Johnson v. State, 57340

Decision Date11 May 1988
Docket NumberNo. 57340,57340
Citation525 So.2d 809
PartiesL.V. JOHNSON, Jr. v. STATE of Mississippi.
CourtMississippi Supreme Court

George S. Monroe, B. Jackson Thames, Jr., Newton, for appellant.

Edwin Lloyd Pittman and Mike Moore, Attys. Gen. by Jo Anne M. McLeod, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before DAN M. LEE, P.J., and SULLIVAN and ANDERSON, JJ.

DAN M. LEE, Presiding Justice, for the Court:

L.V. Johnson was indicted in Neshoba County for forcible rape under Miss.Code Ann. Sec. 97-3-65(2) (1972 & Cumm.Supp.1987), on January 17, 1986. He was also indicted as an habitual offender pursuant to Miss.Code Ann. Sec. 99-19-81 (1972 & Cumm.Supp.1987) on March 25, 1986. Mr. Johnson's motion for a change of venue was granted and the trial was moved to Scott County, where Mr. Johnson was tried and convicted and sentenced to serve 40 years on the state penitentiary without benefit of parole, suspension, probation, or reduction of sentence. He appeals this conviction and sentence to this Court, assigning the following errors:

I. THE TRIAL COURT ERRED IN FAILING TO SUSTAIN APPELLANT'S MOTION FOR A CONTINUANCE ON THE GROUNDS OF THE ABSENCE OF A MATERIAL WITNESS FOR THE APPELLANT WHO WOULD HAVE TESTIFIED THAT THE APPELLANT WAS AT SAID MATERIAL WITNESS'S HOUSE WHEN THE RAPE OCCURRED.

II. THE TRIAL COURT ERRED WHEN IT FAILED TO SUSTAIN THE OBJECTION OF THE APPELLANT TO THE ADMISSION INTO EVIDENCE OF A STATEMENT, OR ALLEGED CONFESSION OF THE APPELLANT, WHICH WAS MADE AT A TIME WHEN APPELLANT WAS UNDER THE INFLUENCE OF DRUGS AND ALCOHOL.

III. THE LOWER COURT ERRED IN FAILING TO SUSTAIN THE MOTION FOR A NEW TRIAL BY THE APPELLANT ON THE GROUNDS THAT THE VERDICT OF THE JURY WAS CONTRARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE.

IV. THE TRIAL COURT ERRED IN FAILING TO SUSTAIN APPELLANT'S OBJECTION AND MOTION FOR A MISTRIAL WHEN APPELLANT WAS ASKED ABOUT HIS CONVICTION FOR THE RAPE OF MRS. EUBANKS IN OCTOBER 1985, IN NESHOBA COUNTY CIRCUIT COURT.

Around 3:00 a.m. on July 7, 1985, Mrs. Eddie Lee Eubanks, age 76, got up from her bed to go to the bathroom. When she came back, she felt someone in the bed and asked, "Who are you and where did you get in?" A male said, "I come in the only window you left open in your house." The man then raped her. He then wanted to be taken to where she kept money. He grabbed her flashlight, her telephones, and pulled a knife across her throat. She went to get her change purse from on top of the refrigerator and he grabbed her piggy bank off the mantle. He then wanted to be taken to the purse that she carried everyday. She took him to the guest bedroom and gave him a purse that did not have anything in it. He threatened to kill her for lying about her purse, whereupon she handed him the purse that she carried her money in. After this, he forced her back to the bedroom and raped her again. Then, he forced her back to the kitchen, picked up the telephones, the money, the piggy bank, two knives from her silverware drawer and asked Mrs. Eubanks to open the door. He threatened to kill her if she hollered or came after him. He left the house and went towards an electronics shop next door to Mrs. Eubanks' house. Mrs. Eubanks then went in search of help. A neighbor took her to the hospital.

