Steve Antonio Anthony v. State of Mississippi ( 2010 )


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  •                     IN THE SUPREME COURT OF MISSISSIPPI
    NO. 2010-CT-01004-SCT
    STEVE ANTONIO ANTHONY
    v.
    STATE OF MISSISSIPPI
    ON WRIT OF CERTIORARI
    DATE OF JUDGMENT:                          06/17/2010
    TRIAL JUDGE:                               HON. LESTER F. WILLIAMSON, JR.
    COURT FROM WHICH APPEALED:                 LAUDERDALE COUNTY CIRCUIT COURT
    ATTORNEY FOR APPELLANT:                    STEVE ANTONIO ANTHONY (PRO SE)
    ATTORNEYS FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
    BY: STEPHANIE BRELAND WOOD
    SCOTT STUART
    DISTRICT ATTORNEY:                         E.J. (BILBO) MITCHELL
    NATURE OF THE CASE:                        CRIMINAL - FELONY
    DISPOSITION:                               REVERSED AND REMANDED - 01/17/2013
    MOTION FOR REHEARING FILED:
    MANDATE ISSUED:
    EN BANC.
    PIERCE, JUSTICE, FOR THE COURT:
    ¶1.    The Lauderdale County Circuit Court convicted Steve Antonio Anthony of the sale
    of cocaine. He appealed his conviction, arguing that: (1) the circuit court erred by excluding
    evidence on cross-examination of the prior felony charges of the State’s confidential
    informant; (2) the circuit court erred in denying two peremptory challenges raised by the
    defense; and (3) the jury’s verdict is against the overwhelming weight of the evidence. The
    Court of Appeals affirmed the conviction. Anthony petitioned for certiorari with this Court,
    raising the same three issues. Finding that the trial court erred by limiting the cross-
    examination of the confidential informant (CI), we reverse Anthony’s conviction and
    sentence and remand this case for a new trial.
    FACTS
    ¶2.    This Court adopts the statement of facts as provided in the Court of Appeals opinion
    as follows:
    On December 4, 2009, Anthony was arrested for selling approximately
    3.06 grams of cocaine to Arnold Brown, a confidential informant. The drug
    sale between Anthony and Brown took place on June 29, 2007.
    Prior to the drug buy, Brown approached Agent Christopher Scott with
    the Meridian Police Department and the East Mississippi Task Force about
    working with the task force as a CI. Brown contacted an individual known as
    “Pee Wee” who had cocaine he was willing to sell. Agent Scott began the
    operation to buy drugs through Brown from Pee Wee based on Brown's
    information. Brown called Pee Wee on the orders of Agent Scott and set up
    a meeting place for the drug buy. Pee Wee agreed to meet Brown on 16th
    Avenue and 16th Street in Meridian, Mississippi. Agent Scott testified that he
    did not record the conversation, but the phone call was made from their
    briefing location. At the trial, Brown testified that the man he knew as Pee
    Wee was Anthony.
    Before the CI went to the drug-buy location, the task force searched
    Brown thoroughly to make sure he did not have any weapons or contraband
    on him. Brown was then issued money from the official task-force fund. The
    department made copies of the serial numbers of each bill used in the buy.
    The task force wired Brown with an audio and video device, and he was wired
    with a transmitter so the surveillance agents could hear Brown during the buy.
    Brown’s vehicle was searched in its entirety to make sure that no drugs,
    contraband, or weapons of any type were present in his vehicle.
    After Brown was thoroughly searched and wired, Brown gave the
    agents the specific route that he was going to take to the buy. Agent Scott
    testified that the agents tried to do a physical surveillance without being too
    close in proximity to the buy in order to ensure that Brown’s cover was not
    blown. Agent Scott further testified that Brown did not make any stops
    between the pre-buy meeting and the buy location. Brown testified that
    Anthony told him he had some “soft,” which is powder cocaine. Brown asked
    2
    Anthony for the price of a gram of cocaine. Anthony told Brown a gram of
    cocaine was $100.
    When Brown and Anthony were at the designated place for the buy,
    Brown testified that Anthony got in Brown’s car in order to make the
    exchange. During the exchange, Anthony got out of the vehicle before the
    close of the buy. Brown then followed Anthony out of the car and approached
    Anthony about buying some pills in order to get Anthony on video. After the
    buy, Brown immediately met with the agents who confiscated the cocaine that
    Brown had bought from Anthony. At the post-buy debriefing, the agents again
    searched Brown and his car. The agents also took Brown’s statement. The
    Mississippi Crime Lab determined that substance sold to Brown was 3.06
    grams of cocaine.
