Smith v. State

737 So. 2d 377, 1998 WL 813366
Court of Appeals of Mississippi·Decided November 24, 1998·No. 97-KA-01137 COA·Published·Cited by 15 cases

Opinion

737 So.2d 377 (1998)

Tony Lee SMITH, Appellant,
v.
STATE of Mississippi, Appellee.

No. 97-KA-01137 COA.

Court of Appeals of Mississippi.

November 24, 1998.
Rehearing Denied March 9, 1999.

*380 David L. Walker, Batesville, Attorney for Appellant.

Office of the Attorney General by Billy L. Gore, Attorney for Appellee.

Before THOMAS, P.J., and DIAZ and SOUTHWICK, JJ.

DIAZ, J., for the Court:

¶ 1. Tony Lee Smith, the defendant, appeals the decision of the Circuit Court of Panola County wherein he was convicted of armed burglary at night of an inhabited dwelling and forcible rape. Since the jury was unable to fix the defendant's punishment at life imprisonment, the judge sentenced Mr. Smith to serve a term of twenty-five years for the burglary charge and to a term of thirty years for the rape charge with said sentences to run concurrently. Mr. Smith raises the following issues in this appeal: (1) whether the prosecutor improperly characterized the defendant as a person devoid of feelings for other people, (2) whether the trial court erred in failing to grant the defendant's motion to suppress his alleged confession, (3) whether the defendant was deprived of effective assistance of counsel, (4) whether the verdict was contrary to the law, weight, and sufficiency of the evidence, and (5) whether the cumulative effect of the errors deprived the defendant of due process and his right to a fair trial. We find these assignments of error to be without merit; therefore, we affirm the ruling of the circuit court.

FACTS

¶ 2. During the night-time hours on August 3, 1996, Mr. Smith raped A.M.R., a fifty-two-year-old mobile home resident in Panola County, in the presence of her five-year-old grandson. Ms. R. testified that Mr. Smith, whom she knew, was armed with a rusty pocket knife which he held to her neck during the act of intercourse. She further testified that she was able to persuade Mr. Smith not to kill her and eventually talked him into surrendering the knife to her. After Mr. Smith put his clothes on, Ms. R. asked him to leave; however, he did not have a car, so she took him home in her own car.

¶ 3. After Ms. R. returned home, she bathed. Thereafter, she went to the home of Chief Deputy James Rudd and reported the offense to him. Several hours later, Mr. Smith was brought to the station house and questioned about the incident by Deputies Mike Davis and Bill McGee. After being advised of his constitutional rights and waiving those rights, Mr. Smith gave an incriminating statement which was recorded on audio tape and later played at trial.

¶ 4. Mr. Smith moved to have the confession suppressed on the basis that he was intoxicated when it was given; however, the trial judge found that he was not intoxicated, so he allowed the confession in as freely and voluntarily given. At trial, the State produced four witnesses including the victim Ms. R., who identified Mr. Smith as the man who broke into her home at night and raped her. In addition to the victim, Chief Deputy Rudd testified that he interviewed Ms. R. and conducted an investigation of the crime scene where he found a cut telephone line. Deputy Mike Davis testified that he interviewed Mr. Smith several hours after the rape and burglary. He stated that Mr. Smith freely and voluntarily gave an incriminating statement which was audio tape recorded. The State's final witness, Dana Johnson, a substance analyst at the Mississippi Crime Laboratory, testified that she found seminal fluid on Ms. R.'s panties and her dress. At trial, Ms. Johnson testified that although she identified the presence of seminal fluid, she did not identify the source. After the State's case-in-chief, Mr. Smith *381 moved for a directed verdict of acquittal on the ground the State had failed to produce sufficient evidence to prove his guilt beyond a reasonable doubt. This motion was overruled. Thereafter, Mr. Smith did not testify, but he recalled Deputy James Rudd as witness.

¶ 5. After closing arguments, the jury retired to deliberate on the question of guilt or innocence and returned with a verdict of guilty on both the burglary and rape charges. The next day, a sentencing hearing was conducted during which the defendant presented to the jury facts in extenuation and mitigation of sentence. After the jury failed to unanimously agree on a life sentence, the trial judge imposed a twenty-five year sentence for the burglary and a thirty year sentence for the forcible rape to run concurrently. Thereafter, the trial court further denied Mr. Smith a new trial or judgment notwithstanding the verdict. Feeling aggrieved, Mr. Smith perfects this appeal.

DISCUSSION

I. WHETHER THE PROSECUTOR IMPROPERLY CHARACTERIZED THE DEFENDANT DURING CLOSING ARGUMENTS

¶ 6. Mr. Smith criticizes the following statement made by the prosecution during closing arguments:

[Ms. R.] still had enough feelings for [Deputy Rudd] as a human being that when she went to his house the first time she said, Loretta—that's Mrs. Rudd—said, Mrs. Rudd, don't wake him, I'll come back. She has feelings for other people, unlike some other person in this courtroom.

(emphasis added). Mr. Smith's defense counsel objected to this characterization of her client, and the objection was overruled. Mr. Smith claims that natural and probable effect of the remark characterized him as "unfeeling" and that created unjust prejudice; therefore, he seeks a new trial based on this isolated remark.

¶ 7. The test for determining whether argument is so improper as to warrant sustaining objection is whether the natural and probable effect of the argument is to create an unjust prejudice against the defendant. Harvey v. State, 666 So.2d 798, 801 (Miss.1995). Absent impermissible factors such as commenting on the defendant not testifying, a prosecuting attorney is entitled to great latitude in framing the closing argument. Dunaway v. State, 551 So.2d 162, 163 (Miss.1989).

¶ 8. Under Harvey, the comment must create unjust prejudice against the defendant which would result in a verdict influenced by prejudice. The case sub judice is different from the scenario depicted in Harvey because here the comment complained about was sufficiently insignificant in the overall context of the case. Furthermore, the jury was succinctly instructed that:

Arguments, statements and remarks of counsel are intended to help you understand the evidence and apply the law, but are not evidence. Any argument, statement or remark having no basis in the evidence should be disregarded by you.

(emphasis added). Moreover, the same jury instruction further told the jury that:

It is your duty to determine the facts and to determine them from the evidence produced in open court. You are to apply the law to the facts and in this way decide the case. You should not be influenced by bias, sympathy, or prejudice. Your verdict should be based on the evidence and not upon speculation or guesswork.

(emphasis added).

¶ 9. This Court has held that when a trial court instructs the jury, the jury is presumed to have followed instructions. Crenshaw v. State, 520 So.2d 131, 134 (Miss.1988). "Our law presumes the jury does as it is told." Williams v. State, 512 So.2d 666, 671 (Miss.1987). "To presume otherwise would be to render the jury *

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