v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-KA-01649-COA
CHARLES WAYNE ROSS
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
08/22/2008
HON. ANDREW K. HOWORTH
TIPPAH COUNTY CIRCUIT COURT
GEORGE T. HOLMES
OFFICE OF THE ATTORNEY GENERAL
BY: STEPHANIE BRELAND WOOD
BENJAMIN F. CREEKMORE
CRIMINAL – FELONY
CONVICTED OF MURDER AND
SENTENCED AS A HABITUAL OFFENDER
TO LIFE IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF
CORRECTIONS WITHOUT ELIGIBILITY
FOR PAROLE OR EARLY RELEASE
AFFIRMED: 12/01/2009
BEFORE LEE, P.J., GRIFFIS AND ROBERTS, JJ.
GRIFFIS, J., FOR THE COURT:
¶1.
At a prior trial Charles Wayne Ross was convicted of capital murder and sentenced
to death in the Circuit Court of Tippah County. On direct appeal, the supreme court reversed
the conviction finding reversible error in both the guilt and sentencing phases of the trial.
Ross v. State, 954 So. 2d 968 (Miss. 2007) (“Ross I”).
¶2.
Ross was re-tried and found guilty of murder. He was sentenced, as a habitual
offender, to life in the custody of the Mississippi Department of Corrections (“MDOC”)
without eligibility for parole or early release. Ross appeals and claims that: (1) the trial court
denied him the right to confront the witnesses against him when it limited cross-examination
of these witnesses; (2) he was prejudiced by testimony regarding his bad character and a prior
conviction; (3) the verdict is not supported by the weight of the evidence; (4) the cumulative
effect of the trial court’s errors on the admissibility of evidence rendered his trial unfair; (5)
his expert witness was erroneously excluded; (6) the trial court erred when it refused to
suppress evidence gathered from his car in a warrantless automobile search; and (7) the trial
court erred when it refused jury instruction D-6. We find no error and affirm.
FACTS
¶3.
On Friday June 28, 1996, Hershall Ray Yancey was shot four times at his home in
rural Tippah County. His mother, Marie Yancey (“Marie”), discovered his body the
following morning after he failed to show up for breakfast with her at her home across the
street. His television, VCR, and wallet were missing.
1.
¶4.
Dennis McCollum’s Testimony
Yancey’s truck was not running, so co-worker Dennis McCollum gave him a ride to
work at WACO Construction (“WACO”) and home again. On the way home from work,
Yancey had attempted to cash his check at local store, but the store did not have enough
money to cash the check.
The co-worker testified that he dropped Yancey off at home
between 7:05 p.m. and 7:10 p.m. The co-worker had loaned Yancey $9 on Thursday, and
2
they stopped to get something to eat on Thursday, the day before the shooting.
¶5.
McCollum testified that Ross had also worked for WACO and that WACO always
paid on Fridays. McCollum, Ross, and Yancey had all met before at a WACO job site.
2.
¶6.
Marie Yancey’s Testimony
Marie, the deceased’s mother, was ninety-three years old at the time of the second trial
and was unable to testify, but her testimony from the first trial was read to the jury. A
transcript of her testimony was not included in the record before this Court. However, the
supreme court’s opinion was included in the record, and Marie’s testimony was quoted
therein.
¶7.
Marie testified that she returned home Friday night at approximately 9:10 p.m., and
shortly thereafter, she heard a loud vehicle passing her home. At 9:28 p.m., she heard what
she believed to be the same vehicle start up at Yancey’s home, and she saw the vehicle drive
away toward Dumas, Mississippi.
3.
¶8.
Linda Grey’s Testimony
Yancey’s neighbor, Linda Grey, testified that at approximately 9:45 p.m. on the night
Yancey was killed, she heard a “loud car [go] up and down the road,” and it turned around
in front of her house two or three times. Grey was scared and made her children hide in the
bathroom. She went outside to investigate and hid behind a column on her home. She
testified that the car’s passenger-side taillight was broken, and the car was a dark color.
While in front of Grey’s home, the driver exited the car and looked under the hood. She
testified that the driver appeared to be a very small man. The car traveled toward Yancey’s
3
home when it left her home. Grey could hear the car idling down the road, but it did not
sound like it was moving.
4.
¶9.
Carrie Beatty’s Testimony
Grey’s daughter, Carrie Beatty, testified that she arrived at her mother’s home at
approximately 10:00 p.m., and she saw an early 1970s model, mint-green Chevrolet truck at
the end of Yancey’s driveway. Although she traveled by Yancey’s house two or three times
a week, she had never seen this truck there before. She testified that when she arrived at
Grey’s home, Grey was hiding behind a column and was nervous and upset. Grey told her
daughter about the car that had been turning around in front of her home.
5.
¶10.
Sheriff Gary Mauney’s Testimony
Gary Mauney, the Sheriff of Tippah County at the time of the murder, testified that
he heard Ross’s name mentioned by people outside Yancey’s home when he was working
the scene on the morning that Yancey’s body was discovered. Following up on this
information, investigators questioned Margaret Payne (“Payne”), Ross’s half-sister, and her
boyfriend, Tommy Hale (“Hale”). At that time, Payne and Hale were not forthcoming with
information about Yancey’s murder.
6.
¶11.
Margaret Payne’s testimony
Ross had spent the night at Hale’s house that Hale shared with his son, Margaret
Payne, and Payne’s fifteen-year-old son – Jerry Sanders (“Sanders”). Payne testified that
Ross was at Hale’s house the day Yancey was murdered. Ross arrived at approximately 4:30
p.m., left between 8:00 p.m. and 8:30 p.m., and returned between 11:00 p.m. and 11:30 p.m.
4
He was driving his loud, black Mercury Cougar.
¶12.
Payne testified that when Ross returned for the night, he was drunk and had a wallet,
television, and VCR with him. The power cord was severed on the television. He told Payne
that he wanted to talk to her. On direct-examination, the State asked Payne the following:
Q:
Okay. He wanted to talk to you. What did y’all talk about?
A:
Well, he showed me a wallet.
Q:
Okay.
A:
And he started telling that he killed a man.
Q:
What specifically did he tell you?
A:
He told me he killed the son of a bitch.
Q:
Anything else?
A:
That, you know, he robbed him.
Q:
Did he indicate anything about what he had stolen or anything?
A:
He had his wallet, and he said that he shot the son of a bitch, and all he
had was $5 in his wallet.
Payne testified that she saw an identification card and $5 in the wallet, and that Ross burned
the wallet on a grill later that night. She said she was sure the name on the identification card
was Ray Yancey. Payne and Ross went outside, and Ross got a gun out from under a seat
in his car and threw it down a hill behind the house.
¶13.
After all of this, Payne went inside the home and told her nephew, Donald Ross, Jr.
(“Donald”), who was spending the night with Payne’s son, Sanders, what Ross had told her.
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She also told Hale. The information prompted Hale to look for his .22-caliber pistol in his
sock drawer, but the gun was missing. Hale and Payne talked for a while about what Ross
had told her. Hale eventually went to sleep, but Payne stayed up all night because she was
scared. Ross slept on the couch at Hale’s house. The next morning, Payne, Hale, and Sanders
went to visit Ross’s and Payne’s mother, Nellie Bracken (“Bracken”). Payne testified that
she told Bracken everything that Ross had told her, and Bracken believed her and cried.