    The jury convicted Anthony on June 2, 2010, for sale of cocaine.
    Anthony was sentenced as a habitual offender under Mississippi Code
    Annotated section 99-19-81 (Rev. 2007). The circuit court sentenced Anthony
    to sixty years in the custody of the Mississippi Department of Corrections
    without eligibility for probation or parole. Anthony was additionally ordered
    to pay a $5,000 fine.
    Anthony v. State, ____ So. 3d ___ , 
    2012 WL 266860
    , **1-2 (Miss. Ct. App. Jan. 31, 2012).
    ¶3.    During the trial, Anthony sought to cross-examine Brown regarding: (1) a prior
    conviction from 1993, (2) an arrest on February 26, 2007, for two counts of sale of a
    controlled substance and one count of contempt of child support, and (3) an arrest on April
    17, 2007, for one count of possession of a controlled substance and one count of
    abuse/neglect/exploitation of a vulnerable adult. The trial court allowed cross-examination
    regarding the two counts of sale of a controlled substance for which Brown was arrested on
    February 26, 2007, based on the finding that Brown was “working off” these charges as a
    confidential informant. The trial court, however, refused to allow cross-examination on the
    remaining charges and the 1993 conviction.
    3
    ¶4.    The Court of Appeals upheld the trial court’s ruling. The Court of Appeals found that
    at the time of trial, Brown’s 1993 conviction was seventeen years old and was subject to the
    time limits of Mississippi Rule of Evidence 609(b). The Court of Appeals also found that,
    because Anthony had failed to show the trial court that Brown had been convicted of the
    remaining charges, evidence of Brown’s arrests was inadmissible under Rule 609.
    DISCUSSION
    ¶5.    “Limitations on cross-examination are reviewed for abuse of discretion.” Jefferson
    v. State, 
    818 So. 2d 1099
    , 1109 (Miss. 2002). We will affirm the trial court’s exercise of
    discretion unless the ruling resulted in prejudice to the accused. Clark v. State, 
    40 So. 3d 531
    , 542 (Miss. 2010).
    ¶6.    Mississippi allows wide-open cross-examination of any matter that is relevant,
    including the possible interest, bias, or prejudice of the witness. Meeks v. State, 
    604 So. 2d 748
    , 755 (Miss. 1992). “For the purpose of attacking the credibility of a witness, evidence
    of bias, prejudice, or interest of the witness for or against any party to the case is admissible.”
    M.R.E. 616. This includes interrogating the witness’s belief or perception as to whether the
    State could extend leniency for pending charges. Foster v. State, 
    508 So. 2d 1111
    , 1114 -
    15 (Miss. 1987), overruled on other grounds by Powell v. State, 
    806 So. 2d 1069
     (Miss.
    2001). “Not only is this right secured by our rules of evidence . . . it is a function of the
    confrontation clauses of federal and state constitutions.” Caston v. State, 
    823 So. 2d 473
    ,
    491 (Miss. 2002) (quoting Suan v. State, 
    511 So. 2d 144
    , 148 (Miss. 1987)).
    ¶7.    Here, as Judge Russell found in her dissent, the favorable treatment Brown had
    received on his prior charges in exchange for his testimony was a material point that affected
    4
    Brown’s credibility as a witness. Anthony, 
    2012 WL 266860
    , at *8. In limiting Anthony’s
    cross-examination of Brown, the trial court denied Anthony the opportunity to fully
    challenge Brown’s credibility. This error by the trial court is augmented by the fact that the
    State’s case relied heavily on Brown’s testimony. Based on the record before us, the only
    evidence placing Anthony inside Brown’s vehicle is Brown’s testimony.                The video
    submitted into evidence shows only Brown handing over something to an unknown person
    sitting in the vehicle. The video does not reveal the face or even the clothing of the person.
    Thus, the reliability of Brown’s testimony was crucial in this instance. And Anthony’s jury
    should have heard the full extent of the deals between Brown and the State.
