The opinion of the court was delivered by: Coleman, J.
DATE OF JUDGMENT: 09/16/96
TRIAL JUDGE: HON. L. BRELAND HILBURN JR.
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: AGGRAVATED ASSAULT W/WEAPON: SENTENCED TO SERVE A TERM OF 20 YEARS IN THE MDOC
¶1. A jury in the Circuit Court of the First Judicial District of Hinds County found the appellant, Charles Denson, guilty of aggravated assault upon Vanessa Brown, which he accomplished by repeatedly striking her about the head with a pistol as she sat in the driver's seat of her car, and the trial court sentenced Denson to serve a term of twenty years in the custody of the Mississippi Department of Corrections. In his appeal of the judgment of his conviction of aggravated assault and sentence, Denson presents for our review and resolution the following two issues, which we quote verbatim from his brief:
THE TRIAL COURT COMMITTED PLAIN REVERSIBLE ERROR BY RESTRICTING DENSON'S ABILITY TO PRESENT A PROPER DEFENSE TO THE CHARGE CONTAINED IN THE INDICTMENT AND AS A RESULT, DENIED HIM A FUNDAMENTALLY FAIR TRIAL.
DENSON WAS DENIED A FUNDAMENTALLY FAIR TRIAL AS A RESULT OF THE NUMEROUS IMPROPER REMARKS BY THE PROSECUTION DURING THE CLOSING ARGUMENT PHASE OF THE TRIAL AS EACH SUCH INSTANCE OF PROSECUTORIAL MISCONDUCT, STANDING ALONE, SUFFICIENTLY DENIED DENSON A FUNDAMENTALLY FAIR TRIAL.
We resolve both issues adversely to Denson and affirm the judgment and sentence of the trial court.
¶2. This recitation of the facts is consistent with the evidence which supports the jury's verdict that Denson was guilty of aggravated assault. On the evening of June 23, 1995, Vanessa Brown and her friend Janice Young went to the 500 Club at the corner of Sears and Ridgeway in the city of Jackson. Shortly after midnight on June 24, Brown and Young left the 500 Club, but Janice Young, who had ridden to the club with Brown in Brown's car, got into a car which belonged to a male companion whom she had met in the 500 Club. Brown got into her car to return to her mother's home in Jackson. Before Brown could close the door of her car, Denson, who had approached Brown's car from the rear, grabbed the driver's-side door before Brown could close it, and began to beat Brown about her head and face with a pistol. Brown asked Denson why he was doing this to her, and she begged him to stop beating her. Brown threw up her arm as she sat inside her car in an attempt to deflect Denson's blows with the pistol.
¶3. While Denson was pistol-whipping Brown inside her car, Young got out of her male companion's car and went inside the club, where she telephoned the police. Young stayed with Brown until the ambulance transported Brown to the University of Mississippi Medical Center (UMC). Brown testified that as the result of Denson's repeatedly striking her with the pistol, "her skull was opened . . . in two places" and that the bones in her arm "were cracked in two places." UMC personnel closed the wounds on her skull and chin with stitches, the exact number of which Brown could not remember, and placed something like a cast on her arm. Brown remained at UMC under observation until about 11:00 a.m. on June 24.
¶4. As soon as UMC discharged Brown that morning, Janice Young drove Brown from UMC to Precinct Three of the Jackson Police Department, where police officer Linda Lewis, a twenty-year employee of the Jackson police force, prepared a report of the incident between Brown and Denson earlier that same morning. Denson was subsequently arrested and incarcerated to await trial on the charge of aggravated assault on Vanessa Brown.
¶5. In the following order, the State called Vanessa Brown, Janice Young, and Police Officer Linda Lewis as its witnesses against Denson. Vanessa Brown testified that Denson and she had engaged in a relationship for the past five years, and that she had given birth to Denson's daughter, who was then nearly five years old. Brown also testified that she had ended her relationship with Denson two or three weeks before June 24, 1995, when Denson attacked her in her car outside the 500 Club. Brown explained that when she and Young were leaving the club between 12:30 and 1:00 a.m., Janice Young told her to lock her car door. Brown said that she did not see Denson approach her car, but that he began beating her before she could close and lock the door of her car.
¶6. During cross-examination, Denson's counsel asked Brown, "And you had been using marijuana also, hadn't you?" The State objected to this question as being irrelevant and because the question was intended to "malign the witness." Denson's counsel replied that "it is for the purpose - ," but the trial court sustained the State's objection. Denson's counsel pursued the purpose of the question no farther. Brown had already admitted under her cross-examination that she had been drinking inside the club.
¶7. The State's second witness, Janice Young, related the incident as follows:
"[Denson] grabbed the door and started beating [Brown] with a gun on her head, and he just kept beating her with the gun on her head. And I got out of the car I was in and went back in to call somebody -- call the police and tried to get some help . . . ."
Young also noted that the gun "had some silver in it." She said that she heard Brown tell Denson to stop beating her and that Brown tried to protect herself by throwing up her hand. On cross-examination, Young also answered questions about her new male companion, who, she emphasized, did not want to give a statement to police or to get involved with the investigation and prosecution of this case. Young told the prosecution that she did not give the defense information about her companion because he refused to become involved.