7.
¶14.
Tommy Hale’s Testimony
Hale’s testimony was consistent with Payne’s testimony. Hale testified that Ross was
at Hale’s home when he returned from work Friday afternoon, Ross left at approximately
8:00 p.m in his Mercury Cougar, and he returned to Hale’s home at approximately 10:00 p.m.
with a television and VCR. Ross told Hale that he did not need to know where the television
and VCR came from. Hale also said that Ross looked like he had been drinking. Hale
testified that Sanders and Donald Ross, Jr., returned home for the evening about the same
time that Ross did.
8.
¶15.
Jerry Sanders’s Testimony
Donald and Sanders had been riding around that night with their girlfriends in
Donald’s Bronco II. Sanders testified that he and Donald returned home around midnight
and there was a television – with a broken cord – and a VCR sitting in the middle of the
living room. Ross was already at the home and seemed like he had been drinking.
9.
¶16.
Evidence and the Investigation
There were no signs of forced entry or a struggle. Investigators recovered a 1996
6
Olympics Budweiser beer can from Yancey’s coffee table and a severed electrical cord and
pieces of a taillight from his driveway.
¶17.
Donald told his mother what he knew about Yancey’s murder when he returned to his
home after spending the night with Sanders. His mother took him to the police station so he
could tell them what he knew.
¶18.
Payne and Hale were not forthcoming the first time they were interviewed by
investigators. However, the investigators returned to the Hale’s home after speaking with
Donald and Payne. Hale told the investigators what Ross had told them, pointed out where
Ross threw the gun down the hill, and showed them the television and VCR.
¶19.
Investigators found a .22-caliber pistol in a ditch behind Hale’s home. There were
five empty shell casings in the gun and one live round. Investigators also recovered the
television and VCR from Hale’s home. The State’s ballistic expert said this gun had
characteristics that were consistent with the bullets recovered from Yancey’s body.
¶20.
Ross’s Mercury Cougar was found at Donald Ross, Sr.’s (“Donald, Sr.”) home. The
car was impounded and an inventory search was conducted without a warrant. Investigators
found seven empty Budweiser beer cans and one unopened Budweiser Olympic beer can.
ANALYSIS
1.
¶21.
Did the trial court deny Ross the right to confront the witnesses against
him when it limited cross-examination of the State’s witnesses?
Ross argues that the trial court committed reversible error when it denied him the
opportunity to broadly confront the State’s witnesses during cross-examination.
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¶22.
“The scope of cross-examination, although ordinarily broad, is within the sound
judicial discretion of the trial court and such court possesses an inherent power to limit such
examination to relevant factual issues.” Dozier v. State, 257 So. 2d 857, 859 (Miss. 1972).
A.
¶23.
Jerry Sanders
Ross argues that under Mississippi Rule of Evidence 609, the trial court should have
allowed him to cross-examine Sanders with Sanders’s prior conviction for attempted
burglary. The State argues that any error was harmless.
¶24.
Sanders pleaded guilty to attempted burglary of a pharmacy in 2006. He had
developed an addiction to prescription drugs after oral surgery and attempted to burglarize
a pharmacy in order to satisfy his addiction. Ross asked to cross-examine Sanders about this
conviction. The trial court ruled that the remoteness of the conviction to the murder made
the conviction inflammatory, prejudicial, and not probative of Sanders’s honesty. The trial
court denied Ross the opportunity to cross-examine Sanders on the conviction, but it allowed
him to question Sanders about his drug addiction and use.
¶25.
Rule 609 states, in part, that:
(a) General Rule. For the purpose of attacking the character for truthfulness
of a witness,
(1) evidence that (A) a nonparty witness has been convicted of
a crime shall be admitted subject to Rule 403, if the crime was
punishable by death or imprisonment in excess of one year
under the law under which the witness was convicted, and (B)
a party has been convicted of such a crime shall be admitted if
the court determines that the probative value of admitting this
evidence outweighs its prejudicial effect to the party; and
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(2) evidence that any witness has been convicted of a crime shall
be admitted if it involved dishonesty or false statement,
regardless of punishment.
M.R.E. 609. The comment to Rule 609 explains:
Rule 609(a)(1) was amended in 2002 to incorporate the rationale of decisions
by the Mississippi Supreme Court which recognized the difference in the
highly prejudicial effect of showing the convictions when the witness is the
accused and the little prejudicial effect from such impeachment of other
witnesses. It was reasoned that when the impeachment by convictions is of a
witness other than the accused in a criminal case there is little or no unfair
prejudice which can be caused to a party. Thus, the probative value on the
credibility of the witness will almost always outweigh any prejudice.
M.R.E. 609 cmt.
¶26.
The State admits in its brief that under the plain language of Rule 609, Sanders’s
conviction was admissible for impeachment purposes. However, the State argues that the
error was harmless.
¶27.
We agree. The trial court did not hinder Ross’s ability to question Sanders about his
drug use or the effect that the use might have on his testimony. In Rogers v. State, 796 So.
2d 1022, 1026 (¶10) (Miss. 2001), the supreme court held that “[a]lthough there may have
been error in not allowing [the defendant] to introduce evidence of Johnson’s prior
convictions for impeachment, any such error is harmless since [the defendant] was able to
use the testimony of Johnson and other witnesses to show Johnson's involvement with and
use of drugs.” In Hobson v. State, 730 So. 2d 20, 26 (¶19) (Miss. 1998), the supreme court
found that Hobson had attacked the witness on his credibility as a drug addict; therefore, the
“trial court's refusal to admit [the witness’s] prior convictions amounted to harmless error.”
9
¶28.
In his reply brief, Ross argues that Rogers and Hobson are distinguishable because
in each case, the defense was afforded the opportunity to “extensively question” the witness
on the extent and effect of his drug use. Ross’s counsel asked the trial court if he was
allowed to question Sanders about his drug use and how it has affected his memory. The trial
court stated that would be allowable. On cross-examination, Ross’s counsel asked Sanders
two questions about his drug use. There was no objection from the State or restriction on the
questioning by the trial court. Ross cannot complain that he was not afforded the opportunity
to extensively question Sanders on the extent and effect of his drug use when his counsel
simply failed to take full advantage of this opportunity. On redirect, the State questioned
Sanders about the type of drugs he used, when he used drugs, how he developed his
addiction, and any effect his drug use had on his ability to testify. The jury was well aware
of Sanders’s drug use.
¶29.
Furthermore, Sanders testified at Ross’s first trial in 1997; at the time, Sanders did not
have a drug problem or any felony convictions. If Sanders’s testimony at this trial differed
from Ross’s first trial, Ross had the opportunity to impeach him with this prior testimony.
Accordingly, we find that any error is harmless.
B.
¶30.
Sheriff Gary Mauney
Ross argues that under Rule 609, he should have been allowed to cross-examine
Sheriff Mauney with his prior drug conviction from the early 1970s. The State responds that
Sheriff Mauney’s conviction was properly excluded because: (1) it was significantly more
than ten years old and not proven to be probative, and (2) Ross did not provide the State with
10
written notice of his intent to use this conviction.
¶31.
