HAWKINS, JUSTICE, FOR THE COURT:
Raymond Ray Walker appeals from his conviction of armed robbery in the Circuit Court of Alcorn County, and prison sentence of fifteen years.
The only question we address on this appeal is whether the circuit judge's refusal to grant a severance in the trial of Walker and his codefendant Mary Jane Wicks, because of an implicatory confession given by Wicks to law enforcement officers, was prejudicial error in view of trial developments. Persuaded it was, we reverse and remand for a
On April 29, 1982, Mr. and Mrs. Haley Haney were the owners and operators of a small neighborhood grocery in Corinth called Haney's Corner Grocery. The store faced south, but also had a side door on the east side. They had been in business eighteen years. Between 5:00 and 5:30 that afternoon Alvie Charles Huey, Mary Jane Wicks, and Raymond Ray Walker came into the store simultaneously. The day was warm. Both doors were propped open. Huey was in his 30's, Walker in his 20's, and Wicks, a first cousin of Walker's, was 19. All were black.
Wicks asked for 45 cents worth of bologna. Huey went to the south door, moved some cartons of soft drinks which propped the door open, and closed the door. Mrs. Haney started towards the east door, and Walker moved some drinks which were keeping the east door open and closed the door. He then blocked Mrs. Haney from leaving through that door.
Huey approached Mrs. Haney and said, "All right, all right, give me those rings." She gave him her rings, but Huey only kept one ring, a one carat diamond ring worth $1,250.00.
At this moment Tommy Williams, a young black 21 years of age and a long-time customer of the store, drove up to the east door. When Williams arrived, Walker and Wicks bolted and ran from the store.
Huey began yelling, "Give me the money," shouting "I'll shoot you, I'll shoot you, I'll kill you." Mr. Haney heard his wife yell, "Give them the money, this is a holdup." He gave Huey approximately $200.00 cash.
Both Haneys observed what appeared to be a gun bulging beneath Huey's shirt. Although not noticed by either of the Haneys, Walker also had a knife stuck in his belt beneath his shirt. *fn1
Williams, hearing Mrs. Haney exclaim they were being robbed and asking him to get the law, cranked the car and was driving off. The street light was red, however; traffic was coming on the green light and he had to stop. Huey in the meantime had run from the store; he jumped in Williams' car and directed him to drive across town. Williams complied, and after letting Huey out of the car, returned to the store.
Wicks and Walker were found by law enforcement officers hiding a few blocks from the store in some bushes. The arrest occurred only a few minutes after the robbery. Huey was never apprehended.
Wicks gave a verbal and written statement to the law enforcement officers.
The grand jury at the May, 1981 term indicted all three for the crime of armed robbery. Wicks and Walker were each appointed lawyers. Walker's counsel learned on July 28, 1981, of the confession given by Wicks. On the morning of trial, July 29, 1981, he made a motion for a severance alleging as follows:
The Defendant, Mary Jane Wicks, is alleged to have made a statement to police officers which the State would attempt to introduce into evidence. If this statement is introduced into evidence in a joint trial of Raymond Ray Walker and Mary Jane Wicks, it would be highly prejudicial to the defendant, Raymond Ray Walker and the Court could not cure the prejudicial effect of the statement by instructing the jury not to consider the Statement as evidence against Raymond Ray Walker.
That Defendant's counsel was not aware of this statement or its contents until the night of July 28, 1981.
The trial court overruled the motion. The state recognized, and the court ruled, that the confession could not be used by the state in its case in chief.
Defense counsel also moved the court to limit testimony concerning the knife Walker carried, since the indictment made no mention of the knife. The district attorney informed the court that the state did not propose to use possession of the knife as part of its case in chief. The trial judge, in recognizing as a basic rule of law that the confession could not be used against Walker, was again informed by the district attorney that in the event the state sought to introduce a statement, he would ask the court to delete any remarks concerning Walker. The court thereupon denied the motion for a severance.
The state did not seek to introduce any statement
or written confession of Wicks during the course of its trial in chief.
When the state rested, Wicks took the stand in her own defense. The substance of her testimony on direct examination was that she and Walker went to the store to engage in shoplifting. According to their plan, she was to divert the proprietor's attention and Walker was to pilfer merchandise. She testified Huey was not a part of the scheme and his appearance was a coincidence.
On cross-examination, and over the objection of Walker's attorney, the state was permitted to question Wicks about a verbal statement she gave law enforcement officers that she, Huey, and Walker had planned the robbery. Also, over the objection of Walker's counsel, the state cross-examined Wicks and introduced into evidence ...