Kanynne Jamol Bush v. State of Mississippi ( 2002 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2003-KA-01528-SCT
KANYNNE JAMOL BUSH a/k/a JAMOL KANYNNE
BUSH
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 10/18/2002
TRIAL JUDGE: HON. KOSTA N. VLAHOS
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: JAMES (JAY) R. FOSTER
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: W. DANIEL HINCHCLIFF
DISTRICT ATTORNEY: CONO CARANNA
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 02/10/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE WALLER, P.J., GRAVES AND DICKINSON, JJ.
WALLER, PRESIDING JUSTICE, FOR THE COURT:
¶1. A Harrison County Circuit Court jury unanimously convicted Kanynne Jamol Bush of
capital murder with the underlying felony being armed robbery. The trial court subsequently
sentenced Bush to life in prison without probation or parole. Bush now appeals the conviction
which we affirm.
FACTS
¶2. On the night of December 9, 1999, Russell Stone went to the EZ Serve in Gulfport,
Mississippi to see his girlfriend, Brenda Kliensmith, a cashier. That night, Kliensmith received
a phone call from a female who identified herself as Monica. Kliensmith recognized the voice
of Monica, an employee at EZ Serve, and upon request, told her what time she was getting off
and that she was working by herself that night.
¶3. Around 9 p.m., a male and female, masked and wearing black, burst into the store. The
male jumped the counter and put his gun to Kliensmith’s head. He then pointed the gun at
Stone, approached him, and ordered him and Kleinsmith to get on the floor. When Kliensmith
and Stone did not immediately lie down, the assailant asked Stone, “Do you think I’m playing,
b****?” and then shot him. Stone fell to the floor, moaning loudly for several minutes.
¶4. Kliensmith got on the floor, told the gunman she was pregnant, and begged that he not
kill her. The assailant left, and Kliensmith called 911, frantically trying to explain what had
happened. The police and ambulance arrived and took Stone to the hospital. He subsequently
died as a result of his injury. In March of 2000, the Grand Jury in Harrison County indicted
Jamol Bush, Monica Towner, Narquita Watson, and Erica Riley for the murder of Stone and
armed robbery of the EZ Serve. However, before Bush could be arrested, he left Gulfport and
went into hiding.
¶5. In October of 2000, police in Avon Park, Florida were investigating an in-state robbery
and received a tip from Bush’s girlfriend that “Reshard Bush,” her boyfriend, had been involved
in the robbery. After investigating Bush’s identity at his place of work and running a search in
the National Crime Information Center’s database, Officers John Robinson and Michael Rowan
2
discovered that the name “Reshard” was an alias. The computer search revealed that police in
Mississippi had issued an arrest warrant for Jamol Bush in connection with Stone’s murder.
The officers called the Gulfport police and got a description of the circumstances surrounding
the warrant. The officers then located Bush, followed the car in which he was riding, and took
him into custody.
¶6. The officers met with Bush at the criminal investigations unit and developed a rapport
with him over the course of an hour. Robinson testified that Bush eventually discussed the
Florida robbery and also gave an unrecorded description of murdering Stone in Gulfport.
Robinson said Bush told him about a variety of details surrounding the murder, including: (1)
There was a cooperative, pregnant, female clerk in the store that night and an uncooperative
white male; (2) Bush panicked and shot the male when he failed to obey Bush’s orders; (3)
Three black females, one of whom used to work at EZ serve, were cohorts in committing the
crime; and (4) They intended to rob the store’s safe of $40,000.00.
¶7. Robinson further testified, and the transcript of the conversation confirms, that when
he and Rowan tried to record Bush’s confession to the Mississippi crime, Bush became
apprehensive and refused to cooperate. The closest Bush came to discussing the event was in
this brief exchange between the officers and him:
DET. ROBINSON: Okay. So, everything you’ve told us so far about the incident
in Mississippi is fairly accurate? Ah, I know we didn’t get into every detail of
it, you just kinda gave us a general idea what went down.
MR. BUSH: Yeah, I was thinking ‘bout the, the ah, incident here -
***
3
DET. ROBINSON: Okay. Is there anything that you think about it? Take your
time. Is there anything that you would like to get on the record about that? On
the taped interview?
