Powell v. State

662 So. 2d 1095, 1995 WL 626378
CourtMississippi Supreme Court
DecidedOctober 26, 1995
Docket92-KA-00253-SCT
StatusPublished
Cited by30 cases

This text of 662 So. 2d 1095 (Powell 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
Powell v. State, 662 So. 2d 1095, 1995 WL 626378 (Mich. 1995).

Opinion

662 So.2d 1095 (1995)

Johnnie Mae POWELL
v.
STATE of Mississippi.

No. 92-KA-00253-SCT.

Supreme Court of Mississippi.

October 26, 1995.

*1096 Shelly Nichols Ellis, Ellis, Ellis & Fisher, Tupelo, for appellant.

Michael C. Moore, Attorney General, DeWitt T. Allred, III, Sp. Asst. Attorney General, Jackson, for appellee.

Before HAWKINS, C.J., and SULLIVAN and McRAE, JJ.

McRAE, Justice, for the Court:

Johnnie Mae Powell was convicted by a jury of the Clay County Circuit Court on January 23, 1992, for the murder of Jennifer Hodges. She was sentenced to serve life imprisonment in the custody of the Mississippi Department of Corrections. After post-trial motions were denied, Powell timely perfected this appeal, contending that the circuit court erred in allowing rebuttal witness Linda Johnson to testify; in admitting evidence of the injury of Sammy Franks; in allowing the State to question defense witnesses on cross-examination about not "coming forward" to the police; and finally, if one of these errors by itself does not constitute reversible error, then the errors cumulatively prejudiced her. Finding no merit to these assertions, we affirm her conviction.

FACTS

On March 24, 1991, Powell, Mary McCoy, and her boyfriend's stepfather, John Ed Robinson, went to Rabbit's Place, also known as the "Una Disco Club," in Una, Mississippi. Powell was sitting alone in Robinson's truck when four girls pulled into a nearby parking space. Marilyn Hodges, the victim's sister, and her cousin, Elizabeth Darden, got out and sat on the hood. Jennifer Hodges, the victim, and her friend, Essie Franks, stayed inside the car. Jennifer Hodges and Powell exchanged threats, but "who said what first" differs between each side's witnesses.

Jennifer Hodges and Powell were acquainted with each other from various beauty pageants. They had recently tangled after Powell won the "Miss Got the Body Contest." It appears from the record that Powell's boyfriend was the source of the unpleasantries between Powell and the Hodges sisters.

The parties left Rabbit's and reconvened later that night at the OK Corral, another nightclub in Una. Marilyn and Jennifer Hodges, as well as Darden, were standing at the doorway when Powell arrived. Marilyn Hodges testified that Powell "brushed her shoulder" and threatened her.

Some time later, Marilyn Hodges and Powell got into a fight. Hodges was hit over the head with a gin bottle, but did not recall who hit her. Robinson broke up the fight and said, "All of y'all are not going to jump on her [Powell]."

Marilyn Hodges went outside and told her sister what had happened. According to several witnesses, Jennifer Hodges approached Powell and asked her "Why did you cut my sister?" to which Powell allegedly replied, "I'll cut you too," pulled out a.25 caliber Raven semiautomatic pistol and began shooting. After two or three shots, Jennifer Hodges fell to the ground. Powell testified she pulled the gun because she saw the victim reach for a gun. Marilyn Hodges denied that she and her sister had fought *1097 over a purse containing a gun or even that they had a gun in their possession. Vernell Hodges, Jennifer and Marilyn's mother, testified that when she retrieved her daughter's purse at the hospital it contained only a wallet. Neither Marilyn Hodges nor another eyewitness, Parsons, saw Powell point the gun directly at Jennifer, but Darden testified that she did. Michael Brooks testified that Greg gave Powell the gun and told her, "Show dem [sic] bitches what you can do."

Marilyn Hodges became hysterical after her sister fell to the ground, but Darden encouraged her to run because Powell still had the gun. Parsons testified that Powell told Marilyn Hodges, "I'll shoot you, too." and began chasing her. Powell admitted that she then chased Marilyn out to John Orr's car and continued firing at her. She opened the door and pointed the gun in Marilyn Hodges' face, but did not fire. Apparently the gun was empty. After the shooting was over, Powell was heard to say, "I'm tired of them bitches fucking with me."

ARGUMENTS AND DISCUSSION OF THE LAW

I.

Whether the trial court erred in allowing rebuttal witness Linda Johnson to testify?

On rebuttal, the State called Linda Johnson, a patron at the OK Corral on the night of the shootings. Her testimony was intended to show that Hodges was unarmed at the time of the shooting, thus destroying Powell's claim of self-defense. Powell's counsel opposed the testimony after it was proffered outside the presence of the jury. She asserted that Johnson had been in the witness room with other witnesses who previously had testified and possibly had discussed the questions they were asked by the defense attorney. The circuit court overruled the objection. Johnson testified that she did not see the shooting, but heard a firecracker-like sound and saw Hodges fall to the ground. Johnson further testified that after she turned Hodges over to check her condition, she immediately picked up her purse, which had a closed zipper, and put it in the back seat of the car.

Powell sets forth two assignments of error with respect to Johnson's testimony: (a) the witness sequestration rule was violated and she should not have been allowed to testify, and (b) she was not a proper rebuttal witness since she should have been called in the State's case-in-chief.

a. Whether the trial court erred in allowing the prosecution to put on Linda Johnson in rebuttal, after it was discovered that witnesses violated the sequestration rule in her presence?

It was established during the proffer that Johnson had not been present in the courtroom at any time during the trial. However, on cross-examination, it was revealed that in the witness room, some of the other witnesses talked with her about the questions they had been asked. The circuit court, however, ruled that:

The court finds that based on the testimony before it, that this particular witness was not in violation of the rule and did not come into the courtroom during any of the testimony. This witness's testimony was that she only arrived pursuant to a subpoena yesterday and did not enter the courtroom and hear any of the testimony ... Further, when witnesses are sequestered they are placed in witness rooms and instructed not to discuss their testimony with others. It appears that this witness has not discussed her testimony with others... .

M.R.E. 615 provides that, at the request of a party, the court shall order witnesses excluded from the courtroom so that they cannot hear the testimony of other witnesses. Remedies for violations include prohibiting the witness from testifying, striking his testimony, citing him for contempt, or allowing a "full-bore" cross-examination. Gerrard v. State, 619 So.2d 212, 217 (Miss. 1993). It is within the trial judge's discretion to determine what remedy is appropriate. Baine v. State, 606 So.2d 1076, 1083 (Miss. 1992).

In this case, the circuit court allowed Johnson to be examined while the jury was out, as *1098 well as allowing a "full-bore" examination when the jury returned. In his ruling, he stated that it appeared that Johnson had not discussed her testimony with others, and that "in any event, one of the previous witnesses who testified during the course of the trial made reference to this individual as placing the purse in the car."

We have recognized that the witness sequestration rule "serves to discourage a witness's tailoring her testimony to what she has heard from the stand" and to "facilitate exposing false testimony."

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Cite This Page — Counsel Stack

Bluebook (online)
662 So. 2d 1095, 1995 WL 626378, Counsel Stack Legal Research, https://law.counselstack.com/opinion/powell-v-state-miss-1995.