Smith v. State

• Decision Date: 26 June 2008
• Docket Number: No. 2006-KA-02149-SCT.,2006-KA-02149-SCT.
• Citation: 986 So.2d 290
• Parties: Gregory SMITH a/k/a Jr. v. STATE of Mississippi.
• Court: Mississippi Supreme Court

986 So.2d 290

Gregory SMITH a/k/a Jr. v. STATE of Mississippi.

No. 2006-KA-02149-SCT.

Supreme Court of Mississippi.

June 26, 2008.

Benjamin A. Suber, attorney for appellant.

Office of the Attorney General by Stephanie B. Wood, attorney for appellee.

Before WALLER, P.J., DICKINSON and LAMAR, JJ.

LAMAR, Justice, for the Court.

¶ 1. In the Circuit Court of Lauderdale County, a jury found Gregory Smith guilty of capital murder, and he was sentenced to life imprisonment without the possibility of parole. Smith filed a motion for judgment notwithstanding the verdict and a motion for a new trial, both of which the trial court denied. Smith appeals.

FACTS

¶ 2. In the early morning hours of May 29, 2004, Jeremy Scott was shot four times in the head in the Meridian home of relatives. A 911 call was placed around 2:49 a.m., to which the Meridian Police Department ("MPD") responded shortly thereafter. Scott died from the gunshot wounds to the head.

¶ 3. Assigned to investigate the murder one year after it occurred, Detective Andy Havard, MPD criminal investigator, learned from Scott's mother that Scott had purchased a cell phone about two weeks before he was murdered. The detectives subpoenaed the cell phone records for calls made from Scott's phone from 2:45 a.m. on May 29, 2004, through the next three days. Because the phone was used post-mortem, the detectives concluded that persons in the house during or after Scott's death took his phone. Through investigation related to the phone records, the detectives determined that Anthony Evans, Lewis Thomas Green, and Gregory Smith were suspects.

PROCEDURAL HISTORY

¶ 4. A grand jury in Lauderdale County indicted Evans, Green, and Smith for armed robbery and capital murder. The trial court granted Evans's request for severance from his codefendants. Smith also filed a motion for severance. However, the motion was neither noticed for a hearing nor ruled on by the trial court.

¶ 5. At the joint trial of Smith and Green, six witnesses testified. Jason McElhenney, a former MPD criminal investigator, testified about his observations at the scene of the crime. Dr. Steven Hayne, a pathologist who performed an autopsy on Scott, described Scott's gunshot wounds and opined as to Scott's cause of death. Bernice Collins, former live-in girlfriend of Green, testified that Evans, Smith, and Green were regularly together. She said that she was with Smith and Green until about 1:00 a.m., less than two hours before the murder, and that when she saw Green again around 5:00 a.m., Green told her Evans was with him. MPD Officer Joe Hoadley, initially the lead detective on the case, testified about his investigation, which did not lead to the identification of any suspects. Detective Havard testified about the fruits of his investigation, which included his interrogation of Smith and Green. Another MPD criminal investigator, Detective J.C. Boswell, who assisted Havard in the interrogation of Smith and Green, also testified about statements made by Smith and Green during their respective interrogations.

¶ 6. Detectives Havard and Boswell testified that they interrogated Smith on three occasions: December 8, 2005; December 13, 2005; and February 9, 2006. On each occasion, Smith was incarcerated on other charges. Smith's apparent knowledge of the murder expanded with each interview, culminating in his confession during the February 9 interview. Detective Havard testified that Smith stated in the final interrogation that he and Green had been at the scene of the crime, and that he had been a lookout. According to Havard, Smith said they had gone in to commit robbery. Smith also said Green had shot Scott. The State entered disc recordings of Smith's interrogations as well as transcripts of those recordings. Green objected numerous times to the testimony regarding Smith's statements on the grounds of confrontation and hearsay. The trial court eventually granted Green a continuing objection.

¶ 7. Detectives Havard and Boswell testified that they had interrogated Green on two occasions: October 27, 2005, and March 2, 2006. Green also was interrogated while in custody on other charges. At the first interrogation, Green denied knowing anything about the murder. At the second interrogation, which, according to the detectives, lasted about forty-five minutes, the detectives began to record Green's interrogation; however, after the detectives played for Green the portion of Smith's interrogation in which Green was named as an accomplice, Green requested that the recorder be stopped, and the detectives complied. After this request, the detectives testified that Green admitted he and Smith had been present at the murder. Detective Havard testified that Green stated that he and Smith had gone to rob Scott and that Green had had a gun. Detective Havard further testified that Green said he had searched the house while Smith had watched the front door, and Green said he had heard three to five shots fired while he was searching the house. According to the officers, Green also said he had taken drugs and money from the house. Green told the officers that Smith had a chrome handgun, and that a small gun like a .380-caliber and a long handgun had been involved. Smith objected numerous times to the officers' testimony regarding Green's statements on the grounds of confrontation and hearsay. The trial court overruled each objection.

