Opinion
No. 2004-KA-01104-COA.
October 11, 2005. Petition for Rehearing October 21, 2005.
COURT FROM WHICH APPEALED: PONTOTOC COUNTY CIRCUIT COURT, TRIAL JUDGE: HON. PAUL S. FUNDERBURK, DATE OF JUDGMENT: 4/8/2004
DISPOSITION: AFFIRMED IN PART; REVERSED AND REMANDED
ATTORNEY FOR APPELLANT: JAMES P. JOHNSTONE
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: W. GLENN WATTS
DISTRICT ATTORNEY: JOHN RICHARD YOUNG
BEFORE KING, C.J., MYERS AND ISHEE, JJ.
¶ 1. Eddie L. Walker (Walker) was convicted of aggravated assault after a jury trial in Pontotoc County. Upon his conviction Walker was sentenced to twenty years in the custody of the Mississippi Department of Corrections. Walker now appeals his conviction. Finding error on appeal, we reverse and remand for retrial in accordance with this opinion.
FACTS
¶ 2. Eddie Walker ("Walker") was employed as a mechanic at Crew's Auto Shop in Pontotoc, Mississippi. The shop was owned and managed by Dicky Crews ("Crews"). On September 26, 2000, Crews was away from his shop, and in his absence Crews left James Hitchcock ("Hitchcock"), a co-worker of Walker's, in charge of the shop. Hitchcock and Walker worked together in a relationship that was strained at best. A mere hour and a half into the workday the two men became embroiled in a profanity-laced argument over the proper way to repair an engine that Walker had been working on. Thomas Keys ("Keys"), another co-worker, arrived at work to find Walker and Hitchcock already deeply in the midst of the argument. Keys was outside of the garage when the argument devolved into physical conflict, and he did not witness which man was the initial aggressor in the fight. What Keys did see upon returning to the garage was Hitchcock lying on the ground with blood pooling by his head. Keys testified that he saw Walker standing above Hitchcock with a tire iron in one hand and that Walker was riffling through Hitch cock's pants pockets with his other hand. Keys further testified that Walker turned his attack on him, hitting Keys in the leg with the tire iron. After a protracted struggle, Keys was able to wrest the tire iron from Walker's hands, at which time Walker fled the scene.
¶ 3. Mike McGowan("McGowan") of the Pontotoc County Sheriff's Department took pictures of the scene and retrieved the tire iron from the shop. The tire iron had no special markings or serial numbers, and was moved several times while in the custody of the Sheriff's Department. Walker objected at trial to the admission of the tire iron. However, his objection was overruled and Keys testified that the tire iron presented at trial was indeed the same tire iron from the shop that was in Walker's hands. Walker was subsequently convicted and sentenced to twenty years in the custody of the Mississippi Department of Corrections. Aggrieved by this decision, Walker asserts the following errors on appeal: (1) whether the trial court erred by allowing photographs of the crime scene to be admitted into evidence; (2) whether the trial court erred by allowing the tire iron to be admitted into evidence; and (3) whether the trial court erred by denying the defense counsel's motion to exclude the defendant's prior convictions.
ISSUES AND ANALYSIS
I. Whether the trial court erred by allowing photographs of the crime scene to be admitted into evidence.
¶ 4. Walker asserts on appeal that the foundation for the admission of photographs of the crime scene had not been properly laid, and that as such, the trial court erred by allowing the photographs to be admitted into evidence. Walker further argues that the photographs offered no probative value, and were entered into evidence with the purpose of inflaming the jury. We review the admission of photographic evidence at trial under an abuse of discretion standard. Brown v. State, 682 So. 2d 340, 353 (Miss. 1996).
¶ 5. We begin our analysis by noting that the objection to the photographs brought by Walker on appeal was not brought before the trial court. "Because these arguments are not preserved for appeal, this Court cannot reverse based upon them." Haddox v. State, 636 So. 2d 1229, 1240 (Miss. 1994). This issue is therefore waived. However, assuming arguendo that this issue was preserved for appeal, the record is clear that the foundation for the admission of the evidence was laid through the testimony of McGowan. Furthermore, the photographs were both relevant and probative under Mississippi Rules of Evidence 401 and 403 (b) respectively. The admission of the photographs can not be considered to be an abuse of discretion by the trial court. This issue is without merit.
