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JOSEPH F. CORLEY v. STATE OF MISSISSIPPI

DECEMBER 14, 1988

JOSEPH F. CORLEY
v.
STATE OF MISSISSIPPI



BEFORE DAN LEE, P.J., ANDERSON AND ZUCCARO, JJ.

ZUCCARO, JUSTICE, FOR THE COURT:

STATEMENT OF THE CASE

The appellant, Joseph F. Corley, was tried in Carroll County Circuit Court on a charge of escaping from jail while confined on a misdemeanor conviction. He was convicted of jail escape and sentenced to one year in the Carroll County Jail. From that conviction and sentence, Corley appeals. We affirm.

 FACTS

 Joseph F. Corley was arrested on September 28, 1985, in Carroll County, Mississippi, and incarcerated in the Carroll County jail on two counts of contempt of court. The contempt convictions arose out of Corley's failure to pay fines imposed for prior misdemeanor convictions of joyriding and driving while under suspension for DUI. (An affidavit was also sworn against Corley by Deputy Sheriff Donald Gray on a charge of simple assault allegedly occurring the date of the arrest. However, no arrest warrant was issued on the assault charge, and the mittimus issued to the jailer referred only to the contempt charges and the underlying misdemeanor offenses.)

 During the nighttime hours of October 3, 1985, or the early morning hours of October 4, 1985, Corley and two other prisoners escaped from the jail. Corley was picked up at his residence in Greenwood the morning of October 4, 1985, by officers from the Leflore County Sheriff's Office. He was turned over to Carroll County Deputy Sheriff R. W. Miller and returned to the Carroll County jail that same day.

 On December 10, 1985, Corley and the other two escapees were jointly indicted under Miss. Code Ann. 97-9-49 (Supp. 1985) on a charge of felonious escape from lawful confinement in the Carroll County Jail. The indictment stated that the three defendants' confinement was "by virtue of an arrest on a charge of felony." The following day, December 11, 1985, attorney Thomas D. Kirschten was appointed by the Circuit Court of Carroll County to represent Corley on the escape charge. Kirschten thereupon filed a motion for a continuance of the cause against Corley, stating that he needed additional time to prepare for trial. On December 13, 1985, the trial

 judge granted this motion, continuing the cause "pending further order of this Court."

 On June 9, 1986, Corley, through his appointed counsel, moved to quash the indictment against him on the grounds, inter alia, that it charged Corley with felonious escape when he was in fact incarcerated on misdemeanor charges at the time of the escape. (If Corley's confinement had been based on a felony charge or conviction, the maximum allowable sentence for conviction of the escape charge would be five years; if it were based on a misdemeanor charge or conviction, the maximum allowable sentence for conviction of escape would be one year. Miss. Code Ann. 97-9-49 (Supp. 1985)). The trial judge denied the motion to quash the indictment, but did order that all reference to the term "felony" be struck from the indictment, wherein it pertained to Corley.

 Corley was tried on June 13, 1986, on a charge of "escape from lawful confinement in the Carroll County jail, said confinement being by virtue of an arrest on a charge of a misdemeanor." He was convicted and sentenced to serve a term of one year in the Carroll County Jail. From that conviction and sentence, Corley appeals, claiming five assignments of error.

 I. IMPROPER VOIR DIRE

 Corley claims that the voir dire of the jury panel was improper in that the trial judge referred to Corley's escape as a felonious escape, and also because the prosecutor used voir dire as a vehicle for an opening statement instead of limiting it to its appropriate use.

 In his remarks to the jury during voir dire, the trial judge stated: "It is charged that on or about October 3rd, 1985, that Joseph F. Corley . . . did wilfully, unlawfully, forcibly and feloniously escape unlawful confinement in the Carroll County Jail at Carrollton, Mississippi." (Emphasis added). Defense counsel made no objection to the judge's remarks. Later, during the State's voir dire examination of the jury, the prosecutor engaged in a discourse to the jury concerning the burden of proof in a criminal case. During this time, he repeatedly used the word "criminal." Defense counsel objected to the prosecutor's remarks on the grounds that they constituted a pre-trial statement and were not voir dire examination. This objection was overruled. Corley contends that the cumulative effect of the judge's error and the improper use of voir dire effectively prejudiced the jury against the defendant "by making it appear that he was a heinous criminal. . . ."

 Since Corley failed to object to the judge's remarks made during voir dire, this aspect of Corley's assignment of error is procedurally barred. Myers v. State, 268 So.2d 353, 356 (Miss.1972) ("Under our system of jurisprudence, contemporaneous objection is necessary in order to preserve the right to raise a point on appeal."). As for the prosecutor's remarks, this Court has held that a trial court has considerable discretion in regard to the questions permitted on voir dire examination. Myers v. State, 268 So.2d 353, 355 (Miss.1972); McDonald v. State, 218 So.2d 21, 23 (Miss.1969). Furthermore, it is impossible to see how allowing the prosecutor's remarks to be made during voir dire could have prejudiced the defendant, since the prosecutor could have made those same ...


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