Tony Ames v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-KA-01834-COA
TONY AMES
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:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
08/29/2007
HON. JAMES T. KITCHENS, JR.
LOWNDES COUNTY CIRCUIT COURT
GEORGE T. HOLMES
LESLIE S. LEE
LATISHA NICOLE CLINKSCALES
OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
FORREST ALLGOOD
CRIMINAL - FELONY
CONVICTED OF COUNT I, ARMED
ROBBERY, AND SENTENCED TO SERVE
SIXTEEN YEARS IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS; COUNT II, AGGRAVATED
ASSAULT, AND SENTENCED TO SERVE
TEN YEARS, WITH SAID SENTENCE TO
RUN CONCURRENTLY WITH THE
SENTENCE IN COUNT I
AFFIRMED-03/17/2009
BEFORE MYERS, P.J., ISHEE AND CARLTON, JJ.
ISHEE, J., FOR THE COURT:
¶1.
Tony Ames was convicted in the Lowndes County Circuit Court of Count I, armed
robbery, and Count II, aggravated assault. The circuit court sentenced him to sixteen years
on Count I and ten years on Count II, with said sentences to run concurrently. Aggrieved by
his convictions, Ames appeals. Ames asserts the following alleged points of error:
I.
The circuit court erred by denying a directed verdict on the armed
robbery charge, and neither of his convictions was supported by the
weight of the evidence.
II.
He was entitled to a lesser-included offense instruction on simple
assault.
III.
The circuit court improperly limited his cross-examination of Officer
James Faris.
IV.
The circuit court improperly limited his theory of defense evidence.
V.
He was prejudiced by being seen by the venire in jail clothes.
VI.
The State was allowed to improperly attempt to impeach a defense
witness with prior testimony.
Finding no reversible error, we affirm Ames’s convictions and sentences.
FACTS AND PROCEDURAL HISTORY
¶2.
On January 10, 2006, Preston Halbert suffered injuries at the hands of Ames and
Ames’s cousin, Donnell Briggs, in Lowndes County, Mississippi. Halbert went to the
emergency room the next day where he underwent surgery to repair a broken nose and a
broken cheekbone. Initially, Halbert filed a misdemeanor simple assault complaint in justice
court. The justice court judge sent Halbert to the sheriff’s department, where Halbert
recounted to Officer John Faris what had happened. On April 2, 2006, Ames was indicted
by a Lowndes County grand jury for armed robbery and aggravated assault. A trial was held
in the Lowndes County Circuit Court from August 27-29, 2007.
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¶3.
Halbert testified that on the night he was attacked, he was walking down to the store
to buy his sister some cigarettes.
On the way, he ran into Carol Malone, and she
accompanied him on his walk. It was raining, so when Malone noticed Ames and Briggs in
a car, she walked across the street and asked them for a ride to the store. Ames and Briggs
agreed to give Halbert and Malone a ride.
¶4.
In the car, Ames asked Halbert, “Don’t you owe my homey some money?” Halbert
said he had his sister’s twenty dollars, but he denied owing Briggs any money. Ames then
told Halbert to give his “homey” some money, or he would knock out his teeth.
¶5.
When they arrived at the store, Briggs stopped the car on the street near the store, and
Halbert noticed him reaching under the front seat of the car. Seeing this, Malone told Halbert
that he had better get out of the car and run. As Halbert tried to get out of the car, Ames
swung at him with a pair of brass knuckles. Halbert got out of the car and tried to run, but
Briggs was already outside. Halbert said he tried to run to the store to call the police, but he
was struck in the face. Ames and Briggs then threw Halbert on the ground and beat him.
During the beating, Halbert lost consciousness, and he later awoke to Malone shaking him
outside the store. He said he still had his sister’s twenty dollars, but the money had been in
his watch pocket, where it would have been difficult to find. Halbert said that his wallet was
missing, but he thought that he lost it while running from Ames and Briggs.
¶6.
Malone corroborated Halbert’s account of what happened in the car. She also said she
saw Ames and Briggs with shiny sharp objects, which they used to beat and poke Halbert.
She thought one of the objects was a pair of brass knuckles. According to Malone, Ames and
Briggs also kicked Halbert after he fell to the ground.
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¶7.
