Thomas v. State

495 So. 2d 481
Mississippi Supreme Court·Decided September 24, 1986·No. 56394·Published·Cited by 13 cases

Opinion

495 So.2d 481 (1986)

Zel THOMAS
v.
STATE of Mississippi.

No. 56394.

Supreme Court of Mississippi.

September 24, 1986.

Lee Calvin Buckley, Holly Springs, for appellant.

Edwin Lloyd Pittman, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.

Before HAWKINS, P.J., and DAN M. LEE and SULLIVAN, JJ.

DAN M. LEE, Justice, for the Court:

STATEMENT OF THE CASE

Zel Thomas appeals his conviction for simple assault on a police officer. Miss. Code Ann. § 93-3-7 (Supp. 1985). Thomas was tried October 25 and 26, 1984 and was *482 sentenced to five years in the custody of the Mississippi Department of Corrections, with two years suspended upon good behavior. His conviction followed an initial trial which ended in a mistrial.

Thomas appeals assigning two errors:

I.

THE TRIAL COURT ERRED IN ALLOWING, OVER OBJECTION, THE TESTIMONY OF THE STATE'S WITNESSES ROBERT E. NETHERCOTT, OFFICERS FLOYD JENKINS AND RAY RICHARDSON AS TO OTHER CRIMES (DISTURBING THE PEACE, ASSAULT), IF ANY OCCURRING AT THE RESIDENCE OF ROBERT E. NETHERCOTT, PRIOR TO THE OFFENSE FOR WHICH THE APPELLANT WAS INDICTED.

II.

THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND THE LAW.

STATEMENT OF THE FACTS

Zel Thomas had his annual back-to-school party July 1, 1983, on his mother's property in Nesbit, Mississippi. The party was outdoors on a baseball diamond and Thomas had live music with 150 to 200 people present. Robert E. Nethercott was a neighbor. He heard the music early in the evening and it was not objectionable at that time. However, after Nethercott went to bed the music seemed to get louder, preventing him from sleeping. Nethercott called the DeSoto County Sheriff's office to complain at least five times. After one of the calls, Sheriffs' deputies arrived at Nethercott's house with Zel Thomas. Nethercott said the initially cordial meeting rapidly deteriorated and Thomas became abusive, threatened Nethercott and had to be restrained by the deputies, who forced Thomas into the patrol car. Deputy Florida (Floyd) Jenkins stated it looked like Thomas "wanted to jump on [Nethercott]," and Jenkins' partner, Deputy Ray Richardson, grabbed Thomas by the arm and put Thomas in the patrol car to "keep them from fighting there."

Richardson and Jenkins returned Thomas to his mother's house. Thomas told the deputies to wait because he wanted to call the sheriff. Richardson and Jenkins waited at least 45 minutes, and when Thomas did not return, they left. Nethercott continued to hear the loud music, however, and went to a nearby grocery to meet Judge Perryman and several deputies where he swore out a complaint against Thomas for disturbing the peace. Judge Perryman issued a warrant for Thomas' arrest and several deputies went to the party to arrest Thomas. The circumstances surrounding Thomas' arrest created the only factual dispute in the case. The facts taken in the light most favorable to the state are these:

Deputies arrived and Jenkins and another deputy approached Thomas at the band stage and tried to serve the arrest warrant. Thomas didn't want to accept it but the deputies arrested him and placed him in the back seat of Jenkins' car. Thomas had been drinking. Jenkins had smelled alcohol on Thomas when they spoke with him earlier in the evening. Before Jenkins could drive off, someone asked if he could speak with Thomas about some financial arrangements for the party. Thomas had not been handcuffed because he had peaceably gone with police to the car. When Jenkins opened the door to allow Thomas to speak, Thomas jumped from the back seat, striking Jenkins in the head or face, bursting Jenkins' hat and knocking off Jenkins' glasses. Jenkins was not cut nor badly injured but Thomas stayed on top of Jenkins, hitting him and trying to grab Jenkins' gun. Jenkins tried to fend off Thomas by "tapping" him with his flashlight. Jenkins had trouble landing a blow but finally hit Thomas solidly. Thomas required 56 stitches on his forehead and over his eye as a result of the scuffle. Thomas fell to the ground where Deputy Danny Wilson was able to pin Thomas down and handcuff him. Thomas kicked Deputy Wilson in the back during this exchange. Thomas was taken later to the hospital for treatment. Deputy Donnie White transported *483 Thomas from the party and stated that Thomas threatened to kill the officers that "did him wrong." There was no evidence that Thomas had made good on his threat.

All of the state's evidence was corroborated in varying detail by testimony from at least one of the deputies at the party; Richardson, Wilson, Donnie White and former deputy Phillip Austein, although only Austein and Richardson corroborated Jenkins' account of who threw the first punch. In questioning Austein and Richardson about the first blow, defense counsel alluded to their testimony at the first trial being different, but their prior testimony was never presented to the jury.

The trial court noted that the situation could have been much worse had Thomas gained control of Jenkins' gun, and sentenced Thomas to the maximum sentence of five years with two years suspended upon good behavior.

I.

DID THE COURT ERR IN ALLOWING THE STATE TO INTRODUCE EVIDENCE OF OTHER CRIMES?

Thomas argues here that testimony concerning the arrest warrant signed against Thomas, and testimony concerning Thomas' confrontation with Nethercott was improperly admitted evidence of other crimes.

Our standard for addressing similar contentions is well settled and well known. In the oft-cited case of Gray v. State, 351 So.2d 1342 (Miss. 1977), this Court stated

It is well settled in this state that proof of a crime distinct from that alleged in an indictment is not admissible against an accused. There are certain recognized exceptions to the rule. Proof of another crime is admissible where the offense charged and that offered to be proved are so connected as to constitute one transaction, where it is necessary to identify the defendant, where it is material to prove motive and there is an apparent relation or connection between the act proposed to be proved and that charged, where the accusation involves a series of criminal acts which must be proved to make out the offense, or where it is necessary to prove scienter or guilty knowledge. See Smith v. State, 223 So.2d 657 (Miss. 1969), cert. denied, 397 U.S. 1030, 90 S.Ct. 1274, 24 L.Ed.2d 542 (1970); Cummings v. State, 219 So.2d 673 (Miss. 1969), cert. den. 397 U.S. 942, 90 S.Ct. 954, 25 L.Ed.2d 122 (1970).

351 So.2d at 1345. See also, Graves v. State, 492 So.2d 562 (Miss. 1986)); Trunell v. State, 487 So.2d 820 (Miss. 1986); Griffin v. State, 482 So.2d 233 (Miss. 1986); Minor v. State, 482 So.2d 1107 (Miss. 1986).

The state correctly points out that it must be allowed to show that the arrest was legal, for this Court recognizes a limited privilege to resist an unlawful arrest. See Watkins v. State, 350 So.2d 1384 (Miss. 1977). This makes evidence of the underlying arrest warrant something akin to evidence of a series of criminal acts which must be proved to make out the offense. Gray, 351 so.2d at 1345.

There appears to be no question that evidence of the complaint by Nethercott, the issuance of the arrest warrant and the arrest of Thomas, all fall within the exceptions of Watkins and Gray. Only the evidence of Thomas' aggression toward

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