Tillis v. State, 93-KA-00029-SCT

• Decision Date: 28 September 1995
• Docket Number: No. 93-KA-00029-SCT,93-KA-00029-SCT
• Citation: 661 So.2d 1139
• Parties: Howard Ray TILLIS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1139

661 So.2d 1139

Howard Ray TILLIS v. STATE of Mississippi.

No. 93-KA-00029-SCT.

Supreme Court of Mississippi.

Sept. 28, 1995.

Thomas D. Lee, Lee & Lee, Forest, for Appellant.

Michael C. Moore, Attorney General, Jackson, Wayne Snuggs, Assistant Attorney General, Jackson, for Appellee.

ON PETITION FOR REHEARING

SMITH, Justice, for the Court:

Petition for rehearing granted. Original opinions are withdrawn and these opinions substituted therefore.

Howard Ray Tillis was arrested and charged with selling a controlled substance to an undercover agent on October 25, 1991. Tillis was tried by jury in the Circuit Court of Scott County, Mississippi, and found guilty and sentenced to thirteen years in the custody of the Mississippi Department of Corrections. Aggrieved, Tillis appealed to this Court and asserted the following issue:

THE LOWER COURT ERRED IN EXCLUDING EVIDENCE BY THE APPELLANT TILLIS THAT THE STATE'S WITNESS WAS BIASED AND PREJUDICED AGAINST TILLIS.

After thoroughly reviewing the record in this case, we find no merit to the argument raised by Tillis. The trial judge did not abuse his discretion in citing remoteness as the basis for denying Tillis' proffered evidence concerning a fight that occurred sometime in the 1970's between Tillis and Eddie Floyd, the confidential informant. We must affirm the trial court.

FACTS

On October 25, 1991, Michael Wallace, a Yazoo City police officer, on special assignment with the Bureau of Narcotics, and Eddie Floyd, a confidential informant, proceeded to Morton, Mississippi, to buy crack cocaine. After Wallace and Floyd arrived in Morton, Wallace bought three rocks of crack cocaine from a person identified by Floyd as the defendant, Tillis.

On June 11, 1992, Tillis was indicted by the grand jury of Scott County for the sale of the cocaine in violation of section 41-29-139(a)(1) of the Mississippi Code Annotated. During discovery, Tillis filed a motion to disclose the name of the confidential informer.

At trial, the state presented Wallace, who positively identified Tillis as the man who sold the cocaine to Wallace. Floyd also identified Tillis as the person who sold the cocaine to Wallace on October 25, 1991. During cross-examination, Floyd was asked what happened between him and Tillis "back in the late seventies when you got his wallet." The State objected on the grounds of remoteness and the jury was excused.

Outside the presence of the jury, Floyd testified that "in the early seventies" he and Tillis fought over a basketball, not a wallet, and that he was hit in the head with a tree limb which resulted in an injury requiring stitches. Floyd further testified that since the incident, although he and Tillis had not been close friends or enemies, there had not been any trouble or other conflicts between them. Floyd stated that Tillis had even brought some firewood for him and that they had conversations since the incident. They had lived in the same community, one street apart for nineteen years, with Floyd only moving during the last year preceding the trial. Floyd denied ever threatening to "get" Tillis. The proffer did not include any testimony of Tillis.

After Tillis' proffer, the trial judge stated inter alia "I can't see where something that happened twenty years ago should be admitted in this case as an impeachment of this testimony. So, on the basis of remoteness, I am going to sustain the objection."

Later in the trial, defense counsel renewed his efforts to impeach Floyd by stating that if the defendant, Tillis, were permitted to testify about the fight, he would testify that the fight occurred in the late seventies and that since that time there had been no contact between the two of them. Again the trial court ruled to exclude the proffered evidence on the ground that it was too remote.

Gail Benson, agent with the Bureau of Narcotics, testified that she was the surveilling agent on October 25, 1991 during the incident in question. Benson and MBN agent Faron Gardner followed close behind and listened to the cocaine sale over a radio transmitted "body wire" concealed on Mike Wallace. Benson heard who Wallace described as a black male ask Wallace, "Are you the man?" to which Wallace replied, "No, man." Benson described the cocaine sale that occurred at that time.

Tillis testified that he did not sell cocaine to Wallace on October 25, 1991. Tillis claimed mistaken identity regarding the drug sale. He maintained that he was cutting pulpwood on the date in question and was probably around the woodyard up until 4:55 p.m. on that day. He introduced into evidence load receipts from the woodyard confirming his pulpwood loads hauled on October 25th.

