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Hughes v. State

March 31, 1999

WILLIAM RAY HUGHES
v.
STATE OF MISSISSIPPI



The opinion of the court was delivered by: Waller, Justice

DATE OF JUDGMENT: 11/20/96

TRIAL JUDGE: HON. GEORGE C. CARLSON, JR.

COURT FROM WHICH APPEALED: TATE COUNTY CIRCUIT COURT

BY: LESLIE S. LEE

DISTRICT ATTORNEY: ROBERT L. WILLIAMS

NATURE OF THE CASE: CRIMINAL - DEATH PENALTY - DIRECT APPEAL

DISPOSITION: AFFIRMED

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC

STATEMENT OF THE CASE

¶1. Appellant William Ray Hughes was indicted by a Tate County grand jury by bill filed on May 1, 1996. The bill charged Hughes with murder in the course of kidnapping Ashley Galloway in violation of Miss. Code Ann. § 97-3-19(2)(e)(1994) on or about January 9, 1996. The bill also charged in Count II the crime of forcible rape in violation of Miss. Code Ann. § 97-3-65(2)(1994). Both counts included habitual offender charges based on Hughes' previous convictions for rape and fondling. On Hughes' motion, venue was changed due to publicity, with the jury drawn from Itawamba County and the trial conducted in the Second Judicial District of Panola County, Mississippi, at the Panola County Courthouse in Batesville, Mississippi. On November 19, 1996, the jury returned a verdict finding William Ray Hughes guilty of murdering Ashley Galloway after kidnapping and raping her. The jury affixed the punishment on Count I as death and on Count II as life imprisonment. Hughes now pursues direct appeal, contending that he was denied a fair trial and raising the following numerous assignments of error.

I. Whether the Circuit Court erred in overruling the Appellant's motion to dismiss for lack of proper venue at the Conclusion of the evidence and after the Appellee had initially rested its case in chief by ruling that Miss. Code Ann. §§ 99-11-3 and/or 99-11-19, as amended, are constitutional.

II. Whether the Circuit Court erred in denying the Appellant's motion to require the Appellee to give gender-neutral reasons for striking potential jurors and in striking prospective jurors number 238 and 263 for cause.

III. Whether the Circuit Court erred in overruling the Appellant's motions for a mistrial made during the trial including, but not limited to, the motion made (A) during the testimony of Stella Rowe concerning the drawings or sketches she was shown by a law enforcement officer, (B) during the closing argument of the assistant district attorney concerning the rare nature of the Appellant's genetic profile, (C) during Kathy Bolen's testimony that she cut the Appellant's hair after he got out of jail, and (D) following Julie Hughes Sanders' confrontation with her husband during a break in her testimony as a witness for Appellee.

IV. Whether the Circuit Court erred in refusing to permit the Appellant to interrogate Julie Hughes Sanders concerning her husband's criminal convictions.

V. Whether the Circuit Court erred in overruling the Appellant's motion for a mistrial based upon a violation of URCCC 9.04 and his motion to suppress the identification of a photograph of a pickup by Cindy Dunn.

VI. Whether the Circuit Court erred in denying the Appellant's motion to suppress physical evidence seized from the person of the Appellant by or at the request of Sammy Webb and Fernando Perez filed on August 13, 1996, and in denying the Appellant's motion in limine to suppress tests performed upon physical evidence seized from the person of the Appellant by or at the request of Sammy Webb and Fernando Perez filed on August 5, 1996.

VII. Whether the Circuit Court erred in overruling the Appellant's objections to the admission of photographs of the body of Galloway taken at the house on Simpson Road in Quitman County, MS, and his motion to preclude admission of gruesome and highly prejudicial color photographs and autopsy photographs of the deceased.

VIII. Whether the Circuit Court erred in allowing the Appellee to introduce into evidence census data for Mississippi.

IX. Whether the Circuit Court erred in overruling the Appellant's continuing objection on the testimony of Detective Patrick Davis concerning knives based upon a violation of Mississippi Rule of Evidence 702.

X. Whether the Circuit Court erred in overruling the Appellant's objection to the Assistant District Attorney interrogating Julie Hughes Sanders about blood during her redirect examination.

XI. Whether the Circuit Court erred in overruling the Appellant's objection to the Appellee eliciting testimony from Julie Hughes Sanders concerning the Appellant knocking a hole in the wall of their home.

XII. Whether the Trial Court erred in denying the Appellant's motion to exclude DNA evidence.

XIII. Whether the Trial Court erred in denying the Appellant's motion for introduction into evidence of instances of past sexual conduct by Galloway, and in granting the Appellee's motion in limine to exclude evidence of past sexual behavior of the victim, Galloway.

XIV. Whether the Trial Court erred in granting the Appellee's motion in limine to exclude evidence of prior drug use by the victim, Galloway.

XV. Whether the Trial Court erred in overruling the Appellant's objection to a relative showing Stella Rowe a photo from the newspaper.

XVI. Whether the Trial Court erred on overruling the Appellant's continuing objection to Dr. Stephen Hayne's testimony concerning the sexual assault on Galloway.

XVII.Whether the Trial Court erred in denying the Appellant's proposed Jury Instruction D-1 and in granting the Appellee's Jury Instructions S-1, S-2, S-3, S-4, S-5, and C-2-S.

XVIII. Whether the Trial Court erred in overruling the Appellant's objections to theAssistant District Attorney asking leading questions during the trial in violationof Mississippi Rule of Evidence 611(c).

XIX. Whether the verdict of the Jury on Counts One and Two of the Indictment is against the overwhelming weight of the evidence.

XX. Whether the Trial Court erred in overruling the Appellant's motion for a new trial.

XXI. Whether the cumulative effect of the Trial Court's errors denied Appellant a fundamentally fair trial as guaranteed by the Sixth and Fourteenth Amendments to the U.S. Constitution.

XXII. Whether the imposition of the death sentence is disproportionate in this case toother death sentences upheld by the court and is cruel and inhuman punishmentin violation of the Eighth and Fourteenth Amendments to the U.S. Constitutionand Article III, Section 28 of the Mississippi Constitution (1890).

