Antwine Equality Graves v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-KA-00020-COA
ANTWINE EQUALITY GRAVES
APPELLANT
v.
STATE OF MISSISSIPPI
APPELLEE
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
1/30/2002
HON. STEPHEN B. SIMPSON
HARRISON COUNTY CIRCUIT COURT
CARMEN N. BROOKS
PATRICIA F. DUNMORE
OFFICE OF THE ATTORNEY GENERAL
BY: W. DANIEL HINCHCLIFF
CONO A. CARANNA, II
CRIMINAL - FELONY
CONVICTION OF MURDER AND SENTENCED
TO LIFE WITHOUT THE POSSIBILITY OF
PAROLE IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF
CORRECTIONS.
AFFIRMED - 11/08/2005
EN BANC.
BRIDGES, J., FOR THE COURT:
PROCEDURAL HISTORY
¶1.
On January 30, 2002, a jury sitting before the Harrison County Circuit Court found Antwine
Equality Graves guilty of murder. With two prior felonies on his record, Graves qualified as a habitual
offender. As such, the circuit court sentenced Graves to a life sentence without the possibility of parole.
Graves filed an unsuccessful motion for new trial on February 8, 2002. Aggrieved, Graves appeals and
raises the following issues:
I.
THE COURT ERRED IN REFUSING TO GRANT A MISTRIAL FOLLOWING A JUROR’S
IMPROPER COMMENTS
II.
THE COURT ERRED IN NOT PERMITTING APPELLANT TO CROSS EXAMINE
DARAY BLAND AND WILLIE FAIRLEY CONCERNING THEIR PROBATION STATUS
AND FAVORABLE TREATMENT WHICH THEY RECEIVED IN EXCHANGE FOR
THEIR TESTIMONY.
III.
APPELLANT WAS DENIED A FUNDAMENTALLY FAIR TRIAL DUE TO THE TRIAL
JUDGE’S MISCONDUCT DURING VOIR DIRE.
IV.
GRAVES WAS DENIED A FAIR TRIAL DUE TO THE INEFFECTIVE ASSISTANCE OF
TRIAL COUNSEL.
V.
THE DEFENDANT WAS DENIED A FAIR TRIAL BY THE COURT’S DENIEL [SIC] OF
HIS RIGHT TO CONFRONT WITNESSES AGAINST HIM.
VI.
THE DEFENDANT WAS NOT ALLOWED TO USE PRIOR INCONSISTENT
STATEMENTS TO IMPEACH WITNESSES.
Finding no error, we affirm.
FACTS
¶2.
The record reveals the following set of events. On January 13, 2001, Graves went to the Blue
Note Lounge in Biloxi, Mississippi. Daray and Marlon Bland also went to the Blue Note Lounge. The
record does not reveal why, but Graves and Marlon got into an argument. Certain testimony indicated that
Graves shot a pistol into the air, though Graves denied that he fired that shot. Regardless, Blue Note
employees told them to “take it outside.” Graves left the Blue Note and went outside, followed by Marlon,
Marlon’s brother Daray, and Shawn Miami Johnson.
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¶3.
Graves and Marlon continued their argument. The record reveals disputed testimony, but the result
is undisputed. Someone shot Marlon in his neck. As a result, Marlon died outside the Blue Note Lounge
at approximately three o’clock a.m.
¶4.
There were certain consistencies in the trial testimony. All witnesses agreed that Marlon and
Graves argued. All witnesses agreed that Marlon and Graves were in close proximity. All witnesses
agreed that Daray stood between Graves and Marlon. Otherwise, there are several discrepancies in the
testimony.
¶5.
Daray Bland, Marlon’s brother, testified for the prosecution. Daray testified that, while they were
still inside the Blue Note, he saw Graves shoot a chrome pistol into the air. Daray also testified that, when
they were outside, Marlon pushed Graves because Graves had a pistol in his hand. Further, Daray testified
that Graves caught his balance, then walked up to Marlon and shot him in the neck.
¶6.
Willie Fairley also testified for the prosecution. Fairley testified that he followed Graves, Daray,
and Marlon out of the Blue Note. Fairley, who testifed that he was approximately ten to fifteen feet away
from the three men, said he could tell they were arguing but he did not know why. Though he did not see
Marlon push Graves, Fairley saw Graves “make a step.” According to Fairley, Graves then reached
around Daray and shot Marlon in the neck. Fairley testified that he saw Graves holding a pistol. Next,
Fairley heard Daray say to Graves, “you shot my brother.”
