McGee v. State

• Decision Date: 24 October 1990
• Docket Number: No. 07-KA-59048,07-KA-59048
• Parties: James McGEE v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1191

569 So.2d 1191

James McGEE v. STATE of Mississippi.

No. 07-KA-59048.

Supreme Court of Mississippi.

Oct. 24, 1990.

C. Collier Carlton, Jr., Farese Farese & Farese, Ashland, for appellant.

Mike C. Moore, Atty. Gen., John R. Henry, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before ROY NOBLE LEE, C.J., and ROBERTSON and ANDERSON, JJ.

ROBERTSON, Justice, for the Court.

I.

Today's appellant challenges twin convictions of armed robbery and aggravated assault and presents troublesome questions regarding the trial court's handling of the prosecution's purported impeachment of his credibility through evidence of prior and unrelated criminal acts. Following settled reading of Rule 609, Miss.R.Ev., at trial, the Court must articulate on the record his findings and balancing of a series of factors we have found to facilitate weighing probative value against unfair prejudice. Because the trial judge failed of this process, we must reverse and remand for a new trial.

II.

On the evening of November 26, 1986, James McGee, age 57, encountered three young sailors from Millington Naval Air Station in rural Alcorn County off Highway 72, an encounter which saw Michael Allen Glaser shot several times with a .22 pistol.

Glaser and his two friends, James Reynolds, Jr., and Ronald Busby, were on their way to spend the Thanksgiving weekend with Reynolds' father in Tippah County, Mississippi. With Busby at the wheel, the three had driven along Highway 72, turning off on Bass Road (sometimes Overton Hill Road) to go to see Reynolds' stepsister. Fate first intervened in the form of water covering the road and, after a futile effort to ford the stream, they turned back, only to find that their car had a flat tire. Busby inched the car along back toward Highway 72 until at last it would go no further, so he pulled off onto the shoulder of the road.

Some twenty or thirty minutes later, James McGee drove up. The sailors asked for assistance, indicating that Reynolds' father lived only a couple of miles away. McGee responded by taking Reynolds to his father's home and then returning to the tire-flattened car. It is not clear who said what to whom, for at this point the stories diverge radically. The sailors say that McGee robbed them at gun point and fired four shots at Glaser. McGee claims that, after he left Reynolds at his father's house, he returned to the scene--saying he was on his way to his home in Pocahontas, Tennessee--when Glaser pulled a gun. McGee says a scuffle ensued and that in the course of the scuffle the gun went off.

At any event, on January 22, 1987, the Alcorn County Grand Jury returned indictments charging McGee with armed robbery, Miss.Code Ann. Sec. 97-3-79 (Supp.1986), and aggravated assault, Miss.Code Ann. Sec. 97-3-7(2) (Supp.1986), and charged further that McGee was an habitual offender. Miss.Code Ann. Sec. 99-19-83 (Supp.1989). It appears that McGee has four prior felony convictions, to-wit:

(1) On September 2, 1959, McGee was convicted of rape in the Criminal Court of Shelby County, Tennessee, and was sentenced to a term of ninety-nine years imprisonment.

(2) On September 2, 1959, McGee was convicted of assault with intent to commit murder in the Criminal Court of Shelby County, Tennessee, and was sentenced to a term of five years imprisonment. On the two 1959 convictions, Tennessee authorities held McGee in custody for thirteen years, releasing him on parole in 1972.

(3) On May 2, 1975, McGee was convicted of burglary in the Criminal Court of Shelby County, Tennessee, and was sentenced to a term of three years imprisonment.

(4) On May 2, 1975, McGee was convicted of robbery with a deadly weapon in Criminal Court of Shelby County, Tennessee, and was sentenced to a term of fifteen years imprisonment.

Prior to trial, McGee approached the Circuit Court and moved that the prosecution be precluded from offering the two 1959 convictions against him, citing "Rule 6.09 and 6.09(b)" of the Mississippi Rules of Evidence. The prosecuting attorney then called the court's attention to the two 1975 convictions. The parties established that on his 1959 convictions, McGee was imprisoned from that year until 1972, that he was released from custody in 1972, only to suffer the two further convictions in 1975, upon which he was imprisoned until 1982. In the end, the Court held

In view of the fact that the defendant was incarcerated in 1959 and was out rather a short time before he was again convicted in 1975, and was incarcerated until 1982, I am going to and do hereby rule that the short time he was out between 1972 and 1975, and the short time he has been out after serving a 1975 conviction, warrants making an exception to the rule, and I will allow questions to be asked about those convictions, if the defendant takes the stand.