¶ 8. After the State rested, the trial court called each defendant individually and explained to him his right to testify or not testify. Each defendant declined to testify, and neither put on any evidence. After a three-day trial, both Smith and Green were convicted of capital murder and sentenced to life imprisonment without the possibility of parole.

¶ 9. Smith filed post-trial motions, which were denied. Smith appeals his conviction.¹

DISCUSSION

¶ 10. Smith raised two issues on appeal: (1) Whether Smith was irreparably and unfairly prejudiced by the admission of character evidence of prior bad acts, including prior arrests, charges, bond hearings, and other unrelated crimes; and (2) whether Smith was denied a fair trial due to the trial court's failure to sever the trials of Smith and Green. Further, Smith implicitly avers a Confrontation Clause violation in his severance issue where he argues "[a] separate trial was necessary to ensure a fair determination of Smith's guilt or innocence without Green's hearsay and confrontational statements." Rule 28(a)(3) of the Mississippi Rules of Appellate Procedure states: "A statement shall identify the issues presented for review." The rule also says "the court may, at its option, notice a plain error not identified or distinctly specified." M.R.A.P. Rule 28(a)(3). Under the plain-error doctrine, we can recognize obvious error which was not properly raised by the defendant on appeal, and which affects a defendant's "fundamental, substantive right." See Debrow v. State, 972 So.2d 550 (Miss.2007) (recognizing as plain error that the admission of evidence of defendant's blood alcohol content was in violation of his Sixth Amendment right to confrontation); Sanders v. State, 678 So.2d 663, 670 (Miss.1996) (quoting Gray v. State, 549 So.2d 1316, 1321 (Miss.1989) ("It has been established that where fundamental rights are violated, procedural rules give way to prevent a miscarriage of justice")). Plain-error review is properly utilized for "correcting obvious instances of injustice or misapplied law." Newport v. Fact Concerts, 453 U.S. 247, 256, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981). Because we find that a violation of the Confrontation Clause is a violation of a "fundamental, substantive right," we also will address whether Green's statement, which implicated Smith, violated Smith's right to confrontation, as provided by the Sixth and Fourteenth Amendments to the United States Constitution, and if so, whether such error requires reversal.²

I. Whether the Trial Court Committed Reversible Error in Admitting Character Evidence or Prior Bad Acts about Prior Arrests, Charges, Bond Hearings, and Other Unrelated Crimes.

¶ 11. Smith argues that the trial court erred when it admitted character evidence through Smith's own statements concerning prior arrests, charges, bond hearings, and other unrelated crimes. The State responds that Smith is procedurally barred from raising as error the admissibility of his statements as character evidence since he did not specifically object on that ground in the trial court.

¶ 12. This Court reviews the trial court's decision to admit or exclude evidence under an abuse of discretion standard of review. Jones v. State, 962 So.2d 1263, 1268 (Miss.2007) (citing Jones v. State, 904 So.2d 149, 152 (Miss.2005)).

¶ 13. This Court has held "[a]n objection must be made with specificity, and failure to articulate the grounds for objection constitutes a waiver of the alleged error." Ross v. State, 954 So.2d 968, 987 (Miss.2007). Further, we have held that "an objection on one or more specific grounds constitutes a waiver of all other grounds." Spicer v. State, 921 So.2d 292, 316 (Miss.2006) quoting Conner v. State, 632 So.2d 1239, 1255 (Miss.1993), overruled on other grounds by Weatherspoon v. State, 732 So.2d 158, 161-62 (Miss.1999); Morgan v. State, 741 So.2d 246, 253 (Miss. 1999) (citing Stringer v. State, 279 So.2d 156, 158 (Miss.1973)). This Court noted in Morgan that an objection cannot be enlarged in the reviewing court to embrace an omission not complained of at trial. Morgan, 741 So.2d at 253 (citing McGarrh v. State, 249 Miss. 247, 276, 148 So.2d 494, 506 (1963)); Stringer, 279 So.2d at 158-59. This Court cannot find that a trial judge committed reversible error on a matter not brought before him or her to consider. Montgomery v. State, 891 So.2d 179, 187 (Miss.2004); Stringer, 279 So.2d at 158.

¶ 14. When Smith's statements were offered into evidence, Smith joined an objection made by Green on the...