FACTS AND PROCEDURAL HISTORY

¶2. On January 9, 1996, Ashley Galloway ("Galloway") was a 16-year-old junior at Senatobia High School who resided with her mother, Dianne Galloway, in Senatobia, Tate County, Mississippi. On that date, Galloway was awakened at 6:00 a.m. by her mother to get ready for school. After having some trouble getting her car started, Galloway departed for Senatobia High School. Galloway never made it to school that morning, nor was she at home when her mother returned from work that evening at 11:45 p.m. At that time Dianne Galloway began contacting friends and relatives trying to find her daughter, and ultimately called the Senatobia Police Department ("police"). Dianne Galloway provided police with a physical description of her daughter, as well as a description of the clothing she was wearing, her vehicle, and her last known whereabouts.

¶3. The next day, January 10, 1996, the police began searching for Galloway. They canvassed the area, talked at length with Dianne Galloway and called on both the F.B.I. and the Mississippi Highway Safety Patrol for assistance. A rough chronology of the events leading up to Galloway's disappearance emerged.

¶4. Bo Simpson, Galloway's boss at the Sonic Drive Inn in Senatobia, testified that he saw Galloway's car at the corner of Camille and Highway 4 in Senatobia on the morning of January 9 at approximately 6:30 a.m.

¶5. Mrs. Linda Wade resided at 110 Marvin Street, a short distance from the intersection of Camille and Highway 4. Mrs. Wade was getting her children ready to walk to the bus stop for school the morning of January 9 when she heard a knock on the door at around 7:05 a.m. Galloway was at her front door and asked if Mrs. Wade's son, Patrick, was home. Galloway explained that her car had broken down and that she wanted Patrick to give her a boost so she could get to school. Mrs. Wade told Galloway that Patrick had already left home and Galloway walked back towards her car.

¶6. Chad Martin resided at 112 Marvin Street and was also getting his son ready for school that morning around 7:30 a.m. While watching out his window for the school bus, Mr. Martin saw Galloway walking southbound on Marvin street toward Saint Paul. As Galloway neared the corner, a small black pickup turned northbound on Marvin and passed by her. The truck then stopped and Galloway turned around, spoke with the driver and got in. The truck headed north up Marvin Street toward Strayhorn Street.

¶7. Mrs. Cindy Dunn also saw Galloway the morning of January 9. First, as Mrs. Dunn left to take her children to school, she saw Galloway cutting across her neighbors' yard onto Marvin Street. Mrs. Dunn testified that this was at approximately 7:30 a.m. Then, as she returned from taking her kids to school, Mrs. Dunn saw Galloway again, bent over and talking to someone in a small black pickup truck. Mrs. Dunn testified that the person in the truck was a white male with a dark or tan complexion.

¶8. On January 22, 1996, thirteen (13) days after her disappearance, Galloway's body was found by children gathering firewood from an abandoned house in Quitman County. Lee Moore, an adult who accompanied the children, called the authorities from a nearby house. Moore subsequently showed the authorities the body under the floor of the abandoned house. The F.B.I. extracted the body and turned it over to the Quitman County coroner.

¶9. An autopsy of Galloway's body was performed on January 23, 1996, by Dr. Stephen Hayne, a recognized forensic pathologist. Dr. Hayne determined that Galloway had been killed by manual strangulation and two stab wounds to the chest. He testified at trial that the wounds were consistent with what he would expect from a single-edge knife, approximately 5/8 of one inch in width. Galloway had also been raped and had multiple bruises and contusions clustered about her body. Finally, after she was dead, Galloway's chest had been partially burned over the stab wounds in her chest, obscuring the wounds on the surface. An RSVK-IIII Sexual Assault Kit was also prepared. Dr. Hayne was unable to come to a definite Conclusion as to when Galloway died due to the seasonal frigid temperatures, but did state that he "did not think that she had lived long after her disappearance" and that it was unlikely that Galloway's death occurred more than 48 hours after she was last seen.

¶10. Mrs. Stella Rowe saw Galloway's picture in the paper on January 24, 1996, and contacted authorities. She reported that she had seen Galloway in an isolated area of Quitman County on January 9, 1996, the day of her disappearance. Mrs. Rowe had been traveling on Simpson Road in Quitman County at around 12:50 p.m. when she came upon a small black pickup, oriented in the opposite direction, that was stopped and was blocking the road. She slowed and the pickup pulled out of her way, allowing her to pass. Mrs. Rowe testified that there was a slender, tall white male about age 35 who had reddish brown hair and discolored teeth driving the truck and was accompanied by a young female, whom she identified as Galloway. As Mrs. Rowe pulled away, the young female leaned out of the driver's side window, waving her arms. Mrs. Rowe continued on her way and did not think anything of the incident until she saw Galloway's picture in the paper, at which point she contacted the police. The area in which this chance meeting occurred is about two (2) miles from where Galloway's body was found.*fn1

¶11. The turning point of the investigation came on March 27, 1996, when the Tate County Sheriff's Department received a telephone call from Jimmy Lewallen informing them that he had found a class ring on his property which was inscribed with Galloway's name. Lewallen's property was on Old Crenshaw Road in Panola County. The Tate County Sheriff's Office then contacted Sammy Webb, an investigator from the district attorney's office, at approximately 11:00 a.m. At around 1:00 p.m., Investigator Webb and Fred Perez, an investigator with the Senatobia Police Department, met Mr. Lewallen at his property and he showed them where he had found the ring. A silver ring belonging to Galloway was found on the ground, and a common kitchen table or butter knife, grown over with grass, was also discovered. While examining the area near where the ring and knife were found, Investigator Webb noticed a mailbox bearing the name Eddie Hughes. Investigator Webb had previously worked on a child molestation case involving William Ray Hughes. Investigators Webb and Perez knocked on the door of the house, which was directly across from Lewallen's property and the mailbox, and determined that Julie Hughes Sanders lived there with her two children and the appellant, William Ray Hughes.*fn2 Hughes was at work that day at Aluminum Extrusions in Senatobia, which is approximately 1.2 miles from where Galloway was last seen getting into the pickup truck.

¶12. That afternoon, at about 3:45 p.m., both investigators went to Aluminum Extrusions in Senatobia to talk with Hughes. Hughes agreed to follow them to the police station; and, when questioned as to whether he had missed any days in January, Hughes stated that he had not. He was also questioned as to his use of Mrs. Hughes Sanders' black Ford Ranger pickup truck. Hughes stated that his usual mode of transportation was his tan, full size pickup, which he was driving on January 9, the date of Galloway's disappearance. At the request of Investigator Webb, Hughes executed a consent form to allow blood, saliva and hair samples to be taken from him at the local hospital. These samples were subsequently delivered to GenTest laboratories for DNA testing. In addition, Hughes consented to a search of his house and vehicles.

