BEFORE ROY NOBLE LEE, ROBERTSON AND SULLIVAN
SULLIVAN, JUSTICE, FOR THE COURT:
From a conviction of murder and a sentence of life imprisonment as an habitual offender under Mississippi Code Annotated 99-19-83 (Supp. 1985), on November 29, 1984, JERRY DONNELL GRAVES (Graves) appeals, assigning as error:
I. The trial court erred in overruling the defendant's motion for mistrial on the grounds that the State unnecessarily introduced evidence of an unconnected crime;
II. The trial court committed reversible error in admitting a green knife as evidence of the murder weapon; and
III. The re-indictment of the appellant was a result of prosecutorial vindictiveness.
SHOULD THE TRIAL COURT HAVE DECLARED A MISTRIAL DUE TO EVIDENCE BEING INTRODUCED OF ANOTHER CRIME COMMITTED BY GRAVES?
Veronica Moore was babysitting for Dorothy Jean Ransburgh, the sister of Jerry Donnell Graves, on the night of December 21, 1979, and during the early morning hours of December 22, 1979. On direct examination she testified for the state that Jerry Graves came to the Ransburgh house around 4:00 or 4:30 a.m. on December 22, 1979, and was wearing at that time a pair of beige pants and a soft beige cap. She testified that Graves was wearing a dark shirt, but she could not remember what color it was. On cross-examination, Moore admitted that she had told the attorney for Graves that she thought Graves was wearing something beige, and that he did not have on anything maroon.
The following exchange then took place:
Q All right. Now who have you talked to since that time concerning what he wore?
Q You talked to Mr. Gusack?
Q Now what did Mr. Gusack tell you that Jerry Graves was supposed to have been wearing?
A A beige pair of pants, a soft cap and a maroon shirt.
Q Mr. Gusack told you that's what he was wearing, didn't he?
Q O.k., but you told me that it was a jump suit, didn't you?
On redirect examination, Ms. Moore said that in 1979 she talked to the police about what Graves was doing at the Ransburgh home between 4:00 and 4:30 a.m. She further testified that she talked to the police about what Graves was wearing on that night. She made a police report about what happened that night and about what Graves was wearing, and she further testified that Dorothy Jean Ransburgh and her Uncle Lewis Ransburgh were also present. At this point, Graves objected on the grounds that the district attorney was attempting to establish that Jerry Graves allegedly did another crime on the night in question, for which he has never been convicted. That objection was overruled. There was then an objection as to Moore testifying about what Ransburgh said Graves was wearing, on the grounds that it was hearsay. The jury was then instructed by the court to disregard any portion of the answer by Moore that referred to the police report.
Dorothy Ransburgh then testified for the state that when she and her husband returned to their home in the early morning of December 22, 1979, she had an occasion to call the police and the police came to her house. She admitted that she gave to the police a description of her brother and the clothing that he had on, but she testified that she could not now remember what that clothing was.
The district attorney then called Officer Steven Roebuck, who testified that he was on duty on the morning of December 22, 1979, and responded to the call at the Ransburgh home. In response to questioning, Officer Roebuck testified that he took down a description of the clothing that Mrs. Ransburgh told him was being worn on that occasion by Graves. After refreshing his memory from the police report that he took down simultaneously with the description given by Mrs. Ransburgh, he testified that Mrs. Ransburgh said Graves was wearing a maroon shirt or a maroon tee-shirt, some tan or khaki ...