                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2009-KA-01732-SCT

ELZIE JUNIOR HARRISON

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                          07/16/2009
TRIAL JUDGE:                               HON. VERNON R. COTTEN
COURT FROM WHICH APPEALED:                 NESHOBA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   OFFICE OF INDIGENT APPEALS
                                           BY: W. DANIEL HINCHCLIFF
                                                LESLIE S. LEE
ATTORNEYS FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                           BY: DEIRDRE MCCRORY
DISTRICT ATTORNEY:                         MARK SHELDON DUNCAN
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               AFFIRMED - 12/09/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       BEFORE CARLSON, P.J., RANDOLPH AND KITCHENS, JJ.

       RANDOLPH, JUSTICE, FOR THE COURT:

¶1.    Elzie Junior Harrison appeals from his conviction on five counts of statutory rape and

sexual battery. Harrison raises two assignments of error based on comments made by the

trial court, but did not raise an objection at the time the comments were made. Both

assignments are without substantive merit. We affirm the judgment of the Neshoba County

Circuit Court.

                                          FACTS
¶2.    S.W. (born January 17, 1991) lived in the Linwood community of Neshoba County

with her mother, two brothers, and stepfather, Harrison (born December 17, 1981). S.W.

testified that, on Mother’s Day, 2004, Harrison was present while she and her brothers were

preparing a Mother’s Day card. She said she was looking down at the card, but Harrison

seemed to think that she was looking at his crotch. S.W. testified that he looked down at

himself and then smiled at her. She stated that, shortly thereafter, he sent her mother out of

the house on an errand, told the boys to go to their room, and told her to go to another room.

She said he came in and had sex with her, penetrating her mouth and anus. S.W. testified

that, in the next few weeks, while she was still thirteen, he started having vaginal sex with

her, and that this continued numerous times at various locations, until after her sixteenth

birthday. After she began to go to church, her pastor noticed that she was depressed and

began to counsel her. Eventually, she confided in him. He advised S.W. and her mother to

report Harrison to the sheriff’s office. They did so. Harrison was arrested and gave a

statement to an investigator after waiving his right to counsel. The investigator wrote a

statement, read it back to Harrison, and gave him an opportunity to make changes. Harrison

signed the statement, which reads as follows:

       I am not sure of the date but when we were living in Linwood [S.W.] my step-
       daughter would come onto me and I did not have sex with her but I did touch
       her privates with my hands. In 2006 we were living [near Philadelphia] and
       [S.W.] came onto me again and I did have sex then. I had sex with [S.W.] 3
       or so different times in 2006. [S.W.] was 16 years old in 2006. I haven’t had
       sex with [S.W.] since 2006.




                                              2
Harrison was indicted on five counts: (1) Statutory rape for intercourse with a child under

age fourteen; (2) Sexual battery for oral sex with a child under age fourteen; (3) Sexual

battery for anal sex with a child under age fourteen; (4) Statutory rape for intercourse with

a child between the ages of fourteen and sixteen; (5) Sexual battery for intercourse with a

sixteen-year-old child by a person of trust or authority over the child. See Miss. Code Ann.

§§ 97-3-65(1)(b), 97-3-95(1)(d), 97-3-95(2) (Rev. 2006).

                               PROCEDURAL HISTORY

¶3.    Trial was held July 14-15, 2009. Prior to voir dire, the judge made introductory

remarks, including instructing the jury that an indictment means only that twelve members

of a grand jury, hearing only the State’s side of the case, have found that probable cause

exists that a crime has been committed. The judge explained, inter alia, the presumption of

innocence, the burden of proof, and the requirement of unanimity. Immediately after the jury

panel was selected, the judge continued his introductory and explanatory remarks before

excusing those veniremen who had not been selected. As this was the last jury trial of the

week, those not chosen had completed their jury duty. The judge extolled the value of jury

service and thanked the venire members for having served. The judge described jury service

as a “good and noble thing,” an “indispensable link,” and “part and parcel of the rule of law.”

He recalled a speech he had given on Independence Day and compared our system to that of

Iran, where “there’s no such thing as a jury trial or an indictment . . . .” Following these

remarks, the judge excused those venire members who had not been chosen and continued

his explanatory remarks, including informing the witnesses and the jury that they would be

                                              3
excused for lunch. He instructed the witnesses not to have any contact with the jurors, and

told the jurors not to discuss the case among themselves or with others. Harrison did not

object at any time to any remark by the trial judge.

¶4.    On two occasions – just before the first lunch break and just before excusing the jury

for the night – the court described the case as a “capital case.” In both instances, the

comment was made to impress upon the jurors and witness the seriousness of the case and

the importance of their following the court’s instructions. The court never said it was a

capital-murder case or a death-penalty case. Harrison did not object on either occasion.

¶5.    During S.W.’s testimony, when she was first asked about the events of Mother’s Day,

2004, she struggled with completing her answers. The judge asked her if she needed to take

a break. He told her to try to answer if she could, but assured her that if she could not go on,

he would allow her to take a break. Following this, the prosecutor asked some preliminary

questions, but when he returned to questions about Mother’s Day, S.W. spoke softly and was

told to speak up. She was again unable to answer, and the judge ordered the court in recess.

