Ferlando Esco v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2006-KA-01787-COA
FERLANDO ESCO
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
APPELLEE
08/14/2006
HON. WILLIAM E. CHAPMAN III
MADISON COUNTY CIRCUIT COURT
RANDALL HARRIS
JULIE ANN EPPS
OFFICE OF THE ATTORNEY GENERAL
BY: LAURA HOGAN TEDDER
DAVID CLARK
CRIMINAL - FELONY
CONVICTED OF COUNT I, AGGRAVATED
ASSAULT, AND SENTENCED TO LIFE
IMPRISONMENT; COUNT II, ARMED
ROBBERY, AND SENTENCED TO LIFE
IMPRISONMENT; COUNT III, CONSPIRACY
TO COMMIT AGGRAVATED ASSAULT,
AND
SENTENCED
TO
LIFE
IMPRISONMENT; COUNT IV, CONSPIRACY
TO COMMIT ARMED ROBBERY, AND
SENTENCED TO LIFE IMPRISONMENT;
COUNT V, POSSESSION OF A FIREARM BY
A PRIOR CONVICTED FELON, AND
SENTENCED TO LIFE IMPRISONMENT;
AND COUNT VI, FELONY EVASION, AND
SENTENCED TO LIFE IMPRISONMENT,
WITH SENTENCES IN COUNTS I, II, III, IV,
AND V TO RUN CONCURRENTLY, AND
SENTENCE IN COUNT VI TO RUN
CONSECUTIVELY TO COUNTS I, II, III, IV,
AND V, ALL AS A HABITUAL OFFENDER,
WITHOUT ELIGIBILITY FOR PAROLE OR
PROBATION, AND IN THE CUSTODY OF
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
THE M ISSISSIPPI DEPARTMENT
CORRECTIONS
AFFIRMED - 09/30/2008
OF
BEFORE LEE, P.J., CHANDLER, GRIFFIS AND ROBERTS, JJ.
ROBERTS, J., FOR THE COURT:
SUMMARY OF THE CASE
¶1.
A jury sitting before the Madison County Circuit Court found Ferlando Esco guilty
of (1) aggravated assault, (2) armed robbery, (3) conspiracy to commit aggravated assault,
(4) conspiracy to commit armed robbery, (5) possession of a firearm by a prior convicted
felon, and (6) felony evasion. The circuit court sentenced Esco as a habitual offender to five
concurrent life sentences and one consecutive life sentence.
¶2.
Aggrieved, Esco appeals and claims the circuit court erred: (1) in allowing the
prosecution to submit the entire guilty plea colloquy of a co-defendant; (2) in failing to give
a sua sponte limiting instruction regarding the co-defendant’s guilty plea; (3) in allowing the
prosecution to submit evidence of a prior conviction; (4) in allowing the prosecution to ask
him, during cross-examination, whether several law enforcement officers had lied when they
testified; (5) in allowing law enforcement officers to vouch for their own credibility during
the prosecution’s rebuttal case; (6) in allowing the prosecution to submit a list of Esco’s
incoming and outgoing cell phone calls, and; (7) in consulting with the jury prior to
sentencing Esco. Finding no error, we affirm the judgment of the circuit court.
FACTS AND PROCEDURAL HISTORY
2
¶3.
Esco’s conviction is the result of a botched attempt to rob William Curtis James, Jr.,
at the McDonald’s restaurant in Madison, Mississippi during which James was shot. As of
June 2005, James owned and operated a landscaping and house-washing business. The
record reflects that James operated his business on a cash basis, and it was common
knowledge that James usually had a large amount of money.
¶4.
The day before he was shot, James received a phone call from an unidentified male
who wanted to utilize James’s business services. James and the unidentified caller arranged
to meet the following day at McDonald’s in Madison. The next day, James went to
McDonald’s as planned. James later testified that he noticed two men inside McDonald’s.
James described one man as black with dread locks, and the other as a “bright-skinned” man
on a telephone. James testified that the “bright-skinned” man nodded at James. The man
with dread locks left McDonald’s while James was still eating.
¶5.
James’s meeting with the unidentified caller never took place. The unidentified caller
contacted James on James’s cell phone and told him that an unexpected emergency arose,
and he would not be able to meet at McDonald’s that day. James finished his lunch, left
McDonald’s, and walked across the parking lot to his Chevrolet Suburban SUV. As James
got into his Suburban, he realized that the man with dread locks was in his backseat.
¶6.
The man with dread locks was armed with a pistol. He ordered James to start the
SUV. Before James could start the SUV, the “bright-skinned” man ran around to the front
of James’s SUV. By James’s description, the “bright-skinned” man “was trying to get in and
push [him] on over.” According to James, the “bright-skinned” man said, “[S]hoot the -----f-----,” and the man with dread locks shot James. James fell out of his SUV and staggered
3
inside McDonald’s. James was seriously, if not critically injured, but after a long and
difficult recovery, he survived.1
¶7.
The man with dread locks and the “bright-skinned” man ran across the parking lot and
got into a white Ford Mustang where a driver was waiting for them. Darwin Freeman, an
employee of the Madison Public Works Department, was at the intersection of Highway 51
and Main Street that day when he noticed the two men run across the parking lot and jump
into the white Mustang. Freeman contacted the Madison Police Department and relayed
what he saw. As the Mustang fled the scene, it passed through a road construction area. The
Mustang almost hit one construction worker, and another construction worker saw someone
throw a pistol from the Mustang.
