                         IN THE COURT OF APPEALS
9/9/97


                                   OF THE


                           STATE OF MISSISSIPPI




                            NO. 95-KA-00885 COA




BOB WASHINGTON 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. HON. JOHN B. TONEY

COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: JAMES A. BOBO

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: JOLENE M. LOWRY

DISTRICT ATTORNEY: RICK MITCHELL
NATURE OF THE CASE: CRIMINAL - MURDER

TRIAL COURT DISPOSITION: SENTENCED TO LIFE IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS.

MOTION FOR REHEARING FILED:9/25/97

CERTIORARI FILED: 12/11/97

MANDATE ISSUED: 4/1/98




BEFORE BRIDGES, C.J., HINKEBEIN, AND KING, JJ.

HINKEBEIN, J., FOR THE COURT:


Bob Washington was convicted in the Rankin County Circuit Court of murder. Washington was
sentenced to serve a term of life imprisonment in the custody of the Mississippi Department of
Corrections. Aggrieved by his conviction, Washington appeals to the Court on the following
grounds:




I. THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S MOTION FOR JUDGMENT
NOTWITHSTANDING THE VERDICT OR IN THE ALTERNATIVE, A NEW TRIAL.


II. THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S MOTION TO STRIKE THE
SPECIAL VENIRE.


III. THE TRIAL COURT ERRED IN ALLOWING A LAY WITNESS TO OFFER OPINION AS TO
WHETHER THE APPELLANT ACTED IN SELF-DEFENSE.


We find the issues raised by Washington do not warrant a reversal of his conviction. Accordingly, we
affirm the judgment of the trial court.


                                              FACTS

In December 1993, Bob Washington owned and operated a small business known as Action Roofing
out of a boathouse near his home in the Robinhood Community of Rankin County. On the day he
died, Keith Puckett had been working for Washington nine days. The morning of the incident,
Puckett and a co-worker, Joe Mitchell, met with their boss. Both men asked Washington when they
could expect to be paid. Washington reminded the pair that they were not due to be paid until the
next day. He nonetheless suggested that he might have something to tide them over. He told them to
check with him later. Mitchell and Puckett then left for a roofing project in Meridian. Thereafter,
Washington directed his bookkeeper, Debra Wigley, to deposit additional funds in his bank account.
When Puckett and Mitchell returned to Rankin County, Wigley wrote two checks. One check was
intended for Mitchell and the other for Puckett; however, both were made to Mitchell as Puckett had
no identification with which to get the check cashed. Mitchell was informed of the recent deposit.
But neither he nor Puckett apparently understood that the funds would not be available for immediate
withdrawal. The two men then attempted, unsuccessfully, to cash the checks.

Puckett grew angry. He insisted on returning to Washington's boathouse/business. Mitchell drove.
Upon their arrival, Mitchell remained in the vehicle searching for the checks, which the pair had
misplaced in transit. Puckett found Ricky Ballard and Washington in the boathouse and set about
giving Washington a piece of his mind. Although he never threatened to kill Washington, Puckett did
threaten to "kick his ass." He refused to leave until he got his money. As the argument escalated,
Mitchell, still unable to locate the checks, stepped inside the door. Both he and Ballard watched in
silence. Washington remained relatively calm until Puckett called him a "cheap, chiseling son of a
bitch." Upon hearing those words, Washington pulled out his .44 magnum handgun. Only then did
Puckett make any threatening moves toward Washington. He picked up a chair and raised it above
his head as if he might swing it at Washington. Washington fired the gun. Puckett dropped the chair
and crouched on the floor. He said he was going. At that moment Mitchell retreated, rounding the
corner of the building before stopping to look back. Meanwhile, Washington moved closer to
Puckett. Standing over the already wounded man, he fired again. At this point, Ballard ran into the
bathroom and locked the door. Puckett exited the building and fell onto the grass just outside the
door. From within the structure, Washington shot him yet again. Puckett only flinched. Then
Washington walked beside Puckett's lifeless body and kicked him in the face, shot him again, and spit
on him. Mitchell, who was still watching unbeknownst to Washington, slipped away to call the
Rankin County Sheriff's Department.

After the shooting, Ballard and Wigley viewed Puckett's body lying in the grass. Neither noticed
anything in his hands. However, the paramedics (after Washington had been left alone with the body)
subsequently discovered a knife clutched in Puckett's hand. The knife was Washington's and usually
remained on a table inside.

Bob Washington was thereafter indicted by the Rankin County Grand Jury and charged with the
crime of murder. At trial the jury returned a guilty verdict and Washington was sentenced to a term
of life imprisonment. It is from this conviction that Washington brings this appeal.

I. THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S MOTION FOR JUDGMENT
NOTWITHSTANDING THE VERDICT OR IN THE ALTERNATIVE, A NEW TRIAL.


