Roger Lee Williams, Jr. v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 1999-KA-01161-COA
ROGER LEE WILLIAMS, JR.
v.
STATE OF MISSISSIPPI
APPELLANT
APPELLEE
DATE OF JUDGMENT:
06/11/1999
TRIAL JUDGE:
HON. GEORGE B. READY
COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:
JACK R. JONES III
ATTORNEY FOR APPELLEE:
OFFICE OF THE ATTORNEY GENERAL
BY: DEWITT T. ALLRED III
DISTRICT ATTORNEY:
ANN H. LAMAR
NATURE OF THE CASE:
CRIMINAL - FELONY
TRIAL COURT DISPOSITION:
06/11/1999: SIMPLE ASSAULT UPON A LAW
ENFORCEMENT OFFICER - TO SERVE A TERM OF
FIVE YEARS IN THE MDOC AND PAY ALL COSTS OF
COURT
DISPOSITION:
AFFIRMED - 02/13/2001
MOTION FOR REHEARING FILED: 02/28/2001;DENIED-06/26/2001- AFFIRMED
CERTIORARI FILED:
7/3/2001; denied 10/18/2001
MANDATE ISSUED:
MODIFIED OPINION
MOTION FOR REHEARING
EN BANC.
LEE, J., FOR THE COURT AS TO ISSUE I AND II:
¶1. The State's motion for rehearing as to Issue III in this matter is denied, however, its motion for
modification of opinion is granted to the extent reflected in this opinion. The original opinion issued in this
case is withdrawn, and the following opinion is substituted as the opinion of this Court.
¶2. In March of 1999, Roger Lee Williams, Jr. was indicted under Miss. Code Ann. § 97-3-7 (1)(a)(Rev.
1999) in the Circuit Court of DeSoto County for four counts of simple assault on four law enforcement
officers. The case was tried before a jury which found Williams guilty of Count I of disorderly conduct,
guilty of Count II of simple assault, and not guilty of Count IV of simple assault. Count III was dismissed on
motion of the State at the close of its case. The court sentenced Williams to zero days jail time and zero
days suspended time for disorderly conduct as to Count I, and to a term of five years imprisonment as to
Count II. Williams asserts as errors the trial court's denial of his motions for a directed verdict and JNOV
and the State's cross-examination of a witness in regard to the length of his sentence for a prior conviction.
In addition, the State asserts that the court had no jurisdiction as to the allegation of disorderly conduct in
Count I and moves that the judgment of conviction and sentence for that count be reversed.
¶3. After a thorough review of the record, we find that the trial court committed no error in the issues
asserted by Williams and affirms as to those issues.
FACTS
¶4. This case presents a situation we encounter all too often: differing versions of the facts. The altercation
giving rise to the charges against Williams occurred on December 23, 1998, in the early afternoon at the jail
where Williams was housed as a prisoner.
¶5. According to the State's witnesses, the chief jailer had asked Deputy Jailer Ivie Powell and Sergeant
Charles Mayo to take Williams from his cell to her desk so that she could talk to him. When Williams got to
her desk he used abusive language toward her, and she ordered that he be taken back to his cell. When he
got back to his cell, Williams slung the cell door toward Powell, shutting it on his hand. Powell sprayed
Williams with mace while Mayo locked the door with a padlock. Powell sought medical treatment for the
injury to his hand.
¶6. Detective Lieutenant Tommy Burks was called to investigate this incident but was unable to interview
Williams because Williams was irate. Later that afternoon Burks, Captain Keith Combes, and Chief Deputy
Charles Brown met with Williams to discuss a complaint Williams had made. When Williams said he had no
respect for the officers and made vulgar remarks to them, Combes instructed Brown to take Williams back
to his cell. Brown grabbed Williams by the arm to take him back to his cell and Williams snatched it away
from him. Williams began using profanity and said, "I'm not going f------ anywhere." Combes then sprayed
Williams with Freeze Plus P, and Williams began fighting Combes and Brown. Williams grabbed Burks, hit
him with his fist, tried to gouge his eye with his thumb, and rubbed the Freeze Plus P in Burks's face. Other
officers got Williams loose from Burks. Burks was treated for a lacerated eye socket and other injuries.
Thereafter, his sinuses bled for two weeks.
