Before Sullivan, P.j., McRAE And Smith, JJ.
The opinion of the court was delivered by: Smith, Justice, For The Court:
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-A
DATE OF JUDGMENT: 11/17/95
TRIAL JUDGE: HON. MIKE SMITH
COURT FROM WHICH APPEALED: LINCOLN COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
MOTION FOR REHEARING FILED:
On January 20, 1995, Antonio Hardiman was indicted for armed robbery (Count I) and aggravated assault (Count 2). A trial by jury was held in the Circuit Court of Lincoln County, Mississippi, on November 7-8, 1995, and Hardiman was found guilty of both counts. The jury was unable to reach a unanimous decision regarding sentencing, therefore, Circuit Judge Mike Smith sentenced Hardiman to twenty-three (23) years for the armed robbery and twenty (20) years for the aggravated assault, with said sentences to run consecutively. Hardiman was also ordered to pay restitution to the victim, court costs, and attorney fees.
Aggrieved by the trial court's decision, Hardiman, by and through his attorney, Joseph A. Fernwald, raises three (3) issues on appeal:
I. WHETHER THE JURY'S VERDICT OF GUILTY WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.
II. WHETHER THE PROSECUTOR'S FINAL REMARK DURING CLOSING ARGUMENT WAS SO EGREGIOUS AS TO CONSTITUTE REVERSIBLE ERROR.
III. WHETHER THE CIRCUIT JUDGE ERRED IN OVERRULING THE DEFENDANT'S MOTION FOR MISTRIAL BASED UPON THE PROSECUTOR'S IMPROPER REMARKS MADE DURING CLOSING ARGUMENT.
Issues II and III will be discussed together.
During the afternoon hours on Friday, May 26, 1995, Jimmy Whittington was shot in an incident at George Robertson's home in Bogue Chitto, Mississippi. According to Whittington, upon entering Robertson's house, he was accosted in a hallway by Antonio Hardiman. Whittington and Hardiman had been friends for about a year and a half and they often spent time together at Robertson's house which was reportedly a place where gambling, drinking and smoking of crack/cocaine took place on a regular basis. As Whittington entered the hallway, Hardiman pointed a gun at his face and told him to "give it up." Hardiman's face was ...