Peterson v. State
| Decision Date | 16 December 1987 |
| Docket Number | No. 57310,57310 |
| Parties | Henry PETERSON a/k/a Nene v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Howard Dyer, III, Rabun Jones, Dyer, Dyer, Dyer & Jones, Greenville, for appellant.
Edwin Lloyd Pittman, Atty. Gen. by Pat Flynn, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before DAN M. LEE, P.J., and SULLIVAN and ANDERSON, JJ.
Henry Peterson was charged with selling more than one ounce of marijuana to Donna Connor, an agent of the Mississippi Bureau of Narcotics. He was tried and convicted in the Circuit Court of Sunflower County, Mississippi, for sale of marijuana and sentenced to thirty (30) years in the Mississippi Department of Corrections with ten (10) years suspended and was fined $20,000.00.
Peterson assigns three errors:
I. Reversible error occurred when the trial court, over objection and in contravention of Rule 609(a) of the Mississippi Rules of Evidence, permitted the State to impeach the appellant on cross-examination with a prior felony drug conviction without any on-the-record weighing of probative value versus prejudicial effect and without any cautionary instruction as to the purpose of such proof;
II. The trial court committed reversible error in failing to grant the appellant's motion for a mistrial after a prospective juror made a prejudicial remark during voir dire in the presence of the jury panel; and
III. Prejudicial error occurred when over objection the State's witness, Shirlene Anderson, was allowed to testify concerning bit and pieces of the alleged sale which she was able to overhear from a hidden transmitter, since she was unable to identify the appellant as one of the parties to the sale.
Agent Connor testified that on July 15, 1985, Peterson got into a car with her and another person and sold her one-quarter of a pound of marijuana for $225.00.
Peterson contended that he could not have been involved in the drug sale on July 15, 1985, because he was home, suffering from epileptic seizures. This testimony was corroborated by his mother, Lillie Peterson, who testified that she was at home with Henry Peterson caring for him on that date.
DID REVERSIBLE ERROR OCCUR WHEN THE TRIAL COURT, OVER
OBJECTION AND IN CONTRAVENTION OF RULE 609(a) OF THE
MISSISSIPPI RULES OF EVIDENCE, PERMITTED THE STATE TO
IMPEACH THE APPELLANT ON CROSS EXAMINATION WITH A PRIOR
FELONY DRUG CONVICTION WITHOUT ANY ON-THE-RECORD WEIGHING OF
PROBATIVE VALUE VERSUS PREJUDICIAL EFFECT AND WITHOUT ANY
Henry Peterson, the defendant, was cross-examined regarding a previous felony conviction:
BY MR. VINCENT:
Q. Mr. Peterson, have you been convicted of a felony?
BY MR. DYER:
Your Honor, we object to that question under the new Rules of Civil Procedure.
Let that objection be noted. It is overruled. The witness may answer the question.
A. You say, have I been convicted?
A. Yes, sir.
A. I have been convicted one time.
Q. What crime were you convicted of, please, sir?
A. Possession of marijuana.
Q. I am sorry, I couldn't hear you.
A. Possession of marijuana.
Peterson contends that the admissibility of this evidence is governed by Rule 609(a)(1), Mississippi Rules of Evidence and that the prejudicial effect of the evidence was such that its admission against him constitutes reversible error. Further, Peterson argues that the trial judge erred in admitting the evidence without making an on-the-record determination that its probative value outweighed its prejudicial effect. Citing U.S. v. Preston, 608 F.2d 626, 639 (5th Cir.1979). Peterson also argues that the trial judge had the responsibility of giving a limiting instruction to the jury, and that he erred in not doing so. Citing Rainer v. State, 473 So.2d 172 (Miss.1985). Contending that the evidence was inflammatory and therefore presumptively harmful, Peterson urges this Court to reverse and remand this case for a new trial.
