Rose v. State

Decision Date07 February 1990
Docket NumberNo. 07-KA-58718,07-KA-58718
Citation556 So.2d 728
PartiesDeborah Holley ROSE v. STATE of Mississippi.
CourtMississippi Supreme Court

David L. Walker, Law Offices of David L. Walker, Batesville, for appellant.

Edwin Lloyd Pittman, Atty. Gen., elected Supreme Court Justice January 3, 1989, Mike C. Moore, Atty. Gen., John R. Henry, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

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

BLASS, Justice, for the Court:

I.

Deborah Holley Rose was indicted by the grand jury of Panola County's Second Judicial District of the crime of Conspiracy to commit Grand Larceny in violation of Miss.Code Ann. Sec. 97-1-1(a), as amended (1972); and Grand Larceny in violation of Miss.Code Ann. Sec. 97-17-41 (1972). Co-indictees were Toy Franklin Coleman and Joseph Alton Ivy. Defendants were accused of stealing one EF 2000 Yamaha portable generator. The indictment accused Johnny Ray Fowler of knowingly receiving this same property. The date of the crime was stated in the indictment as "on or about the 18th day of August, 1986." The indictment was amended at trial, changing the date of the alleged crime to "on or about September 9, 1986 to September 13, 1986 inclusive."

The jury found Ms. Rose guilty on both counts, and she was sentenced to serve a term of four years in the custody of MDC on each count, to run concurrently. She was fined $1,000.00 and ordered to pay all Court costs. In addition, she was found in contempt of court for her conduct in discussing the case with a prospective juror and fined $250.00. She appeals raising ten issues. Finding merit in appellant's issues two and four, we reverse and remand for a new trial. We discuss only these dispositive issues, and those which are likely to recur on remand.

II.

Joseph Alton Ivy and Toy Franklin Coleman were intermittently employed as helpers by Dixie Roofing, Inc., owned by Terry Clifford Blakely. In the summer and fall of 1986 Dixie was reroofing a building. A Yamaha 2000 portable generator, used on the reroofing project, was discovered missing at the first of September. The generator valued at approximately $700.00, was subsequently located in the possession of co-defendant, Johnny Fowler. He initially denied any knowledge of the whereabouts of the generator, but later turned himself in and surrendered the generator.

Both Ivy and Coleman, testified on behalf of the State, that they stole a generator from the jobsite in September, 1986. On September 11, 1986, Blakely's secretary called Ivy in to sweep the roof. Rose drove him to work. Coleman went with Ivy and Rose, specifically for the purpose of stealing the generator. Ivy and Coleman stole the generator from the roof and hid it in a nearby wood. Later, Rose, Coleman, and Ivy returned and retrieved the generator, placing it in the trunk of Rose's car. The generator was taken to a small garage located beside appellant's house, where it was stored until sold to Johnny Fowler.

Johnny Fowler, purchaser of the generator, testified that Rose called him and arranged a meeting with Ivy. Subsequently, he met Ivy and inspected the generator in a barn on Rose's property. The sale was completed with the payment of two $100 dollar bills, one of which, according to Ivy, was given to Rose.

III.

DID THE TRIAL COURT ERR IN OVERRULING APPELLANT'S OBJECTION TO QUESTIONS CONCERNING THE ARSON OF HER HOUSE?

Defendant contends that the State's questions, addressed to her on cross examination, concerning arson and the fact that defendant's house burned down, violated Miss.R.Evi. 404(b). She argues that this series of questions attempts to show the commission of other crimes and was introduced to establish that the defendant was the kind of person who would commit the crime for which she was on trial here, citing: Robinson v. State, 497 So.2d 440, 442 (Miss.1986); Lancaster v. State, 472 So.2d 363, 368 (Miss.1985); Davis v. State, 377 So.2d 1076, 1079 (Miss.1979). In addition, defense notes that the "prior offense" must result in a conviction to be admissible, citing Elmore v. State, 510 So.2d 127, 130 (Miss.1987); and Lightsey v. State, 493 So.2d 375, 379 (Miss.1986).

Pertinent portions of the colloquy were:

Q. (By the state) They just decided to come up and tell him about machine guns and crimes and things?

A. (By defendant, Deborah Rose) They liked to brag.

Q. And how many different crimes did they brag about doing?

. . . . .

Q. Okay. And did they ever talk about arson?

(OBJECTION)

THE COURT: Overruled.

Q. (By Mr. Buntin) Did you all ever talk about arson at your house, Ms. Rose?

A. I don't think so. I don't remember. If they did, I don't remember that.

Q. Did you ever talk about arson with them?

A. No, sir.

. . . . .

