Burroughs v. State, 97-KA-00436-COA.

• Decision Date: 30 May 2000
• Docket Number: No. 97-KA-00436-COA.,97-KA-00436-COA.
• Parties: William BURROUGHS a/k/a William Burroughs, IV a/k/a `Buck', Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

767 So.2d 246

William BURROUGHS a/k/a William Burroughs, IV a/k/a `Buck', Appellant, v. STATE of Mississippi, Appellee.

No. 97-KA-00436-COA.

Court of Appeals of Mississippi.

May 30, 2000.

William B. Kirksey, Merrida Coxwell, Charles Richard Mullins, Jackson, Attorneys for Appellant.

Office of the Attorney General by Billy L. Gore, Attorney for Appellee.

BEFORE McMILLIN, C.J., IRVING, AND THOMAS, JJ.

IRVING, J., for the Court:

¶ 1. William Burroughs, IV, a/k/a "Buck", was convicted of two counts of aggravated assault and two counts of simple assault in the Circuit Court of Bolivar County and was sentenced to serve fifteen years on the aggravated assault charges with five years suspended after service of ten years in the custody of Mississippi Department of Corrections. He was sentenced to serve six months on the simple assault convictions with the sentences to run concurrently with the sentences imposed on the aggravated assault convictions. He appeals those convictions and sentences and assigns as error the following issues which are taken verbatim from his brief:

I. THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR BY FORBIDDING THE DEFENSE FROM ELICITING TESTIMONY THAT THE PIKES REFERRED TO THE LOCAL MEN AS GDI; THE TRIAL JUDGE ALSO ERRED BY EXCLUDING TESTIMONY THAT THE PIKES WERE ON PROBATION.

II. THE TRIAL JUDGE ERRED BY NOT ORDERING A NEW TRIAL AFTER IT WAS DISCOVERED THAT TWO OF THE VICTIMS WORKED FOR ONE OF THE JURORS.

III. THE EVIDENCE PRESENTED BY THE STATE WAS INSUFFICIENT TO SUPPORT THE CONVICTIONS. IN THE ALTERNATIVE, THE JURY'S VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

Finding error, we reverse and remand.

Facts

¶ 2. During the early morning hours of January 21, 1996, Scotty Harrison and Burroughs, by pre-arrangement, drove to Treeline Road in Bolivar County to rendezvous with Jay Weaver, a student at Delta State University, and other members of Weaver's college fraternity known as "Pikes".

¶ 3. During the evening of January 20, Harrison and Weaver had been involved in a barroom brawl at a local nightclub. Weaver had phoned Harrison following the altercation with a challenge to meet on Treeline Road to settle the prior dispute. Harrison accepted the challenge. Harrison then phoned Burroughs and asked Burroughs to accompany him. Burroughs and Harrison rode together in Burroughs's car. They were the first to arrive at the meeting place. It was approximately 3:00 a.m. A .270 rifle and a .44 Magnum pistol, both belonging to Burroughs, were in the car. Both Harrison and Burroughs exited the car.

¶ 4. A short time later a Toyota truck occupied by A. J. Willen, Brian Johnson, Jeremy Dyess, and Kevin Wooten arrived at the Treeline Road location. Another group of Pikes followed in a Jeep Cherokee. Shots were fired. Willen was struck in the arm and knee by one bullet, and another bullet grazed Johnson's back. Dyess and Wooten were not injured. Both vehicles left the scene immediately following the shooting.

¶ 5. Both Harrison and Burroughs admit firing weapons at the time but claim that the Pikes fired weapons first. Harrison claims to have fired the .44 Magnum into the air. The Pikes claimed that none of them were in possession of any weapons.

¶ 6. Billy Joe Estes, chief investigator with the Bolivar County Sheriffs Office, testified that he took a statement from Burroughs the next morning which was recorded on audiotape and transcribed. Burroughs signed the transcript of the tape. The original audiotape was played in the presence of the jury and reflects that Burroughs admitted he fired a .270 rifle "down the road" at the time and location of the incident.

Analysis of Issues Presented

I. Exclusion of testimony

¶ 7. The standard of review regarding admission or exclusion of evidence is abuse of discretion. Thompson Mach. Commerce Corp. v. Wallace, 687 So.2d 149, 152 (Miss.1997). Where error involves the admission or exclusion of evidence, this Court will not reverse unless the error adversely affects a substantial right of a party. In re Estate of Mask, 703 So.2d 852, 859 (Miss.1997); Terrain Enters., Inc. v. Mockbee, 654 So.2d 1122, 1131 (Miss. 1995).

