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MAY 07, 1986




This is an appeal from James L. Hooten's second

conviction of murder by a jury in September, 1983. We reversed and remanded Hooten's first conviction in Hooten v. State, 427 So. 2d 1388 (Miss. 1983).

 The facts surrounding the murder of Reuben Wood are reported in our previous opinion cited above, and need not be restated here. For purposes of this appeal, we focus on the fact that a legal writing pad was found near Reuben Wood's body when he was discovered on the morning of November 4, 1977.

 The State sought to place Hooten at the scene of the crime by proving the legal pad found next to the body had Hooten's handwriting on it. To support their theory the State produced a special agent with the FBI assigned to the document section of the federal laboratory. He came to the conclusion the legal pad contained Hooten's handwriting.

 To rebut this testimony, defense counsel called Marie B. Hill to testify as an expert in handwriting analysis. After a thorough voir dire on her qualifications, the trial court determined she lacked the educational background to testify in an expert capacity. Defense counsel proffered her testimony, and the record reveals Mrs. Hill came to the opposite conclusion. As a result of this exclusion, the State's evidence establishing Hooten's presence at Reuben Wood's trailer was uncontradicted.

 We are of the opinion the refusal of the trial court to allow Mrs. Hill to testify as an expert was error.

 This issue has heretofore been decided by this Court. In Henry v. State, 484 So. 2d 1012 (Miss. 1986), we reiterated our well established rules regarding expert witnesses, and stated," It is not necessary that one offering to testify as an expert be infallible or possess the highest degree of skill; it is sufficient if that person possesses peculiar knowledge or information regarding the relevant subject matter which is not likely to be possessed by a layman. (Cites omitted.) "484 So. 2d at 1015.

 In this case, as in the Henry case, Mrs. Hill's testimony was the only challenge to the State's expert placing Hooten at the scene of the crime. Her practical experience in the examination of questioned documents, and frequent court appearances to testify in similar cases places her clearly within the ambit of our rules regarding experts. We emphasize that in situations such as this,

 attacks on the expert's qualifications and methods are better directed toward the weight of the testimony than its admissibility. Henry v. State, supra.




 I would sustain the petition for rehearing, withdraw the original opinion in this case, and affirm.

 The original opinion, relying on Henry v. State, 484 So.2d 1012 (Miss. 1986), held that it was error for the circuit court to exclude Marie B. Hill as a handwriting expert qualified to express an opinion on whether or not certain handwriting was the defendant's.

 In my view the original opinion did not address the precise issue with which we as an appellate court are concerned. The question is not whether the circuit court" committed error, "as we then stated, but whether the court abused its discretion in refusing to permit this witness to testify as an expert on the authenticity of handwriting.

 Since the determination of whether or not a particular witness possesses the necessary qualifications to qualify as an expert is addressed to the sound discretion of the trial court, and as I hope to demonstrate there was no abuse of discretion in this case, I would affirm this case.


 Let us begin with some basics. First, what is an expert?

 In Capital Transportation Co. v. Segrest, 254 Miss. 168, 181 So.2d 111, 120 (1965), we stated:

 [I]t is generally sufficient if a witness possesses knowledge peculiar to the matter involved not likely to be possessed by the ordinary layman.

 In Gulf, Mobile & Ohio Railroad Co. v. Hollingshead, 236 So.2d 393, 396 (Miss. 1970), we stated:

 Generally to qualify as an expert witness, one

 must have acquired special knowledge of the subject matter about which he is to testify, either by the study of recognized authorities on the subject or by practical experience.

 And, in Ludlow Corp. v. Arkwright-Boston Mfrs. Mut. Ins. Co., 317 So.2d 47, 50 (Miss. 1975), we added to the requirement that such witness by his special knowledge be able" to give the jury assistance and guidance in solving some problem which jurors are not able to solve because of their own inadequate knowledge. "See: Early-Gary, Inc. v. Walters, 294 So.2d 181, 185 (Miss. 1974); and Hardy v. Brantley, 471 So.2d 358, 366 (Miss. 1985), where we noted Rule 702 of the Mississippi Rules of Evidence is consistent with our established rule regarding the qualifications of an expert. This Rule states:

 If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of a opinion or otherwise.

 We have also held that the determination of whether a witness has obtained the required degree of specialized knowledge within a particular field to qualify as an expert is a matter within the sound discretion of the trail court. Illinois Cent. R. Co. v. Benoit Gin Co., 248 So.2d 426 (Miss. 1971); Early-Gary, Inc. v. Walters, supra; Gulf Ins. Co. v. Provine, 321 So.2d 311 (Miss. 1975); Parmes v. Illinois Cent. Gulf R.R., 440 So.2d 261 (Miss. 1983); Byrd v. F-S Prestress, Inc., 464 So.2d 63 (Miss. 1985); Hollingsworth v. Bovaird Supply Co., 465 So.2d 311 (Miss. 1985). In Hardy v. Brantley, supra, we gave the following caveat:

 Suffice it to say that the trial judge should seek to assure that the proffered witness really is an expert in the area in which his opinion testimony is offered. [Emphasis added]

 471 So.2d at 366.


 Although there have been countless times when this Court has used the word" discretion "in one context or another, I have been unable to find any case in which we

 have attempted to give its meaning.

