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ANTHONY L. ESTES & MARCUS D. COLE v. STATE OF MISSISSIPPI

OCTOBER 26, 1988

ANTHONY L. ESTES & MARCUS D. COLE
v.
STATE OF MISSISSIPPI



BEFORE ROY NOBLE LEE, C.J., SULLIVAN & ZUCCARO, JJ.

SULLIVAN, JUSTICE, FOR THE COURT:

On the night of July 18, 1986, the home of Milton Hull was broken into while he was present. Mr. Hull's head was covered with a pillowcase and while one of the men held Mr. Hull in a headlock and threatened him with a gun, the other robber went through the house looking for things to steal. The two men eventually took some money, some knives, and a gun. At approximately 12:12 a.m., July 19, 1986, Hull reported the robbery to the Kosciusko Police Department.

Hull told the police that he did not see the two robbers but he recognized the voice of one of the men and that man was Tony Estes. The only information Hull could provide on the other robber was that the man was wearing white shoes with bows.

 Just over an hour after taking Hull's statement the officers saw Marcus Cole standing on a porch with four other men, and Marcus Cole was wearing white shoes. As the police approached, Cole stepped back into the house, made a throwing motion and came back outside. The officers questioned Cole and got permission to search the house and in the house they found a pistol matching the description of the one stolen from Hull. At that point Cole was arrested. When Cole arrived at police headquarters and was searched, the police discovered two pocket knives. Later in the morning Hull was summoned to the police department to identify his pistol, the shoes

 and the pocket knives removed from Cole. After the pistol, shoes and the knives were identified, Hull was taken where he could hear Cole's voice and Hull identified Cole as the other assailant.

 Estes was already wanted for a jail break at the time Hull identified him as one of the robbers. Estes was spotted by police at approximately 6:15 a.m., on July 19, 1986. After a short pursuit Estes was apprehended and placed under arrest.

 Cole and Estes were tried together in the Circuit Court of Attala County, Mississippi, and both were found guilty of burglary of an occupied dwelling at night while armed and sentenced to twelve years each in the custody of the Mississippi Department of Corrections.

 I.

 WAS IT ERROR IN FAILING TO SEVER THE TWO CHARGES AGAINST THE DEFENDANTS?

 Both defendants raise this assignment. Section 99-7-2, Miss. Code Ann. (1972), as Amended, specifically authorizes multi-count indictments as well as trials on multi-count indictments. The code section states that multi-count indictments and a single trial on all counts are allowed when, ". . . the offenses are based on two (2) or more acts or transactions connected together or constituting parts of a common scheme or plan." The cases cited by the defendants all pre-date the passage of the statute. We are of the opinion that there is no merit to this assignment of error.

 II.

 WAS IT ERROR NOT TO DECLARE A MISTRIAL WHEN THE WITNESS HULL VIOLATED THE COURT'S ORDER IN LIMINE?

 The trial court had granted a Motion in Limine that there would be no mention of other crimes as they related to Estes. Hull, the victim, was being cross-examined by Estes' attorney and in response to a question Hull began to ramble and at the end of his rambling answer said, "Tony, how in the world are you going to pay me and you on the dodge now." Estes' attorney objected, not on the grounds of the other crimes reference, but on the grounds of irrelevant rambling. The trial judge sustained the objection and struck the record all the way back to

 the "No" answer. The court also told the jury to disregard everything that was said after the word "no."

 It is well settled that when the trial judge sustains an objection to testimony and he directs the jury to disregard it, prejudicial error does not result. Wetz v. State, 503 So. 2d 803, 810 (Miss. 1987); May v. State, 460 So. 2d 778, 783 (Miss. 1984); Shelby v. State, 402 So. 2d 338, 340 (Miss. 1981).

 The second time "on the dodge" was heard by the jury was on the re-direct of Hull. At this point Estes' attorney again objected and the court sustained the objection. It is presumed that when a trial judge sustains an objection the jury understands that the trial court disapproves of the testimony. Davis v. State, 472 So. 2d 428, 433 (Miss. 1985).

 There is no merit to this assignment by Estes.

 III.

 WAS IT ERROR TO ALLOW THE VOICE RECOGNITION TESTIMONY OF HULL LINKING ESTES TO THE CRIME WHEN IT WAS ADMITTED THAT HULL HAD A HEARING PROBLEM?

 Hull was 79 years old at the time of the trial and had a hearing problem. The record shows that Hull stated that the burglars' voices were loud enough for him to recognize the voices. He does not claim that he heard what was being said, merely the voices. He further testified that he recognized that one of the voices was that of Estes, and that he had known Estes long enough and well enough to recognize his voice. The jury also heard that Hull had hearing problems.

 We have stated before that voice recognition of the accused is a question for the jury and the jury heard all of the testimony and concluded that Hull was telling the truth. Warren v. State, 456 So. 2d 735, 738 ...


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