As far as Johnson's argument that Goodman's explanation testimony was hearsay, we find that it is without merit. In Fairley v. State, 349 So.2d 1050, 1052 (Miss. 1977), this Court found that hearsay testimony elicited by the State's attorney was not error where "[t]he record clearly disclose[d] that defense counsel provoked the questions by the district attorney because he first interrogated Fountain, the state's witness, at great length on the same subject" therefore "the hearsay testimony responsive to the district attorney's questions was not error." Fairley, 349 So.2d at 1052 (citing Stone v. State, 210 Miss. 218, 49 So.2d 263 (1950), and Barnes v. State, 164 Miss. 126, 143 So. 475 (1932)).
Price, 336 So.2d at 1312. This holding is augmented by the subsequent cases of Blanks v. State, 451 So.2d 775 (Miss. 1984) and Fairley v. State, 349 So.2d 1050 (Miss. 1977) and by Rule 4.04 of the Mississippi Uniform Criminal Rules of Circuit Court Practice which states, in pertinent part, that "[t]he granting or refusing of severances of defendants in cases not involving the death penalty shall be in the discretion of the trial judge." This leads, necessarily, to the question of whether the lower court's refusal to grant a motion for severance was an abuse of his discretion.
Appellants further argue that, even if the right to severance is discretionary, the trial court abused its discretion in this case since, though each defendant had a right to call the co-defendant as a witness, each co-defendant had a right to invoke the Fifth Amendment. This argument was previously advanced and rejected under similar facts in Fairley v. State, 349 So.2d 1050 (Miss. 1977). Appellants' constitutional argument is without merit and the denial of severance did not constitute an abuse of discretion.
The granting of a severance is discretionary with the judge and, in our opinion, the lower court did not abuse its discretion in declining to grant the severance. Fairley v. State, 349 So.2d 1050 (Miss. 1977); Price v. State, 336 So.2d 1311 (Miss. 1976). II.
(Damaging to defendant). The decision of the lower court to grant or deny a motion for severance is discretionary and is reversible only where it constitutes an abuse of discretion. Ivory v. State, supra; Fairley v. State, 349 So.2d 1050 (Miss. 1977); Price v. State, 336 So.2d 1311 (Miss. 1976); Wall v. State, 51 Miss. 396 (1875).
Furthermore, it is not error if the district attorney elicits hearsay statements that are provoked by defense counsel's previous questioning of that witness on the same subject matter. Fairley v. State, 349 So.2d 1050, 1052 (Miss. 1977). ¶ 29.
¶ 11. The State argues that Clay provoked the statements in question by requesting that the State "set the predicate," and thus the statements were admissible. Fairley v. State, 349 So.2d 1050, 1052 (Miss. 1977). However, Clay did not provoke the conclusion made by Garner that the prescription was a forgery.
Upon redirect examination, the prosecutor merely asked that she explain her response to Levy's question. "In this posture, the hearsay testimony responsive to the district attorney's questions was not error." Fairley v. State, 349 So.2d 1050, 1052 (Miss. 1977). We find no merit in this argument.