Following his conviction, Washington moved for judgment notwithstanding the verdict or in the
alternative, a new trial. His motion contained a cursory claim that the verdict was contrary to the law
and the weight of the evidence. Here, he elaborates. Washington argues that the facts support at best
a conviction for manslaughter, not murder. On this basis, he requests a new trial. The State contends
that there is in the record substantial evidence of such quality and weight that reasonable jurors in the
exercise of impartial judgment might have found Washington guilty of murder. We agree with the
State.

The motion for judgment of acquittal notwithstanding the verdict tests the legal sufficiency of the
evidence supporting the verdict of guilty. McClain v. State, 625 So. 2d 774, 778 (Miss. 1993).
Where the defendant has moved for JNOV, the trial court must consider all of the credible evidence
consistent with the defendant's guilt. McClain, 625 So. 2d at 778. The prosecution must be given the
benefit of all favorable inferences that may be reasonably drawn from this evidence. Id. This Court is
authorized to 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 n.3 (Miss. 1987).

Only a slightly greater quantum of evidence favoring the State is necessary to withstand a motion for
new trial. As distinguished from the motion for JNOV, the defendant here is asking that the jury's
verdict be vacated on grounds related to the weight of the evidence, not its sufficiency. May v. State,
460 So. 2d 778, 781 (Miss. 1985). The Mississippi Supreme Court has repeatedly held that the jury
bears sole responsibility for determining the weight and credibility of evidence. May, 460 So. 2d at
781. Therefore, we are without the power to set aside a guilty verdict unless we are convinced it is
the result of prejudice, bias, fraud, or is manifestly against the weight of the credible evidence.
Pearson v. State, 428 So. 2d 1361, 1364 (Miss. 1983). We will reverse and order a new trial only
upon a determination that the trial court abused its discretion, accepting as true all evidence favorable
to the State. McClain, 625 So. 2d at 781.

With regard to Washington's claim that the facts do not support a conviction of murder, the use of a
deadly weapon in the killing of a human being raises a presumption of malice which characterizes a
homicide as murder. Dickens v. State, 408 Miss. 69, 92, 43 So. 2d 366, 373 (1949). A killing with a
deadly weapon may be explained by the accused or eyewitnesses as an accident or justified as having
been committed by the accused acting in lawful self-defense or mitigated manslaughter. Nicolaou v.
State, 534 So.2d 168, 172 (Miss. 1988). However, without such an explanation, the presumption
stands. Dickens, 208 Miss. at 92, 43 So. 2d at 373.

Washington's exhibition of a .44 magnum revolver even before any advances were made against him
suggests malice. See Russell v. State, 497 So. 2d 75, 76 (Miss. 1986) (citing Fairchild v. State, 459
So. 2d 793 (Miss. 1984); Smith v. State, 205 Miss. 283, 38 So. 2d 725 (1949)); see also Brown v.
State, 98 Miss. 786, 54 So. 305 (1911). Washington relies upon Dedeaux v. State, 630 So. 2d 30
(Miss. 1993), where an individual was charged with murder, yet the overwhelming proof supported
only manslaughter. Failure to instruct the jury regarding the lesser-included offense supported a
finding of manifest injustice. Dedeaux, 630 So. 2d at 33. As a result, the Mississippi Supreme Court
ordered re-sentencing. Id. Washington argues that he, like Dedeaux, overcame the inference of
malice with his claim of justification. However, this jury was fully and correctly instructed upon the
applicable principles of law. In addition, we can find no basis for justification of the killing which
would allow the jury to return a verdict for the lesser-included offense.

Washington's claim of self-defense was fully and fairly presented and was also resolved against him.
See Smith v. State, 463 So. 2d 1102, 1103 (Miss. 1985); Rush v. State, 278 So. 2d 456 (Miss. 1973).
The possibility that Puckett could have grabbed the knife from the table and threatened Washington
with it seems unlikely. Ballard testified that, up to the point at which he hid in the restroom, Puckett
definitely had no knife. Mitchell testified that after the two emerged from the building, he saw no
knife in Puckett's hand. For Puckett to have threatened Washington he must have (1) lifted himself
from the floor after being shot twice, (2) moved past Washington, and (3) grabbed the knife within a
span of only a few seconds. Additionally, both Ballard and Wigley viewed Puckett's body
immediately following the incident yet prior to the arrival of paramedics and law enforcement
personnel; neither saw a knife.

Reasonable and fair-minded jurors might well have found Washington guilty of murder beyond a
reasonable doubt based on these facts. As a result, this assignment of error is without merit.

II. THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S MOTION TO STRIKE THE
SPECIAL VENIRE.


Washington claims to have been denied his right to an impartial jury and due process of law. In
support of his contention, he cites Article 3, Section 26 of the Mississippi Constitution of 1890 and
Amendments VI and XIV of the United States Constitution. He also argues that black citizens in
Rankin County were denied their right to serve as jurors "in numbers approaching their statistical
occurrence in the community." The State asserts that Washington is procedurally barred from raising
this alleged error on appeal. We agree with the State.

It is fundamental to the principles of appellate review that a trial judge may not be put in error on a
matter which was not presented to him for decision. Holland v. State, 587 So. 2d 848, 868 (Miss.
1991) (citing Pruett v. Thigpen, 665 F. Supp. 1254, 1262 (N.D. Miss. 1986); Read v. State, 430 So.
2d 832, 838 (Miss. 1983); Ponder v. State, 335 So. 2d 885, 886 (Miss. 1976); Stringer v. State, 279
So. 2d 156, 157-58 (Miss. 1973)). Generally, this means that the matter must be presented to the trial
court in such a form that the trial judge has the opportunity to consider it with full knowledge of the
respective contentions of the parties. House v. State, 445 So. 2d 815, 819 (Miss. 1984). Therefore,
the presentation of specific basis for objection necessarily operates as a waiver of all other grounds.
Conner v. State, 632 So. 2d 1239, 1255 (Miss. 1993); see also McGarrh v. State, 148 So.2d 494,
506 (1963) (holding that objection cannot be enlarged before appellate court so as to embrace
omission not complained of at trial).

A special venire was ordered and drawn in this case. Of 150 persons drawn, 47 were seated. This
group's racial make-up was 89% white. However, Rankin County is only 85% white. As a result,
Washington moved to strike the panel. Defense counsel cited Article III, Section 26 of the
Mississippi State Constitution and the Fourth Amendment of the United States Constitution. The trial
court denied the motion. Defense counsel mentioned neither the Sixth nor Fourteenth Amendments.
Moreover, he never uttered the words "equal protection."

The trial judge had no opportunity to consider possible Sixth or Fourteenth Amendment violations.
See Holland, 587 So. 2d at 868, n.18; Conner, 632 So. 2d at 1255. As a result Washington waived
appeal of these issues. This assignment of error is without merit.

III. THE TRIAL COURT ERRED IN ALLOWING A LAY WITNESS TO OFFER OPINION AS TO
WHETHER THE APPELLANT ACTED IN SELF DEFENSE.


It is elementary that to preserve alleged error for review there must be a contemporaneous objection.
King v. State, 615 So. 2d 1202, 1205 (Miss. 1993) (citing Smith v. State, 530 So. 2d 155, 161-62
(Miss. 1988)). As previously stated, the basis for an objection cannot be enlarged by this court to
address a complaint not raised at trial. Conner, 632 So. 2d 1239. Moreover, if an appellant does not
raise an issue in the pleadings, the transcript, or the rulings, he absolutely must raise it within his
motion for new trial. If not, he is procedurally barred from raising the error on appeal. Ross v. State,
603 So.2d 857 (Miss. 1992).

Defense counsel objected to the form of the question in issue, not the substance. During the trial, the
assistant district attorney asked Mitchell if, based on his observations, Washington acted in self-
defense. Mitchell replied "no." While defense counsel repeatedly objected to the prosecution's leading
of Mitchell in the moments prior to this question, no objection whatsoever followed it. No mention of
this exchange appears in Washington's motion for JNOV/new trial. Washington merely alleged: "The
Court erred in overruling all objections made by the Defendant and sustaining all objections made by
the State." Such an assertion is woefully inadequate. Washington never presented this particular
matter to the trial court. We may not now assign error to a decision the lower court had no
opportunity to make. Therefore, we have no choice but to affirm without reaching Washington's
substantive argument.

THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT OF CONVICTION OF
MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF THIS APPEAL ARE
ASSESSED TO RANKIN COUNTY.


BRIDGES, C.J., McMILLIN AND THOMAS, P.JJ., COLEMAN, DIAZ, KING, PAYNE,
AND SOUTHWICK, JJ., CONCUR. HERRING, J., CONCURS WITH SEPARATE
WRITTEN OPINION JOINED BY PAYNE AND SOUTHWICK, JJ.


                                   IN THE COURT OF APPEALS
9/9/97


                                               OF THE


                                      STATE OF MISSISSIPPI




                                       NO. 95-KA-00885 COA
BOB WASHINGTON 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



HERRING, J., CONCURRING:


While I agree with the ruling of the majority, I respectfully write separately to voice my disagreement
with the rationale utilized in dealing with two issues raised by the Appellant. For the sake of clarity,
the issues raised by Washington will be addressed in the order in which they appear in the majority
opinion.

I. THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S MOTION FOR JUDGMENT
NOTWITHSTANDING THE VERDICT OR IN THE ALTERNATIVE, A NEW TRIAL.