Rule 609(b) states:
Time Limit. Evidence of a conviction under this rule is not admissible if a
period of more than ten years has elapsed since the date of the conviction or
of the release of the witness from the confinement imposed for that conviction,
whichever is the later date, unless the court determines, in the interests of
justice, that the probative value of the conviction supported by the specific
facts and circumstances substantially outweighs its prejudicial effect.
However, evidence of a conviction more than ten years old as calculated herein
is not admissible unless the proponent gives to the adverse party sufficient
advance written notice of intent to use such evidence to provide the adverse
party with a fair opportunity to contest the use of such evidence.
¶32.
Although the exact date of his conviction is not given, Sheriff Mauney’s conviction
was over thirty years old at the time of trial; accordingly, his conviction was subject to the
time limits of Rule 609(b). Ross failed to meet both requirements of Rule 609(b). First, he
did not provide the State with advance, written notice of his intent to introduce Sheriff
Mauney’s conviction. Next, he did not meet the threshold burden of showing the probative
value of Sheriff Mauney’s prior conviction. McGee v. State, 569 So. 2d 1191, 1195 (Miss.
1990). Ross’s counsel’s only argument for the introduction of the conviction was that “[i]t
goes to Mr. Mauney’s credibility in this case.” If the party seeking to use the “antiquated
conviction for impeachment purposes [does not] first demonstrate the probative value of the
conviction by showing how the conviction suggests the witness is less than credible,” then
“a trial court's ruling to exclude evidence of a stale conviction will be upheld.” Vickers v.
State, 994 So. 2d 200, 217 (¶64) (Miss. Ct. App. 2008) (internal citation omitted)
Accordingly, we find that this issue lacks merit.
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C.
¶33.
Jerry Clark
Ross argues that under Mississippi Rule of Evidence 609, he should have been
allowed to cross-examine Clark with his forty-four-year-old kidnapping conviction. As with
Sheriff Mauney, the State responds that Clark’s conviction was properly excluded because:
(1) it was significantly more than ten years old and not proven to be probative, and (2) Ross
did not provide the State with advance, written notice of his intent to use this conviction.
¶34.
We analyze Clark’s conviction, just as we did Sheriff Mauney’s, under 609(b).
Clark’s conviction was over forty years old at the time of trial, making it subject to the time
limits of Rule 609(b). Again, Ross failed to meet both requirements of Rule 609(b). He
provided no advance, written notice of his intent to introduce Clarks’s conviction, and he did
not show the probative value of Clark’s prior conviction. Accordingly, we find that this issue
lacks merit.
D.
¶35.
Carolyn Whitehead
Ross argues that under Mississippi Rule of Evidence 609, he should have been
allowed to cross-examine Carolyn Whitehead, his girlfriend at the time of the murder, with
her prior conviction for burglary. The State responds that Whitehead’s conviction was
properly excluded because there is insufficient information regarding the conviction, and it
was at least ten years old.
¶36.
Ross’s counsel did not provide the trial court with the date of the conviction or proof
of the conviction. However, the prosecutor stated that he had been in the district for twelve
years, and he had no knowledge of the conviction. Ross’s counsel did not respond to this
12
representation. Accordingly, we proceed as though the conviction was more than twelve
years old. As such, the conviction was subject to the time limits of Rule 609(b). Ross did
not show the probative value of Whitehead’s prior conviction. Furthermore, we note that
there is no indication in the record that Ross provided the State with advance, written notice
of his intent to use this conviction as required under Rule 609(b). We find that this issue
lacks merit.
E.
¶37.
Dr. Steven Hayne
Ross argues that the trial court erroneously limited his voir dire and cross-examination
of Dr. Steven Hayne about Dr. Hayne’s removal from the State of Mississippi’s list of
approved pathologists. The State responds that Ross was allowed to extensively crossexamine Dr. Hayne on his qualifications and certifications.
¶38.
“The qualifications of an expert in applicable fields of scientific knowledge is left to
the sound discretion of the trial judge. His determination on this issue will not be reversed
unless it clearly appears that the witness was not qualified.” Wilson v. State, 574 So. 2d
1324, 1334 (Miss. 1990) (citing Smith v. State, 530 So. 2d 155, 162 (Miss. 1988)).
¶39.
“Since Mississippi's adoption of the Daubert standard, Dr. Hayne has been found
qualified to render expert testimony in the area of forensic pathology on numerous occasions
by the courts of this [s]tate.” Williams v. State, 964 So. 2d 541, 547 (¶25) (Miss. Ct. App.
2007). Here, Hayne was questioned extensively about his qualifications and certifications
by the State and Ross, and the trial court allowed Ross to proffer his evidence – that Dr.
Hayne should not be considered an expert – before making its ruling.
13
¶40.
In an effort to discredit Dr. Hayne as an expert, Ross wanted to question Dr. Hayne
regarding the reason he was not allowed to perform autopsies for the state and about a report
by Mississippi Commissioner of Public Safety Steve Simpson that criticized Dr. Hayne. The
trial court stated that the probative value of Simpson’s opinion of Dr. Hayne’s office, which
occurred in 2008, was outweighed by the fact that it was irrelevant to what happened in
connection with a single autopsy in 1996. Accordingly, the trial court limited Ross to Dr.
Hayne’s qualifications by training, education, and experience.
¶41.
As the supreme court has stated, “[t]he scope of cross-examination, although
ordinarily broad, is within the sound judicial discretion of the trial court and such court
possesses an inherent power to limit such examination to relevant factual issues.” Dozier v.
State, 257 So. 2d 857, 859 (Miss. 1972). The trial court was within its discretion when it
limited Ross’s cross-examination to the relevant issues of Dr. Hayne’s qualifications by
training, education, and experience and excluded questioning about Simpson’s report.
¶42.
Even if we find that the trial court erred, the restriction would constitute a harmless
error on the part of the trial court. To warrant reversal on an issue, a party must show both
error and a resulting injury. Catholic Diocese of Natchez-Jackson v. Jaquith, 224 So. 2d 216,
221 (Miss. 1969). An error is only grounds for reversal if it affects the final result of the
case. Id. Dr. Hayne was called to testify only as to the cause and manner of death, and Ross
and the State agreed that there was no dispute about the cause or manner of death. On
appeal, Ross does not show how he was injured by this undisputed testimony.
¶43.
We find that the trial court acted within its discretion when it accepted Dr. Hayne as
14
an expert in forensic pathology, particularly in light of the fact that there was no dispute by
either party about Dr. Hayne’s opinion.
F.
¶44.
Margaret Payne
Ross argues that he should have been allowed to impeach Payne with a prior
inconsistent statement that she made to his investigator. The State argues that Payne did not
deny making the inconsistent statement to Ross’s investigator, Herb Wells; therefore, it was
not admissible into evidence.
¶45.
“The standard of review regarding the admission or exclusion of evidence is abuse of
discretion.” Yoste v. Wal-Mart Stores, Inc., 822 So. 2d 935, 936 (¶7) (Miss. 2002). Unsworn
prior inconsistent statements may be used to impeach a witness's credibility. M.R.E. 613(b).
Rule 613(b) provides:
Extrinsic Evidence of Prior Inconsistent Statement of Witness. Extrinsic
evidence of a prior inconsistent statement by a witness is not admissible unless
the witness is afforded an opportunity to explain or deny the same and the
opposite party is afforded an opportunity to interrogate him thereon, or the
interests of justice otherwise require. This provision does not apply to
admissions of a party-opponent as defined in Rule 801(d)(2).
