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TIMOTHY LENWOOD GARDNER v. STATE OF MISSISSIPPI

SEPTEMBER 05, 1984

TIMOTHY LENWOOD GARDNER
v.
STATE OF MISSISSIPPI



EN BANC.

WALKER, PRESIDING JUSTICE, FOR THE COURT:

This is an appeal from the Circuit Court of Tallahatchie county, wherein the appellant was convicted of armed robbery and sentenced to serve a term of 15 years in the custody of the Mississippi Department of Corrections.

From this conviction the appellant perfected an appeal to this Court and assigns as error the following: I. The Court erred in permitting rebuttal witness, Jay Clark, to answer questions by reading from his notes.

 II. The Court erred in permitting the state, on cross examination of Richard L. Gardner, to represent to the jury that the defendant had given a written statement, and in allowing the State to use a purported written statement in cross-examination of the witnesses.

 III. The Court erred in not granting a mistrial when the prosecutor asked a defense witness the following question: "And you have no explanation for Tim's statement to the officers that Dick told him `We did it\rquote" .

 IV. The verdict is against the overwhelming weight of the credible evidence.

 V. The Court erred in permitting into evidence Exhibits S-1 through S-4 because they are not relevent to the charge and are of an inflamatory nature.

 On March 11, 1981 Mr. O. M. Martin was found shot to death at his Charleston scrap iron business. Mississippi Highway Patrol Investigators Jimmy Dees, A.D. Gatewood, and Jay Clark were dispatched to the scene. Through their investigation they learned that John Earl Booker, Kermit Jones, and Tim Gardner, the appellant, had been seen at the scrapyard that day.

 On March 12, 1981 Investigators Gatewood and Clark questioned the appellant. Also present was Mr. Richard Gardner, Tim's grandfather. The officers informed Tim of his constitutional rights, and he agreed to waive these rights and make a statement. Since Tim was only 14 years old, the officers asked Mr. Richard Gardner if he had any objections to Tim making a statement. Mr. Gardner responded that he had no objections. Thereafter, the officers questioned Tim and took notes on what he said. No tape recording was made of the interview.

 At trial, Investigator A.D. Gatewood appeared on behalf of the State. He testified that during the March 11, 1981

 interview Tim told the following story: Two days before the robbery and shooting of Mr. Martin, the appellant, along with John Earl Booker and Kermit Jones, planned to rob Mr. Martin. On the morning of the robbery, they went to the scrapyard, where they helped a customer of Mr. Martin's load tin onto a truck. They then left the scrapyard and went to a nearby Sonic drive-in restaurant. After getting something to drink, the three returned to the scrapyard. Tim entered through the front to see if everyone had left. He was told by Mr. Martin to leave, and exited via a path in the rear of the yard. He did not see Booker or Jones and went on home. Later that day he went to Kermit Jones' house. Kermit told him that they had "done it" . Booker and Jones then gave him $100.00 and told him to keep his mouth shut.

 Kermit Jones also testified on behalf of the State. He stated that Booker had told him and Tim of a man with lots of money. Booker needed help robbing the man, and both Kermit and Tim agreed to help. Tim's duty was to enter through the front of the scrapyard and get Mr. Martin to go around to the back. On the day of the robbery, Tim entered the scrapyard as planned, but was not present when the robbery or the killing occurred.

 Mr. Richard Gardner testified on behalf of the defendant. He testified that he was present when investigators Clark and Gatewood questioned his grandson, but never heard Tim admit that he helped plan the robbery.

 The defendant took the stand on his own behalf and testified that he did not assist in the planning or the commission of the robbery. On the day of the robbery, he and Kermit Jones were supposed to go to the Smoky community to meet some girls. When he went to Kermit's house that morning, Kermit stated that he had to go to Martin's scrap iron place with John Earl Booker to get some parts for Booker's car. Kermit suggested that Tim go with them and they would leave for Smoky afterwards. They went to the scrapyard, where they helped a man load tin onto a truck and were paid $7.50 each. They took the money and went to the Sonic for lunch. After they finished eating, Booker stated that he had forgotten to get the parts for his car and needed to go back to the scrapyard to do this. Tim said that he would go on home and wait for Kermit, but Kermit persuaded him to go with them to the scrapyard. When they ...


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