Bogard v. State

• Decision Date: 16 September 1993
• Docket Number: No. 90-KA-1262,90-KA-1262
• Parties: Willie James BOGARD v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1313

624 So.2d 1313

Willie James BOGARD v. STATE of Mississippi.

No. 90-KA-1262.

Supreme Court of Mississippi.

Sept. 16, 1993.

David L. Minyard, Hill White & Minyard, Oxford, for appellant.

Michael C. Moore, Atty. Gen., Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PRATHER, P.J., and PITTMAN and SMITH, JJ.

PITTMAN, Justice, for the Court:

Willie James Bogard appeals from his multiple convictions of burglary of an inhabited dwelling while armed with a deadly weapon (Count I), two counts of aggravated assault (Counts II and III), and recidivism as defined by Miss.Code Ann. Sec. 99-19-83 (Supp.1992), following trial by jury in the Circuit Court of Lafayette County. Bogard was sentenced, as an habitual offender, to three (3) consecutive life sentences, each without the benefit of probation or parole.

Bogard raises nine (9) separate issues on appeal, five (5) of which merit discussion. We affirm Bogard's convictions and sentences, save for his conviction of burglary of an inhabited dwelling, which we reverse for insufficient proof of habitation. However, the evidence is sufficient to sustain a conviction for the lesser included offense of burglary of an unoccupied dwelling and we affirm as to Bogard's guilt of that offense and remand for resentencing under Miss.Code Ann. Sec. 97-17-19 and Sec. 99-19-83.

FACTS

Willie James Bogard and Sandra Dean were former paramours. Their year-long relationship had been occasioned by violence and threats of violence. Sandra Dean attributed much of the problem to Bogard's life-long drinking habits.

During the evening hours of November 30, 1989, Sandra and her eighteen (18) year old son, Lamont Dean, returned to their home at 2306 Robinson Road in Oxford, Mississippi, following a visit to Sandra's mother. They entered the house cautiously because Bogard, Sandra's now-former boyfriend, had confronted them inside on previous occasions. Sandra was carrying a pistol in her hand because Bogard had a habit of following her wherever she went. She even slept with the gun because Bogard had previously threatened to take her life. After entering the house, she laid the pistol on the bed and went into the kitchen.

Lamont began an inspection of the house to see if Bogard was lurking anywhere inside. While searching the bedroom, he picked up the .38 revolver which his mother had purchased for her protection. When Lamont looked behind the living room couch, Bogard suddenly emerged and shot Lamont in the neck with a small chrome-plated pistol.

As Lamont was falling back to the floor, he began shooting in Bogard's direction. Although he testified he did not remember shooting, Lamont fired all six (6) of his shots while Bogard, according to Sandra, continued to shoot at Lamont. Sandra, who heard the shooting from the kitchen but did not see the entire incident, instructed Lamont to run, which he did with as much speed as his wound would allow.

After Lamont ran out of the house to a neighbor's home, Sandra became the target of Bogard's wrath. When she tried to escape, Bogard pushed her onto the floor and shot her in the head. After entering the kitchen for a brief moment, Bogard returned and shot Sandra in the face. Following the shooting, Bogard fled. He was arrested three (3) weeks later in Flint, Michigan, and extradited to Mississippi where he was charged as an habitual offender with two During her treatment in the hospital emergency room, Sandra learned she was four and one-half months pregnant with Bogard's child. On May 24, 1990, several weeks after the delivery of Bogard's daughter, Sandra Dean and Willie James Bogard were married in the City of Oxford, Lafayette County, Mississippi.

counts of aggravated assault and one count of burglary of an inhabited dwelling at night while armed with a deadly weapon.

Bogard testified in his own behalf, admitting he shot both Lamont and Sandra. He testified the shooting of Sandra was unintentional and claimed he shot Lamont in self-defense.

ISSUES

1. Bogard's Prior Conviction for Armed Robbery

Bogard contends the trial judge erred in permitting the prosecution to impeach his credibility as a witness in his own behalf by questioning him during cross-examination about his 1977 conviction for armed robbery. That particular cross-examination is quoted as follows:

Q. Mr. Bogard, you ever been convicted of armed robbery?

A. Yes, sir, I have.

Q. In this court?

A. Yes, sir, and I was sentenced by the Honorable Judge Lamb.

"When a criminal defendant elects to take the witness stand in his own defense he is subject to being impeached under Rule 609, M.R.E., with evidence of prior convictions." Hawkins v. State, 538 So.2d 1204, 1206 (Miss.1989). The trial court found the conviction for armed robbery was probative with respect to the issue of credibility and that it had impeachment value. We hold the court did not abuse its judicial discretion in allowing the prosecution to bring out the mere fact of conviction for the purpose of impeaching the defendant's credibility as a witness in his own behalf. Hawkins v. State, supra.