MR. BUSH: (Unintelligible) Man, I wasn’t, I wasn’t the one who pulled the
trigger. I may have, you know what I’m saying, the reason I was (unintelligible)
the situation was or what occurred or what have you (inaudible).
DET. ROBINSON: Right. But -
MR. BUSH: (Unintelligible) There’s nothing I wish to say about it.
In the hearing on his Motion to Suppress the inculpating statements, Bush said he never said
anything to the officers about a Gulfport incident.
¶8. At trial, Kliensmith testified that although she did not recognize the assailant when she
first saw him in the store, she had noticed a “slit” above his left eye. She also testified that she
told the police that he might have had a gold tooth and she thought he was either five foot, ten
inches or six feet tall.1 Although Bush is six feet tall, he does not have a scratch or scar above
his left eye, nor does he have a gold tooth. At trial, however, Kliensmith identified Bush as the
man who killed Stone, testifying that she recognized him, because she had looked at him “right
in his eyes” that night.
¶9. Erica Riley, an admitted participant in the robbery, testified against Bush at his trial.
Riley stated that she, Towner, and Watson had discussed the possibility of “hit[ting] the lick”
(i.e. “robbing somebody”). After going down the street to ask Bush if he was interested, he
told her “it was all good” and agreed to participate. She testified that Bush and Towner were
the ones who went into the store while she and Watson, who was driving the car, waited
1
A police officer who questioned Kliensmith stated that she had not mentioned a gold
tooth to him.
4
outside. After they heard the gunshot, Watson drove off and then returned to the EZ Serve
where Bush and Towner got in. At that point, Riley testified that Bush demanded Watson drive
away from the convenience store, insisting that someone inside had been shot in the leg. She
also testified that about three days later she heard him discussing the need to get rid of both
the clothes he wore in the robbery and his gun. Although she did not see him dispose of the
gun, she said she saw him take the clothes and put them in the garbage.
¶10. On October 17, 2002, a Harrison County Circuit Court jury convicted Bush of capital
murder with the underlying felony being armed robbery, but was unable to agree on a sentence.
Therefore, the trial court sentenced Bush to life in prison without probation or parole. Bush
requests that we reverse and remand the case for a new trial.
ANALYSIS
¶11. Bush raises five grounds of reversible error: improper denial of Bush’s Motion to
Suppress the inculpatory statements Bush made to the Florida officers; failure by the State to
present sufficient evidence to support a jury finding that Bush committed armed robbery;
violation of Bush’s constitutional right to confrontation; improper admission of evidence of
Bush’s prior convictions; and improper comments about Bush by the prosecution. 1. Motion
to Suppress
¶12. Bush argues, for the first time on appeal, that his confession to the crime was “not the
result of [his] free and rational choice.” He then cites to case law governing improperly
admitted confessions. However, Bush’s argument at trial wholly undermines his argument.
At the hearing on the Motion to Suppress the inculpatory statements, the trial judge asked
Bush’s attorney why he wanted the statements suppressed. The attorney responded,
5
MR. RAFFERTY: Judge, based on the information and belief and the evidence
that we have been provided, the defense believes that the State is going to offer
into evidence, either through a recording, transcript, or the live testimony of
officers, some inculpatory statements and admissions by my client. For the
record, [j]udge, I don’t believe it’s per se a confession in Mississippi,
however, there is [sic] some statements and admissions that can be used to
incriminate an individual from our defense prospective [sic]. We then, Your
Honor, believe those statements were improperly gathered . . .
THE COURT: You think they were improperly gathered because he wasn’t
advised of his rights?
MR. RAFFERTY: Judge, I believe that that’s going to be an issue. I believe that
there’s going to be evidence that he was advised of some rights. I think the
question is going to be whether or not they actually conform to the Miranda
decision that then follows Mississippi law. Also, Your Honor, my client was
arrested without a warrant . . . He was then taken into custody, allegedly given
some rights, and then he made a statement allegedly to the police.
(emphasis added). When asked at the hearing on the Motion to Suppress whether he had made
any of the alleged statements to the officers about the Gulfport murder, Bush unequivocally
told the court that he had said nothing at all to the police about the incident.
