McInnis v. State, 57699

• Decision Date: 04 May 1988
• Docket Number: No. 57699,57699
• Citation: 527 So.2d 84
• Parties: Robert Hayes McINNIS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 84

527 So.2d 84

Robert Hayes McINNIS v. STATE of Mississippi.

No. 57699.

Supreme Court of Mississippi.

May 4, 1988.

Donald W. Boykin, Jackson, for appellant.

Edwin Lloyd Pittman and Mike Moore, Attys. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.

Before DAN M. LEE, P.J., and ROBERTSON and ZUCCARO, JJ.

ROBERTSON, Justice, for the court:

I.

Today's appeal presents the question whether a prior arson conviction suggests a propensity for lying so that it is admissible for impeachment purposes consistent with Rule 609, Miss.R.Ev. As the record reflects no details--whether the arson was pyromania or insurance fraud, we hold that the prosecution has failed in its burden to make a prima facie showing that the conviction has probative value.

Because the accused's credibility was a central issue in this robbery prosecution--his defense was alibi plus mistaken identification, we reverse and remand for a new trial on all issues.

II.

A.

On March 13, 1986, at approximately 7:00 p.m., Velma Craig (Craig) was robbed as she was leaving Kroger Grocery Store on Robinson Street in Jackson. Craig's assailant knocked her to the ground, grabbed her purse and fled on foot. The Defendant/Appellant obert Hayes McInnis (McInnis), was apprehended approximately one hour later at a nearby Super Stop convenience store by Michael Standford (Standford), a Kroger security guard. Craig identified McInnis as her assailant, although before she saw him handcuffed at the police station she had given a substantially differing description of the man who robbed her.

McInnis maintained his innocence throughout the proceedings. McInnis' defense and testimony was based on an alibi. McInnis claimed that shortly before 5:00 p.m. on March 13, 1986, he went to his aunt's house as he was wont to do. He was planning to "cheat" on his wife, and called his prospective paramour from his aunt's house using the name "Jimmy" and asked her to call him back at the Super Stop at 8:00 p.m. because he could not talk freely at his aunt's house. The fact that McInnis was at his aunt's house on the date of the robbery from approximately 5:00 p.m. until shortly after 7:00 p.m. was substantiated by various members of his family who were at his aunt's house.

Although she could not give a definite time, Emma Weaver (Weaver), a Super Stop employee, stated that she saw McInnis at the Super Stop around "dusky dark" which she approximated at anywhere between 6:00 p.m. and 7:30 p.m. McInnis gave Weaver a piece of paper with the name "Jimmy" on it and the number for the outside pay telephone and asked Weaver to give the outside number to a woman who was going to call asking for Jimmy. The call came. Weaver estimates that thirty minutes elapsed from the time McInnis gave her the note until he was arrested.

B.

On April 7, 1986, Robert Hayes McInnis was charged with robbery in an indictment returned by the Hinds County Grand Jury. After trial on July 16 and 17, 1986, the jury found McInnis guilty as charged. The Circuit Court sentenced McInnis to a term of eight (8) years imprisonment at Parchman, the sentence to run consecutively to a twelve (12) year sentence imposed after revocation of probation on a 1981 first degree arson conviction. McInnis moved for judgment of acquittal notwithstanding the verdict of the jury, or, alternatively, a new trial, which motion was denied on August 8, 1986. This appeal has followed.

III.

McInnis' principal complaint concerns the prosecution's use at trial of a prior conviction. On April 23, 1981, Robert Hayes McInnis was convicted of arson. He was at that time sentenced to serve a term of twenty (20) years imprisonment, with eighteen and a half (18 1/2) of those years suspended. McInnis actually served ten (10) months. The Circuit Court admitted the prior conviction for impeachment purposes.

Two assignments of error before us concern, first, the procedure and, second, the substance of the prosecution's effort to impeach McInnis' credibility by presentation to the jury of the fact of this prior arson conviction.

What happened is this. On the morning of trial, July 16, 1986, McInnis filed a motion in limine requesting that the Court not allow cross-examination of him about his arson conviction. The Circuit Court reserved ruling on the motion, preferring to first hear evidence at trial. McInnis took the stand. At the conclusion of the defense's direct examination, the prosecution offered the arson conviction and the following discussion took place at the bench:

BY MS. BENNETT [PROSECUTOR]:

The prior conviction was a crime of violence.

