BEFORE DAN LEE, ANDERSON AND ZUCCARO.
DAN LEE, PRESIDING JUSTICE, FOR THE COURT:
Daniel Leflore was indicted by the Grand Jury of Madison County on February 13, 1986, for the crime of business burglary. After a jury trial in the Circuit Court of Madison County, he was convicted on September 12, 1986, of the crime charged and sentenced to six years' imprisonment in the Mississippi Department of Corrections. Motion for a new trial was denied on September 29, 1986.
On appeal, Leflore's attorney has assigned and briefed one error, that the trial court erred in denying his motion for a new trial on the grounds that the verdict was against the overwhelming weight of the evidence. Leflore, himself, has assigned eight additional errors.
Briefly, the facts are these. Lucille Swinney owns a grocery store located on Highway 16 East, Madison County, outside of Canton, Mississippi, known as Swinney's Country Store. The store contains general merchandise, two pool tables, and several game machines. On February 14, 1986, when the store was closed, someone called her to come to the store because someone had broken in. When she arrived, she found a hole in the back wall on the north side, a Timex watch display missing, eight to ten cartons of cigarettes missing, and fifteen or more cases of beer missing.
Tim Hutson, deputy sheriff of Madison County, began investigating the break-in on February 15. He found the point of entry to be a hole in the northeast corner of the building which was made by removing the outer wall, pushing in the inner wall, and moving a jukebox to the side. He also found a black leather button in the crawl space where someone had entered the building. He dusted for fingerprints, lifting some off the metal coin box, usually located inside the pinball machine, as well as off the coin boxes inside the pool tables. Two of the lifted prints matched Leflore's known prints. The pool table coin boxes had been ripped open and dropped on the floor. During his investigation, he was able to recover three of the Timex watches and a black leather coat, which he found at Leflore's mother's house. The watches, the coat, and the fingerprints were admitted into evidence.
Tim Hutson was re-called to the stand and testified that Dennis Clayton turned himself in to the Leake County Sheriff's
Department, gave a statement in his own handwriting as to the burglary, and was released on his own recognizance. Clayton told them that the button came from a black leather jacked owned by Leflore and told them they could find the jacket at Leflore's mother's home. Clayton is under indictment for the burglary, but is no longer in Mississippi.
Various witnesses testified that they saw Clayton and Leflore on numerous occasions after the burglary, beginning Thursday evening, February 13. The two were seen with large quantities of beer, cigarettes and coins, as well as with many Timex watches which they would either sell or give away in exchange for rides to various destinations. One witness, Leflore's first cousin, actually stashed some of these items for the two in exchange for two watches. Leflore's brother-in-law unwittingly helped the two transport the items from a hiding place in the woods near Swinney's store. When the brother-in-law finally confronted them about where the items came from, Dennis Clayton said, in the presence of Leflore, that they" stole the beer and stuff from Swinney's. "Leflore made no attempt to deny Clayton's statement to his brother-in-law.
The evidence concerning the button and the black leather jacket was in some dispute. Leflore's mother testified that the jacket the deputies picked up is not the same jacket which was admitted into evidence. She claims the jacket in evidence belongs to Dennis Clayton, and is not a real leather jacket, as is her son's. The jacket in evidence was a waist-length coat. One witness testified that Leflore's black leather jacket is a knee-length coat. The button found at the crime scene was analyzed by a forensic scientist with the Mississippi Crime Lab as being of the same size, construction and color as those on the jacket in evidence. The jacket in evidence had several buttons missing, such that the button could not be excluded as a button coming from that particular jacket. Leflore put on the jacket which had been admitted into evidence in front of the jury. As Leflore described it for the record, the jacket was apparently too small for him. Leflore claimed that he gave this particular jacket to Dennis Clayton five years before. He could not say, however, how the coat got back to his mother's house, but offered the opinion that Dennis probably brought it. He also claimed that the police took his real black leather jacket when they arrested him.
Daniel Leflore maintained, in his own defense, that he shared Clayton's new-found bounty, but did not know where Clayton obtained any of it; however, he could offer no explanation for his fingerprints being on the coin boxes from inside the pool tables.
I. The Verdict of the Jury was Against the Overwhelming Weight of the Evidence.
Under this assignment of error, Leflore argues that the evidence adduced at trial did not meet the burden of proof which the state was obligated to meet in a circumstantial evidence case: beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence. The jury was properly instructed as to this burden of proof.
Leflore's contention that the jury verdict was against the weight of the evidence stems procedurally from his motions for directed verdict and request for peremptory instruction, all denied, as well as from the trial court's denial of Leflore's motion for a new trial. This Court has often ...