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Cobb v. State

January 26, 1999

JAMES `PIG' COBB A/K/A JAMES COBB JR., APPELLANT A/K/A JAMES `PIG' COBB JR.
v.
STATE OF MISSISSIPPI APPELLEE



Before Bridges, C.j., Payne, And Southwick, JJ.

The opinion of the court was delivered by: Payne, J.

DATE OF JUDGMENT: 11/21/1997

TRIAL JUDGE: HON. FRANK ALLISON RUSSELL

COURT FROM WHICH APPEALED: LEE COUNTY CIRCUIT COURT

NATURE OF THE CASE: CRIMINAL - FELONY

TRIAL COURT DISPOSITION: APPELLANT CONVICTED OF BURGLARY AND LARCENY AND SENTENCED TO A TERM OF 20 YEARS IN THE CUSTODY OF THE MDOC, 10 YEARS SUSPENDED AND RESTITUTION TO ROOSEVELT HARRIS OF $1,200

AFFIRMED

PROCEDURAL POSTURE AND ISSUES PRESENTED

¶1. The appellant, James "Pig" Cobb was convicted by a jury of burglary and larceny. The Lee County Circuit Court, the Honorable Frank Allison Russell presiding, sentenced Cobb to a term of twenty years incarceration, ten years suspended, in the custody of the Mississippi Department of Corrections and restitution to the victim of $1200. The trial court overruled Cobb's motion for JNOV, and this appeal was timely perfected. Cobb raises two issues for our review: 1) whether the trial court committed reversible error in refusing to grant appellant a mistrial and 2) whether the trial court committed reversible error in improperly allowing amendment to the indictment. After a thorough review of the record and applicable precedents, we affirm the conviction and sentence in this case.

FACTS

¶2. On February 26, 1997 at approximately 9:00 P.M., a burglary in progress was reported to the Tupelo Police Department. On arriving at the scene of the burglary, Officer Paul Howell noticed a broken window in the door of the dwelling and received information that a possible suspect was seen fleeing the location. A police bulletin was issued and shortly thereafter, James Cobb was arrested. Subsequently, Cobb was indicted for burglary and larceny of a quantity of pennies and whiskey. On the day of trial, the indictment was amended to reflect the property taken to be pennies and rings and to change the name of Mr. Cobb to accurately reflect his true name. Cobb was convicted and sentenced to a twenty year term of imprisonment in the custody of the Mississippi Department of Corrections, ten years suspended, and ordered to pay restitution of $1200 to the victim. After denial of his motion for JNOV, Cobb perfected this appeal where he presents two issues for our review.

DISCUSSION AND ANALYSIS

I. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN REFUSING TO GRANT APPELLANT A MISTRIAL

¶3. Cobb's first assignment of error alleges that he was improperly denied a mistrial for a discovery violation by the prosecution. This assignment is without merit. At trial, the prosecutor questioned the victim, Roosevelt Harris, about the items taken from his home the night of the burglary. Mr. Harris testified that he identified rolled pennies and a pocket knife as being his property. Cobb's lawyer objected to the testimony about the pocket knife. The Judge sustained the objection and admonished the jury to disregard that testimony. The prosecutor had not provided information about the pocket knife in discovery because it was not known to the prosecutor that the pocket knife had been taken from Mr. Harris until that day. ¶4. As an appellate court, we must assume that juries follow the instructions of the trial court. Reynolds v. State, 585 So.2d 753, 755 (Miss.1991); Crenshaw v. State, 520 So.2d 131, 134 (Miss.1988). Further, in the case sub judice, the trial court sustained Cobb's contemporaneous objection and admonished the jury to disregard testimony about the pocket knife. It is well established that when improper testimony is elicited, and the trial court halts such testimony and instructs the jury accordingly, we ...


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