BEFORE WALKER, BOWLING AND PRATHER
WALKER, PRESIDING JUSTICE, FOR THE COURT:
This is an appeal from the Circuit Court of Scott County, Mississippi, wherein appellant was indicted, tried and convicted of burglary and sentenced to a term of six (6) years in the custody of the Mississippi Department of Corrections. Aggrieved with the lower court's holding, he has perfected his appeal to this Court.
On July 1, 1983, a Saturday, Henry Arnold discovered an unoccupied home owned by him and his wife and located in Scott County, Mississippi had been broken into. Entry was obtained through a rear window. Numerous musical instruments as well as other household items were discovered missing. The preceding Thursday Arnold had been to the home at which time all the items were present.
On August 7, 1983, Officer Will Reed, deputy sheriff with the Scott County Sheriff's Office and investigating officer of the alleged burglary, was approached by the appellant at the Oakdale Apartments. Through information from a reliable source, the appellant was considered a suspect at the time. He voluntarily went with Reed to the Scott County Sheriff's Office where he confessed to the crime following his Miranda warnings.
Compton was indicted along with Gary Glen Hopper and Bobby Blackley. A motion for severance was granted, and Compton was tried for his alleged participation in the crime. Following a jury trial, a verdict was returned finding appellant guilty as charged.
THE TRIAL COURT COMMITTED REVERSIBLE ERROR
IN OVERRULING APPELLANT'S MOTION FOR A MISTRIAL
ON THE GROUND THAT THE COURT, DURING ITS VOIR DIRE, STATED TO THE JURY PANELS THAT THE DEFENDANT'S COUNSEL WAS COURT APPOINTED.
The voir dire examination is not made a part of the record on appeal. Following voir dire proceedings, the appellant moved for a mistrial as the court's mentioning counsel for appellant was court appointed might prejudice the
jurors' thinking against both he and counsel.
The court stated that he mentioned the attorney's name as a court appointed attorney trying to help him thinking that in unpopular cases, often times, a local young attorney can benefit from an announcement that he has been appointed and has no choice in the case. The court then asked counsel if he wished to produce testimony showing prejudice. Counsel declined to offer such testimony.
Appellant cites to Sanders v. State, 429 So.2d 245 (Miss. 1983) wherein this Court condemned the practice of attorneys making reference to the fact that they are court appointed. We cited United States v. Naylor, 566 F.2d 942 (5th Cir. 1978) in support of our statement. In Naylor the defendant assigned as error a remark made by defense counsel in his opening statement that he had been court appointed. The court noted that while such was not commendable practice, it was not error.
Although we find both attorneys as well as judges should not make reference to the fact one is court appointed, we do not find such reference constitutes reversible error in this case but restate that great caution should be taken in informing jurors ...