¶7.
Graves presented a “mistaken identity” defense. That is, Graves essentially argued that he was not
the shooter. Though he testified in his own defense, he also presented witnesses who corroborated his
version of events. While none of those witnesses corroborated Graves’s testimony that Shawn “Miami”
Johnson shot Marlon, certain witnesses presented testimony that suggested Graves could not have shot
Marlon.
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¶8.
Rashad Goudy was one such witness. Goudy testified that he heard Daray say Graves shot
Marlon. Goudy also heard Graves deny that he shot Marlon. Goudy saw Graves with his hands up in the
air. Additionally, Goudy did not see a pistol in Graves’s hands. Admittedly, there were approximately
eighty people between him and the shooting. Goudy testified that he did not know who shot Marlon.
Moreover, he did not know if Graves actually shot Marlon.
¶9.
Miss Bullard (“Miss” is her first name) also testified for Graves. Bullard said she heard Graves say,
“I didn’t shoot your brother.” Bullard never saw anyone with a weapon, but she did see Graves’s empty
hands in the air. Bullard admitted that she did not know who shot Marlon.
¶10.
Lisa Allen testified for Graves and corroborated his defense theory. She saw Marlon push Graves.
When Marlon pushed Graves, Graves lifted his hands in the air and stumbled back a couple of feet. Allen
testified that she saw another man, presumably Shawn Johnson, move “over a little bit more in front of the
guy (Marlon).” At that point, she heard a shot and saw Marlon fall. She elaborated that she did not see
Graves shoot anybody, but she heard the gunshot and saw Graves at the same time. Graves was stumbling
back to catch his balance. She never saw any weapon in his hands, but she also never saw a pistol at all.
¶11.
Kami Williams also testified for Graves. Williams testified that she heard Graves say that he did
not shoot anyone. Further, Williams testified that, at the time of the shot, she thought Graves was falling.
¶12.
Graves testified in his own defense. According to Graves, Marlon tried to punch Graves, but
Marlon had to reach over Daray, so he missed. Graves also said that Daray pushed him back at the same
exact time that Marlon tried to punch Graves. Graves explained that Johnson, one to two feet away from
Marlon, swung at Marlon. Further, Graves testified that Johnson, having swung at Marlon, made contact
and, at the point of contact, shot Marlon in the neck.
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¶13.
Thus, there are conflicting testimonies regarding the exact moment of the shot. Regardless, what
happened afterwards is undisputed. Graves heard police sirens on the way to the Blue Note, so he got into
his white Cadillac and left the scene before the police arrived. He drove to his grandmother’s house,
parked his car behind her house, and called a friend. That friend picked up Graves and drove Graves to
his house, about two to three miles from his grandmother’s house. According to Graves, he left the scene
because “the incident had just occurred on Main Street . . . and [he] didn’t want to be involved in the
incident . . . .” Graves contacted his attorney around 5:30 or six a.m. and explained the events and that
the police were at his grandmother’s house. Because his attorney was going to be in the hospital for a
week, Graves’s attorney advised him to contact him in a week. Graves testified that he discovered that
there was a warrant for his arrest, but he did not make that discovery until two or three days later. A week
after his initial contact with his attorney, Graves contacted him again. On his attorney’s advice, Graves
turned himself in on January 22, 2001.
ANALYSIS
I.
THE COURT ERRED IN REFUSING TO GRANT A MISTRIAL FOLLOWING A JUROR’S
IMPROPER COMMENTS.
¶14.
During voir dire, venire member Vicki Hancock said, “[m]y husband is a Biloxi police officer. I
don’t have any knowledge of this case, but he has mentioned the defendant on other occasions.” After her
comment, Graves’s counsel requested to approach the bench. Graves’s counsel requested a mistrial. The
trial judge conducted an in camera hearing on the matter.
¶15.
During the in-chambers conference, the trial judge found that Vicki’s statement did not indicate any
bad behavior or good behavior on Graves’s part. Regardless, the trial judge offered to give a curative
instruction, but Graves’s attorney declined the trial judge’s offer.
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¶16.
