DATE OF JUDGMENT: 08/22/2008. TRIAL JUDGE: HON. ANDREW K. HOWORTH. COURT FROM WHICH APPEALED: TIPPAH COUNTY CIRCUIT COURT. TRIAL COURT DISPOSITION: CONVICTED OF MURDER AND SENTENCED AS A HABITUAL OFFENDER TO LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR EARLY RELEASE.
The opinion of the court was delivered by: Griffis, J.
NATURE OF THE CASE: CRIMINAL -- FELONY
DISPOSITION: AFFIRMED: 12/01/2009
BEFORE LEE, P.J., GRIFFIS AND ROBERTS, JJ.
¶1. At a prior trial Charles Wayne Ross was convicted of capital murder and sentenced to death in the Circuit Court of Tippah County. On direct appeal, the supreme court reversed the conviction finding reversible error in both the guilt and sentencing phases of the trial. Ross v. State, 954 So. 2d 968 (Miss. 2007) ("Ross I").
¶2. Ross was re-tried and found guilty of murder. He was sentenced, as a habitual offender, to life in the custody of the Mississippi Department of Corrections ("MDOC") without eligibility for parole or early release. Ross appeals and claims that: (1) the trial court denied him the right to confront the witnesses against him when it limited cross-examination of these witnesses; (2) he was prejudiced by testimony regarding his bad character and a prior conviction; (3) the verdict is not supported by the weight of the evidence; (4) the cumulative effect of the trial court's errors on the admissibility of evidence rendered his trial unfair; (5) his expert witness was erroneously excluded; (6) the trial court erred when it refused to suppress evidence gathered from his car in a warrantless automobile search; and (7) the trial court erred when it refused jury instruction D-6. We find no error and affirm.
¶3. On Friday June 28, 1996, Hershall Ray Yancey was shot four times at his home in rural Tippah County. His mother, Marie Yancey ("Marie"), discovered his body the following morning after he failed to show up for breakfast with her at her home across the street. His television, VCR, and wallet were missing.
1. Dennis McCollum's Testimony
¶4. Yancey's truck was not running, so co-worker Dennis McCollum gave him a ride to work at WACO Construction ("WACO") and home again. On the way home from work, Yancey had attempted to cash his check at local store, but the store did not have enough money to cash the check. The co-worker testified that he dropped Yancey off at home between 7:05 p.m. and 7:10 p.m. The co-worker had loaned Yancey $9 on Thursday, and they stopped to get something to eat on Thursday, the day before the shooting.
¶5. McCollum testified that Ross had also worked for WACO and that WACO always paid on Fridays. McCollum, Ross, and Yancey had all met before at a WACO job site.
2. Marie Yancey's Testimony
¶6. Marie, the deceased's mother, was ninety-three years old at the time of the second trial and was unable to testify, but her testimony from the first trial was read to the jury. A transcript of her testimony was not included in the record before this Court. However, the supreme court's opinion was included in the record, and Marie's testimony was quoted therein.
¶7. Marie testified that she returned home Friday night at approximately 9:10 p.m., and shortly thereafter, she heard a loud vehicle passing her home. At 9:28 p.m., she heard what she believed to be the same vehicle start up at Yancey's home, and she saw the vehicle drive away toward Dumas, Mississippi.
3. Linda Grey's Testimony
¶8. Yancey's neighbor, Linda Grey, testified that at approximately 9:45 p.m. on the night Yancey was killed, she heard a "loud car [go] up and down the road," and it turned around in front of her house two or three times. Grey was scared and made her children hide in the bathroom. She went outside to investigate and hid behind a column on her home. She testified that the car's passenger-side taillight was broken, and the car was a dark color. While in front of Grey's home, the driver exited the car and looked under the hood. She testified that the driver appeared to be a very small man. The car traveled toward Yancey's home when it left her home. Grey could hear the car idling down the road, but it did not sound like it was moving.
