Hobson v. State, 97-KA-00475-SCT.

• Decision Date: 17 September 1998
• Docket Number: No. 97-KA-00475-SCT.,97-KA-00475-SCT.
• Citation: 730 So.2d 20
• Parties: Abraham HOBSON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

730 So.2d 20

Abraham HOBSON v. STATE of Mississippi.

No. 97-KA-00475-SCT.

Supreme Court of Mississippi.

September 17, 1998.

Rehearing Denied November 12, 1998.

George T. Holmes, Jackson, Attorney for Appellant.

Office of the Attorney General by Scott Stuart, Attorney for Appellee.

Before SULLIVAN, P.J., and JAMES L. ROBERTS, Jr. and WALLER, JJ.

SULLIVAN, Presiding Justice, for the Court:

¶ 1. Abraham Hobson was indicted by the Hinds County Grand Jury during the September, 1995, Term for the murder of James Carson. He proceeded to trial on March 26, 1997. The jury found Hobson guilty of murder, and Circuit Court Judge W. Swan Yerger sentenced him to the mandatory term of life in the custody of the Mississippi Department of Corrections. Hobson appeals to this Court, assigning as error the denial of his motion in limine, introduction of hearsay, failure to grant a mistrial, refusal to admit impeachment evidence against the State's key witness, denial of instructions on identification evidence and manslaughter, inflammatory comments by the prosecutor during closing argument, and the sufficiency of the evidence. Finding no merit to any of Hobson's claims, we affirm his conviction and sentence.

STATEMENT OF THE FACTS

¶ 2. In the early morning of May 15, 1995, Frank Stone was working picking up paper at Gains Grocery in Jackson. Stone saw what he described as a white Iroc parked in the middle of the intersection of Lamar and Bell Streets under a street light. Abraham Hobson was leaning against the car. Stone testified that he saw Hobson "come up with" a pistol, and the man in the car passed him a package. Hobson shot the man in the car, and the man punched the gas and drove off through a red light. The car wrecked in a drug store parking lot, and the police arrived on the scene shortly thereafter. Officer Brent Winstead identified the victim as James A. Carson.

¶ 3. Officer Lawrence Epps with the Jackson Police Department arrived on the scene of the shooting and spoke with Stone. Stone identified Hobson as the shooter and showed Officer Epps where Hobson lived on Ash Street. Perry McAbee also gave a statement to police stating that he saw Hobson running down the pathway from Gains Grocery after the shooting. Stone also spoke with Officer Winstead, who arrested Hobson at his mother's house on Ash Street. Officer Winstead showed Stone a photo line-up, and Stone identified Hobson as the shooter from the photographs.

¶ 4. At the time of his arrest, Hobson told police that he had no knowledge of the shooting or the victim. When the officers informed Hobson that they had a witness identifying him as the gunman, he still denied any involvement. However, Hobson later told Officer Winstead that he had talked to a guy in a white Camaro Z28, looking for someone named "D" at about 11:00 p.m.

¶ 5. Officer Childress arrived on the scene at 12:38 a.m. after the victim's body had been transported. He photographed the white Camaro Z28 and the area around the scene at the drug store parking lot on the southeast corner of Lamar and Fortification Streets. One of the photographs depicted a small handgun on the driver's side floorboard that was found underneath the floor mat. John Dial with the Jackson Police Department Crime Laboratory determined that a projectile recovered from Carson's autopsy was not fired from the .32 automatic recovered from the victim's car. He was also able to determine that the .32 automatic had not been fired recently when it was removed from the crime scene.

¶ 6. Dr. Rodrigo Galvez, who performed the autopsy on Carson, testified that the cause of death was massive internal bleeding caused by a gunshot wound entering the right arm and going through Carson's chest, through his lungs and heart. There was no tattooing (gunpowder marks) around the gunshot entrance wound, indicating that the gun was more than eighteen inches away from him when it was fired.

¶ 7. The defense rested without calling any witnesses. Based upon the above evidence presented by the State, the jury found Hobson guilty of murder. Judge Yerger sentenced Hobson to the mandatory term of life imprisonment.

STATEMENT OF THE LAW

I. WHETHER THE COURT ERRED IN DENYING DEFENDANT'S MOTION IN LIMINE TO EXCLUDE IRRELEVANT EVIDENCE ABOUT UNRELATED CHARGES?

