Before Prather, C.j., Banks And Smith, JJ.
The opinion of the court was delivered by: Smith, Justice
97-KA-00605-SCT, __ So. 2d __
TIMOTHY TURNER v. STATE OF MISSISSIPPI
DATE OF JUDGMENT: 04/11/97
TRIAL JUDGE: HON. JANNIE M. LEWIS
COURT FROM WHICH APPEALED: YAZOO COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION AFFIRMED - 8/27/98
MOTION FOR REHEARING FILED:
¶1. On January 24, 1997, Timothy Turner was indicted by the Yazoo County Grand Jury for the crime of automobile burglary in violation of Miss. Code Ann. § 97-17-33. On April 11, 1997, Turner was given a trial by jury in the Yazoo County Circuit Court, and the jury returned a verdict of guilty against Turner. The trial court then sentenced Turner to serve a term of seven years in the custody of the Mississippi Department of Corrections with two of those years suspended. Aggrieved by the trial court's decision, Turner, by and through his attorney, Jim Arnold, now appeals to this Court and raises the following issues:
I. WHETHER TURNER WAS PREJUDICED AND DENIED THE RIGHT TO A FAIR TRIAL BY THE PROSECUTOR'S REMARKS MADE DURING OPENING AND CLOSING ARGUMENT.
II. WHETHER THE TRIAL COURT ERRED BY DENYING TURNER'S MOTION FOR A DIRECTED VERDICT AT THE END OF THE STATE'S CASE.
III. WHETHER THE TRIAL COURT ERRED BY ALLOWING JURY INSTRUCTIONS S-1 AND S-2.
IV. WHETHER THE TRIAL COURT ERRED BY ALLOWING TURNER'S FORMER ATTORNEY, KELLY COLLINS, TO TESTIFY AT TRIAL.
¶2. During the late hours of April 6, 1996, John Williamson's 1990 Chevrolet pickup truck was burglarized outside Freddie's Bar and Pool Hall in Yazoo City, Mississippi. According to Williamson, he attended dinner earlier in the evening at the Main Event, a local bar, before arriving at Freddie's a few minutes before midnight. Williamson parked his truck under a security light, and his date parked her vehicle near his truck. Williamson and his date entered Freddie's and stayed for a few minutes before returning to the parking lot. When Williamson exited Freddie's, he observed a shadow in his truck and instructed his date to go back inside and call the police. Williamson then proceeded toward the truck with his.22 caliber pistol which he carried because he had not yet deposited the money from his business. Williamson reached the truck and placed the pistol to the head of Timothy Turner who was sitting in the truck on broken glass. Williamson observed that the console between the seats of the truck was open and that his stereo face and radar detector was in Turner's lap. Williamson instructed Turner to remain in the truck until the police arrived.
¶3. Freddie Vancleve, the owner of Freddie's, testified that both Turner and Williamson were inside the bar that night. Vancleve asked Turner to leave the bar because he was loaded and disturbing the customers. Vancleve testified that about ten minutes after Williamson had left the bar that the girlfriend informed him to call the police, and Vancleve called the police. Vancleve then went out to the parking lot to find Williamson holding a gun on Turner who was sitting inside the truck. Vancleve also observed that the truck door window was knocked out and that Turner was holding some of Williamson's things in between his legs. Vancleve further testified that he pulled Turner outside of the truck and pushed him up against the front of the truck. Vancleve detained Turner on the hood of the truck until the police arrived and arrested Turner.
¶4. Tammy Porter testified on behalf of the defense that when Turner was told to leave the bar that she and her husband followed him outside to the parking lot. Porter stated that her husband went back inside and that she stayed outside to make a phone call. While outside, Porter testified that she heard Turner crash his car into the side of the building and that she observed Turner get out of the car, walk up to Williamson's truck, open the door and look wildly into the truck but that she never saw Turner get inside the truck or take anything from the truck. Porter testified that while Turner was standing at the door of the truck that Williamson came toward him with a gun and pointed it towards Turner. Porter stated at this time that she went back inside and hollered, "There's somebody out here with a gun fixing to shoot this guy." Porter testified that she later returned outside to see Turner being held against the hood of the truck until the police arrived. The prosecution later in rebuttal presented testimony from Kelly Collins, Turner's former attorney who represented him at the preliminary hearing, that Tammy Porter was related to Turner's mother.
DISCUSSION OF THE LAW I. WHETHER TURNER WAS PREJUDICED AND DENIED THE RIGHT TO A FAIR TRIAL BY THE PROSECUTOR'S REMARKS MADE DURING OPENING AND CLOSING ARGUMENT.
¶5. Turner first contends that he was prejudiced by the prosecutor's remarks made in his opening argument referring to Turner as a "burglar." During his opening argument, the prosecutor made the following statement: The defendant in this case today is Timothy Turner. He's a burglar. We'll prove that to you today. If ...