Harrison v. State, 57898

Decision Date09 November 1988
Docket NumberNo. 57898,57898
Citation534 So.2d 175
PartiesWillie D. HARRISON v. STATE of Mississippi.
CourtMississippi Supreme Court

G. Jyles Eaves, Eaves & Eaves, Richard P. Ballard, McNeel & Ballard, Louisville, for appellant.

Edwin Lloyd Pittman and Mike Moore, Attys. Gen. by DeWitt Allred, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before ROY NOBLE LEE, C.J., and SULLIVAN and ANDERSON, JJ.

SULLIVAN, Justice, for the court:

Willie D. Harrison and his wife were estranged, and Annie had been staying with Willie D.'s brother, Robert, and Robert's wife, in Louisville. On October 13, 1985, Harrison went to Ray Patty's house because Harrison thought Patty had been seeing Annie Ruth. After convincing Harrison that he was not seeing Annie Ruth, Patty agreed to go with Harrison to Louisville to talk with Annie Ruth.

Some two weeks prior to this occasion Annie Ruth had told Harrison that she was seeing Dennis Herrington and Harrison had confronted Herrington about this.

When Harrison and Patty got to Robert Harrison's home, they found Herrington's car already there. Patty went into the house. Harrison got a knife and went to the Herrington car where he found Annie Ruth with her head in Herrington's lap.

Harrison grabbed Annie Ruth by the hair of the head, pulled her from the car and stabbed her six times. He then scuffled briefly with Herrington. Meanwhile, Patty heard a scream and came out of the Robert Harrison house but saw nothing. Harrison told his brother, Robert, to call the police, then he and Patty drove to Noxapater to the home of Harrison's sister. Harrison told his sister to call the police, and shortly thereafter he was taken into custody by the Winston County Sheriff's Office. Some time during the early morning he gave a statement regarding the killing of his wife.

On July 25, 1986, a Winston County Jury found Willie Harrison guilty of murder, and he was sentenced to life imprisonment.

Harrison appeals to this Court, assigning five errors:

I. The Court erred in allowing the District Attorney to impeach State witness, Ray Lee Patty, and allowing the State to "cross-examine" said State witness, and further for allowing said witness to testify that he was smaller than the Defendant and was "afraid of him" thereby highly prejudicing the jury, and further by over-ruling a motion for a mistrial;

II. The Court erred in allowing the State to call police officer Willie Joe Coleman for the purposes of impeaching their own witness, Ray Lee Patty;

III. It was error to introduce an alleged written confession of Appellant as the proof showed that Defendant could neither read nor write and did not understand the contents of the written statement taken by police officers immediately after his arrest;

IV. The State's proof was insufficient for a conviction of murder, especially since the State failed to call the only eye witness, "Moon" Herrington, as a witness, and the Court should have instructed the jury that they could find the Defendant guilty of no greater crime than manslaughter; and

V. The Court erred in refusing to grant a mistrial when one of the jurors left the Jury room during deliberations and came into the Judge's chamber and requested to be relieved from the Jury.

I.

THE COURT ERRED IN ALLOWING THE DISTRICT ATTORNEY TO IMPEACH STATE WITNESS, RAY LEE PATTY, AND ALLOWING THE STATE TO "CROSS-EXAMINE" SAID STATE WITNESS, AND FURTHER FOR ALLOWING SAID WITNESS TO TESTIFY THAT HE WAS SMALLER THAN THE DEFENDANT AND WAS "AFRAID OF HIM" THEREBY HIGHLY PREJUDICING THE JURY, AND FURTHER BY OVER-RULING A MOTION FOR A MISTRIAL.

Harrison's first assignment of error is predicated upon a series of exchanges between Assistant District Attorney Lacy and the witness Ray Lee Patty.

Q. Do you recall making a statement to Officer Willie Joe Coleman on the 14th of October, 1985?

BY MR. EAVES:

We object, Your Honor. This is his witness. He can't impeach his own witness.

BY MR. LACY:

Your Honor, I'm entitled to impeach my own witness on a lapse of memory if it becomes necessary. That's clear under the rules.

BY THE COURT:

Under the new rules, I think you're right.

BY MR. LACY:

Q. Now, do you recall talking to Officer Coleman on the 14th, which is the day after the 13th, the day Annie Ruth was killed, do you recall talking to him?

A. Well, like I said, my memory is--yes, I remember talking to him.

BY MR. LACY:

Q. All right. Do you remember telling the officer, "He was going to his sister's townhouse. On the way he kept telling me he had messed them up." Do you remember making that statement?

A. No, I don't. I don't remember telling anyone that.

Q. In the statement that you gave you do not remember making that statement at that time?

A. No. I said,--no--do you mind repeating that again?

Q. "He was going to his sister's townhouse. On the way he kept telling me he had messed them up." Isn't that the statement that you made to Officer Coleman when you were interviewed?