On appeal, Graves argues that Vicki’s comment tainted the entire jury panel. Graves claims the
trial judge erred when he overruled his motion for a mistrial. According to Graves, Vicki’s comment led
the jury to believe that Graves had a criminal past. Graves concedes that the jury did not know the exact
nature of Graves’s criminal past due to Vicki’s comment. Still Graves argues that “it is enough that they
were made aware that [Graves] had committed a criminal act that was notorious or noteworthy enough that
a police officer came home and discussed it with his wife.”
¶17.
Though it is unclear how Graves came to this knowledge, Graves claims “[n]o one present in the
courtroom thought that Juror Hancock was referring to anything other than a criminal act.” As for the fact
that Vicki did not actually sit on the jury, Graves responds that “[i]t is of no consequence that Juror
Hancock did not actually serve on the jury because everyone heard her improper comment.”
¶18.
A circuit court “may declare a mistrial if there occurs during the trial, either inside or outside the
courtroom, misconduct by the party, the party’s attorneys, or someone acting at the behest of the party or
the party’s attorneys, resulting in substantial and irreparable prejudice to the movant’s case.” URCCC
3.12. Additionally, “[u]pon motion of a party . . . the court may declare a mistrial if . . . [t]he trial court
cannot proceed in conformity with law; or . . . [i]t appears there is no reasonable probability of the jury’s
agreement upon a verdict. Id. Foremost, Ms. Hancock does not seem to fit the criteria of those people
whose acts or comments may cause a mistrial, under URCCC 3.12.
¶19.
Precedent also addresses a request for a mistrial. A trial judge may declare a mistrial only when
the harm done would render the defendant without hope of receiving a fair trial. Reed v. State, 764 So.2d
511 (¶7) (Miss. Ct. App. 2000). When a “prejudicially incompetent matter or misconduct” occurs before
a jury, and the trial judge cannot remove the effect by admonition or instruction, the trial judge should
declare a mistrial. Davis v. State, 530 So.2d 694, 698 (Miss. 1988). In a criminal case, when the
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defense objects to testimony, and the trial judge sustains that objection and instructs the jury to disregard
the offending testimony, the trial judge’s remedial acts are “usually. . .sufficient to remove any prejudicial
effect [of that testimony] from the minds of the jurors.” Id. When a party fails to request such an
instruction, that party is barred from raising that point on appeal. Carr v. State, 655 So.2d 824, 837
(Miss. 1995) (citing Stringer v. State, 500 So.2d 928, 937 (Miss.1986)).
¶20.
Graves’s defense counsel unequivocally declined the trial judge’s offer of a curative instruction.
In this circumstance, there is no error requiring reversal. Buckley v. State, 511 So.2d 1354, 1357 (Miss.
1987); Stewart v. State, 466 So.2d 906, 910 (Miss.1985); Clanton v. State, 279 So.2d 599, 602
(Miss.1973); Bridges v. State, 841 So.2d 1189 (¶11) (Miss. Ct. App. 2003).
II.
THE COURT ERRED IN NOT PERMITTING APPELLANT TO CROSS- EXAMINE
DARAY BLAND AND WILLIE FAIRLEY CONCERNING THEIR PROBATION STATUS
AND FAVORABLE TREATMENT WHICH THEY RECEIVED IN EXCHANGE FOR
THEIR TESTIMONY.
¶21.
In this issue, Graves claims the circuit court erred when it refused to permit him to cross-examine
two witnesses on the subject of favorable treatment or leniency they received in exchange for their
testimony. Graves sought to question Daray Bland and Willie Fairley about any favorable treatment or
leniency they received for testifying against Graves. The trial court let Graves proffer Bland and Fairley’s
testimony outside the jury’s presence, but ultimately denied Graves’s request. Graves claims the trial
court’s decision resulted in reversible error.
A. Daray Bland
¶22.
When Daray testified, he was on probation. Counsel for Graves wanted to cross-examine Daray
regarding Daray’s probationary status and his underlying conviction. The circuit court stated that “evidence
of a character conduct of a witness limits the inquiry into whether he has opinion or reputation regarding
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his character for truthfulness or untruthfulness” under M.R.E. 608. Further, the circuit court stated that
“impeachment of evidence of conviction of a crime shall be admitted if established by a public record or
cross-examination if the crime was one punishable by death or imprisonment in excess of one year” under
M.R.E. 609. The circuit court, citing Peterson v. State, 518 So.2d 632 (Miss. 1987), noted that it must
weigh the probative value of the evidence against the evidence’s prejudicial effect. At that point, the circuit
court instructed Graves’s attorney, Mr. Albert Necaise, to proffer Daray’s testimony out of the jury’s
presence.
