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EARNEST HERRING v. STATE OF MISSISSIPPI

MARCH 16, 1988

EARNEST HERRING
v.
STATE OF MISSISSIPPI



BEFORE DAN LEE, P.J., SULLIVAN & ANDERSON, JJ.

SULLIVAN, JUSTICE, FOR THE COURT:

Earnest Herring was convicted of the forcible rape of N. K. and sentenced to thirty (30) years in the custody of the Department of Corrections. Herring appeals and assigns the following errors:

I. The trial court abused its discretion when it refused to grant Appellant a mistrial because the prosecutor's improper closing arguments violated Mississippi law and Appellant's rights to fundamental fairness and freedom from an arbitrary and prejudicial argument pursuant to the Mississippi Constitution, Article III, Sections Fourteen, Twenty-six, and Twenty-eight, and the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution;

 II. The trial court erred by overruling Appellant's motion to suppress his statements;

 III. The State is estopped from introducing into evidence the statements of Appellant for failure to comply with Rules 1.03, 1.04, 1.05, and 1.07 of the Mississippi Uniform Criminal Rules of Circuit Court Practice; and

 IV. The evidence presented by the State is legally insufficient to support the verdict of guilt, the verdict of the jury evinces prejudice, and the verdict is against the overwhelming weight of the evidence and is contrary to the

 law in this case.

 I.

 THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT REFUSED TO GRANT APPELLANT A MISTRIAL BECAUSE THE PROSECUTOR'S IMPROPER CLOSING ARGUMENTS VIOLATED MISSISSIPPI LAW AND APPELLANT'S RIGHTS TO FUNDAMENTAL FAIRNESS AND FREEDOM FROM AN ARBITRARY AND PREJUDICIAL ARGUMENT PURSUANT TO THE MISSISSIPPI CONSTITUTION, ARTICLE III, SECTIONS FOURTEEN, TWENTY-SIX, AND TWENTY-EIGHT, AND THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

 During the closing argument the following exchange took place:

 BY MR. PETERS:

 And, so, the question comes down - just as I asked you on the opening day of this trial - can you put race aside? Can you white members vote for a fair verdict? Can you black members vote for a fair verdict? You and I know there are people in this county and this state and this city that would say - you are wanting your time. You can't have a jury with black people that are gonna vote for life for a black person raping a white person. Time will tell.

 No matter if you've got his fingerprints all over the house. No matter if she's beaten. No matter if her vagina is bruised and torn. No matter if her room is torn up. No matter if her door is forced open. You just can't get any black People who are gonna vote for life against a black defendant who does that to a white person, You are not -

 BY MR. TUCKER:

 (Interposing) We are gonna object to this line of questioning as being prejudicial to the

 defendant. It's improper closing argument.

 BY THE COURT:

 Sustained. (Emphasis added).

 After the objection and ruling the district attorney continued his argument. At the conclusion of his argument defense counsel moved for a mistrial stating:

 BY MR. TUCKER:

 Your Honor, the defendant moves for a mistrial at this time based upon improper closing arguments by the prosecutor.

 BY THE COURT:

 Motion denied.

 BY MR. TUCKER:

 Specifically the comments concerning the blacks - that they would have to ...


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