Before Bridges, C.j., Hinkebein, And King, JJ.
The opinion of the court was delivered by: Bridges, C.j.
DATE OF JUDGMENT: 04/10/97
TRIAL JUDGE: HON. JOHN H. WHITFIELD
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CT I ARMED ROBBERY: CT II ARMED ROBBERY: CT I SENTENCED TO SERVE 40 YRS & 40 YRS IN COUNT II TO RUN CONCURRENT WITH ONE ANOTHER FOR A TOTAL OF 40 YRS IN THE CUSTODY OF THE MDOC;
DISPOSITION: AFFIRMED - 12/18/98
¶1. Cleverland S. McGowan was convicted in the Circuit Court of Harrison County on April 4, 1997, of two counts of armed robbery and was sentenced to a term of forty years on each count running concurrent in the custody of the Mississippi Department of Corrections. Aggrieved, McGowan appeals raising the following issues: 1) that the court committed error in denying the appellant's motion in limine which allowed the State to use two prior convictions for purposes of impeachment; 2) that the court erred in sustaining the State's motion in limine which prevented the use of any evidence relating to the victim having been involved in prior illegal drug activities; 3) that the court erred in denying the appellant's motion for new trial on the basis of newly discovered evidence; and 4) that the appellant was denied his right to a fair trial due to cumulative errors. Finding no error, we affirm.
¶2. Cleverland Sheffield McGowan and William Christopher Smith were indicted and charged with two counts of armed robbery of Lillie Horne and Roger Craft on August 23, 1996. According to testimony, McGowan and Smith went to Craft's music store and robbed Craft and Horne of money and jewelry. McGowan was armed with a gun, and Smith was armed with a knife. McGowan argued that the incident was not a robbery, but an attempt to collect money from drug dealings. Since Smith pled guilty, McGowan received a separate jury trial on April 9-10, 1997. Smith testified on behalf of the State, and McGowan was ultimately convicted of two counts of armed robbery. Since the jury was unable to agree on the sentence, the Judge sentenced McGowan to serve forty years on both counts to run concurrently.
ARGUMENT AND DISCUSSION OF LAW
I. WHETHER THE COURT ERRED IN DENYING THE APPELLANT'S MOTION IN LIMINE AND ADMITTING THE USE OF TWO PRIOR CONVICTIONS INTOEVIDENCE FOR IMPEACHMENT PURPOSES.
¶3. McGowan argues on appeal that the court erred in denying his motion in limine since the court failed to properly weigh the five factors outlined in Peterson v. State, 518 So. 2d 632, 636 (Miss. 1987), before it allowed a 1990 armed robbery conviction and a 1990 purse snatching conviction into evidence. McGowan contends that even though the trial Judge did state on the record that he believed the probative value of the evidence outweighed the prejudicial effect, he failed to additionally state on the record his analysis in weighing the five factors.
¶4. "When a criminal defendant elects to take the witness stand in his own defense he is subject to being impeached under Rule 609, M.R.E., with evidence of prior convictions." Bogard v. State, 624 So. 2d 1313, 1316 (Miss. 1993) (quoting Hawkins v. State, 538 So. 2d 1204, 1206 (Miss. 1989)). Impeachment by evidence of conviction ...