¶46.
First, we address Ross’s claim that this issue was addressed and decided by the
supreme court in Ross I. The supreme court’s inquiry in Ross I about whether the admission
of Payne’s statement about Yancey’s wallet does not address the issue before us. We must
determine whether the trial court erred by refusing to admit Payne’s statement to Wells about
what time Ross returned home based upon the requirements of Rule 613.
¶47.
On direct examination, Payne testified that Ross arrived at Hale’s home at
15
approximately 4:30 p.m., left between 8:00 p.m. and 8:30 p.m., and returned between 11:00
p.m. and 11:30 p.m. On cross-examination, Ross’s counsel asked Payne the following:
Q:
All right. I know I beat that dead horse, but I [sic] to make sure I got it
straight. Now, you said earlier in your testimony with Mr. Luther that
[Ross] left Tommy Hale’s house around what time that evening?
A:
I would say about 4:30.
Q:
He left or he got back at 4:30?
A:
He left about 4:30.
Q:
He left at 4:30, 4:30 p.m. that day; is that right?
A:
Right.
Q:
Okay, and what time did he return that day?
A:
That night.
Q:
What time?
A:
11:00, 11:30.
....
Q:
And didn’t come back any in between, right?
A:
I don’t believe so.
....
Q:
Isn’t it true that you have told people previously to this day that Charles
Ross came back to Tommy Hale’s trailer that night between 8:30 and
9:00 p.m.?
A:
Not that I remember.
....
16
Q:
A:
I might a did. It’s been a long time.
Q:
Right. Again, you’re not disputing the fact that you told him that. You
just don’t remember it, do you?
A:
¶48.
. . . do you remember telling [Herb Wells] that Charles Ross came back
that night between 8:30 and 9:00 p.m.?
I don’t remember.
Following this testimony, Ross asked that Wells be allowed to testify about “the
contradiction of the testimony that [Payne] gave.”
The trial court ruled that under
Mississippi Rule of Evidence 613(b), the witness must be afforded the opportunity to explain
or deny the prior inconsistent statement. Payne was called to testify again.
¶49.
Initially, she testified that she remembered talking to Wells, but she repeatedly stated
that she did not remember telling him that Ross returned to the trailer at 8:30 p.m. or 9:00
p.m. Payne admitted that her testimony was inconsistent with her prior statement. After
reviewing her previous statement, Ross’s counsel asked Payne the following:
Q:
A:
I guess if it’s there, I did.
Q:
Why did you give a different statement on September 10, 1997[,] than
you gave at 4:30 today?
A:
¶50.
So you’re admitting that you’ve given two different statements about
that, right?
When things is going on like that, it’s not easy to remember.
After Ross’s counsel read Payne’s prior statement to her and she had an opportunity
to review it herself, Payne admitted that if it was in the statement; then she said it. She stated
that it was not easy to remember these kind of details. We find that Ross's claim fails
17
because Payne admitted making the prior inconsistent statements.
¶51.
Once a witness explains a prior inconsistent statement by admitting it, extrinsic
evidence of the statement cannot be admitted into evidence. Shelton v. State, 728 So. 2d 105,
115 (¶47) (Miss. Ct. App. 1998).
¶52.
Furthermore, we note that the record indicates that Ross impeached Payne with her
prior inconsistent statement under Rule 613(a), which allows a party to “[read] the statement
to the witness and [ask] whether that statement accurately reflects the testimony given on the
occasion when the statement was recorded.” Everett v. State, 835 So. 2d 118, 120 (¶16)
(Miss. Ct. App. 2003). Ross’s counsel read Payne’s prior statement to her and questioned
her about whether she said this, why she said it, and why the statement differed from her trial
testimony. Accordingly, this issue has no merit.
2.
¶53.
Was Ross prejudiced by testimony regarding his bad character and a
prior conviction?
Ross claims he was prejudiced by (1) Payne’s testimony that Ross said that he wished
that he had kept the gun, the murder weapon, so he could kill the man who had killed their
sister, and (2) Sanders’s testimony that Ross previously was in prison.
¶54.
Character evidence is not admissible to prove that one acted in conformity therewith.
M.R.E. 404(a). Evidence of another crime or prior bad act is not usually admissible.
Ballenger v. State, 667 So. 2d 1242, 1256 (Miss. 1995). However, according to Rule 404(b),
evidence of other crimes or bad acts may be admissible to prove identity, knowledge, intent,
or motive or to prove scienter. Simmons v. State, 813 So. 2d 710, 716 (¶30) (Miss. 2002)
18
(citations omitted).
A.
¶55.
The Gun
Ross argues that the State elicited information about his bad character – his statement
that he wanted to kill the man who had killed his sister, and he was prejudiced by this
information. The State responds that Ross is procedurally barred from making this argument
because he failed to object. We agree.
¶56.
Failure to make a contemporaneous objection waives an issue for purposes of appeal.
Spicer v. State, 921 So. 2d 292, 305 (¶22) (Miss. 2006) (citing Williams v. State, 684 So. 2d
1179, 1203 (Miss. 1996)).
¶57.
During its direct examination of Payne, the State asked her the following:
Q:
Who was Dennis Chapman?
A:
He killed my sister. That’s the best –
Q:
A long time ago?
A:
In ‘82 I think if I ain’t mistaken. He shot and killed my sister.
Q:
And got prosecuted for that, right?
A:
Yeah.
Q:
Did you hear anything about Dennis Chapman?
BY MR. TANNEHILL: Objection. I don’t mind him leading
the witness to speed up things. I object to the form of the
question as leading.
BY MR. LUTHER: Your Honor, I’ll rephrase the question.
BY THE COURT: All right.
19
Q:
What, if anything, else did Charles Ross say that night before you went
to bed?
A:
That he wished he hadn’t threw [sic] the gun away to, you know, kill
Dennis; but he said that was fine. He would get him another gun.
Q:
Did he have an issue with Dennis Chapman?
BY MR. TANNEHILL: I’m going to object. It calls for her to
speculate.
BY THE COURT: Overruled.
Q:
A:
Oh, yeah.
Q:
He killed his sister?
A:
¶58.
Had Charles ever expressed any hard feelings towards Dennis
Chapman?
Yeah.
In his reply brief, Ross claims that he did object to the State’s questioning and that his
objections were obvious – the testimony was inadmissable as evidence of bad character. In
Murphy v. State, 453 So. 2d 1290, 1293 (Miss. 1984), the supreme court held that the
defendant was not procedurally barred from arguing that testimony was inadmissable even
though the grounds for the objection were not stated because “it [was] obvious from the
response of the prosecutor and the ruling of the trial judge, as well as the totality of the
setting in which these objections were interposed, that everyone clearly understood that the
objection was based upon the hearsay rule.”
¶59.
Unlike the defense counsel in Murphy, Ross’s counsel clearly stated the bases for his
objections – the State was leading and calling for a witness to speculate. Each of these
20
objections and their bases was considered by the trial court. “An objection at trial on one or
more specific grounds constitutes a waiver of all other grounds.” Spicer, 921 So. 2d at 305
(¶22) (citing Doss v. State, 709 So. 2d 369, 379 (Miss. 1996)). Ross’s counsel stated his
grounds for objection and waived all other grounds. This issue lacks merit.
B.
¶60.