¶23.
During that proffer, Daray testified that he was on probation for aggravated assault and that he was
on probation at the time of Marlon’s death. Daray acknowledged that he violated his probation when he
went to the Blue Note and that his probation officer had not filed a petition to revoke his probation. At that
point, the following exchange between the trial judge and Graves’s attorney occurred:
Mr. Necaise: Judge, I think that’s probative to be able to show - The Court:
On what point, Mr. Necaise?
Mr. Necaise: It goes to his credibility, Judge. I mean, you can impeach somebody on a prior
conviction. I think that I ought to have the right to let the jury know that he was
on probation at the time.
The Court:
The fact that he was on probation at the time what does that - - on what material
issue does that assist the jury?
Mr. Necaise: Well, it we could be that maybe - - we could show that he was maybe given some
leniency for not filing a petition because that’s - The Court:
Why don’t you inquire about that? There’s no proof before me at this point that
anyone even discussed that fact.
Mr. Necaise followed the trial judge’s recommendation, resulting in the following:
Q.
Did you advise [your probation officer] that you were in the Blue Note?
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A.
Yes, sir. He knows about my brother’s death. He knows that I witnessed it.
Q.
And did he say anything to you about being in the Blue Note?
A.
No, sir.
Q.
Okay. Were you suppose to be out at 3:00 in the morning?
A.
No, sir.
Q.
Okay.
Mr. Necaise: Judge, the reason - - This is the same thing - - My client was on probation at the
time. If you look at the probation order it was - - I think didn’t say anything about
being charged with murder. I think it was being in the Blue Note, a place that he
had no right to be at the time. That’s what he was originally revoked on.
The Court:
Mr. Bland, did [your probation officer] or anyone else from the department of
corrections say to you or indicate to you or do anything that even gave you the
inference, even made you believe that if you don’t come in here and testify for the
district attorney’s office, they were going to file some petition to revoke your
probation? Anybody ever say that to you?
Daray:
No, sir.
The Court:
Anyone ever say or indicate they will leave you on probation if you do the right
thing or you go testify for the state?
Daray:
No, Sir.
The Court:
All right.
Mr. Necaise: Judge, it already shows that he’s violated the terms of his probation arising out of
the same incident out there, that nothing was done to him.
The Court:
That may be, Mr. Necaise. But that’s a function of the department of corrections,
and there’s no inference or testimony that he was given any leniency promise or
reward or anything else in exchange for his testimony here today. Today it has to
be probative and has to have some impeachment value to his testimony here today,
and there’s been none shown.
Mr. Necaise: Judge, that’s what makes it an issue for the jury to determine that.
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The Court:
Not under Peterson v. State. It’s an issue that I have to determine first whether
the probative value outweighs the prejudicial effect. And the prejudicial effect is to
say that he’s just another person who was charged with a violent crime, an
aggravated assault and was out there on probation where at 3:00 in the morning in
a place like the Blue Note where folks are violating their probation and shooting
one another. That is prejudicial to insinuate that even if it’s true. I sustain the
state’s motion in limine. I’m not going to allow you - - First of all, I need to make
that on the record finding that the probative value of admitting the fact that he’s on
probation and was on probation at the time of the incident on the charge of
aggravated assault does not outweigh the prejudicial effect, and that testimony to
that effect would - - does not assist the jury in any way. Nor is it impeachment as
to the credibility of his testimony in the court’s opinion. And under the guidelines
of Peterson v. State [518 So.2d 632 (Miss. 1987)] I find that the prejudicial effect
does outweigh it. I will sustain the state’s motion in limine. You may not go into the
fact that he was convicted and on probation. You have your exception.
B. Willie Fairley
¶24.
