BEFORE ROY NOBLE LEE, P.J., DAN LEE AND PRATHER, JJ.
DAN LEE, JUSTICE, FOR THE COURT:
William "Pete" Simpson was indicted in Monroe County on June 18, 1982, for the March 4, 1982 murder of Sims Oliver Blanchard. After four continuances, his trial finally took place on June 21, 1984. He was found guilty of murder and sentenced to life imprisonment. He appeals this conviction, and assigns the following as error:
I. THE TRIAL COURT ERRED IN NOT SUSTAINING DEFENDANT'S OBJECTION TO ASSISTANT DISTRICT ATTORNEY BOWEN'S CLOSING
ARGUMENT CONCERNING DEFENDANT'S MARRYING THE EYEWITNESS.
II. THE CROSS-EXAMINATION OF DEFENDANT'S CHARACTER WITNESSES PATTERSON AND MEDLOCK WAS SO HIGHLY PREJUDICIAL TO DEFENDANT THAT HE WAS DEPRIVED OF A FAIR TRIAL REQUIRING REVERSAL OF THIS CAUSE.
III. THE TRIAL COURT ERRED IN REFUSING DEFENDANT'S REQUESTED INSTRUCTION NO. D-11.
IV. THE TRIAL COURT ERRED IN NOT GRANTING THE MOTION FOR MISTRIAL AFTER THE ASSISTANT DISTRICT ATTORNEY'S THIRD REFERENCE TO A STATEMENT SIGNED BY THE WITNESS, ANNETTE JAMES.
V. THE TRIAL COURT ERRED IN NOT SUSTAINING DEFENDANT'S OBJECTION DURING CLOSING ARGUMENT TO THE ASSISTANT DISTRICT ATTORNEY CALLING THE DEFENDANT A LIAR.
VI. THE TRIAL COURT ERRED IN ADMITTING THE STATEMENT OF WILLIAM SIMPSON INTO EVIDENCE.
VII. THE TRIAL COURT ERRED IN NOT PEREMPTORILY INSTRUCTING THE JURY TO FIND THE DEFENDANT NOT GUILTY.
VIII. THE TRIAL COURT ERRED IN INTRODUCING INTO EVIDENCE THE PICTURES OF THE DECEASED OVER OBJECTION OF DEFENDANT.
Because we find error in the prosecutor's comments on Simpson's marriage to Katie James, the eyewitness, we reverse.
On March 4, 1982, Pete Simpson shot Sims Blanchard to death. The shooting took place at the home of Katie James, with whom Simpson had lived, off and on, for several years. Katie James did not testify at trial, as she and Simpson married shortly after the shooting. Her daughter, Annette, did testify, although there were many apparent lapses in her testimony due to lack of memory about the events. Since here testimony essentially did not contradict Simpson's, his recounting of the events of that night are set out below.
At the time of the shooting, Simpson was the owner of a restaurant and lounge in Monroe County, called the "Palace." Blanchard had been an employee of Simpson's until about three or four weeks before he was killed. However, problems had developed between Simpson and Blanchard, primarily due to Blanchard's interest in Katie. Simpson fired Blanchard. Two witnesses testified for Simpson that Blanchard threatened to kill him at about that time.
On the evening of March 4, Simpson was at the Palace. At about 10:30, he took some money out of the lounge to make change from a lockbox that he kept in the trunk of his car. He opened the trunk, dropped his keys inside, took some money from the lockbox, and took a gun he was holding on a loan out of the trunk. Simpson testified that he took the gun out of the trunk for protection, since he had his back turned to anyone who was in the parking lot. He then closed the trunk and went back inside the club. After the exchange was complete, Simpson realized that he had locked his keys in the trunk of his car. He asked a couple of his patrons to take him to his (Katie's) apartment, to get his extra set of keys so he could lock up the club.
Simpson testified that he got inside his apartment without his keys, although he was not certain whether Katie unlocked the door for him or not. He went through the apartment to the back bedroom, which was his and Katie's room, and found his three natural children and his stepdaughter, Annette, watching television. They did not have his extra keys, so he went back to the front of the apartment, where he found Katie, his keys, and a man's coat and hat.
Simpson and Katie began arguing about whose clothing he had found. Simpson, gun in hand, began looking through the apartment for the interloper. He found him in the children's bedroom, in one of the bunkbeds. There is some question in the testimony about the extent to which Blanchard was clothed. According to Simpson, he saw Blanchard reach under the pillow of the bed, and, thinking he was after a gun, Simpson shot him. Simpson then went immediately to the kitchen, in the front of the house, and called the police. Simpson testified that he waited in the kitchen for the police, because, if he tried to leave the apartment, Blanchard could shoot him through the bedroom window. As he waited in the kitchen, he saw Blanchard come out of the bedroom with a gun. Simpson shot him again.
