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Washington v. State

August 18, 1998

BOBBY WASHINGTON, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE



EN Banc

The opinion of the court was delivered by: Southwick, J., For The Court:

Washington v. State, 96-KA-01292-COA

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

DATE OF JUDGMENT: NOVEMBER 14, 1996

TRIAL JUDGE: HONONRABLE L. BRELAND HILBURN, JR.

COURT FROM WHICH APPEALED: CIRCUIT COURT OF HINDS COUNTY

NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION:, APPELLANT FOUND GUILTY OF AGGRAVATED ASSAULT ON A POLICE OFFICER AND SENTENCED TO FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS.

DISPOSITION REVERSED AND REMANDED

Bobby Washington was convicted of aggravated assault upon a law enforcement officer by a jury in the Circuit Court of Hinds County. Washington challenges his conviction on these grounds: (1) the State failed to establish the sufficiency of the evidence; (2) the trial court erred in allowing the State to cross-examine him concerning a prior assault charge; and (3) the court committed error in admitting the testimony of a rebuttal witness relating to events leading up to and surrounding the trial. We find merit in the third assignment of error and therefore reverse.

STATEMENT OF FACTS

On November 24, 1995, Bobby Washington was incarcerated in the Hinds County Detention Center. Shortly before 9:00 that same evening, Deputy Daryl Gates began the process of "locking down" his unit at the detention center. Deputy Gates ordered all of the inmates in the common area of the unit to return to their cells.

The parties involved strongly disagree over the events that transpired following Gates's order.

According to Gates, all of the inmates complied with his request except for Washington, who was using a phone located in the common area. Gates directed Washington to hang up the phone and return to his cell. When Washington refused, Gates proceeded upstairs to ensure that the remaining inmates were in the cells and to give Washington time to get off the phone. Upon returning to the common area, Gates observed that Washington was still conversing on the phone. He again told Washington to return to his cell, but Washington refused to comply. Gates then verified that the downstairs area was secure. He returned only to find that Washington was still on the phone. Gates ordered Washington to return to his cell on two more occasions. After Washington continued to refuse, Gates informed him that he would have to call for assistance. Washington responded, "Well [profanity], you better go get them then."

Deputy Gates then called Deputy Cleveland for assistance. Cleveland arrived and ordered Washington to hang up the phone. Gates then depressed the receiver button and the two deputies began to escort Washington to his cell. As Washington slowly walked toward the stairs, he suddenly turned and struck Gates. Cleveland attempted to restrain Washington by pushing him against a wall. Washington continued to strike Gates in the face with his closed fist. Two deputies nearby observed the altercation and quickly entered the unit to assist Gates and Cleveland. Following a brief struggle, the four deputies subdued Washington and he was escorted to his cell. This version of events was corroborated by Cleveland and another deputy during the trial.

Conversely, Washington testified that Deputy Gates gave him permission to use the phone. When Gates instructed Washington to hang up the phone, he asserted that he, in fact, complied with Gates's request and proceeded to his cell. However, Gates then called Cleveland and stopped Washington from returning to his cell. According to Washington, Gates stated, "Son, you don't move fast enough, now we are going to teach you." Washington then testified that the deputies escorted him into the television room which was outside of the view of his fellow inmates. He stated that the two deputies were joined by eleven other officers. After the officers attacked Washington for some time, they allowed him to return to his cell. Inside of the cell, the officers continued to accost Washington. He was then escorted to another area of the detention center where he was attacked once more.

As a result of the altercation, Gates received several lacerations to his face. Washington suffered from a ruptured ear drum and numerous abrasions with some swelling. However, during the trial, the State asserted that Washington's injuries were the result of a previous assault with his brother.

Washington was subsequently indicted and convicted of aggravated assault upon a law enforcement officer.

Discussion

I. SUFFICIENCY OF THE EVIDENCE

Washington claims that the trial court erred in denying his motion for a judgment notwithstanding the verdict. He alleges that the State failed to establish an essential element of the crime of aggravated assault upon a law enforcement officer, namely, the intent to cause serious bodily injury. Washington asserts that Deputy Gates's minor injuries were not sufficient to sustain a conviction for aggravated assault. Washington asserts that an aggravated assault did occur on November 24, but that he, rather than Gates, was the victim of such an attack.

That statute provides that a "person is guilty of aggravated assault if he... 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...." Miss. Code Ann. § 97-3-7 (2)(b) (Rev. 1994). The indictment also stated that Washington attempted to cause serious bodily injury to Gates by "hitting and attempting to hit the deputy in the face causing a deep scratch under his right eye...."

To support a conviction for aggravated assault, the State must present sufficient evidence to establish each element of the crime. This Court's standard of review based on a challenge to the sufficiency of the evidence is well-settled. In reviewing the trial court's denial of a motion for a judgment notwithstanding the verdict, we review the sufficiency of the evidence in the light most favorable to the State. McClain v. State , 625 So. 2d 774, 778 (Miss. 1993). All credible evidence which is consistent with Washington's guilt must ...


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