Johnston v. State, 90-KA-1098

• Decision Date: 22 April 1993
• Docket Number: No. 90-KA-1098,90-KA-1098
• Citation: 618 So.2d 90
• Parties: Chester Jordan JOHNSTON, Jr. v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 90

618 So.2d 90

Chester Jordan JOHNSTON, Jr. v. STATE of Mississippi.

No. 90-KA-1098.

Supreme Court of Mississippi.

April 22, 1993.

P.J. Townsend, Jr., Townsend McWilliams & Holladay, Drew; James N. Sherman, Jr., Townsend McWilliams & Holladay, Indianola, for appellant.

Michael C. Moore, Atty. Gen., Mary Margaret Bowers, Sp. Asst. Atty. Gen., Jackson, for appellee.

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

SULLIVAN, Justice, for the Court:

In June of 1976, Ralph Taylor Edwards, Jr., was found dead in his automobile near Indianola, Mississippi. He had been robbed and shot in the head.

In 1981, Highway Patrol Officer Jessie Bingham got a tip from an inmate that Johnston had been involved in Edwards' killing, which he related to Sheriff Sessums. Bingham and the sheriff went through the sheriff's file on the Edwards case and found only four or five polaroid pictures of the victim and some typed statements. Bingham suspected Johnston and confronted him, but Johnston denied any involvement in the crime. Bingham later returned the Edwards file to the sheriff's office.

In 1989, Mark Ferretti was questioned about his involvement in other crimes, and his answers reopened the Edwards case. Tracie Ferretti, Mark Ferretti's ex-wife, was granted immunity by the prosecution in exchange for her testimony in the upcoming Johnston trial. Johnston was arrested and charged with capital murder.

At trial Tracie Ferretti testified that Johnston, Mark Ferretti, and Marsha Baldridge had planned to rob Edwards. Johnston had a .25 calibre pistol and Tracie, Johnston, and Mark Ferretti were in Mark's car on Highway 448 when Johnston fired several shots at Edwards. Edwards' vehicle then veered off the road. Johnston went to the car, returned and told the Ferrettis to leave quickly and keep their mouths shut. He said they had killed Edwards for $20.00.

Sharon Tisdale, Johnston's former sister-in-law, who was following the Ferretti car on Highway 448 on that day, corroborated Tracie Ferretti's testimony.

Johnston took the stand in his own defense and denied any involvement in Edwards' murder. Johnston's main defense was alibi as he said he thought he was in Jackson, Mississippi, on the day in question.

The jury retired, then returned a verdict of capital murder and Chester Jordan Johnston, Jr., was sentenced by Judge Davis to life imprisonment without parole in the custody of the Mississippi Department of Corrections.

On appeal, Johnston claims:

1. That the State failed to produce certain physical evidence and other exculpatory items in violation of his discovery request;

2. That the trial judge erroneously limited the cross-examination of Tracie Ferretti; and

3. That he was improperly sentenced as an habitual offender under Mississippi Code Annotated, Section 99-19-81.

I.

DID THE LOWER COURT ERR IN FAILING TO DISMISS THIS CAUSE

AFTER THE STATE FAILED TO PRODUCE CERTAIN PHYSICAL

EVIDENCE AND OTHER ITEMS WHICH POSSESSED

EXCULPATORY VALUE?

Johnston claims that various items of physical evidence, which evidently had been lost, may have possessed exculpatory value to him. The loss of these items, according to Johnston, warranted dismissal of the charges against him.

Johnston is incorrect. The State has the duty to preserve evidence, but that duty is limited to that evidence which "might be expected to play a significant role in the suspect's defense." Tolbert v. State, 511 So.2d 1368, 1372 (Miss.1987).

The evidence at issue here consists of two guns, the bullets recovered from Edwards' head and his vehicle, seven cartridges, one clip, and photographs of the victim at the crime scene and of the interior of the victim's automobile. Every witness who testified about the search for this evidence stated that there had been no intentional destruction of the evidence and the trial judge agreed. There is therefore no inference that the evidence would have been unfavorable to the State. Whether this evidence would have played a significant role in Johnston's case depends on whether the exculpatory nature and value was apparent before it was lost and whether it was of such a nature that Johnston could not obtain comparable evidence by other reasonable means. Id.

Johnston's defense was alibi and he had stated his intention to raise this defense prior to the time the trial judge ruled on the motion to dismiss. Johnston admits in his brief that the loss of evidence did not affect his ability to present the defense of alibi. He claims, however, that it was his ability to discredit the State's case that was harmed by the evidence lost. The prosecution, however, did not claim that Johnston's fingerprints were on either of the lost guns or that he was in any way connected to the missing guns. In fact, the FBI crime lab determined that neither of the two guns tested in connection with Edwards' murder had fired the bullet that was removed from Edwards' head. The State's case against Johnston was based on the testimony of Tracie Ferretti.