¶13. We first note that an appellant is not entitled to raise new issues on appeal that he has
not first presented to the trial court for determination. Dunn v. State, 693 So. 2d 1333, 1339
(Miss. 1997). Bush argued before the trial court that any statements made to the officers
during their interview with him were inadmissible because of the failure to comply with
Miranda and because a warrant for Bush’s arrest had not been issued. Bush’s attorney
explicitly stated that Bush had not confessed to the murder, and Bush told the court he had not
even spoken to the officers about the murder. Now he argues that although he spoke to the
officers, the resultant confession was illegally obtained.
6
¶14. In using his now-acknowledged confession to the murder as a basis for his legal
argument, Bush essentially admits that he lied to the trial court when he said he never made a
statement to the officers regarding the murder. Bush may not argue one defense in a motion
to supress and then, on appeal, use a completely different defense to cite the trial court for
error. His change of course, rather than demonstrating error by the trial court, simply reveals
that the claims he made in the hearing on his Motion to Suppress were largely founded on a lie.
This argument has no merit.
2. Sufficiency and Weight of the Evidence
¶15. In order to establish that Bush committed armed robbery, the underlying felony at issue
in this case, the State was required to prove: (1) a felonious taking or attempt to take, (2) from
the person or from the presence, (3) the personal property of another, (4) against his will, (5)
by violence to his person or by putting such person in fear of immediate injury to his person
by the exhibition of a deadly weapon. Miss. Code Ann. § 97-3-79 (Rev. 2000). Bush
challenges his conviction for capital murder, erroneously combining his arguments regarding
the legal sufficiency of the evidence with his arguments regarding the overwhelming weight
of the evidence. We address them separately and demonstrate the clear difference between
these issues.
a. Sufficiency of the Evidence
¶16. In Carr v. State, 208 So. 2d 886, 889 (Miss. 1968), we stated that in considering
whether the evidence is sufficient to sustain a conviction in the face of a motion for directed
verdict or for judgment notwithstanding the verdict, the critical inquiry is whether the evidence
shows “beyond a reasonable doubt that accused committed the act charged, and that he did so
7
under such circumstances that every element of the offense existed; and where the evidence
fails to meet this test it is insufficient to support a conviction.” However, this inquiry does not
require a court to
‘ask itself whether it believes that the evidence at the trial established guilt
beyond a reasonable doubt.’ Instead, the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 315, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)(citations
omitted)(emphasis in original). Should the facts and inferences considered in a challenge to
the sufficiency of the evidence “point in favor of the defendant on any element of the offense
with sufficient force that reasonable men could not have found beyond a reasonable doubt that
the defendant was guilty,” the proper remedy is for the appellate court to reverse and render.
Edwards v. State, 469 So. 2d 68, 70 (Miss. 1985) (citing May v. State, 460 So. 2d 778, 781
(Miss. 1984); see also Dycus v. State, 875 So. 2d 140, 164 (Miss. 2004). However, if a
review of the evidence reveals that it is of such quality and weight that, “having in mind the
beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the
exercise of impartial judgment might reach different conclusions on every element of the
offense,” the evidence will be deemed to have been sufficient. Edwards, 469 So. 2d at 70; see
also Gibby v. State, 744 So. 2d 244, 245 (Miss. 1999).
¶17. Considering the evidence in the light most favorable to the State, we find that there was
sufficient evidence to convict Bush of capital murder with the underlying felony being armed
robbery. Bush both confessed to and described the murder, giving the officers details about
the incident, including the fact that the purpose of the robbery attempt was to rob the store’s
8
safe (a felonious attempt to take the personal property), that Kliensmith was pregnant (from
a person or from the presence), and that he shot Stone after he refused to get on the floor
(against his will and by violence to his person), and that three females worked with him in
committing the crime. His description matched the accounts of both Kliensmith, who
personally suffered through the ordeal, and Riley, who helped plan the robbery. Furthermore,
to the degree possible (in light of the quality and length of the videotape), the testimonies of
Bush and the other witnesses matched up with the evidence in the surveillance tape. In light
of these facts, we find that any rational juror could have found beyond a reasonable doubt that
all of the elements had been met by the State in proving capital murder with the underlying
felony being armed robbery. This issue is without merit.
b. Weight of the Evidence
¶18. When reviewing a denial of a motion for a new trial based on an objection to the weight
of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming
weight of the evidence that to allow it to stand would sanction an unconscionable injustice.
