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JEROME SAYLES v. STATE OF MISSISSIPPI

NOVEMBER 08, 1989

JEROME SAYLES
v.
STATE OF MISSISSIPPI



BEFORE HAWKINS, P.J., ROBERTSON, & SULLIVAN, JJ.

SULLIVAN, JUSTICE, FOR THE COURT:

Between 6:00 o'clock p.m. on December 31, 1986, and the morning of January 2, 1987, Reed's Grocery in Pattison, Mississippi, was burglarized. Jerome Sayles was arrested, indicted, tried and convicted in Claiborne County, Mississippi, for the crime of burglary and sentenced to a term of five (5) years imprisonment. He is presently at large on a $30,000 bond.

When Leona Reed arrived at her store to open for business on January 2, 1987, she noticed that it had been broken into. She found a board approximately twelve feet long propped up against the store that reached the back vent which apparently was used to gain access into the store. Who removed the board and its whereabouts are unknown, however, a similar board was found nearby at the post office. It was photographed and introduced as an exhibit.

 The missing items from the store include: thirty cartons of cigarettes, five cases of Bud, three cans of hair spray, ten decks of playing cards, two boxes of cigarette paper, two or three slabs of bacon, canned goods, two chain saws, one hundred forty dollars, and three men's watches.

 The state's eyewitness, one Elbert McDaniels, was on duty at the fire station during the early morning hours of January 2. Elbert and Sayles have known one another for thirteen or fourteen years. McDaniels testified that the defendant Jerome Sayles and a juvenile, Lee Savage, came by the fire station, approximately sixty yards from Reed store, around 1:00 a.m and announced they intended to burglarize the Reed store. Elbert then watched as they left the station and went over to the store and broke in. Elbert did not report Sayles to the police. It was only after the Sheriff questioned Elbert that he told his story to the law enforcement.

 At trial Sayles testified that Lee, the sixteen year old, was 5 feet tall and that it would have been physically impossible for him to boost Lee up to the vent 12 feet from the ground.

 Elbert stated that he was standing on the front porch of the station and had a clear and well-lighted view of the back of the store. He did not, however, see the board propped against the back of the store. Elbert's version was that Sayles helped Lee go through the back vent by boosting him on his shoulders, then Sayles went around and entered through the front of the store. Elbert testified that he last saw Sayles and Lee walk by the station "kind of like in a hurry," carrying two sacks.

 Later in the day on January 2, 1987, Sayles sold two watches, one to Mrs. Eddie Bethel, and one to Alexander Jackson. These watches were recovered and identified at trial by the store owner as the same brand and type that had been stolen from her store. No other items were recovered from Sayles after his arrest.

 Sayles testified that he was at the scene of the burglary and sold the watches to Mrs. Eddie Berthel and Alexander Jackson but in no way aided, abetted or otherwise assisted Lee in committing the burglary. Sayles' story is that he came along shortly after the burglary of the grocery and Lee recruited him by offering to pay him thirty-five dollars to help carry two sacks that Lee pulled out of the bushes, so Sayles complied. A few days later Lee confessed to Sayles that he burglarized the store alone, gaining access to the back vent by propping the board up against the store. Interesting enough Lee was not called as a witness by Sayles or the state.

 Sayles' explanation about the two stolen watches was that the day after the burglary Lee gave them to him to pay off a twenty dollar debt owed to Sayles and that he neither knew where the watches came from nor did he ask.

 I.

 DID THE TRIAL COURT ERR IN RESTRICTING

 CROSS-EXAMINATION OF ELBERT AND IN REBUKING DEFENSE COUNSEL IN THE PRESENCE OF THE JURY FOR

 ATTEMPTING PROPER CROSS-EXAMINATION OF ELBERT REGARDING HIS BIAS AND PREJUDICE AGAINST DEFENDANT?

 Sayles poses three instances where the trial court allegedly erred in sustaining objections during the cross-examination of the State's eyewitness, Elbert. The court ruled that the matters inquired about were irrelevant, the substance of which includes: (1) Elbert's eye sight as evidenced by a recent traffic accident; (2) Elbert's bias and prejudice against Jerome because of a sexual affair between Elbert's wife and Sayles; and (3) Elbert refused to discuss the case prior to trial with defense counsel, as the same related to the veracity of his statement at trial.

 The prosecutor cites Shearer v. State, 423 So. 2d 824 (Miss 1982), and contends that a trial judge has considerable discretion in determining the relevancy and admissibility of evidence. This is undoubtedly true but the prosecution has misapplied Shearer, which stands for the usual standard of relevancy as applied to testimony offered on direct examination. The function of relevancy in evaluating the "credibility" of the witness' direct testimony, is not relevancy to the main issue but relevancy in assessing the probative value of the direct testimony by evaluating the witness' credibility.

 Mississippi allows wide-open cross-examination of any ". . . matter affecting the credibility of the witness." M.R.E. 611 (b). A witness on cross-examination may be interrogated regarding his interest, bias or prejudice in a case. Hill v. State, 512 So. 2d 883 (Miss. 1987). The same rule is provided in Miss. Code Ann., Section 13-1-13 (1972).

 Sayles was entitled to full and adequate cross-examination of Elbert. However, cross-examination on an irrelevant point is not permitted. The scope of cross-examination though ordinarily broad, is within the sound discretion of the trial court and the trial court possesses inherent power to limit cross-examination to relevant matters. Pace v. State, 473 So. 2d 167 (Miss. 1985); Dozier v. State, 257 So. 2d 857 (Miss. 1972).

 Against this background we test the three complaints of Sayles. Sayles first attempted to impeach Elbert by trying to show a deficiency in his eye sight. This exchange followed:

 Q. BY MELVIN McFATTER: Isn't it a fact that about a year ago right in front of Reed's Store you pulled out in front of a highway patrol car because you didn't see it?

 BY MR. PATRICK: Objection. That's irrelevant.

 BY THE COURT: Sustained.

 BY MR. MCFATTER: Your Honor, we feel it's relevant to his ability to see.

 BY THE COURT: I sustained the objection, Mr. McFatter.

 The awkward form of the question by counsel for Sayles renders this portion of his assignment of error without merit. If properly predicated Sayles could have cross-examined Elbert on the deficiency of his eyesight. However, the issue was not properly predicated and it was irrelevant to the issue in this case whether Elbert pulled out in front of a police car or not.

 Sayles tried to impeach Elbert by showing that he had a personal grudge against Sayles on account of an alleged affair between Sayles and Elbert's wife. This exchange followed:

 Q. BY MR. MCFATTER: Isn't it a fact, Mr. McDaniel, that Defendant, Jerome Sayles, used to fool around with your wife, Johnie Pearl, -

 BY MR. PATRICK: Objection.

 BY THE COURT: Sustained.

 A. (Laughter by Mr. ...


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