¶8.
Law enforcement officers stopped a white Mustang on Rice Road, but as the officers
approached the Mustang, the driver sped away. During the pursuit, the Mustang moved into
oncoming traffic and nearly hit a motorcycle patrolman head on. The patrolman was able
to avoid a collision with the Mustang by virtue of a radio warning from pursuing officers.
¶9.
Officers were not able to stop the Mustang again. However, authorities quickly
centered their pursuit on the Parc Apartments in Ridgeland, Mississippi where a white
Mustang was spotted. Law enforcement officers quickly converged on the Parc Apartments
and apprehended the man with dread locks, later identified as Isaiah Sanders. Esco was
questioned, but he was not arrested at that time. Law enforcement officers found a revolver
1
James was treated by Dr. James Kolb, an emergency room physician at the
University of Mississippi Medical Center. Dr. Kolb testified; the projectile was not retrieved
from James, that the projectile fragmented into two pieces after it entered James’s chest,
“shattered a couple of ribs,” damaged the lower part of James’s right lung, and damaged part
of James’s liver.
4
in a bush near McDonald’s, as well as a semi-automatic pistol and a baseball hat on the side
of Old Canton Road.
¶10.
Months later, James received a call from Joann Rogers. Rogers was in McDonald’s
the day that James was attacked. Rogers told James that on that day, she saw Esco sitting in
a car in the McDonald’s parking lot. Rogers also told James that Esco was on the phone.
James took Rogers to meet with Investigator Mike Brown of the Madison Police Department.
As a result, an arrest warrant was issued for Esco; however, Esco could not be found in
Mississippi. Esco had disobeyed the requirements of his federal probation, left the southern
district of Mississippi, and fled to Tennessee. However, United States marshals apprehended
Esco as he left a Wal-Mart in Clarksville, Tennessee.
¶11.
On September 8, 2005, a Madison County grand jury returned an indictment against
Esco and charged him with (1) aggravated assault, (2) armed robbery, (3) conspiracy to
commit aggravated assault, (4) conspiracy to commit armed robbery, (5) possession of a
firearm by a prior convicted felon, and (6) felony evasion. Esco pled not guilty, and in
August 2006, he went to trial.
¶12.
The prosecution called twenty-one witnesses, but the witness who arguably was most
damaging to Esco was the “bright-skinned” man – Michael Johnson.2 Johnson testified that
on June 14, 2005, Esco picked him up in a white Cadillac Escalade. Afterwards, they picked
up Sanders. According to Johnson, their specific plan was to “hit a lick,” meaning they
planned to rob someone. Sanders had a nine-millimeter pistol, but they wanted another
2
Johnson testified in exchange for a deal with the prosecution. Johnson is Isaiah
Sanders’s cousin, and Johnson met Esco while Johnson was incarcerated for carjacking.
5
weapon, so they went to Sanders’s house to pick up a revolver. Afterwards, they borrowed
a white Ford Mustang from Esco’s friend.
¶13.
Johnson testified that Esco did not plan to take part in the robbery. Instead, Esco
planned to wait in the car and drive when Johnson and Sanders were finished robbing James.
Esco drove around and ended up in the parking lot of McDonald’s and Winn Dixie. When
they saw James go inside McDonald’s, Esco moved the Mustang over to a nearby parking
lot. Johnson and Sanders went inside McDonald’s. Johnson sat down, and Sanders went to
the bathroom. While Johnson was inside McDonald’s, he and Esco talked over the phone.
¶14.
According to Johnson, Sanders left McDonald’s before James and got in James’s
SUV. When James left McDonald’s, Johnson followed him. At the point that James reached
his SUV, Sanders already was waiting for him in the backseat. James and Sanders struggled,
and Sanders shot James. At that point, Johnson and Sanders ran to the Mustang, and Esco
drove away. Johnson testified that Esco was pulled over by a patrol car, but Esco sped away
when the officers exited their vehicle. During the trip to Esco’s apartment, Johnson threw
his hat and Sanders’s nine millimeter pistol out of the window. When Esco stopped the car,
they all got out and ran.
¶15.
Esco called Nikike Shavers as a witness. Shavers testified that she was with Esco on
the day that James was shot. According to Shavers, she arrived at Esco’s apartment around
10:30 a.m. Shavers stated that two men came to Esco’s apartment. Shavers knew one of
them as “Dread.” The two men asked Esco if they could borrow his SUV. Shavers testified
that Esco told them that his SUV was not working properly. According to Shavers, the two
men asked if they could borrow her car so they could get something to eat, but she said no.
6
Because they kept insisting, Esco finally relented and gave them the keys to a white Mustang.
Shavers explained that the Mustang did not belong to Esco, but he had the keys to it. Shavers
testified that the two men left, and she and Esco waited for them to return. According to
Shavers, she left two hours later, and the two men had not returned. Shavers went on to
testify that, while she was in her car, a friend of hers contacted her and told her that Esco was
in the news related to a robbery and a shooting. Shavers testified that she told her friend that
Esco could not have taken part in the robbery because she had been with Esco that day.
¶16.
