McCullough v. State, 98-KA-00364-SCT.

• Decision Date: 21 October 1999
• Docket Number: No. 98-KA-00364-SCT.,98-KA-00364-SCT.
• Citation: 750 So.2d 1212
• Parties: Larry B. McCULLOUGH v. STATE of Mississippi.
• Court: Mississippi Supreme Court

750 So.2d 1212

Larry B. McCULLOUGH v. STATE of Mississippi.

No. 98-KA-00364-SCT.

Supreme Court of Mississippi.

October 21, 1999.

J.B. Goodsell, Clinton, Attorney for Appellant.

Office of the Attorney General by W. Glenn Watts, Attorney for Appellee.

BEFORE PRATHER, C.J., MILLS AND COBB, JJ.

MILLS, Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. Larry B. McCullough appeals from his conviction in the Yazoo County Circuit Court for aggravated assault and from his sentence of ten (10) years in the custody of the Mississippi Department of Corrections. On appeal, he assigns as error the following issues, which are taken verbatim from his brief:

I. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN ALLOWING EVIDENCE THAT THE DEFENDANT HAD SHOT SOMEONE IN AN UNRELATED PAST INCIDENT WHICH OCCURRED WHEN THE DEFENDANT WAS A JUVENILE?

II. DID THE TRIAL COURT ERR IN NOT GRANTING A CONTINUANCE WHEN THE STATE INFORMED THE DEFENSE THAT IT INTENDED TO IMPEACH THE DEFENDANT'S TESTIMONY WITH A PRIOR ACT THAT WAS NOT DISCLOSED TO THE DEFENSE UNTIL THE DAY OF TRIAL?

III. DID THE COURT ERR IN ALLOWING THE STATE TO USE A PRIOR FELONY CONVICTION OF POSSESSION OF COCAINE TO CHALLENGE THE CREDIBILITY OF DEFENSE WITNESS DEVON REESE?

STATEMENT OF THE FACTS

¶ 2. On April 3, 1997, outside the Red Barn Store in Yazoo City, Mississippi, Larry B. McCullough shot Darrell Waller in the leg with a .38 caliber revolver. The store was located across the street from McCullough's home. Darrell Waller and Ted Sibley testified that when McCullough saw them at the store across the street, he crossed the street with Devon Reese and asked Waller, "What's up?" and "Why did you jump on me last night?" According to McCullough, "in the streets, the words, `What's up?" are fighting words." McCullough was referring to an altercation which took place between McCullough and Sibley the night before at Lisa's Lounge in which Waller alleges he took no part. After those words were exchanged, according to Waller and Sibley, McCullough fired two shots at Waller as Waller sat down in the car in which they were driving. ¶ 3. McCullough's recollection of the events differs from that of Waller and Sibley. According to McCullough, he and Reese were crossing the street when they saw Sibley. They did not acknowledge Sibley, as there had been an altercation the previous evening and they did not want any trouble. They walked up onto the porch of the Red Barn Store, and Darrell Waller opened the door and came outside onto the porch. According to McCullough, he and Reese stepped to the side to let Waller pass, again trying to avoid any trouble, and Waller said to McCullough, "What's up?" thereby initiating the altercation. McCullough claims that he ran away because he was afraid, and he shot behind him as he ran. He testified that he did not even know anyone had been shot until later when someone told him. However, McCullough also testified that he shot Waller in self-defense as he saw Waller reach for a weapon concealed behind his back. Waller argued that he did not have a weapon, nor did he reach into his back pocket for anything, as alleged by McCullough.

¶ 4. After a trial in the Yazoo County Circuit Court, McCullough was convicted of aggravated assault and sentenced to serve ten years in the custody of the Mississippi Department of Corrections. It is from that conviction and sentence that he appeals to this Court.

¶ 5. McCullough first submitted an incomplete brief to this Court which listed issues which he apparently intended to discuss but did not At the direction of this Court, he then submitted his amended brief. We will discuss only the issues presented in the amended brief, as the original brief was not supported by argument or law.

