Cotton v. State, 92-KA-01102-SCT

• Citation: 675 So.2d 308
• Decision Date: 09 May 1996
• Docket Number: No. 92-KA-01102-SCT,92-KA-01102-SCT
• Parties: Frederick COTTON a/k/a Fredrick Cotton v. STATE of Mississippi.
• Court: United States State Supreme Court of Mississippi

Page 308

675 So.2d 308

Frederick COTTON a/k/a Fredrick Cotton v. STATE of Mississippi.

No. 92-KA-01102-SCT.

Supreme Court of Mississippi.

May 9, 1996.

William E. Goodwin, McComb, for Appellant.

Michael C. Moore, Attorney General, DeWitt T. Allred, III, Sp. Asst. Attorney General, Jackson, for Appellee.

Before DAN M. LEE, C.J., and McRAE and SMITH, JJ.

McRAE, Justice, for the Court:

Frederick Cotton appeals his conviction and seven year sentence for the crime of aggravated assault. Because the trial court erroneously allowed a discovery violation involving expert testimony concerning the mechanics of the firearm recovered from the defendant without the witness having been qualified or tendered as an expert, we must reverse and remand this case to the Circuit Court of Pike County for a new trial.

I.

On October 7, 1992, Frederick Cotton was indicted by the Grand Jury of Pike County for the offense of aggravated assault in violation of Miss.Code Ann. § 97-3-7 (1994). At trial on September 20, 1992, Cotton was convicted of the crime charged, and sentenced to seven years in the custody of the Mississippi Department of Corrections, six years to be served without the possibility of parole. The following issues raised in his appeal to this Court warrant discussion:

A. Did the trial court err in allowing the state to present the testimony of police Detective Jimmy Carruth concerning the attributes of the .45 caliber pistol?

B. Did the court err in allowing Dr. Tom Jeffcoat to testify concerning the medical condition of the alleged victim after the victim asserted his medical privilege?

C. Did the trial court err when it refused to dismiss the indictment for lack of a corpus delicti?

D. Did the court err when it allowed the state to call Maurice Ford, Chris Thomas, Jimmy Carruth and Dr. Tom Jeffcoat to the stand as rebuttal witnesses?

E. Did the state improperly present evidence of other crimes in an effort to slander the defendant?

II.

Detective Perry Ashley of the McComb Police Department was dispatched to the home of Martha Lee Cotton at 404 Evans drive on May 19, 1992. Clifton Dillon was found lying in the carport with a gunshot wound to his leg. Soon after an ambulance arrived, Martha Cotton's sons, Agent Kenny Cotton ("Agent Cotton") of the Mississippi Bureau of Narcotics and Frederick Cotton ("Cotton"), arrived on the scene. Agent Cotton was carrying a semi-automatic pistol which he turned over to Detective Ashley. His brother, Cotton, was arrested on charges of aggravated assault based on information related by Agent Cotton.

In a statement given to the police after being taken to the police station, Cotton claimed that Dillon stole $800 in cash from him. This resulted in a confrontation at Cotton's house on May 19, 1992. Cotton struck Dillon and demanded that he leave immediately, but Dillon returned a few minutes later. Cotton asked him to leave again and shot him as he ran out the door. Cotton maintained that he did not intend to shoot Dillon.

Agent Cotton said that he found Dillon with the injury to his leg before the police was dispatched to the scene. In response to Dillon's statements, Agent Cotton walked to his brother's house where Cotton admitted shooting Dillon. Agent Cotton then told his brother to get the gun and walk back to their mother's house. They both walked back to their mother's house where the gun was turned over to the police.

Dr. Thomas Jeffcoat, an orthopaedic surgeon, examined and treated Dillon on May 19, 1992 at the Southwest Mississippi Regional Medical Center. The bullet had entered the outside part of the leg and exited the inside leaving a hole through the bone. Dillon indicated at the hospital that he accidentally shot himself when the gun fell out of his pocket. Jeffcoat then asked him again about the cause of the accident because the wound was not consistent with his story. Dillon finally admitted "some dude shot him." Jeffcoat said the wound would have been at a different angle had the gun fired from his pocket or when it hit the floor. The wound was consistent with someone having stood above Dillon and shot him as he lay on the ground.

Maurice Ford and Chris Thomas, two officers from the McComb Police Department, testified that while at the hospital, Dillon stated that Frederick Cotton was responsible for the shooting.

Dillon maintained at trial that he accidentally shot himself after he dropped the gun on the floor. He claimed to have borrowed the gun from Roy Lee Jackson only 30 minutes earlier. Dillon said that he was only trying to show the gun to Cotton. He also testified that the bullet entered the inside part of his leg and exited the outside.

