Roberson v. State

• Decision Date: 24 October 1990
• Docket Number: No. 07-KA-58998,07-KA-58998
• Citation: 569 So.2d 691
• Parties: Marcus ROBERSON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 691

569 So.2d 691

Marcus ROBERSON v. STATE of Mississippi.

No. 07-KA-58998.

Supreme Court of Mississippi.

Oct. 24, 1990.

Charles E. Webster, Twiford & Webster, Clarksdale, for appellant.

Mike C. Moore, Atty. Gen., Leyser Q. Morris, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before DAN M. LEE, P.J., and PRATHER and SULLIVAN, JJ.

DAN M. LEE, Presiding Justice, for the Court:

STATEMENT OF THE CASE

Appellant, Marcus Roberson, was convicted in the Circuit Court of Coahoma County, Mississippi, of armed robbery. The court sentenced appellant to serve a term of twenty (20) years in the custody of the Mississippi Department of Corrections.

The following issues are presented for consideration by this Court:

I. Whether the trial court erred in allowing the State of Mississippi to introduce certain supposedly non-incriminating statements made by appellant during the State's case-in-chief in an effort to allegedly impeach appellant prior to appellant testifying;

II. Whether the trial court erred in allowing lay witness Billy Gardner, a detective sergeant with the Clarksdale Police Department, to give his opinion as to the age of a fingerprint?

We reverse this case on the basis of Assignment II; therefore, it is not necessary to discuss the merits of Assignment I.

STATEMENT OF THE FACTS

State witnesses

In April of 1987, Ben Carraway worked part-time for the Corner Grocery Store located at 9 East Second Street in Clarksdale, Mississippi. On April 14, 1987 Mr. Carraway went to work at 9:00 p.m. and was supposed to close the store at 12 midnight. Sometime between 11:30 and 11:45 p.m., while Mr. Carraway was watching ESPN on television, an individual entered the store. This individual was wearing a green Halloween mask and a full length brown "tweed looking" trench coat that buttoned from the neck to the floor. He did not wear gloves nor any jewelry.

The intruder walked up to the counter, pointed a gun at Mr. Carraway's chest and said, "Give me your damn money". Mr. Carraway complied with the intruder's request by opening the cash register. The intruder placed his left hand on the counter top where the cash register rested. He held his weapon in his right hand and pointed it at Mr. Carraway. The intruder removed between $250 and $300 from the cash register and then proceeded to back out of the store. Once outside the store the robber turned around and again pointed his weapon at Mr. Carraway. Thereafter, he headed south on Sunflower down toward the railroad tracks. Mr. Carraway watched the robber until he lost sight of him and then he contacted law officers.

The first officer on the scene was Danny Hill, a deputy with the Coahoma County Sheriff's Department. Bill Gardner, a detective sergeant with the Clarksdale Police Department, was the next officer to arrive at the store.

Mr. Carraway described the masked robber as a man between 5'5" and 5'8" tall who weighed between 130 and 140 lbs. Mr. Carraway also related that the robber had touched the counter. It was Carraway's practice to clean the counter off with Formula 409, an all purpose cleaner. Mr. Carraway would mist the counter and wipe it up with a clean towel once or twice every hour. Approximately fifteen or twenty minutes prior to the robbery Mr. Carraway claims he had cleaned the counter and emptied the ash trays. After Mr. Carraway cleaned the counter no more customers entered the store. The next visitor was the robber.

Mr. Carraway related the information about the counter and the robber touching it to Detective Gardner. Detective Gardner dusted the counter and cash register for fingerprints. Detective Gardner lifted one latent hand print from the counter. He filed this print in his office in the event a suspect was later discovered.

During the course of his investigation Detective Gardner developed a suspect, Marcus Roberson, appellant. Neither the Record or the Transcript reveals how or why Marcus Roberson was initially suspected of being the intruder. Nevertheless, the day after the crime was committed, Detective Gardner fingerprinted appellant. He then packaged up the latent print he lifted at the Corner Grocery and appellant's known prints so Sergeant James Price could deliver them to the Crime Lab. On July 28, 1987 Detective Gardner received the results from the comparison made at the Crime Lab showing that the latent print matched appellant's known print. As a result of the report from the Crime Lab, Detective Gardner arrested Roberson June 15, 1987. Authorities never recovered the gun or mask the robber used nor the money taken from the Corner Grocery.

