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AUGUST 02, 1989




Troby Devon Benson was convicted in the Circuit Court of Marion County, Mississippi, on a charge of robbery. He was adjudged a habitual offender within the meaning of Miss. Code Ann. 99-19-81 and sentenced to a term of fifteen years in the custody of the Mississippi Department of Corrections without suspension of sentence or possibility of probation or parole. He is presently confined in the Marion County Jail, Columbia, Mississippi.

From that conviction and sentence Benson appeals, assigning as error the following:

 (1) The trial court erred in not granting a mistrial and a new venire panel when, during voir dire, a potential juror stated before the entire panel that the appellant was charged as "an habitual offender" .

 (2) The trial court erred in allowing the state to strike black jurors over the appellant's Batson objections.

 (3) The trial court erred in overruling the appellant's motion to suppress the physical evidence introduced by the State at trial.

 (4) The verdict of the jury was not supported by the evidence.

 (5) The trial court erred in refusing the appellant's jury instruction D-3.

 (6) The trial court erred in refusing to grant the motion to quash the indictment on grounds that the arrest warrant and certificate of preliminary hearing were void.

 (7) The trial court erred in refusing to grant a bond for the appellant while awaiting trial and on appeal.

 (8) The trial court erred in the bifurcated sentencing hearing in failing to quash the habitual offender's section of the indictment for being fatally defective.

 (9) The trial court erred in the bifurcated sentencing hearing in failing to sentence the defendant to fifteen (15) years or less with eligibility for parole under 97-3-73 of the Miss. Code of 1972 (As Amended).


 During the early morning hours of July 17, 1986, Shelia Rowell was working behind the counter at the Charter Food Store in Columbia, Mississippi, when a black male entered the store and asked for a salad. The man was wearing gray jogging pants with maroon stripes down the sides and a gray jacket. When the man performed some leg stretches in the store, Rowell noticed that the seam of his jogging pants was not sewn. He also had a white towel over the top of his head and one around his neck.

 Rowell put the salad in the bag and informed him the price was $2.11. At that time, the man pulled the towel up from his neck to obscure his mouth, put his left hand up under his jacket and told Rowell to give him the money. He continued, "Give me the money, lady. I don't want to have to hurt you." Rowell put the bills from the cash register into the man's bag. She also complied with the demand for a carton of Kool cigarettes. The man left the store as another customer walked through the door.

 Officer Charles Bryant of the Columbia Police Department went to the scene of the robbery, interviewed Rowell and took a description of the robber. Rowell described the robber as being 5 feet 6 inches to 5 feet 7 inches and weighing 140 pounds.

 The following morning, while Bryant was at the police department, Rowell called and said that the man who robbed her was in the store. Upon arriving at the store, Bryant saw a black male, Troby Benson, standing in front of the cash register. Bryant gestured with his head toward the man, and Rowell nodded her head affirmatively. As Benson left the store, Bryant approached him and asked to see his identification. At this point, Sergeant Chuck Peirpont relieved Bryant, who then walked back to where Rowell was and asked her if this was the man who robbed her. She replied that there was no doubt in her mind that it was he.

 The officers arrested Benson, gave him Miranda warnings and took him to jail. At the jail it was determined that Benson was 5 feet 9 inches tall and weighed 170 pounds. Benson signed a consent form allowing officers to search his apartment. Sergeant Pierpont and Officers Tolar and Bryant conducted the search, which produced two white towels, a gray jacket, an empty Kool cigarette carton and eight packs of Kool cigarettes. During a subsequent search, also with Benson's consent, officers found a pair of maroon-striped gray jogging pants, torn in the seams, under a pile of clothes in the bathtub.

 Benson presented no defense and was found guilty of robbery. He was sentenced as a habitual offender under the provisions of Miss. Code Ann. 99-19-81 to serve fifteen years

 in the custody of the Mississippi Department of Corrections without benefit of parole or probation. He is currently incarcerated at the Marion County Jail in Columbia, Mississippi.



 During the voir dire by the State, the following exchange took place between the assistant district attorney and a potential juror in the presence of the entire venire panel:

 Q. . . . Is there anyone here who having heard my additional questions and thought about what you heard from the Judge, who could now say, "Well, yes, I have heard something about this case?

 A. (response by juror)

 Q. All right, sir. This would be -

 A. (James Hitt) James Hitt. It was in the - just a brief sketch in the paper came out, and I read that, a habitual offender.

 (R. 99-100).

 The prosecutor then asked whether Hitt could disregard what he had read in the newspaper and decide the case based on the evidence presented in court. Hitt replied," Yes, sir. "The trial court made the following inquiry:

 Let me ask all members of the jury this question, requested by the parties: Mr. Hitt just made a statement of what he read in the paper. And like all of you know, newspapers, a lot of people think if its printed in the newspaper, it's got to be right, and of course, I've found from my experience about ninety percent of it is just somebody's opinion of what happened, and you go back and see who's writing those opinions and everybody's as qualified to write an opinion as I am to write about getting to the moon in a rocket. But anyway, people read papers with that assumption. Mr. Hitt stated that he read in the paper that Mr. Benson was charged, and you all have heard his statement. Is there anybody on the jury that would be influenced by what Mr. Hitt had read in the paper? Would this have any bearing or influence on any member of the jury from the statement Mr. Hitt just stated?

 A. (No juror response).

 Q. Mr. Benson is here to be tried, despite what the paper says, he's here to be tried on a robbery charge, as I have stated to you. And where the paper gets their information, I don't know. Is there anybody who because this was published in the paper would have any prejudice arise out of it or have it influence you in any way in your determining his guilt or innocence on the charge robbery we're here to try today? Is there anybody that this would have any influence or bearing on? If so, please raise your hand.

 A. (No juror response).

 The Court

 Let the record show that every member of the jury assures the court that this would have no influence or bearing on their decision.

 The defense then moved for a mistrial and a new jury panel, and the trial court overruled the motion. In Robinson v. State, 253 So. 2d 398 (Miss. 1971), this Court held:

 The voir dire on the part of the court clearly discloses that no juror felt or believed that the statement made . . . . would prejudice him or prevent him from being a fair and impartial juror. Matters of this nature are left considerably in the discretion of the court and we hold that the court did not abuse its ...

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