Herring v. State, 691 So. 2d 948, 957 (Miss. 1997). We have stated that on a motion for new
trial,
the court sits as a thirteenth juror. The motion, however, is addressed to the
discretion of the court, which should be exercised with caution, and the power
to grant a new trial should be invoked only in exceptional cases in which the
evidence preponderates heavily against the verdict.
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Amiker v. Drugs For Less, Inc., 796 So. 2d 942, 947 (Miss. 2000).2 However, the evidence
should be weighed in the light most favorable to the verdict. Herring, 691 So. 2d at 957. A
reversal on the grounds that the verdict was against the overwhelming weight of the evidence,
“unlike a reversal based on insufficient evidence, does not mean that acquittal was the only
proper verdict.” McQueen v. Stat e, 423 So. 2d 800, 803 (Miss. 1982). Rather, as the
“thirteenth juror,” the court simply disagrees with the jury's resolution of the conflicting
testimony. Id. This difference of opinion does not signify acquittal any more than a
disagreement among the jurors themselves. Id. Instead, the proper remedy is to grant a new
trial.3
2
We note that we have specifically disclaimed any role as the “thirteenth juror” in the
context of granting a new trial on the issue of damages, Patterson v. Liberty Assocs., L.P.,
2004 WL 2823078, at *8, (¶ 24) (Miss. 2004), as well as when we review a motion for
judgment notwithstanding the verdict, Allen v. Mac Tools, Inc., 671 So. 2d 636, 646 (Miss.
1996). However, when the trial court (and subsequently the appellate court) reviews a verdict
that is alleged to be against the overwhelming weight of the evidence, this presents a distinctive
situation which necessitates the court sitting as a “thirteenth juror.” See Amiker, 796 So. 2d
at 947.
3
We recognize that today’s articulation of the standards of review for sufficiency of the
evidence and weight of the evidence, although in line with United States Supreme Court
precedent as well as our own, differs from the tests articulated in some of our previous
opinions. See, e.g. White v. State, 732 So. 2d 961, 965-66 (Miss. 1999)(commingling
distinctions between standards for weight and sufficiency of evidence); Turner v. State, 726
So. 2d 117, 124-25 (Miss. 1998)(misstating requirements of standard of review for weight of
evidence challenge); Thornhill v. State, 561 So. 2d 1025, 1030 (Miss. 1989)(stating that in
reviewing challenge to weight of evidence “court must accept as true the evidence which
supports the verdict”); Wetz v. State, 503 So. 2d 803, 812 (Miss. 1987)(misstating
requirements of standard of review for weight of evidence challenge); Watts v. State, 818 So.
2d 1207, 1213 (Miss. Ct. App. 2002)(citing to White). However, we find that the opinions to
which we cite in the body of our opinion today articulate the standards of review much more
cogently than the previously cited opinions which contain cryptic and incongruous explanations
of the standards. For example, in Turner, 726 So. 2d at 125, although we stated the correct
standard of review for legal sufficiency, we erroneously stated that when reviewing the weight
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¶19. Sitting as a limited “thirteenth juror” in this case, we cannot view the evidence in the
light most favorable to the verdict and say that an unconscionable injustice resulted from this
jury’s rendering of a guilty verdict. It is true that, contrary to Kliensmith’s recollection, Bush
does not have a scratch or scar above his left eye, nor does he have a gold tooth. Furthermore,
Bush’s face is not identifiable in the video, and he denies confessing to Avon City Police that
he committed the crime. Were this conflicting evidence the only substantive proof the State
presented to the jury, perhaps Bush’s argument for a new trial would have merit. However, as
noted above, Bush’s purported confession and detailed description of the crime consequently
match both the graphic accounts of eyewitnesses Kliensmith and Riley as well as the video
recording of the incident. Viewed in the light most favorable to the verdict, we cannot say that
the evidence preponderates heavily against the jury’s decision to find Bush guilty of capital
murder. The trial court therefore did not abuse its discretion in denying a new trial, and this
issue is without merit.
