BEFORE ROY NOBLE LEE, ROBERTSON AND SULLIVAN
SULLIVAN, JUSTICE, FOR THE COURT:
Leon Smith was convicted in the Circuit Court of the First Judicial District of Harrison County, Mississippi, of carrying a concealed weapon under Mississippi Code Annotated 97-37-1 (1972), and sentenced to life imprisonment without parole under 99-19-83 (Supp. 1983). Smith assigns as error the trial court's actions in,
(1) Failing to quash the indictment on the ground of double jeopardy;
(2) Failing to grant a mistrial upon improper and prejudicial cross-examination by the district attorney;
(3) Refusing the defendant's instructions on circumstantial evidence;
(4) Refusing to grant a peremptory instruction on the ground of insufficient evidence.
For the reasons set out below, we find no merit in Smith's claim that he was subjected to double jeopardy, but conclude that the prosecutor's misconduct in this case requires reversal of the conviction and remand for a new trial.
On August 30, 1979, the police, acting on a tip, arrested Smith at an apartment complex near Gulfport, Mississippi. Smith's car was searched, and in the trunk police found a large quantity of tools and a .38 caliber revolver. Smith was subsequently indicted separately for possession of burglary tools and carrying a concealed weapon.
At the first trial, on the burglary tools charge, the trial court ordered that no mention be made of the weapon. The state put on its proof that the automobile belonged to the defendant, and that the tools were found in the trunk of the defendant's car. The state's investigators testified that the tools were identical to those frequently used in burglaries, but admitted that the tools were also commonly used in legitimate trades. Smith's defense was based on testimony by two occupants of the apartment, Susan Haskins and Christine Spears, that the tools belonged to one Bobby Scarborough, who, according to Spears, had placed them in the trunk of Smith's car. In closing argument, Smith's attorney contended that the tools found in Smith's trunk could be used legitimately and that the state must prove that they were adapted or designed for breaking and entering. Defense counsel principally relied, however, on Spears' testimony that Bobby Scarborough owned the tools and put them in the trunk of Smith's car hours prior to his arrest. The jury found Smith not guilty of possession of burglary tools.
In the second trial on the concealed weapons charge the trial court entered an order excluding any evidence of the burglary tools. The state offered substantially the same testimony as in the first trial regarding Smith's ownership of the vehicle and the discovery of the weapon in the trunk of the car. Smith offered the same defense in the form of Haskins' and Spears' testimony that the weapon belonged to Bobby Scarborough. Spears further testified that Bobby had placed the weapon in the trunk of Smith's car in her presence.
On cross-examination, the district attorney brought out the fact that both Spears and Haskins were temporarily living rent-free in an apartment leased by one of defense counsel's clients. Haskins explained the reason for her temporary move to Jackson was her fear that the prosecutor would harass her if she returned to testify:
Q Is the free rent in Jackson contingent upon you coming down here and testifying? A No, sir.
Q In other words, they just, you testified May the 13th and you sounded so good they just wanted to give you a nice apartment in Jackson?
Q You just suddenly decided you wanted a change of scenery; you wanted to move to Jackson?
A No, sir. I went to Jackson because I figured that I would be harassed by you for testifying.
Q You figured I was going to harass you?
A That's the reason I went to Jackson.
Q Well, let me ask you this, have you been selling your body up there like you did on the Coast?
A I have never sold my body up there or on the Coast.
Q Are you telling me that you have never sold your body?
A Yes, sir, I'm telling you that.
BY MR. STANFIELD: Now, Your Honor, unless
the District Attorney can prove it, we ask the Court to, uh, uh, we object to these remarks.
COURT: The Jury will disregard the District Attorney's remarks. Everybody promise me you'll do that? All right.
BY MR. STANFIELD: Your Honor, unless the
District Attorney can prove what his mouth has just shot off, we ask the Court to declare a mistrial.
BY THE COURT: Overruled. The Jury has
been instructed to disregard the remark. Everybody, that will be not a part of the evidence in the case. All right.
Spears also stated that she had been told the district attorney would arrest and imprison her if she returned to testify. Because of this accusation, the trial court allowed the district attorney to ask Spears if she had any knowledge of outstanding warrants against her, but twice admonished the prosecutor not to go into details of any alleged crime. The following exchange then occurred:
Q Didn't you know that there was some warrants for you, based on writing some checks?
A No, I didn't. I don't see how there could be any warrants when I ain't wrote no checks.
Q You ain't wrote no checks?
Q Well, didn't you run out of the Hancock Bank, at the Long Beach Branch, when you tried to cash a check . . . .
A (Interposing) No, sir, I did not.
BY MR. STANFIELD: Now, Your Honor, . . .
BY THE COURT: (Interposing) All right,
I sustain it. BY MR. STANFIELD: . . . . . . . .he's violating your
Order. BY THE COURT: I've sustained the objection.
BY MR. STANFIELD: We move for the Court
to declare a mistrial. BY THE COURT: Overruled.
The district attorney's next attempt at discrediting Ms. Spears focused on the fact that she had not mentioned the weapon in her testimony at the first trial on the burglary tools charge:
And then you went outside and you saw him taking this pistol, saw him wrapping this pistol?
A A pistol similar to that ... (inaudible).
Q Now, do you ever remember testifying to ...