Bass v. State, 89-KA-0244

• Decision Date: 25 March 1992
• Docket Number: No. 89-KA-0244,89-KA-0244
• Citation: 597 So.2d 182
• Parties: Jimmy BASS and Markius Thomas v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 182

597 So.2d 182

Jimmy BASS and Markius Thomas v. STATE of Mississippi.

No. 89-KA-0244.

Supreme Court of Mississippi.

March 25, 1992.

Boyd P. Atkinson, Raymond L. Wong, Cleveland, for appellants.

Michael C. Moore, Atty. Gen., Charles W. Maris, Jr., Sp. Ass't Atty. Gen., Jackson, for appellee.

Before HAWKINS, P.J., and SULLIVAN and McRAE, JJ.

HAWKINS, Presiding Justice, For the Court:

Jimmy Bass and Markius Thomas appeal from their convictions in the circuit court of the Second Judicial District of Bolivar County and sentences to twenty years for aggravated assault and thirty years for armed robbery. Upon this appeal we address the issues of the circumstances in which the juvenile record of a child witness is appropriate evidence on cross-examination, and whether a disturbance in the courtroom warrants a mistrial. Finding no error, we affirm.

FACTS

On July 17, 1988, Mary Townsend was working as a cashier at the "61 Quiki" convenience store in Cleveland, Mississippi. At approximately 10:30 p.m., three black males entered the store, and one of them ordered a hot dog. When Townsend went to fix the hot dog, one of the men told her: "I am going to rob you." She turned around, and he pointed a handgun at her and repeated: "I am going to rob you." He then told her to open the cash register and give him the money. She opened the register and started giving him the money. He grabbed the money, turned around and then shot Townsend twice. As the three men ran out the door, Townsend managed to push an alarm button and dial 911 before she became unconscious. Townsend was taken to the hospital where she underwent surgery to repair damage to her large and small intestines and large and small bowels.

Bass and Thomas were indicted October 26, 1988, by the grand jury of the Second Judicial District of Bolivar County in a two-count indictment, Count One charging them with aggravated assault in shooting Fifteen-year-old Keith Thompson testified that he was in the vicinity of the 61 Quiki immediately after the robbery occurred. He testified that he was walking to another store to play video games when he saw Markius Thomas, Jimmy Bass and another male running down the highway away from 61 Quiki. Thompson testified that he had known Thomas and Bass a long time and recognized them as soon as he saw them. According to Thompson, Bass had what looked like a pistol in his hand and was trying to put it in his pocket while he ran. Thompson testified that he called Thomas and said: "Markius, come here," but Thomas told him that he would catch up with him later and kept running. Thompson also testified that about the time he saw the three blacks running, "I seen two police cars go to 61 Quiki." Thompson testified that he started to go to the 61 Quiki to see what happened but instead went home because he was afraid he might get into trouble. He also testified that the night before the robbery, Jimmy Bass let Thompson hold a .38 revolver which Bass had in his possession.

                Mary Townsend, and Count Two armed robbery of Mary Townsend.  At the time of the robbery, Townsend was an employee of Scott Petroleum, Inc., doing business as "Quicki Stop," or "61 Quiki."   Bass and Thomas took $185.00 in cash from the store.  Trial of the defendants began on Wednesday, December 7, 1988
                

Bass testified that he was with Thomas during the afternoon of July 17, 1988, but that he and Thomas were both at their respective homes that night. Thomas did not testify. Thomas and Bass each put witnesses on the stand who testified that they were at home on the night of July 17, 1988.

On August 3 during the course of their investigation, the police questioned Thompson and a written statement was taken from him by George Serio, investigator with the Cleveland Police Department. In pre-trial discovery Thompson was listed as a potential State witness, and a copy of his written statement was furnished the defense.

The youth court records are not a part of this record, but there is reference made by defense counsel that at the time of trial Thompson had been in training school four times, twice for shoplifting, once for receiving stolen property, and another for not attending school. Counsel also told the court that Thompson was sent to the training school on October 12, 1988, for failure to attend school.

Thompson was returned from the training school to Cleveland to testify in this cause, and was in the local jail on Monday, December 5.

On direct examination Thompson testified that he was in jail when he was asked by his cousin, Cedric Coleman, to "[T]ell them you don't know nothing about it. You know, tell them that Serio tried to--told you that if you don't testify, he was going to try to do something to you."

