White v. State

847 So. 2d 886, 2002 WL 31693381
Court of Appeals of Mississippi·Decided December 3, 2002·No. 2001-KA-01259-COA·Published·Cited by 8 cases

Opinion

847 So.2d 886 (2002)

Francis Eugene WHITE, Appellant,
v.
STATE of Mississippi, Appellee.

No. 2001-KA-01259-COA.

Court of Appeals of Mississippi.

December 3, 2002.
Rehearing Denied February 4, 2003.
Certiorari Denied June 12, 2003.

*888 Jim Davis, Moss Point, attorney for appellant.

Office of the Attorney General, by Scott Stuart, attorney for appellee.

Before SOUTHWICK, P.J., BRIDGES and MYERS, JJ.

SOUTHWICK, P.J., for the court.

¶ 1. Francis Eugene White was convicted of aggravated assault by a circuit court jury. On appeal, he argues prejudicial error in statements made by the prosecutor during opening and closing arguments. White also asserts that his counsel was ineffective, and that certain defense witnesses were improperly excluded. We find no error singly or cumulatively, and affirm.

FACTS

¶ 2. White denies that he was the person who in disguise committed this assault. Nonetheless, the following describes the testimony and inferences that were consistent with the verdict of guilt. On October 22, 1996, the sixty-two year old defendant traveled from his home in Pascagoula to the Long Beach dwelling of his estranged wife, Carol. White was disguised as a telephone repairman, wearing a hard hat and false mustache, and carrying a wire *889 cage box with tools. White cut the cable television wire connected to the house, presumably mistaking it for the telephone line.

¶ 3. White's wife Carol was having an affair with Bill Ford. Ford was the only person in the house when White arrived. Duped by White's disguise, Ford allowed the "repairman" inside. After White entered, Ford recognized him. White then said, "You know who I am, don't you?" before shooting Ford in the abdomen with a gun hidden in the tool bag. Ford fell to the floor, feigning death. White fired three more shots, injuring Ford's hand and ear, before fleeing. Ford, fearing another assault, went to the door and locked it. White may have heard the noise made by the lock and began to kick or beat on the door to regain entry. Ford escaped through the patio door, scaled a six foot fence, and collapsed in a neighbor's driveway. Police apprehended White at a routine traffic stop. White posted bond a week later and fled the jurisdiction.

¶ 4. White was returned to Mississippi. His trial for aggravated assault began in December 2000, but a mistrial was declared when a witness inadvertently mentioned White's connection to his wife's murder. A second trial took place in mid-May 2001. White was convicted of aggravated assault. His appeal has been deflected here.

DISCUSSION

1. Prosecutorial misconduct

¶ 5. The prosecution during opening and closing arguments mentioned bloodstains of the victim that allegedly were found on White's shoes. Investigators from the Mississippi Crime Lab were able to obtain only enough sample material to type and match for DNA Whatever the substance was, it contained the victim's DNA While tests proved that these small stains on White's shoes may have been blood, the results were inconclusive. Similarly, the laboratory that conducted the DNA testing was unable to verify the source material as blood. It obviously was some bodily fluid from Ford.

¶ 6. White filed a motion in limine prior to the first trial that sought to prohibit the State from stating "that the DNA evidence found on the Defendant's shoes was blood because no scientist or doctor found this DNA evidence to be blood." White was able to obtain a ruling only that the serology witnesses could not state categorically that the substance was blood. The court restated its prior holding during pre-trial motions before the second trial:

THE COURT: [The serologist] can testify as to her findings on serology, that it was consistent with what's in her report indicating the possible presence of blood being identified on the left shoe. And I think that she had stated that she was not able to definitively make that determination because she was afraid that she would use the rest of the sample and there would not be any left for DNA analysis. So I think she is—that's why I think she can testify as to her findings and why she did not make a further definitive finding. That's allowed.

¶ 7. It is obvious that White wished for all references to blood to be barred. Instead, he got only this limited ruling that the serologist's findings could be admitted that the substance contained Ford's DNA and that it may have been from blood.

A. Opening statements

¶ 8. During opening statements as the second trial began, the prosecutor stated this:

But Long Beach Police, they get his shoes. What does the Crime Lab find *890 on the shoes, but some blood. And they take that and they send it to ReliaGene Technology. And ReliaGene Technology performed DNA, and guess whose blood it is. It's the victim's....

¶ 9. During these comments, White made no objection. Though he now asserts that the statements violated the order limiting references to blood, that apparently was not the position taken at trial. If these statements were violative, the failure to object prevented the trial court from remedying the error. A contemporaneous objection permits the trial court to act as is necessary to cure the problem and avoid the needless expense and delay of a retrial. Johnson v. State, 477 So.2d 196, 210 (Miss.1985). For this reason, an appellate court will not consider for the first time on appeal a claim of prejudice arising during the trial since the trial court was not given the opportunity to resolve it after a timely objection. Colburn v. State, 431 So.2d 1111, 1113-14 (Miss.1983).

¶ 10. Procedural waiver may be set aside when a fundamental constitutional right is threatened. Conerly v. State, 760 So.2d 737, 740 (Miss.2000). However, opening and closing arguments are not evidence and are not governed by evidentiary standards. "The standard of review that appellate courts must apply to lawyer misconduct during opening statements or closing arguments is whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created." Sheppard v. State, 777 So.2d 659, 661 (Miss.2000). Here, we cannot find that such prejudice arose, particularly as White incorporated the evidence into his own defense, as will be discussed shortly.

¶ 11. Whether these comments went beyond proper argument is not altogether clear. Certain witnesses were allowed to refer to their conclusions about stains on White's shoes and to mention that the substance may have been blood. The presence of blood was unsubstantiated, but potential. The question becomes whether a prosecutor could argue as fact that the only reasonable explanation from the evidence was that the stain must have been blood.

¶ 12. There is wide latitude for counsel in both opening and closing arguments, expanding beyond mere facts and proof to include such "deductions and conclusions [one] may reasonably draw therefrom, and the application of the law to the facts." Wells v. State, 698 So.2d 497, 506 (Miss.1997). Here, a reasonable inference existed that spots found on White's shoes which contained DNA matching the victim were in fact blood. Substantial DNA evidence was offered at trial. Pictures depicting the crime scene revealed large amounts of blood.

Free access — add to your briefcase to read the full text and ask questions with AI

White v. State, 847 So. 2d 886, 2002 WL 31693381 (Mich. Ct. App. 2002).

847 So. 2d 886 (White v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Hunter Lane Sarrett v. State of Mississippi
250 So. 3d 477 (Court of Appeals of Mississippi, 2017)
Lonnie Jordan v. State of Mississippi
220 So. 3d 980 (Court of Appeals of Mississippi, 2016)
Jemarcus Curry v. State of Mississippi
202 So. 3d 294 (Court of Appeals of Mississippi, 2016)
Bolden v. State
23 So. 3d 491 (Court of Appeals of Mississippi, 2009)
Reynolds v. State
913 So. 2d 290 (Mississippi Supreme Court, 2005)
Marbra v. State
904 So. 2d 1169 (Court of Appeals of Mississippi, 2004)
Brenda Louise Reynolds v. State of Mississippi
Mississippi Supreme Court, 2000