Barnes v. State

532 So. 2d 1231, 1988 WL 86772
CourtMississippi Supreme Court
DecidedAugust 17, 1988
Docket57863
StatusPublished
Cited by41 cases

This text of 532 So. 2d 1231 (Barnes v. State) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barnes v. State, 532 So. 2d 1231, 1988 WL 86772 (Mich. 1988).

Opinion

532 So.2d 1231 (1988)

Harold BARNES
v.
STATE of Mississippi.

No. 57863.

Supreme Court of Mississippi.

August 17, 1988.
Rehearing Denied November 16, 1988.

*1232 Travis Buckley, Ellisville, for appellant.

Edwin Lloyd Pittman and Mike Moore, Attys. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before HAWKINS, P.J., and ANDERSON and GRIFFIN, JJ.

HAWKINS, Presiding Justice, for the Court:

Harold Barnes has appealed from his conviction of murder in the circuit court in the First Judicial District of Harrison County and sentence to life imprisonment; that court tried his case upon a change of venue from the circuit court of the Second Judicial District of Jones County.

This is Barnes's second appeal, we reversed his first conviction because of the State's violation of the discovery rule in Barnes v. State, 471 So.2d 1218 (Miss. 1985).

The issues we address on this appeal are admitting rebuttal testimony which arguably was properly a part of the State's case-in-chief, restriction of cross-examination, and refusing requested defense instructions.

Finding no error, we affirm.

*1233 TRIAL

Barnes, a pharmacist, was convicted of murdering his wife, Mrs. Beverly Barnes, a severe diabetic, by a massive overdose of insulin, and then faking an automobile accident as the cause.

He does not challenge the sufficiency of the evidence to support his conviction, and we resist the temptation to detail the facts of this unusual crime, revealing the paradoxial combination of ingenuity and gross stupidity (or simple-mindedness), so frequently found in a criminal head.

When Barnes testified he was asked on cross-examination:

Q. Do you know a many by the name of John Tracey?
A. I — I know of him.
Q. Did you or did you not owe John Tracey $30,000?
A. I do not and I did not.

The State first offered Tracey as a witness in rebuttal. Defense counsel objected:

Your Honor, before the jury is brought back, let me make this objection to this proffer of testimony of the witness Tracey. The testimony of this witness, to my understanding, it wouldn't be any different than it was before, and we object on the grounds that no proper predicate was lain and it is not proper rebuttal, and there has been no relevancy shown to the issues in this case.
I do have knowledge of the fact that it was previously ruled inadmissible under the records in this case, and I anticipate it to be substantially the same.

As a witness, Tracey was asked on direct examination:

Q. And have you ever engaged or had any business dealings with him in the past?
A. In the past, yes, sir.
Q. All right, and let me be a little more specific and ask you, as a result of those business dealings during the early months of 1980 and before April 7, 1980, whether or not the defendant, Harold Barnes, owed any money?

MR. BUCKLEY:

To which we object, Your Honor. There has not been a proper predicate lain for it and it is not proper rebuttal and it is not relevant to the issues in this case.

BY THE COURT:

Overruled.
A. Yes, sir, he did owe me some money.
Q. How much?
A. A little over $30,000.00.
Q. Were you ever paid?
A. No, sir.

Defense counsel then attempted to cross examine Tracey as follows:

Q. Have you ever sued Mr. Barnes for that money?
A. Did I ever sue him for the money?
Q. Yes, sued him for the money that you said he owed you?
A. No, sir, I didn't sue him.
Q. Why didn't you sue him?
A. Why didn't I sue him?
Q. Yes, sir.
A. Well, I —
Q. — it was because you knew you couldn't collect it, wasn't it?

MR. COLLINS:

We object to that, if the Court please. That's not relevant.

THE COURT:

Sustained.
Q. You knew you had no validly enforceable claim against Mr. Barnes, didn't you, is the reason you didn't sue him?

MR. WALTERS:

We object to that.
Sustained.
Q. Mr. Tracey, was the reason you didn't sue Mr. Barnes is because you had nothing in writing from him that you could show where you — you could not document where you had ever delivered anything to him, and you had no documentation whatsoever where he had received anything from you? Is that the reason you didn't sue him?

*1234 MR. WALTERS:

We object to that, if the Court please.
I sustain the objection.

LAW

Barnes's first two assignments of error complain of the inadmissibility of Tracey's testimony in rebuttal because no proper predicate had been made, and also sustaining the State's objection to defense counsel's cross-examination.

In the recent case of Hosford v. State, 525 So.2d 789, 792 (Miss. 1988), citing Roney v. State, 167 Miss. 827, 150 So. 774 (1933), we held that the State should not withhold evidence for rebuttal which properly belonged as a part of its case-in-chief. It is not always clear, however, whether evidence properly is part of the State's case-in-chief, or rebuttal. In gray areas, some discretion must be afforded the circuit court, especially when the defendant is offered an opportunity for surrebuttal. Breakfield v. State, 275 So.2d 860 (Miss. 1973). It was discretionary with the circuit judge in this case whether to allow this testimony in rebuttal.

Clearly a sufficient predicate was laid to offer Tracey as a witness. Barnes was asked if he knew him, and if he owed him. He denied owing Tracey any money. While the relevancy of Tracey's testimony was borderline, there was no abuse of discretion in admitting it. Mississippi Rules Evidence (MRE) 103; U.S. v. Medel, 592 F.2d 1305 (5th Cir.1979), rehearing den. 597 F.2d 772 (5th Cir.1979).

Nor can we say it was an abuse of discretion for the circuit judge to sustain the objections of the State to defense counsel's questions. Barnes's counsel was clearly entitled to ask Tracey the circumstances surrounding the indebtedness he claimed Barnes owed. Instead, he asked Tracey why he had not sued Barnes, to which an objection was sustained. Then he asked Tracy if the reason he had not sued was because he had nothing in writing upon which to base a suit, and again the court sustained the State's objection. Why Tracey had not sued Barnes may or may not have had anything to do with whether or not he owed him over $30,000. Also, whether or not there was some evidence of the debt in writing was hardly determinative of whether or not Barnes owed him the money. Again, while it may have been preferable for the trial court to have permitted Tracey to give his answers to these questions for whatever they were worth, we cannot say there was an abuse of discretion in sustaining the State's objection.

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Bluebook (online)
532 So. 2d 1231, 1988 WL 86772, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barnes-v-state-miss-1988.