BEFORE DAN LEE, P.J., SULLIVAN & ANDERSON, JJ.
SULLIVAN, JUSTICE, FOR THE COURT:
On September 26, 1984, James Williams, Jr., was convicted of murder and sentenced to life imprisonment by the Circuit Court of Harrison County, Mississippi. He assigns the following as error:
I. & II. Did the" voucher rule ", coupled with the rule preventing comment on the State's failure to call a witness, prevent James Williams, Jr. from receiving a fair trial?
III. Should the court have permitted additional testimony concerning James Williams, Jr.'s background?
IV. Should the court have allowed Officer Slote to testify about the statement allegedly given to him by James Williams, Jr.; and
V. Did the court err in not granting James Williams, Jr.'s motion for new trial?
On Monday, July 18, 1983, James Williams, Jr., and his brother Steve were riding around in Gulfport. They stopped" somewhere on 20th Street "and Steve got out of the car and went to talk to some acquaintances. Apparently angered by Steve placing his foot on the back bumper of his pickup truck, Howard Johnson struck Steve and a fight ensued. James Williams, Jr. testified that he broke up the fight and that he and Steve left.
The Williams' brothers went back to the Bayou View Apartments where Steve lived in Building G. After a short stay they left the apartment in separate vehicles in search of beer. They pulled into a Majik Market Store near Railroad Avenue in Gulfport. When they arrived at the Majik Market, Howard Johnson and some of his friends were inside. Minutes later Howard Johnson lay dead in the parking lot of the Majik Market. It is agreed that the fatal shot was fired from a Ruger .22 caliber pistol which James Williams, Jr. was holding.
Shirley Marie Smith, an employee of the Majik Market, called the Gulfport Police. Steve and James Williams were followed to the Bayou View Apartments, where James was seen attempting to hide his gun behind a transformer. Steve and James Williams were promptly arrested.
James Williams, Jr., ultimately admitted having fired the gun but contended that it was during a scuffle with Howard Johnson and that Johnson had grabbed his arm, causing the gun to discharge.
At the trial Shirley Marie Smith testified that at about 1:15 a.m. five or six men came into the Majik Market, and all but two, Howard Johnson and his companion, left shortly thereafter. Johnson and his friend bought some BC powder and a six pack of Miller Beer. As Johnson walked through the front door he was grabbed and pulled outside. According to Smith, Johnson was knocked to the ground and was lying on the sidewalk in front of the store when James Williams, Jr. shot him. Smith stated that James Williams, Jr. was standing over Howard Johnson taking deliberate aim. Smith called the Gulfport Police and while on the phone she heard another shot.
Eula Mae Turner testified that she was also working at the Majik Market on the night in question. Turner's testimony was that Howard Johnson was attacked as he was walking out the door and that he was lying on the ground when he was shot by James Williams, Jr. Turner also testified that there was no one near James Williams, Jr., when he fired the gun.
Reed Lowe, an investigator with the Gulfport Police Department, testified that when he arrived at the Bayou View Apartments he found that James and Steve Williams had already been arrested. Lowe read both suspects their Miranda rights and testified that after he put James Williams, Jr. in the patrol car, Williams told Lowe that some men had jumped his
brother and that he (James, Jr.)" did it. "
Steve Slote, of the Gulfport Police Department, testified that James Williams, Jr., made an oral statement at the police station. According to Slote, James Williams, Jr., stated that after his brother was attacked outside of the Majik Market, he went to his car and got his gun, he was grabbed by one of his brother's assailants and the gun discharged. Slote testified that James Williams, Jr., stated that the man who attacked him had a broken bottle.
At the close of the State's case in chief, Williams moved to dismiss the charge and this motion was denied.
The defense called eight witnesses who testified that James Williams' reputation for peacefulness was good.
Steve Williams testified about the events of the night in question. According to Steve, there had been a family cookout after which he and James were riding around. At 20th Street Steve instructed James to stop the car and Steve got out and began talking to some people. Steve was accosted by Howard Johnson for putting his foot on the bumper of Johnson's truck. Steve testified that James broke up the fight and that he and James left the scene and went to the apartment.
According to Steve, he and James left the apartment in separate cars to go to the Majik Market to get some beer. After they arrived at the Majik Market, he noticed that the men who had previously attacked him were in the store but he got out of his car anyway and went toward the store to purchase the beer. As he reached the door Steve met Howard Johnson coming out of the Majik Market, and according to Steve, Johnson attacked him again.
Steve stated that he was knocked down and that when James came to break up the fight James was also attacked. Initially, Steve testified that he saw James go to his car, remove his gun, and saw someone grab James' arm as the gun fired. Later, Steve was recalled by defense counsel and he admitted that much of what he had said before had not been true and that he had not been able to closely observe James during the fight.
Dr. E. T. Riemann testified that he examined James Williams, Jr., on July 21, 1983, and found many contusions on his body.
The defendant took the stand and testified in his own
defense. His testimony about the earlier fight between Johnson and Steve Williams that he had broken up coincides with the testimony of Steve. James further testified that Steve was attacked outside the Majik Market Store and that he (James) was beaten up when he tried to break up the fight. James claims that he got his gun only to scare the assailants, but his arm was grabbed and the gun accidentally discharged. He further testified that he ran for the front of the store where Steve was being beaten up and fired the gun into the air. Also, he testified that he never mentioned a broken bottle to the police.
DID THE VOUCHER RULE, COUPLED WITH THE RULE PREVENTING COMMENT ON THE STATE'S FAILURE TO CALL A WITNESS, PREVENT JAMES WILLIAMS, JR., FROM RECEIVING A FAIR TRIAL?
The only eyewitnesses who testified for the State were Shirley M. Smith and Eula M. Turner, two Majik Market employees. Three men who were in a position to see the shooting were not called to testify, although they were all available at the time of the trial. Leroy Johnson, Howard's brother, was in the Harrison County Jail, having been returned from Parchman for the trial. He was not called as a witness. Neither were Claude Smith and Larry Wells, friends of Howard Johnson's who were at the scene, although they were in the district attorney's office during the trial.
Prior to trial the prosecution filed a motion in limine to prevent defense counsel from commenting on the prosecution's failure to call witnesses who were equally available to the prosecution and the defense. This motion was originally conceded by defense counsel, but this concession was withdrawn, with leave of the trial judge. The trial judge granted, over objection, the prosecution's motion and ordered defense counsel not to comment on the failure of the State to call the witnesses who were equally available to both parties. At trial defense counsel made an offer of proof as to what each of the uncalled witnesses would say, if called. According to defense counsel Claude Smith would have testified that he saw both fights and at the second fight at the Majik Market, James Williams, Jr., went to his car and got a gun and that when he shot Howard Johnson, Johnson was standing up beside Smith and Larry Wells.
Defense counsel further stated that if Larry Wells had been called to testify, he would say he was in the back of a pickup truck in the parking lot of a Majik Market when
Steve and James Williams pulled up to the store and that he (Wells) ran inside the store to tell Leroy and Howard Johnson that Steve Williams was back. Wells would say that he had tried to calm Steve Williams but that a fight broke out when Howard Johnson came out of the store. Wells would further testify that James Williams, Jr., pulled a gun from his pocket and shot Howard Johnson and that after Johnson was shot he ran to his truck and tried to crank it, then got out and ran to the west side of the Majik Market where he collapsed.
Finally, according to defense counsel, Leroy Johnson would testify that he saw the fight at the truck and later that evening at the Majik Market and that James Williams, Jr., pulled a gun from his car and shot ...