Smith v. State
| Decision Date | 03 August 1988 |
| Docket Number | No. 57532,57532 |
| Citation | 530 So.2d 155 |
| Parties | Albert Lynn (Lyn) SMITH v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
H.R. Garner, Garner & Garner, Gerald W. Chatham, Hernando, for appellant.
Edwin Lloyd Pittman and Mike Moore, Attys. Gen. by Pat Flynn, Sp. Asst. Atty. Gen. Jackson, for appellee.
Before ROY NOBLE LEE, C.J., and ROBERTSON and ANDERSON, JJ.
Albert Lynn (Lyn) Smith was indicted and tried in the Circuit Court of DeSoto County for the murder of Georgia Smith, his wife. The jury found Smith guilty of manslaughter and he was sentenced by the court to a term of eighteen (18) years in the custody of the Mississippi Department of Corrections. He has appealed to this Court and assigns six (6) errors in the trial below.
THE LOWER COURT ERRED IN FAILING TO SUSTAIN THE MOTION FOR
BY DEFENDANT AT THE CONCLUSION OF ALL THE EVIDENCE BASED ON
THE WEATHERSBY RULE.
Around 4:30 a.m. on August 19, 1984, the sheriff of DeSoto County was notified that an ambulance had been dispatched to a grocery store in a rural part of the county, and that there had been a shooting. When the sheriff, deputies and ambulance arrived at the grocery store, they found appellant waiting. The following conversation took place:
Sheriff: What happened?
Appellant: I shot my wife.
Sheriff: How bad?
Appellant: Pretty bad.
Appellant led the officers and the ambulance to his house. They found the appellant's wife, Georgia, dead in the bedroom. She was nude, in bed with the covers pulled up to her neck, and she had been shot in the face with a .44-caliber revolver, which was found on the floor in the bedroom closet. There were four live cartridges and one spent cartridge in the revolver. Blood was found on the door frame leading into the bathroom; there was blood on the bathroom light switch, and a towel with some blood on it was found in the bathroom sink. The officers also observed blood on appellant's forearm.
At trial, a crime lab technician testified that a blood sample taken from appellant at 8:00 a.m. tested positively for .09% alcoholic content; that, at the rate of alcohol dissipation, appellant's blood alcohol would have been .12% at the time of the shooting four hours earlier; and that the percentage of alcohol in his blood meant that appellant was legally intoxicated at the time of the homicide.
According to an FBI crime lab technician, appellant's hands tested negative for the presence of gunpowder, and the victim's hands tested positive. The record indicates that after the shooting, appellant washed his hands. The tests meant that the victim was shot at close range.
A bar maid testified that a week before the shooting she saw appellant in the bar where she worked and overheard him say to another person,
The victim was employed as a bank teller, and, according to three of her co-workers, appellant and his wife had been having difficulties, the victim was unhappy, and the appellant had a violent temper. The victim's mother testified that the marriage was an unhappy one; that appellant had a violent temper; and that she had witnessed arguments and altercations between appellant and the victim.
Appellant's defense was to the effect that he came home about 4 a.m.; his wife began fussing at him; he went to the bathroom and, upon returning to the bedroom, he found his wife sitting up in bed with a pistol pointed at him; she said, "I'm going to put an end to this once and for all;" that he grabbed for the gun, fell on top of his wife, and while they were struggling over the gun, it fired accidentally.
We have said before and now repeat that it is a rare case that meets the requirements of the rule in Weathersby v. State, 165 Miss. 207, 147 So. 481 (1933). Berry v. State, 455 So.2d 774, 776 (Miss.1984). The Weathersby question is not only whether the evidence conflicts, but also whether the evidence is contrary to the physical facts, and what reasonable conclusions may be drawn from the uncontradicted evidence. Burge v. State, 472 So.2d 392, 396 (Miss.1985).
In the case sub judice, appellant was the only eye witness to the homicide and he claims that the victim was accidentally shot and killed. We think that the appellant's account of what happened is substantially contradicted in the following particulars:
(1) The photographs of the scene showed no signs of the struggle which appellant described in his testimony.
(2) Appellant's account of how the victim was holding the gun showed that it would have been mechanically impossible to fire it.