While the jury was out, the judge spoke to S.W., introducing himself, explaining the

circumstances, and attempting to calm her down enough to continue. S.W. accepted the

judge’s offer take a break to compose herself. She left the courtroom accompanied by a

female bailiff. When S.W. returned, the judge again instructed her to speak loudly enough

to be heard and to answer the questions to the best of her ability. She assured the judge that

she could do so. After questioning resumed, the following colloquy occurred:




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State:     Now, at any time that day, did you get any idea about what it
           was that he thought you were looking at? . . . .

Defense:   Objection to speculation. As to what the defendant thought.

Court:     I’m going to overrule the objection. I think that’s a valid
           question. Go ahead and answer the question if you can.

S.W.:      Yes.

State:     And what was that?

S.W.:      His private area.

State:     So he was standing in a position such, with respect to the card
           you were gazing at –

Defense:   Objection to leading.

Court:     I’ll sustain that. Try not to lead.

State:     Judge, I’m just trying to re-cap and give some context to what
           she’s testified about.

Court:     Okay.

State:     No[w], once you looked at the card, was he standing in an area
           near where he would have been able to think you were looking
           at him?

Defense:   Objection to speculation on what the defendant would have been
           thinking.

Court:     I’m going to overule the objection. The – what we’re seeking
           is the truth. . . . The court is seeking to allow that to come in
           within the parameters of the rules. The witness is a child,
           eighteen years of age now, but was thirteen at the time, and
           within that total context, the court is seeking to stay away from
           the rule, as far as leading, but also to get at the truth and I would
           instruct counsel to do the best that he can . . . to not lead. So go
           ahead and make another effort.

                                     5
Harrison neither objected to the trial court’s statement nor claimed that the trial judge had

vouched for the veracity of the witness.

¶6.    The jury found Harrison guilty on all five counts. The court sentenced Harrison to

fifty years. The court denied Harrison’s motion for judgment notwithstanding the verdict or,

in the alternative, new trial. In it, Harrison raised seven assignments of error, none of which

is repeated in his brief to this Court.

                                           ISSUES

¶7.    The issues, as quoted from Harrison’s brief,1 are as follows:

       I.      Did the trial court’s repeated mischaracterization of the case as a
               “capital case” taint the jury and prevent Harrison from receiving a fair
               trial.

       II.     Did the trial court comment on the veracity and the truthfulness of the
               State’s primary witness thereby deny Harrison a fair trial.

       III.    Whether the cumulative effect of the foregoing judicial comments, if
               they were otherwise not found to be reversible error, was sufficient
               error to require this cause be reversed.

                                          ANALYSIS

¶8.    The standard of review for the issues raised is abuse of discretion. See Miller v. State,

996 So. 2d 752, 756 (Miss. 2008); Strickland v. State, 980 So. 2d 908, 916 (Miss. 2008).

       I.      Did the trial court’s repeated mischaracterization of the case as a
               “capital case” taint the jury and prevent Harrison from receiving
               a fair trial.


       1
        Harrison’s brief also includes arguments regarding the propriety of the “law and
order speech.” However, this argument was not raised as a separate issue. See Miss. R.
App. P. 28(a)(3).

                                               6
¶9.    This issue is procedurally barred. Harrison did not timely object, include this issue

in his post-trial motion, or argue on appeal why it should not be procedurally barred. See

Doss v. State, 709 So. 2d 369, 381 (Miss. 1996) (citing Foster v. State, 639 So. 2d 1263,

1286 (Miss. 1994)) (“the contemporaneous objection rule also applies to comments by the

trial judge”).

¶10.   Should we overlook the bar and consider the assignment of error, it is without merit.

Harrison argues that a “‘capital case’ [is] a case, meriting the ultimate penalty,” thus, the jury

must have thought Harrison was deserving of the death penalty. Harrison first cites a

century-old case stating that jurors are “very susceptible to the influence of the judge.” See

Green v. State, 97 Miss. 834, 53 So. 415, 416 (1910). Green is distinguished, as the judge’s

statements evinced prejudice toward the defendant and indicated to the jury the preferred

outcome. Id. (“We want to break this [racial epithet]'s neck.”). Other cases cited by

Harrison also are distinguishable. See Fermo v. State, 370 So. 2d 930, 933 (Miss. 1979)

(trial court involved itself in plea negotiations); Hannah v. State, 336 So. 2d 1317, 1321

(Miss. 1976) (trial court asked prosecutor if he had an objection).

¶11.   Furthermore, the trial court’s comments were not without support in the law.

“‘[C]apital case,’ . . . when used in any statute shall denote criminal cases, offenses and

crimes punishable by death or imprisonment for life in the state penitentiary. ” Miss. Code

Ann. § 1-3-4 (Rev. 2005). Harrison was indicted on two counts of statutory rape, a crime for

which life imprisonment is possible. See Miss. Code Ann. § 97-3-65(2)(c) (Rev. 2006).