¶13. Hughes was arrested on an unrelated parole violation charge and held. Investigator Webb obtained Hughes' work records and found that he had left work at 7:30 a.m. the morning of the 9th of January, and did not work on the 10th or 11th. He also discovered that one of Hughes' uniforms was missing. The police then interviewed and obtained a statement from Mrs. Hughes Sanders that Hughes had returned home at 6:45 p.m. the evening of Galloway's disappearance with blood on his pants. Mrs. Hughes Sanders also stated that Hughes had left for work that morning in her small black Ranger pickup truck. During the course of the search of Hughes' residence on April 8, a common kitchen table knife similar to the one found near Galloway's class ring was found in a dresser drawer in Hughes' bedroom.

¶14. DNA testing indicated Hughes could not be excluded as the source of the semen recovered from Galloway and his genetic characteristics had a probability of 1: 86,000 of randomly occurring in the general population. Hughes was indicted for the rape and murder of Galloway. After seeing a picture of Hughes on television following his arrest, Mrs. Rowe again contacted the police, stating that the man identified as Hughes on television was the man she had seen in the truck with the young girl on January 9, 1996.

¶15. During the trial the State built a strong circumstantial case against Hughes by piecing together testimony of various witnesses, the identification and location of items of physical evidence and the DNA evidence. The State sought to prove that Hughes had left work early on the morning of January 9th and was driving the small black truck. It offered evidence showing that Hughes had lied about his absence from work, had obtained a haircut after Galloway's disappearance and, on one occasion, had been to the abandoned house where her body was found to scavenge supplies with his younger brother.

¶16. Hughes' defense was mistaken identity. Hughes testified that he left work because of a queasy stomach on the 9th at about 7:30 a.m. driving a tan pickup truck. He ran out of gas and was walking when a person in a light blue pickup truck picked him up. He made it home around 10:30 a.m. He woke Mrs. Hughes Sanders, who prepared some soup for him. He subsequently fell asleep and did not wake up until 4:00 p.m. Hughes called Sue Greenwood who testified that she had seen Galloway on January 11th at her store at Ingram's Mill, which is about 20 to 25 minutes away from Senatobia.

DISCUSSION

¶17. This Court has held:

"The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal Justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity." Furman v. Georgia, 408 U.S. 238, 306 (1972) (Stewart, J., Concurring)

¶18. This Court has recognized the force of Justice Stewart's words by according a heightened standard of review in capital cases. Williams v. State, 445 So. 2d 798, 810-11 (Miss. 1984); Laney v. State, 421 So. 2d 1216, 1217 (Miss. 1982); Irving v. State, 361 So. 2d 1360, 1363 (Miss. 1978). With this heightened standard close in mind, Hughes' assignments of error will be addressed in the order assigned by Hughes.

I. Whether the Circuit Court erred in overruling the Appellant's motion to dismiss for lack of proper venue at the Conclusion of the evidence and after the Appellee had initially rested its case in chief by ruling that Miss. Code Ann. §§ 99-11-3 and/or 99-11-19, as amended, are constitutional.

¶19. Hughes contends that the murder took place in Quitman County and that the only evidence of events occurring in Tate County was the evidence that Galloway got into the small black pickup truck. Hughes thus contends that venue was improper under Miss. Code Ann. § 99-11-19 (1994). Additionally, Hughes contends in the alternative, that if venue was proper under § 99-11-19, then that statute is unconstitutional as it violates Article 3, Section 26 of the Constitution of the State of Mississippi. Hughes' arguments are without merit.

¶20. While the ultimate burden of proving venue that rests upon the State is beyond a reasonable doubt, this is a standard of proof before the jury, not the trial Judge. State v. Fabian, 263 So. 2d 773, 775 (Miss. 1972). Here, the State put on numerous witnesses to demonstrate that Galloway was searching for a way to get to school because her car had broken down in Tate County. The State's witnesses all testified that Galloway was seen getting into a small black pickup truck on Marvin Street the morning of January 9, 1996, in Tate County. Although there is no direct proof that Galloway and Hughes knew each other, Galloway worked at the Sonic Drive Inn in Senatobia for three months prior to her disappearance, the same establishment frequented by Hughes and his family when they went out to eat. It certainly could be inferred from the circumstances that she got in the truck with Hughes because his face was somewhat familiar when he offered her help. The jury could well infer, to the exclusion of any other theory, that the kidnapping began at this point, in Tate County. Simply because Hughes offered another possible theory does not vitiate the jury's ultimate finding that venue was indeed proper, nor does it impugn the trial Judge's finding that there was enough evidence presented that a rational jury could find beyond a reasonable doubt that the kidnapping did in fact begin when Galloway was lured into a pickup truck in Tate County, meaning under § 97-3-53 the crime could easily have begun in Tate County. Thus, under Miss. Code Ann. § 99-11-19(1994), the State was well within bounds in electing Tate County as the venue in which to prosecute the crime.

¶21. Hughes' second contention that § 99-11-19 is unconstitutional is answered completely by this Court's decision in Aldridge v. State, 232 Miss. 368, 376-77, 99 So. 2d 456, 460 (1958). Under familiar principles of stare decisis, we decline to take this issue up again.

II. Whether the Circuit Court erred in denying the Appellant's motion to require the Appellee to give gender-neutral reasons for striking potential jurors and in striking prospective jurors number 238 [Jennifer Sheffield] and 263 [Shirley Bethay] for cause.*fn3

¶22. Hughes actually raises two issues in Assignment of Error II. First, Hughes contends that the trial court erred when it denied his motion to require the State to give gender neutral reasons for exercising its peremptory challenges. Second, Hughes avers that the trial court erred in permitting jurors Jennifer Sheffield and Shirley Bethay to be struck for cause. Neither issue has merit.

The Challenges for Cause

¶23. Hughes contends that Jennifer Sheffield and Shirley Bethay were improperly struck for cause because of their opposition to the death penalty.

¶24. Jurors may be excused for cause when their views on the death penalty "would `prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" Gray v. Mississippi, 481 U.S. 648, 658 (1987)(quoting Adams v. Texas, 448 U.S. 38, 45 (1980)); Stringer v. State, 500 So. 2d 928, 943 (Miss. 1986)(quoting Wainwright v. Witt, 469 U.S. 412, 424 (1985));.

