                         IN THE COURT OF APPEALS
7/29/97


                                  OF THE


                           STATE OF MISSISSIPPI




                            NO. 95-KA-00596 COA




JERRY SORRELLS A/K/A JERRY SORRELLS II 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. BARRY W. FORD

COURT FROM WHICH APPEALED: ITAWAMBA COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: BILLY W. SHELTON

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: PAT FLYNN

DISTRICT ATTORNEY: SAMUEL REEDY
NATURE OF THE CASE: CRIMINAL-FELONY

TRIAL COURT DISPOSITION: CT I: BURGLARY: 7 YRS. AND COURT COSTS; CT II:
AGGRAVATED ASSAULT ON POLICE OFFICER: 20 YRS; SENTENCES TO RUN
CONCURRENTLY; DEFENDANT IS TO BE AFFORDED DRUG & ALCOHOL TREATMENT

CERTIORARI FILED: 11/6/97

MANDATE ISSUED: 8/19/97




BEFORE BRIDGES, C.J., COLEMAN, AND SOUTHWICK, JJ.

SOUTHWICK, J., FOR THE COURT:


Jerry Sorrells was found guilty in the Itawamba County Circuit Court of burglary and aggravated
assault on a police officer. He appeals arguing the court erred in admitting his prior testimony from a
bond hearing and in admitting into evidence a baseball bat and a gun. Sorrells also alleges the trial
court erred in refusing to give a circumstantial evidence jury instruction, in granting the State's
instruction on aiding and abetting, in failing adequately to review the transfer order from youth court,
and in failing to ask the defense counsel if he would like to make an opening statement. He also
challenges the sufficiency of the evidence to convict him and the effectiveness of his counsel. We find
no merit in any of these allegations and affirm.


                                                FACTS

Jerry Sorrells was a passenger in a car with four other people. Sorrells alleges that one of the other
passengers, David Bullington, was a former prison inmate with a reputation for violence. Thus when
Bullington ordered the car to be driven to a drug store in Fulton so that they could break in, Sorrells
argues that he had little choice but to agree. Bullington and one of the other occupants of the car
took a baseball bat, broke the window and entered the drug store. Sorrells and the remaining two
waited in the car. Sorrells testified that he was following Bullington's order to remain as a lookout
and shoot at any police cars that showed up. Use of the baseball bat on the window managed to
activate an alarm. Police cars appeared, and shots were exchanged, at least fourteen of which struck
one of the police cars.

All except for Sorrells were arrested at or near the scene. Sorrells was arrested the next morning
hiding in the bathroom of a gas station not far from the drug store.


                                            DISCUSSION

I. Admissibility of Prior Testimony, Baseball Bat, and Gun

A. Prior Testimony
Sorrells testified at a bond reduction hearing that he shot at the police cars because Bullington
ordered him to do so. Sorrells was represented by counsel at that hearing and gave his statement
under oath. The State, over objection, read this testimony into the record at trial. Sorrells argues the
prior testimony was hearsay, and the court erred in allowing it where it was not shown that the
declarant was unavailable to testify. M.R.E. 804(b)(3).

Sorrells is correct that the cited rule explicitly requires as a condition of admitting a statement against
interest that the declarant be unavailable. M.R.E. 804 (a). The objection made at trial was that the
prior statements were taken at a bond hearing and that their use beyond that hearing would be a
violation of Sorrell's rights against self-incrimination.

First, there is nothing in the evidentiary or procedural rules, in statute, nor in an agreement that
appears of record or is even hinted exists, that what a defendant said at the bond hearing could only
be used for that purpose. Second, Rule 804(b) was not argued by the State nor cited as the reason by
the trial court for the admission of this prior testimony. No evidentiary rule was. The transcript from
the bond hearing was an admission by a party opponent. M.R.E. 801(d)(2). Under the Rule, a party's
own statement is not even categorized as hearsay when offered against that party. M.R.E. 801(d)(2).
There was no error in this admitting this evidence.

B. Baseball Bat

Sorrells argues the court erred in allowing introduction of the baseball bat which was used to break
into the pharmacy. His argument is that the bat was not relevant in that it was not shown that he used
it. Some of the others involved in the crime wielded the bat.

Evidence as to the condition of the crime scene and objects found at the scene are admissible if
relevant and not remote in time and place. Rhodes v. State, 676 So. 2d 275, 282-83 (Miss. 1996),
citing Wilkins v. State, 264 So. 2d 411, 413 (Miss. 1972). It is within the discretion of the trial judge
to determine whether burglary tools found near the scene of a burglary are near enough in time and
place to be of probative evidentiary value. Id. The baseball bat was found at the scene when the police
arrived. The bat was evidence of the overall crime in which the State was trying to prove Sorrells
participated. It was not remote in time and place. There was no error in its admission.


C. Gun

Sorrells argues that the court erred in allowing introduction of the gun which he used in the crime
because it did not belong to him and, the prosecutor did not show that his fingerprints were on it.
Sorrells admitted to using a gun to shoot at the police cars, but did not admit to using the particular
gun in evidence. The gun, which was the type of gun used in the crime, was found in a ditch that
Sorrells crossed to get to the place where he was hiding when he was arrested. Empty hulls from the
gun were also found at scene of the crime.

