BEFORE ROY NOBLE LEE, C.J.; ROBERTSON AND ANDERSON, JJ.
ROBERTSON, JUSTICE, FOR THE COURT:
This case is about a principal witness for the prosecution and who the day before trial was the object of a silencing assault by the defendant. At the subsequent assault trial, to what extent may the prosecution describe the trial the witness was originally slated to attend? We consider evidence of the pending trial as probative of the defendant's motive in the assault and, hence, it was admissible in this latter trial. We affirm.
Frances McKay Deloach and Robert Andrew Haynes had known each other at least since early 1981. They cohabited without benefit of clergy and separated in November of 1983 without sanction of chancery. Their union spawned a daughter and much trouble.
An incident occurring October 17, 1984, left Haynes charged with kidnapping Frances and raping her and with carrying a concealed weapon. Haynes was scheduled for trial on these charges in the Circuit Court of Harrison County on Monday, May 20, 1985, with Frances the witness for the prosecution.
The night before, on May 19, 1985, at about 8:30 p.m., Frances was returning to her mother's home from playing baseball at a nearby park in Gulfport, Mississippi. As she and her brother, Nathaniel Deloach, and her daughter walked up the driveway, a man appeared behind them, yelling. Frances turned as she heard the voice. As she turned, two shots were fired; one hitting Frances in the right leg. Although it was dark, Frances and her brother had no trouble identifying the assailant as Frances' ex-boyfriend, Robert Andrew Haynes, Defendant below and Appellant here.
Both Haynes' aunt and grandmother testified that Haynes never left his aunt's house (where he lived) on May 19, 1985. However, Haynes took the stand on his own behalf and stated that on May 19, a Sunday, he had gone to his sister's house, then by the ball park where he noticed Frances' brothers. At the time of the shooting though, he said he was laying across his bed in his aunt's home.
Haynes was charged with the aggravated assault of Frances McKay Deloach with a pistol in an indictment returned by the Harrison County Grand Jury. In February, 1986, a Circuit Court jury found him guilty. At the sentencing hearing, held on February 5, 1986, the Circuit Court gave Haynes, a recidivist with convictions for burglary and rape on his record, a twenty year sentence without parole.
Haynes appeals his conviction citing the following errors:
(1) The trial court erred in allowing the admission of crimes other than the crime of aggravated assault.
(2) The trial court erred in allowing the admission of evidence of alleged criminal offenses committed by the Appellant which did not result in a conviction.
(3) The trial court erred in overruling Appellant's motion to strike and quash the habitual offender portion of the indictment and in imposing the maximum sentence under the habitual offender statute.
The rape-kidnap-concealed weapon trial which had been scheduled for May 20, 1985, had to be postponed when Frances was shot and injured. That trial was held a month later, and on June 21, 1985, Haynes was found guilty of rape, although he was acquitted on the charges of kidnapping and carrying a concealed weapon.
Thereafter, in February of 1986, Haynes was brought to trial for the May 19 handgun assault on Frances. At that trial the prosecution on several occasions set forth for the jury the circumstances of the charges upon which Haynes was scheduled originally for trial on May 20, 1985. Haynes assigns as error admission of this evidence, arguing that it improperly places before the jury evidence of crimes other than the crime of aggravated assault.
What happened at Haynes' assault trial is this: First, Haynes admitted on direct examination that he had been convicted of burglary, an incident wholly unrelated to any of the charges involving Frances McKay Deloach. While he was on cross-examination, however, Haynes engaged in the following ...