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JIMMY D. LENARD v. STATE OF MISSISSIPPI

OCTOBER 25, 1989

JIMMY D. LENARD
v.
STATE OF MISSISSIPPI



BEFORE DAN LEE, PRATHER AND ROBERTSON.

DAN LEE, PRESIDING JUSTICE, FOR THE COURT:

Jimmy D. Lenard was duly indicted for the crime of aggravated assault and tried on April 18, 1987. The jury returned a verdict of guilty, whereupon he was sentenced to ten years in the Mississippi Department of Corrections with five years suspended.

Lenard filed a Motion For A New Trial which was denied.

 Appellant appeals to this court and assigns five errors, of

 which only two (2) are significant for the purposes of this decision. Finding merit in Issue No. I, we reverse and order a new trial.

 STATEMENT OF THE FACTS

 Christine Pasquale testified that on the night of January 10, 1986, her former boy friend, Jimmy Lenard (appellant below), broke into her house by kicking in the door, came down the hallway toward the bedroom swinging a knife, and went after David McCormick, who was spending the night with her. Prior to this incident, - Ms. Pasquale claims that Lenard telephoned her three (3) times, informed her that he knew another man was with her, and threatened to kill her if he could get to them.

 David McCormick testified that Jimmy Lenard kicked down the door, attacked him with a knife, and cut him seven or eight times.

 Doris Lenard, mother of appellant, testified to being within hearing distance when the disputed telephone conversations took place. She contends that her son never threatened Ms. Pasquale.

 Police officers Ricky Frizzell and Larry Bailey arrived on the scene and witnessed appellant and David McCormick coming out of the house. McCormick was bleeding and appeared to be running toward his truck. At the sight of the officers, appellant stopped his forward progress and handed the pocket knife to the officers at their command.

 Appellant, Jimmy D. Lenard, testified he was shooting pool at the American Legion on the night of the incident when he received a call from Christine Pasquale. He told her he was busy in a partner game shooting pool and would call her back. At about 8:30 or 9:00 P.M. he went to his mother's house and called Ms. Pasquale. Appellant then testified he thought she wanted to see him so he told her he was coming down there. He claimed he was unaware that anybody else was there when he arrived, and he went in like he always did. He claimed he had a key even though he hadn't lived with Pasquale for about a month but would sometimes go there and spend the night. He claimed the entrance door was damaged when he helped move Ms. Pasquale into the house. "She had one of these double-door refrigerators and we skinned the door up pretty bad." After entering the house, appellant claims on cross-examination to have checked on Ms. Pasquale's eight year old daughter, then proceeded to Ms. Pasquale's room where on direct examination he testified as follows:

 Q. Who did you see first? Which one of the two?

 A. Both of them.

 Q. Did you see that there was a man there with her?

 A. Yes sir.

 Q. Were the lights on or off?

 A. They was off.

 BY MR. STALLINGS: Your Honor, it's his witness - let the witness tell the story. Mr. Crocker is doing the testifying.

 BY THE COURT: All right.

 Q. What was the condition of the lights?

 A. It was dark. The porch light was on -

 Q. Who was the man there with her, if you knew at that time?

 A. I didn't know him.

 Q. What was the first thing you saw when you saw the man?

 A. Well, they was in the bedroom. He was coming, you know, at me.

 Q. When you say coming at you, what ...


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