Q. (By Mr. Buntin) You never discussed arson with those men?

A. No, sir, I didn't.

Q. How many times has your house burned down?

A. Once.

Q. Once here?

A. Yes, sir.

Q. Did it burn down anywhere else before you moved down here?

A. I've never had another home.

This Court made the following observation in Neal v. State, 451 So.2d 743, 759 (Miss.1984), decided prior to the adoption of Mississippi Rules of Evidence, and cited in the comments to MRE 404(b):

Evidence of prior offenses committed by a defendant, not resulting in a conviction, is generally inadmissible either for impeachment purposes or as a part of the State's case in chief. Mason v. State, 429 So.2d 569, 572-73 (Miss.1983); Gray v. State, 351 So.2d 1342 (Miss.1977); Mills v. State, 304 So.2d 651 (Miss.1974); Allison v. State, 274 So.2d 678 (Miss.1973). On the other hand, our law recognizes certain exceptions to the rule. See, e.g. Johnson v. State, 416 So.2d 383 (Miss.1982); Mason v. State, 429 So.2d 569, 572-73 (Miss.1983); Woods v. State, 393 So.2d 1319, 1325 (Miss.1981).

(emphasis added)

Ms. Rose did not place her character in issue in this case. No witnesses were called to testify to her good character. The arson question was not posed to develop evidence of any criminal act with which she was charged. We have repeatedly held that the admission of evidence of unrelated crimes is reversible error, most recently in Houston v. State, 531 So.2d 598, 605 (Miss.1988). We find that the failure to sustain defendant's objection to this question, suggesting the commission of another crime, was error.

The State contends that if the admission of this evidence be deemed error, it is harmless due to the overwhelming weight of the evidence against defendant. We do not agree. The only evidence presented was the testimony of the three co-defendants, all of whom were of dubious reputation. There is no gauge by which this court, on review, can assess the impact on the jury of the suggestion of the commission of the other crime. This error, together with the matter addressed in part IV of this opinion, has the cumulative effect of a denial to the defendant of a fair trial.

IV.

DID THE TRIAL COURT ERR IN PERMITTING TESTIMONY CONCERNING OTHER STATEMENTS?

Appellant contends that the court erred in allowing improper opinion testimony concerning differences or discrepancies in the stories of the co-defendants.

The State introduced the confession of Toy Coleman into evidence. Sheriff Bryan testified that he had also taken the confessions of Joey Ivy and Johnny Fowler. The following exchange occurred after this testimony:

Q. Did you at any time try to influence them to include the name of the defendant in their statement or try to put anything about the defendant in the statement?

A. No, sir.

Q. Sheriff, have you had occasion in the past to take statements from co-defendants who were involved in the same crime?

A. Hundreds of them, yes, sir.

Q. And in those hundreds of cases would you tell the jury whether it's usual or unusual for there to be minor differences or discrepancies in the stories of co-defendants?

A. It's usual.

MR. WALKER: I object to that, sir, on the basis that he's not an expert. Also, that's hearsay.

THE COURT: I'll overrule the objection.

A. It's not unusual.

Q. Would it be unusual if there were no discrepancies in the statements between two people on the same event?

MR. WALKER: I object again, Your Honor, this time on the basis of relevancy.

THE COURT: I'll overrule the objection.

A. I would say it would be unusual.

. . . . .

Q. All right, sir. Sheriff, can you tell us what your investigation revealed with respect to the involvement of the defendant in the theft from Thermos?

A. Yes, sir.

Q. ...

A. In the entire investigation it was consistent from everybody that was involved.

MR. WALKER: Your Honor, I object on the basis of hearsay. These witnesses have been here and testified as to what occurred, and anything that Sheriff Bryan says is merely hearsay. He has no firsthand knowledge of it.

THE COURT: Any response, Mr. Buntin?

MR. BUNTIN: Well, I'll do it this way.

Q. (By Mr. Buntin) Sheriff, where the statements that you obtained from the co-defendant, Toy Coleman, Joseph Ivy and Johnny Ray Fowler, were they consistent or inconsistent with what you knew about the defendant and about your investigation?

A. Consistent.

The State cites Miss.R.Evid. 701, contending that this is proper opinion testimony. Rule 701 states:

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to the clear understanding of his testimony or the determination of a fact in issue.

This Court's latest opinion dealing with lay opinion testimony is James Jackson v. State, 551 So.2d 132 (Miss.1989) which cites Whittington v. State, 523 So.2d 966 (Miss.1988). In Jackson the defendant was charged with the murder of his wife. The investigating officer testified that he had doubts about the defendant's story that a robbery had taken place and Mrs. Jackson was killed by an unknown assailant. The officer stated that he was unable to find any evidence that anyone, other than...

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