Earl White, of the Aberdeen Police Force, testified that they received a call at 11:54 p.m. from Simpson, who told them "I shot a son of a bitch. He was in the bed with my wife." The police immediately went to the apartment, where they found Simpson, Katie James, whose head was bleeding, and the body of Sims Blanchard. The police testified, and pictures taken at the scene reflect, that Blanchard was fully clothed, even to his shoes and socks. The body was lying in one of the bedrooms, alongside a bunk bed. The police did not recover a weapon from the bedroom, nor did they recover any shells from Simpson's automatic weapon.
Blanchard died as the result of being shot through the heart. He had also been shot in the thigh, but the pathologist testified that the wound to the heart killed him. Both wounds were inflicted from the front. According to the pathologist, Blanchard would have lost consciousness within one to two minutes after the infliction of the chest wound, and died within three to four minutes.
Leon Williams, Chief of Police of Aberdeen, and Sheriff Frank Pat Patterson took Simpson into custody. Their records reflected that Simpson was given his Miranda warnings, and waived his rights, at about 1:30 a.m. According to Simpson, he requested an attorney before making a statement; however, the police told him that no attorney was available at that hour. Simpson gave a statement to the police, which differed somewhat from his testimony at trial. In the statement, Simpson said that, after leaving the master bedroom, where the children were watching television, he went into his boys' room. There he found his wife putting on a red robe. She pushed him out the door, and, when asked, said no one was with her. He looked in the bunk bed and saw Blanchard, who was wearing only a white T-shirt, but no pants. He shot Blanchard twice while he was still in the bed, then went to the kitchen and called the police. This statement was admitted over the defendant's objection.
The jury, after being instructed as to both murder and manslaughter, returned a verdict of guilty of murder. Simpson was sentenced to life imprisonment.
I. DID THE PROSECUTOR IMPROPERLY COMMENT UPON THE MARRIAGE OF SIMPSON TO KATIE JAMES?
During closing argument, the Assistant District Attorney made the following comment upon Simpson's claim of self defense: First of all, it wasn't his house. It was where Katie James lived. Pete lived with Katie, on and off. In the second place, she wasn't his wife. He didn't have the decency to marry her when he did. The only reason he married Katie James was because
he wanted to marry the only eye witness to the murder that he committed. You remember he married her after this happened.
The defendant's objection was overruled, and the prosecutor continued:
By his own testimony, he lived with her several years before he married her. Then he is charged with murder and he knows she is an eye-witness, and what did he do? He married her.
The State argues, in its brief, that this comment was made in order to counter the impression made at trial that Simpson shot Blanchard because he was in bed with his wife, when, in fact, Simpson and Katie were not married until after the shooting. However, at trial, Simpson specifically testified that "I didn't shoot him because he was in bed with my wife. I shot Blanchard because he was fixing to shoot me." His sole defense at trial was not provocation or passion, but self-defense.
This Court has long held that the prosecutor cannot call the defendant's wife to the stand to testify, thereby forcing the defendant to assert, before the jury, his right to have her testimony excluded. Outlaw v. State, 208 Miss. 13, 43 So. 2d 661 (1949). Nor is the state entitled to an instruction regarding the defendant's failure to call his wife to the stand. Johnson v. State, 63 Miss. 313 (1885).
The appellant characterizes the prosecutor's comments as a comment upon his wife's failure to testify. This Court has held that such a comment is improper. In Cole v. State, 75 Miss. 143, 21 So. 706 (1897), such a comment mandated reversal of the conviction, even though the defendant did not object to the prosecutor's remarks, the Court there holding that the comments denied the defendant "a fair and impartial trial." 75 Miss. at 144, 21 So. at 707. In Johnson v. State, 94 Miss. 91, 47 So. 897 (1909), the prosecutor's closing argument contained the following language:
Gentlemen of the jury, there is another witness to this difficulty. Where is she? Where is the wife he says he loved so dearly? Where is the wife he called his baby? If the defendant had wanted a fair hearing of this case, if he had been willing that the circumstances of the fight be fairly investigated why did he not put her on the stand?
94 Miss. at 92, 47 So. at 897. The Court, citing Cole, reversed the conviction. Finally, in Fannie v., State, 101 Miss. 378, 58 So. 2 (1912), the prosecutor, in his closing argument:
[C]alled the attention of the jury to the fact that appellant's wife had not testified, reminded them of the fact that the state could not introduce her as a witness, but that appellant could, and suggested to them, that his failure to do so could be accounted for only on the ground that her evidence would show that he was guilty of murder.
101 Miss. at 381, 50 So. at 3. The Court there also reversed, referring to the following language from Johnson v. State:
The statute does not contemplate or countenance such result as that husband and wife shall, directly or indirectly, be coerced by others into the witness box. The sanctities of the marital relation cannot be exposed to public scrutiny, in a case like the one before us, without the consent of the husband and wife. If, for any reason, they decline to ...