I wholly agree with the majority's opinion on this issue.

II. THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S MOTION TO STRIKE THE
SPECIAL VENIRE.


As to this issue, I am concerned by the fact that the Appellant objected to the special venire on state
and federal constitutional grounds, yet he failed to cite the proper amendment to the United States
Constitution in support of his objection. While I certainly agree with the Majority that an objection at
trial on specific grounds normally serves as a waiver of all other grounds for objection, I am not
convinced that this rule applies in the case sub judice.

At trial, Washington moved the court to strike the special venire. In making this motion, defense
counsel stated:
We would further object, Your Honor, in that, as I understand it, Rankin County, Mississippi, is
somewhere around 85 percent white. From the count previously stated in the record, there are only
black - - 5 black members of this panel. 5 into 47 is less than 190, which is below the 15 percent that
make up the composition of Rankin County, Mississippi.

We would ask that this panel be stricken, Your Honor, and that a new one be brought under Article
III, Section 26 of the Mississippi State Constitution and by Fourth Amendment to the United States
Constitution. (emphasis added).


By his objection, Washington raises an equal protection issue pursuant to the Fourteenth Amendment
to the United States Constitution. Although it is true that Washington did not cite the Fourteenth
Amendment in support of his objection, I would hold that it is clear from the objection stated above
that a denial of "equal protection of the laws" was the true basis of the objection. It appears likely
that defense counsel simply misspoke when he cited the Fourth Amendment to the United States
Constitution instead of the Fourteenth Amendment, since neither his objection nor the facts of the
case have anything to do with an illegal search or seizure. Thus, given the gravity of the crime
charged, I would hold that this issue was properly preserved by Washington for appellate review.

However, looking to the substance of Washington's claim, I would also hold that the argument that
Washington was denied equal protection of the law because of the trial court's failure to strike the
special venire has no merit. A challenge to a venire on racial composition grounds must satisfy the
standard set forth by the United States Supreme Court in Castaneda v. Partida, 430 U.S. 482, 494
(1977). The court further refined this standard into a three-part test in Duren v. Missouri, 439 U.S.
357 (1979). In Duren, the court held that in order to prevail on this issue, an appellant must prove
(1) that the group alleged to be excluded is a distinctive group in the community, (2) that the
representation of this group in venires from which juries are selected is not fair and reasonable in
relation to the number of such persons in the community, and (3) that this under-representation is due
to a systematic exclusion of the group in the jury-selection process. See Lanier v. State, 533 So. 2d
473 (Miss. 1988) (adopting Duren); Simon v. State, 688 So. 2d 791, 805 (Miss. 1997) (following
Lanier).

Furthermore, the Mississippi Supreme Court has adopted the United States Supreme Court's
reasoning in Taylor v. Louisiana, 419 U.S. 522 (1975), where the court held that "[i]t should be
emphasized that in holding that petit juries must be drawn from a source fairly representative of the
community we impose no requirement that petit juries actually chosen must mirror the community
and reflect the various distinctive groups in the population. Defendants are not entitled to a jury of
any particular composition." Taylor, 419 U.S. at 538. (quoted in Harris v. State, 576 So. 2d 1262,
1263 (Miss. 1991)).

Applying the test set out in Castaneda and its progeny to the case sub judice, there is no doubt that
African Americans are a distinct group in the community. Therefore, the first requirement of the
Duren test is easily satisfied. On the other hand, when looking to the second and third requirements, it
seems quite clear that a jury pool of which slightly over ten percent are African Americans, is
reasonable and fair in relation to the African American population of Rankin County, Mississippi,
which was approximately fifteen percent of the total population at the time of trial.(1) Absent some
specific showing of systematic exclusion, I would affirm the trial court's ruling on this issue.




III. THE TRIAL COURT ERRED IN ALLOWING A LAY WITNESS TO OFFER OPINION AS TO
WHETHER THE APPELLANT ACTED IN SELF-DEFENSE.


While I agree with the Majority's ruling on this issue, I would affirm for a slightly different reason. I
would simply hold that this issue is barred because it was waived once Washington objected to the
State's question as leading, without raising any objection to the question on the grounds that an
improper opinion of a lay witness was requested. As the majority aptly points out, the presentation of
a specific basis for objection necessarily operates as a waiver of all other grounds for objection.
Conner v. State, 632 So. 2d 1239, 1255 (Miss. 1993).

PAYNE AND SOUTHWICK, JJ., JOIN THIS SEPARATE WRITTEN OPINION.

1. The only evidence presented at trial concerning the racial composition of the citizens of Rankin
County was the statement of counsel for the appellant. No data or affidavits or other evidence was
presented to verify his statement. For purposes of this opinion only, I will accept the statements of
counsel as to the county's racial composition.