Esco took the witness stand and testified in his own defense. Esco testified that he
had access to a white Mustang on the day James was shot. Esco explained that he borrowed
the Mustang from a friend because the “engine light” was on in his SUV. Esco corroborated
Shavers’s testimony in that he stated Shavers was at his apartment when Sanders and a man
he only knew as John arrived at his apartment.3
¶17.
According to Esco, the two men wanted James’s telephone number because James
owed them $2,400. Esco testified:
When I went upstairs for to get the number, [Sanders] had my phone, and I
called the number down the stairs where I stay in a townhouse. And I called
the number, and [Sanders] put the number in the phone as ID in the phone.
And when I came downstairs, he had it in the phone.
¶18.
Next, Esco testified that Sanders and John wanted to borrow a car. According to
3
Esco later testified that “John is known as [Sanders’s] brother, but I don’t know that,
you know.” Esco elaborated that he thought Sanders and John were brothers, but he was not
certain of that. However, during cross-examination, Esco testified that he did not know if
John was Sanders’s “brother, cousin or what.” Esco was able to describe John, though. Esco
described John as having “small dreads . . . dark skinned, and about, I’d say about six-one,
somewhere off in there.” Esco also testified that John was “from Miami, but [he was] staying
in Jackson.” Esco was not certain whether John was still in Jackson at the time of his trial.
7
Esco, Dread asked Esco to tell Shavers to let them borrow her car so they could get
something to eat. Eventually, Esco told them they could use the Mustang. Esco testified that
he also gave them his cell phone and asked them to charge the phone battery in the Mustang.
According to Esco, Sanders and John left, and he and Shavers waited for them to return.
However, Shavers left after a while.
¶19.
Esco went on to testify that shortly after Shavers left, the Mustang pulled into the
parking lot at a high speed. Esco walked around the apartments and asked someone if he saw
anyone get out of the Mustang. That person had not seen anyone. Esco went to the Mustang,
opened the door, and looked for his cell phone, but he could not find it.
¶20.
According to Esco, law enforcement officers arrived within minutes. Esco told one
officer that the Mustang belonged to a friend of his. Another officer came from a nearby
building with Sanders. Esco testified that he did not want to “tell on” Sanders, but the officer
kept asking Esco to whom had he loaned the Mustang. Esco told the officer to call his
lawyer, but Esco’s lawyer told him to cooperate. At that point, Esco relented and told the
officer he let Sanders and John borrow the Mustang. Sanders was taken into custody, but
Esco was not.
¶21.
Esco confirmed that he knew Johnson and that he met Johnson during the time they
were incarcerated in Beaumont, Texas. However, Esco testified that he did not see Johnson
the day James was shot.
When asked about the fact that the summary prepared by
Investigator Brown showed an incoming phone call from Johnson at 2:58 p.m. and an
outgoing call from his own phone at 3:49 p.m., Esco explained that his “phone was in the
Mustang, supposed to have been in the Mustang on the charger at that time.” Esco also
8
confirmed that his cell phone was taken from Sanders’s shirt pocket when Sanders was
arrested.
¶22.
As for his presence in Clarksville, Tennessee, Esco testified:
I was on federal, I was on federal papers for three years. And I had like a
couple of months to go for to get off papers. And the federal marshal came
over to my apartment looking for me, relating to this crime. And I noticed, I
knowed that if they got me in custody, they won’t give me a bond because I
was on federal papers, and I didn’t have that long, so I really wanted to try to
stay out of their way until I get off papers, and then I would turn myself in and
get a bond for I can get back out of jail, for I didn’t want to be incarcerated for
my kids.
¶23.
During cross-examination, the prosecution asked Esco to explain why, if Sanders and
John had his cell phone as he claimed, and they had been gone for as long as he claimed, he
did not call his own cell phone. Esco answered, “I called it and it was off when I called it.”
The prosecution then asked Esco how many times he called his cell phone. Esco responded
that, approximately an hour or two after Sanders and John left, he called his cell phone,
“[l]ike four or five times.” The prosecution then asked Esco to explain why, according to the
log of phone calls, the phone was working the rest of the day. Esco could not explain that.
¶24.
The jury found Esco guilty of all counts. The circuit court sentenced Esco to life
without parole on all counts, with the sentences in counts one through five to run
concurrently, but the circuit court set count six to run consecutively to the other counts. As
a result, Esco effectively must serve two consecutive life sentences. Esco now appeals.
ANALYSIS
I.
WHETHER THE CIRCUIT COURT ERRED IN ALLOWING THE
PROSECUTION TO INTRODUCE MICHAEL JOHNSON’S GUILTY PLEA
COLLOQUY ON REDIRECT.
9
¶25.
During cross-examination of Johnson, Esco’s attorney attempted to impeach
Johnson’s direct testimony with portions of Johnson’s guilty plea colloquy. Esco’s attorney
intended to demonstrate that Johnson left out details during his guilty plea discussion with
the circuit court, whereas he was much more specific during Esco’s trial. Specifically,
Esco’s attorney noted that on direct, Johnson testified that Sanders used a nine-millimeter
pistol when they tried to rob James. Esco’s attorney stated, “when you entered your plea of
guilty on July 31st of this year, you did not tell the court that a nine-millimeter gun was
involved, did you? You just said it was a revolver[.]” Esco’s attorney then stated, “you
never told the court, did you, that [Esco] came and picked you up at Target? You never told
them that, did you? You just told them y’all met over there at [Esco’s] apartment, didn’t
you?” Johnson responded that, during his guilty plea, the circuit court “was questioning
[him]. The questions that [the circuit court] asked [him], [he] was answering them. [He]
didn’t just say specifically about [sic] anything.”
