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Finley v. State

December 17, 1998

AARON FINLEY, A/K/A AARON DEWAYNE FINLEY
v.
STATE OF MISSISSIPPI



Before Pittman, P.j., Roberts And Smith, JJ.

The opinion of the court was delivered by: Roberts, Justice,

DATE OF JUDGMENT: 12/09/96

TRIAL JUDGE: HON. LARRY EUGENE ROBERTS

COURT FROM WHICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: AFFIRMED - 12/17/98

STATEMENT OF THE CASE

¶1. Aaron Finley (hereinafter "Finley") was indicted on April 12, 1996, by the grand jury of Lauderdale County for the November 16, 1994, murder of George Monsour, during the commission of an armed robbery in violation of Miss. Code Ann. § 97-3-19(2)(e) (Supp. 1988). A jury was impaneled and Finley was put to trial on the indictment on November 25, 1996, and December 2, 1996. Judge Larry Eugene Roberts presided at the jury trial where Finley was found guilty of capital murder. Thereafter, the jury heard evidence and arguments in aggravation and mitigation of the sentence and the jury returned a verdict of life imprisonment without the possibility of early release.

¶2. A Motion for a New Trial or JNOV was filed on December 16, 1996. The Motion was overruled on February 5, 1997. The Notice of Appeal was filed on February 5, 1997, asserting the following issues:

I. WHETHER THE TRIAL COURT MADE REVERSIBLE ERROR IN REFUSING FINLEY'S REQUESTED JURY INSTRUCTION CONCERNING PRIOR INCONSISTENT STATEMENTS?

II. WHETHER THE TRIAL COURT ERRED IN ALLOWING A WITNESS FOR THE PROSECUTION TO REMAIN IN THE COURTROOM DURING TRIAL PROCEEDINGS?

III. WHETHER THE TRIAL COURT ERRED IN ITS RULINGS ON THE LEGAL SUFFICIENCY OF THE EVIDENCE OR THE WEIGHT OF THE EVIDENCE?

IV. WHETHER THE TRIAL COURT ERRED IN NOT GRANTING A MISTRIAL WHEN ONE-THIRD OF THE DEFENSE TEAM WAS INCAPACITATED, THEREBY CREATING A VOID IN THE DEFENSE STRATEGY AND INEFFECTIVE ASSISTANCE OF COUNSEL?

V. WHETHER THE TRIAL COURT ERRED IN ALLOWING EVIDENCE OF BAD ACTS BEYOND THE ACTUAL CONVICTION TO BE ADMITTED?

VI. WHETHER THE TRIAL COURT ERRED IN OVERRULING BATSON CHALLENGES?

STATEMENT OF THE FACTS

¶3. On November 16, 1994, Willie Davis went to the home of George Monsour, the victim, and pretended to be interested in purchasing Monsour's car, an antique Chevrolet Impala. Davis agreed to purchase the car for $1,800.00 and he left to supposedly get the money. He returned to the Monsour home and Mr. Monsour went with Davis for a test drive. They left the Monsour home between 11:00 and 12:00. Mrs. Monsour never saw her husband again.

¶4. Monsour's body was found in Warren Lake in Lauderdale County in the early hours of November 17, 1994. Willie Davis confessed to the crime and led the police to the body. At the crime scene, the police found many personal items of Monsour's scattered around the site of the murder. The police also found the Chevrolet Impala on a vacant lot. ¶5. At Finley's trial, Rita Crane, a sister of one of the investigating officers, testified that she saw the Impala with Monsour and three black males on Interstate 20 on November 16, 1994, around noon. She identified Davis as the driver of the vehicle and Finley as one of the passengers in the vehicle. She further testified that she knew Monsour but did not realize at the time that he was in the vehicle.

¶6. Davis testified that he and Finley drove Monsour to Warren Lake. He further testified that while they were driving down the interstate, he and Finley stopped to switch who was driving the car. It was at this time, while they were outside of the car and out of Monsour's hearing range, that they decided to rob Monsour. He stated that Finley parked the car at Hillcrest and eventually forced Monsour by gunpoint down to Warren Lake. Davis testified that it was at this point that Finley beat, kicked and eventually drowned Monsour. Davis stated that he took Mr. Monsour's wallet while Finley was holding Monsour's head under the water. Both Davis and Finley took money from Monsour. After the crime was completed, Davis and Finley drove back to Meridian.

