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IN THE COURT OF APPEALS 12/3/96 OF THE STATE OF MISSISSIPPI
NO. 92-KA-01262 COA

CHARLES PRINGLE 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: HONORABLE WILLIAM F. COLEMAN COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: THOMAS FORTNER ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART NATURE OF THE CASE: SHOOTING INTO AN OCCUPIED DWELLING TRIAL COURT DISPOSITION: CONVICTED OF SHOOTING INTO AN DWELLING AND SENTENCED TO SERVE A TERM OF 10 YEARS IN THE CUSTODY OF MDOC.

BEFORE FRAISER, C.J., KING, AND PAYNE, JJ. KING, J., FOR THE COURT:

Charles Pringle was convicted in the Circuit Court of the First Judicial District of Hinds County of shooting into an occupied dwelling. He was sentenced to serve ten years in the custody of the Mississippi Department of Corrections. He appeals his convictions, assigning two points of error: (1) the trial court erred in allowing the jury to take portions of a transcript into deliberations that were not admitted into evidence; and (2) the trial court denied him the right to a speedy trial. Finding merit in Pringle's first argument, we reverse and remand for a new trial. FACTS On September 24, 1990, Charles Pringle, Raymond Washington, Denice Brown, and several acquaintances were allegedly involved in a fight at a neighborhood grocery store. One of the young men involved in the skirmish was shot in the hip by the store's owner. He was taken to the hospital, by Pringle and Washington, to receive medical attention. Sometime thereafter Pringle and Washington left the hospital and went to their respective homes. Later that evening, someone fired several shots at the home of Denice Brown, Pringle's former girlfriend. Ms. Brown alleged that Pringle and Washington fired the shots from the street. A warrant was issued in Hinds County for Pringle's arrest, but he was not apprehended at that time. In November of 1990, Pringle was arrested and charged with armed robbery in Madison County. On May 30, 1991, Jackson Police served Pringle with a warrant for his arrest for his alleged involvement in the shooting into Ms. Brown's home. The Hinds County grand jury indicted Pringle on the shooting charge in August of 1991. On August 28, 1991, Pringle was arraigned and then returned to the Madison County jail until September 3, 1991, when he was transported to Parchman to begin serving a fifteen-year sentence for armed robbery. Hinds County set trial dates in November of 1991 and in August of 1992 to try Pringle for the shooting incident. However, Pringle was not brought to trial at those times, and there is no record of continuances granted to either Pringle or the State. In August of 1992, Pringle made a motion to dismiss for violation of his right to a speedy trial. The court denied this motion, and Pringle was brought to trial on September 9, 1993. Prior to Pringle's trial, Raymond Washington pled guilty to the charge of shooting into an occupied dwelling. During his plea hearing, Washington testified that even though Pringle was in the car with him, Pringle did not have a gun and did not fire any shots at Brown's home. However, when testifying in the present case, Washington stated that Pringle was not present when the shooting occurred. Washington attributed the inconsistent statements to his having misunderstood the prosecutor during the plea hearing. He explained that he thought the prosecutor was asking whether Pringle was with him earlier that day. Neither party sought to have the transcript from Washington's guilty plea hearing introduced into evidence. After the close of evidence and arguments, the jury deliberated for one hour and forty minutes. Thereafter, the jury sent a note to the court requesting portions of the transcript from Washington's guilty plea hearing. Specifically, the jury requested the pages of the transcript that contained Washington's testimony that placed Pringle with him when the incident occurred. After overruling the Defendant's objection that the transcript was not admitted into evidence, the court granted the

jury's request. Reasserting the objection, the defense then asked the court to include related portions of the transcript so that the jury might view the statements in the context in which Washington made them. The court sent the requested pages of the transcript into the deliberations without instructing the jury whether the transcript should be used as impeachment or substantive evidence. Within thirty minutes of receiving the transcript, the jury found Pringle guilty of shooting into an occupied dwelling. Pringle was sentenced to ten years imprisonment, to be served consecutively with a fifteenyear sentence received in Madison County. I. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE JURY TO CARRY PAPERS INTO DELIBERATIONS THAT WERE NOT ADMITTED INTO EVIDENCE.

During deliberations, the jury requested portions of a transcript made during the guilty plea hearing of defense witness Raymond Washington. Washington gave testimony on cross-examination about his guilty plea testimony, but the transcript was not admitted into evidence. Pringle argues that the trial court committed reversible error when it allowed the jury to carry portions of Raymond Washington's guilty plea transcript into deliberations. Because the transcript had not been admitted into evidence, Pringle contends that the trial court violated his right to due process as well as section 99-17-37 of the Mississippi Code and Rule 5.14 of the Uniform Criminal Rules of Circuit Court Practice. The rule is well established in Mississippi that the relevancy and admissibility of evidence are within the discretion of the trial judge. Craft v. State, 656 So. 2d 1156, 1163 (Miss. 1995); Parker v. State, 606 So. 2d 1132, 1137-38 (Miss. 1992). "That discretion must be exercised within the scope of the Mississippi Rules of Evidence and reversal will only be had when an abuse of discretion results in prejudice to the accused." Parker, 606 So. 2d at 1137-38. Pursuant to Mississippi Rule of Evidence 103, this Court will reverse if the trial court violated a substantial right of a defendant and an objection was made on the record. King v. State , 615 So. 2d 1202, 1206 (Miss. 1993). We recognize a defendant's right to a fair and impartial trial to be a substantial right. Id. Pringle challenges the trial court's ruling under section 99-17-37 and Rule 5.14. Both the statute and the rule permit the jury to take into deliberations only those papers admitted into evidence during trial. See Miss. Code Ann.

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