A. No, I never told him he kept saying he messed them up. I never gave him that statement.

* * *

Q. When you gave the statement to the officer on the 14th of October, did you testify you remembered giving--did you tell the officer, "He showed me a Dutch knife with blood on it"?

A. Like, I told you, I can't remember giving him that statement there.

* * *

Q. Do you remember making the statement to the officer when you gave the statement on the 14th of October, 1985, "He continued to do it and say, 'This is what I did with it' as he slung it back and forth." Do you remember making that statement?

A. No, I don't. I don't recall giving that statement.

* * *

Q. When you gave your statement to Officer Coleman on the 14th of October, didn't you tell the officer, "I looked back when I heard Annie Ruth Harrison hollering." Didn't you tell the officer that?

A. I didn't say who I heard hollering. I said I heard a scream, and I said I was on the inside and I looked around but I was going down the hall.

Q. And didn't you say, "But I did not see Annie Ruth."

A. That's true. I did not see her.

Q. But you told the officer, "I heard Annie Ruth hollering." Isn't that what you told him?

A. Now, you're putting words in my mouth. Now, I said I heard her scream. I didn't mention no name.

* * *

Q. And you have testified, I believe, that the Defendant told his brother and his wife to call the cops, that he'd caught them red-handed and that he'd messed them up. Isn't that what you just--

BY MR. EAVES:

Your Honor, I object to leading.

BY THE COURT:

Ask him if he made that statement.

BY MR. LACY:

Q. Did you make that statement?

A. I didn't say he had messed them up--do you mind repeating that question?

Q. Didn't you make the statement that the Defendant told his brother and his wife to call the cops, "I've caught them red-handed, I have messed them up." Isn't that what you told the officer? Isn't that what you've testified to?

A. All except messed them up. I can't remember--I can't recall saying messed them up. He said he caught them.

The defendant characterizes these exchanges as improper impeachment because the witness was not declared hostile, and a proper predicate was not laid.

First, this case was tried after the adoption of the Mississippi Rules of Evidence. Under 607, "the credibility of a witness may be attacked by any party, including the party calling him." The voucher rule, upon which the defendant mistakenly relies, has been repudiated. See, Comment M.R.E. 607. Second, it is clear that a proper predicate for impeachment was laid. See Carlisle v. State, 348 So.2d 765, 766 (Miss.1977). Third, prior inconsistent statements may be used to impeach a witness even though the statements tend directly to inculpate the defendant. U.S. v. Hogan, 763 F.2d 697, 702 (5th Cir.1985). Fourth, Patty's testimony at trial reveals the necessary inconsistency. West, Handbook on Federal Evidence, Section 613.2 (2nd Ed. 1986).

However, a prosecutor may not use prior statements of a witness "under the guise of impeachment for the primary purpose of placing before the jury substantive evidence which is not otherwise admissible." U.S. v. Livingston, 816 F.2d 184, 192 (5th Cir.1987); U.S. v. Miller, 664 F.2d 94, 97 (5th Cir.1981), cert. denied 459 U.S. 854, 103 S.Ct. 121, 74 L.Ed.2d 106 (1982); (emphasis in original). Such a scheme serves as a device to avoid the hearsay rule. Hogan, 763 F.2d at 702. However, in this case it is not argued, and it is not plain from the record, that the prosecutor was invoking the permission of Rule 607 merely as a subterfuge to place incriminating hearsay before the jury. See Miss.S.Ct.R. 6(b); M.R.E. 103(d).

The prior statements of Ray Patty were offered, not to prove the truth of the matter asserted, but as circumstantial evidence from which the jury could infer that the trial testimony of Ray Patty was unreliable. Therefore, they were not hearsay.

It would have been proper for the court sua sponte to instruct the jury to consider these prior statements as impeachment evidence only, but the failure to do so is harmless error. Miss.S.Ct.R. 11. 1 First, the jury's ability to obey such an instruction is questionable. Second, there was ample evidence, notwithstanding the prior statements, from which the jury could find the defendant guilty of murder. Third, the prior statements were disclosed in open court to Ray Patty and counsel opposite. M.R.E. 613(a). Fourth, Ray Patty was on the witness stand and available for interrogation by counsel opposite concerning the inconsistencies in his testimony.

Also, it was proper impeachment to elicit from the witness, Ray Patty, that he was afraid of the defendant. This is legitimate impeachment evidence going to the "untrustworthy partiality" of the witness. West, Handbook of Federal Evidence, Section 607.7 at page 432 (2nd Ed. 1986). The point of this inquiry is to expose to the jury the witness' special motive to slant, unconsciously or otherwise, his testimony. U.S. v. Abel, 469 U.S....

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