    CONCLUSION
    ¶8.    For these reasons, we find that the trial court’s error in limiting Anthony’s cross-
    examination of Brown constituted reversible error. Accordingly, we reverse the judgments
    of the Court of Appeals and the Lauderdale County Circuit Court and remand the case to the
    trial court for a new trial consistent with this opinion.
    ¶9.    REVERSED AND REMANDED.
    WALLER, C.J., KITCHENS, CHANDLER AND KING, JJ., CONCUR.
    LAMAR, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
    DICKINSON AND RANDOLPH, P.JJ., AND COLEMAN, J.
    LAMAR, JUSTICE, DISSENTING:
    ¶10.   I disagree with the majority’s conclusion that the circuit court erred in limiting
    Anthony’s cross-examination of Brown.1 Therefore, I respectfully dissent.
    1
    I note that the majority states that Anthony raised the same three issues in his petition
    for writ of certiorari before this Court that he raised before the Court of Appeals. (Maj. Op.
    5
    ¶11.   This Court reviews a circuit court’s limitations on cross-examination for an abuse of
    discretion,2 and that discretion “must be exercised within the boundaries of the Mississippi
    Rules of Evidence.” 3 This Court has explained that “[a]buse of discretion is found when the
    reviewing court has a ‘definite and firm conviction’ that the court below committed a clear
    error of judgment and conclusion it reached upon a weighing of the factors.” 4 Additionally,
    error may not be based upon a evidentiary ruling “[u]nless a substantial right of the party is
    affected.” 5 In other words, for the circuit court’s evidentiary ruling to constitute reversible
    error, it must have had the effect of denying the defendant a fundamentally fair trial, resulting
    in a miscarriage of justice.6
    ¶12.       To be admissible, all evidence must comport with our Rules of Evidence, and no
    evidence is admissible if it is not relevant or if its probative value is outweighed by its
    prejudicial effect.7 It is true, as the majority notes, that Mississippi allows “wide-open cross-
    at ¶1). However, Anthony raises two issues in his petition, only the first of which was raised
    before the Court of Appeals: (1) that the circuit court improperly limited his cross-
    examination of Brown and (2) that his right to a speedy trial was violated. Because Anthony
    raises the issue of his right to a speedy trial for the first time in his petition, this claim is
    procedurally barred and I decline to address it. Stockstill v. State, 
    854 So. 2d 1017
    , 1023
    (Miss. 2003) (citations omitted).
    2
    Johnston v. State, 
    618 So. 2d 90
    , 93 (Miss. 1993) (citation omitted).
    3
    Id.
    4
    Withers v. State, 
    907 So. 2d 342
    , 345 (Miss. 2005) (citation omitted).
    5
    M.R.E. 103(a).
    6
    Lacy v. State, 
    629 So. 2d 591
    , 594 (Miss. 1993).
    7
    M.R.E. 402, 403.
    6
    examination so long as the matter is relevant.” 8 But cross-examination is not without limits,
    and our trial courts can and should limit cross-examination into issues that are not relevant,
    or are otherwise barred by our Rules of Evidence. Indeed, Rule 611(a) expressly recognizes
    that a judge may limit cross-examination to “(1) make the interrogation and presentation
    effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3)
    protect witnesses from harassment or undue embarrassment.” 9
    ¶13.    Anthony argues the circuit court erred by limiting his cross-examination of Brown
    on two issues – Brown’s 1993 conviction and his April 2007 arrest. The majority determines
    that the Court erred in restricting his cross-examination because the “favorable treatment
    Brown had received on his prior charges in exchange for his testimony was a material point
    that affected Brown’s credibility as a witness.” 10 The majority concludes that the circuit
    court’s limitation denied “Anthony the opportunity to fully challenge Brown’s credibility.” 11
    But, while Anthony has a right to confront his accusers, this right is not unlimited, and is
    “always subject to the trial court’s inherent power to limit cross-examination to relevant
    factual issues.” 12
    8
    Johnston, 618 So. 2d at 93. See also M.R.E. 611(b).
    9
    M.R.E. 611(a).
    10
    Maj. Op. at ¶7.
    11
    Id.
    12
    Foster v. State, 
    508 So. 2d 1111
    , 1114 (Miss. 1987) (citation omitted) (overruled
    on other grounds).
