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GARY MOAWAD v. STATE OF MISSISSIPPI

SEPTEMBER 14, 1988

GARY MOAWAD
v.
STATE OF MISSISSIPPI



BEFORE ROY NOBLE LEE, ROBERTSON and SULLIVAN

ROY NOBLE LEE, CHIEF JUSTICE, FOR THE COURT:

Gary Moawad was indicted, tried and convicted in the Circuit Court of Panola County March, 1976 Term, for murder less than capital and two (2) aggravated assaults. He was sentenced to life imprisonment in the custody of the Mississippi Department of Corrections on the murder conviction and to terms of twenty (20) years and five (5) years for the aggravated assaults, the sentences to run consecutively. Through no fault of his own, Moawad's appeal was not properly perfected and, on February 26, 1986, this Court granted his petition for an out-of-time appeal. He has assigned five (5) errors in the trial below.

Facts

 On November 13, 1975, E. O. Tubbs was shot and killed in his home. The cause of his death was a single gunshot delivered at close range with a .32-caliber revolver, to the back of his head. Death was instantaneous. Willodean Tubbs, decedent's wife, sustained a gunshot wound just below her right eye and son, Michael Tubbs, suffered multiple lacerations to his face and head.

 Previous to the homicide and assaults, appellant and the Tubbs family, i.e. E. O. Tubbs, Willodean Tubbs, his wife, Michael Tubbs, son, and Kathleen Smith, daughter, became acquainted in 1965. At that time appellant and Kathleen Smith were attending Bible School in Tupelo, Mississippi, after which they began dating, and in May of 1965 were married. In 1969, appellant and Kathleen began experiencing marital difficulties. The couple separated in 1975, and Kathleen began divorce proceedings against him. Appellant had visited the Tubbs home in Sardis, Mississippi, regularly. Three children (sons) were born to the marriage of appellant and Kathleen and they also visited regularly with the grandparents.

 On November 13, 1975, appellant and his youngest son, Paul, went to the Tubbs' home in Sardis, Mississippi. Mr. Tubbs, his wife Willodean, and his son, Michael, all were present. Appellant explained his visit by saying that he and Kathleen were reunited. According to Mrs. Willodean Tubbs, everything was calm and the conversation was normal. At the

 beginning of the visit they were in the living room and talked approximately forty (40) minutes.

 The testimony of Mrs. Willodean Tubbs and Michael Tubbs and evidence for the State indicated that appellant took the child out to the fenced backyard and returned to the house and into the kitchen. E. O. Tubbs had left the living room and was sitting in a chair in the kitchen. When appellant entered the kitchen from the yard there was a shot heard by Willodean and Michael. Appellant then entered the living room with a .32-caliber Smith & Wesson revolver in his hand and shot Mrs. Tubbs, the bullet striking her just below the right eye and rendering her unconscious. Michael attempted to wrestle the pistol away from appellant, and, during the struggle, suffered lacerations to his face and head. Michael broke loose and ran to a neighbor's house for help. Appellant picked up the child from the backyard and drove directly to the North Mississippi Legal Services Office in Oxford, Mississippi, to speak with an attorney.

 When Michael Tubbs returned home, his mother had revived and was bleeding from her eye. Mr. Tubbs' body was slumped in the chair where he had been seated in the kitchen. Patricia Hendricks, a neighbor of the Tubbs, testified that she responded to a knock at her door on November 13, 1975, and Mrs. Tubbs was standing outside covered with blood. She ran over to the Tubbs residence, entered the house, and saw Mr. Tubbs' body seated in a chair in the kitchen. There was nothing in his hands and she saw no firearms. She and Michael Tubbs removed the body from the chair and put it on the floor.

 Marham Kozam, appellant's step-brother, testified that on November 13, 1975, appellant told him there was no hope for his marriage because Kathleen still wanted a divorce. Appellant was nervous and Kozam observed him place his .32 caliber pistol in a baby diaper. On November 13, 1975, he received a telephone call from appellant, who told him that he shot Mr. E. O. Tubbs. After the conversation, Kozam searched the house for appellant's pistol and was unable to find it. Dr. Arthur Boyd, a physician at North Panola Hospital, examined the Tubbs family.

 Mr. E. O. Tubbs was pronounced dead on arrival at the hospital, and it was the opinion of Dr. Boyd that the cause of death was a gunshot wound to the" left oxipa [sic] behind the ear. "*fn1 Mrs. Tubbs sustained a gunshot wound just below the right eye. The bullet did not exit and remains lodged in Mrs. Tubb's head. Michael Tubbs sustained a ragged laceration to the upper portion of his left cheek under the eye approximately two and one-half (2-1/2) inches long. A

 .32-caliber bullet was removed from Mr. Tubbs' head and was identified as having been fired from either a Smith & Wesson revolver or an INA.

 Appellant testified in his own behalf, and, according to him, an argument ensued in the Tubbs home, he was attacked by E. O. Tubbs, and Michael Tubbs, and the gun fired during the struggles, resulting in the shooting of E. O. Tubbs and Mrs. Willodean Tubbs and that appellant struck Michael Tubbs with an ashtray during the struggle.

 Law

 I.

 THE TRIAL COURT ERRED IN ALLOWING THE STATE TO TRY THE APPELLANT ON THREE (3) SEPARATE INDICTMENTS AT THE SAME TRIAL.

 For the first time, on appeal, appellant contends that it was error for the lower court to allow the three (3) indictments to be consolidated in one trial. The record reflects that appellant made no objection to the consolidation of the charges and the assigned error is procedurally barred from review by this Court. It has been held consistently that the failure to make a contemporaneous objection at trial constitutes a waiver of any error subsequently assigned. Irving v. State, 498 So.2d 305 (Miss. 1986), Gates v. State, 484 So.2d 1002 (Miss. 1986); Gray v. State, 472 So.2d 409 (Miss. 1985). See also Wainright v. Sykes, 433 U.S. 72 (1977). Accord: Pieratt v. State, 235 So.2d 923 (Miss. 1970); Tubbs v. State, 402 So.2d 830 (Miss. 1981); Walker v. State, 473 So.2d 435 (Miss. 1985); Ward v. State, 461 So.2d 724 (Miss. 1984). *fn2

 The assigned Error I is ...


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