Cooley v. State, 55972

• Decision Date: 15 October 1986
• Docket Number: No. 55972,55972
• Citation: 495 So.2d 1362
• Parties: Lucille Jenkins COOLEY v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1362

495 So.2d 1362

Lucille Jenkins COOLEY v. STATE of Mississippi.

No. 55972.

Supreme Court of Mississippi.

Oct. 15, 1986.

Guy M. Walker, Laurel, for appellant.

Edwin Lloyd Pittman, Atty. Gen. by Jack B. Lacy, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before WALKER, C.J., and ROBERTSON and ANDERSON, JJ.

ROBERTSON, Justice, for the Court:

I.

Failure to comply with its obligations under our discovery rules is again the Achilles heel of the prosecution's effort to uphold a criminal conviction. Our rules require that, upon request of the accused, the prosecution must disclose a copy of the past criminal record of the accused, particularly where the prosecution intends to use that record for impeachment purposes. In this case where the accused has been charged with aggravated assault, the prosecution failed to disclose a twelve year old prior misdemeanor assault conviction and, notwithstanding, sought to impeach the accused therewith. This our rules do not allow.

Other questions presented concern the victim's testimony regarding her own injuries, the admission of a photograph of the gunshot wound suffered by the victim and a reverse discovery point. Because the case must be retried, we will discuss these other assignments of error briefly.

II.

The facts of this Jones County barroom brawl remain a morass. Complicating matters is the lack of clarity in the record about the physical layout of Pearl's Lounge, the scene of the shooting of Betty Kitchens by Lucille Jenkins Cooley on December 16, 1983. In general, Pearl's Lounge consists of two main rooms--a dancehall area and a bar area. There are two entrances from bar to dance area; there is one entrance/exit door into Pearl's Lounge from the outside street.

Betty Kitchens claims that as she and her husband sat at the bar, Lucille Cooley approached her, attempted to start an altercation, pulled a pistol from her bra, and was then removed by another patron to the other end of the bar, where people attempted to pacify Lucille Cooley. Betty Kitchens states that she and her husband attempted to leave, but that as they stepped aside the general entrance/exit door to Pearl's Lounge to allow newcomers to enter, Lucille Cooley appeared, coming through the barroom area, and shot Betty Kitchens in the leg. Betty Kitchens' version of the incident is supported by the testimony of her husband.

An apparently disinterested bystander witness corroborates Betty Kitchens' story with two exceptions: (1) Bystander says that Kitchens went to the dancehall area entranceway instead of to the general entrance/exit door of the lounge, and (2) Kitchens had a drink in her hand instead of a coat over her arm. The bystander testified that Kitchens held no knife and that Cooley shot Kitchens.

Lucille Cooley admits that she shot Betty Kitchens but claims that she acted in self-defense. Cooley testified that Kitchens threatened to cut Cooley's throat if Cooley did not stay away from Kitchens' boyfriend, a man with whom both women were apparently having an affair. When Cooley would not agree to stay away from the man, Cooley claims that Kitchens then pulled a knife on her. Cooley in turn pulled her .25 automatic to protect herself. Cooley states that she asked the lounge owner to detain Kitchens long enough for Cooley to get out of the lounge. Cooley testified that she then went into the dancehall area. Cooley contends that Kitchens blocked her exit from the lounge and kept coming toward her, attempting to cut her. Cooley claims she then shot Betty Kitchens in the leg in self-defense to stop her.

That Kitchens held a knife, described as a pocket knife, is supported by three witnesses. The credibility of one of these, a male sitting with Cooley in Pearl's Lounge on the evening in question, was impeached at trial with prior testimony he had given in a statement to police. His prior statement conflicted considerably with his testimony at trial. Of the two female witnesses who testified about the existence of a knife, one was shown to be acquainted with Lucille Cooley. In addition, the record preserves through Cooley's offer of proof that rejected potential witness Pearl Sauls, had she been allowed to testify, would have testified that Cooley left the bar area when Sauls ordered her to do so after the argument began and that Betty Kitchens, instead of staying where she was at the bar as ordered by Pearl Sauls, also entered the dancehall area from a different entrance from the entrance by which Lucille Cooley had entered the dancehall area.