At the close of trial, the jury returned a verdict of guilty. Tillis was sentenced to serve thirteen years in the custody of the Mississippi Department of Corrections, and to pay a $5,000.00 fine. Upon payment of the fine, three years of the sentence would be suspended, and Tillis would be placed on probation for five years.

DISCUSSION OF LAW

The issue of "remoteness" centers around the proffered testimony of Eddie Floyd and a limited statement by Tillis' counsel as to what Tillis would have testified had he been permitted to by the trial court. Tillis' proffer of Floyd's testimony indicates the following:

Q. You haven't made remarks to folks that you was going to get him?

A. No, sir.

Q. But, y'all haven't been since this incident happened and he hit you with a tree limb, you just kind of have gone your separate ways and he has gone his; have you?

A. Yeah, I have. I know him. We haven't had no--he got some wood for me. I had him get some wood for me, some firewood.

Q. Well, the relationship between you and Howard all these years is y'all just kind of look at each other, and that's about it; isn't it?

A. No, we have talked. You know, we haven't been no enemies. We haven't been no close friends, but we haven't been no enemy.

The trial judge questioned Floyd during the proffered testimony offered by Tillis as follows:

Q. Eddie Lee Floyd, let me ask you a question. Where do you live? Where have you lived since this problem you had with Tillis in the 1970's?

A. See, at that time, both of us stayed in the same community just one street over from each other.

Q. At that time; but, where have you lived since then?

A. I moved out of that area last year; but, at that time, I stayed in that area until that time.

Q. Have you had any conflicts with him since then, any violent conflicts?

A. No sir.

The trial court ruled that the 1970's fight was too remote to be allowed for impeachment purposes on cross-examination. The court found that the event occurred some twenty years earlier and that both men had lived in the same neighborhood for nineteen years, without any physical confrontations or any problems whatsoever.

This Court has held that the trial court is generally allowed wide discretion concerning the admission of evidence offered to suggest bias on the part of a witness against the defendant. This Court, when reviewing a trial court ruling on this issue, does so applying the standard of clear abuse of discretion. Miskelley v. State, 480 So.2d 1104, 1111-12 (Miss.1985). A review of this entire proceeding reveals that we would be hard pressed to find that the trial judge in the case sub judice clearly abused his discretion in sustaining the State's objection to the testimony which, in the trial judge's opinion was absolutely too remote to be admissible.

Rule 616 of the Mississippi Rules of Evidence, although not cited by Tillis, nevertheless applies. Rule 616 is a codification of the common law relating to impeachment of witness credibility by showing bias, prejudice or interest of the witness for or against any party to the case. Comment M.R.E. 616. Rule 616 must be interpreted as it relates to other rules of evidence, particularly M.R.E. 104, 401 and 402. Rule 616 states the general rule of admissibility of such evidence subject to the trial court finding, in the exercise of its discretion under M.R.E. 104, that it is relevant, under M.R.E. 401 and 402, to the specific facts in the case.

The rules as originally promulgated did not contain a rule permitting examination of a witness for bias or prejudice. Rule 616 was added as a result of the United States Supreme Court's decision in United States v. Abel, 469 U.S. 45, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984). Abel reaffirmed the longstanding common law practice of allowing impeachment by bias, prejudice or interest, despite the fact that the Federal Rules of Evidence, like the original Mississippi Rules, did not contain a specific rule allowing such impeachment. The Supreme Court concluded that such evidence would be admissible under F.R.E. 402, if it met the definition of relevant evidence under F.R.E. 401. The comment to M.R.E. 616 clearly states that it was intended to codify the common law rule as recognized and reaffirmed in Abel. It is thus clear from the rationale of Abel, that before the specific evidence that is offered under the specific circumstances of the case in which it is offered is admissible, it must meet the definition of relevant evidence under M.R.E. 401. It must have the tendency, in the case being tried, to make the facts to which the witness testified less probable than it would be without the evidence of bias. Thus, evidence of bias, or any other evidence that is remote, is a function of relevancy. Evidence can be remote, either in time or because it is far-removed from an issue in the trial.

Accordingly, the general rule is certainly not without its limitations. The situation in the case sub judice appears to be one of the times to allow application of the limitations of Rule 616. Evidence that is remote in time or is otherwise far-removed from an issue at trial is not relevant under M.R.E. 401 and may be excluded by the trial court in the exercise of discretion. This Court, in Cantrell v. State, 507 So.2d 325,...