Nell Shaw, a nurse practitioner with Baptist Memorial Hospital, examined Halbert
when he was brought into the hospital following the incident. She noted the following
injuries: the left side of his face and his nose were swollen and bruised; he had pain in his
ribs; and there were abrasions on his hands. She found no fractures to his hands or ribs. Xrays revealed fractures in his nose and in the bones on the left side of his face near his eye.
She agreed that Halbert’s injuries were serious bodily injuries that were caused by means
likely to produce death or serious bodily injury. She found that they were consistent with the
effects of a beating with a blunt object.
¶8.
Officer Faris was an investigator with the Lowndes County Sheriff’s Department. He
became involved in the case two weeks after the incident following Halbert’s appearance in
justice court. Officer Faris took a statement from Halbert, and he interviewed Malone,
Briggs, and Ames. He was not able to recover any weapons. He said he did not try to get
a search warrant because it had been two weeks since the incident, and he did not think he
had probable cause. In his statement to Officer Faris, Halbert did not report that anything
had been taken from him. However, Officer Faris was aware that Halbert’s wallet was
missing.
¶9.
Briggs, who was Ames’s cousin, testified on Ames’s behalf. He denied that anything
happened the way that Halbert or Malone described. Instead, he claimed that Halbert was
the one who attacked Briggs.
¶10.
Briggs testified that he and Ames gave Halbert and Malone a ride to the store. Briggs
had drunk a few beers, so when they arrived, Briggs got out and went around the corner of
the store to use the bathroom – apparently in the alley or street. When he came back from
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around the corner, he said that Halbert was coming at Ames with a knife. At that point Ames
slipped, and Briggs approached the two men. Briggs said that Halbert then tried to attack
him with the knife. Briggs responded by hitting him, and he kept hitting him. He said that
Ames got up and may have hit Halbert a few times too. As Halbert was backing up, he
tripped over some bricks and fell.
¶11.
According to Briggs, he and Ames tried to get the knife away from Halbert, but he
would not give it up even after he had fallen to the ground. Eventually, however, he agreed
to give the knife to Malone. Briggs and Ames then got in the car and left. Briggs denied that
either he or Ames possessed any weapons that night. He said that they were only defending
themselves, and he thought that Halbert was going to seriously injure Ames.
¶12.
On cross-examination, the prosecution impeached Briggs with his prior statements
that were inconsistent with his trial testimony. Briggs testified he had drunk two beers that
night, but he previously stated that he had drunk three or four beers. Based on his testimony,
there was also a question as to whether the car that they had driven to the store was stopped
when Malone approached or if Malone had flagged them down as they were driving. Briggs
previously told Officer Faris that he had heard Ames and Halbert arguing, but at trial, he
denied making such a statement. His testimony was also inconsistent as to what he actually
saw of the fight. One time, he said Ames was already on the ground, while he testified at
trial that he had seen Ames slip while backing up. Whether Briggs saw Halbert actually
swing a knife at Ames was also unclear. Furthermore, despite Halbert’s injuries, Briggs told
the prosecutor that he saw Halbert immediately get up, walk off with Malone, and get in a
truck. Briggs said that Ames had suffered a cut to his right hand as a result of the fight, and
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he said that Ames was the only one who was bleeding following the fight.
¶13.
Ames’s child’s mother – Jamonica Rogers – testified on his behalf and confirmed that
Ames came to her house that night with a badly cut hand. Rogers said that Ames was
bleeding all over the floor, and she even slipped in the blood. However, Ames did not go to
the hospital for his injury.
¶14.
Ames offered his version of the events that night, which basically corroborated
Briggs’s testimony. He admitted that he hit Halbert, but it was “out of frustration and anger,”
and it was only after Halbert began trying to attack Briggs. Ames said that he was initially
charged with simple assault, but then it was changed to aggravated assault and armed
robbery. He initially wavered, but he confirmed his previous statement to Officer Faris that
Halbert attacked him with a sword or a very large knife. However, he said that he allegedly
suffered an injury to his finger from the sword that almost went to the bone and left meat
hanging off his finger. Nevertheless, he did not go to the doctor. In his statement to Officer
Faris, he made no mention of being cut by Halbert. Besides the cut, Ames also admitted that
he never mentioned to Officer Faris a number of other facts to which he testified at trial.
These included the fact that he grabbed the sword and would not let go and that Briggs
repeatedly hit Halbert.
