Lenard v. State

828 So. 2d 232, 2002 WL 1554526
CourtCourt of Appeals of Mississippi
DecidedJuly 16, 2002
Docket2001-KA-00389-COA
StatusPublished
Cited by5 cases

This text of 828 So. 2d 232 (Lenard v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lenard v. State, 828 So. 2d 232, 2002 WL 1554526 (Mich. Ct. App. 2002).

Opinion

828 So.2d 232 (2002)

Jerry LENARD, Appellant,
v.
STATE of Mississippi, Appellee.

No. 2001-KA-00389-COA.

Court of Appeals of Mississippi.

July 16, 2002.
Rehearing Denied October 1, 2002.

*233 Darnell Felton, Clarksdale, attorney for appellant.

Office of the Attorney General, by John R. Henry Jr., attorney for appellee.

Before KING, P.J., BRIDGES, and CHANDLER, JJ.

*234 KING, P.J., for the court.

¶ 1. Jerry Lenard was convicted by a jury and sentenced in the Circuit Court of Coahoma County for possession of a firearm by a convicted felon. Lenard appeals his conviction and argues on the following issues, we cite verbatim:

Whether the entire venire panel was tainted after a venireperson stated that she was an alternate juror in a previous trial of Jerry's and could not be fair toward Jerry.
Whether the State's questions about the exercise of Jerry's right to remain silent at the time of his arrest impermissibly infringed upon Jerry's right to remain silent under the federal and state constitutions.
Whether Jerry was entitled to a continuance because the State failed to disclose the substance of Loretta's testimony in order for Jerry to procure evidence to attack her credibility and to rebut her testimony.
Whether the proper label for Jerry's defense was necessity and not self-defense whereby it was imperssible [sic] for his defense to be labelled [sic] as self-defense.
Notwithstanding issue IV, whether the jury instructions taken as a whole informed the jury that the state must disprove self-defense beyond a reasonable doubt.
Whether the cumulative of [sic] errors denied Jerry a fundamentally fair trial.

FACTS

¶ 2. On June 3, 2000, Officer Jessie Barnes of the Clarksdale Police Department was dispatched to the residence of Jerry Lenard and his wife, Loretta Curb Lenard (Ms. Curb). Upon arrival, Officer Barnes heard loud voices inside the house. When no one responded to his knock, he tried the door and found that it was unlocked. When he entered the house, Ms. Curb stated that Lenard had a gun. Officer Barnes then pulled his weapon, told Lenard to lie on the floor, and asked where was the gun. Lenard stated that it was in his pants. Officer Barnes directed Lenard to rollover and then removed the gun. No other statements were made by Lenard.

¶ 3. Upon his arrival at the police station, Lenard was read his Miranda rights by Officer Chris Salley.

¶ 4. Charged with possession of a firearm by a convicted felon, Lenard was tried on January 24, 2001. During jury selection, a panel member indicated that she had served as an alternate juror in a previous case involving Lenard. She stated that having done so, called into question her ability to render an impartial verdict. The prospective juror stated that she did not know whether she could give a fair verdict to Lenard in the present case. Lenard then requested but was denied a mistrial. The trial court offered to give a limiting instruction, which Lenard refused.

¶ 5. Lenard was found guilty and sentenced to three years without the possibility of parole.

ANALYSIS

I.

Whether the entire venire panel was tainted after a venireperson stated that she was an alternate juror in a previous trial of Lenard's and could not be fair toward Lenard.

¶ 6. Lenard states that he was prejudiced by the voluntary remarks of the venireperson, who questioned whether she could render an impartial verdict because of her service as an alternate juror in a prior trial involving Lenard. He suggests *235 those voluntary remarks entitled him to a mistrial.

¶ 7. The State notes that while claiming prejudice, Lenard refused the trial court's offer to admonish the jury to disregard these remarks.

¶ 8. The decision to declare a mistrial rests within the sound discretion of the trial judge. Evans v. State, 725 So.2d 613 (¶ 14)(Miss.1998). In Evans, the trial court did not declare a mistrial and did not admonish the jury after the improper comments of a potential juror. Id. Although the trial court failed to admonish the jury to disregard the comment, the Mississippi Supreme Court ruled that a review of the prosecutor's follow-up questions suggested that "there was nothing to indicate that the venire panel had been biased, prejudiced or would be less than fair in discharging its duty by what had occurred." Id. at (¶ 116).

¶ 9. Similarly, in the present case, a potential juror blurted out improper comments concerning Lenard's credibility. The prospective juror stated: "I don't know him personally, but I was an alternate juror on a case in which he was involved in. So I don't know if I could give a fair verdict this time." Lenard refused a limiting instruction by the trial court. Lenard stated a desire not to draw any more attention to the juror's improper comments. Questioning the panel after the improper comments, the State received no indications that the jurors would decide the case on any basis other than the evidence that was received at trial. Upon questioning by defense counsel, the panel acknowledged that Lenard was entitled to and agreed to accord him the presumption of innocence.

¶ 10. After reviewing the record, this Court finds that the trial court did not abuse its discretion by refusing to declare a mistrial after the improper statements of a potential juror. This Court is satisfied that the venire panel was not influenced by the improper comments, and any error was harmless error.

II.

Whether the State's questions about the exercise of Lenard's right to remain silent at the time of his arrest impermissibly infringed upon Lenard's right to remain silent under the federal and state constitutions.

¶ 11. Lenard argues that the State improperly solicited from Officer Barnes testimony as to statements made by Lenard at the time of his arrest. Lenard suggests that the sole purpose for this action was to attack his credibility, informing the jury that he made no suggestion of self defense when arrested.

¶ 12. When Officer Barnes held Lenard at gunpoint, there was no doubt he was under arrest, and therefore entitled to be apprized of his rights. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). Miranda protects the right to speak and the right to remain silent. Miranda, 384 U.S. at 444, 86 S.Ct. 1602.

¶ 13. In the present case, it was improper for Officer Barnes to testify that Lenard gave no statement. However, having found this to be error, we hold it to be harmless error.

¶ 14. When Lenard chose to voluntarily testify, he placed in issue his credibility, and the State was entitled to test that credibility. It could do so by questioning whether his prior words and actions were consistent with the testimony, which he was then offering in court. Bogard v. State, 624 So.2d 1313, 1319 (Miss.1993).

*236 ¶ 15. Under cross-examination, Lenard acknowledged the same information which he claims was improperly solicited from Officer Barnes. In doing so, he rendered harmless any error made in obtaining this testimony from Officer Barnes.

III.

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Bluebook (online)
828 So. 2d 232, 2002 WL 1554526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lenard-v-state-missctapp-2002.