3. Right of Confrontation
¶20. Bush next argues that Riley’s testimony regarding anything Monica Towner may have
said violated Bush’s Sixth Amendment right to confrontation. However, the trial court held
that under Mississippi Rule of Evidence 801(d)(2)(E) (2004), Riley’s recollections of
Towner’s statements were admissible non-hearsay statements of a co-conspirator. Rule
801(d)(2)(E) dictates that “[a] statement is not hearsay if . . . [t]he statement is offered against
of the evidence, “the Court must accept as true the evidence which supports the verdict,” the
Court “must accept as true the evidence favorable to the State,” and “[w]here there is
conflicting testimony, the jury is the judge of the credibility of the witnesses.”
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a party and is . . . a statement by a co-conspirator of a party during the course and in furtherance
of the conspiracy.”
¶21. The Confrontation Clause of the Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against
him[.]” U.S. Const. amend. VI. A corresponding right is secured by our state constitution
which provides: “In all criminal prosecutions the accused shall have a right . . . to be confronted
by the witnesses against him[.]” Miss. Const. art. 3, § 26 (1890). In Mitchell v. State, 495 So.
2d 5, 8-10 (Miss. 1986), Justice Robertson, speaking for the Court, cogently set out the
history and development of our Confrontation Clause law with respect to the statements of co-
conspirators. Considering the constitutional implications of allowing in such statements, we
noted that “[n]on-confronted out-of-court statements are thought to lack indicia of reliability
sufficient that they be considered by the trier of fact.” Id. at 8. The problem of reliability is
magnified in cases where the out-of-court declarant is an accomplice of the accused. Id. at 8-
9. Even so, the “presumption of unreliability ordinarily attached to a co-defendant's statement
may nonetheless be rebutted so as to meet confrontation clause standards if it is supported by
a showing of particularized guarantees of trustworthiness.” Id. at 9 (citing Ohio v. Roberts,
448 U.S. 56, 66, 100 S. Ct. 2531, 2539, 65 L. Ed. 2d 597 (1980), overruled on other grounds,
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)). Despite
the federal and state confrontation clauses and hearsay rules, “[c]o-conspirators' statements
made in the course of and in the furtherance of the conspiracy are admissible against each
other.” Id. at 11. As long as "the ‘in the course of’ and ‘in the furtherance of’ conditions are
met, the necessary indicia of trustworthiness are thought present.” Id.
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¶22. Our holding in Mitchell is unaffected by the United States Supreme Court’s recent
Crawford decision. In Crawford, the Court dealt with a case in which the State offered a taped
police interview of a woman whose husband was on trial for stabbing a man whom the husband
claimed tried to rape his wife. Crawford, 124 S. Ct. at 1357-58. The trial court allowed the
tape into evidence, finding that the wife’s inculpating testimony met Roberts’ requirement that
the statements bear an “adequate ‘indicia of reliability’”(i.e. the statements bore a
particularized guarantee of trustworthiness.). Id. at 1358, 1359.4 In finding the admission
violated the defendant’s constitutional right to confront the witness against him, the Court
abrogated its holding in Roberts, holding
Where nontestimonial hearsay is at issue, it is wholly consistent with the
Framers' design to afford the States flexibility in their development of hearsay
law - as does Roberts, and as would an approach that exempted such statements
from Confrontation Clause scrutiny altogether. Where testimonial evidence is
at issue, however, the Sixth Amendment demands what the common law
required: unavailability and a prior opportunity for cross-examination. We leave
for another day any effort to spell out a comprehensive definition of
‘testimonial.’
Id. at 1374; see also United States v. Saget, 377 F.3d 223, 226 (2d Cir. 2004)(noting
Crawford abrogated Roberts “with respect to prior testimonial statements by holding that such
statements may never be introduced against the defendant unless he or she had an opportunity
to cross-examine the declarant, regardless of whether that statement falls within a firmly
rooted hearsay exception or has particularized guarantees of trustworthiness.”). Although the
Court declined to “spell out a comprehensive definition of ‘testimonial,’” it did make clear that
4
The other “indicia of reliability” under Roberts (which did not apply in this case) is
admission of statements which fall within a firmly rooted hearsay exception. Crawford, 124
S. Ct. at 1359.
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statements of co-conspirators in furtherance of a conspiracy were non-testimonial, and
therefore unaffected by the holding. Id. at 1366-67. Consequently, Crawford does not apply
to the facts of this case.