None of the missing evidence appears to have had exculpatory value and none would have discredited the testimony of Tracie Ferretti. Johnston has failed to show how the missing evidence could have helped his case, other than by conjecture. The mere possibility that the evidence might have helped his case is insufficient. The trial judge properly denied Johnston's motion to dismiss.

II.

DID THE TRIAL COURT ERR IN LIMITING THE CROSS-EXAMINATION OF

TRACIE FERRETTI CONCERNING HER PAST HISTORY OF CRIMINAL

ACTIVITY AND PAST DRUG INVOLVEMENT AND THE PAST HISTORY OF

CRIMINAL ACTIVITY AND PAST DRUG INVOLVEMENT OF MARK FERRETTI?

"The relevancy and admissibility of evidence are largely within the discretion of the trial court and reversal may be had only where that discretion has been abused." Johnston v. State, 567 So.2d 237, 238 (Miss.1990). The discretion of the trial judge, however, must be exercised within the boundaries of the Mississippi Rules of Evidence. Johnston, 567 So.2d at 238. See M.R.E. 103(a), 104(a).

M.R.E. 611(b) allows wide-open cross-examination so long as the matter probed is relevant. M.R.E. 611(b), Comment; State Highway Com'n of Miss. v. Havard, 508 So.2d 1099, 1102 (Miss.1987). A judge may limit cross-examination to serve one of the purposes stated in M.R.E. 611(a), to wit: to make the examination effective for ascertaining the truth, to avoid waste of time, and to protect witnesses from harassment or undue embarrassment. M.R.E. 611(b), Comment; M.R.E. 611(a). See also Sayles v. State, 552 So.2d 1383, 1386 (Miss.1989).

Johnston argues that the past criminal activity of the Ferrettis was relevant pursuant to M.R.E. 404(b) to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The Ferrettis, however, were not on trial for the murder of Edwards. Mark Ferretti was not even a witness in this case. The proper test of relevancy is found in M.R.E. 401: evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable is relevant. It does not appear that the Ferrettis' past criminal history or drug use is relevant, therefore such questions were properly prevented by the trial judge. M.R.E. 402.

Johnston's argument gains some force when grounded on M.R.E. 404(a)(3) and 608. M.R.E. 404(a)(3) allows character evidence of a witness as provided in Rules 607, 608 and 609. M.R.E. 607 provides that any party may attack the credibility of a witness. M.R.E. 609 is inapplicable as Johnston admits there were no convictions for the past criminal activities about which he sought to elicit testimony. M.R.E. 608 provides that specific instances of conduct of a witness may be inquired into on cross-examination to attack the credibility of the witness if probative of truthfulness or untruthfulness.

The case of McInnis v. State, 527 So.2d 84, 88 (Miss.1988), addressed the admissibility of a prior arson conviction to impeach, pursuant to M.R.E. 609. Rule 609(a)(1) allows use of prior convictions for the purpose of attacking the credibility of a witness on cross-examination if the conviction has probative value. McInnis, 527 So.2d at 88. This Court said: At the risk of belaboring the obvious, the prior conviction is offered to impeach. Rule 609 allows use of prior convictions "for the purpose of attacking the credibility of the witness" and for no other. The issue with respect to which the prior conviction must be relevant, if it is to be admissible, is the defendant's propensity for truthfulness as a witness.

McInnis, 527 So.2d at 88.

We are now faced with the question of admissibility of specific instances of conduct to impeach, pursuant to M.R.E. 608. Rule 608(b) allows use of specific instances of conduct for the purpose of attacking (or supporting) the credibility of a witness on cross-examination if probative of truthfulness or untruthfulness. M.R.E. 608(b). To paraphrase McInnis, the specific instances of conduct were offered to impeach. Rule 608 allows use of specific instances of conduct for the purpose of attacking [or supporting] the credibility of the witness and for no other. The issue with respect to which of the specific instances of conduct must be relevant, if they are to be admissible, is the witness' propensity for truthfulness [or the propensity for truthfulness of another witness as to whose character the witness being cross-examined has testified].

In order to be admissible, the past criminal and drug activities of Tracie Ferretti must be relevant to her propensity for truthfulness as a witness. Tracie's testimony can not be used to attack Mark Ferretti's credibility as Mark was not a witness in this case. M.R.E. 608(b)(2). We fail to see how either marijuana use or robbery have any bearing on a person's truthfulness. In Stevenson v. State, 606 So.2d 1103, 1107-08 (Miss.1992), we declined to find the trial court in error for...