I. DID THE TRIAL COURT ERR IN ADMITTING EVIDENCE OF McCULLOUGH'S PRIOR BAD ACT?

¶ 6. McCullough claims that the trial court committed reversible error when it allowed evidence of a prior bad act in violation of M.R.E. 404(b). The evidence elicited from McCullough was evidence of a prior shooting that occurred when he was fourteen. Prior to admission of the testimony, the defense made a motion in limine to exclude the testimony from trial as it was extremely prejudicial and in violation of M.R.E. 404(b). The trial court denied the motion and ruled that it would allow the testimony. Before calling McCullough, the defense again objected to the admission of the evidence of the prior bad act. The court overruled the objection. Prior to presenting the evidence of the prior shooting, McCullough's attorney made clear upon the record first, that he objected to the admission of the evidence and, second, that he would introduce the evidence himself for the purpose of minimizing the damage that the testimony promised his client. The defense then elicited the evidence of the prior shooting on direct examination. The testimony was as follows:

Q. Have you ever shot anybody before?

A. Yes.

Q. How old were you?

A. Around 14 or 15.

Q. Were you prosecuted?

A. No, I didn't go to court or nothing for it, no.

¶ 7. The prior shooting was also briefly mentioned by the prosecution on cross-examination. That testimony was as follows:

Q. When do you not carry your gun?

A. I never did carry a gun.

Q. You carried it when you shot the guy when you were 15.

A. It wasn't my gun.

¶ 8. M.R.E. 404(b) states as follows:

(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

¶ 9. The admission of the prior shooting was clearly inadmissible character evidence in violation of M.R.E. 404(b). However, the general rule is that a defendant may not, himself, introduce evidence at trial and then assert on appeal that the admission of the evidence constituted reversible error. Hobson v. State, 730 So.2d 20, 24-25 (Miss.1998). Hobson involved the typical situation wherein the defendant elicits testimony that is otherwise inadmissible and then objects to subsequent allusion to or inquiry into that testimony by the prosecution. Id. Hobson elicited inadmissable hearsay testimony on cross-examination. Id. Subsequently, on re-direct the prosecution addressed that testimony. Id. Hobson then complained on appeal that the testimony should not have been allowed. Id. In finding that no error had been committed, the Court correctly stated the general rule as noted above and went on to state: "If the defendant goes fishing in the state's waters, he must take such fish as he catches." Id. (citing Fleming v. State, 604 So.2d 280, 289 (Miss.1992). However, the facts surrounding the admission of the testimony in the case sub judice are unique. In Hobson, there was no motion in limine to exclude the evidence that was eventually brought out by Hobson himself. Hobson had no reason to believe that the prosecution was even going to attempt to introduce the hearsay testimony that Hobson ultimately elicited from the witness; therefore, Hobson had no excuse for his introducing testimony that would otherwise have been inadmissible. In the present case, McCullough made a motion in limine to have the evidence excluded. Once the trial court denied McCullough's motion, McCullough had to proceed according to the court's ruling; that is, McCullough and his attorney based their strategy on the knowledge that the prosecution was going to be allowed to introduce the evidence of the prior shooting. This strategy dictated that McCullough introduce the evidence himself to limit its effect. Therefore, the admissibility of the testimony in Hobson is distinct from the admissibility of the evidence in the case sub judice.

¶ 10. The evidence was obviously in direct violation of M.R.E. 404(b) as he argued in his motion hearing. However, the trial judge ruled that the evidence of the prior shooting, which took place when McCullough was fourteen or fifteen and which would have been prohibited by M.R.E. 609(d) as well had it been prosecuted to a conclusion, would be admissible to impeach because the defendant was "going to take the witness stand to testify. And if the State wants to put his character into evidence at that point by asking him about it, I can't see how you can get around—uh—the admissibility under 404(b)." McCullough's attorney replied, "Your Honor, under 404(b), evidence of other crimes, wrong —", but was interrupted by the court as follows: "Okay, I understand all of that, but that's what— if you put him on the witness stand to testify and the State asks him about his character, under 404(b) then it becomes admissible."

¶ 11. There was obviously a great deal of confusion concerning M.R.E. 404(b) and when evidence of prior crimes is admissible. The dialogue continued as follows:

MR. GOODSELL [attorney for McCullough]: Okay, is it proof of the motive, opportunity, intent? I mean what —

MR. HOLMES [assistant district attorney]: Certainly proof of motive, Your Honor. That's exactly over and over and over again Mr. Goodsell has put in front of this jury, "What's the motive? Why? Why did he do it? Why did he do it?" This would be proof of motive.

MR. GOODSELL: Well, Your Honor, how does, if he has been involved in a shooting when he was 14 years old and was not prosecuted, how does this make him any more or any less likely to have used self-defense than the shooting now?

THE COURT: If we get to that point, the Court will give a cautionary instruction on what the jury is to use that evidence, how they are to consider that evidence. But once you put him on the witness stand, you open the door for 404(b).

MR. GOODSELL: Okay. One other thing, Your Honor, in addition, we would ask for a continuance, because we'd like to find the victim of this first one, or alleged victim, it was not prosecuted, so we

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