Felicia McGaffney was at Cotton's house when Dillon arrived on May 19, 1992. She said that Cotton accused Dillon of stealing money, hit him with a crutch and ordered him to leave. Threatening to return, Dillon ran out of the house. Cotton originally had approximately three thousand dollars stored in the house as a result of a settlement received from a car accident. Eight or nine hundred dollars of the money was actually stolen from him one night. McGaffney also claimed there had been "bad blood" between Cotton and Detective Ashley for some time prior to this incident.

Detective Jimmy Carruth testified that the weapon recovered by Detective Ashley was a Llama .45 semi-automatic with many safety features. Carruth maintained that the combined safety features required a specific sequence of events before the gun would shoot.

III.

A. Did the trial court err in allowing the state to present the testimony of police Detective Jimmy Carruth concerning the attributes of the .45 caliber pistol?

Detective Jimmy Carruth testified as to the safety features of the particular brand of .45 caliber pistol recovered from the defendant. Carruth said there were six safety features incorporated into the design of the gun. He explained that the combined safety features required the following sequence of events before the gun would shoot: "You have to have a magazine, you have to have it cocked, you have to have the safety on, you have to have a round in the chamber, you have to have a squeeze on the back strap of the gun and also the trigger at one time." Carruth maintained that the pistol would not fire any other way.

Cotton contends that Carruth was permitted to give improper expert opinion testimony because he was never qualified or tendered as an expert witness, and that the introduction of this testimony was a violation of Unif.Crim.R.Cir.Ct.Pr. 4.06 because Carruth was not listed as an expert witness. The first issue is whether Carruth's testimony constituted expert testimony or whether it was admissible as lay testimony. Lay opinions are given limited admissibility under Mississippi Rule of Evidence 701 which provides as follows:

[i]f the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to the clear understanding of his testimony or the determination of a fact in issue.

Lay opinion testimony must meet a two prong test; the witness must have observed the fact or had first hand knowledge, and the opinion must be helpful to the determination of the issues. Comment, M.R.E. 701. The facts reveal that Carruth clearly failed the first prong. He certainly did not witness the events which allegedly occurred between Cotton and Dillon, and he even admitted that he had not inspected the specific weapon allegedly used in the assault. "The requirement of personal knowledge as a prerequisite to lay opinion testimony is absolute." Wells v. State, 604 So.2d 271, 279 (Miss.1992). This testimony did not qualify as admissible lay opinion.

"[W]here, in order to express the opinion, the witness must possess some experience or expertise beyond that of the average, randomly selected adult, it is a M.R.E. 702 opinion and not a Rule 701 opinion." Sample v. State, 643 So.2d 524, 530 (Miss.1994); see Mississippi State Hwy Comm'n v. Gilich, 609 So.2d 367, 377 (Miss.1992) (lay opinions require no specialized knowledge); Wells, 604 So.2d at 279 (Miss.1992) (testimony requiring particular knowledge to assist trier of fact is expert testimony). In the present case, Carruth attempted to explain to the jury the mechanical features of the brand of gun allegedly used in this incident, and he gave the opinion that the weapon would not fire unless a specific sequence of events was followed. In order to assist the jury, he was indeed required to reveal particular knowledge about the Llama .45 caliber semi-automatic pistol. We find that the testimony given by Carruth constituted expert opinion.

The record reveals that Carruth was never qualified and tendered as an expert witness. It is reversible error to allow expert testimony from a witness never qualified or tendered as an expert. Roberson v. State, 569 So.2d 691, 696 (Miss.1990). The state's failure to list Carruth as an expert witness or provide any information regarding the substance of his testimony was also a violation of Unif.Crim.R.Cir.Ct.Pr. 4.06.

In Sample v. State, 643 So.2d 524, 530 (Miss.1994), this Court found that the trial court erred in permitting a police officer with a narcotics task force unit to testify as to the value, normal street usage and customary packaging of marijuana because the prosecution failed to qualify and tender the officer as an expert in this area. Compare Frierson v. State, 606 So.2d 604, 607 (Miss.1992) (police officer's opinion as to meaning of word "package" contained in note written to defendant inadmissible since officer was not qualified expert) with Jackson v. State, 551 So.2d 132, 142 (Miss.1989) (statement simply regarding officer's suspicion resulting from investigation is admissible lay opinion) and Whittington v. State, 523 So.2d 966 (Miss.1988) (introduction of expert opinion without...