¶25. Turning to the record in the instant case, Jennifer Sheffield and Shirley Bethay vacillated some in the extensive questioning done by the State, the defense and the court, but in the final analysis, the record supports that each was properly excused for cause:

Q: [BY THE COURT] "Do you feel like I've made a fair assessment? When it comes to considering all three options, considering the death penalty and life without parole and life, you would not be able to fairly consider realistically all three options?" A: [JENNIFER SHEFFIELD] "No, I wouldn't." "* * *" Q: [BY THE COURT] "Then on the other end of the spectrum those who are saying, I can't consider the death penalty, I can consider life, but I can't consider the death penalty, then, obviously, those should not be put in that position. We just want jurors who can fairly weigh out all three options. And I just need to know if you can tell us where you stand." A: [SHIRLEY BETHAY] "Life without parole, that's as far as I can go, but the death penalty I could not."

¶26. Although there was some ambiguity at points in the questioning, in the end that ambiguity was squarely in the interpretational bailiwick of the trial Judge, who observed the demeanor of the potential jurors. "[U]nder the standard of Wainwright where a juror's position is not `unmistakably clear' the decision of whether or not to excuse the juror is left to the trial Judge's discretion." Stringer, 500 So. 2d at 943.

The Peremptory Challenges

¶27. First, it should be noted that the State did, in fact, give gender neutral reasons for its peremptory strikes in this case, contrary to the assertions in Hughes' assignment of error. Under federal law, the Supreme Court has explained that once reasons are offered by the proponent, the issue of whether a prima facie case of discrimination has been developed is moot. Hernandez v. New York, 500 U.S. 352, 359 (1991).

¶28. This Court, however, has previously explicitly held that the trial court has no authority to initiate a Batson hearing without a prima facie showing of discrimination. Thus, it would seem appropriate to examine the prima facie case element prior to examining the reasons proffered by the State. In Stewart v. State this Court stated:

"The prosecution in Hernandez, however, voluntarily defended its peremptory strikes `"without any prompting or inquiry from the trial court." In the case at bar, the defense did not voluntarily explain the peremptory in issue. The trial court in fact made the defense prove it was not discriminating without there ever having been an inference of discrimination in the first place. "A trial Judge does not have the authority to invoke a Batson hearing on his own initiative." Stewart v. State, 662 So. 2d 552, 559 (Miss. 1995)(quoting Hernandez, 500 U.S. at 358).

¶29. Here the Judge explicitly did what Stewart seems to proscribe in that he required gender neutral reasons after determining that there was no prima facie case. Unlike in Stewart, however, the Judge here specifically ruled on the prima facie element and made an adequate record. While this is not accepted practice, Hughes' claims are without merit.

Batson

¶30. Traditionally, a prima facie showing of discrimination requires that the opponent of the strike show,

"1. That he is a member of a "cognizable racial group"; "2. That the [proponent] has exercised peremptory challenges toward the elimination of veniremen of his race; and "3. That facts and circumstances raised an inference that the [proponent] used his peremptory challenges for the purpose of striking minorities." Batson v. Kentucky, 476 U.S. 79, 96 (1986) (citing Castaneda v. Partida, 430 U.S. 482, 494 (1977)).

¶31. Examining the facts surrounding the State's peremptory strikes in the current case, it is clear that no prima facie case of gender discrimination was made. The State exercised seven strikes on the first panel tendered, five against women and two against males, leaving a prospective jury of six males and six females. Hughes objected on Batson grounds, and the trial court found no prima facie case, based on the number of females accepted.

¶32. On its next pass the State struck two women and accepted six, tendering a jury of eight women and four men. Hughes again objected on Batson grounds. Again, the trial court reviewed the strikes and found no prima facie case.

¶33. After Hughes' strikes, the State tendered three more jurors, striking one female and accepting two. Hughes again objected on Batson grounds, and the trial court found no prima facie case.

¶34. At this point, by stipulation, one juror was allowed to leave the panel and Hughes struck an additional juror, leaving the State to tender two more jurors. The State struck two females and accepted two females, and leaving a final jury composed of eight women and four men. The trial court stated:

"[T]he 12 in the box now, which will be the trial jury, are made up of eight females and four males. And, again, based on the totality of the record made yesterday and today, even though the State has exercised most of its challenges on females, still from the record there's been no prima facie showing of intentional discrimination on the basis of gender by the State, no systematic exclusion of females, based on the record, and, again, keeping in mind the overall percentage of the panel under consideration at the beginning of today, that being 60.7 percent female and 39.3 percent male."

¶35. Finally, the State struck one female alternate, tendering four, two males and two females. Hughes renewed his Batson objection and the court again found no prima facie case.

¶36. Here, as the trial Judge did in Simon v. State, the trial court evaluated not only the sheer number of strikes against females, but their context as well. Simon v. State, 679 So. 2d 617, 622 (Miss. 1996). Simon makes very clear that "the numbers of which gender were excused versus the numbers of the two sexes which were seated on the panel, is the type of analysis a trial court conducts in order to determine whether a prima facie inference of discrimination has been made." Id. at 621.

¶37. Furthermore, the trial Judge indisputably sits in a better position than this Court when evaluating the credibility of the striking party, and thus ascertaining whether a preponderance of strikes against a single race or gender is merely circumstance or invidious discrimination. Benson v. State, 551 So. 2d 188, 192 (Miss. 1989); Carr v. State, 655 So. 2d 824, 844 (Miss. 1995); Chisolm v. State, 529 So. 2d 635, 639 (Miss. 1988). In sum, there was simply no prima facie case of gender discrimination made in this case. The trial Judge below nevertheless required the State to provide gender neutral reasons for their strikes, apparently "just in case."

¶38. Examining the State's proffered reasons, it is very clear that no overt discrimination was involved in the selection of Hughes' jury. The Supreme Court has recently stated that for Batson step II purposes, any reason which does not facially violate the Constitution is sufficient. Purkett v. Elem, 514 U.S. 765, 768 (1995).