Willie Fairley testified for the State. At trial, counsel for Graves proffered Fairley regarding prior
convictions and similar promises or offers of leniency. During that proffer, Fairley testified that, on March
10, 2001, he pled guilty to a charge of transfer of a controlled substance. Further, Fairley testified that, as
a result of his guilty plea, he was placed on probation for three years. As with Daray, Graves sought to
demonstrate that Fairley received favorable treatment in exchange for his testimony because Fairley’s
probation had not been revoked. The circuit court held:
Under 609(A)(1) and the balancing test under Peterson v. State . . . there’s no basis for
[Fairley’s] conviction or the sentence he received to allege that it was influenced or that he
was given any leniency or reward or that he was threatened or coerced in any way by use
of his probation and suspended sentence for his testimony or his presence here today. And
thus the prejudicial value of introducing his conviction outweighs any probative value, and
I therefore again sustain the state’s motion in limine and will prohibit the defense from
introducing his conviction and sentence.
C. Graves’s Argument on Appeal
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¶25.
On appeal, Graves argues that the circuit court erred by excluding evidence that Daray and Fairley
received leniency in exchange for their testimony. To be exact, Graves states, “Willie Fairley received
leniency with respect to unrelated charges that were pending at the time of the murder of Marlon Bland in
exchange for his testimony.” Graves omits Daray from this statement. Regardless, there is no evidence in
the record that Fairley received leniency at all, and Graves does not cite to a specific portion of testimony
in the transcript or record that indicates either witness received leniency. In fact, Fairley and Daray both
denied they received leniency in exchange for their testimony.
¶26.
Still, Graves cites Suan v. State, 511 So.2d 144, 147-48 (Miss. 1987) and argues “[e]vidence that
a material witness has received favorable treatment at the hands of law enforcement authorities; particularly
where the witness himself is subject to prosecution is probative of the witness’s bias and may be developed
through cross-examination or otherwise presented to the jury.” According to Graves, “[t]he trial court’s
denial of [Graves’s] right to cross-examine the state’s eyewitnesses deprived him of due process and the
fundamental right to a fair trial.”
D. Did the trial court err when it excluded the evidence at issue?
¶27.
As mentioned, the circuit court based its decision on two separate authorities: Mississippi Rule of
Evidence 609 and Peterson v. State, 518 So.2d 632 (Miss. 1987). According to M.R.E. 609, “[f]or the
purpose of attacking the credibility of a witness, evidence that a nonparty witness has been convicted of a
crime shall be admitted subject to Rule 403, if the crime was punishable by death or imprisonment in excess
of one year under the law under which the witness was convicted.” M.R.E. 609(a)(1). Peterson is the first
case in which the Mississippi Supreme Court applied M.R.E 609. Peterson, 518 So.2d at 636.
¶28.
In resolving whether the circuit court erred, we are mindful that a trial judge has “substantial leeway
in controlling the admission of evidence.” Moran v. State, 822 So.2d 1074, 1077 (¶8) (Miss. Ct. App.
11
2002). This Court will only reverse a trial judge’s decision to exclude evidence if that decision results in
harm. Ellis v. State, 856 So.2d 561, 565 (¶9) (Miss. Ct. App. 2003). “The relevancy and admissibility
of evidence are largely within the discretion of the trial court and reversal may be had only where that
discretion has been abused.” Hentz v. State, 542 So.2d 914, 917 (Miss. 1989). We may reverse a trial
judge’s decision to admit or exclude evidence if that decision results in prejudice or harm. Ellis, 856 So.2d
at 565 (¶9).
¶29.
As for Graves’s reliance on Suan, we find that it is inapplicable to this case. To be sure,
“[e]vidence that a material witness has received favorable treatment at the hands of law enforcement
authorities; particularly where the witness himself is subject to prosecution is probative of the witness’s bias
and may be developed through cross-examination or otherwise presented to the jury.” Suan v. State, 511
So.2d at 147-48. However, the rule in Suan has not applied to every circumstance. In Craft v. State, 656
So.2d 1156 (Miss. 1995), the Mississippi Supreme Court distinguished Suan when it held that, where there
is no evidence that indicates or even implies that a witness testified favorably in exchange for favorable
treatment, Suan is inapplicable. Id. at 1163. Here, there is no evidence that Daray or Fairley testified
favorably in exchange for favorable treatment. Instead, Daray and Fairley both denied that the received any
leniency in exchange for favorable testimony. Accordingly, Suan is inapplicable. Id.
¶30.
As for the trial judge’s application of M.R.E 609, we cannot say that the trial judge abused his
discretion. The trial judge weighed the prejudicial effect of the testimony against its probative value.