                                                7
¶12.   First, we find that this assignment of error is procedurally barred. We also find that,

if the procedural bar is not applied, the argument is without merit.

       II.    Did the trial court comment on the veracity and the truthfulness of
              the State’s primary witness thereby deny Harrison a fair trial.

¶13.   Harrison argues that the trial court’s comment was a “stamp of approval” that signaled

to the jury that the judge believed her and that the defense was trying to prevent the truth

from being told.    The State argues that this issue also is procedurally barred by the

contemporaneous-objection rule. However, these comments were made in an objection

colloquy. Such a ruling would require a litigant to object to the explanation of a failed

objection.

¶14.   The trial court did not vouch for S.W.’s veracity, but only commented that getting to

the truth was the court’s goal. “[T]hat the truth may be ascertained” is among the ultimate

purposes of the rules of evidence. Miss. R. Evid. 102. Even when a trial court’s comments

“have the effect of bolstering a witness’s testimony in the eyes of the jury,” they do not

necessarily constitute reversible error. Shore v. State, 287 So. 2d 766, 768 (Miss. 1974). In

Shore, this Court found that a judge’s comment was a “stamp of approval,” as he had said

that a witness had not been impeached. Id. at 768. However, the appeal was not decided on

that point, as the Court already had found reversible error on another issue. Id. “We do not

state that the comment alone would constitute reversible error, but we do point out that

comment upon the evidence by a trial judge in the presence of the jury is hazardous to

affirmance on appeal.” Id. at 769 (citing Green, 53 So. at 416).


                                              8
¶15.   A trial court is permitted to explain its rulings, but not to make prejudicial comments

about the evidence. Wells v. State, 698 So. 2d 497, 510 (Miss. 1997); Lofton v. State, 818

So. 2d 1229, 1232 (Miss. Ct. App. 2002). Although the overruled objections here were for

speculation, the issue on appeal is the court’s reasoning, which related to a leading question.

A trial court has the discretion to allow leading questions under certain circumstances, so

long as doing so does not prejudice a “complaining party.” Jones v. State, 606 So. 2d 1051,

1059 (Miss. 1992) (“The classic example for allowing the use of leading questions is where

a child is a witness.”).

¶16.   This Court has described the balancing act required of a trial court judge as follows:

       Of course, he should keep off of the province of the jury, and not try to
       influence their verdict; and while it might be safer for him to rule without
       giving his reasons therefor, he has the right to give such reasons if he so
       desires, and to show why, in his opinion, the reasons advanced for a contrary
       ruling are unsound. . . . It is true that “an overspeaking judge is no well-tuned
       cymbal,” but . . . neither is an aphonic dummy a becoming receptacle for
       judicial power.

Bumpus v. State, 166 Miss. 276, 144 So. 897, 899 (1932) (quoting Berger v. U. S., 255 U.S.

22, 43, 41 S. Ct. 230, 236, 65 L. Ed. 489 (1921)).

¶17.   We find no error on this issue.

       III.    Whether the cumulative effect of the foregoing judicial comments,
               if they were otherwise not found to be reversible error, was
               sufficient error to require this cause be reversed.

¶18.   There being no “error, harmless or otherwise,” there can be no cumulative error.

Lynch v. State, 951 So. 2d 549, 556 (Miss. 2007).

                                      CONCLUSION

                                              9
¶19.   The judgment of the Neshoba County Circuit Court is affirmed.

¶20. COUNT I: CONVICTION OF STATUTORY RAPE AND SENTENCE OF
TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT
OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF SEXUAL
BATTERY AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT III:
CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY (20)
YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AFFIRMED. COUNT IV: CONVICTION OF STATUTORY
RAPE AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT V:
CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY (20)
YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AFFIRMED. SENTENCES IN COUNTS I, II AND III SHALL
RUN CONCURRENTLY FOR A TOTAL OF TWENTY (20) YEARS TO SERVE.
SENTENCE IN COUNT IV SHALL RUN CONSECUTIVELY TO THE SENTENCES
IN COUNTS I, II AND III. SENTENCE IN COUNT V SHALL RUN
CONSECUTIVELY TO SENTENCES IN COUNTS I, II, III AND IV FOR A TOTAL
OF SIXTY (60) YEARS TO SERVE. THE COURT SUSPENDED TEN (10) YEARS
FROM THE SENTENCE IN COUNT V, LEAVING A TOTAL OF FIFTY (50)
YEARS TO SERVE, AND WHICH SENTENCE SHALL BE SERVED DAY-FOR-
DAY.

     WALLER, C.J., CARLSON, P.J., LAMAR, KITCHENS, CHANDLER AND
PIERCE, JJ., CONCUR.   GRAVES, P.J., CONCURS IN RESULT ONLY.
DICKINSON, J., CONCURS IN PART AND RESULT WITHOUT SEPARATE
WRITTEN OPINION.




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