Turner v. State, 97-KA-00605-SCT.

• Decision Date: 27 August 1998
• Docket Number: No. 97-KA-00605-SCT.,97-KA-00605-SCT.
• Citation: 721 So.2d 642
• Parties: Timothy TURNER v. STATE of Mississippi
• Court: Mississippi Supreme Court

721 So.2d 642

Timothy TURNER v. STATE of Mississippi

No. 97-KA-00605-SCT.

Supreme Court of Mississippi.

August 27, 1998.

Jim Arnold, Durant, for Appellant.

Michael C. Moore, Attorney General, Jean Smith Vaughan, Special Asst. Atty. Gen., for Appellee. Before PRATHER, C.J., and BANKS and SMITH, JJ.

SMITH, Justice, for the Court:

¶ 1. On January 24, 1997, Timothy Turner was indicted by the Yazoo County Grand Jury for the crime of automobile burglary in violation of Miss.Code Ann. § 97-17-33. On April 11, 1997, Turner was given a trial by jury in the Yazoo County Circuit Court, and the jury returned a verdict of guilty against Turner. The trial court then sentenced Turner to serve a term of seven years in the custody of the Mississippi Department of Corrections with two of those years suspended. Aggrieved by the trial court's decision, Turner, by and through his attorney, Jim Arnold, now appeals to this Court and raises the following issues:

I. WHETHER TURNER WAS PREJUDICED AND DENIED THE RIGHT TO A FAIR TRIAL BY THE PROSECUTOR'S REMARKS MADE DURING OPENING AND CLOSING ARGUMENT.

II. WHETHER THE TRIAL COURT ERRED BY DENYING TURNER'S MOTION FOR A DIRECTED VERDICT AT THE END OF THE STATE'S CASE.

III. WHETHER THE TRIAL COURT ERRED BY ALLOWING JURY INSTRUCTIONS S-1 AND S-2.

IV. WHETHER THE TRIAL COURT ERRED BY ALLOWING TURNER'S FORMER ATTORNEY, KELLY COLLINS, TO TESTIFY AT TRIAL.

FACTS

¶ 2. During the late hours of April 6, 1996, John Williamson's 1990 Chevrolet pickup truck was burglarized outside Freddie's Bar and Pool Hall in Yazoo City, Mississippi. According to Williamson, he attended dinner earlier in the evening at the Main Event, a local bar, before arriving at Freddie's a few minutes before midnight. Williamson parked his truck under a security light, and his date parked her vehicle near his truck. Williamson and his date entered Freddie's and stayed for a few minutes before returning to the parking lot. When Williamson exited Freddie's, he observed a shadow in his truck and instructed his date to go back inside and call the police. Williamson then proceeded toward the truck with his .22 caliber pistol which he carried because he had not yet deposited the money from his business. Williamson reached the truck and placed the pistol to the head of Timothy Turner who was sitting in the truck on broken glass. Williamson observed that the console between the seats of the truck was open and that his stereo face and radar detector was in Turner's lap. Williamson instructed Turner to remain in the truck until the police arrived.

¶ 3. Freddie Vancleve, the owner of Freddie's, testified that both Turner and Williamson were inside the bar that night. Vancleve asked Turner to leave the bar because he was loaded and disturbing the customers. Vancleve testified that about ten minutes after Williamson had left the bar that the girlfriend informed him to call the police, and Vancleve called the police. Vancleve then went out to the parking lot to find Williamson holding a gun on Turner who was sitting inside the truck. Vancleve also observed that the truck door window was knocked out and that Turner was holding some of Williamson's things in between his legs. Vancleve further testified that he pulled Turner outside of the truck and pushed him up against the front of the truck. Vancleve detained Turner on the hood of the truck until the police arrived and arrested Turner.

¶ 4. Tammy Porter testified on behalf of the defense that when Turner was told to leave the bar that she and her husband followed him outside to the parking lot. Porter stated that her husband went back inside and that she stayed outside to make a phone call. While outside, Porter testified that she heard Turner crash his car into the side of the building and that she observed Turner get out of the car, walk up to Williamson's truck, open the door and look wildly into the truck but that she never saw Turner get inside the truck or take anything from the truck. Porter testified that while Turner was standing at the door of the truck that Williamson came toward him with a gun and pointed it towards Turner. Porter stated at this time that she went back inside and hollered, "There's somebody out here with a gun fixing to shoot this guy." Porter testified that she later returned outside to see Turner being held against the hood of the truck until the police arrived. The prosecution later in rebuttal presented testimony from Kelly Collins, Turner's former attorney who represented him at the preliminary hearing, that Tammy Porter was related to Turner's mother.

DISCUSSION OF THE LAW

I. WHETHER TURNER WAS PREJUDICED AND DENIED THE RIGHT TO A FAIR TRIAL BY THE PROSECUTOR'S REMARKS MADE DURING OPENING AND CLOSING ARGUMENT.