The State contends that Peterson's objection was insufficient under Rule 103(a)(1) of the Mississippi Rules of Evidence, and that the trial judge should not be put in error for overruling the objection. Citing Edwards v. Thigpen, 433 So.2d 906, 909 (Miss.1983); Wilcher v. State, 448 So.2d 927, 941 (Miss.1984). Further, the State argues that the trial judge's findings under Rule 609(a)(1) need not be reflected in the record. Citing Government of the Virgin Islands v. Bedford, 671 F.2d 758 (3rd Cir.1982). The State points out that in Preston, supra, which Peterson cites as authority, the Fifth Circuit remanded the case only for a specific finding (of whether the probative value of the evidence outweighed its prejudicial effect) under Rule 609.
Distinguishing Rainer v. State, supra, from the case at hand, the State argues that since Peterson's attorney did not offer any cautionary instruction, the judge's failure to give such an instruction cannot be assigned as error. Citing Dubose v. State, 320 So.2d 773 (Miss.1975); Sexton v. State, 274 So.2d 658 (Miss.1973). Finally, the State contends that the error, if any, was harmless, since the evidence of guilt was overwhelming.
Before addressing the merits of Peterson's Rule 609(a) claim, it must be determined whether he is barred from raising this claim by Rule 103(a)(1) of the Mississippi Rules of Evidence. Rule 103(a)(1) provides as follows:
RULE 103. RULINGS ON EVIDENCE.
(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context;
When the prosecution sought to establish that Peterson had been convicted of another crime, Peterson's attorney objected, "Under the New Rules of Civil Procedure." Rule 103 states that a specific objection is not required if the specific ground for objection was "apparent from the context." Rule 103(a)(1). As the Comment to Rule 103 indicates, this rule reflects this Court's decision in Murphy v. State, 453 So.2d 1290, 1293-94 (Miss.1984), (pointing out that specificity is not required where the grounds of the objection are reasonably apparent from the context). See also, Jordan v. State, 513 So.2d 574, 580, 581 (Miss.1987); Barnette v. State, 478 So.2d 800, 802 (Miss.1985); Donald v. State, 472 So.2d 370, 372 (Miss.1985); House v. State, 445 So.2d 815, 819 (Miss.1984). It is apparent that Peterson's attorney was contesting the admissibility of Peterson's prior conviction. Since this was apparent from the context of the objection, this assignment of error is not procedurally barred.
We therefore address the substance of this assignment and to do so requires an analysis of Rule 609(a) which provides as follows:
RULE 609. IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME.
(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.
The Comment to Rule 609 provides, in pertinent part, as follows:
Under 609(a) crimes are divided into two categories for purposes of impeachment: (1) felonies, provided the court determines that the probative value of admitting evidence of the crime outweighs its prejudicial effect, or (2) crimes involving dishonesty or a false statement, whether felonies or misdemeanors. This is a change from pre-rule Mississippi practice which allowed impeachment by any prior conviction, felony or misdemeanor, other than misdemeanor traffic offense.
The plain language of Rule 609(a)(1) requires that before admitting evidence of a witness' felony conviction, the trial judge must determine "that the probative value of admitting this evidence outweighs its prejudicial effect." Rule 609(a)(1). 1 Here no such determination was made by the trial judge and the issue is whether or not this must be done on the record.
In U.S. v. Preston, 608 F.2d 626 (5th Cir.1979), the court analyzed an identical requirement in Rule 609(a)(1) of the Federal Rules of Evidence and stated:
We hold today that a Trial Judge must make an on-the-record finding that the probative value of admitting a prior conviction outweighs its prejudicial effect before admitting a non-609(a)(2) prior conviction for impeachment purposes under Rule 609(a)(1). An on-the-record finding that probative value outweighs prejudicial effect is not merely an idle gesture. Such a finding insures that the Judge has at least taken into account the relevant considerations....
The court in Preston also addressed the effect of the trial judge's failure to make on-the-record determination under Rule 609(a)(1) and said, Preston, at 640.
We hold today that Rule 609(a)(1) requires the trial judge to make an on-the-record determination that the probative value of the prior conviction outweighs its prejudicial effect before admitting any evidence of a prior conviction. Because our holding in this case will require a new trial and as this is our first interpretation of Rule 609, we offer the following analysis for the benefit of the trial bench and bar should this issue arise again.
What factors should the trial judge consider when weighing the probative value of the convictions against the prejudicial effect of their...
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