¶15.
The jury returned a verdict of guilty on both counts, and the circuit court sentenced
Ames to sixteen years on the conviction of armed robbery and ten years on the conviction
of aggravated assault, with said sentences to run concurrently.
DISCUSSION
I.
Whether it was error to deny Ames’s motion for a directed verdict
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on the armed robbery charge, and whether Ames’s convictions
were supported by the weight of the evidence.
¶16.
Ames first argues that the State did not present any evidence that anything of value
was taken from Halbert; therefore, it did not make a sufficient case for armed robbery.
Additionally, Ames argues that his convictions of armed robbery and aggravated assault were
against the overwhelming weight of the evidence.
¶17.
The State counters by pointing out that Halbert testified that Ames and Briggs initially
threatened him in order to get money from him. Also, on appeal, the State argues that Ames
took Halbert’s wallet. However, we see no merit to this because while Halbert’s wallet was
missing, the only testimony regarding the missing wallet was that Halbert thought he had lost
it while running from Ames and Briggs. They did not get the twenty dollars that was in
Halbert’s watch pocket, but the State argues that their attempt was sufficient to constitute
robbery. To support its position, the State cites Mississippi Code Annotated section 97-3-79
(Rev. 2006), which states that:
Every person who shall feloniously take or attempt to take from the person or
from the presence the personal property of another and against his will by
violence to his person or by putting such person in fear of immediate injury to
his person by the exhibition of a deadly weapon shall be guilty of robbery . .
..
A.
¶18.
Sufficiency of the Evidence
Our review of a motion for a directed verdict tests the legal sufficiency of the
evidence. Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005) (citing Carr v. State, 208
So. 2d 886, 889 (Miss. 1968)). The appellate court must ask whether the evidence shows
“beyond a reasonable doubt that [the] accused committed the act charged, and that he did so
7
under such circumstances that every element of the offense existed; and where the evidence
fails to meet this test it is insufficient to support a conviction.” Id. (quoting Carr, 208 So.
2d at 889). Taking the evidence in the light most favorable to the prosecution, the question
is whether a rational trier of fact could have found all the essential elements beyond a
reasonable doubt. Id. (citing Jackson v. Virginia, 443 U.S. 307, 315 (1979)).
¶19.
Ames does not argue that the State failed to present sufficient evidence regarding the
remaining elements of armed robbery, nor do we find that the evidence regarding the other
elements to be insufficient. The State offered sufficient evidence that Ames committed
violence to Halbert’s person – the attack – and that Ames put Halbert in fear by exhibiting
a deadly weapon – the brass knuckles. Therefore, our review is limited to considering
whether there was sufficient evidence that Ames attempted to take any personal property
from Halbert during the course of the attack.
¶20.
This Court has recognized that section 97-3-79 criminalizes the attempt to take a
victim’s personal property the same as actually taking the victim’s property. Putnam v. State,
877 So. 2d 468, 471 (¶10) (Miss. Ct. App. 2003). In Putnam, this Court found that an
indictment charging that the defendant did “feloniously attempt to take and carry away” the
personal property of the victim properly charged the defendant with robbery. Id. at (¶¶9-10).
This Court found no error with the indictment in Putnam despite the fact that the defendant
did not actually take or carry away the victim’s personal property, and the indictment did not
charge such. Id. at (¶6).
¶21.
In the present case, corroborated testimony indicated that the incident began as a
demand by Ames and Briggs for Halbert to give them some money. The testimony also
8
indicated that when Halbert refused to hand over any money, Ames and Briggs threatened
Halbert, attacked him with weapons, and left his unconscious body on the street. Taking the
evidence in a light most favorable to the prosecution, we find that there was sufficient
evidence from which the jury could find the necessary elements of robbery. We find no error
with the circuit court’s denial of Ames’s motion for a directed verdict.
B.
¶22.
Weight of the Evidence
In reviewing a motion for a new trial, the question is whether the jury verdict was
against the overwhelming weight of the evidence. Bush, 895 So. 2d at 844 (¶18) (citing
Herring v. State, 691 So. 2d 948, 957 (Miss. 1997)). We must weigh the evidence in the
light most favorable to the verdict, and only when a verdict is so contrary to the
overwhelming weight of the evidence that it creates an unconscionable injustice will we
reverse. Id. The motion “is addressed to the discretion of the court, which should be
exercised with caution, and the power to grant a new trial should be invoked only in
exceptional cases in which the evidence preponderates heavily against the verdict.” Id.