¶7. Williams testified that Powell's hand was not caught in the door of the cell and that Powell sprayed him
in the face with mace after he had been locked in his cell. He said he was being reasonable when Combes
took him from his cell to the detectives's area to make his complaint when Combes ordered him to be taken
back to his cell and sprayed him with mace. Williams argues that he was merely trying to shield himself from
the spray and that, being shackled, it is illogical that he would have intentionally assaulted officers
surrounding him. He said the scuffle only lasted a few seconds and that he was thrown to the floor by three
deputies who grabbed him simultaneously. He claims the officers overreacted to his frustration caused by his
efforts to talk with the chief deputy.
I. DID THE TRIAL COURT ERR IN DENYING THE MOTIONS CHALLENGING THE
LEGAL SUFFICIENCY OF THE EVIDENCE?
¶8. Williams asserts that the trial court erred in denying his motions for a directed verdict and JNOV. In
assessing the legal sufficiency of the evidence on a motion for a directed verdict or a motion for JNOV, the
trial judge is required to accept as true all of the evidence that is favorable to the State, including all
reasonable inferences that may be drawn therefrom, and to disregard evidence favorable to the defendant.
Yates v. State, 685 So. 2d 715, 718 (Miss. 1996); Ellis v. State, 667 So. 2d 599, 612 (Miss. 1995);
Noe v. State, 616 So. 2d 298, 302 (Miss. 1993); Clemons v. State, 460 So. 2d 835, 839 (Miss. 1984).
If under this standard sufficient evidence to support the jury's verdict of guilty exists, the motion should be
overruled. Brown v. State, 556 So. 2d 338, 340 (Miss. 1990); Butler v. State, 544 So. 2d 816, 819
(Miss. 1989). A finding that the evidence is insufficient results in a discharge of the defendant. May v.
State, 460 So. 2d 778, 781 (Miss. 1984).
¶9. Count II of the indictment alleged that Williams purposely and knowingly caused bodily injury to
Tommy Burks, a law enforcement officer acting within the scope of his duty, by striking him in the face. The
testimony of Burks alone, if believed by the jury, was sufficient to establish the charges made in Count II of
the indictment. The testimony was corroborated with that of Combes and Brown. We thus find that the
standard of review to which we are bound is met and find no merit to this assignment of error.
II. DID THE TRIAL COURT ERR IN PERMITTING THE STATE TO INQUIRE INTO
THE FACT OF A CONVICTION AND LENGTH OF SENTENCE ON CROSSEXAMINATION OF A DEFENSE WITNESS?
¶10. Eddie Shorty, a defense witness, was serving a term of thirty years imprisonment without parole. The
State advised the court that it intended to impeach Shorty by showing that he had been convicted of a crime
punishable by imprisonment in excess of one year and the facts of his sentence.
¶11. The State was permitted to establish only that Shorty was in the DeSoto County jail waiting for
transport by the State and that he was serving a sentence of thirty years without parole. Under M.R.E.
609(a)(1), the impeachment value lies in the fact that Shorty was convicted of a crime that is punishable by
a year or more, subject to the determination by the court that the probative value of admitting this evidence
outweighs its prejudicial effect. Because the trial judge restricted the State from showing that Shorty's
conviction was for a violent crime, the weighing of the probative value and prejudicial effect of the
conviction of the crime itself was never implicated. It was not Shorty's conviction of the crime that the trial
court permitted to impeach his credibility. The court permitted his credibility to be impeached by the fact
that he had a thirty year prison sentence and the inference that he had nothing to lose by lying as a witness.
Thus the trial court actually should have addressed the ordinary relevance test under M.R.E. 403, rather
than M.R.E. 609, to determine whether the probative value of Shorty's sentence, with its inferences, is
substantially outweighed by the danger of unfair prejudice.
¶12. Our standard of reviewing the cross-examination of a witness regarding bias and interest was set forth
in Johnson v. State, 756 So. 2d 4 (¶ 8) (Miss. Ct. App. 1999), which states that the scope of such crossexamination is ordinarily broad. However, the extent of cross-examination is within the sound discretion of
the trial court, but its ruling will be reversed when an abuse of that discretion is shown. Id. The fact that
Shorty was serving the equivalent of a life term without parole and would have nothing to lose if he should
be convicted of perjury was both relevant and probative as to his credibility and bias. In addition, the
likelihood of any unfair prejudice to Williams was slight, since there was no evidence presented to show that
Shorty was associated in any criminal activity, or otherwise, with Williams. Shorty was called as a witness
simply because he was in the jail at the time of the incident and was a witness to it. We find that the trial
court did not abuse its discretion and reached the correct result, regardless of whether its reasoning
followed the balancing required in Rule 609 rather than that in Rule 403, and affirm as to this issue. In
reviewing a trial court's ruling, an appellate court should affirm if the correct result was reached regardless
of the approach used in its reasoning. Carter v. State, 167 Miss. 331, 342, 145 So. 739, 742 (1933).