¶23. In his brief, Bush specifies no in-court statements attributed to Towner which were
made outside of the course and in not in furtherance of the conspiracy. He instead cites three
cases: Garrison v. State, 726 So. 2d 1144 (Miss. 1998), Williams v. State, 667 So. 2d 15
(Miss. 1996), and Stoop v. State, 531 So. 2d 1215 (Miss. 1988), for the proposition that
Riley’s testimony quoting Towner violated Bush’s Sixth Amendment right to confrontation.
However, each of these cases is wholly inapplicable to the facts at hand. First, in Garrison,
we dealt with a case in which the trial court improperly entered the transcript of a co-
defendant’s guilty plea. Garrison, 726 So. 2d at 1146. Rule 803 was not even discussed in
that case, because it was not relevant to the facts of the case. Neither was Rule 803 discussed
in Williams, since the case dealt with the statements of the co-defendant which she made while
in police custody. Williams, 667 So. 2d at 18. Finally, in Stoop, we found that the trial court
inappropriately admitted the transcript testimony of a witness whom the State had not
sufficiently demonstrated was unavailable to testify. Stoop, 531 So. 2d at 1220. This case did
not even deal with Rule 803, much less the statements of co-defendants.
¶24. The three cases Bush cites are off point and provide no support for his contention that
his right to confrontation under the federal and state constitutions was violated. In light of the
fact that Bush cites no authority to back his claims of a Sixth Amendment violation, his claims
are procedurally barred. See Dycus v. State, 875 So. 2d 140, 169 (Miss. 2004) (“We remain
14
steadfast to the rule that failure to cite any authority may be treated as a procedural bar,
relieving us of any obligation to consider the assignment”). Nonetheless, we consider Bush’s
citation of error on its merits.
¶25. Riley and Townsend were co-conspirators in the plot to rob the EZ Serve. Under
Roberts, Crawford, Mitchell, and Rule 803(d)(2)(E), any statements Townsend may have made
to Riley, her co-conspirator, in the course of or in furtherance of the conspiracy have the
necessary guarantee of trustworthiness we require to address our concerns about the
constitutional right to confrontation under the Sixth Amendment and the protection against
hearsay. Bush cites no statements attributed to Townsend which she made outside the
furtherance of the conspiracy, and this issue is without merit.
4. Prior Convictions
a. On-the-record Analysis
¶26. Bush next argues that the trial court inappropriately allowed evidence of his prior
convictions and failed to conduct an on-the-record balancing test before allowing the
convictions into evidence. First, we note that although Bush did object to the admission of the
convictions at trial, he made no objection to the trial court’s on-the-record analysis of its
decision to allow the convictions into evidence. He is therefore procedurally barred from
raising the issue of the trial court’s alleged failure to conduct an on-the-record analysis. See
Dunn, 693 So. 2d at 1339. However, we nonetheless consider the issue on its merits.
¶27. On cross-examination, the prosecutor referred to an incident in which Bush overheard
Riley openly discussing the murder and asked Bush whether he was concerned about a man
being killed. Bush replied, “Of course, it’s sorrowful that someone was killed. My mother was
15
killed, gunned down. I don’t like, in fact, you know what I mean, guns, knives, or anything of
that nature.” Shortly thereafter, Bush’s attorney objected when the prosecutor began a line of
questioning which Bush’s lawyer anticipated would lead to discussion of Bush’s prior criminal
acts. The judge dismissed the jury to confer with the attorneys on whether to allow the
statements.
¶28. In the lengthy discussion, the trial court considered whether Bush had opened the door
to having his statement impeached by prior bad acts. During the discussion, the judge also
considered the time of the prior bad acts, the similarity between one of the convictions and the
current charge, and the importance of preventing witnesses like Bush from “testify[ing] without
fear of any accountability of what they say.” The trial court then allowed the prosecution, for
impeachment purposes, to question Bush about all of his prior convictions involving crimes
of a violent nature.
