HARVILL PAYNE RICHARDSON a/k/a HARVILL RICHARDSON a/k/a HARVILL RICHARDSON, SR. a/k/a HARVILL P. RICHARDSON
STATE OF MISSISSIPPI
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 05/26/2011. TRIAL JUDGE: HON. JOHN C. GARGIULO. TRIAL COURT ATTORNEYS: MICHAEL W. CROSBY, THOMAS PAYNE.
FOR APPELLANT: MICHAEL W. CROSBY.
FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BRAD ALAN SMITH, JOHN R. HENRY, JR.
DICKINSON, PRESIDING JUSTICE. RANDOLPH, P.J., LAMAR, KITCHENS, KING AND COLEMAN, JJ., CONCUR. PIERCE, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., AND CHANDLER, J.
NATURE OF THE CASE: CRIMINAL - FELONY
¶1. In this murder prosecution, the trial judge ruled in limine that the defendant would not be allowed to support his self-defense claim with evidence of the victim's prior bad acts, including a violent criminal history. Because the defendant's knowledge of this evidence would be highly probative of the reasonableness of his conduct and fear of the victim, we reverse and remand for a new trial.
BACKGROUND FACTS AND PROCEEDINGS
¶2. Because Rudy Quilon was homeless following his release from prison, Harvill Richardson permitted Quilon to move into his home while he got back on his feet. Over the next five months, Quilon became increasingly unwelcome as he bragged about having been convicted for murder and armed robbery, his previous experiences as a gang member, and killing a " snitch" in prison. He warned that he could harm those who upset him.
¶3. On numerous occasions, Richardson attempted to persuade Quilon to leave the home, but Quilon claimed that he could not leave because he had no transportation or place to go. This prompted Richardson to offer Quilon a car and money for rent, but Quilon refused and repeatedly used threats to coerce Richardson and to remain in the home.
¶4. This situation culminated when Quilon, who had begun watching pornography on Richardson's computer, stated that he wanted to have sex with Richardson's wife. Richardson ordered Quilon to gather his belongings and leave. Quilon refused and walked out to a shed behind the home where Richard kept axes and other tools that could be used as weapons.
Richardson then armed himself with a pistol. As Quilon returned from the shed, he approached Richardson in a threatening manner, with one arm concealed behind his back. Richardson attempted to stop him by warning him not to come any closer, and by firing a warning shot into the ground, but Quilon kept coming toward him, so Richardson shot Quilon in the stomach.
¶5. Richardson called 911 and informed the dispatcher that he had shot a man named Rudy Quilon in his back yard. Richardson stated that Quilon had come at him in a threatening manner and " kept coming towards me," and that " I told him don't come towards me any more." He told the dispatcher that he had fired one warning shot at the ground, which Quilon ignored, and that Quilon had said " don't do that, I'll take care of you." Expert testimony established that Richardson shot Quilon at close range, " somewhere in the range of 30 inches from the end of the barrel to the man's skin where the bullet went in."
¶6. Despite Richardson's version of the facts and claim of self-defense, the State had him indicted for murder and then filed a motion in limine, seeking to prevent him from introducing evidence of Quilon's prior bad acts. The State argued that the convictions would be improper impeachment evidence under Mississippi Rule of Evidence 609 because they did not involve an element of dishonesty and were more than ten years old, and that the probative value of the convictions was greatly outweighed by the risk of prejudice. And during the pretrial hearing on the State's motion, the prosecutor moved ore tenus for the trial court to redact from the 911 transcript a reference to Quilon being a felon.
¶7. Richardson's counsel responded by making it clear that he did not intend to use Quilon's prior bad acts, including his convictions, for impeachment purposes. Instead, he pointed out that the evidence of Richardson's knowledge of Quilon's violent criminal history was critical to his defense and was necessary for the jury to assess the reasonableness of his actions on the night of the shooting.
¶8. Also, Richardson's counsel played the recording of the 911 call for the trial judge and then argued:
[A]bout midway through the transcript, she [the 911 operator] says did he have a weapon, and he says what? She said, you just said you shot a man, did he have a weapon? And he was trying to explain that he was coming at him in a threatening way, and that he said don't do that, I will take care of you. And by that he means, and at that point that goes back to his criminal felony convict mentality and the way they act. " I'll take care of it," means like when he was a convict and he would brag about it. He would say things like. They wanted me to kill this person and take a hit out and I took care of it. I'll take care of this. Taking care of it wasn't just a kind expression of intent to do something innocuous [sic]. It was a menacing threatening thing coming out of his mouth. When he took care of something, it had a lot more emphasis and intent. It was a very loaded statement that required explanation.
¶9. Instead of responding to Richardson's argument, the State returned to its Rule 609 argument concerning impeachment, after which the trial judge granted the State's motion in limine without reservation, stating " with regard to the state's motion in limine to exclude the victim's
priors, which also included, ore tenus, a portion of the 911 tape . . . . [t]hat motion is sustained or granted."
¶10. Defense counsel then voiced concern as to whether the trial judge's ruling merely prohibited reference to Quilon's convictions or also precluded the defendant's testimony that Quilon had bragged about his crimes to instill fear in the defendant, which affected his state of mind on the night of the killing. The trial judge noted the necessity of showing an overt act before the victim's propensity became relevant. Defense counsel responded that the trial judge had heard sufficient evidence of an overt act.
¶11. The trial judge did not address or assess Richardson's argument. Instead he referred back to Rule 601's impeachment standard, stating that Quilon's convictions were too remote in time to be relevant and that their probative value was outweighed by their prejudicial impact. Defense counsel then proffered Richardson's testimony, which included his account of how Quilon had bragged about his violent past to instill fear in Richardson as a means of manipulation. Richardson also explained the reasons why he had sought to remove Quilon from his home on the night of the killing, and how Quilon had come out of the storage shed with his hand concealed behind his back, advancing toward him and refusing to stop, even after Richardson verbally had warned him and had fired a warning shot into the ground.
¶12. After hearing Richardson's proffer, the trial judge stated that his original ruling would stand. Richardson ...