¶26.
On redirect, the prosecution asked Johnson whether his testimony was consistent with
his statements made during his guilty plea. Johnson said it was. Johnson explained that his
present testimony was more detailed than his statements made during his guilty plea. The
prosecution then moved to introduce Johnson’s thirty-two page plea colloquy as an exhibit
to Johnson’s testimony on the basis that it was a prior consistent statement.
¶27.
Esco’s attorneys objected on the basis that the guilty plea colloquy was (1) improper
bolstering, (2) cumulative, and (3) introduction of the entire statement would incorporate
topics about which Johnson did not testify during cross-examination. The prosecution argued
that Johnson’s entire guilty plea colloquy was admissible as a prior consistent statement
10
pursuant to Mississippi Rule of Evidence 801(d)(1). The circuit court concluded that
Johnson’s entire guilty plea colloquy was admissible as a prior consistent statement, and “[i]t
doesn’t have to be redacted because the only other things in there are they are advising him
of his rights in going throughout the colloquy that I’m required to go through, and that’s not
prejudicial at all to anything.” On appeal, Esco claims the circuit court committed reversible
error when it allowed the prosecution to introduce Johnson’s entire guilty plea colloquy. We
disagree.
¶28.
In reviewing this issue, we are mindful that:
the admissibility of evidence rests within the discretion of the trial court.
However, this Court must also determine whether the trial court employed the
proper legal standards in its fact findings governing evidence admissibility.
If in fact the trial court has incorrectly perceived the applicable legal standard
in its fact findings, the Court applies a substantially broader standard of
review. However, a denial of a substantial right of the defendant must have
been affected by the court’s evidentiary ruling. Furthermore, the trial court’s
discretion must be exercised within the scope of the Mississippi Rules of
Evidence and reversal will be appropriate only when an abuse of discretion
resulting in prejudice to the accused occurs.
Clemons v. State, 732 So. 2d 883, 887-88 (¶18) (Miss. 1999) (quoting Peterson v. State, 671
So. 2d 647, 655-56 (Miss. 1996)).
¶29.
Counsel for Esco did not object to the admissibility of Johnson’s guilty plea colloquy
based on hearsay. An “[o]bjection on one ground at trial waives all other grounds for
objection on appeal.”
Rubenstein v. State, 941 So. 2d 735, 758 (¶75) (Miss. 2006).
Accordingly, it is unnecessary to analyze this issue as it pertains to whether the guilty plea
was inadmissible hearsay as Esco may not raise this issue for the first time on appeal.
¶30.
Instead, counsel for Esco objected to the introduction of Johnson’s guilty plea
11
colloquy on the basis that it was (1) improper bolstering, (2) cumulative, and (3) beyond the
scope of cross-examination.
During cross-examination, Esco’s attorney attempted to
impeach Johnson with his guilty plea colloquy to show that Johnson omitted certain facts
during his guilty plea, yet testified to those facts during Esco’s trial. Therefore, introduction
of Johnson’s guilty plea colloquy was admissible to rehabilitate Johnson’s testimony in that
it tended to demonstrate that the circuit court did not focus on those facts during Johnson’s
guilty plea. That is, Johnson’s entire guilty plea showed that Johnson did not necessarily
omit facts as much as the circuit court focused on certain facts during the guilty plea and did
not ask Johnson to elaborate on those matters to the degree to which he testified at Esco’s
trial.
¶31.
We cannot conclude that the circuit court abused its discretion when it allowed the
prosecution to introduce Johnson’s entire guilty plea colloquy. The guilty plea colloquy was
admissible to rebut Esco’s direct and implied charge of omission and/or fabrication of
necessary facts. While we do not hold that entire guilty pleas are always admissible, under
these precise circumstances, the entire guilty plea was necessary to demonstrate that Johnson
only left out certain details in his guilty plea because the circuit court did not necessarily
focus on those details. Because the circuit court did not abuse its discretion, we find no
reversible error in this issue.
II.
WHETHER THE CIRCUIT COURT ERRED IN FAILING TO INSTRUCT THE
JURY THAT JOHNSON’S STATEMENT COULD NOT BE CONSIDERED AS
SUBSTANTIVE EVIDENCE.
¶32.
Esco claims the circuit court committed reversible error when it did not sua sponte
instruct the jury that it could not consider Johnson’s guilty plea colloquy as substantive
12
evidence. The State insists that because Esco did not request a limiting instruction, Esco is
procedurally barred from asserting this issue on appeal, and the lack of a limiting instruction
was not plain error. We agree. Pursuant to Mississippi Rule of Evidence 105, “[w]hen
evidence which is admissible as to one party or for one purpose but not admissible as to
another party or for another purpose is admitted, the court, upon request, shall restrict the
evidence to its proper scope and instruct the jury accordingly.” (emphasis added). Rule 105
places the burden of requesting a limiting instruction upon counsel. Rushing v. State, 911
So. 2d 526, 540 (¶32) (Miss. 2005). Consequently, this issue is procedurally barred for
failure to request a limiting instruction at trial.
