Wilks v. State, 53198
| Decision Date | 16 December 1981 |
| Docket Number | No. 53198,53198 |
| Citation | 408 So.2d 68 |
| Parties | Calvin WILKS v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
W. E. Gore, Jr. and Robert G. Nichols, Jr., Jackson, for appellant.
Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
Before PATTERSON, SUGG and LEE, JJ.
LEE, Justice, for the Court:
Calvin Wilks was indicted, tried and convicted in the Circuit Court of the First Judicial District, Hinds County, Honorable William F. Coleman, presiding, on a charge of murder, was sentenced to a life term with the Mississippi Department of Corrections, and he appeals here.
I.
Did the lower court err in permitting witnesses to testify for the state whose addresses had not been furnished the appellant and in refusing to enter a mistrial because of same?
Rodney Sumrall and Eddie White testified for the state and identified appellant as the person who killed Jerry Miller. Carolyn Wilks, sister of appellant, and Percy Lee Samuel, testified for the state on rebuttal. Appellant contends that the state failed to follow the agreed order entered pursuant to Rule 4.07 of the Uniform Circuit Court Criminal Rules in that the state failed to furnish the correct address of Sumrall and White prior to trial. However, the record reflects that Sumrall's address was given as Houma, Louisiana, and such was the best address that the state had. Also, the best address of White, which the state had, was furnished to the appellant's attorney.
Appellant interposed no objection to the testimony of Carolyn Wilks and Percy Lee Samuel on rebuttal, except that he made the objection Miss Wilks had been present during the trial when the sequestration rule was invoked. The trial judge exercised his discretion and permitted her to testify. We are of the opinion that failure to raise the specific objection at trial constitutes a waiver of the point, and we find no merit to this assignment.
II.
Did the lower court err in failing to grant a mistrial when the district attorney commented upon the disappearance of Carolyn Wilks and Percy Lee Samuel during his closing argument?
In his closing argument, the district attorney said: "Calvin Wilks' sister Carolyn and her husband were here this morning, but mysteriously disappeared." Appellant objected and moved for a mistrial, which the trial judge overruled. The district attorney's total closing argument is not in the record and it is not possible for this Court to ascertain in what context the statement was made. In Peyton v. State, 286 So.2d 817 (Miss.1973), the Court said:
(W)e do not have the advantage that the trial judge has of hearing the argument as a whole. The trial judge has a peculiar and distinct advantage of the judges of this court in judging upon such questions, because he is not only familiar with the evidence and the atmosphere of the case, as it may be called, but he has heard the entire argument and knows the setting that the language complained of has in connection with the argument on both sides of a case.
Carolyn Wilks and Percy Lee Samuel were present during the trial, they were called by the state to testify on rebuttal and they were examined by the state and appellant. We are of the opinion that the remark of the district attorney under the facts and circumstances of this case does not constitute reversible error.
III.
Did the lower court err in failing to grant appellant a directed verdict or peremptory instruction of not guilty?
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