BEFORE ROY NOBLE LEE, P.J., DAN LEE AND GRIFFIN, JJ.
DAN LEE, J., FOR THE COURT
Edgar Monroe appeals his conviction of robbery and 15-year sentence as a recividist rendered in Hinds County Circuit Court. Monroe was indicted for armed robbery and also indicted as a recividist under Miss. Code Ann. 99-19-81 (Supp. 1986).
The indictment alleged Monroe on May 1, 1984, robbed Judy Spates of $40 and a gold necklace by displaying a weapon. The jury found him guilty of the lesser-included offense of robbery. Following a hearing, the circuit court found Monroe to be a recividist, and the court sentenced him to 15 years in the custody of the Mississippi Department of Corrections without parole.
Monroe appeals, assigning four errors, but he argues only three to this Court:
I. THE TRIAL COURT ERRED IN REFUSING TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSE OF ASSAULT, SINCE ASSAULT IS A CONSTITUENT OFFENSE OF ROBBERY AND ARMED ROBBERY.
II. PLAIN ERROR WAS COMMITTED WHEN THE PROSECUTION,
THROUGH ITS CROSS-EXAMINATION OF JETHRO JONES, APPELLANT'S ACCOMPLICE, IMPERMISSIBLY COMMENTED ON, OR MADE INSINUATION OF, APPELLANT'S CONSTITUTIONAL RIGHT TO REMAIN SILENT.
III. APPELLANT'S SENTENCE AS AN HABITUAL OFFENDER SHOULD BE REVERSED AND RENDERED AS IT IS BASED UPON INSUFFICIENT ADMISSIBLE EVIDENCE AND AS A RESULT OF A FUNDAMENTALLY DEFECTIVE SENTENCING HEARING.
Judy Spates went to the home of girlfriend Kathy Harris on May 1, 1984, accompanied by several other friends. Judy intended to ask Kathy if she would accompany them to a movie.
Judy and the others arrived at Kathy's house on the corner of Douglas and Collier Streets in Jackson sometime after dark. Judy set the time around 8:00 p.m. or maybe 7:50 p.m.
Unknown to Judy, neither Kathy nor her husband was home. Instead, Judy Spates was greeted at the kitchen door around back by someone answering to the name of Kathy's husband, Kenneth. The house was dark, and Kathy did not see the occupant before she entered. She moved to light her cigarette lighter when a man came up beside her and took it. She could tell there were two men in the room. The man who took the lighter struck it to show Judy a badge, and told her they were police officers involved in a drug bust.
The two men took Judy into the next room, a living room or a den, where she was pushed to the floor. She felt a hand search her arms and neck, and her pockets were frisked. Judy stated she didn't notice that a gold necklace and $40 in case were missing" until after everything happened. "
She was taken to a different room. She tried to escape by running to the back door where she had entered. One of the men was waiting and grabbed her, however, and took her back into the front room. She said the taller of the two men, later identified as Jethro Jones, then struck her in the face with something hard. She later saw what she thought was a gun in the faint light shining in the window. The blow bloodied and broke her nose and later the wound required 12 stitches to close. The men took her back to a bedroom where her feet were bound with a cloth and her hands were bound with a coat hanger. She managed to free her hands and dove through the paned glass window to freedom.
Police arrested appellant Edgar Monroe and Jethro Jones based on a description of the car in which two men drove off after fleeing from the house.
Though Judy Spates did not see either man's face, she heard both their voices and saw each man's physical features. She identified both Monroe and Jones at lineups by their builds and their voices.
Monroe gave a statement to police admitting that he was in the home, but denying that a robbery occurred. He told police that he and Jones were running a con game in hopes of ripping off drugs at a" dope house, "where they suspected someone was dealing drugs. He said that Spates hurt herself diving through the window. Monroe denied having a pistol.
The house previously had been used by a George Smith, who had recently been released from the penitentiary on probation for a drug offense conviction, Jackson Police Detective C. M. Criscoe testified. Smith was apprehended prior to May 1, 1984, on a parole violation, and Criscoe stated that he had found no evidence that the house was currently being used for drug dealings.
Jethro Jones testified on behalf of Monroe. Jones previously had been convicted of robbery in connection with this incident and sentenced to 15 years. Jones did not testify in his own trial, but testified basically consistent with Monroe's statement to police.
Jones testified that Judy Spates had come up to the house looking to purchase some marijuana. She came around to the back of the house and Monroe let her in after she refused to accept Jones' statement that nothing was going on.