(quoting Amiker v. Drugs for Less, Inc., 796 So. 2d 942, 947 (¶18) (Miss. 2000)).
¶23.
“[T]he credibility of witnesses is not for the reviewing court.” Webster v. State, 817
So. 2d 515, 519 (¶16) (Miss. 2002) (quoting Gathright v. State, 380 So. 2d 1276, 1278 (Miss.
1980)). It is up to the jury to decide what parts of the witnesses’ testimonies to accept or
reject as credible. Id.
¶24.
In the present case, the jury heard two versions of the events that took place on the
night of January 10, 2006.
It was the jury’s determination that Halbert’s testimony,
corroborated by Malone, was more credible than the theory of self-defense offered by Briggs
9
and Ames. We see no problem with this, especially in light of the inconsistencies in Briggs’s
and Ames’s testimonies that the prosecution brought to light.
¶25.
From the evidence that has been discussed, we do not find that the verdict was
contrary to the overwhelming weight of the evidence. Halbert and Malone testified that
Ames: (1) demanded money from Halbert, (2) threatened Halbert if he did not give him some
money, (3) ruthlessly beat Halbert with a pair of brass knuckles until Halbert lost
consciousness, and (4) left Halbert’s unconscious body on the side of the street. We find no
error with the denial of Ames’s motion for a new trial regarding either of his convictions.
This issue is without merit.
II.
¶26.
Whether it was error to deny Ames’s requested lesser-included
offense jury instruction on simple assault.
Next, Ames takes issue with the circuit court’s refusal to grant a lesser-included
offense instruction informing the jury that it could find Ames guilty of simple assault instead
of aggravated assault. Ames points out that there was testimony that he did not have a
weapon and that he suffered defensive wounds fending off Halbert’s attacks.
¶27.
A defendant is entitled to offer a jury instruction that presents his theory of the case;
however, a court may refuse a jury instruction that is not supported by the evidence in the
case. White v. State, 842 So. 2d 565, 575 (¶30) (Miss. 2003) (citing Smith v. State, 802 So.
2d 82, 88 (¶20) (Miss. 2001)). “[A] lesser-included offense instruction is authorized if a
rational or reasonable jury could find the defendant not guilty of the principal offense in the
indictment, but guilty of the lesser-included offense.” Id. (citing Pleasant v. State, 701 So.
2d 799, 804 (¶19) (Miss. 1997)).
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¶28.
Ames was convicted of aggravated assault, which is proscribed by Mississippi Code
Annotated section 97-3-7(2) (Supp. 2008):
A person is guilty of aggravated assault if he (a) attempts to cause serious
bodily injury to another, or causes such injury purposely, knowingly or
recklessly under circumstances manifesting extreme indifference to the value
of human life; or (b) attempts to cause or purposely or knowingly causes
bodily injury to another with a deadly weapon or other means likely to produce
death or serious bodily harm . . . .
Mississippi Code Annotated section 97-3-7(1) (Supp. 2008) provides for simple assault:
A person is guilty of simple assault if he (a) attempts to cause or purposely,
knowingly or recklessly causes bodily injury to another; or (b) negligently
causes bodily injury to another with a deadly weapon or other means likely to
produce death or serious bodily harm . . . .
¶29.
In the present case, the circuit court found that the evidence was undisputed that
Halbert suffered serious bodily injury; therefore, a simple assault instruction was
unnecessary. The circuit court stated the following in refusing to grant Ames’s requested
simple assault instruction:
But the injury, the undisputed testimony at this point in time is that the injury
was serious bodily injury.
Now, whether it occurred through self-defense or through an aggravated
assault, it was serious bodily injury.
This instruction will be refused, because it seems to this Court that either the
defendants – or either – the defendant’s [sic] either guilty of aggravated assault
or he is not guilty, because of self-defense.
That seems to be the – and that’s what the testimony was, that it was – that he
was intentionally struck.
¶30.