¶ 8. Burroughs alleges that it was reversible error for the trial court to exclude evidence that would have allowed him to establish the Pikes' motive to lie about being in possession of a weapon or weapons. Burroughs alleges the motive was that the fraternity was on probation for past misconduct and that an admission by some of its members that they were in possession of firearms in violation of university policy would have resulted in its charter being revoked. He also alleges that it was reversible error for the trial court to exclude evidence which would have established the Pikes' animosity toward non-fraternity students. Burroughs claims that the Pike fraternity chapter located at Delta State University had obvious disdain for the local young men of Cleveland who were not college attendees as evidenced by the fact that the Pikes referred to the locals as "GDIs", which means "g___d___ independents."

¶ 9. In making its decision to exclude the testimony the lower court ruled as follows:

BY THE COURT: All right. Well, the Court will allow you to introduce all matters that are relevant and pertinent to this particular incident, but the Court does not deem the fact that that fraternity may have been on probation to be a probative value in this particular case. If it had been the other way around, I could see the defense arguing the prejudicial affect is outweighed by any probative value that there may be. And as we have already told the jurors, we have to be fair to the State as well as being fair to the defense. So the Court is going to disallow the usage of the term "GDI" and the allegation that the fraternity was on probation.

¶ 10. It is apparent that the lower court found that the Pikes' probation and apparent disdain for the locals had no probative value with regard to the material facts to be proven in this case. This Court agrees. Burroughs contends that the phrase GDI was crucial to his defense in that if the jury had been allowed to hear evidence of the Pikes's animosity toward the local noncollege young men, "then a reasonable juror could easily infer how and why the Pikes would flavor their testimony against Scotty Harrison and Mr. Burroughs." The trial judge's ruling, claims Burroughs, crippled his defense. He argues that this was evidence which could effect a witness's credibility and show bias or ill-will and must be allowed. He cites Myers v. State, 296 So.2d 695, 700 (Miss.1974):

The right of confrontation and cross-examination is not satisfied by a witness submitting himself to token interrogation but extends to and includes the right to fully cross-examine the witness on every material point relating to the issue to be determined that would have a bearing on the credibility of the witness and the weight and worth of his testimony.

¶ 11. As the State's brief points out, the fact that the Pikes, in general, may have referred to the locals as GDIs is not probative with respect to the feelings of each individual member of the fraternal brotherhood. It was the credibility of the individual victims who were going to testify that was relevant and not the credibility of the Pikes, in general, as a fraternal organization.

¶ 12. Burroughs also cites Miskelley v. State, 480 So.2d 1104 (Miss.1985). Miskelley was on trial for the murder of Steve Brown. State's witness Tammy Nance had dated both Miskelley and the murder victim. According to Nance, after Brown disappeared Miskelley confessed to the murder. Miskelley attempted to bring out the fact on cross-examination that he had a sexual relationship with Nance and that the only reason he made the incriminating statements to Nance was because of her "coaxing, over persuasion and threats to deny [him] sexual favors." Id. at 1109. The trial judge refused to allow Miskelley to cross-examine Nance regarding her sexual relationship with Miskelley. Miskelley was convicted. On appeal, his conviction was reversed on the ground that the lower court unduly restricted cross-examination and impeachment on matters that were crucial on the issue of the confession allegedly made to Nance.

¶ 13. We find a clear distinction between Miskelley and the case at bar. Nance offered testimony that went directly to the guilt or innocence of Miskelley. It was crucial that the jury be given every opportunity to determine the truth and veracity of the witness on this issue, for if the jury accepted her testimony as the truth, conviction was inevitable. Evidence of any ill-will or motive to lie was clearly relevant. In the case at bar, the question of whether the Pike fraternity had a habit of referring to local non-college young men as GDIs and that the fraternity was on probation had no probative value whatever on the issue of whether Burroughs shot and injured someone or whether the victim witnesses had a motive to lie.

¶ 14. Burroughs also cites the cases of Manning v. State, 726 So.2d 1152 (Miss. 1998) and Sanders v. State, 352 So.2d 822 (Miss.1977). In Manning the State was permitted to cross-examine a defense witness about prior juvenile adjudications to demonstrate his bias toward the criminal justice system and to show his motive for testifying for the defendant. Burroughs contends that if a witness's bias toward the criminal justice system is a proper ground for impeachment, then the attitude of the Pike fraternity toward locals and the probationary status of the fraternity should certainly be relevant. In Sanders the defendant, a former deputy sheriff, was on trial for armed robbery. The State's chief witness, Gowan, was the alleged accomplice. Sanders sought to show Gowan's motive to lie by bringing out a past incident where the defendant arrested Gowan. The trial court denied the request. On appeal, the Mississippi Supreme Court reversed, agreeing with Sanders that the...