Spates gave $25 to Monroe, Jones stated, apparently expecting to purchase marijuana. It was at this time that Jones flashed his officer's badge, obtained in a New Orleans pawn shop, and told Ms. Spates that she was under arrest. He had no gun. Jones said Ms. Spates panicked and tried to run. Jones did not strike her but spoke harshly and tied her up in the back bedroom.
The jury was instructed concerning armed robbery, robbery and larceny. The jury found Monroe guilty of robbery.
Following a pre-sentencing hearing, the trial court found Monroe to be an habitual offender as charged in the indictment, and sentenced Monroe to 15 years without benefit of parole.
I. Did the Trial Court Err in Failing to Grant Instructions as to Simple or Aggravated Assault?
Monroe was indicted for armed robbery. The jury was instructed concerning the lesser-included offenses of robbery and petit, rather than grand, larceny since there was no evidence as to the gold necklace's value.
Here Monroe argues that the trial court erroneously denied his request for lesser-included offense instructions as to simple and aggravated assault.
Monroe relies on Presley v. State, 321 So.2d 309 (Miss. 1975) to argue that assault is a lesser-included offense of robbery. Presley was decided on the basis of a previous assault and battery statute.
The trial court agreed with defense counsel that assault is a lesser-included offense of robbery, but stated," I just don't believe this is a proper instruction on the facts of this case. "
The cases are legion in this Court holding that lesser-included offense instructions must be warranted by the evidence. Messer v. State, 483 So.2d 338 (Miss. 1986); Lee v. State, 469 So.2d 1225 (Miss. 1985); Lambert v. State, 462 So.2d 308 (Miss. 1984); Stevens v. State, 458 So.2d 726 (Miss. 1984); Lacy v. State, 432 So.2d 1205 (Miss. 1983); Colburn v. State, 431 So.2d 1111 (Miss. 1983); Johnson v. State, 416 So.2d 383 (Miss. 1982).
This Court has stated that the evidence in a particular case generally warrants granting a lesser-included offense instruction if a" rational "or a" reasonable "jury could find the defendant not guilty of the principal offense charged in the indictment, yet guilty of the lesser-included offense. See Harveston v. State, 493 So.2d 365, 374 (Miss. 1986); Fairchild v. State, 459 So.2d 793 (Miss. 1984). See also, Harper v. State, 478 So.2d 1017 (Miss. 1985); Harbin v. State, 478 So.2d 796 (Miss. 1985); Lee v. State, 469 So.2d 1225 (Miss. 1985).
Though the trial court did not explain it, its reasoning clearly was based on Monroe's evidence. Monroe's only witness was alleged accomplice Jethro Jones. Jones testified that he and Monroe had gone to the house at the corner of Douglas and Collier Streets intending to rip off the" dope house. "It is unclear whether or not Monroe and Jones intended to trick anyone out of money when he went to the house, but Jones stated that was the reason he initially purchased the badge at a pawn shop in New Orleans. Judy Spates actually gave $25 to Monroe for some marijuana before he flashed the badge and told her she
was busted, Jones testified. Regardless of what they might originally have intended, Jones' testimony showed that he and Monroe actually tricked Ms. Spates out of money at the" dope house. "Thus, Monroe's own evidence implicates him in the crime of larceny by fraud or possibly false pretenses. See Russell v. State, 391 So.2d 987, 990 (Miss. 1980).
Even considering the proof in the light most favorable to the accused, and keeping in mind that the jury may not be required to believe any evidence offered by the state, Fairchild v. State, 459 So.2d at 801, Monroe's own proof was that Judy Spates was tricked out of $25. This is not a case where the state's proof could have been disbelieved. Here the jury would have had to disbelieve both the defense and the prosecution witnesses. It would seem that no rational or reasonable juror could have convicted Monroe of merely simple or aggravated assault. The only question for the jury was whether Monroe and Jones took the money by force or merely by trick.
We agree that the evidence did not support a lesser-included offense instruction on assault. There is no error.
II. Did the Prosecution Impermissibly Comment on Defendant's Failure to Testify?
Under this assignment, Monroe argues that the assistant district attorney made what amounted to an impermissible comment on his failure to testify when cross-examining accomplice Jethro Jones. Jones, who prior to Monroe's trial had been convicted of robbery, did not testify in his own trial but took the stand on behalf of Monroe.
Monroe points to this exchange:
Q. It's a yes or no question. Do you have a problem taking the stand, taking an oath and telling people what happened over there?
Q. So I guess you would have taken the stand and taken the oath and told all those people who were the jury in your own trial, isn't that right, Jethro?
Q. I guess you would have no problem taking the stand, taking an oath and telling the Jury in your own trial what happened, isn't
A. Well, my lawyer didn't want me to ...