4. Carrie Beatty's Testimony
¶9. Grey's daughter, Carrie Beatty, testified that she arrived at her mother's home at approximately 10:00 p.m., and she saw an early 1970s model, mint-green Chevrolet truck at the end of Yancey's driveway. Although she traveled by Yancey's house two or three times a week, she had never seen this truck there before. She testified that when she arrived at Grey's home, Grey was hiding behind a column and was nervous and upset. Grey told her daughter about the car that had been turning around in front of her home.
5. Sheriff Gary Mauney's Testimony
¶10. Gary Mauney, the Sheriff of Tippah County at the time of the murder, testified that he heard Ross's name mentioned by people outside Yancey's home when he was working the scene on the morning that Yancey's body was discovered. Following up on this information, investigators questioned Margaret Payne ("Payne"), Ross's half-sister, and her boyfriend, Tommy Hale ("Hale"). At that time, Payne and Hale were not forthcoming with information about Yancey's murder.
6. Margaret Payne's testimony
¶11. Ross had spent the night at Hale's house that Hale shared with his son, Margaret Payne, and Payne's fifteen-year-old son -- Jerry Sanders ("Sanders"). Payne testified that Ross was at Hale's house the day Yancey was murdered. Ross arrived at approximately 4:30 p.m., left between 8:00 p.m. and 8:30 p.m., and returned between 11:00 p.m. and 11:30 p.m. He was driving his loud, black Mercury Cougar.
¶12. Payne testified that when Ross returned for the night, he was drunk and had a wallet, television, and VCR with him. The power cord was severed on the television. He told Payne that he wanted to talk to her. On direct-examination, the State asked Payne the following:
Q: Okay. He wanted to talk to you. What did y'all talk about?
A: Well, he showed me a wallet.
A: And he started telling that he killed a man.
Q: What specifically did he tell you?
A: He told me he killed the son of a bitch.
A: That, you know, he robbed him.
Q: Did he indicate anything about what he had stolen or anything?
A: He had his wallet, and he said that he shot the son of a bitch, and all he had was $5 in his wallet.
Payne testified that she saw an identification card and $5 in the wallet, and that Ross burned the wallet on a grill later that night. She said she was sure the name on the identification card was Ray Yancey. Payne and Ross went outside, and Ross got a gun out from under a seat in his car and threw it down a hill behind the house.
¶13. After all of this, Payne went inside the home and told her nephew, Donald Ross, Jr. ("Donald"), who was spending the night with Payne's son, Sanders, what Ross had told her. She also told Hale. The information prompted Hale to look for his.22-caliber pistol in his sock drawer, but the gun was missing. Hale and Payne talked for a while about what Ross had told her. Hale eventually went to sleep, but Payne stayed up all night because she was scared. Ross slept on the couch at Hale's house. The next morning, Payne, Hale, and Sanders went to visit Ross's and Payne's mother, Nellie Bracken ("Bracken"). Payne testified that she told Bracken everything that Ross had told her, and Bracken believed her and cried.
7. Tommy Hale's Testimony
¶14. Hale's testimony was consistent with Payne's testimony. Hale testified that Ross was at Hale's home when he returned from work Friday afternoon, Ross left at approximately 8:00 p.m in his Mercury Cougar, and he returned to Hale's home at approximately 10:00 p.m. with a television and VCR. Ross told Hale that he did not need to know where the television and VCR came from. Hale also said that Ross looked like he had been drinking. Hale testified that Sanders and Donald Ross, Jr., returned home for the evening about the same time that Ross did.
8. Jerry Sanders's Testimony
¶15. Donald and Sanders had been riding around that night with their girlfriends in Donald's Bronco II. Sanders testified that he and Donald returned home around midnight and there was a television -- with a broken cord -- and a VCR sitting in the middle of the living room. Ross was already at the home and seemed like he had been drinking.
9. Evidence and the Investigation
¶16. There were no signs of forced entry or a struggle. Investigators recovered a 1996 Olympics Budweiser beer can from Yancey's coffee table and a severed electrical cord and pieces of a taillight from his driveway.