At trial James McGee took the witness stand to testify in his own defense, but before he could utter a sound, the Court reminded him that he could be examined regarding his prior convictions. In the course of this warning, the Court recited that

... counsel for the defendant stated a prior objection to any questions as to the defendant about his convictions in 1959 and in 1975, ... and it appears to the Court that that information should be given to the jury, on the matter of his truthfulness, to give the jury the proper picture of the defendant's record and in order to properly assess any effect such a record might have on their attitude concerning his veracity.

On direct examination by his own attorney, McGee immediately told the jury of his four prior convictions and his record of imprisonment.

In due course, the jury found McGee guilty as charged of both the armed robbery and the aggravated assault of Michael Glaser. The Court further found that McGee was an habitual offender and ordered him imprisoned for the remainder of his life without eligibility for probation or parole. Miss.Code Ann. Sec. 99-19-83 (Supp.1987).

McGee now appeals his conviction and sentence and presents a number of issues for review, only two of which require discussion.

III.

McGee argues that the Circuit Court erred when it denied his post-trial motion for judgment of acquittal notwithstanding the verdict. This motion, of course, was nothing more than a formal renewal of his motion for a directed verdict of acquittal, a/k/a request for a peremptory instruction, made at the conclusion of all the evidence. Wetz v. State, 503 So.2d 803, 807-808 fn. 3 (Miss.1987).

Without reviewing the evidence in detail, Glaser, Reynolds and Busby (via video tape deposition due to his service on the high seas at the time of the trial) told a perfectly plausible story that McGee robbed Glaser at gunpoint and shot and wounded him several times. To be sure, McGee replied with a narrative description of the events of the evening of November 26, 1986, which, if believed, would have entitled him to acquittal. By the same token, we do not see how it may seriously be argued that the testimony of Glaser, Reynolds and Busby was not sufficient that, if believed, a jury might convict, nor that on appeal we must affirm. Indeed, counsel for McGee virtually conceded the point at oral argument.

Our standard of appellate review of points such as this is as limited as it is familiar. We proceed by considering all of the evidence--not just that supporting the case for the prosecution--in the light most consistent with the verdict. We give the prosecution the benefit of all favorable inferences that may reasonably be drawn from the evidence. The evidence and inferences so considered, if there is in the record substantial evidence of such quality and weight that, having in mind the beyond-a-reasonable-doubt burden of proof standard, reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions, we may not disturb the verdict of guilty. See, e.g., Benson v. State, 551 So.2d 188, 192-93 (Miss.1989); Jackson v. State, 551 So.2d 132, 136-37 (Miss.1989); Gray v. State, 549 So.2d 1316, 1318-19 (Miss.1989).

When considering the elements of the offenses of armed robbery and aggravated assault, as given the jury in the Circuit Court's instructions, ¹ applying those to the evidence, slanted as required by our limited scope of review, we may only conclude that reasonable jurors could well have found McGee guilty of both aggravated charges. All things considered, the evidence was not such that the Circuit Court had authority to set aside the verdicts, and if this be so, our authority is similarly circumscribed. In sum, we find no error here.

IV.

A.

McGee further charges that the Circuit Court erred when it denied his pre-trial motion in limine to preclude the prosecution's proving four prior criminal convictions before the jury. We have described the course of proceedings below in Part II above.

McGee is met initially with a prosecution claim of waiver. Pointing to the fact that on direct examination and in response to questions by his own attorney, McGee presented the convictions to the jury himself, the prosecution says he "may not complain of error, if error, which he caused." We are told further that nothing in the Circuit Court's prior ruling required that the prosecution offer evidence of the prior convictions and that "the state [may possibly have] eschewed a line of questioning about them."

The point is disingenuous. At both the pre-trial motion in limine and the colloquy in open court immediately before McGee took the stand, the prosecution left no doubt that, if permitted, it planned to use the prior convictions for impeachment. Moreover, the court's pre-trial and trial rulings displayed no hint of doubt regarding admissibility of any of the four prior convictions.

In a variety of contexts we have held that, once the trial court has ruled upon a matter, the parties may try the remainder of the case on the assumption that the ruling will stand, Merritt v. State, 517 So.2d...