Carothers v. State

• Decision Date: 11 December 2014
• Docket Number: No. 2012–CT–00231–SCT.,2012–CT–00231–SCT.
• Parties: Anthony CAROTHERS a/k/a Anthony Carrothers a/k/a Anthony Carruthers a/k/a AMP v. STATE of Mississippi.
• Court: Mississippi Supreme Court

152 So.3d 277

Anthony CAROTHERS a/k/a Anthony Carrothers a/k/a Anthony Carruthers a/k/a AMP

v.STATE of Mississippi.

No. 2012–CT–00231–SCT.

Supreme Court of Mississippi.

Dec. 11, 2014.

Office of State Public Defender by George T. Holmes, Phillip Broadhead, attorneys for appellant.

Office of the Attorney General, by Scott Stuart, attorney for appellee.

EN BANC.

ON WRIT OF CERTIORARI

PIERCE, Justice, for the Court:

¶ 1. Anthony Carothers was convicted of two counts of aggravated assault and sentenced to consecutive twenty-year terms in the Mississippi Department of Corrections for each count (twenty years on Count I, and twenty years on Count II with five years to serve and fifteen years suspended). On direct appeal before the Court of Appeals, Carothers argued that the trial court erred by allowing the State to treat Sheena Carothers (Carothers's half-sister and the victim of the assaults) as a hostile witness. Finding merit to Carothers's argument, the Court of Appeals reversed his convictions and remanded for a new trial. Carothers v. State, 2012–KA–00231–COA, 152 So.3d 331, 2013 WL 5788776 (Miss.Ct.App. Oct. 29, 2013), reh'g denied (May 6, 2014). The State petitioned for writ of certiorari, asserting that the Court of Appeals had misapprehended material facts, including testimony of other witnesses. We granted the State's petition.

FACTUAL BACKGROUND

¶ 2. Carothers and Sheena are half-siblings. On the night of the incident, Sheena had taken her four children to Carothers's house for him to keep them while Sheena went out for the evening. Two other adults, Tanesshia Tyson and Jesse Booker, were with Sheena when she drove to Carothers's house. There, Carothers and Sheena got into an argument and Sheena exited the home. There are two versions of what happened next.

Version 1

¶ 3. According to Tyson's trial testimony, sometime after arriving at Carothers's house, Tyson and Booker walked three of the children inside Carothers's home. Sheena's two-year old child, Skylar, remained in Sheena's car. While inside the home, Tyson heard a gunshot outside. Tyson walked outside and saw Carothers holding a small, black handgun in his hand. The front passenger window to Sheena's vehicle was broken, and Tyson claimed it was shot out by Carothers. Tyson told Carothers to “calm down and stop.” By that time, Sheena was in her car, backing out of the driveway. Carothers told Tyson to move out of the way, “if [Tyson] didn't want to get shot [.]” Carothers aimed the gun toward Sheena and fired a second shot. Afterward, Carothers got into his truck and drove down the street after Sheena in the direction of Tyson's house, located just up the street. Tyson followed behind. When Tyson arrived up the road around the corner from Carothers's home, she saw Sheena lying in the middle of the road, bleeding; Sheena's vehicle was sitting in a field nearby; Skylar was still in the vehicle, sitting in the back seat of the car. Tyson said her aunt and uncle, Mary and Woodrow McThune, who live up the road from Carothers's home, were at the scene when she arrived. Carothers was not at the scene when Tyson arrived. Tyson later provided a statement to authorities, who were called to the scene shortly afterward. According to Tyson, Carothers called Tyson later, apologizing for what had happened. He also sent Tyson a text message, warning her not to talk to the police.

¶ 4. Woodrow testified that, on the night of the incident, he heard the sound of a car hitting the back of another car. Woodrow walked out the front door of his home and “saw a red Blazer hit a Crown Vic, and they proceeded on around the road,” which loops around Woodrow's house. At that point, Woodrow walked back through the house, and he and his wife Mary exited through the back door of the house. Woodrow then saw a car sitting in the field, and a young lady “laying almost in the highway, ... covered in blood[,]” approximately seventy-five feet from the car. Mary called 911. Woodrow got Skylar out of Sheena's vehicle. Woodrow gave a statement to authorities after they arrived on the scene, which Woodrow testified was substantially the same as his testimony.

¶ 5. Mary testified that, on the night of the incident, she saw a woman lying in the middle of the street. Her face was swollen, and blood was coming out of her mouth. Mary asked the woman who she was, to which the woman replied, “Sheena.” Mary asked Sheena who did this to her, to which Sheena replied, “Anthony.” Mary also provided a statement to authorities on the night of the incident, which Mary attested at trial was substantially the same as her trial testimony.

