DATE OF JUDGMENT: 04/18/2011.
MONTGOMERY COUNTY CIRCUIT COURT, HON. C. E. MORGAN, III.,
FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: HUNTER NOLAN AIKENS, GEORGE T. HOLMES.
FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LISA L. BLOUNT, SCOTT STUART.
DICKINSON, PRESIDING JUSTICE. WALLER, C.J., KITCHENS, CHANDLER AND KING, JJ., CONCUR. COLEMAN, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J., LAMAR AND PIERCE, JJ.
ON WRIT OF CERTIORARI
DICKINSON, PRESIDING JUSTICE:
¶1. Because this case turned entirely on whether the jury believed the testimony of the defendant's witnesses, the damage caused by any inappropriate evidence offered to impeach the credibility of those witnesses was heightened. All agree that the trial judge clearly erred by allowing the State to impeachment a key defense witness with a petty-larceny conviction. We therefore must reverse and remand for a new trial.
FACTS AND PROCEDURAL HISTORY
¶2. Two Winona, Mississippi, police officers obtained an arrest warrant for Joel Baskin on an aggravated-assault charge. The officers -- Michael Gross and Tommy Bibbs -- arrested Baskin, searched him, and -- according to their trial testimony -- found cocaine, which led to an indictment for possession of cocaine.
¶3. Prior to trial, defense counsel moved to suppress the results of that search " to the extent that it was done without sufficient probable cause." The trial court held a suppression hearing. The State presented Baskin's arrest warrant without objection and called Officer Gross to testify as to the circumstances surrounding the search. During the State's direct examination, Officer Gross testified that he had obtained and executed the arrest warrant, had conducted a search incident to arrest, and had located the cocaine in Baskin's pocket. On cross-examination, Officer Gross explained that he had completed an affidavit supporting issuance of the arrest warrant based on an ongoing investigation.
¶4. Neither the State nor defense counsel asked Officer Gross to explain the facts in that affidavit or any supporting probable cause for Baskin's arrest. The affidavit was never presented to the court, and the warrant itself is devoid of any reference to the factual basis for its issuance. At the end of the suppression hearing, defense counsel declined to make an argument, and the trial judge ruled that the results of Baskin's search would be admitted.
¶5. The case proceeded to trial. Both arresting officers testified that, when they searched Baskin, they discovered what was later determined to be crack cocaine. Defense counsel called Darskeika Wallace and Michael Forrest, who testified that they were present at the time of the arrest, and that the arresting officers had found nothing in Baskin's pocket when they had searched his person.
¶6. Prior to calling defense witnesses, defense counsel moved to exclude prior convictions that the State intended to use as impeachment evidence. The trial judge permitted the State to use Wallace's misdemeanor petty-larceny and embezzlement convictions. During cross- examination, the State asked Wallace if she had ever been convicted of embezzlement and petty larceny. Defense counsel objected, stating " that's improper the way he posed the question. It's a misdemeanor conviction." The State rephrased its question to say " you have been convicted of misdemeanor embezzlement and petty larceny, which is also a misdemeanor; is that correct?" Wallace answered yes without further objection from defense counsel.
¶7. The jury convicted Baskin of possession of cocaine. The trial court sentenced Baskin to life in prison without the possibility
of parole as a habitual offender. Baskin appealed, and the case was assigned to the Mississippi Court of Appeals.
¶8. Baskin argued to the Court of Appeals that the trial court had erred by failing to suppress the results of Baskin's search executed pursuant to an arrest warrant issued without a finding of probable cause. Baskin also argued that the trial court had erred by failing to exclude Wallace's petty-larceny conviction pursuant to Mississippi Rule of Evidence 609. The Court of Appeals found both issues procedurally barred because Baskin had failed to challenge the sufficiency of his arrest warrant during the suppression hearing, and because his counsel had failed to lodge a contemporaneous objection to the State's use of Wallace's petty-larceny conviction. Baskin filed his petition for a writ of certiorari, which we granted.
The Court of Appeals correctly found that Baskin was procedurally barred from claiming the arrest warrant was issued ...