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WILBUR EARL HORNE v. STATE OF MISSISSIPPI

APRIL 16, 1986

WILBUR EARL HORNE
v.
STATE OF MISSISSIPPI



BEFORE WALKER, ROBERTSON AND ANDERSON

ANDERSON, JUSTICE, FOR THE COURT

As a result of various investigations, officers of the Hattiesburg office of the Mississippi Bureau of Narcotics had reason to believe the defendant Wilbur Earl Horne and others were engaged in the sale of narcotics in Laurel. On October 26, 1982, three agents, Charles M. Tyson, Tim Wilkinson, and Shirlene Anderson, went from Hattiesburg to Laurel with a view to purchasing narcotics from Horne and his confederates and apprehending them afterwards. Tyson and Wilkinson, after being joined by Jones County and City of Laurel police officials, proceeded to a point on Fourth Avenue near the Masonite Plant in Laurel. Agent Shirlene Anderson, who had been fitted with a concealed radio transmitter, proceeded in a separate unmarked car near the same area. She was to be the one to initiate contact with the alleged drug dealers. The other officers kept her under surveillance as best they could, but there were times during the operation when they could not see her. Agent Anderson testified that she began talking with one of the appellant's friends, a man named Tommy Lee McCoy, when she saw the defendant drive by in his car. The defendant was accompanied by another man, known to Anderson only as "Chico" , but later identified

as James Culpepper. The men in the car stopped and began talking to Anderson. Anderson testified that she asked about the possibility of purchasing some "sets" of talwin and pyribenzamine. (A "set" consists of one tablet each of these two drugs. When taken simultaneously they are said to produce an effect comparable to that of heroin.) After some initial hesitation, the two men proceeded to a nearby car wash followed by Anderson, where further negotiation took place. The upshot was the agent agreed to purchase three "sets" for $40; she said that Earl Horne handed the sets to Chico, who gave them to the agent. The agent then gave the money to Chico.

 As a result of this transaction, Wilbur Earl Horne and James "Chico" Culpepper were indicted by the Jones County Grand Jury for the felonious sale of a controlled substance. Culpepper pled guilty, and Horne was tried alone in the Circuit Court of Jones County. He was convicted and sentenced to five years imprisonment. We reverse and remand for a new trial.

 ARGUMENTS OF LAW

 ASSIGNMENT OF ERROR NO. I. THE TRIAL COURT ERRED IN REFUSING TO GRANT A MISTRIAL AFTER THE DISTRICT ATTORNEY MADE THE STATEMENT THE DEFENDANT HAD COMMITTED A PRIOR CRIMINAL OFFENSE.

 During the state's cross examination of the witness James "Chico" Culpeper, the following exchange occurred.

 Q. Okay. Mr. Culpepper, were you one of those persons that brought those 3,000 sets of T's and blues from Alabama with Mr. Horne and another fellow?

 MR. SWARTZFAGER: If the Court please, we object to that, and we move for a mistrial. That's highly prejudicial and I don't know what Mr. Casey is talking about, but I do know that injection of inflammatory remarks like that before this jury is totally improper, and that it was designed to inflame the jury.

 THE COURT: It is highly improper and I sustain the objection to it. I instruct the jury to disregard it.

 The defendant is being tried for the sale of drugs on the 26th day of October, 1982, and that's all he is being tried for.

 MR. CASEY: If it please the court, Mr. Swartzfager asked the question -

 THE COURT: I don't care about any argument on that point. Can you each disregard that - that last statement and answer?

 (ALL JURORS NOD THEIR HEADS AFFIRMATIVELY)

 THE COURT: All right, let the record show that the jury says that they can disregard it.

 MR. CASEY: Just a moment, if the Court please * * * * * (pause)

 Horne contends on appeal that the court should have granted a mistrial because this question was highly prejudicial to him and the prejudice was not cured by the judge's corrective actions. As the state correctly points out, the granting of a mistrial is within the sound discretion of the trial judge. Coley v. State, 378 So.2d 1095, 1097 (Miss. 1980); Logsdon v. State, 183 Miss. 168, 170, 183 So. 503 (1938).

 Horne responds by pointing out a line of cases holding that where "incompetent" and "inflammatory" statements are heard by the jury, prejudice to the defendant will be presumed. Smith v. State, 457 So. 2d 327, 335-36 (Miss. 1984), Tudor v. State, 299 So. 2d 682, 685-86 (Miss. 1974); McDonald v. State, 285 So. 2d 177, 178 (Miss. 1973). The appellant's argument is correct so far as it goes; however, it overlooks one important element of this doctrine. In Tudor, Justice Walker said, "We will reverse [such] a conviction unless it can be said with confidence that the inflammatory material had no harmful effect upon the jury." 299 So. 2d at 694. In the present case, the trial judge went to unusual lengths to remove any effect the testimony may have had on the jury. Not only did he sustain the objection to the question; he sharply rebuked the prosecutor, calling the question "highly improper." Not only did he instruct the jury to disregard it; he polled the jurors as to whether or not they could disregard it, and each juror responded affirmatively. In none of the cases cited by appellant were such thorough curative measures employed by the trial judge. This appears to be a case in which it can be said with confidence that the inflammatory material had no harmful effect on the jury. Indeed, from this record, it seems this incident was probably more embarrassing to the prosecutor than the defendant.

 Finally, it can hardly be overemphasized that the trial judge is in a better position to assess the effect of such an incident than is this Court on appeal. This Court recently remarked that "the circuit judge is in the best position to weigh the consequences of the objectionable argument and unless serious and irreparable damage has been done, admonish the jury then and there to disregard the improper comment." Johnson v. State, 477 So.2d 196, 210 (Miss. 1985). See also, Peyton v. State, 286 So. 2d 817, 818-19 (Miss. 1973).

 This assignment of error is without merit.

 ASSIGNMENT OF ERROR NO. II THE TRIAL COURT ERRED IN LIMITING THE CROSS EXAMINATION OF STATE'S WITNESS SHIRLENE ANDERSON

 During the defense's cross examination of agent Anderson, the following occurred:

 Q. Well, when you made this case against him and the indictment was brought against him, why didn't you testify against him on those?

 A. On who?

 Q. On this man over here. If you say that he had committed another crime on the same day that you say. Why didn't you tell the grand jury about that, too, so he would be indicted on that charge that you saw?

 MR. CASEY: We object to that. That's not relevant to this case here.

 MR. WALTERS: We object to that, your Honor.

 THE COURT: Sustained.

 MR. SWARTZFAGER:

 Q. Why did you show these other officers, these other agents, those pills when you ...


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