¶39. The State gave the following reasons for its strikes: S-1 was a paralegal ; S-2 "That's the gal that wanted to know if you were going to let the jury go shopping in Memphis. She is loud. She giggles. And her attitude that she displayed in open court made her undesirable to us. . . . she was loud, you could hear her probably in Tupelo she was so loud. I just didn't like her."; S-3 age and education; S-4 "We struck her because of her views that she expressed in open court on the death penalty"; S-7 age and occupation -- a counselor for troubled girls ; S-8 "This lady is a widow with an eleven-year-old son. She has a seventh grade education according to the questionnaire."; S-9 "Judge, this was a second grade teacher that sat right back here and expressed concern about being away from her school children for the length of time the trial would take. . . . Her age and apparent concern about being away from her second grade class . . . are my reasons."; S-10 small children "But in any event we had considered taking her until it was revealed that one of these children had this spinal problem. And because of that, we thought she would be preoccupied. In addition, this lady's husband was shot by his ex-wife's boyfriend, and he was acquitted, and we were informed that she had sort of a bad taste in her mouth about the Justice system"; S-11 "We struck her, Judge, for her views on capital punishment that she expressed in open court and also in the Witherspoon examination."; S-12 "Our information was that Ms. Graham is related to a victim in a pending capital murder case here in Itawamba County, and law enforcement feels that at this time because of that she is unstable."; Alternate 1 "Our information, again coming from law enforcement in this county, is that her parents as well as her are radical. I believe her mother was on the grand jury . . . and they had some problems."

¶40. Clearly, none of these reasons per se violates Batson, and so the analysis moves to step three in order to determine whether, under the totality of the circumstances, the reasons offered by the State were mere pretexts for unlawful discrimination. Here they clearly were not. The determination of pretext, like the other Batson elements, hinges to a large extent on credibility. Purkett, 514 U.S. at 769. Furthermore, as this Court stated in Mack v. State, the relative strength of the prima facie case will color to a degree the determination of pretext. Mack v. State, 650 So. 2d 1289, 1298 (Miss. 1994).

¶41. Finally, this Court has in various cases found all of the reasons offered by the State in this case to be non-pretextual race neutral reasons. See e.g., Davis v. State, 660 So. 2d 1228 (1995)(employment); Johnson v. State, 529 So. 2d 577, 585 (Miss. 1987)(demeanor); Lockett v. State, 517 So. 2d 1346, 1351-52 (Miss. 1987)(demeanor, hostility, respect for court, age, employment status).

¶42. Hughes failed to demonstrate a prima facie case; and, further, the prosecutor offered sufficiently neutral reasons to overcome any inference.

III. Whether the Circuit Court erred in overruling the Appellant's motions for a mistrial made during the trial including, but not limited to, the motion made (A) during the testimony of Stella Rowe concerning the drawings or sketches she was shown by a law enforcement officer, (B) during the closing argument of the assistant district attorney concerning the rare nature of the Appellant's genetic profile, (C) during Kathy Bolen's testimony that she cut the Appellant's hair after he got out of jail, and (D) following Julie Hughes Sanders' confrontation with her husband during a break in her testimony as a witness for Appellee.

III (A) - Stella Rowe

Undisclosed Investigatory Pictures

¶43. Hughes first contends that the trial court erred when it denied his motion for a mistrial after it was revealed on cross-examination that Mrs. Stella Rowe, a prosecution witness, had been shown what she recalled as two drawings by the police, which Hughes contends are undisclosed exculpatory evidence. Master Sergeant Sammy Aldridge of the Mississippi Highway Patrol was identified as being the individual who showed Mrs. Rowe the pictures, and he was brought back to testify. He still had the pictures in his possession. Master Sergeant Aldridge testified that he went to Mrs. Rowe's house on January 24, 1996, and showed her a computer composite prepared done by the Senatobia Police Department and four to five faxed copies of drivers licenses, some of which came from the files of the Department of Public Safety. These were potential suspects. The computer composite was made of a white male seen standing by Galloway's car later in the morning after her disappearance and was later identified as the wrecker driver called by police to move Galloway's car. Mrs. Rowe did not identify any of these individuals as the white male she saw in the truck.*fn4 Hughes argued to the trial court, and now pursues on appeal, that the State's failure to turn the composite and faxes over to the defense violated U.R.C.C P. 9.04. Hughes also frames this alleged discovery violation in the context of a more general Brady claim, alleging that a substantial deprivation of his constitutional right to a fair trial was hampered by lack of disclosure of these pictures. This sub-issue is completely without merit.

¶44. Brady v. Maryland stands for the general and reasonably comprehensible proposition that the prosecution must disclose exculpatory evidence to a criminal defendant.

We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 87 (1963).

¶45. Obviously, Brady, by its own terms, only applies to favorable evidence, i.e. evidence which is either exculpatory, or which tends to impeach the State's case. Here, it is not entirely clear that the evidence of which Hughes complains was favorable.

¶46. The exchange during cross-examination surrounding the drawings shown to Mrs. Rowe is as follows:

Q: [COUNSEL FOR HUGHES]: "Did the police show you any photographs of William Hughes when they were interviewing you?" A: STELLA ROWE: "They showed me some drawings, but that was all I saw." Q: "Have you seen any photographs of William Hughes other than what you said you saw on the TV?" A: "Not until I saw him on TV." ". . ." Q: "Do you recall who showed you these drawings, Mrs. Rowe?" A: "I am not really sure which one showed me some drawings." ". . ." Q: "How many drawings did they show you?" A: "I saw two." Q: "What did these drawings consist of?" A: "I guess someone had drawn the pictures. They weren't photographs. One was of a real heavy-faced person maybe with a beard, and the other one I couldn't tell anything from either one of them that, you know, I could connect with anything."

¶47. When the defense subsequently moved for a mistrial, contending that the State had failed to turn over exculpatory evidence, it advanced no theory as to why this material is either exculpatory or probative to impeaching the State's case; nor does the argument on the motion aid in determining exactly how this material could be favorable for Hughes. Hughes' attorney stated,

"Without the drawings, that could be exculpatory material. It affects our cross-examination rights as guaranteed by the constitution. In other words, if we had these drawings, we could have handed them to Mrs. Rowe on cross-examination a short time ago and said, is this Mr. Hughes? Is this not Mr. Hughes? Is this some of his features? Is this not some of his features? Were you able to identify this drawing when the police officer handed it to you, yes or no? Things of that nature."

¶48. Even assuming, arguendo, that the evidence is "favorable" and thus potentially covered by Brady, there is still no indication whatsoever that the drawings shown to Mrs. Rowe were material omissions. In Kyles v. Whitley the Supreme Court made it quite clear that not every failure of the prosecution to turn over favorable evidence rises to constitutional error.

"Bagley's touchstone of materiality is a "reasonable probability" of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A "reasonable probability" of a different result is accordingly shown when the Government's evidentiary suppression "undermines confidence in the outcome of the trial."..." Kyles v. Whitley, 514 U.S. 419, 434 (1995) (quoting United States v. Bagley, 473 U.S. 667, 678 (1985)).

