Matthew McNair v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-KA-00832-COA
MATTHEW MCNAIR
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
APPELLANT
APPELLEE
12/07/1999
HON. W. SWAN YERGER
HINDS COUNTY CIRCUIT COURT
JOHN M. COLETTE
OFFICE OF THE ATTORNEY GENERAL
BY: DEWITT T. ALLRED III
DISTRICT ATTORNEY:
EDWARD J. PETERS
NATURE OF THE CASE:
CRIMINAL - FELONY
TRIAL COURT DISPOSITION:
AGGRAVATED ASSAULT WITH A DEADLY WEAPON:
SENTENCED TO SERVE A TERM OF 20 YEARS IN THE
MDOC
DISPOSITION:
AFFIRMED - 10/23/2001
MOTION FOR REHEARING FILED: 11/6/2001; denied 1/15/2002
CERTIORARI FILED:
1/29/2002; denied 4/18/2002
MANDATE ISSUED:
5/9/2002
BEFORE McMILLIN, C.J., THOMAS, AND CHANDLER, JJ.
McMILLIN, C.J., FOR THE COURT:
¶1. This is an appeal from a criminal conviction for aggravated assault returned by a Hinds County Circuit
Court jury against Matthew McNair. McNair seeks to have his conviction set aside based on claims (a)
that his counsel was unreasonably hampered in his efforts to cross-examine the alleged victim, (b) that his
trial attorney's performance was so fundamentally deficient as to deprive him of his constitutionallygrounded right to representation by counsel, and (c) that the State violated the discovery rules when it failed
to produce a record of the alleged victim's felony convictions. We find these issues to be without merit and
affirm McNair's conviction.
I.
Facts
¶2. The State presented evidence to show that McNair, apparently believing that Theophilus Mason had
some involvement in the earlier theft of McNair's truck, approached Mason in the parking lot of an
apartment complex and shot him twice in the legs with a shotgun. As a result, Mason lost his right leg above
the knee and suffered substantial medical complications regarding his left leg.
¶3. McNair did not deny the shooting. He defended his actions by claiming that he fired the first shot in selfdefense when Mason lunged at him during a conversation regarding the stolen truck. The second shot,
according to McNair, was the result of an accidental discharge of his weapon.
II.
Restrictions on Cross-examination of Mason
¶4. McNair points out that, in the defense of a criminal prosecution, the defendant is entitled to pursue a
vigorous cross-examination of the witnesses who testify against him. U.S. Const. amend. VI; Miss. Const.
art. 3 § 26; Schaffer v. State, 740 So. 2d 273, 281 (Miss. 1998); Lanier v. State, 533 So. 2d 473, 488
(Miss. 1988). He claims that he was effectively denied that right on two separate occasions during the
cross-examination of the victim, Theophilus Mason.
¶5. In the first instance, defense counsel sought to inquire as to whether Mason had any prior misdemeanor
or felony convictions. The State objected to this broad inquiry on the ground of relevance and the court
sustained the objection. During a discussion out of the jury's presence, defense counsel indicated that the
inquiry was relevant to his contention that the initial shot was fired in self-defense, because of the question's
potential to uncover "any crime of violence" for which Mason may have been convicted.
¶6. On appeal, McNair adds the additional contention that the response would have been helpful to
demonstrate bias on the part of this witness. An objection to the introduction of evidence must be
accompanied by a statement of the "specific ground of objection . . . ." M.R.E. 103(a)(1). A witness's bias,
either in favor of or against the defendant, is a means of impeaching the credibility of a witness covered by
Mississippi Rule of Evidence 616. Demonstrating that the victim of an alleged assault was a violent person
such that the defendant would have good cause to defend himself is an entirely different matter covered by
Rule 404(a)(2). We decline to consider whether the barred line of inquiry somehow prevented McNair
from showing that Mason was biased against him as having been improperly raised for the first time on
appeal. Farmer v. State, 764 So. 2d 448, 456 (¶26) (Miss. Ct. App. 2000).
¶7. If defense counsel's purpose was to develop the fact that Mason had a violent disposition known to
McNair, thereby making more credible McNair's defense that he fired the shotgun in self-defense when he
saw Mason lunging toward him, then the inquiry was certainly overly broad and objectionable on that
ground alone. Even had the inquiry been more narrowly tailored to seek only information tending to show a
history of violent behavior on Mason's part, the trial court's ruling could be considered error only if it were
accompanied by an offer of proof from the defense demonstrating "the substance of the evidence" alleged to
be wrongfully excluded. M.R.E. 103(a)(2). There is no indication in the record that any such convictions
existed or were known to McNair at the time of the shooting. In order to be relevant in a claim of selfdefense, the victim's nature as a potential aggressor must not only be demonstrated, but it must also be
shown that the defendant was aware of that nature, since only that combination of facts affects the
reasonableness of the defendant's alleged fear of harm at the victim's hands - which is a relevant source of
inquiry by the jury in assessing a claim of self-defense. Rice v. State, 782 So. 2d 171, 174 (¶16) (Miss.