    7
    ¶14.     I agree that Anthony had a right to cross-examine Brown about his arrangement to
    “work off” certain drug charges as a confidential informant. The circuit court specifically
    questioned Brown, under oath and outside the presence of the jury, about his prior charges,
    and the court allowed Anthony’s attorney to question Brown as well. Then the circuit court
    ruled:
    Court:       [Y]ou may ask about the pill charges that he caught that were
    part of the deal that was going to be done away with for his
    cooperation. I mean, that happened and that’s relevant, and you
    may ask about that. As to felonies in years past, you may not
    ask about that. As to some dismissal of a vulnerable adult
    charge or abuse of a vulnerable adult charge where he was not
    convicted, I don’t think that’s an appropriate matter for cross-
    examination, you may not ask about that unless you have got
    some proof that it was directly related to the deal.
    ¶15.     The circuit court determined that Anthony could question Brown regarding the pill
    charges that were going to be dismissed as part of the deal Brown had made in exchange for
    his cooperation, but held that the 1993 conviction was so remote in time that it had no
    bearing on Anthony’s case, and that the April 2007 arrest was irrelevant because it was not
    related to Brown’s deal with the drug task force and therefore, not probative of bias. Because
    Anthony presented no specific facts that would support a finding that Brown’s 1993
    conviction or April 2007 arrest had any relevance to Brown’s arrangement to work as a
    confidential informant, or to Brown’s bias or credibility, I would find that the circuit court
    properly limited cross-examination on these issues.
    ¶16.     The majority finds that Rule 616 of our Rules of Evidence governs this question
    because it provides that “evidence of bias, prejudice, or interest of the witness for or against
    any party to the case is admissible” for the “purpose of attacking the credibility of a witness.”
    8
    It is clear to me that Anthony sought to cross-examine Brown on his 1993 conviction and
    April 2007 arrest not to show that Brown had some bias or prejudice against Anthony, but
    to attack Brown’s character for truthfulness by showing Brown had broken the law on several
    occasions and was not credible. Therefore, I would find Anthony’s cross-examination on
    these two issues was governed by Rules 608 and 609 of our Rules of Evidence, not Rule 616.
    Rules 608 and 609 of our Rules of Evidence limit admission of past convictions and specific
    instances of conduct of a witness when offered only to attack the witness’s character for
    truthfulness.
    ¶17.   Admissibility of evidence related to Brown’s 1993 conviction for the purpose of
    attacking Brown’s character for truthfulness is governed by Rule 609:
    (b) 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 confinement imposed for that conviction,
    whichever is the later date, unless the court determines, in the interest of
    justice, that the probative value of the conviction 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.13
    ¶18.   The record does not reveal the crime committed in 1993 or when Brown was released
    from prison. However, it is undisputed that more than ten years (in fact, approximately
    seventeen) had passed since the date of the conviction at the time Brown testified. There is
    no evidence that Brown was released from confinement imposed for the conviction less than
    ten years before he testified against Anthony, and Anthony does not argue that he was.
    13
    M.R.E. 609 (emphasis added).
    9
    Under Rule 609(b), evidence of the 1993 conviction was admissible only if the court
    determined that the probative value of the conviction substantially outweighed its prejudicial
    effect. Furthermore, such evidence is not admissible unless Anthony gave sufficient written
    notice to the State of his intent to introduce evidence of the antiquated conviction.14
    ¶19.   The record shows that the circuit court heard argument on admissibility of both
    instances of prior conduct outside the presence of the jury. The circuit-court judge found,
    as to the 1993 conviction, that Anthony had not given the sufficient written notice required
    under Rule 609, that the conviction was so remote that it would have no bearing on the case,
    and that admission of the evidence would be unfairly prejudicial to the State. The circuit
    court applied the correct legal analysis, and its ruling was not an abuse of discretion. I would
    affirm the circuit court on this issue.
    ¶20.   As to the April 2007 arrest, the record is unclear regarding the nature of the crimes,
    but it appears to be an arrest for abuse of a vulnerable adult. Anthony admits that his
    counsel’s argument and questions were based on a booking report provided to the defense
    during discovery, and that he does not know exactly what the crimes involved or when they
    occurred. Anthony does not argue that the April 2007 arrest led to a conviction, and there
    is no evidence that Brown was convicted of any crimes that he was arrested for in April
    2007. Therefore, cross-examination regarding the April 2007 arrest is governed by Rule 608,
    which addresses cross-examination into a witness’s specific instances of conduct, other than
    conviction of a crime, and provides in pertinent part as follows:
    14
    M.R.E. 609.