¶8. The State's final witness, Officer Linda Lewis, testified that she had taken Vanessa Brown's report of the June 24 incident at precinct three in Jackson. She stated that Brown seemed to be in a lot of pain and required help walking. Lewis further testified that Brown had a large bandage around her head, a cast on her arm, and tape under her chin. She summarized the police report without objection and established that the incident occurred within the court's jurisdiction. Denson's counsel did not cross-examine Officer Lewis, and the State rested.
¶9. When the trial began, Denson's counsel had reserved making an opening statement until after the State had rested. After the State rested, defense counsel presented an opening statement, asserting that the evidence would show that Denson and Brown argued and that Brown sustained only minor injuries. Counsel also suggested that Denson could only be guilty of simple assault.
¶10. Charles Denson testified in his defense. He told the jury that his wife, Sharon Denson, and he had five children, four sons and one daughter, ranging in age from fifteen to nine years old. He testified that he had approached Brown outside the club to ask her if she had the clothes which he had left at Brown's mother's house, where he had been living for the previous three weeks until Brown broke off their relationship. Denson denied that he hit Brown with a gun, but claimed instead that he struck her only once with his hand. His explanation for Brown's injuries to her head was that she tried to lunge out of the car at him but failed to duck under the doorframe and thus struck her head so hard that she gashed it.
¶11. During cross-examination, Denson said that he had visited Brown about a week before June 24. Denson testified that Brown had gone to Denson's wife's house, where Denson was living, and spoke to his wife about their recently terminated relationship. He explained that Brown's confronting his wife had upset him. Denson admitted that he knew Brown probably did not have the clothes he sought to get from her at the night club. Denson stated that he grabbed Brown's hands so that she would not hit him, but he added that he was not scared of her. He admitted that he pushed her back into the car and slapped her in the face as hard as he could. Denson claimed that Brown exited the car without assistance and ran into the club. During re-direct examination, Denson continued to maintain that he hit Brown only with his hand, never with a gun.
¶12. After the court instructed the jury, the State and Denson's counsel presented their closing arguments. The defense objected when the State mentioned the rights of the victim. The court overruled the defense's objection. The State suggested that the defense raised certain issues, including the lighting outside the club and whether Brown had been drinking, in order to confuse the jury. The defense objected to the State's mentioning Brown's fractured wrist claiming that no medical evidence to establish that her wrist had been injured had been adduced. The court overruled the objection.
¶13. The defense argued that the State had failed to prove its case. The court sustained the State's objection to defense's suggestion that the State should have produced a doctor to testify. After the defense speculated as to what a doctor would have said about Brown's injuries, the State objected to defense counsel's testifying to the jury. The court sustained the objection. Furthermore, the court sustained the same objection after the defense continued to argue that the State could have presented a doctor to testify regarding Brown's injuries.
¶14. The State offered a rebuttal to the defense's closing argument. The defense objected to the State's referring to Brown's fractured wrist, saying,
"Your Honor, I am going to object to her repeatedly talking about this fracture or the break. It is not into evidence, and the State knows that, in fact, there is medical evidence that there was no fracture. They are outside the evidence . . . ."
¶15. The State responded to the defense objection by asserting that Denson's counsel was again testifying during the objections. The trial court overruled the defense's objection. The State asserted that the witnesses presented by the prosecution had told the truth and that the defendant had changed his story throughout his testimony. The State also recounted the evidence presented by both sides and asked the jury to find the defendant guilty of aggravated assault.
III. REVIEW, ANALYSIS, AND RESOLUTION OF THE ISSUES
¶16. Because Denson states his first issue, which we quoted on page two of this opinion, in broad generalities, this Court must resort to his argument on his first issue to determine what the trial court did to restrict Denson's ability to present a proper defense to the charge of aggravated assault, for which he had been indicted. Because Denson failed to object to the trial court's evidentiary rulings, it was necessary for Denson to include the phrase, "plain reversible error," in his first issue. Only as "plain" error pursuant to Mississippi Rule of Evidence 103(d) would this Court be permitted to find reversible error in some aspects of Denson's first issue.
¶17. In order to raise an error on appeal, Mississippi Rule of Evidence 103(a) requires that a contemporaneous objection on specific grounds must be made to the admission of evidence by the trial court. *fn1 In Bender v. North Meridian Mobile Home Park, 636 So.2d 385, 389 (Miss. 1994), the Mississippi Supreme Court stated the following rule:
"This Court has stated that a trial Judge cannot be put in error on a matter not presented to him for his decision. Mills v. Nichols, 467 So.2d 924, 931 (Miss.1985). In addition, it is a well stated principle that issues not presented at trial cannot be raised on appeal. Parker v. Mississippi Game and Fish Commission, 555 So.2d 725, 730 (Miss.1989)."
More recently, that court reiterated the frequently stated rule that no new issues may be raised on appeal in Wright v. White, 693 So.2d 898, 903 (¶ 6) (Miss. 1997). See Crowe v. Smith, 603 So.2d 301, 305 (Miss.1992) (reciting that appellant is not entitled to raise a new issue on appeal); Parker v. Game & Fish Comm'n, 555 So.2d 725, 730 (Miss.1989) (holding that trial Judge will not be put in error on a matter which has not been presented to him); Mills v. Nichols, 467 So.2d 924, 931 (Miss.1985) (trial court will not be put in error on appeal for matter not presented to it for decision). Under this rule, we ...