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HAROLD BARNES v. STATE OF MISSISSIPPI

AUGUST 17, 1988

HAROLD BARNES
v.
STATE OF MISSISSIPPI



BEFORE HAWKINS, P.J., ANDERSON AND GRIFFIN, JJ.

HAWKINS, PRESIDING JUSTICE, FOR THE COURT:

Harold Barnes has appealed from his conviction of murder in the circuit court in the First Judicial District of Harrison County and sentence to life imprisonment; that court tried his case upon a change of venue from the circuit court of the Second Judicial District of Jones County.

This is Barnes's second appeal, we reversed his first conviction because of the State's violation of the discovery rule in Barnes v. State, 471 So.2d 1218 (Miss. 1985).

 The issues we address on this appeal are admitting rebuttal testimony which arguably was properly a part of the State's case-in-chief, restriction of cross-examination, and refusing requested defense instructions.

 Finding no error, we affirm.

 TRIAL.

 Barnes, a pharmacist, was convicted of murdering his wife, Mrs. Beverly Barnes, a severe diabetic, by a massive overdose of insulin, and then faking an automobile accident as the cause.

 He does not challenge the sufficiency of the evidence to support his conviction, and we resist the temptation to detail the facts of this unusual crime, revealing the paradoxial combination of ingenuity and gross stupidity (or simple-mindedness), so frequently found in a criminal head.

 When Barnes testified he was asked on cross-examination:

 Q. Do you know a many by the name of John Tracey?

 A. I - I know of him.

 Q. Did you or did you not owe John Tracey $30,000?

 A. I do not and I did not.

 The State first offered Tracey as a witness in rebuttal. Defense counsel objected:

 Your Honor, before the jury is brought back, let me make this objection to this proffer of testimony of the witness Tracey. The testimony of this witness, to my understanding, it wouldn't be any different than it was before, and we object on the grounds that no proper predicate was lain and it is not proper rebuttal, and there has been no relevancy shown to the issues in this case.

 I do have knowledge of the fact that it was previously ruled inadmissible under the records in this case, and I anticipate it to be substantially the same.

 As a witness, Tracey was asked on direct examination:

 Q. And have you ever engaged or had any business dealings with him in the past?

 A. In the past, yes, sir.

 Q. All right, and let me be a little more specific and ask you, as a result of those business dealings during the early months of 1980 and before April 7, 1980, whether or not the defendant, Harold Barnes, owed any money?

 MR. BUCKLEY:

 To which we object, Your Honor. There has not been a proper predicate lain for it and it is not proper rebuttal and it is not relevant to the issues in this case.

 BY THE COURT:

 Overruled.

 A. Yes, sir, he did owe me ...


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