Ct. App. 2001).
¶8. Thus, even if we assume error on the trial court's part for simply cutting off altogether the inquiry into the
possibility of the victim's history of violent criminal behavior instead of guiding defense counsel down a more
appropriately narrow line of questioning, the error cannot be reversible because there is no indication that
the ruling affected a substantial right of the defendant. M.R.E. 103(a).
III.
Ineffective Assistance of Counsel
¶9. On appeal, McNair contends that he received ineffective assistance of counsel at trial and recites a
litany of complaints regarding his trial attorney's lack of diligence in investigating the case and preparing for
trial. There is a strong presumption that an attorney's performance fell within the acceptable limits of
professionally competent representation required by the Sixth Amendment. Vielee v. State, 653 So. 2d
920, 922 (Miss. 1995). In order to prevail on a claim of constitutionally deficient representation, the
defendant must show (a) that the attorney's performance fell outside those acceptable limits, and (b) that,
but for the attorney's defective performance, there is a substantial likelihood that the outcome of the case
would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); Stringer v. State, 454
So. 2d 468, 476 (Miss. 1984).
¶10. McNair's complaints include allegations that his trial attorney (a) failed to timely seek discovery
(though discovery was sought), (b) did not investigate the possibility of an insanity defense, (c) did not
search for alibi witnesses, (d) did not call any character witnesses, and (e) did not present a coherent
defense to the charge.
¶11. The facts of the case did not appear to be in substantial dispute. The sole issue for the jury was
whether McNair acted in self-defense when he shot Mason at close range with a shotgun to protect himself
from an imminent assault and whether he subsequently fired a second shotgun blast at close range into
Mason purely by accident. There is no indication in McNair's brief as to what useful information might have
been gleaned through earlier discovery attempts. There is nothing before this Court that would suggest that
an insanity defense had any possibility of success, and the same holds true for an alibi defense. The decision
to call or not call character witnesses would appear to be a matter of trial strategy, as to which the attorney
is afforded wide latitude. Cole v. State, 666 So. 2d 767, 777 (Miss. 1995). Certainly, there is nothing in
this record that we find convincing to suggest that, had the jury better understood McNair's good character,
it would have acquitted him of any criminal responsibility in what was, on its face, an act of life-threatening
violence against another. The claim of self-defense was fairly presented to the jury through McNair's own
testimony. In his appeal, McNair does not point out any additional evidence that would bolster his claim of
self-defense that his attorney failed to present.
¶12. Our review of the entire record in this case leaves this Court satisfied that the evidence of McNair's
guilt on the charge of assault was overwhelming. Even were it conceded for purpose of analysis that
McNair's trial attorney was less than diligent in preparing for trial, there is nothing to suggest that, had his
preparation been more thorough, a more favorable outcome to McNair was even a remote possibility.
Thus, we conclude that McNair's claim of ineffective assistance of counsel cannot be sustained because it
fails the second prong of the Strickland test.
IV.
Discovery Violation
¶13. McNair claims that he was prejudiced in his defense by the State's failure to produce the victim's
Hinds County felony record, even though the record was requested in discovery. We fail to see how this
acted to prejudice McNair in preparing for his defense. Conviction records are a matter of public record
equally available to the defense as to the State. By virtue of McNair's attempts to go into Mason's criminal
history, it is evident that he was aware of, or at least suspected, that Mason had prior criminal convictions.
In order for a discovery violation to constitute grounds for reversal, it must be shown (a) that the State
possessed evidence favorable to the defendant which the defendant did not have "nor could he obtain it
himself with any reasonable diligence," (b) that the State somehow suppressed the information, and (c) that,
had it been disclosed, a different outcome to the case was at least a reasonable possibility. King v. State,
656 So. 2d 1168, 1174 (Miss. 1995). Certainly, the public record of Mason's prior criminal activity in
Hinds County, known to or suspected by the defendant, could have been easily obtained without resort to
criminal discovery rules, and it cannot be plausibly asserted that the State somehow suppressed the fact of
the victim's criminal background.
¶14. Conceding for sake of argument only that Mason's criminal record was the kind of "exculpatory
material" that the State should have furnished the defense under Uniform Circuit and County Court Rule
9.04(A)(6), we do not think the trial court erred in refusing McNair a new trial when the matter was raised
by post-trial motion because the alleged discovery violation did not produce the prejudice to the defense
that must be demonstrated by the rule announced in King v. State.
¶15. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF THE
CONVICTION OF AGGRAVATED ASSAULT WITH A DEADLY WEAPON AND
SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLANT.
KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS,
CHANDLER AND BRANTLEY, JJ., CONCUR.
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