¶17. Donald told his mother what he knew about Yancey's murder when he returned to his home after spending the night with Sanders. His mother took him to the police station so he could tell them what he knew.
¶18. Payne and Hale were not forthcoming the first time they were interviewed by investigators. However, the investigators returned to the Hale's home after speaking with Donald and Payne. Hale told the investigators what Ross had told them, pointed out where Ross threw the gun down the hill, and showed them the television and VCR.
¶19. Investigators found a.22-caliber pistol in a ditch behind Hale's home. There were five empty shell casings in the gun and one live round. Investigators also recovered the television and VCR from Hale's home. The State's ballistic expert said this gun had characteristics that were consistent with the bullets recovered from Yancey's body.
¶20. Ross's Mercury Cougar was found at Donald Ross, Sr.'s ("Donald, Sr.") home. The car was impounded and an inventory search was conducted without a warrant. Investigators found seven empty Budweiser beer cans and one unopened Budweiser Olympic beer can.
1. Did the trial court deny Ross the right to confront the witnesses against him when it limited cross-examination of the State's witnesses?
¶21. Ross argues that the trial court committed reversible error when it denied him the opportunity to broadly confront the State's witnesses during cross-examination.
¶22. "The scope of cross-examination, although ordinarily broad, is within the sound judicial discretion of the trial court and such court possesses an inherent power to limit such examination to relevant factual issues." Dozier v. State, 257 So. 2d 857, 859 (Miss. 1972).
¶23. Ross argues that under Mississippi Rule of Evidence 609, the trial court should have allowed him to cross-examine Sanders with Sanders's prior conviction for attempted burglary. The State argues that any error was harmless.
¶24. Sanders pleaded guilty to attempted burglary of a pharmacy in 2006. He had developed an addiction to prescription drugs after oral surgery and attempted to burglarize a pharmacy in order to satisfy his addiction. Ross asked to cross-examine Sanders about this conviction. The trial court ruled that the remoteness of the conviction to the murder made the conviction inflammatory, prejudicial, and not probative of Sanders's honesty. The trial court denied Ross the opportunity to cross-examine Sanders on the conviction, but it allowed him to question Sanders about his drug addiction and use.
¶25. Rule 609 states, in part, that:
(a) General Rule. For the purpose of attacking the character for truthfulness of a witness,
(1) evidence that (A) a nonparty witness has been convicted of a crime shall be admitted subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and (B) a party has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the party; and
(2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of punishment.
M.R.E. 609. The comment to Rule 609 explains:
Rule 609(a)(1) was amended in 2002 to incorporate the rationale of decisions by the Mississippi Supreme Court which recognized the difference in the highly prejudicial effect of showing the convictions when the witness is the accused and the little prejudicial effect from such impeachment of other witnesses. It was reasoned that when the impeachment by convictions is of a witness other than the accused in a criminal case there is little or no unfair prejudice which can be caused to a party. Thus, the probative value on the credibility of the witness will almost always outweigh any prejudice.
¶26. The State admits in its brief that under the plain language of Rule 609, Sanders's conviction was admissible for impeachment purposes. However, the State argues that the error was harmless.
¶27. We agree. The trial court did not hinder Ross's ability to question Sanders about his drug use or the effect that the use might have on his testimony. In Rogers v. State, 796 So. 2d 1022, 1026 (¶10) (Miss. 2001), the supreme court held that "[a]lthough there may have been error in not allowing [the defendant] to introduce evidence of Johnson's prior convictions for impeachment, any such error is harmless since [the defendant] was able to use the testimony of Johnson and other witnesses to show Johnson's involvement with and use of drugs." In Hobson v. State, 730 So. 2d 20, 26 (¶19) (Miss. 1998), the supreme court found that Hobson had attacked the witness on his credibility as a drug addict; therefore, the "trial court's refusal to admit [the witness's] prior convictions amounted to harmless error."