    10
    (b) Specific Instances of Conduct. Specific instances of the conduct of a
    witness, for the purpose of attacking or supporting the witness’s character for
    truthfulness, other than conviction of crime as provided in Rule 609, may not
    be proved by extrinsic evidence. They may, however, in the discretion of the
    court, if probative of truthfulness or untruthfulness, be inquired into on cross-
    examination of the witness (1) concerning the witness’s character for
    truthfulness or untruthfulness . . . .15
    This Court has stated clearly that instances of past conduct offered solely to attack a
    witness’s credibility “must be such as to reflect upon the witness’s character for truthfulness.
    If the past conduct did not involve lying, deceit, or dishonesty in some manner, it cannot be
    inquired into on cross-examination. The trial court has no discretionary authority to permit
    inquiry by cross-examination into conduct not involving truthfulness.” 16 Because Anthony
    offered no evidence that the conduct that gave rise to Brown’s April 2007 arrest involved
    lying, deceit, or dishonesty, I would find the circuit court properly limited cross-examination
    on this issue.
    ¶21.   Anthony was allowed to question Brown regarding whether he had ever been
    convicted of a felony and regarding his only drug charges giving rise to his arrangement to
    work as a confidential informant. At trial, Anthony asked Brown the following questions in
    the presence of the jury:
    Q:        Have you ever been convicted of any felonies?
    A:        Yes.
    ...
    15
    M.R.E. 608 (emphasis added).
    16
    Brent v. State, 
    632 So. 2d 936
    , 944 (Miss. 1994) (citations omitted).
    11
    Q:     Mr. Brown, how is it that you became involved with MBN or the
    Lauderdale County Task Force?
    A:     I caught a sale – a pill charge.
    Q:     When you say you “caught a pill charge,” what do you mean?
    A:     I sold to someone and they – I got caught.
    ...
    Q:     Okay. But they arrested you?
    A:     Yes.
    Q:     Okay.
    A:     Yes, sir.
    Q:     What were you told when you got arrested?
    A:     What was I told?
    Q:     Were you told, hey you can work this charge off, we can cut you a deal
    and let you go free or –
    A:     No. I went to them and asked them could I help myself.
    Q:     Why did you want to do that?
    A:     To keep from going to jail.
    Q:     And, obviously, you have done it so far?
    A:     Yes, sir.
    Q:     Okay. But you also got paid, didn’t you?
    A:     Yes, sir.
    ¶22.   Anthony had an opportunity to, and did, fully question Brown in the presence of the
    jury regarding his agreement to “work off” his own drug charges by working with the drug
    12
    task force. Indeed, Anthony questioned Brown about the specific charges; i.e., the pill
    charges, that gave rise to Brown’s work as a confidential informant. The jury was made
    aware that Brown had his own reasons to cooperate with the police – they heard Brown testify
    that he previously had been convicted of a felony, that he was working with the drug task
    force to avoid going to jail, and that he was paid to be a confidential informant. Additionally,
    the record shows that Christopher Scott, the police officer who arranged for Brown to work
    as a confidential informant, also testified that the pill charges against Brown were dropped
    in exchange for Brown’s work with the drug task force, and that Brown was paid for his work.
    In fact, during Anthony’s cross-examination, Scott agreed that working as a confidential
    informant was “like a get-out-of-jail-free card” and that Brown had an “ulterior motive” to
    testify so that his drug charges would “go away.”
    ¶23.   Any additional testimony that Brown was convicted of an unrelated crime in 1993 or
    arrested for some uncertain crime in April 2007 would be cumulative on the issues of Brown’s
    credibility and/or motivation to testify against Anthony. Even if the circuit court abused its
    discretion by limiting Anthony’s cross-examination on these two issues, which I do not
    believe that it did, I cannot agree that the limitation affected Anthony’s substantial rights,
    denied him a fundamentally fair trial, or resulted in a miscarriage of justice. Therefore, I
    would find that any error on the part of the circuit court in limiting Anthony’s cross-
    examination was harmless error, at worst.
    ¶24.   For the foregoing reasons, I would affirm the circuit court’s decision to limit Anthony’s
    cross-examination of Brown, and would affirm Anthony’s conviction and sentence.
    13
    DICKINSON AND RANDOLPH, P.JJ., AND COLEMAN, J., JOIN THIS
    OPINION.
    14