III.
WHETHER THE CIRCUIT COURT ERRED IN ALLOWING THE
PROSECUTION TO INTRODUCE A 1991 CONVICTION OF STRONG-ARM
ROBBERY WHEN ESCO WAS SIX TEE N Y E A R S O LD W ITH O U T FIRST
DETERMINING WHETHER THIS EVIDENCE WAS MORE PREJUDICIAL
THAN PROBATIVE.
¶33.
This issue stems from the prosecution’s decision to use Esco’s 1991 conviction for
strong-arm robbery as proof of Esco’s status as a prior convicted felon to prove Esco was
guilty of possession of a firearm by a prior convicted felon. Pre trial, Esco sought to prohibit
the prosecution from introducing evidence of Esco’s 1991 strong-arm robbery conviction at
trial. Esco argued that because he had been previously convicted of other felonies, the
prosecution did not need to bring up the 1991 conviction to prove that Esco was a prior
convicted felon. Esco also argued that it would affect his ability to testify in his defense.
¶34.
The prosecution argued that it could use whatever evidence it chose to prove its case.
The circuit court held:
the State is allowed to put on the case they want to put on, not what a
13
defendant wants. And I realize there may be some attendant difficulties to a
defendant in that regard, but this is not a Peterson situation, it’s not an
impeachment where the court needs to weigh the factors relative to similarity.
It is a State’s substantive elements proof, so the State will be allowed to do
that.
Esco claims the circuit court committed reversible error. We disagree.
¶35.
At the outset, it is necessary to distinguish this issue from those pertaining to use of
prior convictions as a method to impeach a witness. The prosecution did not use Esco’s prior
conviction to impeach him. Instead, the prosecution used Esco’s prior conviction as
substantive evidence of Esco’s status as a prior convicted felon as it relates to his possession
of a firearm. However, Esco submits that the prosecution’s use of Esco’s 1991 strong-arm
robbery conviction was still impermissible. According to Esco, “[t]he United States Supreme
Court addressed this very issue” in Old Chief v. United States, 519 U.S. 172 (1997).
¶36.
In Old Chief, the Supreme Court held that a trial court committed reversible error
when it allowed the prosecution to present evidence of a prior assault conviction to prove that
the defendant was a prior convicted felon in possession of a firearm. Notably, the Supreme
Court’s decision turned on the fact that the defendant in Old Chief offered to stipulate that
he was a prior convicted felon. Id. at 186. Esco draws our attention to the fact that, during
his case-in-chief, he testified and admitted that he was a prior convicted felon. Esco cites
Langley ex rel. Langley v. Miles, 956 So. 2d 970, 973 (¶8) (Miss. Ct. App. 2006) for the
proposition that an admission is the equivalent of a stipulation.4 Esco argues that because
4
To be precise, Langley does not unequivocally hold that an admission is the same
thing as a stipulation. Instead, Langley held that “Rule 36(b) states that any matter admitted
pursuant to the rule ‘is conclusively established unless the court on motion permits the
withdrawal or amendment of the admission.’ A matter deemed admitted due to a failure to
timely serve responses is the functional equivalent of a stipulation or an admission in a
14
he admitted he was a prior convicted felon during his case-in-chief, he, in effect, stipulated
that he was a prior convicted felon. Esco’s argument has no merit in law or logic.
¶37.
The prosecution was obligated to prove its case during its case-in-chief. Had the
prosecution sat back, failed to prove that Esco was a prior convicted felon, and neglected to
offer any proof of Esco’s status as a prior convicted felon, Esco could have successfully
moved for a directed verdict after the prosecution ceased its case-in-chief. To that end, an
admission after the prosecution ceases its case-in-chief is not the equivalent of a stipulation.
Had Esco stipulated that he was a prior convicted felon, then this case would be similar to
Old Chief, but Esco did not offer to stipulate. Accordingly, this case is not like Old Chief,
and “the prosecution [was] entitled to prove its case by evidence of its own choice, or, more
exactly, that a criminal defendant may not stipulate or admit his way out of the full
evidentiary force of the case as the Government chooses to present it.” Old Chief, 519 U.S.
at 186-87. We cannot find that the circuit court abused its discretion. Consequently, we find
no merit to this issue.
IV.
WHETHER THE CIRCUIT COURT ERRED IN NOT GIVING A LIMITING
INSTRUCTION REGARDING THE PROPER USE OF ESCO’S PRIOR
CONVICTIONS.
¶38.
In this issue, Esco claims the circuit court committed reversible error when it did not
sua sponte give a limiting instruction regarding the prosecution’s use of Esco’s conviction
for strong-arm robbery. As in issue two, the State claims Esco is procedurally barred from
raising this issue for the first time on appeal. We agree.
V.
WHETHER THE CIRCUIT COURT ERRED IN OVERRULING ESCO’S
pleading.” Langley, 956 So. 2d at 973 (¶8) (emphasis added).
15
OBJECTION TO BEING CROSS-EXAMINED AS TO WHETHER THE LAW
ENFORCEMENT WITNESSES WERE LYING.
¶39.
