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Smith v. State

June 16, 1998

GEORGE T. SMITH A/K/A GEORGE THOMAS, APPELLANT SMITH
v.
STATE OF MISSISSIPPI, APPELLEE



Before Thomas, P.j., Coleman, And Hinkebein, JJ. Hinkebein, J., For The Court:

DATE OF JUDGMENT: 05/31/96

TRIAL JUDGE: HON. WILLIAM F. COLEMAN

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT

NATURE OF THE CASE: CRIMINAL - FELONY

TRIAL COURT DISPOSITION: BURGLARY OF DWELLING HOUSE: SENTENCED TO TEN YEARS IMPRISONMENT

MOTION FOR REHEARING FILED:

CERTIORARI FILED:

MANDATE ISSUED:

¶1. George T. Smith [hereinafter Smith] was convicted in the Hinds County Circuit Court of the burglary of a dwelling house and sentenced to ten years imprisonment. Aggrieved by his conviction Smith assigns the following points of error to the trial court's judgment:

I. THE TRIAL COURT COMMITTED PLAIN AND REVERSIBLE ERROR BY ALLOWING OFFICER JOE REED TO RENDER INCOMPETENT TESTIMONY BEFORE THE TRIAL JURY CONCERNING A COMPARISON OF A TENNIS SHOE PRINT FOUND AT THE CRIME SCENE WITH SHOES FOUND AT SMITH'S RESIDENCE AS REED HAD NOT BEEN OFFERED, QUALIFIED AND TENDERED AS AN EXPERT IN ANY SUCH FIELD OF EXPERTISE, BEING IN VIOLATION OF RULES 701 AND 702, MISSISSIPPI RULES OF EVIDENCE, AND FURTHER, REED'S TESTIMONY INVADED THE PROVINCE OF THE TRIAL JURY.

II. THE TRIAL COURT ERRED IN REFUSING SMITH'S REQUESTED LESSER INSTRUCTION FOR PETIT LARCENY AS THE SAME WAS SUPPORTED BY THE EVIDENCE PRODUCED AT TRIAL AND THE DENIAL UNFAIRLY PROHIBITED SMITH FROM PRESENTING HIS DEFENSE THEORY OF THE CASE TO THE TRIAL JURY AND AS A RESULT THEREOF, SMITH WAS DENIED HIS CONSTITUTIONAL RIGHT TO A FUNDAMENTALLY FAIR TRIAL.

III. THE TRIAL COURT COMMITTED PLAIN AND REVERSIBLE ERROR IN CHARGING THE TRIAL JURY WITH A LESSER INSTRUCTION OF BURGLARY OF A BUILDING OTHER THAN A DWELLING AS SMITH HAD NOT BEEN FORMALLY CHARGED WITH THAT OFFENSE BY GRAND JURY INDICTMENT AND SUCH CHARGE, AMONG OTHER THINGS, WAS TANTAMOUNT TO AN IMPROPER COMMENT ON THE WEIGHT OF THE EVIDENCE AND AS A RESULT THEREOF, SMITH WAS UNFAIRLY PREJUDICED AND DENIED A FUNDAMENTALLY FAIR TRIAL.

Holding Smith's assignments of error to be without merit, we affirm the ...


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