Johnson v. State

• Decision Date: 07 December 1995
• Docket Number: No. 91-KA-00846-SCT,91-KA-00846-SCT
• Citation: 666 So.2d 499
• Parties: Deric M. JOHNSON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 499

666 So.2d 499

Deric M. JOHNSON v. STATE of Mississippi.

No. 91-KA-00846-SCT.

Supreme Court of Mississippi.

Dec. 7, 1995.

Ross Parker Simons, Pascagoula; Jaye A. Bradley, Gautier, for appellant.

Michael C. Moore, Attorney General, Jackson; Jeffrey A. Klingfuss, Sp. Ass't Attorney General, Jackson, for appellee.

En banc.

ON PETITION FOR REHEARING

McRAE, Justice, for the Court:

This Court grants the petition for rehearing and the original opinion is withdrawn and these opinions are substituted therefor.

Deric Johnson was convicted of distribution of cocaine in the Circuit Court of Jackson County and sentenced to ten (10) years in the custody of the Mississippi Department of Corrections. He contends that evidence of a prior conviction of distribution of cocaine should not have been introduced at trial because the prosecution and the trial court failed to meet the prerequisites to its admissibility under M.R.E. 609. To the contrary, we find that the defendant opened the door for its admissibility, and that the evidence was properly introduced as normal impeachment evidence to rebut false statements made by Johnson while testifying at trial. Therefore, this Court affirms Johnson's conviction and ten year sentence.

Prior to trial, the circuit judge overruled Johnson's motion in limine to exclude evidence of his prior conviction of cocaine distribution. The judge noted that if Johnson took the stand and the State thereafter wished to question him regarding his prior conviction, a determination of admissibility would then be made, outside the presence of the jury.

James Cotton, an undercover agent with the Mississippi Bureau of Narcotics, testified at trial that he purchased seven rocks of crack cocaine from Johnson, a/k/a "Skeeter," for one hundred dollars ($100.00). Subsequent witnesses corroborated Cotton's testimony and established that the rocks purchased from Johnson were indeed cocaine. At trial, Cotton identified the defendant, Deric Johnson, a/k/a "Skeeter," as the person from whom he had purchased the cocaine. Cotton also established a chain of custody of the cocaine rocks.

Deric Johnson took the stand and claimed he had never been called "Skeeter" and that he had never seen Agent Cotton before this trial. When asked whether he had done what he was accused of doing, Johnson responded: "I didn't do nothing. I was just going to school, and I know if anything happened at nine o'clock, I was at home, you know." Johnson was then asked if he had ever been arrested for anything before October 6, 1987. ¹ He said "No, I ain't never been arrested. Never been in Youth Court or--". Johnson then again denied ever having seen Agent Cotton before this trial.

On cross-exam, the following confused colloquy occurred Q: Mr. Johnson, you have never seen Agent James Cotton until today? Is that your testimony?

A: Yes, sir.

Q: And I also heard you say: I've never been arrested. Did you mean before October 6th of 1987, or does that include after October 6th of 1987?

A: Never before, before then.

Q: How much cocaine could somebody buy back in October of '87 for a hundred dollars?

A: I don't know nothing about cocaine.

[Objection by defense counsel overruled.]

Q: What was your answer?

A: I said I don't know nothing about no drugs.

The prosecution then made a motion outside the presence of the jury to introduce Johnson's prior conviction. In ruling on the prosecution's motion, the trial court stated,

As far as the Court is concerned, the request is to show that this defendant saw Agent Cotton on whatever date this trial was, because he just said he didn't. And Agent Cotton testified in his presence at that prior time. [I]n view of this witness' testimony that he's never seen this agent before and he has apparently seen him in court before, I'm going to overrule, I'm going to sustain his motion to ask the proper question, now, Mr. Evans of this witness, if that's what you want to do. Has he ever been convicted before now? And then you can ask him, go into this matter of whether he testified or not with this witness. I'll sustain your motion to go into the prior conviction, but only to proper questions.... [I]t's the Court's opinion that the merit of what the State is trying to get to, to introduce outweighs any prejudice; that this man's testimony that he never saw that agent before is very material when he saw him in court.

The State then elicited from Johnson that he had previously been convicted of the sale of cocaine to Agent Cotton. Defense counsel thereafter, outside the presence of the jury, requested a mistrial claiming the prejudicial effect of Johnson's prior conviction far outweighed its probative value.

