                  IN THE COURT OF APPEALS 06/18/96
                                  OF THE
                           STATE OF MISSISSIPPI
                             NO. 93-KA-00208 COA



WILLIE A. GARDNER

APPELLANT

v.

STATE OF MISSISSIPPI

APPELLEE



THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND

MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B



TRIAL JUDGE: HON. EUGENE M. BOGEN

COURT FROM WHICH APPEALED: WASHINGTON COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT:

ROBERT E. BUCK

ATTORNEY FOR APPELLEE:

OFFICE OF THE ATTORNEY GENERAL

BY CHARLES E. MARIS, UR.

DISTRICT ATTORNEY: JOYCE I. CHILES

NATURE OF THE CASE: CRIMINAL -- BUSINESS BURGLARY; HABITUAL OFFENDER

TRIAL COURT DISPOSITION: GUILTY -- SENTENCED TO SEVEN YEARS IN CUSTODY
OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT THE POSSIBILITY OF
PAROLE
BEFORE BRIDGES, P.J., BARBER, KING, AND SOUTHWICK, JJ.

BARBER, J., FOR THE COURT:

Willie Gardner appeals from his conviction for the crime of business burglary. For this felony,
Gardner was sentenced as a habitual offender to the custody of the Mississippi Department of
Corrections for a term of seven years. Finding no reversible error in the proceedings below, we
affirm.



I. FACTS

Lawrence C. McCloud owns McCloud’s Pawn Shop in Greenville. On May 31, 1991, the pawn shop
was burglarized, and a number of items totaling between $3,000 and $4,000 in value were stolen.
Among these stolen items were firearms, jewelry, and compact disc players.

McCloud subsequently offered a reward for information leading to the conviction of the person or
persons responsible for the burglary. In response to the reward offer, McCloud received information
from Gary Rayford, who resided with Gardner at 143 North Poplar in Greenville. McCloud then
notified Officer Kirby Slayton of the Greenville Police Department. Upon investigating the burglary
further, Slayton found various stolen items at another Greenville pawn shop and discovered that these
items had been pawned by Charlotte Denard, Gardner’s sister. Based upon this and Rayford’s
information, Slayton arrested a man named Larry Atley and procured a warrant for Gardner’s arrest.

On the date of the burglary, Gardner was also sharing the Poplar residence with his mother, Thelma
Griffin, Angela Denard, Carla Denard and Atley. Both Griffin and Rayford subsequently gave signed,
written statements to Slayton. The statements contained accounts of conversations between Atley
and Gardner, who described how they broke into the pawn shop and stole the various items.

On August 1, 1991, Charlotte Denard and Atley went to Memphis, Tennessee, under police
supervision to visit Gardner, who by that time was living in Memphis with his girlfriend. Atley and
Denard were wearing a hidden radio transmitter and a tape recorder as they engaged Gardner about
the details of the burglary and ultimate whereabouts of the stolen items. At one point in the
conversation, Gardner expressed his concern that he could be subject to federal prosecution for
transporting stolen firearms across state lines. At another point in the conversation, Gardner
expressed his displeasure with various members of his family for communicating to the police the
details of his involvement in the burglary.

Gardner was indicted as a habitual offender for the crime of burglary of a business. He was tried on
August 25, 1992, and the jury found him guilty. The trial court sentenced him to a seven-year term of
imprisonment with no the possibility of parole. From this conviction and sentence, Gardner now
appeals.

II. DISCUSSION

A) Did the Trial Court Err in Allowing the Written Statements of Rayford and Griffin to Come Into
Evidence?



The prosecution called both Griffin and Rayford to the stand to testify as to their knowledge of
Gardner’s involvement in the crime. When it became clear that both of these witnesses were reluctant
to testify against Gardner, the prosecution obtained permission from the trial court to impeach these
witnesses as hostile witnesses. The prosecution did this by confronting the witnesses with the prior
written statements that they had given to Slayton. Over Gardner’s objection, the trial court also
allowed these written statements to come into evidence as marked exhibits. Gardner asserts that this
last ruling was erroneous. We agree.

"Where the non-party witness admits having made the prior, out-of-court statement, the statement
where reduced to written form, should never be introduced into evidence." Moffett v. State, 456 So.
2d 714, 719 (Miss. 1984). Accordingly, the trial court erred by allowing the jury to view Griffin’s and
Rayford’s prior written statements as marked exhibits. Nonetheless, we decline to hold that this error
warrants reversal. Upon being confronted with their previous statements, both Rayford and Griffin
did not disavow them but instead, to a large measure, affirmed the truth of the facts stated therein.
Thus, any harm which accrued to Gardner as a result of having the jury actually have the opportunity
to view the written statements themselves was of little consequence. Such error was therefore
harmless.