¶13. The point should be made that had the ruling been erroneous, any error was cured by the verdict. The
central factual issue to which Shorty testified was whether Williams injured Powell by slamming the cell
door on his hand. The jury decided in Williams's favor and consistently with Shorty's testimony on this issue,
absolving Williams for Count I. Where there is error which has been cured by the verdict, there is no
reversal. Davis v. State, 611 So. 2d 906, 913 (Miss. 1992).
¶14. Williams contends that this rule is inapplicable because the verdict of guilty in Count II may have been
influenced by the jury's belief that Williams was associated with someone serving a lengthy sentence. We
disagree. Williams was found guilty of simple assault for Count II where the evidence was compelling. The
jury found Williams not guilty of two of the other assault charges, the State having dismissed the other
charge. We therefore do not believe that the jury was influenced by the admission of this testimony.
IRVING, J., FOR THE COURT AS TO ISSUE III:
III. SHOULD THE JUDGMENT OF CONVICTION AND SENTENCE FOR COUNT I
OF DISORDERLY CONDUCT BE REVERSED?
¶15. This case is unusual in that the State, not the appellant, asks this Court to reverse and render
Williams's conviction of disorderly conduct. The basis of the State's request is that Miss. Code Ann. § 9919-5 (Rev. 2000) permits a jury to be instructed on a non-indicted lesser-included offense but does not
permit a jury to be instructed on a non-indicted lesser offense. Hence, according to the State, the trial court
lacked jurisdiction over the lesser offense charge because no indictment or information had been returned
against Williams for that charge. While Williams seeks a reversal of his conviction on this charge, he does so
on the basis of the sufficiency of the evidence, not on the basis that Miss. Code Ann. § 99-19-5 (Rev.
2000) prohibits the instruction which allowed the jury to find him guilty.
¶16. Further, it is interesting to note that, according to the record, the State did not join in Williams's posttrial motion for a JNOV, nor did it move, before the trial court, for a dismissal of the count I disorderly
conduct conviction. It did move at the close of the case to dismiss count III of the indictment. I know of
nothing that would have prevented the State from moving to dismiss count I or from joining Williams's
JNOV motion on the ground which the State asserts here.
¶17. The record reflects the following discussion between the court, Ms. Brewer, the prosecutor, and Mr.
Jones, Williams's defense counsel, prior to the court's decision to give the lesser offense instruction:
BY MS. BREWER: Mr. Jones has asked for a lesser included offense instruction on disorderly
conduct. And for the purpose of jury instruction looking at it in the light most favorable to the Defense
as far as what proof was, I understand there could be a lesser charge on the first incident
because he was told not to slam the hand, and he did it anyway.
BY MR. JONES: Right, but it goes to all of the incidences.
BY THE COURT: What is your position? He can't get it on the other two?
BY MS. BREWER: No, sir. I think he can get it on the slam the door or whatever when he was told
not to.
¶18. Count I was the count involving the slamming of the door. This was the count for which the jury found
Williams guilty of disorderly conduct. It seems pretty clear to us that the State agreed that Williams was
entitled to a lesser offense instruction as to count I. The State has not appealed the granting of the lesser
offense instruction as to count II even though the trial court, over the State's objection, allowed a lesser
offense instruction as to count II as well. Thus, it appears to me that there is a serious question as to
whether the State can prosecute an appeal here regarding the granting of the lesser offense instruction on
count I since it agreed to the granting of the instruction as to that count. Mississippi Code Annotated § 9935-103 (Rev. 2000) states in pertinent part:
The State or any municipal corporation may prosecute an appeal from a judgment of the circuit court
in a criminal cause in the following cases:
(b) From a judgment actually acquitting the defendant where a question of law has been decided
adversely to the state or municipality; but in such case the appeal shall not subject the defendant to
further prosecution, nor shall the judgment of acquittal be reversed, but the Supreme Court shall
nevertheless decide the question of law presented.
(c) From a ruling adverse to the state or municipality in every case which the defendant is convicted
and prosecutes an appeal; and the case shall be treated as if a cross appeal had been formally
presented by the state. All questions of law thus presented shall be decided by the Supreme Court.