During the cross-examination of Esco, the prosecution asked him whether law
enforcement witnesses were lying when they testified. Counsel for Esco objected and
suggested that it was improper for the prosecution to “compar[e] one testimony to another
one.” The circuit court overruled the objection and said, “[y]ou asked that another witness
lied and the State can do the same thing if you do it.” The prosecution proceeded to ask Esco
whether at least four law enforcement witnesses lied. Esco responded that those officers, in
fact, lied when they testified as to what Esco was doing or what he said when they saw him
at the Parc Apartments.
¶40.
Esco claims the circuit court committed reversible error when it allowed the
prosecution to ask him whether those law enforcement officers lied. We are mindful that:
[a]ttorneys are afforded wide latitude in arguing their cases to the jury but are
not allowed to employ tactics which are inflammatory, highly prejudicial, or
reasonably calculated to unduly influence the jury. We will review allegations
of misconduct to determine whether the natural and probable effect of the
improper argument is to create unjust prejudice against the accused so as to
result in a decision influenced by the prejudice so created.
Ross v. State, 954 So. 2d 968, 1001 (¶70) (Miss. 2007) (internal citations and quotations
omitted).
¶41.
Esco cites numerous cases from other jurisdictions, but he cites no Mississippi
authority to support his argument. According to the State, because Esco cites no Mississippi
authority for this issue, it is procedurally barred. We reject the State’s meritless argument
for a procedural bar in this instance. If we were to follow the State’s reasoning, our body of
law would be reduced to a stalemate and would never progress beyond that which exists at
16
this very moment. Be that as it may, neither party cites any Mississippi precedent that has
addressed this particular issue.
¶42.
Other jurisdictions have reviewed similar issues and have reached various results.
There are three competing views regarding whether a prosecutor may ask a defendant
whether prosecution witnesses lied during their testimony. Many jurisdictions have adopted
one of two bright-line rules.
That is, some jurisdictions have concluded that it is
categorically improper for the prosecution to ask a defendant whether prosecution witnesses
lied.5 In contrast, at least two states have found it categorically proper to ask such questions.
See, e.g., Manzano v. State, 651 S.E.2d 661, 664 (Ga. 2007); Fisher v. State, 736 A.2d 1125,
1162-64 (Md. Ct. Spec. App. 1999), vacated in part on other grounds by Fisher v. State, 786
A.2d 706, 744 (Md. 2001).
¶43.
Finally, other jurisdictions have declined to adopt a bright-line rule and have, instead,
reached conclusions regarding the propriety of such questions based on other circumstances.
For example, the Illinois Supreme Court reached such a result in People v. Kokoraleis, 547
N.E.2d 202, 216 (Ill. 1989), in which it stated that while “it is generally improper to ask a
witness on cross-examination whether an adverse witness[’s] testimony is truthful,” because
the defendant testified that the police “framed” him by providing him with information about
the murders and caused him to repeat those facts in his statements, the cross-examination at
issue was not inappropriate. See also People v. Overlee, 236 A.D.2d 133, 140 (N.Y. App.
5
See Daniel v. State, 78 P.3d 890, 904 (Nev. 2003); Beaugureau v. State, 56 P.3d
626F, 635-36 (Wyo. 2002); State v. Singh, 793 A.2d 226, 239 (Conn. 2002); Knowles v.
State, 632 So. 2d 62, 65-66 (Fla. 1993) (holding that the error was harmless); State v.
Casteneda-Perez, 810 P.2d 74, 79 (Wash. Ct. App. 1991); State v. Flanagan, 801 P.2d 675,
679 (N.M. Ct. App. 1990) (holding that the error was harmless).
17
Div. 1997); State v. Hart, 15 P.3d 917, 923-24 (Mont. 2000).
¶44.
In State v. Pilot, 595 N.W.2d 511, 517 (Minn. 1999), a prosecutor asked a defendant
to comment on the veracity of three of the prosecution’s witnesses. The Minnesota Supreme
Court held that, in general, “were they lying” questions are improper, but such questions
were not categorically improper. Id. at 518. The Minnesota Supreme Court stated that,
under certain circumstances, “were they lying” questions could have probative value: (a) “in
clarifying a particular line of testimony,” (b) “in evaluating the credibility of a witness
claiming that everyone but the witness lied or,” (c) where the witness “flatly denies the
occurrence of events.” Id. Because the defendant’s theory of the case in Pilot “was that the
[S]tate’s witnesses were lying and that the evidence against him was fabricated as part of a
vast conspiracy to convict him of a crime he did not commit” the credibility of the State’s
witnesses was “in central focus.” Id. Accordingly, the Minnesota Supreme Court found no
error with the prosecution’s use of “were they lying” questions because such questions
“could well have assisted the jury in weighing [the defendant’s] own veracity and in
evaluating his conspiracy theory.” Id.
¶45.
Though we do not reach a general conclusion regarding whether such questions are
per se proper or improper, we find the reasoning in Pilot persuasive. It is clear that Esco’s
theory of the case was that the law enforcement officers and the prosecution formed a
conspiracy effort to connect him to the events that took place at McDonald’s. During
opening statements, counsel for Esco told the jury:
So now they take [Sanders] to the jail. They start talking to [Sanders]. Look,
you’re a little fish in big pond. We’re not really interested in you. We’re
interested in [Esco]. You put [Esco] in this deal, they’re going to tell him. He
18
gives a video statement, which you’ll probably see. He testifies, and we intend
to call him. You’ll probably see a video where he says [Esco] was in it, and
he was the one that planned all this, and schemed it and so forth. Well, the
bottom line is it didn’t help. He got a 40-year sentence on a plea of guilty. He
pled guilty and got 40 years. He has already been sentenced. And he is going
to tell you, as he has already told the district attorney’s office, [Esco] really
didn’t have anything to do with this.
