BEFORE DAN LEE, P.J., ROBERTSON AND ANDERSON, JJ.
DAN LEE, P.J., FOR THE COURT:
Hudson Clark was indicted by the grand jury of Sharkey County, Mississippi, on September 5, 1985, and charged with aggravated assault. After a jury trial, Mr. Clark was convicted
and sentenced as an habitual offender (Miss. Code Ann. 99-19-81) to a term of twenty years in the Mississippi Department of Corrections without benefit of probation or parole. Clark has perfected his appeal to this Court assigning two errors:
I. THE TRIAL COURT ERRED IN EXCLUDING THE TESTIMONY OF CLEMENTINE WILLIAMS CONCERNING STATEMENTS MADE BY WILLIE LEWIS.
II. THE TRIAL COURT ERRED IN SENTENCING APPELLANT HUDSON CLARK UNDER THE PROVISIONS OF 99-19-81 OF THE MISSISSIPPI CODE OF 1972, AS AMENDED.
On September 5, 1985, 16-year-old Derrick Willis was walking his girlfriend home in Rolling Fork, Mississippi, when four men, Willie Lewis, Donald "Peewee" Logan, Eugene Odem and Appellant Hudson Clark, began picking at Willis. Willis picked up a stick and continued on his way. Willis left his girlfriend at her house and went to a local establishment called "Brother Bill's," where he received a message that Willie Lewis wanted to meet him at the railroad tracks. By the time Willis got to the track, Milton Williams and Willie Lewis were already involved in a fight, surrounded by 15-20 people watching. Apparently, Milton Williams had heard about the earlier incident between Derrick and Willie Lewis and was avenging Derrick Willis. Sometime during the fight, which lasted about five minutes, Derrick Willis was grabbed from behind and his throat was cut. A girl in the crowd began screaming that Willis was bleeding, and Willis's brother drove him to the hospital. The cut required 64 stitches.
The factual issue at trial was who cut Derrick Willis. Willis claims that he saw Hudson Clark standing up on the track during the fight, but that somehow Hudson managed to run around the outside of the crowd, run up behind Derrick Willis, and cut him. Willis identified Hudson Clark from the clothes that he wore that evening and also because Hudson Clark wore a curl. Willis also testified that he had known Hudson Clark before this incident, and there was no question in his mind that it was Hudson Clark who cut his throat.
Two other witnesses to the fight also claim that Hudson Clark cut Derrick Willis. One testified that he was facing Derrick during the fight because he was trying to hold him back to keep him from fighting. He saw Clark come from behind and knife Derrick in the throat. The other witness testified that he saw Hudson Clark come up from behind Derrick and cut him. This witness also testified that Willie Lewis carried a wine
bottle to the fight and that during the fight Lewis broke the wine bottle.
Hudson Clark testified in his own defense, stating that he was not near the fight, but was up on the track watching it. Clark does not deny that he was with the group of four who picked on Derrick Willis earlier in the evening, nor does he deny that he followed the crowd to the fight. One of Clark's witnesses testified that Clark was standing beside him before, during and after the fight, up on the track. After the fight he and Clark went to Clark's girlfriend's house. Another of Clark's witnesses testified that he left Hudson standing up on the track while he walked down to where the fight was taking place. He claimed he did not see Derrick or Hudson during the fight, and that after the fight, he turned and headed back up the track, seeing Hudson still standing on the track. He testified that Hudson did not seem out of breath or like he had been running.
Willie Lewis admitted that he broke the wine bottle that he carried when Milton Williams threw him on the ground. He also testified that he never saw Hudson Clark during or after the fight. Another witness was a member of the crowd standing around the fight. She testified that she saw Hudson Clark standing up on the tracks before and during the fight, and after Derrick got cut. Defendant's final witness, Clementine Williams, testified that Willie Lewis came to her sister's house (where she was staying) looking for water and a towel because he had cut himself on a box cutter. He told Ms. Williams that he had used the box cutter to cut "a boy" with. At the close of Ms. Williams' testimony, the state moved that the jury be instructed to disregard this testimony because it was irrelevant to the case. The court granted the motion and instructed the jury to disregard Ms. Williams' testimony, reasoning that her testimony appeared to go to the credibility of the previous witness, Willie Lewis, and did not have anything to do with the case in chief.
In simplified form, the testimony in this case showed that the victim and two of his witnesses claim that Hudson Clark was guilty of the assault, and Clark and three of his witnesses claim that Clark was innocent of the assault. Willie Lewis admitted that he had a broken wine bottle during the fight, and another witness corroborated that story. The testimony of Clementine Williams was the only testimony that suggested that Willie Lewis, and not Hudson Clark, attacked Derrick Willis.
I. The Trial Court Erred in Excluding the Testimony of Clementine Williams Concerning the ...