 Reflecting a moment, when we say a court has discretionary authority to say yes or no to a particular question, we must acknowledge it is a question as to which there can be honest disagreement between equally intelligent individuals. If the answer to the question is never uncertain, or never subject to any doubt, there would be no need to vest a court with discretionary authority in its answer.

 Yundt v. D & D Bowl, Inc., 486 P.2d 553 (Or. 1971), makes the following observations:

 When faced with an offer of proof, which may or may not be appropriate for jury consideration, the trial judge may, in certain circumstances, either admit or exclude the proffered testimony if he applies the correct principle of law and does not abuse his discretion.

 * * * * *

 Discretion . . . is a very slippery concept. . . . It occurs in a hundred forms in the trial judge's day-to-day work, bobbing up in every state and in every court. Yet the legal literature does not analyze, define or account for it in any coherent fashion. Neither do the decided cases. They bandy the terms" discretion "and" abuse of discretion "incessantly, but not helpfully. Indeed, it is hard to think of a subject of comparable sweep in the law that has suffered as much neglect. [P.558]

 * * * * *

 The decision of the trial judge is legally valid so long as that decision is based on a proper application of a rule of law to the facts involved.

 State v. Winne, 91 A.2d 65, 78 (N.J. 1952), states:

 Judicial discretion is the option which a judge may exercise between the doing and not doing of a thing which cannot be demanded as an absolute legal right, guided by the spirit, principles and analogies of the law, and founded upon the reason and conscience of the judge, to a just result in

 the light of the particular circumstances of the case.

 In State Ex Rel. Simpson v. Vondrasek, 279 N.W.2d 860, 864 (Neb. 1979), the Supreme Court of Nebraska stated:

 In a broad sense," judicial discretion "is the option which a judge may exercise either to do or not to do that which is proposed to him that he shall do; choosing between the doing and not doing of a thing, the doing of which cannot be demanded as an absolute right of the party asking it to be done; the exercise of the right legally to determine between two or more courses of action.

 The Court then quoted the pragmatic definition given by Maurice Rosenberg of Columbia University Law School:

 Judicial discretion is a limited right to be wrong in the eyes of the appellate court and still not be reversed.

 279 N.W.2d at 865.

 In People v. Craver, 20 N.Y.S.2d 533 (N.Y. Sup. Ct. 1940), the New York Supreme Court stated:" This Court is careful not to substitute its own discretion for the discretion invested in the trial court. "

 Our inquiry, then is not whether the circuit judge ruled contrary to what one of us might have ruled, not whether he was" right "or" wrong "in our view, but whether he abused his discretion. And, unless the trial court based his decision on an erroneous view of the law, Bell v. City of Bay St. Louis, 467 So.2d 657, 661 (Miss. 1985), we are not authorized to reverse for an abuse of discretion unless we find it was" arbitrary and clearly erroneous. "Weiss v. Louisville, N. O. & T. Ry. Co., 7 So. 390 (Miss. 1890).


 Hill's formal education went no further than high school. She had done some secretarial work in a chancery clerk and law office. While a housewife, and going to school at night studying typing, bookkeeping and secretarial work, she also took a correspondence course with the" International Graph-Analysis Society Institute "in Chicago, finishing an eighteen-month course of 20 lessons in approximately nine months to a year, she said. *fn1 She had also obtained a" Master's Degree "from this same institution

 by taking further correspondence courses, the length of which she did not state. The" Institute "teaches entirely by correspondence courses.

 When she finished her course, for a fee they permitted her to go to a graduation in Chicago, wear a cap and gown, and attend all the festivities. There she first met her" professor. "

 According to her," grapho analysis "is" the art and science of handwriting analysis, "and" personality characteristics are the first thing you learn. "Her" Master's Degree "was in this field, not in examining questioned documents.

 To make character analyses, she uses two instruments, a" slant gauge "and a" perspectograph. "The first instrument measures the slant in handwriting from which" physical and mental "pressure could be determined. As to the perspectograph:

 It more or less compiles what you get with the other instrument. You take it, and it is more like a little rule about so long; and you take the number of times that you find a slant and put it in different places on this thing and come up with more of a graph like thing that tells you how that person reacts. [Record, p.825]

 According to her, handwriting is a reflection of what is on a person's mind, and she analyzed this.

 She testified as follows:

 Q. Oh, you call yourself a handwriting expert; is that right?

 A. I'm qualified as one through the International Grapho-Analysis Society, and I hold a membership in that organization. And they will back up or re-examine - If you question what I do, you can send it to them and ...

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