Russell v. State, No. 56133

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtBefore WALKER; GRIFFIN; WALKER
Citation506 So.2d 974
Docket NumberNo. 56133
Decision Date11 February 1987
PartiesFranklin D. RUSSELL v. STATE of Mississippi.

Page 974

506 So.2d 974
Franklin D. RUSSELL
v.
STATE of Mississippi.
No. 56133.
Supreme Court of Mississippi.
Feb. 11, 1987.
Rehearing Denied May 20, 1987.

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.

GRIFFIN, Justice, for the Court:

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

Page 975

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.

I.

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...

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21 practice notes
  • Nicholson v. State, No. 57471
    • United States
    • United States State Supreme Court of Mississippi
    • March 16, 1988
    ...Pearson v. State, 428 So.2d 1361, 1364 (Miss.1983); Groseclose v. State, 440 So.2d 297 (Miss.1983). See also, Russell v. State, 506 So.2d 974, 977 (Miss.1987); Shive v. State, 507 So.2d 898, 900 (Miss.1987); Johnson v. State, 511 So.2d 1360, 1367 Since the evidence basically presented a que......
  • Griffin v. State, No. 03-DP-0068
    • United States
    • Mississippi Supreme Court
    • February 14, 1990
    ...attorneys must not directly, or by innuendo or insinuation, comment on a defendant's not testifying." Along came Russell v. State, 506 So.2d 974, 976 (Miss.1987), in which the district attorney told the jury all they had left was the testimony of the two little girls, their mother and the p......
  • Monroe v. State, No. 57050
    • United States
    • United States State Supreme Court of Mississippi
    • September 9, 1987
    ...193 (Miss.1987); Davis v. Smith, 406 So.2d 795 (Miss.1981); Reddick v. State, 72 Miss. 1008, 16 So. 490 (1895). Cf. Russell v. State, 506 So.2d 974, 976 The only question here is whether the exchange between the assistant district attorney and Jethro Jones could be construed by a reasonable......
  • Gibson v. State, No. 92-KA-00166-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • July 20, 1995
    ...the verdict is against the substantial weight of the evidence." Leflore v. State, 535 So.2d 68, 70 (Miss.1988) (citing Russell v. State, 506 So.2d 974, 977 (Miss.1987); Burt v. State, 493 So.2d 1325, 1328 (Miss.1986) and Winters v. State, 473 So.2d 452, 461 Viewing the evidence in the light......
  • Request a trial to view additional results
21 cases
  • Nicholson v. State, No. 57471
    • United States
    • United States State Supreme Court of Mississippi
    • March 16, 1988
    ...Pearson v. State, 428 So.2d 1361, 1364 (Miss.1983); Groseclose v. State, 440 So.2d 297 (Miss.1983). See also, Russell v. State, 506 So.2d 974, 977 (Miss.1987); Shive v. State, 507 So.2d 898, 900 (Miss.1987); Johnson v. State, 511 So.2d 1360, 1367 Since the evidence basically presented a que......
  • Griffin v. State, No. 03-DP-0068
    • United States
    • Mississippi Supreme Court
    • February 14, 1990
    ...attorneys must not directly, or by innuendo or insinuation, comment on a defendant's not testifying." Along came Russell v. State, 506 So.2d 974, 976 (Miss.1987), in which the district attorney told the jury all they had left was the testimony of the two little girls, their mother and the p......
  • Monroe v. State, No. 57050
    • United States
    • United States State Supreme Court of Mississippi
    • September 9, 1987
    ...193 (Miss.1987); Davis v. Smith, 406 So.2d 795 (Miss.1981); Reddick v. State, 72 Miss. 1008, 16 So. 490 (1895). Cf. Russell v. State, 506 So.2d 974, 976 The only question here is whether the exchange between the assistant district attorney and Jethro Jones could be construed by a reasonable......
  • Gibson v. State, No. 92-KA-00166-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • July 20, 1995
    ...the verdict is against the substantial weight of the evidence." Leflore v. State, 535 So.2d 68, 70 (Miss.1988) (citing Russell v. State, 506 So.2d 974, 977 (Miss.1987); Burt v. State, 493 So.2d 1325, 1328 (Miss.1986) and Winters v. State, 473 So.2d 452, 461 Viewing the evidence in the light......
  • Request a trial to view additional results

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