We note at this point that Mr. Johnson was previously convicted in the Circuit Court of Neshoba County for the first rape of Mrs. Eubanks, which occurred some 15 minutes prior to the second rape the conviction of which is the subject of this appeal. The conviction and sentence of life imprisonment without parole for the first rape was affirmed by this Court in Johnson v State, 511 So.2d 1360 (Miss.1987). Mr. Johnson is confined for life and cannot serve any more time, regardless of the outcome of this case. Our decision in Johnson I disposes of all the questions Mr. Johnson raises on this appeal, save one: that the trial court erred in failing to sustain appellant's objection and motion for mistrial when the state asked him about his conviction for the earlier rape of Mrs. Eubanks.

On direct examination Mr. Johnson testified that he had served seven years in the state penitentiary for convictions of armed robbery, forgery and grand larceny. On cross examination the state referred to his testimony about previous convictions, and then asked if he had been convicted of another felony. Mr. Johnson responded, "Recently, on this charge." Defense counsel objected and moved for a mistrial. The court overruled the objection and the motion. The state then asked if he had been convicted in October of 1985 for rape, to which he replied, "yes, sir."

This is a heinous, egregious crime and we are loathe to reverse in such a case. But as we noted above, Mr. Johnson has already received the maximum sentence he can receive under the law, short of the death penalty. We, therefore, take this opportunity, since this sentence overlays the other, to address a problem with the system. We reverse for the reasons which follow.

This case was tried in March 1986, after the adoption of the Mississippi Rules of Evidence, effective January 1, 1986; therefore, M.R.E. 609 controls here. M.R.E. 609(a) provides as follows:

RULE 609. IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME.

(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect on a party or (2) involved dishonesty or false statement, regardless of the punishment.

Under M.R.E. 609(a)(1) and 609(b), evidence that Mr. Johnson had been convicted of the felony of rape, elicited from him on cross examination, would be admissible for impeachment purposes if the probative value of the evidence outweighed the prejudicial effect. Rape is a felony and this conviction fits within the time limit of ten years set out in 609(b). Pendency on appeal to this Court would not render the evidence of the conviction inadmissible. M.R.E. 609(e). The question before this Court, then, is whether the prior conviction for the same crime for which defendant is being tried is so prejudicial that its admission for impeachment purposes amounts to reversible error.

The problem centers around the criminal defendant, here Mr. Johnson, who elects to take the witness stand in his own defense. As such, the criminal defendant is subject to being impeached under Rule 609 with evidence of prior convictions. In this situation the protection of Rule 609, that the evidence must be determined by the trial judge to be more probative of the defendant's credibility than prejudicial, becomes crucial. See McCormick on Evidence (Edward W. Cleary, 3rd Ed., 1984), Sec. 43, n. 9. Rule 609(a)(1) 1 requires that the trial judge must determine whether the probative value of admitting a prior conviction outweighs the prejudicial effect. Here, no such determination was made by the trial judge and the issue is whether or not the determination must be made on the record. In United States v. Preston, 608 F.2d 626 (5th Cir.1979), the Fifth Circuit was faced with a situation where the trial judge, in ruling on the admissibility of a prior conviction for impeachment purposes, made no on-the-record findings that the probative value of the evidence outweighed the prejudicial effect. The Fifth Circuit held that a trial judge must make such findings on the record before admitting prior convictions under 609(a)(1). Id. at 639. The Fifth Circuit went on to say that "[f]ailure to make such a determination robs a defendant of the rule's protection." Id. at 640.

We likewise hold today that the trial judge must make his determination that the probative value outweighs the prejudicial effect of the evidence on the record. We further hold that the trial judge should articulate his reasons for his finding. This process should take place, of course, out of the hearing of the jury. What the trial judge must consider when making this determination has been considered in several federal cases when faced with a Rule 609 problem.

In United States v. Mahone, 537 F.2d 922 (7th Cir.1976), the Seventh Circuit set out several factors which the judge should take into account, as earlier articulated in a pre-Rules case, Gordon v. United States, 383 F.2d 936 (D.C.Cir.1967):

1. Impeachment value of the crime.

2. The point in time of the conviction and the witness's subsequent history.

3. The similarity of the past crime and the charged crime.

4. The importance of the defendant's testimony.

5. The centrality of the credibility issue.

Id. at 929. Where the state wishes to admit the prior conviction, the court points out that the state has the burden of proving the circumstances of the prior conviction in showing why it should...

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