Considering that Fairley and Daray both denied they received leniencyfor favorable treatment, the trial judge
did not abuse his discretion in determining that the prejudicial effect of testimony regarding Daray and
Fairley’s probationary status outweighed any probative value of that evidence. We affirm the trial judge’s
decision.
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III.
APPELLANT WAS DENIED A FUNDAMENTALLY FAIR TRIAL DUE TO THE TRIAL
JUDGE’S MISCONDUCT DURING VOIR DIRE.
¶31.
In this issue, Graves states “[t]he trial judge committed reversible error when it stated to the jury that
he had presided over the marriage ceremony of Assistant District Attorney Mark Ward during voir dire.”
Mr. Ward was one of the two assistant district attorneys who prosecuted Graves. Graves suggests that the
trial judge’s comment was improper because it bolstered Mr. Ward’s position before the jury. According
to Graves, the trial judge’s comment, and its bolstering effect, undermined Graves’s right to a fundamentally
fair trial. We think counsel for Graves misreads the record. This is evident from the exchange at issue:
The Court:
All right. Ms. Harper, whom do you know?
Juror Harper: Mr. [Scott] Lusk’s mother and I work together.
The Court:
You currently work together?
Juror Harper: We do. We share an office.
The Court:
And do you know Mr. Lusk?
Juror Harper: I do.
The Court:
And how long do you think you’ve known him?
Juror Harper: Probably most of his life.
The Court:
Okay. How often do you think you have an occasion to see him or visit
with him?
Juror Harper: Very infrequently.
The Court:
I know you weren’t - - He was recently married. I know you weren’t
there because I presided over it, but is there anything, Ms. Harper, about
that relationship, the fact that you’ve known Mr. Lusk all these years you
think would automatically cause you to either lean in his favor or maybe
because you’ve known him all these years you’d automatically lean the
other way? I’m not going to ask you. I think you get the gist of my
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question. Would the fact that you know Mr. Lusk, would that cause you
to be unfair to either side, the defendant or the state in this case?
Juror Harper: I don’t think so.
The Court:
¶32.
Thank you, ma’am.
So, Graves actually means Mr. Lusk when he claims the trial judge’s comment bolstered Mr. Ward.
Mr. Lusk is also an assistant district attorney. Mr. Lusk and Mr. Ward both prosecuted Graves. Thus,
there is no substantial difference in Graves’s claim, simply because he mistakenly references Mr. Ward
instead of Mr. Lusk.
¶33.
Regardless, Graves did not make a contemporaneous objection. This issue is procedurally barred
as it was not properly raised in the trial court. A trial judge cannot err when he has not had an opportunity
to make a decision. Milano v. State, 790 So.2d 179 (¶47) (Miss. 2001). The Mississippi Court of
Appeals has no original jurisdiction; it can only try questions that have been tried and passed upon in the trial
court. Id. For this reason, this issue is not properly before this Court. Id.
¶34.
Moreover, Graves failed to cite any authority for this issue. An appellant is obligated to provide
authority to support his argument. Williams v. State, 708 So.2d 1358 (¶12) (Miss. 1998). When an
appellant fails to cite authority for an argument, a procedural bar operates, and this Court is not obligated
to consider that argument. White v. State, 818 So.2d 369 (¶7) (Miss. Ct. App. 2002). As such, this issue
is doubly barred.
IV.
GRAVES WAS DENIED A FAIR TRIAL DUE TO THE INEFFECTIVE ASSISTANCE OF
TRIAL COUNSEL.
¶35.
In this issue, Graves claims he received ineffective assistance of counsel because his attorney failed
to impeach Fairley’s testimony with a prior inconsistent statement. When a party raises an ineffective
assistance of counsel claim on direct appeal, the proper resolution is to deny relief without prejudice to the
14
defendant's right to assert the same claim in a post-conviction relief proceeding. Pittman v. State, 836
So.2d 779 (¶38) (Miss. Ct. App. 2002). “We should reach the merits on an ineffective assistance of
counsel issue on direct appeal only if ‘(1) the record affirmatively shows ineffectiveness of constitutional
dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the
finding without consideration of the findings of fact of the trial judge.’” Id. at (¶39) (quoting Colenburg v.
State, 735 So.2d 1099, 1101 (Miss. Ct. App.1999)). If we do not consider the issue due to the state of
the record, assuming we affirm the conviction, Graves may raise his ineffective assistance of counsel claim
in post-conviction relief proceeding. Id. The parties have not entered any such stipulation, and the record
does not affirmatively show ineffectiveness of constitutional dimensions. Accordingly, Graves may raise his
ineffective assistance of counsel claim in a post-conviction relief proceeding.
