Williams v. State, No. 2008-KA-00844-COA (Miss. App. 1/19/2010)

• Decision Date: 19 January 2010
• Docket Number: No. 2008-KA-00844-COA.,2008-KA-00844-COA.
• Parties: HARVEY WILLIAMS, JR. A/K/A SMOKIE APPELLANT v. STATE OF MISSISSIPPI APPELLEE
• Court: Mississippi Court of Appeals

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HARVEY WILLIAMS, JR. A/K/A SMOKIE APPELLANT v. STATE OF MISSISSIPPI APPELLEE

No. 2008-KA-00844-COA.

Court of Appeals of Mississippi.

January 19, 2010.

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT, TRIAL JUDGE: HON. L. BRELAND HILBURN, DATE OF JUDGMENT: 04/06/2007.

DISPOSITION: AFFIRMED.

ATTORNEY FOR APPELLANT: JANE E. TUCKER

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LADONNA C. HOLLAND.

DISTRICT ATTORNEY: FAYE PETERSON

EN BANC.

IRVING, J., FOR THE COURT:

¶ 1. Harvey Williams Jr. was convicted of murder by a Hinds County jury and sentenced to life in the custody of the Mississippi Department of Corrections. Aggrieved, he appeals and asserts (1) that the trial court erred in refusing to allow testimony because of a discovery violation, (2) that the State committed prosecutorial misconduct, (3) that the trial court erred in refusing to grant the defense's motion for a continuance, (4) that he received ineffective assistance of counsel, (5) that the trial court erred in holding that the State would be permitted to impeach a witness he sought to call, (6) that the trial court erred in refusing to allow the defense to cross-examine a witness for the State regarding a prior inconsistent statement, (7) that the court erred in granting a flight instruction, and (8) that the cumulative effect of the errors committed at trial warrants a new trial.¹

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. Williams shot and killed Calvin Younger outside of Jay's Lounge in Jackson, Mississippi, during the early morning hours of June 22, 2003. Donte Hill, a passenger in Williams's car, was later apprehended by the police. After being taken in for questioning, Hill provided an audiotaped statement wherein he implicated Williams in Younger's murder. Thereafter, on December 9, 2003, Williams was indicted and charged with Younger's murder. He went to trial on April 3-6, 2007. His defense was that he shot Younger in self-defense. Numerous witnesses testified; however, since Williams does not challenge the sufficiency of the evidence against him, we dispense with a recitation of all of the facts surrounding the crime, but we will relate additional facts, as appropriate, during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Discovery Violation

¶ 4. Williams contends that the trial court erred in limiting the testimony of Anthony Herrington, a security guard who was working at Jay's Lounge on the morning that Younger was killed. According to Williams, the excluded portion of Herrington's testimony would have shown that Williams acted in self-defense. The record reflects that when the defense announced Herrington as its first witness, the State objected on the basis that the defense had not previously disclosed this witness to the State. The defense responded that Herrington was, in fact, listed as a witness in Williams's supplemental discovery given to a secretary in the district attorney's office on March 29, 2007, five days before the trial commenced. After it was determined that Herrington had in fact been listed in the discovery tendered to the State prior to trial, the trial judge allowed the State to interview Herrington outside the presence of the jury.² Then, the following exchange occurred between the State, the defense, and the trial judge:

[ATTORNEY FOR THE STATE]: I'm sorry, Your Honor. The fact is we talked to this individual. He has not given us any indication that he saw the victim with a gun and they're trying to use him — well, I apologize. He did not see the victim pull a gun on Harvey Williams, Jr. He just gave us that statement. If he comes in here and makes a different representation, it's up to the Court to decide if that's going to be allowed. He just told myself and [the other prosecutors and an investigator] that he did not see Calvin Younger pull a gun on Harvey Williams. And he can't testify to that.

What he told us was Calvin Younger had a gun earlier that day, that he kicked Calvin Younger off the premises, that Calvin Younger and — Harvey Williams rode up on the scene. Calvin Younger walks up to him and he walked behind the car and he doesn't see anything. He does not stop. Then the next thing he hears are gunshots. He had no knowledge that Calvin Younger pulled a gun on Harvey Williams. No knowledge of that, according to his representation to myself, [the other prosecutors and a detective]; therefore, his testimony is irrelevant to this case.

The fact that Calvin Younger had a gun prior to this does not show that Mr. Williams knew — first, he has to know — have knowledge of imminent danger to his life. If he does not know that then there's no relevance to this individual's testimony based on the fact that he did not see Mr. Younger pull a gun on Mr. Williams.

