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DENVER RAY HICKSON v. STATE OF MISSISSIPPI

SEPTEMBER 02, 1987

DENVER RAY HICKSON
v.
STATE OF MISSISSIPPI



BEFORE ROY NOBLE LEE, DAN LEE, and GRIFFIN

ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:

Today this case makes its second appearance before the Court. Denver Ray Hickson was charged in the Circuit Court of Wayne County with the murder of Susan Carole Johnson Culliver. He was found guilty, was sentenced to life imprisonment as an habitual offender, and has appealed to this Court. On June 5, 1985, the judgment of the lower court was reversed on account of an evidentiary error, and was remanded for a new trial. Hickson v. State, 472 So.2d 379 (Miss. 1985). Upon retrial, Hickson was found guilty again and was sentenced to life without parole. He assigns five (5) errors in the trial below.

The sufficiency of the evidence was raised on the first trial, and the judgment was affirmed on that issue. The facts appear at pages 380-381, Hickson v. State, supra, and will not be repeated here. It is sufficient to say that the victim was a young woman, nineteen years of age, who was brutally and diabolically strangled to death, and shot in the back with a .38 revolver on or about April 18, 1982. Her body was placed in burlap croaker sacks, half filled with sand and gravel for weights, wrapped around with chicken wire, and sunk in Thompson Creek, Wayne County, Mississippi.

 I. - III.

 The appellant contends (1) that the lower court

 erred in permitting the State to call Sheriff Marvin Farrior as a witness over the objection of appellant.

 The special venire summoned for trial of the Hickson case reported to the courtroom prior to the time that the circuit judge came to the bench. Assuming that the regular procedure was followed in that court district, the sheriff called the names of the special venire and seated them. The circuit clerk was also present and the procedure consumed twenty to thirty minutes. One of the defense counsel was present at all times and the sheriff never discussed the case with any potential juror. Later, objection was made to such participation by the sheriff.

 During the trial, Sheriff Farrior was called by the State to testify concerning the collection and preservation of evidence, which was introduced during the State's case-in-chief, and subsequently, he was called to testify as a rebuttal witness of other testimony introduced by appellant from Patricia Ann Criddell. When the sheriff took the stand, attorneys for appellant objected, stating as reasons that the sheriff was a material witness and that he should not have acted in calling the jury list, relying upon Fuller v. State, 468 So.2d 68 (Miss. 1985), and Great American Surplus Lines Ins. v. Dawson, 468 So.2d 87 (Miss. 1985).

 We think the above cases, which involved bailiffs to the jury, who were also witnesses, are distinguished from the case sub judice. Further, the attorneys for appellant represented him on the first trial, where the sheriff testified at length in establishing the collection and preservation of evidence, as here, and no objection was made until he took the stand in the present case. See Shelby v. State, 402 So.2d 338 (Miss. 1981); Pierce v. State, 289 So. 2d 901 (Miss. 1974); Stewart v. State, 203 Miss. 295, 33 So. 2d 787 (1948).

 We find no merit in the first assignment.

 Appellant contends that the lower court erred (2) in refusing to require the State to call Patricia Ann Criddle as a State's witness, or, alternatively, to allow the appellant to call and cross-examine her.

 When the State rested, the appellant moved the Court to dismiss the indictment or require the State to enter a nolle prosequi, asserting that the district attorney was derelict in not calling to the witness stand Patricia Ann Criddle, who had previously pled guilty to manslaughter in connection with the same homicide, contending that she was an

 eye witness to the crime. We answer that contention simply and concisely by saying that there was no duty upon the State under the facts of this case to call the witness Criddle. Neither the appellant, nor the court, instructs the State, or any other party to litigation, what witnesses that party shall put on the stand or how that party shall present its case.

 The appellant contends (3) that the lower court erred in admitting into evidence over objection of appellant prior inconsistent statements of the witness Criddle after that witness had admitted making the statements, but testified that they were false. The appellant called Criddle to the witness stand, and argued to the ...


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