Palm v. State

748 So. 2d 135, 1999 WL 773666
CourtMississippi Supreme Court
DecidedSeptember 30, 1999
Docket97-KA-01303-SCT, 97-KA-00778-SCT
StatusPublished
Cited by29 cases

This text of 748 So. 2d 135 (Palm 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
Palm v. State, 748 So. 2d 135, 1999 WL 773666 (Mich. 1999).

Opinion

748 So.2d 135 (1999)

Michael PALM
v.
STATE of Mississippi.

Nos. 97-KA-01303-SCT, 97-KA-00778-SCT.

Supreme Court of Mississippi.

September 30, 1999.

*136 Edmund J. Phillips, Jr., Newton, Attorney for Appellant.

Office of the Attorney General by Scott Stuart, Attorney for Appellee.

BEFORE PRATHER, C.J., MILLS AND COBB, JJ.

MILLS, Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. Michael Palm appeals to this Court from his conviction of grand larceny in the Circuit Court of Scott County. His August 1, 1997, conviction was for the October, 1996 theft of a Yamaha Timberwolf 250 All Terrain Vehicle (hereinafter Yamaha) in violation of Miss Code Ann. § 97-17-41(1994) for which he was sentenced to serve a term of five years in the Mississippi Department of Corrections and to pay a fine of $5,000. In appealing his conviction, Michael Palm asserts three issues for review by this Court. The issues are as follows:

I. PROSECUTORIAL ABUSE OF VOIR DIRE DENIED APPELLANT A FAIR TRIAL.
II. INTRODUCTION OF EVIDENCE THAT PROSECUTION WITNESS JARVIS WRIGHT, APPELLANT'S CO-INDICTEE AND ALLEGED ACCOMPLICE, WAS CONVICTED OF THE SAME CRIME APPELLANT WAS CHARGED WITH, DENIED APPELLANT A FAIR TRIAL.
III. THE COURT ERRED IN ADMITTING THE CONFESSION BECAUSE NO SUPPRESSION HEARING WAS HELD ON THE VERSION OF THE CONFESSION TOLD TO THE JURY AND BECAUSE THE DEPUTY SHERIFF'S STATEMENT DURING INTERROGATION WAS IMPROPER.

*137 STATEMENT OF THE FACTS

¶ 2. Michael Palm was indicted, along with several others, including Jarvis Marquis Wright, on February 5, 1997, for the October, 1996, grand larceny of two four-wheel, all terrain vehicles (ATV). The first ATV, a Honda 250, belonged to Sammie Lovett, and the second, a Yamaha Timberwolf 250, belonged to David Weeks. Palm entered a plea of not guilty and was tried in two separate trials for grand larceny of the two vehicles. In the trial where he was charged with grand larceny of Lovett's Honda, Palm was convicted and sentenced to serve a term of five years in prison and to pay a fine of $5,000. He appealed that conviction, and the Mississippi Court of Appeals affirmed. See Palm v. State, 724 So.2d 424 (Miss.Ct.App. 1998). That was a final decision, and this Court does not address the merits of that case in this opinion.

¶ 3. The case we are concerned with today is the grand larceny of the ATV belonging to David Weeks, a Yamaha Timberwolf. To the charge of grand larceny of Weeks's Yamaha, Palm again entered a plea of not guilty. Deputy Sheriff Marvin Williams testified that Palm confessed to stealing Weeks's Yamaha. Palm subsequently took Deputy Williams to the site where Weeks's Yamaha and Lovett's Honda were hidden. In addition to Williams testifying about the Palm confession, Jarvis Wright, Palm's accomplice who previously entered a plea of guilty and was given a two-year prison sentence, testified that he was with Palm when he absconded with David Weeks's Yamaha.

¶ 4. The jury convicted Palm of grand larceny, and the trial court sentenced him to serve a term of five years in the Mississippi Department of Corrections. That sentence was to run consecutively with any prior sentence. Palm appeals to this Court from the conviction of grand larceny for the theft of David Weeks's Yamaha.

DISCUSSION

I. WAS APPELLANT DENIED A FAIR TRIAL DUE TO PROSECUTORIAL ABUSE OF VOIR DIRE?

¶ 5. Although Palm now objects to certain statements made during voir dire, no such objection was made during trial. The failure to make a contemporaneous objection waives the right of raising the issue on appeal. Ballenger v. State, 667 So.2d 1242, 1259 (Miss.1995). "[A] voir dire examination of jurors must be discretionary with the circuit judge, and in the absence of objection we have no way of knowing the degree of influence it had, if any, on the ultimate verdict." West v. State, 485 So.2d 681, 685 (Miss.1985). A trial court is not put in error unless it had an opportunity to pass on the question. Boutwell v. State, 165 Miss. 16, 143 So. 479, 482 (1932). Although we find that Palm is procedurally barred from asserting this objection for the first time on appeal, we will, nevertheless, discuss the merits of his argument.

¶ 6. URCCC 3.05 discusses the process of voir dire and states as follows:

RULE 3.05 VOIR DIRE
In the voir dire examination of jurors, the attorney will question the entire venire only on matters not inquired into by the court. Individual jurors may be examined only when proper to inquire as to answers given or for other good cause allowed by the court. No hypothetical questions requiring any juror to pledge a particular verdict will be asked. Attorneys will not offer an opinion on the law. The court may set a reasonable time limit for voir dire.

¶ 7. Palm asserts that he was denied a fair trial due to the prosecutorial abuse of voir dire. He claims that the prosecution violated URCCC 3.05 with three separate statements. The first alleged violation came in the form of a statement made by the prosecution which was as follows:

*138 It happens from time to time that there may be a conflict in the evidence. State's witnesses may testify to a certain set of circumstances, and if the Defendant chooses to call witnesses, they may testify to something different. But, do you understand that a mere conflict in the evidence does not necessarily create a reasonable doubt? That's why we have twelve jurors, to sit up here and listen to the case, to resolve that conflict and decide what the truth is.

¶ 8. Palm asserts that this statement required the jury to resolve all conflicts, thereby causing them to do away with the consideration of reasonable doubt. He further asserts that this statement violates URCCC 3.05 because it offers an opinion and misstates the law. Other than his cite to URCCC 3.05 he cites no relevant authority for his argument.

¶ 9. As this Court explained in Puckett v. State, 737 So.2d 322, 332 (Miss.1999) "[t]he purpose of voir dire is to select a fair and impartial jury. Because the human element is always present, the process can by no means ever be perfect. Therefore, it is the trial court's duty to ensure that although not perfect, the jury panel that is finally empaneled can render an impartial verdict ..." The preceding statement was clearly made to determine whether the potential jurors understood their function and how they were to evaluate the evidence. This is the very purpose of voir dire. There was no error in ascertaining if the potential jurors knew what was expected of them in order to determine their suitability to serve as jurors. Additionally, the statement does not erode the consideration of reasonable doubt. It simply clarifies that conflicts in the evidence do not equate to reasonable doubt. Furthermore, there is nothing in the transcript that would require the venire persons to pledge a particular verdict in violation of URCCC 3.05.

¶ 10. The second statement to which Palm objects was as follows:

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Bluebook (online)
748 So. 2d 135, 1999 WL 773666, Counsel Stack Legal Research, https://law.counselstack.com/opinion/palm-v-state-miss-1999.