Pugh v. State
| Decision Date | 07 August 1991 |
| Docket Number | No. 89-KA-1011,89-KA-1011 |
| Citation | 584 So.2d 781 |
| Parties | Ivory Lee PUGH v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Sam N. Fonda, Lott Franklin Fonda & Flanagan, Greenwood, for appellant.
Mike C. Moore, Atty. Gen., W. Glenn Watts, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before DAN M. LEE, P.J., and SULLIVAN and McRAE, JJ.
McRAE, Justice, for the Court:
This is an appeal from the Circuit Court of Leflore County, wherein Ivory Lee Pugh was tried and convicted of the crime of burglary and sentenced to serve a term of ten (10) years in custody of the Mississippi Department of Corrections as an habitual offender. We reverse and remand.
The grand jury indicted appellant (hereinafter "Pugh") in March, 1989, and charged him as follows:
Ivory Lee Pugh late of the County aforesaid on the 15th day of January 1989, in the County aforesaid, the dwelling house, then and there situate, of one Maud [sic] Crosby, 2014 Maybelline, Greenwood, Mississippi, wilfully, unlawfully, feloniously and burglariously did then and there break and enter, with the felonious intent, then and there, [sic] the goods and chattels in the said dwelling house then and there being, wilfully, unlawfully, feloniously and burglariously to take, steal and carry away, at a time when said dwelling house was inhabited by Cynthia Crosby, a human being against the peace and dignity of the State of Mississippi.
Pugh's trial convened on July 6, 1989, and the jury returned a guilty verdict the same day. The following day the court sentenced Pugh to serve ten years as an habitual offender.
Because we reverse and remand on procedural grounds, a lengthy rendition of the facts is unnecessary. It is sufficient to note only that the facts involve Maude Crosby, her daughter Cynthia and Wesley Brown, all of whom reside at 2014 Maybelline in Greenwood, Mississippi. Gregory Crosby, Maude's older son, resides on Roosevelt Street in Greenwood. Pugh allegedly burglarized 2014 Maybelline on January 15, 1989, while Cynthia and Gregory were in the house.
I.
Pugh first argues that the Court erred in allowing the State to impeach him on cross-examination, with evidence of two prior burglary convictions, without first conducting an on-the-record determination that the probative value outweighed the prejudicial effect of such evidence. Recognizing that the Miss.Rules of Evidence apply in both criminal and civil cases, Miss.R.Evid. 609(a) is the applicable rule, which provides as follows:
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 609(a) states the following:
Under Rule 609(a) crimes are divided into two categories for purposes of impeachment. The first category, 609(a)(1) contains felony-grade convictions. Felony-grade convictions may be used for impeachment purposes, provided the court first determines that the probative value of admitting evidence of the crime outweighs its prejudicial effect. Under Rule 609(a)(1) the trial judge must make an on-the-record determination that the probative value of the prior conviction outweighs the prejudicial effects before the witness may be impeached. See Peterson v. State, 518 So.2d 632 (Miss.1987) for appropriate guidelines. The second category, 609(a)(2), contains crimes involving dishonesty or a false statement, whether felonies or misdemeanors.
* * *
The phrase "dishonesty or false statement" in 609(a)(2) means crimes such as perjury or subornation of perjury, false statement, fraud, embezzlement, false pretense, or any other offense in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused's propensity to testify truthfully.
The admission of prior convictions involving dishonesty or false statement is not within the discretion of the court. Such convictions are peculiarly probative of credibility and are always to be admitted.
Miss.R.Evid. 609 comment (emphasis added).
The following testimony is pertinent to this issue and came out during Pugh's cross-examination:
BY MISS BRIDGES (for prosecution): Your Honor, at this time ...
BY MR. FONDA (for defense): Your Honor, I continue to object to this. It's highly prejudicial and I think ...
This defendant has two prior burglary convictions as well as an uttering forgery conviction which the State has sought to introduce all the time. I think that I'm allowed to impeach this witness because of his statements on the witness stand and also with the uttering forgery conviction which is crimen falsi and which is always to be admitted, but I think that the defendant ... that I'm allowed to impeach him with his burglary convictions based on his statement that he would not break into a house at all.
. . . . .
In Peterson v. State, 518 So.2d 632 (Miss.1987) this Court faced a Rule 609 interpretation. The grand jury indicted and the court tried Peterson for the sale of more than an ounce of marijuana. Peterson, 518 So.2d at 634. On cross-examination, the prosecution asked Peterson if he had any felony convictions and, over objection, he admitted to a prior conviction for possession of marijuana. Id. On appeal the defense cited U.S. v. Preston, 608 F.2d 626 (5th Cir.1979) as support for the proposition that the trial judge had to make an on-the-record determination of the probativeness of the prior conviction. Peterson, 518 So.2d at 635. This Court held 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." Id. at 636. Since this was the first interpretation, this Court listed the following factors to use as an analysis in the trial court:
(1) The impeachment value of the prior crime;
(2) The point in time of the conviction and the witness' subsequent history;
(3) The similarity between the past crime and the charged crime;
(4) The importance of the defendant's testimony; and
(5) The centrality of the credibility issue.
In McInnis v. State, 527 So.2d 84 (Miss.1988) this Court again addressed Miss.R.Evid. 609(a). The grand jury indicted McInnis on robbery charges and the trial jury subsequently found him guilty as charged. McInnis, 527 So.2d at 85. At issue on appeal was the prosecution's use, for impeachment purposes, of a prior arson conviction. Id. The prosecution offered the arson conviction at the end of McInnis' direct testimony, and the following discussion took place at the bench:
McInnis argued that the trial court, before ruling on the admissibility of the conviction, erred in failing to (1) inquire into the nature and circumstances of the...
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