¶ 6. Debra Heller, an emergency-room nurse at Baptist Hospital where Sheena was taken, testified that Sheena was admitted to the emergency room complaining that she had been assaulted.

¶ 7. Investigator Jarett Bundren with the Lafayette County Sheriff's Department testified that, during his investigation, he spoke with Sheena that evening while she was at the hospital. Sheena told Investigator Bundren that, when she took her children to Carothers's house for Carothers to watch, Carothers became irate. Carothers came outside and shot her window out. Sheena threw her car into reverse and backed out of Carothers's driveway. Carothers shot at her again. Sheena headed north on Old Taylor Road; Carothers drove up behind her and bumped her vehicle, causing her to wreck. Sheena jumped out of the car and took off running. Carothers chased her, caught her, and began slamming her face into the pavement and kicking her all over her body.

Version 2

¶ 8. At trial, Sheena was called to testify on behalf of the State. Sheena testified that she caused the argument with Carothers when he refused to babysit her children. When Sheena attempted to get the remaining child, Skylar, out of the car, she threw a small tool at Carothers, breaking the passenger window. Sheena said she drove away from Carothers's house at a fast rate of speed and that Carothers followed her in his vehicle because he was concerned for Skylar's safety. Sheena testified that she lost control of her vehicle because she was speeding and ran into a parked truck, but she was not badly injured.

¶ 9. At this point in Sheena's testimony, the State sought permission to treat Sheena as a hostile witness. Carothers objected, arguing that Sheena was not being hostile and that her testimony was consistent with testimony Sheena previously had given at a bond hearing for Carothers. The trial court allowed the State to treat Sheena as an adverse witness. The State then proceeded to ask Sheena leading questions and read portions of Investigator Bundren's report. Sheena denied that she had ever talked to Investigator Bundren, and she disputed every detail of the other version of her story.

¶ 10. Carothers gave testimony substantially similar to Sheena's trial testimony during his case-in-chief.

Direct Appeal:

¶ 11. On direct appeal, Carothers argued he was denied a fair trial because the State was allowed to introduce prior, inconsistent statements of its own witness. Carothers contended that allowing the State to treat Sheena as a hostile witness was improper because the State was not “surprised” by her testimony and that she was not “hostile” to the State's questioning, for purposes of Rule 607 of the Mississippi Rules of Evidence. The Court of Appeals agreed, finding that the trial court had abused its discretion because the State was not surprised by Sheena's testimony. The Court of Appeals found that the error constituted reversible error because (1) if the trial court had not allowed the State to introduce the impeachment testimony against Sheena, her testimony would have corroborated Carothers's testimony, and (2) without the impeachment testimony, there was no overwhelming evidence of guilt; and both Sheena's and Carothers's testimony contradicted Tyson's version of the events that night.

Petition for Writ of Certiorari

¶ 12. The State petitioned for writ of certiorari, claiming that the Court of Appeals had failed to take into account testimony from both Woodrow and Mary in its analysis of the case. The State contends that this testimony corroborated the State's theory of the case, and the Court of Appeals had erred by not affirming Carothers's conviction under harmless error.

¶ 13. Having granted the State's certiorari petition, we find that the Court of Appeals did not take into consideration Rule 801(d)(1)(c) (identification evidence), Rule 803(2) (excited utterances), and Rule 803(4) (medical diagnosis and treatment) of the Mississippi Rules of Evidence. Because each of the complained-of statements would not have been excluded by the rule against hearsay, any error by the trial court with regard to these statements for purposes of Rule 607 was harmless beyond a reasonable doubt. Further, we hold that while the elements of surprise and/or unexpected hostility are an acceptable basis for allowing a party to impeach its own witness, neither is required for purposes of Rule 607. To the extent Wilkins v. State, 603 So.2d 309, 322 (Miss.1992), holds otherwise, it is hereby overruled. Instead we hold that, in order to prevent abuse of Rule 607, impeachment of one's own witness should be only allowed when circumstances indicating good faith and the absence of subterfuge are present.

DISCUSSION

¶ 14. An appellate court's standard of review of a trial court's admission or exclusion of evidence is abuse of discretion.

Osborne v. State, 54 So.3d 841, 845 (Miss.2011). “Reversal is proper only where ‘the error adversely affects a substantial right of a party.’ ” Id. (quoting Ladnier v. State, 878 So.2d 926, 933 (Miss.2004) ). A trial court's decision will be affirmed on appeal where the right result is reached, even though we may disagree with the reason for that result. Smith v. State, 25 So.3d 264, 273–74 (Miss.2009).

¶ 15. Rule 607 provides that “[t]he credibility of a witness may be attacked by any party, including the party calling him.” Under this...