Now, Michael Johnson on the other hand, we will show you, insisted on his
innocence up until July 31st of this year, at which time he entered a plea of
guilty on the condition that he, quote, truthfully tell the story, and put [Esco]
in it.
¶46.
Counsel for Esco clearly argued that the prosecution was not interested in Sanders,
but was interested in Esco – so much so that the prosecution misled Sanders into implicating
Esco and that it did not “help” Sanders to do so. Counsel for Esco went on to state that the
prosecution only offered a plea bargain to Johnson in exchange for “put[ting] Esco in it.”
¶47.
Esco added to his conspiracy theory of the case during his direct testimony. Esco
testified that when the Mustang pulled into the parking lot at the Parc Apartments, he went
outside to find Sanders and “John,” but he could not find them. According to Esco, two
police officers approached him on foot. Esco’s attorney asked Esco whether he knew those
two officers, and Esco responded, “[y]eah, they pull me over almost every other night when
I be going home.” Later, Esco testified that the law enforcement officers set up a lineup and
placed him in it. Esco went on to testify that “they came through several times. Several
times he rode through and they kept looking. And then I heard one officer say that, he said,
damn, you know, he said, damn, just like that. He said, he didn’t pick Ferlando.” That is,
according to Esco, the officer was disappointed when Esco was not identified. Esco further
testified that “[a]ll of the officers got on the stand, and these officers pull me over almost
19
every other night. If they seen [sic] me driving that Mustang or seen a black male driving
that Mustang, they’d noticed me because they pull me over.” Esco unequivocally connected
law enforcement in general with a desire to implicate him in the events at McDonald’s.
Additionally, Esco clearly testified that each and every officer had a general pre-existing bias
toward him.
¶48.
Further, it is noteworthy that the prosecution did not initially ask Esco whether all of
the law enforcement officers were lying. Shortly before Esco’s attorney concluded his
examination of Esco, Esco’s attorney asked, “did you answer all [the law enforcement
officers’] questions?” Esco responded, “[y]es, sir.” On cross-examination, the prosecution
asked Esco whether he made a particular statement to Officer Young. Esco denied that he
made that statement. The prosecution then asked Esco whether Officer Young lied when he
testified that Esco made that statement. Esco could have testified that Officer Young was
mistaken, but he did not. Instead, over objection, Esco testified, “[h]e lied, and it’s some
more officers lied.” At that point, the prosecution began to question Esco regarding which
officers lied – which was absolutely within the prosecution’s cross-examination rights.
“[T]he right of confrontation and cross-examination . . . extends to and includes the right to
fully cross[-]examine the witness on every material point relating to the issue to be
determined that would have bearing on the credibility of the witness and the weight and
worth of his testimony.” Nalls v. State, 651 So. 2d 1074, 1076 (Miss. 1995).
¶49.
To be sure, the credibility of a witness is solely for the jury to weigh and consider.
Harris v. State, 970 So. 2d 151, 156 (¶20) (Miss. 2007). Be that as it may, under the precise
circumstances of this matter, the cross-examination at issue was not improper and did not
20
constitute any form of prosecutorial misconduct. The prosecution was entitled to rebut
Esco’s theory of the case. The natural effect of that rebuttal was not to create unjust
prejudice against Esco, and it did not result in a decision influenced by prejudice.
Accordingly, we find no merit to this issue.
VI.
WHETHER ESCO WAS DENIED A FAIR TRIAL WHEN THE PROSECUTION
WAS ALLOWED, ON REDIRECT, TO ASK THE LAW ENFORCEMENT
WITNESSES TO VOUCH FOR THEIR OWN CREDIBILITY.
¶50.
In its rebuttal case, the prosecution called four law enforcement officers. The
prosecution asked three of those officers whether they testified truthfully during the
prosecution’s case-in-chief. Esco claims this was improper redirect. According to Esco, it
is not permissible for the prosecution to ask the officers to vouch for their own credibility.
Esco did not raise this issue at trial. He is procedurally barred from raising it for the first
time on appeal. Boggan v. State, 894 So. 2d 581, 584 (¶10) (Miss. Ct. App. 2004).
VII.
WHETHER THE CIRCUIT COURT ERRED IN ALLOWING THE
PROSECUTION TO INTRODUCE A DOCUMENT PREPARED BY THE POLICE
PURPORTING TO BE A LIST OF THE INCOMING AND OUTGOING PHONE
CALLS PRESENT ON STATE’S EXHIBIT 26, A CELL PHONE.
¶51.
In his seventh issue, Esco finds fault with the circuit court’s decision to allow the
introduction of a summary of phone calls from Esco’s cell phone. During Investigator
Brown’s testimony, the circuit court allowed the prosecution to submit into evidence a list
of outgoing and incoming calls that Investigator Brown prepared by examining Esco’s cell
phone. Counsel for Esco objected. The circuit court asked Esco’s attorney for the basis of
his objection. Esco’s attorney responded, “[b]ecause there’s no indication on his list what
the date was, that the calls came in and went out. He just testified to it. If they’re telling me
21
that I can take that phone right now and hook it up and it would show those and show that
it was on June 14th, I wouldn’t have a problem with it.” The prosecution responded that the
list was admissible as a summary pursuant to Mississippi Rule of Evidence 1006. The circuit
court then overruled Esco’s objection.