¶49. Here, the prosecution sought out and delivered the pictures to the defendant, and Hughes was given time to assimilate these pictures and formulate whatever response he felt was necessary. Hughes was permitted to question MSG Aldridge concerning the composite and faxed copies of drivers licenses. Mrs. Rowe was not discharged following her testimony. Hughes was completely free to recall her and cross-examine her at length with the aid of these allegedly exculpatory pictures. It is important to note that the prosecutor was also unaware of the existence of these pictures until discovered by Hughes during the cross-examination of Mrs. Rowe. These pictures were no more or no less than the "usual suspects" law enforcement use when they are trying to come up with a lead in an unsolved case. This case is thus a far cry from Brady and its progeny in which the evidence was actively suppressed until its discovery after the trial.

¶50. Hughes' second contention that the failure to disclose these drawings violated state discovery laws is also without merit. Only paragraphs 5 and 6 of Uniform Circuit and County Court Practice Rule (U.R.C.C.P.) 9.04A would be relevant for consideration, as follows:

"5. Any physical evidence and photographs relevant to the case or which may be offered in evidence; and "6. Any exculpatory material concerning the defendant." U.R.C.C.P. 9.04A.

¶51. The seminal case interpreting this rule is Box v. State, 437 So. 2d 19 (Miss. 1983). In that case the State had neglected to tell the defendant the identity of a key State's witness. Box, 437 So. 2d at 20. This Court, emphasizing the fundamental nature of the defendant's interest, reversed and held that "This State is committed to the proposition that these conflicting interests are best accommodated and that Justice is more nearly achieved when, well in advance of trial, each side has reasonable access to the evidence of the other." Id. at 21.

¶52. Box and U.R.C.C.P. 9.04 have been applied to a variety of evidence, but never to a computer composite and faxed pictures of persons which were not identified by a witness. U.R.C.C.P. 9.04 is obviously much broader than Brady, but the definition of exculpatory in U.R.C.C.P. 9.04 (6) is presumably on par with the federal definition of exculpatory under Brady and its progeny. Therefore, there was no discovery violation under Box and U.R.C.C.P. 9.04 because the pictures were not exculpatory.

¶53. Next, we are concerned with the issue of unfair surprise caused by the failure to timely disclose the pictures.

¶54. This Court has noted that U.R.C.C.P. 9.04 protects the defendant from unfair surprise caused by the unexpected introduction of evidence not disclosed by the State. "The essential purpose of Rule 4.06 [now 9.04] is the elimination of trial by ambush and surprise. Disclosure is the hallmark of fairness and the quest for Justice that should be the goal of the criminal Justice system." Robinson v. State, 508 So. 2d 1067, 1070 (Miss. 1987). However, the State never intended to offer the pictures into evidence. So we are back to the issue of failure to disclose exculpatory evidence. However, the lower court did all that was possible to accommodate Hughes, and this violation falls short of what would justify a mistrial.

¶55. In Conclusion, the pictures shown to Mrs. Rowe were not exculpatory, nor did the trial Judge err in refusing to grant a mistrial based on the State's failure to disclose the pictures. Issue III (A) is without merit.

III (B) The Prosecutor's Closing Argument

¶56. Hughes argues that the prosecutor improperly commented on the evidence when he stated during closing arguments that Hughes' DNA profile was rare.

¶57. The test for determining whether a prosecutor's comment is improper is found in Davis v. State:

"[T]he test to determine whether an improper argument by a prosecutor requires reversal is whether the natural and probable effect of the improper argument of the prosecuting attorney is to create an unjust prejudice against the accused as to result in a decision influenced by the prejudice so created." Davis v. State, 530 So. 2d 694, 701 (Miss.1988)(citing Craft v. State, 226 Miss. 426, 84 So. 2d 531 (1956)).

¶58. Furthermore, the allegedly improper statement must be evaluated in light of the facts and circumstances of the case, as this Court made clear in Davis v. State:

"This Court has traditionally given attorneys wide latitude in closing arguments. Any allegedly improper prosecutorial comment must be evaluated in context, taking into consideration the circumstances of the case when deciding the comment's propriety." Davis v. State, 660 So. 2d 1228, 1248 (Miss. 1995); (citing Ahmad v. State, 603 So. 2d 843, 846 (Miss. 1992)).

¶59. Thus the question is whether the prosecutor's statement that Hughes possessed a "rare" DNA profile prejudiced Mr. Hughes to such an extent that the jury's decision was improperly influenced. Here, the following exchange took place:

[STATE]: "That is one of the important things that you heard about in this case. What Ann Montgomery told you basically is that William Ray Hughes has a genetic profile that is so rare that it appears in only about one out of 86,000 people, okay?" [COUNSEL FOR HUGHES]: "I object, Your Honor. Ann Montgomery never used the word rare. Mrs. Lamar is misstating her testimony, and therefore I move for a mistrial." THE COURT: "It will be overruled. The jury will make the decision based on the evidence as presented, as they recall." [STATE]: (continuing) "What she told you was that the sperm found in Ashley Galloway was of a genetic profile so rare that it only appeared in 86,000 people, one in every 86,000 people, okay, and William Ray Hughes is one of those people that share that profile, okay?"

¶60. As with most words in the English language, "rare" is susceptible to a variance of meaning, but it seems obvious that one common meaning of the word "rare" would be 1 in 86,000. A jury is easily capable of deciding for itself whether the prosecutor's characterization of Mrs. Montgomery's testimony fits their personal notion of "rare" and this is essentially what the trial Judge ruled.

¶61. Furthermore, the comment in the current case was a comment on the evidence, and not a personal attack on or vilification of Hughes. Ahmad v. State, 603 So. 2d at 846; Craft v. State, 226 Miss. at 434, 84 So. 2d at 55. In Conclusion, the trial Judge was correct in determining that the State's argument was not improper. Issue III(B) is without merit.

III (C) Kathy Bolen's Comment

¶62. During Hughes' cross-examination of Kathy Bolen, Mrs. Bolen, in attempting to respond to a question posed by the defense, stated that Hughes had previously been in jail:

Q: [COUNSEL FOR HUGHES]: "How Many times have you cut William's hair?" A: KATHY BOLEN [Witness]: "Approximately three times." Q: "Do you know when the first time was when you cut his hair?" A: "It was a short time after he got out of jail." Q: "I mean just the dates. Do you know the --" A: "I don't know the date. No, I don't." Defense Counsel: "I object and move for a mistrial, Your Honor." The Court: "Overruled. Motion denied."