Ross’s Incarceration
Ross claims that Sanders’s testimony that Ross previously was incarcerated was so
prejudicial that any reference to his prior conviction could not have been mitigated by any
admonishment to the jury. Accordingly, Ross contends that the trial court erred by denying
his motion for a mistrial.
¶61.
The standard of review for a denial of a motion for mistrial is abuse of discretion.
Caston v. State, 823 So. 2d 473, 492 (¶54) (Miss. 2002).
¶62.
On direct examination, Sanders testified that he had worked on Ross’s Mercury
Cougar and had broken one of its taillights when he was trying to push the car on a ramp.
On cross-examination, the defense asked Sanders the following:
Q:
You also testified earlier, I thought I heard you say, that you were
moving the car and doing some work on it, right?
A:
Yes, sir; but this was – back when I was messing with it, he was still in
prison.
BY MR. TANNEHILL:
Objection, Your Honor. May we
approach?
BY THE COURT: All right.
Following a discussion off the record, Mr. J. Rhea Tannehill, attorney for the defendant
21
proceeded to cross-examine Sanders.
¶63.
At the next break, the defense asked for a mistrial based upon Sanders’s testimony.
The State responded that “the same questions were asked in [Ross’s] first trial; and [Ross]
got the same exact response anyway. It’s sort of, I don’t know how you can go back and ask
the same question and not expect the same answer.” The State also pointed out that the
defense could have taken precautions to ensure that Sanders did not mention Ross’s prior
incarceration. The trial court stated that:
The record needs to reflect that the defendant’s counsel did make a
contemporaneous objection at the bench, which we did not put on the record;
and part of the reason was because I didn’t want to create a bigger stir than the
defense attorney wanted to be created, in other words, make a big to do out of
it at the time, left the option to defense counsel to take steps at that time if he
wished to or wait until we take a break; and the record needs to reflect that he
did make a contemporaneous objection and reserved the right to request leave
on the first break.
[I am] denying the motion for mistrial.
¶64.
The record is silent on the trial court’s ruling regarding Ross’s counsel’s objection to
Sanders’s testimony. The State did not follow up on this line of questioning on redirect as
would be expected if the trial court had ruled that this evidence was admissible. We proceed
as though the trial court sustained the objection.
¶65.
In Osborne v. State, 843 So. 2d 99, 101 (¶5) (Miss. Ct. App. 2003), this Court stated:
“Case law unequivocally holds that the trial judge ‘is in the best position for
determining the prejudicial effect’ of an objectionable comment.” Alexander
v. State, 602 So. 2d 1180, 1182 (Miss. 1992). The trial judge is vested with
discretion to determine whether a comment is so prejudicial that a mistrial
should be declared. Edmond v. State, 312 So. 2d 702, 705 (Miss. 1975).
Absent “serious and irreparable damage,” the trial judge should request the
22
jury to disregard the improper statement and deny any motion for a mistrial.
Roundtree v. State, 568 So. 2d 1173, 1178 (Miss. 1990). “It is well settled that
when the trial judge sustains an objection to testimony and he directs the jury
to disregard it, prejudicial error does not result.” Estes v. State, 533 So. 2d
437, 439 (Miss. 1988). We presume that the jurors will follow the instructions
given by the court. Payne v. State, 462 So. 2d 902, 904 (Miss. 1984). “To
presume otherwise would be to render the jury system inoperable.” Johnson
v. State, 475 So. 2d 1136, 1142 (Miss. 1985).
¶66.
Here, Ross did not ask for a limiting instruction; therefore, the inquiry becomes
whether the trial court should have admonished the jury sua sponte. “As a general rule, it is
presumed that when the trial judge sustains objections[,] the jury understands that the trial
court disapproves of the testimony or inquiry in question.” Davis v. State, 472 So. 2d 428,
433 (Miss. 1985) (citation omitted). “In many instances a limiting instruction from the bench
can actually focus a jury's attention on the sensitive testimony.” Brown v. State, 890 So. 2d
901, 913 (¶35) (Miss. 2004). “The burden should properly be upon the trial counsel to
request a limiting instruction. Id. at (¶36).
¶67.
The trial court’s comments indicate that Ross’s counsel did not want to draw attention
to Ross’s incarceration by making his objection in front of the jury. It follows that he did not
ask the trial court to admonish the jury about this statement because it would draw additional
attention to it.
¶68.
Furthermore, it appears that Ross’s counsel could have anticipated Sanders’s response
to this line of questioning, because, according to the State, Sanders gave the same response
in the first trial. We can find no error on the part of the trial court in denying the motion for
mistrial.
23
3.
¶69.
Is the verdict supported by the weight of the evidence?
Ross claims that the jury's guilty verdict is against the overwhelming weight of the
evidence. He argues that there is evidence that Payne and Sanders were involved in
Yancey’s death.
¶70.
“When reviewing a denial of a motion for a new trial based on an objection to the
weight of the evidence, we will only disturb a verdict when it is so contrary to the
overwhelming weight of the evidence that to allow it to stand would sanction an
unconscionable injustice.” Bush v. State, 895 So. 2d 836, 844 (¶18) (Miss. 2005). The
evidence is weighed in the light most favorable to the verdict. Id. The power to grant a new
trial should be invoked only in exceptional cases in which the evidence preponderates
heavily against the verdict. Id. If the verdict is against the overwhelming weight of the
evidence, the proper remedy is to grant a new trial. Id.
¶71.
Ross claims that his confession to Payne does not satisfy the State’s burden to prove
a corpus delicti. Corpus delicti is defined as the body or substance of the crime, which:
contains the following two elements which must be proved beyond a
reasonable doubt in order to show that a crime has actually been committed:
(1) the existence of a certain act or result forming the basis of a
criminal charge and (2) the existence of criminal agency as the
cause of this act or result.
....
In order to reduce the risk of a defendant being convicted of a crime never
committed, this court requires independent proof of corpus delicti beyond
extrajudicial admissions or confessions. The corpus delicti need only be
proven by a preponderance of the evidence, and the confession may be used
24
to raise the proof beyond a reasonable doubt.
Cotton v. State, 675 So. 2d 308, 313 (Miss. 1996) (citations omitted).
¶72.
Ross’s argument is unfounded and meritless. There is no question that a crime was
committed; Yancey was robbed and died as a result of being shot four times.
¶73.
Ross claims that without Payne’s testimony that none of the State’s evidence proves
he was involved in Yancey’s murder. However, Ross confessed to three people in addition
to Payne.
¶74.
Clark testified that after an altercation with his wife, he was jailed overnight with
Ross. Clark and Ross knew each other prior to being jailed together. Ross told Clark,
“[Clark], I shot a man for $1.” Clark stated that Ross told him he was high on crack and
drinking when he shot the man in the head.
¶75.
April Chapman (“April”) testified that she went with her mother to visit Ross in
prison. April’s mother and Ross had a previous relationship. April testified that Ross told
her and her mother that the “gun had been stolen out of the police department; and that he
had killed Ray Yancey; and that he knew he was going to get away with it because the
evidence was gone.” While weapons had been stolen from the evidence room at the police
station, the alleged murder weapon was not one of the guns that were stolen.
¶76.
Whitehead, Ross’s girlfriend at the time of the murder, testified that Ross asked her
to meet him one Saturday morning at a convenience store, but she could not remember when
this was. Whitehead stated that Ross said he was in trouble and that he had killed a man.