II. Whether the trial court erred by allowing the tire iron to be admitted into evidence.
¶ 6. Walker next asserts that the trial court abused its discretion by allowing the tire iron to be entered into evidence. Walker argues that little evidence was put forth to establish that the tool admitted into evidence was the same tire iron used in the incident. According to Walker, the chain of custody of the tire iron was questionable and thus raised serious issues regarding its authenticity. Walker states that once the tire iron was taken into custody, it became unclear as to where it was stored, how it was labeled, and who had access to it. Walker argues that the tool was merely in the vicinity of the victim when McGowan arrived on the scene, and that there were no unique markings on the tire iron that could differentiate the tool from those found in most automobile shops. Walker cites the testimony of McGowan who testified that once the tool was placed in a bag, it was taken to the Pontotoc Sheriff's Office, where the precise location of storage of the tool was unclear. McGowan testified that the tool was moved to a storage trailer by some unknown person at some unknown time, and that "after four years, its been moved so many times, digging out other evidence, there may be a different bag on it." In short, Walker asserts that the admission of the tire iron was in error as the State failed to produce "evidence sufficient to support a finding that the matter in question is what the proponent claims" in accordance with M.R.E. 901(a).
¶ 7. The State argues in turn that the testimony of witness Keys was sufficient to establish that the tire iron entered into evidence was indeed the tire iron used by Walker, regardless of the lack of any specialized individual markings. In fact, Keys explained that he had used the very same tire iron for many years during his employment at the automotive shop. Furthermore, McGowan found the tool near to where Hitchcock was lying, and testified that the tire iron produced at trial was the one that he recovered from the scene. Additionally, although the tire iron had been moved frequently at the Pontotoc Sheriff's Office, testimony showed that it was the only tire iron in storage from the time it was bagged as evidence until the trial. The testimony at trial was sufficient to establish the authenticity of the tire iron admitted into evidence. We find this issue to be without merit.
III. Whether the trial court erred by denying the defense counsel's motion to exclude the defendant's prior convictions.
¶ 8. Walker's final assertion of error is that the trial court erred in allowing the State to introduce evidence of Walker's prior conviction for aggravated assault. Walker asserts that the admission of this evidence greatly prejudiced and impeded his defense, and that his conviction was impermissibly used by the State to establish that Walker was the primary aggressor in the incident. Walker also argues that the State failed to provide advanced written notice of its intent to utilize Walker's past aggravated assault conviction as required by M.R.E. 609 (b). M.R.E. 609 (b) provides that the State must give advanced written notice of its intent to introduce evidence of a conviction more than ten years old if "more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction whichever is the later date . . ." The adverse party is given the notice in order to have a fair opportunity to contest the use of such evidence at trial. Although Walker was convicted more than ten years prior to the State's attempt to introduce the evidence at trial, Walker was only released one year prior to his trial. Walker's assignment of error as to the issue of notice is without merit.
¶ 9. The State first argues that Walker has cited no authority for this issue, and that therefore, the assignment has been waived. Edlin v. State, 523 So. 2d 42, 49 (Miss. 1988). Walker has cited the Mississippi Rules of Evidence numerous times in arguing this issue, and these rules certainly constitute the requisite authority necessary to be considered by this Court. The State next argues that the admission of the evidence was proper as his past conviction for aggravated assault goes to Walkers's motive and intent in order to rebut Walker's claim of self-defense.
¶ 10. "Mississippi follows the general rule that proof of a crime distinct from that alleged in the indictment should not be admitted in evidence against the accused." Eubanks v. State, 419 So. 2d 1330, 1331 (Miss. 1982).
The reason and justice of the rule is apparent, and its observance is necessary to prevent injustice and oppression in criminal prosecutions. Such evidence tends to divert the minds of the jury from the true issue, and to prejudice and mislead them, and while the accused may not be able to meet a specific charge, he cannot be prepared to defend against all other charges that may be brought against him. "To permit such evidence," says Bishop, "would be to put a man's whole life in issue on a charge of a single wrongful act, and crush him by irrelevant matter, which he could not be prepared to meet." 1 Bish. Crim. Proc. § 1124.
Floyd v. State, 166 Miss. 15, 148 So. 226 (1933). M.R.E. 404(b) states that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith." M.R.E. 609 (a)(1)(B) states that impeachment by evidence of conviction of a crime "shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the party." The comment to Rule 609 states that the rationale for the rule is based on fairness. "A person's past should not be able to haunt him for the duration of his life." M.R.E. 609, cmt. To further clarify the logic behind this rule, it would be unfairly prejudicial to a defendant to conclude that because the defendant committed a wrong act in the past, he must have committed the act that is the basis of his current charge. The dangers of allowing convictions based upon past behavior are self-evident. Were we to allow such evidence of past crimes without strict limitations, the State would be relieved of its burden to prove the guilt of a defendant as to a given charge by instead relying on a defendant's past criminality as proof of the defendant's current guilt. Furthermore, no defendant would be allowed to fully repay his or her debt to society as the defendant would be shackled with the fear of being convicted anew for past sins.
