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DANIEL EARL DUNAWAY v. STATE OF MISSISSIPPI

JULY 26, 1989

DANIEL EARL DUNAWAY
v.
STATE OF MISSISSIPPI



BEFORE HAWKINS, PRATHER AND ANDERSON

ANDERSON, JUSTICE, FOR THE COURT:

This appeal involves another disgusting child sexual battery case where the defendant below and appellant here, Daniel Earl Dunaway, was charged, convicted and sentenced in the Circuit Court of Washington County for having illicit sex with his three minor children. The State proved that during the week of January 14, 1985, Dunaway went from room to room in his home and performed sexual acts with each child. Dunaway was convicted on three counts of sexual battery and sentenced to serve consecutive sentences of fifteen years (15) on each count, with seven years of each count suspended on the condition that he submit himself to the sexual counselling program in the penitentiary at Parchman. On appeal Dunaway assigned five assignments of error, only one of which has any merit and will be discussed here:

THE PROSECUTION'S UNETHICAL, IMPROPER, INFLAMMATORY, AND HIGHLY PREJUDICIAL CLOSING ARGUMENT CONSTITUTED EGREGIOUS PROSECUTORIAL MISCONDUCT AND DEPRIVED DUNAWAY OF A FAIR TRIAL.

 Even though this assignment merits discussion, it is not reversible error under the circumstances. We, therefore, affirm the convictions and sentences of the lower court.

 I.

 Dunaway contends that he was deprived of his fundamental right to a fair trial by the State injecting irrelevant and exceedingly prejudicial issues into the jury's deliberation by humiliating and vilifying Dunaway's expert witness, by appealing to regional prejudice and by improperly attacking defense counsel. The State attacked Dunaway's expert by emphasizing the fact that all the State's expert witnesses were from Mississippi, while Dunaway's expert was from Minnesota, referring to him as" Santa Claus "or" Dr. Santa Claus, "and stating" Santa Claus

 needs to go back to the North Pole. "Dunaway points out that the State characterized the testimony of the expert as" stocking stuffers brought here by Santa Claus. "Moreover, the State labeled the expert as a" whore full of hot air "who pretended to speak in the" voice of God. "

 The State contends that the prosecutors' remarks were within the scope allowed for closing arguments and lacked any prejudicial effect. Alternatively, the State contends that Dunaway is procedurally barred for failure to object to the prosecutors' remarks made during closing arguments.

 II.

 As set forth in Craft v. State, 226 Miss. 426, 84 So. 2d 531 (1956), the test to determine if an improper argument by a prosecutor requires reversal is whether the natural and probable effect of the prosecuting attorney's improper argument created unjust prejudice against the accused resulting in a decision influenced by prejudice. See also, Davis v. State, 530 So. 2d 694, 701 (Miss. 1988).

 A defendant is entitled to a fair and impartial trial before a jury not exposed to abusive arguments appealing to their passions and prejudices. Although ours is an adversary system, prosecuting attorneys must exercise caution and discretion in making extreme statements in their arguments to the jury, if for no other reason than to save themselves, the defendant, the court and the jury the additional time, expense and effort involved in a retrial. Keyes v. State, 312 So. 2d 7, 10 (Miss. 1975). See also. Stewart v. State, 263 So. 2d 754, 758 (Miss. 1972).

 Absent impermissible factors such as commenting on the defendant not testifying, a prosecuting attorney is entitled to great latitude in framing the closing argument. Monk v. State, 532 So. 2d 592 (Miss. 1988); Neal v. State, 451 So. 2d 743 (Miss. 1984). In Monk the Court stated that:

 The right to argument contemplates liberal freedom of speech and range of discussion confined only to bounds of logic and reason; and if counsel's argument is within limits of proper debate, it is immaterial whether it is sound or unsound or whether he employs wit, invective, and illustration therein. Moreover, figurative speech is legitimate if there is evidence on which it may be founded. Exaggerated statements and hasty observations are often made in the heat of the day, which although not legitimate, are generally disregarded by the court, because in its opinion, they are harmless. There are, however, certain well established

 limits beyond which counsel is forbidden to go. He must confine himself to the facts introduced in evidence and to the fair and reasonable deduction and conclusions to be drawn therefrom and to the application of the ...


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