Impeachment by evidence of conviction of crime is governed by Miss.R.Evid. 609(a) which reads as follows:

(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect on a party or (2) involved dishonesty or false statement, regardless of the punishment.

The prosecution made a prima facie showing that the conduct giving rise to the prior conviction was such that it reasonably bore upon the defendant's propensity for truthfulness. Saucier v. State, 562 So.2d 1238, 1245 (Miss.1990). The judge then made an on-the-record finding that the probative value of the armed robbery conviction outweighed its prejudicial effect. Tillman v. State, 606 So.2d 1103 (Miss.1992); Jordan v. State, 592 So.2d 522 (Miss.1991); Pugh v. State, 584 So.2d 781 (Miss.1991); McGee v. State, 569 So.2d 1191 (Miss.1990); Saucier v. State, supra, 562 So.2d 1238 (Miss.1990); Johnson v. State, 525 So.2d 809 (Miss.1988); McInnis v. State, 527 So.2d 84 (Miss.1988); Peterson v. State, 518 So.2d 632 (Miss.1987). This satisfied the requirements found in Rule 609(a)(1). ¹

During the hearing to determine admissibility of the 1977 conviction, the State introduced a certified copy of the indictment, judgment, and commitment order relative to the armed robbery. Both the indictment and commitment paper reflect that Bogard exhibited a rifle and did take, steal, and carry away from the person of the victim a watch valued at $100.00 and $3.00 in cash. [emphasis supplied]

Prior convictions are not admissible under Rule 609 for any purpose other than attacking the credibility of a witness, including the defendant. McInnis v. State, supra. The legitimate purpose of impeachment is to demonstrate to the fact-finder background facts which reasonably bear on whether jurors ought to believe the witness/defendant rather than conflicting witnesses. The prosecutor was well aware of this fact, stating to the trial judge "that when we're talking about impeachment, we're talking about going to the veracity of his testimony and not attacking his character."

"In common human experience acts of deceit, fraud, cheating, or stealing ... are universally regarded as conduct which reflects adversely on a man's honesty and integrity." Gordon v. United States, 383 F.2d 936, 940 (D.C.Cir.1967) [emphasis added]. The crimes of robbery and larceny, even if not in the nature of crimen falsi, ² do disclose a disregard for the rights of others which might reasonably be expected to express itself in giving false testimony whenever it would be to the advantage of the witness to do so. Put another way, crimes which involve theft have at least some probative value for assessing credibility of the witness.

In the case at bar, the State successfully demonstrated to the lower court that the prior armed robbery conviction involved the stealing of another's money and personal property and had some intrinsic probative value regarding Bogard's propensity for truthfulness while under oath. See Turner v. State, 573 So.2d 1335, 1339 (Miss.1990) (Conviction of grand larceny would have been available for impeachment of witness' credibility had witness testified at trial); Hawkins v. State, supra, where we held the trial judge did not abuse his judicial discretion in finding that a defendant's previous conviction of armed robbery "goes to the credibility issue, thus it has impeachment value." The State met its threshold burden by successfully making a prima facie showing of probative value.

We reject Bogard's contention that the trial judge failed to make an on-the-record determination that the probative value of the prior conviction outweighed any prejudicial effect. The trial court did engage in such an analysis utilizing the five (5) factors identified in Peterson v. State, supra, 518 So.2d 632, 636 (Miss.1987). The court judiciously concluded that evidence of Bogard's prior conviction of aggravated assault would not be permitted while evidence of his prior conviction for armed robbery would be allowed. In weighing probative value against prejudicial effect, the trial judge specifically considered the fact the jury had already been made aware of Bogard's previous incarceration by way of Bogard's introduction into evidence of a certain tape recording which was played for the benefit of the jury. The trial judge also stated that a cautionary or limiting instruction would be given, which was done.

All of the Peterson factors favor the State save for the fourth factor involving the...