¶ 11. There are exceptions to this general rule, however. The State may introduce evidence of another crime separate and distinct from the crime charged for the purposes of showing identity, guilty knowledge, intent or motive, or where the offense charged is so interwoven with other offenses that it cannot be separated. Carter v. State, 450 So. 2d 67, 69 (Miss. 1984). These exceptions form the crux of Walker's argument on appeal, as it was the State's contention at trial that the admission of Walker's past conviction for aggravated assault went to his intent to commit an assault on Hitchcock at the automotive shop. Curiously, the State argues that this intent element should be allowed for the purpose of showing that Walker did not act in self-defense in his confrontation with Hitchcock. In short, the State's argument is that is that Walker did not act in self-defense in the current instance because his prior conviction for assault evidences a lack of intent to act in self-defense in the current instance. We surmise that this attempt at establishing intent to commit aggravated assault through logical negation exceeds the exception to the admission of past convictions as contemplated by Carter. The State here is merely arguing that because the defendant committed aggravated assault in the past, he could not have acted in self-defense in the present instance. This line of logic represents precisely the sort of unfair prejudice prohibited by M.R.E. 404 and M.R.E. 609.
¶ 12. An examination of Mississippi case law shows a void of cases where the State has sought to introduce evidence of a defendant's prior conviction in order to rebut a claim of self defense. However, turning to the State of Texas is somewhat instructive in this regard. In Robinson v. State, the Texas Court of Appeals dealt with this precise issue of whether evidence of past crimes is admissible in self-defense cases. Robinson v. State, 844 S.W. 2d 925 (Tex.Ct.App. 1992). In Robinson, the defendant appealed his conviction for murder and sentence of forty years in prison on several grounds, most importantly to our discussion that the trial court erred by allowing into evidence an extraneous offense. Id. at 928. Texas law follows the same general rule as Mississippi in that a defendant's prior crimes or bad acts are generally inadmissible to prove that a defendant has a bad character or a propensity to commit the offense charged. Montgomery v. State, 810 S.W. 2d 372, 386 (Tex.Crim.App. 1990). Furthermore, Texas law is similar to Mississippi law in that such evidence may be admissible for other purposes, such as proof of motive, intent, plan, knowledge, or lack of mistake or accident. Id. at 387; Tex. R. Crim. Evid. 404(b). Likewise, even if evidence of a prior act is otherwise proper as an exception to the general prohibition against such evidence, the evidence is still subject to the trial court's discretion to exclude such evidence if its probative value is substantially outweighed by the danger of unfair prejudice. Id.
¶ 13. In Robinson, the Texas Court of Appeals noted that the exceptions to Texas Rule of Criminal Evidence 404 (b) "are not exclusive or exhaustive, however, but merely representative." Robinson, 844 S.W. 2d at 929. The appeals court expanded the list of exceptions to the general rule, stating that "[a]n extraneous offense maybe used to rebut a defensive theory, such as self-defense, even though this purpose is not mentioned in Tex. R. Crim. Evid 404(b)." Id. In essence, the Texas court agreed with the contention of the State in the case sub judice. The Texas court held that "[w]hen the accused claims self-defense or accident, the State, in order to show the accused's intent, may show other violent acts where the defendant was an aggressor." Id.
¶ 14. The result in Robinson, seems to us somewhat conclusory. What is lacking from the court's discussion in Robinson is a precise rationale that explains how a defendant's prior conviction for a violent act evidences an intent not to act in self-defense in other circumstances. The State of Texas in Robinson argued, as the State does here, that because the defendant acted in a violent manner in the past, the prior act was admissible to illustrate an intent not to have acted in a manner that was not violent (i.e. to have acted in self defense). It seems that such a statement is little more than the logical negation of the line of reasoning prohibited by the Mississippi Rules of Evidence. We decline today to follow Texas down a path that leads away from the original intent of Rule 404 (b). The State must not be allowed to show that a defendant was the primary aggressor in a given case by mere virtue of his past bad acts, nor shall we hold that merely asserting the defense of self-defense puts one's character in issue. The admission of Walker's past conviction violated the general prohibition against such evidence as provided in Eubanks.
¶ 15. We further hold that the admission of the testimony was more prejudicial than probative under M.R.E 403 and M.R.E. 609. Absent the admission of evidence of Walker's past aggravated assault conviction, there was ample evidence to convict Walker on the aggravated assault charge before the trial court. However, we must reverse and remand this case for a new trial, as the constitutional right of an accused to a fair trial has been violated. "When that is done, the defendant is entitled to another trial regardless of the fact that the evidence on the first trial may have shown him guilty beyond a reasonable doubt." Spears v. State, 253 Miss. 108, 127, 175 So. 2d 158, 167 (1965) (citing Scarbrough v. State, 204 Miss. 487, 37 So. 2d 748 (Miss. 1948)). The admission of Walker's past conviction constitutes prejudicial error, and we reverse and remand for a new trial consistent with this judgment.
¶ 16. THE JUDGMENT OF THE PONTOTOC COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PONTOTOC COUNTY. KING, C.J., BRIDGES AND LEE, P. JJ., IRVING, MYERS, CHANDLER, GRIFFIS AND BARNES, JJ., CONCUR.