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BILLY CHARLES BURT v. STATE OF MISSISSIPPI

SEPTEMBER 10, 1986

BILLY CHARLES BURT
v.
STATE OF MISSISSIPPI



PETITION FOR REHEARING

EN BANC:

The opinion rendered in this cause on June 11, 1986, is hereby withdrawn, and the following is substituted as

the opinion of the Court. However, only one part of the opinion is changed, that is Part VIII. Justice Prather is the author of Parts I-VII of the opinion, and Justice Griffin wrote Part VIII.

 PRATHER, JUSTICE, FOR THE COURT:

 This is a criminal appeal from the Circuit Court of Montgomery County wherein Billy Charles Burt was convicted of uttering a forgery and was sentenced under the habitual criminal statute to a term of fifteen (15) years without parole or probation in the custody of the Mississippi Department of Corrections.

 Burt appeals assigning the following errors:

 (1) The court erred in allowing into evidence a bank check containing disputed writing before that writing was properly authenticated by the state, and by overruling the appellant's motion for a mistrial;

 (2) The court erred in not providing a handwriting expert for appellant;

 (3) The court erred in not excluding from petit jury service appellant's relative;

 (4) The court erred in admitting into evidence a statement made by the appellant to the sheriff and the allowance of testimony from the sheriff as to the statement subsequent to a suppression hearing;

 (5) The court erred in refusing the appellant's motion for a directed verdict based on the amendment of the indictment;

 (6) The court erred in not granting the appellant's motion for a peremptory instruction or in not granting a new trial; and

 (7) The sentence of the court was cruel and unusual punishment.

 I.

 On August 15, 1984, Billy Charles Burt made purchases at Winters' Grocery with a counter check drawn on the Duck Hill Bank. The check displayed the forged signature of Clinton Clay and contained the number $35.00 in the space available for the numerical amount. The store clerk, Ora Lee Baker,

 wrote in the date," Winters' Grocery, "and the amount in words.

 Mrs. Baker accepted the check after establishing from the former store owner and the bank that the account was good. However, when the check was processed the bank did not honor it because the signature on the check did not match the signature on the bank's file.

 During the trial, Clinton Clay testified that he had not signed the check, and had not authorized Burt to use his name. But Claudine Donald, Clay's daughter and Burt's girlfriend, testified that the signature was her father's. Robert Tompkins, Sheriff of Montgomery County, testified, over the objections of the appellant, that the appellant said he" did it all by himself. "

 From a guilty verdict the defendant appeals.

 II.

 Did the lower court err in allowing into evidence a bank check containing disputed writing before that writing was properly authenticated by the state, and by overruling the appellant's motion for a mistrial?

 In Shearer v. State, 423 So.2d 824, 826 (Miss. 1982), this Court reiterated its ruling in Page v. State, 295 So.2d 279 (Miss. 1974) that:" A trial judge enjoys a considerable amount of discretion as to the relevancy and admissibility of evidence. Unless his judicial discretion is so abused as to be prejudicial to the accused, this Court will not reverse his ruling. "

 The check was not shown to the jury until after all writings thereon were authenticated. The order of admittance was not an abuse of the judge's discretion nor was it prejudicial to the appellant. Therefore the court was not in error in admitting the check with reservation or in overruling the motion for mistrial.

 III.

 Did the lower court err in not providing a handwriting expert for appellant?

 The same issue was before the United States Supreme Court in Caldwell v. Mississippi, ___ U.S. ___, 105 S. Ct. 2633, 86 L.Ed. 231 (1985). In Caldwell, the decision of this Court was reversed on the basis of improper arguments made by

 the district attorney, not on the question here involved.

 This Court observed in Johnson v. State, 476 So.2d 1195, 1202-1203 (1985):

 [The United States Supreme Court left] undisturbed our holding that the Constitution does not require a State to furnish an indigent defendant with expert or investigative assistance upon demand. We recognize that the doctrine of fundamental fairness, guaranteed by the Due Process Clause of the Constitution, at times requires authorization for appointment of a particular expert or investigator. Ruffin v. State, 447 So.2d 113 (Miss.1984), stated Mississippi's position on the question as follows:

 That there can conceivably be instances when the state in fairness should be required to pay the cost of an expert needed by the defense to insure a fair trial for an indigent accused must be conceded. Those cases can only be left to the discretion of the trial court, and they will be rare.

 " Whether the denial of expert assistance for an accused is prejudicial to the assurance of a fair trial must be weighed on a case-by-case basis. "Johnson, 476 So.2d at 1203; Davis v. State, 374 So.2d 1293 (Miss. 1979).

 There is nothing in the record that suggests that the appellant in the case sub judice was prejudiced to the point of warranting a new trial. Therefore, the lower court was not in error in denying the appellant's request for an appointed handwriting expert.

 IV.

 Did the lower court err in excluding from petit jury service ...


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