¶ 8. Hobson was arrested on an outstanding warrant for simple assault, then was charged with murder upon arrival at the police station. Hobson filed a motion in limine on November 15, 1996, to exclude 1) any evidence regarding the simple assault charge, and 2) any evidence regarding the photo line-up. At the motion hearing on the first day of trial, the State only responded to the issue of the photo line-up. Judge Yerger overruled the motion in limine "[b]ased upon the representations of the State." Essentially, the court, ruled only on the motion in limine regarding the photo line-up, and not the simple assault charge. In questioning Officer Winstead about Hobson being advised of his Miranda rights, the prosecutor asked Winstead if he told Hobson what he was being arrested for. When Officer Winstead began answering that Hobson was arrested on a simple assault charge, the defense objected, and the prosecutor clarified that he wanted to know whether they informed Hobson that they wanted to question him about the murder. Judge Yerger made no ruling on the objection, and the statement was allowed without any limiting instruction to the jury. Hobson argues that allowing the jury to hear that he was previously charged with simple assault so prejudiced his case as to result in an unfair trial, requiring reversal.

¶ 9. It was Hobson's responsibility to secure a ruling on his motion in limine and on his contemporaneous objection to the testimony. He did neither in this case. As a result, he has waived this issue on appeal. Cotton v. State, 675 So.2d 308, 314 (Miss. 1996); Wright v. State, 540 So.2d 1, 4 (Miss. 1989).

¶ 10. Aside from being waived, this issue is without merit. The prosecutor was attempting to establish that Hobson was advised of his rights regarding the murder charge, not to elicit any specific information about a prior offense committed by Hobson to prove bad character. Where the witness refers briefly to another crime, and the testimony was not purposely elicited by the district attorney to prove the defendant's character, no reversible error occurs. De La Beckwith v. State, 707 So.2d 547, 582-83 (Miss.1997). Any resulting prejudice here was minor, and we refuse to reverse based upon this assignment of error.

II. WHETHER THE COURT ERRED IN ALLOWING THE STATE TO INTRODUCE HEARSAY EVIDENCE?

¶ 11. Over Hobson's objections, Officer Epps was allowed to testify that Stone provided him with the name Abraham when asked about the identity of the shooter and directed him to Hobson's house to assist in his apprehension. Hobson argues that these statements were inadmissible hearsay.

¶ 12. Stone's statements to Officer Epps fall under a hearsay exclusion in Rule 801(d)(1)(B), allowing admission of a prior consistent statement by a witness subject to cross-examination at trial "to rebut an express or implied charge against him of recent fabrication or improper influence or motive." Miss. R. Evid. 801(d)(1)(B). Stone testified at trial and was subject to cross-examination, during which counsel for the defense accused him of lying on the stand. "Where, as here, the defense raises the claim of fabrication without alleging any particular impermissible motive or source of influence, courts have held that rebuttal testimony by third persons may be admitted to demonstrate the absence of influence or motive to fabricate." Hosford v. State, 560 So.2d 163, 168 (Miss.1990). We find that the State was allowed to elicit testimony from Officer Epps regarding Stone's prior statements implicating Hobson in the murder of Carson to rehabilitate Stone as a witness.

¶ 13. Hobson also complains about the trial court's admission of Officer Winstead's testimony regarding McAbee's statement to police. During the defense's cross-examination of Winstead, the following exchange took place:

Q. Okay. And really the only thing that you have that supports a case against Abraham Hobson is the statement of Frank Stone; is that correct?

A. And him run—and Perry McAbee seeing him running from the scene—

Q. —Well, that doesn't prove anything. There's been no testimony about that.

¶ 14. After hearing argument from both sides, Judge Yerger allowed Officer Winstead to complete his response. Winstead testified that McAbee gave a statement to police informing them that he witnessed Hobson running down the pathway from the store after the murder. On redirect, the prosecution asked Winstead whom McAbee said that he saw fleeing the scene, and Winstead responded that McAbee saw Hobson. Hobson did not object to the question on redirect. Because Hobson failed to object to the question on redirect, he has waived any potential error on appeal. Carr v. State, 655 So.2d 824, 853 (Miss.1995).

¶ 15. It is true that a party cannot open the door to admission of hearsay evidence. Murphy v. State, 453 So.2d 1290, 1293-94 (Miss.1984). However, in this case, the defendant elicited the hearsay himself. "It is axiomatic that a defendant cannot complain on appeal concerning evidence that he himself brought out at trial.... As the Court stated pithily in Reddix v. State, 381 So.2d 999, 1009 (Miss.), cert. denied, 449 U.S. 986, 101 S.Ct. 408, 66 L.Ed.2d 251 (1980): `If the defendant goes fishing in the state's waters, he must take such fish as he catches.'" Fleming v. State, 604 So.2d 280, 289 (Miss. 1992) (internal citations omitted) (holding that defendant waived error of admission of hearsay testimony when he elicited it himself). We find no error resulting from the admission of Officer Winstead's testimony in this case.

III. WHETHER THE COURT ERRED BY NOT GRANTING A MISTRIAL WHEN STATE WITNESS FRANK STONE NON-RESPONSIVELY STATED...