V.
THE DEFENDANT WAS DENIED A FAIR TRIAL BY THE COURT’S DENIEL [SIC] OF
HIS RIGHT TO CONFRONT WITNESSES AGAINST HIM.
¶36.
In this issue, Graves repeats his claim from issue two, above. That is, Graves claims that the trial
court erred when it did not allow him to cross-examine Daray or Fairley regarding their prior felony
convictions. As we resolved that question in issue two, there is no reason to repeat our analysis. This issue
is meritless.
VI.
THE DEFENDANT WAS NOT ALLOWED TO USE PRIOR INCONSISTENT
STATEMENTS TO IMPEACH WITNESSES.
¶37.
In this issue, Graves reiterates a point he raised in his ineffective assistance of counsel claim from
issue three. Here, Graves claims the circuit court erred when it refused to allow Graves to impeach Fairley
with a prior inconsistent statement.
¶38.
Graves’s defense theory was that Shawn “Miami” Johnson shot and killed Marlon Bland. Willie
Fairley initially gave a statement indicating he heard Johnson say “somebody’s going to die.” However, on
15
cross-examination, Fairley denied he actually heard Johnson make that statement. The trial judge
admonished Graves’s counsel from reading from Fairley’s statement and advised him that the proper
impeachment method was to call the police officer present when Fairley gave the statement. That police
officer had been deployed to Bosnia at the time, so the trial judge told Graves that he could introduce the
statement through the investigator in charge of the case. During cross-examination of that investigator,
counsel for Graves did not raise the issue of Fairley’s prior statement. According to Graves, it “was
absolutely critical for [Graves’s] defense that Fairley’s testimony at trial be impeached by his statement to
police.”
¶39.
Even though Graves’s counsel did not introduce Fairley’s statement into evidence, Graves’s counsel
did cross-examine Fairley on the matter. The following exchange transpired:
Q.
[L]et me start over. (reading from the statement) I remember [Johnson] saying
there ain’t going to be no, I don’t know some shit or inaudible, somebody if there’s
going to be anything, somebody’s going to get killed some shit. I can’t remember
how it went, but it was something like that in that nature . . . . [d]id you say that in
your statement?
A.
Yes, I did say that.
Q.
Well, you did hear [Johnson] say something?
A.
No. What I should have said in my statement was that I didn’t hear that come out of
[Johnson’s] mouth, but I had heard on the street that’s what was said.
Q.
Now, Mr. Fairley - -
A.
Yes.
Q.
- - that’s not what you say in this statement, is it?
A.
No, it’s not.
Q.
Now, is this statement true?
16
A.
Q.
When then you said, I remember [Johnson] saying. That is true, isn’t it?
A.
Well, maybe I didn’t word it right when I said that.
Q.
Okay. Okay. So you didn’t hear [Johnson] say that, but you said that in your statement?
A.
Like I said, maybe I didn’t word it right when I said it.
Q.
You just didn’t word it right. All right.
A.
¶40.
Yes, my statement’s true.
I not fixing to sit up here and lie on [Johnson]. I’m not fixing to sit up here and lie on
[Graves].
Thus, Graves’s counsel brought Fairley’s inconsistent statement to light. The jury heard Fairley say
that he heard Johnson say something that implicated Johnson, rather than Graves, as Marlon’s killer. The
jury also heard Fairley explain his statement as a mistake. Fairley explained that he did not actually hear
Johnson say anything, but he heard someone say that Johnson said “someone’s going to die” or something
similar. Accordingly, that evidence that Graves claims his counsel did not introduce, is clearly in the record
and was adequately before the jury through Fairley’s testimony.
¶41.
Not only is Graves patently wrong, as the circuit court allowed Graves to cross-examine Fairley with
Fairley’s prior statement, Graves actually did impeach Fairley on that statement. Further, the circuit court
also allowed Fairley to introduce the statement through the investigator in charge of the case because the
officer that took the statement had been deployed to Bosnia. This issue is completely meritless.
¶42. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF
CONVICTION OF MURDER AND SENTENCE OF LIFE IN PRISON WITHOUT PAROLE
IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES AND
ISHEE, JJ., CONCUR.
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