Lucille Jenkins Cooley, Defendant below and Appellant here, was put to trial in the Circuit Court of the Second Judicial District of Jones County, Mississippi, on March 26, 1984, on the charge of the aggravated assault of Betty Kitchens. Miss.Code Ann. Sec. 97-3-7(2)(b) (Supp.1985). In due course the jury found Cooley guilty as charged in the indictment, whereupon the Circuit Court sentenced her to the custody of the Mississippi Department of Corrections for a period of fifteen years. Miss.Code Ann. Sec. 97-3-7(2) (Supp.1985). For the reasons set forth below, that conviction and sentence must be vacated and the matter remanded for a new trial.

III.

Cooley first complains that the Circuit Court erred in allowing Betty Kitchens, over Cooley's objection, to give allegedly hearsay testimony regarding the nature and extent of her injuries resulting from the Cooley-inflicted gunshot wound. Specifically, Kitchens testified that she was shot in the leg, that her sciatic nerve had been cut, that she was disabled and was scheduled to undergo a fourteen hour operation with only a twenty percent chance that she could walk normally thereafter. Without doubt Kitchens employed in her testimony terminology likely beyond her normal vocabulary. On the other hand, a holding that a witness may never use terms and ideas learned from others that would render hearsay practically everything we know.

The essence of the offense of aggravated assault is that the accused has knowingly caused bodily injury to another with a deadly weapon likely to produce death or serious bodily harm. In this setting it is competent for the victim to describe the nature and extent of the injuries she has received. Cf. Harbin v. State, 478 So.2d 796, 799, 800 (Miss.1985). See Rule 401, Miss.R.Ev., eff. January 1, 1986. Defense counsel was certainly entitled to employ cross-examination to test Kitchens' understanding and the basis for the descriptive statements she made on direct examination. At trial's end that option remained unemployed.

The assignment of error is denied.

IV.

Cooley next charges error in the admission of a photograph of Kitchens' leg wound. She argues that the photograph had no evidentiary value and served the sole purpose of "inflaming the minds of the jury." West v. State, 218 Miss. 397, 408, 67 So.2d 366, 370 (1953). The Attorney General responds that the photograph is demonstrative of the locality and severity of the wound.

We have viewed the photograph and consider it to have far less capacity for unfair prejudice than many we have seen. We consider this assignment in the context of the proposition discussed above that the prosecution was obligated in order to succeed under this indictment to show infliction of a wound with a deadly weapon. The photograph was relevant to that end. See Rule 401, Miss.R.Ev., eff. January 1, 1986. In Groseclose v. State, 440 So.2d 297, 301 (Miss.1983), we held that a single photograph, not inordinately gruesome, showing the position of the victim's body at the arrival of police officers, was admissible within the trial judge's discretion. This same view has been stated in Lewis v. State, 454 So.2d 1306, 1307 (Miss.1984); Sharp v. State, 446 So.2d 1008, 1009 (Miss.1984); and Edwards v. State, 413 So.2d 1007, 1011 (Miss.1982). There being no basis for a belief that the probative value of the photograph here in controversy was substantially outweighed by the danger of unfair prejudice, (see Rule 403, Miss.R.Ev., eff. January 1, 1986) we hold that the assignment of error is without merit and should be denied.

V.

Cooley assigns as error the order of the Circuit Court that her witness, Pearl Sauls, not be allowed to testify. At trial it developed that Cooley had requested discovery pursuant to Rule 4.06, Unif.Crim.R.Cir.Ct.Prac. That request visited a similar obligation upon Cooley to make discovery. See Coates v. State, 495 So.2d 464, 467 (Miss.1986). The Circuit Court refused to allow Sauls to testify because Cooley had not listed--and disclosed to the prosecution--Sauls' name as a witness who would be called at trial. Cooley's response was that she did not know of the availability of Sauls as a witness until well into the trial and, hence, could not be faulted for failure to make timely pre-trial disclosure.

In Coates v. State, cited above, we held in no uncertain terms that discovery obligations are reciprocal and that Rule 4.06 may be enforced against the defendant the same as against the prosecution. Because of the disposition we make of the case, it is unnecessary that the present assignment of error be expressly decided. Suffice it to say that, upon retrial, all will have had notice of the possibility of Sauls being a witness. Either side--the prosecution or the defense--may call Sauls as a witness as either may desire. For the moment it is sufficient to emphasize that what was said in Coates was intended to make clear that discovery is a two-way street, that defendants and their counsel are to take seriously their obligations to make discovery under Rule 4.06, and that our circuit courts, when confronted with defense discovery violations should judiciously and discretely effect sanctions within the authority afforded them by Rule 4.06.

VI.

The dispositive assignment of error concerns the prosecution's failure to make discovery. Our concern is the attempt of the district attorney to cross-examine Cooley regarding...