The testimony from Shaw regarding Halbert’s injuries was that his face was swollen
and bruised; his ribs were sore; and there were abrasions on his hand; and it was difficult for
11
him to move his thumb. As a result of the beating, Halbert suffered a broken nose and
broken bones in his face near his eye, and his injuries required surgery to repair. Shaw
agreed that Halbert’s injuries were brought about in a means likely to produce death or
serious bodily injury and were serious bodily injuries.
¶31.
In this case, the issue of whether there was sufficient evidence to give a simple assault
instruction hinges on whether there was any evidence from which a jury could find that
Halbert’s injuries were anything less than serious bodily injuries. From the evidence
presented, we do not find that there was sufficient evidence to grant a simple assault
instruction. Shaw’s uncontested testimony was that Halbert’s injuries were serious. The
injuries previously described unquestionably support this finding. See Brown v. State, 934
So. 2d 1039, 1043 (¶¶11-12) (Miss. Ct. App. 2006) (severity of a broken jaw and the
necessary treatment did not allow for a simple assault instruction). Had Ames presented
testimony or any evidence that Halbert’s injuries were not serious, then a simple assault
instruction may have been warranted. See Odom v. State, 767 So. 2d 242, 246 (¶13) (Miss.
Ct. App. 2000) (proper to give a simple assault instruction when the defendant presented a
witness who testified that the victim’s injuries were not serious). However, Ames presented
no such evidence, and the circuit court noted such in deciding not to give a simple assault
instruction.
¶32.
With Ames having failed to present any evidence that Halbert’s injuries were not
serious, we find no error with the circuit court’s determination that the severity of Halbert’s
injuries would not have supported a conviction of simple assault. Accordingly, we find that
this issue is without merit.
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III.
¶33.
Whether the circuit court improperly limited cross-examination of
Officer Faris.
Next, Ames takes issue with the circuit court’s limitation of his cross-examination of
Officer Faris. Ames argues that the circuit court improperly denied him the ability to crossexamine Officer Faris about the fact that he did not find any weapons at the scene and that
he did not obtain a search warrant to look for any weapons.
¶34.
The scope of cross-examination is broad; however, the circuit court has the inherent
power to limit it to relevant matters. Foley v. State, 914 So. 2d 677, 691 (¶30) (Miss. 2005)
(quoting Heflin v. State, 643 So. 2d 512, 518 (Miss. 1994) (overruled on other grounds)).
¶35.
In the present case, the circuit court sustained objections to cross-examination when
the questions called for hearsay answers. For example, the judge explained to Ames’s
attorney that she needed to lay a proper foundation if she wanted to cross-examine Officer
Faris about what he found out “according to his investigation” when his sources were
hearsay.
¶36.
However, Ames’s attorney was permitted to cross-examine Officer Faris about any
statements made by Halbert. Also, contrary to Ames’s argument, Officer Faris testified that
he did not recover any weapons from the scene of the crime. On cross-examination, he also
admitted that he did not try to get a search warrant because it had been two weeks since the
attack. Having been so long since the crime, he did not think that there was probable cause
to obtain a warrant. Additionally, the cross-examination of Officer Faris brought out the fact
that the deputies who initially responded to the scene did not recommend to their reporting
officer that felony charges should be filed. Instead, they instructed Halbert to go to justice
13
court to file charges. He also admitted that the case was not referred to his office for further
investigation until two weeks after the attack. Further supporting Ames’s contention that no
robbery occurred was the fact that Officer Faris had no knowledge of anything having been
taken from Halbert.
¶37.
Based on the forgoing, we find that Ames’s attorney properly cross-examined Officer
Faris. Ames’s defense theory was brought out in Officer Faris’s testimony when he said: (1)
no weapons were found; (2) he did not attempt to get a search warrant; (3) the attack was
initially considered a misdemeanor incident by the responding deputies; and (4) he did not
know that anything was taken from Halbert. The circuit court sustained objections to the
hearsay testimony, but it was proper for the court to block the introduction of such testimony.
M.R.E. 802. We find no error with the circuit court’s rulings concerning Ames’s attorney’s
cross-examination of Officer Faris. This issue is without merit.
IV.
¶38.
Whether the circuit court improperly limited Ames’s theory of
defense.
Ames argues that the circuit court improperly limited his testimony concerning what
happened in the justice court proceeding. Ames claims that the testimony was offered to
impeach Halbert and that Ames’s defense was prejudiced when the circuit court limited the
testimony.