BY THE COURT:

Well, tell me something about the charge. There are several degrees of arson. What was he charged with?

BENNETT:

First degree where he got twenty years--twenty initially and eighteen years and six months suspended and one year and six months to serve.

COURT:

Well, since it's first degree arson, I find it does have probative value that would outweigh the detrimental factor to the Defendant, so you may bring it out.

The matter is governed by Rule 609(a), Miss.R.Ev., which provides:

(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.

Rule 609(a), Miss.R.Ev. is substantively identical to Rule 609(a), Fed.R.Ev.

McInnis argues that, because the Circuit Court refused to make a pre-trial ruling, either a definitive or conditional ruling, defense counsel could not provide a proper defense on the issue of the prior conviction. He contends that a pre-trial ruling would have "significantly influenced defense counsel's voir dire questions, opening statement and [McInnis'] direct examination". Defense counsel contends he was entitled to know whether the prior conviction was admissible before deciding whether his client should take the witness stand in his own defense. In support of his position, McInnis cites United States v. Jackson, 405 F.Supp. 938 (E.D.N.Y.1975); United States v. Oakes, 565 F.2d 170 (1st Cir.1977); and United States v. Cook, 608 F.2d 1175 (9th Cir.1979).

In United States v. Jackson, 405 F.Supp. 938 (E.D.N.Y.1975), the District Court stated:

In order fully to effectuate the policy of encouraging defendants to testify, trial courts should rule on the admissibility of prior crimes to impeach as soon as possible after the issue has been raised. [citations omitted] It is only after the admissibility of a conviction has been ruled on that the defense counsel can make an informed decision whether to put his or her client on the stand. In addition, the court's ruling may have a significant impact on opening statements and the questioning of witnesses.

Jackson, 405 F.Supp. at 942. The Jackson court went on to rule on the defendant's pre-trial motion and granted defendant's motion to exclude his state court conviction, conditioned upon (1) the defendant not "suggesting a pristine background on direct" and (2) defense counsel not impeaching government witnesses through the introduction of evidence of prior crimes without advance authorization from the court. Jackson, 405 F.Supp. at 943.

In United States v. Oakes, 565 F.2d 170 (1st Cir.1977), the Court of Appeals refused to make an inflexible per se ruling that defendants were entitled to advance rulings on the admissibility of prior convictions for impeachment purposes. The Court stated:

This is not to say, however, that we do not encourage district courts to make advance rulings in appropriate cases. The fact that the rule speaks of using the impeaching conviction during cross-examination does not, in our view, indicate any restriction on making an advance ruling so long as the court has enough information to make the mandated determination as to probative value. Indeed, while we emphasize that the timing is discretionary, we think a court should, when feasible, make reasonable efforts to accommodate a defendant by ruling in advance on the admissibility of a criminal record so that he can make an informed decision whether or not to testify. The court's ruling "may have a significant impact on opening statements and questioning of witnesses." [Quoting United States v. Jackson ]

Oakes, 565 F.2d at 171. In United States v. Cook, 608 F.2d 1175 (9th Cir.1979), the Court of Appeals stated:

The matter [of when to rule on the admissibility of impeachment evidence] should be left to the discretion of the trial court with the reminder that advance planning helps both parties and the court. Trial by ambush may produce good anecdotes for lawyers to exchange at bar conventions, but tends to be counterproductive in terms of judicial economy. Other courts considering the problem have recommended a provisional ruling in advance of proposed testimony, with the judge free to meet any deception by modifying the ruling. See, e.g., United States v. Oakes, 565 F.2d 170 (1st Cir.1977).

Cook, 608 F.2d at 1186.

That the decision whether to give an advance ruling on the admissibility of prior conviction for impeachment purposes is discretionary with the trial judge appears to be well-established in the federal courts. See also United States v. Del Toro Soto, 676 F.2d 13, 18 (1st Cir.1982); United States v. Key, 717 F.2d 1206, 1208 (8th Cir.1983); United States v. Halbert, 668 F.2d 489, 494 (10th Cir.1982). Rule 609(a) of the Mississippi Rules of Evidence is all but identical to the corresponding federal rules. We find the federal decisions in this regard quite sensible and adopt the discretionary approach to advance rulings.

Without...