Defense Witnesses

Appellant took the stand in his own defense. He testified that he was at home until his friend, Andre Thompson, picked him up sometime after 7:30 p.m. Thompson drove to the young adult lounge known as the Rivermont located at Sunflower and Highway 61. However, appellant and Thompson were at the Rivermont a short period of time.

When the duo left the Rivermont, Thompson stopped at the Corner Grocery on Second Street shortly after 8:00 p.m. Appellant entered the store and purchased a package of cigarettes. He testified that he was sure he touched the counter when he went in to purchase the cigarettes.

After leaving the Corner Grocery, Appellant and Thompson stopped back by the Rivermont for a few minutes and then drove to the O & J Club on Highway 61 and McKinley in order to shoot pool. Appellant said he and Thompson arrived at the O & J Club at either 9:30 or 9:45 p.m. and remained there until 1:00 a.m.

Appellant claimed he did not own a Halloween mask nor did he have a pistol. He said he did not commit the robbery.

II. Whether the trial court erred in allowing lay witness Billy Gardner, a detective sergeant with the Clarksdale Police Department, to give his opinion as to the age of a fingerprint?

A. Background Information

The objectionable testimony offered by Officer Gardner was his opinion that the fingerprint which he examined had been deposited onto the counter top less than an hour prior to his examination. In other words, he gave his opinion as to the age of a fingerprint. This particular point of evidence was crucial and probably devastating to the defense in that the primary explanation from appellant as to why his fingerprint appeared on the counter top was that he had been in the store some three to four hours earlier that evening.

Further, it should be noted that Officer Gardner was never tendered by the state as an expert in the field of fingerprints although he testified to having received specific training in how to and where to dust for fingerprints and that he had been dusting for fingerprints for twelve (12) years.

B. Arguments

1. Appellant

Appellant correctly anticipates appellee would argue that since Officer Gardner had twelve years experience in raising and lifting fingerprints, this experience qualified him as an expert in that field. Appellant attempts to dispel this argument by stating Gardner was never tendered as an expert witness nor was the objectionable testimony within the field of raising or lifting fingerprints.

Arguing that Officer Gardner was a lay witness and not an expert witness, appellant refers to M.R.E. 701 and asserts that in order for the lay witness' testimony to be admissible, it must be both rationally based on the perception of the witness and helpful to the clear understanding of his testimony or the determination of a fact in issue. Appellant contends Officer Gardner's testimony fails this test and that he never offered any type of rational explanation as to his arriving at such an opinion. His only testimony along those lines were conclusions which he had made in the past regarding how quickly he had seen other prints develop. Moreover, this opinion falls far outside the range of any area of expertise which he may have in raising or lifting fingerprints.

2. Appellee

On direct examination, Officer Gardner was being questioned by the district attorney with regards to fingerprinting matters when the following exchange took place:

Q. How long did it take that print to come up?

A. It came up just about instantly.

Q. So from what your previous testimony is, then that was a fairly recent print?

A. Yes, sir.

BY MR. WEBSTER: I object to the conclusion on the part of Mr. Gardner.

BY THE COURT: The objection is sustained. The jury will disregard that response.

Q. (BY MR. ROBINSON) Mr. Gardner, let me rephrase the question. In your experience, can you gauge the approximate age of a fingerprint?

BY MR. WEBSTER: I object to that question, also.

BY THE COURT: I am going to overrule the objection--

BY MR. WEBSTER: --(interrupting) Mr. Gardner has not been qualified as an expert nor has he been tendered.

BY THE COURT: He has not been tendered. I will agree with that. But this does fall in the area of certain amount of expertise. I am going to overrule the objection to the question and let him answer the question as to whether he can or cannot.

Q. (BY MR. ROBINSON) Now, Mr. Gardner, in your experience, you stated you have got twelve years of working with fingerprints. Can you gauge the approximate age of a fingerprint?

A. Probably not the approximate age. I can gauge that it was recently done.

Q. When you say it was recently done, what do you mean recently done?

A. I would say within the last--probably the last hour.

Q. Okay. All right, then were you able to form an opinion as to the fingerprint that you found at the Corner Grocery? Had that been recently done?

A. Yes, sir.

BY MR. WEBSTER: I would object again.

BY THE COURT: The objection is overruled.

Appellee first argues that although not tendered as an expert, Detective Gardner qualified as an expert in lifting prints under Rule 702 M.R.E. and was therefore capable of giving his opinion as to the "freshness of the fingerprints". Alternatively, he could properly express his opinion as a lay witness under Rule 701 M.R.E.

We quickly discard appellee's first theory...