Thompson was asked if Serio had done this, and he answered, "No, sir." He was then asked, "Has anybody with the police department or me told you to tell anything but the truth?" He answered, "No, sir."

On cross-examination Thompson was asked where he had been staying in Cleveland for the last two or three days, which was objected to; the objection sustained. The circuit judge then heard from counsel in chambers.

Defense counsel then unsuccessfully sought permission to cross-examine Thompson about his youth court record.

On their appeal Bass' and Thomas' first and main assignment of error is the refusal of the circuit judge to let them cross-examine Thompson on his juvenile record. Because this assignment presents both a serious and a close question, we quote at length from the trial record.

IN CHAMBERS

BY THE COURT:

At the present time the State's witness, Keith Thompson, is on cross-examination by Mr. Wong. And Mr. Wong was questioning Mr. Thompson about where he had been within the last two or three days and the District Attorney objected and the Court understands that Mr. Wong was going to question Mr. Thompson about any former convictions he may have had as a juvenile, which we had discussed before, that the Court would have to make a determination at the right point, so this is the right point, Mr. Wong, would you state your reasons for the use of that testimony?

BY MR. WONG [counsel for Thomas]:

For the record, Your Honor, I had talked to Keith Thompson on 12/7/88 ¹ at 1859 hours in the jail or 6:59 p.m. At that time I asked him how many times he had been in training school and he said he had gone to training school four times. He is presently in training school since his adjudication by the Youth Court on October 12, 1988, for not going to school. He was brought back Monday, which is the 5th. He has two prior trips to the training school for two counts of shoplifting. He has gone to training school for the fourth time for receiving stolen property in November of 1987. Your Honor, we were now going to question--on my cross-examination on behalf of Mr. Markius Thomas, regarding his juvenile record to show any bias or interest but not for impeachment purposes as stated in the statute 43-25-561 subpart (5) supplement 1988.

....

BY THE COURT:

All right. What bias or interest do you propose to show?

BY MR. WONG:

Your Honor, during my cross-examination, he has already stated that no promises were given to him. But it has come to my attention that he has asked for a stay at home. But he is under orders or he is in jail and is probably going to be returned back to training school and I need to ask him if he is going to stay at home.

BY THE COURT:

How would that show bias or interest with regard to the two defendants?

BY MR. WONG:

The only way he can stay home is if there is an agreement for him to stay home before he goes back to training school. That is one of the things that we are going to probe. Under Mississippi Rule 609(d)--

BY THE COURT:

--Now I am going to let you cross-examine the witness as to whether he has been shown any special treatment or not, but not, unless you can show me a good reason for it, why any former convictions. You can bring out bias or interest, but it has to be bias or interest with regard to this particular case. (Emphasis added)

BY MR. WONG:

If I may go further, Your Honor, as to an expansion of my cross-examination concerning his juvenile adjudications, though, Mississippi Rules of Evidence 609(d) says, "the evidence of a juvenile's adjudication generally is not admissible, but in a criminal case the Court may allow, other than the criminal defendant--the conviction of the offense would be admissible to attack the credibility of an adult and the Court is satisfied that the admission in evidence is necessary for a fair determination of the issue of guilt or innocence in this case." Your Honor, this is a capital case. We cite subsequent authority, the case of Hamburg vs. State, 248 So.2d 430. (Mr. Wong reading aloud from that case.) (Mr. Wong cites Davis vs. Alaska, 415 U.S. 308 [94 S.Ct. 1105, 39 L.Ed.2d 347.] ) (Mr. Wong cites 609.8 at page 503 of West Federal Evidence.) I will state this for the record, whether a fair determination of guilt or innocence requires the employment of a juvenile conviction to attack the credibility of a witness other than a criminal defendant on the basis of either bias or willingness to disobey the law must be determined by the Court on the facts of the particular case, whether the rehabilitant process has been demonstrated a failure and the importance of the witness' testimony are relevant considerations.

Your Honor, we state that a fair determination of guilt or innocence of, at least, my client--and Mr. Atkinson joins in this motion--we need to go in and dwell [sic] into the juvenile adjudications concerning this individual. And this will make a fair determination of the issue of guilt or innocence of at least my client. The Mississippi Supreme Court has stated in Peterson vs. State, 518 So.2d 632, a 1987 Mississippi case, lists the four factors to consider, which has been expressed in a Fifth Circuit opinion. That is our position on this matter, Your Honor. (...