¶77.
Marie and Grey both testified that a loud car traveled up and down their road around
25
9:30 p.m. on the night of the murder. Numerous people testified that Ross’s car was loud
because it did not have a muffler. Grey testified that the car was dark, like Ross’s Mercury
Cougar.
¶78.
Yancey’s television and VCR were found at Hale’s home, and Hale and Payne
testified that Ross brought the electronics into the home. Yancey’s daughter was able to
provide a serial number for the television that proved it belonged to Yancey.
¶79.
We find that the verdict is not against the overwhelming weight of the evidence, and
allowing the verdict to stand does not result in an unconscionable injustice. Thus, this issue
has no merit.
4.
¶80.
Did the cumulative effect of the trial court’s errors on the admissibility
of evidence render his trial unfair?
Ross argues that the trial court erred by allowing inadmissible hearsay and irrelevant
evidence. Ross claims that there was not overwhelming evidence against him; therefore, we
should view the cumulative errors as prejudicial. The State claims that the trial court did not
commit errors when it allowed the testimony and evidence at issue; therefore, there can be
no cumulative error.
¶81.
The standard of review we employ regarding the admissibility of evidence is well
settled: “a trial judge enjoys a great deal of discretion as to the relevancy and admissibility
of evidence. Unless the judge abuses this discretion so as to be prejudicial to the accused,
the [appellate court] will not reverse this ruling.” Robinson v. State, 940 So. 2d 235, 238 (¶7)
(Miss. 2006) (quoting Turner v. State, 732 So. 2d 937, 946 (¶31) (Miss. 1999)).
26
A.
¶82.
Yancey's Identification Card
Payne testified that when Ross showed her the wallet, she saw an identification card
bearing Yancey’s name.
Investigator Steve Wilburn testified that he had Yancey’s
identification card reproduced at Costume World. The State asked Investigator Wilburn the
following regarding Costume World and the identification card:
Q:
Did you go there? What did you find out when you got there?
A:
I asked some of the people working there if, in fact, they did make
photo I.D.’s; and they informed me that they did.
BY MR. TANNEHILL:
Your Honor, again I’m going to
object to the hearsay as to what
anybody else told Mr. Wilburn.
BY THE COURT:
All right.
The trial court did not overrule Ross’s counsel’s objection, and Investigator Wilburn did not
testify further about what anyone else told him.
¶83.
Ross’s next objection came when the State asked Investigator Wilburn:
Q:
Do you know Hershell Ray Yancey’s mother, Marie Yancey?
A:
I did interview her at one time.
Q:
She indicated to you that this was the same –
BY MR. TANNEHILL:
Your Honor, again I’m going to object to
the hearsay as to what anybody else told
Mr. Wilburn.
BY THE COURT:
All right. Sustained.
Both of Ross’s counsel’s objections were sustained, and neither related to the identification
27
card itself as hearsay, as Ross argues on appeal. "An objection at trial on one or more
specific grounds constitutes a waiver of all other grounds." Spicer, 921 So. 2d at 305 (¶22).
Furthermore, the identification card was never introduced as evidence. This issue is without
merit.
B.
¶84.
Testimony about Yancey's Television, VCR and Wallet
Ross claims that it was error for an investigator to testify that Yancey's estranged wife
told the investigator that Yancey's television, VCR, and wallet were missing from the home.
Ross’s counsel objected to the testimony as hearsay. The State responded that the question
was “asked on the initial scene of a crime as part of his investigation, Is there anything
missing? Your Honor, I think that would be considered an exception to the hearsay [rule].”
The objection was overruled.
¶85.
We find that any error in the admission of the Yancey’s estranged wife’s statement
was harmless error. The supreme court has held that:
The basic test for harmless error in the federal constitutional realm . . . is
whether it appears beyond a reasonable doubt that the error complained of did
not contribute to the verdict obtained. . . . [T]he inquiry is not whether the jury
considered the improper evidence or law at all, but rather, whether that error
was unimportant in relation to everything else the jury considered on the issue
in question, as revealed in the record.
Thomas v. State, 711 So. 2d 867, 872-73 (¶25) (Miss. 1998) (internal citations and quotations
omitted).
¶86.
Without objection, multiple witnesses testified that Yancey’s television, VCR, and
wallet were missing from his home. Investigator Wilburn testified that Yancey’s television
28
and VCR were recovered from Hale’s house. The television’s serial number confirmed that
the television belonged to Yancey. Yancey’s daughter, Carol Brown, testified that she had
purchased the television and VCR recovered from Hale’s house for her father. Deputy
Sheriff Wayne Wilbanks testified that there was a table in Yancey’s living room where you
would expect a television to be that had a clean mark, as if something had just been moved.
Payne testified that she saw Ross with Yancey’s wallet.
¶87.
The State did not show that Yancey’s estranged wife’s statement was admissible as
an exception to the rule against hearsay; however, we find that this error was harmless when
compared to all of the other evidence considered by the jury.
C.
¶88.
Alleged Irrelevant Evidence
Ross argues that the trial court erred by admitting into evidence pieces of a taillight
found in Yancey’s driveway, ashes collected from Hale’s grill, the .22-caliber pistol
recovered behind Hale’s home, and Yancey’s identification card, because they were all
irrelevant evidence.
¶89.
“‘Relevant Evidence’ means evidence having 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.
¶90.
First, we address pieces of a taillight found in Yancey’s driveway that were compared
to the taillight in Ross’s car. Sanders testified that he had previously broken Ross’s taillight
when he was working on his car. To disguise the damage, Sanders painted the housing red.
The State presented pictures of Ross’s car to Sanders, and Sanders testified that the picture
29
“show[ed] the car with the taillight broken out, but [that there was] one piece missing that
[he] didn’t break out.” He explained that there was a piece on the end of the housing that
was broken out but that was not painted red, so it must have been broken after he had broken
the taillight.
¶91.
Joseph Kellum, a forensic scientist with the Mississippi Crime Laboratory, testified
that he analyzed the pieces of taillight from Yancey’s driveway and from Ross’s car and
found that they were similar in color and physical design. They also shared the same
rectangular pattern – dimension, length, and width. Kellum testified that he compared the
pieces from Yancey’s driveway and Ross’s taillight by using a FTIF microscope and
performing a pyrolysis GC chemical analysis and concluded that the physical properties of
the pieces were consistent with one another. Although not conclusive evidence that Ross
was the perpetrator, the taillight analysis shows that Ross’s taillight’s composition is
consistent with the evidence of the broken taillight found at Yancey’s home. Furthermore,
Sanders’s testimony shows that the taillight was broken again after he had broken it. The
trial court did not abuse its discretion when it admitted this evidence.
¶92.
Second, we address Ross’s argument that the .22-caliber pistol should not have been
introduced because it was irrelevant. Ross does not attempt to explain or expound upon this
argument.
¶93.
The projectiles recovered from Yancey’s body were identified as .22-caliber. Payne
testified that after confessing to shooting Yancey with the gun, Ross threw a .22-caliber
pistol behind Hale’s trailer, and the police recovered Hale’s .22-caliber pistol from behind
30
Hale’s trailer. John Franovich with the Mississippi Crime Laboratory testified that the
projectiles he fired from the .22-caliber pistol and the projectiles recovered from Yancey bore
some similarities and common class characteristics. Neither projectile had a definitive land
and groove pattern that Franovich would have expected from a rifle or pistol.