¶19. In the present posture of things, there is simply no ruling adverse to the State that is still viable and
before this Court. While consideration of count II is before this Court on a sufficiency argument, there is no
cross-appeal by the State. The State's brief makes that clear. The State's brief is entitled: Brief for Appellee
and Motion for Reversal and Discharge in Count I. Assuming arguendo that the State has a viable appeal,
we now turn to further discussion of the issue.
¶20. The State correctly points out that Williams was not indicted for disorderly conduct, and the offense of
disorderly conduct is not a lesser-included offense of simple assault. Williams's defense, however, was that
he was not attempting to assault Officer Powell but was merely reacting to the mace that had been visited
upon him. He then reasoned that the most he could be guilty of was disorderly conduct and sought an
instruction to that effect. The trial court granted the instruction, and in our opinion, rightfully so. It is wellsettled law that a criminal defendant is entitled to an instruction which supports his theory of the case. See
Murphy v. State, 566 So. 2d 1201, 1206 (Miss. 1990). Also, a defendant has a constitutional right to a
fair trial. That right necessarily embraces his right to have his theory of defense presented to the jury and to
have the jury properly instructed on the law regarding that defense. Any statutory impediment to this
constitutional right must yield.
¶21. Murrell v. State, 655 So. 2d 881,886 (Miss. 1995) and Mease v. State, 539 So. 2d 1324, 1329
(Miss. 1989) both hold that a defendant is entitled to a lesser offense instruction for the non-indicted lesser
offense if it arises out of a common nucleus of operative facts as the charge brought in the indictment. See
also Griffin v. State, 533 So. 2d 444 (Miss. 1988)
¶22. While Williams argues that the evidence is insufficient to sustain his conviction, it is our understanding
from the record that the State's position at trial was that the evidence was sufficient to convict Williams of
simple assault but conceded that Williams may have been entitled to the lesser offense instruction. In this
appeal, the State still does not take issue with the sufficiency of the evidence to support the conviction, and
we find Williams's contentions in this regard wholly without support. There is considerable evidence to
support the jury's determination that he was guilty of disorderly conduct. Accordingly, we affirm the
judgement of conviction for disorderly conduct.
¶23. It seems to us that this case highlights two competing interests: a defendant's right to have the jury
instructed on his theory of defense and the State's interest in prohibiting the jury from returning what the
State perceives as being a compromised verdict in cases where the evidence might be insufficient to support
the greater charge but sufficient to support a lesser offense which is not a lesser-included offense of the
greater charge. As between these two competing interests, it is clear the defendant should prevail.
¶24. The concurring opinion seems to argue that the instruction should not have been given because of the
impossibility of knowing whether giving the instruction would increase or reduce the risk of finding Williams
guilty of the greater offense. That has never been the basis for granting an instruction. Instructions should be
granted or refused based on whether there is any evidence to support the requested instruction. A judge
can never know beforehand how a jury will react to the instructions, and that is the way it should be. If prior
scienter of the jury's reaction to a given instruction was a prerequisite to granting instructions, none would
ever be granted, for it is impossible to predict with any decree of accuracy how a jury will react in any given
case. But more importantly, if knowledge of how a jury may react to a given instruction was the
determinative factor for allowing or not allowing instructions, and if that knowledge could be obtained, the
constitutional right to a fair trial would cease, for all a court need do is allow the instructions which would
garner the desired result.
¶25. For the reasons discussed, we hold that the trial court did not err in granting the instruction, and
Williams's assertion that the evidence was insufficient to support his conviction of disorderly conduct is
without merit.
¶26. THE JUDGMENT OF THE DESOTO COUNTY CIRCUIT COURT OF CONVICTION OF
COUNT I OF DISORDERLY CONDUCT AND SENTENCE OF ZERO DAYS JAIL TIME
AND ZERO DAYS SUSPENDED TIME; COUNT II OF SIMPLE ASSAULT ON A LAW
ENFORCEMENT OFFICER AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO DESOTO COUNTY.
KING, P.J., PAYNE, BRIDGES, THOMAS, IRVING AND MYERS, JJ., CONCUR.
SOUTHWICK, P.J., CONCURS WITH A SEPARATE WRITTEN OPINION JOINED BY
MCMILLIN, C.J. CHANDLER, J., NOT PARTICIPATING.
SOUTHWICK, P.J., CONCURRING:
¶27. The majority finds that the impeachment of a defense witness by proof that he was then serving a long
prison sentence was proper. I disagree, but I also find that the admission was harmless error.
