Wilson v. State

Citation390 So.2d 575
Decision Date04 June 1980
Docket NumberNo. 51869,51869
PartiesEmory M. WILSON v. STATE of Mississippi.
CourtUnited States State Supreme Court of Mississippi

Holleman & Krogstad, Boyce Holleman, Louis Guirola, Jr., Gulfport, for appellant.

Bill Allain, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before SMITH, P. J., and BROOM and COFER, JJ.

BROOM, Justice, for the Court.

Armed robbery conviction and sentence of twenty years imprisonment resulted from trial of the defendant Emory M. Wilson in the Circuit Court of Forrest County. His defense, refused by the jury, was that he participated under "duress." 1 Wilson appeals contending that the lower court committed reversible error as to (1) evidentiary rulings, (2) severity of the sentence, (3) refusal of a jury instruction, and (4) he asserts that his trial counsel was neither competent nor effective. We affirm.

According to the testimony, the defendant Wilson (either alone or acting jointly with others) robbed three U.S. Army Reserve Officers of approximately $27,000 cash payroll money which they were about to pay to Army Reserve students at the University of Southern Mississippi (USM). Wilson had previously commanded a school conducted for the military on the USM campus. The officers had brought the money from Camp Shelby and had proceeded to Elam Arms Dormitory, USM. While getting out of the car, the officers heard a voice say, "Don't you go in there. Don't you go in there." Then observed by the officers was a man, with a rifle pointing at them, who stated, "I have two other men behind the fence with shotguns. I want you to put the bags down and go inside the building and lay face down on the floor." None of the officers were subsequently able to identify the man's face, because he was wearing a "ski mask" or "navy watch cap" over his head. The officers left the money on the pavement, went inside the Elam Arms Dormitory and lay face down on the floor as they were ordered to do. After hearing a sound like a chain going through the door handle, and waiting a short time without hearing anything else, they ran to the door which they found locked. They promptly notified the authorities and an investigation began.

Wilson, a Colonel in the Army Reserve, was subsequently implicated and jailed in Fulton County, Georgia from where he waived extradition. According to Wilson, his involvement in the robbery came about in a most unusual manner. He states that in 1977, he was given a telephone number of a man named Blake Brown, who "loaned money at high rate interest". Wilson called Brown, and after several meetings with Brown in the Atlanta, Georgia area, obtained a $3,000 loan from him. Wilson's introduction to Brown came through a woman known only as Linda (she did not testify), with whom Wilson admitted having had an affair.

Further testimony of Wilson (though rejected by the jury) is summarized as follows. In July of 1978, when he had not repaid this loan, Brown ordered him to come to Hattiesburg, Mississippi from Indiantown Gap, Pennsylvania. Because Brown threatened to burn his business and threatened Wilson's wife and children, Wilson came to Mississippi and met Brown in Hattiesburg as instructed. There Brown beat him up and threatened him further, after which another man known to him only as "John" joined them. Detailed plans were made by Brown and John pursuant to which the three of them (Wilson driving) proceeded to Elam Arms where Wilson remained in the car with Brown while John went some place. John shortly came back, jumped in the back seat, and they all left. 2 Wilson stated that this rifle was an M1-30 carbine which he had at one time owned. He sold the rifle to Blake Brown for $800, and when told the going rate for such a rifle was $114.95, he said that he thought it strange Brown would pay such a price, but took the money anyway. 3

After driving down a road, they stopped at a dead end where the other two men fled thinking a police car was coming. Wilson then found in his car the money taken in the robbery, and headed back to Georgia as instructed. At Andalusia, Alabama he stopped for gas and discovered a rifle, which he had not previously known was there, on the back seat of the car.

Upon arrival in Atlanta, he went to the Alamo Plaza Motel and registered as instructed in the name of James Brown. He hid the money behind a restaurant but subsequently surrendered to authorities, and turned in the money, and within a day or two was back in Mississippi. Other testimony will be stated where appropriate herein.