The admission of the gun was a discretionary decision for the trial judge. It was unnecessary for the
State to demonstrate conclusively that the gun was the one used in the crime. See Rhodes v. State,
676 So. 2d 275, 282 (Miss. 1996). Since Sorrells admitted to using a gun similar to this one, the only
evidentiary effect was to give the jury a clearer understanding of uncontested evidence.
II. Jury Instructions

A. Circumstantial Evidence Instruction

Sorrells argues the court erred in refusing to grant him a circumstantial evidence instruction.

A circumstantial evidence instruction is given where the evidence is "wholly circumstantial."
Windham v. State, 602 So. 2d 798, 800 (Miss. 1992). If there is any direct evidence, then the
instruction is properly refused. Givens v. State, 618 So. 2d 1313, 1318 (Miss. 1993). In this case,
there was direct testimony from eyewitnesses and even from Sorrells. The circumstantial evidence
instruction was properly denied.

B. State's Instruction on Aiding and Abetting

Sorrells argues the court erred in granting the State's instruction S-4 on aiding and abetting because it
did not take into account the intent to commit the crime of burglary.

Jury instruction S-4 stated:

The Court instructs the Jury that any person aiding, abetting, counseling or procuring the commission
of a felony is as guilty as the one who actually committed it. Every person present at the time of, and
encouraging or assisting the commission of, a crime or performing any act which is a part of the
crime or immediately connected with it, is as guilty as if he had with his own hand committed the
entire offense.

Therefore, if you find from the evidence in this cause beyond a reasonable doubt that Jerry Sorrells
was present at the time and place where burglary of a building took place, and that he encouraged or
assisted in the commission of that crime or performed any act immediately connected with it, then he
is as guilty as if he had with his own hand committed the entire offense.


The court will view the questioned instruction in light of all other instructions which were given to
determine whether the jury received accurate guidance. Griffin v. State, 494 So. 2d 376, 381 (Miss.
1986). There is no duty upon a court to give repetitious instructions, and that is in effect the duty
being urged here. The intent necessary for burglary was covered in instruction S-1. The jury was
adequately instructed.

III. Transfer Order from Youth Court

Sorrells argues the court erred in failing to review adequately the transfer order from youth court to
circuit court. He raised this issue on the morning of the trial after the jury was seated. He did not ask
for a hearing on the matter, but asked that the court review the transcript.

The transfer order showed that Sorrells was represented by counsel during the transfer proceeding,
and that he, his mother, and his counsel waived a probable cause hearing. Pursuant to Sorrells's
request, the court stated on the record that it reviewed the transcript and found substantial evidence
to try Sorrells as an adult and properly certified him as such. We find this assignment without merit.
IV. Opening Statement

Sorrells argues that the court erred in not asking his attorney if he wanted to make an opening
statement. There is authority that refusing to permit an opening statement can be reversible error.
Bevill v. State, 556 So. 2d 699, 710 (Miss. 1990). That is not the equivalent of establishing a trial
court-duty to ask the defendant or his counsel if he wants to give one. Sorrells was not denied the
opportunity to give an opening statement. Had such an opportunity been requested and denied, an
issue for review would be presented.

V. Sufficiency of the Evidence

Sorrells argues that, absent his own prior testimony, there was insufficient evidence to convict him.
Because we find that his prior testimony was admissible, this assignment of error is moot.

VI. Effective Assistance of Counsel

Sorrells argues that he was denied his right to effective assistance of counsel because the court denied
his lawyer's request for a recess due to exhaustion. Sorrells's attorney asked the court to recess for
the day at 5:50 p.m., informing the judge that he was 64 years of age, tired, and losing his voice. The
court denied his motion, allowed one more witness to be examined, then recessed at 6:40, less than
an hour later.

The trial judge has authority to determine when trials begin and how long they will continue during a
given day. Dye v. State, 498 So. 2d 343, 344 (Miss. 1986). Where the defendant was not prejudiced,
the Mississippi Supreme Court has refused to reverse trials which were continued into the evening
hours. See Fairley v. State, 483 So. 2d 345 (Miss. 1986). Defense counsel cannot control a trial
court's scheduling of a trial, but neither can the court ignore genuine loss of effectiveness of counsel
that jeopardizes the fairness of the trial. If such an extreme is exceeded, reversal can result. Parker v.
State, 454 So. 2d 910 (Miss. 1984) (finding where defense counsel was seventy years old, ill, and the
motion to recess was denied at 10:00 p.m. rendered counsel ineffective); Grimsley v. Tyner, 454 So.
2d 482 (Miss. 1984) (finding where the case was submitted to the jury at 11:00 p.m. and the jury
deliberated until 4:30 a.m. rendered verdict suspect).

There is no evidence that Sorrells was denied his right to effective assistance of counsel.

THE JUDGMENTS OF THE ITAWAMBA COUNTY CIRCUIT COURT OF CONVICTION
OF BURGLARY OF A BUILDING AND SENTENCE OF SEVEN YEARS AND OF
CONVICTION OF AGGRAVATED ASSAULT ON A POLICE OFFICER AND SENTENCE
OF TWENTY YEARS, WITH SENTENCES TO RUN CONCURRENTLY, ALL IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, ARE AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE DEFENDANT.


BRIDGES, C.J., McMILLIN AND THOMAS, P.JJ., COLEMAN, DIAZ, HERRING,
HINKEBEIN, KING, AND PAYNE, JJ., CONCUR.
