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CAROL E. PENNINGTON v. STATE OF MISSISSIPPI

AUGUST 31, 1983

CAROL E. PENNINGTON
v.
STATE OF MISSISSIPPI



BROOM, ROY NOBLE LEE and BOWLING

ROY NOBLE LEE, JUSTICE, FOR THE COURT:

Carol E. Pennington was found guilty in the Circuit Court of Lowndes County, Honorable Harvey Buck, presiding, on a charge of capital murder, and was sentenced to life imprisonment in custody of the Mississippi Department of Corrections. She has appealed here and assigns the following errors in the trial below:

(1) The lower court erred in refusing to allow defendant's counsel to offer proof outside the presence of the jury, regarding the excluded fingerprint demonstration and testimony offered by witness, Robert Butler.

 (2) The lower court erred in overruling defendant's motion for mistrial based upon innuendo of the State that statements of the State's key witnesses had been verified by Officer Jackie Persons through the administration of polygraph examinations.

 (3) The lower court erred in overruling defendant's motion to suppress oral statements made by defendant to police officers John Peavey and Harold Malone.

 About 3 a.m. on June 11, 1981, appellant went by the home of Carrie Butler and asked her to go accompany appellant to the Checkmate Lounge. Butler agreed, and they went to the lounge where appellant met and began dancing with one J. D. Walker. About 5 a.m., Butler decided she needed to go home and Walker and appellant left with her. They went to appellant's car, but it failed to start and Walker called a taxicab. The driver took them to their destination, Walker paid the fare of $2.35, and appellant started cursing the taxicab driver,

 telling him it was a rip-off. She began to wrestle with him over a cigar box in which the taxi driver kept his money. During the altercation, appellant discharged her pistol four times, which resulted in the taxi driver's death.

 When the taxi driver failed to answer the taxicab dispatcher, a search was started for him and the police were called. The taxi driver was found slumped over the steering wheel near appellant's apartment. Officers inquired in the area of residents as to whether they had heard or seen anything, and, in the investigation, talked with appellant. At that time, the officers apparently did not realize the taxidriver was dead.

 Appellant did not testify, and only one witness, Robert Butler, a former policeman and sheriff's department employee, was called by her. He attempted to demonstrate how easily fingerprints could be taken from a cigar box.

 I.

 It is first contended by appellant that she was not permitted to make a record of proffered testimony and a demonstration of how easily fingerprints could be lifted from a cigar box. The purpose of this evidence was to show that the police could have removed fingerprints from the cigar box which contained the taxi driver's money, if they had been diligent. Testimony involving this point follows:

 Q. Do you have the ability and the expertise to develop a fingerprint from this cigar box?

 A. Yes, sir, I do.

 MR. MONTGOMERY:

 Your Honor, we would object to that question; that's a legal conclusion to be determined by the Court, not this witness.

 MR. JORDAN:

 Your Honor -THE

 COURT:

 Sustained.

 MR. JORDAN:

 Your Honor, we - we would move that out of the presence of the jury to have this done for the Court's benefit.

 THE COURT:

 Counsel, I don't think there's been any testimony that a print could not be moved from that material. I don't know what you're trying to rebut.

 MR. JORDAN:

 Your Honor, I think the testimony was that they didn't have the equipment that was necessary to so remove same, and we want to show what a simple process it is.

 HOWARD:

 Your Honor, we'd object; this box has no relationship to the box that was in the cab; this undoubtedly is a new box that they just produced here; it wasn't furnished during discovery and we would object to the-THE

 COURT:

 All right, the objection will be ...


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