objected and moved for a mistrial based on what he alleged was a "clear" comment on defendant...
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