BEFORE ROY NOBLE LEE, C.J., SULLIVAN & ANDERSON, JJ.
SULLIVAN, JUSTICE, FOR THE COURT:
Willie D. Harrison and his wife were estranged, and
Annie had been staying with Willie D.'s brother, Robert, and Robert's wife, in Louisville. On October 13, 1985, Harrison went to Ray Patty's house because Harrison thought Patty had been seeing Annie Ruth. After convincing Harrison that he was not seeing Annie Ruth, Patty agreed to go with Harrison to Louisville to talk with Annie Ruth.
Some two weeks prior to this occasion Annie Ruth had told Harrison that she was seeing Dennis Herrington and Harrison had confronted Herrington about this.
When Harrison and Patty got to Robert Harrison's home, they found Herrington's car already there. Patty went into the house. Harrison got a knife and went to the Herrington car where he found Annie Ruth with her head in Herrington's lap.
Harrison grabbed Annie Ruth by the hair of the head, pulled her from the car and stabbed her six times. He then scuffled briefly with Herrington. Meanwhile, Patty heard a scream and came out of the Robert Harrison house but saw nothing. Harrison told his brother, Robert, to call the police, then he and Patty drove to Noxapater to the home of Harrison's sister. Harrison told his sister to call the police, and shortly thereafter he was taken into custody by the Winston County Sheriff's Office. Some time during the early morning he gave a statement regarding the killing of his wife.
On July 25, 1986, a Winston County Jury found Willie Harrison guilty of murder, and he was sentenced to life imprisonment.
Harrison appeals to this Court, assigning five errors:
I. The Court erred in allowing the District Attorney to impeach State witness, Ray Lee Patty, and allowing the State to "cross-examine" said State witness, and further for allowing said witness to testify that he was smaller than the Defendant and was "afraid of him" thereby highly prejudicing the jury, and further by over-ruling a motion for a mistrial;
II. The Court erred in allowing the State to call police officer Willie Joe Coleman for the purposes of impeaching their own witness, Ray Lee Patty;
III. It was error to introduce an alleged written
confession of Appellant as the proof showed that Defendant could neither read nor write and did not understand the contents of the written statement taken by police officers immediately after his arrest;
IV. The State's proof was insufficient for a conviction of murder, especially since the State failed to call the only eye witness, "Moon" Herrington, as a witness, and the Court should have instructed the jury that they could find the Defendant guilty of no greater crime than manslaughter; and
V. The Court erred in refusing to grant a mistrial when one of the jurors left the Jury room during deliberations and came into the Judge's chamber and requested to be relieved from the Jury.
THE COURT ERRED IN ALLOWING THE DISTRICT ATTORNEY TO IMPEACH STATE WITNESS, RAY LEE PATTY, AND ALLOWING THE STATE TO "CROSS-EXAMINE" SAID STATE WITNESS, AND FURTHER FOR ALLOWING SAID WITNESS TO TESTIFY THAT HE WAS SMALLER THAN THE DEFENDANT AND WAS "AFRAID OF HIM" THEREBY HIGHLY PREJUDICING THE JURY, AND FURTHER BY OVER-RIDING A MOTION FOR A MISTRIAL.
Harrison's first assignment of error is predicated upon a series of exchanges between Assistant District Attorney Lacy and the witness Ray Lee Patty.
Q. Do you recall making a statement to Officer Willie Joe Coleman on the 14th of October, 1985?
We object, Your Honor. This is his witness. He can't impeach his own witness.
Your Honor, I'm entitled to impeach my own witness on a lapse of memory if it becomes necessary. That's clear under the rules.
Under the new rules, I think you're right.
Q. Now, do you recall talking to Officer Coleman on the 14th, which is the day after the 13th, the day Annie Ruth was killed, do you recall talking to him?
A. Well, like I said, my memory is - yes, I remember talking to him.
Q. All right. Do you remember telling the officer, "He was going to his sister's townhouse. On the way he kept telling me he had messed them up." Do you remember making that statement?
A. No, I don't. I don't remember telling anyone that.
Q. In the statement that you gave you do not remember making that statement at that time?
A. No. I said, - no - do you mind repeating that again?
Q. "He was going to his sister's townhouse. On the way he kept telling me he had messed them up." Isn't that the statement that you made to Officer Coleman when you were interviewed?
A. No, I never told him he kept saying he messed them up. I never gave him that statement.
Q. When you gave the statement to the officer on the 14th of October, did you testify you remembered giving - did you tell the officer, "He showed me a Dutch knife with blood on it" ?
A. Like, I told you, I can't remember giving him that statement there.
Q. Do you remember making the statement to the officer when you gave the statement on the 14th of October, 1985, "He continued to do it and say, `This is what I did with it' as he slung it back and forth." Do you remember making that statement?
A. No, I don't. I don't recall giving that statement.
Q. When you gave your statement to Officer Coleman on the 14th of October, didn't you tell the officer, "I looked back when I heard Annie Ruth Harrison hollering." Didn't you tell the officer that?
A. I didn't say who I heard hollering. I said I heard a scream, and I said I was on the inside and I looked around ...