As Johnson's prior conviction of distribution of cocaine is not in the nature of crimen falsi, it had no intrinsic probative value and is not mandatorily admissible pursuant to M.R.E. 609(a)(2). This type of crime would only be admissible under M.R.E. 609(a)(1). Johnson, however, argues that the trial court failed to follow the steps required to admit evidence of a prior conviction to impeach pursuant to M.R.E. 609(a)(1). He also claims error in the trial court's failure to make an advance ruling on the admissibility of his prior conviction. The State asserts that Rule 609 is inapplicable to the facts and circumstances of this case. Instead, according to the State, evidence of Johnson's prior conviction was properly admitted pursuant to M.R.E. 404(b) or as "normal impeachment."

This Court has previously admonished that preliminary rulings are preferred unless "delay is absolutely necessary to a fair presentation of the issue." Settles v. State, 584 So.2d 1260, 1265 (Miss.1991). Prior notice is necessary, according to Johnson, so that a defendant can make an informed decision regarding whether to take the stand. Although preliminary rulings are preferred, it is discretionary with the trial court whether to provide an advance ruling on the admissibility of prior convictions for impeachment purposes pursuant to M.R.E. 609(a)(1). Butler v. State, 608 So.2d 314, 324 (Miss.1992). It would be of no moment that the trial court declined to provide an advance ruling on the issue since the record indicates that Johnson did not decline to testify in fear of admission of his prior conviction pursuant to M.R.E. 609. We find no error here.

On the other hand, the record does indicate that the State made no attempt to meet the requirements of admissibility pursuant to M.R.E. 609(a)(1). The prosecution must make a prima facie showing "that the conduct giving rise to the prior conviction ... bears upon the witness's propensity for truthfulness" before a prior conviction may be admitted to impeach under M.R.E. 609(a)(1)). Tillman v. State, 606 So.2d 1103, 1107 (Miss.1992).

Once the State has met its threshold burden of establishing prima facie that the defendant's prior conviction is relevant to his propensity for truthfulness, the trial court must make an on-the-record determination that this probative value outweighs the prejudicial effect of the prior conviction. M.R.E. 609(a)(1), Comment; Tillman, 606 So.2d at 1107; McInnis v. State, 527 So.2d 84, 87 (Miss.1988); Peterson v. State, 518 So.2d 632, 636 (Miss.1987). This entails an on-the-record balancing of the following five factors: (1) impeachment value of the prior offense; (2) date of the prior conviction; (3) similarity between the past and presently charged offenses; (4) importance of defendant's testimony; and (5) whether credibility is central. Peterson, 518 So.2d at 636.

Johnson is correct in his contention that the prosecution failed to make a prima facie showing that the prior conviction had probative value. Because the prosecution failed to make a prima facie showing of the probative value of the prior conviction, the trial court could not make an on-the-record determination of whether it was outweighed by its prejudicial effect. See McInnis, 527 So.2d at 88 (purpose of prima facie showing of probative value by prosecution is to provide facts upon which the trial court may balance it against prejudicial effect). Thus, evidence of Johnson's prior conviction could not have been properly admitted pursuant to M.R.E. 609(a)(1). If the prior conviction was admitted as general impeachment pursuant to M.R.E. 609, we would be required to reverse and remand this case to the trial court since neither the State nor the trial court followed the procedures required before admission of evidence pursuant to M.R.E. 609.

The State contends, as it did at trial, that the prior conviction was admitted as "normal impeachment" to show that Johnson had made two specific false statements: (1) that he had never before seen Agent Cotton, and (2) that he didn't know anything about cocaine. In addition, the State asserts that Rule 609 is inapplicable to the facts and circumstances of this case since evidence of Johnson's prior conviction was properly admitted pursuant to M.R.E. 404(b). This Court must determine whether such evidence was properly admitted pursuant to the theories offered by the State as Johnson's prior conviction was not properly admitted pursuant to M.R.E. 609.

Evidence of Johnson's prior conviction of cocaine distribution was admitted on cross-examination. M.R.E. 611(b) allows wide-open cross-examination, but only relevant matters may be explored. Johnston v. State, 618 So.2d 90, 93 (Miss.1993). The relevancy and admissibility of evidence are left, in large part, to the discretion of the trial court. Johnston v. State, 567 So.2d 237, 238 (Miss.1990). However, this discretion must be exercised within the confines of the Mississippi Rules of Evidence. Id. Reversal is proper only where such discretion has been abused and a substantial right of a party has been affected. Green v. State, 614 So.2d 926, 935 (Miss.1992); M.R.E. 103(a).

"Where an accused, on direct examination, seeks to exculpate himself, such testimony is subject to normal impeachment via...