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MAY 04, 1988





Today's appeal presents the question whether a prior arson conviction suggests a propensity for lying so that it is admissible for impeachment purposes consistent with Rule 609, Miss.R.Ev. As the record reflects no details - whether the arson was pyromania or insurance fraud, we hold that the prosecution has failed in its burden to make a prima facie showing that the conviction has probative value.

 Because the accused's credibility was a central issue in this robbery prosecution - his defense was alibi plus mistaken identification, we reverse and remand for a new trial on all issues.



 On March 13, 1986, at approximately 7:00 p.m., Velma Craig (Craig) was robbed as she was leaving Kroger Grocery Store on Robinson Street in Jackson. Craig's assailant knocked her to the ground, grabbed her purse and fled on foot. The Defendant/Appellant, Robert Hayes McInnis (McInnis), was apprehended approximately one hour later at a nearby Super Stop convenience store by Michael Standford (Standford), a Kroger security guard. Craig identified McInnis as her assailant, although before she saw him handcuffed at the police station she had given a substantially differing description of the man who robbed her.

 McInnis maintained his innocence throughout the proceedings. McInnis' defense and testimony was based on an alibi. McInnis claimed that shortly before 5:00 p.m. on March 13, 1986, he went to his aunt's house as he was want to do. He was planning to "cheat" on his wife, and called his prospective paramour from his aunt's house using the name "Jimmy" and asked her to call him back at the Super Stop at 8:00 p.m. because he could not talk freely at his aunt's house. The fact that McInnis was at his aunt's house on the date of the robbery from approximately 5:00 p.m. until shortly after 7:00 p.m. was substantiated by various members

 of his family who were at his aunt's house.

 Although she could not give a definite time, Emma Weaver (Weaver), a Super Stop employee, stated that she saw McInnis at the Super Stop around "dusky dark" which she approximated at anywhere between 6:00 p.m. and 7:30 p.m. McInnis gave Weaver a piece of paper with the name "Jimmy" on it and the number for the outside pay telephone and asked Weaver to give the outside number to a woman who was going to call asking for Jimmy. The call came. Weaver estimates that thirty minutes elapsed from the time McInnis gave her the note until he was arrested.


 On April 7, 1986, Robert Hayes McInnis was charged with robbery in an indictment returned by the Hinds County Grand Jury. After trial on July 16 and 17, 1986, the jury found McInnis guilty as charged. The Circuit Court sentenced McInnis to a term of eight (8) years imprisonment at Parchman, the sentence to run consecutively to a twelve (12) year sentence imposed after revocation of probation on a 1981 first degree arson conviction. McInnis moved for judgment of acquittal notwithstanding the verdict of the jury, or, alternatively, a new trial, which motion was denied on August 8, 1986. This appeal has followed.


 McInnis' principal complaint concerns the prosecution's use at trial of a prior conviction. On April 23, 1981, Robert Hayes McInnis was convicted of arson. He was at that time sentenced to serve a term of twenty (20) years imprisonment, with eighteen and a half (18 1/2) of those years suspended. McInnis actually served ten (10) months. The Circuit Court admitted the prior conviction for impeachment purposes.

 Two assignments of error before us concern, first, the procedure and, second, the substance of the prosecution's effort to impeach McInnis' credibility by presentation to the jury of the fact of this prior arson conviction.

 What happened is this. On the morning of trial, July 16, 1986, McInnis filed a motion in limine requesting that the Court not allow cross-examination of him about his arson conviction. The Circuit Court reserved ruling on the motion, preferring to first hear evidence at trial. McInnis took the stand. At the conclusion of the defense's direct examination, the prosecution offered the arson conviction and

 the following discussion took place at the bench:


 The prior conviction was a crime of violence.


 Well, tell me something about the charge. There are several degrees of arson. What was he charged with?


 First degree where he got twenty years - twenty initially and eighteen years and six months suspended and one year and six months to serve.


 Well, since it's first degree arson, I find it does have probative value that would outweigh the detrimental factor to the Defendant, so you may bring it out.

 The matter is governed by Rule 609(a), Miss.R.Ev., which provides:

 (a) General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public ...

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