¶39.
Ames cites Nalls v. State, 651 So. 2d 1074, 1076 (Miss. 1995), to support his
argument that he should have been allowed to testify about hearsay statements from Briggs’s
trial. In Nalls, the supreme court recognized the broad discretion afforded to defense counsel
on cross-examination. Id. The supreme court found that “[w]hen a hearsay statement has
14
been admitted into evidence, the credibility of the hearsay declarant may be attacked to the
extent that is allowable had the hearsay declarant actually testified at trial.” Id. Ultimately,
the error in Nalls was harmless. Id.
¶40.
The State first claims that this issue is waived for failure to object at trial. The State
also counters that, in limiting Ames’s testimony, the circuit court properly sustained
objections to hearsay evidence. According to the State, the objections were made when
Ames attempted to testify about what Constable Sonny Sanders told Ames on the phone and
about what the justice court judge allegedly said to Ames. The circuit court sustained the
hearsay objections, but it allowed Ames to testify as to what happened or what he did as a
result of the justice court hearing.
¶41.
After reviewing the record, we agree that Ames was not prevented from presenting
any theory of his defense when he was not allowed to testify as to what the constable or the
justice court judge told him. The circuit court allowed Ames to testify regarding what
happened in justice court as long as he avoided hearsay statements. We further find Nalls
distinguishable because Ames was not attempting to impeach the credibility of a hearsay
declarant. Instead, he was the one trying to offer the hearsay testimony. Once again, under
Rule 802, hearsay is generally not admissible at trial, and the circuit court properly excluded
it. We find no error in the circuit court’s ruling; therefore, this issue is without merit.
V.
¶42.
Whether being seen by the venire in jail attire prejudiced Ames.
Ames admits that his next point of error likely does not warrant reversal on its own,
but he encourages this Court to consider it in light of his other alleged errors. Ames argues
that he was prejudiced because the jury was allowed to see him in his prison attire. He was
15
not shackled or handcuffed, but he was wearing jail clothes during voir dire.
¶43.
The State points out that Ames was to blame for his appearance before the venire in
prison attire because he had made inadequate arrangements for his mother to bring civilian
clothes for him to wear. At the time for the trial to begin, the circuit court was told that
Ames’s mother would arrive with the clothes in approximately twenty minutes, so the court
delayed the trial twenty minutes to find him some clothes or to await the arrival of his
mother. Upon learning that no civilian clothes were forthcoming, the circuit court proceeded
with voir dire with Ames still wearing his prison garb. The circuit court stated that it would
let him change into civilian clothes when his mother arrived.
¶44.
On the record, the circuit court stated that:
Mr. Ames has been set for trial for three months. He is in jail attire. He
has indicated that he told his mother all last week to bring him clothes. She
has not done so.
This Court has no clothing for him to wear up here, other than the
clothing that the sheriff’s department has given him.
I’ve made – I even recessed the jury for another 15 to 20 minutes to
give his mother time to be here, and she has apparently not shown up.
If she does show up and has some regular clothing for him, then I will
allow him to change at a break, but until she does, I cannot continue this case
any further.
He has indicated, “he” being Mr. Ames, has indicated to the Court that
she knew several times last week that she was supposed to bring clothing.
Okay.
It was not until after the following events occurred that the circuit court proceeded with voir
dire: (1) Ames’s mother failed to arrive before the start of trial or in the extended time that
she was allowed; (2) the bailiff checked the public defender’s office for clothes; and (3)
16
Ames’s attorney checked to see if there were extra clothes at the jail.
¶45.
The State argues that Ames waived this issue because he did not make an objection
at trial. As the State points out, there was no objection at trial to Ames’s proceeding to trial
in his prison attire. It was the circuit judge and not Ames’s attorney who questioned whether
Ames would be going to trial in prison garb. Accordingly, this issue was not raised for the
circuit court to rule on and is, therefore, waived on appeal. As such, the issue is procedurally
barred from our review. Howell v. State, 800 So. 2d 556, 560 (¶15) (Miss. Ct. App. 2001)
(citing Crenshaw v. State, 520 So. 2d 131, 134 (Miss. 1988)).
¶46.
Alternatively, this issue is without merit. Ames cites a number of cases in which it
was found to be improper to try a defendant who was in shackles, but he does not cite any
cases relating to prison clothing. On the other hand, the State cites Jackson v. State, 860 So.