(3) There was conflicting testimony regarding the appellant's marriage and his reputation for peace or violence.
(4) The evidence adduced at trial indicated that appellant's mental faculties at the time of the shooting may have been adversely affected by alcohol and/or drugs. Expert testimony indicated alcohol and codeine were found in appellant's urine and/or blood indicating he was intoxicated at the time of the shooting.
(5) When the sheriff first saw appellant at the grocery store, appellant said, "I shot my wife.... pretty bad."
We are of the opinion that the facts constituted a guilt issue for the jury to determine and that the verdict of the jury is supported by the evidence.
Assigned Error I is rejected.
THE LOWER COURT ERRED BY NOT REQUIRING THE STATE TO PRODUCE
ENFORCEMENT OFFICERS.
Pursuant to Rule 4.06, Mississippi Uniform Criminal Rules of Circuit Court Practice, appellant requested a copy of any recorded statement of appellant made to any law enforcement officer. Two months prior to trial, the State responded,
The oral statement refers to that already mentioned where appellant told the officers at the grocery store he shot his wife.
Although appellant knew two months in advance of trial that the oral statement had been made to the officers, he claims that he only learned of the substance of the statements at the suppression hearing. During the trial, the defense questioned the sheriff about other oral statements of the appellant. The judge refused to allow the line of questioning on the basis that such testimony was self-serving. However, the jury was excused, and the sheriff stated the only other oral statement given by appellant was that he did not know where the gun was and that he might have thrown the gun away on the road to the grocery store. This latter statement was not disclosed to the jury. The appellant and his counsel knew that the gun had been found in the closet of the bedroom.
This Court has held that oral statements given to law enforcement authorities are discoverable under Rule 4.06. Franklin v. State, 460 So.2d 104 (Miss.1984). The State disclosed that oral statements were made and specified to whom they were made, but failed to give the substance of the statements. We are of the opinion that the State's failure to disclose the substance of an oral statement(s) was made two months before trial, i.e., "I shot my wife ... pretty bad," did not result in a miscarriage of justice.
During the direct examination of investigator Jack McCauley, called by the State, the witness made reference to a certain page of handwritten notes he prepared at the crime scene. This reference was made to ascertain the exhibit numbers assigned to items of evidence collected at the scene. On cross-examination, the defense established that appellant had made oral statements to the witness and that the witness had recorded those statements in the same handwritten notes he referred to on direct. The defense then objected on Rule 4.06 grounds, noting the State's discovery response that "[n]o recorded statement exits." The trial judge conducted an in-camera review of the notes and held that the defense could not cross-examine the witness on those statements because they were self-serving. However, "out of an abundance of precaution," the judge ruled that the defense should be allowed access to the notes before proceeding further. The defense read the notes and announced that it was ready to continue. Cross-examination then proceeded without any further mention of the notes or the statements recorded therein.
Although appellant made a timely objection to the notes, after examining them, he failed to move for a continuance or a mistrial and announced that he was ready to proceed. He failed to make a proper motion to preserve his objection. See Shaw v. State, 521 So.2d 1278 (Miss.1987); Griffin v. State, 504 So.2d 186, 195 (Miss.1987); Cabello v. State, 471 So.2d 332, 343 (Miss.1985).
The assigned Error II is rejected.
THE LOWER COURT ERRED IN NOT ALLOWING DEFENDANT AN
OPPORTUNITY TO INSPECT AND TO TEST THE ALLEGED
WEAPON PRIOR TO TRIAL.
Appellant's discovery request sought access to the murder weapon in order to "inspect ... test, and photograph" it and to "examine" the gun "and any projectiles that were removed from the body of the deceased...." The weapon was in the possession of the State Crime Lab until the night of Friday, February 22, 1985; the trial started Monday, February 25, and, at that time, the appellant and his counsel had not seen the weapon. After the jury had been empaneled, but before the first witness was called, appellant's attorney advised the court that he had not yet examined the gun, and the lower court ruled on the request with the following language:
[T]he weapon can be examined in the presence of the Defendant, defense counsel and State's attorneys, and then beyond that, if there's any further request, I'll just have to deal with it at that point.
Appellant contends that there was a Rule 4.06 discovery violation,...
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