¶63. Hughes argues that this warrants a mistrial.

¶64. This Court was faced with a similar situation occurring during the State's direct in Watson v. State:

Q: [STATE]: "Have you had any contact with [Watson] lately?" A: DEBRA JEAN WILDER [Witness]: "He's come by the office where I work, but we didn't really talk. He was just telling me he was out of jail...." Watson v. State, 521 So. 2d 1290, 1293 (Miss. 1988).

This Court noted that " [t]he answer of Wilder was not responsive to the question and there was no purposeful effort or intent on the part of the State to elicit such information from the witness." Id. at 1294.

¶65. The better remedy for an improper comment or question that has been put before the jury is for the court to admonish the jury not to consider the improper statement. Criddle v. State, 633 So. 2d 1047, 1048 (Miss. 1994)(citing Davis v. State, 530 So. 2d 694, 697 (Miss. 1988)); Vickery v. State, 535 So. 2d 1371, 1380 (Miss. 1988) Forrest v. State, 352 So. 2d 1328, 1331 (Miss. 1977); Myrick v. State, 290 So. 2d 259 (Miss. 1974); Herron v. State, 287 So. 2d 759 (Miss. 1974). . It is only when the comment is so prejudicial that the curative instruction would not suffice to ensure the defendant a fair trial that reversal is warranted. Criddle, 633 So. 2d at 1048 (citing Reynolds v. State, 585 So. 2d 753, 755 (Miss. 1991); Roundtree v. State, 568 So. 2d 1173, 1177- 1178 (Miss. 1990); Bradley v. State, 562 So. 2d 1276, 1282 (Miss. 1990); Smith v. State, 530 So. 2d 155, 161 (Miss. 1988); Barlow v. State, 233 So. 2d 829, 832 (Miss. 1970)). This rule is but a specific application of the general presumption that juries will follow instructions which are given to them and do not rely on the good or bad faith of the prosecutor. Chase v. State, 645 So. 2d 829, 853 (Miss. 1994). See also Greer v. Miller, 483 U.S. 756, 766 (1987); Richardson v. Marsh, 481 U.S. 200, 208 (1987); Bruton v. United States, 391 U.S. 123, 136 (1968).

¶66. In response to the objection and motion for mistrial made by Hughes, the trial court gave the jury a cautionary instruction concerning Mrs. Bolen's testimony. Jury instruction C-13 read as follows:

"Members of the jury, during the cross examination of Kathy Bolen by the Defendant, through counsel, Ms. Bolen testified in response to a defense question that she had cut the Defendant's hair one time after he got out of jail. However, the Court cautions you that you cannot and must not in any way consider the fact that the Defendant, William Ray Hughes, may have been in jail in the past on unrelated charges as evidence in this concerning the issue of whether or not William Ray Hughes is guilty of the charges for which he is on trial."

¶67. In Conclusion, while the response was improper and inadmissible, it was also unexpected and was cured the best way possible under the circumstances then existing with the Judge's instruction.

III (D) The Recess Argument

¶68. Hughes contends that the trial court also erred when it failed to grant a mistrial after it was revealed that Mrs. Hughes Sanders' husband had communicated with her during a court recess. While such contact was highly improper, it does not constitute grounds for a mistrial. It is necessary to examine Mrs. Hughes Sanders' testimony in some detail to understand why this is so.

¶69. Mrs. Hughes Sanders was living with Hughes during the time of the crime and subsequent investigation. Mrs. Hughes Sanders one time told the investigators that Hughes had returned home early on January 9th (the date of Galloway's disappearance) and the two of them had gone to Sam's Town Casino. Later in the investigation, after checking her casino records the police confronted her with the falsity of this statement. Mrs. Hughes Sanders changed her story to reflect that Hughes had come home at around 6:45 p.m. the night of the murder, that he had driven the small black Ranger pickup truck to work that morning, and that Hughes had blood on his pants when he came home. She further stated that he had taken a bath and left, not returning until 11:00 p.m. This information was compiled into a written statement ("prior statement").

¶70. Mrs. Hughes Sanders testimony at trial differed considerably from her prior statement. Her vacillation resulted in a running attempt at impeachment during which Mrs. Hughes Sanders gave differing versions of what happened on and following January 9. For instance, Mrs. Hughes Sanders attempted to recant her prior statement that Hughes was driving the black truck on the 9th. Upon being confronted with the prior statement, she once again averred that Hughes drove the black truck on the 9th. When the prosecutor asked Mrs. Hughes Sanders what time Hughes had returned from work on the 9th, Mrs. Hughes Sanders stated that it was 10:30 a.m. and not 6:45 p.m. Again the prosecutor impeached Mrs. Hughes Sanders with her prior statement. Mrs. Hughes Sanders maintained that Mr. Hughes had come home at 10:30 a.m. and that he was home all day until the two went to Wal-Mart around 3:00 p.m. Later, under questioning, she changed her story and stated that they had actually left around 2:30 p.m. and returned at 3:00 p.m., but that she and Mr. Hughes had otherwise been at home all day.

¶71. This running impeachment continued throughout Mrs. Hughes Sanders' direct examination. At the close of direct and after the jury was dismissed for the day, Hughes moved for a mistrial based on the fact that it was discovered that a confrontation of some sort had occurred between Mrs. Hughes Sanders and Mr. Sanders after a ten (10) minute break.

¶72. The trial Judge denied the mistrial but, addressing the issue as a M.R.E. 615 violation, allowed a full blown cross-examination of Mrs. Hughes Sanders both prior to her leaving the stand and the next day before the jury.

THE COURT: "I'm satisfied with the appropriate remedy of this. The witness obviously talked with her husband during the break, and under Rule 615 of the Rules of Evidence and the case law interpreting that rule, the remedy here is certainly to allow, as the Supreme Court said, full cross-examination on this point."

¶73. During the examination by both the State and Hughes, Mrs. Hughes Sanders testified that she had indeed been confronted by her husband. During cross, Mrs. Hughes Sanders testified that:

Q: [COUNSEL FOR HUGHES]: "You testified on direct yesterday and then we took a break; do you recall that?" A: JULIE HUGHES SANDERS [Witness]: "Yes, sir." Q: "And during that break, did you have a confrontation with anyone?" A: "With my husband." Q: "And that happened on two occasions during that break, did it not?" A: "Yes, sir." Q: "And he got up in your face and had something to say to you, didn't he?" A: "Yes, sir." Q: "And during that confrontation he actually made you cry, didn't he?" A: "Yes, sir." Q: "And he got you upset, didn't he, during the break?" A: "Yes, sir."