¶29. In Peterson v. State, 518 So. 2d 632 (Miss. 1987), we held Mississippi Rule of
Evidence 609 requires the trial court to make an on-the-record determination that the probative
value of the prior conviction outweighs its prejudicial effect before admitting impeachment
evidence of a party’s prior conviction. Peterson, 518 So. 2d at 636. We listed the following
factors to be considered by the trial court when weighing the probative value of the acts against
their prejudicial effect:
(1) The impeachment value of the prior crime.
(2) The point in time of the conviction and the witness’ subsequent history.
(3) The similarity between the past crime and the charged crime.
(4) The importance of the defendant's testimony.
(5) The centrality of the credibility issue.
Id. at 637.
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¶30. In Young v. State, 731 So. 2d 1145, 1152 (Miss. 1999), we noted that although the trial
court had not done a full on-the-record Peterson analysis, it was apparent that he had
appropriately “conduct[ed] a balancing test considering at least some of the factors.”
Accordingly, although Peterson does give factors which a trial court ought to consider in
determining whether to allow in evidence of prior criminal acts for the purpose of
impeachment, we do not apply it so rigidly that we reject honest efforts by trial courts to
carefully weigh the probative value of prior acts against their prejudicial effect for the
purposes of impeachment. In the case at hand, the trial judge considered the time of the prior
bad acts, the similarity between one of the convictions and the current charge, and how
allowing the prosecution to impeach Bush with his prior convictions was valuable in that it
allowed the State to provide the jury with necessary information to help in its “search for the
truth.” Though this trial judge did not directly address Peterson’s five factors, it is apparent
that he, like the trial judge in Young, appropriately satisfied the requirements of Rule
609(a)(1) by conducting a substantive balancing test in line with the spirit of Peterson. This
issue is without merit.
b. Prior Convictions as Impeachment
¶31. We next address the issue of whether Bush opened the door of impeachment when he
stated, “I don’t like, in fact, you know what I mean, guns, knives, or anything of that nature.”
It is a well-settled point of law that “[w]here an accused, on direct examination, seeks to
exculpate himself, such testimony is subject to normal impeachment via cross-examination,
and this is so though it would bring out that the accused may have committed another crime.”
Stewart v. State, 596 So. 2d 851, 853 (Miss. 1992). Normal impeachment applies when the
17
defendant makes broad statements which open the door for impeachment. Johnson v. State,
666 So. 2d 499, 503 (Miss. 1995)(citing Quinn v. State, 479 So. 2d 706, 708-09 (Miss.
1985); Pierce v. State, 401 So. 2d 730 (Miss. 1981)). Once the defendant or witness has
opened the door to his criminal record, “the evidence used by the State in response is more like
rebuttal evidence than impeachment.” Johnson, 666 So. 2d at 503 (citing Settles v. State, 584
So. 2d 1260, 1264 (Miss. 1991)). However, if the State “initiates the matter by eliciting from
the defendant the response it later seeks to impeach by showing the defendant's prior criminal
. . . activities, the impeachment is impermissible and cause for reversal and remand.” Johnson,
666 So. 2d at 503 (quoting Quinn, 479 So. 2d at 708) (alterations omitted). The impeachment
evidence is admissible only for the purpose of impeaching credibility and may not be used for
the purpose of establishing its truth. Johnson, 666 So. 2d at 503 (citing Quinn, 479 So. 2d at
708). The State is further limited in that its “impeachment privilege may not exceed the
invitation extended.” Stewart, 596 So. 2d at 853. The application of this precedent is not
confined to “door-opening” statements made on direct examination alone. In fact, we have
previously stated, in our cursory review of a defendant’s procedurally-barred claim of error,
that evidence of a prior conviction was properly admitted where the defendant, on cross-
examination, opened himself up to questioning by voluntarily attempting to explain away a
prior conviction. Gates v. State, 484 So. 2d 1002, 1009 (Miss. 1986).
¶32. In the case at hand, Bush, on cross-examination, was asked (in regard to his reaction to
Riley’s public discussion of the murder and his inability to remember what she had said):
Q: You didn’t care that a man had been killed?
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A: Of course, it’s sorrowful that someone was killed. My mother was killed,
gunned down. I don’t like, in fact, you know what I mean, guns, knives, or
anything of that nature.