¶28. In his reply brief, Ross argues that Rogers and Hobson are distinguishable because in each case, the defense was afforded the opportunity to "extensively question" the witness on the extent and effect of his drug use. Ross's counsel asked the trial court if he was allowed to question Sanders about his drug use and how it has affected his memory. The trial court stated that would be allowable. On cross-examination, Ross's counsel asked Sanders two questions about his drug use. There was no objection from the State or restriction on the questioning by the trial court. Ross cannot complain that he was not afforded the opportunity to extensively question Sanders on the extent and effect of his drug use when his counsel simply failed to take full advantage of this opportunity. On redirect, the State questioned Sanders about the type of drugs he used, when he used drugs, how he developed his addiction, and any effect his drug use had on his ability to testify. The jury was well aware of Sanders's drug use.
¶29. Furthermore, Sanders testified at Ross's first trial in 1997; at the time, Sanders did not have a drug problem or any felony convictions. If Sanders's testimony at this trial differed from Ross's first trial, Ross had the opportunity to impeach him with this prior testimony. Accordingly, we find that any error is harmless.
¶30. Ross argues that under Rule 609, he should have been allowed to cross-examine Sheriff Mauney with his prior drug conviction from the early 1970s. The State responds that Sheriff Mauney's conviction was properly excluded because: (1) it was significantly more than ten years old and not proven to be probative, and (2) Ross did not provide the State with written notice of his intent to use this conviction.
Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by the specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old as calculated herein is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
¶32. Although the exact date of his conviction is not given, Sheriff Mauney's conviction was over thirty years old at the time of trial; accordingly, his conviction was subject to the time limits of Rule 609(b). Ross failed to meet both requirements of Rule 609(b). First, he did not provide the State with advance, written notice of his intent to introduce Sheriff Mauney's conviction. Next, he did not meet the threshold burden of showing the probative value of Sheriff Mauney's prior conviction. McGee v. State, 569 So. 2d 1191, 1195 (Miss. 1990). Ross's counsel's only argument for the introduction of the conviction was that "[i]t goes to Mr. Mauney's credibility in this case." If the party seeking to use the "antiquated conviction for impeachment purposes [does not] first demonstrate the probative value of the conviction by showing how the conviction suggests the witness is less than credible," then "a trial court's ruling to exclude evidence of a stale conviction will be upheld." Vickers v. State, 994 So. 2d 200, 217 (¶64) (MisS.Ct. App. 2008) (internal citation omitted) Accordingly, we find that this issue lacks merit.
¶33. Ross argues that under Mississippi Rule of Evidence 609, he should have been allowed to cross-examine Clark with his forty-four-year-old kidnapping conviction. As with Sheriff Mauney, the State responds that Clark's conviction was properly excluded because:
(1) it was significantly more than ten years old and not proven to be probative, and (2) Ross did not provide the State with advance, written notice of his intent to use this conviction.
¶34. We analyze Clark's conviction, just as we did Sheriff Mauney's, under 609(b). Clark's conviction was over forty years old at the time of trial, making it subject to the time limits of Rule 609(b). Again, Ross failed to meet both requirements of Rule 609(b). He provided no advance, written notice of his intent to introduce Clarks's conviction, and he did not show the probative value of Clark's prior conviction. Accordingly, we find that this issue lacks merit.
¶35. Ross argues that under Mississippi Rule of Evidence 609, he should have been allowed to cross-examine Carolyn Whitehead, his girlfriend at the time of the murder, with her prior conviction for burglary. The State responds that Whitehead's conviction was properly excluded because there is insufficient information regarding the conviction, and it was at least ten years old.
¶36. Ross's counsel did not provide the trial court with the date of the conviction or proof of the conviction. However, the prosecutor stated that he had been in the district for twelve years, and he had no knowledge of the conviction. Ross's counsel did not respond to this representation. Accordingly, we proceed as though the conviction was more than twelve years old. As such, the conviction was subject to the time limits of Rule 609(b). Ross did not show the probative value of Whitehead's prior conviction. Furthermore, we note that there is no indication in the record that Ross ...