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BRENDA SHOEMAKER v. STATE OF MISSISSIPPI

FEBRUARY 18, 1987

BRENDA SHOEMAKER
v.
STATE OF MISSISSIPPI



EN BANC

ANDERSON, JUSTICE, FOR THE COURT:

This appeal from the Circuit Court of Rankin County involves a question of the trial court's efforts to cure a prosecutor's improper statement to the jury. Finding

no prejudicial error we affirm.

 In October 1982, Brenda Shoemaker and her children entered a Western Auto Store in Brandon. Shortly after her departure, the proprietors noticed that a diamond ring was missing from its case. Lacking any evidence of the thief's identity, they decided there would be little point in calling the police. There, no doubt, the matter would have ended had not Brenda Shoemaker been so hardy as to bring the missing ring to the store in January 1983. She claimed that her husband had given it to her for Christmas, but she then told them she didn't want it and would like a refund. The owners recognized the ring and called the police, who soon arrived and arrested Mrs. Shoemaker. She was subsequently indicted and convicted for receiving stolen goods; her eight-year-old son took the ring and gave it to his mother. The trial judge sentenced her to five years with the Department of Corrections with the last four years suspended, provided she maintained good behavior under supervised probation.

 On appeal, she adduces four assignments of error, of which only one merits close consideration.

 During direct examination, Mrs. Shoemaker was asked whether she had ever been convicted of other misdemeanors. She replied:

 I believe back in '71 it was abusive language and disturbing the peace. I think I must have been seventeen at that time or just barely eighteen anyway. Then in 1972 for public drunk and abusive language and then in 1980 for two shopliftings.

 During cross-examination of the defendant, the following occurred:

 Q. Now, you tell this jury that you hadn't shoplifted or attempted to shoplift anything since 1980.

 A. Correct.

 Q. Isn't it a fact that right down here at the White's Auto Store BY MR. TAYLOR: I'm going to object -_

 Q. --- that

 BY MR. TAYLOR: I'm going to ask for a mistrial.

 BY SECOND DEFENSE COUNSEL: I ask for a mistrial, judge.

 BY DISTRICT ATTORNEY: They brought it out.

 The trial judge excluded the jury, listened to the court reporter's tape recording and had the stenographic notes read to him. After much discussion with counsel, the trial judge overruled the motion for a mistrial, but stated he would permit questions by the district attorney about any felony or misdemeanor convictions of the defendant. Upon the jury's return, the trial judge admonished the jury without request of defense counsel as follows:

 BY THE COURT: Ladies and Gentlemen, when we stopped before, Mr. Craft was attempting to ask a question concerning some alleged incident at the White Auto Store in Brandon. He didn't get but about half his question out, and then everybody was objecting at once. I have played back the tape and listened and asked the court reporter to read back what she heard, and she didn't get much past that point so there is nothing in my judgment that could be there other than perhaps some inference that the Defendant was involved in some incident at the White Auto Store and might have in some way been similar to the present issue before the Court. I have ruled that that is not admissible and any inference about that should not be drawn and I am instructing you to completely disregard that question and to not have any inference in your mind from the fact that Mr. Craft started into some question about an incident ...


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