¶ 5. Turner first contends that he was prejudiced by the prosecutor's remarks made in his opening argument referring to Turner as a "burglar." During his opening argument, the prosecutor made the following statement:

The defendant in this case today is Timothy Turner. He's a burglar. We'll prove that to you today. If you've ever wondered what one looks like, that's what one looks like right there.

After this remark was made by the prosecutor, defense counsel objected to the statement, and the trial court sustained the objection and instructed the jury to disregard the statement made by the prosecutor.

¶ 6. This Court, in McFee v. State, 511 So.2d 130 (Miss.1987), addressed the effect of a trial court sustaining an objection to a prosecutor's remarks characterizing the defendant and instructing the jury to disregard the remark as follows:

Where a prosecutor engages in conduct such that the defendant's right to a fair trial is substantially impaired, and where the trial judge improperly fails to grant a mistrial, this Court will reverse on appeal. Hickson v. State, 472 So.2d 379, 384 (Miss. 1985); Clemons v. State, 320 So.2d 368, 372 (Miss.1975); Pieratt v. State, 235 So.2d 923, 924-25 (Miss.1970). Yet, a timely objection, promptly sustained with an instruction for the jury to disregard the prosecutor's comments, is generally sufficient to dissipate any taint of prejudice. Johnson v. State, 477 So.2d 196, 210 (Miss. 1985); Hanner v. State, 465 So.2d 306, 311 (Miss.1985); Terrell v. State, 262 So.2d 179, 181 (Miss.1972).

....

Clearly, it is impermissible for the prosecutor to abuse or vilify the defendant in his arguments before the jury, thereby appealing to its passion or prejudice. Curry v. State, 328 So.2d 328, 330 (Miss.1976); Stewart v. State, 263 So.2d 754, 758-59 (Miss.1972); Craft v. State, 226 Miss. 426, 434, 84 So.2d 531, 534-35 (1956). Yet, consistent with the authority cited above, there is no error where, as here, the trial judge sustains a seasonable objection, instructing the jury to disregard the comment.

McFee v. State, 511 So.2d 130, 135 (Miss. 1987). In the case sub judice, we find that there is no error, for the trial court properly sustained the objection of defense counsel and instructed the jury to disregard the comment made by the prosecutor. McFee, 511 So.2d at 135 (citations omitted). Thus, the trial court's actions dissipated any taint of prejudice to Turner. Id.

¶ 7. Turner next contends that remarks made by the prosecutor during closing arguments were highly prejudicial and warrant reversal. During the prosecutor's closing argument, the following argument was made by the prosecution:

Just blaming the victim. Putting the victim on trial here. He had been violated by having his truck broken into, and then violated by losing money; he had been violated by leaving his business. He's got a small business, got one person out there that helps him a little bit. Hadn't been violated enough. Just blame the victim.

Is that what we want? Is that what our society has gotten to? Ladies and gentlemen, it's up to you to put a stop to this type of behavior. It's up to you to hold Timothy Turner responsible for what he did out there that night. We've done everything that we can do. The police department, the law enforcement in Yazoo City and Yazoo County, they have done absolutely everything that they can do. Can't ask anymore from them. We've done everything that we know how to do. We've all done our jobs.

Ladies and gentlemen of the jury, you were picked as a jury because you've all got common sense, you come from diverse backgrounds, you're good, voting citizens of Yazoo City and Yazoo County, like Mr. Williamson, the victim in this case; like these law enforcement people. Not like Timmy Turner.

However, after this argument was made before the jury, defense counsel failed to make a contemporaneous objection to the argument.

¶ 8. This Court, in Johnson v. State, 477 So.2d 196 (Miss.1985), stated:

We next observe it is the duty of a trial counsel, if he deems opposing counsel overstepping the wide range of authorized argument, to promptly make objections and insist upon a ruling by the trial court. The trial judge first determines if the objection should be sustained or overruled. If the argument is improper, and the objection is sustained, it is the further duty of trial counsel to move for a mistrial. The circuit judge is in the best position to weigh the consequences of the objectionable argument, and unless serious and irreparable damage has been done, admonish the jury then and there to disregard the improper comment.

Johnson v. State, 477 So.2d 196, 209-10 (Miss.1985) (citations omitted). Thus, this Court has continuously held that a defendant "was procedurally barred from challenging remarks made by the prosecution during closing argument when the record demonstrated that the defendant did not lodge a contemporaneous objection at trial." Davis v. State, 660 So.2d 1228, 1246 (Miss.1995) (citing Foster v. State, 639 So.2d 1263, 1289 (Miss.1994)); see also Lester v. State, 692 So.2d 755, 795-96 (Miss.1997)

(holding issue waived where defense counsel failed to object to prosecutor's comments at trial); ...