B) Did the Trial Court Err By Permitting the Prosecution to Lead Its Witnesses on Direct
Examination?



During trial, the prosecution called Charlotte Denard to the stand. During the course of its direct
examination, and over the objection of the defense, the prosecution was allowed to question her by
using leading questions. Gardner now asserts that this ruling by the trial court was erroneous.

Rule 611(c) of the Mississippi Rules of Evidence states:

            Leading questions should not be used on the direct examination of a witness except as
            may be necessary to develop his testimony. Ordinarily, leading questions should be
            permitted on cross-examination. When a party calls a hostile witness, an adverse party,
            or a witness identified with an adverse party, interrogation may be by leading questions.

M.R.E. 611(c) (emphasis added). After examining the record, we are of the opinion that even though
Charlotte Denard was called to the stand by the prosecution, the tone and substance of her answers
evinced recalcitrance on her part. Under such circumstances, we believe that Denard qualified as a
hostile witness, and the trial judge did not abuse his discretion in allowing the prosecution to examine
her by the use of leading questions.

In the alternative, even were we to hold that the judge abused his discretion in allowing the
prosecution to direct leading questions to Denard, we would still find no ground for reversal. In
order to justify a reversal because improper leading questions were allowed, it is necessary that the
"question shall have influenced the answer and that injury resulted." Williams v. State, 317 So. 2d
379, 381 (Miss. 1975). Gardner has failed to demonstrate how he was injured by the prosecution’s
use of leading questions. Therefore, a second reason exists for denying reversal on this issue.

C) Was the Jury’s Verdict Supported by Sufficient Evidence?

Gardner’s final assignment of error is that the jury’s verdict was supported by insufficient evidence.
To test the sufficiency of the evidence of a crime, the Mississippi Supreme Court has provided the
following standards:

           [W]e must, with respect to each element of the offense, consider all of the evidence - not
           just the evidence which supports the case for the prosecution - in the light most favorable
           to the verdict. The credible evidence which is consistent with guilt must be accepted as
           true. The prosecution must be given the benefit of all favorable inferences that may
           reasonably be drawn from the evidence. Matters regarding the weight and credibility to be
           accorded the evidence are to be resolved by the jury. We may reverse only where, with
           respect to one or more of the elements of the offense charged, the evidence so considered
           is such that reasonable and fair minded jurors could only find the accused not guilty.

Wetz v. State, 503 So. 2d 803, 808 (Miss. 1987) (citations omitted).

After having reviewed the record, we hold Gardner’s last assignment of error to be without merit.
Upon conducting his own investigation into the burglary, Slayton discovered that Charlotte Denard,
Gardner’s sister and a fellow occupant of the house in which Gardner lived at the time of the
burglary, had pawned some of the stolen items. When Rayford was confronted with his previous
written statement in which he related how Atley and Gardner described and admitted their role in the
burglary, Rayford testified that "basically everything in that statement is true and correct." Denard
admitted that she agreed to participate in the attempt to record Gardner making incriminating
statements as part of a deal in which she would undergo a reduced penalty for the crime of receiving
stolen merchandise. Denard also testified that when she visited Gardner in Memphis, Gardner
expressed his concern about how he could now be prosecuted for the federal crime of transporting
stolen firearms across state lines and his dissatisfaction with other members of his family for having
talked to the police about his role in the burglary. Finally, Griffin admitted that on one occasion
following the burglary, she drove Gardner to Memphis and witnessed him with a strange-looking
handgun in his possession. Clearly, the sum of this evidence is sufficient to support Gardner’s guilty
verdict.

III. CONCLUSION

For the foregoing reasons, the judgment of the Circuit Court of Washington County is affirmed.

THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY OF
CONVICTION OF BURGLARY OF A BUSINESS AND SENTENCE AS A HABITUAL
OFFENDER TO SEVEN YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS ARE ASSESSED TO
WASHINGTON COUNTY.

FRAISER, C.J., BRIDGES AND THOMAS, P.JJ., COLEMAN, DIAZ, KING, McMILLIN,
PAYNE, AND SOUTHWICK, JJ., CONCUR.
