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EDWARD A. HOLMES v. STATE OF MISSISSIPPI

DECEMBER 21, 1988

EDWARD A. HOLMES
v.
STATE OF MISSISSIPPI



BEFORE DAN LEE, PRATHER AND ROBERTSON.

DAN LEE, PRESIDING JUSTICE, FOR THE COURT:

The appellant, Edward A. Holmes, was charged with carrying a concealed weapon following a felony conviction in violation of 97-37-1 and 97-37-5, Miss. Code Ann. (1972, amended). Pursuant to this charge, Holmes was convicted and sentenced on April 10, 1986, in the First Judicial District of Harrison County, Mississippi. He was sentenced to serve five years in the Mississippi Department of Corrections under 99-19-81, Miss. Code of 1972, as amended, without hope of parole or probation. Feeling aggrieved by the holding of the lower court, Mr. Holmes assigns one error. We reverse and remand.

STATEMENT OF THE FACTS

 In the early morning hours (around 1:30 a.m.) of August 10, 1985, Pat Sullivan, a Gulfport Fire Department paramedic, was eastbound on Pass Road in Gulfport, Mississippi. Mr. Sullivan noticed an automobile stopped in the middle of the road. This automobile, later identified as a 1975 Chevrolet Nova, was occupied by Edward A. Holmes (hereinafter" Holmes ") and a passenger, one Delbert Mason (hereinafter" Mason "). Mr. Mason was a longtime friend of Holmes'. Although Holmes stated that he needed no assistance, Sullivan contacted the Gulfport Police Department nevertheless, to avoid a developing traffic problem.

 Responding to Sullivan's call, several police officers from the Gulfport Police Department arrived at the scene. According to the testimony of Sullivan, the officers questioned Holmes, as well as looked into the interior of the car. One of the first officers present, Kenneth Scott Henderson, testified as to the contents of the automobile, and stated that he observed a machete lying on the car seat, partially covered by clothing. Additionally, Henderson saw what he described as a" dirk knife "lying on the transmission hump of the car on the front floorboard and observed that this knife was obscured," kind of stuck under the dash. "

 After observing the knives, Officer Henderson placed Holmes and Mason under arrest. They were both advised of their Miranda rights and thereafter the officers requested to search the trunk of the car. Holmes responded in the affirmative to their request. Holmes also advised the officers that the contents of the car were" either my mother's or my brother's. "

 In addition to searching the trunk of the car, Officer Butch Disalvo took a photograph of the interior of the automobile. The photograph demonstrated the true position of the machete and the dirk knife.

 At trial, Holmes and his mother, Mrs. Eva Booker, both testified on direct and cross-examination that on the day of the incident, Holmes and his friend, Mason, used a machete and a dirk knife to cut limbs and clear storm debris from Mrs. Booker's yard. Having hitchhiked to Mrs. Booker's house, Holmes was allowed to take his brother's car in order to have transportation. A primary fact in connection with the car was Mrs. Booker's testimony that Mason, Holmes' friend, placed the two knives in the automobile. Mason did not testify at trial, despite the fact that he was named as a witness by the state in their list of witnesses on the indictment charging the appellant with the crime.

 Of great significance to the ultimate outcome of this case was the state's written motion in limine. This motion was brought to the trial court's attention and sustained before the trial began. The motion requested that the defense refrain from comment regarding the possible sentence the defendant might receive and that the defense refrain from comment on the state's failure to call witnesses who were equally available to the state as well as to the defense. Despite this motion, the prosecuting attorney, during his closing argument, exclaimed aloud," Mr. Mason, his good friend. Have you heard from him? "The defense immediately objected to this comment and moved for a mistrial; however, the trial judge, sustaining the objection, refused to grant the motion for mistrial. The jury was not admonished to disregard the prosecutor's remarks.

 The Trial Court Committed Reversible Error in Failing to Grant Defendant's Motion for a Mistrial Following Inflammatory and Prejudicial Comments Made by the Prosecuting Attorney.

 In addressing this assignment of error, counsel for Mr. Holmes directs this Court's attention to the closing argument of the assistant district attorney, Mr. Cox. A pertinent portion of Mr. Cox's testimony is as follows:

 Mr. Cox: . . . here you have a five-time convicted felon up here wanting you to believe his story;" I didn't know they were there. I didn't put them there. They were Mr. Mason's my good friend's; Mr. Mason, his good friend. Have you heard from him? "

 Mr. Meeks: Objection, your Honor. I move for a mistrial.

 The Court: Sustain the objection. Motion for ...


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