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ANNIE LEE BELL v. STATE OF MISSISSIPPI

DECEMBER 07, 1983

ANNIE LEE BELL
v.
STATE OF MISSISSIPPI



EN BANC

BROOM, PRESIDING JUSTICE, FOR THE COURT:

Murder is the crime for which the defendant, Annie Lee Bell, was convicted in the Circuit Court of Humphreys County, Mississippi, and sentenced to life in custody of

the Mississippi Department of Corrections, the Honorable Gray Evans, circuit judge, presiding. On appeal she argues that the evidence was insufficient. She also contends that the trial court erred in its refusal to permit introduction of evidence of the deceased's character; to permit testimony regarding the events which occurred the night before the murder; to apply the Weathersby rule; and in allowing the sheriff to testify after he heard testimony in the court room following invocation of the rule. Another contention is that she was given incomplete warnings of her rights. We affirm.

 The evidence shows that in the morning of April 28, 1982, defendant, Annie Lee Bell, shot her boy friend, Henry Brown (referred to by her as "Sweet"), to death just outside her mobile home where they had been living together. She stated that in the episode preceding the killing Brown hit her, threatened her life, and chased her outside where she shot him at the bottom of the steps as he advanced toward her and was ". . . two or three hands reaching distance" of her. She shot him with her .25 automatic pistol which she removed from her purse, fired twice, missing him the first time and then hitting him in the right breast with the second shot which was fatal. She testified that after she shot Brown, he went back up the steps and fell in the doorway, where blood was found on the carpet underneath his body. No weapon was found on or near Brown's body, and no contention is made that any such weapon was removed from about his person. Within a short time she was examined by a doctor who stated that she had some bruises and marks about her body, which resulted from trauma - he said the trauma could have been caused by a fall or her being struck. *fn1

 Her version of self-defense was substantially contradicted by three Humphreys County law enforcement officials who stated that just after the shooting, defendant Bell told them that she fired the fatal shot from an adjacent lot at a time when her boy friend was at the bottom of the steps. Deputy sheriff Holloway measured about 19 steps (nearly 60 feet) from where she indicated she was situated and where Brown was situated when she shot Brown.

 Bell also stated that the night before the fatal incident she and Brown had had a disagreement and she had put him out of the trailer, but that he had returned and persuaded her to let him spend the night upon his agreement to leave the next day. In her testimony it

 was her contention that previous altercations had occurred, and that he had previously threatened her on Tuesday before the killing on Wednesday, which she said was in self-defense.

 First argument made is that the evidence was insufficient. She asserts that the record contains "no direct evidence or motive to indicate murder . . ." . This argument is without merit in view of the testimony of witness Hutchins. According to him, he was nearby when the shooting occurred and heard her call him "a Son of a Bitch or something, you know, said she would kill him and a couple of shots went off, you know."

 Then she argues that "the verdict was against the weight of the evidence" . Three of the law enforcement officials including sheriff Jones testified that shortly after the killing, defendant Bell told them that she shot from an adjacent lot, which the officers measured and found to be some 19 steps away from where Brown was situated. Deputy Holloway testified that his steps were approximately 3 feet. We find no merit as to the argument on the sufficiency of evidence.

 Next argument (designated POINT III in "Brief of Appellant") is that the trial court erred "in refusing to permit the character of the deceased for peace or violence to be made known to the jury." *fn2 In this connection it is to be noted that not even one witness was asked if he knew Brown's reputation for peace or violence. No one was asked about his "character" . In actuality, no testimony was excluded as to Brown's reputation for peace and violence. Examination of the assignment of errors reveals that reputation of Brown (victim of the murder) is not mentioned - his "character" is mentioned in this POINT III. In her "Brief of the Appellant" *fn3 she discusses the "character or reputation" of Brown as if the two words are synonymous, although we all know that "character" means what a person in reality is, whereas "reputation" is what others think of the person. In her "Rebuttal Brief" *fn4 defendant restates her POINT III using the words "character of the deceased" but makes no argument whatever under POINT III. Then under her POINT IV dealing with "res gestae" as to "events of the night before the homicide" she deals with "character of the deceased" in one sentence. *fn5 Subsequently, near the bottom of the same page, she switches her argument from "character" to "reputation" though neither assignment of error deals with "reputation" . Not having made any assignment of error on "reputation" , she now should not

 be heard to make such an argument or rely on cases wherein "reputation" of the deceased was at issue. Our Rule 6 of the Supreme Court of Mississippi clearly says that an "error not distinctly assigned shall not be argued by counsel . . . ." Of course, we may notice "plain error" in order to prevent a manifest miscarriage of justice. Our perusal of the record, as pointed out by the state, shows that in her testimony she (before specific objection was made by the prosecution) extensively detailed in the jury's presence the alleged (which the jury rejected) antecedent acts of violence between her and victim Brown. She told about how he had broken into her house on Tuesday evening about dark before the killing on the next day. She told about how on Monday he had beaten her up and she had told him to "get out of my house" .

 She related how he left and came back and threatened to kill her, after which she ran out into the yard where he caught up with her, choked her, and beat her head against the ground. Further she described how then inside the house he threatened to kill her again, after which she agreed to let him spend the night there. It is true that the judge excluded testimony of the defendant's sister which was offered "for the purpose of corroborating her testimony regarding the fact that she did call her sister that night and explained to her sister that she had been beaten and was crying on the phone." *fn6 Also complaint is made *fn7 by defense counsel that he

 . . . was attempting to show through my questioning of the Sheriff, or the Deputy, that he in fact knew of this man and knew of his having attacked this lady before - she had filed a complaint against him - and to show the history of his violent involvement with her. It was my understanding from reading the law that that was inadmissible [sic].

 The foregoing statement of defense counsel hardly qualifies as a profert of testimony concerning Brown's reputation for peace or violence, if it were intended as such. It is devoid of any statement as to how the sheriff or deputy knew the deceased Brown had attacked the defendant except "she had filed a complaint against him" . There is no statement as to where such attack occurred or whether any such attack was recent in time, long ago, or when. Defense counsel's statement to the trial judge that counsel wanted through questioning the "Sheriff, or the Deputy, . . . to show the history of

 his [Brown's] violent involvement with her" , does not qualify as an acceptable profert regarding Brown's reputation. This is so because the trial court could not have committed reversible error by not, upon such a general profert, allowing either law officer to show "the history" of (not ...


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