¶94.
We find that the trial court did not err when it allowed the .22-caliber pistol into
evidence. Payne testified that after Ross confessed to her that he had shot a man, he threw
the gun down the hill. The gun was recovered where Payne said Ross had thrown it, and it
had characteristics that were consistent with the characteristics of the projectiles recovered
from Yancey’s body.
¶95.
Third, Ross claims that the introduction of the bag of ashes from Hale’s grill was
erroneously admitted. Payne testified that on the night of the murder, Ross showed her the
wallet before he set fire to it in Hale’s grill. Deputy Sheriff Wilbanks testified the contents
in Hale’s grill had fragments and parts in the shape of a billfold or what he thought to be a
billfold. However, twelve years after the murder, Deputy Sheriff Wilbanks stated that he
could not identify the contents collected from the grill as a billfold. However, at the earlier
trial Deputy Sheriff Wilbanks had identified the grill contents as a billfold. We fail to see
how this admission prejudiced Ross. The trial court did not err when it gave Deputy Sheriff
Wilbanks the opportunity to identify the contents of the grill, in spite of the fact that at trial,
he was unable to characterize them as more than ashes.
¶96.
Last, we address Ross’s claim that the reproduced identification card should have been
excluded as irrelevant evidence. As we have already discussed, Yancey’s identification card
31
was never introduced into evidence and, accordingly, was not admitted into evidence. Thus,
this assignment of error lacks merit.
¶97.
We have found that each of Ross's assignments of error is without merit. “As there
was no reversible error in any part, so there is no reversible error to the whole.” McFee v.
State, 511 So. 2d 130, 136 (Miss. 1987).
5.
¶98.
Was Ross’s expert witness erroneously excluded?
Ross claims that he was denied the right to put on his defense because the trial court
refused to allow his expert on criminal investigations to testify. The State argues that Ross
is procedurally barred from raising this issue on appeal because he failed to raise it in his
motion for a new trial.
¶99.
“Where an assignment of error is evidenced in the pleadings and transcript, it is not
necessary to make a motion for a new trial based upon that error.” Underwood v. State, 708
So. 2d 18, 26 (¶22) (Miss. 1998) (citing Jackson v. State, 423 So. 2d 129, 131 (Miss. 1982)).
Here, Ross preserved this issue for appeal by offering Wells’s proffered testimony and
qualifications to the trial court.
The trial court ensured that Ross was afforded the
opportunity to make his case on the record that Wells should be allowed to testify as an
expert. Accordingly, we address this issue on the merits.
¶100. “The admission of expert testimony is addressed to the sound discretion of the trial
judge.” Roberts v. Grafe Auto Co., 701 So. 2d 1093, 1098 (Miss. 1997). In Ross I, the
supreme court addressed Wells’s proffered testimony about criminal investigations, as well
as other matters, and stated:
32
The admissibility of expert testimony is evaluated in light of M.R.E. 702,
which holds that such testimony may be introduced when it is found to be
relevant and reliable. See Miss. Transp. Comm'n v. McLemore, 863 So. 2d 31,
38 (Miss. 2003); see also M.R.E. 702. Testimony is relevant if it will assist
the trier of fact in understanding or determining a fact at issue. Id. To meet
the requirement of reliability, an expert's testimony must be based on the
methods and procedures of science, and not merely on subjective beliefs or
unsupported speculation. Id. at 36 (citing Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579, 587, 113 S.Ct. 2786, 125 L.Ed. 2d 469 (1993)). Rule 702
expressly allows expert testimony regarding non-scientific matters, so long as
the witness's knowledge, skill, experience, training, or education qualify him
as an expert in a given field, and (1) the testimony is based upon sufficient
facts or data; (2) the testimony is the product of reliable principles and
methods; and (3) the witness has applied the principles and methods reliably
to the facts of the case.
Ross I, 954 So. 2d at 996-97 (¶57).
¶101. Ross submitted Wells as an expert in criminal investigations. Wells worked as a
police officer and on an investigative task force focused on major and organized crime,
attended numerous seminars on crime scene investigation, and helped set up the first narcotic
unit in northeast Mississippi. He has worked as a private investigator since the mid 1980s.
The State argued that expert testimony was not appropriate because Ross’s counsel could
cross-examine the witnesses on these matter. The trial court acknowledged that the supreme
court had implied in Ross I that the Daubert factors can be considered in the field of criminal
investigations.
¶102. The trial court ruled that Wells should not be permitted to testify. The judge found
the investigation of the crime scene had been adequately covered, and the officers had been
subject to vigorous cross-examination about their techniques. The officers agreed that things
could have been handled better; therefore, the trial court found Wells’s testimony would only
33
bolster the officers’ testimonies and not be probative.
¶103. The trial court also found that many of Wells’s memberships and associations were
voluntary and fee based, not peer reviewed or tested. Furthermore, the trial court was unable
to evaluate the value of Wells’s certifications because the trial court was unaware of the
requirements for certification.
¶104. Wells was prepared to testify that the officers were deficient in their investigation into
Yancey's murder. However, we find that the trial court did not abuse its discretion when it
found Wells’s proffered testimony had been adequately covered by the cross-examination
of the officers and that Wells had failed to establish the reliability of his testimony under
Daubert. Consequently, the trial court did not err in excluding Wells’s testimony.
6.
Did the trial court err when it refused to suppress evidence gathered
from Ross’s car in a warrantless automobile search?
¶105. Ross argues that evidence seized from his Mercury Cougar was the product of an
illegal search and seizure. The State argues the supreme court’s holding in Ross I that this
evidence was constitutionally acquired and is binding.
¶106. “When reviewing a trial court's ruling on the admission or suppression of evidence,
[the appellate court] must assess whether there was substantial credible evidence to support
the trial court's findings.” Culp v. State, 933 So. 2d 264, 274 (¶26) (Miss. 2005). “The
admission of evidence lies within the discretion of the trial court and will be reversed only
if that discretion is abused.” Id.
¶107. In his first appeal, as here, Ross argued that the warrantless search of his car did not
34
fall under the “automobile exception” to the Fourth Amendment to the United States
Constitution or the “plain-view” exception to the Fourth Amendment.
¶108. While searching for Ross, the police found his car at his brother’s, Donald, Sr., house.
Ross I, 954 So. 2d at 995 (¶52). The police discovered that the tag on the car had been
switched. Id. Donald, Sr. granted the police permission to search the premises. Id. “The
police noted that the vehicle had a broken taillight and that there were several beer cans,
similar to those found at the crime scene, on the floorboard, and had the car towed to the
sheriff's office.” Id. “The trial court conducted a hearing on the admissibility of the beer
cans and found that, because the car's tag had been switched, the car was in plain view, and
the officers had consent to search the premises, there was no constitutional violation.” Id.
¶109. The supreme court held that:
A renter such as Don Ross, Sr. has been recognized as possessing sufficient
authority to consent to a search of the premises. Hudson v. State, 475 So. 2d
156, 158 (Miss. 1985). Ross had no ownership interest in the premises and
therefore cannot argue that any expectation of privacy was violated. Compare
Scott v. State, 266 So. 2d 567, 569 (Miss. 1972) (“[W]here the proof shows
that a person is renting a room or is in possession of a room in a house or an
apartment under such circumstances as to make such person the owner thereof
for the time being, such person is entitled to the protection afforded by Section
23 of the Constitution.”). Because Don Ross, Sr. consented to a search of his
premises, evidence collected pursuant to that consent was constitutionally
acquired. This assignment of error is without merit.