[ATTORNEY FOR THE DEFENDANT]: Well, I spoke to him today too because it's the first time I have actually met him was today. And the way I understood his testimony — I don't know what he's going to say when he gets on the stand.

[ATTORNEY FOR THE STATE]: Well, that's the problem, Your Honor.

[ATTORNEY FOR THE DEFENDANT]: That's why I requested a continuance. That is the problem. You're exactly right. That is a problem.

[ATTORNEY FOR THE STATE]: But you only found him on last Tuesday.

[ATTORNEY THE DEFENDANT]: Excuse me?

[ATTORNEY FOR THE STATE]: You only found him Tuesday.

[ATTORNEY FOR THE DEFENDANT]: I only found him Tuesday?

[ATTORNEY FOR THE STATE]: He told us that you — Max Mayes³ called him last week.

THE COURT: Just a minute.

[ATTORNEY FOR THE DEFENDANT]: I apologize, Your Honor.

[ATTORNEY FOR THE DEFENDANT]: Do you want me to tell you what he told me today?

THE COURT: Yes.

[ATTORNEY FOR THE DEFENDANT]: What he told me today was, if I remember correctly, is that that night Calvin Younger and his crew came to the club. He had a gun, if I can — somewhere, I think in this area. And he wouldn't allow them [sic] him in the club; that Calvin Younger then went toward Charlie's which was a club next door going north in that area with his crew; that when Mr. Williams drove up — he saw Mr. Williams park in the middle lane, the turning lane of the [sic] Medgar Evers going south, which is what he said, and that at that — when Mr. Williams got out of the car, came across the street walking up between cars, going toward the front door of Jay's; that he saw Calvin Younger coming from the area of Charlie's talking — moving his hands talking and that at some point he made a motion toward the back — his back pocket. I'm actually trying to remember everything. And at this point I can't tell you if he even said that he saw him actually shoot. I don't think he said he saw him shoot the gun but the inference was that he had a gun, he carried it in the back. He may have even said in the small of his back.

THE COURT: Where are your discovery responses?

[ATTORNEY FOR THE STATE]: The court can read them but none of that is in there.

[ATTORNEY FOR THE DEFENDANT]: And I didn't have that until today and I don't even have it now.

[ATTORNEY FOR THE STATE]: The individual did inform us that he gave a statement to Max Mayes and knowing how Mr. Max handles his investigations from working in our office, Max Mayes takes notes on everything. For her not to have those notes seems like something may be missing, Your Honor.

THE COURT: Well, the certificate of the attorney for the defendant states that on the 29th day of March, 2007, the document was delivered to the District Attorney's Office. Of course, accepting that as [sic] face value, I find that the attorney's certificate is sufficient to establish that there was compliance, although somewhat late in time with the discovery requirement under the uniform circuit and county court rule 9.04.

However, the statement contained in the discovery states that the witness will testify as to the reaching in the back pocket, arguing with Harvey Williams, and that witnesses on the crime scene did not — the police on the crime scene did not search the parking lot immediately adjacent to the club or near the street. And the court is going to restrict the testimony of this witness to those matters, in fact, set forth in answering questions outside the scope of the discovery provided to the State.

¶ 5. In Morris v. State, 927 So. 2d 744 (Miss. 2006), the Mississippi Supreme Court reinstated the judgment of the circuit court and reversed this Court's decision, which had reversed Christopher Morris's conviction and sentence and remanded the case for a new trial, because the trial judge prohibited the testimony of critical defense witnesses. Morris was charged with simple assault on a law enforcement officer. Id. at 745-46 (¶2). On the day that his trial was set to begin, his attorney presented the State with a list of witnesses for the first time. Id. at (¶3). The State made an ore tenus motion to exclude the previously undisclosed defense witnesses.Id. The State argued that it was prejudiced by the defense's late disclosure, as it had no way of knowing what the proposed witnesses might testify to. Id. Thereafter, the trial judge allowed the defense to proffer each of the witnesses' testimonies. Id. The trial judge then allowed some witnesses to testify while refusing others. Id. On appeal, Morris argued that the trial court erred in disallowing the testimony of two of the witnesses. Id. at (¶6).

¶ 6. Although the supreme court reversed this Court, it agreed with this Court's finding that the issue presented was one which implicated the Compulsory Process Clause of the Sixth Amendment to the United States Constitution, as the "[t]he Compulsory Process Clause bestows upon a criminal defendant `the right to compel the presence and present the testimony of witnesses.'" Id. at 747 (¶7) n.1 (citing Taylor v. Illinois, 484 U.S. 400, 409 (1988)). The Morris court stated that:

In criminal cases which have issues pertaining to the exclusion of evidence or witnesses...