Michael Seals v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 97-KA-00965-COA
MICHAEL SEALS A/K/A MICHAEL E. SEALS A/K/A MICHAEL EUGENE
SEALS A/K/A 'BEBOP'
v.
STATE OF MISSISSIPPI
APPELLANT
APPELLEE
DATE OF JUDGMENT:
06/06/1997
TRIAL JUDGE:
HON. ROBERT WALTER BAILEY
COURT FROM WHICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:
TIM WILSON
ATTORNEYS FOR APPELLEE:
OFFICE OF THE ATTORNEY GENERAL
BY: CHARLES W. MARIS JR.
DISTRICT ATTORNEY:
BILBO MITCHELL
NATURE OF THE CASE:
CRIMINAL - FELONY
TRIAL COURT DISPOSITION:
SENTENCED TO THIRTY YEARS IN THE CUSTODY OF
MDOC AS AN HABITUAL OFFENDER. PAY A FINE OF
$5,000 WITH $4,000 SUSPENDED.
DISPOSITION:
AFFIRMED - 03/23/99
MOTION FOR REHEARING FILED: 4/7/99
CERTIORARI FILED:
MANDATE ISSUED:
6/29/99
BEFORE THOMAS, P.J., LEE, AND SOUTHWICK, JJ.
THOMAS, P.J., FOR THE COURT:
¶1. Michael Seals appeals his conviction of the sale of cocaine, raising the following issue as error:
I. THE TRIAL COURT ERRED WHEN IT RULED THAT THE DEFENDANT COULD NOT
TESTIFY IN HIS OWN DEFENSE WITHOUT BEING SUBJECT TO CROSSEXAMINATION ABOUT HIS CRIMINAL RECORD.
¶2. Finding no error, we affirm.
FACTS
¶3. On September 18, 1996, Michael Seals sold $100 worth of crack cocaine to Joshua Coleman, an
undercover police officer. At trial, Seals expressed his desire to testify in his own defense provided he
would not be subject to cross-examination about two prior felony convictions. The trial judge ruled that
Seals would be subject to cross-examination about his prior convictions. Seals declined to testify. Seals
was thereafter convicted as a habitual offender for the sale of cocaine.
ANALYSIS
I.
THE TRIAL COURT ERRED WHEN IT RULED THAT THE DEFENDANT COULD NOT
TESTIFY IN HIS OWN DEFENSE WITHOUT BEING SUBJECT TO CROSSEXAMINATION ABOUT HIS CRIMINAL RECORD.
¶4. Seals argues that he was coerced into giving up his right to testify by the fear that the jury would be
prejudiced by knowledge of his prior convictions. Seals asserts that the only reason for the desire of the
State to cross-examine him as to his prior felony convictions was to introduce the fact of the prior
convictions to the jury in an improper attempt to prejudice them. Therefore, Seals argues that he was
denied his right to testify in his own defense by the trial judge's ruling that he could not do so without being
subject to cross-examination about his prior felony convictions.
¶5. Seals's basic argument is that the trial judge's ruling had a "chilling effect" on his decision to testify. Our
supreme court has held that in such a case to properly preserve the issue for appellate review the defendant
must preserve for the record "substantial and detailed evidence of the testimony he would have given."
Heidelberg v. State, 584 So. 2d 393, 395 (Miss. 1991) (quoting Saucier v. State, 562 So. 2d 1238,
1245 (Miss. 1990)). Seals failed to proffer anything evidencing his testimony; therefore, he has failed to
properly preserve this issue for appeal.
¶6. Nonetheless, without waiving the procedural bar, Seals's argument lacks merit. Examination of the
record shows that Seals was previously convicted for both robbery and burglary. Prior felony convictions
can be used to impeach a defendant who elects to take the stand under M.R.E. 609. Hawkins v. State,
538 So. 2d 1204, 1206 (Miss. 1989). Seals argues that evidence of these felonies can only be used for
impeachment purposes and only if the prejudicial effect is outweighed by the probative value of the
impeachment. Seals attempts to argue that such crimes have no relevance to the issue of his propensity to
testify truthfully; therefore, the trial judge erred in allowing their admissibility. However, our supreme court
has held that:
The crimes of robbery and larceny, even if not in the nature of crimen falsi, do disclose a disregard
for the rights of others which might reasonably be expected to express itself in giving false testimony
whenever it would be to the advantage of the witness to do so. Put another way, crimes which involve
theft have at least some probative value for assessing credibility of the witness.
Bogard v. State, 624 So. 2d 1313, 1317 (Miss. 1993).
¶7. The trial judge made an on-the-record determination using the Peterson factors that the probative value
of the evidence outweighed its prejudicial effect. Peterson v. State, 518 So. 2d 632, 636 (Miss. 1987).
The trial judge found that each Peterson factor favored admissibility, and that the State had made a prima
facie case for the admissibility of the felony convictions. In such a case we would reverse the trial judge
only for an abuse of discretion. Hawkins, 538 So. 2d at 1207. We hold the trial judge did not abuse his
discretion in this instance.
¶8. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT OF
CONVICTION OF THE SALE OF COCAINE AND SENTENCE AS A HABITUAL
OFFENDER TO THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT
OF CORRECTIONS AND FINE OF $5,000 WITH $4,000 SUSPENDED IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO APPELLANT.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, COLEMAN, DIAZ, IRVING,
LEE, AND PAYNE, JJ., CONCUR.
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