¶33. However, as the State demonstrated with Bush’s prior criminal acts, Bush is quite
comfortable with guns and “things of that nature.” The State properly brought his credibility
into question when it used his criminal history to demonstrate that contrary to his alleged
fearful disposition towards weapons and “anything of that nature,” he had previously been
convicted of robbing a boy of his jacket, armed robbery, and armed kidnaping. As we aptly
stated in Quinn v. State, 479 So. 2d 706, 708-09 (Miss. 1985):
To be sure, every defendant brought to trial may, if he wishes, try to paint
himself as being as pure as the driven snow. He may do this by testifying . . . that
he has never been involved in any criminal activity anywhere. When he indulges
in this tactic[,] however, it is only fair that the State should have the right to test
the credibility of such assertions through the normal process of impeachment.
¶34. By voluntarily indulging in the tactic of presenting himself as man who is afraid of
“guns, knives, or anything of that nature,” Bush extended a conditional invitation to the State
for impeachment by way of his prior convictions. The State accepted this invitation and did not
exceed its scope when it properly impeached Bush’s testimony so as to show the jury that Bush
had not been forthright in his assertions regarding his disposition toward violence.5 This issue
is without merit.
5. Prosecutorial Misconduct
5
Bush briefly argues that the admission of the convictions was also inappropriate
because: (1) one of the crimes was almost ten years prior to the trial date, and (2) one of the
crimes occurred after the date of the murder. He makes these claims without citing to any law
and is therefore procedurally barred from making the arguments. See Dycus, 875 So. 2d at
169 (“We remain steadfast to the rule that failure to cite any authority may be treated as a
procedural bar, relieving us of any obligation to consider the assignment”).
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¶35. Bush argues that during closing arguments the trial court inappropriately allowed the
State to refer to his veracity, criminal record, and danger of allowing him to live in society.
He specifically objects to trial counsel’s statements to the jury during the sentencing phase,
in which she asked,
Are we as a society going to condone the Jamol Bushes of the world? Is that
what we’re going to do? . . . Are we going to let the Jamol Bushes continue to
commit a robbery in ‘92, to be revoked in ‘93, to finally get out of jail and
commit another robbery and a murder, to hide out from that and commit another
armed robbery and armed kidnaping? How many more lives is this society going
to let him affect?
Bush objected, arguing it was improper for the prosecutor to ask whether “we as a society [are]
going to be in the business of killing people.” The trial court overruled Bush’s objection.
¶36. First, we note that Bush did not object to the prosecution’s statements regarding his
veracity. Accordingly, he is procedurally barred bringing an issue before us that he did not
raise before the trial court. See Dunn, 693 So. 2d at 1339. Nonetheless, the same analysis
applies to both the prosecutor’s statements regarding society’s obligation to stop Bush from
terrorizing anyone else and the prosecutor calling Bush’s veracity into doubt. As we have
stated before, “[c]ounsel is allowed considerable latitude in the argument of cases, and is
limited not only to the facts presented in evidence, but also to deductions and conclusions he
[or she] may reasonably draw therefrom, and the application of the law to the facts." Wells v.
State, 698 So. 2d 497, 506 (Miss. 1997). The State appropriately highlighted both the threat
Bush has proven he poses to society and his apparent struggles with being completely
forthright on the stand. In doing so, the State merely appealed to the jury based on facts that
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were a part of the record and the natural deductions and conclusions that the prosecution drew
therefrom. This issue is without merit.
CONCLUSION
¶37. After a complete review of the trial record in the underlying case, we find the jury’s
verdict was based on sufficient evidence, that the trial court appropriately denied Bush’s
Motion to Suppress his confession, that Bush’s Sixth Amendment right to confrontation was
not violated, that evidence of Bush’s prior convictions was properly admitted, and that the trial
court did not err in overruling Bush’s objections to prosecutorial comments during closing
arguments. Accordingly, we affirm the Harrison County Circuit Court’s judgment.
¶38. CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE
IMPRISONMENT, WITHOUT HOPE OF PROBATION OR PAROLE, IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.
SMITH, C.J., COBB, J., EASLEY, CARLSON, GRAVES, DICKINSON AND
RANDOLPH, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.
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