¶52.
Esco claims the circuit court committed reversible error. According to Esco, the list
was inadmissible hearsay that did not fall under any exception to the hearsay rule. However,
Esco did not object on the basis that the list was hearsay at trial, and he may not do so for the
first time on appeal. Accordingly, our analysis does not address the admissibility or
inadmissibility of the summary in light of its status as hearsay.
¶53.
Esco’s objection at trial seems to have been that he could not verify that the summary
was accurate. However, the record indicates that the prosecution supplemented its discovery
responses prior to the trial, and there is no indication that the prosecution did not divulge
prior to trial that it would present evidence from Esco’s cell phone. If the prosecution did
not divulge that it would present Esco’s incoming and outgoing cell phone records, Esco
failed to provide this Court with sufficient information to reach that conclusion. It is Esco’s
burden to provide this Court with an adequate record. What is more, Esco did not object on
the basis that he was unaware that the prosecution would submit the incoming and outgoing
cell phone calls as evidence. Accordingly, Esco’s attorney could have reviewed the cell
phone’s call log at any time prior to trial, and if there was any inconsistency between Esco’s
actual call log and Investigator Brown’s summary, Esco’s attorney could have crossexamined Investigator Brown regarding those inconsistencies. Accordingly, we find no merit
to this issue.
22
VIII. WHETHER THE CIRCUIT JUDGE ERRED IN CONSULTING WITH THE JURY
PRIOR TO PRONOUNCING SENTENCE.
¶54.
After the jury found Esco guilty on all counts, the circuit judge recessed to visit with
the jury. When the recess was over, the circuit judge sentenced Esco. Esco claims the circuit
judge erred by conferring with the jury outside of his presence. In particular, Esco takes
issue with the circuit court’s statement, “I was somewhat surprised at the amount of anxiety
I saw on some of the potential jurors’ faces and heard, even up here at the bench, on some
others. They just simply are scared of you.” According to Esco, by visiting with the jury
outside of his presence, the circuit court was exposed to information that he did not have a
chance to rebut. Esco claims this Court must vacate his sentence and remand this matter.
We disagree.
¶55.
Apparently, Esco’s appellate counsel misunderstands the circuit judge. That
misunderstanding is most likely due to counsel’s omission of the circuit judge’s entire
statement, and that can be remedied by examining the circuit judge’s entire statement after
sentencing Esco. The circuit judge did not state that he recognized fear from the jurors
during his visit with them after they reached their verdict. Instead, the circuit judge stated,
“[d]uring the process of voir dire, I was, I guess for lack of a better word, somewhat
surprised at - - I mean I have been at this for a while. I was somewhat surprised at the
amount of anxiety I saw on some of the potential jurors’ faces and heard, even up here at the
bench, on some others. They just simply are scared of you.” (emphasis added).
¶56.
Esco was sentenced as a habitual offender pursuant to Mississippi Code Annotated
section 99-19-83 (Rev. 2007). Accordingly, the circuit judge had no discretion in sentencing
23
Esco, as section 99-19-83 mandated that the circuit judge sentence Esco to life imprisonment
for each conviction. Therefore, nothing that could have been discussed during the circuit
judge’s recess could have influenced the circuit judge, and nothing Esco could have said in
rebuttal could have altered the circuit judge’s decision. As a result, we find no merit to this
issue.
IX.
WHETHER THE ERRORS TAKEN TOGETHER ARE CAUSE FOR A NEW
TRIAL.
¶57.
Esco claims this Court must reverse due to the cumulative effect of the errors. We
have not found that the circuit court committed any errors. It follows that there can be no
cumulative effect of errors. Accordingly, we find no merit to this issue.
¶58. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT OF
CONVICTION OF COUNT I, AGGRAVATED ASSAULT, AND SENTENCE OF
LIFE IMPRISONMENT; COUNT II, ARMED ROBBERY, AND SENTENCE OF
LIFE IMPRISONMENT; COUNT III, CONSPIRACY TO COMMIT AGGRAVATED
ASSAULT, AND SENTENCE OF LIFE IMPRISONMENT; COUNT IV,
CONSPIRACY TO COMMIT ARMED ROBBERY, AND SENTENCE OF LIFE
IMPRISONMENT; COUNT V, POSSESSION OF A FIREARM BY A CONVICTED
FELON, AND SENTENCE OF LIFE IMPRISONMENT; AND COUNT VI, FELONY
EVASION, AND SENTENCE OF LIFE IMPRISONMENT, WITH SENTENCES FOR
COUNTS I, II, III, IV, AND V TO RUN CONCURRENTLY AND SENTENCE FOR
COUNT VI TO RUN CONSECUTIVELY TO COUNTS I, II, III, IV, AND V, ALL AS
A HABITUAL OFFENDER, WITHOUT ELIGIBILITY FOR PAROLE OR
PROBATION, AND IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED
TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS,
BARNES, ISHEE AND CARLTON, JJ., CONCUR.
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