¶74. The State, on re-direct, elicited exactly what had been said:

Q: [STATE]: "Julie, at the break when you had a conversation with your husband, what did your husband tell you?" A: JULIE HUGHES SANDERS [Witness]: "He told me to tell the truth." Q: "Tell the truth." A: "Yes, ma'am" Q: "Have you told anything that was -- let me rephrase that. Did you tell anything that was the truth yesterday?" A: "Yes, ma'am"

¶75. Hughes contends that this cross-examination was insufficient to alleviate the prejudice caused to him and that he was entitled to a mistrial.

¶76. This Court has not previously dealt at length with this issue, but it appears the trial Judge was correct in treating the problem as a M.R.E. 615 violation. In Lewis v. State the victim's husband had spoken with certain witnesses about their testimony. Lewis v. State, 580 So. 2d 1279, 1286 (Miss. 1991). Lewis sought a mistrial and couched the error as a Rule 615 violation. Lewis, 580 So. 2d at 1286. The trial court Judge ruled that since the husband was not a party, he was not subject to the rule. Lewis 580 So. 2d at 1286. This Court accepted the trial Judge's denial of a mistrial, but noted:

"The court observed that the witnesses were instructed not to talk to anyone about their testimony, but if they had talked to Mr. Carter about sitting at a table or not sitting at a table, such a fact, considering the nature of the case, did not have any major influence on the jury. "Again, other than citing Rule 615, the appellant fails to provide any support for this assignment of error. Mr. Carter's speaking to the jurors about his wife's testimony, however, violates the spirit of Rule 615. It should be made clear that not only are the parties and their attorneys prohibited from disclosing the testimony of other witnesses, but the court has ample authority to deal with strangers to the litigation who would interfere with the orderly administration of Justice by knowingly violating the rule. "Here, the trial court finding that such wrongdoing as occurred was harmless is not clearly erroneous and will be credited. Without a showing of how Lewis was prejudiced, this assignment of error is without merit." Lewis, 580 So. 2d at 1286-87 (citing U.R.C.C.P. 5.01).

¶77. In Brown v. State, the basic remedies for a Rule 615 violation were reiterated:

"Once a witness has violated the rule, however, the remedy lies within the court's discretion. Remedies may include prospectively excluding the witness where prejudice will otherwise ensue; striking the witness's testimony where connivance gave rise to the testimony; striking the witness's testimony where the testimony gave rise to prejudice; or, most appropriately, allowing the other party to subject the witness to a "full-bore cross-examination" on the facts of the rule violation." Brown v. State, 682 So. 2d 340, 349 (Miss. 1996) (quoting Douglas v. State, 525 So. 2d 1312, 1317 (Miss. 1988)) (emphasis added).

¶78. The trial Judge clearly considered several remedies when the confrontation was discovered, and determined that the best solution would be to allow full blown cross- examination on the issue. This determination is entitled to deference on appeal:

"When violation of the sequestration rule is assigned as error on appeal, as is the case here, the question then becomes one of the scope of review of the appellate court. We note that the majority of federal appellate courts have stated the test thus: failure of a Judge to order a mistrial or to exclude testimony will not justify reversal on appeal absent a showing of prejudice sufficient to constitute abuse of discretion." Douglas, 525 So. 2d at 1318.

¶79. The critical fact here is that Mrs. Hughes Sanders was not a credible witness prior to the alleged coercion by her husband. The cross by Hughes and the questioning by the State on the confrontation with her husband hammered this fact home. The jury was thus fully apprized of the serious deficiencies in Mrs. Hughes Sanders' testimony. If anything, the exchange with her husband and its subsequent discovery presented the defense with an opportunity to further impeach the State's already battered witness. Furthermore, the jury was explicitly reminded of the potential influence Mr. Sanders may have had on Mrs. Hughes Sanders' testimony by the trial court Judge, who instructed:

"[BY THE COURT] "Members of the Jury, you will recall that it was revealed to you while Julie (Hughes) Sanders was on the witness stand that during a recess in the testimony of Ms. Sanders, she and her current husband allegedly had a confrontation about her testimony. As with all other witnesses, you may give the testimony of Ms. Sanders what weight and credit you deem proper under the circumstances, and in judging the credibility of her testimony, you may consider whether or not you feel her testimony was affected or influenced by the fact that she allegedly had this confrontation/argument with her husband during a recess in her testimony."

¶80. In Conclusion, the trial Judge was correct to deny Hughes a mistrial on the grounds of the improper contact. The trial Judge correctly treated the issue as a Rule 615 violation and allowed cross- examination in the presence of the jury on the improper contact. This was sufficient to protect Hughes from prejudice.

IV. Whether the Circuit Court erred in refusing to permit the Appellant to interrogate Julie Hughes Sanders concerning her husband's criminal convictions.

¶81. Hughes next contends that it was error to bar him from questioning Mrs. Hughes Sanders on her husband's prior criminal convictions. During the cross engendered by the confrontation discussed in Issue III(D) above, Hughes sought to demonstrate that Mr. Sanders had a prior criminal record. The trial Judge disallowed this on the grounds of relevancy.

¶82. Hughes is technically barred from arguing this issue on appeal because Hughes did not make a proffer before the trial court. Gates v. State, 484 So. 2d 1002, 1008 (Miss. 1986). Obviously, a past criminal conviction for battery would be much closer to being relevant than a prior drug offense under the facts of this case, but this can not be ascertained because Hughes did not make a proffer. Even ignoring the bar, however, Hughes' contention is without merit.

¶83. Matters concerning the relevance and admissibility of evidence in general are within the sound discretion of the trial court Judge. Fisher v. State, 690 So. 2d 268, 274 (Miss. 1996)(citing Shearer v. State, 423 So. 2d 824, 826 (Miss. 1982)); Coleman v. State, 697 So. 2d 777, 784 (Miss. 1997)(citations omitted); Page v. State, 295 So. 2d 279, 282 (Miss. 1974)(citing Clanton v. State, 279 So. 2d 599 (Miss. 1973)).

ΒΆ84. Here the issue was whether Mrs. Hughes Sanders had been, in fact, improperly influenced by her husband, not her husband's capacity for threatening her. The trial Judge did not abuse his discretion in determining that Mr. ...


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