2d 653, 668 (¶49) (Miss. 2003), in which the supreme court found that the fact that the jury
saw the defendant in prison attire did not warrant reversal. The supreme court noted that
“prejudicial attire is ‘distinctive, identifiable attire,’ that may affect a juror’s judgment.” Id.
(quoting Estelle v. Williams, 425 U.S. 501, 504-05 (1976)). In Jackson, the supreme court
found that the defendant was not prejudiced, partly because his prison clothing consisted of
ordinary navy pants and a blue shirt. Id. Furthermore, the trial court did not deny Jackson
the opportunity to change clothes; the court explained that no other clothing was available.
Id.
¶47.
The record in this case reflects that Ames was wearing a plain white shirt and regular
shoes, but it does not reflect the type of pants worn by Ames. From this, we find nothing to
indicate that Ames was dressed in any clothing that would prejudice his defense. The record
17
contains no mention of the point in the proceeding, if any, when Ames received his civilian
clothing from his mother.
Nevertheless, the circuit court allowed Ames sufficient
opportunity to obtain civilian clothes and even attempted to locate clothes for Ames to wear
at trial. Ames made plans for his mother to bring him clothes. We cannot fault the circuit
court for her tardiness in arriving with those clothes prior to trial.
¶48.
Ultimately, this issue is procedurally barred because Ames did not object at trial.
Furthermore, there is no evidence that Ames was prejudiced by his appearance before the
venire in prison attire. We do not find that this issue requires reversal of his convictions.
VI.
¶49.
Whether the State was allowed to improperly impeach Briggs with
prior testimony.
Lastly, Ames takes issue with the State’s introduction of portions of the transcript
from Briggs’s trial, which the State offered to impeach Briggs. Ames argues that there was
no contradiction between Briggs’s testimony at his trial and his testimony at Ames’s trial;
therefore, the introduction of the transcript was improper impeachment.
¶50.
However, as the State points out, Ames made no objection alleging that the
impeachment of Briggs was improper. Ames did object that Briggs had already answered
a question or two and that the prior testimony should not be read into the record, but there
was no objection to the State’s impeachment of Briggs with his prior testimony. As the State
further points out, “an objection on one or more specific grounds constitutes a waiver of all
other grounds.” Burns v. State, 729 So. 2d 203, 219 (¶67) (Miss. 1998) (quoting Conner v.
State, 632 So. 2d 1239, 1255 (Miss. 1993) (overruled on other grounds)). Accordingly, this
issue was waived at trial, and it is procedurally barred from our review.
18
¶51.
Furthermore, this issue is also without merit. This Court has stated the following
regarding the admission of prior inconsistent testimony:
Before a party may impeach a witness under Rule 613(b) there must be an
actual contradiction in fact between the testimony and the prior statement. It
is generally held that a prior statement is inconsistent if under any rational
theory its introduction might lead to a conclusion different from the witness’s
testimony.
Everett v. State, 835 So. 2d 118, 122 (¶11) (Miss. Ct. App. 2003) (citing Ratcliff v. State, 752
So. 2d 435, 439 (¶¶17-18) (Miss. Ct. App. 1999)).
¶52.
After reviewing Briggs’s testimony, we find no error with the circuit court permitting
the impeachment of Briggs. We agree with the circuit court that Briggs made a number of
denials and was evasive in his responses to the prosecutor. There were slight inconsistencies
in Briggs’s recollection of the number of beers he had drunk on the night of the attack. He
also wavered when testifying as to whether he saw Halbert slip or whether Halbert was
already on the ground when Briggs came back from around the corner of the building.
Therefore, we find that there was a “rational theory” under which his prior testimony could
lead to a different conclusion from his testimony during Ames’s trial. This issue is without
merit.
¶53. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY OF
CONVICTION OF COUNT I, ARMED ROBBERY, AND SENTENCE OF SIXTEEN
YEARS, AND COUNT II, AGGRAVATED ASSAULT, AND SENTENCE OF TEN
YEARS, WITH THE SENTENCES TO RUN CONCURRENTLY IN THE CUSTODY
OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES,
ROBERTS AND CARLTON, JJ., CONCUR.
MAXWELL, J., NOT
PARTICIPATING.
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