Wilson asserts that he was denied due process of law when the lower court excluded certain testimony consisting of threats communicated to him. While testifying, Wilson was asked to repeat what one of the other two alleged participants in the robbery said to him as a direct threat, but the prosecutor's objection (hearsay) was sustained. The following example is excerpted from the record of Wilson's testimony:

BY MR. CONNER: Please tell the jury the threats as it pertained to your life, of exposure of your infidelity, or danger to your family or whatever it was that made you come to a rendevous . . . Colonel, I want you to state exactly what the man said to you verbatim.

BY MR. PHILLIPS: Objection, Your Honor.

BY THE COURT: Sustained.

BY MR. WILSON: The man, he was evidently in a rush. He came up to me and wanted to know, "Where in the world, you S.O.B., where in the world you been?" And I said, "What do you mean?" and he said,

BY MR. PHILLIPS: Objection, Your Honor.

BY THE COURT: Sustained.

Suggestive and leading aspects of the query are obvious but were not basis of the objection. Wilson's contention is that in sustaining the prosecution's objection, the trial court denied him his rights guaranteed under the Fourteenth Amendment of the United States Constitution, which states in part:

nor shall any State deprive any person of life, liberty, or property without due process of law.

Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) is relied upon in support of Wilson's contention that hearsay testimony critical to his defense, may not be mechanistically excluded to defeat the ends of justice. Chambers is patently distinguishable from the case at bar because in the present case there was no other corroborating evidence as to the alleged statements made to Wilson by Brown, who was not available for cross-examination by the state. Additionally, Chambers had in it the element of declaration against interest but here it cannot be said that the threats which Wilson sought to introduce constituted declarations against him.

Argument is made that the testimony of detailed threats made to Wilson would have shown his reasonable apprehension of danger or state of mind under Harley v. State, 345 So.2d 1048 (Miss.1977) and Evans v. State, 315 So.2d 1 (Miss.1975). In Harley, we stated that:

It was fatal error to exclude this testimony because it was offered not for the truthfulness of the threats but merely to show the apprehensive state of mind of (345 So.2d at 1050).

the defendant at the time of the fatal encounter.

Handshoe et al. v. Daly et al., 211 Miss. 189, 51 So.2d 230 (1951) held that:

This testimony was admissible as an independently relevant fact to explain the circumstances under which these particular claimants furnished the materials for which they were claiming, and the truth or falsity of Handshoe's quoted statement was not a fact in issue, and hence the hearsay rule does not apply.

(211 Miss. at 193, 51 So.2d at 232).

In resolving this issue, we are mindful that Wilson was allowed to fully explain to the jury that he was at all times during the commission of the armed robbery "covered with a shotgun", and in awesome fear of the other two alleged participants in the robbery. Also, he was allowed to describe in great detail that his business had been threatened, his children had been threatened, and he himself had been threatened over the telephone when Blake Brown called him. Actual statements made by the other two participants in the armed robbery would have been cumulative of an abundance of testimony heard by the jury as to duress. Wilson was liberally allowed to present his defense of duress to the jury and relate to them that he was at all times during the course of the robbery in fear of his life, and fearful of other threatened calamities. It is noted here that Wilson (in response to a telephone call) placed himself in the hands of the other two participants in the armed robbery without making any attempt to invoke the aid and assistance of the authorities in any state from Pennsylvania to Mississippi. Also, he had ample opportunity to contact the Mississippi and/or Georgia authorities after the commission of the robbery but elected not to do so, although he did eventually surrender the money to the Army at Fort McPherson, Georgia. Harley, supra, did not say and does not mean that reversible error occurs every time testimony of this type is excluded. Exclusion here resulted in a large measure from sustaining objections to questions which were both leading and quite suggestive of answers. Again, as noted above, the defendant was allowed to freely testify time and again that threats against his children, his business, his life, and to expose his acts of infidelity were made prior to the robbery. Further, he testified that at all times during the actual commission of the robbery a shotgun was poked in his side, with Blake Brown's finger on the trigger. According to Wilson's testimony which the jury heard, it is obvious that at all times he claimed to be acting in response to mortal fear for his life, family, and property. Indeed, after the robbery when the three went back to the van and then went down the dead end street where he was left with the money and the gun, he was afraid he was going to "get his brains blown out."

Upon the testimony, exclusion of...

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