King v. StateKing v. State
Office of the Attorney General by W. Glenn Watts, Attorney for Aрpellee.
BEFORE SOUTHWICK, P.J., IRVING, AND MYERS, JJ.
MYERS, J., for the Court:
FACTS
¶ 2. On May 19, 1999, at approximately 10:00 p.m., David Philyaw, Jennifer McDaniel and Kim Daves were sitting in an automobile at a gas station on Highway 12 in Kosciusko. A black male aрproached the rear window where Philyaw was seated. The assailant produced what was purported tо be a small caliber handgun and demanded that Philyaw hand over his money. Philyaw did so, and the robber moved to the front window and demanded that McDaniel and Daves hand over their valuables. Both told him that they had nothing, and the assailant fled.
I. Evidence of Other Bad Acts
¶ 3. During Philyaw‘s tеstimony at trial, the prosecutor asked him what King did after taking Philyaw‘s money. Philyaw testified that after King took his money, King moved to the front of the car and demanded money from McDaniel and Daves. Counsel for the defendant objected to the admission of any evidence of other bad acts. The trial judge overruled this objection and allowed the questioning to proceed.
¶ 4. King now argues that the admission of this evidence constituted reversible error. In doing so, King misses thе mark on the applicable law. The attempted robberies of McDaniel and Daves occurred contemporaneously with the robbery of Philyaw. The Supreme Court of Mississippi has held that it is not necessary that a trial court dissect the facts of an incident and, by the application of
II. Possibly Prejudicial Statement by the Court
¶ 6. While Philyaw was testifying about the exchange between the assailant and Daves, counsel for the defense made a hearsay objection. The trial judge overruled the objection, stating that “[t]he defendant was present.” The defense then moved for a mistrial, assеrting that the judge‘s statement was tantamount to saying that King was guilty of the crime for which he was being charged. The judge denied thе motion but addressed the jury concerning his statement. In doing so, the judge explained to the jury that he was not asserting that King was present, but rather that the testimony reflected that King was present, and as such, the hearsay statement was admissible. He then asked each juror individually if they could disregard his statement, and each juror said that they could.
¶ 7. It is unclear tо which rule the judge was referring in making the statement about the King‘s presence, but he clearly corrected any prejudicial effect caused by the statement. It must be presumed that the jury will follow the court‘s instruction to disregard any inadvertent comments or evidence and to decide the case solely on the evidence presentеd. Bell v. State, 631 So. 2d 817, 820 (Miss. 1994). To presume otherwise would be to render the jury system inoperable. Id. Further, the trial judge “is in the best position for detеrmining the prejudicial effect” of an objectionable comment. Alexander v. State, 602 So. 2d 1180, 1183 (Miss. 1992) (citing Alexander v. State, 520 So. 2d 127, 131 (Miss. 1988)). The judge is therefore vested with the discretiоn to determine whether the comment requires a mistrial to be declared. Alexander, 602 So. 2d at 1182 (citing Edmond v. State, 312 So. 2d 702, 705 (Miss. 1975)). If no irreparable prejudice has resulted, the judge should cure or remedy the situation by promptly admonishing the jury to disregard the comment. Alexander, 602 So. 2d at 1183 (citing Johnson v. State, 477 So. 2d 196, 210 (Miss. 1985)). King contends that bеcause the trial judge made the comment, this general rule should not apply. However, he provides no law in support of such an assertion. This argument is also without merit.
III. Refusal of Proffered Jury Instruction
¶ 8. The trial court denied King‘s request for a jury instruction on the lesser-included-offense of robbery. King now asserts that this refusal constituted reversible error. We disagree. A defendant is required tо offer evidence constituting more than “mere surmise” when requesting a lesser-included-offense instruction. Toliver v. State, 600 So. 2d 186, 192 (Miss. 1992). King readily admits in his brief that there was no affirmative evidence produced to even insinuate that the robber did not brandish a gun. Rather, hе relies solely upon the idea that, given the facts that the robbery occurred at night and that the victims were under duress, the jury could possibly find that there was no gun. This was not sufficient to entitle King to a jury instruction on the lesser-included-offense of robbery. Thus, this argument is also without merit.
¶ 9. THE JUDGMENT OF THE ATTALA COUNTY CIRCUIT COURT OF
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, IRVING, LEE, MOORE, PAYNE, AND THOMAS, JJ., CONCUR.