¶7. Davis and Finley ended up together again that evening . Many people were in and out of the vehicle while Davis and Finley drove around Meridian. Around 12:00 a.m. Davis and Finley picked up Tammy Seals and Wakisha Lewis, their girlfriends, and headed over to R.B. Smith's house. It was at this time that Davis and Finley parked the vehicle because they were told that the police were looking for it. They left Smith's house and traveled by taxi to a motel with their girlfriends where they all spent the night. Both room charges were paid with cash taken from Monsour. On the morning of November 18, two days after the crime was committed, Finley went to the Meridian Police Department to turn himself in. *fn1

DISCUSSION OF THE ISSUES

I. WHETHER THE TRIAL COURT MADE REVERSIBLE ERROR IN REFUSING FINLEY'S REQUESTED JURY INSTRUCTION CONCERNING PRIOR INCONSISTENT STATEMENTS?

¶8. Finley asserts in two sub-issues that the trial court erred in refusing jury instructions D-3 and D-2. However, as the analysis for these two issues are similar, they will be considered together.

¶9. The State argues that because Finley failed to object to the denial of jury instructions D-3 and D-2, this issue is procedurally barred from review by this Court. The State finds its authority for this proposition in Nicholson ex rel. Gollott v. State, 672 So. 2d 744, 752 (Miss. 1996). However, this Court recently addressed this issue in Duplantis v. State, 708 So. 2d 1327 (Miss. 1998) where we stated that "[a]lthough in dicta we indicated that we could impose a procedural bar, we did not intend to overrule existing caselaw and therefore require litigants to object to the denial of instructions that they themselves have offered." Duplantis v. State, 708 So. 2d 1327, 1339 (Miss. 1998). Prior precedent of this Court makes it clear that an issue involving the denial of a requested jury instruction:

Duplantis, 708 So. 2d at 1340 (quoting Carmichael v. Agur Realty Co., 574 So. 2d 603, 613 (Miss. 1990)). As such, this Court agrees with the holding of Duplantis and finds that Finley is not procedurally barred from review of this assignment. He only needed to tender his suggested jury instruction in order to preserve review. Thus, Finley's first issue will be discussed on the merits. ¶10. Finley first argues that jury instruction D-3 should have been granted by the trial court, and its failure to do so was reversible error. The proposed instruction at issue which was denied by the trial court was basically an impeachment instruction. It reads as follows: Jury Instruction No. 3

The testimony of a witness or witnesses may be discredited or impeached by showing that on a prior occasion they have made a statement or testified in a manner which is inconsistent with or contradictory to their testimony in this case. In order to have this effect, the inconsistent or contradictory prior statement or testimony must involve a matter which is material to the issues in this case. The prior statement or testimony of the witness or witnesses can be considered by you only for the purpose of determining the weight or believability that you give to the testimony of the witness or witnesses that made them. You may not consider the prior statement or testimony as proving the guilt or innocence of the defendant.

Finley argues that Rita Crane, witness for the prosecution, was a key witness and that her testimony at his trial contained new facts never revealed before. Furthermore, he asserts that her testimony was inconsistent and contradictory to statements she had made before and during trial. As such, Finley believes that an impeachment instruction was warranted and the trial court erred in refusing the proposed instruction. He supports this argument with the case of Ferrill v. State, 643 So. 2d 501 (Miss. 1994).

¶11. In Ferrill v. State, the Court held that the lower court erred in refusing to grant a proposed jury instruction. That instruction contained language concerning the credibility of impeached witnesses which is nearly identical to the language of proposed instruction D-3 in the case sub judice. In Ferrill, the defense characterized prior statements of a prosecution witness as inconsistent with the trial testimony. Accordingly, on appeal, the defendant/appellant argued that the trial Judge should have submitted an impeachment instruction to the jury which he proffered at trial. That proposed instruction stated: Jury Instruction A-7

The Court instructs the jury that the testimony of a witness may be discredited or impeached by showing that on a prior occasion they have made a statement which is inconsistant [sic] or contradictory statement must involve a matter which is material to the issues in this case. A prior statement of the witness or witnesses can be considered by you only for the purpose of determining the weight or believeability [sic] that you give to the testimony of the witness or witnesses that made them. You may not consider the prior statements as proving guilt or innocence of the accused.

Ferrill, 643 So. 2d at 504-05.

ΒΆ12. As is readily apparent, there is little difference between the language of the proposed instruction in the case sub judice, and the language of the instruction which this Court held as error for the lower court to refuse to submit to the jury in Ferrill. However, the facts of the case sub judice do not warrant submission of the impeachment instruction to the jury. There was no prior inconsistent statement read to Crane while she was on the witness stand which was directly contradictory to her testimony at Finley's trial. In fact, the testimony that the defense harped on as being a prior inconsistent statement was Crane's testimony at the trial of Davis. However, it is quite evident from the record that Crane was not asked any specific questions about Finley as he was not the one on trial. Thus, the new testimony brought up at Finley's trial ...


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