Id. at 995-96 (¶54).
¶110. At his second trial, the trial court heard Ross’s motion to suppress the evidence as the
product of an illegal search and seizure. The trial court ruled:
This was an issue that was passed on by the [s]upreme [c]ourt and they
35
[focused] principally on the issue of consent as stated. I believe that it’s highly
unlikely that the facts that gave rise to their ruling are likely to differ
significancy in the retrial of this case. So I believe that it’s almost crystal clear
that this issue has been resolved in the previous trial and affirmed by the
[s]upreme [c]ourt as to the search and seizure of these items. The court won’t
revisit that unless there is some different factual scenarios significant enough
to warrant that.
During the trial, Ross’s counsel renewed his objection to evidence collected from Ross’s car.
The trial court stated that if the defense had a proffer about different facts, then he should
make it at that moment. If not, the motion for a hearing outside the presence of the jury was
denied. Ross’s counsel stated that he was not aware of any different facts.
¶111. We find that the trial court correctly denied the motion to suppress. The supreme
court has explained that:
The doctrine of the law of the case is similar to that of former adjudication,
relates entirely to questions of law, and is confined in its operation to
subsequent proceedings in the case. Whatever is once established as the
controlling legal rule of decision, between the same parties in the same case,
continues to be the law of the case, so long as there is a similarity of facts. This
principle expresses the practice of courts generally to refuse to reopen what
has previously been decided. It is founded on public policy and the interests
of orderly and consistent judicial procedure.
Mauck v. Columbus Hotel Co., 741 So. 2d 259, 266-67 (¶22) (Miss. 1999) (quoting TXG
Intrastate Pipeline Co. v. Grossnickle, 711 So. 2d 991, 1019 (¶97) (Miss. 1997).
¶112. During the hearing on Ross’s motion to suppress, the trial court invited Ross to come
forward with any additional evidence that would warrant a different outcome. However,
none was presented to the trial court.
¶113. Ross also argues that the holding in Ross I is contrary to Mississippi precedent that
36
“[c]onsent to search voluntarily given without coercion may be given by a third party who
possessed common authority, mutual use and joint control over property not in the exclusive
control or possession of the defendant and where the defendant had no reasonable
expectation of privacy,” because Donald, Sr. did not have dominion over the Mercury
Cougar. Mettetal v. State, 615 So. 2d 600, 603 (Miss. 1993). However, in Ross I, the
supreme court stated that “[c]onsent to search may be provided by a third party who
possesses common authority over or other sufficient relationship to the premises or effects
sought to be inspected.” Ross I, 954 So. 2d at 996 (¶54). The correct standard was applied
in Ross I. Any argument Ross wished to make regarding Donald, Sr.’s dominion over the
Mercury Cougar should have been presented to the trial court. This issue is without merit.
7.
Did the trial court err when it refused jury instruction D-6?
¶114. Ross alleges in his first assignment of error that the trial court erred by refusing his
instruction on witness demeanor and conflicting testimony. The State responds that the trial
court covered the credibility of witnesses elsewhere with another instruction.
¶115. “Whether to give a jury instruction is within the sound discretion of the trial court.”
Chamberlin v. State, 989 So. 2d 320, 341-42 (¶80) (Miss. 2008) (citation omitted). We
review the jury instructions given as a whole to determine whether the refusal of a particular
instruction was in error. Taylor v. State, 763 So. 2d 913, 915 (¶8) (Miss. Ct. App. 2000).
If the instructions fairly state the law of the case and no injustice is created, no reversible
error will be found. Id. “A defendant is entitled to have jury instructions given which
present his theory of the case[;] however, this entitlement is limited in that the court may
37
refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the
instructions, or is without foundation in the evidence.” Poole v. State, 826 So. 2d 1222, 1230
(¶27) (Miss. 2002) (quoting Smith v. State, 802 So. 2d 82, 88 (¶20) (Miss. 2001)).
¶116. Ross offered instruction D-6 which states:
Each person testifying under oath is a witness. You have the duty to determine
the believability of the witnesses. In performing this duty, you must consider
each witness’[s] intelligence, the witness’[s] ability to observe and accurately
remember, the witness’[s] sincerity, and the witness’[s] demeanor while
testifying. You must consider also the extent the witness is either supported
or contradicted by other evidence; the relationship the witness may have with
either side; and how the witness might be affected by the verdict.
In weighing a discrepancy by a witness or between witnesses, you should
consider whether it resulted from an innocent mistake or deliberate falsehood.
You may reject or accept all or any parts of a witness’[s] testimony and you
may reject part and accept other parts of a witness’ testimony. After making
[your] own judgment, you will give the testimony of each witness the
credibility, if any, as you may think it deserves.
Ross submitted instruction D-6, and the State responded that “it’s more than adequately
covered by the State’s instructions.” The State admits that its instructions did not cover
witness demeanor and conflicting testimony; however, the State claims that the trial court’s
instruction C-1 addressed those matters. The trial court instruction C-1 states:
You are the sole judges of the facts in this case. Your exclusive province is to
determine what weight and what credibility will be assigned the testimony and
support of each witness. You are required and expected to use your good
common sense and sound honest judgment in considering and weighing the
testimony of each witness who has testified.
¶117. Ross argues that even if his instruction was covered in instruction C-1, under Chatman
v. State, 761 So. 2d 851 (Miss. 2000), he is entitled to a more detailed instruction because
38
witness credibility was an issue in this case. We disagree. In Chatman, the supreme court
found that the defendant failed to prove that his proposed instruction was not substantially
covered in the jury charges as a whole and that witness credibility was of such importance
that the court's failure to instruct the jury on that issue seriously impaired the defendant's
ability to present his given defense. Id. at 855 (¶17). A defendant must show “that his
requested instruction was (1) a correct statement of the law, (2) not substantially covered in
the jury charges as a whole, and (3) of such importance that the court's failure to instruct the
jury on that issue seriously impaired the defendant's ability to present his given defense.” Id.
at 854-55 (¶15) (citations omitted).
¶118. We have reviewed instruction D-6, which was requested by Ross and refused by the
trial court, and find it is fairly covered by instruction C-1, which was given. See Randolph
v. State, 924 So. 2d 636, 642 (¶¶18-19) (Miss. Ct. App. 2006). It is well-settled law that all
jury instructions are to be read together, and if the jury is fully and fairly instructed by other
instructions, the refusal of any similar instruction does not constitute reversible error. Rester
v. Lott, 566 So. 2d 1266, 1269 (Miss. 1990). Having reviewed the instructions of the trial
court to the jury, we find that they accurately and sufficiently guided the jury in its
deliberations. Accordingly, this issue is without merit.
¶119. THE JUDGMENT OF THE TIPPAH COUNTY CIRCUIT COURT OF
CONVICTION OF CAPITAL MURDER AND SENTENCE AS A HABITUAL
OFFENDER OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT
OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE OR EARLY
RELEASE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO
TIPPAH COUNTY.
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KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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