¶28. The witness was named Eddie Shorty. He was a witness to relevant events because he had been
incarcerated in the Desoto County jail awaiting transport to the state prison. The State wished to introduce
evidence that Shorty had been convicted of a specific violent crime that demonstrated disregard for the
rights of others. The record does not identify the crime since the trial court concluded that the important
consideration was not the crime, but only that the witness was about to begin serving a thirty-year sentence
at the state prison. The judge found the thirty-year sentence probative because "he's got nothing to lose by
getting up here and telling a lie . . . ."
¶29. I agree that there was no application here of the evidentiary rule that permits impeachment of a witness
with proof of conviction of certain kinds of crimes. M.R.E. 609. It is not the fact that the witness has been
convicted that is relevant under Rule 609, but it is the nature of the crime that is significant. This point is
made clear by the fact that prior convictions of such crimes as testifying falsely under oath are automatically
admissible. M.R.E. 609 (a) & cmt. Other kinds of crimes must be shown to have "impeachment value."
Peterson v. State, 518 So. 2d 632, 636 (Miss.1987).
¶30. The Supreme Court quite recently overruled a line of precedents that it found were requiring that the
crime itself involve some element of deception. White v. State, 1998-CT-01099-SCT (¶ ¶ 5 & 6) (Miss.
March 1, 2001) (only issue is that probative value of the offense must outweigh prejudice). Just what this
change means may take some time to develop, but at least it does not announce that merely proving the
witness is a felon is now sufficient. The Rule states that evidence of a prior conviction may be admissible
"for the purpose of attacking the credibility of a witness . . . ." M.R.E. 609 (a). The prior crime presumably
will still have to be revealed so that the fact-finder can decide that crime's impact on credibility.
Demonstrating only that the witness is serving a long sentence does not give any indication of the kind of
crime committed. Therefore, Rule 609 was not the door for admitting the evidence against Shorty.
¶31. What the trial judge concluded is that the mere fact that the witness would be incarcerated for thirty
years regardless of what he said in this trial meant that the normal threat of a perjury conviction had little
impact on his temptation to lie. That is plausible enough, but I find that the State also had to show that the
witness would have had some temptation to lie. Already serving a long sentence, or being inflicted with
some imminently terminal disease, or otherwise being less affected by the penalties for perjury is not by itself
relevant impeachment. Had it been shown as a threshold matter that the witness and the defendant were
colleagues in crime, friends, relatives, or had some other connection that would cause the witness to desire
helping the defendant, then a potential weakness in the threat of a perjury conviction might have been
pertinent. Instead, the evidence is that the witness and the accused had no prior connection.
¶32. The evidentiary rules permit a challenge to a witness's credibility based on "bias, prejudice, or interest
of the witness for or against any party" in the trial. M.R.E. 616. If the witness's bias in favor of the accused
had been demonstrated, then also showing jurors that a perjury conviction was potentially not an effective
deterrent could have been relevant. Perhaps the court believed that all prisoners tend to support other
prisoners against the State and would tend to lie if that can be done without penalty. If that is a permissible
predicate, it has not been argued or supported here.
¶33. Only relevant evidence is admissible. That is defined as evidence which has "any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence." M.R.E. 401. The credibility of a witness is always
relevant. M.R.E. 607 & 608. However, the evidence in question here was not of the witness's character for
truthfulness. Instead, it revealed that one of the normal inhibitors for perjury was not as powerful as it might
otherwise be.
¶34. Since no reason for the witness to lie was ever shown, the potentially weak deterrence threat of a
perjury conviction is irrelevant. To use the terminology of the majority's focus on Rule 403, there was no
"probative value" to the information that the witness was already serving a thirty year sentence. Rule 403 is
just a balancing test for evidence that must first be shown to be relevant. This was not relevant. Had the
nature of the crime been examined under Rule 609, perhaps the witness could have been impeached by
proof of the crime itself. That issue was never reached.
¶35. Nonetheless, I find the error to have been harmless. Once the jurors heard the length of Shorty's
sentence, that likely would have caused them to believe that he had been convicted of a significant crime
and not of something minor or even perhaps was just awaiting trial. Still, Shorty was only one of four
inmates who testified for the defense and who told the same story. The fact that they were all inmates at the
jail was explained to the jury. Even though Shorty had his credibility undermined to some extent, improperly
in my view, that did not affect the credibility of the other inmates. The jurors did not accept this defendant's
version of events, a decision that I cannot find would have turned on this impeachment. I would affirm
despite this error.
McMILLIN, C.J., JOINS THIS SEPARATE OPINION.
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